Harmonia Holdings Group, LLC v. United States ( 2019 )

In the United States Court of Federal Claims
No. 18-1671C
(E-Filed: September 23, 2019) 1
)
HARMONIA HOLDINGS GROUP, )
LLC, )
)
Plaintiff, )
)
v. )
Post-Award Bid Protest; Remand for
)
Organizational Conflict of Interest
THE UNITED STATES, )
(OCI) Investigation; Agency Findings
)
Regarding Alleged OCIs Not
Defendant, )
Irrational; Agency Evaluation of
)
Proposals Not Arbitrary.
and )
)
PRECISE SOFTWARE SOLUTIONS, )
INC., )
)
Intervenor-Defendant. )
)
W. Brad English, Huntsville, AL, for plaintiff. J. Andrew Watson, III, Emily J. Chancey,
J. Dale Gipson, and Michael W. Rich, of counsel.
Cameron Cohick, Senior Trial Counsel, with whom were Joseph H. Hunt, Assistant
Attorney General, Robert E. Kirschman, Jr., Director, Patricia M. McCarthy, Assistant
Director, Commercial Litigation Branch, Civil Division, United States Department of
Justice, Washington, DC, for defendant. Robyn A. Littman, Office of the General
Counsel, United States Department of Health and Human Services, of counsel.
1
This opinion was issued under seal on August 29, 2019. Pursuant to ¶ 4 of the
ordering language, the parties were invited to identify source selection, proprietary or
confidential material subject to deletion on the basis that the material was
protected/privileged. No redactions were proposed by the parties. Thus, the sealed and
public versions of this opinion are identical, except for the publication date and this
footnote.
William T. Welch, Reston, VA, for intervenor-defendant.
OPINION
CAMPBELL-SMITH, Judge.
This post-award bid protest is before the court on plaintiff’s and defendant’s
cross-motions for judgment on the administrative record (AR), brought pursuant to Rule
52.1 of the Rules of the United States Court of Federal Claims (RCFC). The court has
reviewed the AR, ECF No. 35; the second amended and restated complaint, ECF No. 50;
plaintiff’s motion for judgment on the AR, ECF No. 51; defendant’s cross-motion for
judgment on the AR, ECF No. 53; plaintiff’s response/reply brief, ECF No. 54;
defendant’s reply brief, ECF No. 55; and, intervenor-defendant’s response/reply brief,
ECF No. 56. Oral argument was deemed unnecessary. For the reasons set forth below,
plaintiff’s motion for judgment on the AR is DENIED, and defendant’s cross-motion for
judgment on the AR is GRANTED.
I. Background
A. Request for Quote (RFQ) # 17-223-SOL-00052
The procuring agency here is the Food & Drug Administration (FDA) of the
United States Department of Health and Human Services (HHS). The competition that
underlies this protest is for information technology services to support the agency’s
“Emergency Operations Network Incident Management System (EON IMS).” ECF No.
35-7 at 16. The RFQ issued on May 22, 2018. Id. The procurement vehicle, a Blanket
Purchase Agreement (BPA), is a total small business set-aside, and is restricted to holders
of General Services Administration Federal Supply Schedule (FSS) Contracts. Id. at 16,
19.
Potential offerors submitted questions about the RFQ. Id. at 204-15. Through the
agency’s answers, offerors learned that the incumbent contractor for EON IMS would be
ineligible for this procurement because it is not a small business. Id. at 214. The
incumbent contractor is Dovel Technologies, LLC (Dovel). ECF No. 35-6 at 3. The
offerors also learned that the agency would not disclose the “current level of effort by
labor category,” obliging the offerors to make their own estimates of the labor hours
required to perform the contract. ECF No. 35-7 at 210; see also ECF No. 51 at 31
(stating that “offerors [had] to rely on their best estimates of labor hours to formulate
their fixed price bids”).
B. Proposals Received and Contract Awarded
Five responsive proposals were received by the FDA. ECF No. 35-8 at 172, 181.
Plaintiff, Harmonia Holdings Group, LLC (Harmonia), submitted a proposal that
2
received technical ratings that were in line with the other four proposals, and its proposal
had the second lowest evaluated price. Id. at 181-82. Intervenor-defendant, Precise
Software Solutions, Inc. (Precise), submitted a proposal which received a technical rating
that was slightly higher than the other proposals, and which had the lowest evaluated
price. Id. at 181-83. Precise was selected for award as providing the best value to the
agency. Id. at 183. Precise’s technical proposal noted that Precise had chosen to partner
with Dovel, the incumbent contractor. ECF No. 35-7 at 453.
C. Two Protests, Two Remands to Investigate Organizational Conflict of
Interest (OCI) Allegations, and Two Amended Complaints
After receiving a debriefing, Harmonia filed a size protest with the contracting
officer on October 24, 2018, which was forwarded to the Small Business Administration
(SBA). ECF No. 35-9 at 1-104. The size protest asserted that Precise’s proposal does
not qualify for the EON IMS small business set-aside, because the partnering affiliation
with Dovel renders Precise “other than small.” Id. at 6. Because of a timeliness issue,
the SBA did not reach the merits of Harmonia’s argument and dismissed the protest. Id.
at 105-06.
On October 30, 2018, Harmonia filed its bid protest in this court. The court
adopted the parties’ proposed expedited briefing schedule to resolve the merits of
Harmonia’s protest. See ECF No. 14 (scheduling order). Within two weeks, however,
the government filed an unopposed motion for a remand to allow the agency to
investigate OCI allegations raised by Harmonia. See ECF No. 19. The remand ordered
by the court produced a report from the contracting officer (CO) detailing her OCI
investigation (2018 OCI investigation). See ECF No. 35-9 at 109-97.
Because the CO found that no OCIs marred this procurement, the parties again
proposed an expedited briefing schedule to resolve the merits of Harmonia’s protest. See
ECF No. 22 (joint status report). The court set an expedited briefing schedule with the
goal of issuing a ruling on the merits before the agency’s voluntary stay of Precise’s
contract performance expired. See ECF No. 23 (scheduling order). Before any of the
briefs in that schedule were filed, however, defendant filed an unopposed motion for a
remand to investigate additional OCI allegations, and plaintiff filed an amended
complaint setting forth some of these new OCI allegations. See ECF No. 26 (remand
motion); ECF No. 27 (amended complaint).
The court ordered the second remand, see ECF No. 28, and granted a motion to
extend the second remand, see ECF No. 32. At the close of the remand, the CO produced
a report of her second OCI investigation (2019 OCI investigation). See ECF No. 35-9 at
198-255. Because the CO found, once more, that no OCI marred this procurement, the
parties again proposed an expedited briefing schedule to resolve the merits of Harmonia’s
protest. See ECF No. 33 (joint status report).
3
The court set a final expedited briefing schedule, mindful of the agency’s
extension of the voluntary stay of Precise’s contract performance through August 31,
2019. ECF No. 34 (scheduling order). Along with the briefs required by that order,
plaintiff filed a second amended complaint which added a new challenge to the agency’s
best value award decision. See ECF No. 50. The court reserves its discussion of specific
OCI allegations, and specific allegations of proposal evaluation error, for the analysis
section of this opinion. 2
II. Legal Standards
A. Bid Protest Standard of Review
As the United States Court of Appeals for the Federal Circuit has stated, “the
proper standard to be applied in bid protest cases is provided by 5 U.S.C. § 706(2)(A): a
reviewing court shall set aside the agency action if it is ‘arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law.’” Banknote Corp. of Am. v. United
States, 365 F.3d 1345, 1350-51 (Fed. Cir. 2004) (citing Advanced Data Concepts, Inc. v.
United States, 216 F.3d 1054, 1057-58 (Fed. Cir. 2000)). Under this standard, a
procurement decision may be set aside if it lacked a rational basis or if the agency’s
decision-making involved a clear and prejudicial violation of statute, regulation or
procedure. Emery Worldwide Airlines, Inc. v. United States, 264 F.3d 1071, 1085-86
(Fed. Cir. 2001) (citing Impresa Construzioni Geom. Domenico Garufi v. United States,
238 F.3d 1324, 1332-33 (Fed. Cir. 2001)). “The arbitrary and capricious standard
applicable [in bid protests] is highly deferential.” Advanced Data Concepts, 216 F.3d at
1058.
De minimis errors in the procurement process do not justify relief. Grumman Data
Sys. Corp. v. Dalton, 88 F.3d 990, 1000 (Fed. Cir. 1996) (citing Andersen Consulting v.
United States, 959 F.2d 929, 932-33, 935 (Fed. Cir. 1992)). The bid protest plaintiff
bears the burden of proving that a significant error marred the procurement in question.
Id. (citing CACI Field Servs., Inc. v. United States, 854 F.2d 464, 466 (Fed. Cir. 1988)).
Examples of arbitrary and capricious agency action include “when 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 [the decision] is 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) (Alabama Aircraft) (quoting Motor Vehicle Mfrs. Ass’n v. State Farm
Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)) (alteration in original). The court will,
2
In light of the compressed schedule for rendering a decision on the merits of this
protest, only plaintiff’s principal arguments are addressed in this opinion. The court has
considered all of plaintiff’s arguments, but none justify an injunction of the contract
award to Precise.
4
however, “uphold a decision of less than ideal clarity if the agency’s path may reasonably
be discerned.” Bowman Transp., Inc. v. Arkansas-Best Freight Sys., Inc., 419 U.S. 281,
286 (1974) (citation omitted).
The agency’s technical evaluation of proposals is reviewed with considerable
deference because “technical ratings . . . involve discretionary determinations of
procurement officials that a court will not second guess.” E.W. Bliss Co. v. United
States, 77 F.3d 445, 449 (Fed. Cir. 1996) (citations omitted). Indeed, the Federal Circuit
describes an agency’s technical evaluation of proposals as “an inherently judgmental
process requiring deference.” Galen Med. Assocs., Inc. v. United States, 369 F.3d 1324,
1339 (Fed. Cir. 2004). “‘If the court finds a reasonable basis for the agency’s action, the
court should stay its hand even though it might, as an original proposition, have reached a
different conclusion as to the proper administration and application of the procurement
regulations.’” Honeywell, Inc. v. United States, 870 F.2d 644, 648 (Fed. Cir. 1989)
(quoting M. Steinthal & Co. v. Seamans, 455 F.2d 1289, 1301 (D.C. Cir. 1971)).
B. Permanent Injunctive Relief
As the Federal Circuit has held:
In deciding whether a permanent injunction should issue, a court considers:
(1) whether, as it must, the plaintiff has succeeded on the merits of the case;
(2) whether the plaintiff will suffer irreparable harm if the court withholds
injunctive relief; (3) whether the balance of hardships to the respective
parties favors the grant of injunctive relief; and (4) whether it is in the public
interest to grant injunctive relief.
PGBA, LLC v. United States, 389 F.3d 1219, 1228-29 (Fed. Cir. 2004) (citing Amoco
Prod. Co. v. Vill. of Gambell, Alaska, 480 U.S. 531, 546 n.12 (1987)).
III. Analysis 3
Throughout this litigation, plaintiff has alleged that Precise was given an unfair
advantage in the EON IMS procurement through the personal relationships of FDA
employees and Precise employees. ECF No. 50 at 12-14; ECF No. 51 at 25-36; ECF No.
54 at 6-17. The record confirms that there are a number of personal relationships linking
agency employees and the employees of Precise. However, the agency investigated the
potential OCIs which could have conferred an advantage upon Precise in this
procurement. As explained below, the court does not conclude, on this record, that the
3
The court’s analysis is founded on facts recounted in the administrative record.
These facts are largely undisputed, although the parties hotly contest the inferences the
court should draw from the underlying facts.
5
agency’s investigation was unreasonable, or that the agency’s rejection of the OCI
allegations before it was irrational.
Plaintiff also contends that the agency’s evaluation of proposals, and consequently
the agency’s best value decision in favor of Precise, were arbitrary and capricious. ECF
No. 50 at 10-12, 15; ECF No. 51 at 36-41; ECF No. 54 at 17-20. Defendant relies on the
record of the evaluation by the agency to assert, first, that the evaluation was not flawed.
ECF No. 53 at 40-47; ECF No. 55 at 14-21. Further, defendant contends that the alleged
flaws in the evaluation process would not have prejudiced Harmonia, because
Harmonia’s proposal could not have achieved a higher technical rating than Precise’s
proposal, and Precise offered the lowest price. ECF No. 53 at 42-43, 47; ECF No. 55 at
17-18. As explained below, the agency’s evaluation of these two proposals and its best
value award decision have not been shown to be arbitrary or capricious under the
deferential standard of review applicable here.
The court begins with a review of the OCI investigations conducted by the agency,
before examining the agency’s evaluation of the offerors’ technical proposals.
A. Standard of Review for an Agency’s OCI Determination
An early formulation of the OCI standard of review was articulated by the Federal
Circuit in CACI, Inc.-Federal v. United States, 719 F.2d 1567 (Fed. Cir. 1983) (CACI):
“[T]he opportunity for and the appearance of impropriety in [the procurement] process
[is] not an adequate or proper basis for enjoining the award of the contract.” Id. at 1581.
A court should not “base[] its inferences of actual or potential wrongdoing by the
Department on suspicion and innuendo, [but should, instead, require] hard facts.” Id. at
1582.
A further development of the OCI standard explains how the court assesses the
agency’s investigation into OCI allegations:
The issue before [the court] is whether an organizational conflict of interest
is so pervasive as to have created an advantage to one bidder over the others,
and whether the contracting officer failed to exercise proper discretion and
to follow proper procedures in making the determination that no
organizational conflict of interest existed.
PAI Corp. v. United States, 614 F.3d 1347, 1351 (Fed. Cir. 2010). The agency’s OCI
determination will not be overturned unless it fails the arbitrary and capricious standard
applicable generally to bid protests. Id. at 1352 (citing John C. Grimberg Co. v. United
States, 185 F.3d 1297, 1300 (Fed. Cir. 1999)). “To demonstrate that such [an OCI]
determination is arbitrary or capricious, a protester must identify ‘hard facts’; a mere
inference or suspicion of an actual or apparent conflict is not enough.” Id. (citing CACI,
719 F.2d at 1581; Filtration Dev. Co. v. United States, 60 Fed. Cl. 371, 380 (2004)).
6
B. 2018 OCI Investigation—Two Personal Relationships Examined
Harmonia conveyed its first set of OCI allegations directly to the CO, and
indirectly to the agency through the allegations in its original complaint, in October 2018.
ECF No. 1 at 9, 11-12 (complaint); ECF No. 35-9 at 204. The CO had awarded the EON
IMS contract before learning of these OCI allegations. ECF No. 35-9 at 203-04. Precise
hired a recently retired FDA employee, Mr. George Brush, before the RFQ issued;
Precise also engaged another employee before the RFQ issued, Ms. Jen Nguyen, who is
the sister of Ms. Tina Nguyen, an FDA employee. ECF No. 50 at 9, 13; ECF No. 35-9 at
121, 127. Ms. Jen Nguyen assisted in the preparation of the proposal Precise submitted
in response to the RFQ. ECF No. 35-9 at 128-31. Although Mr. Brush read the RFQ, he
did not work on Precise’s proposal. Id. at 122-23.
The court observes, at the outset of its discussion of the 2018 OCI investigation,
that Precise has done extensive work for the FDA in recent years. See ECF No. 35-6 at
25 (“Precise is a certified 8(a) company whose roots are founded in supporting FDA for
over a decade.”). Further, the record shows that three of Ms. Tina Nguyen’s relatives
work at the FDA. ECF No. 35-9 at 217. The AR filed in this litigation demonstrates the
complexity of personal and professional relationships within agencies, and among
government agencies and the corporate contractors that serve them.
1. Mr. George Brush, a Former FDA Employee Now Employed by
Precise
For the OCI allegations addressing Mr. Brush’s employment by Precise, the CO
relied on four main sources of information. She obtained declarations from Mr. Zhensen
Huang, the CEO of Precise, and Mr. Brush himself, wherein these individuals responded
specifically to a number of her questions. ECF No. 35-9 at 111-12, 116-26. She also
conducted interviews and received responses to questionnaires from various FDA
employees. Id. at 111-12. The CO reviewed the organizational structure within pertinent
units of the FDA, and how that structure would impact access to confidential information
regarding the EON IMS procurement. Id. at 112-13. Finally, the CO reviewed the
procedures followed by the agency in the procurement which are meant to safeguard
procurement integrity, as well as the non-disclosure and conflict of interest forms signed
by FDA personnel involved in this procurement. Id. at 114.
Based on her review of this information, the CO found that Mr. Brush had no
access to sensitive information regarding the EON IMS procurement and that his
employment by Precise did not constitute a violation of any employment restrictions on
federal employees. Id. at 113. Nor did the CO find any evidence that Mr. Brush had
communicated with FDA employees about the EON IMS procurement. Id. The CO
concluded that the employment of Mr. Brush by Precise did not create an actual or
potential OCI. Id. at 114.
7
Having reviewed the parties’ arguments and the documentation in the AR, the
court finds that the CO’s determination is not unreasonable as to Mr. Brush and any OCI
related to his employment by Precise. There are no hard facts in the AR that undermine
the rationality of her 2018 OCI investigation into Mr. Brush’s employment at Precise.
Plaintiff’s bid protest cannot be sustained on this ground. CACI, 719 F.2d at 1582.
2. Ms. Jen Nguyen, a Precise Employee at the Time Precise Responded
to the RFQ, and Her Sister, Ms. Tina Nguyen, an FDA Employee
The CO investigated the relationship between Ms. Jen Nguyen, working at
Precise, and Ms. Tina Nguyen, working at the FDA, in a similar fashion. 4 For the OCI
allegations addressing Ms. Jen Nguyen’s employment by Precise, the CO obtained
declarations from Mr. Huang, the CEO of Precise, and Ms. Jen Nguyen, wherein these
individuals responded specifically to a number of the CO’s questions. ECF No. 35-9 at
111-12, 116-20, 127-32. The CO also conducted interviews and received responses to
questionnaires from various FDA employees, and had some email contact with Ms. Tina
Nguyen. Id. at 111-12, 149-51. The CO reviewed the organizational structure within
pertinent units of the FDA, and how that structure would impact access to confidential
information regarding the EON IMS procurement. Id. at 112-13. Finally, the CO
reviewed the procedures followed by the agency in the procurement which are meant to
safeguard procurement integrity, as well as the non-disclosure and conflict of interest
forms signed by FDA personnel involved in this procurement. Id. at 114.
Based on her review of this information, the CO found that Ms. Jen Nguyen had
no access to sensitive information regarding the EON IMS procurement through her
sister’s employment at the FDA. Id. at 113. The CO found no evidence that Ms. Jen
Nguyen had communicated with any FDA employee about the EON IMS procurement.
Id. The CO concluded that Precise’s employment of Ms. Jen Nguyen did not create an
actual or potential OCI. Id. at 114. The court does not find the CO’s conclusion in this
regard to be unreasonable, based on the record of the 2018 OCI investigation. Nor is this
OCI allegation supported by hard facts that would justify an injunction of the contract
award to Precise. CACI, 719 F.2d at 1582.
C. 2019 OCI Investigation—Two Precise Employees Share Concerns About
Precise’s Competition for FDA Procurements 5
4
Additional allegations concerning the Nguyen sisters were raised in early 2019;
those allegations will be discussed infra.
5
The court has considered every document in the record relevant to the 2019 OCI
investigation, but limits its discussion here to a general summary of the agency’s
investigation into the second set of OCI allegations.
8
1. Mr. Neil Wolfe, a Former Employee of Precise Who Made Negative
Allegations Regarding Precise to the FDA
Mr. Neil Wolfe worked as the contracting manager for Precise until his
employment ended on or about January 25, 2019. ECF No. 35-9 at 117, 216. On January
28, 2019, Mr. Wolfe contacted a number of FDA officials stating that there were
irregularities in Precise’s conduct during various FDA procurements, including the EON
IMS procurement, but he did not file a whistleblower complaint. Id. at 198, 216. These
allegations triggered an investigation by various entities within HHS, including the Office
of Internal Affairs (HHS-OIA investigation). Later in the HHS-OIA investigation, Mr.
Wolfe told investigators that he had no evidence of impropriety on the part of Precise,
that the calls he made to the FDA on January 28, 2019, were expressions of anger at his
termination by Precise, and that he “regretted acting impulsively.” Id. at 218. HHS-OIA
concluded that there was no reason to investigate Mr. Wolfe’s allegations further. 6 Id. at
219.
Thus, while in January and February of 2019, Mr. Wolfe presented to HHS and
Harmonia allegations of Precise’s improper behavior including “kickbacks, bribes and
backdoor deals,” falsified declarations, and the shared living arrangements of the Nguyen
sisters and Precise’s CEO, id. at 216; see also ECF No. 50 at 9 (stating that Mr. Wolfe
resigned “due to blatant violations of ethics law and regulation by Precise”), Mr. Wolfe’s
later conversations with investigators backed away from these assertions, ECF No. 35-9
at 216-19. In addition to the materials that informed the CO’s 2018 OCI investigation
and conclusions, her review of Mr. Wolfe’s OCI allegations in 2019 relied on the
following sources of information:
the “Amended, Restated and Supplemental Complaint” Harmonia filed in the
bid protest [(ECF No. 50)], the allegations [Mr. Wolfe] reported to FDA staff
[on January 28, 2019], . . . the [HHS-OIA investigation report], the
contracting officer’s discussions with agency investigators, and the
contracting officer’s conversation with Ms. [Tina] Nguyen.
ECF No. 35-9 at 198-99. Based on this information, the CO concluded that,
notwithstanding Mr. Wolfe’s accusations presented in January and February 2019, there
was no OCI, and Precise did not “improperly obtain” confidential procurement
information in the EON IMS procurement. Id. at 201.
6
Mr. Wolfe’s report that there was yet another personal connection between a
Precise employee and an FDA employee, in this instance because they are married, was
confirmed. ECF No. 35-9 at 217. The CO determined that the marital relationship
between the FDA employee and the Precise employee did not create a conflict of interest
in this procurement. Id. at 201.
9
The CO’s investigation was not arbitrary and capricious under the standard set
forth in PAI. 614 F.3d at 1351-54. It was not arbitrary or capricious for her to conclude,
upon her review of Mr. Wolfe’s accusations and relevant evidence, that no actual or
potential OCI had occurred. Although not every conclusion in her analysis is beyond
dispute, her investigation was reasonably focused on uncovering hard facts that might
show that an OCI favored Precise in this procurement. 7 The statements provided by Mr.
Wolfe throughout the HHS-OIA investigation, and all other relevant evidence, did not
contradict her conclusion that no OCI occurred. On this record, the CO “exercise[d]
proper discretion and . . . follow[ed] proper procedures in making the determination that
no organizational conflict of interest existed.” PAI, 614 F.3d at 1351.
The close personal relationships in the record of this case are somewhat analogous
to those discussed in CACI. In CACI, members of the procuring agency’s team who
managed the proposal evaluation process had close personal ties with a contractor’s
executive who directed the preparation of the winning bid, and who also negotiated with
the agency during discussions. 719 F.2d at 1570-71, 1577-78.
There was no evidence, however, that these evaluation team members showed any
bias in favor of the awardee, or that improper communications occurred to favor the
awardee in the competition. Id. at 1578-81. Even the fact that the awardee received a
greater increase in its technical score than the increase given to the protestor’s proposal,
once proposal revisions were submitted, did not show that favoritism played any role in
the agency’s award decision. Id. at 1580. The trial court’s injunction of the award, in the
view of the Federal Circuit, improperly relied on “suspicion and innuendo, not on hard
facts.” Id. at 1582.
Mr. Wolfe’s evanescent allegations of impropriety, and the record evidence here,
do not meet the CACI standard for hard facts. Unlike the situation in CACI, where the
agency employees who were alleged to have acted in favor of the awardee were those
entrusted with the evaluation of proposals, id. at 1575, here there is no substantive link
between the FDA evaluators and Precise employees. The CO’s 2019 OCI investigation
7
The CO believed that Mr. Wolfe was under no pressure to recant his allegations of
impropriety once he had been paid his severance by Precise. ECF No. 35-9 at 200. As
plaintiff observes, the terms of the severance agreement were not disclosed to the CO.
ECF No. 51 at 28-30. Notwithstanding any potential pressure on Mr. Wolfe to recant his
OCI allegations, the record contains no hard facts which contradict the CO’s OCI
findings. Cf. United States v. Purdue Pharma L.P., 600 F.3d 319, 326-33 (4th Cir. 2010)
(noting that the severance agreement at issue in that suit contained an enforceable
promise that remained valid after the employer paid the severance amount).
10
was not unreasonable in light of the allegations of Mr. Wolfe and the other evidence
before her. This protest ground, too, is unavailing.
2. Mr. Gene Donohue, an Author of Precise’s Bid for the EON IMS
Contract Who Made Negative Allegations Regarding Precise to
Harmonia while Seeking Employment with Harmonia
Mr. Gene Donohue was identified by Precise as one of the authors and reviewers
of that company’s proposal submitted in response to the RFQ. ECF No. 35-9 at 117. Mr.
Donohue presented his allegations of impropriety regarding Precise to Harmonia via a
telephone call; these allegations were later relayed to HHS via a letter from Harmonia’s
counsel to defendant’s counsel. Id. at 232-33. Once Harmonia’s recitation of Mr.
Donohue’s allegations was referred to HHS, these allegations were incorporated into both
the HHS-OIA investigation and the 2019 OCI investigation by the CO. Id. at 200, 218.
Harmonia’s letter was dated February 20, 2019, id. at 232-33, by which time the
investigation into Mr. Wolfe’s allegations of impropriety was already underway, id. at
216-17.
The following account of Mr. Donohue’s allegations is excerpted from
Harmonia’s letter:
Among other things, Mr. Donohue described his concerns regarding
what he perceived to be sudden changes between Red and Gold reviews of
Precise’s proposals, and noted his observation that the changes related to
proposal elements he deemed critical to subsequent awards. Mr. Donohue
informed Mr. [Jai Saboo, Harmonia’s COO,] of his belief that Precise has
provided inaccurate responses to questions posed in connection with the
ongoing investigation. Mr. Donohue claims that Precise removed his access
to information regarding the project at issue in this protest after he began to
ask questions about the investigation.
Lastly, Mr. Donohue apparently believes that Precise has some
advance information about an FDA project called “FURLS.” According to
Mr. Donohue, Precise management has informed Precise personnel that it
will be declared the winner of that effort. Indeed, Mr. Donohue believes that
Precise has already leased space for work in connection with that contract.
ECF No. 35-9 at 232.
The court observes that the second paragraph quoted here references a different
procurement, the FURLS procurement, not the EON IMS procurement. Even the first
paragraph speaks in general terms of “proposals,” plural, and an unidentified
“investigation.” Id. The court also notes that the FURLS procurement mentioned in this
letter was the subject of a separate HHS investigation, and that Mr. Wolfe had expressed
11
allegations of impropriety regarding the FURLS procurement when he made his calls to
multiple FDA employees on January 28, 2019. Id. at 216.
It is clear from the record that the HHS-OIA investigation and the CO’s 2019 OCI
investigation treated the letter from Harmonia, relaying Mr. Donohue’s allegations, as a
continued expression of the allegations received from Mr. Wolfe in January and February
2019. Id. at 200, 218. HHS-OIA followed up with Precise, in person and by telephone,
about these allegations. Id. at 218. Most of Mr. Donohue’s allegations were addressed
by Mr. Huang, except that there is no mention of Mr. Huang’s rebuttal of the allegation
of “sudden changes” to Precise’s Red and Gold proposal versions. Id. More generally,
Mr. Huang “denied any wrongdoing by Precise in the procurement process.” Id. Neither
HHS-OIA nor the CO interviewed Mr. Donohue.
Harmonia argues that it was irrational for the CO to fail to conduct an interview
with Mr. Donohue to follow up on the allegations in Harmonia’s letter. ECF No. 51 at
30-31. The government argues that Harmonia’s recitation of Mr. Donohue’s allegations,
which were largely duplicative of Mr. Wolfe’s allegations, was adequately explored
through the HHS-OIA investigation and the 2019 OCI investigation by the CO. ECF No.
53 at 34-35. The court finds that the CO acted within her discretion to review Mr.
Donohue’s allegations by means other than an interview with Mr. Donohue. See PAI,
614 F.3d at 1351 (stating that the issue is “whether the contracting officer failed to
exercise proper discretion and to follow proper procedures in making the determination
that no organizational conflict of interest existed”).
The agency noted, first, that Mr. Donohue contacted Mr. Saboo because he was
looking for work, and that “he was actively looking to leave Precise.” ECF No. 35-9 at
218. Also, Mr. Wolfe told agency investigators that he had spoken to Mr. Donohue about
the HHS-OIA investigation, and that “he did not believe that [Mr.] Donohue had
information regarding the allegations at Precise.” Id. HHS-OIA did not believe that the
allegations from Mr. Wolfe and Mr. Donohue required further investigation, based on
their inquiries with FDA staff, Mr. Saboo, and Mr. Huang. Id. at 219.
The CO relied on the HHS-OIA investigation report and her conversations with
the HHS-OIA investigators to reject Mr. Donohue’s allegations that were relayed in the
letter from Harmonia. She concluded that
there is no evidence to support Mr. Donohue’s allegations of Precise
conflicts, as conveyed by Harmonia. The agency investigators found that
Mr. Wolfe was the sole source of Mr. Donohue’s allegations of Precise
conflicts, and, as explained above, there is no evidence to support Mr.
Wolfe’s allegations of Precise conflicts. The investigators also found that at
the time Mr. Donohue made his allegations to Harmonia about Precise
conflicts, he was seeking employment with Harmonia and appeared to offer
allegations about Precise to achieve that goal.
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Id. at 200. The court notes that the CO did not specifically address each of the OCI
allegations in the letter recapitulating Mr. Donohue’s telephone call to Mr. Jaboo.
As plaintiff points out, the allegation of “sudden changes” to Precise’s Red and
Gold proposal versions, attributed to Mr. Donohue, raises a question of “unfairly
obtained information.” ECF No. 54 at 14. Yet, Mr. Wolfe’s allegations regarding the
close personal relationships between FDA employees and Precise employees raised the
same question. The CO had answered that question through her investigation into Mr.
Wolfe’s allegations. Thus, her conclusion that “there is no evidence to support Mr.
Wolfe’s allegations of Precise conflicts” also informs her conclusion that “there is no
evidence to support Mr. Donohue’s allegations of Precise conflicts, as conveyed by
Harmonia.” ECF No. 35-9 at 200.
Having reviewed all of the evidence before her, including the allegations of Mr.
Donohue relayed by Harmonia, the CO found that “Precise did not at any time
improperly obtain, or have advance access to source selection information, contractor bid
or proposal information, proprietary information, or any such information that was not
available to other offerers.” Id. at 201. Further, the CO concluded that “the facts of this
case provide no basis for concluding that the integrity of the EON IMS procurement has
been compromised.” Id. The court, on this record, does not find that the CO’s
investigation into Mr. Donohue’s allegations was irrational, or that she did not have the
discretion to review his allegations based on evidence other than an interview. The
record contains no hard facts which contradict the CO’s finding in her 2019 OCI
investigation that there was no OCI on the part of Precise that required her intervention.
D. Plaintiff’s Suggestion that Precise Improperly Obtained the Independent
Government Cost Estimate for the EON IMS Contract
For its final OCI allegation, plaintiff points to the labor hours for the contract’s
base year set forth in Precise’s proposal and suggests that Precise must have had
improper access to the agency’s Independent Government Cost Estimate (IGCE) to arrive
at this figure. ECF No. 51 at 31-34. The “razor-slim” difference between the IGCE and
Precise’s labor hours was, according to plaintiff, “improbably[ ]close,” id. at 32, and
should have been investigated as evidence of an OCI favoring Precise, id. at 32-34. The
government argues that there could be many reasons for the close margin between the
labor hours set forth in Precise’s proposal and the IGCE, and concludes that plaintiff’s
inference of an OCI in this regard is mere “speculation.” ECF No. 53 at 36.
The court has considered all of the arguments presented by the parties on this OCI
allegation. ECF No. 51 at 31-34 & nn.7-10; ECF No. 53 at 36-38 & nn.5-6; ECF No. 54
at 14-16; ECF No. 55 at 13-14 & n.6. The record contains no evidence that the IGCE
was leaked to Precise. Under CACI, plaintiff’s inference that Precise improperly
obtained the IGCE falls clearly on the “suspicion” end of the spectrum, not on the “hard
facts” end of the spectrum. 719 F.2d at 1582. Under the standard of review applicable
13
here, this OCI allegation related to the IGCE, and plaintiff’s OCI allegations in general,
fail to justify an injunction of the contract award to Precise.
E. Evaluation of Harmonia’s Proposal
In Count I of its second amended complaint, plaintiff argues that its proposal, if
appropriately evaluated, “would not have received a weakness under Evaluation Factor 1
and likely would have received a higher rating under that factor.” ECF No. 50 at 11. In
this regard, plaintiff asserts that the agency’s evaluation of Harmonia’s proposal was
arbitrary and capricious, and that Harmonia was prejudiced because under an appropriate
evaluation Harmonia would have had “a substantial chance of receiving the award.” Id.The court begins its analysis of this protest ground by providing a brief summary of the
relevant evaluation factors in the RFQ.
1. Evaluation Factors 1 and 2
This is a best value procurement, where a trade-off between price and non-price
factors determines the proposal providing the best value to the agency. ECF No. 35-7 at
27. A full explanation of the weighting scheme of the four evaluation factors is not
needed to consider plaintiff’s arguments in this protest. Among the three non-price
evaluation factors, Evaluation Factor 1, “Relevant Experience,” is more important than
Evaluation Factor 2, “[Operations and Maintenance] O&M Technical Approach.” Id. at
23, 27.
Harmonia and Precise received the same rating, “Satisfactory,” on Relevant
Experience. ECF No. 35-8 at 181. Precise received a higher rating, “Highly
Satisfactory,” on O&M Technical Approach, above Harmonia’s rating of “Satisfactory”
for this factor. Id. This single difference between the evaluation factor ratings for
Harmonia and Precise is the foundation for the agency’s determination that Precise was
“slightly more highly rated” than Harmonia and the other offerors on the non-price
evaluation factors. Id.
2. Plaintiff’s One Allegation of Evaluation Error
Harmonia alleges just one specific evaluation error in the evaluation of its
proposal. In plaintiff’s view, Harmonia’s proposal received an erroneous “weakness” in
Relevant Experience, which, if removed in an appropriate evaluation, might have tipped
the balance so that Harmonia, not Precise, would have been selected as the BPA awardee.
ECF No. 51 at 37-41; ECF No. 54 at 17-18. Defendant, on the other hand, argues that the
14
weakness assigned to Harmonia’s Relevant Experience was a rational evaluation rating. 8
ECF No. 53 at 40-42.
The weakness in question is cited in the Technical Evaluation Report, ECF No.
35-8 at 85-137, which was produced by the agency’s technical evaluation team. The
agency’s technical evaluation team is referred to in the AR as the Technical Evaluation
Team Program Advisory Group, or, more simply, the PAG. Id. at 89. According to the
narrative provided by the PAG, Harmonia did not demonstrate enough relevant
experience with three key technologies. Id. at 97-98. In each instance, the PAG noted
that it was not convinced that Harmonia had demonstrated “sufficient knowledge, use,
and experience with” each of these three technologies—even though the technology was
mentioned in Harmonia’s proposal. Id.
The court notes that in the evaluation guidance materials shared internally within
the FDA, proposal sections which “simply repeat or paraphrase” the solicitation’s
description of contract work do not indicate that the offeror “understands the contract
requirements.” ECF No. 35-7 at 239. Thus, simply making reference to the three key
technologies that were identified in the solicitation section describing the evaluation of
Relevant Experience might not meet the agency’s expectations. See id. at 29 (clearly
identifying the three key technologies that would have an impact on an offeror’s Relevant
Experience rating). Further, the evaluators were told that “questionable relevant
expertise” might warrant a “weakness.” Id. at 250. Thus, the PAG members were tasked
with weighing whether each offeror’s experience with the three key technologies was
adequate for the EON IMS contract.
Plaintiff argues that the projects cited by Harmonia under Relevant Experience
demonstrate adequate experience with the three technologies, and notes, paradoxically,
that Harmonia had been awarded a strength in Evaluation Factor 2 for its subject matter
expert, who was credited by the PAG for his extensive experience with one of the three
required technologies, denoted “JIRA.” 9 ECF No. 51 at 37; see also ECF No. 35-8 at 99
(PAG citing this expert’s “direct experience” with JIRA). In plaintiff’s view, the agency
was inconsistent and irrational when it assigned the key technologies weakness to
Harmonia’s Relevant Experience. ECF No. 54 at 18. The government persuasively
argues, however, that the agency could rationally read Harmonia’s proposal as containing
8
Finding no flaws in the weakness assigned to Harmonia’s proposal, the court need
not reach defendant’s argument that Harmonia’s score, without this weakness, could not
have improved to a point where its technical rating, overall, would have been higher than
Precise’s technical rating. ECF No. 53 at 42-43.
9
JIRA is described both as an “issue-tracking application” and the “platform” used
in the EON IMS. ECF No. 35-7 at 74.
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a weakness in Relevant Experience, notwithstanding the projects listed by Harmonia and
the JIRA experience of its subject matter expert. ECF No. 53 at 41-42; ECF No. 55 at 16.
The court defers to the agency’s judgment as to technical evaluations, where
reasonable. Galen, 369 F.3d at 1339. On this record, the FDA was not inconsistent or
irrational when it noted a weakness in Harmonia’s Relevant Experience. As defendant
argues, the agency could rationally find that “the projects submitted by Harmonia failed
to demonstrate Harmonia’s experience with the full range of technologies relevant to
EON IMS.” ECF No. 55 at 16. Similarly, the agency could rationally find that
Harmonia’s subject matter expert’s “experience with JIRA was a rationally sufficient
basis for the Agency to assign Harmonia a strength for that position on the key employee
evaluation criterion for the O&M technical approach factor.” Id. Although a different
rational evaluation of Harmonia’s Relevant Experience might not have found the
weakness noted by the PAG, the court does not find that the PAG’s rating of Harmonia’s
Relevant Experience was arbitrary or capricious. Thus, plaintiff’s protest ground alleging
an error in the technical evaluation of its proposal is unavailing.
F. Evaluation of Precise’s Proposal
Plaintiff’s final challenge in this protest is to the agency’s evaluation of Precise’s
proposal. According to Harmonia, the agency “ignored risks in Precise’s quotation,
including the fact that Precise significantly altered its labor mix in the option years.”
ECF No. 50 at 15. Plaintiff contends that there is a dramatic “staffing shift” in Precise’s
proposal, when the base year of the contract is compared to the final option year. ECF
No. 51 at 38-39 & nn.14-16. Plaintiff notes, in particular, that in Precise’s final option
year, an applications engineer would be performing almost half of the labor hours in the
contract, yet this category of employee is not even mentioned in Precise’s technical
proposal. Id. at 38-39 (citing ECF No. 35-7 at 450-90). Plaintiff contends that the
evaluation of Precise’s proposal was irrational because it failed to recognize the risks in
the evolution of Precise’s labor mix, which, in plaintiff’s view, contradict the Highly
Satisfactory rating Precise received for its O&M Technical Approach. Id. According to
plaintiff, this “irrational oversight,” along with plaintiff’s other allegations of error in this
procurement, invalidate the contract award to Precise. ECF No. 54 at 19-20.
Central to plaintiff’s allegation of error is the fact that the technical evaluation of
Precise’s proposal and the price evaluation of Precise’s proposal were conducted
separately, by teams that were composed of different individuals. Id. at 19. The
evolution of an offeror’s labor mix would be transparent to the price evaluators, as
detailed in the price volume, ECF No. 35-7 at 195-203, but would be less transparent to
the technical evaluators, because of the general nature of the narrative supplied by the
offeror in the “staffing plan” included in the technical volume, id. at 24. The parties
strongly dispute whether the agency’s evaluation of Precise’s proposal, as evidenced by
the price reasonableness determination, the technical evaluation, and the best value trade-
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off analysis, shows that the agency was aware of and appropriately considered any risks
associated with the “staffing shift” noted by plaintiff.
The court observes, first, that plaintiff does not allege that the agency’s CO, in the
context of her best value determination, relied on any fact that was clearly erroneous.
Plaintiff’s challenge to the agency’s evaluation of Precise’s proposal, therefore, is
distinguishable from those protests which are sustained because the award decision was
unreasonable because of factual errors. Cf. Celta Servs., Inc., B-411835, B-411835.2,
2015 CPD ¶ 362, 2015 WL 7731719, at *7 & nn.8-9 (Comp. Gen. Nov. 2, 2015) (finding
that the source selection authority relied on erroneous weaknesses that had been resolved
in discussions). Instead, plaintiff alleges that there was a risk in Precise’s staffing plan,
and that this risk was irrationally disregarded by the CO. ECF No. 51 at 39.
This court’s role is “to determine whether the agency’s . . . analysis was consistent
with the evaluation criteria set forth in the RF[Q].” Alabama Aircraft, 586 F.3d at1375-76 (citing Galen, 369 F.3d at 1330). The court has reviewed Precise’s price and the
agency’s price reasonableness analysis of Precise’s proposal, and finds that the agency’s
price evaluation was reasonable and consistent with the terms set forth in the RFQ.
Similarly, the court has reviewed Precise’s technical proposal and the PAG’s technical
evaluation of Precise’s proposal, and finds that the technical ratings received by Precise
were reasonable and consistent with the evaluation scheme set forth in the RFQ. Further,
the CO’s best value determination rationally determined that Precise offered the best
value proposal in this procurement.
As defendant argues, Precise’s staffing plan was not misleading and was
understood by the CO. ECF No. 53 at 43-47; ECF No. 55 at 18-21. While it is true that
Precise’s technical proposal might have described the evolution of its labor mix in more
detail, there was enough detail in Precise’s staffing plan to support the ratings received by
Precise from the PAG. See ECF No. 35-7 at 466-68. There is also evidence that the CO
had all the necessary information before her to verify and adopt the technical ratings
received by Precise from the PAG. ECF No. 35-8 at 177-78, 181-83.
On this record, the court does not find that the CO’s assessment of the risk in
Precise’s proposal was arbitrary or capricious. The court agrees, instead, with the
government’s rebuttal of Harmonia’s challenge to the agency’s evaluation of Precise’s
proposal:
Accordingly, Harmonia’s claim that the Agency was not aware of, or
did not understand, the details of the labor categories and the hours for each
category that Precise proposed for the base year and for each option year is
belied by: (a) the level of detail regarding the proposed labor mixes for the
base and option years that Precise described and set forth with specificity on
the face of its proposal; (b) the reflection of this information in the Agency’s
technical and price evaluations; and (c) the evident attention, as demonstrated
17
by the BPA Award Decision & Documentation, that the Agency paid to these
evaluations and to Precise’s option-year labor-mix information in performing
its best value analysis.
ECF No. 55 at 21. Because the CO’s assessment of risk in Precise’s proposal survives
arbitrary and capricious review, this final protest ground raised by Harmonia, too, is
unavailing.
G. Permanent Injunctive Relief Not Warranted
Plaintiff has not succeeded on the merits of its protest. “Because proving success
on the merits is a necessary element for a permanent injunction,” Dell Fed. Sys., L.P. v.
United States, 906 F.3d 982, 999 (Fed. Cir. 2018) (footnote omitted), no injunctive relief
is warranted in this case. This protest must be dismissed.
IV. Conclusion
Accordingly,
(1) Plaintiff’s motion for judgment on the AR, ECF No. 51, is DENIED;
(2) Defendant’s cross-motion for judgment on the AR, ECF No. 53, is
GRANTED;
(3) The clerk’s office is directed to ENTER final judgment for defendant
and intervenor-defendant, DISMISSING plaintiff’s second amended
complaint, with prejudice; and,
(4) On or before September 20, 2019, the parties shall CONFER and
FILE a notice of filing, attaching a proposed redacted version of this
opinion, with any competition-sensitive or otherwise protectable
information blacked out.
IT IS SO ORDERED.
s/Patricia E. Campbell-Smith
PATRICIA E. CAMPBELL-SMITH
Judge
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