Am General, LLC v. United States , 115 Fed. Cl. 653 ( 2014 )

In the United States Court of Federal Claims
No. 14-018C
(Filed Under Seal: April 7, 2014)
Redacted Version Issued for Publication: May 22, 2014
)
AM GENERAL, LLC, )
) Post-Award Bid Protest; Cross-
Plaintiff, ) Motions for Judgment on the
) Administrative Record; Best Value
v. ) Tradeoff Analysis; FAR 15.101-1;
) FAR 15.308
THE UNITED STATES, )
)
Defendant, )
and )
)
GENERAL DYNAMICS ORDNANCE )
AND TACTICAL SYSTEMS, )
)
Defendant-Intervenor. )
)
)
Thomas P. McLish, Washington, D.C., with whom were Robert K. Huffman, Scott M.
Heimberg, and Joseph W. Whitehead, for plaintiff.
Alexander V. Sverdlov, Trial Attorney, with whom were Stuart F. Delery, Assistant
Attorney General; Bryant G. Snee, Acting Director; Kirk T. Manhardt, Assistant
Director, Commercial Litigation Branch, Civil Division, United States Department of
Justice, Washington, D.C., for defendant.
David A. Churchill, Washington, D.C., with whom were Kevin C. Dwyer, Daniel E.
Chudd, Charles L. Capito, and Ethan E. Marsh, for defendant-intervenor.
OPINION1
1
This Opinion was originally filed under seal to protect potentially proprietary or
confidential information subject to the Protective Order, at which time the parties were
provided an opportunity to request redactions of any protected information. AM General,
LLC (AMG) requested redactions to which the government objected in part. ECF Nos.
1
CAMPBELL-SMITH, Chief Judge
This is a post-award bid protest concerning a contract for the supply of military
vehicles to the United States Special Operations Command (the agency or defendant).
AM General, LLC (AMG or plaintiff) was one of two unsuccessful offerors, while
General Dynamics Ordnance and Tactical Systems (GDOTS or defendant-intervenor)
was the successful offeror.
AMG asserts that the agency’s award to GDOTS was arbitrary, capricious, and in
violation of federal procurement laws and regulations. See Compl. ¶ 1, ECF No. 1.
53, 55-57. General Dynamics Ordnance and Tactical Systems (GDOTS) requested
redactions to which no party objected. ECF No. 54. The court accepts the redactions
proposed by GDOTS regarding the percentage of work to be performed by its
subcontractors, its C4ISR installation hours, and the gross vehicle weight of its vehicle.
The court accepts the unopposed redactions proposed by AMG regarding pricing and
C4ISR installation hours. The court denies the opposed redactions proposed by AMG
regarding its past performance rating, adjectival ratings and number of strengths and
weaknesses.
Protected information is defined as “information that must be protected to
safeguard the competitive process, including source selection information, proprietary
information, and confidential information.” Protective Order ¶ 1, ECF No. 16. Beyond
this, the court must consider any proposed redaction against the background of a
“presumption of public access to judicial records.” Baystate Techs., Inc. v. Bowers, 283
Fed. Appx. 808, 810 (Fed. Cir. 2008) (per curiam) (citing Siedle v. Putnam Invs., Inc.,
147 F.3d 7, 9 (1st Cir. 1998); Poliquin v. Gard Way, Inc., 989 F.2d 527, 533 (1st Cir.
1993)); see also Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 599 (1978) (assuming
that the “common-law right of [public] access” to judicial records applied to the tape
recordings in that case). The court is unpersuaded that the agency’s evaluation of AMG,
as represented in AMG’s past performance rating, adjectival ratings, and number of
strengths and weaknesses, rises to the level of protected information. See, e.g., Allied
Tech. Grp., Inc. v. United States, 94 Fed. Cl. 16, 23 n.1 (2010) (declining to redact
extensive proposal and agency evaluation information), aff’d, 649 F.3d 1320 (Fed. Cir.
2011); Akal Sec., Inc. v. United States, 87 Fed. Cl. 311, 314 n.1 (2009) (declining to
redact adjectival ratings as over-broad).
Redacted text is indicated as follows, XXX, with the redaction equal in length to
the text redacted. When standing alone, redacted numbers are indicated as follows,
[XXX], regardless of the number of digits in the number redacted.
2
AMG asks this court to issue an injunction directing the agency to terminate the award to
GDOTS; reevaluate the offerors’ proposals in accordance with the terms of the RFP2,
applicable laws, and regulations; and conduct a new best value determination. See
Compl. 42.
The parties filed cross-motions for judgment upon the administrative record, and
the court heard oral argument on the parties’ motions on March 19, 2014. For the reasons
explained below, plaintiff’s motion for judgment on the administrative record (Pl.’s Mot.)
(ECF No. 36) is DENIED, Defendant’s Motion for Judgment Upon the Administrative
Record (Def.’s Mot.) (ECF No. 38) is GRANTED and Defendant-Intervenor’s Motion
for Judgment on the Administrative Record (Def.-Int.’s Mot.) (ECF No. 37) is
GRANTED.
I. BACKGROUND
A. The Vehicle and the Contract
The contract is for the design, production and delivery of a Ground Mobility
Vehicle (GMV 1.1 or the vehicle) that will be internally transportable in a military cargo
helicopter and used in a wide range of special operations missions, including special
reconnaissance, unconventional warfare, counterterrorism, security force assistance, and
counterinsurgency operations. See AR3 Tab 29.3, at 4165. The vehicle will be designed
to operate on a mixture of off-road terrain and to accept various armor and equipment
configurations, depending on the mission. See AR Tab 29.3, at 4241-42, 4245-46.
The contract is a seven-year Indefinite Delivery Indefinite Quantity (IDIQ)
contract, issuing Cost Plus Fixed Fee (CPFF), Cost and Firm Fixed Price (FFP) (or any
combination thereof) Delivery Orders. See AR Tab 74.5, at 53146.
The solicitation was for a negotiated procurement. See AR Tab 29.3, at 53088 ¶ 4.
The agency informed offerors that in making an award, the agency would “conduct a
tradeoff process [in accordance with] FAR4 15.101-1 and Defense Federal Acquisition
2
The terms RFP (Request for Proposal) and solicitation are used interchangeably
throughout the administrative record.
3
Administrative Record (AR), ECF No. 32.
4
Federal Acquisition Regulation (FAR) Part 15 governs “Contracting by
Negotiation” and is codified at 48 C.F.R. § 15.000 et seq. 15.000 (2013). Section 15.101-
1 addresses the “tradeoff process” that is ““appropriate when it may be in the best interest
3
Regulation Supplement (DFARS) Part 215 and SOFARS Part 5615.” AR Tab 74.5, at
53220 § M.1.1. Offerors were cautioned that an award would not necessarily be made to
the lowest priced Offeror. Id.
B. The Solicitation Timeline
The agency issued the solicitation in April 2012, see AR Tab 28.1, at 3948, and
subsequently issued six amendments through January 22, 2013, see AR Tabs 31-36.5
Seven offerors filed initial proposals, of which only three were determined to be within
the competitive range: GDOTS, AMG, and Navistar Defense LLC (Navistar). See Def.’s
Mot. 7.
In January 2013, the agency sent evaluation notices to GDOTS (AR Tab 70),
AMG (AR Tab 67) and Navistar (AR Tab 73), and then held face-to-face discussions
with each offeror in late January 2013, see, e.g., AR Tab 66, at 52611 (AMG
discussions).
Offerors submitted their second proposal, termed a Final Proposal Revision (FPR),
in February 2013, see AR Tabs 40-42, following which the agency again sent each
offeror an Evaluation Notice describing the agency’s evaluation of the proposal, and re-
opening discussions, see AR Tabs 77-79. The agency held the second and final round of
face-to-face discussions with offerors in May 2013. See, e.g., AR Tab 83.1, at 53633
(AMG discussions).
Offerors provided their third proposal, termed an Evaluation Notice/Draft FPR 2
(EN/Draft FPR 2), in late May 2013, see AR Tabs 43 (AMG), 44 (GDOTS), 45
(Navistar), after which the agency issued its Final Evaluation Notices in late June 2013,
see AR Tabs 87 (AMG), 88 (GDOTS), 89 (Navistar).
Offerors provided their fourth and final proposal, Final Proposal Revision 2 (FPR
2), on June 28, 2013. See AR Tabs 46 (AMG), 47 (GDOTS), 48 (Navistar).
C. Agency Evaluation Process
According to the Source Selection Plan (SSP), the
of the Government to consider award to other than the lowest priced offeror or other than
the highest technically rated offeror.” FAR 15.101-1.
5
Defendant represents that the “final, conformed, version of the solicitation” is AR
Tab 74.5, 53088-53237.” Def.’s Mot. 3 n.2. The court cites to this version of the
solicitation in this opinion.
4
source selection organization will be comprised of a Source Selection
Evaluation Board (SSEB), a Source Selection Advisory Council (SSAC),
and a Source Selection Authority (SSA). The Program Executive Officer is
the SSA. The SSEB will be organized into three functional teams. . . .
[which] are: (1) [the] Capability Team; (2) [the] Cost/Price Team; (3) [the]
Past Performance Team.
AR Tab 4, at 148.
Members of the SSEB were responsible for conducting a comprehensive review
and evaluation of proposals against the solicitation requirements and the approved
evaluation criteria, and ensuring that the “evaluation is based solely on the evaluation
criteria outlined in the request for proposal (RFP) and not as a side-by-side comparison of
any proposal against another.” AR Tab 4, at 148. The SSEB evaluated each offeror’s
final proposal and issued the Final Proposal [] Source Selection Evaluation Board
Evaluation Report (SSEB Evaluation Report) on July 16, 2013. See AR Tab 59.
Members of the SSAC were responsible for reviewing the evaluation results of the
SSEB to ensure the evaluation process followed the evaluation criteria and the ratings
were appropriately and consistently applied, and providing for a written comparative
analysis of proposals to the SSA. See AR Tab 4, at 150.
The SSAC issued its Source Selection Advisory Council Comparative Analysis
and Recommendation for Award (SSAC Comparative Analysis) on July 30, 2013. See
AR Tab 55A. The SSAC recommended the SSA award the contract to GDOTS. See AR
Tab 55A, at 51249. On that same day, the SSEB chairman provided an in-person briefing
to the SSA, accompanied by slides. See AR Tab 61.
On August 19, 2013, the SSA issued his Source Selection Decision Document
(SSDD), in which he selected GDOTS as the successful offeror. See AR Tab 54. The
agency notified AMG of the SSA’s decision shortly thereafter. See AR Tab 112.1, at
54104.
Both AMG and Navistar filed protests with the Government Accountability Office
(GAO), which denied both protests on December 19, 2013. See AR Tab 118 (GAO
decision on both protests).
5
D. Solicitation Evaluation Criteria
The Solicitation informed offerors that the agency would evaluate proposals in
three areas,6 Capability, Past Performance, and Cost/Price, and further directed that the
“Capability Area is significantly more important than the Past Performance Area, which
is more important than the Cost/Price Area. All evaluation Areas other than Cost/Price,
when combined, are significantly more important than Cost/Price.” AR Tab 74.5, at
53222 § M.2.2.
Area I, Capability, included three Factors—Factor 1 (Production), Factor 2
(Technical) and Factor 3 (Management)—with Factors 1 and 2 (Production and
Technical) being of equal importance, and both significantly more important than Factor
3 (Management). See AR Tab 74.5, at 53222 § M.2.2.1.
Factor 1 (Production), included three subfactors, Subfactor 1 (Production
Approach), Subfactor 2 (Manufacturing Facilities/Key Tooling and Equipment), and
Subfactor 3 (Quality System and Plan); these were listed in descending order of
importance. See AR Tab 74.5, at 53222 §§ M.2.1, M.2.2.2.
Factor 2 (Technical) had two subfactors—Subfactor 1 (Vehicle Performance) and
Subfactor 2 (Systems Integration/Engineering)—of equal importance. See AR Tab 74.5,
at 53222 §§ M.2.1, M.2.2.3.
Factor 3 (Management) had three subfactors, Subfactor 1 (Workforce /Manpower
Planning) and Subfactor 2 (Integrated Logistics Support), were of equal importance, and
both were more important than Subfactor 3 (Small Business Subcontracting Plan). See
AR Tab 74.5, at 53222 §§ M.2.1, M.2.2.4.
The agency assigned a “combined proposal rating and proposal risk” for the entire
Capability Area (all factors and their subfactors). See AR Tab 74.5, at 53222 § M.2.6.
“The proposal rating is an assessment of the offeror’s approach in meeting the solicitation
requirements.” Id. “The proposal risk addresses the potential impacts of the proposed
approach on performance and schedule in achieving solicitation requirements.” Id.
Evaluators identified “strengths, deficiencies, significant weaknesses and
weaknesses of [each offeror’s] proposal, assigned a rating for each subfactor, rolled up
6
Capability, Past Performance and Cost/Price are sometimes referred to in the
administrative record as “major factors,” see, e.g., AR Tab 54, at 51216 ¶ 2, sometimes as
“areas,” id. at 51220 ¶ 3(d), and sometimes as categories, see, e.g., Def.’s Mot. 43. There
is no distinction among the terms.
6
subfactor ratings into factor ratings, and then rolled up factor ratings into the overall
Capability rating. See AR Tab 74.5, at 53224 § M.3.2.
Five ratings were possible for each Capability factor and subfactor, each of which
had an associated color adjectival rating.
Table 1. Combined Technical/Risk Ratings.
Color Rating Description
Blue Outstanding Proposal meets requirements and indicates an exceptional
approach and understanding of the requirements. Strengths
far outweigh any weaknesses. Risk of unsuccessful
performance is very low.
Purple Good Proposal meets requirements and indicates a thorough
approach and understanding of the requirements. Proposal
contains strengths which outweigh any weaknesses. Risk of
unsuccessful performance is low.
Green Acceptable Proposal meets requirements and indicates an adequate
approach and understanding of the requirements. Strengths
and weaknesses are offsetting or shall have little or no impact
on contract performance. Risk of unsuccessful performance
is no worse than moderate.
Yellow Marginal Proposal does not clearly meet requirements and has not
demonstrated an adequate understanding of the requirements.
The proposal has one or more weaknesses which are not
offset by strengths. Risk of unsuccessful performance is
high.
Red Unacceptable Proposal does not meet requirements and contains one of
more deficiencies. Proposal is unawardable.
AR Tab 74.5, at 53222-23 tbl. 1.
The solicitation provided further guidance as to the two types of risk it would
evaluate, proposal risk and performance risk. See AR Tab 74.5, at 53221.
Proposal Risks are those risks associated with an Offeror’s proposed
approach in meeting Government requirements. Proposal Risk is assessed
by the Government and is integrated into the assessment of the Capability
and Cost/Price Areas.
Performance Risks are those risks associated with the probability that an
Offeror will successfully perform the solicitation requirements as indicated
7
by that Offeror’s record of past and current performance. The Government
will assess performance risk in the Past Performance Area.
AR Tab 74.5, at 53223 § M.2.6.2.
In Area II, Past Performance, the agency assessed the “offeror’s demonstrated past
performance of contracts of a similar complexity, dollar value, and work requirement . . .
to determine the demonstrated potential for successful performance of this requirement.”
AR Tab 74.5, at 53222 § M.2.3. The agency assigned the offeror one of five different
confidence ratings, as below.
SECTION M – Table 4. Performance Confidence Assessments
Rating Description
Substantial Confidence Based on the offeror’s recent/relevant performance record,
the government has a high expectation that the Offeror will
successfully perform the required effort
Satisfactory Confidence Based on the offeror’s recent/relevant performance record,
the government has a reasonable expectation that the Offeror
will successfully perform the required effort.
Limited Confidence Based on the offeror’s recent/relevant performance record,
the government has a low expectation that the Offeror will
successfully perform the required effort.
No Confidence Based on the offeror’s recent/relevant performance record,
the government has no expectation that the Offeror will be
able to successfully perform the required effort.
Unknown Confidence No recent/relevant performance record is available or the
offeror’s performance record is so sparse that no meaningful
confidence assessment rating can be reasonably assigned.
AR Tab 74.5, at 53235 tbl. 4 (emphasis added).
In Area III, Cost/Price, the agency assessed the total evaluated price of the
offeror’s proposal. See AR Tab 74.5, at 53222 § M.2.4.
E. Plaintiff’s Complaint
AMG filed its complaint in this court on January 6, 2014, ECF No. 1, and GDOTS
was granted the right to intervene on January 7, 2014, ECF No. 11. Defendant filed the
administrative record (AR) on January 17, 2014. ECF No. 32.
8
AMG asserts that the agency’s best value analysis was arbitrary and capricious,
see Compl. ¶¶ 53-67 (Count I), that the agency’s consideration of GDOTS’s
subcontractors’ past performance was arbitrary and capricious, id. ¶¶ 68-72 (Count II),
the agency unequally, arbitrarily and prejudicially evaluated AMG and GDOTS with
regard to Area I Capability, id. ¶¶ 73-87 (Count III), the agency’s evaluation of AMG’s
proposal in Area I Capability was arbitrary and capricious, id. ¶¶ 88-152 (Count IV), and
the agency’s evaluation of AMG in Area II Past Performance was arbitrary and
capricious, id. ¶¶ 153-66 (Count V).
II. STANDARD OF REVIEW
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 to render judgment on an action by an interested party objecting to a
solicitation by a Federal agency for bids or proposals for a proposed contract or to . . .
the award of a contract or any alleged violation of statute or regulation in connection with
a procurement or a proposed procurement . . . without regard to whether suit is instituted
before or after the contract is awarded.” 28 U.S.C. § 1491(b)(1) (2012).
The term “interested party” limits standing to an actual or prospective bidder or
offeror whose direct economic interest would be affected by the award of the contract.
Rex Serv. Corp. v. United States, 448 F.3d 1305, 1307 (Fed. Cir. 2006). [T]o prove the
existence of a direct economic interest, a party must show that it had a ‘substantial
chance’ of winning the contract. Orion Tech., Inc. v. United States, 704 F.3d 1344, 1348
(Fed. Cir. 2013) (citing Rex Serv., 448 F.3d at 1308). Courts interpreting the substantial
chance standard for standing have held that it requires a showing of ‘“likelihood of
prevailing on the prospective bid taking the protestor's allegations as true.”’ Lyon
Shipyard, Inc. v. United States, 113 Fed. Cl. 347, 355 n.5 (2013) (quoting McKing
Consulting Corp. v. United States, 78 Fed. Cl. 715, 721 (2007)). Here, AMG was an
actual bidder, and the court concludes that AMG’s allegations, taken as true, permit it to
meet the threshold showing of substantial chance necessary for standing; defendant does
not contend otherwise.
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, which means that the court will set aside an agency decision 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).
The Federal Circuit has said that “[u]nder the APA standard . . . ‘a bid award may
be set aside if either (1) the procurement official's decision lacked a rational basis; or (2)
9
the procurement procedure involved a violation of regulation or procedure.”’ Banknote
Corp. of Am., Inc. v. United States, 365 F.3d 1345, 1351 (Fed. Cir. 2004) (quoting
Impresa Construzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324, 1332
(Fed. Cir. 2001)). Plaintiff must make its showing by a preponderance of the evidence.
See, e.g., AmerisourceBergen Drug Corp. v. United States, 60 Fed. Cl. 30, 35 (2004).
“A bid protest proceeds in two steps.” Bannum, Inc. v. United States, 404 F.3d
1346, 1351 (Fed. Cir. 2005). First, the court determines whether the agency acted in an
arbitrary and capricious manner, without a rational basis or contrary to law. Id. The
second step is to determine whether the agency’s action in error was prejudicial. Id. The
Appeals Court has directed that prejudice requires the protestor to show that there was a
“substantial chance” it would have received the contract award, but for the agency’s
errors. Id. at 1353.
The court will set aside an agency’s decision as arbitrary and capricious if “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. v. United States, 586 F.3d 1372,
1375 (Fed. Cir. 2009) (alteration in original) (quoting Motor Vehicle Mfrs. Ass’n v. State
Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)).
“[T]he disappointed party bears a heavy burden of showing that the award
decision had no rational basis.” Impresa Construzioni, 238 F.3d at 1333 (internal
quotation marks omitted). Contracting officials have wide discretion in their role in the
procurement process. Id. at 1332. To surpass the threshold of arbitrary and capricious,
an agency need only have “considered the relevant factors and articulated a rational
connection between the facts found and the choice made.” Baltimore Gas & Elec. Co. v.
Natural Res. Def. Council, Inc., 462 U.S. 87, 105 (1983).
In turn, the court considers plaintiff’s challenge to the agency’s evaluation of
GDOTS’s Past Performance, plaintiff’s challenges to the agency’s evaluation of AMG’s
Capability, and AMG’s Past Performance, and finally, plaintiff’s challenges to the
agency’s Best Value Tradeoff Analysis.
III. THE AGENCY’S EVALUATION OF GDOTS’S PAST PERFORMANCE
WAS IMPROPER
Chief among plaintiff’s complaints in this bid protest was the agency’s evaluation
of GDOTS’s past performance. For this reason, the court first examines the agency’s
conduct of its past performance evaluation.
10
The solicitation directed offerors to provide specific information to permit the
agency to evaluate the past performance of both the offeror and its “major”
subcontractors. AR Tab 74.5, at 53212-16 § L.3.3. The agency defined “major”
subcontractors as those who were “projected to perform 25% or more of the total contract
effort.” Id. at 53212-13 § L.3.3.2. Among the information to be furnished was a list of
the contracts either the offeror or a subcontractor had performed. See id.
The agency considered the past performance of GDOTS and its seven7
subcontractors in its evaluation of GDOTS’s proposal. See AR Tab 59, at 52267-90.
The agency also considered contracts regardless of whether it had rated them relevant or
not. See id. at 52268-69 tbl. 6.
The administrative record was unclear as to which of GDOTS’s subcontractors
were major subcontractors. The SSEB identified two such subcontractors, Flyer Defense,
LLC (Flyer) and General Dynamics Command, Control, Communications and Computers
Systems (GDC4S), see id. at 52273, 52277, while the SSAC indicated that GDOTS had
one major subcontractor, see AR Tab 55A, at 51237. Accordingly, the court directed
defendant to explain, with citation to the administrative record, which of the seven
subcontractors were GDOTS’s major subcontractor(s) and to explain the basis on which
the agency evaluated the past performance of any non-major subcontractor. See Order 3,
Feb. 18, 2014, ECF No. 41 (Feb. 18, 2014 Order).
Defendant was also directed to indicate, with accompanying citations to the
administrative record, whether the agency considered contracts regardless of relevance.
See id. at 3-4.
Defendant responded with an objection and an explanation. See Def.’s Resp. Ct.
Questions, Feb. 24, 2014, ECF No. 42. In its reply brief, defendant reiterated its
objection to the court’s order and provided further support for its position. See Def.’s
Reply 26-30, ECF No. 47.
The court considers whether it may review the agency’s compliance with the
solicitation criteria, the agency’s interpretation of the solicitation, the agency’s evaluation
of GDOTS’s non-major subcontractors, and the agency’s evaluation of not relevant
contracts.
7
General Dynamics Land Systems (GDLS), General Dynamics Command, Control,
Communications and Computers Systems (GDC4S), General Dynamics Land Systems-
Force Protection (GDLS-FP/FPI), Flyer Defense, LLC (Flyer), JWF Defense Systems
(JWF), Ceradyne and SkyBridge Tactical (SkyBridge).
11
A. The Court Has the Authority to Review an Agency’s Compliance with
Solicitation Criteria, and Such Review Is Appropriate in This Case
Defendant objects to the court’s inquiry into whether the agency evaluated the past
performance of GDOTS’s subcontractors in accordance with the solicitation criteria,
asserting that AMG itself failed to challenge this aspect of the proposal evaluation
process in its opening brief. See id. at 26. Defendant argues that AMG waived any such
challenge by failing to raise it earlier. See id. at 26-28.
Defendant characterizes the court’s look at whether the agency complied with the
solicitation criteria as a “new challenge.” Id. at 26. The court disagrees. Its examination
of the administrative record to determine whether the agency complied with the
solicitation criteria is consistent with its duty to conduct an Administrative Procedure Act
(APA) review of the challenges plaintiff identified in its complaint and its motion for
judgment on the administrative record.
The court considers, in turn, defendant’s waiver argument, and what the APA
requires of the reviewing court.
1. Defendant’s Waiver Argument Is Unpersuasive
In support of its claim that plaintiff waived an aspect of its past performance
challenge, defendant relies on the Novosteel decision, in which the Federal Circuit
decided that an issue raised in the reply brief by the party moving for summary judgment
had not been preserved for appeal. See id. at 27 (citing Novosteel SA v. United States,
284 F.3d 1261, 1273-74 (Fed. Cir. 2002)). In its decision, the Federal Circuit discussed
litigation fairness and said that “the non-moving party ordinarily has no right to respond
to the reply brief, at least not until oral argument. As a matter of litigation fairness and
procedure, then, [a later raised argument] must [be] treat[ed] . . . as waived.” Novosteel,
284 F.3d at 1274. The Federal Circuit reasoned:
given that Novosteel did not present its retroactivity argument to the [trial
court] until after it had filed its principal summary judgment brief, and
given that parties must give a trial court a fair opportunity to rule on an
issue other than by raising that issue for the first time in a reply brief, we
conclude that Novosteel has indeed waived this argument for purposes of
our review.
Id.The Federal Circuit deems the waiver rule to be a prudential doctrine that allows
12
an exercise of discretion when deciding whether to consider an issue on appeal not
previously decided by trial court. See Aspex Eyewear, Inc. v. E’lite Optik, Inc., 127 Fed.
Appx. 493, 497 (Fed. Cir. 2005) (“This ‘waiver rule’ is, however, not jurisdictional but
instead prudential. As such, [the appellate court] retain[s] broad discretion to consider
issues not timely raised before the district court.”); see also HTC Corp. v. IPCom GmbH
& Co., 667 F.3d 1270, 1282 (Fed. Cir. 2012) (“An appellate court, however, has
discretion to consider an issue for the first time on a case-by-case basis.”) (citing
Singleton v. Wulff, 428 U.S. 106, 120 (1976)).
Defendant cites this court’s Carahsoft Technology decision for the proposition that
the waiver rule applies at the trial court as well. See Def.’ Reply 27 (citing Carahsoft
Tech. Corp. v. United States, 86 Fed. Cl. 325, 338 n.11 (2009)). The plaintiff raised a
number of arguments at various points during its bid protest action that it had not
addressed in its complaint. See Carahsoft Tech., 86 Fed. Cl. at 338. The court declined
to hear those arguments raised in plaintiff’s response to which defendant had no
opportunity to respond in writing, as well as those raised during oral argument, for which
defendant was “wholly unprepared to respond.” Id. The court did entertain, however
two “new” arguments that were contemplated within allegations in the complaint, and
were raised “early enough in the course of th[e] litigation that defendant had an
opportunity to respond.” Id. at 338 n.11.
Courts have invoked the waiver rule and elected to exclude an argument if its
consideration would compromise the fairness of the litigation, such as when notice and a
comment opportunity are lacking. Both notice and a comment opportunity were provided
in this case. The issues of concern were presented to defendant by the court with its
February 18, 2014 Order, well in advance of defendant’s deadline of March 14, 2014 for
filing a reply brief, and the March 19, 2014 oral argument. In turn, defendant filed two
written responses, and was heard at oral argument. See Def.’s Resp. Ct. Questions;
Def.’s Reply 26-30; Hr’g Tr. 41-43.
Absent evidence of unfairness, the court finds that the waiver rule does not prevent
it from considering whether the agency complied with the solicitation criteria in its
evaluation of GDOTS’s past performance.
2. The APA and Federal Procurement Law Require the Court to
Engage in a Searching and Careful Review
A court conducting a review under 5 U.S.C. § 706 is required to engage in a
“searching and careful” inquiry into the facts, without substituting its judgment for that of
the agency. Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971)
(emphasis added), overruled on other grounds by Califano v. Sanders, 430 U.S. 99(1977). The Federal Circuit has endorsed this “searching and careful” standard of
13
review. See, e.g., Miami Free Zone Corp. v. Foreign-Trade Zones Bd., 136 F.3d 1310,
1316 (Fed. Cir. 1998) (“In conducting our review under 5 U.S.C. § 706, ‘“[a]lthough this
inquiry into the facts is to be searching and careful, the ultimate standard of review is a
narrow one.”’) (quoting Overton Park, 401 U.S. at 416).
While an agency is allowed a presumption of regularity, “that presumption is not
to shield [the agency’s] action from a thorough, probing, in-depth review.” Overton
Park, 401 U.S. at 415 (emphasis added); see also Emery Worldwide Airlines, Inc. v.
United States, 264 F.3d 1071, 1085 (Fed. Cir. 2001) (same). The case law teaches that
the reviewing court must consider whether the agency’s evaluation comported with the
solicitation criteria and federal procurement law.
The FAR tasks the SSA with the responsibility for “[e]nsur[ing] that proposals are
evaluated based solely on the factors and subfactors contained in the solicitation (10
U.S.C. 2305(b)(1) and 41 U.S.C. 253b(d)(3)).” FAR 15.303 (b)(4).
In Pitney Bowes, the plaintiff complained about the manner in which the agency
conducted its past performance evaluation and specifically, the manner in which it
considered information provided by customers in certain reference questionnaires. Pitney
Bowes Gov’t Solutions, Inc. v. United States, 94 Fed. Cl. 1, 14 (2010). Before
considering the merits of the claim, the court observed that “the use of past performance
reports must comply with the ‘fundamental principle of federal procurement law that a
contracting agency must treat all offerors equally and evaluate their proposals
evenhandedly against the solicitation's requirements and evaluation criteria.’” Id. at 15
(quoting Brican Inc., B-402602, 2010 CPD ¶ 141, 2010 WL 2474031, at *4 (Comp. Gen.
June 17, 2010)).
Similarly, in Vanguard, the court considered plaintiff’s argument that it had
suffered disparate treatment from other offerors during the agency’s evaluation of its past
performance. Vanguard Recovery Assistance v. United States, 101 Fed. Cl. 765, 767-68
(2011). Plaintiff’s claim was premised on the agency’s award of strengths to offerors
whose performance was similar to plaintiff’s, but whose ratings exceeded plaintiff’s. Id.
at 788. The court considered plaintiff’s complaint noting that “‘uneven treatment goes
against the standard of equality and fair-play that is a necessary underpinning of the
federal government's procurement process and amounts to an abuse of the agency's
discretion.’” Id. (quoting PGBA, LLC v. United States, 60 Fed. Cl. 196, 207 (2004),
aff'd, 389 F.3d 1219 (Fed. Cir. 2004)); see also TLT Constr. Corp. v. United States, 50
Fed. Cl. 212, 216 (2001) (“A fundamental principle of government procurement is that
[contracting officers] treat all offerors equally and consistently apply the evaluation
factors listed in the solicitation.” (citing 10 U.S.C. § 2305 (1999))).
14
3. The Agency Did Not Evaluate GDOTS’s Subcontractors According
to the Solicitation Criteria
The SSA represented that his “evaluation was conducted [in accordance with] the
Source Selection Plan (SSP) and the criteria established in the RFP.” AR Tab 54, at
51217 ¶ 2. In its motion for judgment on the administrative record, however AMG
alleged unequal treatment with regard to how the agency considered past performance,
stating that “both the SSAC and SSA went out of their way to downplay the significance
of GDOTS’s poor past performance record.” Pl.’s Mot. 29.
Defendant and GDOTS filed cross-motions for judgment on the administrative
record. Both argued that the agency’s decision was made in accordance with the
evaluation criteria in the solicitation. Defendant asserted that the “administrative record
fully supports the agency’s decision.” Def.’s Mot. 1. GDOTS asserted that the agency’s
decision complied with the source selection criteria because “[t]he Source Selection
Decision Document properly reflects a comparative assessment of proposals against the
evaluation criteria,” Def.-Int.’s Mot. 10 (capitalization altered), and the “[SSA] and the
[SSAC] properly assessed the positive past performance of GD-OTS’ subcontractors,” Id.
at 22 (capitalization altered).
Each of the parties in this action has directed the court’s attention to the specific
pages of the SSEB Evaluation Report and the SSAC Comparative Analysis in which the
agency provided a table summarizing the contracts it evaluated for GDOTS and its
subcontractors. See Pl.’s Mot. 31, 33 (citing SSEB Evaluation Report, AR Tab 59, at
52268-69); Pl.’s Mot. 33, 35 (citing SSAC Comparative Analysis, AR Tab 55A, at
51238-39); Def.’s Mot. 40 (same); Def.-Int.’s Mot.19 n.5, 27 (same).
It is facially apparent from a review of this table that the agency did not evaluate
GDOTS’s subcontractors in accordance with the criteria set forth in section8 L.3.3.2.
Because GDOTS was expected to perform [XXX]% of the contract effort itself, see AR
Tab 55A, at 51237, no more than [XXX]% of the work could be performed by
subcontractors. Thus at most, GDOTS could have only two major subcontractors.
Arithmetically, it is not possible that the seven listed subcontractors could each perform
at least 25% of the contract effort, and thereby be deemed a major subcontractor under
section L.3.3.2. This finding merits further examination.
8
The solicitation refers sometimes to sections and sometimes to paragraphs within
Sections L and M. There is no distinction. The opinion will refer to section, simply for
consistency.
15
4. Conclusion
It is difficult to reconcile the government’s position on waiver with the
requirement that the reviewing court conduct an inquiry into the facts that is “searching
and careful.” After close consideration of the government’s objection, the court is
satisfied not only that it may inquire properly into whether the agency complied with the
solicitation criteria in its evaluation of GDOTS’s past performance, but that it must do so
here based on the agency’s documented conduct.
B. The Agency Misinterpreted the Solicitation Requirements
Section L.3.3.2 of the Solicitation provides:
The Offeror shall submit a maximum of five (5) and a minimum of three
(3) Performance Information Sheets identifying active or completed
contracts, either Government or commercial, for each prime, and a
maximum of five (5) and a minimum of one (1) Past Performance
Information Sheet for each major subcontractor, teaming partner, and/or
joint venture (“major” is defined as those subcontractors, teaming partners,
or joint ventures who are projected to perform 25% or more of the total
contract effort.)
AR Tab 74.5, at 53212-13 § 3.3.2.
1. Defendant’s Position on Ambiguity
Defendant interprets section L.3.3.2 to permit an offeror to submit any number of
contracts for the agency’s evaluation of proposed non-major subcontractors. See Def.’s
Reply 28-30. But defendant acknowledges that the solicitation limited the number of
contracts the offeror could submit for its own evaluation or that of a major subcontractor.
See id. at 28. According to defendant,
[o]n its face, the solicitation contains absolutely no limits on the type of
information that could be submitted for non-major subcontractors. It merely
states that [] offerors ‘shall submit a maximum of five (5) and a minimum
of three (3) Performance Information Sheets . . . for each prime, and a
maximum of five (5) and minimum of one (1) Past Performance
Information Sheet for each major subcontractor, teaming partner, and/or
joint venture.” Tab 74.5 AR 53212-13. This text demonstrates that when
the agency wanted to set limits on the amount of information the offerors
wanted to submit, it knew how to do so. That the solicitation does not
16
identify any such limits for non-major contractors indicates that the agency
did not intend to place any such limits at all.
Id.
Alternatively, defendant argues that if the court were to find plaintiff’s
interpretation of the solicitation criteria to be reasonable (namely that limits exist), the
court would find only a “possible interpretation of an ambiguous provision.” Id. at 30. In
such circumstances, defendant argues, plaintiff was obligated to have sought clarification
during the solicitation process, see id. (citing Blue & Gold v. United States, 492 F.3d
1308, 1313 (2007)), and if plaintiff failed to do so, its failure precludes the court from
accepting the party’s interpretation, id. (citing Linc Gov’t Servs. v. United States, 96 Fed.
Cl. 672, 709 (2010)).
2. Legal Standards Governing Interpretation of Solicitation Provisions
Interpretation of the agency’s solicitation is a question of law for the court. See
Banknote Corp., 365 F.3d at 1353; see also Contract Servs., Inc. v. United States, 104
Fed. Cl. 261, 274 (2012) (same).
“The principles governing interpretation of Government contracts apply with
equal force to the interpretation of solicitations issued by the Government for such
contracts.” Banknote Corp., 365 F.3d at 1353 n.4. A court must “consider the
solicitation as a whole, interpreting it in a manner that harmonizes and gives reasonable
meaning to all of its provisions.” Banknote Corp., 365 F.3d at 1353; see also NVT
Techs., Inc. v. United States, 370 F.3d 1153, 1159 (Fed. Cir. 2004) (“An interpretation
that gives meaning to all parts of the contract is to be preferred over one that leaves a
portion of the contract useless, inexplicable, void, or superfluous.”).
“A contract is ambiguous if it is susceptible of two different and reasonable
interpretations, each of which is found to be consistent with the contract language.”
Community Heating & Plumbing Co., Inc. v. Kelso, 987 F.2d 1575, 1579 (Fed. Cir.
1993); see also C. Sanchez and Son, Inc. v. United States, 6 F.3d 1539, 1544 (Fed. Cir.
1993) (same). “The court must consider the meaning that a reasonable person acquainted
with the contemporaneous circumstances would ascribe to the document's text.”
Carahsoft Tech., 85 Fed. Cl. at 339-40. That the parties disagree on the interpretation of
a term is not necessarily evidence of ambiguity. See C. Sanchez and Son, 6 F.3d at 1544.
“An ambiguity is latent if it is not apparent on the face of the solicitation and is not
discoverable through reasonable or customary care.” See Linc Gov’t Servs., 96 Fed. Cl.
at 708. A latent ambiguity is “resolved against the government as drafter of the
solicitation.” Linc Gov’t Servs., 96 Fed. Cl. at 708-09. A patent ambiguity is “present
17
when the contract contains facially inconsistent provisions that would place a reasonable
contractor on notice and prompt the contractor to rectify the inconsistency by inquiring of
the appropriate parties.” Stratos Mobile Networks USA, LLC v. United States, 213 F.3d
1375, 1381 (Fed. Cir. 2000). Such an ambiguity is “obvious, gross, or glaring.” Archura
LLC v. United States, 112 Fed. Cl. 487, 500 (2013) (citing Fulcra Worldwide, LLC v.
United States, 97 Fed. Cl. 523, 538 (2011); H & M Moving, Inc. v. United States, 499
F.2d 660, 671 (Ct. Cl. 1974)).
The waiver rule applies only to patent ambiguities:
a party who has the opportunity to object to the terms of a government
solicitation containing a patent error and fails to do so prior to the close of
the bidding process waives its ability to raise the same objection
subsequently in a bid protest action in the Court of Federal Claims.
Blue & Gold, 492 F.3d at 1313 (emphasis added).
3. The Solicitation Permitted Offerors to Submit Past Performance
Information for Only Itself and Its Major Subcontractors
Defendant is correct that section L.3.3.2 “must be interpreted ‘in a manner that
harmonizes and gives reasonable meaning to all its provisions.’” Def.’s Reply 29-30
(citing Banknote Corp., 365 F.3d at 1353). Defendant’s interpretation, however, fails to
consider the solicitation as a whole, and defendant fails to harmonize its interpretation of
the past performance information an offeror could provide (§ L.3.3.2) with the agency’s
specification for the contents of the entire Past Performance Volume (§ L.3.3.1).
Section L.3.3.1 specifies the contents of the Past Performance Volume, as follows:
L.3.3.1 Contents. The offeror shall submit a Past Performance Volume
containing the following:
a. Table of Contents
b. Summary Page describing the role of the Offeror and each subcontractor,
teaming partner, and/or joint venture partner that the Offeror is required to
provide Past Performance Information Sheets [in accordance with section]
L.3.3.2 below.
c. Past Performance Information Sheets, [as described in section] L.3.3.2
below.
AR Tab 74.5, at 53212 § L.3.3.1 (emphasis added).
18
Defendant’s interpretation of section L.3.3.2 is at odds with section L.3.3.1(b). As
construed by defendant, an offeror could submit a Past Performance Volume with a
summary page in which it correctly described only the roles to be played by itself and its
major subcontractors, as directed in section L.3.3.1(b), but then could also include
contract information for an infinite number of its non-major subcontractors, under its
interpretation of section L.3.3.2.
The purpose of the Past Performance Volume summary page is to provide the
agency with information for those entities for which offeror provided past performance
information sheets. The plain text of the solicitation favors such an interpretive read.
Defendant’s interpretation of section L.3.3.2, however, would appear to contravene this
purpose because the agency would receive a summary of the roles of some, but not all,
subcontractors for which the offeror provided past performance information sheets.
Interpreted as defendant urges, section L.3.3.2 would limit to five the number of
contracts an offeror could provide for itself and its major subcontractors, see Def.’s Reply
28, while allowing an offeror to put forward an unlimited number of contracts for non-
major subcontractors. Asserting that this proposed interpretation is consistent with the
overall scheme of the solicitation, defendant explains that “[a]lthough the agency wanted
offerors to have an even playing field to demonstrate the records of the most important
members of the team—those that would perform the most work— it still wanted to afford
offerors (and itself) flexibility to come up with a comprehensive portrait of offerors’ past
performance.” Id. at 29.
If accepted, defendant’s interpretation of section L.3.3.2, hypothetically, would
allow an offeror the “flexibility” to award some portion of work to numerous
subcontractors with known positive past performance histories, for the sole purpose of
boosting its past performance rating.9 A past performance rating inflated in this manner
would quickly become meaningless for its intended purpose, a consideration of “the
Offeror’s demonstrated record of performance in providing services and products that
meet the users’ needs.” AR Tab 74.5, at 53234 § M.3.3.
Defendant’s suggested interpretation of section L.3.3.2 is also inconsistent with
the negative implication canon, expressio unius est exclusio alterius, which counsels “that
to express or include one thing implies the exclusion of the other, or of the alternative.”
Black’s Law Dictionary 661 (9th ed. 2009). The agency expressly included both the
offeror and major subcontractors in section L.3.3.1 and section L.3.3.2, but said nothing
of non-major subcontractors in either section. Under this canon of construction, the
9
In offering this hypothetical, the court does not suggest that such behavior is
present in this case.
19
agency’s express inclusion of major subcontractors implies that the alternative, non-
major subcontractors, are excluded.
Defendant argues that when “the agency wanted to set limits on the amount of
information the offerors wanted to submit, it knew how to do so,” in support of its
argument that the agency placed no limit on the number of contracts for non-major
subcontractors. Def.’s Reply 28. In the court’s view, the better read of the solicitation is
that when the agency wanted to evaluate the past performance of certain subcontractors,
it knew how to direct the offeror to provide information for those subcontractors.
Moreover, defendant’s proposed interpretation of section L.3.3.2 is contrary to the
limits on a proposal evaluation set forth in FAR15.305(a)(2)(iii), which states in its
entirety,
[t]he evaluation should take into account past performance information
regarding predecessor companies, key personnel who have relevant
experience, or subcontractors that will perform major or critical aspects of
the requirement when such information is relevant to the instant
acquisition.
FAR15.305(a)(2)(iii) (emphasis added).
Defendant’s additional argument that section L.3.3.2 puts offerors on notice that
the agency would consider both information provided by the offeror and information the
agency collected on its own is similarly unavailing. See Def.’s Reply 29. The language
to which defendant points states that “[o]fferors are cautioned that the Government will
use the information provided by each Offeror in this volume and information obtained
from other sources for the overall evaluation of past performance.” AR Tab 74.5, at
53213 § L.3.3.2 (emphasis added). Defendant leaves unexplained how the agency’s
caution to offerors that it would not limit itself to information provided by the offeror,
serves as authorization to the offeror to provide any information it wishes for non-major
subcontractors.
The court is not convinced that a reasonable person acquainted with the
solicitation would interpret section L.3.3.2 as defendant does. Nothing in the solicitation
or the FAR provides defendant with support for its position that the solicitation permitted
the agency to evaluate the past performance of any subcontractor, regardless of whether
the subcontractor was a major performer or not.
For the sake of completeness, however, the court evaluates defendant’s second
argument, regarding ambiguity. As defendant relies only on case law addressing patent
ambiguities, see Def.’s Reply 30 (citing Blue & Gold, 492 F.3d at 1313; Linc Gov’t
20
Servs., 96 Fed. Cl. at 709), the court understands defendant’s position with regard to
ambiguity as follows: if the solicitation contains an ambiguity, it is a patent ambiguity.
But defendant did not point to provisions in the solicitation that could be said to be
facially inconsistent. Nor does the court’s examination of sections L.3.3.1 and L.3.3.2,
reveal any language that on the face of the solicitation, could be considered an “obvious,
gross, or glaring” ambiguity.
4. Conclusion
The court finds that the disputed provision in the solicitation, section L.3.3.2, is
not ambiguous. The solicitation permitted offerors to submit past performance
information for only itself and its major subcontractors. To the extent that section L.3.3.2
could be construed ambiguous, the court finds that it is a latent ambiguity—not a patent
ambiguity—and thus must be interpreted against defendant, as the drafter of the
solicitation.10
C. The Agency Improperly Considered the Past Performance of GDOTS’s
Subcontractors
The agency included the past performance of GDOTS’ seven subcontractors in
calculating GDOTS’s past performance rating, see AR Tab 59, at 52268-69 tbl. 6, of
which only one, Flyer, was a major subcontractor, see id. at 52273; see also Def.’s Resp.
Ct. Ques. 4.
The solicitation’s criteria permitted the agency to consider past performance
information for Flyer, but not for General Dynamics Land Systems (GDLS), General
Dynamics Command, Control, Communications and Computers Systems (GDC4S),
General Dynamics Land Systems-Force Protection (GDLS-FP/FPI), JWF Defense
Systems (JWF), Ceradyne or SkyBridge Tactical (SkyBridge).
10
The court notes that the agency had notice that offerors interpreted the solicitation
criteria differently in June 2012, upon the receipt of the initial proposals. In its initial
proposal, GDOTS provided past performance information for all seven subcontractors.
See AR Tab 38.3, at 30693-94. Navistar, on the other hand, noted that it provided no past
performance information sheets for either of its two “strong” subcontractors, as neither
met the definition of a major subcontractor in section L.3.3.2. AR Tab 39.3, 33254 ¶ 11.
As the agency did not close discussions with offerors until May 2013, see Def.’s Mot. 7,
it had time to resolve the problem and ensure that all offerors received an equal
opportunity to submit and be evaluated on the same measure of material.
21
The agency considered a total of eight contracts for these six non-major
subcontractors, none of which it should have considered. See AR Tab 59, at 52268-69
tbl. 6.
The court finds that the agency’s evaluation of the past performance of GDOTS
was contrary to the criteria set forth in the solicitation.
D. The Agency’s Evaluation of Not Relevant Contracts in Its Past
Performance Rating of GDOTS Was in Error
In its evaluation of GDOTS’s subcontractors, the agency considered three
contracts for GDOTS’s major subcontractor, Flyer, that it rated Not Relevant. See AR
Tab 59, at 52268; Def.’s Resp. Ct. Ques. 10-12.
Defendant argues that the agency was required to consider information about all
contracts, including those it rated Not Relevant, when it determined the offeror’s overall
past performance confidence rating. See Def.’s Reply 30. Defendant points to the
solicitation and says “the agency was required to consider [not relevant contracts] by
Section M” (Evaluation Factors for Award). Id. (citing AR Tab 74.5, at 53234 §
M.3.3.1) (stating that the agency “will conduct an in-depth review and evaluation of all
performance data obtained to determine how closely the work performed under those
efforts relates to the current requirement.” (emphasis added)).
The relevant portion of Section M is as follows:
M.3.3 Past Performance. The Past Performance evaluation considers the
Offeror’s demonstrated record of performance in providing services and
products that meet the users’ needs. Past Performance evaluation shall
focus on the recency and relevancy as defined in Section L.3.3 regarding
how well the Contractor performed or is performing the same or similar
type of work under other Government contracts.
M.3.3.1 The Government will conduct an in-depth review and evaluation
of all performance data obtained to determine how closely the work
performed under those efforts relates to the current requirement. The
performance evaluation will be based on the data gathered by information
sheets, questionnaires, and interviews, submitted SF 294/295s, and the
Contractor Performance Assessment Reporting System reports as available
through the Past Performance Retrieval System. The Government is not
limited to these resources.
22
M.3.3.2 The Government will evaluate the present and past performance of
the efforts (that meet the recency and relevancy criteria in Section L.3.3) in
order to determine the Government’s overall level of confidence in the
Offeror’s ability to successfully perform the required effort. The
Confidence Ratings with definitions that will be utilized are contained
within Table 4 below.
AR Tab 74.5, at 53234 § M.3.3 (emphasis added).
Section L.3.3 (incorporated into section M.3.3.2) says, in relevant part, “[f]or
proposed subcontractors/teaming partners, relevancy is defined by that which reflects
experience in the area of expertise the subcontractor is projected to actually perform
under the GMV 1.1 program, (i.e. specific areas in the PWS/SOW).” Id. at 53215 §
L.3.3.5.2.
The agency’s definition for a Very Relevant rating was that “Present/Past
Performance effort involved essentially the same scope and magnitude of effort and
complexities this solicitation requires.” Id. at 53215 § L.3.3.5.3 (emphasis added). The
scope and magnitude of effort required for a Relevant rating was “similar,” for a
Somewhat Relevant rating “some,” and for a Not Relevant rating “involved little or
none.” Id.
Defendant points to PHT Supply Corporation v. United States for the proposition
that the agency did not err in considering “not relevant” contracts. 71 Fed. Cl. 1, 15-16
(2006). The court in PHT Supply considered the plain language of a solicitation that
read: “In conducting the past performance evaluation, . . . [t]he Government may
consider the currency, degree of relevance, source and context of the past information it
evaluates as well as general trends in performance.” Id. at 15 (emphasis added). The
court found that the agency did not err in considering not relevant contracts, as such
contracts were suitable for the evaluation of general trends, see id. at 12, and a refusal to
consider them would read the clause—general trends in performance—out of the
solicitation, see id. at 15. The court’s decision in PHT Supply was based on the language
of the solicitation, which is different from the language in this solicitation. Thus the PHT
Supply case is inapposite on the facts of this case.
Defendant takes the position that the Not Relevant rating reflected the weight to be
given to that contract in the past performance confidence rating. See Def.’s Reply 30.
But the SSEB’s analysis of GDOTS’s past performance twice stated that the ratings for
its subcontractors were very positive, with no mention that three of those contracts were
not relevant. See AR Tab 59, at 52267. Likewise, the SSAC focused on the positive
evaluations of GDOTS’s subcontractors and remained silent as to the relevance levels of
those contracts. See AR Tab 55A, at 51237. In the SSDD, the SSA did note that
23
GDOTS lacked relevant contracts for review, see AR Tab 54, at 51218, and that only one
of the presented contracts was rated as Very Relevant. Id. But the SSA declined to
address the Not Relevant rating for some of GDOTS’s subcontractor’s contracts,
mentioning only their “strong performance.” Id.
The question of whether Not Relevant contracts were properly considered in the
agency’s evaluation is a matter of interpretation of Section M of the solicitation, which is
a matter of contract interpretation for the court. See Banknote Corp., 365 F.3d at 1353.
A court “must consider the solicitation as a whole, interpreting it in a manner that
harmonizes and gives reasonable meaning to all of its provisions.” Id.; see also NVT
Techs., 370 F.3d at 1159 (“An interpretation that gives meaning to all parts of the
contract is to be preferred over one that leaves a portion of the contract useless,
inexplicable, void, or superfluous.”).
Evaluating past performance is a two-step process, with the agency first evaluating
an offeror’s contracts and then the offeror. Considering sections M.3.3.1 and M.3.3.2
together, the court reads these sections as conducting two different evaluations: in section
M.3.3.1, the agency evaluates each contract and assigns it a relevancy rating (Very
Relevant, Relevant, Somewhat Relevant, or Not Relevant), and in section M.3.3.2, the
agency evaluates each offeror and assigns it a performance confidence rating from Table
4, in section M.3.3, (Substantial Confidence, Satisfactory Confidence, Limited
Confidence, or No Confidence). See AR Tab 74.5, at 53234-35.
Defendant’s interpretation of section M.3.3.1 is correct, the agency was required
to review and evaluate “all performance data obtained,” as it assigned each contract a
relevancy rating. Id. at 53234. But section M.3.3.1 did not direct the agency to consider
all contracts when it assigned the offeror a past performance confidence rating. Under
defendant’s interpretation, the clause “that meet the recency and relevancy criteria in
Section L.3.3” in section M.3.3.2 would be useless. Considering the plain text of section
M.3.3.2, for a contract to “meet” the relevancy criteria means there is a standard, in
particular the section L.3.3 recency and relevancy criteria, against which the agency
evaluates contracts to determine if it will consider that contract in the section M.3.3.2
evaluation of the offeror. Those contracts that fail to meet the Section L.3.3 criteria are
thus excluded from the section M.3.3.2 evaluation.
The court finds that Section M.3.3 of the solicitation did not permit the agency to
consider contracts it rated Not Relevant in its determination of an offeror’s past
performance confidence rating.
24
The court finds that the agency erred in its consideration of three Not Relevant
contracts for Flyer in its determination of GDOTS past performance confidence rating.11
Given the court’s findings, it is unnecessary to reach plaintiff’s arguments that the
agency double-counted the positive past performance of GDOTS’s subcontractors, or that
the agency overstated the strength of GDOTS’s subcontractors’ past performance. See
Pl.’s Mot. 29-36.
IV. THE AGENCY’S EVALUATION OF AMG’S AREA I CAPABILITY
AMG also challenged one or more of the agency’s ratings for its Area I Capability
Factor 1 (Production), Factor 2 (Technical) and Factor 3 (Management) evaluations.
The court addresses these challenges first before turning to consider plaintiff’s challenge
to the agency’s evaluation of its Past Performance, and then its challenge to the agency’s
Best Value Tradeoff Analysis.
The undersigned considers plaintiff’s arguments in the order in which they were
presented.
A. The Agency’s Evaluation of Capability, Factor 3 (Management) Was
Rational
Plaintiff asserts that the agency’s evaluation of its proposal on Capability Factor 3
(Management) was arbitrary, capricious, contrary to law and reflected disparate treatment
of the offerors. See Pl.’s Mot. 41, 63-64. Plaintiff’s complaint is three-fold: first, when
the agency “rolled up” the underlying subfactor ratings into the Factor 3 rating, it applied
a different rule for GDOTS than for the other offerors. See id. at 39-40. Second, when
awarding factor ratings, the agency was not consistent in its treatment of offerors as to the
number of strengths needed to receive an Outstanding factor rating. See id. at 40-41.
And third, the agency improperly downgraded AMG’s rating on Factor 3 from an
Outstanding rating to a Good rating, although there had been no change in the underlying
subfactor ratings. See id. at 63-64. Plaintiff asserts that prior to this downward
adjustment in rating, the agency misled AMG during discussions, by not giving AMG
either notice of the impending downgrade or an opportunity to respond. See id. at 41, 64.
Defendant replies that the agency did not treat offerors differently in the manner in
which it rolled-up subfactor ratings into factor ratings, or in the way in which it
considered the number of strengths in determining whether to award an Outstanding
rating. See Def.’s Mot. 14-18. While defendant acknowledges downgrading plaintiff’s
11
Defendant correctly notes that the agency also considered one Not Relevant
contract for AMG. See Def.’s Resp. Ct. Ques. 12 (citing AR Tab 59, at 52384).
25
Factor 3 rating, it asserts that it did so to correct an error in its initial evaluation rating;
defendant maintains that there were no misleading discussions. See id. at 34-36.
The court considers plaintiff’s arguments in turn.
1. The Agency Employed a Consistent Approach to Rolling Up
Subfactor and Factor Ratings
Plaintiff asserts that the agency had an internal rule governing the manner in
which it would roll up subfactor ratings into factor ratings, and that it failed to apply this
rule uniformly. See Pl.’s Mot. 39-40. The rule, according to plaintiff, was that if an
offeror received an Acceptable rating on any subfactor, the subfactor ratings could not be
rolled up to an Outstanding factor rating. See id. at 39.
According to plaintiff, evidence of this rule may be found in a statement included
in the Contracting Officer’s12 Statement of Facts, that defendant provided to the GAO
during plaintiff’s GAO protest. See id. (quoting AR Tab 117 (Tab 2), at 55596).
Defendant responds that no such rule exists, and that the contracting officer
expressly stated as much when she said that the “[g]overnment’s evaluation is a
subjective assessment of the merit of the offeror’s proposal.” Def.’s Mot. 14-15 (quoting
AR Tab 117 (Tab 2), at 55595-96). As the contracting officer explained:
[i]t is not surprising that nowhere does it state, “. . . an Outstanding rating
on a factor is impermissible if an Acceptable rating is given on a subfactor
. . .” The Government’s evaluation is a subjective assessment of the merit
of the offeror’s proposal. . . . In any event, however the Protestor was not
prejudiced by the roll-up error as even if the rating for Factor 3 was raised
to Outstanding [which would obviously require AMG to provide
extraordinary commitment on behalf of the Subfactor 3 small business], the
overall rating for the Capability Area would still remain at Good (1 Good, 1
Acceptable, and 1 Outstanding Factor ratings . . . can only roll up to an
overall Good rating.)
AR Tab 117 (Tab 2), at 55595-96 (emphasis added).
12
The contracting officer has a broad set of responsibilities with regard to the
solicitation, including working with the SSEB Chair to ensure the evaluation is conducted
in accordance with the evaluation criteria specified in the solicitation. See AR Tab 4, at
150 ¶ 2.2.2 (3).
26
Review of the contracting officer’s statement shows that she was not discussing a
general rule. Rather, she was responding to a protest by AMG—that the agency
“arbitrarily downgraded AMG’s rating from Outstanding to Good,”—AR Tab 117 (Tab
2), at 55594—and in the context of that response, offered her opinion on why AMG
could not have suffered prejudice. Even if AMG managed to get an Outstanding rating
on Factor 3, when Factors 1, 2 and 3 were rolled up to the overall Capability rating, the
Capability rating would still have been Good, not Outstanding. Although not expressed
in the excerpted statement from the contracting officer, she would have been familiar
with and informed by the solicitation weights, as provided in the solicitation. (In the
Capability Area, Factor 1 (Production) and Factor 2 (Technical) are of equal importance,
and both are significantly more important than Factor 3 (Management). See AR Tab
74.5, at 53222 § M.2.2.1.)
On this administrative record, the court finds that the agency neither adopted nor
employed a rule precluding an Outstanding factor rating if the factor included any
subfactor Acceptable ratings. Nonetheless, the court considers plaintiff’s complaint that
the agency treated the offerors unequally.
a. GDOTS Overall Capability Rating
Plaintiff compares the manner in which the agency rolled up its subfactor ratings
into its Factor 3 rating with two roll ups of GDOTS’s ratings, first its overall Capability
rating, and then its Factor 1 rating. See Pl.’s Mot. 39-40. The court addresses the former
in this section and the latter in section immediately following.
The table below provides a comparison of evaluation ratings and weights of
AMG’s Factor 3 with GDOTS’s Capability rating.
Comparison of AMG’s Factor 3 and GDOTS’s Capability Ratings
AMG GDOTS
Rating Relative Rating Relative
Weight Weight
Factor 3 Good Area I Outstanding
(Management) (Capability)
Subfactor 1 Outstanding Equal Factor 1 Outstanding Equal
importance importance
Subfactor 2 Outstanding Equal Factor 2 Outstanding Equal
importance importance
Subfactor 3 Acceptable Less Factor 3 Acceptable Significantly
important less important
27
AR Tab 59, at 52230-31, 52341; AR Tab 74.5, at 53222 §§ M.2.2.1, M.2.2.4.
Review of the relative weights shows GDOTS’s overall Capability rating is not
like AMG’s Factor 3 rating. In GDOTS’s case, the one factor on which it received an
Acceptable rating was significantly less important than the two factors on which it
received Outstanding ratings. In AMG’s case, the one subfactor on which it received an
Acceptable rating was less important than the two factors on which it received an
Outstanding rating.
Defendant is correct that the weights explain the outcome, as in AMG’s case, “the
‘Acceptable’ rating counted for more in the overall average.” Def.’s Mot. 17 (emphasis
omitted).
When considering a challenge to an agency’s action, the reviewing courts must
determine whether “the contracting agency provided a coherent and reasonable
explanation of its exercise of discretion.” Impresa Construzioni, 238 F.3d at 1332-33(quotation omitted).
The record shows that due to the different weights of the underlying subfactors or
factors, AMG’s Acceptable subfactor rating simply had more of an impact on its rolled
up Factor 3 rating than GDOTS Acceptable Factor 3 rating had on its own rolled up
Capability rating. The court finds defendant’s explanation to be reasonable.
b. GDOTS Factor 1 Rating
The agency rated GDOTS Outstanding on Subfactors 1 and 2, Acceptable on
Subfactor 3, and rolled up these subfactor ratings into an overall Factor 1 rating of
Outstanding. See AR Tab 59, at 52231. The table below provides a comparison of
AMG’s Factor 3 rating with GDOTS’s Factor 1 rating.
Comparison of AMG’s Factor 3 and GDOTS’s Factor 1 Ratings
AMG GDOTS
Rating Relative Rating Relative
Weight Weight
Factor 3 Good Factor 1 Outstanding
(Management) (Production)
Subfactor 1 Outstanding Equal Subfactor 1 Outstanding First
importance importance
Subfactor 2 Outstanding Equal Subfactor 2 Outstanding Second
importance importance
28
Comparison of AMG’s Factor 3 and GDOTS’s Factor 1 Ratings
AMG GDOTS
Rating Relative Rating Relative
Weight Weight
Subfactor 3 Acceptable Less Subfactor 3 Acceptable Third
important importance
AR Tab 59, at 52230-31, 52341; AR Tab 74.5, at 53222 §§ M.2.2.2, M.2.2.4.
Defendant again points to the different weights as the explanation for the different
result, see Def.’s Mot. 16-17, and argues that GDOTS’s Subfactor 3 rating was
“‘significantly less important’ than the areas in which GDOTS received its ‘Outstanding’
scores—as a result, the ‘Acceptable’ rating counted for more in the overall average.”
Def.’s Reply 17 (emphasis omitted). Defendant maintains that “the agency did not apply
any rigid mathematical formula in determining the offerors’ ratings.13 The final roll-up
was a qualitative evaluation that properly accounted for the relative significance of the
different subfactors.” Def.’s Mot. 35 n.8.
In this case, however, the relative weight to afford “less important” Subfactor 3
and the “third most important” Subfactor 3 is less clear. In addition, defendant does not
address the fact that in GDOTS’s case, its Subfactor 2 Outstanding rating was less
important than its Subfactor 1 Outstanding rating, while in AMG’s case, both its
Subfactor 1 and 2 Outstanding ratings were of equal importance.
The agency’s decision to rollup AMG’s subfactor ratings to a Good rating, while
rolling up GDOTS’s subfactor ratings to an Outstanding rating, can stand if the “agency
provided a coherent and reasonable explanation of its exercise of discretion.” Impresa
Construzioni, 238 F.3d at 1332-33. “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) (quotation marks omitted).
13
The lack of clarity regarding the comparative weight of the respective subfactors
prompted each party to offer a method for calculating a numerical value for each rolled
up factor. Each party assigned a value to each subfactor commensurate with the weight
of the subfactor, and then tallied the subfactor values to get a numerical result. See
Def.’s Mot. 35 n.8; Def.-Int.’s Mot. 32 n.8; Pl.’s Reply 24; Def.’s Reply 4-5. However,
because the agency did not employ a numerical ranking method in rolling up the
subfactors, see Def.’s Mot. 35 n.8, the court does not consider the parties’ numerical
demonstratives.
29
The court agrees with defendant that the ratings merely reflect a broader
qualitative assessment. See Def.’s Mot. 35 n.8. The law counsels that reviewing courts
give the greatest deference possible to these determinations on technical matters, in
recognition of the special expertise of procurement officials. See E.W. Bliss Co. v.
United States, 77 F.3d 445, 449 (Fed. Cir. 1996); J.C.N. Const., Inc. v. United States, 107
Fed. Cl. 503, 510 (2012); Beta Analytics Int’l, Inc. v. United States, 67 Fed. Cl. 384, 395
(2005).
Here, the court does not find defendant’s explanation of its reliance on the
different subfactor weights to be unreasonable. Nor does the court find that the agency
treated AMG unequally when it rolled up AMG’s subfactor ratings into the Factor 3
(Management) rating.
2. There Was No Disparate Treatment of AMG’s and GDOTS’s
Relative Strengths
Plaintiff next argues that the agency treated it unequally when it awarded GDOTS
an Outstanding rating for Factor 1, on which GDOTS earned eight strengths, while AMG
received only a Good rating on Factor 3, despite having also earned eight strengths. See
Pl.’s Mot. 40-41. Plaintiff observes that it received all eight strengths on Subfactors 1
and 2, which were equally weighted as the most important subfactors, while GDOTS
received only five of its strengths on its most important subfactor. See Pl.’s Reply 23.
Thus, given the greater weight of the subfactors on which it earned its strengths, asserts
plaintiff, it merited an Outstanding rating. See id.Defendant responds that there is no “quantitative number of strengths or
weaknesses which lend[s] itself to a certain overall rating.” Def.’s Mot.17 (quoting
Contracting Officer’s Statement of Facts at GAO, AR Tab 117 (Tab 2), at 55595).
Rather, defendant contends that the evaluation team awards a rating based on its
“subjective discretion.” Id. at 17-18.
As provided in the SSP, SSEB evaluators are responsible for assigning evaluation
ratings after having conducted “a comprehensive review and evaluation of proposals
against the solicitation requirements and the approved evaluation criteria.” AR Tab 4, at
151 ¶ 2.2.6.
The solicitation informs offerors that evaluation of the Capability Area “shall
focus on the strengths, deficiencies, significant weaknesses, and weaknesses of the
Offeror’s proposal. The Government will roll up Subfactor ratings into an overall rating
for the applicable Factor, and roll up Factor ratings into an overall rating for this Area.”
AR Tab 74.5, at 53224. The solicitation defines an Outstanding evaluation rating as:
30
“[p]roposal meets requirements and indicates an exceptional approach and understanding
of the requirements. Strengths far outweigh any weaknesses. Risk of unsuccessful
performance is very low.” Id. at 53223. The solicitation made no mention of a minimum
number of strengths needed to receive an Outstanding rating.
A reviewing court is limited in its review of an agency’s award of technical
ratings. “[T]echnical ratings . . . involve discretionary determinations of procurement
officials that a court will not second guess.” E.W. Bliss Co., 77 F.3d at 449. “[W]here
an agency's decisions are highly technical in nature . . . judicial restraint is appropriate
and proper.” Electro–Methods, Inc. v. United States, 7 Cl. Ct. 755, 762 (1985).
Nothing in the administrative record supports plaintiff’s position that an offeror
was entitled to an automatic Outstanding rating if it received eight strengths. Instead,
both the solicitation and SSP support defendant’s position that evaluators were permitted
to use their judgment and make subjective decisions in evaluating proposals. This court
declines to second guess the agency’s technical evaluation.
Plaintiff has failed to show the agency treated it unequally when it rolled up its
subfactor ratings into its Factor 3 (Management) rating.
3. The Agency Did Not Conduct Misleading Discussions with AMG
Finally, plaintiff argues that the agency’s downgrading AMG’s Factor 3 rating
from Outstanding to Good, was arbitrary, capricious, and contrary to law because AMG
was purportedly not given adequate notice of the potential downgrade before it occurred.
See Pl.’s Mot. 63-64.
Prior to AMG’s submission of its fourth and final proposal, the agency provided
AMG with a review of its third proposal, in which the agency rated AMG’s Factor 3 as
Outstanding, with both Subfactors 1 and 2 rated as Outstanding, and Subfactor 3 rated as
Acceptable. See AR 87.1, at 53694. In its review of plaintiff’s final proposal, the agency
made no change to the ratings of the underlying subfactors, but nonetheless lowered the
Factor 3 rating to Good. See Pl.’s Mot. 64; AR Tab 59, at 52341. Plaintiff complains
that the agency held misleading discussions because if AMG had known that the agency
planned to lower its rating to Good, AMG “could have raised its rating back to
Outstanding by improving its submission with regard to Subfactor 3 (Small Business
Contracting Plan).” Pl.’s Mot. 64.
As an initial matter, the court notes that it has already found that the rating for
Factor 3 was rational. Thus the court turns to consider plaintiff’s argument that the
agency conducted misleading discussion.
31
The FAR dictates that after receipt of proposals, an agency must conduct
exchanges with offerors to the following extents:
[a]t a minimum, the contracting officer must . . . discuss with, each offeror
still being considered for award, deficiencies, significant weaknesses, and
adverse past performance information to which the offeror has not yet had
an opportunity to respond. The contracting officer also is encouraged to
discuss other aspects of the offeror's proposal that could, in the opinion of
the contracting officer, be altered or explained to enhance materially the
proposal's potential for award. However, the contracting officer is not
required to discuss every area where the proposal could be improved. The
scope and extent of discussions are a matter of contracting officer
judgment.
FAR 15.306(d)(3) (emphasis added). Therefore, the contracting officer enjoys some
measure of discretion in what is shared and discussed.
Plaintiff also points to Analytical & Research Technology, Inc. v. United States
for the proposition that “[d]iscussions that mislead an offeror into ‘responding in a
manner that does not address the agency’s concerns or that misinform[] the offeror
concerning its proposal weaknesses or deficiencies” are improper. See Pl.’s Mot. 64;
Pl.’s Reply 20 (citing Analytical & Research Tech., Inc. v. United States, 39 Fed. Cl. 34,
48 (1997)).
However, defendant is correct that the agency had no concerns about either
weaknesses or deficiencies that it did not address with AMG. See Def.’s Reply 24.
Defendant’s position is supported by a review of the SSEB Evaluation Report. There
were no weaknesses or deficiencies on any subfactor in Factor 3, and, thus, nothing the
agency could have failed to disclose. See AR Tab 59, at 52342-43.
Moreover, the agency provided plaintiff with an evaluation notice after review of
its initial proposal, in which it specified those areas of plaintiff’s Subfactor 3 (Small
Business Subcontracting Plan) proposal that could be improved. See Def.’s Reply 24
(citing AR Tab 67.2, at 52633). Plaintiff received a Marginal rating on Subfactor 3 in its
initial proposal, see AR Tab 67.1, at 52622, which it raised to an Acceptable rating in its
final proposal, see AR Tab 59, at 52341. Plaintiff thus had the information it needed to
improve its proposal on Subfactor 3 well before the submission of its final proposal, but it
managed to effect only modest improvement.
In any event, plaintiff fails to establish that it was prejudiced by the purported
misleading discussions, as it is far too speculative to assume it would have been able to
achieve a higher rating.
32
Analytical & Research Technology counsels that “[d]iscussions, when they are
conducted, must be meaningful and must not prejudicially mislead offerors.” Analytical
& Research Tech., 39 Fed. Cl. at 48 (emphasis added). To establish prejudice, the
plaintiff must demonstrate that it had “a substantial chance” it would have received the
contract award but for that error.” Galen Med. Assocs., Inc. v. United States, 369 F.3d
1324, 1331 (Fed. Cir. 2004) (quotation marks omitted).
Plaintiff asserts it was prejudiced, because any change in its Subfactor 3 rating
would have had some impact during the best value analysis, regardless of whether a
higher rating on Subfactor 3 would have led to a higher rating on Capability overall. See
Pl.’s Mot. 64. Plaintiff posits that it would have been able to raise its Subfactor 3 rating,
which would have led to its receiving an Outstanding rating on Factor 3 (Management),
which plaintiff speculates might have led the SSA to find, during his best value analysis,
that GDOTS’s proposal was not worth the price premium. See Id.Plaintiff asks too much of Subfactor 3. AMG’s view that it was prejudiced by
misleading discussions is much too speculative and thus cannot support a finding that it
would have had a substantial chance to receive the contract, but for the improper
discussions.
The court is not persuaded, on this record, that the agency conducted prejudicially
misleading discussions with plaintiff.
4. Conclusion
Plaintiff has failed to show that the agency’s evaluation of its proposal on
Capability Factor 3 (Management) was arbitrary, capricious, contrary to law, or that the
agency provided disparate treatment in the evaluation of Factor 3.
B. The Agency’s Evaluation of C4ISR Integration; Capability, Factor 1
(Production), Subfactor 1 (Production Approach) Was Rational
Plaintiff next complains that the agency had no basis for assigning a weakness,
known as Weakness-25 (W-25), to its proposal for C4ISR14 installation and integration.
See Pl.’s Mot. 41-42. Plaintiff makes four arguments as to how the agency’s assignment
of W-25 resulted from unequal treatment, and was also unreasonable, arbitrary and
14
‘“C4ISR’ stands for Command, Control Computers, Communications,
Intelligence, Surveillance and Reconnaissance. The C4ISR kit is a combination of
equipment, amplifiers, cabling, antennas, hardware and mounts that allow for the
operation of a variety of different systems on the vehicle.” Def.’s Mot. 18 n.4.
33
capricious. See id. at 41. Plaintiff argues that the agency: (1) assigned it a weakness for
its low estimate of the hours for installation, but assigned GDOTS a strength for an even
lower number of hours; (2) evaluated AMG on factors outside the stated solicitation
criteria; (3) assigned the weakness unreasonably given that the agency would bear no
financial responsibility if AMG’s labor costs proved higher than it estimated; and (4)
conducted misleading discussions regarding its true concern about plaintiff’s proposal.
See id. at 41-50.
Defendant denies any unequal treatment. Defendant asserts that the agency
awarded GDOTS a strength for its overall C4ISR integration plan, that the agency
evaluated the offerors’ proposals in accordance with the solicitation criteria, that the
agency’s valid concern was that plaintiff did not fully understand the task of C4ISR
integration, and finally, that the agency repeatedly described the weakness in plaintiff’s
proposal. See Def.’s Mot. 18-23.
Defendant provided context for the importance of the C4ISR kit to the agency:
the C4ISR kit was one of the most important—and expensive— systems for
the GMV. Its cost accounted for approximately a third of the cost of each
full-rate production vehicle. See AR Tab 47.4, at 49921. Given the
importance of this system to the vehicle as a whole, it was important for the
agency to ensure that the system worked properly. For this reason . . . the
agency considered the entire integration effort in its evaluation, not just the
work to install the C4ISR kit.
Def.’s Reply 7.
The court considers plaintiff’s arguments in turn.
1. The Agency Did Not Treat Offerors Differently in Its Evaluation of
C4ISR Installation and Integration
The parties differ in their view of the basis on which the agency awarded GDOTS
a strength for its C4ISR proposal. Plaintiff posits that the agency awarded GDOTS a
strength for the number of hours it proposed for C4ISR installation, see Pl.’s Mot. 42;
defendant counters that a strength was awarded to GDOTS on the basis of its C4ISR
integration plan, see Def.’s Mot. 19.
While plaintiff acknowledges that portions of the evaluation notices for both
GDOTS and AMG addressed C4ISR integration, plaintiff contends that “AMG and
GDOTS received unequal treatment regarding installation time.” Pl.’s Reply 27.
Plaintiff proposed [XXX] hours for C4ISR installation, and received a weakness for its
34
proposal, with the agency criticizing AMG for hours that were “much lower than
expected.” Pl.’s Mot. 42 (citing AR Tab 59, at 52350). GDOTS meanwhile proposed
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX, but received a strength for
its proposal. See id. (citing AR Tab 59, at 52234).
Defendant responds that according to the solicitation requirements, “the agency
rated offerors on their approach to the entire integration process,” not the installation
efforts alone. See Def.’s Mot. 19. The integration process, explains defendant, is a
“much broader project” than the mere installation of the kit into the vehicle, and the
agency required offerors to “both account for the events leading up to the kit’s
installation . . . as well as events following that installation (such as testing of the kit to
ensure that it worked).” Id. (citing AR Tab 74.5, at 53202).
Review of the agency’s evaluation of GDOTS shows it awarded GDOTS a
strength for its understanding of the C4ISR integration requirements, not for the number
of hours it proposed for C4ISR installation. See AR Tab 59, at 52234. In the agency’s
initial evaluation of GDOTS, it assigned GDOTS a weakness for C4ISR integration, as it
found the XXXXXXXXXXXXXXXXXXXXXXXXXX, and the proposal failed to
provide sufficient information to demonstrate how XXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXX. Id. at 52236. In closing, the agency told
GDOTS, “[t]he proposal fails to demonstrate a clear methodology of the C4ISR
integration process which contributes a risk to C4ISR performance, integration, and
delivery.” Id.
GDOTS significantly improved its second proposal. The agency found the earlier
weakness had been resolved and awarded GDOTS a strength, as detailed below:
GDOTS’ [second proposal] demonstrated an outstanding approach to
addressing W-4 (C4ISR A-kit installation time), by detailing the level of
effort, down to the minute, that is occurring during the XXXXX that have
been allocated for C4ISR A-kit installation . . . . The new detail
significantly reduces the expected risk associated with C4ISR A-kit
installation. Additionally, GDOTS’ [second proposal] provides new detail
regarding the C4ISR A-kit subsystem assembly that is occurring at GDC4S
. . . This information explains that a XXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXX. The XXXXX is the time that GDLS requires
to install the C4ISR A-kit. GDOTS has an exceptional understanding of
the C4ISR integration requirements.
Id. at 52234 (emphasis added).
35
Plaintiff, by contrast, did not manage to improve its proposal, and received either a
significant weakness (for the second proposal) or a weakness (for the first, third and
fourth proposals) for C4ISR kit integration. See id. at 52345, 52348-50. In its fourth and
final proposal, plaintiff was unable still to resolve its weakness.
However, AMG has now provided additional detail regarding the C4ISR
integration effort; the Government still believes the total proposed labor
hours are insufficient. Although [XXX] hours of elapsed time may be
sufficient from a TPCP standpoint for the production line, other factors
must be considered when evaluating this schedule such as man hours (i.e.,
number of bodies employed on the effort) and methodology (e.g., use of
pre-fabrication methods, complexity of C4ISR integration effort,
production methods, etc.). Based on Government estimates and similar
FOSOV C4ISR integration efforts, [XXX] direct man hours and [XXX]
indirect man hours proposed per vehicle is much lower than expected.
Id. at 52350 (emphasis added).
On review of the record, the court finds that the agency did not award GDOTS a
strength for the number of hours it proposed for C4ISR installation.
Plaintiff also points to the last sentence of its the evaluation notice—[b]ased on
Government estimates and similar FOSOV C4ISR integration efforts— and claims that
the agency failed to hold GDOTS to this standard, as its evaluations included no such
reference. See Pl.’s Mot. 44 (citing AR Tab 59, at 52350).
Defendant points out that it was unnecessary to include such a statement in the
evaluation of GDOTS’s second proposal (its final evaluation of C4ISR integration),
because the agency no longer had a concern about the number of GDOTS’s proposed
labor hours. See Def.’s Reply 9 (citing AR Tab 59, at 52234). Defendant disputes the
charge of unequal treatment, and defends that evaluators may use their own experience
with similar types of efforts when analyzing proposals. See Def.’s Mot. 21.
The court finds the agency did not hold AMG to a different standard than GDOTS
in its evaluation of its proposal for C4ISR integration.
2. The Agency Used Evaluation Criteria Stated in the Solicitation
Plaintiff next asserts that the agency based W-25 on factors outside of those stated
in the solicitation. The solicitation authorized agency review of an offeror’s Time Phased
Critical Path (TPCP) to ensure that the offeror could meet the production schedule. See
36
Pl.’s Mot. 45-46. The evaluators explained their concerns about plaintiff’s time estimates
as follows:
Although [XXX] hours of elapsed time may be sufficient from a TPCP
standpoint for the production line, other factors must be considered when
evaluating this schedule such as man hours (i.e., number of bodies
employed on the effort) and methodology (e.g., use of pre-fabrication
methods, complexity of C4ISR integration effort, production methods,
etc.).
AR Tab 59, at 52350 (emphasis added).
Plaintiff attempts to draw a distinction between the solicitation’s requirement of
C4ISR integration and the agency’s interest in “methodology.” Pl.’s Mot. at 47 (citing
AR Tab 59, at 52350). Defining the term “integration” to mean “how to make something
a part of a larger thing,” plaintiff argues that this definition does not contemplate
methodology, and thus such consideration is beyond the scope of the solicitation criteria.
Id.
Plaintiff points to nothing in the solicitation that supports its narrow interpretation
of C4ISR integration. And its proposed interpretation is at odds with the agency’s
evaluation of plaintiff’s initial proposal, in which the agency found “[t]he proposal fails
to demonstrate a clear methodology of the C4ISR integration process which contributes a
risk to C4ISR performance, integration, and delivery.” AR Tab 59, at 52348 (emphasis
added). In its evaluation of plaintiff’s second proposal, the agency again found fault with
plaintiff’s methodology: “The proposal is incomplete and fails to demonstrate a clear
methodology and excludes important details of the C4ISR integration process which
represents a high risk to C4ISR performance, integration, and delivery.” Id. at 52345
(emphasis added).
Plaintiff’s effort to interpret a word in its final evaluation in such a way to suggest
the agency evaluated more than what was set forth in the solicitation evaluation criteria is
unavailing. The court finds that the agency’s evaluation of AMG was based on
evaluation criteria stated in the solicitation.
3. The Agency’s Evaluation Did Not Consider Financial Risk of
AMG’s Low Labor Estimates
Plaintiff argues that the agency unreasonably assessed AMG a weakness for
AMG’s labor estimate. Plaintiff observes that even if AMG’s labor estimate for the
C4ISR integration was low, the agency would have had no responsibility for any
additional labor costs. See Pl.’s Mot. 48. Plaintiff explained that “this work falls under
37
the fixed-price portion of the work,” thus the burden for any cost overruns would fall on
plaintiff, not the agency. Id.
Defendant responds that the agency’s evaluations went beyond assessing financial
risk to the agency. Defendant explained that the “risk that the agency was evaluating in
the technical evaluation was the risk that AMG could not deliver a successful technical
solution.” Def.’s Mot. 23. The risk the agency identified was AMG’s apparent failure
“to understand the complexity of the work required to integrate the C4ISR kit.” Id.
The agency’s evaluation of plaintiff’s sequential proposals reflects the agency’s
concern about plaintiff’s ability to deliver vehicles on time. In its evaluation of plaintiff’s
second proposal, the agency said, “[t]he proposal fails to demonstrate a clear
methodology of the C4ISR integration process which contributes a risk to C4ISR
performance, integration, and delivery.” AR Tab 59, at 52348 (emphasis added).
The court finds plaintiff’s argument to be unpersuasive.
4. The Agency Did Not Conduct Misleading Discussions with AMG
Plaintiff asserts that the agency failed to conduct meaningful discussions, as
required by FAR 15.306. See Pl.’s Mot. 48-50. Plaintiff claims that the agency failed to
inform AMG of the agency’s concerns beyond the number of installation hours. Plaintiff
complained that the agency’s reference to “other factors” in its final evaluation
represented a new concern. See id. at 49.
Defendant responds that the agency repeatedly informed plaintiff of its concerns.
See Def.’s Mot. 21-22.
The FAR dictates that after receipt of proposals, an agency must conduct
exchanges with offerors, and
[a]t a minimum, the contracting officer must . . . discuss with, each offeror
still being considered for award, deficiencies, significant weaknesses, and
adverse past performance information to which the offeror has not yet had
an opportunity to respond. The contracting officer also is encouraged to
discuss other aspects of the offeror’s proposal that could, in the opinion of
the contracting officer, be altered or explained to enhance materially the
proposal's potential for award. However, the contracting officer is not
required to discuss every area where the proposal could be improved. The
scope and extent of discussions are a matter of contracting officer
judgment.
38
FAR 15.306(d)(3) (emphasis added).
The agency identified a significant weakness in AMG’s second proposal. See AR
Tab 59, at 52345. That was the only proposal for which the agency was obligated to
provide plaintiff with discussion. The second evaluation notice to AMG was lengthy,
detailed and pointed. In relevant part, the agency said:
[t]he Government views this as highly risky considering this lack of detail.
The proposal is incomplete and fails to demonstrate a clear methodology
and excludes important details of the C4ISR integration process which
represents a high risk to C4ISR performance, integration, and delivery. . . .
The Government requests additional detail regarding the C4ISR A-kit
integration and testing efforts for LRIP and FRP vehicles. This effort is
expected to include A-kit testing (including CFE and GFE, pre- and post-
installation where appropriate), material fabrication/kitting as appropriate,
material installation for all kits, QA of installation, and Final Inspection
Record (FIR) and associated man hours.
Id.
Recent case law interpreting FAR 15.306(d)(3) suggests that the contracting
officer should give an offeror at least one meaningful opportunity to respond to a
significant weakness. “‘The substance of the requirement is that the protestor should be
given at least one meaningful opportunity to respond to significant weaknesses.’”
Sentrillion Corp. v. United States, 114 Fed. Cl. 557, 570 (2014) (quoting Orca Nw. Real
Estate Servs. v. United States, 65 Fed. Cl. 1, 9 (2005). However, an agency has no
obligation
to continually discuss a proposal’s shortcoming until the offeror hits on the
revision that responds to the agency's concerns—initial notice is sufficient.
The substance of the requirement is that the protestor should be given at
least one meaningful opportunity to respond to significant weaknesses.
Orca Nw. Real Estate, 65 Fed. Cl. at 9 (internal citation omitted).
Plaintiff can find no support in either FAR 15.306(d)(3) or the interpreting case
law for its complaint. On this record, the court cannot find that the agency failed to
communicate its concern to AMG about AMG’s proposal for C4ISR integration. Nor can
the court find that the agency conducted misleading discussions with AMG regarding its
C4ISR integration.
39
5. Conclusion
Plaintiff has failed to show that the agency’s assessment of Weakness-25 for
Capability Factor 1 (Production), Subfactor 1 (Production Approach) resulted from
unequal treatment, or was unreasonable, arbitrary and capricious.
C. The Agency’s Evaluation of Capability, Factor 2 (Technical)
AMG challenged the agency’s evaluation of its Factor 2 evaluation on five
separate points: Gross Vehicle Weight Rating, Antilock Braking System, Air
Transportability, Armor Kit Tools, and Human Factor Engineering. See Pl.’s Mot. 50-
63.
The court considers each challenge in turn.
1. The Agency’s Evaluation of Gross Vehicle Weight Rating;
Capability, Factor 2 (Technical), Subfactor 1 (Vehicle Performance)
Was Rational
Plaintiff asserts that the agency’s evaluation was arbitrary, capricious and
provided unequal treatment of offerors, in violation of FAR 15.306(e)(1). See Pl.’s Mot.
51-52. Plaintiff specifically complains that the agency engaged in unequal treatment of
offerors when it awarded GDOTS a strength for a performance criteria, Gross Vehicle
Weight Rating (GVWR)15, yet awarded AMG no strength despite, as plaintiff claims,
AMG’s superior proposal. See id. at 51.
Defendant responds that the agency correctly evaluated both offerors and that
GDOTS earned a strength based on the superior proposal it presented. See Def.’s Mot.
23-26. AMG provided only an adequate proposal, which did not merit a strength. See id.
at 25.
15
According to defendant, Gross Vehicle Weight Rating (GVWR) is “the total
weight that the vehicle’s load-bearing structures could carry.” Def.’s Reply 13. Load
bearing structures include, for example, “tires, wheels, axles, suspension frame.” AR Tab
29.4, at 5497. So, the higher the GVWR the better, as this represented more weight the
vehicle could bear.
40
a. The Position of the Parties Regarding the Agency’s
Evaluation of the Offerors’ Gross Vehicle Weight Rating
Plaintiff makes two arguments about the basis for the agency’s award of a strength
to GDOTS for its vehicle’s GVWR. First, plaintiff assumes the agency awarded GDOTS
a strength for simply exceeding the minimum GVWR, and argues that AMG should have
received a strength as well, because it also exceeded the minimum GVWR by a greater
number of pounds than did GDOTS. See Pl.’s Mot. 51.
Second, plaintiff complains that the agency awarded GDOTS a strength because of
the significant difference between its vehicle’s GVWR and its Gross Vehicle Weight16
(GVW), see id. at 51-52, with the difference being the amount of additional payload the
vehicle could carry. Plaintiff complains that such a determination went beyond the stated
solicitation evaluation criteria. See Id. at 52. Plaintiff asserts the agency should not have
awarded GDOTS a strength on this evaluation, without also awarding AMG a strength.
See id.
Defendant responds that the agency did not award any offeror a strength merely
for exceeding the minimum GVWR. See Def.’s Mot. 24. Rather, the agency awarded
GDOTS a strength for providing a vehicle with a significant difference between its
GVWR and GVW, which in this case, was [XXX] pounds. See id.
b. The Agency Did Not Award GDOTS a Strength Merely for
Exceeding the Minimum GVWR
As provided in the solicitation, “[t]he proposed vehicle Gross Vehicle Weight
Rating (GVWR) shall be evaluated to determine the risk of meeting a GVWR of greater
than 13,000 lbs.” AR Tab 74.5, at 53227 § M.3.2.2a.
As explained by the SSEB, a strength “is an aspect of an offeror’s proposal that
has merit or exceeds specified performance or capability requirements in a way that will
be advantageous to the Government during contract performance.” AR Tab 59, at 52129.
As defendant emphasized, GDOTS provided a vehicle that could carry [XXX] pounds of
additional payload, a technical capability that demonstrated to the agency a clear
understanding by the offeror of the need to adapt to different mission requirements. See
Def.’s Mot. 24.
16
Gross Vehicle Weight (GVW) included the vehicle, payload of the vehicle, crew,
and various equipment. See AR Tab 29.4, at 5497.
41
Review of the agency’s evaluation of GDOTS’s final proposal shows—
unmistakably—that the agency did not award GDOTS a strength merely for exceeding
the minimum GVWR. As the agency said,
GDOTS’ proposal demonstrates a superior understanding to more than
meeting the threshold GVWR requirement of greater than 13,000 lbs. with
a proposed GVWR of [XXX] lbs., which is [XXX] lbs. more than the
proposed Gross Vehicle Weight (GVW) of [XXX] lbs. and provides a clear
understanding of the need for the additional mission configurations to
accommodate configuration kits in addition to current high priority
configuration at GVW. Additional weight bearing capability exceeds the
weight of any one kit including armor that may need to be added to the
vehicle in order to meet specific mission requirements, and allows for
future vehicle weight growth.
AR Tab 59, at 52248 (emphasis added).
Relying on the fact that each offeror provided a vehicle exceeding the minimum
GVWR, plaintiff argues that the agency treated the offerors unequally when it awarded
GDOTS a strength, but failed to award AMG a strength. Plaintiff’s assertion cannot
stand on this record.
The court finds that the agency did not award GDOTS a strength for its Gross
Vehicle Weight Rating merely on the basis that it exceeded the minimum GVWR. The
strength was based on the difference between GDOTS’s proposed GVW and GVWR,
which would allow for superior weight bearing capability. The court now considers
whether the basis on which the agency awarded GDOTS a strength was outside of the
stated solicitation evaluation criteria.
c. The Agency’s GVWR Evaluation Was Within the Solicitation
Evaluation Criteria
Plaintiff contends that defendant’s explanation for the agency’s award of a
strength to GDOTS, on the basis of the additional [XXX] pounds the vehicle could carry,
was “moving the goalposts.” See Pl.’s Reply 33. Plaintiff argues that because the
solicitation did not expressly state that the agency would consider how much additional
weight the vehicle could carry, that is, the difference between GVWR and GVW, the
agency was not permitted to evaluate offerrors on this point and thus, should not have
awarded GDOTS a strength for it. See id. at 33-34.
Plaintiff relies on Norsat International for the proposition that an agency may not
award a strength for criteria that are not included in the solicitation. See Pl.’s Reply 33
42
(citing Norsat Int’l [Am.], Inc. v. United States, 111 Fed. Cl. 483,499 (2013)). But,
plaintiff’s reliance on Norsat International is misplaced. The court in Norsat
International found that the agency had improperly awarded an offeror a strength for “an
item it proposed for the future but was not part of its current proposal.” Norsat Int’l, 111
Fed. Cl. at 499. The concern addressed in that case is not present here. In this case,
GDOTS proposed only what it intended to provide in its current proposal.
Defendant drew the court’s attention to more apposite authority, stating that “a
solicitation need not identify each element to be considered by the agency during the
course of the evaluation where such element is intrinsic to the stated factors.” Def.’s
Reply 14 (quoting Banknote Corp. of Am. v. United States, 56 Fed. Cl. 377, 387 (2003),
aff’d, 365 F.3d 1345 (Fed. Cir. 2004)).
The agency defined the vehicle Mission for the offerors:
The GMV will be a standardized Special Operations combat vehicle with
the operational flexibility to support the Special Operations Forces core
activities of Direct Action . . ., Special Reconnaissance . . ., Unconventional
Warfare . . ., Counterterrorism . . ., Security Force Assistance . . . and
Counterinsurgency . . . Operations. In order to perform these multiple
missions, it is required that all GMV be reconfigurable to meet all mission
requirements.
AR Tab 32, at 5825.
The GVWR was the stated factor for the agency’s evaluation—that is, the agency
needed to know whether the proposed vehicle’s support systems could carry at least
13,000 pounds. The agency seeks to procure a vehicle upon which the military will
depend to perform in a variety of situations. The more pounds that could be devoted to
additional payload, as opposed to the GVW itself, the better. Quite simply, the more the
vehicle can carry, the more it can do, and the more it can do, the better for the agency.
The court finds that a determination of the difference between the vehicle’s gross
vehicle weight rating and its gross vehicle weight, that is, the amount of weight available
for additional payload, is an intrinsic consideration when evaluating a vehicle’s gross
vehicle weight rating.
d. Conclusion
Plaintiff has failed to show that the agency’s evaluation of its gross vehicle weight
rating was arbitrary or capricious. Plaintiff also has failed to show that the agency treated
the offerors unequally, and thus, there is no violation of FAR 15.306(e)(1). In addition,
43
plaintiff has failed to show that the agency’s evaluation of the offerors’ gross vehicle
weight rating were outside of the solicitation evaluation criteria.
2. The Agency’s Evaluation of Anti-lock Brake System: Capability,
Factor 2 (Technical), Subfactor 1 (Vehicle Performance) Was
Rational
Plaintiff asserts that the agency’s evaluation of its anti-lock brake system (ABS)
was arbitrary and capricious and deviated from the solicitation’s evaluation criteria. Pl.’s
Mot. 52. The agency assessed a weakness because plaintiff’s proposal “failed to describe
how the ‘off-road surfaces’ calibrations [it provided] correlate[d] to the cross country
mission profile” of the vehicle. AR Tab 59, at 52366. Plaintiff asserts that its vehicle
complied with the solicitation criteria, as (1) it included an anti-lock brake system, and
(2) the solicitation evaluation criteria did not require the testing the agency specified in
the weakness. See Pl.’s Mot. 52-54.
Defendant responds that the solicitation required both that the vehicle have an
anti-lock brake system, and that offerors “demonstrate that those configurations would
actually work.” Def.’s Mot. 26. It was the absence of data in AMG’s proposal showing
that its proposed anti-lock brake system “would function over the defined terrain . . . that
led the evaluation team to assign AMG a weakness on its anti-lock brake design.” Def.’s
Reply 17.
Review of the record shows that notwithstanding AMG’s assertion during this
protest that it was not required to provide testing to demonstrate how its anti-lock brakes
performed on terrain according to the vehicle’s mission profile, AMG understood that the
agency wanted this data and thus made, at least, a facial attempt to provide it. See Pl.’s
Reply 35-37. AMG says that in its final proposal it “submitted [an] “AMG Slip Control
Off Road Calibration Report 2013” and informed [the agency] that this test report
“describes ABS performance over cross country terrain. This report also provides
sufficient information to demonstrate braking over the complete [vehicle] Mission
profile.” Id. (citing AR Tab 46.2, at 43475, 43503, 43631, 44273-74). Further review of
AMG’s final proposal shows that in describing its off-road calibration efforts, AMG took
the position that “[t]he mission profile of vehicles receiving this ABS includes more
demanding off-road surfaces that require unique solutions to ensure satisfactory
performance.” AR Tab 46.2, at 44273. It is apparent that in its final proposal, AMG
clearly was focused on providing data consistent with the vehicle’s mission profile.
Defendant explains that the problem with AMG’s proposal was that “nowhere
[did] AMG define the specific mix of surfaces that comprised [the] ‘cross country
terrain,’ nor [did] AMG provide other data to correlate that terrain to the actual mix of
environments defined in the [vehicle] mission profile.” Def.’s Reply 17. Defendant
44
reviews the cited pages of AMG’s final proposal and states that none “provides a
technical description about the surfaces that AMG used,” nor did AMG “describe the
terrain mixes.” Id. (citing AR Tab 46.2, at 43475, 43503, 43631, 44273-74).
Review of the cited pages in AMG’s final proposal shows that defendant is
correct. Beyond the conclusory labels—off-road and cross country terrain—AMG
provided no indication of the type of terrain over which it conducted tests on its anti-lock
braking system.
Nevertheless, the claim plaintiff makes now is that under the solicitation criteria, it
was not required to provide test results for cross country terrain. If plaintiff’s claim is
correct, the fact that it tried, but failed, to provide this information would be immaterial.
Accordingly, the court considers whether the solicitation evaluation criteria required an
offeror to demonstrate the ability of its anti-lock braking system to perform over cross
country terrain.
a. The Solicitation’s Evaluation Criteria Required that Offerors
Demonstrate ABS Requirements
AMG argues that no “provision in the RFP require[s] offerors to submit data
regarding how their proposed antilock brake systems (“ABS”) performed over terrain
specifically matching the [vehicle’s] ‘mission profile.’” Pl.’s Reply 34. Rather, plaintiff
argues, it had only to comply with the requirements of PSpec 3.4.23, which was silent
regarding testing on cross country terrain. See Pl.’s Mot. 52.
Defendant points out that the solicitation includes additional provisions with
which an offeror must comply. When such provisions are taken together with PSpec
3.4.23, the solicitation requires an offeror to submit data demonstrating how its proposed
systems functioned over the defined terrain. See Def.’s Mot. 26-27; Def.’s Reply 16-17.
PSpec 3.4.23 provides that “[t]he vehicle shall have service brakes, parking
brakes, emergency brakes, and anti-lock brakes.” AR Tab 29.3, at 4250. The
requirements for PSpec 3 (of which subsection PSpec 3.4.23 is a part) included that “[t]he
systems, in any configuration, shall be capable of operating on primary and secondary
roads, off-road, on trails, and shall meet all mobility parameters of this specification and
all prescribed environments.” Id. at 4242.
Defendant asserts that the solicitation informed offerors that in evaluating the
vehicle performance subfactor, the agency would require offerors to demonstrate that
their vehicle configurations worked. See Def.’s Mot. 26 (citing AR Tab 74.5, at 53221,
53231).
45
The proposal will be evaluated to determine the extent to which the “Top 5
Key Performance Requirements” meet or exceed threshold and objective
requirements. The proposal will be evaluated to determine the extent to
which it demonstrates the Offeror’s technical ability and approach to any
non-compliant “Top 5 Key Performance Requirements,” and has a suitable
solution supported by explicit details and analysis with minimal risk and
impact on program performance, cost, and schedule elements.
AR Tab 74.5, at 53231. Braking was included in the Top 5 Key Performance
Requirements. See id. at 53228 § M.3.2.2b.
And finally, in Annex E to the Performance Specification, the solicitation
provided guidance on mission terrain profile. See AR Tab 29.4, at 5426-30. The mission
profile provided detailed descriptions of the terrain over which the vehicle was expected
to travel, including primary roads, secondary roads, trails and cross-country surfaces,
notably, the same surfaces listed in PSpec 3. See id. at 5429 § 1.2.2. The agency
estimated that 70% of travel would be on unimproved surfaces (30% over trails and 40%
over cross-country), and 30% over improved surfaces (primary and secondary roads).
See id.
Cross-country terrain, the type of terrain over which it was estimated the vehicle
most often would travel, was defined as not being subject to repeated traffic, and possibly
consisting of “tank trails with crushed rock or having large exposed obstacles (rocks,
boulders, etc.), but there are no roads, routes, well-worn trails, or man-made
improvements. Id. This includes, but is not limited to, flat desert, marshes, vegetated
plains, jungle, dense forest, mountains, and urban rubble.” Id.
A court “must consider the solicitation as a whole, interpreting it in a manner that
harmonizes and gives reasonable meaning to all of its provisions.” Banknote, 365 F.3d at
1353; see also NVT Techs., 370 F.3d at 1159 (“An interpretation that gives meaning to
all parts of the contract is to be preferred over one that leaves a portion of the contract
useless, inexplicable, void, or superfluous.”). And reviewing courts give the greatest
deference possible to determinations on technical matters, in recognition of the special
expertise of procurement officials. See E.W. Bliss Co., 77 F.3d at 449; J.C.N. Constr.,
107 Fed. Cl. at 509-510; Beta Analytics Int’l, 67 Fed. Cl. at 395.
Despite plaintiff’s attempt to portray PSpec 3.4.23 as something akin to an
isolated, self-standing requirement, the solicitation simply cannot be read in such manner.
The requirements for PSpec 3 clearly apply to PSpec 3.4.23, and thus, provide that the
anti-lock braking system must “be capable of operating on primary and secondary roads,
off-road, [and] on trails.” AR Tab 29.3, at 4242. Annex E to the Performance
Specification provides a specific description of these types of terrain. As might be
46
expected, the solicitation provides that offerors must demonstrate compliance with
requirements. See AR Tab 74.5, at 53231.
Consideration of the solicitation as a whole compels the court to find that the
agency’s requirement that AMG demonstrate the ability of its anti-lock braking system to
perform over cross country terrain was not outside of the stated solicitation criteria.
b. The Agency’s Evaluation Notices Regarding Mission Profile
Testing
AMG also complains that the agency’s evaluation represented “goalpost-moving,”
with the agency telling AMG, only after it submitted its fourth and final proposal, that it
“wanted something different—proof of testing over the specific GMV 1.1 mission
profile.” Pl.’s Reply 37. AMG suggests that this notice was the first it had heard of the
mission profile standard. But review of the evaluation notices the agency issued AMG
yields evidence to the contrary.
The agency assessed AMG with either a significant weakness or weakness for its
anti-locking brake system on each of its four proposals. AMG received a significant
weakness on its initial proposal, see AR Tab 59, at 52361-62, which was mitigated to a
weakness after its second proposal, see id. at 52365. This weakness, W-18, remained
unresolved throughout the process of evaluating AMG’s third and fourth proposals. See
id. at 52366.
In its evaluation of the second proposal in particular, the agency noted that “AMG
provided insufficient details of the ABS functionality in order to determine impact to
vehicle off-road performance which accounts for a majority of the GMV 1.1 Mission
Profile.” Id. at 52365. The agency expressly questioned AMG about “[w]hat additional
specific details does AMG have on the integration and functionality of the proposed ABS
onto GMV 1.1 over the vehicle[’]s mission profile with special emphasis on any testing
and/or modeling and simulation to validate this solution and any associated cost and
schedule impacts?” Id. at 52366.
In its third proposal, AMG provided test results including the performance of the
ABS over several types of terrain not included in the mission profile, while failing to
provide test results for performance over cross country terrain, which the agency said
“makes up a considerable percentage of the GMV 1.1 mission profile.” Id. The agency
found that Weakness-18 remained, as AMG had “failed to provide sufficient information
to demonstrate an adequate approach to braking over the complete GMV 1.1 Mission
Profile.” Id.
47
The evaluation notices show that the agency repeatedly told AMG that it needed to
demonstrate performance on the mission profile terrain, well before the final proposal.
c. Conclusion
Plaintiff has failed to show that the agency’s evaluation of its anti-lock brake
system (ABS) was unreasonable, arbitrary or capricious, or deviated from the
solicitation’s evaluation criteria.
3. The Agency’s Evaluation of Air Transportability Requirement;
Capability, Factor 2 (Technical), Subfactor 1 (Vehicle Performance)
Was in Error
Plaintiff asserts the agency acted arbitrarily and capriciously and deviated from the
solicitation’s evaluation scheme, when it assessed AMG a weakness for failing to meet a
configuration requirement for Internal Air Transportability (IAT) in a cargo helicopter.
See Pl.’s Mot. 56. In its final evaluation, the agency said AMG failed to meet the
requirement that wheel weight17 not exceed 2500 pounds. See AR Tab 59, at 52369-70.
AMG contends that this requirement is inconsistent with the solicitation evaluation
criteria, and that in any event, its proposal met the requirement. See Pl.’s Mot. 56.
Defendant responds that the wheel weight requirement was included in the
solicitation, as supplemented by a clarification letter. See Def.’s Mot. 28-29. Defendant
also challenges plaintiff’s claim that AMG’s vehicle actually met the requirement. See
Def.’s Mot. 29.
The dispute between the parties concerning the weakness assessed against AMG
on this subfactor centers on the impact the clarification letter the agency issued in
February 2013 had on the agency’s Internal Air Transportability requirements.
a. Solicitation Evaluation Criteria
The solicitation provided that the agency would evaluate each offeror under the
Vehicle Performance Subfactor on what the agency termed the “Top 5 Key Performance
Requirements” (KPRs). AR Tab 74.5, at 53227 § M.3.2.2. The agency told offerors that
it would evaluate offerors under this subfactor on only the KPRs. See AR Tab 30, at
5600 (Q1). Plaintiff contends that offerors were permitted to tradeoff such compliance
17
Wheel weight is the weight of the vehicle, including equipment and personnel,
divided by the number of wheels. See Def. Mot. 28.
48
with alternate performance specifications that were not KPRs to “meet other objectives
without penalty.” Pl.’s Mot. 57.
The KPRs included Transportability. This performance requirement included the
government’s evaluation of whether the proposed vehicle would be internally air
transportable in a helicopter, according to PSpec 3.4.39a. See AR Tab 74.5, at 53227
§ M.3.2.2a.
PSpec 3.4.39a states: “[t]he [vehicle] at [Critical Flight Vehicle Weight (CFVW)]
shall be internally air transportable (IAT) by [helicopter] in accordance with MIL STD
1366.” AR Tab 29.3, at 4254. MIL-STD-1366 was the Department of Defense Interface
Standard for Transportability Criteria. See id. at 4170-71. The solicitation stated that
compliance with this performance standard was mandatory. See id.
In the subsection listing “Internally Transportable” specifications, in addition to
PSpec 3.4.39a, there were two other performance specifications, PSpec 3.4.39b-c. Id. at
4254. PSpec 3.4.39b required that the vehicle be internally transportable for a 100
nautical mile radius, id., and is not at issue here. PSpec 3.4.39c required that the vehicle
“wheel weight shall not exceed 2,500 lbs at CFVW.” Id.
The agency sent offerors, including AMG, a post-discussion letter on February 1,
2013. See AR Tab 68.2, at 52650. The agency told offerors, “[t]his letter serves as
notice for general clarification,” for submission of the offerors’ second proposal, required
by February 19, 2013. Id. The agency provided several clarifications, one of which was
for internal transportability:
The Government provides the following clarification on axle loading for
Internal Air Transportable in the [helicopter]:
The requirement for wheeled vehicles loaded internally and
positioned on the [helicopter] treadway is to be positioned on the
treadway with a max uniformly distributed load over limited area of
[one] square foot or max load per wheel of 2500 lbs.
Id. at 52651 (formatting omitted) (emphasis added).
b. The Wheel Weight Requirement is Part of PSpec 3.4.39c, Not
PSpec 3.4.39a
The issue presented by the parties is how to read the February 2013 letter in
conjuction with PSpec 3.4.39a and PSpec 3.4.39c. It is noted that although defendant
asserts the February 2013 letter supplemented the evaluation criteria, see Def.’s Mot. 28,
49
the February 2013 letter expressly states the agency is providing a clarification; the letter
says nothing of supplemented evaluation criteria, see AR Tab 68.2, at 52651.
To be clear, the issue is not whether the agency may impose a wheel weight
requirement on offerors. It may, and it did. The issue is whether the wheel weight
requirement the agency imposed in its clarification is properly read as part of PSpec
3.4.39a or PSpec 3.4.39c.
This is a matter of solicitation interpretation which is a question of law for the
court. See Banknote Corp. of Am., 365 F.3d at 1353; see also Contract Servs., 104 Fed.
Cl. at 274. “The principles governing interpretation of Government contracts apply with
equal force to the interpretation of solicitations issued by the Government for such
contracts.” Banknote, 365 F.3d at 1353 n.4. A court must “consider the solicitation as a
whole, interpreting it in a manner that harmonizes and gives reasonable meaning to all of
its provisions.” Banknote, 365 F.3d at 1353; see also NVT Techs., 370 F.3d at 1159(“An interpretation that gives meaning to all parts of the contract is to be preferred over
one that leaves a portion of the contract useless, inexplicable, void, or superfluous.”).
Plaintiff argues that review of the performance specifications shows that the
agency included the wheel weight requirement in only PSpec 3.4.39c. See Pl.’s Mot. 56-
57. Plaintiff argues that “by setting forth the 2,500 lbs./wheel standard in a stand-alone
PSpec provision (3.4.39.c), and conspicuously omitting that provision from the list of
‘Top 5 Key Performance Requirements,’ the agency clearly conveyed that compliance
with the 2500 pounds per wheel standard was not to be evaluated.” Id. at 57-58.
Defendant responds that the February 2013 letter provided a supplemental
requirement that “made clear what its requirements for air transportability would be.”
Def.’s Mot. 29. Defendant offered further explanation in its reply, explaining that MIL-
STD-1366, expressly incorporated into PSpec 3.4.39a, “requires that vehicles have load
of 2,500 pounds per square foot,” which some offerors found inconsistent with an axle-
loading requirement provided elsewhere in the solicitation. Def.’s Reply 19. Defendant
does not explain what it meant by an “axle loading” requirement, and the court is unable
to discern whether this is a reference to PSpec 3.4.39c. In any event, defendant asserts
the February 2013 letter clarified an ambiguous requirement. Id.
In its argument, defendant focuses on the general point that the February 2013
letter clarified the wheel weight requirement, without addressing the specific point of
why the better reading of the solicitation is that the February 2013 letter supplemented
PSpec 3.4.39a, rather than eliminated an ambiguous provision in PSpec 3.4.39a (as
incorporated through MIL-STD-1366) and thus left PSpec 3.4.39c as it first appeared.
50
The February 2013 letter did clarify the agency’s “air transportability”
requirements, but the letter made no reference to any performance specification. Nor did
the letter reference any change, or supplementation, of the Top 5 KPRs. The solicitation
itself included three separate performance specifications addressing “Internally
Transportable” requirements, PSpecs 3.4.39a-c, yet only the first was a KPR. See AR
Tab 29.3, at 4254; Tab 74.5, at 53227. Defendant’s simple assertion that the February
2013 letter supplemented air transportability requirements is insufficient to show that it
supplemented PSpec 3.4.39a.
Defendant’s interpretation of the solicitation evaluation criteria does not persuade
the court. The plain text of the solicitation provides that the wheel weight requirement is
part of PSpec 3.4.39c. Defendant’s explanation that the February 2013 letter clarified the
ambiguous provision in MIL-STD-1366—requiring vehicles to have load of 2,500
pounds per square foot—can be interpreted reasonably as the agency’s elimination of this
requirement, in favor of the wheel weight requirement already set forth in the solicitation
at PSpec 3.4.39c.
Defendant’s interpretation of PSpec 3.4.39a and PSpec 3.4.39c would render the
latter performance specification useless and superfluous. The only requirement in PSpec
3.4.39c is that “wheel weight shall not exceed 2,500 lbs at CFVW.” If this requirement
was now read into PSpec 3.4.39a, then PSpec 3.4.39c serves no purpose.
c. Conclusion
The court finds that the requirement that wheel weight not exceed 2,500 pounds
was included in PSpec 3.4.39c, not PSpec 3.4.39a. The Top 5 Key Performance
Requirements for this vehicle performance subfactor do not include PSpec 3.4.39c. As
the agency committed that it would not evaluate offerors on requirements outside the Top
5 Key Performance Requirements, the agency’s evaluation of plaintiff on the wheel
weight requirement was outside of the stated solicitation evaluation criteria. Thus, it is
unnecessary to reach plaintiff’s alternative argument that it actually complied with the
requirement.
The court finds the agency was in error in assigning plaintiff Weakness-27 for
Capability, Factor 2 (Technical), Subfactor 1 (Vehicle Performance).
51
4. The Agency’s Evaluation of Armor Kit Tools: Capability, Factor 2
(Technical), Subfactor 2 (Systems Integration/Engineering) Was
Rational
Plaintiff asserts that the agency’s evaluation of its Armor Kit Tools was arbitrary,
capricious and deviated from the solicitation’s evaluation criteria.18 Pl.’s Mot. 58-60.
The agency assessed a weakness because AMG did not “specify the weight and ‘space
claim’ (i.e. size) of the tools necessary to allow in-field removal of the ‘B-kit’ armor.”
Id. 58-59 (citing AR Tab 112.4, at 54122). AMG characterizes this as a trivial issue, not
deserving of a weakness. See id. 59.
Defendant responds that AMG simply failed to provide the information the agency
needed to “determine whether AMG’s proposal increased the risk of the proposed
solution,” and thus assessed a weakness. Def.’s Mot. 33.
The agency defended that it conducted its evaluation in accordance with
§ M.3.2.2.2.b of the solicitation, see AR Tab 59, at 52372, which directs that its
assessment would include the following elements:
[t]he Government shall evaluate armor mounting procedures, ease of
installation, tooling required to integrate armor, and time and expertise
required to integrate armor. The proposal will be evaluated to determine
the extent to which the proposal demonstrates the Offeror[’]s technical
ability and approach to integrating the weapons . . . .
AR Tab 74.5, 53231 § M.3.2.2.2.b (emphasis added).
The agency issued AMG evaluation notices on this weakness, W-22, for its last
three proposals. See AR Tab 59, at 52372-73. (AMG’s initial proposal received a
significant weakness. See id. at 52371.) In evaluating AMG’s second proposal, the
agency directed AMG to: “[P]rovide specific details to validate the armor kit installation
claim. This should include the expertise/number of operators, time, the tools and
equipment required to install the armor kit and which of these tools and equipment are
included in the vehicle BII.” Id. at 52373 (emphasis added). In its evaluation of AMG’s
third proposal, the agency found that “the proposal indicates that the General Mechanics
Tool Kit (GMTK) is not part of the proposed vehicle BII, as required to install the armor
B-kit. AMG fails to demonstrate an adequate approach to meeting the PSpec requirement
for installing and removing kits with the vehicle BII, which attributes additional field
performance risk to the program.” Id. at 52373 (emphasis added).
18
Both parties limited their argument on this point to their opening briefs. See Pl.’s
Reply 44 n.17; Def.’s Reply 13 n.7.
52
In its final proposal, plaintiff explained why it included an additional set of eleven
tools in its vehicle:
[t]he tools required for B-kit Armor installation are common hand tools
available to US service personnel in the General Mechanics Tool Kit
(GMTK). The GMTK may not always be available in all field mission
conditions, and the tools listed in Figure AZ [the eleven tools] are not part
of the standard required BII. Therefore, we made a trade to include the
tools as part of the B-kit.
AMG believes that the approach does not attribute additional field
performance risk to the program. The tools required to attach the armor
will be supplied as part of the B-Kit. Once the B-Kit is installed on the
vehicle, these tools will be stored in the vehicle tool box. These tools will
always be available for service of the kit. These tools will remain with the
B-Kit when it is removed from the GMV 1.1.
AR Tab 46.2, at 43802 .
The agency’s evaluation of AMG’s final proposal on this subfactor resulted in a
finding of weakness, as follows:
AMG has proposed that the tools required for armor installation will be
included as part of the Crew Protection Kit, and can be stored in [the]
vehicle tool box; however AMG failed to identify the weight of the tools
required or validate that the vehicle tool box has sufficient space claim to
accommodate those tools which now includes tooling above and beyond the
vehicle BII requirement.
AR Tab 59, at 52373 (emphasis added).
Although plaintiff claims the weakness fell outside of the specified evaluation
criteria, see Pl.’s Mot. 60, the agency had specified that its evaluation of this subfactor
would include “armor mounting procedures. . . [and] tooling required to integrate armor,”
AR Tab 74.5, at 53231 § M.3.2.2.2.b (emphasis added).
Defendant points out that in its motion, plaintiff provided additional information
about its tools that was absent from its proposal. See Def.’s Mot. 32. In its motion,
plaintiff said that its additional tooling, the eleven tools, “weigh[s] less than 10 pounds,”
and that the vehicle tool box can accommodate them. Pl’s. Mot. 59. But without
sufficient information in AMG’s proposal about its tools, defendant observed, the agency
53
simply was not able to determine whether AMG’s proposal increased the risk of the
proposed solution. See Def.’s Mot. 33. Hence, it still assessed a weakness. Id.
Reviewing courts give the greatest deference possible to these determinations on
technical matters, in recognition of the special expertise of procurement officials. See
E.W. Bliss Co., 77 F.3d at 449; J.C.N. Const., 107 Fed. Cl. at 510 (same); Beta Analytics
Int’l, 67 Fed. Cl. at 395 (same).
It is clear from the record that the agency repeatedly directed AMG to provide
more information about its tool kit. While AMG looks upon the issue as “trivial,” Pl.’s
Mot. 59, its challenge simply reflects its disagreement with the agency. The law provides
that “an offeror’s mere disagreement with the agency’s judgment concerning the
adequacy of the proposal is not sufficient to establish that the agency acted
unreasonably.”’ Banknote Corp. of Am., 56 Fed. Cl. at 384 (internal quotation marks
omitted).
The court finds that the agency’s evaluation of plaintiff’s tool kit for armor
installation did not extend beyond the stated criteria. Plaintiff has failed to show that the
agency’s evaluation was unreasonable, arbitrary or capricious.
5. The Agency’s Evaluation of Human Factor Engineering: Capability, Factor 2
(Technical), Subfactor 1 (Vehicle Performance) Was Rational
Plaintiff asserts that the agency’s evaluation of its human factor engineering was
arbitrary and capricious when it assigned a weakness based on plaintiff’s failure to meet
five clearance requirements inside the vehicle for 98th percentile males. See Pl.’s Mot.
61-63. Plaintiff asserts that the agency measured its vehicle against clearance standards,
known as MIL-STD-1472, which were not specified in the solicitation, and that
regardless, plaintiff’s vehicle met the specified requirement that it “permit utilization” by
a 98th percentile male. See id. at 61-62.
Defendant responds that the solicitation did set forth MIL-STD-1472 as the
mandatory standard, the agency uniformly evaluated all offerors against this standard,
and the agency correctly found that plaintiff’s vehicle fell short of the required clearances
on five dimensions. See Def.’s Mot. 30-32. Defendant further argues that to the extent
there was any ambiguity in the solicitation, it was a patent ambiguity, and as plaintiff
asked for no clarification, any ambiguity must be interpreted against plaintiff. See Def.’s
Reply 22.
The court first considers whether MIL-STD-1472 was incorporated in the
solicitation, and if so, whether the agency’s assessment of a weakness was arbitrary and
capricious.
54
a. The Parties’ Arguments Regarding the Solicitation Criteria
The solicitation included both a Statement of Work (SOW) and a Performance
Specification (PSpec). See AR Tab 74.5, at 53088 ¶ 11; 53146, 55676 ¶ B.1. The SOW
set forth detailed work efforts required to provide the agency with the vehicle. See AR
Tab 29.3, 4165 ¶ 1.1. It also included a list of “Military Standards and Specifications –
Mandatory Compliance,” which was a list of various standards and specifications,
including the one at issue here, MIL-STD-1472 Human Engineering. Id. at 4168. The
PSpecs set forth detailed vehicle performance requirements. See AR Tab 29.3, 4242 ¶ 3.
The agency evaluated human factor engineering according to PSpec 3.1.1.a. See AR Tab
59, at 52364.
Defendant asserts that by “listing the specification under this ‘Mandatory
Compliance’ heading, the solicitation made clear that all aspects of the proposal were to
be held to that specification’s requirements.” Def.’s Mot. 30.
Plaintiff states that PSpec 3.1.1.a set forth another standard, known as the
NATICK report, and did not expressly reference MIL-STD-1472. See Pl.’s Mot. 61.
PSpec 3.1.1.a provides that “[t]he [vehicle] must be engineered to permit utilization by
[a] 5th to 98th percentile male [in accordance with] NATICK report.” AR Tab 29.3, at
4243.
Plaintiff contends that the mandatory compliance reference to MIL-STD-1472 in
the SOW is “insufficient to establish that it was to be used to evaluate PSpec 3.1.1.a.”
Pl.’s Reply 43 n.16. Plaintiff asserts, without furnishing examples, that the solicitation
was filled with requirements that were not part of the evaluation process. See Pl.’s Reply
43 n.16.
Plaintiff conceded that the NATICK report provided no “clearance distances that
allow one to determine whether a vehicle ‘permits utilization’ by a 98th percentile male.”
Pl.’s Mot. 61. Plaintiff explained that because it did not read the solicitation to provide
mandatory clearance distances, it opted to demonstrate compliance with the PSpec 3.1.1.a
standard by using certain clearances provided in MIL-STD-1472F19 intended to
accommodate “a 95th percentile soldier dressed in Arctic clothing.” Pl.’s Mot. 62.
Plaintiff asserts that in using this standard, its vehicle “meets the PSpec requirement that
the vehicle ‘permit utilization’ by a 98th percentile male.” Pl.’s Mot. 62.
19
The SOW directed that the “most recent revision of the MIL-STD-1472 at the time
of the final RFP shall be used.” See AR Tab 29.3, at 4170 § 2.0. Revisions are noted by
a letter suffix, for example MIL-STD-1472F. There is no significance to references with
or without the suffix.
55
Defendant asserts that MIL-STD-1472 was referenced throughout the solicitation,
“instructing offerors to design their vehicle based on the 5th-to-98th percentile
parameters that the military standard set out.” Def.’s Mot. 31. Defendant points to the
SOW:
3.5.2 Human Factors Engineering. . . . The Contractor shall identify and
execute Human Factors Engineering (HFE) tasks, according to the Human
Engineering Program Plan, to ensure that all systems will be designed to
account for human capabilities and limitations and shall design systems,
equipment, and user interfaces in compliance with established design
standards (e.g., MIL-STD-1472F(1)).
AR Tab 29.3, at 4193.
b. Legal Standards Governing Ambiguity
A court must “consider the solicitation as a whole, interpreting it in a manner that
harmonizes and gives reasonable meaning to all of its provisions.” Banknote, 365 F.3d at
1353. “A contract is ambiguous if it is susceptible of two different and reasonable
interpretations, each of which is found to be consistent with the contract language.”
Community Heating & Plumbing, 987 F.2d at 1578-79; see also C. Sanchez and Son, 6
F.3d at 1544 (same). “An ambiguity is latent if it is not apparent on the face of the
solicitation and is not discoverable through reasonable or customary care.” Linc Gov’t
Servs., 96 Fed. Cl. at 708. “A patent ambiguity is present when the contract contains
facially inconsistent provisions that would place a reasonable contractor on notice and
prompt the contractor to rectify the inconsistency by inquiring of the appropriate parties.”
Stratos Mobile Networks, 213 F.3d at 1381. Such an ambiguity is “obvious, gross, or
glaring.” Archura LLC, 112 Fed. Cl. at 500 (citing Fulcra Worldwide, 97 Fed. Cl. at 538;
H & M Moving, 499 F.2d at 671).
In the circumstance of a patent ambiguity, defendant explains, plaintiff must have
sought clarification during the solicitation process, see Def.’s Reply 22 (citing Blue &
Gold, 492 F.3d at 1313), and as plaintiff failed to do so, the court must reject plaintiff’s
proposed construction, see id. (citing Linc Gov’t Servs., 96 Fed. Cl. at 708).
c. The Solicitation Criteria Include Mandatory Compliance with
MIL-STD-1472
The agency’s direction to offerors regarding “Mandatory Compliance” with MI-
STD-1472 was emphasized in text that was bolded and underlined and set out in a
heading. AR Tab 29.3, at 4170 ¶ 2.1 (“Military Standards and Specifications –
56
Mandatory Compliance.”). Plaintiff’s unsupported assertion that the solicitation was
filled with requirements that were not part of the evaluation process is unpersuasive. See
Pl.’s Reply 43 n.16. The court gives the term “mandatory compliance” its plain and
ordinary meaning. See Coast Fed. Bank, FSB v. United States, 323 F.3d 1035, 1040-41
(Fed. Cir. 2003) (en banc) (“If the provisions are clear and unambiguous, they must be
given their plain and ordinary meaning . . . .”) (citation omitted).
Plaintiff acknowledged that it found no clearance standards in the NATICK report,
and resorted to a work-around solution by using MIL-STD 1472F standards for “a 95th
percentile soldier dressed in Arctic clothing.” Pl.’s Mot. 62. Plaintiff does not suggest
that the MIL-STD 1472F failed to provide relevant clearance standards. Nor does
plaintiff explain how in using the MIL-STD 1472F, as the agency intended, it failed to
locate the clearances the agency intended for it to use.
If, in fact, neither the NATICK report nor the MIL-STD 1472F provided
clearances for a 98th percentile male, despite the fact that the agency expressly cited to
both for use in human factor engineering, that would be a glaring, obvious omission of
the type requiring an offeror to seek clarification from the agency. But, here, plaintiff did
not seek such clarification.
Because the SOW was part of the solicitation, and because the agency expressly
directed mandatory compliance with MIL-STD-1472 in the SOW, the court finds that
MIL-STD-1472 was incorporated into the solicitation, without ambiguity. If, however,
the court were to have found the solicitation to be ambiguous, the court also would have
found that such ambiguity was patent.
d. The Agency’s Assessment of a Weakness Was Rational
It is undisputed that plaintiff did not fully comply with the standards in PSpec
3.1.1a. Defendant identified five dimensions in which plaintiff fell short. See AR Tab
59, at 52365. Plaintiff disputes three of them, but concedes that it failed to meet two
dimensions. See Pl.’s Reply 44 (“AMG’s vehicle meets the MIL-STD-1472 guidelines
for all but two of the dimensions . . . when holding a 98th percentile male.”) Plaintiff
asserts, however, that the shortcomings were “very small variances,” see Pl.’s Mot. 62,
which are “operationally insignificant,” Id. 63. Plaintiff contends that it showed the
agency how its vehicle would permit utilization by a 98th percentile male, despite failing
to meet every MIL-STD-1472 standard. See Pl.’s Reply 43-44. Plaintiff adds that such
showing should be sufficient and that its assessed weakness was not justified. See id. at
44.
While maintaining its position that plaintiff fell short on five, not two, clearances,
defendant notes that the difference in evaluation for which AMG now petitions would not
57
have mattered because “[f]ailing to meet any space criteria would mean the proposal had
a weakness: providing insufficient space for crew is simply not an adequate solution.”
Def.’s Reply 23. Defendant points out that plaintiff’s attempt to set its own standard for
the term “permit utilization” by a 98th percentile male reduces the term to an “amorphous
and non-descript concept.” Id. at 21. Defendant explains that rather than allow offerors
to set their own individual standards, the agency interpreted “the ‘permit utilization’
phrase as requiring strict compliance with the relevant military standard [to] ensure[] fair
and equal treatment for all offerors.” Id.
The court may not substitute its judgment for that of the “agency’s with regard to
how the contract work should be designed.” See, e.g., Ala. Aircraft Indus., 586 F.3d at1376 (citing Motor Vehicle Mfrs., 463 U.S. at 43). Rather, reviewing courts give the
greatest deference possible to the agency’s determinations, in recognition of the special
expertise of procurement officials. See E.W. Bliss Co., 77 F.3d at 449; J.C.N. Const.,
107 Fed. Cl. at 510 (same); Beta Analytics Int’l, 67 Fed. Cl. at 395 (same).
e. Conclusion
The agency’s decision to interpret the PSpec 3.1.1.a provision to “permit
utilization by a . . . 98th percentile male” according to the standards set forth in MIL-
STD-1472, as incorporated into the solicitation, is reasonable. Plaintiff has failed to
show that the agency’s evaluation was unreasonable, arbitrary or capricious.
V. THE AGENCY’S EVALUATION OF AMG’S PAST PERFORMANCE WAS
RATIONAL
Plaintiff asserts that the agency’s evaluation of its past performance was
unreasonable, arbitrary, and capricious. See Pl.’s Mot. 65-68. Plaintiff claims that it
should have received the highest confidence rating, Substantial Confidence, rather than
the rating one level below, Satisfactory Confidence, because the agency identified no
serious, unresolved issues relating to plaintiff’s past performance. See id. at 65.
Defendant responds that plaintiff overlooks a “critical gap in its prior contracts.”
Def.’s Mot. 37. “The reason AMG did not receive the highest rating for past performance
was because none of the five prime contracts it submitted met the ‘Very Relevant’
criteria,” owing, at least in part, to the “lack of cost elements in [its] prior contracts.” Id.
at 37-38. Pointing to plaintiff’s contracts, defendant asserts that a number had no cost
element, and that none had the cost complexity of the contract at issue, which contained a
complex cost-plus-fixed-fee, cost, and firm-fixed-priced elements. See id. (citing AR
Tab 59, at 52388).
58
When the court considers a challenge to the past performance evaluation
conducted in the course of a negotiated procurement, “the greatest deference possible is
given to the agency.” Gulf Group Inc. v. United States, 61 Fed. Cl. 338, 351 (2004).
“[T]he Court's review of an agency’s ‘evaluations of an offeror's . . . past performance
should be limited to determining whether the evaluation was reasonable, consistent with
the stated evaluation criteria and complied with relevant statutory and regulatory
requirements.”’ Plasan N. Am., Inc. v. United States, 109 Fed. Cl. 561, 572 (2013)
(quoting Univ. Research Co. v. United States, 65 Fed. Cl. 500, 506 (2005)).
A review of the solicitation shows that the offerors were instructed to “submit
information on contracts that are considered relevant in demonstrating the ability to
perform the proposed overall effort,” and were instructed to “clearly show” program
management experience. AR Tab 74.5, at 53213 § L.3.3.2.1. The solicitation further
provided that in evaluating Past Performance, “the Offeror’s demonstrated past
performance of contracts of a similar complexity, dollar value, and work requirement will
be assessed to determine the demonstrated potential for successful performance of this
requirement.” Id. at 53222 § M.2.3 (emphasis added).
The solicitation provides that relevancy determinations for past contracts will be
determined as follows: a Very Relevant rating requires “Present/Past Performance effort
involv[ing] essentially the same scope and magnitude of effort and complexities this
solicitation requires;” a Relevant rating requires a “similar scope and magnitude;” a
Somewhat Relevant rating requires “some of the scope and magnitude; “and finally a Not
Relevant rating requires “little or none of the scope and magnitude.” Id. at 53215 tbl. 5
(emphasis added).
Defendant pointed to the SSEB Evaluation Report that spoke directly to the
evaluation rating of Satisfactory Confidence that plaintiff received. See Def.’s Cross-
Mot 38.
The lack of cost elements in some of the reviewed contracts reduced
[AMG’s] overall relevancy rating. Past Performance in a cost environment
is crucial to the GMV 1.1 effort due to the fact that this entire program is
constrained by the contractor’s ability to perform integration of complex
C4ISR components and SOF-specific requirements in an extremely
constrained vehicle environment.
AR Tab 59, at 52382.
The SSEB Evaluation Report for the cost/price portion of AMG’s proposal
supports defendant’s characterization of the contract’s pricing as one that was complex,
with cost-plus-fixed-fee, cost, and firm-fixed-priced elements. See id. at 52391-433.
59
Plaintiff asserts that “[n]othing in the solicitation makes a Substantial Confidence
rating dependent upon having Very Relevant contracts.” Pl.’s Reply 45. The standard
for Substantial Confidence is that the government have a “high expectation that the
Offeror will successfully perform the required effort.” AR Tab 74.5, at 53235 tbl. 4.
While it is true that the confidence rating does not mention Very Relevant contracts,
plaintiff continues to overlook the shortcoming that the agency clearly pointed to in its
evaluation—the lack of similar cost complexity in its past contracts.
Nothing in the record suggests that a consideration of cost complexity in past
contracts was beyond the scope of the evaluation criteria as set forth in the solicitation.
Plaintiff’s challenge amounts to no more than mere disagreement with the agency’s
evaluation, and as such, must fail. “[A]n offeror's mere disagreement with the agency's
judgment concerning the adequacy of the proposal is not sufficient to establish that the
agency acted unreasonably.”’ Banknote Corp. of Am., 56 Fed. Cl. at 384 (internal
quotation marks omitted).
Plaintiff has failed to show that the agency’s evaluation of its past performance
was unreasonable, arbitrary, or capricious.
VI. BEST VALUE TRADEOFF ANALYSIS
The government informed offerors that it intended to award the contract to the
offeror “whose offer conforming to the solicitation is determined to represent the ‘best
value’ with appropriate consideration given to the major Areas listed in descending order
of importance: Capability, Past Performance and Cost/Price . . . The Government will
conduct a tradeoff process in accordance with FAR 15.101-1.” AR Tab 74.5, at 53220
§ M.1.1.
FAR 15.101-1 states that:
(a) A tradeoff process is appropriate when it may be in the best interest of
the Government to consider [an] award to other than the lowest priced
offeror or other than the highest technically rated offeror.
(b) When using a tradeoff process, the following apply:
(1) All evaluation factors and significant subfactors that will affect contract
award and their relative importance shall be clearly stated in the
solicitation; and
60
(2) The solicitation shall state whether all evaluation factors other than cost
or price, when combined, are significantly more important than,
approximately equal to, or significantly less important than cost or price.
(c) This process permits tradeoffs among cost or price and non-cost factors
and allows the Government to accept other than the lowest priced proposal.
The perceived benefits of the higher priced proposal shall merit the
additional cost, and the rationale for tradeoffs must be documented in the
file in accordance with 15.406.
FAR 15.101-1.
In preparing the Source Selection Decision, the FAR directs that
[t]he source selection authority’s (SSA) decision shall be based on a
comparative assessment of proposals against all source selection criteria in
the solicitation. While the SSA may use reports and analyses prepared by
others, the source selection decision shall represent the SSA's independent
judgment. The source selection decision shall be documented, and the
documentation shall include the rationale for any business judgments and
tradeoffs made or relied on by the SSA, including benefits associated with
additional costs. Although the rationale for the selection decision must be
documented, that documentation need not quantify the tradeoffs that led to
the decision.
FAR 15.308.
A. Legal Standard Governing Best Value Tradeoff
Procurement officials have substantial discretion in evaluating which proposal
represents the best value to the Government. Blackwater Lodge &Training Ctr., Inc. v.
United States, 86 Fed. Cl. 488, 514 (2008) (citing E.W. Bliss Co., 77 F.3d at 449). Even
when a solicitation emphasizes technical merit, an agency “may properly select a lower-
priced, lower-technically-rated proposal if it decides that the cost premium involved in
selecting a higher-rated, higher-priced proposal is not justified, given the acceptable level
of technical competence available at the lower price.” Banknote Corp., 56 Fed. Cl. at 390
(citation omitted). The Court's main task is to ensure that the agency articulated a
“‘rational connection between the facts found and the choice made.’” Id. (quoting Motor
Vehicle Mfrs., 463 U.S. at 43 (citation omitted)). Thus, where agency officials
reasonably exercise their discretion when conducting a best value analysis, the Court will
not disturb the award. See E.W. Bliss Co., 77 F.3d at 449.
61
B. The Positions of the Parties Regarding the SSA’s Tradeoff Analysis
Plaintiff objects to the manner in which the SSA made his decision. Plaintiff
contends that the SSA’s decision appears to have been made without considering
GDOTS’s past performance, “one of the three major source selection criteria, and thus
without grappling with the clear possibility that, in light of GDOTS’s past performance
record, GDOTS would prove unable to deliver the supposedly superior vehicle.” Pl.’s
Mot. 21. Given the SSA’s silence on this issue, plaintiff asserts that the SSA either failed
to perform a best value tradeoff analysis addressing all relevant factors, or if the SSA
performed such an analysis, he failed to document it in the SSDD. See id. at 20, 24. In
either case, plaintiff asserts the SSA violated FAR 15.308. See id. at 20.
Defendant argues that given the small price differential between the offers of
AMG and GDOTS, and the relative merits of the offers as established by the respective
evaluative teams, the SSA satisfied FAR 15.308 when he made a “facial comparison” of
the proposals. See Def.’s Mot. 45-46. Defendant explained that “[b]ecause [the]
technical capability rating was significantly more important than past performance, the
proposal with the better technical rating had to prevail.” Def.’s Reply 35 (emphasis
added) (internal quotation marks omitted).
Relying on a recent Federal Circuit decision, defendant avers that “exhaustive
detail is not required in the source selection authority’s decision, so long as that decision
reveals that the source selection authority considered the relevant factors.” Def.’s Mot.
45 (citing Croman Corp. v. United States, 724 F.3d 1357 (Fed. Cir. 2013)). Taking a
similar position to defendant, GDOTS urges a reading of Croman that finds “a source
selection decision is adequate when it relies on the solicitation’s weighting of the
evaluation criteria.” Def.-Int.’s Mot. 12.
C. Discussion
The court considers whether the SSA was required to perform a best value tradeoff
analysis, whether the SSA made a comparative assessment of proposals against all source
selection criteria in the solicitation using his independent judgment, whether the agency’s
erroneous evaluation of GDOTS’s past performance impacts the best value tradeoff
decision, and whether the SSA adequately documented his decision.
1. Whether the FAR Required the SSA to Perform a Tradeoff Analysis
GDOTS’s price proposal was $[XXX] more than AMG’s, a price premium of
[XXX]%. See AR Tab 54, at 51220. Defendant repeatedly argues that given the small
price differential between AMG and GDOTS, the SSA’s decision was dictated by (1) the
relative weights set forth in the solicitation and (2) the ratings the SSEB evaluators
62
assigned for Capability and, less importantly, Past Performance. See Def.’s Reply 35.
Defendant argues that
[t]he absence of any meaningful price distinction between the two
proposals meant that, for all practical purposes, SOCOM did not have to
pay a premium for GDOTS’s better technical capability rating. . . . On these
facts, deciding that a proposal with better technical capability delivered the
best value did not require a lengthy analysis: the solicitation itself dictated
the answer. Because technical capability rating was “significantly more
important” than past performance, the proposal with the better technical
rating had to prevail.
Id. (emphasis added). Defendant also claims that
[b]ased on the solicitation’s priorities, the best proposal is obvious.
GDOTS’s proposal was one grade higher than AMG’s on the most
important category, and one grade lower than AMG’s on the category that
was significantly less important. For nearly the same price, the agency
could have a better technical approach or a better past performance record.
Given the agency’s stated desire to receive the best technical solution,
choosing GDOTS over AMG was the right decision to make.
Def.’s Mot. 43. Defendant further contends that
[w]ithout a higher price to justify, the analysis required by Serco would
have been meaningless: the solicitation defined the outcome, so there was
no complex business judgment to make. All the source selection authority
had to do was pick the proposal that had the best rating on the most
important category—technical capability.
Def.’s Reply 37 (citing Serco v. United States, 81 Fed. Cl. 463, 468 (2008) (finding a
tradeoff analysis to be arbitrary and capricious because the SSA failed to discuss the
significance of the differences in technical merit in terms of contract performance or
agency needs, and the SSA did not indicate whether the technical advantage was worth
the cost premium)).
In short, defendant argues that the FAR’s requirement that the SSA perform a
tradeoff analysis and document his business judgment is not as rigorous when a small
price differential exists between the lowest priced offeror and the technically superior
offeror ultimately selected for the contract award. See id. at 37.
63
By the terms of the solicitation, the SSA was obligated to conduct a best value
tradeoff. The court considers whether the SSA did so.
2. Whether the SSA Made a Comparative Assessment of Proposals
Using His Independent Judgment
The paragraph from the record entitled “Source Selection Decision,” is set forth
below:
I have independently reviewed the various elements of the proposal and the
discussion results and have determined that an award to General Dynamics
Ordnance and Tactical Systems (GDOTS) provides the best value to the
Government considering the criteria set forth in the solicitation. GDOTS
provided an outstanding proposal in the highest weighted area, Capability,
providing the government an outstanding production and technical
proposal. The Limited Confidence Past Performance assessment and
Cost/Price variance in the proposals of a maximum of only [XXX]% did
not offset the value offered by the GDOTS proposal to this best value
solicitation.
AR Tab 54, at 51220.
Plaintiff argues that in contravention of FAR 15.308, which requires the SSA to
consider all source selection criteria when making a comparative assessment of the
proposals, the SSA “failed to properly address whether GDOTS presents the best value
despite the agency’s ‘low expectation’ that GDOTS can successfully perform.” Pl.’s
Mot. 20. Plaintiff also argues that defendant’s limited comparison of the offerors’
evaluation ratings “strips the Past Performance rating of its meaning” and thus its utility
as an indicator of whether an offeror would actually perform. Pl.’s Reply 9-10.
Plaintiff questions the sufficiency of the SSA’s decision because the SSA failed to
address, in depth, how GDOTS’s past performance rating affected his confidence in
GDOTS’s proposal. Defendant retorts that “[t]he past performance rating was itself the
assessment of risk,” and casts plaintiff’s criticism of the SSA’s decision as a “backdoor”
challenge to the lesser weight accorded the past performance factor. Def.’s Mot. 46.
Having considered previously what an SSA must do when comparing the past
performance of offerors, this court has found that FAR 15.308 requires the SSA to
“review the agency's evaluations of past performance, ensure their accuracy, compare the
results, and then form his or her independent conclusion based on this information.”
Computer Scis. Corp. v. United States, 51 Fed. Cl. 297, 320 (2002).
64
This court has also recognized the limitation of a bare evaluation rating, and the
need, in certain circumstances, to go beyond the evaluation rating to understand the value
provided by the proposal.
When assessing differences between proposals, the SSA should take into
consideration not only the proposals’ adjectival ratings but also information
on advantages and disadvantages of the proposals. “Looking beyond the
adjectival ratings is necessary because proposals with the same adjectival
ratings are not necessarily of equal quality.”
Mil-Mar Century Corp. v. United States, 111 Fed. Cl. 508, 553 (2013) (internal citations
omitted); see also Metcalf Constr. Co., Inc. v. United States, 53 Fed. Cl. 617, 640-41
(2002)(same).
This is true not only when comparing more than one offeror with the same
adjectival rating for an evaluation factor, which is not the case here, but also when
considering the full impact of a negatively rated evaluation factor on a tradeoff analysis,
as in this circumstance.
At oral argument, defendant carefully limited its position to the facts of this case,
asserting that if GDOTS had received a rating evaluation one level lower on Past
Performance—that is, if GDOTS had received a No Confidence rating rather than the
Limited Confidence rating it did receive—the changed circumstance would compel the
conduct of a best value tradeoff analysis. See Def.’s Reply 36 (“If another procurement
has offerors proposing vastly different prices—or no similar hierarchy of preference—
then a detailed best-value analysis would, indeed, be necessary.”). As defendant
explained in its hypothetical during oral argument:
[W]e would have had a situation where GDOTS was one step above AMG
on the most important, significantly most important, capability, but two
steps below AMG on the past performance rating. Now, that’s a totally
different animal. . . .[W]e’re dealing with a situation in which the
difference is now not equivalent, and as soon as the difference is not
equivalent . . . there’s a greater bounds for a best-value judgment.
Hr’g. Tr. 62 (emphasis added).
Defendant’s reasoning raises the question of how the SSA would have viewed
GDOTS’s proposal the closer it came to receiving a No Confidence evaluation rating.
Given the four evaluation ratings (Substantial Confidence, Satisfactory Confidence,
Limited Confidence, and No Confidence), see AR Tab 74.5, at 53235, it is reasonable to
expect that an agency would have a range of confidence levels within any particular
65
evaluation rating. An offeror on the low end of a Limited Confidence rating, one that
barely avoided a No Confidence rating, would have the same confidence rating as an
offeror on the high end of the Limited Confidence rating, one that barely missed a
Satisfactory Confidence rating. But these offerors would present the agency with very
different expectations that each would successfully perform the required effort. The past
performance ratings would be facially equal, but the risks would be quite different.
While consideration of the evaluation rating alone would be insufficient to
determine where GDOTS stands on the spectrum of Limited Confidence ratings, the
SSA’s evaluation of the underlying information, as provided in the SSEB Evaluation
Report and SSAC Comparative Analysis, would enable the SSA to make this
determination. Consistent with the requirement of the FAR, the SSA would render a
“source selection decision . . . [that is representative of] the SSA's independent
judgment.” FAR 15.308.
Criticizing the SSA’s summary mention of the offerors’ evaluation ratings without
addressing, in any detail, the underlying information that informed these qualitative
appraisals, plaintiff challenges the adequacy of the SSA’s decision in this case.
Defendant characterizes this criticism as AMG’s disagreement with the weight
accorded to this evaluation factor in the solicitation, stating that:
AMG . . . claim[s] that the source selection authority should have weighed
GDOTS’s technical proposal against the risk of its “Limited Confidence”
past performance rating. See Pl. Reply at 9-10. But the weight given to
past performance was defined by the solicitation. The source selection
authority could not give past performance more weight.
Def.’s Reply 37.
Defendant is correct that the solicitation defined the weight of the factors.
Nonetheless, the FAR does require, in a tradeoff analysis, that consideration is given to
the impact of all the factors identified in the solicitation.
The solicitation in this case weighted the various areas, factors and subfactors to
be considered by the agency, and the agency evaluated the offerors on the respective
areas, factors and subfactors. Based on the importance assigned to the evaluation factors
and based on the agency’s evaluation of the offerors, the court finds that the SSA
satisfactorily reflected an independent contemplation of the comparative merits of the
proposals. The reference to GDOTS’s Limited Confidence rating in the area of Past
Performance and the less than XXXXXX price variance, and to GDOTS’s outstanding
66
technical proposal, as supported by the agency’s documented findings, was sufficient to
convey the SSA’s independent judgment.
3. What is the Impact of a Flawed Evaluation on a Tradeoff Analysis
As earlier determined, the agency’s evaluation of GDOTS’s past performance was
flawed, because the agency considered the past performance of six subcontractors who
were not major subcontractors, as well as three Not Relevant contracts for its one major
subcontractor. See supra pt. III. C.-D. The SSA expressly pointed to the past
performance of GDOTS’s subcontractors in his SSDD:
The low expectation of successful performance of GDOTS, due to the lack
of its relevant past performance, is mitigated by the strong performance of
its subcontractors which have a significant role in the contract. GDOTS’s
GMV 1.1 subcontractors had multiple relevant contracts and were rated
very positively; this includes one subcontractor that is proposed to perform
25% of the total contract effort as a major subcontractor.
AR Tab 54, at 51218.
The agency’s consideration of the past performance of GDOTS’s subcontractors
was contrary to the solicitation criteria and thus constituted error. This error, however,
does not render the tradeoff analysis irrational, or arbitrary. The record contains adequate
support for the SSA’s decision. The errors made by the agency are not sufficient grounds
for rejecting an entire procurement when the decision was otherwise reasonable. See,
e.g., Grumman Data Sys. Corp. v. Widnall, 15 F.3d 1044, 1048 (Fed. Cir. 1994).
And as discussed more fully in the section addressing prejudice, see supra pt. VII,
“[w]hen a challenge is brought [based on a violation of regulation or procedure], the
disappointed bidder must show a clear and prejudicial violation of applicable statutes or
regulations.” Impresa, 238 F.3d at 1332 (citations and quotations omitted); accord
Croman Corp., 724 F.3d at 1363; Emery Worldwide Airlines, 264 F.3d at 1085–86.
Moreover, the protestor’s burden is “especially heavy” in the context of “[n]egotiated
procurements [that] afford the contracting officer a breadth of discretion” and “best value
awards [that] afford the contracting additional discretion.” Croman Corp. v. United
States, 106 Fed. Cl. 198, 216 (2012), aff’d, 724 F.3d 1357 (Fed. Cir. 2013).
The court cannot find that the agency’s error in its evaluation of GDOTS’s past
performance, an area with significantly less importance, renders the best value
determination arbitrary or capricious. The agency rightfully placed greater weight on the
most important Capability area, in accordance with the solicitation, in its best value
determination.
67
4. Whether the SSA Adequately Documented his Decision
Plaintiff argues that even if the SSA did perform a best value tradeoff analysis, he
failed to document his rationale in his SSDD or explain his reasoning. See Pl.’s Mot. 24-
29.
Defendant points to the “four detailed pages on the strengths and weaknesses
contained in each proposal,” and the summary chart of the same information included in
the SSA’s decision, as evidence that the SSA provided a sufficient rationale. Def.’s Mot.
43-44. Defendant asserts that the SSA’s decision “detail[ed] the path of the agency’s
decision-making” which resulted in the agency’s picking of the proposal with the better
technical rating. Def.’s Reply 35-36.
As support for the SSA’s decision, Defendant and GDOTS rely heavily on a recent
decision from the Federal Circuit, Croman Corporation v. United States, which they
characterize as standing for the proposition that “exhaustive detail is not required in the
source selection authority’s decision, so long as that decision reveals that the source
selection authority considered the relevant factors.” Def.’s Mot. 45 (citing Croman
Corp., 724 F.3d at 1357; see also Def.-Int.’s Mot. 6-9. The court does not disagree—
provided the SSA has considered the relevant factors, and the rationale for the SSA’s
decision can be discerned from the decisional documents.
In Croman, the plaintiff challenged the SSA’s tradeoff analysis as inadequate,
arguing that the record contained “no declarations or the like by the SSA as to the relative
strengths he found in any [of the] proposal(s).” Croman, 724 F.3d at 1365. Central to the
Federal Circuit’s determination that the tradeoff analysis satisfied FAR 15.308, was the
SSA’s reliance on two documents that were attached to his decision. See id. (“In
particular, Attachments 4 and 7 include information that fully satisfies the requirements
of FAR 15.308.”).
The two documents, Attachments 4 and 7, both included proposal evaluation
information generated by the agency’s computerized optimization model (OM). As
configured, the OM performed a mathematical computation that yielded a set of
recommended awards based upon the importance the agency assigned to the evaluation
factors used in the procurement. See id. at 1361.
The Federal Circuit described Attachment 4 as “a spreadsheet of OM evaluation
results,” which “present a side-by-side comparison of each offer, and therefore, the
strengths and weaknesses of each proposal as reflected in the ratings assigned by
[technical evaluation team] members.” Id. at 1365. GDOTS observes that this
attachment is like the overall assessment table included in the SSDD, see Def.-Int.’s Mot.
16-17 (citing AR Tab 54, at 51220). The court agrees.
68
The information and analysis included in Attachment 7, however, is unlike
anything in this case, and it is on the basis of this information that Croman is factually
distinct from this case. Attachment 7 was titled “Tradeoff Analysis Comparing OM
Assignments . . . between weighted solution and 3 single objective optima,” and it
contained actual, detailed tradeoffs, in which some degree of technical superiority was
traded for a lower price. Croman, 724 F.3d at 1366. The Federal Circuit found that FAR
15.308 was “fully satisfie[d]” by the information contained in attachments 4 and 7. Id. at
1365. Sufficient detail for a FAR 15.308 comparative assessment was present in
Croman, in the attachments. See Croman, 724 F.3d at 1365.
Although the factual circumstances in this case are different than in Croman, the
reasoning in Croman is instructive here. The SSDD in this record is a five-page
document, with four separate sections devoted to Background, the Evaluation Process,
the Evaluation Results for Navistar, GDOTS and AMG, and finally the Source Selection
Decision. AR Tab 54, at 51216-20. The first two sections are true to their titles. The
third section, Evaluation Results, provides summaries for the evaluations of each offeror
on Capability, Past Performance and Cost. See id. at 51217-19. The SSA also
reproduced a table included in the SSAC Comparative Analysis, see AR Tab 55A, at
51246, in which each factor and subfactor is highlighted in its color adjectival rating, and
includes the number of strengths, significant weaknesses, weaknesses and deficiencies for
each. See AR Tab 54, at 51220. Past Performance ratings and total cost/price are also
provided. See id. The SSA makes no comparisons among the three offerors, rather, each
is discussed separately.
In the Source Selection Decision, the SSA states:
I have independently reviewed the various elements of the proposal and the
discussion results and have determined that an award to General Dynamics
Ordnance and Tactical Systems (GDOTS) provides the best value to the
Government considering the criteria set forth in the solicitation. GDOTS
provided an outstanding proposal in the highest weighted area, Capability,
providing the government an outstanding production and technical
proposal. The Limited Confidence Past Performance assessment and
Cost/Price variance in the proposals of a maximum of only [XXX]% did
not offset the value offered by the GDOTS proposal to this best value
solicitation.
Id.
69
While the SSA’s documentation in this case is not as robust as that of the agency’s
in the Croman case, the court finds that the SSA here adequately documented his decision
such that the court could determine the basis on which his decision was made.
The court is persuaded that the agency satisfied its responsibility under the FAR
and the solicitation in conducting a best value analysis and recording the reasons for the
decision. The agency awarded the contract to the irrefutably highest technically rated
offeror, and the SSA documented his view that neither the price variance nor the past
performance ratings disturbed the value to the government presented by the offeror with
an outstanding proposal in the most heavily weighted of the evaluative factors.
D. Conclusion
The court does not find that the SSA violated FAR 15.308, as plaintiff has alleged.
Nor does the court find that the errors in the agency’s evaluation of the lesser weighted
Area rendered the tradeoff analysis irrational and arbitrary.
VII. THE AGENCY’S ERRORS CAUSED NO PREJUDICE TO AMG
To prevail in a bid protest, plaintiff must do more than show the agency erred in
the procurement process. Plaintiff must also show that it was prejudiced by those errors,
that “there was a ‘substantial chance’ it would have received the contract award but for
[the agency’s] errors in the bid process.” Bannum, Inc., 404 F.3d at 1358. “This test is
more lenient than showing actual causation, that is, showing that but for the errors
[plaintiff] would have won the contract.” Id. However, the protestor must do more than
show a “mere possibility” that but for the agency errors, it “would have received the
contract.” Data General Corp. v. Johnson, 78 F.3d 1556, 1562 (Fed. Cir. 1996).
Plaintiff’s showing must be made by a preponderance of the evidence. See, e.g., Davis
Boat Works, Inc. v. United States, 111 Fed. Cl. 342, 349 (2013).
Plaintiff has shown two errors on the part of the agency during the procurement
process. First with regard to the agency’s evaluation of GDOTS’s past performance, the
agency erred in considering eight contracts for six non-major subcontractors, and it erred
in considering three Not Relevant contracts for its one major subconstractor, Flyer. See
supra pt. III. C.-D. Second, with regard to the agency’s evaluation of AMG’s Capability
area, the agency erred when it assigned plaintiff Weakness-27 for Factor 2 (Technical),
Subfactor 1 (Vehicle Performance). See supra pt. IV. C. 3.
Plaintiff makes two prejudice arguments specifically regarding Weakness-27, first
that the elimination of any one weakness could have affected the best value tradeoff
analysis, see Pl.’s Mot. 70, and second, that the elimination of the weakness could have
70
led to a higher rating on Factor 2, see Pl.’s Mot. 50, which ultimately would have
impacted the agency’s best value determination.
Plaintiff asserts that correction of “any of the flaws in the agency’s evaluation and
award decision would have had an impact on the outcome of the best value analysis.”
Pl.’s Mot. 69. In particular, plaintiff argues that “correction of any of the three
weaknesses assigned to AMG under Factor 2 . . . could have raised AMG’s ratings on the
underlying subfactors or the factor overall, which again could have resulted in a
conclusion that AMG’s proposal presents the best value.” Pl.’s Mot. 71.
The question the court now considers is whether, if the agency had not erred,
AMG would have had a substantial chance to receive the contract.
GDOTS’s proposal received the highest score—Outstanding—on the most
important factor, Capability. See AR Tab 54, at 51220. GDOTS received a total of 30
strengths, 1 weakness and no significant weaknesses or deficiencies. See id. In
comparison, AMG received a total of 19 strengths, 5 weaknesses, and no significant
weaknesses or deficiencies. See id.
It is simply too speculative to think that if AMG’s strength/weakness tally had
been 19 strengths and 4 weaknesses, instead of 19 strengths and 5 weaknesses, that the
difference would have had an impact on the SSA’s best value tradeoff analysis. In the
face of GDOTS’s 30 strengths in the Capability area, whether AMG had 4 or 5
weaknesses was unimportant to the outcome of the SSA’s best value tradeoff analysis.
Plaintiff also asserts that if the agency had evaluated it correctly with regard to
Factor 2, it would have received a Good rating, rather than the Acceptable rating it did
receive. See Pl.’s Mot. 50. Within Factor 2, Subfactor 1 (Vehicle Performance) and
Subfactor 2 (Systems Integration/Engineering), were of equal importance. See AR Tab
74.5, at 53221-22 §§ M.2.1, M.2.2.3. On Subfactor 1 (Vehicle Performance), plaintiff
received 4 strengths and 3 weaknesses, and was rated Acceptable. See AR Tab 54, at
51220. On Subfactor 2, plaintiff received 2 strengths and 1 weakness, and was also rated
Acceptable. See id. Review of the evaluation ratings for all three offerors shows that
where an offeror had even one weakness on a subfactor, the highest rating the agency
awarded for that subfactor was Acceptable. See id. It was thus unlikely that AMG would
have received a Good rating on Subfactor 1, but for Weakness-27, given that it would
have had two remaining weaknesses.
Assuming the best case scenario for plaintiff, that in the absence of Weaknesss-27
the agency did rate AMG as Good on Subfactor 1, AMG would still be left with its
Acceptable rating on Subfactor 2. With Subfactors 1 and 2 equally weighted, it is highly
speculative that AMG would have been able to raise its Factor 2 rating to Good. Even
71
assuming it did so, with a Good rating on Factor 2, AMG would then have had a Good
rating on Factors 1, 2 and 3, which would have resulted in a Good rating on Capability
area. But AMG already received a Good rating in the Capability area. See id. AMG
thus had no chance to increase its Capability rating beyond the rating it received.
With the elimination of the subcontractor contracts considered outside the
solicitation evaluation criteria, GDOTS submitted three contracts for itself, one rated
Very Relevant, and two rated Somewhat Relevant, and one contract for Flyer rated
Somewhat Relevant. See AR Tab 59, at 52268-69. GDOTS’s customer evaluations on
Technical, Schedule, Cost, and Management were mixed, with some Excellent and Very
Good ratings, but also some Marginal and Satisfactory ratings. See id. GDOTS did seem
to engender customer loyalty, however, as in five out of six evaluations20 the customer
said it either probably or definitely would award the contract to GDOTS. See id. The
one contract for Flyer, while rated Somewhat Relevant, had all excellent ratings and the
customer said they definitely would rehire Flyer. See id. at 52268.
On the whole, when considering (1) the weight the solicitation places on the
Capability Area—significantly more important than Past Performance; (2) the significant
advantage GDOTS provided over AMG in Capability—30 strengths/1 weakness for
GDOTS as compared with 19 strengths/421 weaknesses for AMG; (3) GDOTS’s four
contracts with mixed performance ratings—but good customer loyalty; and finally, (4)
the very small cost difference between the proposals, the court is not persuaded that
AMG would have had a substantial chance to have received the contract.
The court finds that plaintiff has failed to show it was prejudiced by the agency’s
errors during the procurement process.
As plaintiff has not succeeded on the merits of its claim, injunctive relief is
inappropriate. See, e.g. Centech Grp., Inc. v. United States, 554 F.3d 1029, 1036-37
(Fed. Cir. 2009). The court denies plaintiff’s request for an injunction.
Plaintiff also requested its bid and proposal costs. See Pl.’s Mot. 74-75. As
plaintiff has not succeeded on the merits of its claim, recovery of bid and proposal costs
is unwarranted. See, e.g., PGBA, LLC, 60 Fed. Cl. at 222. The court denies plaintiff’s
request for the recovery of its bid and proposal costs.
20
Contracts can span a number of years and some had more than one customer
evaluation. See AR Tab 59, at 52268-69.
21
As revised in this opinion.
72
VIII. CONCLUSION
While AMG has shown error in the agency’s procurement process, it has failed to
show that it was prejudiced by those errors. AMG’s motion for judgment on the
administrative record is DENIED, defendant’s cross-motion for judgment on the
administrative record is GRANTED and defendant-intervenor’s cross- motion for
judgment on the administrative record is GRANTED. The Clerk of Court shall enter
judgment for defendant and defendant-intervenor. No costs.
IT IS SO ORDERED.
s/ Patricia Campbell-Smith
PATRICIA CAMPBELL-SMITH
Chief Judge
73