Crowley Government Services, Inc. v. United States

In the United States Court of Federal Claims

No. 21-1387

(Filed under seal: January 18, 2022)

(Reissued for Publication: March 10, 2022) 1

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

CROWLEY GOVERNMENT SERVICES, *

INC., *

*

Plaintiff, *

*

v. * Bid Protest; Motion for Judgment

* on the Administrative Record;

* Incumbent Preference; Incumbent

THE UNITED STATES, * Advantage; Unstated Evaluation

* Criteria; Misleading Discussions.

Defendant, *

*

and *

*

*

PATRIOT CONTRACT SERVICES, LLC, *

*

Defendant-Intervenor. *

*

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

James Y. Boland and Christopher Griesedieck, Venable, LLP, Vienna, VA, for Plaintiff.

William James Grimaldi, Senior Trial Attorney, U.S. Department of Justice, Civil Division,

Washington, DC, with Robert D. Young, Supervisory Associate Counsel, Military Sealift

Command, of counsel, and Johanna Crawford, Associate Counsel, Military Sealift Command, of

counsel, for Defendant.

Craig S. King, Richard J. Webber, and Travis L. Mullaney, Arent Fox LLP, Washington, DC, for

Defendant-Intervenor.

1

This Order and Opinion was filed under seal on January 18, 2022, see ECF No. 26, in accordance with the

Protective Order entered on May 26, 2021, see ECF No. 13. The parties were given an opportunity to identify

protected information, including source selection information, propriety information, and confidential information

for redaction. The parties filed a notice proposing redactions on February 1, 2022. See ECF No. 28. As explained in

the Memorandum Opinion and Order, see ECF No. 29, contemporaneously filed with this public version of the

Order and Opinion, the Court has accepted the parties’ proposed redactions. All redactions are indicated by

bracketed asterisks, e.g., “[* * *].”

ORDER AND OPINION

DIETZ, Judge.

Plaintiff, Crowley Government Services, Inc. (“Crowley”), protests a decision by the

Military Sealift Command (“MSC”) to award a contract for operation and maintenance of several

WATSON Class ships to the incumbent contractor, Patriot Contract Services, LLC (“Patriot”).

Crowley challenges MSC’s proposal evaluation by arguing that MSC improperly favored Patriot

due to its incumbent status. Because the Court finds that MSC’s proposal evaluation was based

on the evaluation criteria set forth in the solicitation and supported by the contents of Patriot’s

proposal, Crowley’s motion for judgment on the administrative record is denied, and the

government’s and Patriot’s respective motions for judgment on the administrative record are

granted.

I. BACKGROUND

A. Overview of the Solicitation and Evaluation Factors

MSC issued a solicitation for the operation and maintenance (“O&M”) of eight

government-owned large, medium-speed roll on/roll off vessels (“LMSR”), collectively referred

to as the WATSON Class LMSR vessels. Admin. R. 257, ECF No. 17 [hereinafter AR]. The

solicitation called for a competitively negotiated source selection conducted in accordance with

Part 15 of the Federal Acquisition Regulation (“FAR”). AR 3907. The government intended to

award a firm-fixed price contract with a one-year base period and four one-year option periods.

AR 3908. The solicitation required submission of a proposal in three volumes: Solicitation

Package, Technical Proposal, and Past Performance Proposal. AR 491. The Solicitation

Packages submitted by Crowley and Patriot are not at issue in this protest.

Section M of the solicitation stated that the “award will be made to a responsible offeror

whose offer . . . represents the best value to the [g]overnment after considering the evaluation

factors in this solicitation[,]” and further stated that MSC “will evaluate offers on a trade-off

basis in accordance with FAR 15.101-1.” 2 AR 503. To determine best value, Section M stated

that MSC would conduct a trade-off analysis of three factors: Technical, Past Performance, and

Price. Id. Section M explained that the Technical and Past Performance factors are

“approximately equal” and “[w]hen combined . . . are significantly more important than cost or

price.” Id. Nonetheless, “[t]he importance of price will increase . . . when differences in the

evaluated quality of proposals decreases, or . . . when price is so high it diminishes the value of

non-cost factors to the [g]overnment.” Id.

The Technical Factor comprised of two subfactors—Technical Management Approach

and Manning Approach. AR 506. However, the solicitation explained that the “entire Technical

[F]actor will be evaluated as a single technical factor.” Id. The solicitation provided that “the

[g]overnment will consider the [t]echnical proposal submitted by the offeror in evaluating this

2

FAR 15.101-1 states that a “tradeoff process is appropriate when it may be in the best interest of the [g]overnment

to consider award to other than the lowest priced offeror or other than the highest technically rated offeror.”

2

factor.” Id. The solicitation went on to specify areas of interest to the government under each

subfactor. Id. For the Technical Management Approach, the solicitation provided four areas of

interest. Id. The Manning Approach consisted of seven areas of interest. Id. The solicitation

provided that the entire Technical Factor would be evaluated using one of five adjectival ratings:

“Outstanding,” “Good,” “Acceptable,” “Marginal,” or “Unacceptable.” AR 507.

The Past Performance Factor “assess[ed] the [g]overnment’s confidence in the offeror’s

likelihood of success in performing the solicitation’s requirements as indicated by that offeror’s

record of relevant past performance.” AR 507. As part of the past performance proposal, each

offeror was required to provide “up to five [g]overnment reference contracts that are on-going or

have been completed within five years of issuance of th[e] solicitation or final amendment . . .

that demonstrates its experience successfully operating ship(s) similar to the ship(s) described in

the [solicitation].” AR 499. If the offeror did not have a government reference contract available,

the solicitation stated, “commercial contracts may be used . . . . However, government contracts

will be deemed more relevant.” AR 500. The solicitation instructed offerors to “specifically

address how the referenced contracts reflect quality performance pertinent to the solicitation

requirements” in their past performance narrative. Id. In addition to the narrative, offerors were

required to “provide a point of contact and the contact’s email and phone number” for each

submitted reference contract. Id.

For the past performance evaluation, the solicitation provided that an offeror’s past

performance effort would be evaluated only if it was deemed to be “recent,” meaning it must

have been completed within five years of the solicitation’s close date, as amended. AR 507. Past

performances that were determined to be recent would also be assessed for relevance. Id. The

solicitation stated that “[c]ontracts that are most similar . . . in terms of scope, complexity, and

magnitude will be considered most relevant.” 3 Id. For the relevancy assessment, each past

performance effort would be graded on a scale of: “Very Relevant,” “Relevant,” “Somewhat

Relevant,” or “Not Relevant.” AR 508. The weight given to a particular past performance effort

would depend on how relevant it was to the solicitation requirements. See AR 4404. The Past

Performance Evaluation Team (“PPET”) was tasked with evaluating proposals and assigning

adjectival ratings. AR 507. Based on the totality of all past performance efforts, an overall Past

Performance Confidence rating would be assigned using one of five adjectival ratings:

“Substantial Confidence,” “Satisfactory Confidence,” “Neutral Confidence,” “Limited

Confidence,” or “No Confidence.” AR 508-09.

B. The Evaluation, Award Decision and Protest

MSC received six proposals, including those from Crowley and Patriot. AR 3163-64.

MSC conducted two rounds of discussions, three rounds of Final Proposal Revisions (“FPR”),

and one round of clarifications to obtain acceptable proposals from offerors in the competitive

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The solicitation defined “scope” as “[e]xperience operating, manning, and maintaining a similar number of ship(s)

with a similar mission[;]” “complexity” as the “[s]imilarity of technical difficulty, managerial complexity, and/or

required coordination of efforts and disciplines performed by the offeror and any subcontractors to the requirements

outlined in the solicitation[;]”and “magnitude” as “[t]he measure of the similarity of the volume, dollar value and

duration of the work actually performed under the offeror’s submitted contracts[.]” AR 508.

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range. AR 3774. The Source Selection Evaluation Board (“SSEB”) evaluated each proposal

based on the FPRs and documented the results in the SSEB Reports. AR 3171-74, 3342-436,

3539-62. Crowley and Patriot each received an “Outstanding” rating for the technical trade-off

factor, which means that each proposal indicates an exceptional approach and understanding of

the requirements, contains multiple strengths, and has a low risk of unsuccessful performance.

AR 507, 3702, 3710. For the past performance trade-off factor, Crowley received a rating of

“Satisfactory Confidence,” which means that the government has a reasonable expectation that

the offeror will successfully perform the required effort based on the offeror’s recent and

relevant performance record. AR 508, 3440. Patriot received a rating of “Substantial

Confidence,” which means that the government has a high expectation that the offeror will

successfully perform the required effort based on the offeror’s recent and relevant performance

record. AR 508, 3463, 3710. 4

The SSEB presented its findings to the Source Selection Advisory Council (“SSAC”).

AR 3702. After its review, the SSAC issued a memorandum with additional findings to the

Source Selection Authority (“SSA”). AR 3700-43. The SSA performed an independent review of

the proposals and described his evaluation process and decision in the Source Selection Decision

Document (“SSDD”). AR 3744-53. In the SSDD, the SSA concurred with the SSEB and SSAC

findings and recommendation and concluded “that [the] award should be made to [Patriot].” AR

3742-43, 3752-53.

On March 22, 2021, Crowley protested the evaluation and source selection at the

Government Accountability Office (“GAO”). AR 4082-125. Before the GAO proceedings

concluded, Crowley filed its complaint with this Court. The parties subsequently filed cross-

motions for judgment on the administrative record, and oral argument was held on August 25,

2021. Crowley’s protest is now ripe for decision.

II. LEGAL STANDARDS

The Tucker Act grants this Court jurisdiction to review post-award bid protests and

render judgment on an action “by an interested party objecting to . . . a proposed award or the

award of a contract or any alleged violation of statute or regulation in connection with a

procurement[.]” 28 U.S.C. § 1491(b); Impresa Construzioni Geom. Domenico Garufi v. United

States, 238 F.3d 1324, 1330 (Fed. Cir. 2001). The Tucker Act’s waiver of sovereign immunity

“covers a broad range of potential disputes arising during the course of the procurement

process[,]” including objections to an award. Sys. Application & Techs., Inc. v. United States,

691 F.3d 1374, 1380-81 (Fed. Cir. 2012).

This Court reviews agency decisions in bid protests using the standard of review set forth

in the Administrative Procedure Act (“APA”). 28 U.S.C. § 1491(b)(4); Impresa, 238 F.3d at

1332. This standard permits a court to set aside an agency’s contracting decision if the protestor

shows it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with

law.” 5 U.S.C. § 706(2)(A); Bannum, Inc. v. United States, 404 F.3d 1346, 1351 (Fed. Cir.

2005). “Under an arbitrary or capricious standard, the reviewing court should not substitute its

4

Crowley’s total evaluated price was $460,647,335.29, and Patriot’s total evaluated price was $455,164,761.90. AR

3710. However, their respective price proposals are not directly at issue in this protest.

4

judgment for that of the agency[] but should review the basis for the agency decision to

determine if it was legally permissible, reasonable, and supported by the facts.” Glenn Def.

Marine (Asia), PTE Ltd. v. United States, 105 Fed. Cl. 541, 559 (2012) (citing Motor Vehicle

Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)). The

protestor has the burden to show by a preponderance of evidence the arbitrary and capricious

nature of the agency’s decision. Mortg. Contracting Servs., LLC v. United States, 153 Fed. Cl.

89, 124 (2021). While the APA standard calls for considerable deference to the agency,

Advanced Data Concepts, Inc. v. United States, 216 F.3d 1054, 1058 (Fed. Cir. 2000), a court

may set aside an agency’s procurement decision if the decision lacked a rational basis, or the

procurement procedure involved a violation of regulation or procedure. Impresa, 238 F.3d at

1332; see also Safeguard Base Operations, LLC v. United States, 989 F.3d 1326, 1343 (Fed. Cir.

2021). Nevertheless, if the reviewing court finds that the agency’s action evinced rational

reasoning and consideration of relevant factors, it must sustain the agency’s action. Advanced

Data Concepts, 216 F.3d at 1058 (citing Bowman Transp., Inc. v. Arkansas-Best Freight Sys.,

Inc., 419 U.S. 281, 285-86 (1974)).

III. DISCUSSION

In its protest, Crowley raises several challenges to MSC’s proposal evaluation with an

underlying premise that MSC improperly credited Patriot because of its incumbent status. First,

Crowley argues MSC improperly assigned strengths to Patriot and failed to assign strengths to

Crowley as part of the technical evaluation. Second, Crowley argues MSC treated Crowley and

Patriot unequally in evaluating past performance. Third, Crowley argues MSC conducted

misleading discussions in violation of FAR 15.306(d)(3).

While Crowley’s challenges are extensive, the Court nevertheless finds that Crowley has

failed to demonstrate that MSC improperly credited Patriot for its incumbency or that MSC’s

proposal evaluation was arbitrary, capricious, an abuse of discretion, or otherwise not in

accordance with law. It is apparent from the record that MSC considered Patriot’s incumbency

during its proposal evaluation, but consideration of an offeror’s incumbency does not, on its

own, render an agency’s decision arbitrary or capricious. This Court has long recognized that

incumbent contractors may possess inherent competitive advantages, and those “natural”

advantages are generally permissible. Omega World Travel, Inc. v. United States, 54 Fed. Cl.

570, 575 (2002); see Worldwide Language Res., LLC. v. United States, 127 Fed. Cl. 125, 133

(2016); Gulf Grp., Inc. v. United States, 56 Fed. Cl. 391, 398 (2003); Galen Med. Assocs., Inc. v.

United States, 56 Fed. Cl. 104, 111 (2003); Comput. Scis. Corp. v. United States, 51 Fed. Cl.

297, 311 (2002). While an agency may not unduly tip the scales in favor of an incumbent

contractor, an agency is not required to ignore the benefits or advantages derived from an

offeror’s incumbency, and it likewise need not attempt to level the playing field for all other

offerors. Gulf Grp., 56 Fed. Cl. at 398; Galen Med. Assocs., 56 Fed. Cl. at 111. As explained in

the below analysis of each of Crowley’s challenges, the record demonstrates that MSC’s decision

to select Patriot for award was based on the evaluation criteria set forth in the solicitation and

supported by the contents of Patriot’s proposal.

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A. Technical Evaluation

Crowley argues that MSC improperly credited Patriot for its incumbent status throughout

the technical evaluation and, in doing so, employed unstated evaluation criteria. Pl.’s Mot. for J.

on the Admin. R. at 7-8, ECF No. 18 [hereinafter Pl.’s MJAR]. “Government agencies are

entrusted with a good deal of discretion in making procurement decisions.” Grumman Data Sys.

Corp. v. Widnall, 15 F.3d 1044, 1046 (Fed. Cir. 1994). In particular, the assignment of technical

ratings by an agency is a discretionary determination that is part of the “minutiae of the

procurement process[,]” and, as such, the Court typically will not second guess the agency’s

determination. E.W. Bliss Co. v. United States, 77 F.3d 445, 449 (Fed. Cir. 1996). Furthermore,

“[i]t is well established that the evaluation of proposals for their technical quality generally

requires the special expertise of procurement officials,” so “[r]eviewing courts therefore give the

greatest deference possible to these determinations.” KCS Boss All., LLC v. United States, 142

Fed. Cl. 368, 380 (2019) (citing E.W. Bliss Co., 77 F.3d at 449). An agency’s evaluation,

however, must be consistent with the standards set forth in the solicitation. 10 U.S.C. § 2305;

FAR 15.305(a). If an agency evaluates proposals based on unstated evaluation criteria, a

protestor can challenge the award decision by showing: (1) the agency used a significantly

different basis in evaluating its proposal than was disclosed and (2) the protestor has been

prejudiced as a result, or in other words, that it had a substantial chance to receive the contract

award but for the error. Banknote Corp. of Am. v. United States, 56 Fed. Cl. 377, 387 (2003),

aff’d, 365 F.3d 1345 (Fed. Cir. 2004).

1. Technical Management Approach

Crowley poses three challenges to MSC’s assignment of strengths to Patriot for its

proposed Technical Management Approach: (i) strength sixteen, (ii) [* * *] individual strengths

assigned for Patriot’s proposed key personnel, and (iii) strength seventeen.

i. Strength Sixteen

Crowley takes issue with MSC assigning Patriot strength sixteen, see Pl.’s MJAR at 8-9,

which stated:

[Patriot] is presently performing O&M for the WATSON class of ships and as

described above, doing it well. Note that incumbent contractors have an advantage

because they possess the most relevant past performance, and incumbent

contractors with good performance records can offer real advantages to the

government in terms of lessened performance risk. Such a competitive advantage

is not an unfair or improper competitive advantage, and an agency is not required

to attempt to equalize competition to compensate for that advantage. There is no

basis to object to an incumbent offeror’s advantage unless it is created by an

improper preference or other unfair action by the procuring agency. This advantage

is reflected in the key personnel’s current experience and knowledge of [the

WATSON] Class and MSC processes and procedures. It also affects past

performance and risk analyses. Specifically, if awarded [Patriot] can seamlessly

assume new contract performance from the predecessor contract performance.

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AR 3716. By assigning this strength, Crowley argues that MSC “utilized Patriot’s incumbency to

create an unwarranted strength based upon how Patriot had performed on the incumbent

contract” and employed unstated evaluation criteria by encompassing “past performance” and

“transition” as criteria under the technical evaluation. Pl.’s MJAR at 8-9.

Crowley mischaracterizes MSC’s considerations as employing unstated evaluation

criteria. As Crowley acknowledges, see Pl.’s MJAR at 8, the solicitation expressly permitted

MSC to consider the experience of an offeror’s key personnel in the technical evaluation. 5 One

area of interest for the government under the Technical Management Approach included “[t]he

relevance and benefits of the proposed Key Personnel whose qualifications, experience,

education, expertise, percentage of time they dedicate, and skill levels exceed contract

requirements in relation to their assigned roles.” AR 506. The solicitation further advised that an

adjectival rating would be assigned for the Technical Factor in consideration of the offeror’s

proposed approach and understanding of the requirements and whether the risk of unsuccessful

performance was low. AR 507. Based on the stated evaluation criteria, MSC was within its

discretion to assign this strength to Patriot for its proposed key personnel’s experience, the

relevance of the experience, and the resulting benefits to the government. The key personnel

proposed by Patriot are largely the same personnel presently performing O&M services on the

WATSON Class. See AR 2995, 3011. Therefore, it was unavoidable that MSC would consider

Patriot’s incumbency when evaluating the “relevance and benefits” of Patriot’s proposed key

personnel, their “experience” with the WATSON Class ships and MSC processes and

procedures, and the impact on “the risk of unsuccessful performance.” The solicitation criteria

permitted this consideration. See Forestry Surveys & Data v. United States, 44 Fed. Cl. 493, 499

(1999) (stating an agency has “great discretion in determining the scope of an evaluation

factor”). While MSC cannot unduly tip the scales in favor of an incumbent contractor, it may

weigh the advantages offered by the incumbent via its relevant experience and performance with

the contract subject matter. Gulf Grp., 56 Fed. Cl. at 398.

MSC was also within its discretion to determine that Patriot’s prior performance and

ability to seamlessly assume contract performance provided a benefit to the government. The

stated areas of interest in the solicitation permitted MSC to consider “[a]ny other aspect in the

offeror’s technical management approach that will provide a benefit to the government[.]” AR

506. The stated areas of interest also permitted MSC to consider “[t]he feasibility [that] the

offeror’s technical management approach will facilitate operations and result in a successful

coordination/collaboration effort with the [g]overnment in a timely and effective manner.” Id.

Furthermore, in assigning an adjectival rating, MSC was permitted to consider the risk of

unsuccessful performance. See AR 507. Thus, while past performance and transition, as

characterized by Crowley, are not explicitly identified as evaluation criteria under the Technical

Management Approach, under the stated areas of interests, it was reasonable for MSC to

consider Patriot’s “good performance records” as part of its technical evaluation and determine

that they “c[ould] offer real advantages to the government in terms of lessened performance

risk.” AR 3716; see ARINC Eng’g Servs., LLC v. United States, 77 Fed. Cl. 196, 203 n.9 (2007)

(“[I]ncumbent contractors with good performance records can offer real advantages to the

5

Crowley also benefitted from this consideration because MSC also credited Crowley for the experience of its

proposed key personnel. See AR 3719-20.

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government in terms of lessened performance risk; accordingly, proposal strengths flowing from

[an offeror’s] prior experience are proper considerations in selecting an awardee[.]”) (citations

omitted).

Aside from its consistency with the evaluation criteria, MSC’s assignment of strength

sixteen is supported by Patriot’s proposal. In the Technical Management Approach portion of its

proposal, Patriot stated that it intends to leverage its experience managing the same vessel class

during the previous five-plus years and to scale up, improve, and refocus existing management

practices to the new solicitation requirements. AR 2994-3005. Patriot’s proposal lists the key

principles that have contributed to Patriot’s successful management of the WATSON Class,

which Patriot states will continue, as well as the proposed tasks and objectives for meeting the

new solicitation requirements. AR 2994-95. Thus, based on the record, MSC’s assignment of

strength sixteen was rational because it was consistent with the solicitation evaluation criteria

and supported by Patriot’s proposal. 6

ii. [* * *] individual strengths assigned for proposed key personnel

Crowley also challenges MSC’s assignment of [* * *] individual strengths to Patriot for

each of its proposed incumbent personnel. Pl.’s MJAR at 11. To support its challenge, Crowley

points to the following portion of MSC’s Technical Management Approach comparison:

If [Patriot] had not offered [* * *] incumbent personnel with present and seasoned

WATSON Class experience, as shown by the above list of strengths for each, then

[Crowley’s] technical proposal would be slightly stronger than [Patriot’s] proposal.

Nonetheless, the incumbent personnel’s experience provides the tipping point to

make [Patriot’s] technical proposal stronger. [Patriot’s] incumbent personnel

collectively reduce performance risk across the entire spectrum of performance in

that the personnel are currently performing the RFP tasks. Thus, [Patriot’s] proposal

offers more benefit to the [g]overnment when its incumbent personnel are

combined with [Patriot’s] other strengths[.]

AR 3721-22. Crowley argues that assignment of these individual strengths was unreasonable

because these strengths are based solely on Patriot’s incumbency, are unearned, and reflect clear

incumbent preference. Pl.’s MJAR at 11.

As explained above, the evaluation criteria in the solicitation permitted MSC to consider

the qualifications, experience, and expertise of the proposed key personnel and any other aspects

of the offeror’s technical proposal that provide a benefit to the government, and to assign a

6

Crowley also argues that MSC “presumed [Patriot would have a] risk-free transition based solely upon Patriot’s

incumbency.” Pl.’s MJAR at 12. To the contrary, the record shows that MSC found “[Patriot’s] proposal provided a

better approach by increasing the likelihood of successful performance on this contract, without startup risks.” AR

3723 (emphasis added). MSC’s conclusion was based on Patriot’s proposed approach, not “presumed” based on its

incumbency. Further, MSC was rational to conclude that Patriot’s proposed approach would not introduce “startup

risks” because Patriot is the incumbent contractor currently performing the services and its proposal leveraged the

benefits Patriot could provide due to its incumbent experience. MSC is not prohibited from considering advantages

that incumbent offerors may provide. See Gulf Grp., 56 Fed. Cl. at 398.

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strength when MSC determined that a strength was warranted. See AR 506, 3938. The

solicitation defined a “strength” as “an aspect of an offeror’s proposal that has merit or exceeds

specified performance or capability requirements in a way that will be advantageous to the

[g]overnment during contract performance.” AR 3925. The technical evaluation report issued by

the PPET also stated that “strengths” are typically assigned for “high quality personnel, facilities,

organizational structures[,] and/or technical approaches that allow an offeror to perform the work

cost effectively or at a higher level of quality.” AR 3339.

In assigning these individual strengths, MSC determined that Patriot’s proposed key

personnel with WATSON Class experience made Patriot’s proposal “stronger” and provided a

benefit to the government by “collectively reduc[ing] performance risk across the entire

spectrum of performance.” AR 3721-22. Patriot’s proposal provided that “most of the shoreside

and shipboard senior management proposed have been with the [WATSON] class program for

much of the current contract.” AR 2995; see AR 3011. While the advantage of employing

personnel experienced with the specific solicitation subject matter may be “inherent” for any

incumbent contractor, MSC is not required to neutralize the competitive advantages that

incumbent contractors, such as Patriot, enjoy simply because of their own circumstances.

WinStar Commc’ns, Inc. v. United States, 41 Fed. Cl. 748, 763 (1998). Further, the

administrative record shows, and Crowley ignores, that MSC explained its rationale for why

Patriot’s technical proposal and its proposed incumbent personnel were determined to provide

greater benefit to the government. In this regard, MSC stated:

There are no weaknesses or deficiencies noted in the technical proposals submitted

by [Patriot] or [Crowley]. Both offerors proposed many strengths in their technical

management approaches that would benefit the government. [Crowley] proposed

[* * *]. However, [Patriot] offered [* * *] personnel who possess prior WATSON

LMSR O&M experience gained under the current WATSON O&M contract. The

recent experience of [Patriot’s] incumbent personnel, combined with [Patriot’s]

other strengths, makes [Patriot’s] technical tradeoff proposal more beneficial to the

[g]overnment than [Crowley’s] proposal.

AR 3721. “The question is not whether the court would reach the same conclusions as the

agency regarding the comparison of proposals, but, rather, whether the conclusions reached by

the agency lacked a reasonable basis[.]” Glenn Def. Marine, 105 Fed. Cl. at 561. Here, MSC’s

assignment of [* * *] individual strengths to Patriot for its proposed incumbent key personnel

and their directly relevant and recent experience was consistent with the solicitation evaluation

criteria and had a reasonable basis.

iii. Strength Seventeen

Crowley’s final challenge to MSC’s evaluation of the technical management approach

relates to strength seventeen. Pl.’s MJAR at 9. Strength seventeen stated:

[Patriot] is presently performing O&M for the WATSON class of ships and has the

inherent benefit of having trained crews already on each ship. This also benefits the

[g]overnment by facilitating seamless and smooth operations, and we expect it will

9

result in a successful coordination/collaboration effort with the government, in a

timely and effective manner.

AR 3716. Crowley argues that “[t]his is nothing more than a strength for incumbency in which

MSC rewarded Patriot not for its proposed approach . . . but merely because Patriot had been

successful in winning the predecessor contract[.]” Pl.’s MJAR at 9. Because only the incumbent

could have its crew already on the ship, this strength, according to Crowley, “was not available

to any other offeror.” Id. at 10. This argument likewise fails because, not only does this strength

explicitly reference and connect to the solicitation evaluation criteria, but it is also based on the

contents of Patriot’s proposal.

The solicitation permitted MSC to consider “[t]he feasibility [that] the offeror’s technical

management approach will facilitate operations and result in a successful

coordination/collaboration effort with the [g]overnment in a timely and effective manner.” AR

506 (emphasis added). Patriot’s proposal stated that “most of the shoreside and shipboard senior

management proposed have been with the [WATSON] class program for much of the current

contract[,]” AR 2995, and “the crewmembers that will fill key positions on the next [WATSON]

contract currently average 4-5 years of experience in those positions on the [WATSON]

vessels[,]” AR 3011. Patriot also provided an extensive list of proposed key personnel in its

proposal—a majority of whom are currently employed by Patriot for its incumbent contract

performance. See AR 2990-93, 3066-162.

Considering Patriot’s proposal against the evaluation criteria, MSC’s assignment of

strength seventeen is reasonably supported by the government’s interest in a smooth transfer of

ongoing operations from the incumbent contract to the new contract, and the benefits that the

government would obtain from Patriot’s proposed continued use of the “trained crews already on

each ship.” AR 3716. Further, just because this strength is “not available to any other offeror”

does not render its assignment arbitrary or capricious. This strength directly correlates to the

solicitation evaluation criteria and the contents of Patriot’s proposal, and, within these

parameters, MSC has broad discretion to determine that Patriot’s proposed approach offers a real

advantage over other proposals, and MSC is not required to neutralize this competitive

advantage. See One Largo Metro, LLC v. United States, 109 Fed. Cl. 39, 74 (2013); WinStar, 41

Fed. Cl. at 763.

2. Manning Approach

Crowley poses three challenges to MSC’s assignment of strengths to Patriot for its

proposed manning approach: (i) strength one, (ii) strength three, and (iii) MSC’s comparison of

Crowley’s and Patriot’s respective manning approaches.

i. Strength One

MSC assigned strength one to Patriot for the following: “As the incumbent, [Patriot] has

maintained a gapped billet rate of [* * *].” AR 3717. MSC determined that “[t]his demonstrates

that the current manning methodologies, which [Patriot] intends to retain, are working in a very

successful manner.” Id. Crowley argues that, because Patriot’s proposed manning approach did

10

not state its intention to retain the “manning methodologies” that resulted in this gapped billet 7

rate from the incumbent contract, MSC made an unsupported assumption based on Patriot’s

incumbent performance that Patriot would continue the same manning approach. Pl.’s MJAR at

10. The record, however, shows that MSC did not make any unsupported assumptions by

assigning this strength.

When evaluating Patriot’s proposed manning approach, the evaluation criteria permitted

MSC to consider Patriot’s “past success of programs to indicate potential for future success.” AR

506. Patriot’s proposed manning approach stated that Patriot “[* * *].” AR 3006. Patriot went on

to describe in detail its approaches to [* * *]. See AR 3006-15. These manning approaches

described by Patriot in its proposal appear to reflect the approaches that Patriot utilizes on its

incumbent contract, as well as its intention to continue and improve its approaches as needed to

meet the solicitation requirements. See, e.g., AR 3007 (“[* * *]”); AR 3008 (“[* * *]”); AR 3011

(“[* * *]”); AR 3012 (“[* * *]”); AR 3013 (“[* * *]”); id. (“[* * *]”); AR 3008 (“[* * *]”).

While Patriot does not explicitly state that it “intends to retain” the same gapped billet rate from

the predecessor contract, the record shows that Patriot explicitly described how it planned to

continue its current manning methodologies under the new contract, and MSC rationally

assigned this strength to Patriot based on the evaluation criteria.

ii. Strength Three

Crowley next challenges strength three assigned to Patriot. See Pl.’s MJAR at 10-11.

Strength three stated:

[Patriot] noted in its proposal that “most of the shoreside and shipboard senior

management proposed have been with the [WATSON] class program for much of

the current contract.” Additionally, [Patriot] stated in regard[] to its port engineers

that many “have been with the current MSC [WATSON] Class program since

contract award in 2014.” This will provide personnel at contract inception that are

trained and receiving ongoing training on with [sic] MSC processes and/or

WATSON Class technical specifics -- which ensures a ready level of technical

proficiency, coupled with efficiency coming from familiarity when dealing with

common issues as they arise. Put another way, it provides a greater systemic

capability to reach back to recent issues that have occurred on the [WATSON]

Class vessels and address them in a timelier manner.

AR 3717 (internal citations omitted). Crowley argues that MSC improperly credited Patriot

because the portion of the strength that states “most of the shoreside and shipboard management

proposed have been with the [WATSON] class program for much of the current contract” is

contained in Patriot’s technical management approach, not in the manning approach. Pl.’s MJAR

at 10-11. Crowley further argues this strength was assigned “based on nothing more than

[Patriot’s] incumbent experience, unrelated to the evaluation criteria” and the strength does not

reflect Patriot’s proposed manning approaches or methods. Id. at 11.

7

A “billet” can mean a specific personnel position, assignment, or duty station which may be filled by one person.

The term “gapped billet” is the difference between billets authorized and the current personnel onboard.

11

Detrimental to this argument is the fact that the solicitation provides that the “entire

Technical [F]actor will be evaluated as a single technical factor.” AR 506. So, it was not

unreasonable or improper for MSC to assign this strength to Patriot based on relevant

information in Patriot’s technical proposal irrespective of whether such information was included

under the Technical Management Approach or Manning Approach. Cf. Office Depot, Inc. v.

United States, 95 Fed. Cl. 517, 533 n.18 (2010) (“The general rule is that an agency is not

precluded from considering an element of a proposal under more than one evaluation criterion

where the element is relevant and reasonably related to each criterion under which it is

considered.”) (quotations omitted). Furthermore, for the manning approach, the evaluation

criteria identified “retention” and “training” as areas of interest to the government. AR 506. As

demonstrated by Patriot’s proposal, and as discussed above, Patriot set forth in detail its current

and planned approaches and methods for personnel recruitment, retention, and training. See AR

3008-15. Therefore, based on the solicitation evaluation criteria and Patriot’s proposal, MSC was

rational and within its discretion when it assigned this strength to Patriot.

iii. MSC’s Manning Approach Comparison

Crowley also challenges MSC’s comparison of Crowley’s and Patriot’s respective

manning approaches. MSC’s comparison stated:

[Crowley] and [Patriot] were both recognized for possessing several manning

approach strengths. Against [Crowley’s] advantage in number of strengths, we

balanced [Patriot’s] incumbent advantage of already manning the WATSON Class

vessels and shore support establishment, and having done so successfully during

the incumbent contract period. On balance, we believe that slightly outweighs

[Crowley’s] well-stated program.

AR 3723. Crowley argues that “Patriot’s incumbent status was the deciding factor” in this

comparison. Pl.’s MJAR at 13. The Court, however, is not persuaded that Patriot’s incumbent

status was the deciding factor. Instead, MSC’s conclusion was consistent with the solicitation

evaluation criteria and supported by Patriot’s proposal.

The solicitation evaluation criteria stated that MSC had an interest in crew recruitment

and retention, an offeror’s past success with crew retention programs, and any other aspect of an

offeror’s manning approach that provided a benefit to the government. AR 506. Patriot’s

proposal included a detailed manning approach, which, not surprisingly, reflected various

recruitment and retention approaches that it utilizes on the incumbent contract. AR 3006-15.

Where an incumbent contractor’s proposal exhibits its experience and resources naturally

derived from performance on the incumbent contract, it may be difficult to distinguish the

incumbent’s advantages based solely on incumbent status from those advantages derived from

performance on the incumbent contract. In this case, since Patriot leveraged its incumbent

experience and resources throughout its proposed manning approach, MSC did not simply rely

on Patriot’s incumbent status as the deciding factor but instead credited Patriot for its inherent

incumbent advantages as illustrated in its proposal, which naturally included “already manning

the [WATSON] Class vessels and shore support establishment[.]” AR 3723. Under these

circumstances, MSC is permitted to recognize the natural advantages that Patriot possesses and

12

conclude that Patriot’s proposed manning approach provides greater benefit to the government

than Crowley’s proposed approach. Omega World Travel, 54 Fed. Cl. at 575; see E.W. Bliss Co.,

77 F.3d at 449; Comput. Scis. Corp., 51 Fed. Cl. at 311; see also Vantage Assocs., Inc. v. United

States, 59 Fed. Cl. 1, 19 (2003) (“The wide discretion afforded contracting officers extends to a

broad range of procurement functions, including the determination of what constitutes an

advantage over those proposals.”).

3. Other challenges to MSC’s technical evaluation

Crowley also asserts that MSC improperly relied upon Patriot’s incumbency when

assessing risk in the trade-off analysis. See Pl.’s MJAR at 13-14. As part of the trade-off

analysis, the SSAC assessed risk as a separate consideration from the technical, past

performance, and price factors. See AR 3711-12. As part of this assessment, the SSAC

considered “the degree to which an offeror’s proposed approach to achieving the technical factor

may involve risk of disruption of schedule, degradation of performance, the need for increased

[g]overnment oversight, and/or the likelihood of unsuccessful contract performance.” AR 3712.

For Patriot, the SSAC determined:

[Patriot] is the incumbent for this contract. Its present performance is overall well

rated. Its past performance and known management, and management practices,

minimize the known or anticipated performance risk factors.

AR 3717. Crowley argues that this determination is based on Patriot’s incumbent status alone, as

opposed to Patriot’s proposed technical approach. Pl.’s MJAR at 13. While SSAC’s

determination does not explicitly reference Patriot’s proposal, the definition of risk as set forth in

SSAC’s award recommendation involved an assessment of Patriot’s “proposed approach,” AR

3712, and Patriot’s proposed approach was replete with direct references to its performance on

the incumbent contract. See discussion supra section III.A.2.i; see also AR 2994 (discussing the

key principles that have contributed to its success); AR 3040 (“While [Patriot] can draw recent

and relevant examples of past performance from across its fleet contractor-operated MSC . . .

vessels, no other contract would match the recency and relevancy of our 5+ years of performance

successes with the [WATSON] Class LMSR contract.”). Thus, SSAC’s determination, as

summarized in the risk portion of its award recommendation, is supported by Patriot’s proposal,

and the Court will not disturb its determination. See Banknote, 56 Fed. Cl. at 381 (stating that

this Court is in no position to second-guess an agency’s discretionary determinations that involve

highly technical matters).

Crowley’s last challenge to the technical evaluation is that MSC “ignored and

downplayed multiple benefits of Crowley’s technical proposal” in the Technical Management

Approach comparison. Pl.’s MJAR at 14-15. To support its position, Crowley lists an array of

purported benefits that it claims MSC failed to identify in its evaluation. Id. The Court, however,

does not accept Crowley’s invitation to second guess MSC’s evaluation of Crowley’s proposal

and determine what aspects of Crowley’s proposal would benefit the government. Rather, it is

within MSC’s broad discretion to determine which bid is the most advantageous to the

government. See Lockheed Missiles & Space Co., Inc. v. Bentsen, 4 F.3d 955, 959 (Fed. Cir.

1993). Indeed, the record shows that MSC identified areas where Crowley’s proposal provided a

13

benefit to the government. See AR 3719-21. Crowley’s argument that MSC failed to give credit

for other aspects of its proposal which Crowley considers beneficial to the government amounts

to mere disagreement with MSC’s technical evaluation and does not provide grounds for the

Court to disturb it. See Avtel Servs., Inc. v. United States, 70 Fed. Cl. 173, 218 (2006) (“[A]

protestor’s mere disagreement with the agency’s evaluation determination does not provide a

basis for sustaining the protest.”) (quotations omitted).

B. Past Performance Evaluation

To advance its underlying premise that MSC improperly favored preservation of the

incumbent contractor, Crowley next challenges MSC’s past performance evaluation on the

grounds that MSC ignored the context of Crowley’s and Patriot’s past performance data in the

Contractor Performance Assessment Reporting System (“CPARS”), unequally applied the

solicitation evaluation criteria when determining the relevance of past performance efforts, and

failed to consider past performance data that Crowley submitted with its proposal. Pl.’s MJAR at

16-32. In general, an agency is afforded very broad discretion when it determines whether and to

what extent an offeror’s past performances instill confidence that the offeror will successfully

perform and meet the needs of the contracting agency. Vectrus Sys. Corp. v. United States, 154

Fed. Cl. 29, 41 (2021). An agency’s past performance evaluation will not be disturbed unless it is

unreasonable, inconsistent with the terms of the solicitation, or in violation of applicable statutes

or regulations. Fort Carson Support Servs. v. United States, 71 Fed. Cl. 571, 599 (2006); see Al

Andalus Gen. Conts. Co. v. United States, 86 Fed. Cl. 252, 262 (2009); see also Univ. Rsch. Co.,

LLC v. United States, 65 Fed. Cl. 500, 506 (2005); JWK Int’l Corp. v. United States, 52 Fed. Cl.

650, 659 (2002). In this case, the record demonstrates that MSC’s past performance evaluation

was reasonable, consistent with the stated evaluation criteria, and compliant with applicable law,

and, therefore, the Court will not disturb it.

1. Evaluation of CPARS

Crowley argues that MSC’s past performance evaluation was arbitrary and violated the

FAR because it failed to consider the “context” of the offeror’s past performance data. Pl.’s

MJAR at 17, 19. FAR 15.305(a)(2)(i) sets forth requirements for how agencies should conduct

past performance evaluations and, in relevant part, provides:

Past performance information is one indicator of an offeror's ability to perform the

contract successfully. The currency and relevance of the information, source of the

information, context of the data, and general trends in contractor's performance

shall be considered.

Crowley posits that the “context” of past performance data that is stored in the CPARS is found

in the narratives that explain the circumstances of the offeror’s performance. Pl.’s MJAR at 19.

Therefore, Crowley argues that MSC is required by FAR 15.305(a)(2)(i) to review the CPARS

narratives—not just the adjectival ratings—and that MSC failed to do so. Id. at 19-23.

The Court is not persuaded by Crowley’s interpretation of FAR 15.305(a)(2)(i). This

clause affords MSC considerable discretion in deciding what data is most relevant for the past

14

performance evaluation. Seaborn Health Care, Inc. v. United States, 101 Fed. Cl. 42, 51 (2011).

It does not by its terms require MSC to review the CPARS narratives, nor does it require MSC to

consider whether the CPARS narratives justify the corresponding adjectival ratings. Further, it

does not mandate that “the context of the [past performance] data” be derived from the CPARS

narratives. See FAR 15.305(a)(2)(i). Instead, it provides latitude to MSC to select a method for

evaluating offerors’ past performance. See Vanguard Recovery Assistance v. United States, 101

Fed. Cl. 765, 784 (2011) (“The deference owed to the procuring agency extends not just to the

actual rating, but also to its selection of a method for evaluating offerors’ past performance.”)

(internal quotations omitted). In this regard, the solicitation set forth the methods that MSC

would use to evaluate past performance. AR 507. Similarly, the methods described in the

solicitation likewise did not require MSC to use the CPARS narratives, and instead provided

MSC discretion. See id. (“The [g]overnment may use data provided in the offeror’s proposal . . .

in addition to data obtained from other sources such as the Past Performance Information

Retrieval System (PPIRS), CPARS, etc.”) (emphasis added). Because neither the FAR nor the

solicitation required MSC to review the CPARS narratives in conducting its past performance

evaluation, Crowley’s argument fails. 8

Crowley further argues that MSC’s past performance evaluation was arbitrary because

MSC “failed to consider significant negative past performance information regarding Patriot’s

incumbent contract and 5301 contract.” 9 Pl.’s MJAR at 23. Crowley asserts that, had MSC

considered Patriot’s CPARS narratives, MSC “would have concluded that Patriot’s past

performance did not warrant a rating of Substantial Confidence.” Id. at 25. To support its

argument, Crowley directs the Court to various excerpts in Patriot’s CPARS narrative for the

incumbent contract that it argues contain negative information about Patriot’s past performance.

See AR 3648 (“[* * *]”); AR 3649 (“[* * *]”); id. (“[* * *]”). However, in its argument,

Crowley focuses only on the negative information contained in Patriot’s CPARS narratives. See

Pl.’s MJAR at 24. The fact that the narrative reflects that Patriot’s past performance may have

been imperfect does not render MSC’s “Substantial Confidence” rating arbitrary. When viewed

in full, the narratives explain how Patriot’s performance improved and how Patriot was able to

overcome the challenges. See AR 3647 (“[* * *]”); AR 3649 (“[* * *]”); id. (“[* * *]”).

Regarding Patriot’s 5301 contract, MSC acknowledged Patriot’s “[* * *]” ratings and

downward performance trend in its evaluation. AR 3520 (“[* * *]”); id. (“[* * *]”). In weighing

its assessment of the 5301 contract against Patriot’s overall past performance, MSC found this

negative information was offset by the positive information on the more relevant incumbent

contract. Id. In this regard, MSC articulated:

The quality of the [o]fferor’s contracts gives the government a high expectation the

offeror will successfully perform the contract because quality ratings combined a

mix of exceptional, very good, satisfactory[,] and marginal ratings. However, the

weight given to [the incumbent contract] and [the 5301 contract] for quality ratings

8

Although not required, the record shows that MSC did consider CPARS narratives, at least in part, in its past

performance evaluation, including with respect to Crowley. See AR 3444-45, 3447, 3464; see also AR 3471, 3473.

9

Patriot’s 5301 contract was a government reference contract submitted by Patriot as part of its past performance

proposal. The scope of this contract consisted of O&M of four large, medium-speed vessels for MSC. AR 3050.

15

were high and medium weight, because they were “very relevant” and “relevant[,]”

respectively. The positive effects on the confidence ratings by the quality ratings of

“[* * *]” on the very relevant [incumbent contract] more [than] offsets the

weakening effects on the confidence rating by the [* * *] quality ratings received

on the less relevant [5301 contract]. Thus, the evaluators assigned a low substantial

confidence rating.

AR 3520-21, 3555. As shown above, and contrary to Crowley’s contention, the record

demonstrates that MSC considered Patriot’s negative past performance information and weighed

such information against other positive past performance information derived from Patriot’s

CPARS. The Court will not disturb MSC’s past performance evaluation on these grounds.

Crowley’s argument that MSC “ignored” the CPARS narrative for Crowley’s ROCON

contract is likewise unavailing. Pl.’s MJAR at 25. As stated above, MSC was not required by the

FAR or the solicitation to review the CPARS narratives in its past performance evaluation.

Further, the role of the Court is not to determine what MSC could have done in its evaluation;

rather, it is to determine whether MSC had a rational basis for what it did. Motor Vehicle Mfrs.,

463 U.S. at 43. Here, MSC had a rational basis. In its overall confidence rating for Crowley,

MSC articulated:

Based upon the reference contracts; CDRs and USCG 835s, 2692s; and CPARS, in

the [judgment] of the evaluators, the confidence rating for this offeror is

Satisfactory Confidence. The [g]overnment has a reasonable expectation that the

offeror will successfully perform the required effort because the contract provided

by the offeror as a reference was evaluated as being recent and relevant with an

associated high quality of performance. However, the [g]overnment could not

conclude a higher confidence rating because the [ROCON] contract was evaluated

as being the most relevant contract evaluated and the [ROCON] contract had [* *

*] quality of performance, which in the judgment of the PPET does diminish the

[government’s] overall [confidence] rating[.]

AR 3447 (emphasis in original). The FAR defines a “[* * *]” rating as “[* * *]” and where “[* *

*].” FAR 42.1503; see AR 3568. Given that Crowley received [* * *] ratings for its ROCON

contract and that MSC determined that Crowley’s ROCON contract was “the most relevant

contract evaluated,” MSC had a rational basis for assigning Crowley an overall “Satisfactory”

confidence rating. Crowley’s “mere disagreement” is not enough to disturb MSC’s decision. See

Blackwater Lodge & Training Ctr., Inc. v. United States, 86 Fed. Cl. 488, 514 (2009).

2. Relevancy of Crowley’s ROCON contract

In its proposal, Crowley submitted two past performance efforts—the BOBO contract 10

and the Hapag Lloyd contract—for evaluation by MSC. AR 2555-61, 3440-45. In addition to

10

Crowley’s BOBO contract was a government reference contract submitted by Crowley as part of its past

performance proposal. The scope of this contract consisted of full ship management and operation of six vessels—

five BOBO Class vessels and the USNS STOCKHAM—for MSC. AR 2555-57.

16

evaluating the submitted reference contracts, as part of the past performance evaluation, the

solicitation provided:

The Past Performance evaluation will assess CPARS, if any had been completed,

that did not correspond to a contract submitted by an offeror. The Past Performance

Evaluation Team (PPET) will review these CPARS contracts, and their associated

ratings, to determine whether each could affect the overall confidence ratings.

When the PPET determine[s] CPARS ratings for a contract could not affect the

overall confidence rating, the contract will not be evaluated further. When the PPET

determine[s] a CPARS contract could affect the overall confidence rating, then

relevance will also [be] evaluated so the contract can be factored into the overall

confidence rating.

AR 507 (emphasis added). After its initial evaluation, and consistent with the solicitation terms

above, MSC identified a CPARS for another contract—the ROCON contract—that “did not

correspond to a contract submitted” by Crowley. AR 3445-47; see AR 4631. Because Crowley

had received “[* * *]” ratings on the ROCON contract, MSC determined that it “could affect

[Crowley’s] overall confidence ratings” and thus proceeded to determine its relevancy. AR 3445-

46. Crowley argues that MSC acted irrationally when it determined that Crowley’s ROCON

contract was “Relevant” for the purposes of evaluating past performance. Pl.’s MJAR at 26.

The relevance of past performance information is a determination for the agency to make

based on the evaluation criteria set forth in the solicitation. FAR 15.305(a)(2)(ii) (“The source

selection authority shall determine the relevance of similar past performance information.”).

Under the adjectival rating system used in the instant solicitation, a contract would be deemed

“Relevant” if the “[p]resent/past performance effort involved similar scope and magnitude of

effort and complexities this solicitation requires.” AR 508. The record shows that MSC first

determined Crowley’s ROCON contract to be “Very Relevant.” AR 3445-46. However, in its

FPR, Crowley explained its position that the ROCON contract was “Not Relevant,” stating:

[Crowley] did not submit a past performance data sheet for [the ROCON contract].

A business decision was made that this contract is not relevant in scope, magnitude,

and complexity. The vessels on this contract are in Reduced Operating Status, three

are steam ships, and the one that is gas turbine has a very rare and outdated Russian

gas turbine engine. They are stateside, and normally only activated for sea trials.

AR 2562. In receipt of Crowley’s position, MSC further assessed the differences between the

ROCON contract and the solicitation requirements and concluded that the ROCON contract was

“less relevant than was initially determined” but still “Relevant,” contrary to Crowley’s preferred

rating of “Not Relevant.” AR 3499-500. In reaching the conclusion, MSC explained as follows:

First, [the ROCON] contract and the solicitation possess almost exactly the same

mission, cargo type, contract length, contract terms and conditions. Second, the

number of vessels and propulsion type are comparable with minor differences.

However, operational tempo, five and one-year contract values are significantly

different from the solicitation because the vessels were not operated in the same

17

type of ROS environment the [WATSON] vessels incur and the one-year contract

value does not even equal half of the [WATON’s] one-year value. In light of the

significant differences (operational tempo, and contract value (five and one-year))

and minor differences (number of vessels, and propulsion type), the PPET could

not conclude the contract involved essentially the same[] scope, magnitude and

complexity this solicitation requires. Nonetheless, the contract operational tempo

and contract values are the only areas that were significantly different from the

solicitation. Every other area was very comparable and any differences were

deemed minor. So while the PPET team could not say the contract involved

essentially the same scope, complexity, and magnitude of effort; it was apparent all

other contract characteristics indicated the contract involved similar scope,

complexity and magnitude, which make it “Relevant.”

AR 3546-47. As shown above, MSC’s relevancy determination is based on the evaluation

criteria in the solicitation and has a rational explanation. MSC’s determination is afforded

deference, and the Court will not second guess it. See E.W. Bliss Co., 77 F.3d at 459; Glenn Def.

Marine (Asia), PTE Ltd. v. United States, 720 F.3d 901, 911 (Fed. Cir. 2013) (“The [agency’s]

determination of relevance is owed deference as it is among the minutiae of the procurement,

which this court will not second guess.”) (quotations omitted).

3. Unequal treatment of Crowley’s ROCON contract and Patriot’s USNS

MARTIN contract

Crowley argues that MSC treated it unequally by evaluating Crowley’s ROCON contract

and not evaluating Patriot’s USNS MARTIN contract, which Crowley states is a contract for the

same services on the same vessel for the same agency. Pl.’s MJAR at 26, 29. FAR 1.102-2(c)(3)

requires impartial and fair treatment to all government contractors. “Equal treatment, however,

does not require that all proposals be treated the same.” Mil-Mar Century Corp. v. United States,

111 Fed. Cl. 508, 530 (2013). To prevail on a claim for unequal treatment, a bid protestor must

show that the instance of unequal treatment was prejudicial. WellPoint Mil. Care Corp. v. United

States, 953 F.3d 1373, 1378 (Fed. Cir. 2020); see also Office Design Grp. v. United States, 951

F.3d 1366, 1372 (Fed. Cir. 2020).

The solicitation stated that MSC would assess completed CPARS for contracts that did

not correspond to a contract submitted by an offeror in its past performance proposal when MSC

determined that the CPARS rating for the undisclosed contract “could affect the [offeror’s]

overall confidence ratings.” AR 507. If MSC determined that the CPARS ratings could not affect

the offeror’s overall confidence ratings, then “the contract [would] not be evaluated further.” Id.

As explained earlier, MSC rationally determined that Crowley’s ROCON contract could affect

Crowley’s overall confidence rating because Crowley received a “[* * *]” rating. AR 3445. As a

result, MSC continued its evaluation of Crowley’s performance on the ROCON contract. Similar

to Crowley and its ROCON contract, Patriot did not submit its USNS MARTIN contract as part

of its past performance proposal. See AR 2909, 3518-20. However, unlike Crowley on its

ROCON contract, Patriot received a “[* * *]” rating for its USNS MARTIN contract. AR 4679.

It follows that, based on the terms of the solicitation, had MSC identified Patriot’s USNS

MARTIN contract as part of its past performance evaluation, MSC could have decided not to

18

further evaluate Patriot’s USNS MARTIN contract because Patriot had received a “[* * *]”

rating, and, thus, MSC could reasonably conclude that the contract could not affect Patriot’s

overall confidence rating. Taken a step further, even if MSC had decided to proceed with

evaluating Patriot’s USNS MARTIN contract, it still would not have changed the outcome

because Patriot’s “[* * *]” rating would not have detrimentally affected Patriot’s overall

“Substantial Confidence” rating. AR 3466. Under these circumstances, Crowley cannot show the

requisite prejudice to succeed on its unequal treatment claim. WellPoint Mil. Care, 953 F.3d at

1378 (“To prevail, [the protestor] must show that [the] instance of unequal treatment was

prejudicial.”) (internal citations omitted).

4. Crowley’s Hapag Lloyd contract

Crowley argues MSC violated the terms of the solicitation and FAR 15.305(a)(2)(ii) by

ignoring its “directly relevant past performance” under its Hapag Lloyd contract, a commercial

contract which Crowley submitted as part of its past performance proposal. Pl.’s MJAR at 31.

Crowley asserts that the solicitation did not require submission of a completed past performance

questionnaire (“PPQ”) from Crowley’s reference for the Hapag Lloyd contract as a prerequisite

for MSC to consider the quality of its Hapag Lloyd contract. Id. at 32. According to Crowley,

even in the absence of a completed PPQ, the solicitation required MSC to consider information

that Crowley submitted regarding the quality of its performance under the Hapag Lloyd contract.

Id. at 31-32.

The solicitation instructed offerors to “provide up to five [g]overnment reference

contracts that are on-going or have been completed within five years . . . that demonstrate[] its

experience successfully operating ship(s) similar to the ship(s) described in [the solicitation].”

AR 499. If the offeror did not have a government reference contract available, commercial

contracts could be used. AR 500. However, the solicitation cautioned that “government contracts

would be deemed more relevant” than commercial contracts. Id. Offerors were instructed to

include a past performance narrative that “specifically address[ed] how the referenced contracts

reflect quality performance pertinent to the solicitation requirements[.]” Id. The solicitation also

stated that “offerors shall provide a point of contact and the contact’s email and phone number”

for each past performance reference. Id.

For the past performance evaluation, the solicitation provided that “[t]he [g]overnment

may use data provided in the offeror’s proposal . . . in addition to data obtained from other

sources such as the Past Performance Information Retrieval System (PPIRS), CPARS, etc.” AR

507 (emphasis added). It further provided that MSC “may contact references provided in

offeror’s submitted narratives . . . to request information to determine the quality of [the]

[o]fferor’s performance.” Id. (emphasis added). In assigning past performance ratings, the

solicitation stated “[t]he evaluation of past performance will review the recency, relevancy, and

quality of the offeror’s performance[.]” AR 508.

Based on the record, MSC determined that Crowley’s Hapag Lloyd contract was relevant

and recent; however, MSC was ultimately unable to determine the quality of Crowley’s

performance. AR 3547. Because the Hapag Lloyd contract was a commercial contract, MSC

could not obtain data from the government’s CPARS system to verify the quality of performance

19

independently. See AR 3442 (“[The Hapag Lloyd contract] is a commercial contract and does

not get reported in the [g]overnment’s CPARS system.”). Indeed, MSC could have relied on

Crowley’s past performance narrative but instead determined that “[i]n the absence of available

CPARS reports” it relies on PPQs that are provided by the offeror’s references to determine the

quality of contract performance. See id. Since MSC did not receive a completed PPQ for the

Hapag Lloyd contract, MSC concluded:

No quality information is available for [the Hapag Lloyd contract]. [Crowley’s]

point of contact for the reference did not complete the past performance

questionnaire that was provided. Therefore, it could not be evaluated by the PPET

for quality.

AR 3547. While the solicitation required Crowley to submit a narrative addressing the

quality of its performance under the Hapag Lloyd contract, the solicitation did not

explicitly require MSC to use that information to determine the quality of Crowley’s

performance—whether a PPQ was submitted or not. See AR 507. To the contrary, the

solicitation permitted MSC, at its discretion, to use information from various sources

when evaluating past performance. See AR 507 (“The [g]overnment may use data

provided in the offeror’s proposal . . . in addition to data obtained from other sources[.]”)

(emphasis added).

Furthermore, contrary to Crowley’s contention, FAR 15.305(a)(2)(ii) does not

require that MSC consider information provided in Crowley’s past performance narrative

to determine the quality of its performance. See Pl.’s MJAR at 31-32. FAR

15.305(a)(2)(ii) requires that the solicitation “authorize offerors to provide information

on problems encountered on the identified contracts and the offeror[’s] corrective

actions” and generally states that “[t]he [g]overnment shall consider this information, as

well as information obtained from any other sources, when evaluating . . . past

performance.” In this instance, MSC was not considering any problems encountered on

the Hapag Lloyd contract or corrective actions undertaken by Crowley, so the specific

type of information referenced in the cited FAR clause was not at issue. MSC simply

determined that it could not evaluate the Hapag Lloyd contract for quality because it was

missing certain information from other sources, namely a completed PPQ from the Hapag

Lloyd contract reference. MSC acted within its discretion, and not in violation of the

FAR, when it determined that a completed PPQ from Hapag Lloyd was needed to

effectively evaluate the quality of Crowley’s contract performance.

C. Discussions regarding Crowley’s Hapag Lloyd contract

For Crowley’s last challenge, it argues MSC engaged in misleading and inadequate

discussions because MSC failed to inform Crowley that it had to contact and retrieve a

completed PPQ for the Hapag Lloyd contract as a prerequisite for MSC to consider the quality of

the contract. Pl.’s MJAR at 33-36. In doing so, Crowley argues MSC violated FAR 15.306(d)(3)

by failing to alert Crowley to a “significant weakness” or “deficiency” in its proposal. Id. at 33-

34. Based on the record, however, the Court finds that MSC’s discussions were not misleading or

inadequate and were consistent with the FAR requirements.

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FAR 15.306(d)(3) requires the agency to discuss “deficiencies, significant weaknesses,

and adverse past performance information to which the offeror has not yet had an opportunity to

respond.” In this instance, the record shows that MSC alerted Crowley to the deficiency at issue.

In its first discussion letter, MSC informed Crowley that its reference for the Hapag Lloyd

contract “did not complete the past performance questionnaire that was provided” to the

referenced contract point of contact (“POC”). AR 3686. Crowley responded by informing MSC

that it “w[ould] reach out to Hapag Lloyd to uncover this deficiency and correct this for FPR

submission.” AR 3494. Crowley subsequently provided MSC with a new POC for its Hapag

Lloyd contract as part of its FPR submission. AR 2558. Despite Crowley’s efforts to remedy this

deficiency, MSC still did not receive a PPQ from Crowley’s Hapag Lloyd contact. AR 3494. In

its second discussion letter, MSC informed Crowley again that it had not received a completed

PPQ for the Hapag Lloyd contract. AR 3690. Crowley responded by stating that it had “reached

out to Hapag Lloyd and confirmed that [its] referenced contract POC . . . is correct and will

complete the [PPQ].” AR 3543-44. Ultimately, however, MSC never received a completed PPQ

for the Hapag Lloyd contract. AR 3544, 3547.

In negotiated procurements, “the agency must provide ‘meaningful’ discussions that are

not misleading.” Greenland Contractors I/S v. United States, 131 Fed. Cl. 216, 225 (2017). In

this instance, the discussions between MSC and Crowley were not misleading. Rather, these

discussions directly informed Crowley—not once, but twice—that MSC had not received a

completed PPQ for its Hapag Lloyd contract. See Poplar Point RBBR, LLC v. United States, 147

Fed. Cl. 201, 224-25 (2020) (“To conduct meaningful discussions, the agency must point out

weaknesses or deficiencies in a proposal as specifically as practical considerations permit so that

the agency leads the offeror into areas of its proposal which require amplification or correction.”)

(quotations omitted); see also Advanced Data Concept, Inc. v. United States, 43 Fed. Cl. 410,

422 (1999), aff’d, 216 F.3d 1054 (Fed. Cir. 2000). FAR 15.306(d)(3) does not require MSC to

explain the steps needed to resolve the deficiency or to advise Crowley of the adverse effects for

a deficiency. See Carahsoft Tech. Corp. v. United States, 86 Fed. Cl. 325, 343 (2009) (“[A]n

agency is not required to ‘spoon-feed’ offerors in order to have meaningful discussions.”). MSC

need only accurately identify the weaknesses and deficiencies contained in the offeror’s

proposal—which it did. See Dynacs Eng’g Co., Inc. v. United States, 48 Fed. Cl. 124, 131 (2000)

(“To be meaningful, discussions must include sufficient information as to the areas in which the

offerors' proposals are believed to be weak so that the offerors have a reasonable opportunity to

address those areas of weakness which could have a competitive impact.”) (internal brackets and

quotations omitted). Furthermore, the record shows that Crowley communicated to MSC that it

was in contact with Hapag Lloyd to address the deficiency, and, thus, it was reasonable for MSC

to conclude that Crowley had been given adequate notice of the deficiency and that Crowley had

assumed the responsibility to remedy the deficiency—whether it was ultimately remedied or not.

Under these circumstances, the Court finds that MSC satisfied its obligations to Crowley under

FAR 15.306(d)(3).

IV. CONCLUSION

An incumbency advantage may be improper in circumstances where there is a disparity

of access to information, there is evidence of preferential treatment or other improper action by

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the agency, or the competitive advantage is by reason of government action as opposed to the

result of the incumbent’s own circumstances. See, e.g., Sys. Plus, Inc. v. United States, 69 Fed.

Cl. 757, 772 (2006); Oak Grove Techs., LLC v. United States, 155 Fed. Cl. 84, 115 (2021);

WinStar, 41 Fed. Cl. at 763; see also Bd. of Regents of Nev. Sys. of Higher Educ. v. United

States, 132 Fed. Cl. 435, 458 (2017). Based on an examination of the record in this case,

Crowley has failed to demonstrate that MSC improperly favored Patriot due to its incumbent

status or that MSC’s proposal evaluation and award decision was arbitrary, capricious, an abuse

of discretion, or otherwise not in accordance with law.

For the reasons stated above, Crowley’s motion for judgment on the administrative

record is DENIED, and the government’s and Patriot’s respective cross-motions are

GRANTED. The Clerk is DIRECTED to enter judgment accordingly.

IT IS SO ORDERED.

s/ Thompson M. Dietz

THOMPSON M. DIETZ, Judge

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