The opinion
In the United States Court of Federal Claims
No. 22-372
(Filed: July 29, 2022)
(Re-Filed: August 10, 2022)1
**************************
KGJJ ENGINEERING SOLUTIONS, LLC,
Bid protest; post-
Plaintiff, award bid protest;
experience; affiliates;
v. key personnel; safety;
past performance;
THE UNITED STATES, relevancy; Blue &
Gold; injunction
Defendant,
and
BERING GLOBAL SOLUTIONS, LLC,
Intervenor.
**************************
Adam K. Lasky, Seattle, WA, for plaintiff, KGJJ Engineering
Solutions, LLC, with whom were Edward V. Arnold, Bret C. Marfut, and
Ryan C. Gilchrist, of counsel.
Mikki Cottet, Senior Trial Counsel, United States Department of
Justice, Civil Division, with whom were Brian M. Boynton, Principal
Deputy Assistant Attorney General, Patricia M. McCarthy, Director, and
Deborah A. Bynum, Assistant Director, for defendant. Andrew Campos,
Department of the Navy, of counsel.
1
This opinion was originally issued under seal in order to afford the parties
an opportunity to propose redactions of the protected material. We have
redacted information necessary to safeguard the competitive process.
Redactions are indicated by brackets.
Kenneth A. Martin, McLean, VA, for intervenor, Bering Global
Solutions, LLC, with whom was William K. Walker, of counsel.
OPINION
This is a post-award bid protest of the United States Department of
the Navy’s (“agency’s”) decision to award a fixed-price and indefinite-
delivery, indefinite-quantity contract for facility support services to Bering
Global Solutions, LLC (“BGS” or “intervenor”). Plaintiff, KGJJ
Engineering Solutions, LLC (“KGJJ” or “protestor”), argues that the agency
2
failed to follow the solicitation’s terms in numerous respects and engaged in
unequal and arbitrary evaluations of proposals. It seeks a permanent
injunction against the agency’s decision. The matter is now fully briefed on
cross-motions for judgment on the administrative record (“MJARs”). Oral
argument was held on July 22, 2022, at the conclusion of which we
announced our decision to sustain the protest for the reasons set out below.
BACKGROUND
On July 30, 2021, the agency issued a Request for Proposals (“RFP”
or “solicitation”) for a firm-fixed price and indefinite-delivery, indefinite-
quantity contract for facility support services at two facilities: the Marine
Corps Air Ground Combat Center and a Naval Hospital, both located in
Twentynine Palms, CA. The facility support services were for eight types of
work: Facility Investment, Custodial, Pest Control, Integrated Solid Waste
Management, Grounds Maintenance and Landscaping, Pavement Clearance,
Water, and Environmental. The contract was to be an 8(a) small business
set-aside. The contract period is for twelve months, with seven twelve-month
options and one six-month option period. Proposals were due September 22,
2021. The solicitation was amended eleven times.3
2
“KGJJ is an 8(a) joint venture formed under the U.S. Small Business
Administration’s Mentor-Protégé program between King & George, LLC
[‘King & George’] (protégé member) and J&J Maintenance, Inc., d/b/a J&J
Worldwide Services [‘J&J’] (mentor member).” Pl.’s MJAR at 2.
3
References to the solicitation are to the tenth amended solicitation.
2
I. Evaluation Scheme
Proposals were to be evaluated based on six factors: Price,
Experience, Technical Approach, Management Approach, Safety, and Past
Performance.4 All non-price factors combined were equal in importance to
price. Past Performance was equal in importance to all other non-price
factors combined. Each non-price factor would be rated adjectively. The
non-price factors, aside from Past Performance, would be rated as
Outstanding, Good, Acceptable, Marginal, or Unacceptable.5 Past
Performance would be rated as Substantial Confidence, Satisfactory
Confidence, Neutral Confidence, Limited Confidence, or No Confidence.
Past Performance’s importance to this solicitation, according to the agency,
“require[d] a greater level of discrimination within the past performance
evaluation,” necessitating its more detailed rating scale. AR 526. Ratings
would be determined “through an assessment of the strengths, weaknesses,
significant weaknesses, deficiencies, and risk of a proposal.” AR 523. A
deficiency was a “material failure of a proposal to meet a Government
requirement or a combination of significant weaknesses in a proposal that
increases the risk of unsuccessful contract performance to an unacceptable
level.” Id. at 524.
Experience was to be evaluated based on an offeror’s “demonstrated
experience and depth of experience in performing relevant projects” and the
recency of those projects. AR 528. Offerors could receive higher ratings in
Experience if their projects met certain criteria (“bonus criteria”). For
example, offerors could receive higher ratings if they demonstrated work
experience in Facilities Investment, Custodial, or Water as a prime contractor
in relevant projects.6 Id. at 528–29 (listing the criteria that could result in
higher Experience ratings for offerors).
4
The evaluation criteria of Technical Approach and Management Approach
are not at issue.
5
If an offeror’s proposal received an Unacceptable rating in a factor, it was
considered “unawardable.” AR 524.
6
Facilities Investment, Custodial, and Water represented a large portion of
the expected work under this contract, according to the Independent
Government Estimate.
3
Offerors were to submit a minimum of two prior projects and a
maximum of four projects for the agency to evaluate. Notably, the RFP
stated that “[t]he Government will not consider any project submitted for
experience that was performed by a firm other than the Offeror.” AR 517.
The RFP also contained an exception to that limitation, allowing the
government to:
[C]onsider otherwise relevant projects performed by parent or
subsidiary companies, predecessor companies, or satellite
offices (i.e. any office(s) of the Offeror other than the one
submitting the current proposal) of the Offeror, provided the
Offeror’s proposal clearly explains how the offered experience
will be effectively utilized in the performance of the solicited
contract.7
Id. Offerors were to submit their prior project experience using a standard
form (“Exhibit B”). This form, however, allowed the offeror to check an
additional box for the experience of “Key Personnel.” While the RFP itself
did not offer “key personnel” as an additional exception and Exhibit B
referred back to the RFP for evaluation information, the agency’s responses
to Requests for Information (“RFIs”) indicate that projects performed by key
personnel under Exhibit B of the Experience factor would be considered.8
7
The RFP also contained an exception for joint ventures and first-tier small
business subcontractors, which are not relevant to our discussion of the
protest.
8
When asked whether offerors could submit projects of key personnel under
Experience, the agency responded, “Per FAR 15.305(a)(2)(iii), ‘The
evaluation should take into account past performance information regarding
predecessor companies, key personnel who have relevant experience, or
subcontractors that will perform major or critical aspects of the requirement
when such information is relevant to the instant acquisition.’” AR 417.
Although the FAR paragraph cited pertains to past performance, the fact that
the agency quoted it in response to a question about Experience informs us
that the agency intended it to apply to Experience as well. Further, when an
offeror asked about the process of submitting key personnel experience, the
agency answered the question rather than saying that key personnel
experience was not permitted. AR 497.
4
For Safety, the agency sought “to determine that the Offeror has
consistently demonstrated a commitment to safety.” AR 531. Safety would
be evaluated based on “[t]he Days Away from Work, Restricted Duty, or Job
Transfer (DART) Rate; and Total Case Rate (TCR) for [Calendar Years 2016
– 2020], as well as a safety narrative.”9 AR 520. The rates would be
evaluated for their risk levels (i.e., Very High Risk, High Risk, Moderate
Risk, Low Risk, Very Low Risk), and the agency would “determine if the
Offeror . . . has demonstrated a history of safe work practices.” AR 531. The
RFP stated that, for both rates, “[d]eclining trends that push the risk levels
from Moderate Risk (MR) or higher to Low Risk (LR) or Very Low Risk
(VLR) would indicate a strength.” Id. at 531–32.
Finally, Past Performance would be evaluated based on three
elements: recency, relevancy, and quality. Relevancy would be evaluated
based on the similarity of the scope, magnitude, and complexity of the
submitted projects to the work that would be performed under the
solicitation. Relevancy would also receive its own rating: Very Relevant,
Relevant, Somewhat Relevant, or Not Relevant. This focus on relevancy
was necessary, according to the RFP, because “[t]his source selection
requires a greater level of discrimination within the past performance
evaluation.” AR 526. Quality was not separately evaluated, instead being
rolled into the final Confidence rating. Contractor Performance Assessment
Reporting System (“CPARS”) evaluations or Past Performance
Questionnaires (“PPQs”) were, however, required for each submitted project,
and they indicated performance evaluations for these prior projects. The
offeror was to submit the same projects for Past Performance as it did for
Experience.
II. Evaluations and Award
Nine offerors submitted proposals. All of the offers initially were
deemed unacceptable, after which the agency held discussions with all of the
offerors. The offerors then submitted proposal revisions on December 28,
9
For the DART rate, the solicitation states, “DART cases include injuries or
illnesses resulting in death, days away from work, and/or restricted work or
transfer to another job days beyond the day of injury/illness.” AR 520. For
the TCR, the solicitation states, “TCR cases include injuries or illnesses
resulting in death, days away from work, restricted work or transfer to
another job days beyond the day of injury/illness, medical treatment beyond
first aid, or loss of consciousness.” Id. at 521.
5
2021, and then final proposal revisions on February 8, 2022. The Source
Selection Evaluation Board (“SSEB”) then analyzed each offeror’s proposal.
Under Experience, KGJJ and BGS both received an Outstanding. The
following chart contains the SSEB’s findings concerning KGJJ’s bonus
criteria. The horizontal axis reflects the projects offerors submitted, while
the vertical axis reflects the bonus criteria the agency was evaluating for each
project:
Project 1 Project 2 Project 3 Project 4
[*****] [*****] [*****] [*****]
RATED HIGHER
Paragraph (ii)(a): Offeror
demonstrated experience as a [*****] [*****] [*****] [*****]
prime contractor in both
1502000 – Facilities Investment
and 1503010 – Custodial on two
(2) or more relevant projects.
Paragraph (ii)(b): Offeror
demonstrated experience as a
prime contractor for The Joint [*****] [*****] [*****] [*****]
Commission (TJC) and/or its
equivalent under 1503010 –
Custodial on one (1) or more
relevant projects.
Paragraph (ii)(c): Offeror
demonstrated experience as a
prime contractor for 1606000 –
[*****] [*****] [*****] [*****]
Water (operations, maintenance,
and repair) on one (1) relevant
project.
Paragraph (ii)(d): Offeror
submitted two (2) or more
relevant projects as a prime [*****] [*****] [*****] [*****]
contractor where they self-
performed at least 65% of the
work (as defined by dollar
value).
Paragraph (ii)(e): Offeror
submitted two (2) or more
relevant projects as a prime [*****] [*****] [*****] [*****]
contractor with a period of
performance of one (1) full year
with a funded value of $8
million or more.
RATED LOWER
Paragraph (ii)(o): Offeror
failed to properly complete [*****] [*****] [*****] [*****]
Exhibit B.
AR 3782. The following chart contains the SSEB’s findings on BGS:
6
Project 1 Project 2 Project 3 Project 4
[*****] [*****] [*****] [*****]
RATED HIGHER
Paragraph (ii)(a): Offeror
demonstrated experience as a [*****] [*****] [*****] [*****]
prime contractor in both
1502000 – Facilities
Investment and 1503010 –
Custodial on two (2) or more
relevant projects.
Paragraph (ii)(b): Offeror
demonstrated experience as a
[*****]
prime contractor for The Joint [*****] [*****] [*****]
Commission (TJC) and/or its
equivalent under 1503010 –
Custodial on one (1) or more
relevant projects.
Paragraph (ii)(c): Offeror
demonstrated experience as a
prime contractor for 1606000 –
[*****] [*****] [*****]
[*****]
Water (operations,
maintenance, and repair) on
one (1) relevant project.
Paragraph (ii)(d): Offeror
submitted two (2) or more
[*****]
relevant projects as a prime [*****] [*****] [*****]
contractor where they self-
performed at least 65% of the
work (as defined by dollar
value).
Paragraph (ii)(e): Offeror
submitted two (2) or more
[*****]
relevant projects as a prime [*****] [*****]
contractor with a period of [*****]
performance of one (1) full
year with a funded value of $8
million or more.
RATED LOWER
Paragraph (ii)(o): Offeror
failed to properly complete [*****] [*****] [*****] [*****]
Exhibit B.
AR 3768. Overall, KGJJ’s four submitted projects met more of the bonus
criteria than did [*****], mainly in areas concerning the most relevant work.
BGS’s submitted projects were not performed by itself but by three of
its sister companies.10 Work by sister companies was not included within the
10
The three sister companies were [*****]. The common parent of BGS and
its sister companies was Bering Straits Native Corporation (“BSNC”).
7
exceptions permitted in the RFP for experience. In Exhibit B to its proposal
with respect to Factor 1, Experience, BGS identified key personnel, [*****],
as providing BGS’s experience.11 Mr. [*****] is “[*****].” AR 3517. Mr.
[*****] is [*****] of BGS and [*****] of the three sister companies, where
BGS claims that he was “ultimately responsible” for the three sister
companies’ contract performance and would be for this contract as well. AR
3517. Mr. [*****] is [*****] of BGS and its sister companies, where he
“manag[ed] the Phase-In Process, perform[ed] quality assurance,
coordinat[ed] corporate resources, and support[ed] the Program Manager in
contract execution” during the sister companies’ contracts and would do so
for BGS under the contract at issue. Id. Notably, Mr. [*****] and Mr.
[*****] were not listed as key personnel in BGS’s organizational chart,
which it had to submit in response to questions related to Factor 2, Technical
Approach. AR 3538. Further, when BGS identified its key personnel by
name and discussed their qualifications, Mr. [*****] and Mr. [*****] were
neither identified nor discussed. See AR at 3545–3548.
Under Safety, both BGS and KGJJ received Acceptable ratings.
Neither received any strengths for this aspect of their proposals. Both BGS
and KGJJ consistently had relatively low risk levels for their rates. The
following chart reflects BGS’s safety rating information:
Safety Data Submitted for Factor 4
Reference Criteria Proposal Data Analysis
DART per year Risk level
Paragraph 2016 [*****] N/A
OSHA Days Away from work, job 2017 [*****] Very Low Risk
(i)(a)
transfer, or Restriction Rate
(DART)
2018 [*****] Very Low Risk
2019 [*****] Low Risk
2020 [*****] Low Risk
TCR per year Risk level
Paragraph Total Case Rate (TCR) 2016 [*****] N/A
(i)(b) 2017 [*****] Very Low Risk
2018 [*****] Very Low Risk
2019 [*****] Very Low Risk
2020 [*****] Very Low Risk
11
BGS also identified other BSNC personnel and departments that would be
supporting this project.
8
AR 3863. The following charts reflect KGJJ’s safety rating information.
The first chart contains the rates of the protégé member, King & George:
Safety Data Submitted for Factor 4
Reference Criteria Proposal Data Analysis
DART per year Risk level
Paragraph 2016 [*****] Very Low Risk
OSHA Days Away from work, job 2017 [*****] Very Low Risk
(i)(a)
transfer, or Restriction Rate
(DART)
2018 [*****] Very Low Risk
2019 [*****] Low Risk
2020 [*****] Very Low Risk
TCR per year Risk level
Paragraph Total Case Rate (TCR) 2016 [*****] Very Low Risk
(i)(b) 2017 [*****] Very Low Risk
2018 [*****] Very Low Risk
2019 [*****] Very Low Risk
2020 [*****] Very Low Risk
AR 3873. The second chart contains the rates of the mentor member, J&J:
Safety Data Submitted for Factor 4
Reference Criteria Proposal Data Analysis
DART per year Risk level
Paragraph 2016 [*****] Very Low Risk
OSHA Days Away from work, job 2017 [*****] Very Low Risk
(i)(a)
transfer, or Restriction Rate
(DART)
2018 [*****] Low Risk
2019 [*****] Very Low Risk
2020 [*****] Very Low Risk
TCR per year Risk level
Paragraph Total Case Rate (TCR) 2016 [*****] Very Low Risk
(i)(b) 2017 [*****] Very Low Risk
2018 [*****] Very Low Risk
2019 [*****] Very Low Risk
2020 [*****] Very Low Risk
Id.
Under Past Performance, BGS and KGJJ, along with all other
offerors, save one, received Substantial Confidence ratings. The SSEB’s
reasoning for its ratings was repeated essentially verbatim for all offerors
receiving a Substantial Confidence rating:
[The projects] reviewed by the Government demonstrated a
pattern of successful completion of tasks; a pattern of
deliverables that are timely and of good quality; a pattern of
cooperativeness and teamwork with the Government at all
levels; and the recency of tasks performed are similar to the
work requirements in the solicitation.
9
AR 2874. As plaintiff points out, this conclusion was reached despite the
fact that the agency evaluated the relevancy of projects and found varying
levels of relevance under Experience.
All offerors’ submitted projects were found to be either Very Relevant
or Not Relevant. In total, 21 projects were rated as Very Relevant. The only
explanation given by the SSEB for its relevance ratings was repeated
verbatim for each offeror: “[T]asks performed are similar to work
requirements in the solicitation.” E.g., AR 2570 (emphasis supplied).
Further, although quality was not separately rated, CPARS evaluations and
PPQs for the offerors’ projects indicated varying levels of satisfaction with
the offerors’ respective performances.
Overall, the SSEB rated BGS’s offer as having the best value to the
government. It received the top technical ranking, and its price was third
lowest.12 KGJJ, on the other hand, had the second-highest overall ranking.
It had the third-highest technical ranking and fourth-lowest price.13 The
SSEB found BGS’s proposal to be worth the relatively modest price premium
and recommended award to BGS. The Source Selection Authority agreed
with the SSEB’s evaluation and awarded the contract to BGS.
On March 31, 2022, KGJJ protested the agency’s award decision. The
government filed the administrative record, and the parties submitted their
cross-motions for judgment on the administrative record. The motions are
fully briefed, and oral argument was held on July 22, 2022. After argument,
we granted the protestor’s motion and denied the government’s and
intervenor’s motions. Judgment was deferred pending this opinion.
DISCUSSION
We review bid protests in accordance with the standards laid out in the
Administrative Procedure Act. Advanced Data Concepts, Inc. v. United States,
216 F.3d 1054, 1057 (Fed. Cir. 2000) (citing 28 U.S.C. § 1491(b)(1) (1996)).
Unless the agency’s actions were “arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law,” we will not interfere
12
The lowest price came from an offeror whose proposal was unacceptable.
The second-lowest price was 0.64% lower than BGS’s price.
13
KGJJ’s price was 0.39% higher than BGS’s.
10
with them. 5 U.S.C. § 706(2)(A) (2018). Moreover, an agency’s error is not
enough by itself to merit relief; that error must also be prejudicial to the
protestor. 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)).
KGJJ presents multiple grounds of protest. First, it argues that the
agency, contrary to the terms of the solicitation, accepted the experience of
BGS’s sister companies under the first factor, Experience. KGJJ also attacks
the agency’s evaluation of the Safety factor. KGJJ contends that the agency
did not evaluate its safety narrative for strengths and essentially evaluated all
offers on a pass/fail basis, contrary to the terms of the solicitation. The
protestor also argues that the agency did not evaluate its DART rate and TCR
reasonably or in accordance with the solicitation’s terms.
KGJJ next turns its focus to the agency’s evaluation of Past
Performance. KGJJ contends that the agency unreasonably, and in violation
of the terms of the solicitation, assigned all offerors’ relevant projects ratings
of “Very Relevant.” KGJJ also argues that the agency unreasonably
assigned offerors a “Substantial Confidence” rating for Past Performance
despite varying quality of offerors’ prior performance. Finally, KGJJ argues
that the agency did not adequately document its best value decision and
rationale, instead relying solely on adjectival ratings. KGJJ seeks to enjoin
the award to BGS. We agree with plaintiff’s arguments concerning the
agency’s evaluation of the Experience and Past Performance factors. We
also find arbitrary the agency’s evaluation of risk levels under Factor 4,
Safety, but we are unpersuaded that it prejudiced the protestor. We take each
of plaintiff’s arguments in turn.
I. Experience
KGJJ’s first argument is that the agency should not have credited BGS
with its sister companies’ experience, as the solicitation specifically limited
consideration to prior work of the offeror itself. Although there were
11
exceptions, none permitted the consideration of projects performed by sister
or affiliate companies, according to KGJJ.14
The government and BGS argue that the solicitation should be read to
permit consideration of work done by “affiliate companies” and the
experience of key personnel shared by the offeror and other companies.
Thus, the agency did nothing wrong in considering the experience of
intervenor’s sister companies, per the government. We agree with the
protestor.
A. Affiliate Company Experience
The government and BGS offer multiple reasons why projects
performed by affiliates were properly accepted under the Experience factor.
First, they both argue that reliance on the work of affiliate companies was
not explicitly precluded by the solicitation and that, in the absence of such an
explicit exclusion, prior decisions suggest affiliate company experience can
be considered. They also point to the fact that information about affiliate
companies had to be submitted under the Price and Past Performance factors.
The government also argues that, because BGS’s sister companies had
teaming agreements with BGS for this project, the solicitation should be read
to permit consideration of their experience. Finally, both parties argue that
there was a patent ambiguity in the solicitation, and KGJJ should have
brought a pre-award protest to challenge the solicitation’s terms.15 KGJJ
responds that none of the government’s or intervenor’s arguments can be
squared with the terms of the solicitation. We agree with KGJJ.
14
The parties are in general agreement that affiliate companies would include
sister companies.
15
BGS also presents separate arguments on the issue. It argues that the
exception for subsidiaries referred to the parent company’s subsidiaries, not
the offeror’s. It further contends that not allowing affiliate company
experience is unduly restrictive of competition. We are unconvinced by
these arguments. The solicitation contains no indication that “subsidiary”
meant subsidiaries of the parent of the offeror. Further, if a term was unduly
restrictive of competition, BGS was required to protest that term before
proposals were due. Blue & Gold Fleet, L.P. v. United States, 492 F.3d 1308,
1313 (Fed. Cir. 2007).
12
The government and intervenor are correct that, in general, an agency
is free to consider the experience of an offeror’s parent, subsidiary, or
affiliated companies unless there is an express exclusion in the solicitation.
Femme Comp Inc., v. United States, 83 Fed. Cl. 704, 746 (2008) (quoting
Hot Shot Express, Inc., B-290482, 2002 C.P.D. ¶ 139, 2002 WL 1831022
(Aug. 2, 2002).
Here, however, the solicitation begins with an express exclusion of
experience from any entity other than the offeror: “The Government will not
consider any project submitted for experience that was performed by a firm
other than the Offeror.” AR 517. There are exceptions allowed—first-tier
small business subcontractors, joint ventures, parent companies, subsidiary
companies, predecessor companies, or satellite offices of the offeror—but
there is no exception for work done by affiliate or sister companies. Id. at
516–17. The solicitation did not need to go further to explicitly single out
affiliate company experience for exclusion.
It is not inconsistent that offerors were required by the Price and Past
Performance factors to submit certain information from affiliates if those
affiliates would be working on the project or supporting the offeror during
the project. This information included the affiliates’ DUNS Number and
CAGE Code.16 This is because, under the Past Performance factor, the
solicitation stated that the agency reserved the right to review affiliate past
performance information using the DUNS Numbers and CAGE Codes
provided under the Price factor. Requiring information to evaluate affiliates’
past performance is routine but it does not thereby expand what constitutes
qualifying experience under Factor 1.
The government’s assertion that BGS’s sister companies were
members of BGS’s “team” and therefore were properly considered for
supporting the offeror’s experience is incorrect. Although affiliates
supporting the offeror’s performance were referred to as “Team Members”
in the Price and Past Performance factors, the Definitions subsection of the
solicitation describes Experience as “[p]ertain[ing] to work performed by an
Offeror and Offeror’s Team.” AR 524. That section in turn specifically
defines “Offeror’s Team” as the offeror and its “first-tier small business
subcontractor(s) only.” Id. (emphasis added). Nowhere in the solicitation
16
The DUNS Number and CAGE Code allow the government to identify
vendors and review their performance information.
13
does it state that an affiliate’s experience will be considered, either by itself
or as a member of the offeror’s team.
Lastly, the government’s and BGS’s argument that KGJJ waived the
right to challenge the agency’s inclusion of BGS’s affiliates’ experience fails
for two reasons. First, there was no patent ambiguity. KGJJ’s reading of the
limitations of the solicitation are correct. In addition, however, KGJJ was
under no obligation to anticipate, much less know about the agency’s
convoluted justification for including BGS’s other experience
B. Key Personnel
The government also argues that BGS properly submitted and the
agency properly credited the experience of its shared key personnel for the
Experience factor. It contends that the option to check the key personnel
“box” on Exhibit B created an additional exception, allowing offerors to
submit contracts on which the offeror’s key personnel had worked.17 Indeed,
BGS, in filling out Exhibit B, listed the experience of Mssrs. [*****] and
[*****], individuals it characterized as key personnel because of their work
as executives of the parent company of both BGS and its sister entities.
KGJJ responds that the inclusion of a box labeled “Key Personnel” on
Exhibit B could not create a separate exception given the explicit limiting
language of the solicitation itself and the reference back to that language in
Exhibit B. It is unnecessary for us to resolve the question,18 however,
because, as KGJJ points out, BGS played fast and loose with its use of the
term “Key Personnel.” Offerors were required in the Technical Approach
and Management Approach Factors to explicitly identify their key personnel,
and BGS did not list Mr. [*****] or Mr. [*****]. The solicitation offers
examples of key personnel as project managers, on-site supervisors, quality
control managers, site safety and health officer, and environmental/energy
manager, and offerors could add others. High level executives like Mssrs.
[*****] hold very different positions, and, in any event, BGS did not include
17
The government also argues that the presence of this box means the
exceptions in the solicitation are illustrative, not exhaustive. Given the
explicit limitations in the solicitation, this argument is unconvincing.
18
Although inconsistent with the language of the solicitation, the RFIs in the
administrative record show that the agency meant to include the box and
intended offerors to use key personnel experience if they wished.
14
them in its management chart, which clearly indicates which personnel were
“key.” Under Technical Approach, an offeror had to submit an
organizational chart that identified its key personnel. BGS’s organizational
chart had Mr. [*****] and Mr. [*****] on it, but it did not list them as key
personnel, a term of art in procurement. When it identified its key personnel
by name later and expounded upon their qualifications, Mr. [*****] and Mr.
[*****] were again not included. BGS did not consider them key personnel
and neither do we.
The agency should not have considered the experience of BGS’s sister
companies or that of Mr. [*****] or Mr. [*****]. Because the only
experience BGS submitted was that of its sister companies, it did not meet
the minimum number of necessary projects and should have been excluded
from the competition.
C. Prejudice
Excluding BGS from award consideration would have given KGJJ a
substantial chance of receiving the award. KGJJ was rated the second overall
offeror, behind BGS. It had the third-highest technical ranking and fourth-
lowest price (only .39% higher than BGS’s price). KGJJ, therefore, would
have a substantial chance for award after BGS’s exclusion.
II. The Safety Factor
KGJJ also makes the independent argument that the agency erred in
its evaluation of the safety factor by only assigning strengths if an offeror’s
DART Rate and Total Case Rate risk levels decreased during the relevant
time period. The agency promised to evaluate the rates for whether the
offeror had a “demonstrated a commitment to safety.” AR 531. Only
assigning strengths for decreases in those risk levels, as opposed to crediting
offerors such as KGJJ with a strength for consistently maintaining low risk
levels during the entire relevant period, is inconsistent with the advertised
focus on safety. BGS and the government respond that the agency was acting
consistently with the solicitation, which only promised a strength in the event
an offeror showed decreasing risk levels.
We are sympathetic with plaintiff’s argument. It seems irrational to
limit award of a strength to entities which had poor but decreasing risk levels
when others were consistently in the lowest risk category, and KGJJ is
correct that the solicitation does not bind the agency’s hands in that respect.
15
In the final analysis, however, we are not convinced that KGJJ can show
prejudice. KGJJ is not the only offeror with low risk ratings. Other offerors,
including BGS, also consistently had low risk levels. KGJJ has not shown
how a proper Safety evaluation would lead to KGJJ having a substantial
chance at receiving award. In any event, we need not resolve the issue, as
other problems with the solicitation exist.
III. Past Performance
Lastly, KGJJ argues that the agency made errors in its Past
Performance evaluation. First, it argues that the agency unreasonably
assigned Very Relevant ratings to all submitted projects, even if they were
merely “relevant” by the agency’s standard. Next, it argues that the agency
then compounded the error by unreasonably assigning a Substantial
Confidence rating to each offeror despite varying levels of quality of
performance in the offerors’ submitted projects. We take these arguments in
turn.
A. Very Relevant Ratings
KGJJ presents three arguments as to why the agency erroneously
assigned a Very Relevant rating to all merely “relevant” projects. First, it
points out that the SSEB’s evaluation mistakenly characterized all offerors’
submitted projects as Very Relevant when they were merely “similar to the
work requirements in the solicitation.” E.g., AR 3892. This was the agency’s
own requirement to achieve a Relevant rating, not Very Relevant, which
required that the work had to be “essentially the same” as the contracted
work. AR 526. KGJJ then argues that it was particularly irrational to find
that that every project deserved the same rating when, in evaluating the
Experience factor, the agency had found that the submitted projects, common
to both factors, displayed widely varying levels of relevance. Third, KGJJ
contends that the agency did not consider a project’s magnitude or
complexity during relevance determinations.
The government and intervenor urge us not to dive into what they
characterize as the minutiae of the evaluation process because of the great
deference we owe the agency in evaluating an offeror’s past performance.
And the government adds that application of the wrong definition was
harmless error, as it affected every offeror. There are limits to deference,
however, and we draw the line at irrationality. Mortg. Contracting Servs.,
LLC v. United States, 153 Fed. Cl. 89, 129 (2021).
16
Despite the much-touted importance the agency claimed to place on
distinguishing degrees of relevant past performance, there is no indication
that the agency actually evaluated or distinguished the relevancy of projects.
The only assessment of relevance, repeated verbatim in each offeror’s
evaluation, was that the work performed “was similar to the work
requirements in the solicitation.” E.g., AR 3892. There was no mention of
complexity or magnitude. While BGS argues that the agency already
considered magnitude and complexity under Experience, BGS does not point
to how the agency applied those findings when evaluating the relevancy of
specific projects.19
Further, the ratings for the projects under relevancy are inconsistent
with the relevancy findings under Experience. Relevancy under both factors
was evaluated for the same qualities: scope, complexity, and magnitude.20
The Experience evaluation showed that not all of the projects the offerors
submitted met all of the Experience bonus criteria. Projects offered by BGS
and other offerors, for example, did not meet certain bonus criteria for the
most relevant types of work performed. Yet, despite these differences in
relevancy findings under Factor 1, all projects deemed relevant were rated as
Very Relevant under Factor 5. Although the findings in Experience were
based on bonus criteria, they show that there were differentiators in relevancy
among projects. The agency made no attempt to reconcile these differences
or explain how projects with very different relevancy treatment under Factor
1 nevertheless all lead to a collective “Very Relevant” rating under Factor 5.
While agencies do have a large amount of deference in making past
performance determinations, that deference is not unlimited. The agency
specifically said that for this contract, relevancy was important enough to
necessitate its own rating scale so that the agency could accurately
differentiate between offerors. While the projects could have all been Very
19
As plaintiff mentions, the Experience bonus criteria showed differences in
projects’ magnitude. Further, although intervenor argues that the assignment
of strengths and weaknesses under Experience showed the agency considered
magnitude, scope, and complexity of projects, plaintiff argues, and we agree,
that the strengths and weaknesses considered offerors’ projects collectively,
while projects had to be evaluated for relevance individually under Past
Performance.
20
“Magnitude” was referred to as “Size” under Experience. AR 527.
17
Relevant, the evaluation does not reflect how the agency came to that
conclusion. There is no indication that the agency truly evaluated relevancy,
and the discrepancies between relevancy under Experience and relevancy
under Past Performance are jarring and unexplained. Therefore, we find that
the agency acted unreasonably in its evaluation of relevancy in Past
Performance.
B. Quality and Past Performance Rating
KGJJ then argues that the agency unreasonably evaluated Past
Performance overall. It contends that the agency irrationally assigned a
Substantial Confidence rating to all offerors despite varying levels of quality
in their submitted projects. Again, both the government and BGS merely
caution that we should not delve into the minutiae of the Past Performance
evaluations. We agree with the protestor.
The agency did not properly evaluate Past Performance. The
solicitation stated, along with relevance, that the evaluation of Past
Performance necessitated a rating scale that would allow for discrimination
between offerors. Once again, as with relevance, this importance was cast
aside during evaluation. The agency gave every offeror, save one, a
Substantial Confidence rating despite varying levels of quality of
performance on past projects. For example, BGS and other offerors received
satisfactory ratings in some projects, while other offerors received only Very
Good or Exceptional ratings. Perhaps all offerors did deserve Substantial
Confidence ratings, and the quality ratings could be offset by other
considerations. The administrative record, however, shows no effort from
the agency to wrestle with these differences, nor does it show how the agency
concluded that every offeror was entitled to the same rating. The agency
merely repeated the same justification essentially verbatim for all offerors,
despite the fact that, according to the solicitation, Past Performance was the
most important non-price factor, indeed prompting adoption of tailored
rating systems to substantively differentiate offerors. Yet, the agency treated
the factor in a cursory manner and therefore acted unreasonably.
C. Prejudice
If the agency had evaluated Past Performance reasonably, there is a
substantial chance KGJJ would have received award. KGJJ was rated the
second-highest overall offeror, and Past Performance, as the most important
non-price factor, could greatly affect the outcome of the solicitation. KGJJ’s
18
projects met several bonus criteria for relevance under Experience, making
it likely that those projects would retain high relevancy scores under Past
Performance. Further, it received exclusively Very Good and Exceptional
ratings for its projects. A proper evaluation of Past Performance might have
resulted in other offerors being downgraded due to decreases in relevance
ratings or quality considerations, allowing KGJJ to receive the award.
IV. Injunctive Relief
The court must consider four factors before granting injunctive relief:
“(1) [W]hether, as it must, the plaintiff has succeeded on the
merits of the case; (2) whether the plaintiff will suffer
irreparable harm if the court withholds injunctive relief; (3)
whether the balance of hardships to the respective parties
favors the grant of injunctive relief; and (4) whether it is in the
public interest to grant injunctive relief.”
PGBA, LLC v. United States, 389 F.3d 1219, 1228–29 (Fed. Cir. 2004)
(citing Amoco Prod. Co. v. Vill. of Gambell, Alaska, U.S. 531, 546 n.12
(1987)). KGJJ argues that all factors favor granting permanent injunction.
We agree. As discussed above, KGJJ succeeded on the merits. We,
therefore, consider the rest of the factors.21
For the second factor, KGJJ argues that it would suffer irreparable
harm if it could not fairly compete for this contract. It contends that the loss
of potential revenue and profits from being unable to fairly compete for this
procurement is an irreparable harm and that bid preparation costs are not an
adequate remedy for this harm. The government and BGS do not argue
otherwise. We agree with the protestor. Although the contract’s revenue and
profits themselves are remote, given that award to the protestor is not
assured, the loss of opportunity to compete is sufficient harm to support an
injunction.
For the third factor, KGJJ contends that the balance of hardship
between the parties also favors injunctive relief. It argues that most of the
work within the scope of this contract is currently being performed by other
21
Neither the government nor BGS dispute KGJJ’s arguments concerning
the rest of the factors.
19
contractors through contracts that will not expire until 2023 or 2024.22 The
government does not suggest that it would suffer any independent harm if a
permanent injunction was entered, and so we agree with plaintiff. The
government indicated in our initial status conference that it would stay
contract performance insofar as it related to this protest until August 31,
2022. The balance of hardships clearly favors plaintiff.
Finally, for the fourth factor, KGJJ argues that it is in the public
interest to grant injunctive relief. Correct application of procurement laws,
according to KGJJ, would benefit the public interest. We agree. The public
has an obvious interest in fair and lawful procurements. The public interest
favors an injunction.
CONCLUSION
The agency acted unreasonably in awarding the contract to BGS. The
awardee should not have been considered due to its inclusion of affiliate
projects under the Experience factor. Further, the agency unreasonably
evaluated Past Performance and project relevancy, and it did not properly
document its conclusions. The four factors weigh in favor of granting
injunctive relief. Plaintiff’s motion for judgment on the administrative
record is thus granted, and defendant’s and intervenor’s cross-motions are
denied. Accordingly, the following is ordered:
1. The agency is hereby enjoined from proceeding with performance
of the contract awarded to the intervenor.23
2. Assuming the agency moves forward with the solicitation, it will
do so consistently with the terms of this opinion.
3. The Clerk of Court is direct to enter judgment for plaintiff.
4. Costs to plaintiff.
22
Part of the work has been transferred to BGS, according to plaintiff, who
argues that a bridge contract would be sufficient if an injunction were to be
entered. The government makes no argument otherwise.
23
The sealed opinion contained an error in the injunction. This public
opinion has been edited to correct the error. See ECF No. 49.
20
s/Eric G. Bruggink
ERIC G. BRUGGINK
Senior Judge
21