Board of Regents of the Nevada System of Higher Education v. United States , 132 Fed. Cl. 435 ( 2017 )

In the United States Court of Federal Claims
No. 16-376C
(Filed under seal May 31, 2017)
(Reissued July 5, 2017)
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*
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BOARD OF REGENTS OF * Post-award bid protest; U.S. Dept. of
THE NEVADA SYSTEM OF * Energy; omissions of required
HIGHER EDUCATION, * information from proposals; alleged
on behalf of THE DESERT * clerical error; failure to request
RESEARCH INSTITUTE, * clarification; unstated evaluation
* method; non-disclosure of incumbent
Plaintiff, * contract staffing information; alleged
* disparate treatment due to incumbent
v. * facilities; Blue & Gold Fleet waiver.
*
THE UNITED STATES, *
*
Defendant, *
and, *
*
OAK RIDGE ASSOCIATED *
UNIVERSITIES, *
*
Defendant-Intervenor. *
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* * * * * * * * * * * * * * * * * *
J. Hatcher Graham, Warner Robins, Ga., for plaintiff.
Joseph E. Ashman, Commercial Litigation Branch, Civil Division,
Department of Justice, with whom were Benjamin C. Mizer, Principal Deputy
Assistant Attorney General, Robert E. Kirschman, Jr., Director, and Deborah A.
Bynum, Assistant Director, all of Washington, D.C., for defendant. Monekia
Franklin, Office of General Counsel, and Kristopher D. Muse, Office of Chief
Counsel, U.S. Department of Energy, Washington, D.C., of counsel.
Jessica C. Abrahams, Dentons US LLP, with whom was Erin B. Sheppard,
both of Washington, D.C., for defendant-intervenor. Katherine L. Veeder and
Deborah N. Rodin, Dentons US LLP, Washington, D.C, of counsel.
OPINION AND ORDER †
WOLSKI, Judge.
This bid protest challenges the award of a contract by the United States
Department of Energy (DOE or the Agency) to defendant-intervenor Oak Ridge
Associated Universities (ORAU or intervenor). Plaintiff, the Board of Regents of the
Nevada System of Higher Education, filed this post-award protest on behalf of the
Desert Research Institute (DRI), which was an unsuccessful offeror for the award.
Plaintiff asserts that the Agency made various errors in the evaluation of its
proposal and that of its competitor; failed to disclose certain information concerning
the predecessor contract and the manner in which proposals would be evaluated;
and failed to request clarification regarding an omission from its proposal. The
Court has determined that the Agency’s decision to award the contract to ORAU
was in accordance with law, and was neither arbitrary nor capricious. For the
reasons explained below, defendant’s and intervenor’s cross-motions for judgment
on the administrative record are GRANTED and plaintiff ’s motion for judgment on
the administrative record is DENIED.
I. BACKGROUND
A. History of the Facility
The United States Department of Energy maintains the Oak Ridge Institute
for Science and Education (ORISE), which acts as a liaison between national
universities and DOE research laboratories to further research opportunities for
students and faculty. Admin. R. (AR) at 43. For the first 57 years of its existence,
ORISE was operated under a management and operating agreement between the
Agency and the Oak Ridge Institute for Nuclear Studies, a state institution. Id.
Oak Ridge Institute for Nuclear Studies has since been reorganized as the Oak
Ridge Associated Universities, a consortium of colleges and universities. Id. In
June of 1991, DOE determined that it would be beneficial to separate ORISE, as an
entity, from its management, ORAU. Id. In January, 1999, DOE awarded a
noncompetitive, cost-reimbursement contract to ORAU as part of a move away from
the management and operating agreement model and towards free and open
competition. Id. at 43. After a three-month extension, that contract expired on
March 31, 2000, being replaced by a competitively-awarded, cost-plus fee contract
that was also received by ORAU. Id. A follow-on contract, also a competitively-
†This opinion was initially filed under seal, to allow the parties the opportunity to
propose redactions. Intervenor has done so, although most of its request was found
unwarranted. See Order (July 5, 2017). The opinion is now issued for publication,
with some minor, non-substantive corrections. Redacted material has been replaced
in this manner: “[XXXXX].”
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awarded, cost-plus fee contract, was awarded to ORAU --- which, after two
extensions, was set to expire on June 30, 2016. Id. at 43, 2201.
B. The Solicitation
The United States Department of Energy issued Solicitation No. DE-SOL-
0006230 (the solicitation) on July 22, 2015. AR at 228. The solicitation sought
proposals to support the scientific efforts of ORISE. AR at 235. The awardee was to
assist DOE in five principal areas, which were described in detail in the
Performance Work Statement (PWS): science, technology, engineering, and
mathematics (STEM) workforce development; scientific and technical resource
integration; radiation emergency assistance and training; human subject protection
surveillance; and independent environmental assessment and verification. Id. at
235–39. The contract was to be awarded on a cost-plus fee basis, with a transition
period, a five-year base period, and up to five additional one-year “award term”
periods. Id. at 230–31. During the period between the issuance of the solicitation
and the due date for proposals, the solicitation was amended seven times. See id. at
2205.
The solicitation informed offerors that the Agency intended to evaluate
proposals, and make an award, without conducting discussions. AR at 851.
Offerors were instructed to submit their proposals in three separate volumes.
Volume I was to contain the “Offer and Other Documents,” Volume II was for
“Capabilities and Approach,” and Volume III was to cover “Cost and Fee.” Id. at
731.
Pursuant to the solicitation’s instructions, offerors were to submit nine
separate documents in Volume I. AR at 776. First, a fully executed “Proposal
Form” was to be included. Id. Next, offerors were to include certain
representations and certifications. See id. at 688–701 (providing 11 different
representations and certifications, some with subparts, that offerors were to
execute); id. at 776. Third, offerors were to provide price information, including a
proposed award fee, consistent with the cost information contained in Volume III.
Id. at 230–33 (blank pricing form to be used by offerors); id. at 776–77. Fourth,
offerors were to submit a pledge to select subcontractors on a competitive basis as
much as possible, and to justify any non-competitive selections. Id. at 776–77.
The fifth document was to contain any exceptions to, or deviations from the
model contract. AR at 776–77. Next would be a summary of exceptions taken in
other volumes. Id. Seventh, each offeror was to provide a numbered listing of its
commitments to provide anything at no cost to the government. Id.; see also AR at
789. Eighth, offerors were to provide a completed “Small Business Contracting
Plan.” Id. at 776. The solicitation required that this plan address the elements
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listed in 48 C.F.R. § 52.219-9(d). Id. at 777. 1 And finally, offerors were required to
execute a certification of intent to maintain the pay and benefits of employees of the
incumbent contractor who are hired by the contract awardee. Id. at 295–296, 776,
778.
Volume II, the Capabilities and Approach proposal, was limited to 70 pages
in length, not counting the table of contents and certain other material. AR at 778–
79. In this proposal, offerors were to address seven specific areas, id. at 779–89,
which were to be used as the evaluation criteria for the proposal, id. at 851–56.
Concerning Volume III, the Cost and Fee proposal, offerors were not required to
certify their data, as the Agency selected Alternate IV of Federal Acquisition
Regulation (FAR) section 52.215-20. Id. at 789; see AR at 755 (incorporating 48
C.F.R. § 52.215-20, Alternate IV (OCT 2010)). The offerors were instead given a
detailed description of the information to be provided. Id. at 755–68.
The solicitation identified two evaluation factors to be used in the best-value
determination: a technical factor, which was called Capabilities and Approach; and
the Cost factor. AR at 851. The seven specific topic areas under the Capabilities
and Approach factor --- which would customarily have been called “subfactors,” see
48 C.F.R. §§ 15.303(b)(4), 15.304 --- were designated as “criteria,” and the elements
under them were called “subcriteria.” 2 In weighing these factors, “Capabilities and
Approach Evaluation Criteria are significantly more important than the Probable
Cost.” AR at 851. For purposes of relative weight, the Capabilities and Approach
Evaluation Criteria were broken down into two tiers. The first tier, which
contained the most important criteria, was composed of “Strategic Vision for ORISE
as a DOE Institute”; “Leadership, Management, and Direction”; and “Program
Implementation.” Id. at 852. Each of these criteria were of equal importance to one
another. Id. The second tier of criteria, less important than the first tier, consisted
of “Relevant Experience,” “Past Performance,” “Transition,” and “Offeror’s
Commitments.” Id. Again, each of the criteria in the second tier were of equal
importance to one another, but the four of them collectively were less important
than any one of the criteria in the first tier. Id.
The first criterion, “Strategic Vision for ORISE as a DOE Institute,” had four
subcriteria. First, the Agency was to evaluate the extent to which the offeror’s
comprehensive strategic vision would enable ORISE to achieve the “DOE goals as
articulated in the Performance Work Statement.” AR at 852. Second, DOE would
evaluate the extent to which the offeror’s plan for achieving that vision would
1 The solicitation included a model version of such a small business plan for use by
offerors in submitting their proposals. AR at 678–86.
2 For the sake of consistency, the Court will use the Agency’s nomenclature
throughout this opinion.
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enable it to leverage limited resources to accomplish the goals articulated in the
PWS. Id. Third, the Agency was to evaluate the offeror’s proposed measures and
metrics of success. Id. at 853. Fourth, DOE was to evaluate the offeror’s proposed
use of available and newly-developed data to promote the continuous improvement
of ORISE. Id.
The second criterion in the first tier, “Leadership, Management, and
Direction,” had only two subcriteria. The first of these considered the qualifications
of the offeror’s proposed key personnel, as reflected in their oral presentations and
résumés. Id. Under the second subcriterion, DOE would evaluate the extent to
which the offeror’s proposed leadership team would “enhance the offeror’s ability to
overcome barriers and challenges affecting accomplishment of the PWS.” Id.
The final criterion in the first tier, “Program Implementation,” had three
subcriteria. AR at 853. Under the first, DOE was to evaluate “the
comprehensiveness, innovativeness, and feasibility of the offeror’s approach to
efficiently and effectively managing and executing the contract requirements so as
to achieve success in all areas of the work scope.” Id. The second of the subcriteria
called for the Agency to evaluate “the offeror’s plan for the use of small businesses
in work directly impacting the DOE mission.” Id. Under the final subcriterion, the
Agency was to evaluate the offeror’s proposed staff, facilities, equipment, use of
government-furnished property and equipment, and compensation of professional
employees. Id.
The first of the four criteria in the second tier, “Relevant Experience,” had
five subcriteria. AR at 854. The first subcriterion evaluated each offeror’s relevant
experience in performing work similar in size, scope, and complexity to that stated
in the PWS. Id. Under the second subcriterion, DOE evaluated the relevant
experience of proposed subcontractors, again based on work that was similar in
terms of size, scope, and complexity to the work specified in the PWS. Id. Under
the third subcriterion, the Agency would compare the prior experience of the offeror,
or the offeror’s subcontractors, to the work that each was to perform under the
proposal. Id. The fourth subcriterion noted that in the case of a newly-formed
entity, which lacked experience of its own, the Agency would evaluate the entity’s
members or parents. Id. The final subcriterion informed offerors that the DOE
“may use information obtained from reference checks to verify experience.” Id. at
854.
Under the next criterion in the second tier, “Past Performance,” the Agency
was to evaluate the offeror’s past performance, and that of its teaming partners,
using seven subcriteria. AR at 854–55. First, DOE would evaluate the quality of
products or services rendered on prior contracts. Id. at 855. Second, the Agency
would evaluate the timeliness of the delivery of those goods or services. Id. The
third subcriterion was the extent to which the offeror was able to control costs when
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performing prior contracts. Id. Fourth, the Agency was to evaluate the extent to
which the offeror employed efficient and proper business practices. Id. The fifth
subcriterion DOE would examine was overall customer satisfaction concerning past
contracts. Id. Sixth, the Agency would evaluate the extent to which an offeror had
safely conducted operations when performing prior contracts. Id. Finally, DOE
would examine the extent to which an offeror had been able to maintain the
security of sensitive data when performing prior contracts. Id.
The third criterion in the second tier concerned the offeror’s “Transition
Plan.” AR at 855. Under this criterion, DOE was to evaluate the transition plan for
“feasibility, comprehensiveness, efficiency and effectiveness, including the extent
that it provides for a smooth and orderly transition.” AR at 855–56.
The fourth and final criterion in the second tier was “Offeror’s
Commitments.” AR at 856. Such commitments were defined in section L.31(c)(7) of
the solicitation as “any proposed resources, services, support, and/or commitments
. . . that will be provided at no cost to” the Agency. Id. at 789. Under this criterion,
credit would only be given to an offeror’s commitments that would be incorporated
into the contract. AR at 856. The solicitation also informed offerors that, to the
extent that commitments were proposed from any party other than the offeror --- for
example, by “parent corporations, affiliated corporations, universities, or other
institutions” --- a letter must be provided, on official letterhead, from a person
authorized to make the commitment on behalf of that other party. AR at 789.
After the solicitation was issued, but before proposals were submitted,
prospective offerors were provided the opportunity to submit written questions to
DOE concerning the procurement. On September 1, 2015, DOE finalized a list of 42
written questions and responses, some of which had more than one part, which was
made available to prospective bidders. AR at 870–81. A total of seven questions
were asked concerning the number of incumbent contractor employees, and the
costs of employee compensation or facility maintenance incurred in connection with
the predecessor contract for the operation of ORISE. See id. at 871–72, 878–80.
This information was sought because the government would be furnishing certain
property to the contract awardee for use as part of the contract, which the awardee
would be responsible for maintaining, AR at 239–40, 564–84 (listing property the
government would furnish to the awardee), and because the awardee was obligated
to offer to retain certain incumbent personnel at comparable levels of pay and
benefits, AR at 272–73 (citing 48 CFR § 52.222-17).
The Agency did not provide any additional information concerning the
number of incumbent employees and their benefits, explaining that such
information was “a contractor record” that could not be released under the terms of
the previous contracts. AR at 871, 879–80. Regarding government-furnished
facilities, all of which were located at what was known as the “ORISE South
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Campus,” a question was asked about the awardee’s responsibility for two buildings
which were described as “pending disposal,” and the timeframe for any disposal.
AR at 871–72; see id. at 584 (listing buildings SC-9 and SC-16 as “pending
disposal”). In response, the Agency directed offerors to a document on its website
entitled the “Ten-Year Site Plan,” which indicated the government’s plans regarding
the timing of the disposal activities relating to those buildings. Id. at 872; Pl.s’ Ex.
A at 5. That plan noted that, in fiscal year 2014, 608 Full Time Equivalent (FTEs)
worked in support of the ORISE contract, and that this number was expected to rise
to 747 by 2024. Pl.’s Ex. A at 3–4. In response to a question concerning annual
expenses for maintenance activities, the Agency withheld incumbent contractor
information as “a contractor record” that could not be released, and referred offerors
to cost projections contained in the Ten-Year Site Plan. AR at 878.
C. Evaluation of Proposals and Award of Contract
1. SEB Evaluations
On September 18, 2015, DOE received two proposals, one from DRI and the
other from ORAU. AR at 886, 1451. Under the Source Selection Plan (SSP), the
Source Evaluation Board (SEB) was to consist of three voting members (including a
chairperson), eleven advisors, and five ex-officio members. AR at 44–45. The plan
also noted that additional advisors might be appointed, should additional assistance
be required during the evaluation of proposals. Id. at 45. Joseph McBrearty,
Deputy Director for Field Operations at DOE’s Office of Science, appointed Dr. Julie
A. Carruthers as the Source Selection Official (SSO) for this procurement. AR at
2200. Doctor Carruthers in turn appointed the three SEB voting members, the
initial eleven advisors, and three additional advisors. Id. at 2200–01. 3
The SSP contemplated an eleven-step process for evaluating these proposals,
beginning with an initial review to ensure that the proposals were complete and in
compliance with the solicitation instructions. AR at 52. Pursuant to that first step,
the SEB executive secretary reviewed both proposals to verify compliance with the
solicitation’s basic requirements and to determine whether the proposals were
“obviously or grossly deficient.” AR at 2213. Apparently, neither proposal was
found to present such problems during this initial review. See AR at 2213–14, 2327,
2333.
The SSP provided five adjectival ratings that evaluators would use to rate the
Capabilities and Approach factor. AR at 59–60. The possible ratings were
3 The five ex-officio members of the SEB were part of the board by virtue of their
positions within DOE. AR at 2201.
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“Excellent,” “Good,” “Satisfactory or Neutral,” “Marginal,” and “Unsatisfactory.” 4
Id. An “Excellent” proposal was to be one which “demonstrates a comprehensive
understanding of ” requirements, or “a highly effective approach,” such that there
was “a very high probability of successful contract performance” and a “likelihood
that performance expectations will be significantly exceeded.” AR at 59. For such
proposals, “the chance of unsuccessful performance is extremely low,” and they
“normally exhibit significant strength(s) and/or multiple strengths, and no
deficiencies, significant weaknesses, or weaknesses.” Id.
“Good” was the rating for a proposal which “demonstrates a noteworthy
understanding of . . . requirements” or “an effective approach,” with a “high
probability of successful contract performance” and with expectations likely to be
exceeded. Id. Such a proposal would “exhibit significant strength(s) and/or
strength(s) that collectively provide notable benefit to the Government, few, if any
significant weaknesses, and/or weaknesses, no deficiencies,” and present a “very
low” risk of unsuccessful performance. Id.
Proposals rated “Satisfactory” were to demonstrate “an adequate
understanding of . . . requirements” and “an acceptable approach,” with “a likely
probability of successful contract performance.” These would “exhibit significant
strength(s) and/or strength(s) and offsetting significant weaknesses and/or
weaknesses or deficiencies,” or have minimally important (or no) strengths or
weaknesses, and have a risk of unsuccessful performance which is considered “low.”
Id. at 59–60.
A “Marginal” proposal would be one which “demonstrates a limited
understanding of the contract” or an approach with “an unlikely probability of
achieving successful contract performance.” AR at 60. These proposals “would
normally” contain “few, if any, significant strengths and/or strengths, which are
outweighed by the impact of weaknesses, significant weakness(es), or
deficiency(ies),” and present a “significant” risk of unsuccessful performance. Id.
Finally, “Unsatisfactory” proposals would “demonstrate[ ] an inadequate
understanding of . . . requirements” and be “highly unlikely” to achieve successful
performance. Id. These would have “no significant strengths or strengths,
numerous significant weaknesses and/or weaknesses, and at least one deficiency,”
and would present an “unacceptable level of risk.” Id.
Pursuant to the SSP, no adjectival ratings were to be employed for the
evaluation of cost proposals. AR at 50. Proposals were to be evaluated for cost
realism and cost reasonableness, to assess whether each offeror understood
requirements, and to derive a probable cost. Id. The members of the SEB were not
4 The adjectival ratings were not described in the solicitation, see AR at 851–56, nor
otherwise released to offerors.
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to view cost information until they had finalized their technical evaluations. Id. at
60. The SEB’s technical evaluation of cost information could involve up to five
separate aspects. These were an examination of an offeror’s total full-time
equivalents (FTEs) and labor mix; a technical analysis to determine the
reasonableness of proposed resource use; the ensuring of consistency with the
strengths and weaknesses identified in the Capabilities and Approach factor review;
the comparison of the offeror’s cost information to the independent government cost
estimate; and the development of and justification for any cost adjustments. Id. at
60–61. The SEB would also review the draft “Cost Report” prepared by the SEB
advisors, “to determine if the cost is fair and reasonable.” AR at 61; see also id. at
55.
The SEB first evaluated Volume II of the offerors’ proposals under the
Capabilities and Approach factor. Id. at 2214. This process began with each voting
member of the SEB conducting a thorough review of both proposals. Id. at 2215.
During this review of Volume II of the proposals, no SEB member identified any
aspects of the proposals which required clarification. Id. Next, voting members of
the SEB, the SSO, the SEB’s legal advisor, the Contracting Officer, and the
Executive Secretary, attended both offerors’ oral presentations on October 7, 2015
and October 8, 2015. AR at 2205, 2215–16. The SEB then evaluated each offeror’s
past performance information. Id. at 2216. After they had independently reviewed
the proposals, and after the offerors had made their oral presentations, the voting
members of the SEB met to conduct a consensus evaluation and arrive at a
consensus rating for each proposal. Id. at 2216–17. Though the Source Selection
Plan had a process for preparing dissenting opinions, no such opinions were
generated by the SEB. Id. at 58, 2217, 2333.
The SEB’s 129-page consensus report was completed on February 18, 2016.
AR at 2193, 2323. In its overview of the proposals received, the SEB noted that
ORAU had proposed no major subcontractors or teaming partners, but DRI had
proposed five major subcontractors. AR at 2199. The SEB summarized the results
of its technical evaluations in a table format. With respect to the first tier of
criteria, the SEB assigned DRI a rating of Satisfactory for Strategic Vision, and
ORAU received an Excellent. Id. Under Leadership, Management, and Direction,
DRI received a Marginal rating and ORAU received a rating of Satisfactory. Id.
And for Program Implementation, DRI received a Satisfactory rating and ORAU
was rated as Good. Id. In short, for each of the most important technical criteria,
ORAU received a better rating than DRI.
Turning to the four criteria in the second tier, for Relevant Experience the
SEB assigned DRI a rating of Satisfactory and ORAU was rated as Excellent. AR
at 2199. Under Past Performance, both offerors received a Good rating. Id. Under
the Transition Plan criterion, DRI received a Good rating, while ORAU was
assigned but a Marginal rating. Id. And finally, DRI received a Satisfactory rating
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for Offeror’s Commitments, and ORAU was rated as Excellent. Id. Thus, for the
less important technical criteria, ORAU received an equal or superior rating to DRI
for all but one criterion.
The SEB began its review of both proposals by reviewing Volume I of each.
AR at 2224. The SEB determined that both offerors had submitted, in most
respects, complete proposals. 5 As is relevant to this protest, it was observed that
both offerors had submitted small business plans. AR at 2224–25. The SEB did
note, however, that DRI had failed to submit properly authorized letters of
commitment from entities other than DRI that were purportedly offering property
or services at no cost to the government. Id. at 2224. The SEB considered this
omission in its evaluation of Volume II of DRI’s proposal. Id.
Concerning the SEB’s evaluation of Volume II, DRI’s protest focuses on five of
the criteria, the relevant findings of which are discussed below. The SEB assigned
four weaknesses to DRI’s proposal under the Strategic Vision criterion. AR at
2227–28. The first weakness related to DRI’s proposal to move the Radiation
Emergency Assistance Center/Training Site (REAC/TS) facility to a new, as yet
unspecified, location. AR at 2229. The SEB found that DRI provided insufficient
details about this proposed move, such as the resources involved, creating doubt as
to DRI’s ability to leverage limited resources to accomplish the contract objectives
and increasing the chance of unsuccessful contract performance. Id. The SEB also
assigned DRI a weakness under this criterion for providing insufficient information
concerning how it would achieve both its overall long-term vision for ORISE as an
enterprise and the goals stated in the PWS, AR at 2230; for not communicating a
vision for Science and Technical Resource Integration (STRI) to meet peer review
goals, AR at 2230–31; and for purportedly proposing to expand certain REAC/TS
and Independent Environmental Assessment and Verification (IEAV) activities
beyond those stated in the PWS, AR at 2231.
The SEB assigned DRI several weaknesses under the Leadership,
Management, and Direction criterion. AR at 2242. 6 One weakness was based on a
combination of findings --- none of the members of DRI’s proposed management
team were able to satisfactorily answer a question concerning the DOE’s Office of
Sciences peer review process, four key individuals lacked the requisite qualifications
on paper, and another failed to show leadership ability during the oral
presentations. AR at 2244–45. The SEB likewise assigned a weakness to DRI’s
5 The SEB did note that DRI failed to include a cover letter with its Volume I, but
considered this omission to be administrative in nature and accordingly did not
penalize DRI for it. AR at 2224.
6Although in its rating discussion the SEB states that five weaknesses were found,
AR at 2242, only four appear to be described, see id. at 2243–46.
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proposal because its proposed director’s résumé, though listing both governmental
and private sector executive experience, did not clearly reflect experience leading a
large organization with a wide mission scope, as required for the ORISE contract.
Id. at 2246. Another weakness was based on DRI’s having proposed a new
emergency preparedness position, to be held by a key person, which the SEB did not
find adequately explained. AR at 2244.
In the evaluation of DRI’s proposal under the Program Implementation
criterion, the SEB identified four weaknesses and one significant weakness. AR at
2252. The significant weakness was assigned because the SEB determined that
DRI had failed to provide sufficient detail in explaining the proposed labor mix and
staffing levels. AR at 2255–56. Under this criterion, the SEB assigned a significant
weakness to ORAU due to the offeror’s limited reliance on small businesses. AR at
2261. The SEB determined that this was a significant flaw in the proposal as
ORAU’s proposed small business participation was limited to ancillary aspects of
the contract. Id. By contrast, one of DRI’s two strengths under this criterion was
for its proposed use of multiple small businesses to do core contract work. AR at
2253. 7
With respect to the Transition Plan criterion, the SEB assigned ORAU a
significant weakness and no strengths, weakness, or deficiencies, resulting in a
rating of Marginal. AR at 2273. This low rating was due to the SEB treating the
ORAU proposal as lacking a formal transition plan, as the submitted Volume II
exceeded the relevant page limit, resulting in the excessive pages (including the
formal plan) being disregarded. AR at 2273–75. The SEB determined, however,
that sufficient information was provided concerning transition in those parts of the
proposal that were evaluated, such as the proposed use of a dedicated transition
manager and continued use of existing facilities, to justify finding the proposal to be
Marginal, rather than Unacceptable, under this criterion. Id.
Regarding the final relevant criterion, Offeror’s Commitments, DRI was
assigned a weakness because the proposal did not include commitment letters from
the third parties that DRI claimed would be providing goods or services, at no cost
to the government, for use in the ORISE contract. AR at 2277. The SEB noted that
such letters were required by the solicitation and that the failure to include them
increased the risk of unsuccessful contract performance. Id.
After completing its technical evaluations, the SEB evaluated Volume III of
the offerors’ proposals --- the cost and fee information. AR at 2278–79. In its
evaluation of DRI’s cost and fee information, the SEB noted that the proposal
appeared to be missing a workbook, entitled “Estimate Assumptions,” that was to
7 Under this criterion, ORAU was assigned six strengths, two weaknesses, and the
one significant weakness. AR at 2256–61.
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provide information concerning the basis for DRI’s estimated costs. AR at 2296.
The omission of the workbook, DRI’s reliance on its unexplained “professional
judgment,” and the lack of a narrative explanation for its methodology left the SEB
without the ability to assess DRI’s proposed costs. AR at 2296–97. Accordingly, the
SEB determined that no adjustments would be made to DRI’s costs to arrive at a
most probable cost of performance, but also determined that most of DRI’s proposed
costs were unrealistic for lack of support. See id. at 2296–309. With respect to
labor hours, the SEB noted that DRI had based its overall headcount on historical
data regarding FTEs under the predecessor contract but that DRI’s technical
approach to the current ORISE contract was not similar to that previously
employed. AR at 2300–01. Accordingly, in the view of the SEB, historical costs
would be an improper basis upon which to analyze whether DRI’s costs were
realistic. Id.
2. Source Selection Decision
On March 2, 2016, the SSO, in her 21-page Source Selection Decision,
determined that the contract would be awarded to ORAU. AR at 2326, 2345. As
did the SEB, the SSO noted that the material submitted by ORAU which exceeded
the page limit was not considered during the evaluation. AR at 2333. The SSO
determined that the SEB’s evaluation was properly conducted and consistent with
the evaluation criteria listed in the solicitation. Id. She noted that she agreed with
all of the evaluation rankings the SEB had assigned to the two proposals, but had
made certain additional observations about those proposals. AR at 2334. Based on
her review of the proposals and the SEB’s ratings, the SSO determined that
ORAU’s proposal was technically superior to DRI’s. AR at 2336. She based this
determination largely on the fact that ORAU received superior ratings in five of the
eight technical criteria, including all three of the more important criteria. Id. With
regard to the evaluation of DRI’s proposal under the Strategic Vision criterion, the
SSO observed that DRI’s proposed focus on primary and secondary STEM outreach
and education was not well aligned with the ORISE contract’s focus, which is
principally on education at the undergraduate level and above. AR at 2336–37.
With respect to the Program Implementation criterion, the SSO echoed the SEB’s
concerns that ORAU had failed to make sufficient use of small businesses in DOE
mission-related work areas. AR at 2339. The SSO noted that DRI was superior
with respect to its use of small businesses, but that its proposal was inferior under
this criterion taken as a whole. AR at 2339–40.
Turning to the Cost factor, the SSO noted that the proposed costs were “very
close” between the two proposals. AR at 2343. She agreed with the SEB’s
determination that most of DRI’s costs were unrealistic, that a probable cost figure
for DRI could not be derived, and that ORAU’s proposed cost was reasonable. Id.
The SSO then proceeded to the best value determination. Due to the inability to
confirm that the proposed costs were realistic, the SSO concluded that DRI’s
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“proposal is unacceptable and cannot be considered for award.” AR at 2344. She
nevertheless conducted a best-value tradeoff using DRI’s proposed cost, and
determined that the benefits from ORAU’s technical approach under the three first-
tier criteria and the second-tier criterion of Offeror’s Commitments “far outweigh
any perceived savings” from DRI’s lower proposed cost. Id. 8 The SSO noted that
ORAU also proposed a lower maximum award fee, and that the risk posed by
ORAU’s lack of a formal transition plan was manageable. 9 She concluded that “the
overall technical superiority of the ORAU proposal is of better value to the
Government” than DRI’s proposal, and accordingly awarded the ORISE contract to
ORAU. AR at 2344–45.
3. Debriefing
On March 10, 2016, DRI was informed by letter that its offer had been
rejected and that ORAU had been selected to receive the contract. AR at 2386.
Attached to the letter was a written debriefing document, which informed DRI of its
technical evaluation ratings and the strengths and weaknesses assigned by the
SEB. AR at 2388–405. That document also disclosed the Agency’s cost analysis of
DRI’s proposal, and noted the inadequacies in the information provided --- including
the absence of the workbook --- that had led the SEB and the SSO to determine that
DRI’s costs of performance could not be determined with any certainty. AR at
2406–07. An oral debriefing was offered, see AR at 2387, which DRI apparently
received within a week, Compl. ¶ 5.
D. The Protest Filed with the Court
On March 24, 2016, the Board of Regents of the Nevada System of Higher
Education filed a bid-protest on behalf of DRI, contending that the DOE’s decision
to award the ORISE contract to ORAU was arbitrary, capricious, and violative of
law and regulation. Compl. In that complaint, plaintiff asserts five separate
protest grounds. Compl. ¶¶ 5(A)–(E). First, plaintiff alleges that DOE evaluated
the proposals based on unstated evaluation criteria, because the solicitation did not
include the definitions of the adjectival ratings or explain how an offeror could
obtain a particular rating. Id. ¶¶ 6, 8. Under this ground, DRI argues that the
Agency failed to rank the proposals, making any best value determination
arbitrary. Id. ¶¶ 9–10. Second, plaintiff claims that the Agency erred in failing to
request a clarification from DRI, after the Agency discovered that the workbook
8 The total probable cost of ORAU’s proposal, including the maximum award fee,
was $3,214,160,771, which was 2.7% higher than DRI’s proposed cost and fee of
$3,130,764,506. See AR at 2334.
9 The maximum award fee under the ORAU proposal was $57,091,516, compared to
$76,059,587 under the DRI proposal. AR at 2344.
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“Estimate Assumptions.xlsx” was omitted from Volume III of DRI’s proposal. Id.
¶ 11. Plaintiff alleges that during the debriefing, the Agency stated that it did not
request a clarification regarding this because it believed that doing so would have
constituted discussions, requiring the Agency to communicate with ORAU as well.
Id. ¶ 12.
Third, plaintiff alleges that the Agency’s refusal to disclose certain
information regarding the number of FTEs employed under the predecessor ORISE
contract, as well as their compensation and labor mix, was improper. Compl.
¶¶ 15–17. In support of this claim, plaintiff notes that its proposal was criticized for
its proposed labor mix and method for estimating labor costs, which it claims was
the result of the Agency’s refusal to disclose the incumbent’s labor information. Id.
¶¶ 17, 19. Under the fourth ground, plaintiff challenges several evaluation
determinations that it contends were erroneous or reflect disparate treatment. Id.
¶¶ 20, 22, 25, 29–30. Plaintiff takes issue with the following six evaluation
decisions: the negative evaluation DRI received for its technical understanding of
DOE’s peer review process, id. ¶¶ 20–21; the assignment of a weakness to DRI’s
proposal regarding its proposed move of the REAC/TS to a larger space, id. ¶¶ 22–
24; the SSO’s assessment of qualifications of DRI’s proposed program director, id.
¶¶ 25–26; the SSO’s characterization of DRI’s emergency management proposal, id.
¶¶ 27–28; the SSO’s determination that DRI’s proposal contained both a strength
and a weakness regarding STRI, id. ¶ 29; and the assignment of weaknesses to DRI
for failure to follow DOE’s “Strategic Vision” or advance its “goals,” which plaintiff
alleges were not defined in the solicitation, id. ¶¶ 30–31. Plaintiff’s fifth ground
alleges that the SSO was excessively involved in the procurement and acted in a
partisan manner, rendering her decision insufficiently “independent” to comply with
48 C.F.R. § 15.308. Compl. ¶¶ 32–36. Plaintiff requested a remand to the Agency
to correct the purported evaluation errors, as well an award of bid preparation and
proposal costs and of its attorney’s fees for bringing this protest. Id. ¶ 37
In its motion for judgment on the administrative record, plaintiff makes five
arguments in support of its protest, which differ somewhat from those in the
complaint. 10 Pl.’s Mot. for J. on the R. (Pl.’s Mot.) at 2, 8, 12, 15, 22. First, it argues
that ORAU’s proposal failed to contain certain required information, and
accordingly should have been either rejected as nonresponsive or evaluated less
favorably. Id. at 2–8. Next, plaintiff argues that, once the Agency realized the
workbook containing supporting cost information was omitted from DRI’s Volume
III, the Agency should have either immediately eliminated DRI from consideration
10 To the extent any specific matters alleged in the complaint were not raised in
plaintiff ’s briefs on the motions for judgment, such claims have dropped out of this
case. Res Rei Dev., Inc. v. United States, 126 Fed. Cl. 535, 546 n.17 (2016) (citing
Commissioning Sols. Glob., LLC v. United States, 97 Fed. Cl. 1, 2–3 n.2 (2011)).
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or sought a clarification. Id. at 8–12. Third, plaintiff argues that DOE improperly
refused to release certain information related to the staffing levels, labor mix, and
compensation paid under the predecessor ORISE contract, negatively impacting
DRI’s proposal. Id. at 12–15. Under this ground, DRI also contends that it based
its proposed staffing on the 608 FTEs that the Ten-Year Site Plan, referenced by the
Agency, stated were employed in 2014 under the predecessor contract. Id. at 14–15.
Plaintiff contends that this document either misled it, or shows that ORAU’s much
lower proposed direct labor of [XXX] FTEs was judged under a different standard
from DRI’s proposal. Id.
Plaintiff’s fourth argument concerns a number of challenges to specific
determinations of the SEB. Pl.’s Mot. at 15–24. 11 The first of these is DRI’s claim
that its proposal was improperly criticized for not including commitment letters
from other entities that were promising to provide certain property or assistance at
no cost to the government. Id. at 16–17. Next, DRI contends that its proposal was
improperly downgraded by the evaluators for suggesting that DRI would study a
move of the REAC/TS facility to a larger location. Id. at 18–19. Third, plaintiff
disputes the weaknesses identified for its proposed management team. Id. at 19–
20. Plaintiff ’s next argument is that its key personnel were improperly faulted for
not being familiar with DOE’s Office of Sciences peer review process. Id. at 20–21.
Plaintiff also contends that ORAU should not have received a strength under the
Program Implementation criterion for its use of a part-time workforce. Id. at 21–22.
Finally, DRI maintains that the Agency treated offerors disparately by not imposing
on the incumbent the expenses of relocating operations from the ORISE North
Campus facilities owned by ORAU to the South Campus facilities owned by DOE.
Id. at 22.
In its fifth argument, DRI reapplies all of its criticisms of the SEB’s findings
to the SSO, for having adopted them. Pl.’s Mot. at 22. It argues that the SSO
mischaracterized the SEB’s findings concerning DRI’s capability to leverage limited
resources. Id. at 23. Plaintiff further contends that the SSO based her assessment
of its proposal on her subjective views of DOE’s goals, and improperly criticized DRI
for focusing more on primary and secondary STEM education. Id.
Defendant, and defendant-intervenor, have filed motions for judgment on the
administrative record, in which they argue that all of plaintiff ’s contentions are
either untimely, without merit, or both. Def.’s Resp. in Opp’n to Pl.’s Mot. for J. on
the Admin. R. and Cross Mot. for J. on the Admin. R. (Def.’s Mot.); Intervenor’s
Resp. and Cross Mot. for J. on the R. (Int.’s Mot.). Together, they argue that any
protest grounds based on the Agency’s failure to disclose information or evaluative
11This argument begins with some “general comments” that evaluation factors
“were amorphous, vague, extremely subjective, and slanted,” and that DOE’s “goals”
and “vision” were not defined in the solicitation. Pl.’s Mot. at 15–16.
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criteria, or challenges to the substance of those criteria that were disclosed, are
untimely under Blue & Gold Fleet, L.P. v. United States, 492 F.3d 1308 (Fed. Cir.
2007). Def.’s Mot. at 19, 28; Int.’s Mot. at 31–33. Regarding the challenges to the
technical evaluations, they contend these represent mere disagreements with the
Agency’s technical judgments, and accordingly do not state a valid protest ground.
Def.’s Mot. at 11–22, 25–33, 34–41; Int.’s Mot. at 21–31, 34–48. Defendant and
defendant-intervenor also contend that the Agency properly determined that
ORAU’s proposal met all solicitation requirements and accordingly was acceptable
for award. Def.’s Mot. 11–17; Int.’s Mot. at 21–26. After reply papers were filed by
all parties, the Court held a hearing on the motions, at which all three parties
participated. This opinion issues after a careful review of the arguments made at
the hearing and in the briefs and the authorities cited, as well as a thorough
consideration of the pertinent documents in the administrative record.
II. DISCUSSION
A. Legal Standards
1. Judgment on the Administrative Record in a Bid Protest
Bid protests are heard by this court under the Tucker Act, as amended by the
Administrative Dispute Resolution Act of 1996 (ADRA), Pub.L. No. 104–320,
§ 12(a)–(b), 110 Stat. 3870, 3874. The relevant provision requires our court to follow
Administrative Procedure Act (APA) standards of review in bid protests. 28 U.S.C.
§ 1491(b)(4). Those standards, incorporated by reference, provide that a:
reviewing court shall . . . (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 [¶] (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 (2012).
Based on an apparent misreading of the legislative history, see Gulf Grp., Inc.
v. United States, 61 Fed. Cl. 338, 350 n.25 (2004), the Supreme Court had
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determined, before the 1996 enactment of the ADRA, that the de novo review
standard of 5 U.S.C. § 706(2)(F) does not usually apply in review of informal agency
decisions --- decisions, that is, such as procurement awards, see Citizens to Pres.
Overton Park, Inc. v. Volpe (Overton Park), 401 U.S. 402, 415 (1971). Instead,
courts in those cases are supposed to apply the standard of 5 U.S.C. § 706(2)(A):
whether the agency’s acts were “arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law.” See Overton Park, 401 U.S. at 416 (citation
omitted); see also Advanced Data Concepts, Inc. v. United States, 216 F.3d 1054,
1057 (Fed. Cir. 2000) (applying 5 U.S.C. § 706(2)(A)). But see Impresa Construzioni
Geom. Domenico Garufi v. United States (Domenico Garufi), 238 F.3d 1324, 1332
n.5 (Fed. Cir. 2001) (also citing 5 U.S.C. § 706(2)(D) as applicable in bid protests).
The “focal point for judicial review” is usually “the administrative record already in
existence,” Camp v. Pitts, 411 U.S. 138, 142 (1973), even when the matter under
review was not the product of a formal hearing, see Fla. Power & Light Co. v.
Lorion, 470 U.S. 729, 744 (1985); Axiom Res. Mgmt., Inc. v. United States, 564 F.3d
1374, 1379 (Fed. Cir. 2009).
A motion for judgment on the administrative record under Rule 52.1 of the
Rules of the United States Court of Federal Claims (RCFC) differs from motions for
summary judgment under RCFC 56, as the existence of genuine issues of material
fact does not preclude judgment on the administrative record. See Bannum, Inc. v.
United States, 404 F.3d 1346, 1355–57 (Fed. Cir. 2005); Fort Carson Supp. Servs. v.
United States, 71 Fed. Cl. 571, 585 (2006). Rather, a motion for judgment on the
administrative record examines whether the administrative body, given all the
disputed and undisputed facts appearing in the record, acted in a manner that
complied with the legal standards governing the decision under review. See Fort
Carson, 71 Fed. Cl. at 585; Greene v. United States, 65 Fed. Cl. 375, 382 (2005);
Arch Chems., Inc. v. United States, 64 Fed. Cl. 380, 388 (2005). Factual findings are
based on the evidence in the record, “as if [the court] were conducting a trial on the
record.” Bannum, 404 F.3d at 1357; see also Carahsoft Tech. Corp. v. United States,
86 Fed. Cl. 325, 337 (2009); Gulf Grp., 61 Fed. Cl. at 350.
Under the “arbitrary and capricious” standard, the court considers “whether
the decision was based on a consideration of the relevant factors and whether there
has been a clear error of judgment” by the agency. Overton Park, 401 U.S. at 416.
Although “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.” Id.
The court will instead look to see if an agency has “examine[d] the relevant data
and articulate[d] a satisfactory explanation for its action,” Motor Vehicle Mfrs. Ass’n
v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983), and “may not supply a
reasoned basis for the agency’s action that the agency itself has not given,” Bowman
Transp., Inc. v. Ark.-Best Freight Sys., Inc., 419 U.S. 281, 285–86 (1974). The court
must determine whether “the procurement official’s decision lacked a rational
basis.” Domenico Garufi, 238 F.3d at 1332 (adopting APA standards the D.C.
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Circuit developed); see also Delta Data Sys. Corp. v. Webster, 744 F.2d 197, 204
(D.C. Cir. 1984). A second ground for setting aside a procurement decision is when
the protester can show that “the procurement procedure involved a violation of
regulation or procedure.” Domenico Garufi, 238 F.3d at 1332. This showing must
be of a “clear and prejudicial violation of applicable statutes or regulations.” Id. at
1333 (quoting Kentron Haw., Ltd. v. Warner, 480 F.2d 1166, 1169 (D.C. Cir. 1973)).
Under the first rational basis ground, the applicable test is “whether ‘the
contracting agency provided a coherent and reasonable explanation of its exercise of
discretion.’” Domenico Garufi, 238 F.3d at 1333 (quoting Latecoere Int’l, Inc. v.
United States Dep’t of Navy, 19 F.3d 1342, 1356 (11th Cir. 1994)). This entails
determining whether the agency “‘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 made a decision that was “‘so implausible that it
could not be ascribed to a difference in view or the product of agency expertise.’”
Ala. Aircraft Indus., Inc.-Birmingham v. United States, 586 F.3d 1372, 1375 (Fed.
Cir. 2009) (quoting Motor Vehicle Mfrs. Ass’n, 463 U.S. at 43).
Because of the deference courts give to discretionary procurement decisions,
“the ‘disappointed bidder bears a heavy burden of showing that the [procurement]
decision had no rational basis.’” Domenico Garufi, 238 F.3d at 1333 (quoting
Saratoga Dev. Corp. v. United States, 21 F.3d 445, 456 (D.C. Cir. 1994)). The
protester must demonstrate, by a preponderance of the evidence, the absence of any
rational basis for the agency decision. See Overstreet Elec. Co. v. United States, 59
Fed. Cl. 99, 117 (2003); Info. Tech. & Appl’ns Corp. v. United States, 51 Fed. Cl. 340,
346 (2001) (citing GraphicData, LLC v. United States, 37 Fed. Cl. 771, 779 (1997)),
aff’d, 316 F.3d 1312 (Fed. Cir. 2003). If arbitrary action is found as a matter of law,
the court will then decide the factual question of whether the action was prejudicial
to the bid protester. See Bannum, 404 F.3d at 1351–54.
2. Injunctive Relief
In a bid protest, the court has the power to issue a permanent injunction
pursuant to 28 U.S.C. § 1491(b)(2). In determining whether to grant a motion for a
permanent injunction, the court applies a four-factored standard, under which a
plaintiff must show: (a) that it has actually succeeded on the merits; (b) that it will
suffer irreparable harm if the procurement is not enjoined; (c) that the harm it will
suffer, if the procurement action is not enjoined, will outweigh the harm to the
government and third parties; and (d) that granting injunctive relief serves the
public interest. Centech Grp., Inc. v. United States, 554 F.3d 1029, 1037 (Fed. Cir.
2009); PGBA, LLC v. United States, 389 F.3d 1219, 1228–29 (Fed. Cir. 2004); MORI
Assocs., Inc. v. United States, 102 Fed. Cl. 503, 551–53 (2011). None of the four
factors, standing alone, is dispositive; thus, “the weakness of the showing regarding
one factor may be overborne by the strength of the others.” FMC Corp. v. United
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States, 3 F.3d 424, 427 (Fed. Cir. 1993); AshBritt, Inc. v. United States, 87 Fed. Cl.
344, 378 (2009). Conversely, the lack of an “adequate showing with regard to any
one factor may be sufficient, given the weight or lack of it assigned the other
factors,” to deny the injunction. Chrysler Motors Corp. v. Auto Body Panels of Ohio,
Inc., 908 F.2d 951, 953 (Fed. Cir. 1990). A lack of success on the merits, however,
precludes the possibility of an injunction. See Amoco Prod’n Co. v. Vill. of Gambell,
480 U.S. 531, 546 n.12 (1987) (explaining that a permanent injunction requires
“actual success” on the merits); Tech Sys., Inc. v. United States, 98 Fed. Cl. 228, 268
(2011); Gulf Grp., 61 Fed. Cl. at 364.
B. Analysis
Plaintiff makes five separate arguments in support of its protest. The first
three involve claims that the Agency did not follow either the terms of the
solicitation or the FAR, and the final two challenge several evaluation decisions as
arbitrary.
1. ORAU’s Proposal Included All Required Information
Plaintiff contends that ORAU’s proposal failed to include two items required
by the solicitation --- a Small Business Subcontracting Plan and a transition plan.
Pl.’s Mot. at 2, 6. With respect to the first point, defendant and intervenor both
correctly point out that plaintiff is confusing the Small Business Subcontracting
Plan with an offeror’s proposed use of small businesses. Def.’s Mot. at 11–15; Int.’s
Mot. at 22–24. The former was required to be included in Volume I of an offeror’s
proposal, while the latter was a subcriterion of the Program Implementation
criterion used to evaluate Volume II. Compare AR at 776–77 (describing the Small
Business Subcontracting Plan) with AR at 853 (explaining small business use
subcriterion). As the SEB noted in its evaluation of ORAU’s proposal, a fully
executed Small Business Subcontracting Plan was included with that proposal. AR
at 2224–25; see also AR at 1472, 1482–92 (ORAU Small Business Subcontracting
Plan).
Plaintiff stresses that under the Program Implementation criterion, offerors
were to be evaluated on the extent to which they proposed using small business in
areas “directly impacting” the DOE’s mission, and that ORAU proposed using small
business subcontractors only in support roles. Pl.’s Mot. at 5–6; see AR at 853
(evaluation subcriterion for use of small business under the Program
Implementation criterion); AR at 1563–65 (ORAU proposes using small business
subcontractors for services such as information technology, meeting planning and
travel services). The SEB determined that this limited use of small businesses was
a “significant weakness” in ORAU’s proposal. AR at 2261. Plaintiff argues that this
should be downgraded to a deficiency. Pl.’s Mot. at 5–6. But DRI has identified no
objective errors or subjective inconsistencies connected with this particular rating,
and thus there is no basis for the Court to find it arbitrary or unlawful. See
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USfalcon, Inc. v. United States, 92 Fed. Cl. 436, 461 (2010). Plaintiff ’s challenge
amounts to a request that the evaluation be second-guessed, which is not the
province of a reviewing court. E.W. Bliss Co. v. United States, 77 F.3d 445, 449
(Fed. Cir. 1996).
The second point raised by DRI is its contention that ORAU’s proposal should
have been excluded from award consideration based on the failure to include a
transition plan. Pl.’s Mot. at 6–8. One of the seven “[s]pecific [a]reas to be
[a]ddressed” by offerors in Volume II was a transition plan, which was to be “a
detailed and comprehensive plan.” AR at 779, 788. Offerors were told that this
plan “should describe” a “management approach” and the maintenance of a
“continuity of operations,” and “should include” seven different transition activities.
AR at 788. Under the Transition Plan evaluation criterion, this plan was to “be
evaluated with respect to its feasibility, comprehensiveness, efficiency and
effectiveness, including the extent to which it provides for a smooth and orderly
transition, identifies key issues and milestones, identifies potential barriers to a
smooth transition, proposes solutions to the barriers identified, and minimizes
impacts on continuity of operations.” AR at 856.
The transition plan of ORAU was described on pages 64 through 69 of
Volume II of the proposal submitted. See AR at 1572–77. Intervenor, however,
neglected to include in its page count the nine pages at the front of this volume
which contained its list of acronyms and a “crosswalk” matching proposal portions
with solicitation provisions. See AR at 1500–08. Such materials were not
excludable from the 70-page limit, AR at 778–79, and accordingly the Contracting
Officer determined that numbered page 61 was the last page of the volume that
could be evaluated. AR at 2048. The remainder of the volume, including the pages
describing the transition plan, were removed from the proposal before it was
evaluated. 12 AR at 2274, 2333, 2341–42.
The SEB rated ORAU’s proposal under the Transition Plan criterion as
Marginal, with a significant weakness and no strengths --- deciding that the
absence of a formal transition plan decreased the likelihood of successful contract
performance, but that there was sufficient information in the remainder of the
proposal regarding transition to mitigate this risk. AR at 2274–75. In particular,
the SEB noted the presence of “information related to the use of existing facilities
and systems, the transition manager, retention of current key personnel,
continuation of employee pay and benefits, and confirmation that right of first
refusal will be offered,” as well as “information related to relevant experience in
transitioning and performing work under the current contract.” AR at 2273–74.
12 The information on numbered page 70, concerning corporate commitments, AR at
1578, did not count toward the page limit, AR at 779, and was also reviewable, AR
at 2048.
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Plaintiff does not dispute that this information was contained in the ORAU
proposal, which touched on most if not all of the transition activities that offerors
were advised to include in a transition plan. See AR at 788 (listing, among other
things, plans for operational control of facilities, handling incumbent employees,
transferring government property, and assuming control of business and
management systems); AR at 1511, 1530–32 (ORAU proposal discussing transition
approach to facilities, equipment and systems, retention of personnel and benefits,
and transition manager). The SSO concurred in the SEB’s findings and conclusion,
noting that the absence of a formal transition plan in the ORAU proposal was a
significant weakness, but that there was sufficient information provided relating to
transition activities to reduce the risks associated with this flaw to a manageable
level. AR at 2341–42.
Plaintiff argues that the absence of a formal transition plan from the ORAU
proposal should have resulted in the proposal’s exclusion from the competition, or at
least in a finding of a deficiency and a lower rating. Pl.’s Mot. at 7–8. But DRI has
provided no reason why the information in the ORAU proposal relating to transition
could not be considered as meeting the basic requirements of a transition plan,
albeit one not as detailed and comprehensive as the Agency desired. The SEB gave
a rational explanation of how information in the ORAU proposal addressed
transition activities and reduced risk to the continuity of operations. AR at 2274–
75. It also acknowledged that the absence of information concerning key issues,
milestones, and potential barriers and their solutions, “appreciably increases the
risk of unsuccessful contract performance,” AR at 2275, justifying the finding of a
significant weakness, see AR at 2217. The SSO rationally explained how the
information in the ORAU proposal allowed for an assessment of “the feasibility,
comprehensiveness, efficiency and effectiveness of the offeror’s transition activities,”
making the risk manageable. AR at 2342. While DRI may disagree with these
assessments, it has not identified any objective errors or subjective inconsistencies
that could render the judgment arbitrary. See USfalcon, 92 Fed. Cl. at 461. 13
13 Plaintiff argues that at least one SEB member might have improperly reviewed
ORAU’s formal transition plan, as his preliminary notes stated that ORAU’s
transition plan was “very thorough and should provide for a successful transition.”
Pl.’s Mot. at 7 (quoting AR at 2904). But this was clearly a typographical error, as
the page and section numbers cited in this draft evaluation, AR at 2904, match
those containing the transition plan in DRI’s proposal and not in ORAU’s proposal,
see AR at 981–92, 1572–77, and the identical comment was made about DRI’s
transition plan, see AR at 2887.
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2. The Agency’s Failure to Seek Clarification from DRI Was Neither Improper
Nor Prejudicial
Plaintiff ’s second protest ground concerns the failure of its proposal to
contain a working link to data that was apparently contained in a workbook called
“Estimate Assumptions.xlsx.” See Pl.’s Mot. at 8–12; Pl.’s Reply Br. to Mot. for J. on
the R. (Pl.’s Reply) at 2–6. The solicitation required that Volume III, each offeror’s
cost proposal, explain any “conditional assumptions” and contain as exhibits
spreadsheets in which “[a]ll cell formulas must be included.” AR at 767–68.
Offerors were told that the cost evaluation was to determine the probable cost of
their approach, and that “[t]he Government will evaluate the offeror’s cost proposal,
supporting data, basis of estimate, and cost assumptions to determine cost realism,
cost reasonableness and the offeror’s understanding of the contract requirements.”
AR at 856. The spreadsheets containing DRI’s cost data exhibits and schedules, AR
at 1302–73, reference the “Estimate Assumptions.xlsx” workbook in the formulas
depicted for certain cells, but the link to that workbook could not be opened by the
advisors preparing the cost report, AR at 2155. Without access to this data, and
absent an adequate explanation of DRI’s cost estimating methodology in the Volume
III text, the advisors could not determine the realism and reasonableness of the
proposed costs and as a consequence could not derive any probable costs for
plaintiff. AR at 2155–62.
Plaintiff argues that its omission of the workbook data either was a clerical
error that should have been the subject of a clarification request under 48 C.F.R.
§ 15.306(a)(2), or was a material defect making its proposal nonresponsive --- in
which case the proposal should have been rejected before the evaluation stage of the
procurement process. Pl.’s Mot. at 10–11; Pl.’s Reply at 3–5. Taking the latter (and
more novel) argument first, DRI contends that the Contracting Officer informed its
representatives during the oral debriefing “that the absence of the ‘workbook’ was
noticed when the Plaintiff ’s Proposal was first reviewed.” Pl.’s Reply at 3. The
record contains no support for this contention. Moreover, while the initial review of
proposals conducted by the SEB Executive Secretary could have resulted in the
decision to eliminate a proposal “before a detailed evaluation is performed,” the SSP
did not mandate such a result and allowed it only when a “proposal is determined to
be so grossly and obviously deficient as to be totally unacceptable on its face or to
contain prices that are inordinately high or unrealistically low.” AR at 54.
Nothing in the record suggests that the inoperative link to the workbook,
embedded in cost spreadsheets, made the proposal “totally unacceptable on its face.”
Indeed, considering that the cost report in which the omission was first noted was
issued on January 12, 2016, AR at 2148, more than three months after DRI’s
October 7, 2015 oral presentation, AR at 1374–450, it is likely that the Agency was
not even aware that the data was missing before all of DRI’s proposal costs were
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incurred. 14 In any event, plaintiff ’s unusual argument that it should have lost the
competition earlier, sparing it some proposal costs and saving the government
evaluation expenses, Pl.’s Mot. at 11, is not the sort of claim that can be raised in a
post-award bid protest. To have standing to challenge alleged errors in the award
of a government contract, an offeror must allege that those errors --- either
individually or cumulatively, see USfalcon, 92 Fed. Cl. at 450 --- deprived it of “a
substantial chance of receiving an award.” Labatt Food Service, Inc. v. United
States, 577 F.3d 1375, 1379–80 (Fed. Cir. 2009); see also Info. Tech., 316 F.3d at
1319; Alfa Laval Separation, Inc. v. United States, 175 F.3d 1365, 1367 (Fed. Cir.
1999). The claim that an error delayed the rightful denial of a contract award
cannot fit under this concept of standing. 15
Turning to DRI’s more conventional argument concerning the omitted
workbook data, it contends that the omission was a clerical error which the Agency
should have sought to have clarified under 48 C.F.R. § 15.306(a)(2). Pl.’s Mot. at
10–11. Defendant and intervenor note that this FAR provision is permissive and
does not require that an agency seek a clarification, even when a minor or clerical
error is discovered. Def.’s Mot. at 26; Int.’s Mot. at 28–29; Intervenor’s Reply in
Support Cross-mot. for J. on the R. (Int.’s Reply) at 6 n.4. While this is true, there
have been circumstances when this discretion has been found to have been abused
by a procuring agency. See BCPeabody Constr. Servs., Inc. v. United States, 112
Fed. Cl. 502, 512 (2013).
Plaintiff ’s opponents, however, argue that the omission of the data and cost
assumptions that were apparently contained in the workbook constitutes a material
omission, not a clerical error eligible for clarification. Def.’s Mot. at 27–28; Int.’s
Mot. at 29. Indeed, several precedents from our court have found that the
erroneous omission of cost data from a proposal was not a minor or clerical error
under the clarification provision. See Constellation W., Inc. v. United States, 125
Fed. Cl. 505, 550 (2015) (citing Bus. Integra, Inc. v. United States, 116 Fed. Cl. 328,
337 (2014); ST Net, Inc. v. United States, 112 Fed. Cl. 99, 110–11 (2013)). Just as in
those cases, DRI omitted required information that was necessary for the
evaluation of its proposed price. Although that line of cases was identified by both
defendant and intervenor, see Def.’s Mot. at 26–27 (discussing Constellation W. and
14 Under the procedure followed by the Agency, the SEB voting members did not
see any of the cost information until the Capabilities and Approach factor
evaluations were completed. AR at 60, 2219.
15 In addition, the economic harm an agency imposes on itself due to an alleged
procurement error cannot be the basis for an offeror’s protest, cf. Res Rei Dev., Inc.
v. United States, 126 Fed. Cl. 535, 549–50 (2016) (explaining that a protester cannot
challenge actions harming only third parties), although it can obviously play a role
in injunctive relief analysis.
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ST Net); Int.’s Mot. at 29 (citing Constellation W.), DRI failed to address them, and
cites no authorities in support of its contention that the omission of the workbook
was a clerical error which imposed a duty to seek clarification on the Agency.
Instead, plaintiff insists repeatedly that the omission was so “obvious” it must have
been a clerical error, see Pl.’s Mot. at 10–12, and maintains that the inclusion of the
workbook data “would not have materially altered the Plaintiff’s cost proposal,” Pl.’s
Reply at 5. But it must have been obvious in these other cases that the offerors did
not intend to leave blank certain cells in the spreadsheets contained in their
proposals, and the missing information represented a small percentage of total
costs, yet the omissions were found to be material. See Constellation W., 125 Fed.
Cl. at 549 (noting missing rates would have raised total price by 0.008%); Bus.
Integra, 116 Fed. Cl. at 334–35 (explaining missing costs were 0.0041% of total).
And in any event, while the missing data and assumptions may not have changed
DRI’s proposed price, they certainly could have had a “non-negligible effect” on the
probable cost of plaintiff ’s proposal. See Constellation W., 125 Fed. Cl. at 549. On
this record, the Court cannot find that the Agency erred in treating this omission as
material.
Even were DRI correct that its omission of the “Estimate Assumptions.xlsx”
workbook was a clerical error that should have prompted a request for clarification
from DOE, this protest ground would be of no avail to DRI. As both defendant and
intervenor point out, see Int.’s Mot. at 30; Def.’s Reply at 4, after finding the DRI
proposal unacceptable because realism analysis could not be performed to derive a
probable cost, the SSO nevertheless explained why ORAU’s proposal offered the
Agency better value because of its technical superiority. AR at 2343–44. The SSO
used DRI’s proposed cost in her tradeoff analysis. Id. at 2344. Thus, the absence of
the workbook data was not prejudicial to DRI, as a determination that its costs
were realistic would not have altered the award decision.
3. The Agency’s Failure to Provide Prospective Offerors With Certain
Information Was Neither Improper Nor Timely Challenged
Plaintiff ’s next protest ground is that the Agency improperly failed to provide
certain information that was requested during the pre-bid question and answer,
adversely affecting its bid. Pl.’s Mot. at 12–15; Pl.’s Reply at 6–12. Two separate
arguments are advanced by DRI on this ground: first, that information concerning
the incumbent’s labor mix and employee compensation and benefits should have
been shared with prospective offerors, Pl.’s Mot. at 12–14; and second, that without
access to this information, plaintiff relied on FTE levels contained in a report that
the Agency referenced, which differed from ORAU’s proposed numbers, id. at 14–15.
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a. The labor mix and compensation data.
Two particular types of information are at issue here. First, DRI claims that
it was harmed by not being provided with information regarding the labor mix for
the predecessor ORISE contract. Pl.’s Mot. at 12–14. A prospective offeror
requested this information during the pre-bid question and answer period. AR at
871. Similarly, questions were asked concerning employee compensation and
benefits under the incumbent’s contract. Id. at 872, 879–80. The Agency responded
to all of these inquiries by stating that all information that could be released
already had been, and that most of the requested information represented
contractor records that could not be released. Id. at 871–73, 879–80.
Plaintiff argues that without information about the incumbent’s labor mix, it
could not have proposed staffing levels using the “bottoms up” methodology that the
Agency preferred, and was thus unfairly criticized by the SEB for using a “top
down” approach. Pl.’s Mot. at 13–14 (citing AR at 2223, 2255–56, 2299–300); see AR
at 758 (solicitation instruction requiring either “a detailed ‘bottoms up’ type
estimating technique” or a “thoroughly explained” alternative methodology).
Concerning labor costs, DRI contends that its cost proposal would have been
different had it known the level of benefits paid to the incumbent’s staff, and been
informed “that [XXXXXXX] of ORAU staff only works part time [XXXXXXX].” Pl.’s
Mot. at 13.
Defendant and intervenor argue that this protest ground has been waived,
under Blue & Gold Fleet, due to DRI’s failure to raise it before either the submission
deadline or contract award. Int.’s Mot. at 31 (citing Blue & Gold Fleet, 492 F.3d at
1313); Def.’s Mot. at 19 (citing Blue & Gold Fleet, 492 F.3d at 1315). Plaintiff did
not rebut this argument. See Pl.’s Reply at 6–12. At the hearing on these motions,
DRI’s counsel acknowledged that the Agency’s refusal to provide the requested
information was known prior to the deadline for submitting proposals, and conceded
that he could not distinguish Blue & Gold Fleet. See Tr. (July 29, 2016) (Tr.) at 17–
18. These concessions were wise, as this protest argument has clearly been waived
under Blue & Gold Fleet. Plaintiff contends that necessary information was not
provided along with the solicitation materials, and the importance of its absence
was established prior to the deadline for submitting proposals --- when requests for
the information were denied at least one week before proposals were due. See AR at
870 (questions and answers updated on Sept. 1, 2015). Indeed, the Agency’s
answers to potential offerors’ questions, updated as new questions were received,
were issued as amendments to the solicitation, see AR at 227, 2204–05, and thus
DRI is challenging the terms of the solicitation with this argument. As no objection
to the Agency’s refusal to provide the information was made prior to the submission
deadline, this ground has been waived. Blue & Gold Fleet, 492 F.3d at 1313–15.
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b. The Ten-Year Site Plan.
The second argument DRI makes under this ground focuses on the difference
between staffing levels as reported in ORISE’s Ten-Year Site Plan and those
proposed by ORAU. See Pl.’s Mot. at 14–15; Pl.’s Reply at 7–12. Because this plan
stated that 608 FTEs supported the ORISE contract in fiscal year 2014 and
projected that same level of staffing for fiscal year 2016, Pl.’s Ex. A at 3–4, DRI
proposed 608 FTEs to perform the contract --- divided between 511 “direct” FTEs
and 97 “indirect” FTEs. AR at 1115–16. As intervenor was awarded the contract by
proposing only 205 FTEs, see AR at 1926, 2311, plaintiff maintains that it was
either misled by the numbers in the Ten-Year Site Plan or held to a different
standard from that applied to ORAU. Pl.’s Mot. at 14–15. There are at least three
problems with this argument of DRI.
First, the Ten-Year Site Plan was not incorporated into the solicitation, but
was instead referenced in response to two questions that were unrelated to staffing
levels under the contract. Potential offerors were told they “should review” the plan
because it “addresses both the anticipated actions and estimated timeline by which
activities should be completed” concerning the disposal of two government-
furnished buildings. AR at 872. They were also informed that they “may reference
the facility maintenance cost projections” in the plan. AR at 878. Potential offerors
were not instructed to use the Ten-Year Site Plan for any other purposes, and thus
the Agency did not mislead DRI into following the staffing projections in that
document.
Second, as both defendant and intervenor emphasize, see Def.’s Mot. at 24;
Int.’s Mot. at 33, DRI’s proposed staffing was not criticized for its total number of
FTEs proposed, but rather for not adequately explaining the methodology it used to
arrive at its labor mix and staffing approach. See AR at 2160, 2255–56, 2299–301.
Even if plaintiff was led to believe, based on the Ten-Year Site Plan projections,
that the Agency desired 608 FTEs to support the contract, it was not its use of this
figure but rather its inability to adequately justify how those employees would be
distributed that negatively affected its evaluation.
Finally, as the government best explains, see Def.’s Mot. at 24–25, the direct
labor FTEs proposed by ORAU were not the full measure of its staffing. Included in
intervenor’s “Other Direct Costs” (ODCs) were the costs of subcontractors and such
functions as professional services, site services, equipment maintenance, and
computer support. AR at 2170, 2315–16. These costs were [XXXXXXXXXXXXX]
than ORAU’s proposed direct labor costs. See AR at 1926. The cost evaluators
confirmed that the proposed ODCs were consistent with the incumbent’s
performance history. AR at 2170. According to defendant’s calculations, the
indirect labor hours implicit in the ODCs category would raise ORAU’s total FTEs
proposed to be roughly [XX] percent of the DRI figure. Def.’s Mot. at 25 (citing AR
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at 1960, 1989, 1991, 1993). For our purposes, what is important is that the record
shows that the calculations of FTEs supporting the ORISE contract historically
included personnel whose costs were charged as ODCs, and that intervenor’s
proposal was consistent with that practice. Thus, plaintiff has failed to show that
the ORAU proposal was evaluated under a different standard regarding staffing
levels, as staffing costs proposed as ODCs cannot be ignored in assessing the labor
effort proposed by intervenor.
4. Plaintiff’s Criticisms of the SEB’s Technical Evaluations are Mere
Disagreements with the Agency’s Judgment
The next protest ground raised by DRI consists of criticisms of six specific
aspects of the SEB’s evaluation of the proposals under the Capabilities and
Approach factor. See Pl.’s Mot. at 16–22. 16 According to plaintiff, these portions of
the evaluations either lacked record support, were inconsistent, or were contrary to
the stated criteria. Id. at 15. But as we shall see, no objective errors or subjective
inconsistencies have been identified, see USfalcon, 92 Fed. Cl. at 461, and thus
DRI’s criticisms merely reflect disagreement with the Agency’s technical judgments
--- judgments which a court may not second guess, see E.W. Bliss Co., 77 F.3d at
449.
First, DRI takes issue with the weakness it received due to the absence of
“commitment letters” from its proposal, see AR at 2277, which were supposed to be
provided by entities supplying goods or services, at no charge to the government, for
use in connection with the ORISE contract. Pl.’s Mot. at 16–17; AR at 789, 856. It
is not disputed that DRI failed to provide such letters, as plaintiff instead contends
that the Agency treated the two offerors disparately. Pl.’s Mot. at 16–17. This
argument rests on the fact that ORAU did not provide commitment letters from its
proposed subcontractors. Id. at 17. But plaintiff is confusing two different
solicitation provisions. The solicitation had no requirement that proposed
subcontractors, who will be providing goods or services in exchange for
compensation, furnish “commitment letters.” See AR at 785–86. Such letters were
only required for entities that were pledging to provide free goods or services to
support the ORISE contract. See AR at 789, 856. Thus, no disparity in treatment
has been shown.
16 In addition to the particular critiques, DRI also argues generally that the
evaluation criteria were vague and that the definitions for the adjectival ratings
were not disclosed. Pl.’s Mot. at 15–16. But complaints about what the solicitation
contained or should have contained are waived at this juncture. See Blue & Gold
Fleet, 492 F.3d at 1313–15. And plaintiff ’s counsel conceded that he is aware of no
regulation or statute requiring the prior disclosure of adjectival ratings definitions.
Tr. at 27. See also 48 C.F.R. § 15.304(d) (“The rating method need not be disclosed
in the solicitation.”).
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Second, plaintiff challenges the weaknesses it received, under the Strategic
Vision and Program Implementation criteria, in connection with its proposed move
of the REAC/TS operations to a new facility. Pl.’s Mot. at 18–19. The SEB found
that “the proposal does not contain sufficient information regarding the required
resources, resource related assumptions, and other assumptions related to the
proposed move,” and “failed to demonstrate the capability to leverage limited
resources in developing the Institute’s capabilities.” AR at 2229 (citing AR at 936–
37, 987). The evaluators were also concerned that a diversion of resources to
accomplish the proposed move “would have a negative impact on mission execution
because fewer resources would be available for training.” AR at 2255. These
weaknesses were based on the application of evaluation subcriteria, see AR at 852–
53 (Strategic Vision subcriterion 2 and Program Implementation subcriterion 3),
and the portions of DRI’s Volume II that were referenced did not discuss the
resources required, as the SEB states, see AR at 936–37, 987. Plaintiff ’s objection is
that at an unspecified place in the introduction to its proposal, it committed to keep
expenses within budget. Pl.’s Mot. at 18–19. But this does not contradict the SEB’s
concerns about a lack of detail regarding the proposed move. The Court finds that
the SEB adequately explained the reasoning behind these weaknesses.
Plaintiff ’s third argument relates to weaknesses DRI was assigned under the
Leadership, Management, and Direction criterion. Pl.’s Mot. at 19–20 (citing AR at
2243–46). Rather than identifying any objective errors or subjective inconsistencies
on the part of the SEB, plaintiff instead cites the strengths noted in one individual
evaluator’s preliminary review of its proposal, which were not reflected in the SEB’s
final report. Id. at 19 (citing AR at 2875–76, 2878). But since a consensus approach
was followed by the SEB, see AR at 2216, such preliminary findings of individual
evaluators are rarely a basis for undermining the rationality of the ultimate
evaluation, see Tech Sys., 98 Fed. Cl. at 246–48, and DRI has failed to make that
case here. 17
The fourth disputed area of the Capabilities and Approach factor evaluation
concerns a weakness DRI received under the Leadership, Management, and
Direction criterion. Plaintiff maintains it was “highly criticized” because, during its
oral presentation, its entire management team was shown to be unfamiliar with
DOE’s Office of Science peer review process. Pl.’s Mot. at 20–21 (citing AR at 2245).
The SEB found this to be problematic because understanding the Office of Science’s
peer review process was necessary to successfully accomplish the Science and
Technical Resource Integration required by the PWS. AR at 236–37, 2245. Plaintiff
claims it had “no way” to obtain information about the current peer review process,
17 Erring in the other direction, DRI also inaccurately attributes to the SEB a
significant weakness that the same individual evaluator assigned it in his
preliminary review. See AR at 2876 (noting DRI’s proposed REAC/TS Director was
not a medical doctor); Pl.’s Mot. at 19 (identifying same).
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Pl.’s Mot. at 20, but defendant notes that this information is publicly available,
Def.’s Mot. at 32 n.1 (citing http://science.energy.gov/sc-2/committees-of-visitors); see
also Int.’s Mot. at 39 n.25. The Court notes that this criticism was merely one of
seven bullet points listed to support the finding of a weakness regarding the
qualifications of DRI’s proposed key persons, and did not have the significance that
plaintiff suggests. See AR at 2244–45. Plaintiff seems to be arguing that it was
immune from criticism in this area, as it claims that it mentioned “peer review”
fourteen times in its proposal. Pl.’s Mot. at 20 (citing AR at 929, 933–36). But
particularly considering that the Statement of Work for STRI required the
contractor to “[i]dentify improvements to DOE peer review practices,” AR at 237,
there is no basis for concluding that the SEB acted improperly in finding that a lack
of knowledge of those practices contributed to a weakness for DRI’s proposed
management team.
Plaintiff ’s fifth claim regarding the SEB’s evaluation centers on the strength
ORAU received for its approach to handling workload fluctuations. The SEB found
that it was “an efficient business practice” that the majority of ORAU’s proposed
staff would divide its work between the ORISE contract and other endeavors. AR at
2258. Plaintiff questions whether this approach should be viewed positively or
negatively, and posits several potential problems with such an arrangement. Pl.’s
Mot. at 21–22. But DRI identifies no solicitation provision that is violated by the
approach and no inconsistency in the SEB’s evaluation. Plaintiff merely disagrees
with the Agency’s judgment, which is no basis for questioning a procurement
decision. See E.W. Bliss Co., 77 F.3d at 449.
The final challenge to the SEB’s evaluation concerns an alleged inequality
created by ORAU’s ownership of certain property, called the North Campus, which
it could continue to use to perform the contract. Pl.’s Mot. at 22; Pl.’s Reply at 12–
17. The government-furnished facilities, available for use by the successful offeror,
were located at the South Campus and in a local medical center. AR at 584.
Plaintiff argues that any offeror which was not the incumbent would have to bear
the costs of moving the ORISE operations from the North Campus to other
buildings, including leasing and renovation costs, and that the Agency should have
leveled the playing field by removing facilities costs from the procurement. Pl.’s
Mot. at 22: Pl.’s Reply at 16–17. Curiously, its only support for this proposition are
two Government Accountability Office (GAO) decisions that explain that
advantages, including cost advantages, that an incumbent enjoys by virtue of prior
performance (including the ownership of key property) need not be equalized unless
that advantage is the result of unfair government action. Pl.’s Reply at 16 (citing
GTE Automatic Elec., Inc., B-209393, 83-2 CPD ¶ 340, 1983 WL 27378, at *1–3
(Comp. Gen. Sept. 19, 1983); Romar Consultants, Inc., B-206489, 82-2 CPD ¶ 339,
1982 WL 27429, at *2–3 (Comp. Gen. Oct. 15, 1982)). But DRI has not identified
anything, in the record or elsewhere, that shows the North Campus was obtained
through some improper action of the Agency, and the GAO decisions recognize that
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the advantage enjoyed by an incumbent by virtue of having amortized the costs of
property that it will continue to use for performance is not an improper advantage
that must be equalized. GTE Automatic Elec., at *3 (citing B.B. Saxon Co., 57
Comp. Gen. 501, 513 (June 1, 1978)). Most fatal to this argument, however, is the
fact that ORAU’s ownership of the North Campus was made known to potential
offerors in the questions and answers that were issued as amendments to the
solicitation. See AR at 870–71. Any protest ground based on the solicitation’s
failure to equalize the advantages of that ownership is waived, since it was not
raised prior to the deadline for submitting proposals. Blue & Gold Fleet, 492 F.3d
at 1313–15.
5. The Source Selection Decision Was Not Arbitrary
In DRI’s final argument, it takes issue with one sentence in the SSO’s Source
Selection Decision, which paraphrases SEB findings, and one paragraph from that
decision containing an independent observation of the SSO. 18 Pl.’s Mot. at 23. Both
of these are in the SSO’s evaluation of the proposals under the Strategic Vision
criterion. AR at 2336.
First, plaintiff challenges the following sentence concerning the SEB’s
evaluation of its proposal under the first criterion: “The SEB concluded that the
proposal from DRI failed to demonstrate the capability to leverage limited resources
in developing ORISE’s capabilities, and specifically does not enable ORISE to
achieve DOE goals, and would not deliver outcomes consistent with mission goals
relative to the PWS area.” Pl.’s Mot. at 23 (citing AR at 2336). Plaintiff maintains
that the SEB did not reach a “general conclusion” concerning its ability to leverage
limited resources, but made such a finding “on a couple of separate issues” without
factual support. Id. But the SEB fully explained its reasons for these findings ---
one relating to the proposed move of the REAC/TS facility, and the other concerning
DRI’s “overall” Strategic Vision and plan for its implementation. AR at 2220–21,
2229–30. The SSO accurately recounted these conclusions, the second of which was
a general conclusion about the proposal under this criterion.
Regarding the back end of this sentence, DRI contends that no facts were
identified to support the findings concerning DOE goals, and that the term “goals”
was not defined nor even included in the PWS. Pl.’s Mot. at 23. But the SEB
report, with which the SSO agreed, AR at 2336, explains in detail the evaluators’
concerns that DRI would not allow the Agency to achieve its goals for three of the
18 Plaintiff also makes general comments at the beginning and end of this
argument that the SSO had prejudged the competition in favor of ORAU. Pl.’s Mot.
at 23–24. Plaintiff points to no facts to support this claim, other than the particular
challenges to evaluation decisions discussed above, so the Court will not address it
further.
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five activities described in the PWS, AR at 2221, 2230–31 (discussing STRI,
REAC/TS, and IEAV); see AR at 236–39 (Statement of Work). Moreover, the first
two subcriteria under Strategic Vision concern “goals as articulated in the
Performance Work Statement.” AR at 852. If DRI believes that a definition of
these goals was missing from the solicitation, the time to challenge this was before
its proposal was due, and accordingly this ground is waived. Blue & Gold Fleet, 492
F.3d at 1313–15.
Plaintiff also contends that the SSO improperly criticized its proposal for
focusing on primary and secondary education, in addition to ORISE’s traditional
focus on education at the college level and above. Pl.’s Mot. at 23. Although DRI
argues that this criticism was inconsistent with the solicitation’s injunction to
“ensure a robust supply of STEM professionals to meet science and technology
needs . . . for students and faculty at all educational levels,” id. (citing AR at 236),
the SSO’s concern was the proposal’s “focus on a K-12 outreach,” AR at 2336
(emphasis added), not the fact that pre-college students would be included in
programs. In any event, as intervenor notes, Int.’s Mot. at 48, the SSO did not
assign an additional weakness to DRI because of this issue, and her observation did
not alter plaintiff ’s rating under the criterion, see AR at 2336–37. As plaintiff has
identified no objective errors or subjective inconsistencies relating to this particular
observation, but merely disagrees with the SSO’s judgment, this bid protest ground
fails. See E.W. Bliss Co., 77 F.3d at 449. In sum, plaintiff has failed to demonstrate
that the SSO’s decision was arbitrary or otherwise improper.
III. CONCLUSION
For the foregoing reasons, plaintiff ’s motion for judgment on the
administrative record is DENIED, and defendant’s and intervenor’s cross-motions
for judgment on the administrative record are GRANTED. The Clerk shall enter
judgment accordingly.
IT IS SO ORDERED.
s/ Victor J. Wolski
VICTOR J. WOLSKI
Judge
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