Pricewaterhousecoopers Public Sector, LLP v. United States , 2016 U.S. Claims LEXIS 504 ( 2016 )

REDACTED OPINION
In the United States Court of Federal Claims
No. 16-98C
Redacted Version Issued for Publication: May 10, 20161
* * * * * * * * * * * * * * * * ** *
PRICEWATERHOUSECOOPERS *
*
PUBLIC SECTOR, LLP, *
Protestor, *
*
v. *
*
UNITED STATES, *
Defendant, *
* Pre-Award Bid Protest; Corrective
* Action; 48 C.F.R. § 8.405; Injunctive
CALIBRE SYSTEMS, INC./ERNST & Relief; Subject Matter Jurisdiction;
YOUNG, *
Federal Acquisition Streamlining
Defendant-Intervenor, * Act, 10 U.S.C. § 2304c(e);
* Organizational Conflicts of Interest;
Unequal Treatment.
BOOZ ALLEN HAMILTON, INC., *
Defendant-Intervenor, *
and *
*
DELOITTE CONSULTING, LLP, *
Defendant-Intervenor. *
*
* * * * * * * * * * * * * * * * ** *
Sharon L. Larkin, Steptoe & Johnson, LLP, Washington, DC for protestor
PricewaterhouseCoopers Public Sector, LLP.
Domenique G. Kirchner, Senior Trial Attorney, Commercial Litigation Branch,
Department of Justice, Washington, DC for defendant. With her were Benjamin C. Mizer,
Principal Deputy Assistant Attorney General, Civil Division, Robert E. Kirschman, Jr.,
Director, Commercial Litigation Branch, and Douglas K. Mickle, Assistant Director,
1 This opinion was issued under seal on February 29, 2016. The parties were asked to
propose redactions prior to public release of the opinion. This opinion is issued with some
of the redactions that the parties proposed in response to the court’s request. Words
which are redacted are reflected with the following notation: “[redacted].”
Commercial Litigation Branch, Department of Justice, Washington, D.C. Of counsel was
David Hurt, Assistant General Counsel, Department of Defense Health Agency.
Craig A. Holman, Arnold & Porter, LLP, Washington, DC for defendant-intervenor
CALIBRE Systems, Inc./Ernst & Young LLP. With him were Stuart W. Turner, of
counsel, Arnold & Porter, LLP, Lauren J. Schlanger, of counsel, Arnold & Porter, LLP,
Sonia Tabriz, of counsel, Arnold & Porter, LLP, Nathaniel E. Castellano, of counsel,
Arnold & Porter, LLP, Amanda Johnson, of counsel, Arnold & Porter, LLP for defendant-
intervenor Ernst & Young LLP. Also with him were Brian Darst, Odin, Feldman &
Pittleman, P.C., and Matthew Keller, Odin, Feldman & Pittleman, P.C. for defendant-
intervenor CALIBRE Systems, Inc./ Ernst & Young LLP.
Kevin C. Dwyer, Jenner & Block, LLP, Washington, DC for defendant-intervenor
Booz Allen Hamilton, Inc. With him were Daniel E. Chudd, of counsel, Jenner & Block,
LLP, Kathy C. Weinberg, of counsel, Jenner & Block, LLP, and Rachel K. Plymale, of
counsel, Jenner & Block, LLP.
Keith R. Szeliga, Sheppard Mullin Richter & Hampton, LLP, Washington, DC for
defendant-intervenor Deloitte Consulting, LLP. With him here Jonathan S. Aronie,
Sheppard Mullin Richter & Hampton, LLP, Katie A. Calogero, Sheppard Mullin Richter
& Hampton, LLP, and Matthew W. Turetzky, Sheppard Mullin Richter & Hampton, LLP.
OPINION
HORN, J.
FINDINGS OF FACT
Protestor, PricewaterhouseCoopers Public Sector, LLP (PwC), filed a pre-award
bid protest on January 19, 2016 to challenge the issuance of a revised solicitation by the
Department of Defense, Defense Health Agency (DHA), which came after a decision by
the Government Accountability Office (GAO), on November 16, 2015, to sustain an
earlier, related bid protest challenging the award of a contract to PwC. See Deloitte
Consulting, LLP; Booz Allen Hamilton, Inc.; CALIBRE Sys. Inc., B-411884.6, 2015 WL
9701026, at *2 (Comp. Gen. Nov. 16, 2015). At the same time the pre-award bid protest
was filed, PwC also moved for a temporary restraining order and/or a preliminary
injunction. PwC seeks to enjoin DHA from resoliciting quotes, evaluating those quotes,
and making a new award under the amended Request for Quotations (RFQ) No. HT0011-
15-T-0022, which DHA issued on December 21, 2015. PwC alleges that:
After a proper competition conducted pursuant to Federal Acquisition
Regulation (FAR) Part 8, PwC won the competition fair and square, it
rightfully received the order, and it is entitled to perform the order. That
order is now in jeopardy due to DHA’s irrational and unlawful actions, which
are the subject of this protest.
2
The protestor asserts three grounds in its bid protest:
(1) DHA’s corrective action is irrational because it is being taken in response
to a GAO decision that, itself, is irrational and contrary to controlling law; (2)
even if the GAO’s decision were correct, which it is not, DHA’s corrective
action is unlawful because it is far broader than is necessary to correct the
GAO’s identified procurement errors, it includes changes to the evaluation
scheme that do not result from any changes in agency needs, it unfairly
favors PwC’s competitors, and it is competitively harmful to PwC whose
quote information has been disclosed to PwC’s competitors; and (3) the
corrective action mandates that certain competitors of PwC be disqualified
due to significant organizational conflicts of interest (OCI[s]).
The procurement in the above-captioned protest began on May 29, 2015, when
DHA issued an RFQ “on behalf of the DHA, Healthcare Operation (HCO) Directorate.”
The acquisition plan for this procurement explained that in 2014 the Secretary of the
Department of Defense ordered a 90-day review of the Military Health System (MHS),
focused on access to care, safety, and the quality of care. The review was conducted by
an “Action Officer (AO) Working Group,” with contractor support, and resulted in a final
report that “included six overarching recommendations; 77 recommendations related to
access to care, quality of care, and patient safety; and 82 associated action items.”
Following the review, another working group was established to “develop specific plans
to address the recommendations and associated action items contained in the Final
Report.” According to the declaration of Colonel Pehrson, the Government Lead for the
MHS Review Project Management Office, which was submitted to the court following the
filing of this bid protest, the working group submitted a plan to the Secretary of Defense
“outlining 41 action plans and 264 milestones to address the findings in the MHS Review
as well as the Secretary’s guidance to implement changes necessary to become a top-
performing health system.”
The protestor alleges that this working group created a document titled: “MHS 90-
Day Review Follow-On: Integrated Deliverable for 30 December 2014 Products.” Action
plan 1, of the 41 proposed by the follow-on working group, resulted in the establishment
of the High Reliability Organization Task Force (HRO TF) in December 2014, which had
“dual responsibilities to develop a framework for the Military Health System to become a
high reliability organization[2] and for tracking and advancing closure of the action plans
created in response to the MHS Review.” According to the protestor, the HRO Task Force
2 The MHS Review Final Report was attached by the protestor to the complaint filed in
the above-captioned protest. The MHS Review Final Report explains that a high reliability
organization is one in which “harm prevention and quality improvement are second nature
to all in the organization. Such organizations recognize the risk of over simplification in
complex systems: thus, implementation of the proposed recommendations should not be
expected to result in immediate change.”
3
published “The [HRO] Task Force Report: A Resource Guide for Achieving High
Reliability in the Military Health System.” (brackets in original). Later, in January 2015,
“the MHS Review PMO [Project Management Office] was established to facilitate tracking
of the MHS Review action plans.” Based on the declaration of the Government Lead for
the MHS Review Project Management Office, it appears that, as of the date of this
decision, the MHS Review PMO continues to receive contractor support from Deloitte
LLP, including assistance in tracking milestone progress.
Through the solicitation released on May 29, 2015, DHA intended to award a
contract “to establish a Program Integration Office (PIO)” to “provide services necessary
to transform the Military Health System (MHS) into a High Reliability Organization.” The
RFQ issued on May 29, 2015 explained that the services to be performed under the
contract would include:
[E]stablishing and maintaining a comprehensive Program Integration Office
(PIO), supporting full execution and implementation of action plans resulting
from the MHS review, establishing an Enterprise Performance Management
System, and providing direct support for each of the Services (Army, Air
Force, and Navy) Medical Departments as described in the Performance
Work Statement (PWS).
The contractor would be required to:
[F]urnish the necessary personnel, materials, facilities, and other services
as may be required to assist the Assistant Secretary of Defense (Health
Affairs), the Defense Health Agency’s Healthcare Operations Directorate
and all of its associated Divisions in the support of action plans resulting
from the MHS Review to provide a comprehensive Program Integration
Office which supports robust performance management and continuous
process improvement for the Military Health System to improve patient
safety, access, and healthcare quality throughout the Military Health
System Enterprise and all the various functions identified in the Scope of
Performance Work Statement.
Pursuant to FAR subpart 8.405-3, 48 C.F.R. § 8.405-3 (2016),3 DHA issued the
RFQ to contractors that held the General Services Administration Performance
Management/Continuous Process Improvement Blanket Purchase Agreement (GSA
PM/CPI BPA), which was created under the Mission Oriented Business Integrated
Services (MOBIS) Federal Supply Schedule (also known as Schedule 874).4 PwC and
3
The court reviewed the version of 48 C.F.R. § 8.405-3 issued in 2015, which was in
effect at the time DHA issued the RFQ, and found no relevant differences between that
version and the current version of the regulation.
4As a result of GSA’s recent streamlining efforts, GSA has consolidated its Professional
Services Multiple Award Schedule offerings, including the former MOBIS Federal Supply
Schedule contract (Schedule 874), into one Professional Services Schedule. See
4
defendant-intervenors Booz Allen Hamilton, Inc. (Booz Allen), CALIBRE Systems
Inc./Ernst & Young LLP (CALIBRE/EY), and Deloitte Consulting LLP (Deloitte) have each
held a GSA PM/CPI BPA at all times relevant in this case. The RFQ provided that DHA
intended to award a “BPA Call task order with a twelve (12) month Base Period with 4
(four) one (12) [sic] month option periods.” The first page of the RFQ explained that the
“acquisition is being conducted pursuant to Federal Acquisition Regulation (FAR) 8.405-
3(c)(2)(iii).” Similarly, in explaining the selection procedures, DHA expressed its intent to
follow the procedures required under “FAR 8.405-3(c)(2)(iii)(3)” in awarding the contract.
The RFQ was issued to all fifteen GSA PM/CPI BPA holders, including protestor and
defendant-intervenors. The total estimated value of the contract, including the base year
and option periods, was $[redacted].
The RFQ required offerors to submit three volumes to be evaluated: “Technical
Approach, Management Approach, and Price.” In Volume I, “Technical Approach,”
offerors were directed to address, at a minimum, their corporate experience, specifically
their understanding of the current MHS governance construct, their experience supporting
a similarly sized federal healthcare Program Integration Office, and transforming an
enterprise healthcare system into a High Reliability Organization. Also in Volume I,
offerors were directed to address their corporate capability, including their access to
healthcare industry best practice organizations, their change management and
organizational development approach, and their military campaign planning capability. In
Volume II, “Management Approach,” offerors were instructed to “provide the management
approach (including approach to staffing) that will lead to the successful accomplishment
of the requirements.” In Volume III, “Price,” offerors were instructed to submit their firm
fixed price.
According to the RFQ, quotes were to be “rated from highest to lowest based upon
technical approach to include corporate experience and corporate capability, and
management approach to include program management and key personnel and staffing.”
The RFQ “did not ascribe weights to any of the areas to be considered,” instead, the RFQ
was designed to allow DHA “discretion to consider and rate the quotes as a whole.” The
selection procedures in the RFQ explained, in rather general terms, that the contracting
officer would award the BPA call order to the contractor that submitted “the highest rated
quote proposing an appropriate mix of labor for the required level of effort at a fair and
reasonable price.” If the contractor that submitted the highest rated quote did not
“propose an appropriate mix of labor for the required effort at a fair and reasonable price,”
the contracting officer could “obtain additional information from, and negotiate with, that
contractor to improve the terms of the deal reflected in its quote.” The selection
procedures in the RFQ further explained:
If the contracting officer is unable to negotiate a favorable deal with the
contractor, he or she reserves the right to negotiate and reach agreement
with the firm submitting the next highest rated quote. This process will
continue until a contract has been reached or until all those firms submitting
http://www.gsa.gov/portal/content/245439 (last visited Feb. 29, 2016). This change does
not affect this bid protest.
5
a quote have been considered. If agreement on a deal cannot be reached
with any of the firms, negotiations may be reopened with all firms or the
solicitation may be canceled.
Also, the RFQ contained the clauses and terms that would be incorporated into the
contract award. Specifically, among the clauses included was a data rights term, which
stated:
1.6.16. Data Rights: The Government has unlimited rights to all
documents/material produced under this contract. All documents and
materials, to include the source codes of any software, produced under this
contract shall be Government owned and are the property of the
Government with all rights and privileges of ownership/copyright belonging
exclusively to the Government. These documents and materials may not be
used or sold by the contractor without written permission from the
Contracting Officer. All materials supplied to the Government shall be the
sole property of the Government and may not be used for any other
purpose. This right does not abrogate any other Government rights.
(emphasis in original).
On June 22, 2015, DHA received five quotes in response to the RFQ issued on
May 29, 2015, and evaluation began on June 23, 2015. The technical evaluation board
(TEB) was comprised of one individual, Colonel Soo Lee Davis. Price reasonableness
was determined by the contracting officer. The TEB’s findings are in the technical
evaluation report. The TEB rated the five quotes from highest to lowest based on their
technical approach as follows: (1) PwC; (2) CALIBRE/EY; (3) Booz Allen; (4) Deloitte; and
(5) [redacted].
The price analysis report, created for evaluation purposes, included an
examination of the offerors’ price reasonableness and concluded that PwC’s quoted
prices were fair and reasonable. Ultimately, the Source Selection Official, who was the
contracting officer, determined that PwC was able to “perform the work in accordance
with the PWS; based on technical approach, management approach, and price. PWC’s
prices have been determined fair and reasonable.” As a result, PwC was awarded
contract no. GS10FAA069 on September 1, 2015 for $53,507,742.55.
Subsequently, three disappointed offerors, Booz Allen, CALIBRE/EY, and Deloitte
timely filed bid protests at the GAO in August 2015 challenging the BPA task order award
to PwC. See Deloitte Consulting, LLP; Booz Allen Hamilton, Inc.; CALIBRE Sys. Inc., B-
411884.6, 2015 WL 9701026, at *2. As a result of the bid protest, DHA issued a stop work
modification to PwC on August 7, 2015, “in accordance with FAR 52.242-15 due to a bid
protest,” which remains in effect. PwC intervened in the GAO proceeding. Initially, DHA
moved to dismiss Booz Allen and Deloitte’s protests on the basis that neither offeror was
an interested party, however, in a one sentence e-mail on September 9, 2015, the GAO
denied DHA’s motion. Then, on November 16, 2015, the GAO issued its decision partially
6
sustaining the protest after finding several defects in the procurement, over the objections
of PwC and DHA. See id.
The GAO partially sustained the protest on four grounds. In its decision, the GAO
explained:
In reviewing a protest challenging an agency’s technical evaluation, our
Office will not reevaluate the quotations; rather, we will examine the record
to determine whether the agency’s evaluation conclusions were reasonable
and consistent with the terms of the solicitation and applicable procurement
laws and regulations.
Id. at *4. The GAO first partially sustained the protest on the ground that DHA
unreasonably evaluated PwC’s quotation with regard to the corporate experience factor,
which was part of PwC’s technical approach, by unjustifiably crediting it with the
experience of its parent company, PricewaterhouseCoopers US (PwC US). See id. at *6.
The RFQ directed offerors to address “Corporate Experience” in their quotes, and to
specifically discuss their understanding of the current MHS Government construct “or a
similar organizational structure in a very large enterprise corporate headquarters”; their
relevant experience “identical, similar, or related to supporting a very large federal
healthcare program integration office”; and their “[r]elevant experience related to
improving the safety, access, and quality of a very large healthcare system, in the public
or private sector, using high reliability principles as described by The Joint Commission.”
In evaluating PwC’s proposal, DHA relied on [redacted] examples included in PwC’s
quote that PwC offered to demonstrate its experience supporting large healthcare
systems improve their quality. DHA concluded that PwC exceeded the requirements of
the PWS and clearly had the experience needed to perform the contract. See id. The
GAO, however, found that “PwC’s quotation did not specifically explain or differentiate
throughout its quotation as to whether particular resources or experiences related to PwC
Public Sector as opposed to PwC US,” and PwC’s “quotation did not specifically explain
how PwC Public Sector would work with PwC US during the performance of the contract
in a way that demonstrated that the experience of the latter should be credited to the
former.” Id. The GAO explained that although “it is appropriate to consider an affiliate’s
performance record where the affiliate will be involved in the contract effort, it is
inappropriate to consider an affiliate’s record where there is no evidence that the affiliate
will meaningfully participate in performance of the contract.” Id. At the GAO, to support
DHA’s contract award decision, PwC argued that references to PwC US in its quote
adequately supported DHA’s evaluation of PwC’s corporate experience, however, the
GAO concluded that “the record does not reasonably explain why DHA credited PwC
Public Sector with the experience of PwC US,” and, therefore, the GAO sustained the
protest on the corporate experience ground. Id.
As a second basis to partially sustain the protest, the GAO found that PwC had
taken exception to the data rights clause included in the RFQ by including the following
language in its quote:
7
[Redacted.] Unless required by the Act, neither the contract deliverables nor
their content may be distributed to, discussed with, or otherwise disclosed
to any Third Party without PwC’s prior written consent. [Redacted.]
The GAO determined that the data rights term in the RFQ was a clearly stated solicitation
requirement and material to the needs of the government. See id. at *7. The GAO
explained that “[i]n negotiated procurements, clearly stated solicitation requirements are
considered material to the needs of the government, and a quotation that fails to conform
to material terms and conditions of the solicitation is unacceptable and cannot form the
basis for award.” Id. The GAO compared the language in PwC’s quote with the data
rights term in the RFQ and explained that “[w]hereas the solicitation clause gives the
government unlimited and exclusive property rights to all documents produced under the
task order, PwC’s quotation limits the government’s right to distribute contract
deliverables to third parties without the awardee’s ‘prior written consent.’” Id. Accordingly,
because the language in PwC’s quote deviated from the data rights term in the RFQ, the
GAO determined that DHA should have found PwC’s quote unacceptable, and the GAO
sustained the protest on this basis. See id. at *8. Notably, in defending against this protest
ground, DHA asserted that the data rights term in the RFQ was not considered material,
however, the GAO decided that DHA’s argument was “not consistent with the plain
language of the data rights clause that the agency elected to tailor and insert into the
solicitation.” Id. at *7. The language of the clause in the RFQ appears to be quite clear.
In the contracting officer’s declaration submitted to this court in response to the current
protest, she indicated that the agency “always intended to obtain” unlimited data rights,
implying that the term is a material requirement.
As a third basis to partially sustain the protest, the GAO determined that DHA had
failed to properly consider and document PwC’s proposed labor mix. See id. at *9. The
selection procedures included in the RFQ explained, generally, that the contracting officer
would “award a BPA call to the contractor submitting the highest rated quote proposing
an appropriate mix of labor for the required level of effort at a fair and reasonable price.”
DHA’s consideration of the offerors’ proposed labor mixes is reflected in the price analysis
report and the technical evaluation report. The GAO, however, found two issues related
to DHA’s consideration of PwC’s proposed labor mix. First, the GAO found that the
technical evaluator’s “assessment focused solely on the hours and positions proposed by
PwC for its key personnel,” and not PwC’s entire staffing approach. Id. at *9-10. The GAO
stated that “although the TEB evaluator reviewed PwC’s labor mix and hours, she
addressed only the hours that PwC proposed for its key personnel labor categories in the
base year.” Id. at *10. As a result, the GAO concluded that “the agency did not reasonably
evaluate whether PwC’s overall proposed labor mix, which included [redacted] FTEs [full
time equivalents], was appropriate for the level of effort, as required by the RFQ.” Id. The
GAO also agreed with the protestors’ allegation that “the agency’s positive assumptions,
as reflected in the evaluation of PwC’s labor mix in connection with the management
approach factor, are not supported by PwC’s quotation.” Id.
The GAO found further that “certain areas” of DHA’s evaluation of Booz Allen and
Deloitte’s quotes reflected unequal treatment and partially sustained the protest on that
8
additional basis. See id. at *12. In finding these reasons to partially sustain the protest
against the award to PwC, the GAO briefly discussed the prejudice suffered by the
protestors, but did not discuss if, or how, the prejudice differed between the protestors.
See id. at *15. Instead, the GAO summarily found prejudice because “certain areas of
the agency’s evaluation were not reasonable, and because the record did not show how
a proper evaluation would have affected the ranking of the vendors’ proposals.” Id.
In deciding the protest, the GAO also considered CALIBRE/EY’s argument that
“the award to PwC was tainted by an impermissible OCI [organizational conflict of interest]
because PwC consulted with, and received non-public, competitively useful, inside
information from a DHA consultant.” Id. at *13. CALIBRE/EY also argued that “PwC had
unequal access to information as a result of its contract with DHA to support MHS
Governance.” Id. Citing FAR subpart 9.504, the GAO explained that “the responsibility
for determining whether an actual or apparent conflict of interest will arise, and to what
extent the firm should be excluded from the competition, rests with the contracting
agency.” See Deloitte Consulting, LLP; Booz Allen Hamilton, Inc.; CALIBRE Sys. Inc., B-
411884.6, 2015 WL 9701026, at *15. The GAO stated that an unequal access to
information conflict of interest arises “where a firm competing for a government contract
has ‘[p]roprietary information that was obtained from a Government official without proper
authorization’ or ‘source selection information . . . that is relevant to the contract but [was
not made] available to all competitors, and such information would assist that contractor
in obtaining the contract.’” Id. (alterations in original). The GAO explained that, in
response to CALIBRE/EY’s OCI allegation, the contracting officer conducted an OCI
investigation. See id. at *14. The GAO summarized the contracting officer’s findings:
With respect to the consultant, the CO's investigation found the following:
(1) the consultant retired from the Army in 2012 but never worked for DHA
in any capacity; (2) a Power Point presentation cited in CALIBRE's protest,
which involved a project involving the consultant and college students, did
not directly involve PwC or include any DHA non-public competitively useful
information; (3) the consultant's involvement in market research was limited
to introducing an industry representative to an agency official-months in
advance of when the official developed the solicitation-by arranging the
industry representative's attendance at meetings with the agency official;
and that a member of the CALIBRE team was invited to the same meeting.
Id. Furthermore, according to the GAO’s decision, the contracting officer found that:
MHS Governance and HRO transformation were two separate agency
initiatives; that PwC’s Governance contract did not involve defining the
RFQ’s requirements, would not impair PwC’s objectivity, and did not give
PwC access to non-public competitively useful information beyond the
normal experience gained in the performance of the contract.
9
Id. Ultimately, the contracting officer concluded that PwC did not have an unequal access
to information OCI, and the GAO found the contracting officer’s conclusion to be
reasonable. See id.
In sustaining the protest, the GAO found that “DHA’s evaluation and award
decision were inconsistent with the terms of the solicitation and lacked a reasonable
basis.” Id. at *15. The GAO, therefore, recommended that:
the agency reevaluate quotations consistent with our decision, and conduct
discussions and solicit revised quotations, if appropriate. To the extent DHA
believes that the data rights clause is not material, the agency should
amend the RFQ, and request revised quotations. Following the revised
evaluation, the agency should make a new award decision.
Id.
Following the GAO’s decision to sustain the protest, the DHA contracting officer
issued an amendment to RFQ 1055980-HT0011-15-T-0022 to “re-solicit the subject
requirement to all GSA PM/CPI BPA eligible vendors.” The administrative record does
not contain subsequent memoranda or other contemporaneous documentation
explaining DHA’s decision to amend the RFQ or the changes made by DHA to the RFQ.
The only information provided to the court that pertains to DHA’s decision-making process
in revising the RFQ, besides the amended RFQ itself, are declarations submitted to this
court by the defendant from the contracting officer and the Government Lead for the MHS
Review Project Management Office.
As amended, the RFQ requires offerors to submit two volumes: a non-price volume
and a price volume. Under “Factor 1: Technical Approach” there are four subfactors: (1)
patient safety approach, (2) process improvement approach, (3) plan for quality expert
approach, and (4) PAG (Perinatal Advisory Group) and coding approach. Each subfactor
also has associated numbered action plans, which are derived from the MHS review
discussed previously. Neither these subfactors, nor the specific numbered action plans,
were included in the previous RFQ’s list of factors or evaluation criteria. Corporate
experience, which was the first listed item that offerors were directed to address under
the previous RFQ, has been removed. Similarly, corporate capability, which was the
second listed item that offerors were directed to address under the previous RFQ, is also
no longer included. As a result of the revisions, offerors are no longer instructed to
address their access to healthcare industry best practice organizations or their military
campaign planning capability. In her declaration filed in this court on January 20, 2016,
the contracting officer stated that as part of the
overall review of the evaluation approach, the program team (none of whom
were involved in the previous evaluation of quotes) decided that evaluating
corporate capability/experience and military campaign planning as in the
original procurement would not help the Agency identify the best quote or
differentiate between quotes. Instead, the team decided to focus the
10
evaluation on the vendors’ specific experience performing prior similar
tasks.
Additionally, in her declaration, the contracting officer stated that “the program office
revised the PWS to also take into account changes in the Agency’s requirements, in part
because quite a bit of time had passed since the Agency originally issued the solicitation.”
Similarly, in her declaration, the Government Lead for the MHS Review Project
Management Office stated that changes also were made to the PWS based on changes
in the agency’s requirements.
Under the revised RFQ, the procurement is still being conducted in accordance
with FAR subpart 8.4. Similar to the previous RFQ, the revised RFQ explains that DHA
intends to follow the procedures prescribed in FAR 8.405-3(c)(2)(iii)(A)(3). The RFQ,
however, has been changed to be a “best value” type procurement. Whereas under the
previous RFQ the factors were of equal importance, the revised RFQ lists the factors and
subfactors in descending order of importance:
Factor 1: technical approach
Subfactor 1a: patient safety approach
Subfactor 1b: process improvement approach
Subfactor 1c: plan for quality expert approach
Subfactor 1d: PAG and coding approach
Factor 2: experience
Subfactor 2a: transforming an enterprise healthcare system in an HRO
Subfactor 2b: Experience supporting a similarly sized federal healthcare
Program Integration Office
Factor 3: program management approach
Factor 4: key personnel and staffing
Factor 5: price
The revised RFQ also states, “[t]he non-price factors, when combined, are more important
than price.”
According to the contracting officer’s January 20, 2016 declaration, DHA
considered “the breadth of the GAO’s decision and recommendation” and decided “to
amend the RFQ to include those evaluation criteria we believe will result in the best
solution for the Agency and to more fully communicate the basis on which quotes will be
evaluated.” The contracting officer explained in her declaration:
[W]e revised the evaluation to indicate that, instead of evaluating the
offerors’ proposed approaches for completing all PWS tasks, the Agency
would evaluate the offerors’ proposed approaches to four specified areas.
This will help ensure that the Agency obtains what it really needs by allowing
us to better distinguish between the merits of the quotes and to make award
to the vendor most likely to not only successfully, but also exceptionally,
meet the requirement.
11
Additionally, to avoid a pre-award protest for not affording greater weight to price in the
evaluation, the contracting officer indicated that DHA “revised the evaluation to make it a
best value trade-off under which we [DHA] would trade the technical factors against price
with the technical factors being more important than price.”
The revised RFQ incorporated Defense Federal Acquisition Regulation
Supplement (DFARS) clause 252.227-7015, “Technical Data—Commercial Items.”5 The
5 This clause states, in relevant part, that:
(b) License. (1) The Government shall have the unrestricted right to use,
modify, reproduce, release, perform, display, or disclose technical data, and
to permit others to do so, that—
(i) Have been provided to the Government or others without
restrictions on use, modification, reproduction, release, or further
disclosure other than a release or disclosure resulting from the sale,
transfer, or other assignment of interest in the technical data to
another party or the sale or transfer of some or all of a business entity
or its assets to another party;
(ii) Are form, fit, and function data;
(iii) Are a correction or change to technical data furnished to the
Contractor by the Government;
(iv) Are necessary for operation, maintenance, installation, or training
(other than detailed manufacturing or process data); or
(v) Have been provided to the Government under a prior contract or
licensing agreement through which the Government has acquired
the rights to use, modify, reproduce, release, perform, display, or
disclose the data without restrictions.
(2) Except as provided in paragraph (b)(1) of this clause, the Government
may use, modify, reproduce, release, perform, display, or disclose technical
data within the Government only. The Government shall not—
(i) Use the technical data to manufacture additional quantities of the
commercial items; or
(ii) Release, perform, display, disclose, or authorize use of the
technical data outside the Government without the Contractor's
written permission unless a release, disclosure, or permitted use is
necessary for emergency repair or overhaul of the commercial items
furnished under this contract, or for performance of work by covered
Government support contractors.
(3) The Contractor acknowledges that—
(i) Technical data covered by paragraph (b)(2) of this clause are
authorized to be released or disclosed to covered Government
support contractors;
(ii) The Contractor will be notified of such release or disclosure. . . .
48 C.F.R. § 252.227-7015(b) (2016).
12
contracting officer stated in her declaration submitted to this court that DHA also modified
“the data rights language at paragraph 1.6.16 of the PWS. That modification, however,
did not change the Agency’s requirement of unlimited rights, which is what we always
intended to obtain.”
The RFQ subsequently was amended on January 8, 2016 (amendment 4),
January 19, 2016 (amendment 5), January 21, 2016 (amendment 6), and February 8,
2016 (amendment 7).6 Offerors are required to submit their quotes in response to the
revised RFQ on or before February 29, 2016.
On January 19, 2016, PwC filed its protest in this court and moved for a temporary
restraining order and/or preliminary injunction to enjoin DHA from resoliciting quotes,
conducting a new evaluation, and making a new award until the court has the opportunity
to resolve the merits of PwC’s request for a preliminary and permanent injunction and to
provide a meaningful remedy. Defendant and defendant-intervenors CALIBRE/EY, Booz
Allen, and Deloitte each oppose PwC’s request for a temporary restraining order and/or
a preliminary injunction. Defendant-intervenors CALIBRE/EY and Booz Allen also have
asserted that this protest should be dismissed in its entirety pursuant to Rule 12(b)(1) of
the Rules of the United States Court of Federal Claims (RCFC) (2015) for lack of subject
matter jurisdiction because of the prohibition in the Federal Acquisition Streamlining Act
(FASA), 10 U.S.C. § 2304c(e) (2012), against protests of task or delivery orders.
In support of its motion for a temporary restraining order and/or a preliminary
injunction, PwC alleges that all of the defendant-intervenors, CALIBRE/EY, Booz Allen,
and Deloitte, should be disqualified from competing under the revised RFQ for the task
order due to unavoidable and unmitigated organizational conflicts of interest.7 Protestor
alleges that CALIBRE/EY, Booz Allen, and Deloitte provided support to the initial 90-day
MHS Review, the follow-on MHS Review, and/or the subsequent HRO Task Force.
Specifically, with regard to CALIBRE/EY, protestor alleges that one of the key personnel
in its proposal, Dr. Pronovost, was listed in the MHS Review Final Report as “one of six
reviewers of [the] MHS Review document, and his recommendations are prominently
featured in the MHS Review publication.” Similarly, protestor alleges that 23 of the
individuals involved in the MHS Review were listed as [redacted] personnel in Booz
Allen’s proposal submitted in response to the previous RFQ. In addition to the alleged
involvement with the MHS Review, protestor “believe[s]” that Booz Allen and Deloitte
supported the follow-on working group created after the MHS Review. Protestor also
alleges that Booz Allen and Deloitte “played an instrumental role” in the HRO Task Force,
which was created after the follow-on working group to the MHS Review, and that Dr.
6 Protestor in the above-captioned case is challenging amendments 3, 4, and 5 to the
RFQ, which changed the solicitation requirements and evaluation criteria and were issued
after the GAO’s decision. Amendments 6 and 7 were issued after protestor filed this bid
protest and addresses only the deadlines for offerors to submit OCI mitigation plans and
quotations.
7 During the GAO protest, OCI allegations were asserted against only PwC.
13
Pronovost of CALIBRE/EY “had access to what the HRO Task Force was doing.” As a
result of this involvement, PwC alleges that “[Booz Allen] and Deloitte (and likely also Dr.
Pronovost) have had real time access to and have been involved in creating the
requirements and approach that are now going to be evaluated.” In addition to protestor’s
allegations that Booz Allen, Deloitte, and CALIBRE/EY were previously involved and
supported the MHS Review, the follow-on to the MHS Review, and the HRO Task Force,
protestor also alleges that “none of the action plans identified in the [revised] RFQ, or the
confidential information made available to BAH [Booz Allen], Deloitte, or Dr. Pronovost,
have been made available to PwC except for a limited disclosure of information on
January 7, 2016,” which included the MHS Review Final Report, the MHS Review Follow-
On Report, HRO Task Force deliverables, and other working group items.8 Accordingly,
protestor alleges Booz Allen, CALIBRE/EY, and Deloitte should be disqualified due to
biased ground rules, unequal access to information, and impaired objectivity. In
response, defendant-intervenors Booz Allen, CALIBRE/EY, and Deloitte assert that
protestor’s OCI allegations are baseless, without merit, and premature since the
proposals in response to the revised RFQ have not yet been submitted, the agency has
not yet investigated the alleged OCIs, and, therefore, there is no agency final decision
regarding the OCIs for this court to review. Defendant has moved to dismiss protestor’s
OCI allegations for failure to state a claim because protestor “fails to allege facts
demonstrating a clear and prejudicial violation of procedural regulations,” “[c]ontracting
officers have broad discretion regarding the timeframes in which they execute their
functions,” and protestor’s OCI allegations “are premature and not ripe for adjudication.”
In response, protestor explains that it is “not contending that this Court supplant the
Agency’s obligation to determine” whether defendant-intervenors possess OCIs.
(emphasis in original). Instead, “PwC is asking the Court to declare this [revised] RFQ to
be an unreasonable response to GAO’s decision.”
DISCUSSION
Motion to Dismiss for Lack of Subject Matter Jurisdiction
As a threshold matter, the court addresses defendant-intervenors CALIBRE/EY
and Booz Allen’s allegations that this court does not have subject matter jurisdiction to
decide PwC’s bid protest in the above-captioned case because FASA, 10 U.S.C.
§ 2304c(e), should preclude this court from hearing protests “in connection with the
issuance or proposed issuance of a task or delivery order,” with limited exceptions, which
according to the defendant-intervenors, are not applicable to this case. 10 U.S.C.
§ 2304c(e)(1). In its response to PwC’s motion for a temporary restraining order and/or a
8 PwC alleges that these items totaled nearly 1,000 pages and were only provided to it
on January 7, 2016, when the deadline to submit quotations to the revised RFQ was
January 19, 2016. According to protestor, this created an unfair disadvantage to PwC
regarding the revised quotations as compared to the other eligible offerors. Deloitte,
however, indicated in its submission to this court that it did not have access to the MHS
Review Follow-On Report until one additional week after January 7, 2016. In fact, the
submission due date for quotes responding to the revised RFQ ultimately changed to
February 29, 2016, thereby affording PwC more than 30 days to review the documents.
14
preliminary injunction, defendant only asserts that there “is a question whether the Court
has jurisdiction of the entire complaint given the Federal Acquisition Streamlining Act
(FASA), 10 U.S.C. § 2304c(e), which provides GAO exclusive jurisdiction,” however,
defendant did not directly allege that this court lacks subject matter jurisdiction. It is well
established that “‘subject-matter jurisdiction, because it involves a court’s power to hear
a case, can never be forfeited or waived.’” Arbaugh v. Y & H Corp., 546 U.S. 500, 514
(2006) (quoting United States v. Cotton, 535 U.S. 625, 630 (2002)). “[F]ederal courts
have an independent obligation to ensure that they do not exceed the scope of their
jurisdiction, and therefore they must raise and decide jurisdictional questions that the
parties either overlook or elect not to press.” Henderson ex rel. Henderson v. Shinseki,
562 U.S. 428 (2011); see also Hertz Corp. v. Friend, 559 U.S. 77, 94 (2010) (“Courts
have an independent obligation to determine whether subject-matter jurisdiction exists,
even when no party challenges it.” (citing Arbaugh v. Y & H Corp., 546 U.S. at 514));
Special Devices, Inc. v. OEA, Inc., 269 F.3d 1340, 1342 (Fed. Cir. 2001) (“[A] court has
a duty to inquire into its jurisdiction to hear and decide a case.” (citing Johannsen v. Pay
Less Drug Stores N.W., Inc., 918 F.2d 160, 161 (Fed. Cir. 1990))); View Eng'g, Inc. v.
Robotic Vision Sys., Inc., 115 F.3d 962, 963 (Fed. Cir. 1997) ("[C]ourts must always look
to their jurisdiction, whether the parties raise the issue or not."). “The objection that a
federal court lacks subject-matter jurisdiction . . . may be raised by a party, or by a court
on its own initiative, at any stage in the litigation, even after trial and the entry of
judgment.” Arbaugh v. Y & H Corp., 546 U.S. at 506; see also Hymas v. United States,
810 F.3d 1312, 1317 (Fed. Cir. 2016) (explaining that a federal court must satisfy itself of
its jurisdiction over the subject matter before it considers the merits of a case); Cent. Pines
Land Co., L.L.C. v. United States, 697 F.3d 1360, 1364 n.1 (Fed. Cir. 2012) (“An objection
to a court's subject matter jurisdiction can be raised by any party or the court at any stage
of litigation, including after trial and the entry of judgment.” (citing Arbaugh v. Y & H Corp.,
546 U.S. at 506)); Rick’s Mushroom Serv., Inc. v. United States, 521 F.3d 1338, 1346
(Fed. Cir. 2008) (“[A]ny party may challenge, or the court may raise sua sponte, subject
matter jurisdiction at any time.” (citing Arbaugh v. Y & H Corp., 546 U.S. at 506; Folden
v. United States, 379 F.3d 1344, 1354 (Fed. Cir.), reh’g and reh’g en banc denied (Fed.
Cir. 2004), cert. denied, 545 U.S. 1127 (2005); and Fanning, Phillips & Molnar v. West,
160 F.3d 717, 720 (Fed. Cir. 1998))); Pikulin v. United States, 97 Fed. Cl. 71, 76, appeal
dismissed, 425 F. App’x 902 (Fed. Cir. 2011). In fact, “[s]ubject matter jurisdiction is an
inquiry that this court must raise sua sponte, even where . . . neither party has raised this
issue.” Metabolite Labs., Inc. v. Lab. Corp. of Am. Holdings, 370 F.3d 1354, 1369 (Fed.
Cir.) (citing Textile Prods., Inc. v. Mead Corp., 134 F.3d 1481, 1485 (Fed. Cir.), reh’g
denied and en banc suggestion declined (Fed. Cir.), cert. denied, 525 U.S. 826 (1998)),
reh’g and reh’g en banc denied (Fed. Cir. 2004), cert. granted in part sub. nom Lab. Corp.
of Am. Holdings v. Metabolite Labs., Inc., 546 U.S. 975 (2005), cert. dismissed as
improvidently granted, 548 U.S. 124 (2006).
This court has jurisdiction to hear bid protests pursuant to 28 U.S.C. § 1491(b)(1)
(2012) of the Tucker Act, which provides that this court has
jurisdiction to render judgment on an action by an interested party objecting
to a solicitation by a Federal agency for bids or proposals for a proposed
contract or to a proposed award or the award of a contract or any alleged
15
violation of statute or regulation in connection with a procurement or a
proposed procurement.
28 U.S.C. § 1491(b)(1); see also Weeks Marine, Inc. v. United States, 575 F.3d 1352,
1359 (Fed. Cir. 2009). The Administrative Dispute Resolution Act of 1996 (ADRA),
codified at 28 U.S.C. § 1491(b)(1)–(4), amended the Tucker Act to establish a statutory
basis for bid protests in the United States Court of Federal Claims. See Impresa
Construzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324, 1330–32 (Fed.
Cir. 2001). Furthermore, the United States Court of Appeals for the Federal Circuit has
established that this court has jurisdiction over a bid protest based on an agency’s
decision to take corrective action. See Chapman Law Firm Co. v. Greenleaf Const. Co.,
490 F.3d 934, 937-38 (Fed. Cir. 2007). FASA, however, includes a provision that limits
the court from adjudicating protests “in connection with the issuance or proposed
issuance of a task or delivery order” except under limited exceptions stated in the statute,
10 U.S.C. § 2304c(e), with the general authority to hear protests involving task or delivery
order awards that exceed ten million dollars given to the GAO. See 10 U.S.C. § 2304c(e).
Specifically, FASA provides:
(e) Protests.--(1) A protest is not authorized in connection with the issuance
or proposed issuance of a task or delivery order except for—
(A) a protest on the ground that the order increases the scope,
period, or maximum value of the contract under which the order is
issued; or
(B) a protest of an order valued in excess of $10,000,000.
(2) Notwithstanding section 3556 of title 31, the Comptroller General of the
United States shall have exclusive jurisdiction of a protest authorized under
paragraph (1)(B).
10 U.S.C. § 2304c(e).9 The United States Court of Appeals for the Federal Circuit has
explained that “[t]he statutory language of FASA is clear and gives the court no room to
exercise jurisdiction over claims made ‘in connection with the issuance or proposed
issuance of a task or delivery order.’” SRA Int’l, Inc. v. United States, 766 F.3d 1409, 1413
(Fed. Cir. 2014) (quoting 10 U.S.C. § 2304c(e)) (acknowledging that “this statute is
somewhat unusual in that it effectively eliminates all judicial review for protests made in
connection with a procurement designated as a task order”).
Jurisdiction to adjudicate protests connected to task or delivery orders issued
against General Services Administration (GSA) Federal Supply Schedules (FSSs) has
9 A task order contract is defined as “a contract for services that does not procure or
specify a firm quantity of services (other than a minimum or maximum quantity) and that
provides for the issuance of orders for the performance of tasks during the period of the
contract.” 10 U.S.C. § 2304d(1) (2012). A delivery order contract is defined as “a contract
for property that does not procure or specify a firm quantity of property (other than a
minimum or maximum quantity) and that provides for the issuance of orders for the
delivery of property during the period of the contract.” 10 U.S.C. § 2304d(2).
16
been found in this court, and the Federal Circuit has upheld the finding. See Distrib. Sols.,
Inc. v. United States, 106 Fed. Cl. 1, 11 (2012) aff’d, 500 F. App’x 955 (Fed. Cir. 2013).
Judges on this court have found that FASA’s “limitation on the protest of task or delivery
orders in the Court of Federal Claims. . . does not extend to task orders issued pursuant
to the GSA FSS” under FAR subpart 8.4, 48 C.F.R. § 8.4. See id.; see also Data Mgmt.
Servs. Joint Venture v. United States, 78 Fed. Cl. 366, 371 (2007) (holding that the court’s
“protest jurisdiction extends to protests of task or delivery orders placed against a GSA
schedule contract”); Idea Int’l, Inc. v. United States, 74 Fed. Cl. 129, 135 (2006)
(explaining that 10 U.S.C. § 2304c(d) “is not intended to apply to protests relating to the
placement of orders under GSA Federal Supply Schedule contracts”). In holding that the
Court of Federal Claims has subject matter jurisdiction to hear a bid protest arising from
the issuance, or proposed issuance, of a task or delivery order under a GSA FSS contract,
Judges of this court have relied on the statutory and regulatory history of FASA and the
implementing regulation at FAR subpart 16.5, 48 C.F.R. § 16.5, which applies to indefinite
delivery/indefinite quantity contracts. See, e.g., Idea Int’l, Inc. v. United States, 74 Fed.
Cl. at 135 (stating that the FSS program “existed long before the passage of FASA in
1994, and the language of section 2304a(g) confirms that congress intended for the FSS
program to remain separate and distinct from the new FASA authority”); Data Mgmt.
Servs. Joint Venture v. United States, 78 Fed. Cl. at 371 n.4 (explaining that the contracts
authorized under FASA “are different from GSA schedule contracts. . . even though both
types of contracts utilize task or delivery orders to trigger performance or delivery”). FAR
subpart 16.5 implements the FASA jurisdictional bar:
(10)(i) No protest under subpart 33.1 is authorized in connection with the
issuance or proposed issuance of an order under a task-order contract or
delivery-order contract, except for—
(A) A protest on the grounds that the order increases the scope,
period, or maximum value of the contract; or
(B) A protest of an order valued in excess of $10 million. Protests of
orders in excess of $10 million may only be filed with the Government
Accountability Office, in accordance with the procedures at 33.104.
48 C.F.R. § 16.505(a)(10) (2016). FAR subpart 16.5 “prescribes policies and procedures
for making awards of indefinite-delivery contracts and establishes a preference for making
multiple awards of indefinite-quantity contracts.” 48 C.F.R. § 16.500(a) (2016). The
scope of FAR subpart 16.5, however, specifically and explicitly distinguishes the policies
and procedures set forth therein from FAR subpart 8.4, GSA Federal Supply Schedules.
See 48 C.F.R. § 16.500(c):
Nothing in this subpart restricts the authority of the General Services
Administration (GSA) to enter into schedule, multiple award, or task or
delivery order contacts under any other provision of law. Therefore, GSA
regulations and the coverage for the Federal Supply Schedule program in
subpart 8.4 and part 38 take precedence over this subpart [subpart 16.5].
17
Id.; see also Labat-Anderson Inc. v. United States, 50 Fed. Cl. at 105 (explaining that the
language at FAR subpart 16.5 supports the interpretation that the FASA task and delivery
order protest restriction was not intended to apply to FSS procurements). Furthermore,
the language and history of FASA indicate that “Congress understood the difference
between GSA Schedule contracts and task or delivery order contracts, but the prohibition
on bid protests in 10 U.S.C. § 2304c(d) makes no mention of orders under ‘schedule
contracts.’” Idea Int’l, Inc. v. United States, 74 Fed. Cl. at 135.
The parties do not dispute that the bid protest in the above-captioned case is in
connection with a task order issued against a GSA BPA established under the GSA FSS
874 contract. Both the former and current versions of the RFQ provide that DHA intended
to award a BPA call task order to one of the holders of the GSA PM/CPI BPA, which was
created under the MOBIS Federal Supply Schedule (also known as Schedule 874).
Moreover, the RFQ explains that the task order acquisition is being conducted pursuant
to FAR subpart 8.4, which provides the procedures for ordering against a GSA FSS BPA.
Defendant-intervenor CALIBRE/EY acknowledges in its motion to dismiss that the task
order at issue is being awarded under an existing BPA that was “awarded under the GSA
FSS (specifically, the MOBIS schedule).” In its motion to dismiss, however, defendant-
intervenor CALIBRE/EY attempts to draw the distinction that the task order involved in
the above-captioned protest is connected to an isolated GSA BPA, not a GSA FSS. This
is an artificial distinction, however, because the task order was issued against a GSA FSS
BPA (the GSA PM/CPI BPA, established under GSA FSS 874). In attempting to isolate
the task order at issue from the GSA FSS 874 contract by arguing that “the BPA here is
a task order contract that operates as a standalone umbrella” contract, defendant-
intervenor CALIBRE/EY assigns illusory importance to the fact that the task order is being
awarded against the GSA PM/CPI BPA instead of directly against the GSA FSS, under
which the BPA was established. In fact, FAR subpart 8.405-3 prescribes that only FSS
contractors are even eligible to enter in to a FSS BPA, thus BPAs established under a
GSA FSS are not “standalone umbrella” contracts as defendant-intervenor CALIBRE/EY
contends. See 48 C.F.R. § 8.405-3(a)(1).
Defendant-intervenor CALIBRE/EY also does not acknowledge the clear language
in the RFQ that the task order was to be awarded pursuant to the ordering procedures in
FAR subpart 8.4, which apply to GSA FSS BPA orders, not FAR subpart 16.5. FAR
subpart 8.4, applicable to “Federal Supply Schedules,” authorizes the GSA to establish a
BPA under any schedule contract “to fill repetitive needs for supplies or services.” 48
C.F.R. § 8.405-3(a). FAR subpart 8.405-3(c)(2)(iii) prescribes the process for ordering
from such BPAs:
(iii) Orders exceeding the simplified acquisition threshold.
(A) The ordering activity shall place an order in accordance with
paragraphs (c)(2)(iii)(A)(1), (2) and (3) of this paragraph, unless the
requirement is waived on the basis of a justification that is prepared
and approved in accordance with 8.405–6. The ordering activity
shall—
18
(1) Provide an RFQ to all BPA holders offering the required
supplies or services under the multiple-award BPAs, to
include a description of the supplies to be delivered or the
services to be performed and the basis upon which the
selection will be made;
(2) Afford all BPA holders responding to the RFQ an
opportunity to submit a quote; and
(3) Fairly consider all responses received and make award in
accordance with the selection procedures.
(B) The ordering activity shall document evidence of compliance with
these procedures and the basis for the award decision.
48 C.F.R. § 8.405-3(c)(2)(iii). Defendant-intervenor CALIBRE/EY’s reasoning leads to
the illogical conclusion that, although FASA may not bar this court from exercising
jurisdiction over bid protests connected to a task order issued against a GSA FSS using
FAR subpart 8.4 procedures, FASA should bar this court from exercising jurisdiction over
a bid protest connected to a task order awarded against a GSA FSS BPA using FAR
subpart 8.4 procedures. That a task order is issued using FAR subpart 8.4 procedures
against a BPA established under a GSA FSS, instead of directly against a GSA FSS,
however, does not automatically exclude a bid protest connected to that task order from
this court’s jurisdictional purview.
Defendant-intervenor CALIBRE/EY also argues that the “plain language of FASA,
as broadly interpreted by the Federal Circuit in SRA International, Inc. v. United States,
precludes this Court from exercising jurisdiction over protests made ‘in connection with
the issuance or proposed issuance of a task or delivery order.’” In response, protestor
argues that its protest “arises from an RFQ relating to a task order issued under the
General Services Administration (GSA) Federal Supply Schedule (FSS) for mission-
oriented business integrated services (MOBIS),” and this court “has uniformly exercised
jurisdiction over protests relating to such FSS task orders” despite the FASA provision
that bars this court from exercising jurisdiction over protests related to task or delivery
orders. Protestor contends that the case defendant-intervenor CALIBRE/EY relies upon,
SRA International, Inc. v. United States, “did not concern an [sic] FSS order, made no
mention of FSS contracts, and otherwise did not purport to disturb the settled law that
FSS contracts are exempt from the FASA prohibition of protests.”
In SRA International, Inc. v. United States the Federal Circuit reviewed a bid
protest following the award of a task order under a GSA Government-Wide Acquisition
Contract (GWAC) and considered the application of the FASA bid protest bar to the
issuance of the task order at issue. See SRA Int’l, Inc. v. United States, 766 F.3d at 1409.
The Federal Circuit held that the lower court erred in finding that it had subject matter
jurisdiction to hear the bid protest because FASA “gives the court no room to exercise
jurisdiction over claims made ‘in connection with the issuance or proposed issuance of a
task or delivery order.’” Id. at 1413. Notwithstanding defendant-intervenor CALIBRE/EY’s
assertion that “the Federal Circuit confirmed the breadth of the FASA protest bar” in SRA
International, Inc. v. United States, the Federal Circuit’s decision did not address bid
19
protests arising from task or delivery orders awarded against a GSA Federal Supply
Schedule contract or a GSA FSS BPA, nor did the Federal Circuit discuss the multiple
Court of Federal Claims decisions holding that FASA does not apply to bid protests
associated with GSA FSS contracts. In fact, the Federal Circuit’s decision in SRA
International, Inc. v. United States was in harmony with at least one previous decision
from the Court of Federal Claims finding that FASA barred the court from hearing bid
protests connected to task or delivery orders issued against a GWAC that cited FAR
subpart 16.5 as controlling over any protests of orders issued against it. See Chameleon
Integrated Servs., Inc. v. United States, 111 Fed. Cl. 564, 570 (2013). GWACs are
distinguished in the FAR from GSA FSS contracts. Compare 48 C.F.R. § 8.402(a)
(explaining that the Federal Supply Schedule program is directed and managed by GSA
and provides Federal agencies with a “simplified process for obtaining commercial
supplies and services at prices associated with volume buying”) with, 48 C.F.R. § 16.505
(listing a GWAC as an example of a task or delivery order contract awarded by another
agency and setting forth the procedures for placing orders against a GWAC), and, 48
C.F.R. § 17.501 (2016) (categorizing GWACs as a special contracting method associated
with interagency acquisitions that can be used by agencies other than GSA). While FAR
subpart 8.4 prescribes how orders should be placed against GSA FSS contracts and GSA
FSS BPAs, the procedures for ordering against a GWAC are provided in FAR subpart
16.5. See 48 C.F.R. § 8.405; see also 48 C.F.R. § 16.505(a)(8). A GWAC issued by the
GSA should not be conflated with a GSA FSS contract because the two contracting
vehicles (a GWAC and a GSA FSS) are specifically distinguished in the FAR. Also, the
procedures in FAR subpart 8.4 pertaining to issuing a task or delivery order against a
GSA FSS or a GSA FSS BPA are separate from and inapplicable to issuing a task or
delivery order against a GWAC issued by GSA or any other agency. See 48 C.F.R. §
8.4; see also 48 C.F.R. § 16.505(a)(8). Moreover, before SRA International, Inc. v. United
States, the Federal Circuit had affirmed the decision in Distributed Solutions, Inc. v.
United States, 106 Fed. Cl. 1, 11 (2012), aff’d, 500 F. App’x 955 (Fed. Cir. 2013),
indicating that the Court of Federal Claims has jurisdiction in bid protests of task or
delivery orders issued against GSA FSSs, see id. at 11, and the Federal Circuit did not
address or disturb that decision in SRA International, Inc. v. United States.
As explained above, the RFQ in the above-captioned protest was issued to holders
of the GSA PM/CPI BPA, which was created under the GSA FSS 874 contract (MOBIS
contract). Finding that the Federal Circuit’s decision in SRA International, Inc. v. United
States does not apply to the above-captioned protest, and as found in prior decisions
issued by other Judges on the Court of Federal Claims, see Distrib. Sols., Inc. v. United
States, 106 Fed. Cl. at 11; Data Mgmt. Servs. Joint Venture v. United States, 78 Fed. Cl.
at 371; Idea Int’l, Inc. v. United States, 74 Fed. Cl. at 135, this court finds that it has subject
matter jurisdiction to hear PwC’s bid protest, which is connected to a task order to be
issued against the GSA FSS contract 874 PM/CPI BPA, pursuant to the procedures
prescribed in FAR subpart 8.4.
Request for Injunctive Relief
20
Protestor has moved for a temporary restraining order and/or preliminary injunction
and declaratory relief “seeking an order from this Court enjoining the [DHA] from
proceeding with the re-solicitation, re-evaluation, and re-award of a new order for support
services” under RFQ No. HT0011-15-T-0022. To obtain a temporary restraining order or
preliminary injunction, the protestor must carry the burden of establishing entitlement to
extraordinary relief based on the following factors: (1) likelihood of success on the merits
of the underlying litigation, (2) whether irreparable harm is likely if the injunction is not
granted, (3) the balance of hardships as between the litigants, and (4) factors of the public
interest. See Trebo Mfg., Inc. v. Firefly Equipment, LLC, 748 F.3d 1159, 1165 (Fed. Cir.
2014); see also Abbott Labs. v. Sandoz, Inc., 544 F.3d 1341, 1344 (Fed. Cir. 2008) (citing
Oakley, Inc. v. Sunglass Hut Int'l, 316 F.3d 1331, 1338-39 (Fed. Cir. 2003)), reh'g and
reh'g en banc denied (Fed. Cir. 2009); see also U.S. Ass’n of Imps. of Textiles and
Apparel v. U.S. Dep’t of Commerce, 413 F.3d 1344, 1346 (Fed. Cir. 2005) (citing Zenith
Radio Corp. v. United States, 710 F.2d 806, 809 (Fed. Cir. 1983)); Pharm. Research and
Mfrs. of Am. v. Walsh, 538 U.S. 644, 670 (2003) (requiring a movant for preliminary
injunction to prove that the “probability of success on the merits of its claims . . . the risk
of irreparable harm, the balance of the equities, and the public interest” weigh in the
movant's favor); Somerset Pharms., Inc. v. Dudas, 500 F.3d 1344, 1346 (Fed. Cir. 2007)
(“To establish entitlement to a preliminary injunction a movant must establish a
reasonable likelihood of success on the merits.” (citing Nat'l Steel Car, Ltd. v. Canadian
Pac. Ry., Ltd., 357 F.3d 1319, 1325 (Fed. Cir.), reh’g and reh’g en banc denied (Fed. Cir.
2004))); Seaborn Health Care, Inc. v. United States, 55 Fed. Cl. 520, 523-24 (2003); OAO
Corp. v. United States, 49 Fed. Cl. 478, 480 (2001) (“When deciding if a TRO [temporary
restraining order] is appropriate in a particular case, a court uses the same four-part test
applied to motions for a preliminary injunction.” (quoting W & D Ships Deck Works, Inc.
v. United States, 39 Fed. Cl. 638, 647 (1997))); Dynacs Eng’g Co. v. United States, 48
Fed. Cl. 614, 616 (2001). The standard of proof required for injunctive relief is a
preponderance of the evidence, Textron, Inc. v. United States, 74 Fed. Cl. at 287,
Bannum, Inc. v. United States, 60 Fed. Cl. 718, 723-24 (2004), or, demonstration of a fact
as “more likely than not.” Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 329
(2007) (citing Herman & MacLean v. Huddleston, 459 U.S. 375, 390 (1983)). “No one
factor, taken individually, is necessarily dispositive. . . . [T]he weakness of the showing
regarding one factor may be overborne by the strength of the others. If the injunction is
denied, the absence of an adequate showing with regard to any one factor may be
sufficient, given the weight or lack of it assigned the other factors.” FMC Corp. v. United
States, 3 F.3d 424, 427 (Fed. Cir. 1993); see also Belgium v. United States, 452 F.3d
1289, 1292-93 (Fed. Cir. 2006). A lack of a likelihood of success on the merits precludes
the possibility of an injunction. See CBY Design Builders v. United States, 105 Fed. Cl.
303, 328 (2012).
Regarding protestor’s likelihood of success on the merits of the underlying protest,
in this bid protest, protestor is challenging the agency’s decision to take corrective action
and to amend and resolicit quotes for services to support the transition of the HMS to an
HRO following a GAO decision partially sustaining, on a number of grounds, an earlier,
related bid protest to a BPA call order award to protestor. In its motion for a temporary
restraining order and/or preliminary injunction, protestor alleges
21
(1) DHA’s corrective action is irrational because it is being taken in response
to a GAO decision that, itself, is irrational and contrary to controlling law; (2)
even if the GAO’s decision were correct, which it is not, DHA’s corrective
action is unlawful because it is far broader than is necessary to correct the
GAO’s identified procurement errors, it includes changes to the evaluation
scheme that do not result from any changes in agency needs, it unfairly
favors PwC’s competitors, and it is competitively harmful to PwC whose
quote information has been disclosed to PwC’s competitors; and (3) the
corrective action mandates that certain competitors of PwC be disqualified
due to significant organizational conflicts of interest (OCI[s]).
Protestor’s allegations raise issues regarding DHA’s decision to amend the RFQ
and solicit new proposals. The ADRA provides that protests of agency procurement
decisions are to be reviewed under Administrative Procedure Act (APA) standards,
making applicable the standards outlined in Scanwell Laboratories, Inc. v. Shaffer, 424
F.2d 859 (D.C. Cir. 1970), and the line of cases following that decision. See, e.g.,
Kingdomware Techs., Inc. v. United States, 754 F.3d 923, 930 (Fed. Cir.) (“In reviewing
an agency’s action in a bid protest case, we generally apply the Administrative Procedure
Act’s ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with
law’ or ‘without observance of a procedure required by law’ standard of review.” (citing 5
U.S.C. § 706(2)(A), (D) (2012)), reh’g en banc denied (Fed. Cir. 2014), cert. granted, 83
U.S.L.W. 3654 (U.S. June 22, 2015)); Impresa Construzioni Geom. Domenico Garufi v.
United States, 238 F.3d at 1332)); Res. Conservation Grp., LLC v. United States, 597
F.3d 1238, 1242 (Fed. Cir. 2010) (“Following passage of the APA in 1946, the District of
Columbia Circuit in Scanwell Labs., Inc. v. Shaffer, 424 F.2d 859 (D.C. Cir. 1970), held
that challenges to awards of government contracts were reviewable in federal district
courts pursuant to the judicial review provisions of the APA.”); Galen Med. Assocs., Inc.
v. United States, 369 F.3d 1324, 1329 (Fed. Cir.) (citing Scanwell Labs., Inc. v. Shaffer,
424 F.2d at 864, 868, for its “reasoning that suits challenging the award process are in
the public interest and disappointed bidders are the parties with an incentive to enforce
the law”), reh’g denied (Fed. Cir. 2004); Banknote Corp. of Am., Inc. v. United States, 365
F.3d 1345, 1351 (Fed. Cir. 2004) (“Under the APA standard as applied in the Scanwell
line of cases, and now in ADRA cases, ‘a bid award may be set aside if either (1) the
procurement official’s decision lacked a rational basis; or (2) the procurement procedure
involved a violation of regulation or procedure.’” (quoting Impresa Construzioni Geom.
Domenico Garufi v. United States, 238 F.3d at 1332)); Info. Tech. & Applications Corp. v.
United States, 316 F.3d 1312, 1319 (Fed. Cir.), reh’g and reh’g en banc denied (Fed. Cir.
2003). The United States Court of Appeals for the Federal Circuit has stated that the
Court of Federal Claims’ jurisdiction over “any alleged violation of statute or regulation in
connection with a procurement or a proposed procurement,” 28 U.S.C. § 1491(b)(1),
“provides a broad grant of jurisdiction because ‘[p]rocurement includes all stages of the
process of acquiring property or services, beginning with the process for determining a
need for property or services and ending with contract completion and closeout.’” Sys.
Application & Techs., Inc. v. United States, 691 F.3d 1374, 1381 (Fed. Cir. 2012)
(emphasis in original) (quoting Res. Conservation Grp., LLC v. United States, 597 F.3d
22
at 1244 (quoting 41 U.S.C. § 403(2))); see also Rockies Exp. Pipeline LLC v. Salazar,
730 F.3d 1330, 1336 (Fed. Cir. 2013), reh’g denied (Fed. Cir. 2014); Distrib. Sols., Inc. v.
United States, 539 F.3d 1340, 1346 (Fed. Cir.) (“[T]he phrase, ‘in connection with a
procurement or proposed procurement,’ by definition involves a connection with any stage
of the federal contracting acquisition process, including ‘the process for determining a
need for property or services.’”), reh’g denied (Fed. Cir. 2008); RAMCOR Servs. Grp.,
Inc. v. United States, 185 F.3d 1286, 1289 (Fed. Cir. 1999) (“The operative phrase ‘in
connection with’ is very sweeping in scope.”).
When discussing the appropriate standard of review for bid protest cases, the
United States Court of Appeals for the Federal Circuit addressed subsections (2)(A) and
(2)(D) of 5 U.S.C. § 706, see Impresa Construzioni Geom. Domenico Garufi v. United
States, 238 F.3d at 1332 n.5, but focused its attention primarily on subsection (2)(A). See
Croman Corp. v. United States, 724 F.3d 1357, 1363 (Fed. Cir. 2013) (“‘[T]he proper
standard to be applied [to the merits of] bid protest cases is provided by 5 U.S.C.
§ 706(2)(A) [(2006)]: a reviewing court shall set aside the agency action if it is “arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with law.”’” (quoting
Banknote Corp. of Am. v. United States, 365 F.3d at 1350–51 (citing Advanced Data
Concepts, Inc. v. United States, 216 F.3d 1054, 1057–58 (Fed. Cir.), reh’g denied (Fed.
Cir. 2000)), aff’d, 365 F.3d 1345 (Fed. Cir. 2004))), reh’g and reh’g en banc denied (Fed.
Cir. 2013) (alterations in original). The statute says that agency procurement actions
should be set aside when they are “arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law,” or “without observance of procedure required by
law.” 5 U.S.C. § 706(2)(A), (D) (2012);10 see also Tinton Falls Lodging Realty, LLC v.
10 The language of 5 U.S.C. § 706 provides in full:
To the extent necessary to decision and when presented, the reviewing
court shall decide all relevant questions of law, interpret constitutional and
statutory provisions, and determine the meaning or applicability of the terms
of an agency action. The reviewing court shall—
(1) compel agency action unlawfully withheld or unreasonably
delayed; and
(2) hold unlawful and set aside agency action, findings, and
conclusions found to be—
(A) arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law;
(B) contrary to constitutional right, power, privilege, or
immunity;
(C) in excess of statutory jurisdiction, authority, or limitations,
or short of statutory right;
(D) without observance of procedure required by law;
(E) unsupported by substantial evidence in a case subject to
sections 556 and 557 of this title or otherwise reviewed on
the record of an agency hearing provided by statute; or
23
United States, 800 F.3d 1353, 1358 (Fed. Cir. 2015); Orion Tech., Inc. v. United States,
704 F.3d 1344, 1347 (Fed. Cir. 2013); COMINT Sys. Corp. v. United States, 700 F.3d
1377, 1381 (Fed. Cir. 2012) (“We evaluate agency actions according to the standards set
forth in the Administrative Procedure Act; namely, for whether they are ‘arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with law.’” (quoting 5
U.S.C. § 706(2)(A); Bannum, Inc. v. United States, 404 F.3d at 1351)); Savantage Fin.
Servs. Inc., v. United States, 595 F.3d 1282, 1285–86 (Fed. Cir. 2010); Weeks Marine,
Inc. v. United States, 575 F.3d 1352, 1358 (Fed. Cir. 2009); Axiom Res. Mgmt., Inc. v.
United States, 564 F.3d 1374, 1381 (Fed. Cir. 2009) (noting arbitrary and capricious
standard set forth in 5 U.S.C. § 706(2)(A), and reaffirming the analysis of Impresa
Construzioni Geom. Domenico Garufi v. United States, 238 F.3d at 1332); Blue & Gold
Fleet, L.P. v. United States, 492 F.3d 1308, 1312 (Fed. Cir. 2007) (“‘[T]he inquiry is
whether the [government]’s procurement decision was “arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law.”’” (quoting Bannum, Inc. v. United
States, 404 F.3d at 1351 (quoting 5 U.S.C. § 706(2)(A) (2000)))); NVT Techs., Inc. v.
United States, 370 F.3d 1153, 1159 (Fed. Cir. 2004) (“Bid protest actions are subject to
the standard of review established under section 706 of title 5 of the Administrative
Procedure Act (‘APA’), 28 U.S.C. § 1491(b)(4) (2000), by which an agency’s decision is
to be set aside only if it is ‘arbitrary, capricious, an abuse of discretion, or otherwise not
in accordance with law,’ 5 U.S.C. § 706(2)(A) (2000).”) (internal citations omitted); Info.
Tech. & Applications Corp. v. United States, 316 F.3d at 1319 (“Consequently, our inquiry
is whether the Air Force’s procurement decision was ‘arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law.’ 5 U.S.C. § 706(2)(A) (2000).”); Eco
Tour Adventures, Inc. v. United States, 114 Fed. Cl. at 22; Contracting, Consulting, Eng’g
LLC v. United States, 104 Fed. Cl. 334, 340 (2012). “In a bid protest case, the agency’s
award must be upheld unless it is ‘arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law.’” Turner Constr. Co. v. United States, 645 F.3d
1377, 1383 (Fed. Cir.) (quoting PAI Corp. v. United States, 614 F.3d 1347, 1351 (Fed.
Cir. 2010)), reh’g and reh’g en banc denied (Fed. Cir. 2011); see also Tinton Falls Lodging
Realty, LLC v. United States, 800 F.3d at 1358 (“In applying this [arbitrary and capricious]
standard to bid protests, our task is to determine whether the procurement official's
decision lacked a rational basis or the procurement procedure involved a violation of a
regulation or procedure.”) (citing Savantage Fin. Servs., Inc. v. United States, 595 F.3d
1282, 1285–86 (Fed. Cir. 2010)); Glenn Def. Marine (ASIA), PTE Ltd. v. United States,
720 F.3d 901, 907 (Fed. Cir.), reh’g en banc denied (Fed. Cir. 2013); McVey Co., Inc. v.
United States, 111 Fed. Cl. 387, 402 (2013) (“The first step is to demonstrate error, that
is, to show that the agency acted in an arbitrary and capricious manner, without a rational
basis or contrary to law.”); PlanetSpace, Inc. v. United States, 92 Fed. Cl. 520, 531–32
(F) unwarranted by the facts to the extent that the facts are
subject to trial de novo by the reviewing court.
In making the foregoing determinations, the court shall review the whole
record or those parts of it cited by a party, and due account shall be taken
of the rule of prejudicial error.
5 U.S.C. § 706.
24
(2010) (“Stated another way, a plaintiff must show that the agency’s decision either lacked
a rational basis or was contrary to law.” (citing Weeks Marine, Inc. v. United States, 575
F.3d at 1358)).
The United States Supreme Court has identified sample grounds which can
constitute arbitrary or capricious agency action:
[W]e will not vacate an agency’s decision unless it “has relied on factors
which Congress has not intended it to consider, entirely failed to consider
an important aspect of the problem, offered an explanation for its decision
that runs counter to the evidence before the agency, or is so implausible
that it could not be ascribed to a difference in view or the product of agency
expertise.”
Nat’l Ass’n of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 658 (2007) (quoting
Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)); see
also Tinton Falls Lodging Realty, LLC v. United States, 800 F.3d at 1358; F.C.C. v. Fox
Television Stations, Inc., 556 U.S. 502, 552 (2009); Ala. Aircraft Indus., Inc.-Birmingham
v. United States, 586 F.3d 1372, 1375 (Fed. Cir. 2009), reh’g and reh’g en banc denied
(Fed. Cir. 2010); In re Sang Su Lee, 277 F.3d 1338, 1342 (Fed. Cir. 2002) (“[T]he agency
tribunal must present a full and reasoned explanation of its decision. . . . The reviewing
court is thus enabled to perform meaningful review . . . .”); Textron, Inc. v. United States,
74 Fed. Cl. 277, 285–86 (2006), appeal dismissed sub nom. Textron, Inc. v. Ocean
Technical Servs., Inc., 223 F. App’x 974 (Fed. Cir. 2007). The United States Supreme
Court also has cautioned, however, that “courts are not free to impose upon agencies
specific procedural requirements that have no basis in the APA.” Pension Benefit Guar.
Corp. v. LTV Corp., 496 U.S. 633, 654 (1990). Moreover,
A bid protest proceeds in two steps. First . . . the trial court determines
whether the government acted without rational basis or contrary to law when
evaluating the bids and awarding the contract. Second . . . if the trial court
finds that the government’s conduct fails the APA review under 5 U.S.C.
§ 706(2)(A), then it proceeds to determine, as a factual matter, if the bid
protester was prejudiced by that conduct.
Bannum, Inc. v. United States, 404 F.3d at 1351; FirstLine Transp. Sec., Inc. v. United
States, 119 Fed. Cl. 116, 126 (2014); Eco Tour Adventures, Inc. v. United States, 114
Fed. Cl. at 22; Archura LLC v. United States, 112 Fed. Cl. 487, 496 (2013).
Under an arbitrary or capricious standard, the reviewing court should not substitute
its 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. See Motor
Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. at 43 (“The scope of
review under the ‘arbitrary and capricious’ standard is narrow and a court is not to
substitute its judgment for that of the agency.”); see also Turner Constr. Co., Inc. v. United
States, 645 F.3d at 1383; R & W Flammann GmbH v. United States, 339 F.3d 1320, 1322
25
(Fed. Cir. 2003) (citing Ray v. Lehman, 55 F.3d 606, 608 (Fed. Cir.), cert. denied, 516
U.S. 916 (1995)). “‘“If the court finds a reasonable basis for the agency’s action, the court
should stay its hand even though it might, as an original proposition, have reached a
different conclusion as to the proper administration and application of the procurement
regulations.”’” Weeks Marine, Inc. v. United States, 575 F.3d at 1371 (quoting Honeywell,
Inc. v. United States, 870 F.2d 644, 648 (Fed. Cir. 1989) (quoting M. Steinthal & Co. v.
Seamans, 455 F.2d 1289, 1301 (D.C. Cir. 1971))); Jordan Pond Co., LLC v. United
States, 115 Fed. Cl. 623, 631 (2014); Davis Boat Works, Inc. v. United States, 111 Fed.
Cl. 342, 349 (2013); Norsat Int’l [America], Inc. v. United States, 111 Fed. Cl. 483, 493
(2013); HP Enter. Servs., LLC v. United States, 104 Fed. Cl. 230, 238 (2012); Vanguard
Recovery Assistance v. United States, 101 Fed. Cl. 765, 780 (2011).
Stated otherwise by the United States Supreme Court:
Section 706(2)(A) requires a finding that the actual choice made was not
“arbitrary, capricious, an abuse of discretion, or otherwise not in accordance
with law.” To make this finding the court must consider whether the decision
was based on a consideration of the relevant factors and whether there has
been a clear error of judgment. Although this inquiry into the facts is to be
searching and careful, the ultimate standard of review is a narrow one. The
court is not empowered to substitute its judgment for that of the agency.
Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971), abrogated on
other grounds by Califano v. Sanders, 430 U.S. 99 (1977) (internal citations omitted); see
also U.S. Postal Serv. v. Gregory, 534 U.S. 1, 6–7 (2001); Bowman Transp., Inc. v.
Arkansas-Best Freight Sys., Inc., 419 U.S. 281, 285 (1974), reh’g denied, 420 U.S. 956
(1975); Co-Steel Raritan, Inc. v. Int’l Trade Comm’n, 357 F.3d 1294, 1309 (Fed. Cir. 2004)
(In discussing the “arbitrary, capricious, and abuse of discretion, or otherwise not in
accordance with the law” standard, the Federal Circuit stated: “the ultimate standard of
review is a narrow one. The court is not empowered to substitute its judgment for that of
the agency.”); In re Sang Su Lee, 277 F.3d at 1342; Advanced Data Concepts, Inc. v.
United States, 216 F.3d at 1058 (“The arbitrary and capricious standard applicable here
is highly deferential. This standard requires a reviewing court to sustain an agency action
evincing rational reasoning and consideration of relevant factors.” (citing Bowman
Transp., Inc. v. Arkansas-Best Freight Sys., Inc., 419 U.S. at 285)); Lockheed Missiles &
Space Co. v. Bentsen, 4 F.3d 955, 959 (Fed. Cir. 1993); BCPeabody Constr. Servs., Inc.
v. United States, 112 Fed. Cl. 502, 508 (2013) (“The court ‘is not empowered to substitute
its judgment for that of the agency,’ and it must uphold an agency’s decision against a
challenge if the ‘contracting agency provided a coherent and reasonable explanation of
its exercise of discretion.’” (quoting Keeton Corrs., Inc. v. United States, 59 Fed. Cl. 753,
755, recons. denied, 60 Fed. Cl. 251 (2004), and Axiom Res. Mgmt., Inc. v. United States,
564 F.3d at 1381)), appeal withdrawn, 559 F. App’x 1033 (Fed. Cir. 2014) (internal
citations omitted); Supreme Foodservice GmbH v. United States, 109 Fed. Cl. 369, 382
(2013); Alamo Travel Grp., LP v. United States, 108 Fed. Cl. 224, 231 (2012); ManTech
Telecomms. & Info. Sys. Corp. v. United States, 49 Fed. Cl. 57, 63 (2001), aff’d, 30 F.
App’x 995 (Fed. Cir. 2002); Ellsworth Assocs., Inc. v. United States, 45 Fed. Cl. 388, 392
26
(1999) (“Courts must give great deference to agency procurement decisions and will not
lightly overturn them.” (citing Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 743–44
(1985))), appeal dismissed, 6 F. App’x 867 (Fed. Cir. 2001), and superseded by regulation
as recognized in MVS USA, Inc. v. United States, 111 Fed. Cl. 639 (2013).
According to the United States Court of Appeals for the Federal Circuit:
Effective contracting demands broad discretion. Burroughs Corp. v. United
States, 223 Ct. Cl. 53, 617 F.2d 590, 598 (1980); Sperry Flight Sys. Div. v.
United States, 548 F.2d 915, 921, 212 Ct. Cl. 329 (1977); see NKF Eng’g,
Inc. v. United States, 805 F.2d 372, 377 (Fed. Cir. 1986); Tidewater
Management Servs., Inc. v. United States, 573 F.2d 65, 73, 216 Ct. Cl. 69
(1978); RADVA Corp. v. United States, 17 Cl. Ct. 812, 819 (1989), aff’d, 914
F.2d 271 (Fed. Cir. 1990). Accordingly, agencies “are entrusted with a good
deal of discretion in determining which bid is the most advantageous to the
Government.” Tidewater Management Servs., 573 F.2d at 73, 216 Ct. Cl.
69.
Lockheed Missiles & Space Co. v. Bentsen, 4 F.3d at 958–59; see also Res-Care, Inc. v.
United States, 735 F.3d 1384, 1390 (Fed. Cir.) (“DOL [Department of Labor], as a federal
procurement entity, has ‘broad discretion to determine what particular method of
procurement will be in the best interests of the United States in a particular situation.’”
(quoting Tyler Const. Grp. v. United States, 570 F.3d 1329, 1334 (Fed. Cir. 2009))), reh’g
en banc denied (Fed. Cir. 2014); Grumman Data Sys. Corp. v. Dalton, 88 F.3d 990, 995
(Fed. Cir. 1996); Kingdomware Techs., Inc. v. United States, 107 Fed. Cl. 226, 231 (2012)
(“‘Federal procurement entities have “broad discretion to determine what particular
method of procurement will be in the best interests of the United States in a particular
situation.”’” (quoting K-Lak Corp. v. United States, 98 Fed. Cl. 1, 8 (2011) (quoting Tyler
Const. Grp. v. United States, 570 F.3d at 1334))), aff’d, 754 F.3d 923 (Fed. Cir.), reh’g en
banc denied (Fed. Cir. 2014), cert. granted, 83 U.S.L.W. 3654 (U.S. June 22, 2015);
Cybertech Grp., Inc. v. United States, 48 Fed. Cl. 638, 646 (2001) (“The court recognizes
that the agency possesses wide discretion in the application of procurement
regulations.”); JWK Int’l Corp. v. United States, 49 Fed. Cl. 371, 388 (2001), aff’d, 279
F.3d 985 (Fed. Cir.), reh’g denied (Fed. Cir. 2002). Furthermore, according to the Federal
Circuit:
Contracting officers “are entitled to exercise discretion upon a broad range
of issues confronting them in the procurement process.” Impresa
Construzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324,
1332 (Fed. Cir. 2001) (internal quotation marks omitted). Accordingly,
procurement decisions are subject to a “highly deferential rational basis
review.” CHE Consulting, Inc. v. United States, 552 F.3d 1351, 1354 (Fed.
Cir. 2008) (internal quotation marks omitted).
PAI Corp. v. United States, 614 F.3d at 1351; see also Weeks Marine, Inc. v. United
States, 575 F.3d at 1368–69 (“We have stated that procurement decisions ‘invoke[ ]
27
“highly deferential” rational basis review.’ Under that standard, we sustain an agency
action ‘evincing rational reasoning and consideration of relevant factors.’” (quoting CHE
Consulting, Inc. v. United States, 552 F.3d at 1354 (quoting Advanced Data Concepts,
Inc. v. United States, 216 F.3d at 1058))); Cohen Fin. Servs., Inc. v. United States, 112
Fed. Cl. 153, 162 (2013); McVey Co., Inc. v. United States, 111 Fed. Cl. at 402.
A protestor has the burden of demonstrating the arbitrary and capricious nature of
the agency decision by a preponderance of the evidence. See Grumman Data Sys. Corp.
v. Dalton, 88 F.3d at 995–96; Davis Boat Works, Inc. v. United States, 111 Fed. Cl. at
349; Contracting, Consulting, Eng’g LLC v. United States, 104 Fed. Cl. at 340. The
Federal Circuit has indicated that “[t]his court will not overturn a contracting officer’s
determination unless it is arbitrary, capricious, or otherwise contrary to law. To
demonstrate that such a determination is arbitrary or capricious, a protester must identify
‘hard facts’; a mere inference or suspicion . . . is not enough.” PAI Corp. v. United States,
614 F.3d at 1352 (citing John C. Grimberg Co. v. United States, 185 F.3d 1297, 1300
(Fed. Cir. 1999)); see also Turner Constr. Co., Inc. v. United States, 645 F.3d at 1387;
Sierra Nevada Corp. v. United States, 107 Fed. Cl. 735, 759 (2012); Filtration Dev. Co.,
LLC v. United States, 60 Fed. Cl. 371, 380 (2004).
When a bid protest at this court challenges an agency’s corrective action decision,
the court’s review is narrowly circumscribed, and this court should only set aside an
agency’s action that is “‘arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law.’” Chapman Law Firm Co. v. Greenleaf Const. Co., 490 F.3d at 938
(quoting Advanced Data Concepts, Inc. v. United States, 216 F.3d at 1057. When the
agency’s corrective action decision was based, at least in part, on a GAO decision and
recommendation, this court also considers whether the GAO decision was rational or not.
See Centech Grp., Inc. v. United States, 554 F.3d 1029 (Fed. Cir. 2009); see also
Honeywell, Inc. v. United States, 870 F.2d at 647 (explaining that Congress contemplated
and intended that procurement agencies normally would follow the GAO’s
recommendation). Generally, an agency’s decision to take corrective action in order to
implement a GAO recommendation is proper unless the GAO decision itself is irrational.
See Raytheon Co. v. United States, 809 F.3d 590, 595-96 (Fed. Cir. 2015); see also
Centech Grp., Inc. v. United States, 554 F.3d at 1039. “[A] procurement agency’s decision
to follow the Controller General’s recommendation, even though that recommendation
differed from the contracting officer’s initial decision, was proper unless the Comptroller
General’s decision itself was irrational.” Honeywell, Inc. v. United States, 870 F.2d at 647.
The Federal Circuit has indicated that where a GAO recommendation is based on more
than one ground, finding one of the grounds to be rational may be sufficient to find the
GAO decision was rational. See Raytheon Co. v. United States, 809 F.3d at 595-96. In
the above-captioned protest, the protestor alleges that the GAO’s recommendation was
irrational, and, as such, “the agency’s corrective action in response is irrational and should
be enjoined.” In determining protestor’s likelihood of success on the merits on the
underlying bid protest, the court considers whether the protestor is likely to succeed in
proving that the agency’s decision to take corrective action lacked a rational basis or
involved a violation of a regulation or procedure so as to render the agency’s decision
28
arbitrary and capricious. See Savantage Fin. Servs., Inc. v. United States, 595 F.3d
1285–86.
As explained above, the GAO decision that preceded the above-captioned bid
protest found four grounds to sustain the earlier, related protest filed at the GAO. See
generally Deloitte Consulting, LLP; Booz Allen Hamilton, Inc.; CALIBRE Sys. Inc., B-
411884.6, 2015 WL 9701026. In its motion for a temporary restraining order and/or a
preliminary injunction, protestor argues that is it “likely to succeed on the merits because
GAO erred in sustaining the protest.” Protestor argues that each of the grounds of the
GAO’s decision was irrational and that the “GAO deviated from the law applicable to FAR
Part 8 procurements by evaluating the protest issues using FAR Part 15 principles and
cases, and by disregarding the stated selection criteria as it applied to the evaluation of
labor mix.” Protestor also alleges that the GAO “erred in disregarding controlling law
regarding an offeror’s ability to rely on the corporate experience of its parent company,”
and also erred in “its evaluation of a data rights assumption” by “disregarding the agency’s
reasoned view that the assumption was immaterial because, to the extent there was any
deviation, the order of precedence clause” in the GSA FSS BPA “‘trumped’ the
assumption and rendered it meaningless.” Additionally, protestor alleges that the GAO
“erred by finding that unequal treatment existed by citing non-prejudicial comparisons of
two of the lowest rated vendors to PwC, who did not have a substantial chance for award
even if their protests were sustained.”
With regard to the first enumerated basis, that DHA unreasonably evaluated PwC’s
proposal under the corporate experience factor, it is not clear that the GAO was correct
when it concluded that DHA did not reasonably explain why it credited PwC Public Sector
with the experience of its parent entity, PwC US, because “PwC’s quotation did not
specifically explain or differentiate throughout its quotation as to whether particular
resources or experiences related to PwC Public Sector as opposed to PwC US.” See
Deloitte Consulting, LLP; Booz Allen Hamilton, Inc.; CALIBRE Sys. Inc., B-411884.6,
2015 WL 9701026, at *5. Protestor argues that “there should be no doubt that PwC was
utilizing the resources of its parent” because the task order was being issued against a
GSA FSS contract that had previously been novated from the parent entity, PwC US, to
PwC Public Sector. Protestor argues that the “transfer of resources and assets from the
parent to PwC is the bedrock of a novation, which is why these resources [of PwC US]
were appropriated evaluated by DHA.” Protestor also asserts that there were “references
in PwC’s quote to reliance on the parent’s resources” sufficiently “demonstrating reliance
on the resources of [PwC’s] parent company.” This court previously has held that an
agency “may” attribute the experience or past performance of a parent or affiliated
company, if the offeror merely, in the proposal or otherwise, demonstrates that the
resources of the parent or affiliated company will affect, or play a role in, the performance
of the offeror. See Femme Comp. Inc. v. United States, 83 Fed. Cl. 704, 747 (2008); see
also Linc Gov’t Servs., LLC v. United States, 96 Fed. Cl. 672, 722 (2010). “[A] contracting
officer has discretion to take offerors at their word that the resources of their affiliates will
be made available.” ARKRAY USA, Inc. v. United States, 118 Fed. Cl. 129, 136 (2014).
29
In both Volume I, “Technical Approach,” and Volume II, “Management Approach,”
PwC stated that: “PwC Public Sector . . . receives substantial support from its parent. For
the purposes of the proposal, we will refer to PwC as inclusive of PwC US and PwC Public
Sector.” PwC made several other references to its parent entity throughout its proposal,
including in Volume II, “Management Approach”: “PwC is a part of the global PwC network
of firms, and we will use the firm’s full capabilities, as well as the capabilities of our
teaming partners, to address DHA’s requirements for flexibility and adaptability.” In
addition, the RFQ did not direct offerors to discuss at length or in detail each and every
way their affiliates may be involved in contract performance. The TEB stated in the
technical evaluation report that PwC “provided clear evidence of superior, current, and
relevant corporate experience.” The technical evaluation report noted that “PWC has a
very robust in-house corporate capability” and “[t]heir array of corporate and partner
capabilities . . . are a superior offering of capabilities that align perfectly with the PWS
requirements.”
Although the GAO found that “the awardee’s quotation did not specifically explain
how PwC Public Sector would work with PwC US during the performance of the contract
in a way that demonstrated that the experience of the latter should be credited to the
former,” the agency could, and did, consider the experience of PwC’s parent entity based
on the assertion of PwC in its quotation that the resources of the parent would affect the
performance of the offeror and that PwC Public Sector “receives substantial support from
its parent.” See Deloitte Consulting, LLP; Booz Allen Hamilton, Inc.; CALIBRE Sys. Inc.,
B-411884.6, 2015 WL 9701026, at *5. This court concludes that GAO may well have
been in error regarding this ground for sustaining the protest. Even if the conclusion of
the GAO on the role of PwC’s parent company is incorrect, however, it is not the only
grounds on which the GAO sustained the earlier protest brought before it, which led to
DHA taking corrective action and issuing a revised RFQ also based on changed
requirements.
In addition, protestor alleges that the GAO erred in concluding that PwC deviated
from the data rights term when the agency reasonably found the term to be immaterial
and the BPA’s order of precedence clause rendered the deviation ineffective. Defendant-
intervenors, and now defendant as well, argue that the GAO rationally determined that
PwC’s proposal took exception to the RFQ’s data rights term, which rendered the
proposal unacceptable, although defendant had previously accepted PwC’s quotation
with the data rights exceptions and awarded the original task order contract to PwC.
The RFQ issued on May 29, 2015 included the following data rights term:
1.6.16. Data Rights: The Government has unlimited rights to all
documents/material produced under this contract. All documents and
materials, to include the source codes of any software, produced under this
contract shall be Government owned and are the property of the
Government with all rights and privileges of ownership/copyright belonging
exclusively to the Government. These documents and materials may not be
used or sold by the contractor without written permission from the
30
Contracting Officer. All materials supplied to the Government shall be the
sole property of the Government and may not be used for any other
purpose. This right does not abrogate any other Government rights.
(emphasis in original). In its proposal to DHA, protestor submitted an offer that
definitively attempted to limit the government’s rights in the data and deliverables
produced during contract performance:
[Redacted.] Unless required by the Act, neither the contract deliverables nor
their content may be distributed to, discussed with, or otherwise disclosed
to any Third Party without PwC’s prior written consent. [Redacted.]
In contravention to the data rights term in the RFQ, that all of the rights to the data and
deliverables produced during contract performance would be owned exclusively by the
government, the PwC data rights term in its proposal took clear exception to the RFQ
clause.
The Federal Circuit has stated that “‘a proposal that fails to conform to the material
terms and conditions of the solicitation should be considered unacceptable and a contract
award based on such an unacceptable proposal violates the procurement statutes and
regulations.’” Allied Tech. Grp., Inc. v. United States, 649 F.3d 1320, 1329 (Fed. Cir.
2011) (quoting E.W. Bliss Co. v. United States, 77 F.3d 445, 448 (Fed. Cir. 1996)); see
also Centech Grp., Inc. v. United States, 554 F.3d at 1039 (holding that a proposal that
did not offer to provide what the RFP requests was not responsive to the RFP). “‘A
solicitation term is material where it has more than a negligible impact on the price,
quantity, quality, or delivery of the subject of the [proposal].’” Transatlantic Lines, LLC v.
United States, 122 Fed. Cl. 624, 632 (2015) (quoting Blackwater Lodge & Training Ctr.,
Inc. v. United States, 86 Fed. Cl. 488, 505 (2009)) (brackets in original). “Waiver of a
mandatory requirement of the solicitation for the benefit of only one offeror invalidates a
procurement decision.” L-3 Commc’ns EO Tech., Inc. v. United States, 83 Fed. Cl. 643,
653 (2008). But, “[w]here a defect in a bid is trivial or a mere formality, not material, the
bid is not required to be rejected out of hand.” M.W. Kellogg Co./Siciliana Appalti
Costruzioni S.p.A. v. United States, 10 Cl. Ct. 17, 26 (1986); see also E.W. Bliss Co. v.
United States, 77 F.3d at 449.
The administrative record in the current protest indicates that PwC’s proposal did
not offer to provide the government with exclusive ownership of the data and deliverables
produced during contract performance, as required by the RFQ. The language in the RFQ
was crystal clear that the government would have “unlimited rights to all
documents/materials produced under [the] contract,” that all such documents “shall be
Government owned and are the property of the Government with all rights and privileges
of ownership/copyright belonging exclusively to the Government,” and that the documents
and material “may not be used or sold by the contractor without written permission from
the contracting officer.” Contrary to PwC’s language in its quote, the RFQ did not provide
that DHA would have to seek PwC’s permission before distributing the contract
deliverables to a third party. In arguing that the GAO decision was not rational, protestor
31
relies on the agency’s assertion in its memorandum of law submitted to the GAO to defend
against the GAO protest that the data rights term was not material and “that nothing in
the RFQ even hinted that the order to PwC was heavily dependent on data rights. In
finding that the term was material, however, the GAO did not accept DHA’s post-hoc
position before the GAO11 that the term was not material, but, instead, looked at the RFQ
and found that the data rights term was a “clearly-stated requirement.” Deloitte
Consulting, LLP; Booz Allen Hamilton, Inc.; CALIBRE Sys. Inc., B-411884.6, 2015 WL
9701026, at *7. Pointing to its prior decisions, the GAO explained that “clearly stated
solicitation requirements are considered material to the needs of the government, and a
quotation that fails to conform to material terms and conditions of the solicitation is
unacceptable and cannot form the basis for award.” Id. Because data rights and
deliverables are generally considered valuable, especially if the contract is well
performed, and the retention or transfer of data rights could have more than a negligible
impact on the contract price, it was not unreasonable for the GAO to conclude that the
data rights term was material. After finding that PwC was not responsive to the RFQ
when it tried to limit the government’s “unlimited” data rights, which GAO read as a
material requirement of the RFQ, and that the agency’s evaluation and selection was
flawed because DHA had accepted PwC’s proposal with the data rights limitation, the
GAO recommended that “[t]o the extent DHA believes that the data rights clause is not
material, the agency should amend the RFQ, and request revised quotations.” Id. at *15.
11In its decision, the GAO noted that “nothing in the contemporaneous record shows that
the agency viewed [the data rights] clause as non-material, or otherwise demonstrates
that the agency considers taking exception to the clause to be non-material.” Deloitte
Consulting, LLP; Booz Allen Hamilton, Inc.; CALIBRE Sys. Inc., B-411884.6, 2015 WL
9701026, at *7. Nor does this court have to accept the post-hoc position of the agency
regarding what occurred at the agency prior to the contract award. As recently noted by
another Judge of this court,
the court is not inclined to credit the contracting officer's representations to
the GAO, as they constitute post hoc rationalizations for the ATA's earlier
decision. See CRAssociates, Inc. v. United States, 95 Fed. Cl. 357, 377
(2010) (remarking that there is no legal authority that “requires the court to
give” a contracting officer's statement of facts submitted during a GAO bid
protest “any independent, let alone dispositive, weight”); Al Ghanim
Combined Grp. Co. Gen. Trad. & Cont. W.L.L. v. United States, 56 Fed. Cl.
502, 508 (2003) (“The Supreme Court has made clear that post hoc
rationalizations offered by the agency should be afforded limited importance
in the court's analysis.” (citing Citizens to Preserve Overton Park, 401 U.S.
at 419, 91 S. Ct. 814)); Cubic Applications, Inc. v. United States, 37 Fed.
Cl. 339, 343–44 (1997) (noting that the court had “a choice about the degree
of relevance to assign to” postdecisional documents included in an
administrative record).
FFL Pro LLC v. United States, 124 Fed. Cl. 536, 556 n. 17 (2015).
32
Protestor also argues that the GAO’s decision was not rational because it
disregarded that the BPA, against which the task order was to be issued, contained a
data rights term that complied with the RFQ and an order of precedence clause that
rendered the data rights term in PwC’s offer ineffective. The protestor states, “the data
rights assumption in PwC’s quote was clearly and unambiguously negated by the order
of precedence clause in the BPA.” In its decision, the GAO explained that this argument
“fails because if a vendor takes exception to a material solicitation requirement, the
agency may not merely ignore the exception by including the same solicitation
requirement [that was included in the BPA] in the resulting contract.” Id. at *8. In its
opposition to protestor’s motion, defendant asserts that protestor’s arguments “fail to
address whether DHA violated procurement law and regulations in making the award to
PwC.” Defendant argues that “PwC’s argument regarding the BPA terms attempts to
defeat” the principle that “[a] proposal or quote that does not conform to the material
requirements of the solicitation is unacceptable” by focusing on how the task order should
be construed in the event of a future dispute between PwC and DHA with regard to data
rights. Defendant argues that how a future dispute between PwC and DHA would be
resolved is a different issue than “whether PwC offered to provide the exact thing that the
RFQ stated.” This court concludes that the GAO’s decision rationally focused on the intent
and acceptability of PwC’s proposal and not on a term in the BPA that would be applicable
in a future dispute about the government’s data rights. As defendant argued, at issue is
whether PwC’s proposal conformed to the material requirements of the RFQ and not
whether the order of precedence clause in the BPA could “negate” PwC’s exception to
the data rights term. A reasonable interpretation of the data rights clause in the RFQ
supports the rationality of the GAO’s conclusion that the data rights clause in the RFQ
was a material term. Regardless of the results of possible future disputes or litigation, the
GAO properly determined that acceptance of PwC’s quote in the face of PwC’s effort to
limit the data rights clause was a legitimate ground to sustain the protest. Accordingly,
protestor is not likely to succeed in this protest in demonstrating that the GAO irrationally
found that PwC’s proposal had taken exception to a material term of the RFQ, and, as a
result, was technically unacceptable.
Protestor also argues that the GAO should have dismissed or denied the data
rights term protest ground because the vendor who raised it at the GAO protest, Deloitte,
“was not prejudiced by the agency’s evaluation of the data rights clause,” and, as a result,
Deloitte’s protest should have been dismissed without reviewing the merits. Protestor
asserts that “[u]nder GAO’s well-settled law, protestors who are not next in line for award
are not interested parties to pursue their protest.” Protestor also argues that “[h]ad GAO
properly applied its well-settled law, GAO should have dismissed Deloitte’s protest for
lack of interested party status and not even considered the merits.” In its decision, the
GAO explained that it found no “reason to conclude that the agency’s failure to address
this area [the data rights term] in the evaluation was not a prejudicial error.” Id. at *8 n.8.
The GAO decided that “because we find that certain areas of the agency’s evaluation
were not reasonable, and because the record does not show how a proper evaluation
would have affected the ranking of the vendors’ proposals, we conclude that the
protesters were prejudiced by the agency’s evaluation.” Id. at *15.
33
In this court, defendant-intervenor Deloitte argues that “[w]here, as here, an
agency relaxes a solicitation requirement without amending the RFQ, it is appropriate for
GAO to sustain a protest based on ‘possible prejudice,’ such as where the protester
might have altered its quotation in response to the relaxed requirement.” (citing CAN
Industrial Eng’g, Inc., B-271034 at *3 (Comp. Gen. June 7, 1996)) (emphasis in original).
Similarly, defendant-intervenor CALIBRE/EY argues that “[u]nder the precedent of the
GAO and this Court, Deloitte, and all offerors, were prejudiced by the inability to compete
against PwC on equal footing.” Defendant-intervenor Deloitte also argues that whether
the GAO found that Deloitte was prejudiced is “irrelevant to the Court’s inquiry here [at
the Court of Federal Claims].” Defendant-intervenor Deloitte points out that at least two
Judges on this court have “previously held that [they] will not consider arguments
regarding prejudice before GAO.” It is correct that in Navarro Research & Engineering
Inc. v. United States, 106 Fed. Cl. 386, 417 (2012), and Jacobs Technology Inc. v. United
States, 100 Fed. Cl. 186, 197 (2011), Judges of this court have held that whether the
GAO properly found a protestor to be prejudiced is irrelevant to the rationality of the
GAO’s decision to sustain a protest. As stated in Jacobs Technology Inc. v. United
States, “[a]lthough prejudice is essential to a decision to sustain a bid protest, it has no
bearing on GAO’s determination of whether the agency violated a procurement statute or
regulation, and the resulting recommendation.” Jacobs Tech. Inc. v. United States, 100
Fed. Cl. at 197; see also Navarro Research & Eng’g, Inc. v. United States, 106 Fed. Cl.
at 417 ([A]rguments based on whether the protestors were prejudiced by [agency’s]
alleged procurement errors are irrelevant to the rationality of GAO’s decision to sustain
[a protest].”) (alterations added). Accepting this line of cases, this court finds that the
GAO’s decision rationally explains that because the agency’s evaluation contained
defects, including the evaluation of PwC’s data rights term and the additional errors
discussed below, it could not be certain that the offerors’ rankings would have been the
same if the errors had not occurred, including Deloitte’s designation as the lowest-ranked
offeror. The GAO reasoned that had DHA not relaxed the solicitation requirements,
Deloitte might have been in a different position. See Deloitte Consulting, LLP; Booz Allen
Hamilton, Inc.; CALIBRE Sys. Inc., B-411884.6, 2015 WL 9701026, at *15. Accordingly,
the GAO reasonably concluded that it could not determine Deloitte was not prejudiced,
and, because GAO lacked a reliable method to ascertain how the offerors would have
compared to each other had the agency not committed errors in the procurement, the
GAO reasonably found that the protesters were prejudiced by the agency’s evaluation
and considered the merits of the protests grounds they advanced.
The GAO also determined that DHA’s evaluation of PwC’s proposed labor mix was
unreasonable because, in determining whether PwC’s proposed labor mix was
appropriate, the administrative record indicated that DHA focused “exclusively” and
“solely” on key personnel labor categories and did not consider PwC’s entire labor mix.
The RFQ explained that the “contracting officer will award a BPA call to the contractor
submitting the highest rated quote proposing an appropriate mix of labor for the required
level of effort at a fair and reasonable price.” Additionally, the RFQ explained that DHA
was “seeking the best level of effort and labor mix” that the offerors deemed necessary
to accomplish the objectives contained in the PWS. The RFQ included sample, but not
34
mandatory, labor categories for offerors to include in their proposed labor mixes, which
included categories for key and non-key personnel. The RFQ also listed the key
personnel, which included, program manager, organizational development subject matter
expert, deputy program manager for business process reengineering, primary and
specialty care subject matter expert, patient safety and healthcare quality subject matter
expert, and a deputy program manager for analytics. As part of the evaluation of the
offerors’ proposed management approach, offerors were to be evaluated on their
approach to key personnel and staffing.
In this court, protestor alleges that the GAO’s determination was irrational because
it imposed unwarranted, heightened documentation requirements and “ignored evidence
in the record reflecting that the evaluation was consistent with the RFQ.” Protestor argues
that only minimal documentation was required because the procurement was conducted
pursuant to FAR subpart 8, which provides only that the “ordering activity shall document
evidence of compliance” with the procedures in FAR subpart 8.405(c) and “the basis for
the award decision.” 48 C.F.R. § 8.405-3(c)(iii)(B). Protestor also states that “GAO
disregarded that this procurement was an FSS buy with limited documentation
requirements and erroneously imposed heightened documentation requirements” on the
procurement.
The applicable regulation here, FAR subpart 8.405-3, instructs that, when an
agency is placing an order against a BPA established under a GSA FSS, the agency shall
“[f]airly consider all responses received and make award in accordance with the selection
procedures.” 48 C.F.R. § 8.405-3(c)(iii)(A)(3). The FAR also states that the “ordering
activity shall document . . . the basis for the award decision.” 48 C.F.R. § 8.405-
3(c)(iii)(B). “[O]ne reason for overturning an agency award decision is that the agency’s
evaluation of proposals was done in a manner inconsistent with the evaluation criteria
discussed in a solicitation.” HWA, Inc. v. United States, 78 Fed. Cl. 685, 704 (2007). The
GAO will “examine the record to ensure that the evaluation was reasonable, in
accordance with stated evaluation criteria, and not in violation of procurement laws and
regulations.” United Enter. & Assocs. v. United States, 70 Fed. Cl. 1, 26 (2006) (quoting
PEMCO World Air Servs., B-284240.3, B-284240.4, B-284240.5, 2000 WL 546803, at *9
(Comp. Gen. Mar. 27, 2000)). While agencies have broad discretion when evaluating
bids, “the agency’s technical evaluation must be consistent with the factors and
procedures outlined in the solicitation.” Lab. Corp. of Am. Holdings v. United States, 116
Fed. Cl. 643, 650 (2014). FAR subpart 8.4 provides for streamlined and minimal
documentation, however, “[a]n agency must articulate a satisfactory explanation for an
action to permit effective judicial review.” Lab. Corp. of Am. Holdings v. United States,
116 Fed. Cl. at 653. “Specifically, the agency must articulate the reasons for its
procurement decision including a rational connection between the facts found and the
choice made.” Id.; see also Distrib. Sols., Inc. v. United States, 106 Fed. Cl. 368, 377
(2012). Citing previous Comptroller General decisions that involved procurements
pursuant to FAR subpart 8.4, the GAO explained in its decision that when “an agency
issues an RFQ to FSS contractors under FAR subpart 8.4 and conducts a competition,
we will review the record to ensure that the agency’s evaluation is reasonable and
consistent with the terms of the solicitation.” Deloitte Consulting, LLP; Booz Allen
35
Hamilton, Inc.; CALIBRE Sys. Inc., B-411884.6, 2015 WL 9701026, at *4 (citing GC
Servs. Ltd. P’ship, B-298102 (Comp. Gen. June 14, 2006); RVJ Int’l, Inc., B-292161
(Comp. Gen. July 2, 2003)).
As noted above, protestor alleges that the GAO’s decision on the issue of PwC’s
proposed labor mix was irrational because it inappropriately imposed heightened
documentation requirements, that the GAO “ignored that FAR Part 8 competitions require
minimal documentation,” and that the documentation requirements for FAR subpart 8
procurements are less stringent than FAR subpart 15 procurements. This argument is
based on the language in FAR subpart 8.405-3, which requires that the agency document
the basis for the award decision. See 48 C.F.R. § 8.405-3(c)(iii)(B).
The GAO’s decision regarding DHA’s evaluation of PwC’s proposed labor mix,
however, did not rest on the failure to document in accordance with the FAR. See Deloitte
Consulting, LLP; Booz Allen Hamilton, Inc.; CALIBRE Sys. Inc., B-411884.6, 2015 WL
9701026, at *10. Instead, the GAO decision addressed the requirement that the agency
must make award “in accordance with the selection procedures.” 48 C.F.R. § 8.405-
3(c)(iii)(A)(3); see also Deloitte Consulting, LLP; Booz Allen Hamilton, Inc.; CALIBRE Sys.
Inc., B-411884.6, 2015 WL 9701026, at *10. Of note, the record before the court
demonstrates that the RFQ selection procedures required DHA to consider whether the
offerors had proposed appropriate labor mixes, therefore, the issue is whether DHA
followed the evaluation requirements in the RFQ. According to the RFQ, quotes “were to
be rated from highest to lowest based upon technical approach to include corporate
experience and corporate capability, and management approach to include program
management and key personnel and staffing.” The RFQ also stated: “The contracting
officer will award a BPA call to the contractor submitting the highest rated quote proposing
an appropriate mix of labor for the required level of effort at a fair and reasonable price.”
To make this evaluation determination in accordance with the RFQ, DHA would have had
to consider the mix of labor categories and hours proposed by each offeror, including key
and non-key personnel labor categories, but the depth of the necessary inquiry is not
found in the RFQ.
The technical evaluation report and the price analysis report indicates that the TEB
did address PwC’s proposed labor mix, albeit somewhat briefly. The administrative
record before the GAO and this court contains the technical evaluation report, which
includes the TEB’s consideration of PwC’s labor mix, and the price analysis report. The
price analysis report explains that “[t]he TEB reviewed the labor mix and hours which
establish that PWC’s technical and management approach are more than adequate.”
Moreover, the price analysis report states that “PWC’s mix and balance of projected labor
hours, education, training, and experience of the proposed labor mix is competitive.” In
the technical evaluation report, the technical evaluator stated, specifically addressing
PwC’s approach to supporting a comprehensive military campaign plan for HRO
transformation, that “PWC offers the best mix of key personnel and a full team to support
the MHS in this effort. . . .” In evaluating PwC’s proposed “Management Approach,” to
include “program management, key personnel and staffing,” the technical evaluation
report stated that, “[w]hat is most notable in PWC’s management approach is their
36
appropriate mix and balance of projected labor hours, education, training, and experience
of the proposed team members. . . .” Additionally, the technical evaluator explained:
In reviewing for an appropriate mix of labor, the government notes a key
advantage[12] in that out of the [redacted] key personnel offered, they total
to about [redacted] FTEs worth of work, [redacted] ratio. [Redacted.]
Although the technical evaluation report discussed PwC’s proposed labor mix, the award
decision document did not discuss whether PwC proposed an appropriate mix of labor.13
As noted above, the issue is whether, given the RFQ selection procedures and the
examples from the administrative record that demonstrate DHA’s contemporaneous
consideration of PwC’s proposed labor mix, DHA’s review of PwC’s proposed labor mix
supported the selection of PwC as the contract awardee. In addition, during the protest
at the GAO, the TEB submitted a declaration explaining that it had “evaluated PWC’s
labor mix by converting the proposed hours of each labor category, including both key
and non-key personnel, to approximate FTEs . . . and evaluating the proposed labor
category mix.” This court believes it may consider agency submissions to the GAO, but
such materials are not automatically accepted at face value. See Vanguard Recovery
Assistance v. United States, 99 Fed. Cl. 81, 102 (2011); see e.g., Holloway & Co., PLLC
v. United States, 87 Fed. Cl. 381, 391-92 (2009); PGBA, LLC v. United States, 60 Fed.
Cl. 196, 204 (2004). “This court must critically examine any post hoc rationalization by
the agency, including declarations, affidavits, or live testimony submitted to the GAO
during a bid protest. See PGBA, LLC v. United States, 60 Fed. Cl. at 20; but see
Vanguard Recovery Assistance v. United States, 99 Fed. Cl. at 102 (“Post hoc
declarations and arguments will be discounted or disregarded.”).
It is a somewhat close call as to whether or not the contemporaneous record
supports the assertions of the TEB in its declaration to the GAO. Although the agency’s
selection document does not reference specific evaluation of PwC’s labor mix, the
technical evaluation report, which is part of the administrative record, does contain
references to such evaluation activity. Therefore, without the TEB’s declaration to the
GAO, the record before the court is unclear as to the depth of the agency’s review of
PwC’s labor mix, although it is clear that some review of PwC’s proposed labor mix likely
took place. Therefore, it is not clearly established whether the GAO was in error in finding
this issue to be a valid protest ground.
Protestor further argues that, “even if GAO were correct that the agency did not
sufficiently evaluate PwC’s labor mix . . . none of the protestors were prejudiced since
12 The parties dispute whether DHA’s finding that PwC’s proposal presented a “key
advantage” was reasonable. The GAO found that DHA’s concessions during the GAO
bid protest undercut the agency’s finding of a “key advantage.” Deloitte Consulting, LLP;
Booz Allen Hamilton, Inc.; CALIBRE Sys. Inc., B-411884.6, 2015 WL 9701026, at *10.
13 The award decision did mention that Booz Allen proposed an appropriate mix of labor.
37
the correction for that was dictated by the RFQ.” The selection procedures in the RFQ
explained that:
The contracting officer will award a BPA call to the contractor submitting the
highest rated quote proposing an appropriate mix of labor for the required
level of effort at a fair and reasonable price. If the contractor submitting the
highest rated quote does not propose an appropriate mix of labor for the
required effort at a fair and reasonable price, the contracting officer may
obtain additional information from, and negotiate with, that contractor to
improve the terms of the deal reflected in its quote.
Although protestor argues that the “‘fix’ for any of the labor mix errors identified by GAO
was to negotiate only with PwC,” the error that the GAO identified was that DHA did not
properly evaluate DHA’s proposed labor mix, not that further negotiation was needed.
The GAO also sustained the bid protest on the grounds that “certain areas of the
evaluation reflect unequal treatment” of Booz Allen and Deloitte. See Deloitte Consulting,
LLP; Booz Allen Hamilton, Inc.; CALIBRE Sys. Inc., B-411884.6, 2015 WL 9701026, at
*11-12. Protestor, however, argues that the GAO’s determination that the record reflected
unequal treatment towards Booz Allen and Deloitte was irrational. As the GAO explained,
“[i]t is fundamental that a contracting agency must treat all offerors equally and evaluate
offers evenhandedly against common requirements and evaluation criteria.” See id. at
*11. “Under FAR subpart 8, an agency also must treat all offerors equally and evaluate
quotations evenhandedly against all common requirements.” Id. A contracting officer
must “[f]airly consider” all quotes received in response to an RFQ for a BPA call order.
48 C.F.R. § 8.405-3(c)(2)(iii)(A)(3). In a FAR subpart 8 procurement, an agency must
ensure that “‘all quotes are fairly considered’” “on an equal basis.” Lab. Corp. of Am.
Holdings v. United States, 116 Fed. Cl. at 652 (quoting 48 C.F.R. § 8.405-3(b)(2)(vi)).
With regard to Booz Allen, the GAO found indications of unequal treatment in two
areas. See Deloitte Consulting, LLP; Booz Allen Hamilton, Inc.; CALIBRE Sys. Inc., B-
411884.6, 2015 WL 9701026, at *11-12. First, the technical evaluator positively assessed
PwC’s quotation based on the evaluator’s calculations that indicated PwC’s program
manager was committed to directly supporting contract performance for close to
[redacted] full time equivalent (FTE).14 See id. at 11. The GAO found that the technical
evaluator did not, however, conduct the same calculations and analysis for Booz Allen’s
quote, even though Booz Allen’s quote provided all of the information necessary to
conduct such an analysis. See id. As a result, PwC received credit from DHA for
committing the program manager for [redacted] FTE, but DHA did not credit Booz Allen
14 The TEB concluded that the hours proposed for PwC’s program manager indicated the
program manager would work close to [redacted] of the same number of hours that a full
time employee would work. The TEB explained that it divided the hours PwC proposed
for the program manager and senior functional consultant positions by the estimated
number of full time equivalent hours the government expected would be needed for
contract performance in order to determine how many hours PwC proposed for its
program manager and senior functional consultant.
38
for committing its program manager for [redacted] FTE. See id. Additionally, the GAO
found that DHA did “not reasonably explain the basis” for concluding that Booz Allen’s
organizational development subject matter expert did not meet all the solicitation
requirements. See id. at *12. During the protest at the GAO, Deloitte also had argued
that DHA’s evaluation was unequal and unreasonable because “the agency gave specific
credit to PwC based on the experience of its team members” but did not give credit to
Deloitte for its team’s familiarity and involvement with the MHS Review and HRO Task
Force. See id. Deloitte also argued at the GAO that “DHA gave credit to PwC based on
the strength of its client list,” but did not give Deloitte credit for its similar list of [redacted]
clients, which included [redacted] of the [redacted] clients on PwC’s list. See id. The GAO
agreed and decided “that DHA’s evaluation of Booz Allen’s and Deloitte’s quotations was
unequal as compared to the evaluation of PwC’s quotation.” See id.
Protestor argues that the instances of unequal treatment towards Booz Allen and
Deloitte that the GAO discussed in its decision are refuted by the record, and, even if true,
are isolated instances that were not prejudicial to Booz Allen or Deloitte. Defendant-
intervenor Booz Allen argues that PwC’s assertion that the instances of unequal treatment
were isolated “unreasonably relies on the very evaluation findings challenged by the
protestors and found unreasonable by GAO” and that there is “no support for PwC’s
allegations that the disparate treatment instances were isolated.”
With regard to Booz Allen’s program manager, PwC argues that its program
manager met all of the required and preferred qualifications, whereas Booz Allen’s “met
[redacted] of the preferred qualifications,” therefore, Booz Allen’s proposed [redacted]
FTE program manager was not a benefit that would have affected Booz Allen’s ranking,
even if the TEB had calculated the total FTEs that Booz Allen proposed for its program
manager, as it did for PwC. Defendant argues that the GAO reasonably concluded that
it was “unclear” why the technical evaluator could not have conducted the same analysis
of Booz Allen’s program manager as it did for PwC’s. Defendant also argues that the
GAO reasonably concluded that Booz Allen was treated unequally because PwC received
credit for the [redacted] FTE commitment of its program manager key personnel, but Booz
Allen did not receive credit for the [redacted] FTE commitment of its program manager
key personnel. According to the TEB’s declaration submitted to the GAO, the program
manager was one of the “most critical key personnel.” The GAO reasonably found that
Booz Allen did not receive equal treatment with regard to the program manager because
there is no dispute that DHA did not conduct the same calculations for Booz Allen’s
program manager as it did for PwC’s program manager. The TEB explained that it “was
not able to determine the total FTEs that [Booz Allen’s] key personnel would serve, so
therefore this comparator was not addressed between PwC and [Booz Allen].” DHA does
not appear to have considered the FTE commitment of Booz Allen’s program manager,
so it remains unclear whether Booz Allen would, or should, have received credit for the
commitment of its program manager and whether that credit would have affected Booz
Allen’s ranking. Given the importance assigned to the program manager as one of the
“most critical key personnel,” it seems likely that Booz Allen’s ranking could have been
affected by the TEB’s calculation of its FTE(s) for the program manager labor category.
39
Protestor also disputes the GAO’s finding that Booz Allen received unequal
treatment in the evaluation of its [redacted]. The RFQ issued on May 29, 2015 required
offerors to include key personnel in their quotes, including an [redacted] who was required
to have a [redacted.] According to the TEB’s declaration submitted to the GAO, this
[redacted] was one of the “most critical key personnel.” Booz Allen’s quote included an
[redacted] who had [redacted]. PwC’s quote proposed an [redacted] who had [redacted].
Neither quote included [redacted] with [redacted]. Yet, in the award decision
memorandum, the source selection official stated that “PWC’s Management approach
was clear, compelling and convincing and their offer of key personnel either met or far
exceeded all of the government’s articulated requirements.”15 During the protest at the
GAO, DHA argued that “even if the assessment [of Booz Allen’s proposed [redacted]]
was erroneous, it was not prejudicial” because it was not a discriminator in the award
decision. The GAO, however, sustained the protest because DHA did not reasonably
explain the basis for concluding that the erroneous evaluation of Booz Allen’s proposed
[redacted] was not prejudicial. The record demonstrates that PwC and Booz Allen were
treated differently with regard to the [redacted] they proposed, who had similar
credentials, and the source selection official noted PwC’s qualified key personnel in the
award decision. Accordingly, the GAO’s decision that Booz Allen’s quote was treated
unequally was reasonable.
During the GAO protest, Deloitte argued that its quote received unequal treatment
as compared to PwC and the GAO agreed. Protestor argues that the GAO decision was
unreasonable because “it was the lack of [Deloitte’s] articulated approach that drove the
agency’s conclusion, not unequal treatment.” Defendant-intervenor Deloitte argues that
“both Deloitte and PwC proposed team members with extensive relevant experience,” but
“DHA downgraded Deloitte’s quotation” because Deloitte relied on its team and team
members’ familiarity and involvement with the MHS Review and the HRO Task Force. In
the above-captioned protest, defendant-intervenor Deloitte contends that the “GAO
reasonably found that DHA’s actions constitute unequal treatment” because, “[w]hile
Deloitte’s reliance on its team members was seen as a weakness[,] the very same aspect
of PwC’s quotation was evaluated as a strength.” The technical evaluation report for PwC
stated: “A corporation and management team that is intimately familiar with this
improvement effort is sure to bring the right perspective and approach to the MHS’ [sic]
quality improvement effort.” The technical evaluation report further stated that “PWC
currently supports the MHS Governance Integration Office and has deep and thorough
knowledge of the functions and challenges of the current MHS Governance Construct.”
Additionally, the technical evaluation report explained that the “government also has high
confidence that PWC’s deep technical depth of their proposed team and their relevant
15In the TEB’s declaration submitted to the GAO explaining why PwC’s quote was
superior to Booz Allen’s quote, it indicated that “neither PWC nor [Booz Allen] completely
met the required qualifications of the OD SME [organizational development subject matter
expert] . . . PWC included [redacted.] This acknowledgment by the TEB, however, came
during the GAO protest, therefore it was after the contract was awarded to PwC and was
not reflected in the award decision document, which had concluded that PwC’s key
personnel either met or exceeded the RFQ requirements.
40
experience and capabilities will allow them to fully support the Government’s
requirements.” The technical evaluation report stated, with regard to Deloitte, that “they
primarily relied on their team and team member’s [sic] familiarity and involvement with the
MHS Review and HRO Task Force to date. While this is an advantage for them, this
intimate knowledge did not result in any distinct advantage in being able to articulate a
clear technical approach. . . .” As these excerpts from the technical evaluation report
reflect, PwC’s “intimate” familiarity with the “improvement effort” was “sure to bring the
right perspective and approach” and DHA had “high confidence” that PwC’s relevant
experience would allow it to “fully support” DHA’s requirements, and, yet, this same
positive assumption was not given to Deloitte’s “intimate knowledge” with the MHS
Review and HRO Task Force. It appears unequal that DHA made a positive assumption
about PwC’s familiarity with the effort to transform the MHS to an HRO and did not make
the same positive assumption about Deloitte, or any other entity, that also had familiarity
and experience with the MHS Review and HRO Task Force, which are apparently integral
to the improvement effort and the transformation to an HRO. The court agrees that the
GAO’s determination that Deloitte’s quote received unequal treatment with regard to the
experience of its team members was reasonable because the technical evaluation report
made a positive assumption about the value of PwC’s experiences but did not make the
same positive assumption about Deloitte’s experiences, and DHA did not provide a
sufficient explanation or basis for that distinction.
Additionally, defendant-intervenor Deloitte argued during the GAO protest that it
was treated unequally because DHA did not give its quote credit for the client list included
in its quote, but, as the record indicates, DHA did give PwC credit for the list of [redacted]
clients in PwC’s quote. The technical evaluation report stated that:
[redacted.]
Defendant-intervenor Deloitte argues that, although DHA gave PwC credit for its client
list, “DHA ignored the fact that Deloitte’s quotation identified a roster of [redacted] clients,”
and the “GAO reasonably found that this constituted an example of unequal treatment.”
In contending that the GAO’s decision was unreasonable, protestor argues that “Deloitte
only had [redacted] of the same [redacted] clients [on PwC’s list], so it is unclear why
GAO believes this warrants similar consideration or evidences unequal treatment.” The
technical evaluation report indicates that PwC was given credit because PwC listed
[redacted] clients which were studied by the HRO Task Force. Attached to protestor’s
complaint, as exhibit 14, is the HRO Task Force Report, which was prepared by the HRO
Task Force after the MHS Review. In appendix C to the HRO Task Force Report is a list
of entities associated with “Leading Practices in High Reliability Organizations.” This list
includes: Memorial Hermann Healthcare System, Kaiser Permanente, Cincinnati
Children’s Hospital Medical Center, and, among others, the Center for Medicare and
Medicaid Services. Similarly, in appendix F to the report, is a list of entities associated
with “Leading Practices in Continuous Process Improvement,” including: Kaiser
Permanente, Cincinnati Children’s Hospital Medical Center, and Memorial Hermann.
Both appendices to the HRO Task Force report indicate these entities were sources of
study or reference for the HRO Task Force. [Redacted] of these entities listed above are
41
included as clients in Deloitte’s quote. The technical evaluation report, however, did not
credit Deloitte’s quote for including these [redacted] clients in the same way that it gave
credit to PwC for listing [redacted] clients in its quote that were studied by the HRO Task
Force. Because the administrative record reflects that Deloitte may not have been given
the same positive assessment based on its client list as PwC was given, even though
Deloitte and PwC each listed [redacted] and [redacted] clients respectively that were
studied by the HRO Task Force, the GAO’s conclusion cannot be found irrational when it
decided that DHA’s evaluation of Deloitte’s quote was unequal compared to DHA’s
evaluation of PwC’s quote.
For each of the instances in which the GAO found unequal treatment between
PwC and Booz Allen or Deloitte, protestor argues that these “narrow instances of GAO’s
concern” are not prejudicial and outweighed by the “myriad of other discriminators” that
established the superiority of PwC’s proposal over Booz Allen and Deloitte. As discussed
above, however, “arguments based on whether the protestors were prejudiced by
[agency’s] alleged procurement errors are irrelevant to the rationality of GAO’s decision
to sustain [a protest].” Navarro Research & Eng’g, Inc. v. United States, 106 Fed. Cl. at
417 (alterations added). In sum, the GAO’s conclusion to sustain the protest on one or
more grounds was reasonable, rational, and provided a valid basis on which the agency
could act to follow the GAO’s recommendation to take corrective action.
In addition to arguing that the GAO’s recommendation was irrational and, thus,
cannot support the agency’s corrective action decision, protestor also argues that DHA’s
corrective action independently was arbitrary and capricious because it was “overbroad,
unrelated to the bases of sustain in GAO’s decision, does not reflect any change in
agency needs, and unfairly favors PwC’s competitors.” Quoting Amazon Web Services,
Inc. v. United States, 113 Fed. Cl. 102, 115 (2013), protestor argues that “[e]ven where a
protest is justified, any corrective action ‘must narrowly target the defects it is intended to
remedy.’” Protestor asserts that none of the issues identified in the GAO’s decision
“required the agency to dramatically revise the solicitation and resolicit quotes, essentially
starting the competition over.” Instead, protestor argues, “[w]hen flaws have occurred
during the evaluation of properly submitted proposals, this Court has found that
reevaluation may be appropriate, but resolicitation is not. . . .” To support its assertion
that the agency’s needs have not changed, which contradicts what has been suggested
to this court by DHA, protestor points to the evaluation criteria as the area in which
“substantive and dramatic changes” were made to the RFQ. Protestor contends that a
proper, narrowly tailored approach would have included reevaluation, not resolicitation of
proposals. Protestor states:
To remedy the GAO’s identified bases of sustain, all the agency needed to
do was reevaluate corporate experience to document its understanding of
PwC’s quote, reevaluate data rights to document its understanding that the
BPA trumped the order (and possibly seek clarification from PwC),
reevaluate labor mix to better document the record, and reevaluate the
isolated instances of unequal treatment.
42
Protestor asserts that the “only basis of sustain that might require the agency to
seek information from PwC (or if the agency chooses, other vendors) involved data rights”
and that “it is possible that the agency could limit its communications solely to PwC.”
(emphasis in original). Protestor also relies on Amazon Web Services, Inc. v. United
States, 113 Fed. Cl. at 115, to argue that resolicitation is not appropriate because it
“‘compromises the integrity of the procurement system, especially where the winning
price has been disclosed.’” That case, however, is distinguishable from the above-
captioned protest for two reasons. First, the agency in Amazon Web Services, Inc. v.
United States decided to take corrective action to implement a GAO recommendation,
which the court determined was irrational, thus rending the agency’s corrective action
unreasonable. See id. at 116. In the instant protest, one or more of the GAO’s grounds
for sustaining the protest is considered by this court to be reasonable and proper.
Second, in Amazon Web Services, Inc. v. United States, the GAO’s recommendation to
resolicit proposals was irrational because the procurement defects that the GAO
discovered only related to the agency’s evaluation of proposals and did not suggest
issues with the solicitation itself. See id. In the instant protest, the GAO indicated there
was at least one issue in the RFQ regarding the data rights term and recommended that
DHA review the term and revise the RFQ accordingly. Moreover, the court in Amazon
Web Services, Inc. v. United States, also does not discuss the impact that any changes
in the agency’s needs, or an agency’s decision to amend its evaluation criteria to better
match its needs, would have on the review of an agency’s corrective action.
In opposing protestor’s motion for a temporary restraining order and/or a
preliminary injunction, defendant argues that there “is no requirement that DHA’s
corrective action be ‘narrowly tailored’ and restricted to reevaluation of earlier quotations”
because the “‘narrowly tailored’ criterion is not uniformly applied in the review of corrective
actions.” Defendant and defendant-intervenors argue that protestor’s reliance on the
“narrowly tailored” approach is misplaced and has been rejected in other decisions of the
court, specifically Sierra Nevada Corp. v. United States, 107 Fed. Cl. 735, 750-51 (2012).
Defendant and defendant-intervenors assert that the appropriate standard of review for a
challenge to an agency’s corrective action is whether the corrective action is “reasonable
under the circumstances.” (citing Sierra Nevada Corp. v. United States, 107 Fed. Cl. at
750-51).
After the GAO decision was issued, DHA submits that the solicitation was revised
in response to the GAO’s recommendation and to address what the agency described as
changed requirements that had developed since the original RFQ was released on May
29, 2015, resulting in changes to the PWS and the evaluation criteria in the revised RFQ.
The administrative record and declarations submitted by DHA indicate that DHA’s
decision to amend the solicitation, including eliminating certain requirements that were
included in the previous RFQ, was the result of an overall review of the agency’s
requirements and the RFQ after the GAO issued its recommendation to DHA to take
corrective action. The government is authorized to amend a solicitation based upon an
exercise of discretion. See ManTech Telecomms. & Info. Sys. Corp. v. United States, 49
Fed. Cl. at 73. “[I]n a negotiated procurement, the contracting agency has broad discretion
to amend the solicitation when it determines that such action is necessary to ensure fair
43
and impartial competition and to permit the government to obtain its minimum
requirements at the most favorable price.” Id. In fact, an agency must amend a solicitation
for goods or services when the agency changes its requirements or terms and conditions.
See 48 C.F.R. § 15.206(a); see also COMINT Sys. Corp. v. United States, 700 F.3d 1377,
1381 (Fed. Cir. 2012). “[A]s a policy matter, the Government should not be forced to
accept service contracts that understate its needs even if the understatement was the
Government's fault. The primacy of the procuring agency's assessment of its own needs
and the penalty to the fisc transcend the harm to the frustrated bidder in losing the
prospective contract.” Vanguard Sec. Inc. v. United States, 20 Cl. Ct. 90, 109 (1990). “An
agency’s determination of the ‘best method of accommodating’ its needs also falls within
the agency’s discretion.” See CHE Consulting, Inc. v. United States, 74 Fed. Cl. 742, 747
(2006) (quoting United Enter. & Assocs. v. United States, 70 Fed. Cl. 1, 26 (2006)). Other
than issuing the amendments to the RFQ, once again, DHA did not carefully
contemporaneously document its decision to take specific corrective action or to make
amendments to the RFQ. The declarations of the contracting officer and the Government
Lead for the MHS Review Project Management Office submitted to this court, however,
describe what the agency considered to be changed requirements between the issuance
of the original RFQ and the revised RFQ following the GAO decision, and support
defendant’s position that DHA acted reasonably, and within its discretion, when it
reviewed and amended the RFQ.
Protestor alleges, without evidence, that “the agency’s needs have not changed.”
Protestor argues that “[i]n fact, the PWS is substantially unchanged except for minor
edits.” In her declaration submitted to court, however, the contracting officer stated that
“the program office revised the PWS to . . . take into account changes in the Agency’s
requirements, in part because quite a bit of time had passed since the Agency originally
issued the solicitation.” Also, the Government Lead for the MHS Review Project
Management Office states in her declaration that changes were made to the PWS based
on changes in the agency’s requirements. The contracting officer explained that the
agency reviewed the evaluation criteria to ensure that it is designed to “result in the best
solution for the Agency and to more fully communicate the basis on which quotes will be
evaluated.” The contracting officer explains in a declaration to this court that
we revised the evaluation to indicate that, instead of evaluating the offerors’
proposed approaches for completing all PWS tasks, the Agency would
evaluate the offerors’ proposed approaches to four specified areas. This
will help ensure that the Agency obtains what it really needs by allowing us
to better distinguish between the merits of the quotes and to make award to
the vendor most likely to not only successfully, but also exceptionally, meet
the requirement.
Additionally, as part of an
overall review of the evaluation approach, the program team (none of whom
were involved in the previous evaluation of quotes) decided that evaluating
corporate capability/experience and military campaign planning as in the
44
original procurement would not help the Agency identify the best quote or
differentiate between quotes. Instead, the team decided to focus the
evaluation on the vendors’ specific experience performing prior similar
tasks.
In opposing protestor’s arguments, defendant asserts that “PwC’s attack on the
revised evaluation criteria is without merit. [citations in original omitted] DHA possesses
ample discretion to select evaluation criteria, and PwC fails to demonstrate a clear
violation of procurement statutes or regulations.” Defendant asserts that the “revised
PWS clarifies and updates DHA’s requirements by detailing progress made on action
plans, including identifying plans already completed and not part of the revised PWS.”
The Government Lead for the MHS Review Project Management Office listed the
following changes to the PWS:
a) 5.6.2. Support Action Plans #28 and #38 – Data mining and analytic
support for infection prevention was removed as it will be performed by an
existing analytic cell.
b) 5.6.3. Support Action Plans #32 and #33 – The Patient Education Work
Group, a work group comprised of military and civilian subject matter
experts in patient safety, quality, and process improvement, among others,
identified patient safety, quality and process improvement training
requirements for target audiences and MHS resources for this training. They
also completed development of an executive leadership toolkit in December
2016. These tasks were replaced in the PWS with the development of an
implementation plan to build workforce capability in patient safety, quality
and process improvement; a nd an evaluation plan to assess effectiveness.
c) 5.7. Support Action Plans #20, #21 and #22 – Data analyst support to
design a demonstration project both for the future TRICARE managed care
support contracts (T-2017) and the current T-3 contracts, which will expire
when the T-2017 contracts take effect, is no longer needed as design is
nearly complete. However data analyst support for implementation and
interpreting the results of the demonstration project is still needed. The
contracts are the mechanism used to provide private sector (purchased)
care to TRICARE beneficiaries within the 50 states and D.C. They will
expire when the T-2017 contracts take effect, at some point in 2017.
d) 5.11. Support to Action Plans #6, #9 and #26 – The perinatal section was
rewritten and reorganized for clarity. The new PWS also adds specificity
that support will include implementation and evaluation of education/training
programs at the 50 military treatment facilities with obstetrical services. The
number of hospitals which require implementation and evaluation of
education/training programs was not clearly stated in the original PWS.
45
e) Section 5.12 in the original PWS was removed as it pertained to support
for the deployment of Essentris® 2.0, updated modules for the inpatient
electronic medical record, and other changes to the medical record. This
support is no longer required as deployment of Essentris®, 2.0 will be
completed in January 2016. The Essentris® program office, a government
entity in the Defense Health Agency, in conjunction with CliniComp, the
company that owns Essentris®, are responsible for deployment of
Essentris® 2.0.
These statements seem to indicate that the agency’s needs have evolved from the
first RFQ, which was issued on May 29, 2015, to the revised RFQ, which was re-issued
on December 21, 2015, a nearly 7-month period, and that DHA has reasonably explained
its decision to amend the RFQ. As noted above, DHA explained in its submission to the
court that various requirements in the prior RFQ have been performed, or are in progress,
and, therefore, were removed in the revised RFQ to better reflect DHA’s current needs,
including support for the development of an executive leadership toolkit by the Patient
Education Work Group, data analyst support to design a demonstration project for the
future TRICARE manager care support contracts and the current T-3 contracts, and
support for the deployment of Essentris® 2.0. As these requirements have been satisfied,
DHA no longer needs to solicit quotes that address these requirements. Additionally,
DHA removed the military campaign planning evaluation factor because the assessment
of that factor “would not help the Agency identify the best quote.” The record reflects that,
after the GAO’s decision, the agency exercised its broad discretion to determine its
current needs and, subsequently, amended the solicitation in order to ensure that DHA
would be able to properly evaluate proposals to obtain its minimum, changed
requirements. See ManTech Telecomms. & Info. Sys. Corp. v. United States, 49 Fed. Cl.
at 73. The determination of an agency’s needs is not one that this court will second
guess. See Savantage Fin. Servs., Inc. v. United States, 595 F.3d 1285–86; see also
CHE Consulting, Inc. v. United States, 74 Fed. Cl. at 747. Because the agency’s needs
appear to have progressed and changed over time, protestor’s argument that DHA could
communicate only with PwC to resolve PwC’s nonconforming data rights term fails
because new proposals from all eligible offerors should be sought in response to the
newly revised solicitation. Indeed, it would be incorrect for this court to prevent DHA from
resoliciting new quotes based on a revised RFQ in order to meet its current needs, and
DHA has sufficiently explained that real and substantive changes with the agency’s
requirements necessitate resoliciting quotes based on a revised RFQ. Accordingly, given
the agency’s broad discretion to determine its needs and amend a RFQ to reflect changed
requirements, it is unlikely that protestor will be able to successfully establish that the
agency’s corrective action decision was arbitrary and capricious.
Finally, as discussed above, in its motion for a temporary restraining order and/or
a preliminary injunction, protestor asserts that all of the defendant-intervenors should be
disqualified from competing for the task order contract “due to significant organizational
conflicts of interest,” and that this court should “declare this RFQ to be an unreasonable
response to the GAO’s decision because, among other reasons, the new RFQ is creating
significant actual or potential OCIs where none before existed.” Protestor asserts that the
46
agency “has abandoned its duty to ensure fairness in the competition” by adequately
considering, and then avoiding, neutralizing, or mitigating significant OCIs. Defendant
argues that, “[a]t this time, no determinations as to the existence of potential OCIs, or who
may be awarded the new contract have been made nor have the rights of PwC or other
vendors been determined.” Defendant and defendant-intervenors argue that protestor’s
OCI allegations are premature and not ripe for judicial review because the agency has
not considered OCI mitigation plans for all offerors under the revised RFQ, nor has it
made a final decision regarding any alleged OCIs. Despite protestor’s argument that it is
not “contending that this Court supplant the Agency’s obligation” to investigate any
possible OCIs, protestor is, in fact, asking this court to find, at this time, that OCIs exist
under the revised RFQ, so as to render the revised RFQ per se unreasonable. FAR
subpart 9.5 places the responsibility for investigating OCIs squarely with the contracting
officer. See 48 C.F.R. § 9.500 (2016); see also PAI Corp. v. United States, 614 F.3d at
1352 (“The contracting officer does have considerable discretion in determining whether
a conflict is significant. Moreover, the FAR provides a contracting officer with
considerable discretion to conduct fact-specific inquiries of acquisition proposals to
identify potential conflicts. . . .”); Axiom Resource Mgmt., Inc. v. United States, 564 F.3d
at 1382 (explaining that “the FAR recognizes that the identification of OCIs and the
evaluation of mitigation proposals are fact-specific inquiries that require the exercise of
considerable discretion” by the contracting officer). Notwithstanding protestor’s argument
to the contrary, a finding by this court that OCIs exist with regard to the revised RFQ
would require the court to supplant the agency’s ongoing OCI review responsibility and
decision-making process, without knowing anything about which offerors will submit
quotes to the revised RFQ or sufficient, individual mitigation plans. Protestor’s OCI
allegations are not ripe for review.
Therefore, having decided that protestor is not likely to succeed on the merits of
the underlying bid protest because at least one, if not more, of the grounds on which the
GAO sustained the earlier protest were reasonable and provided a basis on which the
agency could initiate corrective action, and because the agency has broad discretion to
amend a solicitation to reflect changed requirements, this court need not consider other
factors pertinent to issuing a temporary restraining order and/or preliminary injunction,
including whether irreparable harm is likely if the injunction is not granted, the balance of
hardships as between the litigants, or the public interest. See CBY Design Builders v.
United States, 105 Fed. Cl. at 328. The record in this bid protest does not support the
issuance of a temporary restraining order and/or a preliminary injunction, or, for that
matter, a permanent injunction, which will be addressed in a separate, future order.
CONCLUSION
Based on the above discussion, defendant-intervenor CALIBRE/EY’s motion to
dismiss for lack of subject matter jurisdiction is DENIED, defendant’s cross-motion to
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dismiss PwC’s OCI allegations is GRANTED, and PwC’s motion for a temporary
restraining order and/or a preliminary injunction and declaratory relief is DENIED.
IT IS SO ORDERED.
s/Marian Blank Horn
MARIAN BLANK HORN
Judge
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