Qbe, LLC v. United States , 2015 U.S. Claims LEXIS 110 ( 2015 )

In the United States Court of Federal Claims
No. 14-1053C
(E-Filed: February 18, 2015) 1
)
QBE, LLC, )
) Pre-Award Bid Protest; Cross-Motions
Plaintiff, ) for Judgment on the Administrative
) Record; Challenge to Offeror’s
v. ) Exclusion from the Competitive
) Range; Technical Proposal Evaluation
THE UNITED STATES, )
)
Defendant. )
)
John R. Tolle, McLean, VA, for plaintiff.
Christopher L. Harlow, with whom were Joyce R. Branda, Acting Assistant Attorney
General, Robert E. Kirschman, Jr., Director, and Deborah A. Bynum, Assistant Director,
Commercial Litigation Branch, Civil Division, United States Department of Justice,
Washington, DC, for defendant. James P. Leary, Trial Attorney, Contract & Fiscal Law
Division, United States Army Legal Services Agency, Fort Belvoir, VA, of counsel.
1
This Opinion was filed under seal on January 30, 2015, ECF No. 27, at which time
the parties were given an opportunity to request redactions of any protected information.
Defendant requests several redactions in order to protect “procurement-sensitive
information that could prejudice the integrity of the ongoing procurement,” to include
“the total number of offerors responding to the solicitation and the total number of
offerors in the competitive range, along with the relative standing of these offerors.”
Def.’s Mot. for Redactions, ECF No. 29, at 1. Plaintiff requests only that the identity of
its project manager be redacted as propriety information. See Pl.’s Mot. for Redactions,
ECF No. 31, at1; cf. infra note 17 (identifying QBE’s project manager). Both parties’
motions are GRANTED.
Redacted material is indicated as follows, XXX, with the redaction equal in length
to the text or numbers redacted. With the exception of the row dedicated to QBE, the
court has also redacted information from the table that summarizes the ratings assigned
and total evaluated price for each offeror’s proposal. See infra Part I.B (table); cf. Def.’s
Mot. for Redactions 1 (requesting that the number of rows in this table be redacted “so
that the number of competitors cannot be inferred from the size of the table”).
OPINION and ORDER
CAMPBELL-SMITH, Chief Judge
This is a pre-award bid protest filed by QBE, LLC (QBE or plaintiff). QBE
challenges its exclusion from the competitive range under a solicitation for the
procurement of information technology (IT) services by the U.S. Department of the
Army, Army Contracting Command – Rock Island (the Army, Agency, or government).
See Compl., ECF No. 1, ¶¶ 1, 7, 38. The parties submitted cross-motions for judgment
on the administrative record (AR) in accordance with United States Court of Federal
Claims Rule (RCFC) 52.1(c). 2 See Pl.’s Mot. J. AR (Pl.’s Mot.), ECF No. 18; Def.’s
Mot. J. AR (Def.’s Mot.), ECF No. 19. The court held oral argument on the parties’
cross-motions on January 5, 2015. See Tr., ECF No. 26 (transcript of the digitally
recorded proceeding). The Agency has agreed to postpone the award of the contract(s)
until the resolution of QBE’s protest. Def.’s Mot. 2, 18.
For the reasons explained below, the court finds that the Agency had a rational
basis for excluding QBE from the competitive range. Accordingly, plaintiff’s motion is
DENIED, and defendant’s motion is GRANTED.
I. Background
A. The Solicitation
On January 17, 2013, the Army issued Solicitation No. W52P1J-12-R-0201 (the
Solicitation), which was subsequently amended twenty-five times, for the procurement of
Enterprise Information Technology Services (EITS) in support of the Program Manager
Installation Information Infrastructure Communications and Capabilities (PM I3C2). AR
1–2 (Solicitation); see AR 1406–07 (Competitive Range Determination (CRD))
(providing that the Solicitation was issued on January 17, 2013 and identifying
amendments). “[]PM I3C2[] provides a comprehensive approach to U.S. Army
information technology initiatives,” by, inter alia, “employ[ing] a synchronized effort to
modernize the Army’s information networks, outside cable plants, telephone switching
systems, campus area networks and long haul gateway for Army installations
[worldwide].” AR 478 (Performance Work Statement (PWS)). The Solicitation seeks
project-management and related support for the following PM I3C2 Program
Management Offices (PMOs): the Installation Information Infrastructure Modernization
Program (I3MP), the Power Projection Enablers (P2E), and the Republic of Korea
(ROK). Id.; see AR 1470 (Source Selection Plan (SSP)).
2
The government filed the administrative record (AR) under seal on November 10,
2014 in the form of a CD-ROM. See Def.’s Notice of Filing AR, ECF No. 17.
2
The Solicitation contemplates the award of three Indefinite Delivery Indefinite
Quantity (IDIQ) contracts to small businesses as set-asides but reserves for the Agency
the right to make more or less than three awards. AR 791 (Amendment 0022). 3 The
Solicitation advises that the Agency intends to make the awards “after conducting
discussions with Offerors determined to be within the competitive range,” and that “[t]he
contracting officer may limit the number of proposals in the competitive range to the
greatest number that will permit an efficient competition among the most highly rated
proposals.” Id.
The offeror(s) whose proposals conform to the requirements of the Solicitation
and represent the “best value” to the Agency will be awarded contracts under the
Solicitation. AR 802. The Solicitation provides that the best value determination will be
based on “an integrated assessment” of four evaluation factors in descending order of
importance—Technical, Past Performance, Management, and Price. Id. “The non-price
Factors combined are significantly more important than the Total Evaluated Price Factor.
However, as non-price factors equalize, price becomes more important in the best value
analysis.” Id.; see also Fed. Acquisition Reg. (FAR) 15.101-1 (2014) (describing the
“tradeoff process”). A proposal receiving less than an Acceptable rating in either the
Technical or Management Factors will not be considered eligible for award. AR 802.
Section L of the Solicitation details the instructions and conditions for submission
of proposals, AR 791–800, and advises that proposals will be assessed based on the four
evaluation factors, AR 791. Offerors are instructed to submit a proposal for each
evaluation factor. AR 793. Only QBE’s Technical Proposal is at issue here. Cf. infra
Part III.B (finding it unnecessary to address plaintiff’s challenge to the Agency’s
evaluation of its Management Proposal).
The Solicitation instructs offerors to organize their technical proposals into two
sections, respectively designated as Sub-Factor 1 and Sub-Factor 2, with an overall page
limitation of thirty-five pages. AR 794–96. For Sub-Factor 1, offerors are instructed to
describe their technical understanding of the EITS Performance Work Statement (PWS)
by addressing (1) their understanding of the services framework model employed by PMs
I3C2, P2E, and I3MP; (2) their approach and methodology; (3) their implementation
strategy; and (4) their coordination plans. AR 795. For Sub-Factor 2, offerors are
instructed to describe their technical approach to the Sample Task Order by addressing
3
Amendment 0022 to the Solicitation was issued on June 25, 2014. See AR 1407
(Competitive Range Determination (CRD)) (listing date). “Offerors were advised to
submit revised proposals based on Amendment 0022.” AR 1409–10. The court
understands that QBE’s final revised proposal, which was submitted on July 18, 2014, is
based on the instructions set forth in Amendment 0022, see id.; AR 1197–1375 (QBE’s
Final Proposal), and the court therefore cites principally to this part of the Solicitation,
see AR 789–807.
3
(1) their approach and methodology; (2) their implementation strategy; and (3) their
coordination plans. AR 795–96.
Section M of the Solicitation, addressing the evaluation process, AR 802–07,
advises that the Agency will assess the offerors’ technical proposals “to determine the
extent that the offeror understands the Government’s requirements, the technical quality
of the proposed approach, and the offeror[s’] ability to fulfill the EITS requirements of
the [PWS],” AR 803. The Agency’s evaluation “will include examination of [their]
proposed technical plan[s], knowledge of Army requirements, and application of industry
standards and best practices.” Id. This evaluation is to be further informed by whether
each proposal (1) demonstrates “a clear an understanding of the problems to be solved
and the requirements to be satisfied,” (2) “adequately and completely considers, defines,
and satisfies the EITS IDIQ PWS and other [Solicitation] requirements,” or merely offers
“statements of compliance or repetition of the requirements without a complete
discussion and analysis;” and (3) evidences “[f]lexibility”—that is, “the ability to meet
changing requirements in the dynamic environment of Army programs.” Id.
The Source Selection Plan (SSP) identifies and defines the adjectival ratings by
which the Source Selection Evaluation Board (SSEB) is to rate the offerors’ technical
proposals:
Adjectival Rating Definition
Proposal meets requirements and indicates an exceptional approach
Outstanding and understanding of the requirements. Strengths far outweigh any
weaknesses. Risk of unsuccessful performance is very low.
Proposal meets requirements and indicates a thorough approach and
Good understanding of the requirements. Proposal contains strengths
which outweigh any weaknesses. Risk of unsuccessful
performance is low.
Proposal meets requirements and indicates an adequate approach
and understanding of the requirements. Strengths and weaknesses
Acceptable are offsetting or will have little or no impact on contract
performance. Risk of unsuccessful performance is no worse than
moderate.
Proposal does not clearly meet requirements and has not
Marginal demonstrated an adequate approach and understanding of the
requirements. The proposal has one or more weaknesses which are
not offset by strengths. Risk of unsuccessful performance is high.
Unacceptable Proposal does not meet requirements and contains one or more
deficiencies. Proposal is unawardable.
4
AR 1480–81 (SSP) (emphasis added); accord AR 110–11 (Solicitation). As is relevant
here, a “deficiency” is defined as “a material failure of the proposal to meet a
Government requirement or a combination of significant weaknesses in a proposal that
increases the risk of unsuccessful performance to an unacceptable level.” AR 1482;
accord FAR 15.001.
B. Evaluations and the Competitive Range Determination
XXX offerors submitted proposals in response to the Solicitation. 4 AR 1408
(CRD). In order to protect source selection information, the XXX offerors were
identified with the following alphanumeric indicators: XXX. 5 Id.
The SSEB evaluated the Technical, Management, Past Performance, and Price
Factors of each proposal. See AR 1409–10. A summary of the ratings assigned and the
total evaluated price for each offeror’s proposal is below:
Sub- Sub- Sub- Sub- Sub-
Technical Past Management
factor factor factor factor factor Price
(Overall) Performance (Overall)
1 2 1 2 3
Substantial
C1 Unacceptable U U Marginal G G M XXX
Confidence
Id.
On September 8, 2014, the contracting officer issued the competitive range
determination, AR 1405, which was approved by the Source Selection Authority (SSA),
AR 1431; cf. AR 1452 (Acquisition Plan) (providing that the SSA “approve[s] the
Contracting Officer’s competitive range decision and . . . make[s] the final source
selection decision”). The contracting officer evaluated the XXX proposals pursuant to
FAR 15.306(c) and the instructions set forth in Sections L and M of the Solicitation, AR
791–800, 802–07, and took into account the findings of the SSEB to determine the
highest-rated offerors to include in the competitive range, AR 1410. The contracting
officer ultimately chose XXX to be included in the competitive range—XXX. AR 1410.
QBE, which was assigned the C1 indicator, was excluded from the competitive
range along with XXX. Id. The contracting officer determined that these offerors’
4
QBE submitted its initial proposal in response to the Solicitation on November 13,
2013. AR 855–1050 (QBE’s initial proposal). QBE submitted revised proposals on May
27, 2014 and July 18, 2014 that addressed certain amendments to the Solicitation. AR
1051–1196 (QBE’s second proposal); AR 1197–1375 (QBE’s third and final proposal).
5
XXX. AR 1408 (Source Selection Plan (SSP)).
5
proposals contained “numerous deficiencies” and required “major revisions” to be
eligible for award. Id.
Plaintiff contends that the Agency’s exclusion of QBE from the competitive range
was based on an improper evaluation of QBE’s Technical Proposal. See Pl.’s Mot. 1–2,
36–37. The court addresses plaintiff’s argument in more detail below.
II. Legal Standards
The Tucker Act grants this court 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.” 28 U.S.C. § 1491(b)(1) (2012).
The court reviews an agency’s procurement decision to determine whether the
decision is supported by the administrative record. See RCFC 52.1. The Administrative
Procedure Act (APA) standard of review applies to the court’s examination of an
agency’s decision. See 28 U.S.C. § 1491(b)(4). In accordance with this standard, the
court will set aside a decision by the agency only if it is “arbitrary, capricious, an abuse
of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A) (2012).
Application of the arbitrary and capricious standard is “highly deferential,” Advanced
Data Concepts, Inc. v. United States, 216 F.3d 1054, 1058 (Fed. Cir. 2000), and the court
will set aside an agency decision only if “(1) the procurement official’s decision lacked a
rational basis, or (2) the procurement procedure involved a violation of regulation or
procedure,” Impresa Construzioni Geom. Domenico Garufi v. United States (Impresa),
238 F.3d 1324, 1332 (Fed. Cir. 2001).
To surpass the threshold of arbitrary and capricious, an agency’s decision need
only have been “the result of a process which ‘consider[s] the relevant factors’ and is
‘within the bounds of reasoned decisionmaking.’” JWK Int’l Corp. v. United States, 52
Fed. Cl. 650, 654 n.8 (2002) (quoting Baltimore Gas & Elec. Co. v. Natural Res. Def.
Council, Inc., 462 U.S. 87, 105 (1983)), aff’d, 56 F. App’x 474 (Fed. Cir. 2003); see
Pitney Bowes Gov’t Solutions, Inc. v. United States (Pitney), 94 Fed. Cl. 1, 11 (2010)
(“Mindful of its role on review, the court will not evaluate the proposal anew, but instead
will examine the agency’s evaluation to ensure that it was reasonable and in accord with
the evaluation criteria listed in the solicitation.” (internal quotation marks omitted)). The
court will “uphold a decision of less than ideal clarity if the agency’s path may
reasonably be discerned.” Motor Vehicle Mfrs. Ass’n of the United States, Inc. v. State
Farm Mut. Auto. Ins. Co. (Motor Vehicle Mfrs. Ass’n), 463 U.S. 29, 43 (1983). A
protestor thus “bears a heavy burden” in attempting to establish that an agency’s decision
lacked a rational basis, Impresa, 238 F.3d at 1333 (internal quotation marks omitted), and
a protestor’s “mere disagreement[]” with a contracting officer’s evaluation of its
technical proposal “is not nearly enough” to establish that the contracting officer’s
decision was arbitrary or capricious, CRAssociates, Inc. v. United States, 102 Fed. Cl.
698, 717 (2011), aff’d, 475 F. App’x 341 (Fed. Cir. 2012).
6
In a negotiated procurement like the one at issue here, see AR 1454 (Acquisition
Plan), a protestor’s burden is even greater because “the contracting officer is entrusted
with a relatively high degree of discretion,” Glenn Def. Marine (ASIA), PTE Ltd. v.
United States, 720 F.3d 901, 907 (Fed. Cir. 2013) (internal quotation marks omitted).
“[T]he greater the discretion granted to a contracting officer, the more difficult it will be
to prove the decision was arbitrary and capricious.” Burroughs Corp. v. United States,
617 F.2d 590, 597 (Ct. Cl. 1980).
Moreover, contracting officers have particularly “broad discretion in determining
[the] competitive range, and such decisions are not disturbed unless clearly
unreasonable.” Birch & Davis Int’l, Inc. v. Christopher, 4 F.3d 970, 973 (Fed. Cir.
1993). For example, Federal Acquisition Regulation 15.306(c)(2) provides that a
“contracting office may limit the number of proposals in the competitive range to the
greatest number that will permit an efficient competition among the most highly rated
proposals.” 6
Further, “to prevail in a bid protest[,] the protester must show not only a
significant error in the procurement process, but also that the error prejudiced [the
protestor].” Data Gen. Corp. v. Johnson, 78 F.3d 1556, 1562 (Fed. Cir. 1996). The
Federal Circuit has directed that prejudice in a pre-award bid protest context means that
“had it not been for the alleged error in the procurement process, there was a reasonable
likelihood that the protester would have been awarded the contract.” Id.III. Discussion
6
As plaintiff correctly observes, see Pl.’s Mot. 15, this court has interpreted FAR
15.306(c) as requiring close scrutiny of an Agency’s decision to limit the competitive
range to only one offeror, see, e.g., L-3 Commc’ns EOTech, Inc. v. United States, 83
Fed. Cl. 643, 651 (2008); Chapman Law Firm Co. v. United States, 71 Fed. Cl. 124, 132
(2006), aff’d in relevant part, 490 F.2d 934, 938 (Fed. Cir. 2007). However, close
scrutiny of the contracting officer’s competitive range determination is not required
where, as here, the Agency has established a competitive range of XXX, AR 1410
(CRD), in a Solicitation that contemplates awarding three contracts (but reserves for the
Agency the right to make more or less than three awards), AR 791 (Amendment 0022).
7
A. The Technical Factor 7
The SSEB rated QBE’s Technical Sub-Factors 1 and 2 as Unacceptable, and,
based on these ratings, rated QBE’s overall Technical Proposal as Unacceptable. The
SSEB summarized the basis for this Unacceptable rating as follows:
[QBE’s Technical] Proposal did not demonstrate an adequate understanding
of the services framework in support of PM I3C2, P2E, I3MP, and ROK
and provided insufficient value to justify how the offeror would implement
[the] technical section to the framework. [QBE’s Technical] Proposal
failed to address all technical sections of sub-factors in Section M and did
not meet the requirements of several sections of I3C2 PWS and [the Sample
Task Order].
AR 1380 (SSEB Tech. Eval.) (emphasis added). In total, the SSEB found three strengths,
two weaknesses, and four deficiencies in QBE’s Technical Proposal. AR 1380–83. A
chart summarizing the relevant findings of the SSEB is set forth below:
7
The relevant sections of QBE’s initial Technical Proposal and third (and final)
Technical Proposal are nearly identical. Compare AR 862–92 (excerpt of QBE’s Initial
Proposal), with AR 1206–36 (excerpt of QBE’s Final Proposal); cf. AR 1223 (adding a
reference to “Figure 2” in the Implementation Strategy section). For ease of reference,
the court cites to QBE’s final Technical Proposal, submitted July 18, 2014—the proposal
upon which the contracting officer based her exclusion of QBE from the competitive
range, see AR 1432–33 (QBE’s exclusion) (dated Sept. 8, 2014), rather than QBE’s
initial proposal, dated November 13, 2013—the proposal upon which the SSEB based its
Technical Evaluation findings, see AR 1380 (SSEB Tech. Eval.) (dated Feb. 27, 2014).
Both parties also cite to QBE’s final proposal in their briefing.
Because the relevant portions of QBE’s initial and final Technical Proposals are
substantially identical, any differences in the various versions of the Performance Work
Statement on which QBE relied in preparing its proposals do not bear on the court’s
resolution of the instant matter. Cf. Pl.’s Resp. 2–3 (observing that defendant’s briefing
cites to earlier versions of the PWS).
8
Strengths, Weaknesses,
Evaluation
Title of Factor Rating Significant Weaknesses,
Factor
Deficiencies
Sub-Factor 1 Understanding of EITS IDIQ PWS Unacceptable
Sub-Factor 1a Services Framework Model 1 strength, 1 weakness
2 strengths, 1 weakness,
Sub-Factor 1b Approach and Methodology
1 deficiency
Sub-Factor 1c Implementation Strategy 1 deficiency
Sub-Factor 1d Coordination and Planning 1 deficiency
Sub-Factor 2 Sample Task Order Approach Unacceptable
Sub-Factor 2a Approach and Methodology
Sub-Factor 2b Implementation Strategy 1 deficiency
Sub-Factor 2c Coordination and Planning
Id.In turn, the contracting officer relied on the SSEB’s findings to make her
competitive range determination, AR 1410, concluding, in relevant part, that QBE had
failed to “demonstrate a clear understanding of what is necessary to meet the technical
requirements of the IDIQ PWS and the Sample [Task Order],” AR 1421. The contracting
officer further found that “the magnitude of the deficiencies cited in the [SSEB’s]
technical report would require major revisions to [QBE’s] proposal and it is unlikely [the
various deficiencies] could be corrected through discussions.” AR 1420; see also AR
1421 (“Major revisions would be required to [QBE’s] Technical volume for [its] proposal
to be awardable.”). Accordingly, the contracting officer excluded QBE from the
competitive range. AR 1410.
Plaintiff argues that the Agency improperly evaluated QBE’s Technical Proposal.
See, generally, Pl.’s Mot. 16–30. Specifically, plaintiff contends that none of the
identified deficiencies or weaknesses were justified. 8 Pl.’s Mot. 27, 30. Absent these
deficiencies and weaknesses, plaintiff contends that it would have received an
Outstanding rating under Sub-Factor 1 and either an Acceptable or Good rating under
Sub-Factor 2. Id. at 30. Thus, plaintiff argues, QBE’s overall Technical Proposal should
8
The court does not address the two weaknesses assigned to QBE’s Technical
Proposal because it was the four identified deficiencies that prompted the Agency to
exclude QBE from the competitive range. See AR 1421 (CRD) (stating that given “the
magnitude of the deficiencies” identified in QBE’s Technical Proposal, QBE’s proposal
“would require major revisions” that were “unlikely . . . [to] be corrected through
discussions”). That is, even if the court accepted plaintiff’s argument that the weaknesses
associated with Technical Sub-Factors 1a and 1b were unwarranted, plaintiff could not
demonstrate prejudice.
9
have been rated as Outstanding, and QBE should have been included in the competitive
range. Id. at 30, 36–37.
During oral argument, plaintiff’s counsel suggested that the primary issue before
the court is whether the four identified deficiencies amount to “material failure[s] . . . to
meet a Government requirement.” Tr. 46:6–7; see also Tr. 44:17–21 (Pl.’s Counsel)
(“Was this a requirement? Was it a requirement that rises to the level [of] a material
failure . . . ? I think that’s what a lot of this case boils down to . . . .”). As discussed
above, the Source Selection Plan defines “deficiency” as “a material failure of the
proposal to meet a Government requirement or a combination of significant weaknesses
in a proposal that increases the risk of unsuccessful performance to an unacceptable
level.” AR 1482; accord FAR 15.001 (same). Plaintiff argues that “the requirements that
the Agency stated QBE failed to meet or address in its [Technical] [P]roposal . . . were
not called out in the Solicitation as beings ones for which its proposal would be found
unacceptable for failing to meet.” Pl.’s Mot. 17. And, according to plaintiff, this court
“has not permitted proposals to be excluded from the competition for failure to meet a
mandatory requirement unless the requirement is clearly stated in the [solicitation.]” Id.(citing Mantech Telecommc’ns & Info. Sys. Corp. v. United States, 49 Fed. Cl. 57, 67
(2001), aff’d, 30 F. App’x 995 (Fed. Cir. 2002) (“A mandatory minimum requirement
must be clearly identified as such within the solicitation so as to put offerors on notice of
the serious consequences of failing to meet the requirement.” (internal quotation marks
omitted)); see also Tr. 14:22–15:2 (Pl.’s Counsel) (addressing same).
However, the court agrees with defendant’s observation that although QBE’s
Technical Proposal “adequately describ[ed] big picture ideas,” it failed to “set[] forth the
technical details necessary to accomplish the specific mission contemplated by the
[Solicitation].” Def.’s Mot. 9 (citing AR 1380–81 (SSEB Tech. Eval.)); see also Tr.
18:6–9 (Def.’s Counsel) (“QBE’s proposal was really nothing more than a boilerplate
information technology proposal that had really almost nothing to do with the I3C2
framework or any of the subordinate networks.”).
As set forth below, the record supports the Agency’s determination that QBE’s
Technical Proposal failed to adequately convey QBE’s understanding of the entire PM
I3C2 framework. The court finds that the Agency’s identification of each of the four
technical deficiencies was reasonable and consistent with the Solicitation’s stated
requirements and evaluation criteria. See Pitney, 94 Fed. Cl. at 11 (“Mindful of its role
on review, the court will not evaluate the proposal anew, but instead will examine the
agency’s evaluation to ensure that it was reasonable and in accord with the evaluation
criteria listed in the solicitation.” (internal quotation marks omitted)). The court also
finds that the Agency reasonably determined that at least three of these deficiencies could
not be cured absent major revisions to QBE’s Technical Proposal. See infra Parts
III.A.1.b–c & III.A.2.a (addressing Sub-Factors 1c, 1d, and 2b). Because QBE failed to
adequately demonstrate a clear understanding of the technical requirements of the
10
Solicitation, the court concludes that the Agency reasonably rated QBE’s Technical
Proposal as Unacceptable and properly excluded QBE from the competitive range. The
court reviews, in turn, each identified deficiency in QBE’s Technical Proposal. 9
1. Technical Sub-Factor 1 – Understanding of the EITS PWS
a. Sub-Factor 1b – Approach and Methodology
Section L of the Solicitation instructs offerors to describe their approach and
methodology under Sub-Factor 1b. AR 795. The Solicitation specifically instructs
offerors as follows: “Describe your technical approach and methodology to meeting
PWS task area elements within the given constraints and other requirements.” Id.
Section M of the Solicitation sets forth the process by which the Agency intends to
evaluate Sub-Factor 1b, and states as follows:
The technical approach to the EITS will be evaluated to determine whether
the offeror has proposed a complete, logical, well-defined and meaningful
approach with clear methods and procedures that will successfully
accomplish the requirements with the least risk. The proposal shall address
the EITS IDIQ PWS in sufficient detail to demonstrate a clear
understanding of all tasks required.
AR 803 (emphasis added).
In its evaluation of QBE’s Sub-Factor 1b, which is addressed in section 1.2 of
QBE’s proposal, see AR 1208–23, the SSEB concluded, overall, that QBE “failed to
address the clear process to approach and methodology of each individual technical
section to analyze successful accomplishment with the least risk,” AR 1381 (citing six
PWS sections insufficiently addressed). The SSEB identified two strengths, one
weakness, and one deficiency in this section of QBE’s proposal. AR 1381–82. As to the
identified strengths, the SSEB credited QBE for its “detailed area[s] of specialties” and
its discussion of several other PWS technical support tasks. See AR 1381. As a
weakness, the SSEB pointed to the Knowledge Management Support section of QBE’s
proposal, which states, in full: “Knowledge management is the full life-cycle
management of a database with a web portal front-end and includes managing access
control, integration with enterprise army systems (i.e. small and AD), training/supporting
users, and maintaining an optimal [knowledge management] technology/process
architecture.” AR 1212. The SSEB found that although QBE correctly defined the
9
The court need only determine that one of the identified deficiencies was justified
for plaintiff to lose on its motion for judgment on the administrative record. Cf. Tr.
19:20–24 (Def.’s Counsel) (“I think we’re in agreement that all four of those deficiencies
would need to be shown to be unreasonable for QBE to [prevail].”). However, for the
sake of completeness, the court addresses each deficiency in turn.
11
concept of knowledge management and mentioned knowledge management tools in other
sections of its Technical Proposal, it considered as a weakness QBE’s failure to
adequately describe how it would apply its own expertise in knowledge management to
the I3C2 framework. See AR 1382.
The Knowledge Management section of QBE’s proposal is also relevant to the
SSEB’s identified deficiency for Sub-Factor 1b. The SSEB considered as a deficiency
QBE’s failure to adequately address its approach to developing and operating a database
for the management of technical data: “[Although QBE] offered to ‘create, maintain, and
operate an automated repository’ in [the] Technical Data Management Support section of
the proposal, [it] did not address this requirement in [the] Knowledge Management
Support [section].” 10 Id. (internal citations omitted); cf. AR 503 (PWS) (requiring
successful offerors to “create, maintain, and operate an automated repository to assist
I3C2 in acquiring, storing, maintaining, protecting, sharing and accessing program data”
as part of the technical data management requirement).
The court observes that the SSEB’s articulation of this deficiency is not a model of
clarity. During oral argument, defendant’s counsel attempted to shed light on this
identified deficiency by explaining that the SSEB “found [a] reference to an access
control database,” in the Knowledge Management Support section of QBE’s proposal,
which, according to defendant, was “close enough to be [the automated] repository
database that [the SSEB] was looking for.” 11 Tr. 32:3–6; see also Tr. 33:22–24 (Def.’s
Counsel) (claiming that the although the SSEB gave QBE “credit for at least discussing
an access-controlled database,” it ultimately “found that [QBE] didn’t go far enough”);
cf. AR 1212 (QBE’s Proposal) (stating that “[k]nowledge management is the full life-
10
Defendant’s counsel explained the relationship between knowledge management,
technical data management, and configuration management as follows:
Sort of the way I look at it is knowledge management is a big circle of ideas
and tasks and things that need to be done. Within that [are] a myriad of
smaller circles. One of which is configuration management, [and] one of
which is technical data management. Those two are sort of like Venn
diagrams. They overlap a little bit. You’re going to get a little bit of a
configuration management, tech management and vice versa, and you’re
going to get a little bit of knowledge management in both of those.
Tr. 32:15–24 (Def.’s Counsel); cf. Tr. 9:11–15 (Pl.’s Counsel) (stating that configuration
management “is roughly interchangeable with . . . knowledge management,” and that
“one doesn’t go without the other”).
11
Defendant’s counsel further explained that “this automated repository” refers to
the management of “back[-]office data,” such as emails and voicemails. Tr. 33:13–20.
12
cycle management of a database . . . [that] includes managing access control”). However,
the court is unable to discern any support in the SSEB’s evaluation of Sub-Factor 1b for
the view defendant presented during oral argument. See AR 1382 (SSEB Tech. Eval.).
Further complicating matters is plaintiff’s contention that QBE addressed this
automated repository requirement in the Configuration Management section of its
proposal. See Pl.’s Mot. 24 (arguing that QBE employed an “integrated approach” to
discussing this technical data management requirement). Plaintiff claims that certain
language in the Technical Data Management Support section of QBE’s proposal refers
the evaluator to its Configuration Management section. Id. at 23–24. The language to
which plaintiff refers states: “Our administrative staff will apply change and
configuration management techniques to achieve consistency and accuracy across all
administrative documents . . . .” AR 1219 (QBE’s Proposal). And, according to plaintiff,
the Configuration Management section of QBE’s proposal “is fully compliant with
Section L instructions, and provides an extensive response to the [technical data
management] requirement.” Pl.’s Mot. 24.
Regardless of where in its proposal QBE allegedly addressed the automated
repository requirement, it is clear that the SSEB determined that QBE failed to do so in
sufficient detail. See AR 1382 (SSEB Tech. Eval.); Tr. 22:10–14 (Def.’s Counsel)
(stating that the Agency penalized QBE not for taking an alleged “integrated approach”
to discussing certain ideas but, rather, “for not discussing them with the level of detail
that would be necessary for this to be a successful proposal”). The SSEB faulted QBE
for failing to adequately explain its approach to “creat[ing], maintain[ing], and
operat[ing] an automated repository,” AR 1382 (internal quotation marks omitted), a
determination that the court finds reasonable based on the record before it, see Motor
Vehicle Mfrs. Ass’n, 463 U.S. at 43 (stating that the court will “uphold a decision of less
than ideal clarity if the agency’s path may reasonably be discerned”). Plaintiff’s blanket
citation to the Configuration Management section of QBE’s proposal does not persuade
the court otherwise. The Solicitation instructed offerors to address the PWS requirements
“in sufficient detail to demonstrate a clear understanding of all tasks.” AR 803 (emphasis
added). QBE failed to do so. Accordingly, the court finds reasonable the Agency’s
identified deficiency for Sub-Factor 1b.
b. Sub-Factor 1c – Implementation Strategy
Section L of the Solicitation instructs offerors to describe their implementation
strategy under Sub-Factor 1c. AR 795. The Solicitation instructs offerors as follows:
“Describe your approach for implementing your performance of the contract.” Id.Section M of the Solicitation sets forth the process by which Agency intends to evaluate
Sub-Factor 1c and provides: “The offeror should demonstrate understanding of mission,
corporate, and office requirements related to the implementation of capabilities. The
offeror shall demonstrate that it possesses a realistic approach and implementation
13
strategy for meeting or exceeding the EITS IDIQ PWS requirements with low risk to the
Government.” AR 803.
In its evaluation of section 1.3 of QBE’s proposal, which addressed QBE’s
implementation strategy, AR 1223, the SSEB identified as a deficiency QBE’s failure to
“clearly identify any implementation strategy,” AR 1382. The SSEB explained:
[QBE’s p]roposal had no proper disciplined strategy to implement the
program at all[.] [QBE] failed to offer any synchronized step-by-step
coordination between the implement[ation] strategy and described approach
and methodology. [QBE] does not show via either an IMS or other
document/visualization how they intend to meet timelines to get ramped up
to support the PM. There is no plan with this document.
Id. (citation omitted) (emphasis added). The contracting officer’s competitive range
determination was significantly influenced by most of these findings. See AR 1419; cf.
AR 1410 (stating that “only those SSEB evaluation findings that significantly influenced
[the contracting officer’]s competitive range determination are discussed”).
Section 1.3 of QBE’s proposal provides, in full:
The Government requires a transition that achieves the maximum value,
while introducing minimal risk to sustainment of existing and upcoming
service requirements. Our converged approach for acquisition oriented
program management (Figure 2) requires no modification to be integrated
into existing programs without disruption. It can be run in parallel with the
current framework to handle new acquisitions without slowing down
existing ones. It provides an optimal framework that can be used to control
and measure accelerated delivery of products, achieving timely results.
We have personnel currently working on related programs within key
mission areas such as Kuwait, Afghanistan, Germany, Korea, Hawaii, Fort
Huachuca, and Fort Belvoir. Our current SME staff spans the engineering,
architectural, and programmatic skill sets required to support each of the
ITIL process areas and to address specific Program requirements such as
Project/Product Management, BPR, Enterprise Design and IT Support, ILS,
and General Program Services. This background, and direct experience
with I3C2 and its subordinate commands (PM P2E, I3MP, and I3C2-P)
substantially reduce the risk to implementation for [QBE].
In support of this IDIQ contract, our initial focus will consist of
establishing our PMO within 2 weeks of award to meet onsite with
Government representation. We will provide surge resources to support our
Program Manager and meet with all relevant stakeholders to establish a
14
working relationship, understanding of expectations, definition of success
metrics, and to collect all initial data. Our PMO will develop an initial PMP
and Quality Control Plan (QCP), and work with corporate structures to
quickly expand the human resources, FSO, IT, engineering, proposal, and
financial system and process structures necessary to support the PMO and
all new requirements. Using this proactive approach, our team will be well
prepared to support ongoing reporting and financial obligations associated
with the IDIQ, and to quickly respond to all TO requirements with minimal
risk to the Government.
AR 1223.
Plaintiff first takes issue with the Agency’s observation that “QBE’s proposal does
not show via either an IMS or other document/visualization how [QBE] intend[s] to meet
timelines to get ramped up to support the PM.” Pl.’s Mot. 25 (citing AR 1419 (CRD));
AR 1382 (SSEB Tech. Eval.) (observing same). Plaintiff argues that neither the
Solicitation nor the PWS effectively describe the required timeline, and that, in any event,
section 1.3 of QBE’s proposal clearly provides a timeline. Pl.’s Mot. 25. 12
12
Plaintiff further contends that the Agency’s reference to “an IMS or other
document/visualization” suggests that the Agency was erroneously applying the
instructions for Sub-Factor 2c. Pl.’s Mot. 25 (referencing AR 1382 (SSEB Tech. Eval));
cf. AR 796 (Sub-Factor 2c to Amendment 0022) (instructing offerors to “[p]rovide a
Work Breakdown Structure (WBS), WBS Dictionary, and Integrated Master Schedule
(IMS) for the Sample Task Order”). Defendant explains that the Agency was simply
offering “constructive feedback” by identifying “‘an IMS or other
document/visualization’” as a “possible way[]of satisfying the [Solicitation’s]
requirements,” see Def.’s Resp., ECF No. 20, at 8 (referencing AR 1382 (SSEB Tech.
Eval)), an explanation the court finds to be persuasive.
Moreover, even if the Agency had erroneously applied the instructions for Sub-
Factor 2c to Sub-Factor 1c of QBE’s proposal, the court considers such an error de
minimis, and “[d]e minimis errors in the procurement process do not justify relief.” See
Glenn Def. Marine (ASIA), PTE Ltd. v. United States, 720 F.3d 901, 907 (Fed. Cir.
2013). Plaintiff has further failed to establish that, absent this alleged error, the Agency
would not have assigned QBE a deficiency for Sub-Factor 1c. See id. (“The protestor
bears the burden of proving that a significant error marred the procurement in question.”).
The court construes the Agency’s reference to QBE’s failure to identify “an IMS or other
document/visualization” as just one example of QBE’s overarching failure to “clearly
identify any implementation strategy.” AR 1382; see also id. (concluding that “[t]here is
no plan with [QBE’s] document”).
15
As an initial matter, the PWS sets forth a thirty-day transition timeline for
Continental United States (CONUS) operations and a sixty-day transition timeline for all
overseas operations (OCONUS). See AR 728 (stating that “the Contractor shall have
personnel in place during transition periods after an award to ensure a successful
transition” and that the “CONUS transition period is 30 days” and the “OCONUS
transition period is 60 days”); Tr. 25:8–12 (Def.’s Counsel) (observing same). And
although QBE claimed that it would establish program management and operations
support “within 2 weeks of award,” AR 1223, QBE offered no details or explanation as to
how it intends to meet this timeline. Rather, QBE provided summary assurances that
failed to inspire confidence in the Agency that QBE could meet the CONUS and
OCONUS transition timelines with low risk to the government. Accordingly, the court
finds the Agency reasonably faulted QBE for not demonstrating, in any capacity, “how
[it] intend[ed] to meet timelines to get ramped up to support the PM.” See AR 1382.
Plaintiff also claims that section 1.3 of QBE’s proposal “clearly describes a
strategy to implement the program.” Pl.’s Mot. 25; Pl.’s Resp. ECF No. 21, at 6.
Plaintiff argues that QBE’s “implementation approach is consistent with an unfunded
multiple award IDIQ vehicle,” Pl.’s Resp. 7, and that “[i]t is unclear what other
expectation the Government has for implementation of the [multiple award] IDIQ given
that no funding will be provided at contract award, no access to Government facilities
provided, no access to Government systems, no specific programs tasks to be
implemented nor authorization to access Government information,” id. at 8.
Notwithstanding plaintiff’s contention to the contrary, the record supports the
Agency’s determination that QBE failed to “clearly identify any implementation
strategy.” See AR 1419 (CRD); accord AR 1382 (SSEB) (similar); cf. CRAssociates,
102 Fed. Cl. at 717 (stating that a protestor’s mere disagreement an Agency’s
determination “is not nearly enough” to establish that the Agency acted unreasonably).
QBE dedicated a scant three paragraphs to addressing its approach for implementing the
twenty-one technical support tasks and three program management tasks. See AR 1223.
This cursory presentation of information does not engender confidence that QBE
“possess[es] a realistic approach and implementation strategy for meeting or exceeding
the EITS IDIQ PWS requirements with low risk to the Government.” See AR 803; Tr.
23:24–24:4 (Def.’s Counsel) (stating that “the [Agency] didn’t have any confidence that
QBE could [implement the tasks successfully],” which is “an imminently reasonable
conclusion to make” based on the three paragraphs QBE offered as an implementation
strategy). The court finds reasonable the Agency’s determination that QBE failed to
adequately explain how it intended to implement the PWS tasks within the I3C2
framework, see AR 1380 (SSEB Tech. Eval.) (finding that QBE’s proposal “provided
insufficient value to justify how the offeror would implement [the] technical section to
the framework”), and concludes that the Agency reasonably assigned QBE a deficiency
for Sub-Factor 1c. The court further finds that the Agency rationally found that curing
this deficiency would require major revisions to the relevant portion of QBE’s proposal.
16
See AR 1421 (CRD) (“Major revisions would be required to [QBE’s] Technical
[Proposal] for QBE’s proposal to be awardable”).
c. Sub-Factor 1d – Coordination and Planning
Section L of the Solicitation instructs offerors to describe their coordination plans
under Sub-Factor 1d. AR 795. The Solicitation instructs offerors as follows: “Address
issues of coordination, planning and integration activities as they relate to all elements of
the PWS.” Id. Section M of the Solicitation sets forth the process by which the Agency
intends to evaluate Sub-Factor 1d and provides: “The offeror should provide evidence of
sufficient planning to show that work will be accomplished as required and on schedule.
The proposal should clearly articulate the plans and coordination required for all
activities needed to execute the contract and satisfy the customer’s requirements.” AR
803.
In its evaluation of QBE’s Sub-Factor 1d, which is addressed in section 1.4 of
QBE’s proposal, AR 1223–24, the SSEB found that QBE “did not address any
coordination and planning process (chart or table or explanation in writing) to justify any
proposed position, but rather just rewrote the description from [the] PWS,” AR 1382, a
finding that the contracting officer considered persuasive when deciding to exclude QBE
from the competitive range, AR 1419. 13 The SSEB identified one deficiency in this
section of QBE’s proposal for “basically restat[ing] the PWS” and for failing to “offer
any planning documents or other supporting visualization (tables, planning and process
charts for their organizations.).” AR 1382.
Section 1.4 of QBE’s Technical Proposal consists of approximately one page and
purports to “discuss issues of coordination and planning.” AR 1223; see also id.
(indicating that section 1.4 addresses “SF1.d”—or Sub-Factor 1d). However, this section
is more accurately described as a restatement of the PWS section dedicated to
Contingency Operations. See id. (stating that section 1.4 of QBE’s Technical Proposal
13
The court does not interpret the Agency’s observation that QBE “did not address
any coordination and planning process . . . to justify any proposed position,” AR 1382, as
a failure by QBE to identify certain billable or labor positions, as plaintiff would suggest,
see Pl.’s Mot. 26 (claiming that QBE “did not propose any billable positions” because the
Solicitation does not require offerors to do so). Instead, the court interprets the Agency’s
observation to be an effort to point out a failure by QBE to identify any strategy,
approach, or methodology. See Tr. 29:8–12 (Def.’s Counsel) (“[QBE was not]
downgraded because [it] didn’t . . . offer a technical laborer position or some level of
specificity for a billable position. [But, rather,] [i]t’s that there’s no position here. There
is no approach to accomplish these tasks.”). This interpretation is consistent with
Agency’s criticism of other sections of QBE’s proposal. See, e.g., AR 1382 (stating that
QBE failed to identify a “plan” in the section of its proposal dedicated to Sub-Factor 1c).
17
focuses “especially [on] how [QBE] will meet all Contingency Planning and Operations
Support Requirements” (citing PWS 5.1.1 and 5.1.2 (AR 510–11)).
Plaintiff appears to argue that QBE adopted an “integrated approach” to discussing
its coordination and planning process: “Throughout the response to Sub-Factor 1
requirements (i.e. within each task area), QBE’s proposal clearly provides processes
which are intended to deliver a coordinated implementation of the described approach
and methodology.” Pl.’s Mot. 26 (citing AR 1206–24). As plaintiff sees it, the Agency
simply “did not like the manner in which QBE organized its proposal.” Pl.’s Mot. 17;
accord Tr. 15:2–8 (Pl.’s Counsel). As support for this argument, plaintiff cites to Matter
of: J.R. Conkey & Assocs., Inc. dba Solar Power Integrators (J.R. Conkey), B-406024.4,
2012 WL 3744798 (Comp. Gen. Aug. 22, 2012), in which the Government
Accountability Office (GAO) found that although an agency “does not bear the
responsibility of an inadequately written proposal, the agency does not have license to
ignore information in a proposal that is readily apparent.” Id. at *4.
The court finds unavailing plaintiff’s reliance on J.R. Conkey. Unlike the
solicitation in J.R. Conkey, which “did not require offerors to organize their proposals in
any particular manner,” id. at *5, the Solicitation at issue here specifically instructs
offerors to “address[] each factor/sub-factor in the format and sequence identified in the
solicitation,” AR 791; cf. id. (“The Government will consider an offeror’s noncompliance
with proposal instructions to be indicative of the type of conduct that it may expect from
the offeror during contract performance.”). Accordingly, plaintiff’s blanket citation to
the entirety of QBE’s Technical Proposal dedicated to addressing Sub-Factor 1 does not
serve plaintiff well here. See Pl.’s Mot. 26 (citing AR 1206–24 as support for the
proposition that “[t]hroughout the response to Sub-Factor 1 requirements (i.e. within each
task area), QBE’s proposal clearly provides processes which are intended to deliver a
coordinated implementation of the described approach and methodology”). 14 Because
QBE failed to clearly identify its coordination and planning activities within the section
of its proposal that specifically purported to do so, see AR 1223, the court finds
reasonable the Agency’s identified deficiency for Sub-Factor 1d. The court further finds
that the Agency rationally found that curing this deficiency would require major revisions
to this portion of QBE’s proposal. See AR 1421 (CRD) (“Major revisions would be
required to [QBE’s] Technical [Proposal] for QBE’s proposal to be awardable”).
14
Moreover, to the extent that plaintiff argues that other sections of QBE’s
Technical Proposal merely offer supplemental or additional information to the requisite
responses set forth in section 1.4 of its proposal, see Tr. 16:8–24, 17:10–14 (Pl.’s
Counsel), this argument is not supported by the record.
18
Based on the foregoing, the court concludes that the Agency’s Unacceptable rating
for Sub-Factor 1 of QBE’s Technical Proposal was both reasonable and in accordance
with the Solicitation’s stated requirements and evaluation criteria.
2. Technical Sub-Factor 2 – Sample Task Order Approach
Technical Sub-Factor 2 requires offerors to describe their approach to the Project
Management Office Support Sample Task Order. 15 The SSEB did not identify any
strengths or weaknesses associated with Sub-Factor 2a (Approach and Methodology) or
Sub-Factor 2c (Coordination and Planning) but did identify one deficiency associated
with Sub-Factor 2b (Implementation Strategy). Accordingly, only Sub-Factor 2b is at
issue and is discussed below.
a. Sub-Factor 2b – Implementation Strategy
Section L of the Solicitation instructs offerors to describe their implementation
strategy to the Sample Task Order under Sub-Factor 2b. AR 795. The Solicitation
specifically instructs offerors as follows:
Describe how you intend to implement your performance of this sample
task order. Provide a detailed labor mix (your proposed labor categories
with corresponding hours) utilizing the appropriate labor categories
provided in the contract pricing spreadsheet required to successfully
perform the sample task order. Offerors are permitted to select any or all of
the labor categories from the Master Labor Rate Table that they believe are
appropriate, and to select the number of labor hours for each selected labor
category that they feel are appropriate. This detailed labor mix will not
count against the page limitations.
AR 795–96.
Section M of the Solicitation provides that the Agency will use the following
standards to evaluate offerors’ implementation strategy Sub-Factor 2b:
In the detailed labor mix, the offeror shall demonstrate understanding of
mission, corporate, and office requirements related to [i]mplementation of
capabilities. The offeror shall demonstrate that it possesses a realistic
approach and implementation strategy for meeting or exceeding the Sample
Task Order 0001 PWS requirements with low risk to the Government.
15
Amendment 0022 of the Solicitation notified offerors that it would not award
Project Management Office Support Task Order 0001 due to financial constraints. AR
1408 (CRD). The Agency treated the Task Order as a Sample Task Order, and it
“remain[ed] part of the Technical and Management evaluations for overall basic contract
award(s).” Id.19
Additionally, the evaluation under this Sub-[F]actor will consider the
realism of the proposed labor mix (to include the offeror’s proposed labor
categories and associated labor hours) with respect to accomplishing the
Sample Task Order 0001 PWS requirements.
AR 804.
In its evaluation of QBE’s Sub-Factor 2b, which is addressed in section 2.3 of
QBE’s proposal, AR 1230, the SSEB found that QBE’s proposal did not sufficiently
explain how it planned to align its Sample Task Order implementation strategy with its
approach and methodology strategy “for successful achievement of the contract on time
with low risk,” AR 1383. As to the identified deficiency within this section of QBE’s
proposal, the SSEB stated:
[QBE] only identified senior leadership staff. Proposal offered Labor
categories for the senior leadership staff which was not adequately broken
out to effectively analyze. Proposal did not offer technical labor categories
and related required hours for technical workforce for the PM mission as a
part of critical requirement for this [Systems Engineering and Technical
Assistance] contract. 16 Additionally, [p]roposal did not describe clearly the
experience of the key personnel in related technical field (Contract
Management Support[)] . . . in support of the proposal’s implementation
strategy.
Id. (footnote added). The contracting officer considered the entirety of these findings
persuasive in her competitive range determination. AR 1419–20 (CRD).
Section 2.3 of QBE’s proposal states in full:
[QBE] is well positioned to provide immediate impact to I3C2. We propose
key personnel with direct experience leading EITS PMOS support for Task
Order #001. This allows our team to bring institutional knowledge,
substantially reducing the risk to implementation for [QBE]. In support of
this TO, our initial focus will consist of establishing our PMO within 2
weeks of award to meet onsite with Government representation and the
incumbent PMO. Figure 2.3 illustrates our detailed labor mix (proposed
labor categories with corresponding hours).
16
Plaintiff does not appear to dispute the Agency’s determination that QBE failed to
“offer technical labor categories and related required hours for [its] technical workforce.”
AR 1383 (SSEB Tech. Eval.).
20
LABOR CATEGORY HOURS
Program Manager (PGM) 1,880
Administrative Support (EAS) 5,640
Graphic Artist (GAR) 940
ILS Logistics Support – Senior (IL1) 1,880
Business Process Reengineering Senior (BP1) 1,880
Knowledge Management – Senior (KM1) 1,880
Knowledge Management – Intermediate (KM2) 1,880
Project Management Specialist Senior (PM1) 18,800
Project Management Specialist Intermediate (PM2) 1,880
We will provide surge resources from our IDIQ PMO to support our Project
Manager and meet with all relevant stakeholders to establish a working
relationship, an understanding of expectations, and to collect all initial data.
Our IDIQ PMO will assist the TO PMO with the development of an initial
PMP and QCP, and leverage our corporate structures to quickly update the
human resources, FSO, IT, engineering, proposal, and financial system and
process structures to support the new TO requirements. Due to the
proactive approach used in establishment of our IDIQ structure, our team
will be well prepared to quickly ramp up and provide high quality service
delivery with immediate benefits to the I3C2 program.
AR 1230.
Plaintiff first contends that section 2.3 of its proposal “provides a table defining
the proposed labor categories and corresponding hours as required.” Pl.’s Mot. 29. As
noted above, the Solicitation advises offerors that the Agency would not count the
detailed labor mix as part of the overall page limitation and that offerors could “select
any or all of the labor categories from the Master Labor Rate Table that they believe are
appropriate.” AR 796. Of the forty-one labor categories available, see AR 1308 (QBE’s
Master Labor Rate Table), QBE identified nine, AR 1230. The nine labor categories
identified by QBE appear to consist primarily of senior leadership staff. See AR 1230
(identifying a program manager and other “senior” and “intermediate” staff). However,
as defendant’s counsel observed during oral argument, whether the identified labor
categories constitute QBE’s senior leadership staff or technical support staff is irrelevant
because “the information that was proposed by QBE was not enough for [the Agency]
to . . . have any degree of confidence that this group of nine positions [was] going to be
sufficient to perform these tasks.” Tr. 35:22–36:3 (Def.’s Counsel). The court considers
reasonable the Agency’s determination that it was unable to “effectively analyze” the
labor categories because they were not adequately broken down, AR 1383, and plaintiff’s
summary assertion that it “provide[d] a detailed and complete set of labor categories
proposed to successfully perform the sample task order,” does not persuade the court
21
otherwise, Pl.’s Mot. 29; cf. CRAssociates, 102 Fed. Cl. at 717 (stating that a protestor’s
mere disagreement an Agency’s determination “is not nearly enough” to establish that the
Agency acted unreasonably).
Plaintiff also contends that the Solicitation does not require offerors to explain
how their sample task order implementation strategy aligns with their approach and
methodology. Pl.’s Mot. 28. Plaintiff is technically correct, but QBE addressed the
Sample Task Order PWS requirements in the approach and methodology section of its
proposal. See AR 1225–29 (QBE’s Proposal); cf. AR 513–18 (PWS) (discussing
program management and operation requirements). And Section M of the Solicitation
advises that the Agency intends to evaluate whether “[t]he offeror . . . demonstrate[s] that
it possesses a realistic approach and implementation strategy for meeting or exceeding
the Sample Task Order 0001 PWS requirements with low risk to the Government.” AR
804. Accordingly, the court finds reasonable the Agency’s examination of this factor.
Plaintiff appears to argue in the alternative that section 2.5 of QBE’s proposal
“provide[s] significant detail supporting the proposed implementation strategy which
directly aligns with the approach and methodology.” Pl.’s Mot. 29 (citing AR 1232–34
(QBE’s Proposal)). However, section 2.5 of QBE’s proposal addresses Sub-Factor 2c,
which requires offerors to “[p]rovide a Work Breakdown Structure (WBS), WBS
Dictionary, and Integrated Master Schedule (IMS) for the Sample Task Order,” AR 796,
and the Solicitation specifically instructs offerors to “address[] each factor/sub-factor in
the format and sequence identified in the solicitation.” AR 791; see supra Part III.A.1.c
(addressing in more detail plaintiff’s argument that the Agency simply “did not like the
manner in which QBE organized its proposal”). Further, the Agency separately evaluated
section 2.5 of QBE’s proposal and determined that it “met the minimum requirements of
the PWS.” AR 1383 (SSEB Tech. Eval.). And, as defendant correctly observes, “QBE’s
work breakdown structures do little more than truncate and reformat the performance
requirements listed in the Sub-Factor 2 PWS.” Def.’s Resp., ECF No. 20, at 10.
Compare AR 1232–33 (QBE’s Proposal), with AR 757–62 (Amendment 0017). The
court therefore finds reasonable the Agency’s determination that QBE failed to
adequately explain how it would synchronize its Sample Task Order implementation
strategy with its approach and methodology.
Finally, the court finds reasonable the Agency’s observation that QBE did not
clearly describe “the experience of the key personnel in related technical field (Contract
Management Support[)].” AR 1383. Plaintiff argues that the only “key personnel” the
PWS requires offerors to identify is the Project Manager, and that QBE properly
identified its Project Manager in section 2.1.2 of its proposal. 17 Pl.’s Mot. 29–30 (citing
17
The court observes that QBE identified the Project Manager by name only without
offering any details as to his experience or qualifications. See AR 1229 (stating, in full:
“[QBE’s] Key Personnel for this Task Order is XXX, our Project Manager, who will be
available to work under the Task Order as specified in the IETS PWS.”).
22
AR 1229 (QBE’s Proposal)); cf. AR 518 (PWS) (identifying the Project Manager as the
key personnel). The court understands, however, that the Agency merely adopted the
language used by QBE in its discussion of its proposed labor force: “We propose key
personnel with direct experience leading EITS PMOS support for Task Order #001.” AR
1230 (QBE’s Proposal) (emphasis added). More to the point, the court finds that QBE’s
list of proposed “key personnel” offers only a cursory understanding of this requirement.
The court finds that the Agency reasonably faulted QBE for failing to address, in any
capacity, the pertinence and value of the experience and qualifications of its Project
Manager or any other key personnel necessary to implement the PWS Contract
Management Support requirement. Cf. Def.’s Resp. 10 (observing that “QBE proposes
approximately nine man-years from the Project Management Specialist Senior position
without offering any additional detail”).
Plaintiff’s view that section 2.3 of QBE’s proposal “clearly provides a strategy for
implementing the performance of this sample task order,” Pl.’s Mot. 29, is simply not
supported by the record. Although QBE states that it will “quickly ramp up” and “will be
well prepared to . . . provide high quality service delivery with immediate benefits to the
I3C2 program,” AR 1230 (QBE’s Proposal), the court agrees with defendant that QBE
offers little more than “generic superlatives [that] are insufficient to demonstrate a
realistic . . . implement[ion strategy],” Def.’s Resp. 10–11.
Accordingly, the court finds that the Agency reasonably assigned QBE a
deficiency for Sub-Factor 2b. The court further finds that the Agency rationally found
that curing this deficiency would require major revisions to this component of QBE’s
proposal. Cf. AR 1420 (CRD) (stating the deficiency associated with Sub-Factor 2b
“[would] require major revisions to [QBE’s] proposal”).
Based on the above identified deficiency, the court concludes that the Agency’s
Unacceptable rating for Sub-Factor 2 of QBE’s Technical Proposal was both reasonable
and in accordance with the Solicitation’s stated requirements and evaluation criteria.
B. The Management Factor
Plaintiff also contends that the Agency improperly evaluated QBE’s Management
Proposal. Pl.’s Mot. 30–37; cf. AR 1399–1401 (SSEB Mgmt. Eval.) (rating QBE’s
Management Proposal as Marginal). However, even if the court accepted plaintiff’s
argument that QBE’s Management Factor merited an Outstanding rating, this rating
would not have overcome the Agency’s decision to exclude QBE from the competitive
range. As plaintiff correctly observes, “[i]t is the Unacceptable rating the Agency made
under the[] two [Technical] sub-factors that caused the Agency to exclude QBE’s
proposal from the competitive range.” Pl.’s Resp. 2; see also id. at 11 (“Obviously, if the
Agency’s evaluation of QBE’s proposal, especially under the Technical Factor, stands[,]
QBE should not be in the competitive range.”); cf. AR 802 (Solicitation) (stating that the
Technical Factor is the most important factor in the Agency’s best value determination).
23
The court has concluded that the Unacceptable ratings assigned to both Technical Sub-
Factors were reasonable, see supra Part III.A; accordingly, it need not address plaintiff’s
arguments regarding the Agency’s evaluation of QBE’s Management Proposal.
IV. Conclusion
Further to the foregoing, and based on a thorough and careful review of the record,
the court concludes that the Agency rationally rated QBE’s Technical Proposal as
Unacceptable and rationally excluded QBE from the competitive range. Plaintiff’s
motion is therefore DENIED, and defendant’s motion is GRANTED. The Clerk of
Court shall enter judgment for the government. No costs.
IT IS SO ORDERED.
s/ Patricia E. Campbell-Smith
PATRICIA E. CAMPBELL-SMITH
Chief Judge
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