One Largo Metro, Llc v. United States , 109 Fed. Cl. 39 ( 2013 )

In the United States Court of Federal Claims
No. 12-501C
Filed: January 31, 2013
Issued for Publication: February 21, 20131
* * * * * * * * * * * * * * * *
ONE LARGO METRO, LLC, * Post-Award Bid Protest;
* Cross-Motions for Judgment
Plaintiff, * on the Administrative Record;
v. * Technical Evaluation; Best
* Value Trade-Off Analysis; Bid
UNITED STATES, * Preparation and Proposal
* Costs.
Defendant. *
*
* * * * * * * * * * * * * * * *
Joseph J. Dyer, Seyfarth Shaw, LLP, Washington, D.C., for Plaintiff. With him
were Ronald Gart and Caroline A. Keller, Seyfarth Shaw, LLP, Washington, D.C.
Steven M. Mager, Trial Attorney, Commercial Litigation Department, Civil
Division, United States Department of Justice, Washington, D.C., for Defendant. With
him were Jeanne F. Davidson, Director, Commercial Litigation Department and Stuart
F. Delery, Principal Deputy Assistant Attorney General, Civil Division. Elizabeth H.
Johnson, Regional Counsel, General Services Administration, Washington, D.C., of
counsel.
OPINION
HORN, J.
On August 8, 2012, Plaintiff, One Largo Metro, LLC (One Largo) filed a post-
award bid protest in this court following award of an United States General Services
Administration (GSA) contract to Fishers Lane, LLC (Fishers Lane),2 instead of to
1
This opinion was issued under seal on January 31, 2013. The parties were given the
opportunity to propose redactions to the court. Neither party proposed any redactions.
The opinion, therefore, is unsealed and issued for publication.
2
Fishers Lane proposed using the Parklawn building in Rockville, Maryland, currently
occupied by the United States Department of Health and Human Services (HHS), as the
site for contract award. Fishers Lane is referred to interchangeably throughout the
Administrative Record and the parties’ briefs as Fishers Lane and Parklawn. The court
Plaintiff, pursuant to Solicitation for Offers, No. 08-011 (Solicitation). Plaintiff alleges
that, but for Defendant’s violation of statutes and regulations in awarding the lease to
Fishers Lane, One Largo should have received the award. Plaintiff seeks
3
$4,038,739.00 as monetary relief in the form of bid preparation and proposal costs.
Plaintiff filed a motion for judgment on the Administrative Record and, in response,
Defendant filed a cross-motion for judgment on the Administrative Record.
FINDINGS OF FACT
On July 16, 2008, Defendant issued the Solicitation4 to lease space for HHS in
Montgomery County or Prince George’s County, Maryland, in order to consolidate
several HHS locations, including the Parklawn building in Rockville, Maryland, into one.
The Solicitation requested offers to rent office space to the government on a fixed price
basis for a fifteen-year term. It also stated that modernization of HHS’s current location
at the Parklawn building could be a “potential solution” for the Solicitation, provided that
the building complied with all requirements of the Solicitation once renovated. The
Solicitation provided that “the lease will be awarded to the Offeror whose offer will be
most advantageous to the Government and provides the best value to the Government,
price and other award factors considered as set forth below.”
Offers were to be evaluated on the basis of three technical factors: “Location,”
“Building Characteristics,” and “Past Performance and Key Personnel.” Each factor was
further broken down into several sub-factors, as follows:
generally refers to the winning offeror as Fishers Lane, except when quoting from the
Administrative Record and the briefs. Fishers Lane did not move to intervene in the
above captioned case.
3
Plaintiff alleges in its Complaint that a portion of these costs are contingent because
vendors have agreed to discount their bills should Plaintiff fail to recover its costs from
Defendant. Plaintiff also states in its Complaint that various other costs are estimates of
the cost of their employees’ efforts.
4
The Solicitation was amended ten times. Several of the provisions at issue in this
case were among the provisions amended. References in this opinion, therefore, are to
the amended provisions.
2
Location
1. Access to Existing Metrorail5
2. Access to Amenities
Building Characteristics
1. Number of Buildings
2. Planning Efficiency and Flexibility6
3. Quality of Building Architecture, Building Systems, and Construction7
Past Performance and Key Personnel
1. Past Performance
2. Key Personnel
The Solicitation ranked the importance of each factor and sub-factor:
Location is of equal importance to Building Characteristics and each is
significantly more important than Past Performance and Key Personnel.
The Location factor is comprised of two sub-factors, of which Access to
Metrorail is significantly more important than Access to Amenities.
Furthermore, Access to Metrorail is more important than any other sub-
factor of either of the other two technical evaluation criteria. The Building
Characteristics factor is comprised of three sub-factors, of which Number
of Buildings is more important than Planning Efficiency and Flexibility and
is significantly more important than Quality of Building Architecture,
Building Systems and Construction. The Past Performance sub-factor is of
equal importance to the Key Personnel sub-factor in the Past Performance
and Key Personnel factor.
5
The Solicitation uses both the term “Access to Existing Metrorail” and “Access to
Metrorail.” The parties and many of the documents in the Administrative Record refer to
this sub-factor as “Access to Metrorail.” The court, therefore, refers to this sub-factor as
“Access to Metrorail.”
6
The Solicitation refers to this sub-factor as “Planning Efficiency and Flexibility,”
whereas the Source Selection Plan refers to this sub-factor as “Planning, Efficiency and
Flexibility.” The court refers to this sub-factor as “Planning Efficiency and Flexibility.”
7
The Solicitation refers to this sub-factor as “Quality of Building Architecture, Building
Systems, and Construction.” At different points in the Administrative Record, this sub-
factor is referred to as “Quality of Building Architecture, Systems and Construction,” or
“Quality of Architecture, Building Systems, and Construction.” The court uses the
Solicitation language, “Quality of Building Architecture, Building Systems, and
Construction,” unless directly quoting from another source.
3
Plaintiff contests Defendant’s evaluation of the Access to Metrorail and Planning
Efficiency and Flexibility sub-factors. Other technical sub-factors, however, are
addressed briefly in this opinion because the offerors’ overall ratings are relevant to the
issue of whether Defendant properly used and conducted a trade-off analysis in
awarding this contract.
The Solicitation stated that all proposed buildings “must be located within three
(3) miles of a Metrorail station, as measured from the main entrance of the building to
the nearest entrance of the transit facility by the driving distance on existing roads.”
Offerors that were located more than 2,500 walkable linear feet from a Metrorail station
were required to provide shuttle service at their expense. Regarding the Access to
Metrorail sub-factor, the Solicitation stated:
In addition to providing a convenient means of commuting to and from
work for HHS employees, access to Existing Metrorail is also important as
it provides a useful method for employees to travel back and forth to other
HHS facilities, during normal business hours. Distances will be measured
from the main entrance of the building to the nearest entrance of the
transit facility, in walkable linear feet (wlf) or, if it is more than 2,500 wlf
[walkable linear feet], by the driving distance of existing roads. Buildings
closer to an existing Metrorail station will be evaluated more highly.
For the other sub-factor under the Location factor, Access to Amenities,8 the
Solicitation provided that offers would be evaluated for amenities within the building, as
well as amenities within one mile of the main entrance of the building closest to the
entrance to the amenity. In a section labeled “Location Amenities,” the Solicitation
stated:
Adequate eating facilities shall be located within 1 mile. The government
encourages pedestrian access from the building location to the following
basic services: fitness facilities, postal facilities . . . , restaurants, day care
center, fast food establishments, dry cleaners, ATMs/banking services,
convenience shops, card/gift shops, hair salons, automotive service
stations, and drug stores.
In a separate section labeled “Access to Amenities,” dealing specifically with the
Access to Amenities sub-factor, the Solicitation indicated that offers would be evaluated
for the quantity and variety of those same twelve categories of amenities. The
Solicitation continued:
If possible, these amenities should be available during early morning and
evening hours, as well as operating during a normal business day. The
8
In Amendment Number Eight to the Solicitation, issued on November 7, 2008,
Defendant modified the language of two provisions, “Location Amenities” and “Access
to Amenities.” References regarding the Access to Amenities sub-factor are to
Amendment Number Eight.
4
final evaluation will consider all of the available amenities and the offers
will be scored based on quantity, variety, hours and proximity of such
amenities. To be considered, restaurants and fast food establishments
must be open for breakfast and lunch. The best rating will be given to
offers that provide the greatest variety and quantity of amenities with good
hours of operation existing at the time of occupancy within the building or
within 1,500 walkable linear feet of the building.
Under the Building Characteristics factor, the most important sub-factor was
Number of Buildings, which was to be evaluated based on the number of buildings the
offeror proposed, with a lower number of buildings, or buildings connected by a tunnel
or covered walkway, to be given higher ratings. With regard to the Planning Efficiency
and Flexibility sub-factor of the Building Characteristics factor, the Solicitation stated:
Each building will be evaluated for overall planning efficiency. This
evaluation will include blocking and stacking plans, floor plate sizes,
circulation factors, common area factors, rentable to usable (“r/u”) square
foot ratios, column spacing, column bay sizing, core configuration and
placement, window mullion spacing, and other indicia of planning
efficiency and flexibility .… The Government prefers solutions that offer
integrated performance effectiveness with more efficiency and more
flexibility for layout and more flexibility for future reconfigurations.
Proximity and accessibility of the loading dock to the freight elevator and
ability of the lobby design to accommodate integration of Government
security requirements will also be considered. Buildings which provide for
more efficiency and flexibility will be more highly evaluated.
Also as part of the Building Characteristics factor, the Solicitation stated under the
Quality of Building Architecture, Building Systems, and Construction sub-factor that the
government would assess the “qualitative attributes of the building’s architecture,
massing, building systems, construction, and finishes.” For this sub-factor, “[t]he
building systems that provide the most capacity, efficiency, reliability, and flexibility will
be more highly rated.”
Regarding the Past Performance sub-factor, the Solicitation stated that
Defendant would evaluate the offeror’s “past two (2) performances for development and
ownership of projects of similar size, scope and complexity,” with projects that are “more
current and demonstrate a clear parallel” with this Solicitation being rated more highly.
The Solicitation indicted, however, that “[f]ailure to submit information on Past
Performance due to lack of experience will be evaluated by the Government as neutral.”
Under the Key Personnel sub-factor, the Solicitation indicated that Defendant would
evaluate offerors’ “entire design, construction, and management team,” for qualifications
and past performance on similar projects. Moreover, the Solicitation stated, “[o]fferors
whose key personnel provide the greatest qualifications, the most favorable past
performance on similar projects, and a proven track record of working together on all
three past successful projects will be more highly rated.”
5
The Solicitation indicated that “[t]he Government intends to use a trade-off
process in selecting the offer that is most advantageous.” The Solicitation described the
trade-off analysis as “a method of evaluating price and other factors as specified in the
solicitation to select the offer that provides the best value to the Government.” The
parties have stipulated that the trade-off process “permits trade-offs among price and
technical factors” and “allows the Government to accept other than the highest
technically rated offer and other than the lowest priced offer.” The Solicitation described
the relationship between price and technical ratings for the purposes of Defendant’s
trade-off analysis, as follows:
For this procurement, price is of significantly less importance than the
combined weight of the technical factors; however, the degree of
importance of price as a factor becomes greater as technical offers
approach equality. Ultimately, if the highest technical offer is not the
lowest priced offer, the Government will assess the value of the technical
factors of an offer to reconcile the price and technical factors. The
perceived benefits of the higher priced offer, if any, must merit the
additional cost.
In connection with the Solicitation, Defendant issued a Source Selection Plan,
detailing the process that would be used to assess offers.9 Defendant indicated that it
would employ a formal source selection procedure as outlined in Federal Acquisition
Regulation (FAR) Subpart 15.3 (current through Feb. 7, 2013). A Source Selection
Evaluation Board was established to evaluate offers. Three Technical Evaluation
Teams were formed and each one was assigned to evaluate one of the three technical
factors: Location, Buildings Characteristics, and Past Performance and Key Personnel.
The Technical Evaluation Teams were tasked with performing a comprehensive,
technical evaluation of each offer, for the assigned factor and sub-factors, including
identifying strengths, weaknesses, and deficiencies. The Technical Evaluation Teams
reported their findings to the Source Selection Evaluation Board, which was tasked with
“[a]ssisting in evaluating proposals,” “[r]ecording findings and ranking offers,”
“[s]ummarizing evaluation results of each offer,” “[r]eaching a consensus decision,” and
“[p]reparing report(s) with the assistance of the TETs [Technical Evaluation Teams] on
the evaluation results for recommendation to the SSA [Source Selection Authority].”
The Source Selection Authority was responsible for selecting the proposal which
represented the best value to the government. If the Source Selection Authority
disagreed with the recommendation of the Source Selection Evaluation Board, he or
she was required to document that disagreement, and provide supporting reasons for
not following the Source Selection Evaluation Board’s recommendation.
9
On October 10, 2008, the initial Source Selection Plan was revised to conform with the
various amendments which had been made to the Solicitation. The revised Source
Selection Plan was approved by the Source Selection Authority on October 30, 2008.
All references in this opinion are to the revised Source Selection Plan.
6
The Source Selection Plan elaborated on the trade-off analysis, which the
Defendant could employ in selecting an offer. The Source Selection Plan repeated the
language of the Solicitation, stating that price was of less importance than the technical
factors, and continued:
Ultimately, if the highest technical offer is not the lowest priced offer, the
SSEB [Source Selection Evaluation Board] will assess and/or quantify the
value of the technical factors of an offer to reconcile the price and
technical factors. The perceived benefits of the higher priced offer, if any,
must merit the additional cost and the rationale must be fully documented
in the file. The SSEB [Source Selection Evaluation Board] and SSA have
a degree of discretion in weighing the significance of the relationship
between technical evaluation and cost differentials. Nonetheless, the
SSEB and SSA may select an offeror that has a significantly higher price if
the technical benefits of the offer are identified and support the conclusion
that the technically superior offer is worth the significantly higher cost.
The Source Selection Plan also set forth the following adjectival ratings to be
assigned to each technical factor and sub-factor:
 Superior: Many significant strengths; no significant weaknesses; some
minor weaknesses.
 Highly Successful: Many significant strengths; few significant
weaknesses; some minor weaknesses.
 Successful: Some significant and minor strengths and weaknesses,
but meets the minimum requirements defined in the SFO [Solicitation].
 Marginal: Some strengths; many weaknesses. A marginally acceptable
offer.
 Poor: Some or no strengths; many significant weaknesses. An offer
that fails to meet the minimum requirements defined in the SFO and is
unacceptable. Offerors receiving a “Poor” rating will be given the
opportunity to meet the minimum requirements.
The Source Selection Plan also assigned a percentage value10 to each technical
factor and sub-factor for the purposes of evaluating offers:
10
The Source Selection Plan also included a sample Consensus Scoring Sheet to be
used by the Technical Evaluation Teams. The Consensus Scoring Sheet noted,
regarding the percentage assignments for each sub-factor, “[t]he weights shown for
each factor are included only to indicate the approximate relative value of each factor
and will not be converted to an exact numerical value. The superiority of each factor,
and of the offer as a whole, will be determined by a careful and complete evaluation of
the strengths and weaknesses of that factor or offer and not by a strictly mathematical
summation of grades.”
7
Location – 45%
1. Access to Metrorail – 35%
2. Access to Amenities – 10%
Building Characteristics – 45 %
1. Number of Buildings – 20%
2. Planning Efficiency and Flexibility – 15%
3. Quality of Building Architecture, Building Systems, and
Construction – 10%
Past Performance and Key Personnel – 10%
1. Past Performance – 5%
2. Key Personnel – 5%
Additionally, the Source Selection Plan set forth a formula to evaluate the Access to
Metrorail sub-factor11 with the following criteria:
11
The Solicitation provided that, for the purposes of the Access to Metrorail sub-factor,
“[d]istances will be measured from the main entrance of the building to the nearest
entrance of the transit facility. . . .” The Source Selection Plan, however, stated that
distances should be measured “from the main entrance of the furthest building of the
offered facility to the turnstile of the nearest Metro entrance.” In the first round of
protests before the United States Government Accountability Office (GAO) in this case,
the GAO rejected a challenge to Fishers Lane’s “Highly Successful” rating on the
Access to Metrorail factor, noting that, while there were inconsistencies in how distance
from Metrorail was measured, Defendant’s calculations were explained in the record
and the protestors failed to show that Defendant’s calculations were unreasonable.
Whether the distance from Metrorail was measured from the main entrance of the
building “to the nearest entrance of the Metrorail station,” or “to the turnstile of the
nearest Metro entrance,” would not affect the outcome of this case, as neither One
Largo’s “Superior” rating, nor Fishers Lane’s “Highly Successful” rating on the Access to
Metrorail sub-factor would change under either method of measurement. Moreover,
Plaintiff has not raised this inconsistency in its Complaint, briefs, or at oral argument.
8
Rating Distance to Metro
Superior Within 1,500 wlf, as measured in walkable linear feet (wlf)
from the main entrance of the furthest building of the offered
facility to the turnstile of the nearest Metro entrance
Highly More than 1,500 wlf but up to 2,500 wlf, as measured in
Successful walkable linear feet from the main entrance of the furthest
building of the offered facility to the turnstile of the nearest
Metro entrance
Successful More than 2,500 wlf but less than one mile, as measured by
the driving distance of existing roads from the main entrance
of the furthest building of the offered facility to the turnstile of
the nearest Metro entrance
Marginal More than one mile but less than two miles, as measured by
the driving distance of existing roads from the main entrance
of the furthest building of the offered facility to the turnstile of
the nearest Metro entrance
Poor More than two miles but less than three miles, as measured
by the driving distance of existing roads from the main
entrance of the furthest building of the offered facility to the
turnstile of the nearest Metro entrance
Similarly, the Source Selection Plan included the following chart for evaluating
the Access to Amenities sub-factor:
9
Rating Distance from Amenities
Amenities
Superior Within 1,500 wlf At least 9 amenities
from the following
categories:
restaurants, fast food
establishments, day
care centers, fitness
facility, dry cleaners,
bank/ATM, postal
facility, convenience
shops, cards/gift
shops, hair salons,
automotive service
stations, and drug
stores
Highly Successful Within 2,500 wlf At least 8 from the
above amenity
categories, to
include restaurants
and fast food
establishments
Successful Within 2,500 wlf At least 5 from the
above amenity
categories
Marginal Within 2,500 wlf At least 3 items from
the above amenity
categories
Poor More than 2,500 wlf At least 3 from the
but within one mile above amenity
categories
10
With regard to the Planning Efficiency and Flexibility sub-factor, the Source
Selection Plan stated:
The Government prefers a building that contains the following features:
 floor plate sizes,
 Efficient floor plate approximately 36,000 USF [useable square
feet]
 Rectangular in shape
 common area factors,
 Useable to gross 75%
 column spacing,
 Even, regular column spacing no less than 25’
 Optimum 30’ X 45’
 core configuration and placement
 Interior, rectangular core containing standard building support
elements, i.e., egress stairs, electrical and telephone closets, toilet
rooms, janitor closet
 45’ from core to window wall.
 Z-type corridor at core
 window mullion spacing
 5’ on center and each mullion wide enough to receive a 4” gypsum
board partition.
 and other relevant indicia of planning efficiency and flexibility.
 Column grid, window grid and ceiling grid all modular and related
to one another on a 5’ module.
 100 PSI live load throughout
 Mix of ambient and direct lighting
 Consistent 9’ ceiling height; 10’ for training and conference rooms.
 Flexible infrastructure.
 Generally, a rectangular floor plan.
As to the Number of Buildings sub-factor, the Source Selection Plan indicated that
adjectival ratings would be based on the number of buildings, with “Superior” ratings
given to offers that proposed one building.12
Regarding the Quality of Building Architecture, Building Systems, and
Construction sub-factor, the Source Selection Plan included a long list of building
features that would be assessed. The Source Selection Plan stated, “[b]uildings whose
construction and architectural finishes meet or exceed industry standards for new, first-
class construction in prime commercial office districts will be rated more highly.”
12
All five offerors proposed a single building, thus, as indicated below, all offers
received a “Superior” rating on the Number of Buildings sub-factor.
11
Finally, the Source Selection Plan detailed how the Past Performance and Key
Personnel sub-factors would be evaluated. For the Past Performance sub-factor, the
Source Selection Plan indicated that the government would review three references and
three case studies for each offeror, to “evaluate the offeror’s Past Performance –
including development, design, construction and property management – on projects of
similar size, scope and complexity.” Regarding the Key Personnel sub-factor, the
Source Selection Plan stated that “[t]he Government will evaluate the offeror’s entire
design, construction, and management team” for their qualifications and relevant
experience.
The Source Selection Plan stated that, after the Technical Evaluation Teams
completed their technical evaluations of all offers, the Source Selection Evaluation
Board was to compare each proposal’s final technical evaluation with its price. If the
offer with the highest technical evaluation also had the lowest price, that offer was to be
recommended to the Source Selection Authority for contract award. If not, however, the
Source Selection Evaluation Board was responsible for deciding “whether the higher
price proposed by the best technical proposal is justified by the differential in price and
the technical merit as compared to the second ranked technical offer” by conducting a
trade-off analysis. The Source Selection Plan emphasized that the Source Selection
Evaluation Board had “a degree of discretion” in conducting the trade-off analysis, and
that “[t]he degree of difference in technical merit in terms of evaluation ratings or scores
need not be proportional to the difference in price for a technically superior offer to be
selected,” but that the Agency must demonstrate “with reasonable certainty that the
added value of the proposal is worth the higher price.” Once the Source Selection
Evaluation Board made a decision, the Source Selection Authority, “in consultation with”
the Contracting Officer, was required to “validate or question the recommendation of the
successful offer,” using independent judgment, and if appropriate, select another offer.
The Source Selection Plan stated that “[e]ach of these actions must be accompanied by
a written narrative justification explaining why the selected offer represents the best
value to the Government, or, if applicable, why the SSEB’s recommendation is not
approved.”
Initially, Defendant received five offers in response to the Solicitation, from King
Farm Associates, LLC (King Farm), Metroview Development Holdings, LLC
(Metroview),13 One Largo, University Town Center (University),14 and Fishers Lane. On
February 26, 2010, after funding issues delayed the procurement, a revised Solicitation
was issued, and the same five offerors responded in November 2010. Each of those
five offers was evaluated by the Technical Evaluation Teams and the Source Selection
Evaluation Board. After several rounds of discussions, revised proposals were
13
Metroview is referred to interchangeably throughout the Administrative Record as
Metroview and New Carrollton. This opinion refers to the offeror as Metroview, unless
directly quoting from the Administrative Record.
14
University is referred to interchangeably throughout the Administrative Record as
University, University Town Center, and UTC. This opinion refers to the offeror as
University, unless directly quoting from the Administrative Record.
12
submitted. Ultimately, Defendant requested, and received, final proposals from all five
offerors.
As instructed in the Solicitation, the Contracting Officer performed a present
value calculation and determined the net present value (NPV) per usable square foot for
each of the five offers:
Price Rank Offeror NPV Difference from
lowest NPV
1 King Farm $23.82 n/a
2 Fishers Lane $24.74 $0.92
3 One Largo $27.83 $4.01
4 University $27.89 $4.07
5 Metroview $27.95 $4.13
The Technical Evaluation Teams reviewed the five offerors’ final proposals and
submitted their reports to the Source Selection Evaluation Board in December 2010.
The Source Selection Evaluation Board then conducted its own review and issued its
report on January 12, 2011. In conducting its evaluations, the Source Selection
Evaluation Board stated that it was “guided by the SSP [Source Selection Plan] and
SFO [Solicitation], the evaluation factors, the specific weights assigned to them, [and]
the TET’s findings and recommendations regarding the ratings and merits of the offer,”
as well as the Source Selection Evaluation Board’s “own independent evaluation of the
offers on a factor by factor basis.” Before receiving any pricing information on the
proposals, the Source Selection Evaluation Board assigned the following adjectival
ratings on each technical sub-factor for each offeror:
13
Location (45%) Building Characteristics (45%) Past Performance/Key Overall
Personnel (10%)
Access to Access to Number Planning Quality of Past Key
Metrorail Amenities of Efficiency Architecture, Performance Personnel
(35%) (10%) Buildings (15%) Building (5%) (5%)
(20%) Systems, &
Construction
(10%)
King Marginal Highly Superior Superior Superior Superior Superior Highly
Farm Successful Successful
New Superior Marginal Superior Superior Superior Neutral Superior Superior
Carrollton
One Superior Successful Superior Superior Superior Neutral Superior Superior
Largo
Parklawn Highly Superior Superior Highly Superior Superior Superior Superior
Successful Successful
UTC Highly Superior Superior Superior Highly Superior Highly Superior
Successful Successful Successful
The Source Selection Evaluation Board’s technical sub-factor ratings largely matched
those assigned to each offeror by the Technical Evaluation Teams, with several
exceptions: 1) the Building Characteristics Technical Evaluation Team assigned
University’s offer a “Superior” rating for the Quality of Building Architecture, Building
Systems, and Construction sub-factor, while the Source Selection Evaluation Board
assigned a “Highly Successful” rating; 2) the Past Performance and Key Personnel
Technical Evaluation Team assigned King Farm a “Highly Successful” rating for the
Past Performance sub-factor, whereas the Source Selection Evaluation Board assigned
a “Superior” rating; and 3) the Past Performance and Key Personnel Technical
Evaluation Team assigned University a “Superior” rating on the Key Personnel sub-
factor, while the Source Selection Evaluation Board assigned a “Highly Successful”
rating. There were also some discrepancies between the numbers of significant and
minor strengths and weaknesses assigned to various offerors on various sub-factors by
the Technical Evaluation Teams and the Source Selection Evaluation Board,
respectively.
Turning to the specific evaluations of the Source Selection Evaluation Board,
regarding the Access to Metrorail sub-factor, the Source Selection Evaluation Board
stated that the government calculated the distance from the main entrance of One
Largo’s building to the turnstiles of the nearest Metrorail entrance to be 525 walkable
linear feet, and the distance from One Largo’s building to the entrance of the nearest
Metrorail to be less than 525 walkable linear feet. Therefore, Plaintiff was given a
“Superior” rating on this sub-factor. For Fishers Lane, the distance from the proposed
main entrance of the building to the entrance of the nearest Metrorail was calculated at
2,407 walkable linear feet, under the 2,500 walkable linear feet indicated as significant
14
in the Solicitation. Based on that measurement, Fishers Lane was rated “Highly
Successful.”
Under the Access to Amenities sub-factor, One Largo was assigned a
“Successful” rating, as the Source Selection Evaluation Board found that six amenity
categories were located within 2,500 walkable linear feet of the proposed building site.
Fishers Lane received a “Superior” rating based on the presence of nine amenity
categories within 1,500 walkable linear feet of the proposed building site.
With respect to the Planning Efficiency and Flexibility sub-factor, the Source
Selection Evaluation Board indicated:
For those Offers included in the competitive range, the final evaluation will
also consider the test fits prepared by the Offeror’s architect for a typical
floor as certified by the Offeror. The Government prefers solutions that
offer integrated performance effectiveness with more efficiency and more
flexibility for layout with flexibility for future reconfiguration. The
Government also prefers to minimize the travel distance between
employees within facility(ies). The Government will also coordinate the
percentage of usable office space that can be located within 45’ of a
windowed perimeter. Ratings will be based on strengths and weaknesses
of offer.
The Source Selection Evaluation Board rated One Largo as “Superior” for the
Planning Efficiency and Flexibility sub-factor, and found that it had four significant
strengths, six minor strengths, no significant weaknesses, and four minor weaknesses.
The Source Selection Evaluation Board indicated that One Largo’s significant strengths
were:
 87% Common Area Factor exceeds the Source Selection Plan
preference of 75%, resulting in a more efficient floor plate.
 5’ on center mullion spacing meets Source Selection Plan
preference increasing daylight penetration and improving office
views.
 65,440 SF floor plate greatly exceeds the Source Selection Plan
preference of 36,000 SF, limiting the amount of employee
dispersion and increasing overall efficiency.
 In accordance with the SSEB rating table, a 1.117 Rentable to
Usable Square Foot Ratio (“r/u”) translates to a more efficient floor
plate.
15
The Source Selection Evaluation Board indicated that One Largo’s minor strengths
were:
 Z-type corridor meets the Source Selection Plan preference.
 8’ 6” typical ceiling height exceeds the Solicitation standard,
promoting a greater sense of openness.
 Interior core meets the Source Selection Plan preference, which
translates to a more efficient floor plate.
 Column free areas increase ease of space planning.
 80 pounds per square foot live load exceeds the Solicitation
standard and allows for greater storage and workstation flexibility.
 The majority of the space consists of 30’ x 45’ column spacing
which meets the Source Selection Plan’s “optimum” spacing
preference.
The Source Selection Evaluation Board noted that there were no significant
weaknesses and identified the minor weaknesses in One Largo’s proposal as:
 non-uniform column spacing, which negatively affects space planning
and decreases the Government’s flexibility in arranging systems
furniture;
 non-rectangular floor plate, which does not meet the Source Selection
Plan preference and decreases the overall efficiency as well as
efficiency of space planning;
 non-rectangular core does not meet Source Selection Plan preference;
and
 the distance from the core to the window wall exceeds the 45’ Source
Selection Plan preference in certain areas.
In its “Consensus Grade,” the Source Selection Evaluation Board stated:
The SSEB was split 4-1, however the majority concluded that the Offeror
[One Largo] made significant design modifications that directly addressed
technical deficiencies including column spacing, which was eliminated as
a significant weakness, and a decrease in the R/U ratio which resulted in
an improved rating. The SSEB members concurred that the offered site
met and in many cases exceeded the SSP [Source Selection Plan]
preference, and as a result assigned a SUPERIOR rating based on the
abundance of significant strengths, and the elimination of their one (1)
significant weakness. The dissenting opinion was that the final grade be
Highly Successful due to the numerous minor weaknesses. However, per
the SSP, agreement was reached because there was no significant
difference in the evaluator’s grades by more than a single adjective.
(emphasis in original).
16
Fishers Lane was rated as “Highly Successful” on the Planning Efficiency and
Flexibility sub-factor, and the Source Selection Evaluation Board found that its proposal
had five significant strengths, three minor strengths, one significant weakness, and four
minor weaknesses. The Source Selection Evaluation Board indicated that the significant
strengths in Fishers Lane’s proposal were:
 54,970 SF floor plate exceeds the Source Selection Plan
preference of 36,000 SF, limiting the amount of employee
dispersion and increasing overall efficiency
 88% Common Area Factor exceeds the Source Selection Plan
preference of 75%, resulting in a more efficient floor plate.
 5’ on center mullion spacing meets Source Selection Plan
preference, increasing daylight penetration and improving office
views.
 The interior core is less than 45’ from the window wall, significantly
increasing the natural light penetration within the building.
 100 pounds per square foot live load meets the Source Selection
Plan preference and exceeds the Solicitation standard, which
allows for greater storage and workstation flexibility
The Source Selection Evaluation Board indicated that the minor strengths in Fishers
Lane’s proposal were:
 8’ 2” – 8’ 10’ typical ceiling height exceeds the Solicitation standard,
promoting a greater sense of openness.
 In accordance with the SSEB rating table, a 1.13 Rentable to
Usable Square Foot Ratio (“r/u”) translates to a more efficient floor
plate.
 Interior core meets Source Selection Plan preference, which
translates to a more efficient floor plate.
The Source Selection Evaluation Board noted that the significant weakness in Fishers
Lane’s proposal was that the “20’ X 24’ and 19’ X 20’ column spacing is less than the
SSP [Source Selection Plan] preference of 25', which negatively affects space
planning,” and identified the minor weaknesses in Fishers Lane’s proposal as:
 non-rectangular floor plate does not meet the Source Selection Plan
preference and decreases the overall efficiency as well as efficiency of
space planning;
 non-uniform column spacing, which negatively affects space planning
and decreases the Government’s flexibility in arranging systems
furniture;
 non-rectangular core does not meet Source Selection Plan preference;
and
 U-shape corridor increases the travel time between offices, and
negatively affects the overall efficiency of the building.
17
In its “Consensus Grade” the Source Selection Evaluation Board stated: “[t]he SSEB
members concurred that while the offered site [Fishers Lane] meets many of the SSP
preferences, the offer had at least one (1) significant weakness, which did not change
as a result of the Offeror’s December 17, 2010 Final Proposal Revision, and as a result
assigned a HIGHLY SUCCESSFUL rating.” (emphasis in original).
As to the Past Performance sub-factor, the Source Selection Evaluation Board
assigned One Largo a “Neutral” rating, stating: “The Offeror did not provide any
evidence of any relevant past performance, including past projects or references”
because it was not available, “and will therefore be rated neutral.” Fishers Lane,
however, received a “Superior” rating on the Past Performance sub-factor based on
three significant strengths and no minor strengths, significant weaknesses, or minor
weaknesses. One Largo and Fishers Lane received identical ratings on the remaining
technical sub-factors, earning “Superior” ratings on the Number of Buildings, the Quality
of Building Architecture, Building Systems, and Construction, and the Key Personnel
sub-factors.
The Source Selection Evaluation Board assigned “Superior” overall technical
ratings to each of the offerors, except King Farm, which was rated “Highly Successful”
overall. The Source Selection Evaluation Board then provided an explanation of each
offeror’s overall technical rating, based on the weighted factors assigned in the Source
Selection Plan described above. The weighted factors meant that an offeror could
receive a high percentage of one rating even if only receiving that rating on a low
number of the sub-factors.
Adding up the percent values assigned to each technical sub-factor in the Source
Selection Plan, the Source Selection Evaluation Board calculated that King Farm
received a “Superior” rating on fifty-five percent of technical sub-factors, a “Marginal”
rating on thirty-five percent, and a “Highly Successful” rating on ten percent. The
Source Selection Evaluation Board stated: “While the Offeror received Superior ratings
in five (5) subfactors, the SSEB [Source Selection Evaluation Board] decided that a
marginal rating in the most heavily weighted subfactor (Access to Metrorail), lowers the
overall rating to Highly Successful.”
Metroview received a “Superior” rating on eighty percent of technical sub-factors,
a “Marginal” rating on ten percent, a “Highly Successful” rating on five percent, and a
“Neutral” rating on five percent. The Source Selection Evaluation Board found, “[t]his
Offeror received Superior in four (4) categories including three (3) of the most heavily
weighted categories. The Marginal rating received for Access to Amenities was only
10% of the overall rating and therefore does not justify lowering the rating to Highly
Successful.”
One Largo received “Superior” ratings on eighty-five percent of technical sub-
factors, a “Successful” rating on ten percent, and a “Neutral” rating on five percent. In
assigning One Largo an overall “Superior” rating, the Source Selection Evaluation
18
Board reasoned: “Five (5) of the subfactors are rated as Superior, including three (3) of
the most heavily weighed subfactors.”
Fishers Lane received a “Superior” rating for fifty percent of technical sub-factors,
and a “Highly Successful” rating for the other fifty percent. The Source Selection
Evaluation Board assigned Fishers Lane an overall “Superior” rating because “[t]he
Offeror received five (5) out of seven (7) Superior subcategory ratings, while the other
two (2) subcategories were rated as Highly Successful.”
University received “Superior” ratings on fifty percent of technical sub-factors,
and “Highly Successful” ratings on the other fifty percent. In justifying its overall
“Superior” rating for University, the Source Selection Evaluation Board noted that “[t]he
Offeror received ratings of Superior in four (4) out of the seven (7) subfactors. The
remaining three (3) categories were rated as Highly Successful.”
After evaluating the technical factors, the Source Selection Evaluation Board
conducted a trade-off analysis, comparing price to the technical benefits of each offer,
because the most highly rated technical proposal was not submitted by the lowest
priced offeror, King Farm. The Source Selection Evaluation Board stated that, of the
four offers that received an overall “Superior” rating, Fishers Lane had the lowest price.
The next lowest priced “Superior” offer was One Largo, which proposed a price that was
twelve percent higher than the Fishers Lane’s proposal, and University and Metroview’s
proposals were priced higher than One Largo’s proposal. Therefore, the January 12,
2011 Source Selection Evaluation Board Report concluded that One Largo, University,
and Metroview were priced significantly higher than the lowest priced “Superior” offer
from Fishers Lane, and, therefore, “should be eliminated in a trade off discussion.” The
Source Selection Evaluation Board then noted that King Farm put forth the lowest
priced offer overall. Because the lowest priced offer was not the highest technically
rated offer, the Source Selection Evaluation Board determined that a trade-off analysis
was required with respect to King Farm and Fishers Lane.
The Source Selection Evaluation Board then conducted a comparison of King
Farm and Fishers Lane on each technical factor and sub-factor, and concluded that the
two offers “approached technical equality,” thus price became more important in the
analysis. The Source Selection Evaluation Board determined that, over the life of the
lease, the Fishers Lane proposal would cost $39,000,000.00 more than King Farm’s
proposal. Although there initially was disagreement among Board members,15 the
15
The Source Selection Evaluation Board’s January 12, 2011 Report indicated that the
Source Selection Evaluation Board was initially divided on whether King Farm or
Fishers Lane represented the best value to the government. The majority of Board
members supported King Farm, finding that its distance from Metrorail was mitigated by
its provision of shuttle service, and that Fishers Lane’s weaknesses on the Planning
Efficiency and Flexibility sub-factor did not warrant Fishers Lane’s higher price,
compared to King Farm. The members who supported Fishers Lane argued that
Fishers Lane’s advantage over King Farm on the Access to Metrorail sub-factor, as well
as its overall higher technical rating, warranted its higher price, given that price was of
19
Source Selection Evaluation Board eventually decided, unanimously, that “the
perceived benefits of Parklawn’s [Fishers Lane’s] offer and the value of Parklawn’s
technical factors that lead to its Superior rating were not significantly higher than those
of King Farm and did not merit the additional cost of the net present value differential
between its offer and that of King Farm.” Based on this trade-off analysis, the Source
Selection Evaluation Board stated that the King Farm offer provided the best overall
value to the government and recommended that the Source Selection Authority select
King Farm.
After the Source Selection Evaluation Board made its recommendation to the
Source Selection Authority, Ms. Monica Sias,16 expressed concerns regarding the
Source Selection Evaluation Board’s technical evaluation system and its award
recommendation.17 The Source Selection Authority, therefore, invoked her authority to
order the re-evaluation of offers, asking the Source Selection Evaluation Board to take a
second look at all of its technical ratings, as well as its trade-off analysis. On February
3, 2011, the Source Selection Evaluation Board adopted an Addendum to the Source
Selection Evaluation Board’s January 12, 2011 Report. The Source Selection
Evaluation Board adopted only one change to its evaluation of technical sub-factors,
regarding its analysis of parking18 under the Quality of Building Architecture, Building
Systems, and Construction sub-factor. This had no effect on any offerors’ adjectival
ratings on that sub-factor. The Source Selection Evaluation Board, however, also
determined that, in assigning overall technical ratings to each offeror, the Source
significantly less importance than technical merit for this Solicitation. After further
discussion, the Source Selection Evaluation Board unanimously decided that King Farm
represented the best value to the government.
16
As indicated below, Ms. Sias was not the final decision maker in this case, as Cathy
Kronopolous, GSA’s Regional Commissioner for the Public Buildings Service (PBS),
National Capital Region, exercised her authority as the Head of Contracting Authority
for PBS’s National Capital Region to make the ultimate source selection determination.
17
The Source Selection Evaluation Board’s February 3, 2011 Addendum described the
Source Selection Authority’s concerns with the Source Selection Evaluation Board’s
January 12, 2011 Report, stating that Ms. Sias was uncomfortable with the fact that the
Source Selection Evaluation Board recommended the only offer that was rated “Highly
Successful,” while all of the others were rated overall “Superior,” because the
Solicitation stated that price was significantly less important than technical ratings for
the trade-off analysis.
18
Parking was evaluated in the Source Selection Evaluation Board’s January 12, 2011
Report, however, in the February 3, 2011 Addendum, the Source Selection Evaluation
Board determined that King Farm merited an additional minor strength under the Quality
of Building Architecture, Building Systems, and Construction sub-factor because of its
“abundance of on-site parking (2,850 spaces).” The Source Selection Evaluation Board
did not assign any further strengths or weakness to any other offeror related to parking.
20
Selection Evaluation Board had failed to account for the fact that, in accordance with the
Solicitation, the Location factor and Building Characteristics factor were supposed to be
equally weighted. The Source Selection Evaluation Board, therefore, decided that it
“needed to evaluate each offer at the factor level in order to establish the overall rating,”
rather than at just the sub-factor level, as it had done in its January 12, 2011 Report. In
addition, the Source Selection Evaluation Board reassessed its basis for assigning
overall technical ratings, concluding that “in order for an offer to receive an overall
technical rating of Superior, there must be no perceived Significant Weakness in any
Factor,” and even “any Significant Weaknesses in a sub-factor rating could have a
downward influence on an overall rating.” The Source Selection Evaluation Board
assigned each offer a technical rating for each factor, as well as a new overall technical
evaluation rating, although it left all of the sub-factor ratings unchanged from its January
12, 2011 Report. The Source Selection Evaluation Board’s February 3, 2011
Addendum included a new chart reflecting this information, as follows:19
Location Building Past Final Overall
Overall Characteristics Performance/Key Rating
(45%) Overall (45%) Personnel
Overall (10%)
King Farm Successful Superior Superior Highly
Successful
New Highly Superior Highly Highly
Carrollton Successful Successful Successful
(5%)20
One Largo Highly Superior Superior (5%) Highly
Metro Successful Successful
Parklawn Highly Highly Superior Highly
Successful Successful Successful
University Highly Highly Highly Highly
Town Center Successful Successful Successful Successful
The Source Selection Evaluation Board concluded in its February 3, 2011
Addendum that all five offers were technically equivalent, each deserving an overall
rating of “Highly Successful.” The Source Selection Evaluation Board included in the
February 3, 2011 Addendum an explanation of each offeror’s overall technical rating.
The Source Selection Evaluation Board found that each of the offers had many
strengths, but that each had at least one significant weakness on at least one sub-
19
The chart included in the February 3, 2011 Addendum also included the technical
ratings for each sub-factor. The sub-factor ratings did not change from the Source
Selection Evaluation Board’s original January 12, 2011 Report.
20
The percentages for Metroview and One Largo were included in the chart with a
footnote indicating that the “[o]ffers received a NEUTRAL rating for Past Performance
subfactor, which was not considered.” (emphasis in original)
21
factor, warranting a “Highly Successful” rating overall, rather than “Superior.” Because
the Source Selection Evaluation Board determined “the technical differences among the
offers was negligible,” the Source Selection Evaluation Board unanimously decided that
the offers were technically equivalent, thereby, making price an important factor.
Because King Farm was the lowest priced offer and had earned the same overall
technical rating as the other four offers, the Source Selection Evaluation Board
“determined that a cost/technical trade off discussion was unnecessary.” The Source
Selection Evaluation Board acknowledged that King Farm’s offer had received only a
“Successful” rating on the most important sub-factor, Access to Metrorail, but decided
that this was King Farm’s only significant weakness, and that each other offer also had
at least one significant weakness. Thus, “[a]ny perceived benefits” of another offer
“would not justify the price differential between that offer and that of King Farm.” The
Source Selection Evaluation Board, therefore, found for a second time, in its February
3, 2011 Addendum, that King Farm represented the best overall value to the
government and recommended that Ms. Sias, as the Source Selection Authority, select
King Farm as the winning offeror.
After receiving the recommendation of the Source Selection Evaluation Board,
Ms. Sias issued a selection decision on February 16, 2011. She stated that the Source
Selection Evaluation Board’s findings regarding the technical strengths and weaknesses
of each offer were consistent with the Solicitation’s criteria. She also indicated that she
agreed with the Source Selection Evaluation Board’s technical ratings at the sub-factor
level, as well as its recommendation to award the contract to King Farm. Ms. Sias,
however, disagreed with the Source Selection Evaluation Board’s sub-factor level
ratings and overall technical ratings, and based her selection decision on a different
analysis than that of the Source Selection Evaluation Board. Ms. Sias indicated that
she did not find all five offers “to be equal in terms of their technical merit,” although she
found them “to be technically very close.” Instead she found that One Largo and
University deserved overall ratings of “Superior,” while the other three offerors deserved
overall ratings of “Highly Successful.”
Regarding One Largo, Ms. Sias disagreed that its “Successful” rating on the
Access to Amenities sub-factor should lower its overall rating for the Location factor,
given that One Largo was rated “Superior” on the Access to Metrorail sub-factor, and
“Access to Metrorail was supposed to be given considerably more weight than the
Amenities subfactor” when assessing the Location factor as a whole. Ms. Sias
concluded that One Largo deserved a “Superior” rating on the Location factor and,
because it also had received “Superior” ratings on the Building Characteristics factor
and Past Performance and Key Personnel factor, it should be given an overall rating of
“Superior.” With respect to University, Ms. Sias found that one significant weakness on
the least heavily weighted sub-factor, Quality of Building Architecture, Building Systems,
and Construction, was not enough to lower University’s rating for the Building
Characteristics factor, and that it had only a minor weakness relating to the Key
Personnel sub-factor for the Past Performance and Key Personnel factor. Therefore,
she raised University’s rating on both the Building Characteristics factor and the Past
Performance and Key Personnel factor to “Superior,” and found that University should
22
earn an overall “Superior” rating. Ms. Sias agreed with the analysis contained in the
Source Selection Evaluation Board’s February 3, 2011 Addendum regarding each of the
other three offers.
Although Ms. Sias changed One Largo’s and University’s overall ratings, she
agreed with the Source Selection Evaluation Board’s recommendation that King Farm
represented the best value to the government. This was based on her conclusion that
the “additional technical merit achieved by the One Largo Metro and the UTC
[University] offers d[id] not warrant the additional cost of those offers.” Ms. Sias
indicated that all five offers were “technically very close,” therefore she conducted a
trade-off analysis and compared the two “Superior” offers, One Largo and University,
against the lowest priced “Highly Successful” offer, King Farm. One Largo’s offer was
priced 16.8% higher than King Farm’s offer, Ms. Sias noted, making it $90,404,890.00
more expensive over the life of the lease. She determined that the “only measurable
technical differences” between One Largo’s and King Farm’s offers were in the Location
factor, under which King Farm was rated more highly on the Access to Amenities sub-
factor, while One Largo was rated more highly on the Access to Metrorail sub-factor.
Ms. Sias reasoned:
The issue then is whether or not the added technical benefit of being
closer to a Metrorail station, although with fewer amenities, is worth paying
an additional 16.8%, a significant cost increase that amounts to more than
$90 million over the life of the lease. I find that it is not.
Ms. Sias’ analysis with respect to University was similar to the One Largo
analysis. She noted that University’s offer was priced even higher than One Largo’s
offer, and that the differences between University’s offer and King Farm’s offer on the
Access to Metrorail and Access to Amenities sub-factors were even smaller than the
difference between King Farm and One Largo. Ms. Sias stated: “I do not find that the
technical difference in the Location factor, with a Highly Successful overall to UTC
[University] and Successful overall to King Farm merits the additional cost of
$91,690,896.” Thus, even though One Largo and University were rated more highly
overall, Ms. Sias concluded that those two offers did not “have sufficient additional
technical merit to warrant paying the additional costs,” and that King Farm represented
the best overall value to the government.
Pursuant to the Solicitation, the Source Selection Authority was assigned the
responsibility to make the source selection decision in this case. In this case, however,
Cathy Kronopolous, GSA’s Regional Commissioner for the PBS, National Capital
Region, exercised her responsibility as the Head of Contracting Authority for the Region
and made the ultimate source selection determination. According to Ms. Kronopolous,
she exercised her authority because the procurement at issue was the largest lease
acquisition being undertaken by GSA at the time and had attracted a great deal of
political interest. Ms. Kronopolous issued her first written selection decision on March 8,
2011, after having been briefed on both the Source Selection Evaluation Board’s
recommendation and the Source Selection Authority’s decision, and after reviewing the
23
Solicitation, the Source Selection Plan, the Technical Evaluation Teams’ reports, the
Source Selection Evaluation Board’s Report, Addendum, and Award Recommendation,
as well as Ms. Sias’ review. Ms. Kronopolous disagreed with both the Source Selection
Evaluation Board’s recommendation, and the Source Selection Authority’s award
decision, and decided to relieve the Source Selection Authority of her responsibility for
the procurement.
In her March 8, 2011 decision, Ms. Kronopolous initially noted that the Source
Selection Evaluation Board’s sub-factor ratings did not change from its original January
12, 2011 Report to its February 3, 2011 Addendum, and that the Source Selection
Authority also used the same sub-factor ratings as the Source Selection Evaluation
Board. Ms. Kronopolous stated that she also “relied on the sub-factor ratings and
narrative provided in the SSEB report [Source Selection Evaluation Board’s January 12,
2011 Report].” Ms. Kronopolous determined, however, that the Source Selection Plan
did not require rating each offer at the factor level, as the Source Selection Evaluation
Board had done in its February 3, 2011 Addendum and the Source Selection Authority
had done in her written decision. Therefore, Ms. Kronopolous “did not find it necessary
to arrive at factor level ratings.” Finally, Ms. Kronopolous agreed with the Source
Selection Evaluation Board’s overall technical evaluations in its original January 12,
2011 Report, “Superior” for all offerors, except King Farm, which was rated “Highly
Successful” overall. She concluded, however, that “offerors with the same overall rating
[were] not necessarily technically equal.”
Ms. Kronopolous decided that, despite its higher price compared to King Farm,
Fishers Lane represented the best value to the government. Ms. Kronopolous initially
focused on comparing King Farm and Fishers Lane, the two lowest priced offerors. Ms.
Kronopolous indicated that Fishers Lane’s offer had received a “Superior” rating on fifty
percent of the technical sub-factors, and a “Highly Successful” rating on the other fifty
percent. King Farm’s offer, on the other hand, had received a “Superior” rating for fifty-
five percent of technical sub-factors, a “Highly Successful” rating for ten percent, and a
“Marginal” rating for thirty-five percent. Ms. Kronopolous performed the following
comparison of the Fishers Lane and King Farm proposals:
King Farm and Parklawn [Fishers Lane] received identical ratings for Past
Performance (5%), Key Personnel (5%), Number of Buildings (20%), and
Quality of Building Architecture, Systems, and Construction (10%). King
Farm received a rating of Superior for Planning and Efficiency and
Flexibility (15%) while Parklawn received a rating of Highly Successful for
that sub-factor. However, Parklawn received a rating of Superior for
Access to Amenities (10%) while King Farm received a rating of Highly
Successful for that sub-factor. Significantly, Parklawn received a Highly
Successful rating for Access to Metrorail (35%) while King Farm only
received a Marginal rating.
Although Fishers Lane and King Farm received “the same or similar adjectival scores
on all technical sub-factors other than Access to Metrorail,” Ms. Kronopolous
24
determined that the two proposals did not approach technical equality, as the Source
Selection Evaluation Board and the Source Selection Authority had found. Instead, in
her March 8, 2011 selection decision, Ms. Kronopolous concluded that Fishers Lane’s
offer was rated substantially higher on the most important sub-factor, Access to
Metrorail, making it technically superior to King Farm’s offer, as well as the best overall
value to the government, despite its higher price compared to King Farm’s offer.
Ms. Kronopolous then compared Fishers Lane’s offer with University, One Largo
and Metroview’s offers. With respect to University, Ms. Kronopolous decided that the
two offers were “essentially equal from a technical standpoint,” thus University’s
significantly higher price made Fishers Lane’s offer the better value. Regarding One
Largo, Ms. Kronopolous acknowledged that One Largo had received Superior ratings
for eighty-five percent of technical sub-factors, including the three most important sub-
factors, Access to Metrorail (35%), Number of Buildings (20%), and Planning Efficiency
and Flexibility (15%). Ms. Kronopolous also acknowledged that One Largo had
received the highest percentage of “Superior” ratings of any of the offerors. She stated:
“It is clear this offeror [One Largo] presented an attractive technical proposal. I would
even go so far as to conclude that One Largo Metro was higher technically rated than
Parklawn [Fishers Lane].” She stressed, however, that One Largo’s net present value
was calculated to be $4.01 higher per square foot than the lowest priced offer from King
Farm, and $3.09 higher than the offer from Fishers Lane. This price difference
convinced Ms. Kronopolous that Fishers Lane represented a better overall value to the
government than One Largo. She concluded:
While I am again mindful that price in this procurement was significantly
less important that the combined weight of the technical factors, I am
unable to find that the technical advantage represented by One Largo
Metro [percentage increase over Parklawn] overcomes its cost difference
when compared to Parklawn. I find that the Parklawn proposal represents
a greater overall value to the Government than the One Largo Metro
proposal.
(brackets in original).
Finally, Ms. Kronopolous found that Metroview’s offer was rated “Superior” on
eighty percent of sub-factors, a slightly lower percentage than for One Largo, but that
Metroview’s offer was priced even higher than One Largo’s offer. Having determined
that One Largo’s technical superiority did not warrant the additional cost over Fishers
Lane, Ms. Kronopolous found it “equally clear that Parklawn [Fishers Lane] should
prevail over the New Carrollton [Metroview] proposal that is both lower technically rated
and higher priced than One Largo Metro.” Ms. Kronopolous, therefore, concluded in her
March 8, 2011 selection decision that Fishers Lane represented the best value to the
government, and directed the Contracting Officer to award the lease to Fishers Lane
and notify all of the offerors of the selection decision. The Contracting Officer notified
the offerors on March 10, 2011.
25
One Largo, King Farm, and Metroview each filed protests of Defendant’s award
to Fishers Lane with the GAO. The GAO consolidated the protests and stayed award of
the lease while the protests were pending. Each of the three protestors raised
numerous issues. King Farm challenged Defendant’s evaluation of the Access to
Amenities sub-factor in Ms. Kronopolous’ March 8, 2011 selection decision, arguing that
the Solicitation indicated that offers would be evaluated for the “quantity, variety, and
proximity of amenities offered,” but that Defendant had looked only at the number of
amenity categories covered by each offeror. Plaintiff also maintained that, in her March
8, 2011 selection decision, Ms. Kronopolous merely recited offerors’ ratings and prices,
without weighing the specific strengths and weaknesses of each proposal, as required
by the Solicitation. In particular, Plaintiff argued that Ms. Kronopolous did not
sufficiently credit One Largo for its technical superiority in the Access to Metrorail sub-
factor, as compared to Fishers Lane’s proposal, which offered a building nearly five
times as far from the nearest Metrorail station than One Largo’s proposal.
On June 20, 2011, the GAO issued its decision. The GAO sustained the protests
on two grounds: 1) Defendant’s evaluation of the Access to Amenities sub-factor was
inconsistent with the terms of the Solicitation’s provision requiring that offers be
evaluated for both quantity and variety of the amenities offered, and 2) Defendant’s
source selection decision dated March 8, 2011 was based upon a “mechanical
comparison” of the offers’ technical evaluations, and included “no evidence of any
meaningful consideration by the HCA [Ms. Kronopolous] of the evaluated differences in
the firms’ offers.”
With regard to the Access to Amenities sub-factor, the GAO found that the plain
language of the Solicitation required Defendant “to evaluate both the overall number of
amenities offered as well as the number of amenity categories,” and, in particular, to
evaluate the availability of eating facilities. Instead, Defendant had only counted
amenity categories, which had the effect of “ignor[ing] the type of amenity being
offered.” Therefore, the GAO found that Defendant’s “assignment of adjectival ratings
based only upon how many amenity categories were offered was not reasonable,” and
that Defendant’s error prejudiced the protestors.
Regarding Ms. Kronopolous’ March 8, 2011 selection decision, the GAO stressed
that source selection decisions “cannot be based on a mechanical comparison of the
offerors’ technical scores or ratings per se, but must rest upon a qualitative assessment
of the underlying technical differences among competing offers.” (citing The MIL Corp.,
B-294836, Dec. 30, 2004, 2005 CPD ¶ 29 at 8; Opti-Lite Optical, B-281693, Mar. 22,
1999, 99-1 CPD ¶ 61, at 5) (emphasis in original). The GAO found that Ms.
Kronopolous had deviated from the Source Selection Evaluation Board’s and Source
Selection Authority’s analyses and recommendations without explaining her rationale.
“[W]ithout explaining the basis for her disagreement with the conclusions of lower-level
evaluators,” the GAO stated, Ms. Kronopolous “proceeded to make conclusory
pronouncements concerning which proposal offered the best value to the government.”
The GAO found “no evidence of any meaningful consideration by the HCA of the
evaluated differences in the firms’ offers. Rather, the HCA’s tradeoff assessment was
26
based upon a mechanical comparison of the percentage of superior and highly
successful ratings assigned to each offer.”
The GAO emphasized that the Source Selection Evaluation Board’s January 12,
2011 Report included discussion of a number of differences between the various
proposals on each technical sub-factor, which Ms. Kronopolous could have used to
support her analysis and justify her decision to deviate from the Source Selection
Evaluation Board’s and Source Selection Authority’s recommendations. “In the
absence of a documented, meaningful consideration of the technical differences
between the offerors’ proposals, the HCA could not perform a reasonable tradeoff
analysis.” Therefore, the GAO concluded that Ms. Kronopolous “had no basis to
determine that” Fishers Lane’s proposal was more advantageous to the government
than any of the other offerors’ proposals.
The GAO recommended that Defendant: 1) re-evaluate the offers under the
Access to Amenities sub-factor in accordance with the terms of the Solicitation, and 2)
perform and document a new selection decision consistent with the GAO’s decision.
After the GAO issued its decision, Ms. Kronopolous followed the GAO’s advice and re-
evaluated the offers and, on August 24, 2011, issued a second written selection
decision. In her August 24, 2011 selection decision, Ms. Kronopolous again adopted
the findings of the Source Selection Evaluation Board’s January 12, 2011 Report
regarding all technical sub-factors, except Access to Amenities, which she reconsidered
based on the GAO’s findings. With respect to the Access to Amenities sub-factor, Ms.
Kronopolous noted that the Source Selection Evaluation Board’s evaluation was based
upon the chart laid out in the Source Selection Plan, included above. Ms. Kronopolous
explained that, using the Source Selection Plan’s chart, the Source Selection Evaluation
Board “counted the number of amenity categories located within 1,500 wlf and within
2,500 wlf, and assigned the adjectival rating that accorded with the SSP table.” Ms.
Kronopolous indicated that she began her analysis with the Source Selection Evaluation
Board’s findings, but that she also requested Defendant’s “broker”21 to “again research
and document the existence, distance, and hours of operation for all amenities for each
Offeror.” Based on the “GSA broker’s” research, she adjusted the Source Selection
Evaluation Board’s ratings to the extent she felt an adjustment was warranted. In
addition, Ms. Kronopolous explained that, to take into account the number and variety of
amenities offered by each offeror, she “considered not just the total number of amenities
offered, but also the distribution of the quantity among the various amenity categories”
mentioned in the Source Selection Plan. Finally, because the Solicitation emphasized
eating facilities, Ms. Kronopolous paid “special attention to the number of eating
establishments offered.”
21
“Broker” is the term used by Ms. Kronopolous in her August 24, 2011 selection
decision.
27
Therefore, Ms. Kronopolous created a new chart to assess each offer’s Access
to Amenities proposal. She incorporated the following chart regarding One Largo into
her August 24, 2011 selection decision:
Category Within 1,500 WLF Within 2,500 WLF
Restaurants
Fast Food 3 3
Day Care
Fitness Facility
Dry Cleaners
Bank/ATM 1
Postal Facility
Convenience Shop 1 1
Cards/Gift Shop 3
Hair Salons 1
Automotive Service
Stations
Drug Stores
Total Amenities 4 9
Total Categories 2 5
Based on this new chart, Ms. Kronopolous found that, according to the Source Selection
Plan, One Largo should receive only a “Successful” rating because it had at least five
amenities from the listed categories within 2,500 walkable linear feet. Ms. Kronopolous
added to her analysis, as follows:
While there are a good number of amenities and a few food options within
close proximity of the site, the site lacks a variety of additional amenities.
This lack of variety limits the errands and personal tasks that employees
can accomplish before and after work or during their lunch break.
Compounding this is the fact that 3 of the total amenities are card/gift
shops. Because of the lack of variety of amenities, taking the variety,
quantity, hours and proximity of amenities into consideration, I find that
One Largo Metro merits a rating of Successful for this subfactor.
28
Ms. Kronopolous included the following chart of Fishers Lane’s offered amenities:
Category Within 1,500 WLF Within 2,500 WLF
Restaurants
Fast Food 4 5
Day Care
Fitness Facility
Dry Cleaners 1 2
Bank/ATM 2 2
Postal Facility 1 1
Convenience Shop 1 1
Cards/Gift Shop 1 1
Hair Salons 1 2
Automotive Service 7 9
Stations
Drug Stores
Total Amenities 18 23
Total Categories 8 8
Ms. Kronopolous stated that Fishers Lane should receive a “Highly Successful” rating
on the Access to Amenities sub-factor, according to the Source Selection Plan, because
it had at least eight amenities within 2,500 walkable linear feet. She added: “In fact,
these same amenity categories are found within 1,500 wlf, offering even better access
for employees.” Ms. Kronopolous highlighted the number of eating establishments
within 2,500 walkable linear feet of Fishers Lane’s building, while indicating that she
only gave credit for a few of the nine automotive service stations offered, because
additional stations added only quantity, not quality. She concluded: “Because of the
variety, quantity, hours and proximity of amenities, I find that Parklawn [Fishers Lane]
merits a rating of Highly Successful approaching Superior for this subfactor.”
Ms. Kronopolous rated King Farm “Highly Successful approaching Superior” on
the Access to Amenities sub-factor, based on her finding that it offered twelve total
amenities in eight amenity categories within 1,500 walkable linear feet, and sixteen total
amenities in ten amenity categories within 1,500 walkable linear feet. Metroview
received a “Marginal” rating, as Ms. Kronopolous found it offered only four total
amenities in three amenity categories within 1,500 walkable linear feet, and no
additional amenities within 2,500 walkable linear feet. Finally, Ms. Kronopolous rated
University as “Superior” on this sub-factor, finding that University offered thirteen total
amenities in eight amenity categories within 1,500 walkable linear feet, and twenty-nine
total amenities in eleven amenity categories within 2,500 walkable linear feet. Although
this put University in the “Highly Successful” category according to the Source Selection
Plan, Ms. Kronopolous raised the rating to “Superior” based on the “significant variety”
of amenities offered, and the large number of eating facilities within close proximity of
the building.
29
After reassessing each offer under the Access to Amenities sub-factor, Ms.
Kronopolous turned to performing a new best value analysis and making a new
selection decision. The final sub-factor ratings she considered for each offeror were as
follows:
Location Building Characteristics Past Performance/Key
Personnel
Access to Access to Number of Planning Quality of Past Key
Metrorail Amenities Buildings Efficiency Building Performance Personnel
(35%) (10%) (20%) and Architecture, (5%) (5%)
Flexibility Systems,
(15%) Construction
(10%)
King Farm Marginal Highly Superior Superior Superior Superior Superior
Successful
approaching
Superior
New Superior Marginal Superior Superior Superior Neutral Highly
Carrollton Successful
One Largo Superior Successful Superior Superior Superior Neutral Superior
Metro
Parklawn Highly Highly Superior Highly Superior Superior Superior
Successful Successful Successful
approaching
Superior
University Highly Superior Superior Superior Highly Superior Highly
Town Successful Successful Successful
Center
Ms. Kronopolous, once again, adopted the specific strengths and weaknesses of each
offer contained in the Source Selection Evaluation Board’s January 12, 2011 Report,
noting that these remained the same in the Source Selection Evaluation Board’s
February 3, 2011 Addendum. Factoring in her assessment of the Access to Amenities
sub-factor, Ms. Kronopolous concluded that “the overall technical merits and ratings of
the offers” had not changed from her first decision. Ms. Kronopolous did not include
factor-level technical ratings. She again adopted the overall technical ratings contained
in the Source Selection Evaluation Board’s January 12, 2011 Report, which rated all of
the offerors as “Superior” overall, except King Farm, which was rated “Highly
Successful.” Ms. Kronopolous stated that, heeding the advice of the GAO, her new
trade-off analysis “look[ed] beyond the SSEB’s adjectival ratings to identify, review and
examine the strengths and weaknesses of each technical offer, and given those
strengths and weaknesses, to determine the relative technical merits of the offers.”
Ms. Kronopolous’ August 24, 2011 selection decision discussed each technical
sub-factor and compared all five offerors’ technical ratings on each sub-factor. Starting
with Access to Metrorail, Ms. Kronopolous stated that “One Largo is the strongest offer
in this important sub-factor, [sic] I also find that New Carrollton [Metroview] (1,280 wlf),
Parklawn [Fishers Lane] (2,407 wlf) and UTC [University] (2,350 wlf) are all within what
GSA considers to be reasonable walkable distance to Metro.” Ms. Kronopolous found
that King Farm, on the other hand, was a “substantially greater distance” from the
30
Metro, a weakness which was not overcome by its provision of shuttle bus service.
Regarding Access to Amenities, Ms. Kronopolous stated that, although University stood
out in terms of quantity, the offers of University, Fishers Lane, and King Farm “are the
strongest while One Largo Metro and New Carrollton [Metroview] are weaker due to the
fewer amenity categories offered.”
Ms. Kronopolous considered the three sub-factors under the Building
Characteristics factor together, stating: “The SSEB rated all offerors Superior in all three
categories, with the exception of Highly Successful ratings of Parklawn [Fishers Lane]
for Planning Efficiency and Flexibility, and of UTC [University] for Quality of Building
Architecture, Systems and Construction.” Ms. Kronopolous found that “the lower rating
of Parklawn for Planning Efficiency and Flexibility is justified by the building’s tight
column spacing that will affect future space planning and flexibility.” Ms. Kronopolous
noted, however, that “notwithstanding its adjectival rating, the layout of One Largo’s
building has non-uniform column spacing and a non-rectangular floor plate” and King
Farm also had non-uniform column spacing. She determined that “these weaknesses
are not of such severity as to detract from the overall quality of the offers, which were all
technically very strong in the Building Characteristics category.”
Finally, Ms. Kronopolous reiterated that the Source Selection Evaluation Board
had rated all offerors as either “Superior” (King Farm, Fishers Lane, and University) or
“Neutral” (Metroview and One Largo) on the Past Performance sub-factor, and as either
“Superior” (One Largo, Fishers Lane, and King Farm) or “Highly Successful” (Metroview
and University) on the Key Personnel sub-factor. Ms. Kronopolous found that, “[t]he
high ratings for this category reflect the strength of the proposed development teams of
all of the offerors, and the relatively minor differences which separate one offer from
another.”
Based on all of the technical sub-factors, Ms. Kronopolous found in her August
24, 2011 selection decision that the offers of Metroview, Fishers Lane, One Largo, and
University were “all of very high quality, and as a whole approach technical equality.”
Ms. Kronopolous determined, however, that King Farm deserved a lower overall
technical rating because of its significant weakness on the most important sub-factor,
Access to Metrorail.
Ms. Kronopolous then explained in more detail why she concluded that King
Farm did not approach technical equality with the other four offers. In particular, she
noted that “GSA considers 2,500 wlf to be a reasonable walking distance from a Metro
station to a federally occupied office building. If a location is further than this, it merits a
lower technical rating.” Ms. Kronopolous further explained the benefit of being within a
reasonable walking distance of 2,500 walkable linear feet, stating:
I find that being within reasonable walking distance to the Metro provides
a measurable benefit to the Government. It will allow for easier, more
convenient access for commuting, will allow HHS to reduce its carbon
footprint, and will allow HHS employees quick and efficient access to the
31
Metrorail for business purposes, an important consideration for tenant
agency.
Because King Farm was located farther than 2,500 walkable linear feet from a Metrorail
station, outside of a reasonable walking distance, Ms. Kronopolous determined that it
warranted only a “Marginal” rating on the Access to Metrorail sub-factor. Because King
Farm was the only offer to receive such a low rating on the most important sub-factor,
Ms. Kronopolous concluded that it was of a lower technical quality than the other four
offers.
Turning to the four offerors with an overall “Superior” rating, Ms. Kronopolous
concluded that “the significantly lower price of the Parklawn [Fishers Lane] offer makes
it the most advantageous to the Government on a Best Value basis.” She conducted a
comparison of Fishers Lane’s offer with each of the other offers, beginning with One
Largo. The section of her August 24, 2011 selection decision labeled “Parklawn v. One
Largo Metro” stated, in its entirety:
The areas of technical difference between Parklawn [Fishers Lane] and
One Largo Metro are in the following sub-factors: Access to Metro, Access
to Amenities, and Planning Efficiency and Flexibility.
One Largo Metro is less than 525 walkable linear feet to the Largo Town
Center Metro Station while Parklawn is 2,407 wlf from the Twinbrook
Metro Station. One Largo Metro therefore provides very easy access to
Metro, while Parklawn is further away, but within the standard walkable
distance to public transportation as established in other GSA
procurements. Therefore, I find that at either One Largo or Parklawn,
employees will be able to conveniently get to the Metro both for
commuting from/to home, and to go to meetings at other HHS locations
throughout the day providing a cost savings to the Government because
providing other means of transportation to the Metro and other HHS
locations will not be necessary.
Parklawn offers a greater variety and quantity of amenities with better
hours and closer proximity than One Largo. Looking at the total number of
amenities and the number of amenity categories within 2,500 walkable
linear feet, it is evident that Parklawn provides ample access to various
eating establishments and better access to a variety of other employee
service amenities. This will allow employees multiple food choices and
the ability to conduct errands, as necessary, before and after work and
during their lunch breaks. While One Largo Metro has a large total
number of amenities, there is a lack of variety of other employee service
amenities and a duplication of amenities within amenity categories.
With respect to the building’s planning efficiency and flexibility, Parklawn
has a significant weakness with respect to its tight column spacing. This
32
will negatively affect space planning and flexibility in future lease years.
One Largo Metro has larger column spacing; however, there are other
aspects of the space planning at One Largo Metro that will have a
negative effect on space planning and flexibility such as the non-uniform
column spacing and the non-rectangular floor plate.
One Largo Metro is $3.09 per square foot more than Parklawn, and
$51,156,702 more over the life of the lease.22 The technical merit
achieved by the proposal for One Largo Metro with respect to Access to
Metro and Planning Efficiency and Flexibility is not worth the additional
cost over Parklawn because: while One Largo Metro is closer to the
Metro, the distance of Parklawn to the Metro is considered by GSA to be
within easy walking distance; One Largo Metro also has Planning
Efficiency and Flexibility limitations such that the difference between the
two offers in this sub-factor is slight. Plus, Parklawn’s rating on the
Access to Amenities sub-factor exceeds that of One Largo Metro. The
much greater expense of One Largo Metro for an offer that may have a
small technical advantage over Parklawn does not represent the best
value to the Government.
In a footnote in her August 24, 2011 selection decision, Ms. Kronopolous
elaborated on what she considered a “reasonable walkable distance” and why she felt
the difference between Fishers Lane and One Largo was not that great on the Access
to Metrorail sub-factor:
In assessing the real world impact of this discrepancy in distance, I came
to understand, from various internet websites, that the walking speed of
the average adult is between 3 and 3.5 miles per hour. Using the lower
number, it would take about 9.45 to 9.5 minutes to walk 2,500 walkable
linear feet. Therefore, most employees will be able to walk the distance
from Metro to the Parklawn [Fishers Lane] Building in less than 10
minutes. In my judgment a 10 minute walk will not be a major barrier
preventing employees from commuting by Metro.
22
Defendant’s counsel stated at oral argument that the total cost of the lease would be
$431,715,162.00 for Fishers Lane’s proposal, while the total cost of the lease in One
Largo’s proposal would have been $482,871,864.00. Defendant arrived at those
numbers by multiplying the total annual rent per square foot, by the total rentable
square footage for each offer, dividing by twelve to get the rent per month, and then
factoring in the months of free rent offered by each offeror, as well as commission
credits. Those numbers do not appear in Ms. Kronopolous’ decision or in the
Administrative Record before the court.
33
After performing a similar comparison of Fishers Lane’s proposal with the
remaining offers, University, Metroview, and King Farm, Ms. Kronopolous again
concluded in her August 24, 2011 selection decision that Fishers Lane represented the
best overall value to the government. She emphasized that she was selecting the
lowest priced offer among the four offerors that had received overall “Superior” ratings.
Ms. Kronopolous specifically noted that the “cost difference ($51,156,702 over the life of
the lease) between Parklawn [Fishers Lane] and One Largo Metro is too great a delta to
overcome the minor benefits of closer access to the Metro, especially given that
Parklawn does provide convenient walkable distance to a Metro.” Ms. Kronopolous,
once again, instructed the Contracting Officer to award the lease to Fishers Lane. On
August 24, 2011, the lease was awarded to Fishers Lane and all other offerors were
notified accordingly.
One Largo, King Farm, and Metroview again protested the award at the GAO.
The GAO again consolidated the protests. The parties raised numerous challenges to
Defendant’s decision to award the contract to Fishers Lane. Specifically, Plaintiff raised
the following issues: 1) Defendant failed to credit One Largo with its advantage in
Access to Metrorail, 2) Defendant discredited One Largo’s superiority in Planning
Efficiency and Flexibility, 3) Defendant conducted its trade-off analysis in a manner
inconsistent with the Solicitation, and 4) Defendant did not base the award on the
Source Selection Official’s independent judgment.
Responding to these protests, Ms. Kronopolous submitted a declaration to the
GAO on October 6, 2011. In it, she explained the reasons for her decision to again
award the lease to Fishers Lane. She stated: “I determined that the technical offers of
New Carrollton [Metroview], Parklawn [Fishers Lane], UTC [University] and One Largo
were all of very high quality, and as a whole, approach equality. Therefore, price
became a more important factor.” Responding directly to One Largo’s argument that
her trade-off analysis was wrong because she weighed price too heavily, Ms.
Kronopolous stated:
As made clear in my August 24 decision, and consistent with the SFO
[Solicitation] and SSP, the degree of importance of price as a factor
increases as technical offers approach equality. Since my evaluation
determined that the OLM [One Largo Metro] and Parklawn [Fisher Lane]
offers approached technical equality, the importance of price in the trade-
off analysis properly and rationally became more important. To put it
another way, I did not find that the cost difference could be justified, where
the perceived difference in the value of the offers to the Government was
not commensurate.
The GAO held two days of hearings in conjunction with this protest on November
1 and November 2, 2011, during which Ms. Kronopolous gave extensive testimony.
When asked by Plaintiff’s counsel at the GAO hearing about her statement in her
August 24, 2011 selection decision that 2,500 feet is considered a reasonable walking
distance, Ms. Kronopolous testified:
34
Q: And what is beyond your footnote 6 that supports the notion that
GSA considers 2500 feet to be a reasonable walking distance?
A: In other solicitations, we use the same standard. So it is something
that we have used consistently to be beyond that you need a shuttle, so
it’s walkable.
Q: If I understand you right, you say in other solicitations, GSA uses
the same standard. Is the same standard that anything within 2500 feet is
a reasonable walking distance?
A: That’s the implicit, yes. And that’s how I’m interpreting it, yes.
Q: You say “implicit.” In those other solicitations, does it expressly say
that within 2500 feet is a reasonable walking distance?
A: It doesn’t use those words. I don’t know if it uses those words,
frankly.
Ms. Kronopolous was later asked about the 2,500 feet standard by counsel for
Metroview. She responded:
Q: Can you cite to any particular internal GSA policy or regulation such
as the GSAR [General Services Administration Acquisition Regulations] or
the GSAM [General Services Administration Acquisition Manual] that
might have that measurement or standard in it that we could refer to?
A: I don’t know if it exists there. I do know that it’s -- I don’t know if I
would call it a policy, but it’s definitely practice. So if -- and I’m sure -- so
it’s a practice in the solicitations themselves. I’m not aware of a document
where it’s captured.
Q: So you’re not aware of any particular written practice; am I correct?
A: I’m not aware, yes.
In addition, Ms. Kronopolous was asked by Defendant’s counsel to explain her
evaluation of Plaintiff’s and Fishers Lane’s offers on the Planning Efficiency and
Flexibility sub-factor. She stated that, in conducting her trade-off analysis, she went
beyond the adjectival ratings to look at the real differences between the two offers.
Q: And when you did that process, was there any findings or
conclusions you reached that affected how you did the trade-off analysis
or affected your evaluation?
35
A: To some extent, yes, because looking at the -- the technical
components of planning and efficiency and flexibility, there’s, like, five.
Core factor, building floor plate, building column spacing, which is what
the deficiency was for Fishers Lane. So what I looked at was the
assessment in the SSEB. I looked at the technical evaluation write-up as
well, and they did make a little distinction among themselves. But overall,
what I found was I agreed that there was a deficiency, there was a
significant weakness for Fishers Lane in the column spacing. So that was
a fact, and it was valid, and it warranted the adjectival rating of highly
successful. That said, when I looked at the factors, all the factors for
planning and evaluation, it wasn’t a go/no-go for column spacing. There
were other factors under consideration. And so four of them they met,
plus there were additional considerations under an “other” category of
which they had some strengths as well. So I looked at the significant
strengths, minor strengths, the significant weaknesses, the minor
weaknesses. And on the whole, I found that the differential from the
adjectival rating did not necessarily help understand -- help present the
true distinction. And I thought that the true distinction was not as
significant. Given that this was, you know, like the third rated overall kind
of importance for planning and the efficiency and flexibility and that they
were able to achieve a great deal of those.
Q: Was it your conclusion that there was no distinction?
A: No, I think there’s a distinction, yeah. Clearly, there’s a distinction.
There was no significant weakness in One Largo, so that’s -- absolutely. I
was just looking at, okay, looking beyond that, go deeper, what are the
benefits, what are the technical advantages, what are the technical
disadvantages of each offeror, and there was -- it was not as great of a
distinction as the adjectival ratings implied.
Asked specifically about the two minor weaknesses that she had cited as “limitations” of
One Largo’s offer, but which she had failed to mention were shared by Fishers Lane’s
proposal, Ms. Kronopolous testified:
Q: And can you explain the logic of where both had the same two
weaknesses, why that would make the difference between -- the rationale
for why that would make the difference between superior and highly
successful only slight?
A: Sure. I actually didn’t approach it that way. I didn’t look at it that
way. So what I looked at was there were some minor weaknesses in One
Largo’s as well, and those were two examples. So it was not to say that it
negates every -- it kind of counterweights and gives more advantage to
Fishers Lane. So my slight advantage was much more about, even
though I just acknowledged that there were some minor weaknesses
36
there, it was much more about the factor, if you look at the SFO
[Solicitation] and all the criteria that you look at in the planning and
efficiency and flexibility subfactor, that -- its -- the column spacing is still
just one of a number of criteria that they were looking for, that we were
looking for.
On December 5, 2011, the GAO denied the consolidated offerors’ protests
because the GAO found that Ms. Kronopolous’ decision was not unreasonable. In
terms of the Access to Metrorail sub-factor, the GAO emphasized that agency ratings
“are merely guides for intelligent decisionmaking.” The GAO found that Ms.
Kronopolous had “looked beyond the adjectival ratings to determine the practical
aspects of the distances from a Metrorail station.” The GAO concluded, “[t]he HCA was
not unreasonable in concluding, consistent with the SFO [Solicitation], that any distance
shorter than 2,500 wlf was a reasonable walking distance.” The GAO relied on the
Solicitation’s distinction between offers that were within 2,500 walkable linear feet and
those that were farther away, which required that shuttle service be provided for any
building beyond 2,500 walkable linear feet. The GAO reasoned that this distinction in
the Solicitation “indicated that the SFO contemplated that distances shorter than 2,500
were reasonable walking distances.” In addition, the GAO found that Ms. Kronopolous
had recognized One Largo’s superiority over Fishers Lane with respect to this sub-
factor, and that she had concluded that One Largo’s technical superiority “did not merit
the additional cost to the government.” In sum, the GAO concluded, “[a]lthough the
protestors’ disagree with the HCA’s decision in this regard, this disagreement does not
show that her judgment was unreasonable.”
The GAO also rejected Plaintiff’s argument that Ms. Kronopolous had minimized
One Largo’s superiority in Planning Efficiency and Flexibility relative to Fishers Lane’s
offer. Specifically, One Largo and Metroview both argued that Ms. Kronopolous was
unreasonable in finding that the significant weakness in Fishers Lane’s proposal, tight
column spacing, was nearly matched by the minor weaknesses in One Largo’s and
Metroview’s proposals, non-rectangular floor plans and non-uniform column spacing,
because Fishers Lane’s proposal also was found by the Source Selection Evaluation
Board to have those exact same minor weaknesses. The GAO found that Ms.
Kronopolous made no mention in her August 24, 2011 selection decision of the fact that
Fishers Lane’s proposal was found to have the same minor weaknesses as One
Largo’s and Metroview’s proposals. Moreover, the GAO acknowledged that Ms.
Kronopolous was not able to articulate an explanation for this omission in her testimony
at the GAO hearing. The GAO, however, concluded that:
[T]he record does not demonstrate that the protestors were competitively
prejudiced by the HCA’s actions. The SSEB report assessed significant
and minor strengths and weaknesses to each proposal, which the HCA
reviewed and adopted in making her tradeoff and selection decision. . . .
The weaknesses in dispute were only two among many criteria the SSEB
considered under this subfactor, which itself was only weighted 15
percent.
37
Finally, the GAO addressed the protestors’ arguments that Ms. Kronopolous had
improperly considered price in her trade-off analysis. One Largo and Metroview had
argued that Ms. Kronopolous gave undue weight to the lower price of Fishers Lane’s
proposal, while failing to give necessary weight to One Largo’s and Metroview’s
technical superiority in the most important sub-factor, Access to Metrorail. The GAO
found that Ms. Kronopolous had concluded in her August 24, 2011 selection decision
that the proposals of One Largo, Metroview, and Fishers Lane were “not equal, but
approaching technical equality,” and thus price should be a greater factor in comparing
those proposals. The GAO found Ms. Kronopolous’ “consideration of the firms’
respective proposed prices to be consistent with the SFO [Solicitation].” The GAO,
therefore, determined that the protestors had failed to demonstrate that Defendant’s
decision was unreasonable and denied the protests. King Farm requested
reconsideration of GAO’s decision, but reconsideration was denied.
Thereafter, One Largo filed the present post-award bid protest in the United
States Court of Federal Claims, claiming that Defendant’s evaluation of the Access to
Metrorail and Planning Efficiency and Flexibility sub-factors was arbitrary, capricious,
and contrary to law. Specifically, Plaintiff alleges that Ms. Kronopolous’ imposition of a
2,500 walkable linear feet standard as the basis for evaluating the Access to Metrorail
sub-factor was inconsistent with the Solicitation’s requirement that “buildings closer to
an existing Metrorail station [be] evaluated more highly.” (brackets in original). In
addition, Plaintiff contends that Ms. Kronopolous’ alleged discounting of Plaintiff’s
advantage over Fishers Lane in the Planning Efficiency and Flexibility sub-factor as
“slight” on the basis of two minor weaknesses, which Fishers Lane’s proposal also had
been assigned, was arbitrary and capricious. Plaintiff acknowledges that Ms.
Kronopolous was permitted to disagree with the Source Selection Evaluation Board’s
evaluation of offerors’ technical ratings, but insists that she was required to set forth a
rational basis for doing so at the time of her decision, and that any post hoc rationale is
insufficient to support her decision. Plaintiff also alleges that its proposal was rated
superior to Fishers Lane’s proposal in the two most heavily weighted sub-factors,
Access to Metrorail, worth thirty-five percent of the total, and Planning Efficiency and
Flexibility, worth fifteen percent of the total, while Fishers Lane’s proposal was rated
more highly than Plaintiff’s proposal on just the Access to Amenities sub-factor, which
was only worth ten percent of the total. Given Plaintiff’s superiority on the Access to
Metrorail and Planning Efficiency and Flexibility sub-factors, One Largo argues,
Defendant could not, consistent with the Solicitation’s requirement that price be given
“significantly less importance than the combined weight of the technical factors,”
conclude that Fishers Lane’s proposal was more advantageous than Plaintiff’s proposal.
Plaintiff alleges, therefore, that Defendant’s August 24, 2011 selection decision was
arbitrary and capricious, and but for Defendant’s error, Plaintiff should have been
awarded the contract. Plaintiff has moved for judgment on the Administrative Record,
and seeks reimbursement of bid and proposal costs in the amount of $4,038,739.00.23
23
Plaintiff’s Complaint references other forms of declaratory and monetary relief, but, at
oral argument, Plaintiff’s counsel stated that Plaintiff only is seeking bid preparation
costs and not any other form of relief.
38
Defendant filed a cross-motion for judgment on the Administrative Record, and
argues that Ms. Kronopolous’ decisions with regard to the Access to Metrorail and
Planning Efficiency and Flexibility sub-factors were reasonable. According to Defendant,
Ms. Kronopolous’ determination that Fishers Lane’s proposal approached equality with
Plaintiff’s proposal, as well as her trade-off analysis, were consistent with the
Solicitation. According to Defendant, the portion of the Solicitation requiring that
proposals closer to Metrorail be rated more highly only dictated how the Agency was to
evaluate the Access to Metrorail sub-factor, not how Defendant should conduct its
trade-off analysis. Regarding the Planning Efficiency and Flexibility sub-factor,
Defendant argues that Ms. Kronopolous’ analysis was reasonable because she
acknowledged Plaintiff’s superiority on the technical sub-factor, but decided it was not
sufficient to warrant the significant price difference between the two proposals.
Moreover, Defendant argues that, even if Ms. Kronopolous’ review of One Largo’s
technical merit on the Planning Efficiency and Flexibility sub-factor was flawed, Plaintiff
was not prejudiced by Defendant’s actions and, thus, is not entitled to any relief in this
court. Finally, Defendant maintains that Ms. Kronopolous’ trade-off analysis was
reasonable. Citing Windall v. B3H Corp., F.3d 1577, 1580 (Fed. Cir. 1996), Defendant
states that even if an “alternative evaluation scheme” would yield a different result, that
does not make the approach used by Ms. Kronopolous arbitrary, capricious, or contrary
to law.
DISCUSSION
Standard of Review
Pursuant to Rule 52.1(c) of the Rules of the United States Court of Federal
Claims (RCFC) (2012), which governs motions for judgment on the Administrative
Record, the court’s inquiry is “whether, given all the disputed and undisputed facts, a
party has met its burden of proof based on the evidence in the record.” DMS All-Star
Joint Venture v. United States, 90 Fed. Cl. 653, 661 (2010) (citing Bannum, Inc. v.
United States, 404 F.3d 1346, 1356-57 (Fed. Cir. 2005)).
The Administrative Dispute Resolution Act of 1996 (ADRA), Pub. L. No. 104-320,
§§ 12(a), 12(b), 110 Stat. 3870, 3874 (1996) (codified at 28 U.S.C. § 1491(b)(1)-(4)
(2006)), amended the Tucker Act to establish a statutory basis for bid protests in the
United States Court of Federal Claims. See Impresa Construzioni Geom. Domenico
Garufi v. United States, 238 F.3d 1324, 1330-32 (Fed. Cir. 2001). The statute provides
that protests of agency procurement decisions are to be reviewed under Administrative
Procedure Act (APA) standards, making applicable the standards outlined in Scanwell
Laboratories, Inc. v. Shaffer, 424 F.2d 859 (D.C. Cir. 1970), and the line of cases
following that decision. See, e.g., Galen Med. Assocs., Inc. v. United States, 369 F.3d
1324, 1329 (Fed. Cir.) (citing to Scanwell Laboratories, Inc. v. Shaffer for its reasoning
that “suits challenging the award process are in the public interest and disappointed
bidders are the parties with an incentive to enforce the law”), reh’g denied (Fed. Cir.
2004); Banknote Corp. of Am., Inc. v. United States, 365 F.3d 1345, 1351 (Fed. Cir.
39
2004) (“Under the APA standard as applied in the Scanwell line of cases, and now in
ADRA cases, ‘a bid award may be set aside if either (1) the procurement official's
decision lacked a rational basis; or (2) the procurement procedure involved a violation of
regulation or procedure.’” (quoting Impresa Construzioni Geom. Domenico Garufi v.
United States, 238 F.3d at 1332)); Info. Tech. & Applications Corp. v. United States, 316
F.3d 1312, 1319 (Fed. Cir.), reh’g and reh’g en banc denied (Fed. Cir. 2003); Am. Fed’n
of Gov’t Emps. v. United States, 258 F.3d 1294, 1302 (Fed. Cir. 2001) (“Congress
intended to extend the jurisdiction of the Court of Federal Claims to include post-award
bid protest cases brought under the APA by disappointed bidders, such as the plaintiff
in Scanwell.”), cert. denied, 534 U.S. 1113 (2002). The United States Court of Appeals
for the Federal Circuit has stated that the Court of Federal Claims’ jurisdiction over “any
alleged violation of statute or regulation in connection with a procurement or a proposed
procurement,” 28 U.S.C. § 1491(b)(1), “provides a broad grant of jurisdiction because
‘[p]rocurement includes all stages of the process of acquiring property or services,
beginning with the process for determining a need for property or services and ending
with contract completion and closeout.’” Sys. Application & Techs., Inc. v. United
States, 691 F.3d 1374, 1381 (Fed. Cir. 2012) (emphasis in original) (quoting Res.
Conservation Grp., LLC v. United States, 597 F.3d 1238, 1244 (Fed. Cir. 2010) (quoting
41 U.S.C. § 403(2))); see also Distrib. Solutions, Inc. v. United States, 539 F.3d 1340,
1345 (Fed. Cir.) (“[T]he phrase, ‘in connection with a procurement or proposed
procurement,’ by definition involves a connection with any stage of the federal
contracting acquisition process, including ‘the process for determining a need for
property or services.’”), reh’g denied (Fed. Cir. 2008); RAMCOR Servs. Grp., Inc. v.
United States, 185 F.3d 1286, 1289 (Fed. Cir. 1999) (“The operative phrase ‘in
connection with’ is very sweeping in scope.”).
Agency procurement actions should be set aside when they are “arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with law,” or “without
observance of procedure required by law.” 5 U.S.C. § 706(2)(A), (2)(D) (2006);24 see
24
The language of 5 U.S.C. § 706 provides:
To the extent necessary to decision and when presented, the reviewing
court shall decide all relevant questions of law, interpret constitutional and
statutory provisions, and determine the meaning or applicability of the
terms of an agency action. The reviewing court shall—
(1) compel agency action unlawfully withheld or unreasonably delayed;
and
(2) hold unlawful and set aside agency action, findings, and
conclusions found to be—
(A) arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law;
(B) contrary to constitutional right, power, privilege, or immunity;
40
also Orion Tech., Inc. v. United States, No. 2012-5062, 2013 WL 141740, at *3 (Fed.
Cir. Jan. 14, 2013); COMINT Sys. Corp. v. United States, 700 F.3d 1377, 1381 (Fed.
Cir. 2012); Savantage Fin. Servs. Inc., v. United States, 595 F.3d 1282, 1285-86 (Fed.
Cir. 2010); Weeks Marine, Inc. v. United States, 575 F.3d 1352, 1358 (Fed. Cir. 2009);
Axiom Res. Mgmt., Inc. v. United States, 564 F.3d 1374, 1381 (Fed. Cir. 2009) (noting
arbitrary and capricious standard set forth in 5 U.S.C. § 706(2)(A), and reaffirming the
analysis of Impresa Construzioni Geom. Domenico Garufi v. United States, 238 F.3d at
1332); Blue & Gold Fleet, L.P. v. United States, 492 F.3d 1308, 1312 (Fed. Cir. 2007)
(“[T]he inquiry is whether the [government’s] procurement decision was ‘arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with law.’” (quoting 5
U.S.C. § 706(2)(A) (2000))); Bannum, Inc. v. United States, 404 F.3d at 1351;
Contracting, Consulting, Eng’g LLC v. United States, 104 Fed. Cl. 334, 340 (2012). “In
a bid protest case, the agency's award must be upheld unless it is ‘arbitrary, capricious,
an abuse of discretion, or otherwise not in accordance with law.’” Turner Constr. Co. v.
United States, 645 F.3d 1377, 1383 (Fed. Cir.) (quoting PAI Corp. v. United States, 614
F.3d 1347, 1351 (Fed. Cir. 2010)), reh’g and reh’g en banc denied (Fed. Cir. 2011); see
also PlanetSpace, Inc. v. United States, 92 Fed. Cl. 520, 531–32 (2010) (“Stated
another way, a plaintiff must show that the agency’s decision either lacked a rational
basis or was contrary to law.” (citing Weeks Marine, Inc. v. United States, 575 F.3d at
1358)).
In discussing the appropriate standard of review for bid protest cases, the United
States Court of Appeals for the Federal Circuit specifically has addressed subsections
(2)(A) and (2)(D) of 5 U.S.C. § 706, see Impresa Construzioni Geom. Domenico Garufi
v. United States, 238 F.3d at 1332 n.5, but the Federal Circuit has focused its attention
primarily on subsection (2)(A). See NVT Techs., Inc. v. United States, 370 F.3d 1153,
1159 (Fed. Cir. 2004) (“Bid protest actions are subject to the standard of review
established under section 706 of Title 5 of the Administrative Procedure Act (‘APA’), 28
(C) in excess of statutory jurisdiction, authority, or limitations, or
short of statutory right;
(D) without observance of procedure required by law;
(E) unsupported by substantial evidence in a case subject to
sections 556 and 557 of this title or otherwise reviewed on the
record of an agency hearing provided by statute; or
(F) unwarranted by the facts to the extent that the facts are subject
to trial de novo by the reviewing court.
In making the foregoing determinations, the court shall review the whole
record or those parts of it cited by a party, and due account shall be taken
of the rule of prejudicial error.
5 U.S.C. § 706.
41
U.S.C. § 1491(b)(4) (2000), by which an agency's decision is to be set aside only if it is
‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,’ 5
U.S.C. § 706(2)(A) (2000).”) (citations omitted); Banknote Corp. of Am., Inc. v. United
States, 365 F.3d at 1350 (“Among the various APA standards of review in section 706,
the proper standard to be applied in bid protest cases is provided by 5 U.S.C.
§ 706(2)(A): a reviewing court shall set aside the agency action if it is ‘arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with law.’” (citing
Advanced Data Concepts, Inc. v. United States, 216 F.3d 1054, 1057-58 (Fed. Cir.),
reh’g denied (Fed. Cir. 2000))); Info. Tech. & Applications Corp. v. United States, 316
F.3d at 1319 (“Consequently, our inquiry is whether the Air Force's procurement
decision was ‘arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law.’ 5 U.S.C. § 706(2)(A) (2000).”).
The United States Supreme Court has identified sample grounds which can
constitute arbitrary or capricious agency action:
[W]e will not vacate an agency’s decision unless it “has relied on factors
which Congress has not intended it to consider, entirely failed to consider
an important aspect of the problem, offered an explanation for its decision
that runs counter to the evidence before the agency, or is so implausible
that it could not be ascribed to a difference in view or the product of
agency expertise.”
Nat’l Ass’n of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 658 (2007) (quoting
Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983));
see also Alabama Aircraft Indus., Inc.-Birmingham v. United States, 586 F.3d 1372,
1375 (Fed. Cir. 2009), reh’g and reh’g en banc denied (Fed. Cir. 2010); In re Sang Su
Lee, 277 F.3d 1338, 1342 (Fed. Cir. 2002) (“The agency must present a full and
reasoned explanation of its decision . . . . The reviewing court is thus enabled to
perform a meaningful review . . . .”), aff’d on subsequent appeal, 262 F. App’x 275 (Fed.
Cir. 2008); Textron, Inc. v. United States, 74 Fed. Cl. 277, 285-86 (2006), appeal
dismissed sub nom. Textron, Inc. v. Ocean Technical Servs., Inc., 222 F. App’x 996
(Fed. Cir. 2007), and dismissed per stipulation sub nom. Textron, Inc. v. Ocean
Technical Servs., Inc., 223 F. App’x 974 (Fed. Cir. 2007). The United States Supreme
Court has also cautioned, however, that “courts are not free to impose upon agencies
specific procedural requirements that have no basis in the APA.” Pension Benefit Guar.
Corp. v. LTV Corp., 496 U.S. 633, 654 (1990).
A disappointed bidder has the burden of demonstrating the arbitrary and
capricious nature of the agency decision by a preponderance of the evidence. See
Grumman Data Sys. Corp. v. Dalton, 88 F.3d 990, 995-96 (Fed. Cir. 1996); Contracting,
Consulting, Eng’g LLC v. United States, 104 Fed. Cl. at 340; Textron, Inc. v. United
States, 74 Fed. Cl. at 285; Labat-Anderson Inc. v. United States, 50 Fed. Cl. 99, 106
(2001); Emery Worldwide Airlines, Inc. v. United States, 49 Fed. Cl. 211, 222, aff’d, 264
F.3d 1071 (Fed. Cir.), reh’g and reh’g en banc denied (Fed. Cir. 2001); Dynacs Eng’g
Co. v. United States, 48 Fed. Cl. 614, 619 (2001); Ellsworth Assocs., Inc. v. United
42
States, 45 Fed. Cl. 388, 392 (1999), dismissed, 6 F. App’x 867 (Fed. Cir. 2001). The
Federal Circuit has made clear that “[t]his court will not overturn a contracting officer's
determination unless it is arbitrary, capricious, or otherwise contrary to law. To
demonstrate that such a determination is arbitrary or capricious, a protester must
identify ‘hard facts;’ a mere inference or suspicion . . . is not enough.” PAI Corp. v.
United States, 614 F.3d at 1352 (citing John C. Grimberg Co. v. United States, 185 F.3d
1297, 1300 (Fed. Cir. 1999); C.A.C.I., Inc.-Fed. v. United States, 719 F.2d 1567, 1581
(Fed. Cir. 1983); and Filtration Dev. Co., LLC v. United States, 60 Fed. Cl. 371, 380
(2004)).
Furthermore, to prevail in a bid protest case, the protestor not only must show
that the government’s actions were arbitrary, capricious, or otherwise not in accordance
with the law, but the protestor also must show that it was prejudiced by the
government’s actions. See 5 U.S.C. § 706 (“[D]ue account shall be taken of the rule of
prejudicial error.”). Recognizing the two-step analysis of bid protest cases, the Federal
Circuit has stated that:
A bid protest proceeds in two steps. First . . . the trial court determines
whether the government acted without rational basis or contrary to law
when evaluating the bids and awarding the contract. Second . . . if the
trial court finds that the government's conduct fails the APA review under 5
U.S.C. § 706(2)(A), then it proceeds to determine, as a factual matter, if
the bid protester was prejudiced by that conduct.
Bannum, Inc. v. United States, 404 F.3d at 1351. In describing the prejudice
requirement, the Federal Circuit also has held that:
To prevail in a bid protest, a protester must show a significant, prejudicial
error in the procurement process. See Statistica, Inc. v. Christopher, 102
F.3d 1577, 1581 (Fed. Cir. 1996); Data Gen. Corp. v. Johnson, 78 F.3d
1556, 1562 (Fed. Cir. 1996). “To establish prejudice, a protester is not
required to show that but for the alleged error, the protester would have
been awarded the contract.” Data General, 78 F.3d at 1562 (citation
omitted). Rather, the protester must show “that there was a substantial
chance it would have received the contract award but for that error.”
Statistica, 102 F.3d at 1582; see CACI, Inc.-Fed. v. United States, 719
F.2d 1567, 1574-75 (Fed. Cir. 1983) (to establish competitive prejudice,
protester must demonstrate that but for the alleged error, “‘there was a
substantial chance that [it] would receive an award--that it was within the
zone of active consideration.’”) (citation omitted).
Alfa Laval Separation, Inc. v. United States, 175 F.3d 1365, 1367 (Fed. Cir.), reh’g
denied (Fed. Cir. 1999) (citation omitted in original); see also Allied Tech. Grp., Inc. v.
United States, 649 F.3d 1320, 1326 (Fed. Cir.), reh’g en banc denied (Fed. Cir. 2011);
Galen Med. Assocs., Inc. v. United States, 369 F.3d at 1331; Info. Tech. & Applications
Corp. v. United States, 316 F.3d at 1319; Myers Investigative & Sec. Servs., Inc. v.
43
United States, 275 F.3d 1366, 1370 (Fed. Cir. 2002); Impresa Construzioni Geom.
Domenico Garufi v. United States, 238 F.3d at 1332-33; OMV Med., Inc. v. United
States, 219 F.3d 1337, 1342 (Fed. Cir. 2000); Advanced Data Concepts, Inc. v. United
States, 216 F.3d at 1057; Stratos Mobile Networks USA, LLC v. United States, 213 F.3d
1375, 1380 (Fed. Cir. 2000).
In Data General Corp. v. Johnson, the United States Court of Appeals for the
Federal Circuit wrote:
We think that the appropriate standard is that, to establish prejudice, a
protester must show that, had it not been for the alleged error in the
procurement process, there was a reasonable likelihood that the protester
would have been awarded the contract . . . . The standard reflects a
reasonable balance between the importance of (1) averting unwarranted
interruptions of and interferences with the procurement process and (2)
ensuring that protesters who have been adversely affected by allegedly
significant error in the procurement process have a forum available to vent
their grievances. This is a refinement and clarification of the “substantial
chance” language of CACI, Inc.-Fed. [v. United States], 719 F.2d at 1574.
Data Gen. Corp. v. Johnson, 78 F.3d 1556, 1562 (Fed. Cir.), reh’g denied, en banc
suggestion declined (Fed. Cir. 1996); see also Bannum, Inc. v. United States, 404 F.3d
at 1353, 1358 (“The trial court was required to determine whether these errors in the
procurement process significantly prejudiced Bannum . . . . To establish ‘significant
prejudice’ Bannum must show that there was a ‘substantial chance’ it would have
received the contract award but for the [government’s] errors” in the bid process.
(quoting Info. Tech. & Applications Corp. v. United States, 316 F.3d at 1319; Alfa Laval
Separation, Inc. v. United States, 175 F.3d at 1367; Statistica, Inc. v. Christopher, 102
F.3d 1577, 1581 (Fed. Cir. 1996); and Data Gen. Corp. v. Johnson, 78 F.3d at 1562));
see also Galen Med. Assocs., Inc. v. United States, 369 F.3d at 1331 (“To establish
prejudice, the claimant must show that there was a ‘substantial chance it would have
received the contract award but for that error.’” (quoting Statistica, Inc. v. Christopher,
102 F.3d at 1582)); Myers Investigative & Sec. Servs., Inc. v. United States, 275 F.3d at
1370 (using the “substantial chance” standard); OMV Med., Inc. v. United States, 219
F.3d at 1342 (invoking a “reasonable likelihood” of being awarded the contract test);
Advanced Data Concepts, Inc. v. United States, 216 F.3d at 1057 (using a “reasonable
likelihood” rule); Stratos Mobile Networks USA, LLC v. United States, 213 F.3d at 1380(using a “substantial chance” test); Info. Scis. Corp. v. United States, 73 Fed. Cl. 70, 96
(2006) (using a “substantial chance” test), recons. in part, 75 Fed. Cl. 406, 412 (2007)
(using a “substantial chance” test); Park Tower Mgmt., Ltd. v. United States, 67 Fed. Cl.
548, 559 (2005) (using a “substantial chance” test). But see Weeks Marine, Inc. v.
United States, 575 F.3d at 1362 (holding that a pre-award bid protest claimant must
show “‘a non-trivial competitive injury which can be redressed by judicial relief . . . .’”).
44
Under an arbitrary or capricious standard, the reviewing court should not
substitute its judgment for that of the agency, but should review the basis for the agency
decision to determine if it was legally permissible, reasonable, and supported by the
facts. See Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. at 43(“The scope of review under the arbitrary and capricious standard is narrow and a court
is not to substitute its judgment for that of the agency.”); see also R & W Flammann
GmbH v. United States, 339 F.3d 1320, 1322 (Fed. Cir. 2003) (citing Ray v. Lehman, 55
F.3d 606, 608 (Fed. Cir.), cert. denied, 516 U.S. 916 (1995)). “If the court finds a
reasonable basis for the agency’s action, the court should stay its hand even though it
might, as an original proposition, have reached a different conclusion as to the proper
administration and application of the procurement regulations.” Honeywell, Inc. v.
United States, 870 F.2d 644, 648 (Fed. Cir. 1989) (quoting M. Steinthal & Co. v.
Seamans, 455 F.2d 1289, 1301 (D.C. Cir. 1971)); see also HP Enter. Servs., LLC v.
United States, 104 Fed. Cl. 230, 238 (2012); Vanguard Recovery Assistance v. United
States, 101 Fed. Cl. 765, 780 (2011); Seaborn Health Care, Inc. v. United States, 55
Fed. Cl. 520, 523 (2003) (quoting Honeywell, Inc. v. United States, 870 F.2d at 648(quoting M. Steinthal & Co. v. Seamans, 455 F.2d at 1301)).
As stated by the United States Supreme Court:
Section 706(2)(A) requires a finding that the actual choice made was not
“arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law.” To make this finding the court must consider
whether the decision was based on a consideration of the relevant factors
and whether there has been a clear error of judgment. Although this
inquiry into the facts is to be searching and careful, the ultimate standard
of review is a narrow one. The court is not empowered to substitute its
judgment for that of the agency.
Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971), abrogated on
other grounds by Califano v. Sanders, 430 U.S. 99 (1977); see also U.S. Postal Serv. v.
Gregory, 534 U.S. 1, 6-7 (2001); Bowman Transp., Inc. v. Arkansas-Best Freight Sys.,
Inc., 419 U.S. 281, 285 (1974), reh’g denied, 420 U.S. 956 (1975); Co-Steel Raritan,
Inc. v. ITC, 357 F.3d 1294, 1309 (Fed. Cir. 2004) (In discussing the “arbitrary,
capricious, and abuse of discretion otherwise not in accordance with the law” standard,
the Federal Circuit stated that “the ultimate standard of review is a narrow one. The
court is not empowered to substitute its judgment for that of the agency.”); In re Sang
Su Lee, 277 F.3d at 1342; Advanced Data Concepts, Inc. v. United States, 216 F.3d at
1058 (“The arbitrary and capricious standard applicable here is highly deferential. This
standard requires a reviewing court to sustain an agency action evincing rational
reasoning and consideration of relevant factors.” (citing Bowman Transp., Inc. v.
Arkansas-Best Freight Sys., Inc., 419 U.S. at 285)); Lockheed Missiles & Space Co. v.
Bentsen, 4 F.3d 955, 959 (Fed. Cir. 1993); Gulf Grp. Inc. v. United States, 61 Fed. Cl.
338, 351 (2004) (“Although this inquiry into the facts is to be searching and careful, the
ultimate standard of review is a narrow one. The court is not empowered to substitute its
judgment for that of the agency.”); ManTech Telecomms. & Info. Sys. Corp. v. United
45
States, 49 Fed. Cl. 57, 63 (2001), aff’d, 30 F. App’x 995 (Fed. Cir. 2002); Ellsworth
Assocs., Inc. v. United States, 45 Fed. Cl. at 392 (“Courts must give great deference to
agency procurement decisions and will not lightly overturn them.” (citing Fla. Power &
Light Co. v. Lorion, 470 U.S. 729, 743-44 (1985))).
According to the United States Court of Appeals for the Federal Circuit:
Effective contracting demands broad discretion. Burroughs Corp. v.
United States, 617 F.2d 590, 598 (Ct. Cl. 1980); Sperry Flight Sys. Div. v.
United States, 548 F.2d 915, 921, 212 Ct. Cl. 329 (1977); see NKF Eng’g,
Inc. v. United States, 805 F.2d 372, 377 (Fed. Cir. 1986); Tidewater
Management Servs., Inc. v. United States, 573 F.2d 65, 73, 216 Ct. Cl. 69(1978); RADVA Corp. v. United States, 17 Cl. Ct. 812, 819 (1989), aff’d,
914 F.2d 271 (Fed. Cir. 1990). Accordingly, agencies “are entrusted with
a good deal of discretion in determining which bid is the most
advantageous to the Government.” Tidewater Management Servs., 573
F.2d at 73, 216 Ct. Cl. 69.
Lockheed Missiles & Space Co., Inc. v. Bentsen, 4 F.3d at 958-59; see also Grumman
Data Sys. Corp. v. Dalton, 88 F.3d at 995; Grumman Data Sys. Corp. v. Widnall, 15
F.3d 1044, 1046 (Fed. Cir. 1994); Cybertech Grp., Inc. v. United States, 48 Fed. Cl.
638, 646 (2001) (“The court recognizes that the agency possesses wide discretion in
the application of procurement regulations.”); Lockheed Missiles & Space Co. v. United
States, 4 F.3d at 958; JWK Int’l Corp. v. United States, 49 Fed. Cl. 371, 388 (2001),
aff’d, 279 F.3d 985 (Fed. Cir), reh’g denied (Fed. Cir. 2002).
Similarly, the Federal Circuit further has indicated that:
Contracting officers “are entitled to exercise discretion upon a broad range
of issues confronting them in the procurement process.” Impresa
Construzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324,
1332 (Fed. Cir. 2001) (internal quotation marks omitted). Accordingly,
procurement decisions are subject to a “highly deferential rational basis
review.” CHE Consulting, Inc. v. United States, 552 F.3d 1351, 1354 (Fed.
Cir. 2008) (internal quotation marks omitted). Applying this highly
deferential standard, the court must sustain an agency action unless the
action does not “evince[ ] rational reasoning and consideration of relevant
factors.” Advanced Data Concepts, Inc. v. United States, 216 F.3d 1054,
1058 (Fed. Cir. 2000) (alterations added).
PAI Corp. v. United States, 614 F.3d at 1351; see also Weeks Marine, Inc. v. United
States, 575 F.3d at 1368-69 (“We have stated that procurement decisions ‘invoke[ ]
“highly deferential” rational basis review.’ Under that standard, we sustain an agency
action ‘evincing rational reasoning and consideration of relevant factors.’” (quoting CHE
Consulting, Inc. v. United States, 552 F.3d at 1354 (quoting Advanced Data Concepts,
Inc. v. United States, 216 F.3d at 1058))).
46
The wide discretion afforded contracting officers extends to a broad range of
procurement functions, including the determination of what constitutes an advantage
over other proposals. See Compubahn, Inc. v. United States, 33 Fed. Cl. 677, 682-83
(1995) ("[T]his court is in no position to challenge the technical merit of any comments
made on the evaluation sheets or decisions made during the several stages of
evaluation.") (footnote omitted)); see also Textron, Inc. v. United States, 74 Fed. Cl. at
286 (in which the court considered technical ranking decisions are “‘minutiae of the
procurement process’” not to be second guessed by a court (quoting E.W. Bliss Co. v.
United States, 77 F.3d 445, 449 (Fed. Cir. 1996))). This is because “[t]he evaluation of
proposals for their technical excellence or quality is a process that often requires the
special expertise of procurement officials, and thus reviewing courts give the greatest
deference possible to these determinations.” Beta Analytics Int’l, Inc. v. United States,
67 Fed. Cl. 384, 395 (2005) (citing E.W. Bliss Co. v. United States, 77 F.3d at 449); see
also Unisys Corp. v. United States, 89 Fed. Cl. 126, 142 (2009) (holding that an
agency’s “exercise of such technical judgment and expertise . . . . is entitled to the
greatest possible deference under E.W. Bliss”); Dismas Charities, Inc. v. United States,
61 Fed. Cl. 191, 203 (2004) (“The decision as to whether an offeror should have scored
a 3, 4, or 5 on any question is properly left to the discretion of the agency.”). The
question is not whether the court would reach the same conclusions as the agency
regarding the comparison of proposals, but, rather, whether the conclusions reached by
the agency lacked a reasonable basis and, therefore, were arbitrary or capricious, in
which case, courts have a role to review and instruct. See, e.g., WorldTravelService v.
United States, 49 Fed. Cl. 431, 441 (2001) (“Therefore, this court’s main task is to
ensure that the [agency] examined the relevant data and articulated a ‘rational
connection between the facts found and the choice made.’” (quoting Motor Vehicle Mfrs.
Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (internal citations
omitted))).
The amount of discretion afforded the contracting officer is greater in some
circumstances as compared to others. For example, in a negotiated procurement,
contracting officers are generally afforded greater decision making discretion, in
comparison to their role in sealed bid procurements. See Galen Med. Assocs., Inc. v.
United States, 369 F.3d at 1330 (“Because the bid protest at issue here involved a
‘negotiated procurement,’ the protestor's burden of proving that the award was arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with law is greater
than in other types of bid protests.” (citations omitted)); see also Hayes Int'l Corp. v.
United States, 7 Cl. Ct. 681, 686 (1985) (“It is well-established that contracting officials
are accorded broad discretion in conducting a negotiated procurement....” (citing Sperry
Flight Sys. v. United States, 212 Ct. Cl. 329, 339-40, 548 F.2d 915, 921 (1977))).
The Federal Circuit has explained that procurement officials have an even
greater degree of discretion when it comes to best value determinations, as compared
to negotiated procurements. See, e.g., Galen Med. Assocs., Inc. v. United States, 369
F.3d at 1330 (noting that because “the contract was to be awarded based on ‘best
value,’ the contracting officer had even greater discretion than if the contract were to
have been awarded on the basis of cost alone”); see also Banknote Corp. of Am. Inc. v.
47
United States, 365 F.3d at 1355 (“It is well-established that contracting officers have a
great deal of discretion in making contract award decisions, particularly when, as here,
the contract is to be awarded to the bidder or bidders that will provide the agency with
the best value.” (citing TRW, Inc. v. Unisys Corp., 98 F.3d 1325, 1327-28 (Fed. Cir.
1996))); Am. Tel. and Tel. Co. v. United States, 307 F.3d 1374, 1379 (Fed. Cir. 2002),
reh’g en banc denied (Fed. Cir.), cert. denied, 540 U.S. 937 (2003); E.W. Bliss Co. v.
United States, 77 F.3d at 449 (“Procurement officials have substantial discretion to
determine which proposal represents the best value for the government. See Lockheed
Missiles & Space Co., Inc. v. Bentsen, 4 F.3d 955, 958 (Fed. Cir. 1993); cf. Widnall v.
B3H, 75 F.3d 1577 (Fed. Cir. 1996) (holding that Board of Contract Appeals should
defer to agency’s best value decision as long as it is ‘grounded in reason... even if the
Board itself might have chosen a different bidder’)….”); Lockheed Missiles & Space Co.
v. United States, 4 F.3d at 958; Burney v. United States, No. 12-67C, 2012 WL
1632353, at *6 (Fed. Cl. May 9, 2012) (“We give a high level of deference to an
agency’s evaluation of proposals and best value determinations, recognizing the
agency’s expertise in procurement matters and application of regulations. See CHE
Consulting, Inc. v. United States, 552 F.3d 1351, 1354 (Fed. Cir. 2008) (citing E.W.
Bliss Co. v. United States, 77 F.3d 445, 449 (Fed. Cir. 1996)). An agency’s action will
be upheld unless the protestor can show that the agency’s action was without a rational
basis. Impresa Construzioni Gemo. Domenico Garufi v. United States, 238 F.3d 1324,
1333 (Fed. Cir. 2001).”), aff’d, No. 2012-5088, 2012 WL 6118824 (Fed. Cir. Dec. 11,
2012); Akal Sec., Inc. v. United States, 103 Fed. Cl. 310, 329 (2011) (“The United
States Court of Appeals for the Federal Circuit has recognized that ‘[p]rocurement
officials have substantial discretion to determine which proposal represents the best
value for the government.’” (quoting E.W. Bliss Co. v. United States, 77 F.3d at 449));
Blackwater Lodge & Training Ctr., Inc. v. United States, 86 Fed. Cl. 488, 514 (2009).
When the contracting officer’s discretion grows, so does the burden on the
protestor. As noted recently in D & S Consultants, Inc. v. United States:
The protestor's burden becomes more difficult the greater the degree of
discretion vested in the contracting officer. DynCorp Int'l v. United States,
76 Fed. Cl. 528, 537 (2007). Negotiated procurements afford the
contracting officer a “breadth of discretion;” “best-value” awards afford the
contracting officer additional discretion. Id. Therefore, in a negotiated,
best-value procurement, the “protestor's burden is especially heavy.” Id.D & S Consultants, Inc. v. United States, 101 Fed. Cl. 23, 33 (2011). D & S Consultants
identifies another circumstance in which the contracting officer is afforded yet greater
discretion. The court in D & S Consultants explained, procurements in which a best
value determination is made afford the contracting officer broader decision making
discretion than a negotiated procurement in which a best value determination is not at
issue. See id.; see also Galen Med. Assocs., Inc. v. United States, 369 F.3d at 1330(noting that contracting officers have great discretion in negotiated procurements but
even greater discretion in best value determinations than in procurements based on
cost alone); PHT Supply Corp. v. United States, 71 Fed. Cl. 1, 11 (2006) (“It is critical to
48
note that ‘a protestor's burden is particularly great in negotiated procurements because
the contracting officer is entrusted with a relatively high degree of discretion, and
greater still, where, as here, the procurement is a “best-value” procurement.’” (citations
omitted)). “It is well-established that contracting officers have a great deal of discretion
in making contract award decisions, particularly when, as here, the contract is to be
awarded to the bidder or bidders that will provide the agency with the best value.”
Banknote Corp. of Am. Inc. v. United States, 365 F.3d at 1355 (citing TRW, Inc. v.
Unisys Corp., 98 F.3d at 1327-28; E.W. Bliss Co. v. United States, 77 F.3d at 449; and
Lockheed Missiles & Space Co. v. Bentsen, 4 F.3d at 958-59); see also Am. Tel. & Tel.
Co. v. United States, 307 F.3d at 1379; Lockheed Missiles & Space Co. v. United
States, 4 F.3d at 958; Brooks Range Contract Servs., Inc. v. United States, 101 Fed. Cl.
699, 707 (2011) (“[A] plaintiff's burden ‘is elevated where the solicitation contemplates
award on a “best value” basis.’” (citations omitted)); Matt Martin Real Estate Mgmt. LLC
v. United States, 96 Fed. Cl. 106, 113 (2010); Serco v. United States, 81 Fed. Cl. 463,
496 (2008) (“To be sure, as noted at the outset, plaintiffs have a significant burden of
showing error in that regard because a court must accord considerable deference to an
agency's best-value decision in trading off price with other factors.”).
In addition, the court “assume[s] that the government acts in good faith while
contracting.” Galen Med. Assocs., Inc. v. United States, 56 Fed. Cl. 104, 108 (2003),
aff'd, 369 F.3d 1324 (Fed. Cir. 2004). Thus, a protestor must show “‘well-nigh
irrefragable proof’ that the government had an intent to injure it to overcome this
presumption.” Id. (quoting Knotts v. United States, 128 Ct. Cl. 489, 492, 121 F. Supp.
630, 631 (1954)); see also Caldwell & Santmyer, Inc. v. Glickman, 55 F.3d 1578, 1581
(Fed. Cir. 1995) (“We assume the government acts in good faith when contracting.
Torncello [v. United States], 681 F.2d [756,] 770 [(1982)]; Librach v. United States, 147
Ct.Cl. 605, 1959 WL 7633 (1959). A contractor can overcome this presumption only if it
shows through ‘well-nigh irrefragable proof’ that the government had a specific intent to
injure it. Torncello, 681 F.2d at 770.”).
In E.W. Bliss Co. v. United States, the United States Court of Appeals for the
Federal Circuit offered guidance on the applicable standard of review in best value
determinations:
Procurement officials have substantial discretion to determine which
proposal represents the best value for the government. See Lockheed
Missiles & Space Co., Inc. v. Bentsen, 4 F.3d 955, 958 (Fed. Cir. 1993);
cf. Widnall v. B3H, 75 F.3d 1577 (Fed. Cir. 1996) (holding that Board of
Contract Appeals should defer to agency’s best value decision as long as
it is “grounded in reason ... even if the Board itself might have chosen a
different bidder”); In re General Offshore Corp., B-251969.5, B-251969.6,
94-1 Comptroller Gen.’s Procurement Decisions (Federal Publications
Inc.) ¶ 248, at 3 (Apr. 8, 1994) (“In a negotiated procurement, any
proposal that fails to conform to material terms and conditions of the
solicitation should be considered unacceptable and may not form the
basis for an award. Where an evaluation is challenged, we will examine
49
the agency’s evaluation to ensure that it was reasonable and consistent
with the evaluation criteria and applicable statutes and regulations, since
the relative merit of competing proposals is primarily a matter of
administrative discretion.”) (citations omitted).
* * *
Bliss’ [other challenges to the procurement] deal with the minutiae of the
procurement process in such matters as technical ratings ... which involve
discretionary determinations of procurement officials that a court will not
second guess. See Lockheed Missiles & Space Co., 4 F.3d at 958;
Grumman Data Systems Corp. v. Widnall, 15 F.3d 1044, 1048 (Fed. Cir.
1994) (“[S]mall errors made by the procuring agency are not sufficient
grounds for rejecting an entire procurement.”)….
E.W. Bliss Co. v. United States, 77 F.3d at 449; see also Vanguard Recovery
Assistance v. United States, 101 Fed. Cl. at 780; Galen Med. Assocs., Inc. v. United
States, 74 Fed. Cl. 377, 383-84 (2006); JWK Int’l Corp. v. United States, 49 Fed. Cl.
371, 388 (2001), aff’d, 279 F.3d 985 (Fed. Cir.), reh’g denied (Fed. Cir. 2002).
The FAR at 48 C.F.R. § 15.101-1 states the following with respect to the best
value process:
(a) A tradeoff process is appropriate when it may be in the best interest of
the Government to consider 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
(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.
48 C.F.R. § 15.101-1 (current through Feb. 7, 2013).
50
Summarizing the challenge a protester faces in contesting a best value
determination, a judge of the Court of the Federal Claims stated:
The plaintiff in a bid protest thus “bears a heavy burden.” Impresa, 238
F.3d at 1333. That burden lies heavier still when the plaintiff challenges a
contract award made subsequent to negotiated procurement, where the
procurement official is entrusted with “especially great discretion,
extending even to his application of procurement regulations.” Am. Tel. &
Tel. Co. v. United States, 307 F.3d 1374, 1379 (Fed. Cir. 2002). Greater
yet is the procurement official's discretion when selecting a contract-
awardee on the basis of a best value determination rather than price
alone. Galen Med. Assocs., Inc. v. United States, 369 F.3d 1324, 1330
(Fed. Cir. 2004).
Of course, as courts have repeatedly observed, the greater the
procurement official's vested discretion, the higher the threshold for finding
the official's decision irrational or otherwise unlawful. See, e.g., id.;
Burroughs Corp. v. United States, 617 F.2d 590, 597 (Ct. Cl. 1980);
Cygnus Corp., Inc. v. United States, 72 Fed. Cl. 380, 384–85 (2006) [aff’d,
227 F. App’x 909 (Fed. Cir. 2007)]. An agency's contract award is thus
least vulnerable to challenge when based upon a best value
determination. See Galen Med. Assocs., 369 F.3d at 1330.
PlanetSpace Inc. v. United States, 96 Fed. Cl. 119, 125 (2010).
Generally speaking, the United States Court of Federal Claims “will not disturb an
agency's best value decision merely because a disappointed bidder disagrees with the
agency's analysis.” Blackwater Lodge & Training Ctr., Inc. v. United States, 86 Fed. Cl.
at 515. But if “ratings that provided the basis for the Agency's tradeoff analysis and best
value award were fundamentally flawed and arbitrary, the best value award itself was
arbitrary and capricious.” BayFirst Solutions, LLC v. United States, 102 Fed. Cl. 677,
695 (2012) (citing Huntsville Times Co. v. United States, 98 Fed. Cl. 100, 119 (2011)).
The FAR also describes the Source Selection Authority’s responsibilities when
performing a best value determination, and the documentation needed to support an
agency’s best value trade-off analysis. The relevant provision provides:
The 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
51
selection decision must be documented, that documentation need not
quantify the tradeoffs that led to the decision.
48 C.F.R. § 15.308 (current through Feb. 7, 2013).
The Court of Federal Claims has found that “[c]onclusory statements, devoid of
any substantive content, have been held to fall short of” the FAR’s documentation
requirement, “threatening to turn the tradeoff process into an empty exercise.” Serco
Inc. v. United States, 81 Fed. Cl. at 497 (footnote omitted); see also FirstLine Transp.
Sec., Inc. v. United States, 100 Fed. Cl. at 381 (“[W]hen selecting a low-price technically
inferior proposal in a best-value procurement where non-price factors are more
important than price, it is not sufficient for the government to simply state that a
proposal's technical superiority is not worth the payment of a price premium. Instead,
the government must explain specifically why it does not warrant a premium.”
(emphasis in original)). Thus, the FAR requires that the source selection authority
document a rational basis for its best value determination.
The Code of Federal Regulations at 48 C.F.R. § 15.308, however, does not
require the government to “quantify the tradeoffs that led to the decision.” 48 C.F.R.
§15.308. “In performing the tradeoff analysis, the agency need neither assign an exact
dollar value to the worth associated with the technical benefits of a contract nor
otherwise quantify the non-cost factors.” Serco Inc. v. United States, 81 Fed. Cl. at 497
(citing 48 C.F.R. § 15.308).
Plaintiff, One Largo, brings two claims before this court. In Count I, Plaintiff
alleges that Defendant’s evaluation of the Access to Metrorail25 and Planning Efficiency
and Flexibility technical sub-factors was arbitrary, capricious, and contrary to law
because Defendant did not evaluate Plaintiff’s proposal in accordance with the
evaluation criteria set out in the Solicitation. Specifically, Plaintiff objects to Ms.
Kronopolous’, GSA’s Regional Commissioner for the PBS, National Capital Region,
alleged incorporation of a 2,500 feet standard under the Access to Metrorail sub-factor,
and her alleged discounting of Plaintiff’s technical advantages over Fishers Lane’s
25
At oral argument, Plaintiff’s counsel stated that Defendant’s evaluation of the Access
to Metrorail sub-factor is the more significant of the two issues regarding Defendant’s
technical evaluation, because that sub-factor was “the most significant in the source
selection plan, which the source selection official adopted,” as it was rated at thirty-five
percent of the technical factors. Plaintiff’s counsel further indicated:
Counsel: If One Largo Metro’s benefit is more than minor, One Largo
Metro then has close to a two-step advantage in 35 percent of the non-
price factors.
The Court: So, if I disagree on the significance of that, from your
perspective, the house of cards topples?
Counsel: Yes.
52
proposal under the Planning Efficiency and Flexibility sub-factor. In Count II, Plaintiff
alleges that Defendant, reasonably, could not have found that Fishers Lane’s proposal
represented the best overall value to the government because One Largo enjoyed
significant technical advantages over Fishers Lane, and price was of “significantly less
importance than the combined weight of the technical factors.” Thus, according to
Plaintiff, Defendant’s decision that Fishers Lane’s proposal was the most advantageous
proposal to the government was arbitrary and capricious. As described above, One
Largo seeks bid preparation and proposal costs in the amount of $4,038,739.00, to
which, Plaintiff argues, it is entitled because Plaintiff has been directly harmed by
Defendant’s improper actions.
For the purposes of determining whether Defendant’s award decision was
arbitrary and capricious, the court primarily focuses on Ms. Kronopolous’ second
selection decision, issued on August 24, 2011. Because Ms. Kronopolous explicitly
adopted the Source Selection Evaluation Board’s January 12, 2011 Report and
February 3, 2011 Addendum, and also relied on the reports issued by the Technical
Evaluation Teams and Source Selection Authority, those documents, however, as well
as Ms. Kronopolous’ March 8, 2011 selection decision, also are discussed when
relevant to the court’s analysis.
Access to Metrorail
The Solicitation required that all proposals be for facilities within three miles of a
Metrorail station, “as measured from the main entrance of the building to the nearest
entrance of the transit facility by the driving distance on existing roads,” and that offerors
located more than 2,500 walkable linear feet from a Metrorail station provide shuttle
service at their own expense. The Source Selection Plan set forth the following
adjectival ratings for the Access to Metrorail sub-factor:26
26
As indicated above, the Solicitation provided that, for the purposes of the Access to
Metrorail sub-factor “[d]istances will be measured from the main entrance of the building
to the nearest entrance of the transit facility. . . .” The Source Selection Plan, however,
stated that distances should be measured “from the main entrance of the furthest
building of the offered facility to the turnstile of the nearest Metro entrance.” In the first
round of GAO protests in this case, the GAO rejected a challenge to Fishers Lane’s
“Highly Successful” rating on the Access to Metrorail factor, noting that, while there
were inconsistencies in how distance from Metrorail was measured, Defendant’s
calculations were explained in the record and the protestors failed to show that
Defendant’s calculations were unreasonable. Whether the distance from Metrorail was
measured from the main entrance of the building “to the nearest entrance of the
Metrorail station,” or “to the turnstile of the nearest Metro entrance,” would not affect the
outcome of this case, as neither One Largo’s “Superior” rating, nor Fishers Lane’s
“Highly Successful” rating for the Access to Metrorail sub-factor would change.
Moreover, Plaintiff has not raised this inconsistency in its Complaint.
53
Rating Distance to Metro
Superior Within 1,500 wlf, as measured in walkable linear feet (wlf) from the
main entrance of the furthest building of the offered facility to the
turnstile of the nearest Metro entrance
Highly More than 1,500 wlf but up to 2,500 wlf, as measured in walkable
Successful linear feet from the main entrance of the furthest building of the
offered facility to the turnstile of the nearest Metro entrance
Successful More than 2,500 wlf but less than one mile, as measured by the
driving distance of existing roads from the main entrance of the
furthest building of the offered facility to the turnstile of the nearest
Metro entrance
Marginal More than one mile but less than two miles, as measured by the
driving distance of existing roads from the main entrance of the
furthest building of the offered facility to the turnstile of the nearest
Metro entrance
Poor More than two miles but less than three miles, as measured by the
driving distance of existing roads from the main entrance of the
furthest building of the offered facility to the turnstile of the nearest
Metro entrance
Plaintiff argues that the offerors’ proposals must be evaluated in accordance with
the criteria laid out in the agency’s Solicitation, but that Ms. Kronopolous deviated from
the terms of Defendant’s Solicitation in her analysis of the Access to Metrorail sub-
factor. Specifically, Plaintiff alleges that Ms. Kronopolous determined that Plaintiff’s and
Fishers Lane’s proposals “approached equality”27 on the Access to Metrorail sub-factor,
“on the basis that she believed that 2,500 feet was a reasonable walking distance, and
thus, anyone proposing a building within 2,500 feet approached equality under Access
to Metrorail with anyone else proposing a building within 2,500 feet.” According to
Plaintiff, the finding that the two proposals approached equality directly contradicted the
Solicitation’s requirement that “[b]uildings closer to an existing Metrorail station will be
evaluated more highly.”
Defendant responds that Ms. Kronopolous’ evaluation of the Access to Metrorail
sub-factor complied with the terms of the Solicitation. Defendant maintains that Plaintiff
fundamentally misunderstands the terms of the Solicitation and the fact that it lays out
two distinct analyses for evaluating each offer, and then for comparing them to one
27
Plaintiff repeatedly argues in its briefs that Ms. Kronopolous concluded that One
Largo and Fishers Lane “approached equality” on the Access to Metrorail sub-factor.
When pressed at oral argument to point to where Ms. Kronopolous made such a
statement, Plaintiff’s counsel acknowledged that nowhere in her August 24, 2011
selection decision did Ms. Kronopolous state that One Largo and Fishers Lane
“approached equality” on the Access to Metrorail sub-factor. Indeed, that phrase does
not appear in Ms. Kronopolous’ selection decision regarding the Access to Metrorail
sub-factor. In fact, Ms. Kronopolous acknowledged the difference between Plaintiff and
Fishers Lane on the Access to Metrorail sub-factor.
54
another: first a technical evaluation and, if appropriate, then a best value trade-off
analysis. The first step, according to Defendant, was that “the TET [Technical
Evaluation Teams] and SSEB [Source Selection Evaluation Board] rated each
subfactor, providing weaknesses and strengths for each offeror.” Ms. Kronopolous
adopted the strengths, weaknesses, sub-factor ratings, and overall technical
evaluations set forth in the Source Selection Evaluation Board’s January 12, 2011
Report. Defendant points out that those ratings were unchanged in the February 3,
2011 Addendum and Plaintiff is not challenging those ratings. After the technical ratings
were established, Defendant asserts that Ms. Kronopolous conducted a trade-off
analysis, “to assess the costs of each technical offer, and determine which offeror
provided the best value to the Government.” (emphasis in original). In performing the
trade-off analysis, Defendant argues, Ms. Kronopolous was required to “look[] beyond
the adjectival rating scheme to determine the true value given the identified costs.”
Defendant emphasizes that Ms. Kronopolous must be afforded “significant deference” in
making her best value determination.
Defendant contends that the requirement that “[b]uildings closer to an existing
Metrorail station will be evaluated more highly,” applied only to the technical evaluation
of the Access to Metrorail sub-factor, and that this direction had no bearing on how
Defendant should conduct its trade-off analysis. In describing the trade-off analysis,
Defendant notes that the Solicitation explicitly stated: “Ultimately, if the highest technical
offer is not the lowest priced offer, the Government will assess the value of the technical
factors of an offer to reconcile the price and technical factors. The perceived benefits of
the higher priced offer, if any, must merit the additional cost.” Defendant asserts that
the Source Selection Evaluation Board assigned Plaintiff a rating of “Superior” on the
Access to Metrorail sub-factor in accordance with the Solicitation, a rating higher than
the rating awarded to Fishers Lane of “Highly Successful,” which ratings were adopted
by Ms. Kronopolous in her August 24, 2011 selection decision. Only after she
considered all of the ratings assigned by the Source Selection Evaluation Board for
each of the sub-factors, did Ms. Kronopolous conduct a trade-off analysis, looking at the
overall ratings of all of the offers. According to Defendant, Ms. Kronopolous
determined, as part of her trade-off analysis, that Plaintiff’s advantage on the Access to
Metrorail sub-factor did not merit the more than $51 million cost difference between
Plaintiff’s and Fishers Lane’s proposals and Plaintiff’s proposal did not represent the
best value to the government.
Plaintiff has repeatedly asserted that One Largo had a nearly “two-step”
advantage over Fishers Lane on the Access to Metrorail sub-factor, as One Largo’s
proposed facility was safely in the “Superior” category at a distance of 525 walkable
linear feet, while Fishers Lane’s proposed facility was nearly five times more remote at
2,407 walkable linear feet, and only ninety-three feet short of falling from a “Highly
Successful” to “Successful” rating. Plaintiff also emphasizes that, if Fishers Lane had
been just another ninety-three feet farther away from the Metrorail, it would have been
required to provide shuttle service to its building. Plaintiff alleges that, given this
substantial difference, Ms. Kronopolous could not possibly have found, consistent with
the Solicitation, that Plaintiff’s and Fishers Lane’s proposals approached equality on the
55
Access to Metrorail sub-factor. Plaintiff makes an additional argument, which is not
dispositive, that the arbitrary nature of Ms. Kronopolous’ evaluation of the Access to
Metrorail sub-factor is demonstrated by the fact that, at the GAO hearing,28 Ms.
Kronopolous stated that proximity to Metrorail also has “cost implications associated
with” it, and the inconvenience to employees of having to walk to a more distant location
“was not a cost to the government.” Plaintiff argues that Ms. Kronopolous’ statement at
the GAO is in direct conflict with the importance the Solicitation assigned to buildings
located closer to Metrorail, and the requirement that these buildings be more highly
rated because: “[i]n addition to providing a convenient means of commuting to and from
work for HHS employees, access to Existing Metrorail is also important as it provides a
useful method for employees to travel back and forth to other HHS facilities, during
normal business hours.”
Plaintiff also argues that Ms. Kronopolous’ incorporation of a 2,500 feet standard
into her analysis of the Access to Metrorail sub-factor was arbitrary and capricious.
Plaintiff asserts that the Solicitation made no reference to 2,500 feet being a reasonable
walking distance. Again, plaintiff cites to Ms. Kronopolous’ testimony at the GAO
hearing when she was asked about, but could not cite to, any such reasonable walking
distance standard in the Solicitation, Source Selection Plan, or any specific GSA policy
establishing that 2,500 feet constitutes the agency’s standard for a reasonable walking
distance. Defendant, on the other hand, maintains that the Solicitation establishes
2,500 feet as a dividing line by requiring any proposal beyond that distance to provide
shuttle service at the offeror’s own expense, as well as by calculating any distance
beyond that in driving distance, rather than walkable linear feet. Defendant also argues
that it is irrelevant that Ms. Kronopolous could not identify a specific policy document
referencing a 2,500 feet standard at the GAO hearing because, ultimately, Ms.
Kronopolous conducted a thorough, independent analysis of the practical
consequences of the difference in distance between Plaintiff’s and Fishers Lane’s
proposals. Finally, Defendant points out that the Source Selection Authority’s trade-off
analysis is highly discretionary, and relies on PlanetSpace Inc. v. United States, 96 Fed.
Cl. at 125 (award is “least vulnerable to challenge when based upon a best value
determination” (citing Galen Med. Assocs., Inc. v. United States, 369 F.3d at 1330)), in
support of this contention.
Plaintiff is correct that an agency must interpret offerors’ proposals in
accordance with the terms of the solicitation as issued. As discussed in Red River
Holdings, LLC v. United States:
28
Both parties stated at oral argument that Ms. Kronopolous’ GAO testimony can be
considered by this court. Plaintiff’s counsel stated that the court can use Ms.
Kronopolous’ GAO testimony because it was “part of her decision.” Defendant’s
counsel stated that Defendant is “not arguing against the consideration of the transcript
in this case.” “[B]y rule, previous GAO testimony is properly part of the administrative
record in a bid protest.” See PlanetSpace, Inc. v. United States, 92 Fed. Cl. at 548
(citing RCFC, App. C, ¶ 22(u) (2012)).
56
“It is a fundamental tenet of procurement law that proposals must be
evaluated in accordance with the terms of the solicitation. FAR
§ 15.305(a) provides that, ‘[a]n agency shall evaluate competitive
proposals and then assess their relative qualities solely on the factors and
subfactors specified in the solicitation.’ See also Hunt Bldg. Co. v. United
States, 61 Fed. Cl. 243, 273 (2004) (‘The agency's failure to follow its own
selection process embodied in the Solicitation is ... a prejudicial violation
of a procurement procedure established for the benefit of offerors.’)[,
modified on unrelated grounds, 63 Fed. Cl. 141 (2004)]; Banknote [Corp.
v. United States], 56 Fed. Cl. [377,] 386 [(2003)] (‘It is hornbook law that
agencies must evaluate proposals and make awards based on the criteria
stated in the solicitation.’)[, aff’d, 365 F.3d 1345 (Fed. Cir. 2004)]; ITT Fed.
Servs. Corp. v. United States, 45 Fed. Cl. 174, 194 (1999) (citations
omitted) (‘[A] contract award may not be upheld when the [source
selection authority] improperly departs from [the] stated evaluation criteria
in a solicitation.’).”
Red River Holdings, LLC v. United States, 87 Fed. Cl. 768, 786 (2009) (quoting Ashbritt,
Inc. v. United States, 87 Fed. Cl. 344, 374 (2009)); see also Glenn Defense Marine
(Asia) PTE, Ltd. v. United States, 97 Fed. Cl. 311, 318 (2011), dismissed, 469 F. App’x
865 (Fed. Cir. 2012). Failure to adhere to the evaluation scheme laid out in a
solicitation may constitute evidence of an arbitrary and capricious decision. See id. at
786 (“When the evaluation of proposals materially deviates from the evaluation scheme
described in the solicitation, the agency's failure to follow the described plan may
constitute evidence of arbitrary and capricious decision-making.” (quoting L–3
Commc’ns EOTech, Inc. v. United States, 83 Fed. Cl. 643, 653 (2008)));
360Training.com, Inc. v. United States, 106 Fed. Cl. 177, 184 (2012) (quoting Ala.
Aircraft Indus., Inc. v. United States, 586 F.3d 1372, 1375–76 (Fed. Cir. 2009) (“[A]
court's role is to “determine whether the agency's ... analysis was consistent with the
evaluation criteria set forth in the [solicitation]....”) (bracket in original, omissions in
original)).
Defendant correctly points out that the Solicitation in this case sets forth a two-
step analysis for evaluating offers. First, Defendant was to evaluate each offer for its
technical merit on each of the factors and sub-factors, as ranked in importance in the
Solicitation. In the second stage, if appropriate, Defendant could use the trade-off
process to evaluate technical merit together with price. The Solicitation describes these
two steps in reverse order. First, under the heading, “Award Factors and Price
Evaluation,” the Solicitation describes the best value trade-off analysis. The Solicitation
explains that the award would be made to the offer that was “most advantageous to the
Government and provide[d] the best value to the Government,” based on both price and
non-price factors. The Solicitation then details the trade-off process and the relationship
between price and technical ratings to be used for the procurement, stating:
57
For this procurement, price is of significantly less importance than the
combined weight of the technical factors; however, the degree of
importance of price as a factor becomes greater as technical offers
approach equality. Ultimately, if the highest technical offer is not the
lowest priced offer, the Government will assess the value of the technical
factors of an offer to reconcile the price and technical factors. The
perceived benefits of the higher priced offer, if any, must merit the
additional cost.
The Solicitation also lays out the technical evaluation criteria. The Solicitation
recites the technical factors to be used to evaluate each offer, identifies the sub-factors
under each factor, and ranks the relative importance of the factors and sub-factors. The
plain language and organization of the Solicitation indicates that the Solicitation’s
requirement that the buildings closer to Metrorail be evaluated more highly applies to
Defendant’s technical evaluation of the Access to Metrorail sub-factor for each offer.
Other sections of the Solicitation describing additional technical sub-factors to be
evaluated contain similar language. For example, under the Access to Amenities sub-
factor, the Solicitation states: “The best rating will be given to offers that provide the
greatest variety and quantity of amenities.” Under the Planning Efficiency and Flexibility
sub-factor, the Solicitation reads: “Buildings which provide for more efficiency and
flexibility will be more highly evaluated,” further suggesting that, in indicating that offers
should be more highly evaluated for certain features, the Solicitation was referring to the
technical evaluation stage of the evaluation process, and not to the best value trade-off
analysis. Moreover, the Source Selection Plan clarifies that the Technical Evaluation
Teams and Source Selection Evaluation Board were tasked with performing the
technical evaluation for each offer, while the Source Selection Authority, in this case Ms.
Kronopolous, was responsible for making a best value determination, based on the
information supplied by the Technical Evaluation Teams and Source Selection
Evaluation Board. The initial assignment of responsibilities to those conducting the
technical evaluation and technical recommendation, as opposed to a trade-off analysis,
supports Defendant’s argument that the evaluation of offers was divided into two distinct
stages, one following the other: first a technical evaluation and, if appropriate, then a
best value trade-off analysis.
Defendant asserts that there was no requirement for the government to find that
a proposal that offered property closer to Metrorail represented the best value to the
government. The Agency was only required to give that proposal a higher rating on the
Access to Metrorail sub-factor, which the parties agree was value weighted at thirty-five
percent of the technical factors. Defendant argues that the Solicitation’s requirement to
give a higher technical rating for proximity to Metrorail was met in Ms. Kronopolous’
August 24, 2011 selection decision.
Defendant is correct that One Largo’s offer was rated more highly than Fishers
Lane’s offer on the Access to Metrorail sub-factor at every stage during the Defendant’s
technical evaluation process. The Technical Evaluation Team assigned to evaluate the
Location factor assigned One Largo a rating of “Superior” on the Access to Metrorail
58
sub-factor, while Fishers Lane received a rating of “Highly Successful.” The Source
Selection Evaluation Board determined that Plaintiff’s proposed building was located
525 walkable linear feet from the entrance of the nearest Metrorail station, while Fishers
Lane’s building was 2,407 walkable linear feet away. Based on those distances, and
according to the adjectival ratings set forth in the Source Selection Plan, the Source
Selection Evaluation Board assigned Plaintiff a rating of “Superior,” while Fishers Lane
received a lower rating of “Highly Successful,” on Access to Metrorail in the Source
Selection Evaluation Board’s January 12, 2011 Report. The Source Selection
Evaluation Board did not change its evaluation of the Access to Metrorail sub-factor in
the February 3, 2011 Addendum to its original report. The Source Selection Authority
adopted the Source Selection Evaluation Board’s technical ratings of each offeror on
each technical sub-factor. Finally, in both her March 8, 2011 decision and in her August
24, 2011 decision, Ms. Kronopolous explicitly adopted the adjectival ratings contained in
the Source Selection Evaluation Board’s January 12, 2011 Report, which were
unchanged in the February 3, 2011 Addendum, for the Access to Metrorail technical
sub-factor, and for all of the technical sub-factors for each offeror. Thus, at each step of
the technical evaluation process, One Largo’s offer was rated more highly than Fishers
Lane’s offer with regard to the Access to Metrorail sub-factor, and received a “Superior”
rating from the Technical Evaluation Team, Source Selection Evaluation Board, Source
Selection Authority, and twice from Ms. Kronopolous, while Fishers Lane received a
“Highly Successful” rating at each stage of the procurement proceedings.
In her August 24, 2011 decision, Ms. Kronopolous adopted the Source Selection
Evaluation Board’s technical ratings on all sub-factors, except Access to Amenities,
which she re-evaluated in light of the GAO’s first protest decision. She then “reviewed
the technical merits of the offers as a whole.” She determined that the re-evaluation of
the Access to Amenities sub-factor did not affect the overall technical ratings of the five
offers. Ms. Kronopolous, therefore, again adopted the overall technical scores stated in
the Source Selection Evaluation Board’s January 12, 2011 Report. Those ratings
placed King Farm’s offer, the lowest priced offer, below all four of the other offers in
terms of technical merit. King Farm received an overall rating of “Highly Successful,”
while each of the other four offerors received an overall rating of “Superior.” By
adopting the Source Selection Evaluation Board’s overall technical ratings, Ms.
Kronopolous indicated her agreement that the lowest priced offer was not the highest
technical offer. Thus, in accordance with the Solicitation, a best value trade-off analysis
was warranted.
Ms. Kronopolous turned to conducting a best value trade-off analysis before
making a second selection decision. She indicated that her trade-off analysis in her
August 24, 2011 decision “look[ed] beyond the SSEB’s adjectival ratings to identify,
review and examine the strengths and weaknesses of each technical offer, and given
those strengths and weaknesses, to determine the relative technical merits of the
offers.” Ms. Kronopolous’ trade-off analysis began with a discussion of each of the
technical factors and sub-factors. Regarding Access to Metrorail, Ms. Kronopolous
unequivocally stated: “By virtue of its small distance to Metro (525 wlf), One Largo is the
strongest offer in this important sub-factor.” Thus, Ms. Kronopolous acknowledged
59
Plaintiff’s advantage over Fishers Lane on the Access to Metrorail sub-factor even in the
trade-off process. In her August 24, 2011 selection decision, Ms. Kronopolous indicated
that three other offers, including Fishers Lane’s offer, were all “within what GSA
considers to be reasonable walkable distance to Metro.” She elaborated on what she
considered a “reasonable walking distance” in her discussion of King Farm’s offer,
which she concluded was not within a reasonable walking distance. She stated: “GSA
considers 2,500 wlf to be a reasonable walking distance from a Metro station to a
federally occupied office building. If a location is further than this, it merits a lower
technical rating.” In addition, directly comparing Plaintiff’s and Fishers Lane’s
proposals, Ms. Kronopolous reasoned that, although Plaintiff’s building provided “very
easy access to Metro,” Fishers Lane was within the “standard walking distance to public
transportation as established in other GSA procurements.” Ms. Kronopolous further
noted that she had conducted research into the average walking speed for adults, and
used this to determine that it would take under ten minutes to walk 2,500 feet. As noted
above, she stated in footnote 6 of her August 24, 2011 selection decision:
In assessing the real world impact of this discrepancy in distance, I came
to understand, from various internet websites, that the walking speed of
the average adult is between 3 and 3.5 miles per hour. Using the lower
number, it would take about 9.45 to 9.5 minutes to walk 2,500 walkable
linear feet. Therefore, most employees will be able to walk the distance
from Metro to the Parklawn [Fishers Lane] Building in less than 10
minutes. In my judgment a 10 minute walk will not be a major barrier
preventing employees from commuting by Metro.
Plaintiff argues that Ms. Kronopolous’ incorporation of a 2,500 feet “reasonable
walking distance” standard in her August 24, 2011 decision contradicts the plain
language of the Solicitation. Although the Solicitation did not state that GSA had
established a policy that 2,500 feet constitutes a reasonable walking distance, nor was
Ms. Kronopolous able to point to such a written policy,29 the Solicitation did differentiate
between proposals that were within 2,500 feet of an existing Metrorail station and those
29
As an attachment to its Cross-Motion for Judgment Upon the Administrative Record,
Defendant submitted a 2007 GSA Memorandum entitled “Green Lease Policies and
Procedures for Lease Acquisition.” This memorandum applied to “any new leasing
activity” and, under the heading “Public Transportation,” stated: “The building shall be
located within ____ [2640 walkable feet (1/2 mile)] of a commuter rail, light rail, or
subway station or ____ [1,320 walkable feet (1/4 mile)] of two or more public or campus
bus lines usable by tenant occupants.” (brackets and omissions in original). Although
this Memorandum may provide an argument for Defendant’s assertion that GSA had
developed an internal policy on reasonable distances from public transportation, it does
not establish that GSA used 2,500 feet as the standard for a reasonable walking
distance, nor was the document made part of the Administrative Record in the case
before this court. Whether or not GSA had such a set policy, however, is not at issue in
this case. The question is whether Ms. Kronopolous’ analysis of the Access to Metrorail
sub-factor was in accordance with the Solicitation, and, therefore, not arbitrary and
capricious.
60
that were farther away. The Solicitation required that all buildings be within three miles
of a Metrorail station, but required for any building more than 2,500 walkable linear feet
from a Metrorail station that an offeror provide shuttle service at its own expense. In
addition, the Solicitation indicated that, for the purposes of evaluating this sub-factor,
“[d]istances will be measured from the main entrance of the building to the nearest
entrance of the transit facility, in walkable linear feet (wlf) or, if it is more than 2,500 wlf,
by the driving distance of existing roads.” Thus, the Solicitation explicitly differentiated
between buildings that were within 2,500 feet, and those that were not. Likewise, the
Source Selection Plan used 2,500 feet as the dividing line between “Highly Successful”
and “Successful” ratings on the Access to Metrorail sub-factor, indicating that offers
within 1,500 walkable linear feet should be rated as “Superior,” those more than 1,500
walkable linear feet, but less than 2,500 as “Highly Successful,” and those more than
2,500 walkable linear feet, but less than one mile as “Successful.” This reference to
2,500 feet in the Source Selection Plan also indicates that the Agency had announced
to offerors, prior to submission of proposals, that there was a meaningful difference
between offers within 2,500 feet and those that were farther away, and that offers would
be evaluated accordingly. Therefore, Ms. Kronopolous’ reference to a 2,500 feet
reasonable walking distance in her trade-off analysis did not contradict the terms of the
Solicitation, with regard to how Defendant would evaluate each offer under the Access
to Metrorail sub-factor.
As Plaintiff conceded at oral argument, Ms. Kronopolous did not say in her
August 24, 2011 written decision that Plaintiff and Fishers Lane approached equality on
the Access to Metrorail sub-factor. Rather, after discussing the technical evaluations of
all of the offers regarding all of the technical factors, Ms. Kronopolous stated:
Based upon all of the above, and considering further the relative
importance assigned by the SFO [Solicitation] to the technical factors (and
in particular, the SFO’s statement that “. . . Access to Metrorail is more
important than any other sub-factor. . .”), I have determined that
notwithstanding variations in the adjectival ratings assigned by the SSEB,
the technical offers of New Carrollton, Park Lawn [Fishers Lane], UTC
[University] and One Largo are all of very high quality, and as a whole,
approach equality.
(omissions in original). Consistent with the Solicitation, Ms. Kronopolous did rate
Plaintiff more highly than Fishers Lane on the Access to Metrorail sub-factor because
Plaintiff’s building was closer to an existing Metrorail station than Fishers Lane’s
building. She determined in her best value trade-off analysis, however, that Plaintiff’s
advantage on that sub-factor did not merit a higher overall technical rating, as compared
to three other high quality offers, including the Fishers Lane offer, and that the
proposals approached technical equality.
Significantly, the GAO never faulted Ms. Kronopolous’ evaluation of the Access
to Metrorail sub-factor, even though Plaintiff and other protestors raised this issue with
the GAO. Ms. Kronopolous’ first selection decision, issued on March 8, 2011, also
61
adopted the technical ratings from the Source Selection Evaluation Board’s January 12,
2011 Report, which were unchanged in the February 3, 2011 Addendum, for each sub-
factor. The GAO rejected arguments made by King Farm and Metroview that Fishers
Lane’s offer was incorrectly rated as “Highly Successful” on the Access to Metrorail sub-
factor in Ms. Kronopolous’ first selection decision, dated March 8, 2011. The GAO
found that Fishers Lane’s “Highly Successful” rating was documented in the
contemporaneous record. Rather, the GAO faulted Ms. Kronopolous’ first selection
decision for its evaluation of the Access to Amenities sub-factor and its trade-off
analysis, and granted the protestors relief on those two grounds.
In the second set of protests before the GAO, challenging Ms. Kronopolous’
August 24, 2011 selection decision, One Largo and Metroview both argued that Ms.
Kronopolous failed to recognize their superiority over Fishers Lane on the Access to
Metrorail sub-factor, instead finding that their offers approached technical equality with
Fishers Lane on the Access to Metrorail sub-factor. The GAO rejected this argument,
finding that Ms. Kronopolous had “looked beyond the adjectival ratings to determine the
practical aspects of the distances from a Metrorail station. The HCA was not
unreasonable in concluding, consistent with the SFO [Solicitation], that any distance
shorter than 2,500 wlf was a reasonable walking distance.” The GAO added that Ms.
Kronopolous “recognized in her written decision and in her testimony before us that One
Largo’s and Metroview’s proposals merited the superior ratings they received under this
sub-factor because of their greater proximity to Metro. The HCA nonetheless concluded
that this superiority did not merit the additional cost to the government.”
Although this court is not bound by the GAO, it does typically show respect to
GAO decisions. See Grunley Walsh Int'l, LLC v. United States, 78 Fed. Cl. 35, 39
(2007) (“Decisions by the GAO are traditionally treated with a high degree of deference,
especially in bid protest actions.” (citing E.W. Bliss Co. v. United States, 33 Fed. Cl.
123, 135 (1995))); see also Kingdomware Techs., Inc. v. United States, 107 Fed. Cl.
226, 230 n.2 (2012) (quoting Centech Grp., Inc. v. United States, 554 F.3d 1029, 1038
n.4 (Fed. Cir. 2009) (GAO decisions are not binding authority, but may be “instructive in
the area of bid protests.”)). Decisions of the GAO are treated as expert opinions, which
the court should “prudently consider.” Thompson v. Cherokee Nation of Okla., 334 F.3d
1075, 1084 (Fed. Cir.), reh’g and reh’g en banc denied (Fed. Cir. 2003), aff'd in part,
rev’d in part sub nom. Cherokee Nation of Okla. v. Leavitt, 543 U.S. 631 (2005); see
also Glenn Def. Marine (Asia) PTE Ltd. v. United States, 97 Fed. Cl. 568, 577
(2011), dismissed, 459 F. App'x 906 (Fed. Cir. 2011); Consol. Eng'g Servs., Inc. v.
United States, 64 Fed. Cl. 617, 623 (2005). A judge of the United States Court of
Federal Claims has stated that the court should be “especially reluctant to interfere with
the procurement process when, as here, the GAO has upheld the contracting officer's
decision. Thus, to the extent that we find such decisions ‘reasonable and persuasive in
light of the administrative record,’ we shall accord such decisions deference.” Consol.
Eng'g Services, Inc. v. United States, 64 Fed. Cl. at 623 (quoting Howell Constr. Inc. v.
United States, 12 Cl. Ct. 450, 452 (1987)).
62
As determined above, in her August 24, 2011 selection decision, Ms.
Kronopolous acknowledged Plaintiff’s advantage over Fishers Lane on the Access to
Metrorail sub-factor. By adopting the Source Selection Evaluation Board’s technical
ratings of “Superior” for One Largo, and “Highly Successful” for Fishers Lane on the
Access to Metrorail sub-factor, Ms. Kronopolous complied with the Solicitation’s
requirement that buildings closer to Metrorail be evaluated more highly. She also
adopted the Source Selection Evaluation Board’s overall technical ratings from its
January 12, 2011 Report, putting the lowest priced offer, King Farm, at a technical
disadvantage, and, thus, engaged in a best value trade-off analysis. As part of her
trade-off analysis, Ms. Kronopolous once again acknowledged Plaintiff’s advantage over
Fishers Lane on the Access to Metrorail sub-factor. She determined, however, looking
beyond the adjectival ratings, that Plaintiff’s advantage on the Access to Metrorail sub-
factor did not merit a higher overall technical rating, and did not justify the substantial
price difference between One Largo’s offer and Fishers Lane’s offer. Ms. Kronopolous’
reference to a 2,500 feet “reasonable walking distance” was not contrary to the terms of
the Solicitation. The Solicitation articulated distinctions based on distance between
buildings, including a distinction based on buildings within 2,500 walkable linear feet of
a Metrorail station and those that were farther away. Although the reasonableness of
Ms. Kronopolous’ trade-off analysis is addressed below, Plaintiff has failed to show that
Ms. Kronopolous’ technical evaluation of One Largo’s and Fishers Lane’s offers under
the Access to Metrorail sub-factor was contrary to the terms of the Solicitation, or that it
was unreasonable. See 5 U.S.C. § 706; see also Bannum, Inc. v. United States, 404
F.3d at 1351.
Planning Efficiency and Flexibility
Plaintiff also argues that Ms. Kronopolous’ technical evaluation of the Planning
Efficiency and Flexibility sub-factor in her August 24, 2011 decision was arbitrary and
capricious because she discounted Plaintiff’s technical advantage over Fishers Lane on
this sub-factor. Plaintiff alleges that Ms. Kronopolous found that the difference between
the offers submitted by One Largo and Fishers Lane on this sub-factor was “slight,”
based on the fact that Plaintiff’s offer had several minor weaknesses. Plaintiff argues
that Ms. Kronopolous did not acknowledge in her decision that Fishers Lane shared
those same minor weaknesses, and argues that if those minor weaknesses detracted
from Plaintiff’s proposal, they also should have detracted from Fishers Lane’s proposal.
Plaintiff cites FirstLine Transportation Security, Inc., v. United States, 100 Fed. Cl. 359,
382 (2011), for the proposition that source selection officials can reject the technical
evaluations of the Source Selection Evaluation Board, but they must set forth a rational
basis for doing so. In addition, Plaintiff, citing to Standard Communications, Inc. v.
United States, 101 Fed. Cl. 723, 735 (2011), notes that the source selection official’s
decision must be well-documented, and, to be well-documented, it must possess more
than mere generalizations. Plaintiff argues that Ms. Kronopolous’ decision failed to set
forth a rational basis for concluding that Plaintiff’s advantage over Fishers Lane on this
sub-factor was “slight," and that Ms. Kronopolous’ decision was not well-documented.
Moreover, Plaintiff notes that, during her testimony at the GAO hearing, Ms.
Kronopolous undermined her own rationale for her assessment of the Planning
63
Efficiency and Flexibility sub-factor, without providing a satisfactory explanation for her
analysis. Even if she had provided a reasonable rationale in her testimony before the
GAO, Plaintiff asserts that the court should not consider it because any reason Ms.
Kronopolous put forth after her written decision would be a post hoc rationalization and,
therefore, deserves no credibility.30
Defendant argues that Plaintiff conflates the two-step analysis in which
Defendant engaged when evaluating the offerors’ final proposals. Defendant asserts
that Ms. Kronopolous expressly adopted the Source Selection Evaluation Board’s
higher rating of One Largo on the Planning Efficiency and Flexibility sub-factor, as
compared to the rating assigned to Fishers Lane. Defendant claims that Ms.
Kronopolous determined that Plaintiff’s proposal offered only slightly more planning
efficiency and flexibility than Fishers Lane's proposal. According to Defendant, Ms.
Kronopolous, after examining each of the technical sub-factors, then engaged in a
trade-off analysis, as a result of which she decided that Plaintiff’s “slight” technical
advantage did not warrant the significant price difference between the two proposals.
Defendant responds that Ms. Kronopolous' analysis was not arbitrary and capricious,
and that she adequately documented her decision and her rationale. Moreover,
Defendant contends, nothing Ms. Kronopolous said at the GAO hearing undermined her
rationale for concluding that Plaintiff’s technical advantage was “slight.” According to
defendant, her GAO testimony was an explanation of her written decision. Defendant
asserts that Plaintiff disagrees with Ms. Kronopolous’ business judgment, but that
disagreement is insufficient to support a finding that she acted arbitrarily, citing
Banknote Corp. of Am., Inc v. United States, 56 Fed. Cl. at 384 (“[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.” (citations omitted)).
As with the Access to Metrorail sub-factor, the court must determine with respect
to the Planning Efficiency and Flexibility sub-factor whether Defendant’s evaluation of
One Largo’s and Fishers Lane’s proposals was consistent with the terms of the
Solicitation. With regard to the Planning Efficiency and Flexibility sub-factor, the
Solicitation stated:
Each building will be evaluated for overall planning efficiency. This
evaluation will include blocking and stacking plans, floor plate sizes,
circulation factors, common area factors, rentable to usable square foot
(“r/u”) ratios, column spacing, column bay sizing, core configuration and
placement, window mullion spacing, and other indicia of planning
efficiency and flexibility. . . . The Government prefers solutions that offer
integrated performance effectiveness with more efficiency and more
flexibility for layout and more flexibility for future reconfigurations.
Proximity and accessibility of the loading dock to the freight elevator and
ability of the lobby design to accommodate integration of Government
30
As noted above, Plaintiff conceded at oral argument, however, that Ms. Kronopolous’
GAO testimony could be considered by the court because it was “part of her decision.”
64
security requirements will also be considered. Buildings which provide for
more efficiency and flexibility will be more highly evaluated.
The Source Selection Plan further indicated:
The Government prefers a building that contains the following features:
 floor plate sizes,
 Efficient floor plate approximately 36,000 USF
 Rectangular in shape
 common area factors,
 Useable to gross 75%
 column spacing,
 Even, regular column spacing no less than 25’
 Optimum 30’ X 45’
 core configuration and placement
 Interior, rectangular core containing standard building support
elements, i.e., egress stairs, electrical and telephone closets, toilet
rooms, janitor closet
 45’ from core to window wall.
 Z-type corridor at core
 window mullion spacing
 5’ on center and each mullion wide enough to receive a 4” gypsum
board partition.
 and other relevant indicia of planning efficiency and flexibility.
 Column grid, window grid and ceiling grid all modular and related
to one another on a 5’ module.
 100 PSI live load throughout
 Mix of ambient and direct lighting
 Consistent 9’ ceiling height; 10’ for training and conference rooms.
 Flexible infrastructure.
 Generally, a rectangular floor plan.
And the Source Selection Plan’s general formula for assigning adjectival ratings applied
to the Planning Efficiency and Flexibility sub-factor, as follows:
 Superior: Many significant strengths; no significant weaknesses; some
minor weaknesses.
 Highly Successful: Many significant strengths; few significant
weaknesses; some minor weaknesses.
 Successful: Some significant and minor strengths and weaknesses,
but meets the minimum requirements defined in the SFO [Solicitation].
 Marginal: Some strengths; many weaknesses. A marginally acceptable
offer.
 Poor: Some or no strengths; many significant weaknesses. An offer
that fails to meet the minimum requirements defined in the SFO
65
[Solicitation] and is unacceptable. Offerors receiving a “Poor” rating
will be given the opportunity to meet the minimum requirements.
The Source Selection Evaluation Board Report indicated that:
For those Offers included in the competitive range, the final evaluation will
also consider the test fits prepared by the Offeror's architect for a typical
floor as certified by the Offeror. The Government prefers solutions that
offer integrated performance effectiveness with more efficiency and more
flexibility for layout and with flexibility for future reconfiguration. The
Government also prefers to minimize the travel distance between
employees within the facility(ies). The Government will also coordinate the
percentage of usable office space that can be located within 45’ of a
windowed perimeter. Ratings will be based on strengths and weaknesses
of offer.
With respect to the Planning Efficiency and Flexibility sub-factor, the Source
Selection Evaluation Board rated One Largo as “Superior,” and found that it had four
significant strengths, six minor strengths, no significant weaknesses, and four minor
weaknesses. The Source Selection Evaluation Board indicated that One Largo’s
significant strengths were:
 87% Common Area Factor exceeds the Source Selection Plan
preference of 75%, resulting in a more efficient floor plate.
 5’ on center mullion spacing meets Source Selection Plan
preference increasing daylight penetration and improving office
views.
 65,440 SF floor plate greatly exceeds the Source Selection Plan
preference of 36,000 SF, limiting the amount of employee
dispersion and increasing overall efficiency.
 In accordance with the SSEB rating table, a 1.117 Rentable to
Usable Square Foot Ratio (“r/u”) translates to a more efficient floor
plate.
The Source Selection Evaluation Board indicated that One Largo’s minor strengths
were:
 Z-type corridor meets the Source Selection Plan preference.
 8’ 6” typical ceiling height exceeds the Solicitation standard,
promoting a greater sense of openness.
 Interior core meets the Source Selection Plan preference, which
translates to a more efficient floor plate.
 Column free areas increase ease of space planning.
 80 pounds per square foot live load exceeds the Solicitation
standard and allows for greater storage and workstation flexibility.
66
 The majority of the space consists of 30’ x 45’ column spacing
which meets the Source Selection Plan’s “optimum” spacing
preference.
The Source Selection Evaluation Board noted that there were no significant
weaknesses and identified the minor weaknesses in One Largo’s proposal as:
 non-uniform column spacing, which negatively affects space planning
and decreases the Government’s flexibility in arranging systems
furniture;
 non-rectangular floor plate, which does not meet the Source Selection
Plan preference and decreases the overall efficiency as well as
efficiency of space planning;
 non-rectangular core does not meet Source Selection Plan preference;
and
 the distance from the core to the window wall exceeds the 45’ Source
Selection Plan preference in certain areas.
Fishers Lane was rated as “Highly Successful” on the Planning Efficiency and
Flexibility sub-factor, and the Source Selection Evaluation Board found that its proposal
had five significant strengths, three minor strengths, one significant weakness, and four
minor weaknesses. The Source Selection Evaluation Board indicated that the
significant strengths in Fishers Lane’s proposal were:
 54,970 SF floor plate exceeds the Source Selection Plan
preference of 36,000 SF, limiting the amount of employee
dispersion and increasing overall efficiency
 88% Common Area Factor exceeds the Source Selection Plan
preference of 75%, resulting in a more efficient floor plate.
 5’ on center mullion spacing meets Source Selection Plan
preference, increasing daylight penetration and improving office
views.
 The interior core is less than 45’ from the window wall, significantly
increasing the natural light penetration within the building.
 100 pounds per square foot live load meets the Source Selection
Plan preference and exceeds the Solicitation standard, which
allows for greater storage and workstation flexibility
The Source Selection Evaluation Board indicated that the minor strengths in Fishers
Lane’s proposal were:
 8’ 2” – 8’ 10’ typical ceiling height exceeds the Solicitation standard,
promoting a greater sense of openness.
 In accordance with the SSEB rating table, a 1.13 Rentable to
Usable Square Foot Ratio (“r/u”) translates to a more efficient floor
plate.
67
 Interior core meets Source Selection Plan preference, which
translates to a more efficient floor plate.
The Source Selection Evaluation Board noted that the significant weakness in Fishers
Lane’s proposal was that the “20’ X 24’ and 19’ X 20’ column spacing is less than the
SSP [Source Selection Plan] preference of 25', which negatively affects space
planning,” and identified the minor weaknesses as:
 non-rectangular floor plate does not meet the Source Selection Plan
preference and decreases the overall efficiency as well as efficiency of
space planning;
 non-uniform column spacing, which negatively affects space planning
and decreases the Government’s flexibility in arranging systems
furniture;
 non-rectangular core does not meet Source Selection Plan preference;
and
 U-shape corridor increases the travel time between offices, and
negatively affects the overall efficiency of the building.
In its “Consensus Grade,” the Source Selection Evaluation Board stated: “[t]he SSEB
members concurred that while the offered site [by Fishers Lane] meets many of the
SSP preferences, the offer had at least one (1) significant weakness, which did not
change as a result of the Offeror’s December 17, 2010 Final Proposal Revision, and as
a result assigned a HIGHLY SUCCESSFUL rating.” (emphasis in original)
In sum, as with the Access to Metrorail sub-factor, Plaintiff’s offer was more
highly rated than Fishers Lane’s offer on the Planning Efficiency and Flexibility sub-
factor at every step of the technical evaluation process. The Technical Evaluation
Team assigned to assess the Building Characteristics factor assigned One Largo’s offer
a “Superior” rating on the Planning Efficiency and Flexibility sub-factor, finding that it
had nine significant strengths, one minor strength, no significant weaknesses, and one
minor weakness. The Technical Evaluation Team assigned Fishers Lane a “Highly
Successful” rating, based on seven significant strengths, one minor strength, one
significant weakness, and two minor weaknesses. In its January 12, 2011 Report, the
Source Selection Evaluation Board assigned One Largo’s offer a “Superior” rating on
the Planning Efficiency and Flexibility sub-factor, finding that it had four significant
strengths, six minor strengths, no significant weaknesses, and four minor weaknesses.
Fishers Lane was rated “Highly Successful” by the Source Selection Evaluation Board
because it enjoyed five significant strengths, three minor strengths, one significant
weakness, and four minor weaknesses. Both Plaintiff’s and Fishers Lane’s proposals
were found to have two of the same minor weaknesses: 1) “[n]on-uniform column
spacing negatively affects space planning and decreases the Government’s flexibility in
arranging systems furniture;” and 2) “[n]on-rectangular floor plate does not meet the
SSP preference and decreases the overall efficiency, as well as efficiency of space
planning.” The Source Selection Evaluation Board did not change its technical ratings
of the Planning Efficiency and Flexibility sub-factor in its February 3, 2011 Addendum to
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its original January 12, 2011 Report. The Source Selection Authority adopted the
Source Selection Evaluation Board’s ratings of all the offers on all technical sub-factors,
as did Ms. Kronopolous in both her first and second selection decisions. Thus, as with
the Access to Metrorail sub-factor, One Largo was rated more highly than Fishers Lane
on the Planning Efficiency and Flexibility sub-factor by each of Defendant’s source
selection entities and officials.
As stated above, Ms. Kronopolous’ August 24, 2011 decision adopted the
strengths and weaknesses assigned to each offer and the sub-factor ratings for each,
as well as the overall technical ratings assigned by the Source Selection Evaluation
Board in its January 12, 2011 Report. After adopting the Source Selection Evaluation
Board’s findings, including the finding that the lowest priced offer from King Farm was
not the highest rated technical offer, Ms. Kronopolous decided to engage in a trade-off
analysis, as permitted by the Solicitation. In her trade-off analysis, regarding the
Planning Efficiency and Flexibility sub-factor she stated: “Looking beyond the adjectival
ratings, I find that the lower rating of Parklawn [Fishers Lane] for Planning Efficiency
and Flexibility is justified by the building’s tight column spacing that will affect future
space planning and flexibility.” Ms. Kronopolous, therefore, acknowledged that Fishers
Lane had a significant weakness that warranted its “Highly Successful” rating on the
Planning Efficiency and Flexibility sub-factor, as opposed to the other four offerors, each
of which was rated “Superior” on the Planning Efficiency and Flexibility sub-factor. Ms.
Kronopolous continued, however, “I also note that notwithstanding its adjectival rating,
the layout of One Largo’s building has non-uniform column spacing and a non-
rectangular floor plate.” She further noted that King Farm’s offer, which also was rated
“Superior” on the Planning Efficiency and Flexibility sub-factor, had non-uniform column
spacing, as did One Largo’s offer. Ms. Kronopolous stated: “I also find that these
weaknesses are not of such severity as to detract from the overall quality of the offers,
which were all technically very strong in the Building Characteristics category.” As part
of her trade-off analysis, Ms. Kronopolous determined that, although some offers had
weaknesses on the Planning Efficiency and Flexibility sub-factor, all five offers were of
high technical quality on the three sub-factors comprising the Building Characteristics
factor.
Comparing Plaintiff’s and Fishers Lane’s offers, Ms. Kronopolous stated:
With respect to the building’s planning efficiency and flexibility, Parklawn
[Fishers Lane] has a significant weakness with respect to its tight column
spacing. This will negatively affect space planning and flexibility in future
lease years. One Largo Metro has larger column spacing; however, there
are other aspects of the space planning at One Largo Metro that will have
a negative effect on space planning and flexibility such as the non-uniform
column spacing and the non-rectangular floor plate.
Thus, Ms. Kronopolous again acknowledged Fishers Lane’s significant weakness,
although she did not specifically mention that Fishers Lane also shared both of the
minor weaknesses, which she had characterized as “limitations” of One Largo’s offer.
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Discussing the overall trade-off between cost and technical merit for One Largo’s and
Fishers Lane’s offers, Ms. Kronopolous concluded that “One Largo Metro also has
Planning Efficiency and Flexibility limitations such that the difference between the two
offers in the sub-factor is slight.” She concluded, however, even in this regard, that
Plaintiff’s “small technical advantage” over Fishers Lane did not merit the significant
price difference between the two offers.
Ms. Kronopolous’ determination that the difference between One Largo’s and
Fishers Lane’s proposals on the Planning Efficiency and Flexibility sub-factor was
“slight” was made as part of her trade-off analysis and did not contradict the terms of the
Solicitation, nor was it unreasonable. The Solicitation provided that “[b]uildings which
provide for more efficiency and flexibility will be more highly evaluated.” One Largo’s
offer was more highly evaluated than Fishers Lane’s offer on the Planning Efficiency
and Flexibility sub-factor in Ms. Kronopolous’ August 24, 2011 decision, earning a
“Superior” rating, while Fishers Lane’s offer was assigned a rating of “Highly
Successful.” According to the Solicitation, the Planning Efficiency and Flexibility sub-
factor looked at a wide array of characteristics for each proposal, including “blocking
and stacking plans, floor plate sizes, circulation factors, common area factors, rentable
to usable square foot (‘r/u’) ratios, column spacing, column bay sizing, core
configuration and placement, window mullion spacing, and other indicia of planning
efficiency and flexibility.” After evaluating a large number of features for each proposal,
the Source Selection Evaluation Board found that One Largo’s proposal had four
significant strengths, six minor strengths, no significant weaknesses, and four minor
weaknesses. The Source Selection Evaluation Board found that Fishers Lane’s offer
had five significant strengths, three minor strengths, one significant weakness, and four
minor weaknesses. Therefore, the Source Selection Evaluation Board determined that
Fishers Lane’s offer had one more significant strength, but also one more significant
weakness than One Largo’s offer, while One Largo’s offer had three more minor
strengths than Fishers Lane’s offer, and the two offers had the same number of minor
weaknesses.
The Source Selection Evaluation Board, although awarding One Largo a higher
grade than Fishers Lane on the Planning Efficiency and Flexibility sub-factor, “Superior,”
as compared to “Highly Superior,” did not do so unanimously given the various technical
ratings awarded to Plaintiff and Fishers Lane. As indicated in the Source Selection
Evaluation Board’s Report “Consensus Grade” for One Largo on the Planning Efficiency
and Flexibility sub-factor:
The SSEB was split 4-1, however the majority concluded that the Offeror
[One Largo] made significant design modifications that directly addressed
technical deficiencies including column spacing, which was eliminated as
a significant weakness, and a decrease in the R/U ratio which resulted in
an improved rating. The SSEB members concurred that the offered site
met and in many cases exceeded the SSP preference, and as a result
assigned a SUPERIOR rating based on the abundance of significant
strengths, and the elimination of their one (1) significant weakness. The
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dissenting opinion was that the final grade be Highly Successful due to the
numerous minor weaknesses. However, per the SSP, agreement was
reached because there was no significant difference in the evaluator’s
grades by more than a single adjective.
(emphasis in original). The Source Selection Plan’s formula for assigning a “Superior”
rating instead of “Highly Successful” rating, was: “Superior: Many significant strengths;
no significant weaknesses; some minor weaknesses,” and “Highly Successful: Many
significant strengths; few significant weaknesses; some minor weaknesses.” One Largo
did not have any significant weaknesses, a requirement for a Superior rating, but like
Fishers Lane, which was rated “Highly Successful,” did have four minor weaknesses.
Fishers Lane had one significant weakness, which likely would have precluded a rating
of “Superior” under the Source Selection Plan, which Ms. Kronopolous recognized. But
Fishers Lane did have many significant strengths, including one more than One Largo,
and only some minor weaknesses. After review, Ms. Kronopolous adopted the Source
Selection Evaluation Board’s January 12, 2011 Report and February 3, 2011
Addendum. She agreed with their evaluations of the Planning Efficiency and Flexibility
sub-factor, and was not arbitrary or capricious in concluding that the difference between
One Largo’s and Fishers Lane’s proposals on the Planning Efficiency and Flexibility
sub-factor was “slight.”
Ms. Kronopolous’ August 24, 2011 decision may not have been as precise as it
could have been in terms of explaining how she evaluated the two minor weaknesses
that One Largo’s and Fishers Lane’s offers shared, when concluding that the
differences between the two proposals was only “slight.” When asked about her
assessment of the Planning Efficiency and Flexibility sub-factor at the GAO hearing, Ms.
Kronopolous said that she tried to look beyond the adjectival ratings when she
conducted her trade-off analysis and found that "on the whole ... the differential from the
adjectival rating did not necessarily help understand -- help present the true distinction.
And I thought that the true distinction was not as significant." Asked specifically,
however, why the two minor weaknesses she referenced with regard to Plaintiff's
proposal made the difference between Plaintiff's “Superior” rating and Fishers Lane's
“Highly Successful” rating only “slight,” Ms. Kronopolous stated:
I actually didn’t approach it that way. I didn’t look at it that way. So what I
looked at was there were some minor weaknesses in One Largo’s as well,
and those were two examples. So it was not to say that it negates every --
it kind of counterweights and gives more advantage to Fishers Lane. So
my slight advantage was much more about, even though I just
acknowledged that there were some minor weaknesses there, it was
much more about the factor, if you look at the SFO [Solicitation] and all the
criteria that you look at in the planning efficiency and flexibility subfactor,
that -- its -- the column spacing is still just one of a number of criteria that
they were looking for, that we were looking for.
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In its second decision, the GAO faulted Ms. Kronopolous’ August 24, 2011
decision for not mentioning that Fishers Lane had the same two minor weaknesses as
Plaintiff in the Planning Efficiency and Flexibility category, stating:
Despite the HCA’s [Ms. Kronopolous’] testimony that she was aware at the
time of her selection decision of these weaknesses in Fishers Lane’s
proposal, the HCA’s written selection decision does not acknowledge that
Fishers Lane’s proposal had these same weaknesses. Moreover, the HCA
was unable to articulate at our hearing an explanation for this omission
from her decision.
The GAO concluded, however, that Plaintiff failed to demonstrate that it was
competitively prejudiced by Ms. Kronopolous’ decision. The court agrees that Ms.
Kronopolous’ written decision should have accounted for the fact that Fishers Lane
shared the same two minor weaknesses in the Planning Efficiency and Flexibility sub-
factor that she characterized as “limitations” of Plaintiff’s offer. Ms. Kronopolous,
however, after her overall review of Plaintiff’s offer and Fishers Lane’s offer, found the
difference between the two offers on the Planning Efficiency and Flexibility sub-factor
only “slight.” Her failure to specifically acknowledge the Fishers Lane weaknesses does
not make her conclusion that the difference between One Largo’s offer and Fishers
Lane’s offer on the Planning Efficiency and Flexibility sub-factor was “slight” an
unreasonable one, and the contemporaneous record supports Ms. Kronopolous’
conclusions.
Plaintiff points out that the GAO’s first decision also found fault with Ms.
Kronopolous’ evaluation of the Access to Amenities sub-factor in her March 8, 2011
selection decision, and found that her error in evaluating the Access to Amenities sub-
factor prejudiced King Farm. Plaintiff argues that Ms. Kronopolous’ evaluation of the
Access to Amenities sub-factor in her first selection decision is similar to her final
evaluation of the Planning Efficiency and Flexibility sub-factor in her second selection
decision. Plaintiff asserts that the Access to Amenities sub-factor was only assigned a
weight of ten percent in the Source Selection Plan, as compared to a weight of fifteen
percent for the Planning Efficiency and Flexibility sub-factor, and that there was only a
one-step difference between King Farm’s and Fishers Lane’s technical evaluations on
that sub-factor, which were “Superior” and “Highly Successful,” respectively. There
were noticeable differences, however, between the two evaluations. King Farm was the
lowest-priced bidder and the Source Selection Evaluation Board originally found that
King Farm represented the best overall value to the government. Plaintiff’s offer was
significantly higher-priced than the chosen offeror, Fishers Lane, and was never chosen
by any selection official to represent the best value to the government, although Plaintiff
enjoyed a one-step advantage over Fishers Lane on the Planning Efficiency and
Flexibility sub-factor, “Superior” as compared to “Highly Successful.” Moreover, in the
first round of protests, the GAO found that Defendant’s evaluation of all of the offers
under the Access to Amenities factor was inconsistent with the terms of the Solicitation.
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Ms. Kronopolous could reasonably have determined that the difference between
Plaintiff’s and Fishers Lane’s offers was only “slight” on the Planning Efficiency and
Flexibility sub-factor because both proposals enjoyed a similar number of strengths and
weaknesses. The GAO also stated: “[t]he weaknesses in dispute were only two among
many criteria the [Source Selection Evaluation Board] considered. . . .” Ms.
Kronopolous failed to document the fact that Fishers Lane shared the two minor
weaknesses, which she considered “limitations” under the terms of the Solicitation. She
did, however, look beyond the adjectival ratings assigned to each proposal and weighed
what she considered the actual differences in the proposals’ technical quality. The
scope of the analytical error in Ms. Kronopolous’ analysis of the Planning Efficiency and
Flexibility sub-factor in her final decision is not the same as Defendant’s error in
evaluating the Access to Amenities sub-factor in the first round of evaluations.
Moreover, the Planning Efficiency and Flexibility sub-factor was a small part of
the overall technical evaluation because it was assigned a weight of fifteen percent in
the Source Selection Plan. That Plaintiff enjoyed a one-step advantage on a sub-factor
that was only weighted at fifteen percent of the non-price factors does not demonstrate
that Ms. Kronopolous’ assessment of Plaintiff’s and Fishers Lane’s offers as having
approached equality overall was arbitrary or capricious, or that Ms. Kronopolous would
have changed her conclusion that none of the four proposals with higher technical
ratings offered the lowest price, and, therefore, that a trade-off analysis was
appropriate.
Plaintiff cites to two United States Court of Federal Claims cases for support that
Ms. Kronopolous’ evaluations of the sub-factors was arbitrary and capricious: FirstLine
Transportation Security, Inc., v. United States, 100 Fed. Cl. at 359, and Standard
Communications, Inc. v. United States, 101 Fed. Cl. at 723. Plaintiff’s citations,
however, are inapt. Plaintiff argues that FirstLine Transportation Security, Inc., v.
United States establishes that the source selection official can reject the technical
evaluations of the Source Selection Evaluation Board, but must set forth a rational basis
for doing so. Here, Ms. Kronopolous did not reject the technical evaluations of the
Source Selection Evaluation Board, rather, she explicitly adopted the Source Selection
Evaluation Board’s January 12, 2011 Report. Likewise, Plaintiff cites to Standard
Communications, Inc. v. United States, for the proposition that the source selection
official’s decision must be well-documented, meaning it must contain more than mere
generalizations. The portion of Standard Communications, Inc. v. United States to
which Plaintiff refers discusses a Source Selection Authority’s trade-off analysis, not the
technical evaluations of offers and whether or not the technical evaluations were made
in accordance with the Solicitation. Thus, Plaintiff’s reliance on Standard
Communications, Inc. v. United States for the argument that Ms. Kronopolous’
evaluation of the Planning Efficiency and Flexibility sub-factor was arbitrary and
capricious is misplaced.
The court concludes that Ms. Kronopolous’ evaluation of One Largo’s and
Fishers Lane’s offers under the Planning Efficiency and Flexibility sub-factor in her
August 24, 2011 decision was not inconsistent with the terms of the Solicitation.
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Rather, Ms. Kronopolous adopted the Source Selection Evaluation Board’s “Superior”
rating for One Largo on the Planning Efficiency and Flexibility sub-factor, as well as the
Board’s “Highly Successful” rating for Fishers Lane. This was in accordance with the
Solicitation’s requirement that “[b]uildings which provide more efficiency and flexibility
will be rated more highly.” Therefore, Ms. Kronopolous’ August 24, 2011 decision was
not arbitrary and capricious based on the technical evaluation of the Planning Efficiency
and Flexibility sub-factor.
Plaintiff states that, but for Ms. Kronopolous’ actions, it would have had a
substantial chance at being awarded the contract. Plaintiff also alleges that because
the GAO sustained the first round of protests and concluded that Ms. Kronopolous’
analysis of the Access to Amenities sub-factor was in error, and her error prejudiced
protestor King Farm, Plaintiff was prejudiced by Ms. Kronopolous’ arbitrary and
capricious analysis of the Access to Metrorail sub-factor and the Planning Efficiency and
Flexibility sub-factor. Plaintiff’s reliance on the previous protest at the GAO, or a
procurement process that was subsequently revised, is not dispositive.
This court is not bound by GAO decisions, although they are of interest and
persuasive to the court. See Grunley Walsh Int'l, LLC v. United States, 78 Fed. Cl. at
39 (citing E.W. Bliss Co. v. United States, 33 Fed. Cl. at 135); see also Elec. On-Pump,
Inc. v. United States, 104 Fed. Cl. 151, 167 n.12 (2012); Precision Images, LLC v.
United States, 79 Fed. Cl. 598, 619 n.40 (2007), aff’d, 283 F. App’x 813 (Fed. Cir.
2008); Tel–Instrument Elec. Corp. v. United States, 56 Fed. Cl. 174, 177 n.2 (2003),
aff’d, 87 F. App’x 752 (Fed. Cir. 2004); North Carolina Div. of Servs. for the Blind v.
United States, 53 Fed. Cl. 147, 166 n. 13 (2002), aff’d, 60 F. App’x 826 (Fed. Cir. 2003).
In addition, the United States Court of Appeals for the Federal Circuit has stated:
A bid protest proceeds in two steps. First... the trial court determines
whether the government acted without rational basis or contrary to law
when evaluating the bids and awarding the contract. Second... if the trial
court finds that the government's conduct fails the APA review under 5
U.S.C. § 706(2)(A), then it proceeds to determine, as a factual matter, if
the bid protester was prejudiced by that conduct.
Bannum, Inc. v. United States, 404 F.3d at 1351. As determined above, this court has
determined that Ms. Kronopolous’ analysis regarding the Access to Metrorail sub-factor
and the Planning Efficiency and Flexibility sub-factor was not arbitrary and capricious,
notwithstanding Ms. Kronopolous having committed a minor error on the Planning
Efficiency and Flexibility sub-factor, as pointed out by the GAO. In the first round of
protests, the GAO found that Ms. Kronopolous had erred with regard to the full analysis
of the Access to Amenities sub-factor, and suggested that a re-evaluation of the entire
sub-factor was required, but in the second round of protests the GAO did not conclude
that a full re-evaluation was required for either the Access to Metrorail sub-factor or the
Planning Efficiency and Flexibility sub-factor, which are challenged in the current
protest.
74
Moreover, unlike King Farm, which was the lowest priced bidder and which the
Source Selection Evaluation Board originally found represented the best overall value to
the government, One Largo’s offer was approximately $51 million more than Fishers
Lane’s offer, the offeror who received the contract award. For One Largo to prevail, Ms.
Kronopolous would have had to conclude, in a trade-off analysis, that One Largo
represented the best value to the government, because, under the terms of the
Solicitation, “if the highest technical offer is not the lowest priced offer, the Government
will assess the value of the technical factors of an offer to reconcile the price and
technical factors.”
Trade-off Analysis
Plaintiff also alleges that, because Ms. Kronopolous’ evaluations of the Access to
Metrorail and Planning Efficiency and Flexibility sub-factors were arbitrary and
capricious, therefore, her trade-off analysis was necessarily arbitrary and capricious as
well. Plaintiff also argues that Ms. Kronopolous gave undue weight to price in her trade-
off analysis. According to Plaintiff, based on Ms. Kronopolous’ erroneous conclusion
that Plaintiff’s and Fishers Lane’s proposals approached equality on the Access to
Metrorail sub-factor, and her conclusion that the difference between the two offers on
the Planning Efficiency and Flexibility sub-factor was only “slight,” she concluded that
the two offers approached equality overall, and treated price as though it was more
important than the combined weight of the non-price factors. Plaintiff contends that Ms.
Kronopolous’ treatment of price as more important than non-price factors contradicted
the Solicitation’s instruction that price be given “significantly less importance than the
combined weight of the technical factors” unless the offers approached technical
equality. According to Plaintiff, One Largo enjoyed close to a “two-step advantage” over
Fishers Lane on the Access to Metrorail sub-factor, which was weighted at thirty-five
percent of the technical evaluation factors, and a one-step advantage on the Planning
Efficiency and Flexibility sub-factor, which was weighted at fifteen percent of the
technical evaluation factors, while Fishers Lane only had only a one-step advantage
over Plaintiff on the Access to Amenities sub-factor, which was weighted at ten percent
of the technical evaluation factors. Thus, according to Plaintiff, Fishers Lane’s proposal
did not approach equality with Plaintiff’s proposal, and Ms. Kronopolous should not have
conducted her trade-off analysis on the basis that price was an important consideration.
Defendant responds that the Source Selection Evaluation Board determined in its
January 12, 2011 Report that both Plaintiff’s and Fishers Lane’s offers deserved
“Superior” ratings overall, a determination which Ms. Kronopolous adopted, and which
Plaintiff has never challenged. Based on the Source Selection Evaluation Board’s
conclusion, Ms. Kronopolous decided that Plaintiff’s and Fishers Lane’s offers
approached overall equality. Defendant argues that Ms. Kronopolous’ second selection
decision, dated August 24, 2011, then took “each of the four offerors that she
determined to ‘approach equality’ and discusse[d] and focuse[d] upon the real areas of
technical distinction and the cost implications of those distinctions.” Defendant
maintains that Ms. Kronopolous properly treated price as an important consideration
and focused her trade-off analysis on the question of whether the benefits of Plaintiff’s
75
offer merited its additional cost, as required by the Solicitation. Defendant emphasizes
that there was a significant price difference between the two offers, $51 million over the
life of the lease. According to Defendant, after review of the evaluations of each
proposal, Ms. Kronopolous determined that the technical advantage of Plaintiff’s offer
over the offer submitted by Fishers Lane did not merit the additional cost. Defendant
insists that Ms. Kronopolous’ decision was both consistent with the terms of the
Solicitation and supported by the Administrative Record.
FAR 15.308 governs the Source Selection Authority's best value determination in
government procurement decisions, and states:
The 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.
48 C.F.R. § 15.308 (current through Feb. 7, 2013). This court has interpreted FAR
15.308 to encompass two requirements: 1) the source selection authority "must reach
an independent award decision based on a comparative assessment of the proposals
against all of the criteria set forth in the solicitation;" and 2) the source selection
authority "must document its independent award decision." FirstLine Transp. Sec., Inc.
v. United States, 100 Fed. Cl. at 382; see also Akal Sec., Inc. v. United States, 103 Fed.
Cl. at 335 (“FAR 15.308 has two relevant requirements: 1) the SSA must use his or her
independent judgment in making a source selection and 2) the source selection
decision must be documented, including the rationale for any business judgments and
tradeoffs made or relied on by the SSA.”); Info. Scis. Corp. v. United States, 73 Fed. Cl.
70, 120 (2006) (“‘Although source selection officials may reasonably disagree with the
ratings and recommendations of evaluators, they are nonetheless bound by the
fundamental requirement that their independent judgments be reasonable, consistent
with the stated evaluation scheme and adequately documented.’” (quoting Matter of
Dyncorp Int'l LLC, No. B–289863, 2002 CPD ¶ 83, 2002 WL 1003564 (Comp. Gen. May
13, 2002))), recons. in unrelated part, 75 Fed. Cl. 406 (2007). To be well-documented,
the source selection decision "must contain more than conclusory and generalized
statements." Standard Commc'ns, Inc. v. United States, 101 Fed. Cl. at 735 (citing
Serco Inc. v. United States, 81 Fed. Cl. at 497 (“Conclusory statements, devoid of any
substantive content, have been held to fall short of” the documentation requirement in
FAR 15.308.)).
76
A judge of the United States Court of Federal Claims summarized the
requirements of FAR 15.308 as follows:
First, the regulation requires the agency to make a business judgment as
to whether the higher price of an offer is worth the technical benefits its
acceptance will afford. See, e.g., TRW, Inc. [v. Unisys Corp.], 98 F.3d
[1325, 1327 (Fed. Cir. 1996)]; Dismas Charities, Inc., 61 Fed. Cl. [191,
203 (2004)]. Doing this, the decisional law demonstrates, obliges the
agency to do more than simply parrot back the strengths and weaknesses
of the competing proposals—rather, the agency must dig deeper and
determine whether the relative strengths and weaknesses of the
competing proposals are such that it is worth paying a higher price.
Second, in performing the tradeoff analysis, the agency need neither
assign an exact dollar value to the worth associated with the technical
benefits of a contract nor otherwise quantify the non-cost factors. FAR §
15.308 (“the documentation need not quantify the tradeoffs that led to the
decision”); Widnall v. B3H Corp., 75 F.3d 1577, 1580 (Fed. Cir. 1996).
But, this is not to say that the magnitude of the price differential between
the two offers is irrelevant—logic suggests that as that magnitude
increases, the relative benefits yielded by the higher-priced offer must also
increase. See Beneco Enters., Inc., 2000 C.P.D. ¶ 69, 1999 WL 1713451,
at *5 (1999). To conclude otherwise, threatens to “minimize[ ] the potential
impact of price” and, in particular, to make “a nominal technical advantage
essentially determinative, irrespective of an overwhelming price premium.”
Coastal Sci. and Eng'g, Inc., 89–2 C.P.D. ¶ 436, 1989 WL 237564, at *2
(1989); see also Lockheed Missiles & Space Co., 4 F.3d at 959–60.
Finally—and many cases turn on this point—the agency is compelled by
the FAR to document its reasons for choosing the higher-priced offer.
Conclusory statements, devoid of any substantive content, have been held
to fall short of this requirement, threatening to turn the tradeoff process
into an empty exercise. Indeed, apart from the regulations, generalized
statements that fail to reveal the agency's tradeoff calculus deprive this
court of any basis upon which to review the award decisions. See Johnson
Controls World Servs., 2002 WL 1162912, at *6; Satellite Servs., Inc.,
2001 C.P.D. ¶ 30, at *9–11; Si–Nor, Inc., 2000 C.P.D. ¶ 159, 1999 WL
33210196, at *3 (1999).
Serco Inc. v. United States, 81 Fed. Cl. at 496-97.
Although the Source Selection Authority’s decision must comply with FAR
15.308, a plaintiff bears a significant burden to demonstrate error in the Source
Selection Authority’s trade-off analysis, because procurement officials have a very high
degree of discretion when it comes to best value determinations. See, e.g., Galen Med.
Assocs., Inc. v. United States, 369 F.3d at 1330 (because “the contract was to be
awarded based on ‘best value,’ the contracting officer had even greater discretion than
if the contract were to have been awarded on the basis of cost alone”); see also
Banknote Corp. of Am. Inc. v. United States, 365 F.3d at 1355 (“It is well-established
77
that contracting officers have a great deal of discretion in making contract award
decisions, particularly when, as here, the contract is to be awarded to the bidder or
bidders that will provide the agency with the best value.” (citing TRW, Inc. v. Unisys
Corp., 98 F.3d at 1327-28)); Am. Tel. & Tel. Co. v. United States, 307 F.3d at 1379;
E.W. Bliss Co. v. United States, 77 F.3d at 449 (“Procurement officials have substantial
discretion to determine which proposal represents the best value for the government.
See Lockheed Missiles & Space Co., Inc. v. Bentsen, 4 F.3d 955, 958 (Fed. Cir. 1993);
cf. Widnall v. B3H, 75 F.3d 1577 (Fed. Cir. 1996) (holding that Board of Contract
Appeals should defer to agency’s best value decision as long as it is ‘grounded in
reason... even if the Board itself might have chosen a different bidder’)….”); Lockheed
Missiles & Space Co. v. United States, 4 F.3d at 958; Burney v. United States, 2012 WL
1632353, at *6 (“We give a high level of deference to an agency’s evaluation of
proposals and best value determinations, recognizing the agency’s expertise in
procurement matters and application of regulations. See CHE Consulting, Inc. v. United
States, 552 F.3d 1351, 1354 (Fed. Cir. 2008) (citing E.W. Bliss Co. v. United States, 77
F.3d 445, 449 (Fed. Cir. 1996)). An agency’s action will be upheld unless the protestor
can show that the agency’s action was without a rational basis. Impresa Construzioni
Gemo. Domenico Garufi v. United States, 238 F.3d 1324, 1333 (Fed. Cir. 2001).”); Akal
Sec., Inc. v. United States, 103 Fed. Cl. at 329 (“The United States Court of Appeals for
the Federal Circuit has recognized that ‘[p]rocurement officials have substantial
discretion to determine which proposal represents the best value for the government.’”
(quoting E.W. Bliss Co. v. United States, 77 F.3d at 449)); Blackwater Lodge & Training
Ctr., Inc. v. United States, 86 Fed. Cl. at 514. The Federal Circuit has held that an
agency’s procurement decision will be upheld so long as it “evince[es] rational
reasoning and consideration of relevant factors.” Advanced Data Concepts, Inc. v.
United States, 216 F.3d at 1058 (citing Bowman Transp., Inc. v. Arkansas–Best Freight
Sys., Inc., 419 U.S. at 285); Honeywell, Inc. v. United States, 870 F.2d at 648 (“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.” (quoting M.
Steinthal & Co. v. Seamans, 455 F.2d at 1301)).
Courts give agencies such a high degree of discretion in best value
determinations because it is necessarily a subjective process. Any decision to contract
is “inherently a judgmental process which cannot accommodate itself to absolutes, at
least not without severely impairing the quality of the judgment called for.” Sperry Flight
Sys. v. United States, 212 Ct. Cl. at 339, 548 F.2d at 921; see also Omega World Travel
v. United States, 54 Fed. Cl. 570, 578 (2002) (“The higher burden” for plaintiffs in
negotiated procurements “exists because the contracting officer engages in what is an
‘inherently a judgmental process.’” (quoting Burroughs Corp. v. United States, 617 F.2d
at 598)). The determination of which offer represents the “overall best value to the
government” involves layers of decision-making and judgment calls regarding which
proposals offer the overall highest technical merit, and what technical advantages are
worth a higher price. The court is reluctant to second guess contracting officials in such
a process.
78
Plaintiff’s claim that Ms. Kronopolous’ trade-off decision was arbitrary and
capricious focuses heavily on the proposition that Ms. Kronopolous’ evaluation of
Plaintiff’s and Fishers Lane’s offers under the Access to Metrorail and Planning
Efficiency and Flexibility sub-factors was arbitrary and capricious, and therefore, her
trade-off analysis was necessarily arbitrary and capricious, as well. The court has
found, however, that Ms. Kronopolous’ evaluation of the Access to Metrorail and
Planning Efficiency and Flexibility sub-factors was reasonable, and not arbitrary and
capricious. As discussed above, the court agrees with Defendant that Ms. Kronopolous
did not find that Plaintiff’s and Fishers Lane’s proposals approached equality on the
Access to Metrorail and Planning Efficiency and Flexibility sub-factors individually, but,
instead, that the proposals submitted by One Largo and Fishers Lane, along with
Metroview’s and University’s offers, approached equality overall. Ms. Kronopolous also
concluded that King Farm’s offer, the lowest priced offer, was not as highly rated as the
other four offers, and did not approach equality. Plaintiff cannot prevail on the argument
that Ms. Kronopolous’ trade-off analysis was necessarily arbitrary and capricious based
on her evaluation of two technical sub-factors, which the court has found were
reasonable and not arbitrary or capricious.
In her August 24, 2011 selection decision, Ms. Kronopolous set out to address
the two problems identified by the GAO in the first round of protests in this case in her
first selection decision: 1) the flawed evaluation of the Access to Amenities sub-factor,
and 2) the lack of meaningful consideration of the technical differences between the
offerors in making her original trade-off decision. Therefore, her first step in the
subsequent August 24, 2011 selection decision was to re-evaluate every offer under the
Access to Amenities sub-factor. Plaintiff does not specifically challenge Ms.
Kronopolous’ re-evaluation of the Access to Amenities sub-factor in her August 24,
2011 selection decision before this court. Nevertheless, the court notes that Ms.
Kronopolous’ evaluation of the Access to Amenities sub-factor in her second, August
24, 2011 selection decision was consistent with the terms of the Solicitation and
relevant in her trade-off analysis. Ms. Kronopolous indicated that she began her
analysis of the Access to Amenities sub-factor by adopting the strengths and
weaknesses of each offer as set out in the Source Selection Evaluation Board’s January
12, 2011 Report, but then adjusted the Source Selection Evaluation Board’s technical
ratings for the Access to Amenities sub-factor based on additional research performed
by the Agency’s broker. Ms. Kronopolous’ evaluation of the Access to Amenities sub-
factor in her second, August 24, 2011 selection decision focused on accounting for the
total number of amenities offered, instead of just the amenity categories offered, as her
original decision had done, as well as the hours of operation for all amenities. Based on
her revisions, she created a new chart to assess each offeror’s Access to Amenities.
One Largo’s results were as follows:
79
Category Within 1,500 WLF Within 2,500 WLF
Restaurants
Fast Food 3 3
Day Care
Fitness Facility
Dry Cleaners
Bank/ATM 1
Postal Facility
Convenience Shop 1 1
Cards/Gift Shop 3
Hair Salons 1
Automotive Service
Stations
Drug Stores
Total Amenities 4 9
Total Categories 2 5
Ms. Kronopolous found:
While there are a good number of amenities and a few food options within
close proximity of the site, the site lacks a variety of additional amenities.
This lack of variety limits the errands and personal tasks that employees
can accomplish before and after work or during their lunch break.
Compounding this is the fact that 3 of the total amenities are card/gift
shops. Because of the lack of variety of amenities, taking the variety,
quantity, hours and proximity of amenities into consideration, I find that
One Largo Metro merits a rating of Successful for this subfactor.
80
Ms. Kronopolous included the following chart of Fishers Lane’s offered amenities:
Category Within 1,500 WLF Within 2,500 WLF
Restaurants
Fast Food 4 5
Day Care
Fitness Facility
Dry Cleaners 1 2
Bank/ATM 2 2
Postal Facility 1 1
Convenience Shop 1 1
Cards/Gift Shop 1 1
Hair Salons 1 2
Automotive Service 7 9
Stations
Drug Stores
Total Amenities 18 23
Total Categories 8 8
Ms. Kronopolous stated that Fishers Lane should receive a “Highly Successful” rating,
according to the Source Selection Plan, because it had at least eight amenities within
2,500 walkable linear feet. She added: “In fact, these same amenity categories are
found within 1,500 wlf, offering even better access for employees.” Ms. Kronopolous
emphasized the number of eating establishments within 2,500 walkable linear feet of
Fishers Lane’s building, but only gave Fishers Lane credit for a few of the automotive
service stations offered, concluding: “Because of the variety, quantity, hours and
proximity of amenities, I find that Parklawn [Fishers Lane] merits a rating of Highly
Successful approaching Superior for this subfactor.”
Ms. Kronopolous included charts for each of the other three offerors’ amenities
proposals, and rated King Farm “Highly Successful approaching Superior” on the
Access to Amenities sub-factor, based on her finding that it offered twelve total
amenities in eight amenity categories within 1,500 walkable linear feet, and sixteen total
amenities in ten amenity categories within 1,500 walkable linear feet. Metroview
received a “Marginal” rating, as Ms. Kronopolous found it had only four total amenities in
three amenity categories within 1,500 walkable linear feet, and no additional amenities
within 2,500 walkable linear feet. Finally, Ms. Kronopolous rated University as
“Superior” on this sub-factor, finding that University offered thirteen total amenities in
eight amenity categories within 1,500 walkable linear feet, and twenty-nine total
amenities in eleven amenity categories within 2,500 walkable linear feet. Although
offering less than nine amenity categories within 1,500 walkable linear feet placed
University in the “Highly Successful” category under the Source Selection Plan, Ms.
Kronopolous raised the rating to “Superior,” based on the “significant variety” of
amenities offered, and the large number of eating facilities within close proximity of
University’s proposed building.
81
The Solicitation provided that offers would be evaluated based on the “quantity,
variety, hours and proximity” of available amenities, giving the best rating to the offers
“that provide the greatest variety and quantity of amenities with good hours of operation
existing at the time of occupancy within the building or with 1,500 walkable linear feet of
the building.” By looking at the total number of amenities, as well as amenity categories
represented, and the hours of operation for each amenity, and by distinguishing
between amenities that were within 1,500 versus 2,500 walkable linear feet, Ms.
Kronopolous complied with the requirement of the Solicitation in her evaluation of the
Access to Amenities sub-factor in her August 24, 2011 selection decision, and the GAO
did not criticize the revised Access to Amenities evaluation in the second round of
protests.
After re-evaluating the Access to Amenities sub-factor, Ms. Kronopolous’ August
24, 2011 selection decision turned to an assessment of the five offerors’ overall
technical merit. She adopted the strengths and weaknesses set out in the Source
Selection Evaluation Board’s January 12, 2011 Report for each offeror, as well as the
sub-factor ratings assigned to each offeror for every sub-factor except Access to
Amenities. She considered the following sub-factor ratings in her final analysis:
Location Building Characteristics Past Performance/Key
Personnel
Access to Access to Number of Planning Quality of Past Key
Metrorail Amenities Buildings Efficiency Building Performance Personnel
(35%) (10%) (20%) and Architecture, (5%) (5%)
Flexibility Building
(15%) Systems,
and
Construction
(10%)
King Farm Marginal Highly Superior Superior Superior Superior Superior
Successful
approaching
Superior
New Superior Marginal Superior Superior Superior Neutral Highly
Carrollton Successful
One Superior Successful Superior Superior Superior Neutral Superior
Largo
Metro
Parklawn Highly Highly Superior Highly Superior Superior Superior
Successful Successful Successful
approaching
Superior
University Highly Superior Superior Superior Highly Superior Highly
Town Successful Successful Successful
Center
Factoring in her new ratings for the Access to Amenities sub-factor, Ms. Kronopolous
concluded that “the overall technical merits and ratings of the offerors” had not changed
from her first decision. Thus, she again adopted the overall technical ratings stated in
the Source Selection Evaluation Board’s January 12, 2011 Report, which rated all of the
82
offerors as “Superior” overall, except King Farm, which was rated “Highly Successful.”
With those overall ratings in place, Ms. Kronopolous again concluded that King Farm
was the lowest priced offeror, but not the highest technical offeror, thus, directing her to
conduct another trade-off analysis.
Ms. Kronopolous’ trade-off analysis began by stating her conclusion that Fishers
Lane represented the best overall value to the government. She then stated the terms
of the Solicitation pertaining to the best value trade-off analysis, emphasizing that the
Solicitation called for a trade-off analysis in which price was “significantly less important
than the combined weight of the technical factors,” but that “the degree of importance of
price as a factor increase[d] as technical offers approach[ed] equality.” Ms.
Kronopolous explained the GAO’s objections to her first trade-off decision, and stated
that, in response, in her new trade-off analysis, she “look[ed] beyond the SSEB’s
adjectival ratings to identify, review and examine the strengths and weaknesses of each
technical offer, and given those strengths and weaknesses, to determine the relative
technical merits of the offers.”
Ms. Kronopolous’ August 24, 2011 selection decision discussed each of the three
technical factors and the respective sub-factors, as set forth in the Solicitation, and
compared all five offerors’ ratings on each. Under the Location factor, Ms. Kronopolous
stated, regarding the Access to Metrorail sub-factor, “One Largo is the strongest offer in
this important sub-factor, [sic] I also find that New Carrollton [Metroview] (1,280 wlf),
Parklawn [Fishers Lane] (2,407 wlf) and UTC [University] (2,350 wlf) are all within what
GSA considers to be reasonable walkable distance to Metro.” Ms. Kronopolous found,
however, that King Farm’s proposed building, which was located approximately 1.3
miles from the nearest Metrorail station, was at a “substantially greater distance” from
the Metrorail, a weakness which was not overcome by King Farm’s provision of shuttle
bus service, which was a requirement in the Solicitation for any proposed building that
was more than 2,500 walkable linear feet away from a Metrorail station. Regarding
Access to Amenities, Ms. Kronopolous stated that, while University stood out in terms of
quantity, the offers of University, Fishers Lane, and King Farm “are the strongest while
One Largo Metro and New Carrollton [Metroview] are weaker due to the fewer amenity
categories offered.”
Ms. Kronopolous considered the three sub-factors under the Building
Characteristics factor together, stating: “The SSEB rated all offerors Superior in all three
categories, with the exception of Highly Successful ratings of Parklawn [Fishers Lane]
for Planning Efficiency and Flexibility, and of UTC [University] for Quality of Building
Architecture, Systems and Construction.” Ms. Kronopolous found that “the lower rating
of Parklawn for Planning Efficiency and Flexibility is justified by the building’s tight
column spacing that will affect future space planning and flexibility.” Ms. Kronopolous
also noted that, “notwithstanding its adjectival rating, the layout of One Largo’s building
has non-uniform column spacing and a non-rectangular floor plate and that the layout of
King Farm’s building also has non-uniform column spacing.” She concluded that “these
weaknesses are not of such severity as to detract from the overall quality of the offers,
which were all technically very strong in the Building Characteristics category.”
83
Finally, Ms. Kronopolous reiterated that the Source Selection Evaluation Board
had rated all offerors as either “Superior,” which included King Farm, Fishers Lane, and
University, or “Neutral,” which included Metroview and One Largo, on the Past
Performance sub-factor, and as either “Superior,” which included One Largo, Fishers
Lane, and King Farm, or “Highly Successful,” which included Metroview and University,
on the Key Personnel sub-factor. Ms. Kronopolous found, “[t]he high ratings for this
category reflect the strength of the proposed development teams of all of these offerors,
and the relatively minor differences which separate one offer from another.” Based on
all of the technical sub-factors, “and considering further the relative importance
assigned by the SFO [Solicitation] to the technical factors,” Ms. Kronopolous
determined: “notwithstanding variations in the adjectival ratings assigned by the SSEB,
the technical offers of New Carrollton [Metroview], Parklawn [Fishers Lane], UTC
[University] and One Largo are all of very high quality, and as a whole, approach
equality.”
Ms. Kronopolous found, however, that King Farm, the lowest priced offer, was “of
a lower technical quality due to the significant weakness of its offer in the sub-factor
that, individually, the Government deemed most important: Access to Metro.” Ms.
Kronopolous explained why King Farm did not approach technical equality with the
other four offerors. She noted the importance of being within walking distance of a
Metrorail station and why the government made that the most important sub-factor in
this procurement. She also explained the “reasonable walking distance” standard, as
follows: “GSA considers 2,500 wlf to be a reasonable walking distance from a Metro
station to a federally occupied office building. If a location is further than this, it merits a
lower technical rating.” Ms. Kronopolous found that providing shuttle service was a
mandatory requirement in the Solicitation and did not mitigate King Farm’s significant
distance from a Metrorail station. Ms. Kronopolous further explained the benefit of
being within a reasonable walking distance, stating:
I find that being within reasonable walking distance to the Metro provides
a measurable benefit to the Government. It will allow for easier, more
convenient access for commuting, will allow HHS to reduce its carbon
footprint, and will allow HHS employees quick and efficient access to the
Metrorail for business purposes, an important consideration for the tenant
agency.
Because King Farm was located farther than 2,500 walkable linear feet from a Metrorail
station, outside of a reasonable walking distance, Ms. Kronopolous determined that it
warranted a “Marginal” rating on the Access to Metrorail sub-factor. Also, because it
was the only offer to receive such a low rating on the most important sub-factor,
weighted at thirty-five percent of the technical factors, Ms. Kronopolous concluded that
the offer from King Farm was of a lower technical quality than the other four offers. She
concluded that, because the Solicitation indicated that, “the importance of price
decreases as the technical quality of the offers diverge from equality,” King Farm’s
84
“lower price gives it much less of an advantage over the other offers than would
otherwise be the case.”
Ms. Kronopolous’ determination that the offer with the highest rating was not the
lowest priced offeror, and thus a trade-off decision was necessary, was reasonable and
consistent with the terms of the Solicitation. King Farm’s offer was the only offer to
receive less than a “Highly Successful” rating on the most important sub-factor, Access
to Metrorail, from the Source Selection Evaluation Board, as well as the only offeror to
receive lower than a “Superior” overall rating from the Source Selection Evaluation
Board in its January 12, 2011 Report. Ms. Kronopolous explicitly adopted the Source
Selection Evaluation Board’s sub-factor ratings and overall technical ratings for each
offer. In explaining King Farm’s lower overall rating, Ms. Kronopolous stated that it was
King Farm’s significant weakness on the Access to Metrorail sub-factor that set its offer
apart from the others, all of which earned a “Highly Successful” or “Superior” rating on
the Access to Metrorail sub-factor.
The Solicitation stated that Access to Metrorail was the most important technical
sub-factor for this procurement. It would have been difficult to conclude that the only
offer to be located farther than 2,500 walkable linear feet from a Metrorail station, which
was required to offer shuttle service and merited a lower technical rating than the other
offers, would be the chosen offer, particularly given that, in addition to scoring highly on
the Access to Metrorail sub-factor, all four of the other offers also received high ratings
on the majority of the other sub-factors and receive an overall rating of “Superior.” Ms.
Kronopolous’ decision that King Farm deserved an overall lower technical rating, that
the other offers approached technical equality, and therefore, that a trade-off analysis
was required, was not arbitrary or capricious.
Ms. Kronopolous’ determination that King Farm warranted an overall lower
technical rating than the other four offers was also a product of Ms. Kronopolous’
“independent judgment,” as required by FAR 15.308. The Source Selection Evaluation
Board had found in both its January 12, 2011 Report and its February 3, 2011
Addendum that King Farm warranted a “Marginal” rating on the Access to Metrorail sub-
factor. In its January 12, 2011 Report, the Source Selection Evaluation Board rated
King Farm “Highly Successful” overall, while the other four offers received a “Superior”
rating overall. The Source Selection Evaluation Board still determined, however, that
King Farm represented the overall best value to the government, after conducting a
trade-off analysis between King Farm and Fishers Lane, the second lowest priced
offeror. In its February 3, 2011 Addendum, the Source Selection Evaluation Board
changed the overall technical ratings of each of the other four offers, concluding that all
five offers warranted an overall “Highly Successful” rating. Because all five offers were
technically equivalent in this analysis, the Source Selection Evaluation Board found in
its February 3, 2011 Addendum that no trade-off analysis was necessary and that King
Farm should be awarded the contract because it was the lowest priced offer. Ms. Sias,
the Source Selection Authority, found that One Largo’s and University’s offers deserved
overall “Superior” ratings, while Fishers Lane’s, Metroview’s, and King Farm’s offers
deserved “Highly Successful” overall ratings. Ms. Sias then conducted a trade-off
85
analysis between the two “Superior” offers, One Largo and University, and the lowest
priced “Highly Successful” offer, King Farm, and concluded that King Farm represented
the best overall value to the government. In her August 24, 2011 selection decision,
however, Ms. Kronopolous determined what constituted a reasonable walking distance,
and noted that King Farm was the only offer that was not located within a reasonable
walking distance of a Metrorail station. Ms. Kronopolous stated that King Farm’s
significant weakness on Access to Metrorail, the most important sub-factor, was what
led to her judgment that King Farm deserved an overall lower technical rating than the
other four offers. By finding both that King Farm’s offer warranted a lower overall
technical rating than the other four offers because of its “Marginal” rating on the Access
to Metrorail factor, and that this technical inferiority overrode King Farm’s lower price,
Ms. Kronopolous disagreed with both the Source Selection Evaluation Board and Ms.
Sias. Ms. Kronopolous exercised her own independent judgment as to how the
technical distinctions between King Farm’s offer and the other four offers should be
weighed, and explained her decision, noting the “Marginal” rating, and the requirement
that King Farm would need to provide shuttle service. Thus, her decision met the first
requirement set out under FAR 15.308, namely that the source selection official use her
independent judgment in making a selection decision. See, e.g., Akal Sec., Inc. v.
United States, 103 Fed. Cl. at 335.
FAR 15.308 contains a second requirement: that a source selection decision
must be documented, including the rationale for any trade-offs or business judgments
made or relied on by the Source Selection Authority. See 48 C.F.R. § 15.308. A
Source Selection Authority’s selection decision, which did not meet FAR 15.308’s
documentation requirement, was found deficient. See FirstLine Transp. Sec., Inc. v.
United States, 100 Fed. Cl. at 383. In FirstLine, the award of a contract for security
screening services by the United States Department of Homeland Security,
Transportation Services Administration to Akal Security, Inc. (Akal) was challenged.
The FirstLine Technical Evaluation Team found that FirstLine’s final proposal had thirty-
three strengths and no weakness, while Akal’s proposal had one strength and no
weakness. Id. at 367-68. The FirstLine Source Selection Evaluation Board adopted the
Technical Evaluation Team’s findings, noting that both proposals received the same
rating on Factor 1, identified by the solicitation as the most important, as well as on
Factor 6, the least important. Conducting a trade-off analysis, the Source Selection
Evaluation Board in FirstLine found that both proposals were “fully sufficient in meeting
the Government’s requirements,” and FirstLine’s proposal was only “moderately better”
than Akal’s proposal. Id. at 368. Therefore, according to the FirstLine Source Selection
Evaluation Board, FirstLine’s proposal did not warrant its substantially higher price over
Akal’s proposal. Id. The FirstLine Source Selection Authority's decision consisted of a
short form attached to the Source Selection Evaluation Board's recommendation, which
stated in full: “After consideration of the information provided to me by the technical and
price evaluation members and after accomplishing an independent review and
assessment of the technical and price consensus reports, I hereby determine that AKAL
Security is the best value offer solution by utilizing the trade-off method.” Id. at 382-83.
The FirstLine court found that the source selection decision had failed "to document any
business judgments or tradeoffs made or relied upon by the SSA. Indeed, the
86
statement does not even mention—much less discuss—the FirstLine proposal." Id. at
383. Because the source selection decision consisted of “nothing more than the
unsupported adoption of the SSEB report, along with a conclusory assertion that” Akal’s
“proposal represents the best value to the government,” the court held that the Source
Selection Authority's decision did not meet the documentation requirement of FAR
15.308. FirstLine Transp. Sec., Inc. v. United States, 100 Fed. Cl. at 384.
In contrast, Ms. Kronopolous’ determination that the offers of One Largo, Fishers
Lane, Metroview, and University approached technical equality, thus, making price an
important consideration in her selection decision, was reasonable, consistent with the
terms of the Solicitation, complied with the requirements of FAR 15.308, and stands in
stark contrast to the Source Selection Authority’s decision in FirstLine. Ms.
Kronopolous adopted the overall technical ratings set forth in the Source Selection
Evaluation Board’s January 12, 2011 Report, which rated all of the offers except King
Farm as “Superior” overall. She then looked at the technical sub-factors individually
and compared each of the sub-factors in each of the five offers. She found that One
Largo was the strongest offer evaluated under the Access to Metrorail sub-factor, but
Metroview, Fishers Lane, and University were all within a reasonable walking distance;
University, Fishers Lane and King Farm were the strongest offers evaluated under the
Access to Amenities sub-factor, while One Largo and Metroview were weaker; all of the
offers were very technically strong on the three sub-factors comprising the Building
Characteristics sub-factor; and all of the offers were highly rated with “relatively minor
differences” on the Past Performance and Key Personnel sub-factors. On each sub-
factor, she complied with the Solicitation’s requirements regarding what features
deserved higher technical ratings. Ms. Kronopolous recognized that One Largo
deserved the highest rating on the Access to Metrorail sub-factor because it was the
closest building to a Metrorail; distinguished between the offers with a more and a better
variety of amenities under the Access to Amenities sub-factor; addressed Fishers
Lane’s significant weakness on the Planning Efficiency and Flexibility sub-factor, while
also noting that One Largo and King Farm had minor weaknesses; and found little
distinction between offers that were all rated either “Superior” or “Neutral” on the Past
Performance sub-factor, and either “Superior” or “Highly Successful” on the Key
Personnel sub-factor.
Based upon all of those considerations, and the relative importance of each sub-
factor as assigned by the Solicitation, Ms. Kronopolous determined that the overall
offers of One Largo, Fishers Lane, Metroview, and University approached technical
equality. As stated above, she then went on to further explain why King Farm was not
technically equivalent with the other four offers, stressing its significant weakness on the
most important sub-factor, Access to Metrorail. In her August 24, 2011 selection
decision, Ms. Kronopolous adopted the technical ratings set forth by the Source
Selection Evaluation Board, but looked beyond those ratings to determine the
distinctions between the five offers on each technical sub-factor, and she exercised her
own independent judgment as to how the five offers compared to one another. She
supported her rationale with a multi-page analysis comparing each of the five offers for
all of the sub-factors.
87
After Ms. Kronopolous determined that the four offers of One Largo, Fishers
Lane, Metroview, and University approached technical equality, making price an
important consideration in her trade-off analysis, she conducted comparisons of the
lowest priced “Superior” offeror, Fishers Lane’s, with the other four offerors individually,
explaining why the Fishers Lane proposal was a better overall value to the government.
The section of her August 24, 2011 selection decision labeled “Parklawn v. One Largo
Metro” stated, in its entirety:
The areas of technical difference between Parklawn [Fishers Lane] and
One Largo Metro are in the following sub-factors: Access to Metro, Access
to Amenities, and Planning Efficiency and Flexibility.
One Largo Metro is less than 525 walkable linear feet to the Largo Town
Center Metro Station while Parklawn is 2,407 wlf from the Twinbrook
Metro Station. One Largo Metro therefore provides very easy access to
Metro, while Parklawn is further away, but within the standard walkable
distance to public transportation as established in other GSA
procurements. Therefore, I find that at either One Largo or Parklawn,
employees will be able to conveniently get to the Metro both for
commuting from/to home, and to go to meetings at other HHS locations
throughout the day providing a cost savings to the Government because
providing other means of transportation to the Metro and other HHS
locations will not be necessary.
Parklawn offers a greater variety and quantity of amenities with better
hours and closer proximity than One Largo. Looking at the total number of
amenities and the number of amenity categories within 2,500 walkable
linear feet, it is evident that Parklawn provides ample access to various
eating establishments and better access to a variety of other employee
service amenities. This will allow employees multiple food choices and
the ability to conduct errands, as necessary, before and after work and
during their lunch breaks. While One Largo Metro has a large total
number of amenities, there is a lack of variety of other employee service
amenities and a duplication of amenities within amenity categories.
With respect to the building’s planning efficiency and flexibility, Parklawn
has a significant weakness with respect to its tight column spacing. This
will negatively affect space planning and flexibility in future lease years.
One Largo Metro has larger column spacing; however, there are other
aspects of the space planning at One Largo Metro that will have a
negative effect on space planning and flexibility such as the non-uniform
column spacing and the non-rectangular floor plate.
One Largo Metro is $3.09 per square foot more than Parklawn, and
$51,156,702 more over the life of the lease. The technical merit achieved
88
by the proposal for One Largo Metro with respect to Access to Metro and
Planning Efficiency and Flexibility is not worth the additional cost over
Parklawn because: while One Largo Metro is closer to the Metro, the
distance of Parklawn to the Metro is considered by GSA to be within easy
walking distance; One Largo Metro also has Planning Efficiency and
Flexibility limitations such that the difference between the two offers in this
sub-factor is slight. Plus, Parklawn’s rating on the Access to Amenities
sub-factor exceeds that of One Largo Metro. The much greater expense
of One Largo Metro for an offer that may have a small technical advantage
over Parklawn does not represent the best value to the Government.
Ms. Kronopolous elaborated in a footnote to her decision on why she felt the
difference between Fishers Lane and One Largo on the Access to Metrorail sub-factor
was not great, as follows:
In assessing the real world impact of this discrepancy in distance, I came
to understand, from various internet websites, that the walking speed of
the average adult is between 3 and 3.5 miles per hour. Using the lower
number, it would take about 9.45 to 9.5 minutes to walk 2,500 walkable
linear feet. Therefore, most employees will be able to walk the distance
from Metro to the Parklawn [Fishers Lane] building in less than 10
minutes. In my judgment a 10 minute walk will not be a major barrier
preventing employees from commuting by Metro.
Next, Ms. Kronopolous compared the offers of Fishers Lane and University. She
found that the areas of technical difference between Fishers Lane and University were
the Access to Amenities, Planning Efficiency and Flexibility, Quality of Building
Architecture, Building Systems, and Construction, and Key Personnel sub-factors, while
also identifying where they shared the same ratings. In terms of the Access to
Amenities sub-factor, which was weighted ten percent of the technical evaluation, Ms.
Kronopolous stated that, while Fishers Lane had “more than a sufficient number and
variety of amenities,” University, “without a doubt, offer[ed] a greater variety and
quantity of amenities” and was the only offer to receive a “Superior” rating on that sub-
factor, giving University an advantage over Fishers Lane. With regard to the Planning
Efficiency and Flexibility sub-factor, which was weighted fifteen percent of the technical
evaluation, Ms. Kronopolous acknowledged Fishers Lane’s significant weakness in
terms of column spacing, and indicated that University’s non-rectangular floor plan
would also “negatively affect space planning and efficiency.” Ms. Kronopolous noted
that Fishers Lane received a higher technical rating than University on the Quality of
Building Architecture, Building Systems, and Construction because University had a
significant weakness on that sub-factor. With regard to the Key Personnel sub-factor,
which was weighted five percent of the technical evaluation, Ms. Kronopolous indicated
that the “technical distinction” between Fishers Lane and University was “very small.”
University was priced $3.15 per square foot higher than Fishers Lane, for a total of
$52,442,708.00, over the fifteen-year term of the lease. Ms. Kronopolous determined:
“The minor additional technical merits of the UTC [University] offer with respect to
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Planning Efficiency and Flexibility and Access to Amenities are not worth the additional
cost over” Fishers Lane because University also had weaknesses on Planning
Efficiency and Flexibility, and Fishers Lane had an advantage on the Building
Architecture, Building Systems, and Construction sub-factor.
Comparing the offers of Fishers Lane and Metroview, Ms. Kronopolous looked at
the four areas of technical difference between the two offers: the Access to Metrorail,
Access to Amenities, Planning Efficiency and Flexibility, and Key Personnel sub-factors.
On the Access to Metrorail sub-factor, Ms. Kronopolous calculated that, at a distance of
1,280 walkable linear feet, Metroview was about a five minute walk from a Metrorail
station, while Fishers Lane was about a ten minute walk from a Metrorail station at a
distance of 2,407 walkable linear feet. She found that, while Metroview was more highly
rated on the Access to Metrorail sub-factor, Fishers Lane was still within a reasonable
walking distance, and “[a]t either location, employees will be able to, in a short time
frame, get to the Metro to commute to meetings at other HHS locations throughout the
day.” Fishers Lane had a distinct advantage over Metroview on the Access to
Amenities sub-factor, which was weighted ten percent of the technical evaluation
factors, as Fishers Lane earned a “Highly Successful approaching Superior” rating on
that sub-factor, while Metroview only achieved a “Marginal” rating. With respect to the
Planning Efficiency and Flexibility sub-factor, which was weighted fifteen percent of the
technical evaluation factors, Ms. Kronopolous stated that Metroview had an advantage
based on Fishers Lane’s tight column spacing, but that Fishers Lane had a lower
common area factor, which allowed for “greater flexibility and uniformity in space and
furniture layout,” and thus “offset[] some of” Fishers Lane’s “weaknesses associated
with the tighter column spacing.” Finally, Ms. Kronopolous indicated that Fishers Lane
was more highly rated than Metroview on the Key Personnel sub-factor. At $3.21 per
square feet more than Fishers Lane, Metroview’s offer would cost the government
$48,380,854.00 more over the fifteen-year term of the lease than Fishers Lane’s offer.
Ms. Kronopolous determined that “[t]he minor technical advantage of New Carrollton
[Metroview] in the Access to Amenities and Planning Efficiency and Flexibility sub-
factors [was] not worth the additional cost over” Fishers Lane because Fishers Lane
was within easy walking distance, the overall difference between the two offers on the
Planning Efficiency and Flexibility sub-factor was small, and Fishers Lane was higher
rated on the Key Personnel sub-factor, and was significantly higher rated on the Access
to Amenities sub-factor. Overall, Ms. Kronopolous felt that “the much greater expense
of New Carrollton for an offer that is essentially technically equivalent to Parklawn does
not represent the best value to the Government.”
Finally, Ms. Kronopolous compared Fishers Lane and King Farm, although she
noted at the outset that King Farm’s “technical inferiority” due to its “Marginal” rating on
the Access to Metrorail sub-factor “overrides in significance King Farm’s lower price”
and a trade-off analysis between the two offers was not necessary. Nonetheless, Ms.
Kronopolous looked at the two areas of technical difference between Fishers Lane and
King Farm, the Access to Metrorail and Planning Efficiency and Flexibility sub-factors.
Regarding the Access to Metrorail sub-factor, which was weighted thirty-five percent of
the technical evaluation, Ms. Kronopolous stated that Fishers Lane “merited a higher
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rating than King Farm” because Fishers Lane was “within reasonable walking distance,”
while King Farm was not. Ms. Kronopolous found that King Farm, in contrast, had a
“slight technical advantage over” Fishers Lane on the Planning Efficiency and Flexibility
sub-factor, which was weighted fifteen percent of the technical evaluation, because King
Farm had larger column spacing than Fishers Lane, but she also noted that King Farm’s
column spacing was not uniform, while Fishers Lane’s was, “bringing King Farm closer
to technical equivalency with Parklawn [Fishers Lane] with respect to this sub-factor.”
Because Ms. Kronopolous determined that the difference between King Farm and
Fishers Lane on the Planning Efficiency and Flexibility sub-factor was small, she noted
that the real distinction between the two offers was on the Access to Metrorail sub-
factor. While Fishers Lane was priced at $.92 per square feet higher than King Farm, or
$39,248,188.00 more over the life of the lease than King Farm’s offer, Ms. Kronopolous
emphasized that Fishers Lane’s price was “still markedly lower than the other Superior
rated offers” of Metroview, One Largo, and University. Ms. Kronopolous concluded this
part of her August 24, 2011 selection decision, as follows: “Looking to the SFO
[Solicitation] standard stating that technical value is significantly more important than
price, I find that while the additional technical advantage of Parklawn over King Farm is
worth the extra increment of rent, there is not sufficient technical difference between
Parklawn and the other Superior sites to justify paying the extra rent they are
demanding.” (emphasis in original).
Ms. Kronopolous concluded her August 24, 2011 selection decision with a
summary of her trade-off analysis. She reiterated that, in choosing Fishers Lane, she
was selecting the lowest priced among the “Superior” offers. She continued:
The cost difference ($51,156,702 over the life of the lease) between
Parklawn [Fishers Lane] and One Largo Metro is too great a delta to
overcome the minor benefits of closer access to the Metro, especially
given that Parklawn does provide convenient walkable distance to a
Metro. UTC [University] is even more costly, at $52,442,708 more than
Parklawn, is not even as close to the Metro as One Largo Metro, and does
not, on balance, offer other technical merit worth the additional cost over
the life of the lease. Additionally, New Carrollton [Metroview] also does
not have sufficient technical worth to make up for the $48,380,854
additional cost over the life of the lease.
After concluding that Fishers Lane’s superiority over King Farm on the Access to
Metrorail sub-factor was “worth the additional cost,” and determining that Fishers Lane
represented the best overall value to the government after performing the trade-off
analysis, Ms. Kronopolous directed the Contracting Officer to award the contract to
Fishers Lane.
Ms. Kronopolous’ determination that Fishers Lane’s offer represented the best
overall value to the government, as compared to the other offers, including One Largo,
was reasonable and consistent with the terms of the Solicitation. Ms. Kronopolous
looked beyond the adjectival ratings assigned to One Largo and Fishers Lane, and
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directly compared the strengths and weaknesses of the two offers. She then took price
into consideration, as directed by the Solicitation, and found that One Largo’s technical
superiorities were not adequate to justify the $51 million price difference between One
Largo’s and Fishers Lane’s offers. Her determination was also consistent with the
Solicitation’s requirement that “the perceived benefits of the higher priced offer, if any,
must merit the additional cost.” The same can be said of Ms. Kronopolous’
comparisons of Fishers Lane’s offer with Metroview’s and University’s offers. Ms.
Kronopolous exercised her independent judgment to determine whether the technical
advantages of the other offers warranted their significantly higher prices over Fishers
Lane’s proposal. In each case, she determined that any technical merit achieved by the
other proposal did not merit the significant price difference. Her evaluations were
reasonable and consistent with the Solicitation’s requirement that a higher priced offer
could only be selected if its technical benefits merited its cost, given that each of the
other overall “Superior” offers was approximately $48 and $52 million more expensive
than Fishers Lane, for Metroview and University respectively. Based on her analysis,
Ms. Kronopolous’ decision that Fishers Lane represented the best overall value to the
government was not arbitrary and capricious.
Ms. Kronopolous, after reviewing the offers and evaluations, exercised her
independent judgment in making her August 24, 2011 selection decision, and
documented her rationale for deciding why Fishers Lane represented the best overall
value to the government. In accordance with FAR 15.308, Ms. Kronopolous used the
technical evaluations performed by the Technical Evaluation Teams and the Source
Selection Evaluation Board, and considered the Source Selection Authority’s
recommendation, when making her August 24, 2011 selection decision. Ms.
Kronopolous produced her own written selection decision, which analyzed the various
strengths and weaknesses of each of the offers. Ms. Kronopolous explained her
rationale as to why the offers from One Largo, Fishers Lane, Metroview, and University
“approached technical equality,” while King Farm’s lowest priced offer was technically
evaluated as somewhat inferior, due to its lower rating on the most important sub-factor,
Access to Metrorail. She also explained why she concluded that the perceived benefits
of the offers from One Largo, Metroview, and University did not warrant their higher
prices, as compared to the offer submitted by Fishers Lane. Ms. Kronopolous’
discussion in her August 24, 2011 selection decision of why Fishers Lane’s offer
represented the best overall value to the government goes far beyond the source
selection official’s analysis of FirstLine’s proposal in FirstLine Transportation Security
Inc. v. United States, cited by Plaintiff, which consisted of one sentence and which did
not even mention FirstLine’s offer. See FirstLine Transp. Sec., Inc. v. United States,
100 Fed. Cl. at 382-83. In sum, Ms. Kronopolous’ ultimate award determination in her
August 24, 2011 selection decision that Fishers Lane represented the best overall value
to the government was the product of her own independent judgment, and was
adequately documented, thus, complying with both requirements of FAR 15.308.
Plaintiff has failed to meet the high burden of demonstrating that Ms. Kronopolous’
trade-off analysis had no rational basis or failed to consider the relevant factors. See,
e.g., Galen Med. Assocs., Inc. v. United States, 369 F.3d at 1330.
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CONCLUSION
For the foregoing reasons, Plaintiff’s motion for judgment upon the Administrative
Record is DENIED. Defendant’s cross-motion for judgment on the Administrative
Record is GRANTED. Plaintiff’s Complaint is DISMISSED. The Clerk of Court shall
enter JUDGMENT consistent with this opinion.
IT IS SO ORDERED.
s/Marian Blank Horn
MARIAN BLANK HORN
Judge
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