Sotera Defense Solutions, Inc. v. United States ( 2014 )

In the United States Court of Federal Claims
No. 14-255 C
(Filed August 13, 2014)1
* * * * * * * * * * * * * * * * Post-Award Bid Protest;
SOTERA DEFENSE SOLUTIONS, * Protestor’s Standing Survives
INC., * Allegation of Organizational
* Conflict of Interest; No Waiver
Plaintiff, * of Protest Caused by Delay in
* Filing Protest of Agency
v. * Decision to Undertake Corrective
* Action; Waiver of Post-Award
THE UNITED STATES, * Protest of Cost Evaluation
* Scheme Set Forth in Solicitation;
Defendant, * No Unstated Criteria in Re-
* evaluation of Proposals; Best
RAYTHEON CO., * Value Award Not Shown To Be
* Unlawful, Arbitrary, Capricious,
Intervenor defendant. * or an Abuse of Discretion.
* * * * * * * * * * * * * * * *
Paul A. Debolt, Washington, DC, for plaintiff. James Y. Boland, Christina
K. Kube, and Anna E. Pulliam, Washington, DC, of counsel.
Steven M. Mager, United States Department of Justice, with whom were
Stuart F. Delery, Assistant Attorney General, Robert E. Kirschman, Jr., Director,
and Kirk T. Manhardt, Assistant Director, Washington, DC, for defendant. Brian
Bentley, United States Army Legal Services Agency, Fort Belvoir, VA, of counsel.
1
/ This opinion was issued under seal on July 25, 2014. Pursuant to ¶ 8 of the ordering
language, the parties were invited to identify source selection, proprietary or confidential material
subject to deletion on the basis that the material was protected/privileged. The only proposed
redactions were offered by intervenor-defendant. Redacted material is indicated by brackets ([ ]).
Mark D. Colley, Washington, DC, for intervenor-defendant. Emma V.
Broomfield, Steffen G. Jacobsen, and Dana E. Peterson, Washington, DC, of
counsel.
________________________________
OPINION AND ORDER
________________________________
Bush, Senior Judge.
The contract at issue in this bid protest is for the development of an
Electronic Warfare Planning and Management Tool (EWPMT); the procuring
agency is the United States Army.2 This post-award protest is brought by Sotera
Defense Solutions, Inc. (Sotera), the former contract awardee, after its award was
nullified by corrective action undertaken by the Army in response to a protest
brought by Raytheon Company (Raytheon) at the Government Accountability
Office (GAO). Before the court are cross-motions for judgment on the
administrative record filed under Rule 52.1(c) of the Rules of the United States
Court of Federal Claims (RCFC), as well as motions to dismiss filed by the
government and intevenor-defendant Raytheon.
Plaintiff’s complaint was filed on April 1, 2014 and amended on April 24,
2014. The government agreed to stay performance of Raytheon’s contract during
the pendency of this protest which proceeded under an expedited briefing
schedule. The administrative record (AR) was filed on April 16, 2014 and
subsequently corrected on April 29, 2014. The parties’ dispositive motions have
been fully briefed; oral argument was held on June 11, 2014. For the reasons
discussed below, plaintiff’s motion for judgment on the administrative record is
denied; the government’s and Raytheon’s motions to dismiss are granted in part
and denied in part; and, the government’s and Raytheon’s motions for judgment
on the administrative record are granted.
2
/ Electronic warfare eludes succinct definition, but the Army describes it as “the use of
electronics to prevent or reduce an enemy’s effective use and to protect friendly use of
electromagnetic radiation equipment.” Administrative Record at 358. To give some concrete
examples, various types of broadcast and receiving devices, navigational systems and radar units
are targeted in electronic warfare. Id. at 638-39.
2
BACKGROUND
I. Procurement Decision
A. Electronic Warfare Planning and Management Tool (EWPMT)
As plaintiff describes the procurement,
[t]he RFP is for the award of a cost reimbursement,
five-year indefinite-delivery, indefinite-quantity
(“IDIQ”) contract to design, develop and field the
Army’s EWPMT. [AR] Tab 7 at 486. The EWPMT is a
new system intended to enhance the Army’s existing
Electronic Warfare capabilities. When developed, the
EWPMT software will give electronic warfare officers
“mission planning capability to plan, coordinate,
manage, and deconflict unit EW activities.” Id. The
RFP required the awardee to deliver the EWPMT in six
“notional Capability Drops (CDs).” Id. The first task
order is for CD1 and will be awarded concurrently with
the IDIQ contact, while [CDs 2-6] will be awarded in
subsequent task orders.
Pl.’s Mot. at 3-4. This description is a largely correct overview of the solicitation
and the procurement, except for plaintiff’s shorthand reference to the contract as a
cost reimbursement contract. The cost structure of the full IDIQ contract is fairly
complex, with a cost-plus-incentive-fee structure which would include target cost,
incentive fee or profit benchmarks, as well as profit or incentive fee adjustments.
AR at 298-99, 740. The first task order, CD1, has a relatively straightforward
cost-plus-incentive-fee structure. Id. at 740, 7878, 9751.
The solicitation, also known as a Request for Proposals (RFP), issued on
December 20, 2012. AR at 726, 6624, 8106. An amendment of the solicitation of
little consequence to this protest occurred on January 15, 2013. Id. at 726-951,
6624, 8110. Offers were due by February 4, 2013.
B. Evaluation Scheme
3
The winning proposal would be the proposal offering the best value to the
government. AR at 744. The four evaluation factors, in descending rank of
importance, are: (1) Technical; (2) Past Performance; (3) Cost; and, (4) Small
Business Participation Plan. Id. The non-cost factors are significantly more
important than cost. Id.
Within the Technical Factor are two sub-factors, Technical Approach and
Management. AR at 744. The Technical Approach sub-factor is more important
than the Management sub-factor. Id. Within the Technical Factor three specific
criteria would be reviewed in the offerors’ technical proposals: (1) Understanding
the Problems; (2) Feasibility of Approach; and, (3) Adequacy of
Response/Completeness. Id. Page limits were imposed for the offerors’ technical
proposals. Id. at 732. For the Technical Factor, the range of ratings were
Outstanding, Good, Acceptable, Marginal and Unacceptable, and the evaluation
team would also identify strengths and weaknesses. Id. at 338-39.
The Cost Factor would be evaluated based on the costs of the first task
order, CD1. See AR at 739 (“Offerors are instructed to provide proposed costs for
Task Order 1 only.”). Significant amounts of detail were required for the offerors’
proposed costs. Id. at 739-40. This detailed information would allow the agency
to
evaluate the realism of Offeror’s proposed costs in
relation to the Offeror[’]s specific technical approach to
Task Order 1. The Offeror’s proposed costs will be
evaluated by determining what the Government predicts
the Offeror’s approach would most probably cost the
Government when the work performed under Task Order
1 is completed. To the degree that the Government’s
most probable cost estimate differs from the Offeror’s
proposed cost, the Offeror’s proposed cost and incentive
fee may be adjusted for the purposes of evaluation.
AR at 745.
C. Evaluation of Proposals and Award to Sotera
4
1. Bids Received and Discussions Held
Six timely bids were received. Raytheon was designated as “Offeror A” in
the evaluation documents and Sotera was designated as “Offeror B.” Throughout
the evaluation process, the ratings for Sotera and Raytheon were very close and
their proposals were ranked higher than the other proposals. See, e.g., AR at 6623,
7410. Nonetheless, discussions were initiated because even the leading offerors’
proposals were [ ] in at least one factor. Id. at 6628. In successive competitive
range determinations, two lower-ranked offerors were eliminated from the
competition. Through discussions, both Sotera and Raytheon were able to
improve the ratings of their proposals, but neither offeror was able to pull very far
ahead of the other in the proposal ratings.
2. Best Value Award to Sotera
Once the four final proposals were evaluated, the non-cost evaluation
factors for Raytheon and Sotera were similarly rated. For Technical Approach,
Raytheon received an Outstanding rating, with five strengths and one weakness.
AR at 7429-30. Sotera, for this same sub-factor, also received an Outstanding
rating, with five strengths and two weaknesses. Id. at 7481-83. For the
Management sub-factor, Raytheon received an Acceptable rating, with zero
strengths and zero weaknesses. Id. at 7433-34. For this sub-factor, Sotera also
received an Acceptable rating, with zero strengths and zero weaknesses. Id. at
7486. Thus, the overall Technical Factor rating for both Raytheon and Sotera was
Good.
Turning to the less important non-cost factors, for Past Performance
Raytheon received a Substantial Confidence rating, as did Sotera, although
Sotera’s rating was slightly above Raytheon’s in one respect. AR at 7456, 7504-
05, 7640. Raytheon ranked better than Sotera in the Small Business Participation
Plan factor, the least important evaluation factor. For this factor, Raytheon
received an Outstanding rating with six strengths and no weaknesses, whereas
Sotera received a Good rating with two strengths and no weaknesses. AR at 7472-
73, 7517-18.
There was, however, a not insignificant difference in the cost of these
offerors’ proposals for CD1. Raytheon’s evaluated price was $11,258,505;
5
Sotera’s evaluated price was $10,325,671.3 AR at 7469, 7513. The difference in
price between the two proposals is described as either a difference of 8.3%, id. at
7529 (concluding that “Offeror B’s cost [is] 8.3% lower [than Offeror A’s cost]”),
or a difference of 9%, id. at 7639 (concluding that the difference in prices “equates
to a 9% difference”). It would be accurate to state that Sotera’s proposal was
evaluated to cost approximately 8.3% less than Raytheon’s proposal.
The Source Selection Authority’s trade-off analysis comparing non-cost
with cost factors for Raytheon (Offeror A) and Sotera (Offeror B) concluded that
[i]n consideration of the equal Technical ratings, the
more advantageous Past Performance and Cost Factor
assessments which outweigh the differences in the Small
Business Participation Plan assessments, it is my
determination that the proposal submitted by Offeror B
provides superior value to the Government than the
proposal provided by Offeror A.
AR at 7640. The EWPMT contract was awarded to Sotera on June 28, 2013, and
the CD1 task order was awarded to Sotera on July 1, 2013. Both Sotera and
Raytheon asked for debriefings regarding the award decision.
D. Raytheon’s Protest and the Army’s Corrective Action
Raytheon raised numerous issues regarding the Army’s award in its
debriefing. AR 8042-59. In one particular instance, Raytheon suggested that a
recently-hired Sotera employee had access to proprietary information of other
offerors through his prior contract work for the Army, and that Sotera’s proposal
was thus tainted by an organizational conflict of interest (OCI). Id. at 8042-43.
The OCI concern was investigated for two weeks by the Army, from July 3, 2013
through July 17, 2013, and the results of this limited investigation re-assured the
Army that no OCI had skewed the competition for the EWPMT contract. Id. at
8056-59.
3
/ The Army reports the evaluated price for Raytheon either as $11,258,505 or
$11,258,506. Compare AR at 7469, with id. at 7529.
6
After its debriefing with the Army, on July 22, 2013 Raytheon timely filed
a protest of the award at the GAO. Raytheon’s protest was robust and thorough –
it featured a detailed sixty-page brief and over three hundred pages of exhibits.
AR Tab 48. The protest included arguments such as: (1) the award to Sotera was
“flawed because of the existence of several organizational conflicts of interest”;
(2) “the [Source Selection Authority] failed to look behind the ratings and
qualitatively assess the underlying technical differences of the proposals to
determine whether the various risks and benefits justified a 9% ($900K) cost
differential”; (3) the Management sub-factor rating was not “a comparative,
qualitative evaluation”; and, (4) the Army “failed to properly apply its relevancy
standards” in the Past Performance evaluation. Id. at 8102-03.
Internally, the Army crafted a corrective action plan to separately address
the OCI allegations and the evaluation errors alleged by Raytheon. AR at 8499-
500. Although the terminology used in the internal plan is not perfectly
consistent, a re-evaluation of final proposals was a key element of the plan. Id. at
8500 (“The Agency will re look at the evaluations of all offerors in the final
competitive range, and in addition will specifically examine the following [alleged
flaws] as [they] pertain[] to the allegations set forth in Raytheon’s protest . . . .”)
(emphasis added); id. (“Upon completion of the Agency’s re evaluations, the
Agency[] will take appropriate action based on the results of the re evaluation.”)
(emphases added). In essence, the re-evaluations would address the allegations of
evaluation errors highlighted by Raytheon in its GAO protest and would either
confirm the award to Sotera or produce another proposal evaluation result.
On August 15, 2013, the Army proposed the following corrective action so
as to render Raytheon’s protest at the GAO moot:
The Army believes that it is in its best interest to take
corrective action in this protest by fully investigating the
OCI allegations and facts related to them and, if
warranted, take appropriate action resulting from any
finding of an OCI or appearance thereof made by the
contracting officer.
The Army also will examine all proposals and
evaluations for offerors in the final competitive range
(this includes Protester), and will re-evaluate as
7
appropriate. If the re-evaluations result in any changes,
the source selection authority will render a new source
selection decision.
AR at 8506.1. The Army further clarified, after Raytheon disputed whether the
corrective action would provide adequate notice of the results of the OCI
“investigation and re-evaluation activity,” id. at 8506.4, that “the Army intends to
announce a new award decision, or confirmation of its previous decision, in
writing to the parties promptly after such decision is made. This notice will be
provided to the parties regardless of the outcome of the decision.” Id. at 8506.5.
The GAO then dismissed Raytheon’s protest as moot on August 21, 2013.
As for the OCI investigation, Sotera provided the Army with a well-argued
“white paper” rejecting the proposition that an OCI tainted Sotera’s proposal. AR
Tab 53. The Army conducted a thorough OCI investigation which lasted from
July 22, 2013 into October 2013. Id. at 8671-75. The Army determined, again,
that Sotera’s proposal was not barred by an OCI and produced a six-hundred page
report which documented the investigation and this finding. See id. Tab 57.
E. Re-evaluation of Proposals and Award to Raytheon
The proposal evaluation personnel for the Army were organized into a
three-tiered hierarchy: (1) the Source Selection Authority (SSA), with ultimate
award authority; (2) the Source Selection Advisory Council (SSAC), with
supervisory authority over the evaluation process; and, (3) the Source Selection
Evaluation Board (SSEB), with evaluation factor rating responsibilities. AR at
333-36. Once the Army decided to re-evaluate proposals, the SSAC Chair sent an
email to members of the SSEB. This email included the following instructions:
Steve/SSEB Team, as you reassess ratings for each of the
4 Offerors from the final competitive range ensure that
you are following [Source Selection Evaluation Plan
(SSEP)] guidance in strict accordance with evaluation
criteria and definitions. In addition,
I would like extra emphasis placed on the following:
Technical Approach
8
· Quantify schedule risk regarding any pre-award
activities completed by each Offeror
· Assess each Offerors estimated “% complete and
ready for integration testing” and how much
[software lines of code (SLOC)] is prior leveraged
efforts vice Govt furnished [government off the
shelf (GOTS)]/[commercial off the shelf (COTS)]
Management
· Assess EXTENT to which requirements are
met/exceeded vice a “go/no go” for elements
identified under the Management subfactor (e.g.
subcontract management, [software] development
process, [Capability Maturity Model Integration
(CMMI)] levels, [Quality Assurance], training,
schedule risk (not just [Integrated Master
Schedule] details), etc. . . and provide assessment
if a superior approach lowers risk or is sufficiently
advantageous to the Govt to warrant a Strength [in
accordance with] the definition
· Mgmt and Technical Team to discuss the merits if
CMMI Lvl 5 (highest quality / lowest risk)
certification vs lower CMMI levels, e.g. CMMI
Lvl 3 (med quality / med risk) and whether higher
CMMI levels are advantageous to the Govt for the
EWPMT effort. Also assess CMMI levels for subs
and quantify extent of performance the sub is
performing in relationship to overall CD1. Does a
higher CMMI Lvl for a sub have equal merit to a
prime with a high CMMI level?
· Do software productivity initiatives, e.g. SWIFT
or other efficiencies merit value to the Govt and
9
hence a Strength? Look at this across all 4 Offerors
· Look closely at subcontractor management
initiatives, pre-award investments, and extent to
which these mitigated cont[r]act performance risks
· Where does schedule risk (or risk reduction) come
into the Management subfactor rating assessment?
How is this different then Technical?
Past Performance
· Ensure proper application of relevancy standards
(4 levels) and relevancy definition for prime and
subcontracts[]
· Look how individual assessments of prime/sub are
derived and any “weighting” based on extent and
nature of their underlying past performance
· Be sure to factor in Extent (% of total contract)
and nature of proposed sub performance on the
EWPMT contract vice that of past performance
· If Offeror propose[s] to leverage prior scope for
insertion into EWPMT CD1 solutions, how does
this influence the RELEVANCY assessment?
I’d like to discuss in more detail at our 26 Aug status
update
AR Tab 51.
The re-evaluation of proposals by the SSEB was completed by October 16,
2013. Broadly speaking, some evaluation ratings remained unchanged for all four
offerors: (1) the Technical Approach sub-factor ratings, as well as the strengths
and weaknesses in this sub-factor; (2) the overall Past Performance Confidence
ratings; (3) the Small Business Participation Plan ratings, as well as the strengths
10
and weaknesses in this factor; and, (4) the Cost Factor evaluated prices of the
proposals. AR at 8555. Raytheon, however, made significant gains in the
Management sub-factor, gaining a strength and improving this sub-factor rating
from Acceptable to Good. Id. at 8555, 9249. This Good rating in the
Management sub-factor then triggered an overall rating in the Technical Factor of
Outstanding, rather than Good (Raytheon’s former rating in this evaluation factor).
Sotera, as noted supra, retained its cost advantage over Raytheon in the re-
evaluation process, but lost the slight edge it previously had enjoyed in the Past
Performance Factor. This change was due to a correction of the weight previously
assigned to the past performance of Sotera’s sub-contractors. AR at 8555, 9341,
9372. Once the re-evaluation results were considered by the SSAC, Raytheon’s
proposal presented advantages in its Technical Approach, Management, Past
Performance and Small Business Participation Plan. Id. at 9477-78. These
advantages outweighed Sotera’s lower cost. Id.
The SSA concurred with the SSAC and found Raytheon’s proposal to be the
best value for the EWPMT project. AR Tab 62. Sotera’s contract was terminated
for the convenience of the government on December 2, 2013. Raytheon was
awarded the EWPMT contract on December 2, 2013 and the CD1 task order on
December 3, 2013. Both Sotera and Raytheon requested and received debriefings
regarding the award.
II. Protests by Sotera
A. Sotera’s Protest at the GAO
On December 10, 2013, Sotera timely filed a protest of the contract award to
Raytheon with the GAO, but did not protest the Army’s decision to re-evaluate
proposals. AR Tab 74. Even in two subsequent supplemental GAO protests,
Sotera never contended that the Army improperly chose to re-evaluate the
EWPMT proposals in the corrective action that mooted Raytheon’s protest of the
prior award to Sotera. See id. Tabs 77, 91. Instead, Sotera argued that the
decision to award the contract to Raytheon was flawed for a number of reasons,
including failure to follow evaluation criteria and to perform appropriate cost
realism and trade-off analyses. Id. at 9987.
11
In supplemental protests at the GAO, Sotera raised additional allegations of
error. For example, in the first supplemental protest Sotera argued that the re-
evaluation and the award decision were tainted both by Raytheon’s prior protest at
the GAO and by the Army’s failure to investigate potential OCI’s on the part of
Raytheon. AR at 10660-61. In the second supplemental protest, Sotera
highlighted additional alleged evaluation errors, including an accusation that the
re-evaluation employed “unstated evaluation criteria.” Id. at 12438. Throughout
the GAO protest proceedings, Sotera repeatedly requested production of any
written instructions provided to the SSEB for the re-evaluation of proposals, and
was repeatedly told by the Army that written instructions to the SSEB did not
exist. Sotera’s protest at the GAO was denied on March 20, 2014.
B. Sotera’s Protest in this Court
1. Initial Complaint
The initial complaint filed by Sotera contained three counts. Count I
focuses on the Army’s decision to re-evaluate proposals. In this count Sotera
argues that it is unlawful to “abandon a lawful contract award,” and that it was
arbitrary and capricious for the Army to conduct a new evaluation of proposals
when there was no clear error in the old one. Compl. ¶ 91.
In Count II, Sotera argues that the re-evaluation of proposals and the best
value award decision were flawed in several respects. One part of Count II
questions whether Raytheon’s higher evaluated price was correctly weighed in the
trade-off analysis, and posits that Raytheon’s actual costs over the life of the
contract will be much higher than Sotera’s actual costs. Another part of Count II
debates the relative technical strengths of Raytheon’s and Sotera’s proposals.
In Count III of the original complaint, Sotera attacks the cost evaluation of
proposals performed by the SSEB. Because Raytheon had already achieved some
of the milestones required for CD1, Sotera argues that Raytheon’s cost proposal
for CD1 made Raytheon’s contract performance appear to be much cheaper than it
would actually be over the life of the contract. Thus, Sotera argues that
“Raytheon’s ‘evaluated cost,’ which was supposed to be indicative of Raytheon’s
total cost for the EWPMT program, was dramatically and arbitrarily under-
evaluated. The Army arbitrarily failed to account for Raytheon’s unique cost
assumptions, which were not contemplated by the RFP.” Compl. ¶ 134.
12
In the original complaint’s prayer for relief, plaintiff requests a declaratory
judgment affirming the arguments presented in Counts I-III. In addition, Sotera
seeks “[a]n injunction directing the Army to terminate the contract awarded to
Raytheon and reinstate the original award to Sotera since the Army cannot prove
that the original award to Sotera was unlawful.” Compl. at 27. In the alternative,
Sotera requests “an injunction directing the Army [to] conduct a rational and
lawful evaluation and best value source selection decision consistent with the
Court’s decision in this case.” Id.
2. Written Instructions to the SSEB Disclosed in the
Administrative Record Filed in this Case
Once the government filed the AR in this case, plaintiff learned that the
SSAC Chair had indeed provided some written instructions to the SSEB for the re-
evaluation of proposals in an email. See AR Tab 51. Within a week Sotera moved
to amend its complaint, stating that “[t]he Army’s concealment and
misrepresentations [as to the existence of written instructions to the SSEB] not
only prevented Sotera from adequately arguing its case before the GAO, but it
prevented Sotera from including this [proposed additional] protest count in the
original complaint.” Pl.’s Mot. of Apr. 23, 2014, at 3. Leave to amend the
complaint was granted, and the amended complaint, adding a Count IV and
revising the prayer for relief, was filed on April 24, 2014.4
3. Amended Complaint
Although Counts I-III of the original complaint remain unchanged, the
amended complaint contains a new Count IV and a revised request for relief.
4
/ On May 6, 2014, Sotera moved to amend the protective order in this case so that the
GAO could be provided with the amended complaint and the newly disclosed document
containing the written instructions to the SSEB, which were both filed under seal in this case.
The government opposed the motion and the court deferred ruling on the motion at that time. At
oral argument, the court asked counsel arguing for plaintiff whether the motion to amend the
protective order was now moot, given that the GAO has had access to much of the information,
in redacted form, that was the subject of plaintiff’s motion. Counsel replied that the motion was
probably moot, in his view, and that plaintiff could always renew the motion at a later time. Oral
Argument Transcript (Tr.) at 91. On June 26, 2014, plaintiff moved to withdraw its motion to
amend the protective order and filed an unopposed motion to release a redacted version of AR
Tab 51. Both motions filed June 26, 2014 are granted.
13
Count IV alleges that “the Army applied unstated evaluation criteria [in the
proposal re-evaluations] that were created by the SSAC Chair to accommodate
Raytheon’s particular concerns [that were presented in Raytheon’s GAO protest].”
Am. Compl. ¶ 141. According to Sotera, the use of these unstated criteria
rendered the proposal re-evaluations and the award to Raytheon unlawful and
unfair. Id. ¶ 167.
The revised prayer for relief continues to ask for a declaratory judgment
affirming the arguments presented in the counts of the complaint, now four in
number. Sotera also continues to ask for “[a]n injunction directing the Army to
terminate the contract awarded to Raytheon and reinstate the original award to
Sotera since the Army cannot prove that the original award to Sotera was
unlawful.” Am. Compl. at 34-35. As an alternative remedy, however, Sotera
suggests that an additional condition be placed on further evaluations of proposals.
Plaintiff seeks
an injunction directing the Army [to] replace the entirety
of the evaluation teams (including SSEB, SSAC, and
SSA), and then conduct a rational and lawful evaluation
and best value source selection decision with new
evaluators in a manner that is consistent with the Court’s
decision in this case[.]
Id. at 35.
4. Dispositive Motions and Attached Exhibits
a. Pending Motions
Plaintiff’s motion for judgment on the administrative record largely tracks
Sotera’s amended complaint, although the motion addresses the counts of the
amended complaint in this order: Count IV (unstated evaluation criteria for the re-
evaluation of proposals); Count I (improper decision to re-evaluate proposals);
Count II (arbitrary re-evaluation of proposals and best value award); and Count III
(arbitrary cost evaluation). Both defendant and Raytheon include motions to
dismiss with their motions for judgment on the administrative record. All of the
briefs are well-written and supported by citation to relevant authority.
14
The government moves to dismiss Count I (improper decision to re-evaluate
proposals) and Count III (arbitrary cost evaluation) as waived under the authority
of Blue & Gold Fleet, L.P. v. United States, 492 F.3d 1308, 1313 (Fed. Cir. 2007).
Raytheon moves to dismiss the entire complaint, stating that Sotera has no
standing to bring this protest due to an alleged OCI. Further, Raytheon agrees
with the government that Count I (improper decision to re-evaluate proposals) is
untimely and waived. Finally, Raytheon again agrees with the government that
Count III (arbitrary cost evaluation) is untimely and waived, because Count III “is
a challenge to the Solicitation ground rules for the cost realism evaluation, and is
therefore patently untimely.” Raytheon Mot. at 48. Even if their motions to
dismiss are denied, both the government and Raytheon argue that the record in this
case shows that the Army’s award decision withstands all of the challenges
presented in Counts I-IV of Sotera’s amended complaint.
b. Proposed Supplements to the Administrative Record
To resolve this protest, the court relies on the amended complaint, the
administrative record and the parties’ briefing of their dispositive motions. To
plaintiff’s motion for judgment on the administrative record was attached an
exhibit, Exhibit A, which is an additional, omitted email in a chain of emails
presented in the AR. At oral argument the parties agreed that this Exhibit A is
unobjectionable as a supplement to the administrative record. Oral Argument
Transcript (Tr.) at 98-99. The court agrees that this email should complete the
administrative record.
There was no such agreement as to other exhibits attached by the parties to
their dispositive motions and reply briefs. The court notes that no formal motions
to supplement the administrative record were filed in this protest. As explained in
the analysis section of this opinion, the other exhibits attached to the parties’
motions are not appropriate supplements to the administrative record. See infra
nn.12,18-19. The court does, however, rely on the exhibits attached to Raytheon’s
motion, not as supplements to the administrative record but as supporting
documentation necessary for an alternative holding regarding Sotera’s standing to
bring this bid protest. See infra. The court now turns to its resolution of the
parties’ motions.
DISCUSSION
15
I. Jurisdiction
This court “shall have jurisdiction to render judgment on an action by an
interested party objecting to a solicitation by a Federal agency for bids or
proposals for a proposed contract or to a proposed award or the award of a
contract or any alleged violation of statute or regulation in connection with a
procurement or a proposed procurement.” 28 U.S.C. § 1491(b)(1) (2012). The
jurisdictional grant is “without regard to whether suit is instituted before or after
the contract is awarded.” Id. As a threshold jurisdictional matter, however, the
plaintiff in a bid protest must show that it has standing to bring the suit. Info.
Tech. & Applications Corp. v. United States, 316 F.3d 1312, 1319 (Fed. Cir. 2003)
(ITAC); Myers Investigative & Sec. Servs., Inc. v. United States, 275 F.3d 1366,
1369 (Fed. Cir. 2002) (citation omitted).
II. Standards of Review
A. Judgment on the Administrative Record
RCFC 52.1(c) provides for judgment on the administrative record. To
review a motion, or cross-motions, under RCFC 52.1(c), the court asks whether,
given all the disputed and undisputed facts, a party has met its burden of proof
based on the evidence in the record. Bannum, Inc. v. United States, 404 F.3d
1346, 1356 (Fed. Cir. 2005). The court must make fact findings where necessary.
Id. The resolution of RCFC 52.1 cross-motions is akin to an expedited trial on the
paper record. Id.
B. Bid Protest Review
First, the plaintiff in a bid protest must show that it has standing to bring the
suit. ITAC, 316 F.3d at 1319. This may be accomplished by demonstrating that
the plaintiff was an actual bidder and that it was prejudiced by the award to the
successful offeror. Id. (citing Am. Fed’n of Gov’t Employees v. United States, 258
F.3d 1294, 1302 (Fed. Cir. 2001) (AFGE)). Prejudice is proven by establishing
that the plaintiff had a substantial chance of receiving the contract, but for the
alleged procurement error. Id. (citing Alfa Laval Separation, Inc. v. United States,
175 F.3d 1365, 1367 (Fed. Cir. 1999)).
16
As the United States Court of Appeals for the Federal Circuit has stated,
“the proper standard to be applied in bid protest cases is provided by 5 U.S.C.
§ 706(2)(A) [(2012)]: a reviewing court shall set aside the agency action if it is
‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with
law.’” Banknote Corp. of Am. v. United States, 365 F.3d 1345, 1350-51 (Fed. Cir.
2004) (citing Advanced Data Concepts, Inc. v. United States, 216 F.3d 1054,
1057-58 (Fed. Cir. 2000)); see also 28 U.S.C. § 1491(b)(4) (describing this court’s
standard of review for bid protests). Under this standard, a procurement decision
may be set aside if it lacked a rational basis or if the agency’s decision-making
involved a violation of regulation or procedure. Impresa Construzioni Geom.
Domenico Garufi v. United States, 238 F.3d 1324, 1332 (Fed. Cir. 2001)
(Impresa) (citations omitted). De minimis errors in the procurement process,
however, do not justify relief. Grumman Data Sys. Corp. v. Dalton, 88 F.3d 990,
1000 (Fed. Cir. 1996) (citing Andersen Consulting v. United States, 959 F.2d 929,
932-33, 935 (Fed. Cir. 1992)). The bid protest plaintiff bears the burden of
proving that a significant error marred the procurement in question. Id. (citing
CACI Field Servs., Inc. v. United States, 854 F.2d 464, 466 (Fed. Cir. 1988)).
The higher the degree of discretion allotted the contracting officer, the more
difficult it is for a protestor to prove that the procurement decision was arbitrary
and capricious. Burroughs Corp. v. United States, 617 F.2d 590, 597 (Ct. Cl.
1980) (citation omitted). Negotiated procurements give a “breadth of discretion”
to the contracting officer and impose a heavier burden of proof on a protestor. Id.
at 598 (citation omitted). Similarly, “best value” contract awards give a
contracting officer more discretion than awards based on price alone. Galen Med.
Assocs., Inc. v. United States, 369 F.3d 1324, 1330 (Fed. Cir. 2004) (citing E.W.
Bliss Co. v. United States, 77 F.3d 445, 449 (Fed. Cir. 1996)). Thus, the
protestor’s burden is especially heavy in negotiated, best value procurements.
Banknote Corp. of Am. v. United States, 56 Fed. Cl. 377, 380 (2003) (citations
omitted), aff’d, 365 F.3d 1345 (Fed. Cir. 2004).
The deference afforded to an agency’s decision must be even greater when a
trial court is asked to review a technical evaluation. “[T]echnical ratings . . .
involve discretionary determinations of procurement officials that a court will not
second guess.” E.W. Bliss, 77 F.3d at 449 (citations omitted); Omega World
Travel, Inc. v. United States, 54 Fed. Cl. 570, 578 (2002) (“It is well settled that
contracting officers are given broad discretion with respect to evaluation of
technical proposals.” (citing E.W. Bliss, 77 F.3d at 449)). “[W]here an agency’s
17
decisions are highly technical in nature, . . . judicial restraint is appropriate and
proper.” Electro Methods, Inc. v. United States, 7 Cl. Ct. 755, 762 (1985) (citing
Isometrics v. United States, 5 Cl. Ct. 420, 423 (1984)).
“‘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)). If, on the other hand, “the trial court determines [that] the
government acted without rational basis or contrary to law when evaluating the
bids and awarding the contract[,] . . . it proceeds to determine, as a factual matter,
if the bid protester was prejudiced by that conduct.” Bannum, 404 F.3d at 1351.
The protestor again bears the burden of proof, and must “show that there was a
‘substantial chance’ [the plaintiff] would have received the contract award but for
the [government’s] errors in the bid process.” Id. at 1358 (citations omitted). If a
protestor can show that, but for the procurement error of the agency, there was a
substantial chance that it would have won the contract award, prejudice has been
established. Id. at 1353 (citations omitted). “Prejudice is a question of fact.” Id.
(citing Advanced Data Concepts, 216 F.3d at 1057).
C. Supplementation of the Administrative Record
In Axiom Resource Management, Inc. v. United States, 564 F.3d 1374 (Fed.
Cir. 2009), the Federal Circuit identified the acceptable circumstances under
which the administrative record may be supplemented in a bid protest. The Axiom
panel criticized a decision by this court which permitted supplementation of the
administrative record in a bid protest, and criticized the trial court’s over-broad
reliance on Esch v. Yeutter, 876 F.2d 976, 991 (D.C. Cir. 1989), a case which
provides a list of possible justifications for the supplementation of the
administrative record of an agency action. Axiom, 564 F.3d at 1379-81.
The court notes that the Axiom panel adopted a restrictive standard for
supplementation of the administrative record in a bid protest, and favorably cited
Murakami v. United States, 46 Fed. Cl. 731 (2000), aff’d, 398 F.3d 1342 (Fed. Cir.
2005). Axiom, 564 F.3d at 1380. The Axiom standard for supplementation of the
administrative record in a bid protest is a direct quotation from Murakami, stating
that “supplementation of the record should be limited to cases in which ‘the
18
omission of extra-record evidence precludes effective judicial review.’” Id.
(quoting Murakami, 46 Fed. Cl. at 735). The Federal Circuit relied on the cases
cited by this court in Murakami to conclude that “[t]he purpose of limiting review
to the record actually before the agency is to guard against courts using new
evidence to ‘convert the “arbitrary and capricious” standard into effectively de
novo review.’” Id. (quoting Murakami, 46 Fed. Cl. at 735, and citing Fla. Power
& Light Co. v. Lorion, 470 U.S. 729, 743-44 (1985); Camp v. Pitts, 411 U.S. 138,
142 (1973)). The thrust of the Axiom decision, and Murakami, is that this court
must exercise restraint when considering whether or not to supplement the
administrative record in a bid protest. See id. (favoring a “more restrictive
approach” and questioning the vitality of Esch) (citations omitted); Murakami, 46
Fed. Cl. at 735 (stating that the construction of the Esch justifications for allowing
supplementation of an administrative record should be “extremely limited”)
(citations omitted). For these reasons, this court has carefully considered the
documents attached by the parties as exhibits to their briefs to consider whether
these documents should supplement the administrative record.
III. Standing
Although the government does not contend that Sotera lacks standing to
bring this bid protest, Raytheon moves to dismiss Sotera’s protest on standing
grounds because of an alleged OCI that it argues impairs Sotera’s eligibility for
contract award. Raytheon Mot. at 7-19. In its opening brief on this issue,
Raytheon fails to cite a single bid protest decision with analogous facts, i.e., a case
where a protestor’s standing was destroyed by an alleged OCI that the agency had
already investigated and eliminated as a cause for concern. In essence, Raytheon
asks this court to substitute its judgment for that of the agency on the OCI issue,
and to employ a de novo review of this issue to deprive Sotera of standing. In the
court’s view, relevant bid protest caselaw does not support Raytheon’s motion.
First, as noted supra, standing in bid protests is established if the protestor
possesses a substantial chance of receiving the contract award if its allegations of
procurement error are sustained by the court. ITAC, 316 F.3d at 1319. Here,
Sotera once won the contract award, is currently second in line for award, and has
been determined by the procuring agency to have no OCIs. The Army has, in
other words, shown no indication that it would deny Sotera the contract award
because of the alleged OCI, and no other impediment to Sotera’s standing has
been identified by intervenor-defendant. The record thus clearly shows that Sotera
19
has a substantial chance of contract award and standing to bring this suit. See,
e.g., Bilfinger Berger AG Sede Secondaria Italiana v. United States, 97 Fed. Cl.
96, 135 (2010) (“A prejudice determination for the purpose of evaluating standing
is a ‘limited review’ that seeks ‘minimum requisite evidence necessary for plaintiff
to demonstrate prejudice and therefore standing.’” (quoting Night Vision Corp. v.
United States, 68 Fed. Cl. 368, 392 & n.23 (2005)).
It was only at oral argument that Raytheon pointed to support from a recent
case decided by this court, Bannum, Inc. v. United States, 115 Fed. Cl. 148 (2014),
for its standing argument. Bannum and similar cases, however, merely stand for
the proposition that the court may rule on the standing issue based on
disqualifying elements of a protestor’s proposal that the agency has overlooked.
See, e.g., 115 Fed. Cl. at 155-56 (stating that “in assessing standing, this Court is
not bound by the finding in the Source Selection Decision or required to apply the
[deferential] APA standard of review . . . [because] the Court must ascertain its
own jurisdiction and, in doing so, [it] is not bound by an agency’s mistake in
overlooking a non-compliant proposal”) (citing Dismas Charities, Inc. v. United
States, 75 Fed. Cl. 59, 61-62 (2007)); Dismas, 75 Fed. Cl. at 61-62 (finding that a
protestor lacked standing despite the fact that the procuring agency’s “Source
Selection Decision . . . never explicitly stated that [the protestor’s proposal] did
not comply with the solicitation”) (citing A & D Fire Prot., Inc. v. United States,
72 Fed. Cl. 126, 140 (2006)). Here, Raytheon is not attempting to point out an
overlooked aspect of Sotera’s proposal that renders Sotera ineligible for award –
instead, Raytheon asks the court to overturn the agency’s OCI ruling. Bannum
offers no support for that course of action.
Plaintiff suggests that Raytheon’s standing challenge is, in essence, a protest
of the Army’s OCI ruling. Pl.’s Reply at 10-11. In the court’s view, it does not
matter how Raytheon’s motion to dismiss is characterized. Ultimately, Raytheon
has produced no authority stating that a de novo OCI review is required to confirm
a protestor’s standing to bring a bid protest, when the agency has fully considered
the OCI allegation and has ruled against the existence of an OCI. Under
Raytheon’s construction of this court’s bid protest standard of review, an agency’s
OCI ruling would be afforded less deference in a challenge to a protestor’s
standing than such an OCI ruling would receive in a challenge to an awardee’s
eligibility for contract award on the merits. See, e.g., Axiom, 564 F.3d at 1382
(stating that an agency’s ruling regarding an awardee’s OCIs should not “trigger[]
de novo review” because the deferential arbitrary and capricious standard applies).
20
Such an incongruous and inconsistent application of deference to procuring
agencies’ OCI rulings is logically unsupportable.
Thus, even if the court, in the circumstances of this procurement, considered
it appropriate to conduct a review of Raytheon’s OCI allegations to confirm
Sotera’s standing, which it does not, and even if the court agreed that the AR
should be supplemented with the materials attached to Raytheon’s motion to
dismiss, which it again does not, the court believes that deference would
nonetheless be due the Army’s OCI ruling and that the arbitrary and capricious
standard of review would apply. In other words, the court would follow Axiom
and only overturn the Army’s finding that Sotera’s eligibility for award was not
destroyed by an OCI if the court determined the Army’s finding regarding OCIs to
be unreasonable.
The identification and mitigation of OCIs are examples of discretionary
procurement decisions by a federal agency that are due deference from this court.
As stated in Axiom,
the [Federal Acquisition Regulation (FAR)5] recognizes
that the identification of OCIs and the evaluation of
mitigation proposals are fact-specific inquiries that
require the exercise of considerable discretion. See 48
C.F.R. § 9.505 (“Each individual contracting situation
should be examined on the basis of its particular facts
and the nature of the proposed contract. The exercise of
common sense, good judgment, and sound discretion is
required in both the decision on whether a significant
potential conflict exists and, if it does, the development
of an appropriate means for resolving it.”); see also
[ARINC Eng’g Servs., LLC v. United States, 77 Fed. Cl.
196, 202 (2007)] (“The responsibility for determining
whether such unequal access exists and what steps
5
/ All citations to the FAR in this opinion are to the current version of Title 48 of the
Code of Federal Regulations, which does not appear to differ in any material respect from the
versions that were in force at times relevant to the procurement actions challenged in this bid
protest.
21
should be taken in response thereto rests squarely with
the contracting officer.”).
564 F.3d at 1382. Having considered the three exhibits attached to Raytheon’s
motion, and the arguments Raytheon presents regarding Sotera’s alleged OCI, the
court finds nothing of sufficient concern to cast doubt on the reasonableness of the
Army’s OCI ruling presented in AR Tab 57.6
Finally, if an alternative de novo review of the OCI issue could be justified,
the court would come to the same conclusion reached by the Army in 2013 after
an extensive investigation. The technical elements of Sotera’s proposal were not
substantively revised after Mr. Chet Wilson, the employee who allegedly
possessed proprietary knowledge of Sotera’s competitors’ technical approaches,
joined Sotera’s workforce. Although discussions, through Evaluation Notices
(ENs) and responses thereto, permitted Sotera to expound upon aspects of its
proposal that had previously received weak ratings, and to provide supporting
documentation that responded to requests for more detailed explanations of
Sotera’s plan of work, no substantive changes were made to the proposal
originally submitted to the Army. See AR Tabs 9, 17, 19, 30. Furthermore, Mr.
Wilson was bound by protocols not to divulge proprietary information gleaned
from past work experiences. See id. at 8677-81. The court must agree with the
contracting officer who stated that:
Given the nature of the limited scope of the ENs issued
to Sotera and the responses received, coupled with the
performance-based nature of the EWPMT effort which
called for no specific approach, the fact that Sotera had
developed and proposed its approach/solution prior to
employing Mr. Wilson, the type of Raytheon
“proprietary” information to which Mr. Wilson had
access, and the fact that the ENs issued by the
Government during discussions specifically sought and
obtained clarification and detail on the approach
6
/ AR Tab 57 is not carefully indexed by defendant. The contracting officer’s findings
are on pages 8645, 8665-94; conclusions regarding the OCI allegations are found on pages 8691-
94. An index of enclosures is found on page 8695. The Army’s accompanying legal analysis of
Raytheon’s OCI allegations is found on pages 9236-46.
22
proposed by Sotera prior to Mr. Wilson beginning
employment or reviewing the ENs, I have concluded that
although Mr. Wilson had access to information marked
as proprietary by Raytheon, said information was not
competitively advantageous to Sotera in the preparation
of its proposal or in responding to ENs, and therefore did
not prejudice Raytheon in any way.
Id. at 8683. Thus, even through the lens of a de novo review of Raytheon’s OCI
allegations, Sotera is not ineligible for award because of an OCI; plaintiff has
standing to bring this protest. ITAC, 316 F.3d at 1319.
IV. Analysis for Count I of the Amended Complaint7
A. No Waiver of Count I Caused by Delay in Filing Protest of
Agency Decision to Undertake Corrective Action
1. Binding Precedent
Both the government and Raytheon contend that Blue & Gold Fleet bars this
court’s consideration of Count I of the complaint. Their basic contention is that
Sotera should have protested the Army’s decision to re-evaluate proposals before
the results of that re-evaluation were revealed by the award to Raytheon. This
contention is premised on an extension of the holding in Blue & Gold Fleet which
states that
a party who has the opportunity to object to the terms of
a government solicitation containing a patent error and
fails to do so prior to the close of the bidding process
waives its ability to raise the same objection
subsequently in a bid protest action in the Court of
Federal Claims.
492 F.3d at 1313.
7
/ The court addresses the counts of the amended complaint in the following order:
Count I, Count III, Count IV, Count II.
23
Here, no solicitation term is at issue – it is the Army’s corrective action that
might have triggered waiver of a bid protest ground. In particular, the protest-
worthy action, according to the government and Raytheon, is the Army’s stated
intent to
examine all proposals and evaluations for offerors in the
final competitive range (this includes [Raytheon]), and
[the Army] will re-evaluate as appropriate. If the
re-evaluations result in any changes, the source selection
authority will render a new source selection decision.
AR at 8506.1. The defendants in this case rely upon a variety of authorities for
their waiver argument, but the Federal Circuit precedent cited is almost entirely
dicta and of minimal precedential value.
The waiver rule in Blue & Gold Fleet has been extended in COMINT
Systems Corp. v. United States, 700 F.3d 1377, 1382 (Fed. Cir. 2012), so that
protests of the terms of an amendment to a solicitation are waived if not raised
before award. See id. at 1382 & n.5 (stating that “assuming that there is adequate
time in which to do so, a disappointed bidder must bring a challenge to [an
amended] solicitation containing a patent error or ambiguity [excepting latent
errors or ambiguities] prior to the award of the contract” (citing Blue & Gold
Fleet, 492 F.3d at 1313)). This COMINT extension of Blue & Gold Fleet to
solicitation amendment scenarios is, however, inapplicable to the facts of this bid
protest, where no solicitation amendment occurred as part of the Army’s corrective
action. Furthermore, although there is brief commentary in the COMINT decision
which looks to GAO timeliness rules as support for the rationale of COMINT’s
extension of the waiver rule of Blue & Gold Fleet, this general endorsement of the
GAO’s approach to delay-based waiver must be construed, at most, as dicta
regarding the propriety of extending Blue & Gold Fleet’s waiver rule beyond the
scope of the waiver holding in COMINT.
There is additional dicta in Systems Application & Technologies, Inc. v.
United States, 691 F.3d 1374 (Fed. Cir. 2012) (SA TECH II), regarding the waiver
rule set forth in Blue & Gold Fleet. At issue in that appeal was the government’s
allegation that the bid protest of a corrective action was not ripe, not that a
protestor had waived its right to protest by delaying its protest until a new award
decision had issued. Id. at 1383-85. In particular, the government contended that
24
the apparent awardee could not protest a corrective action until the government
concluded its corrective action and re-awarded the contract to another bidder. Id.
at 1384. The Federal Circuit disagreed, because “the Army’s proposed finality
rule would make some of their actions protest-proof.” Id.
The only specific discussion of “protest-proof” actions being immune from
review because of a waiver of protest grounds is this statement in SA TECH II:
If SA-TECH’s claims were not ripe until after the
contract award, then SA-TECH could never protest th[e]
proposed amendment to the terms of the solicitation
[which was part of its challenge to the corrective action].
691 F.3d at 1384-85 (citing Blue & Gold Fleet, 492 F.3d at 1313). Because this
commentary is dicta, and could just as easily be read to not extend as to extend the
waiver rule in COMINT and Blue & Gold Fleet, the court finds SA TECH II to be
of no value in resolving the waiver issue in this case. The court now turns to a
brief discussion of the caselaw and GAO decisions relied upon by the government
and Raytheon to argue that an extension of Blue & Gold Fleet’s waiver rule is
warranted in the circumstances of this protest.
2. Federal Claims Court Cases
According to defendant, relying in particular on a number of protest
ripeness cases decided by this court, a delayed protest of a corrective action is
waived. Def.’s Mot. at 15. A discussion of the ripeness of a particular protest,
however, is no indication that this court has actually extended the waiver rule in
Blue & Gold Fleet to protests of corrective actions that are separate and distinct
from solicitation amendments. Although ripeness and waiver are related concepts,
a holding deciding the ripeness of a bid protest does not confirm that this court has
extended Blue & Gold Fleet to protests of re-evaluation decisions in the context of
corrective actions by agencies responding to a GAO protest.
Raytheon, in its reply brief, cites to better cases which discuss the waiver
rule in the context of untimely challenges to government actions in a procurement
– actions other than solicitation amendments. Raytheon Reply at 5-6. These cases
are: Communication Construction Services, Inc. v. United States, 116 Fed. Cl.
233, 263-64 (2014) (waiver of a protest ground founded on an alleged OCI that
25
was known to the protestor before bids were submitted); CRAssociates, Inc. v.
United States, 102 Fed. Cl. 698, 712 (2011) (waiver of a protest ground founded
on an alleged OCI that was known to the protestor before bids were submitted);
Ceres Environmental Services, Inc. v. United States, 97 Fed. Cl. 277, 310 (2011)
(waiver of a protest ground founded on an “obvious procurement procedure”
which disclosed the protestor’s pricing to competitors, because this procedure was
known to the protestor before bids were submitted).
While the three cases cited by Raytheon are instructive, they do not bind the
court in this case. In addition, the facts of those cases are not very similar to the
facts of this case. For example, all three of the cited cases involved a protestor
that possessed knowledge of an alleged procurement defect, that faced a fixed
deadline for protesting that defect (before the submission of bids), and that waited
for the results of an evaluation process before protesting the alleged defect. Here,
there was no upcoming bidding deadline because proposals were already in the
hands of the Army. Waiver because of delay is less easily discerned when there is
no proposal submission deadline that clearly demarcates timely and untimely
protests.
At oral argument, the court inquired as to when Sotera should have
protested the re-evaluations of proposals in order to avoid waiver under Blue and
Gold Fleet. Raytheon stated that Sotera should have acted “within a reasonable
time,” and that waiting to raise this challenge until after Sotera had lost its GAO
protest was “way too long.”8 Tr. at 67-69. The government stated that although
the usual rule is that the protest must be lodged before award, when a GAO protest
is dismissed as moot the protestor must protest the corrective action before the
GAO protest is dismissed.9 Id. at 39-40. Plaintiff stated that even if Blue & Gold
Fleet could be applied to this type of scenario, no waiver deadline would be
8
/ The court notes that there is no requirement that a protestor raise each and every
protest ground before the GAO before those protest grounds may be raised in a protest before this
court. New protest grounds in cases before this court are not waived merely because the GAO
had no chance to consider them in a previous protest. See, e.g., Centech Grp., Inc. v. United
States, 78 Fed. Cl. 496, 507 n.20 (2007) (stating that “the right to file a protest in the Court of
Federal Claims is unaffected by GAO’s protest process” (citing 31 U.S.C. § 3556 (2012)).
9
/ Under the government’s rule Sotera would have had four business days from the initial
corrective action notice, or two business days from the clarified corrective action notice, within
which to have filed a timely appeal of the government’s proposed corrective action.
26
triggered unless the Army acknowledged that the first evaluation of proposals was
unlawful and that there needed to be a second, lawful examination of proposals.
Id. at 12.
Given the uncertainty as to the appropriate deadline for avoiding waiver of a
corrective action protest, and the lack of precedential authority for extending the
waiver rule in Blue & Gold Fleet to protests of corrective action notices such as
the one issued by the Army here, the cases cited by Raytheon and the government
fail to persuade the court that Sotera necessarily waived its right to protest the
Army’s decision to re-evaluate proposals.10
3. GAO Decisions
The court now considers whether GAO decisions which have considered
waiver in the context of corrective action protests are persuasive, even though
GAO decisions are not binding precedent for this court. See, e.g., Allied Tech.
Grp., Inc. v. United States, 649 F.3d 1320, 1331 n.1 (Fed. Cir. 2011) (stating that
GAO decisions do not create binding precedent for the Federal Circuit); XTRA
Lease, Inc. v. United States, 50 Fed. Cl. 612, 618 (2001) (stating that “GAO
decisions are not binding on this court”) (citation omitted). The government and
Raytheon cite to a pair of GAO decisions issued in 2008-09 as support for their
waiver arguments. See Def.’s Mot. at 15 (citing Northrop Grumman Info. Tech.,
Inc., B-400134.10, 2009 CPD ¶ 167 (Comp. Gen. Aug. 18, 2009); Domain Name
Alliance Registry, B-310803.2, 2008 CPD ¶ 168 (Comp. Gen. Aug. 18, 2008));
Raytheon Mot. at 32 (citing Northrop Grumman); Raytheon Reply at 5 (citing
Domain Name). The principle that defendant and intervenor-defendant attempt to
distill from these two cases is best summarized by the government:
10
/ At least one judge of this court appears to suggest that the waiver rule set forth in Blue
& Gold Fleet should not be applied too broadly in corrective action protests:
[H]ad [the agency] at any point in taking corrective action
modified its solicitation and called for new proposals, then the
somewhat extended doctrine of timeliness and waiver represented
by the progeny of Blue & Gold Fleet in this court could well have
been triggered.
Vanguard Recovery Assistance v. United States, 99 Fed. Cl. 81, 92 (2011) (footnote omitted).
27
GAO has long held that a protest “which challenges the
way in which the agency will conduct its corrective
action and recompetition, is analogous to a challenge to
the terms of a solicitation,” and, thus, any such challenge
must be raised prior to award to be timely.
Def.’s Mot. at 15 (quoting Domain Name and citing Northrop Grumman). It
would be more accurate, however, to state that the GAO has stated that some such
corrective action challenges must be raised prior to award to be timely.
The full GAO corrective action protest waiver rule is stated in a more recent
GAO decision:
Because [Earth Resources Technology’s (ERT’s)] protest
of the agency’s decision in this regard amounts to a
challenge of the agency’s corrective action and the
ground rules established for the competition, see
Northrop Grumman Info. Tech, Inc., B-400134.10, Aug.
18, 2009, 2009 CPD para. 167 at 10; Domain Name
Alliance Registry, B-310803.2, Aug. 18, 2008, 2008
CPD para. 168 at 7, it was unreasonable for ERT to wait
until July 11, after having received its debriefing
regarding the award decision, to protest NASA’s
decision in this regard. Rather, because ERT knew or
should have known of this basis of protest as a
consequence of ERT’s counsel receiving the [corrective
action notice], ERT should have, at the latest, protested
the agency’s decision not to hold . . . discussions within
10 days of receiving the [correction action notice], or by
July 6. Having failed to timely protest this matter, the
allegation is dismissed. 4 C.F.R. sect. 21.2.
Earth Res. Tech., Inc., B-403043.2, 2010 CPD ¶ 248, 2010 WL 4304182, at *4
(Comp. Gen. Oct. 18, 2010) (emphasis added). This full exposition of the GAO’s
waiver rule, putting aside for the moment the fact that the GAO applies a ten-day
timeliness rule which does not apply to this court’s bid protest jurisdiction,
supposes that some corrective actions affect the ground rules of the competition
28
and that some do not. This distinction is explained, at least to some degree, in a
more recent GAO decision:
As an initial matter, we note that we have considered the
merits of various protests challenging the adequacy of an
agency’s proposed corrective action. In doing so, in
those instances where the agency’s proposed corrective
action alters or fails to alter the ground rules for the
competition (i.e., aspects that apply to all offerors), we
have considered a protester’s challenge of such to be
analogous to a challenge to the terms of a solicitation,
thus providing the basis for protest prior to award.
Domain Name Alliance Registry, supra (protest
challenging agency’s decision not to reopen
discussions); Northrop Grumman Info. Tech., Inc., B-
400134.10, Aug. 18, 2009, 2009 CPD ¶ 167 at 10
(protest challenging agency’s decision not to hold
discussions or permit clarifications); see 4 C.F.R.
§ 21.2(a)(1) (2012). However, in those instances where
the agency’s proposed corrective action does not alter
the ground rules for the competition, we have considered
a protester’s preaward challenge to be premature. Alliant
Techsystems, Inc., B-405129.3, Jan. 23, 2012, 2012 CPD
¶ 50 at 2 n.1 (protest challenging the agency’s evaluation
as improper); Northrop Grumman Tech. Servs., Inc., B-
404636.11, June 15, 2011, 2011 CPD ¶ 121 at 4 (protest
challenging the agency’s discussions as unequal).
SOS Int’l, Ltd., B-407778.2, 2013 CPD ¶ 28, 2013 WL 121161, at *2 (Comp. Gen.
Jan. 9, 2013) (SOS International).
In its examination of the GAO’s waiver doctrine, as it applies to corrective
action protests, the court asked the parties to comment on whether the Army’s
corrective action notice in this case altered the ground rules of the competition for
the EWPMT contract. In response plaintiff’s counsel stated that the corrective
action did “not change the ground rules of the competition [because it had] no
impact on the other offerors and there [were] no revisions to proposals.” Tr. at 90.
Raytheon’s counsel disagreed, stating emphatically that the Army’s corrective
29
action altered the ground rules of the competition because the Army would “go
back and do another evaluation.” Id. at 69. Government counsel’s response was
less definitive:
[W]e did not change the ground rules. . . . We set a
ground rule. . . . [D]epending on where the court is
going with the question, you know, I’d have to say that
we did set a ground rule, but I’m not saying we – and I
would not say that we changed the ground rule in any
significant fashion.
Id. at 93-94.
The court is not convinced that the GAO’s formulation of a waiver and
ripeness doctrine for corrective action protests is of much utility in this case. First,
the GAO must impose a strict ten-day deadline for the filing of protests, 4 C.F.R.
§ 21.2(a)(2) (2014); this court has no such imperative. Second, the GAO employs
an obscure distinction between a “proposed corrective action [that] alters or fails
to alter the ground rules for the competition (i.e., aspects that apply to all
offerors),” and a “proposed corrective action [that] does not alter the ground rules
for the competition.” SOS International, 2013 WL 121161, at *2 . This GAO
doctrine, in the court’s view, relies overmuch on determining whether the “ground
rules” of the competition have been altered, however those ground rules might be
defined. For these reasons, the court will not rely on Domain Name or Northrup
Grumman as persuasive authority to support the extension of Blue & Gold Fleet to
the circumstances of this case.
If the court were to rely on the GAO’s doctrine of corrective action protest
waivers, at least one decision could be viewed as favoring Sotera. SOS
International discusses a protest of a corrective action not very different from the
corrective action undertaken in the instant case. The protestor in SOS
International argued that a corrective action which only re-evaluated price
proposals, rather than entire proposals, was inadequate. See SOS International,
2013 WL 121161, at *2 (reporting that the protestor “argues that the course of
action contemplated by the agency – reevaluating offerors’ price proposals but not
also the technical and past performance proposals – will lead to an improper
evaluation”). The GAO protest was dismissed as premature, because the partial
30
re-evaluation decision “does not effectively incorporate [various aspects of the
evaluation] into the ground rules for the competition.” Id.
Here, the Army’s intent to “examine all proposals and evaluations for
offerors . . . and . . . re-evaluate as appropriate” also, arguably, does not
incorporate aspects of the evaluation into the ground rules of the EWPMT
competition. Indeed, the corrective action announced in SOS International
appears to have been more specific than the corrective action notice issued by the
Army here, but was still seen as a preliminary government action not yet subject to
protest. Although Raytheon and the government rely on the GAO’s waiver
doctrine regarding corrective action protests to dismiss Count I of the complaint,
that doctrine, as applied in SOS International, would just as likely have rejected
any Sotera protest of the Army’s corrective action plan, if filed within ten days of
receipt of the Army’s corrective action notice, as unripe. The court therefore
cannot dismiss Count I of the amended complaint based solely on the GAO
doctrine of waiver in corrective action protests.
4. No Waiver in these Circumstances
Sotera’s delay in challenging the re-evaluation of proposals presents a close
question of waiver. If the facts were slightly different, an extension of the waiver
doctrine might well apply. Nonetheless, having given due consideration to the
cases and decisions relied upon by the parties, as well as to the text of the Army’s
corrective action notice and the clarification of that notice, no waiver, as described
by Blue & Gold Fleet or other binding precedent, occurred here. In the
circumstances of the EWPMT procurement corrective action announced by the
Army, Count I of Sotera’s amended complaint was not waived.
B. The Agency’s Decision to Re-evaluate Proposals Survives Review
1. No Absolute Bar to Re-evaluation
Sotera contends that the Army was precluded from re-evaluating the
EWPMT proposals after Sotera had been awarded the contract. See Pl.’s Mot. at
24 (stating that “the Army did not have a lawful basis to ‘reevaluate’ the original
proposals and second-guess its original judgments”). Unfortunately for plaintiff’s
position, there is no binding authority which supports that argument. Furthermore,
plaintiff’s reliance on FAR 33.102(b) is misplaced. See Pl.’s Mot. at 26-27
31
(stating that “FAR 33.102(b) does not allow an agency to change its mind simply
because it later believes, upon further reflection, that a different offeror represents
a better value”). The FAR provision relied upon by plaintiff merely states, in
discussing an agency’s response to a protest, that:
If, in connection with a protest, the head of an agency
determines that a solicitation, proposed award, or award
does not comply with the requirements of law or
regulation, the head of the agency may . . . [t]ake any
action that could have been recommended by the
Comptroller General had the protest been filed with the
Government Accountability Office[.]
48 C.F.R. § 33.102(b) (2013). This regulation does not contain any bar to the re-
evaluation of proposals undertaken in response to a protest filed at the GAO.
To the extent that Sotera interprets a decision of this court to severely limit
proposal re-evaluation as a corrective action option for federal agencies seeking to
moot protests filed at the GAO, the court must disagree. See Pl.’s Mot. at 24-27
(citing Sys. Application & Techs., Inc. v. United States, 100 Fed. Cl. 687 (2011)
(SA TECH I), aff’d on other grounds, 691 F.3d 1374 (Fed. Cir. 2012). First,
decisions of this court are not binding precedent for judges of this court. AINS,
Inc. v. United States, 365 F.3d 1333, 1336 n.1 (Fed. Cir. 2004), abrogated on
other grounds by Slattery v. United States, 635 F.3d 1298 (Fed. Cir. 2011) (en
banc). Second, the passage in SA TECH I relied upon by plaintiff is a brief,
alternative holding supported by minimal analysis. See 100 Fed. Cl. at 719
(stating that the court “briefly consider[ed] whether the Army’s decision to take
corrective action also violates a statute or regulation”). Third, SA TECH I is
distinguishable on its facts, because the court in SA TECH I first determined that
the re-evaluation decision was irrational (a finding which, as discussed infra, does
not pertain here) before deciding that the re-evaluation decision was also unlawful.
See id. (stating that “[a]lthough the court has determined that the Army’s decision
to take corrective action lacks a rational basis, it briefly considers whether the
Army’s decision to take corrective action also violates a statute or regulation”).
For all of these reasons, the court rejects plaintiff’s contention, based on its
reading of SA TECH I, that a federal agency may only re-evaluate proposals, when
responding to a protest, if the agency first finds that its previous evaluation was
32
either significantly flawed or unlawful. See Impresa, 238 F.3d at 1332 (“[T]he
courts have recognized that contracting officers are ‘entitled to exercise discretion
upon a broad range of issues confronting them’ in the procurement process.”
(quoting Latecoere Int’l, Inc. v. U.S. Dep’t of Navy, 19 F.3d 1342, 1356 (11th Cir.
1994))). As the government notes, Sotera’s restrictive view of corrective action
would require an agency to pre-determine the results of its re-evaluation of
proposals before actually conducting such a re-evaluation. Def.’s Mot. at 19.
Finding that neither precedent nor logic supports Sotera’s contentions in this
regard, the court holds that the Army was exercising its lawful discretion when it
chose to re-evaluate proposals to consider the protest grounds raised by Raytheon
in its GAO protest.
2. The Army’s Decision to Re-evaluate Proposals was Not an
Abuse of Discretion
Sotera also argues that it was an abuse of discretion for the Army to re-
evaluate proposals. Pl.’s Mot. at 24; Pl.’s Reply at 26. Procurement actions which
lack a rational basis are an abuse of the agency’s discretion. Impresa, 238 F.3d at
1332-33. Here, the record shows that the Army chose to re-evaluate proposals
because Raytheon’s critique of the evaluation process and award decision was
taken seriously. See AR Tabs 50-51. One clear error was found in the initial past
performance evaluation of Sotera’s proposal, regarding the weight accorded the
past performance of Sotera’s sub-contractors. See id. at 8555, 8599-600, 8603.
Revisions were also made in the evaluation of Raytheon’s technical proposal. The
court does not find, on this record, that the decision to re-evaluate proposals
lacked a rational basis. The court therefore disagrees with the contentions of
Count I of the amended complaint, and finds that the decision to re-evaluate
proposals was neither unlawful nor an abuse of discretion.
V. Analysis for Count III of the Amended Complaint
A. Waiver of Protest of the Price Evaluation Methodology Used to
Rate Raytheon’s Proposal, Where that Methodology Was
Disclosed in the Solicitation
The amended complaint challenges the price evaluation of Raytheon’s
proposal:
33
The Army’s cost evaluation was fundamentally improper
because the Army allowed Raytheon to take advantage
of the procurement by proposing substantially fewer
labor hours on the basis that it had already developed [ ]
of the [CD1] requirements. While there is nothing
improper with such a proposal, it directly undermined
the purpose and fairness of the cost evaluation and, thus,
it became incumbent upon the Army to take affirmative
steps to ensure that the cost evaluation achieved its core
purpose (i.e., identifying the relative cost value of each
proposal for the EWPMT program).
Am. Comp. ¶ 132. The solicitation disclosed, however, that the Army would
evaluate price by considering an offeror’s costs for CD1 alone, not that offeror’s
costs for the entire contract. AR at 739, 745. In plaintiff’s view, the Army was
required to modify its cost evaluation methodology in order to accurately rate
Raytheon’s proposal. The court must agree with Raytheon and the government
that Count III challenges how the solicitation term governs cost evaluations, and
that such a challenge is untimely under Blue & Gold Fleet. See Raytheon’s Mot.
at 48 (“If Sotera felt that the Agency should have considered the costs to perform
all CD1 requirements, regardless of an offeror’s approach and whether or not
those costs would be charged to the Agency, then Sotera was required to object
prior to the closing date for receipt of proposals.” (citing Blue & Gold Fleet, 492
F.3d at 1314)); Def.’s Mot. at 44 (“Sotera’s cost challenge was waived, because
this argument necessarily challenges the express cost evaluation criteria
established in the solicitation.” (citing Blue & Gold Fleet, 492 F.3d at 1308,
1313)).
B. Price Evaluation Not Shown To Be Irrational
To the extent that Sotera attacks the rationality of the Army’s decision to
hold fast to its cost evaluation methodology when faced with the particular cost
elements of Raytheon’s proposal, the court is not persuaded that the Army erred by
considering Raytheon’s proposed and evaluated costs for CD1 to be reliable
34
indicators of the comparative cost of Raytheon’s proposal.11 Plaintiff contends
that:
The Army had a responsibility to adjust Raytheon’s
proposed cost upward to a figure that was reflective of
what it would cost for Raytheon to perform all CD1
requirements, as this was how all other offerors priced
their proposals. . . . The Army violated the law by failing
to meaningfully consider the true cost of Raytheon’s
proposal for the underlying contract.
Pl.’s Mot. at 37-38 (footnotes omitted). In addition, plaintiff points to higher rates
that Raytheon would charge the government, for example, for labor and overhead,
as evidence that Raytheon’s proposal will cost much more than Sotera’s proposal
over the life of the contract. Id. at 29 (citing AR at 9475). Raytheon and the
government, on the other hand, argue that the Army was fully aware of the
structure of Raytheon’s cost proposal (offering some elements of CD1 to the Army
at zero cost because of previous development work accomplished by Raytheon),
and that the Army rationally concluded that Raytheon’s evaluated cost for CD1
was accurately measured pursuant to the methodology required by the solicitation.
The court agrees that the cost evaluation of Raytheon’s proposal was
rational and in accordance with the solicitation’s stated evaluation methodology.
The court must agree, in particular, with the government’s contention that Sotera’s
proposed adjustments to Raytheon’s costs over the life of the entire contract are
too speculative to invalidate the Army’s evaluated cost for Raytheon’s CD1 –
$11,258,505. Def.’s Reply at 20 (citing AR at 9292, 9302). The court must also
concur with Raytheon’s contention that [ ] do not necessarily indicate higher
future costs. As pointed out by Raytheon, despite [ ] a contractor’s overall future
costs may well be offset by the deployment of heightened employee efficiencies
and superior processes, as compared to those of its competitors. Tr. at 80-81.
Thus, projecting Raytheon’s costs of performance over the life of the contract is
not as simple as plaintiff appears to suggest.
11
/ There is substantial overlap between Counts II and III of the amended complaint,
which both question the rationality of the Army’s cost evaluation of Raytheon’s proposal.
Compare Am. Compl. ¶¶ 105-08, 122-25, with id. ¶¶ 132-37. The court addresses such
arguments here, and will not return to the topic in its discussion of Count II.
35
Ultimately, although Sotera asks the court to substitute its judgment for the
agency’s, this court must defer to the agency’s technical expertise as to the cost
evaluation of the proposals submitted in the competition for the EWPMT project.
Because the cost evaluation of Raytheon’s proposal contained in the AR has not
been demonstrated to be irrational, the court cannot sustain Sotera’s protest on this
ground. The court now turns to one of the most hotly contested issues in the
procurement, the issue of whether unstated evaluation criteria were used in the re-
evaluation of the EWPMT proposals.
VI. Analysis for Count IV of the Amended Complaint
A. The SSAC Chair’s Email
The controversy addressed in Count IV of the amended complaint centers
on the email sent by the SSAC Chair to the SSEB asking that they place “extra
emphasis” on certain aspects of the offerors’ proposals during the re-evaluation.
AR Tab 51. Although the email also highlighted aspects of the evaluation of the
Past Performance information provided by the offerors, the focus of Count IV is
on the Technical Factor re-evaluation, and especially but not exclusively on the re-
evaluation of the Management sub-factor. Plaintiff accuses the Army of
unlawfully re-evaluating proposals using “unstated evaluation criteria” that were
developed in response to the SSAC Chair’s email.12 Am. Compl. ¶¶ 160-61.
Plaintiff disavows accusing the Army of re-evaluating the proposals in bad
faith so as to direct award to Raytheon. See Pl.’s Reply at 19 (stating that the
“higher burden of proof” for bad faith does not apply to Sotera’s Count IV); Tr. at
82 (“We’re not arguing bad faith.”). Thus, the court’s task is to determine whether
the re-evaluation of the Technical Factor impermissibly strayed from the
evaluation criteria stated in the solicitation. In fact, the text of the email itself
implicitly raises the question of whether the Source Selection Evaluation Plan
(SSEP) (which undisputedly tracks the solicitation’s statement of evaluation
12
/ Sotera relies on a declaration submitted with its reply brief for an analysis of the
“unstated evaluation criteria” allegation (and for other purposes). See Pl.’s Reply at 17 & n.14.
The court did not consider this declaration because the resolution of the evaluation criteria
dispute was made clear by the AR itself. See Axiom, 564 F.3d at 1380 (restricting
supplementation of the administrative record to circumstances where omission of the materials
would frustrate judicial review).
36
criteria) was correctly followed by the Army, or whether the extra emphasis
requested by the SSAC Chair impermissibly altered the evaluation criteria set forth
in the solicitation:
Steve/SSEB Team, as you reassess ratings for each of the
4 Offerors from the final competitive range ensure that
you are following SSEP guidance in strict accordance
with evaluation criteria and definitions. In addition,
I would like extra emphasis placed on the following . . . .
AR at 8505.
Plaintiff urges the court to construe this email as unfairly replacing neutral
evaluation criteria with criteria blatantly favoring Raytheon. The government and
Raytheon argue that the SSAC Chair urged the SSEB to follow the SSEP and, in
order to correctly apply the SSEP’s evaluation criteria, to confirm whether the
evaluation of certain identified aspects of proposals was indeed accurate. In that
regard, the government argues that the SSAC Chair’s reference to extra emphasis
does not indicate that the SSEB would be “putting extra weight on” unstated
evaluation criteria; instead, the SSEB would simply “review[] certain concerns or
issues” during the re-evaluation. Tr. at 43.
In the court’s view, the email could be read either way. Certainly, many, if
not all, of the topics designated by the SSAC Chair for extra emphasis or
examination respond to topics raised in Raytheon’s protest, and proprietary
software developed by Raytheon is mentioned by name as an example of an
“efficienc[y].” AR at 8505. Also highlighted is a certification level obtained by
Raytheon and not obtained by the other offerors (CMMI level 5 versus CMMI
level 3).13 Id.
On the other hand, the SSEB is reminded in the email of the importance of
adhering to the evaluation criteria stated in the SSEP, and the emphasis requested
is framed as an inquiry into value, not as a directive to necessarily accord strengths
13
/ The acronym CMMI refers to “Capability Maturity Model Integration.” AR at 9471.
Certification at a particular CMMI level relates to an offeror’s software development processes.
Id. at 10941-42.
37
to certain aspects of the offerors’ proposals. The court notes, too, that this email
dated August 15, 2013 references further discussions on August 26, 2013, and that
the SSEB’s work continued into October 2013. While the SSAC Chair’s email
directs the SSEB to focus its examination in particular upon certain issues that had
been flagged as concerns as a result of the GAO protest, there is a distinction
between directing the evaluation board to give those areas extra scrutiny as
opposed to extra credit. Thus, although the SSAC Chair’s email sends the SSEB
off in a certain direction, the documents produced at the end of this process must
be analyzed to identify the evaluation criteria that were actually used in the
Army’s re-evaluation of proposals.
B. SSEB Findings
Three documents present the SSEB’s re-evaluation results for Sotera’s and
Raytheon’s proposals. The first is a set of slides presented to the SSAC, AR Tab
56, and the other two documents are narrative re-evaluation reports for each
offeror, id. Tabs 58-59. Plaintiff, relying heavily on the differences between the
original evaluation for Raytheon’s proposal and the re-evaluation results,
concludes that:
[A]ll of the material changes to the SSEB report directly
correlated to the key complaints in Raytheon’s
debriefing and protest, and in turn the unstated criteria
reflected in the SSAC Chair’s instructions.
Pl.’s Mot. at 14. Plaintiff therefore alleges that the improvements in Raytheon’s
evaluation ratings are the direct result of impermissible unstated evaluation
criteria.
The government disagrees, and connects the improved SSEB ratings for
Raytheon’s proposal to the evaluation criteria set forth in the solicitation. Def.’s
Mot. at 23-31. Raytheon, in its moving brief, performs a similar analysis of the
evaluation criteria applied by the SSEB. Raytheon Mot. at 21-26. The
government’s and Raytheon’s arguments are persuasive. The court finds no
evidence that the SSEB applied criteria in the proposal re-evaluations that were
not set forth in the solicitation. See Def.’s Mot. at 23 (citing cases upholding the
agency’s discretion to interpret the scope of proposal evaluation criteria). The
court finds that the SSEB’s re-evaluation results, AR at 8555, 8597, 9249, 9310,
38
were rational applications of the evaluation criteria explicitly set forth in the
solicitation.
A detailed review of the parties’ arguments in this regard is not necessary.
The alteration in the Past Performance evaluation results for Sotera, and the
additional strength in the Management sub-factor for Raytheon, are well-
documented in the record and adequately explained. Pursuant to Sections L and M
of the solicitation, all of the material changes to the evaluation ratings for
Raytheon’s and Sotera’s proposals reflect considerations that are within the scope
of the evaluation criteria publicly established by the Army. The SSEB adhered to
these criteria when it found Raytheon’s proposal to evidence an “ability to meet
the demands of an aggressive schedule without sacrificing performance and
increasing cost in any functional domain.” AR at 9264.
The court therefore finds that the SSEB’s re-evaluation results are rational
and did not employ unstated evaluation criteria. To the extent that Sotera
compares this case to Huntsville Times Co. v. United States, 98 Fed. Cl. 100
(2011), the court finds the analogy strained. That case involved an agency’s
substitution of undisclosed evaluation criteria for those announced in the
solicitation – here, the Army applied the same set of disclosed criteria in a second,
closer look at proposals. The court finds nothing improper in the criteria
employed in the SSEB’s re-evaluation of proposals.14
C. SSAC Recommendation and the SSA Award Decision
The SSAC and the SSA agreed with the SSEB’s revised evaluations of
Sotera’s and Raytheon’s proposals. See AR Tabs 60-62. The SSAC noted the
evolution from the prior evaluation results to the re-evaluation results and
explained the differences. Id. at 9372-73, 9416, 9419, 9463. The SSAC then
performed a comparative analysis of proposals and recommended award to
Raytheon. Id. at 9469-73, 9477-78. Nothing in the SSAC’s analysis shows that
the evaluation criteria of the solicitation were replaced by unstated evaluation
criteria.
14
/ The SSAC Chair’s instructions, AR Tab 51, certainly could have led to an improper
substitution of an altered set of evaluation criteria. On this record, however, the SSEB obeyed
his specific instruction to “ensure that you are following SSEP guidance in strict accordance with
evaluation criteria and definitions.” Id.
39
The SSA’s award decision reflects a careful consideration of the evaluation
ratings and recommendations produced by the SSEB and the SSAC. AR Tab 62.
The SSA explains that the re-evaluation was undertaken as a part of the corrective
action that mooted Raytheon’s protest at the GAO. Id. at 9481. Although the
SSA does not explicitly disavow his previous decision to award Sotera the
EWPMT contract, he states that his decision to award the EWPMT contract to
Raytheon is based on his review of the SSEB’s re-evaluation results and the
evaluation criteria set forth in the solicitation. Id. The court finds that the SSA’s
award decision did not rely on unstated evaluation criteria. The court specifically
rejects Sotera’s contention that the SSAC Chair’s email tainted the procurement by
introducing a different set of evaluation criteria that were employed throughout the
re-evaluation process.
To the extent that plaintiff argues that it is unfair, or that various FAR
provisions are violated when an agency re-evaluates proposals and concurrently
considers the validity of allegations of evaluation error that have been raised in a
prior GAO protest, the court cannot agree. As long as the agency adheres to the
evaluation criteria set forth in the solicitation, the court believes that an agency has
the discretion to re-evaluate proposals during a corrective action and to correct
prior evaluation errors. See Glenn Def. Marine (Asia), PTE Ltd. v. United States,
105 Fed. Cl. 541, 569 (2012) (“Agency evaluators must be allowed the discretion
to review their own conclusions if they conclude a mistake has been made, or if
further inquiry appears appropriate, provided the re-evaluation conforms with the
solicitation, including any modifications to the solicitation and the evaluation
process is conducted in a manner fair to all offerors.”). Here, the record shows
that the re-evaluations were done fairly and in conformance with the solicitation’s
evaluation criteria. For this reason, Sotera’s protest cannot be sustained on the
grounds raised in Count IV of the amended complaint.
VII. Analysis for Count II of the Amended Complaint
The court now turns to plaintiff’s arguments which challenge the rationality
of the SSEB’s re-evaluation of proposals.15 Three principal arguments are raised:
(1) The Army inappropriately minimized the cost premium it would pay for
15
/ As intervenor-defendant notes, not all of Sotera’s challenges to the re-evaluation were
presented in its motion for judgment on the administrative record. Raytheon’s Mot. at 46 n.23.
The court limits its discussion here to the arguments Sotera raised in its dispositive motion.
40
Raytheon’s proposal; (2) The Army did not adequately explain its trade-off
decision, especially in light of the fact that a trade-off analysis favored Sotera’s
proposal in the Army’s earlier award decision; (3) The Army’s best value decision
was flawed because the technical advantages of Raytheon’s proposal did not
outweigh the cost premium that the Army would pay if it chose Raytheon’s
EWPMT proposal over Sotera’s proposal. The court will address each of these
arguments in turn.
A. Correctly Identified Magnitude of Cost Premium
The difference between the evaluated costs of Raytheon’s and Sotera’s
proposals ($11,258,505 and $10,325,671, respectively) was documented in the
Army’s re-evaluation of proposals as a difference of 8.3%. AR at 9475, 9486-87.
Sotera does not accuse the Army of any math errors in comparing the evaluated
costs of proposals. Nor does Sotera state that it is per se irrational for the Army to
pay an approximately 9% cost premium for a contract of this size and type.
Instead, Sotera argues that the Army downplayed, minimized and mischaracterized
the cost premium it would pay for Raytheon’s proposal. Pl.’s Mot. at 28-30.
Plaintiff argues that the SSAC’s use of the words “minor” and “slight” to describe
the cost premium constituted arbitrary or irrational decision-making. Id. at 30.
The court finds that the SSAC was not irrational in its description of the
cost premium associated with Raytheon’s proposal. The costs of Raytheon’s and
Sotera’s proposals were properly measured pursuant to the evaluation criteria of
the solicitation and were presented in an accurate fashion. The adjectives used to
describe the cost premium were neither obviously inaccurate nor misleading
because they were accompanied by the actual evaluated costs of the proposals and
the percentage difference between them. Further, the SSA did not adopt the
adjectives that plaintiff finds objectionable.16 See AR at 9486-87; Def.’s Reply at
16 n.11. For all of these reasons, plaintiff has failed to show that the Army’s
assessment of the magnitude of the cost premium it would pay for Raytheon’s
proposal was arbitrary or capricious.
B. Adequate Documentation of the Trade-Off Decision
16
/ The court did not rely on post-hoc rationalizations offered by the SSA during Sotera’s
GAO protest, AR at 12545-47, for any purpose.
41
Plaintiff contends that the SSA failed to provide the required documentation
of his independent judgment and rationale for choosing Raytheon’s proposal for
the EWPMT project. See Pl.’s Mot. at 30-31 (relying in particular on FAR 15.308
and cases discussing the SSA’s documentation responsibilities). Plaintiff also
argues that a trade-off decision must be especially well-documented when, after
re-evaluating the same proposals, an agency cancels an award to one offeror so as
to award the contract to another. See Pl.’s Reply at 27 (“[T]he Army did not
adequately document the source selection decision because the SSA failed to
explain why he changed his mind.” (citing Caddell Constr. Co. v. United States,
111 Fed. Cl. 49, 100 (2013))). Plaintiff’s arguments fail to persuade, however,
because the SSA’s decision in this case satisfies the requirements of FAR 15.308.
The court notes, too, that Caddell does not identify a heightened standard for
documentation when an SSA changes his mind as to contract award. See 111 Fed.
Cl. at 105-110 (thoroughly examining the requirements of FAR 15.308 and not
discussing the circumstances of an SSA changing his mind as to an award
decision).
FAR 15.308 simply states that:
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 selection decision must be documented,
that documentation need not quantify the tradeoffs that
led to the decision.
The SSA’s decision in this case fully meets these requirements. AR Tab 62. In
addition, as the government and Raytheon argue, nothing in FAR 15.308 can be
interpreted as heightening the documentation requirement for an award decision
based on a re-evaluation of proposals, as opposed to an initial evaluation of
proposals. Def.’s Mot. at 40; Raytheon’s Mot. at 42. The court also distinguishes
42
the procurement documentation in this case from protests where the source
selection document failed to explain a trade-off/best value award which paid a cost
premium (or refused to pay a cost premium) for a more highly ranked proposal.
See Caddell, 111 Fed. Cl. at 105-10 (discussing cases). Because the SSA’s trade-
off rationale and best value award decision are adequately documented under both
FAR 15.308 and this court’s jurisprudence, the court cannot sustain Sotera’s
protest on this ground.17
C. Best Value Award Decision Rationally Weighed the Technical
Advantages of Raytheon’s Proposal
Plaintiff disagrees with various aspects of the re-evaluation of Raytheon’s
and Sotera’s proposals, and suggests that a rational evaluation of the differences
between these two proposals would not have found that Raytheon’s proposal
merited a cost premium of approximately 9%.18 See Pl.’s Mot. at 31 (“The
evaluated ‘advantages’ of Raytheon’s proposal did not rationally justify
payment of Raytheon’s substantial cost premium.”); Pl.’s Reply at 28 (“None of
the alleged attributes of Raytheon’s proposal can rationally justify a 9% cost
premium.”). The court notes that its review of technical evaluation ratings and
best value award decisions is deferential to the expertise and discretion of
procurement officials. See supra. The court has considered each of plaintiff’s
arguments regarding technical re-evaluation errors but limits its discussion here to
the principal arguments raised by Sotera.
17
/ There is ample authority which recognizes that a re-evaluation of proposals may
rationally result in a different award outcome. See, e.g., Vanguard Recovery Assistance v. United
States, 101 Fed. Cl. 765, 786 (2011) (“[A]n agency has the right to change its mind in the course
of an evaluation if it has good reason.”) (citations omitted); Marcola Meadows VA LLC,
B-407078.2, 2013 CPD ¶ 141, 2013 WL 2468753, at *7 (Comp. Gen. June 4, 2013) (“[I]t is
implicit that a reevaluation can result in different findings and conclusions.”) (citations omitted).
18
/ Sotera relies on a declaration submitted with its reply brief for an analysis of the
relative merits of its and Raytheon’s proposals. See Pl.’s Reply at 28. The court did not consider
this declaration because the resolution of plaintiff’s challenge to the re-evaluation of proposals
was adequately informed by the AR and the parties’ arguments on the record. See Axiom, 564
F.3d at 1380 (restricting supplementation of the administrative record to circumstances where
omission of the materials would frustrate judicial review).
43
Plaintiff argues that the re-evaluation should not have preferred Raytheon’s
SWIFT software development process over Sotera’s Agile Architecture System
Engineering (A2SE) software development process. Pl.’s Mot. at 32-35. In
essence, Sotera suggests that its process was of equivalent value. Id. at 33. The
court has reviewed the SSEB’s re-evaluation of the Management sub-factor, AR at
9259-65, 9319-23, and concludes that the Army could rationally prefer SWIFT
over A2SE.
Plaintiff also complains that Raytheon’s CMMI level 5 certification for
software development processes, as opposed to Sotera’s CMMI level 3
certification, would not justify the cost premium that the Army would pay for
Raytheon’s proposal.19 Pl.’s Mot. at 35. At most, Sotera argues, CMMI level 5
certification could provide only a “relatively minor advantage.” Id. At oral
argument, plaintiff’s counsel attempted to explain the difference between level 5
and level 3 in CMMI certification:
[I]f you choose to become Level 5 rated, as Raytheon
has, you’re essentially adopting procedures. You’re
subjecting yourself to layers of additional procedure,
multiple processes and – I mean, think of it as sort of
being a bureaucratic way. I’m not trying to be critical of
it, but it’s additional layers of review that creates
enormous expense. This is – one of the reasons why
Raytheon’s hourly rates are substantially higher than
Sotera’s. Level 5 contractors have higher rates and the
Government has to pay for it.
A lot of companies like Sotera, they don’t want Level 5
or at least they don’t need it if the customers don’t want
it. And they’ve had customers that have told them, we
don’t want Level 5. We want to pay for Level 3 because
Level 5’s not necessary.
19
/ Raytheon relied on an exhibit attached to its reply brief to explain the differing levels
of CMMI certification. The court did not consider this exhibit because the AR and the parties’
arguments regarding CMMI fully aired the issue. See supra nn.12, 18.
44
Tr. at 25. It is undisputed that during the re-evaluation much more attention was
paid to CMMI certification levels than occurred in the Army’s first evaluation of
proposals. Compare AR at 8047-48, with id. at 9479. The court has considered
the parties’ arguments regarding the weight accorded Raytheon’s CMMI level 5
certification, and finds that this aspect of Raytheon’s proposal could rationally be
used as a discriminator in determining the best value EWPMT proposal.
The court has discerned no error which invalidates the results of the re-
evaluation of Raytheon’s proposal. In addition, although Sotera argues that its
proposal was erroneously denied strengths and improperly viewed as inferior to
Raytheon’s proposal, the court does not find the re-evaluation of Sotera’s proposal
to have been arbitrary or capricious. Even though the court agrees with plaintiff’s
contention that this was a close competition for the EWPMT contract, the Army’s
best value award decision was rational. Given the deferential standard of review
applicable here, the Army’s award decision must stand.
CONCLUSION
In the end, plaintiff has not met its burden to show that the Army’s best
value award decision was arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law. Sotera’s protest cannot be sustained.
Because plaintiff has not succeeded on the merits of its protest, the court need not
consider whether the standard for injunctive relief has been met in this case.
Accordingly, it is hereby ORDERED that
(1) Plaintiff’s Motion for a Preliminary Injunction, filed April 1, 2014, is
DENIED;
(2) Plaintiff’s Motion for Judgment on the Administrative Record, filed
May 2, 2014, is DENIED;
(3) Plaintiff’s Motion to Amend the Protective Order, filed May 6, 2014,
is WITHDRAWN;
(4) Defendant’s and Intervenor-Defendant’s Motions to Dismiss,
included with their motions for judgment on the administrative record
45
filed May 19, 2014, are GRANTED in part, as to Count III of the
Amended Complaint, and DENIED in part, in all other respects;
(5) Defendant’s and Intervenor-Defendant’s Cross-Motions for Judgment
on the Administrative Record, filed May 19, 2014, are GRANTED;
(6) Plaintiff’s Motion to Withdraw Motion to Amend the Protective
Order, and Unopposed Motion for Permission to Release Document
Outside of the Protective Order, filed June 26, 2014, are GRANTED;
(7) The Clerk’s Office is directed to ENTER final judgment in favor of
defendant and intervenor-defendant, DISMISSING the complaint
with prejudice;
(8) On or before August 11, 2014, counsel for the parties shall CONFER
and FILE with the Clerk’s Office a redacted copy of this opinion,
with any material deemed proprietary marked out and enclosed in
brackets, so that a copy of the opinion can then be prepared and made
available in the public record of this matter; and
(9) Each party shall bear its own costs.
/s/Lynn J. Bush
LYNN J. BUSH
Senior Judge
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