Integrated Finance & Accounting Solutions, LLC v. United States ( 2022 )

In the Cited States Court of Federal Claims
No. 22-581
Filed: August 5, 2022
Re-issued: August 16, 2022!
INTEGRATED FINANCE & ACCOUNTING
SOLUTIONS, LLC
Plaintiff,
V.
THE UNITED STATES,
Defendant,
and
ENGENIUS CONSULTING GROUP, INC.,
Defendant-Intervenor.
Nem Nee Neer eee nee nee Ne nee ene eee nee eee ne nee ee nee ee”
Thomas A. Coulter, Norton Rose Fulbright, US LLP, Washington, DC, for Plaintiff.
Evan Wisser, Department of Justice, Civil Division, Commercial Litigation Branch, Washington,
DC, with Douglas K. Mickle, Patricia M. McCarthy, and Brian M. Boynton, Department of
Justice, Washington, DC, and Susan M. Chagrin, Defense Information Systems Agency, Office
of the General Counsel, Fort Meade, Maryland.
John D. Levin, Maynard Cooper & Gale, P.C., Huntsville, Alabama, for Defendant-Intervenor
with W. Brad English and Emily J. Chancey, of counsel.
OPINION AND ORDER
MEYERS, Judge.
Integrated Finance & Accounting Solutions, LLC protests the award of a contract to
enGenius Consulting Group, Inc. to provide various finance and budgeting support services to
' The Court initially filed this opinion under seal to allow the Parties to propose redactions. The
Court has incorporated the proposed redactions and makes them with bracketed ellipses (“[
... |’) below.
the Department of Defense’s Office of the Chief Financial Officer. Integrated Finance had been
the incumbent on two contracts that DoD combined in the challenged procurement and
complains that DoD’s conduct of this procurement effectively eliminated its incumbent
advantage in its technical and past performance evaluations, which led to a faulty best value
determination and contract award. Because the Court finds that DoD did not do anything
arbitrary and capricious in its evaluations or in making its award decision, the Plaintiff's motion
for judgment on the administrative record is denied and the Government’s and Intervenor’s
cross-motions for judgment on the administrative record are granted.
I. Background
A. Solicitation
The Defense Information Systems Agency (“DISA” or “Agency”) issued Request for
Quotations No. 612100003 (“RFQ”) seeking quotations to support the Office of the Chief
Financial Officer (““OCFO”) at the Agency in “Budget/Cost/Financial Analysis, Financial
Management and Technical Support Services.” ECF No. 25-1 at AR105.” DISA amended the
RFQ four times. ECF No. 31 at AR279; ECF No. 25-3 at 941.7 The RFQ sought to “merge all
of the OCFO’s budget/cost/financial analysis, financial management, and technical support
requirements . . . into one contract.” ECF No. 25-1 at AR15, 125. Previously, this work was
spread out across several different centers across the Agency. /d. at AR125. But after a
reorganization of DISA, it decided to group all this work together under a single contract vehicle.
ECF No. 25-3 at AR939. The RFQ was set aside for small business under a General Services
Administration (GSA) Multiple Award Schedule and conducted utilizing the ordering procedures
for Federal Supply Schedules (“FSS”) in FAR § 8.405.4 The RFQ provided for a one-year base
period and four one-year option periods, plus an option to extend by up to six months. ECF No.
31 at AR279.
The Agency listed the incumbent contractor as Integrated Finance and Accounting
Solutions, LLC (“IFAS”). /d. at AR279.
B. Agency’s Methods of Evaluating Proposals
* The Government inadvertently omitted certain documents from the administrative record,
which it subsequently filed. See ECF No. 30. Asa result, the record is split between ECF Nos.
25 and 31. The Court provides the ECF Number ahead of record cites to ease review.
3 The amendments only address specific changes to provisions but do not include redlines to the
entire RFQ. Therefore, the Court will cite to the most recent amendment that includes the
provision at issue. For example, Amendment 4 changed the past performance evaluation criteria,
so the Court cites to Amendment 4 for all arguments regarding those provisions. Other
provisions remained unchanged throughout, so the Court will refer to the initial RFQ for those
provisions because that is the most recent version of the relevant language.
* The Federal Acquisition Regulations (“FAR”) are codified in Title 48 of the Code of Federal
Regulations.
The RFQ provided for award to “the schedule contractor whose quotation is determined
to represent the overall best value to the Government using a best value tradeoff evaluation
process.” /d. at AR289. The RFQ stated DISA would evaluate proposals on three factors: (1)
Technical/Management Approach; (2) Past Performance; and (3) Price. Technical/management
approach was more important than past performance, and past performance combined with
technical/management approach was more important than price. /d.
1. Technical/Management
The technical/management factor had two subfactors: (a) technical; and (b) management.
The technical subfactor was more important than the management subfactor. /d. (“In Factor 1:
Technical/Management Approach, each Subfactor is listed in order of descending importance.”).
a) Technical
The technical subfactor evaluated the contractor’s approach to accomplishing three
subtasks under Section 6.2 of the Performance Work Statement (PWS): Subtasks 8, 9, and 10.
Id. at AR289-90. The technical subfactor also evaluated the contractor’s approach to identifying
risks, and how the contractor would solve, mitigate, or reduce those risks. /d. Subtask 8
concemed Financial Program Support:
The Government will evaluate the schedule contractor’s approach
to ensuring the monthly server, storage and mainframe rate-based
billing and bi-monthly mainframe rate-based billing is processed
95% of the time through the inventory asset management system and
mainframe inventory control system appropriately and IAW DoD
7000.14-R financial management business rules and policies. The
Government will consider whether the schedule contractor’s
approach will meet or exceed the requirements in Activity 1 and
Activity 2 of PWS 6.2.8.
Id.
Subtask 9 concerned the Business System Support:
The Government will evaluate the schedule contractor’s approach
to provide the technical knowledge and support necessary to
maintain and administer complex financial coding structures within
Defense Working Capital Funds (DWCF) business systems for
inventory management systems, mainframe inventory control
systems, proposal pricing systems (PPSs), and DWCF budgeting
systems. The Government will consider whether the schedule
contractor’s approach will meet or exceed the requirements in PWS
6.2.9 Activity 1.
Id. at AR289-90.
b) Management
The management subfactor required the quoters to demonstrate their approach to staffing
and training, and place of performance management. Jd. at AR290-91. DISA would evaluate
the staffing and training approach on: (1) whether the quoter’s approach provided fully trained
and qualified personnel; (2) the quoter’s plan to fill vacant positions and prevent lapses in key
personnel; and (3) whether the quoter’s approach provided a competent staff that could satisfy
the PWS. Jd. at AR290. The RFQ also required the quoters to include their approach to
managing geographically disparate places of performance, relationship between onsite workers
and corporate, and how it would manage subcontractors. Jd. at AR291. DISA would evaluate
the effectiveness of the proposed management approach, which considered the “ability to meet or
exceed the stated minimum solicitation requirement, and provide[] a sufficient level of oversight
....” Id. “Sufficient,” in this context, meant the quoter demonstrated the ability to meet the
needs of the Government in the PWS. Jd. at AR291.
DISA assigned each of the technical subfactors a color which corresponded to a specific
rating. Jd. at AR289. These ratings were:
Table 2: Color Scheme for the Combined Technical / Management and Risk Ratings
Color Rating Description
Quotation indicates an exceptional approach and understanding of the
Outstanding requirements and contains multiple strengths, and risk of unsuccessful
performance is low.
Quotation indicates a thorough approach and understanding of the
Good requirements and contains at least one strength, and risk of unsuccessful
performance is low to moderate.
Quotation meets requirements and indicates an adequate approach and
Acceptable understanding of the requirements, and risk of unsuccessful performance
is no worse than moderate.
. otation has not demonstrated an adequate approach and understandin
Marginal Quotatior nas t monsiral “q Ppr oes 8
of the requirements, and/or risk of unsuccessful performance is high.
Quotation does not meet requirements of the solicitation, and thus, contains
Unacceptable one or more deficiencies, and/or risk of unsuccessful performance is
unacceptable. Quotation is unawardable.
ECF No. 25-1 at AR186.
2. Past Performance
The RFQ allowed quoters to submit “no more than 3” past performance efforts for
consideration. To qualify, some portion of each must have been performed within the last three
years prior to the submission deadline, and any current effort must have at least six months of
performance completed. Jd. at AR291. DISA’s evaluation resulted in two ratings for each prior
effort. First, DISA rated the relevance of the effort. Then, DISA rated the performance quality
of each effort. Based on these two ratings, DISA gave each quoter an overall confidence rating.
a) Relevance of past performance.
DISA determined each past performance effort’s relevance according to the following
criteria:
Table 4: Past Performance Relevancy
Ratings
Rating Definition
Present/past performance effort involved essentially the same scope
VERY RELEVANT and magnitude of effort and complexities this solicitation requires.
RELEVANT Present/past performance effort involved similar scope and magnitude
of effort and complexities this solicitation requires.
SOMEWHAT RELEVANT Present/past performance effort involved some of the scope and
magnitude of effort and complexities this solicitation requires.
NOT RELEVANT Present/past performance effort involved little or none of the scope
and magnitude of effort and complexities this solicitation requires.
ECF No. 25-1 at AR187. Past performance efforts with a higher relevance rating “may be
afforded greater weight than those with lower relevance.” /d. at AR292 (emphasis added).
b)
Quality of past performance.
After determining the relevance of a schedule contractor’s past performance, DISA then
evaluated the quality of that past performance according to the criteria below:
Table 5. Past Performance Quality
Ratings
Quality Assessment Rating
Description
EXCEPTIONAL (E)
During the contract period, contractor performance meets or met
contractual requirements and exceeds or exceeded many to the
Government's benefit. The contractual performance of the element or
sub-element being assessed was accomplished with few minor
problems for which corrective actions taken by the contractor were
highly effective.
VERY GOOD (VG)
During the contract period, contractor performance meets or met
contractual requirements and exceeds or exceeded some to the
Government's benefit. The contractual performance of the element or
sub-element being assessed was accomplished with some minor
problems for which corrective actions taken by the contractor were
effective.
SATISFACTORY (S)
During the contract period, contractor performance meets or met
contractual requirements. The contractual performance of the element
or sub-clement being assessed contained some minor problems for
which corrective actions taken by the contractor appear or were
satisfactory.
MARGINAL (M)
During the contract period, contractor performance does not or did
not meet some contractual requirements. The contractual
performance of the element or sub-element being assessed reflects a
serious problem for which the contractor has not yet identified
corrective actions. The contractor's proposed actions appear only
marginally effective or were not fully implemented.
UNSATISFACTORY (U) During the contract period, contractor performance does not or did not
meet most contractual requirements and recovery in a timely manner is
not likely. The contractual performance of the element or sub-clement
contains serious problem(s) for which the contractor's corrective actions
appear or were ineffective.
NOT APPLICABLE (N) Unable to provide a rating. Contract did not include performance for this
aspect. Do not know.
ECF No. 25-1 at AR187.
c) Performance confidence assessment.
Based on the relevance and quality ratings, DISA made an overall “Performance
Confidence Assessment.” /d. at AR118. DISA performed this assessment according to the
following criteria:
TABLE 6: Performance Confidence
Assessments
Rating Description
Based on the Schedule Contractor's recent/relevant performance
SUBSTANTIAL CONFIDENCE record, the Government has a high expectation that the Schedule
Contractor will successfully perform the required effort.
Based on the Schedule Contractor’s recent/relevant performance record,
SATISFACTORY CONFIDENCE the Government has a reasonable expectation that the Schedule
Contractor will successfully perform the required effort.
No recent/relevant performance record is available or the Schedule
Contractor’s performance record is so sparse that no meaningful
confidence assessment rating can be reasonably assigned.
INEUTRAL CONFIDENCE
Based on the Schedule Contractor’s recent/relevant performance
record, the Government has a low expectation that the Schedule
LIMITED CONFIDENCE Contractor will successfully perform the required effort.
Based on the Schedule Contractor’s recent/relevant performance record,
NO CONFIDENCE the Government has no expectation that the Schedule Contractor will be
able to successfully perform the required effort.
Td. at AR188.
3. Price
DISA evaluated each quote’s price for reasonableness and completeness. ECF No. 31 at
AR293. DISA used FAR § 15.404’s cost and price analysis techniques to determine whether the
price was reasonable. ECF No. 25-1 at AR118. The completeness requirement ensured the quote
correctly calculating figures and presented prices in a clear and useful format. ECF No. 31 at
AR293.
C. Submission and Evaluation of Proposals
DISA received seven quotes in response to the RFQ. ECF No. 25-3 at AR941. Four of
these were ineligible; one because the price proposal was incomplete, and three because they
received a red/unacceptable rating in the technical subfactor. Jd. at AR942, 969. The Technical
Evaluation Board (“TEB”) rated the remaining quotes as follows:
Technical/Management Approach Past Peroumance Price Eval
. : Total Eval % Difference | Proposal
Offeror | Subfactor 1 Rating | Subfactor 2 Rating Confidence Price to IGCE Complete
enGenius Neutral $32,519,780.08 -4% Yes
EBI Yellow/Marginal Neutral $34,972,372.28 3% Yes
IFAS Satisfactory $36,138,287.36 7% Yes
Id. at AR969.
1. IFAS’s Evaluation
a) Technical/Management
The TEB found IFAS’s quote for both the technical and management subfactors
demonstrated an “adequate approach and understanding of the requirements” with the risk of
unsuccessful performance being no less than moderate. Jd. at AR9S51.
DISA assessed IFAS’s technical proposal as acceptable with zero strengths, one
weakness, zero significant weaknesses, zero deficiencies, and zero uncertainties. Jd. at AR951,
972. The weakness was due to IFAS’s approach to PWS Section 6.2.9.1.c Subtask 9, which did
not demonstrate how IFAS would ensure its business systems were administered in accordance
with DoD 7000.14-R Vol. 10 DWCF. Jd.
DISA also found IFAS’s management proposal to be acceptable with zero strengths, zero
weaknesses, zero significant weaknesses, zero deficiencies, and zero uncertainties. Jd. at AR952,
972.
b) Past performance
IFAS submitted three recent references for evaluation. Jd. at AR958. The Past
Performance Evaluation Board (“PPEB”) rated IFAS’s past performance as follows:
Confidence Reference Recency Relevance Quality
1 Yes Relevant Satisfactory
Satisfactory 2 Yes Relevant Very Good
3 Yes Relevant Very Good
Id. at AR954. The basis for these ratings is as follows.
(1) — Evaluation of IFAS’s first reference
The PPEB determined that the first reference corresponded to 85% of the work under
PWS Tasks 6.1 and 6.2. /d. at AR958. The PPEB also recognized that the annual value for the
first reference was $3,002,048.42, which was less than the range the PWS said would be more
relevant. ECF No. 31 at AR292; ECF No. 25-3 at AR959. The PPEB reviewed the Contractor
Performance Assessment Reporting System (““CPARS”) evaluation and rated the performance
quality as Satisfactory. ECF No. 25-3 at AR960.
(2) Evaluation of IFAS’s second reference
The PPEB determined that the second reference was “similar scope and magnitude” and
corresponded to 79% of the work that was required by PWS Task 6.2. /d. at AR959. The annual
value for the second reference was $2,787,752.35, which was also below the $4 million threshold
in the PWS. ECF No. 31 at AR292; ECF No. 25-3 at AR959. The PPEB also reviewed the
CPARS for this reference and determined that IFAS exceeded the PWS requirements in quality,
schedule, management, and regulatory compliance, to the benefit of the Government.” ECF No.
25-3 at AR960. This earned IFAS a “Very Good” quality rating for the second reference. /d. at
AR9S58.
(3) Evaluation of IFAS’s third reference
Finally, the PPEB determined that the third reference was “similar scope and magnitude”
of the PWS and corresponded to 79% of the work that was required by PWS Task 6.2. /d. at
AR959. The annual value for the third reference was $2,787,752.35, which was again below the
$4 million threshold in the PWS for a past performance to be more relevant. /d. at AR959-60.
IFAS earned a “Very Good” on the quality assessment because, like the second reference, IFAS
exceeded the PWS requirements in quality, schedule, management, and regulatory compliance to
the benefit of the Government. /d. at AR958, 960.
c) Price
IFAS’s evaluated price of $36,138,287.36 was 7% higher than the Independent
Government Cost Estimate (“IGCE”). /d. at AR968.
2. enGenius’s Evaluation
a) Technical/Management
The TEB found that enGenius’s quote for both the technical and management subfactors
demonstrated an “adequate approach and understanding of the requirements” with the risk of
unsuccessful performance being no less than moderate. /d. at AR952-53.
DISA rated enGenius’s technical proposal Acceptable with zero strengths, zero
weaknesses, zero significant weaknesses, zero deficiencies, and one uncertainty. /d. at AR952,
972. The uncertainty was due to enGenius “mistakenly including a diagram supporting Server
and Storage Billing through ITSM when discussing in its narrative Enterprise Service billing.”
Id. at AR952.
DISA rated enGenius’s management proposal as Acceptable with zero strengths, two
weaknesses, zero significant weaknesses, zero deficiencies, and zero uncertainties. Jd. at AR951,
972. The first weakness was for “not adequately describing the relationship between the
corporate administration and onsite administration.” Jd. at AR953. And the second weakness
was due to enGenius “not explicitly stating that it will use its Place of Performance Management
approach in the case of a contingency environment or while its employees are working from
home.” Jd.
b) Past performance
enGenius submitted three references, all of which had been performed within the past
three years as required by the RFQ. Jd. at AR962. The PPEB rated enGenius’s past performance
as follows:
Confidence Reference Recency Relevance Quality
1 Yes Somewhat Relevant | Very Good
Neutral 2 Yes Somewhat Relevant | Very Good
3 Yes Somewhat Relevant | Exceptional
Id. at AR954. The basis for these ratings is below.
(1) Evaluation of enGenius’s first reference
DISA found that enGenius’s first reference correlated to some work under PWS Tasks
6.1 and 6.2. Jd. at AR962. Although the PPEB concluded that enGenius provided “scare
information” as it relates to Task 6.1, the PPEB rated enGenius’s first reference Somewhat
Relevant because it involved “some of the scope and complexities this solicitation requires . . . .’
Id. As for enGenius’s quality of performance, the PPEB reviewed a CPARS which described
IFAS’s performance on the first reference as “exemplary” and how IFAS was able to provide an
overall benefit to the Government despite the impact of the COVID-19 pandemic. Jd. at AR963.
The CPARS review also stated enGenius was highly effective in communicating with the
government which resulted in “increased government efficiency and responsiveness to every
changing environment.” Jd. Finally, the review indicated that enGenius operated as a “seamless,
one-badge entity and does a very good job of managing its subcontractors and integrating the
workforce into a single, effective unit.” Jd. Thus, the PPEB assigned a Very Good rating for
enGenius’s performance quality of the first reference. Jd. at AR961.
>
(2) Evaluation of enGenius’s second reference
The PPEB recognized that the magnitude of enGenius’s second reference was less than
$4M-$6M per year. Jd. at AR962. Nevertheless, enGenius performed work in the General Fund
and Defense Working Capital Fund which correlated to some of the PWS tasks. Thus, DISA
assessed a Somewhat Relevant rating for the second reference. Jd. As for quality, the PPEB
determined that “‘although there are few comments made for each rating element in addition to
the rating chosen. Based on the above information with no other issues being identified, leads
the reviewed to accept this PPW’s overall rating of Excellent.” /d. at AR963. This resulted in
the PPEB rating enGenius’s second reference as Very Good.
(3) Evaluation of enGenius’s third reference
Finally, the PPEB assigned a Somewhat Relevant rating to enGenius’s third reference
despite enGenius providing “scarce information in requirements for PWS Task 6.2.” Jd. at
AR961-62. The PPEB justified this rating because “the requirements for this effort include both
Task 6.1 and Task 6.2 in meeting OCFO mission sets... .” /d. at AR963. The PPEB reviewed
a CPARS evaluation that lauded the performance of Koniag, a subcontractor enGenius proposed
to use in its quote, describing its performance as “Exceptional.” /d. at AR963-64. Koniag had
exceeded the contractual requirements to the Government’s benefit in the quality, schedule, and
management elements. /d. The PPEB, therefore, found the performance quality to be
Exceptional.
c) Price
Like IFAS, enGenius submitted a completed price quote that complied with the
solicitation. /d. at AR967. enGenius’s total evaluated price of $32,519,780.08 was 4% less than
the IGCE. /d. at AR967-68.
3. Comparison of IFAS and enGenius proposals and Contracting Officer’s
decision.
During its tradeoff analysis, DISA began by comparing enGenius to EBI, which
submitted the next higher priced acceptable quote. /d. at AR970. DISA found that EBI’s
technical subfactor proposal was better than enGenius’s, but that its management subfactor was
marginal and “had a high risk of unsuccessful performance.” /d. at AR971. In the end, DISA
concluded that EBI’s better technical subfactor proposal was not worth the extra management
risk and cost as compared to enGenius’s proposal and eliminated EBI from consideration.
DISA then turned to compare enGenius’s and IFAS’s proposals. In this tradeoff analysis,
DISA found that both IFAS and enGenius met the RFQ requirements, both provided adequate
approaches and understandings to those requirements, and the risk of unsuccessful contract
performance was no worse than moderate for both. /d. at AR973. Under the RFQ, however, the
Technical subfactor was more important than the Management subfactor. While neither
enGenius nor IFAS had any strengths in the combined Technical/Management approach, IFAS
did receive a weakness in the most important subfactor (Technical). According to DISA, “the
fact that enGenius had no flaws in its Subfactor 1 (Technical) approach is more important than
the fact that IFAS provided no flaws in its management approach.” /d.
DISA determined that past performance was a “distinguishing factor” between IFAS’s
and enGenius’s proposals. /d. To recap, IFAS received a Satisfactory confidence rating
meaning there was a “reasonable expectation that the Schedule Contractor will successfully
perform the required effort.” ECF No. 25-3 at AR973; ECF No. 25-1 at AR188. enGenius
received a Neutral confidence rating, meaning either there was “[n]o recent/relevant performance
record [was] available” or that the “Schedule Contractor’s performance record is so sparse that
10
no meaningful confidence assessment rating can be reasonably assigned.” ECF No. 25-1 at
AR188; ECF No. 25-3 at AR973. Despite the higher confidence rating, the contracting officer
concluded that “[t]he benefit realized by the Government in having a company with a higher
confidence rating is not worth a price premium of $3,618,507.28.” ECF No. 25-3 at AR973.
Further, the Agency noted that there were no other characteristics of IFAS’s proposal that
warranted paying the 11% price premium. /d. Thus, the Agency concluded that enGenius’s
quote was the best value to the Government. Jd.
D. Protest at GAO
Plaintiff filed a protest at GAO raising five arguments. First, that DISA “failed to
properly rate IFAS’s past performance.” ECF No. 25-5 at AR1320-25. Second, that DISA
evaluated IFAS’s quote improperly in its determinations of strengths and weaknesses while
failing to rigorously examine enGenius’s quote. /d. at AR1326-30. Third, that DISA failed to
adequately document its best-value tradeoff analysis and improperly employed a lowest-price
technically acceptable evaluation that overweighed price. /d. at AR1330-33. Fourth, that the
errors in DISA’s assessments of IFAS and enGenius’s proposals, and DISA’s failure to compare
the two quotes to each other, resulted in a flawed best-value determination. /d. at AR1333-34.
And fifth, that DISA improperly failed to conduct a price realism analysis given enGenius’s
quoted price and lack of relevant past performance. /d. at AR1334-35. GAO denied IFAS’s
protest. ECF No. 25-6 at 2455-64.
IL. Jurisdiction and Standard of Review
A. Jurisdiction
The Tucker Act provides this Court with jurisdiction over post-award challenges to
contract awards brought by an interested party. Vectrus Sys. Corp. v. United States, 154 Fed. Cl.
29, 40 (2021) (citing Sys. Application & Techs., Inc. v. United States, 691 F.3d 1374, 1380-81
(Fed. Cir. 2012)). To qualify as an “interested party” a protestor must be an actual or prospective
bidder who has a direct economic interest in the procurement. /d. (citations omitted). Actual or
prospective bidders have a direct economic interest in the procurement if they “suffered a
competitive injury or prejudice as a result of an alleged error in the procurement process.” /d.
(citations omitted). Competitive injury or prejudice can be shown by demonstrating that the
plaintiff “would have had a ‘substantial chance’ of winning the award ‘but for the alleged error
in the procurement process.’” /d. (citing Weeks Marine, Inc. v. United States, 575 F.3d 1352,
1359 (Fed. Cir. 2009)).
B. Standard of Review
This Court reviews post-award bid protests in accordance with the standards set forth in
the Administrative Procedures Act (“APA”), 5 U.S.C. § 706. See 28 U.S.C. § 1491(b)(4). It is
clear that “the Court should not substitute its judgment to assess the relative merits of competing
proposals in a Government procurement.” Crowley Tech. Memt., Inc. v. United States, 123 Fed.
Cl. 253, 260 (2015) (citations omitted). Rather, “the inquiry is whether the agency’s action was
arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law and, if so,
whether the error is prejudicial.” Glenn Def, Marine (Asia), PTE Lid. v. United States, 720 F.3d
11901, 907 (Fed. Cir. 2013). Thus, “a bid award may be set aside if (1) the procurement official’s
decision lacked a rational basis or (2) the procurement procedure involved a violation of
regulation or procedure.” DynCorp Int'l, LLC v. United States, 10 F.4th 1300, 1308 (Fed. Cir.
2021) (citations and alterations omitted) (quoting WellPoint Mil. Care Corp. v. United States,
953 F.3d 1373, 1377 (Fed. Cir. 2020)).
This Court’s review in bid protests under the arbitrary and capricious standard is “highly
deferential.” DynCorp Int’l, 10 F.4th at 1315 (quoting Glenn Def., 720 F.3d at 907). Because of
this high deference, an “explicit explanation is not necessary .. . where the agency’s decisional
path is reasonably discernable.” Jd. (quoting Wheatland Tube Co. v. United States, 161 F.3d
1365, 1370 (Fed. Cir. 1998)). And the Court will “‘sustain an agency action evincing rational
reasoning and consideration of relevant factors.’” Jd. (quoting Advanced Data Concepts, Inc. v.
United States, 216 F.3d 1054, 1058 (Fed. Cir. 2000)). This being the standard, Plaintiff “‘bears a
heavy burden of showing that the award decision had no rational basis.’” Allied Tech. Grp., Inc.
v. United States, 649 F.3d 1320, 1326 (Fed. Cir. 2011) (quoting Centech Grp., Inc. v. United
States, 554 F.3d 1029, 1037 (Fed. Cir. 2009)). Plaintiff's burden increases when greater
discretion is afforded to the contracting officer. .g., Glenn Def, 720 F.3d at 907-08 (“‘[T]he
greater the discretion granted to a contracting officer, the more difficult it will be to prove the
decision was arbitrary and capricious.’”) (quoting Burroughs, Corp. v. United States, 223 Ct. Cl.
53, 64 (1980)).
Il. Discussion
A. IFAS’s challenges to DISA’s evaluation of its quote.
1. Past performance rating.
IFAS challenges DISA’s relevancy evaluation of its past performance, claiming that it
was error for the Agency to rate IFAS’s first two past performance projects,° which are
predecessor contracts to the RFQ, as “Relevant” rather than “Very Relevant.” ECF No. 28-1 at
14-18. According to the RFQ, “[s]imilar scope efforts should demonstrate as many of the task
area types included in the PWS (either individually or in combination thereof) as possible.” ECF
No. 31 at AR292 (emphasis added). IFAS contends that “the Agency failed to consider that ‘in
combination thereof,’ IFAS covered almost every single task area between its two contracts.”
ECF No. 28-1 at 15 (citing ECF No. 31 at AR292). These two contracts, according to IFAS,
account for 89.9% of the total work under the current solicitation. /d. at 14. And if they were
combined, IFAS says a higher relevancy rating would have been assigned which would have
increased their confidence rating in the second factor from “Satisfactory Confidence” to
“Substantial Confidence.” /d. at 14-15. The Government disagrees and contends that the “in
combination thereof” simply states that past performance efforts under a contract need not match
up one-to-one with PWS tasks. In other words, one element of prior work may relate to multiple
PWS tasks and vice versa (multiple prior work elements could relate to one PWS task). ECF No.
> Although IFAS submitted three past performance references, this protest challenges only
DISA’s evaluation of the first two—the predecessor contracts. References to “both” contracts
are to IFAS’s past performance references one and two.
12
35 at 4. And the Government insists that the sentence including “in combination thereof” “has
nothing to do with combining multiple past performance references.” /d.
An agency’s evaluation of an offeror’s past performance is “‘entitled to great
deference.’” /d. (quoting A/ Andalus Gen. Contracts Co. v. United States, 86 Fed. Cl. 252, 264
(2009)). There is good reason for such deference because “it is the agency that must bear the
burden of any difficulties resulting from a defective evaluation” nor will a court “substitute [its]
judgment for a reasonably based past performance rating.” DynCorp Int’l, 139 Fed. Cl. at 489-
90.
While the RFQ is not a model of clarity on this issue, the Government’s reading better
comports with the RFQ’s text than IFAS’s. The Court begins with the provision that IFAS relies
upon to argue that DISA could and should have combined its two prior contracts during the past
performance evaluation. In its entirety, the provision states:
Similar scope contracts may include efforts in a variety of sizes, a
variety of disciplines, and varying degrees of technical complexity.
Similar scope efforts should demonstrate as many of the task area
types included in the PWS (either individually or in combination
thereof) as possible.
ECF No. 31 at AR292. While the parties focus their arguments on the second sentence, the
Court cannot interpret it without reference to the first sentence. This is because the first sentence
provides a key piece of information about “efforts”—they are “include[d]” within “contracts.”°
This makes interpreting the second sentence rather easy. It does not say that “contracts” should
demonstrate PWS tasks either individually or in combination, it says that “efforts” should do so.
Thus, when it talks about combining “efforts” to demonstrate as many PWS tasks as possible, the
RFQ is not stating that DISA would consider multiple contracts together. Rather, the RFQ says
DISA will combine various work efforts (what the Government terms “elements” in its briefing)
within a contract, if necessary, to demonstrate relevance to specific PWS tasks.
This reading is bolstered by the RFQ’s provisions regarding the added relevance of
certain contracts: “Contracts/Orders that provided multiple types of similar scope support for
durations of multiple years will be more relevant.” ECF No. 31 at AR292. Among the contracts
that may receive increased relevance were:
Contracts/orders with a total value inclusive of the base period and
all options in excess of $20M or with an average annual value (per
12 month period of performance) of $4M-$6M. Either: (1) a single
contract/order or (2) multiple orders on the same IDIQ or BPA may
° There are other provisions that use the term “effort” in a manner that is arguably inconsistent
with the Court’s reading, e.g., the next provision that states that “efforts” include
“contracts/orders.” ECF No. 31 at AR292. To the extent this usage creates an ambiguity, it is
patent and IFAS cannot challenge it now. Blue & Gold Fleet, L.P. v. United States, 492 F.3d
1308, 1313 (Fed. Cir. 2007).
13
be combined to reach the total $20M contract value or annual $4M-
$6M value.
Id. By its plain terms, the RFQ provided that the only time DISA would combine contracts for
added relevance was when they were multiple orders on the same IDIQ or BPA contract.
With this understanding of the RFQ, IFAS’s arguments fail. IFAS argues that DISA
should have combined its predecessor contracts for review, which would have found them more
relevant. ECF No. 28-1 at 15-17. But it is undisputed that neither of IFAS’s predecessor
contracts meet the $20M total or $4M-$6M annual value thresholds. That meant the RFQ
prohibited combination of the contracts for relevance purposes. Because this limitation was clear
on the face of the RFQ, IFAS cannot challenge it now. Blue & Gold Fleet, L.P. v. United States,
492 F.3d 1308, 1313 (Fed. Cir. 2007).
This prohibition also readily distinguishes this case from Seattle Sec. Servs., Inc. v.
United States, 45 Fed. Cl. 560 (2000), the primary case upon which IFAS rests its argument. In
Seattle Security, the plaintiff served as the incumbent contractor on two contracts to provide
security to federal buildings in Washington and Oregon, which were consolidated into the
contract at issue in that case. /d. at 562. There, Judge Allegra relied on the fact that nothing in
the RFP prevented the agency from combining the two predecessor contracts for review. /d. at
568. This RFQ does prohibit such combination. Also, the contracting officer in Seattle Security
did not evaluate one of the predecessor contracts at all, which prejudiced the plaintiff under the
evaluation regime in that case. /d. at 567-68. Here, DISA evaluated both of IFAS’s contracts.
ECF No. 25-3 at AR958-59. For these reasons, Seattle Security does not help IFAS.
IFAS insists that its performance of 89.9% of the PWS tasks across the two predecessor
contracts required DISA to rate them both as Very Relevant rather than Relevant. ECF No. 28-1
at 15-16. Even if the RFQ did not prohibit combination of contracts in this way, it is not at all
clear that IFAS is right that DISA must have rated the contracts Very Relevant. DISA found that
IFAS’s two prior contracts showed work corresponding to 85% and 79%, respectively, of the
PWS tasks. ECF No. 25-3 at AR958-59. Recall that the definition of “Very Relevant” is that the
“[p]resent/past performance effort involved essentially the same scope and magnitude of effort
and complexities this solicitation requires.” ECF No. 25-1 at AR187 (emphasis added). Recall
too that the RFQ defined “Relevant” as “[p]resent/past performance effort involved similar scope
and magnitude of effort and complexities this solicitation requires.” /d. (emphasis added). For
IFAS to prevail, the Court would have to determine that the line between “essentially the same”
and “similar” necessarily lies somewhere between 85% and 89.9% because IFAS does not
contend that the contract corresponding to 85% of the work should have been Very Relevant
standing alone. But there is nothing in the RFQ that makes any such line clear. It could
certainly be rational for DISA to consider “essentially the same” to mean something more than
an 89.9% correlation of tasks (assuming IFAS’s 89.9% is correct).
Finally, IFAS contends that the RFQ required DISA to find the predecessor contracts
more relevant because they are contracts to provide budgeting and cost estimating support to the
Government. ECF No. 34 at 6. The RFQ provides that “Contracts/orders providing budgeting or
cost estimating support to DoD or non-DoD entities, including other Federal Agencies” will be
more relevant. ECF No 31 at AR292. But the RFQ does not specify how the added relevance
14
will be credited, leaving it to agency discretion. Cf SP Sys., Inc. v. United States, 86 Fed. Cl. 1,
23 (2009) (“[P]ast performance evaluation ‘will not be disturbed unless it is unreasonable or
inconsistent with the terms of the solicitation or applicable statutes or regulations.’”) (quoting
Consol. Eng’g Servs., Inc. v. United States, 64 Fed. Cl. 617, 637 (2005)). Here, DISA
recognized that each contract was a predecessor contract, ECF No. 25-3 at AR679, AR683, and
corresponded to many of the budgeting and cost estimating PWS tasks, ECF No. 25-3 at AR958-
59. Having recognized the commonality of work, DISA complied with the RFQ and provided
the weight it found appropriate. DISA’s evaluation was within the broad agency discretion in
performing the past performance evaluation and won’t be disturbed.
Given that DISA complied with the RFQ’s terms, its evaluation was not arbitrary or
capricious. See Distrib. Sols., Inc. v. United States, 106 Fed. Cl. 1, 20 (2012), aff'd, 500 F.
App’x 955 (Fed. Cir. 2013) (citing Bannum, Inc. v. United States, 91 Fed. Cl. 2013).160, 173
(2009) (“An agency does not act unreasonably when it sets forth specific past performance
evaluation criteria and then applies those criteria.”)). The Government further argues that even if
DISA increased the relevancy rating of IFAS’s predecessor contracts in this case, it could not
change the confidence rating and, therefore, the relevancy ratings could not prejudice IFAS.
ECF No. 33 at 20-21. Because the Court finds no error in the past performance evaluation, it
need not reach the question of prejudice for this evaluation.
2. Technical rating.
a) Weakness
IFAS next challenges DISA’s finding of a weakness in its technical rating for failing to
explain how it would ensure compliance with DoD 7000.14-R Vol. 10 DWCF policies and
procedures regarding Subtask 9. The RFQ defines a “weakness” as “[a] flaw in the quotation
that increases the risk of unsuccessful contract performance.” ECF No. 25-1 at AR186. The
RFQ required offerors to “demonstrate an approach to fully meet or exceed” Subtasks 8, 9, and
10. ECF No. 31 at AR266. Subtask 8 involved financial program support and required the
offerors to ensure business systems were administered in accordance with DoD 7000.14-R Vol.
10 DWCF policies and procedures. ECF No. 25-1 at AR22. Accordingly, the RFQ required the
offerors to demonstrate how they would comply with this task. /d. Similarly, Subtask 9
involved providing technical knowledge and support to maintain and administer complex coding
within business systems and required the offerors to have a “working knowledge” of DoD
7000.14-R Vol. 10 DWCF policies and procedures. /d. at AR23-24.
DISA assessed IFAS a weakness because it “d[id] not demonstrate how it will ensure
business systems are administered IAW DoD 7000.14.” ECF No. 28-1 at 19. IFAS disagrees.
IFAS claims that it did provide “numerous statements indicating its efforts to ensure business
systems remain compliant with that DOD requirement.” /d. It is not disputed that IFAS
demonstrated how it would ensure compliance with these regulations when performing Subtask
8, which DISA recognized in its evaluation of Subtask 8. But the weakness relates to IFAS’s
approach to Subtask 9 rather than Subtask 8. And a review of IFAS’s quote reveals that it
omitted any reference to DoD 7000.14-R Vol. 10 DWCE policies and procedures in its approach
to Subtask 9. ECF No. 25-5 at AR1489.
15
IFAS all but acknowledges this failure, arguing that the distinction between Subtasks 8
and 9 “elevates form over substance — IFAS clearly demonstrated that it was fully aware of the
regulation and how to meet it and noted that in its proposal several times, but the fact that it did
not simply refer to the same awareness in a different section of its proposal does not justify a
weakness.” ECF No. 34 at 9. But this argument simply asks the Agency to infer that IFAS’s
plan to ensure compliance with DoD 7000.14 in Subtask 8 also applies to Subtask 9. Or DISA
could simply assume that, because IFAS knew these policies and procedures as the incumbent
contractor, DISA could overlook IFAS’s not mentioning them regarding Subtask 9. This is
something an agency cannot do. It is axiomatic that “[o]fferors carry the burden of presenting
‘an adequately written proposal, and an offeror’s mere disagreement with the agency’s judgment
concerming the adequacy of the proposal is not sufficient to establish that the agency acted
unreasonably.’” Software Eng’g Servs., Corp. v. United States, 85 Fed. Cl. 547, 554 (2009)
(quoting United Enter. & Assocs. v. United States, 70 Fed. Cl. 1, 26 (2006)). And the agency
“could not have acted arbitrarily or capriciously by judging IFAS on the actual text of its
proposal.” ECF No. 33 at 16 (citing Asset Prot. & Sec. Servs., L.P. v. United States, 5 F.4th
1361, 1366 (Fed. Cir. 2021)).
Finally, IFAS argues that the omission of how it would approach Subtask 9 (and its
compliance with DoD 7000.14) could have easily been cured by the Agency through discussions.
ECF No. 28-1 at 21. Itis beyond dispute that DISA could have engaged in discussions with
IFAS. Indeed, DISA reserved “the right to conduct exchanges or seek clarifications if the
Contracting Officer (KO) determines they are necessary.” ECF No. 31 at AR294. That is not
the question. The question is whether it was arbitrary and capricious for DISA not to seek
clarification from, or hold discussions with, IFAS. It was not.
First, it is true that DISA reserved the right to have exchanges if the contracting officer
found them necessary. ECF No. 31 at AR294. But the RFQ could not have been clearer: “The
Government intends to evaluate quotations and award a contract without exchanges with
schedule contractors.” Id. at AR271 (emphasis added). When the RFQ states that the agency
intends to award a contract without exchanges, a protestor cannot complain about a lack of
exchanges. See Software Eng’g Servs., 85 Fed. Cl. at 555 (“‘[I]t is well established that all
offerors, including incumbents, are expected to demonstrate their capabilities in their
proposals.””) (quoting /nt’/ Res. Recovery, Inc. v. United States, 60 Fed. Cl. 1, 6 (2004)).
Second, IFAS claims that DISA was already aware that IFAS was ensuring compliance
with DoD 7000.14 given its role as the incumbent. According to IFAS, the failure to seek
clarification of IFAS’s quote when DISA was aware IFAS was performing these tasks on the
predecessor contracts, was arbitrary and capricious. ECF No. 28-1 at 21. To the extent IFAS
seeks to apply something akin to the too close at hand doctrine to its technical evaluation, the
Court declines to do so. Under the too close at hand doctrine, there is certain information about
past performance that if the agency is aware of, it cannot ignore. Seattle Sec. Servs., 45 Fed. Cl.
at 568. IFAS did not cite any case in which this Court or the GAO has applied the too close at
hand doctrine to a technical evaluation, and the Court has not found one. The Court declines to
expand the doctrine here to technical evaluations.
Third, this argument rests on IFAS’s contention that DISA conducted this procurement as
a negotiated procurement under FAR Part 15. /d. And “where the record establishes that the
16
agency treated the quoters’ responses as if it was conducting a negotiated procurement, the Court
will analyze the protester’s arguments under the standards applicable to negotiated
procurements.” /d. at 21 n.4 (citing Centerra Grp., LLC v. United States, 138 Fed. Cl. 407, 415
(2018)). But DISA did not conduct this procurement under FAR Part 15; DISA conducted this
procurement under FAR Subpart 8.4. ECF No. 31 at AR279. The RFQ explicitly stated that this
procurement was to be conducted pursuant to FAR Subpart 8.4 provisions, which do not require
exchanges with quoters. /d. The terms of the procurement, and the provisions of FAR Subpart
8.4, preclude any claim for the Agency’s failure to engage in discussions or conduct exchanges.
IBM Corp. v. United States, 119 Fed. Cl. 145, 158-59 (2014) (finding no fault for the agency’s
failure to engage in exchanges with an offeror in a FAR Subpart 8.4 procurement); Distrib. Sols.,
Inc., 106 Fed. Cl. at 15 (rejecting argument that agency was compelled to provide plaintiff an
opportunity to respond to its past performance evaluations because the procurement was
conducted under FAR Part 8).
The one case IFAS cites in support of this argument, Cenferra Group, is inapplicable.
There, the agency chose to conduct exchanges with only one of the offerors, the awardee, and
allowed it (and only it) to amend its proposal to avoid the problems raised in the protest.
Centerra Grp., 138 Fed. Cl. at 415. The Court concluded that in those circumstances “looking to
FAR Part 15 when reviewing the fairness of discussions held in FAR Subpart 8.4 procurements .
.. at least for the relevant definitions of clarifications and discussions, is the only sensible
approach.” Jd. There is no such unfairness here.
And Centerra only imputed the fairness principles of FAR Part 15, it did not import Part
15 requirements into a FAR Subpart 8.4 procurement. /d. The Court was clear that it “refus[ed]
to shoehorn FAR Subpart 8.4 procurements into the procedures outlined in FAR Part 15.” Jd.
Thus, Centerra does not undermine the general rule in this Court that a “procurement{ ]
conducted under [FAR] Subpart 8.4 [is] different from those conducted under [FAR] Part 15,
even if ‘some procedures also present in Part 15 are utilized.”” A/lied Tech. Grp., Inc. v. United
States, 94 Fed. Cl. 16, 44 (2010), aff'd, 649 F.3d 1320 (Fed. Cir. 2011) (quoting Sys. Plus, Inc. v.
United States, 68 Fed. Cl. 206, 211 (2005)). Because nothing here approaches the unfairness in
Centerra Group, this Court also refuses to apply FAR Part 15 requirements in this FAR Part 8
procurement. /.g., JBM Corp., 119 Fed. Cl. at 158; Matt Martin Real Est. Mgmt., LLC v. United
States, 96 Fed. Cl. 106, 116-17 (2010).
In the end, IFAS has only itself to blame for not including all the relevant information in
its quote to the Agency.
b) Strengths
IFAS contends that DISA failed to assign any strengths to its technical proposal, which
depressed its Technical/Management rating to Green/Acceptable. ECF No. 28-1 at 22-23; ECF
No. 25-3 at AR950. IFAS argues that its proposal had multiple strengths and a proper evaluation
would have resulted in a higher Technical/Management rating. ECF No. 28-1 at 22. The
Government rejects this argument as nothing more than a disagreement with the Agency’s
evaluation, which falls short of establishing that the evaluation was arbitrary or capricious. ECF
No. 33 at 17.
17
The RFQ defines a “Strength” as “[a]n aspect of an [sic] quotation that has merit or
exceeds specified performance or capability requirements in a way that will be advantageous to
the Government during Contract performance.” ECF No. 25-1 at AR186. Before the GAO,
IFAS provided a chart with examples that purportedly demonstrated that its quote had “many
strengths.” ECF No. 28-1 at 22-23 (citing ECF No. 25-5 at AR1328-29). Yet these examples
merely show how IFAS is performing the tasks in the predecessor contracts. What is missing is
an explanation of how these aspects of IFAS’s proposal “exceed[] specified performance or
capability requirements,” nor does IFAS explain how such performance 1s “advantageous to the
Government.” ECF No. 25-1 at AR186; ECF No. 25-5 at AR1328-29.
The first strength IFAS claims it should have received relates to the RFQ’s requirement
that quoters “provide billing support for server, storage, mainframe, and enterprise service
offerings supporting DISA’s DWCF.” ECF No. 28-1 at 22 (quoting ECF No. 25-5 at AR1374).
IFAS argues it should have gotten a strength because its proposal stated that it “‘managed the
support and billing for approximately 884 servers, accounting for 1M gigabytes of data per
month for the U.S. Department of Transportation’s OCIO/WCF,’ a clear strength that exceeds
specified performance or capability requirements regarding [sic] and will be advantageous to the
Government during contract performance.” /d. But this is simply a recitation of IFAS’s
performance on one of the predecessor contracts, not how IFAS exceeds the RFQ’s
requirements.
The same is true of the other strength IFAS claims regarding the RFQ’s requirement to
“Tp]rovide financial support and analysis for the full cost recovery of the DWCF Revenue
Support Team.” /d. (alteration in original) (quoting ECF No. 25-5 at AR1376). [... ]. Jd.
(quoting ECF No. 25-5 at AR1329). Again, IFAS is relying solely on its performance of one of
the predecessor contracts to claim this strength.
But DISA may not award IFAS strengths due to its incumbent status because the RFQ
does not disclose any advantage related to incumbency. F.g., Sys. Studies & Simulation, Inc. v.
United States, 152 Fed. Cl. 74, 88 (2020), aff'd 22 F.4th 994 (Fed. Cir. 2021); United Concordia
Cos., Inc. v. United States, 99 Fed. Cl. 34, 45 (2011) (“We will not upset the agency’s rating
simply because plaintiff was the incumbent and believes its experience to be superior.”). It is
also unclear how IFAS’s performance of the predecessor contracts exceeds the requirements of
this procurement when IFAS itself argues (regarding its past performance ratings) that the
predecessor contracts combined equate to essentially the same scope as this contract.
B. IFAS’s challenges to enGenius’s ratings
1. Past performance
a) Relevance
IFAS challenges DISA’s evaluation of all enGenius’s past performance references as
Somewhat Relevant. ECF No. 28-1 at 23-24. According to IFAS, enGenius’s three prior
contracts “were not of the same nature or scope as the Solicitation—they focused on different
services such as IT training, certifications, customer service, messaging, presentations, data
management and delivery services.” /d. at 24. enGenius counters that the Agency “engaged in a
18
thorough review of ECG’s three past performance references” and provided approximately 20
pages of analysis reviewing each aspect of the references before determining them to be
Somewhat Relevant. ECF No. 32 at 6. Given the deference to the agency’s past performance
analysis in a FAR Subpart 8.4 procurement, enGenius contends IFAS falls short of proving any
basis for relief. DISA recognized which of enGenius’s prior experience efforts correlated to
PWS tasks and where its experience was not related. IFAS’s mere disagreement with DISA’s
evaluation is not a basis to find it arbitrary or capricious, particularly considering the “great
deference” agencies get in performing past performance evaluations. Vanguard Recovery
Assistance v. United States, 101 Fed. Cl. 765, 785 (2011).
DISA determined that enGenius provided “scarce information” for PWS Task 6.1 in the
first reference, but that enGenius “provided several requirements as related to PWS Task 6.2
Financial Analytical/Management Services and Budget Formulation/Execution.” ECF No. 25-3
at AR962. Striking a balance between the “scarce information” on Task 6.1 and performing
“several requirements” on Task 6.2, DISA determined that enGenius’s first past performance
reference “involve[d] some of the scope and complexities this solicitation requires” and rated it
“Somewhat Relevant.” /d. at AR961-62. As for the second reference, the Agency specifically
identified the tasks that enGenius performed and how these tasks correlated to the tasks in the
PWS. /d. at AR962. However, the Agency also noted that the cost of the second reference was
“less than the requirement as outlined within the RFQ” (1.e., was less than the $4-6 million range
in the RFQ). /d. at AR811, 962. Citing these findings, the Agency concluded that enGenius’s
performance on the second reference was “Somewhat Relevant” to the PWS because enGenius’s
performance “involved some of the scope of the effort and some complexities” the PWS
required. /d. at AR811.
IFAS offers little to challenge DISA’s evaluation other than its own disagreement with it.
IFAS argues that enGenius’s past performance efforts “[c]learly . .. were not of the same nature
or scope as the Solicitation — they focused on different services such as IT training, certifications,
customer service, messaging, presentations, data management and delivery services.” ECF No.
28-1 at 24. But DISA recognized this. /d. at AR962-63. IFAS also contends that when
enGenius’s past performance references are “reviewed critically, it is clear that these submittals
simply did not contain the financial program management and cost estimation tasks that were
critical to the Solicitation.” ECF No. 28-1 at 24. According to IFAS, such past performance
should have been rated as Not Relevant. /d. But this ignores that the RFQ defines Somewhat
Relevant as reflecting “some” of the scope—precisely what DISA found here. ECF No. 25-1 at
AR187. There is no basis for IFAS’s argument that past performance references must
correspond to what IFAS contends are “core” RFQ tasks.
IFAS also argues that enGenius’s third reference was improperly considered because it
was for work performed by a subcontractor, Koniag.’ Jd. at 28. Under the RFQ, a quoter could
only include subcontractor past performance if the subcontractor was to perform at least 20% of
the work on this contract. ECF No. 25-1 at AR111. As the Government and enGenius point out,
enGenius was permitted to provide a past performance reference for Koniag because it “provides
TTFAS raised this argument in its MJAR but made no further reference to it. Because it is
unclear whether IFAS meant to waive it, the Court addresses it.
19
20% or more of the support required.” ECF No. 33 at 21 (quoting ECF No. 25-1 at AR111);
ECF 32 at 8. Inits proposal, enGenius states that Koniag would be performing just over 30% of
the work over the base period and all option periods. ECF No. 25-2 at AR615. It was proper for
DISA to consider Koniag’s past performance reference.
b) Confidence rating.
IFAS argues that the Agency deviated from the RFQ criteria in its past performance
evaluation by rating enGenius and others with Neutral Confidence. ECF No. 28-1 at 25-28.
IFAS first argues that the Agency improperly “flattened out” the past performance rating and
converted the procurement into one for the lowest priced, technically acceptable (“LPTA”)
proposal. According to IFAS, this is clear because “all quoters with a rating other than ‘relevant’
received an overall past performance rating of “Neutral Confidence’; all quoters with a rating of
‘relevant’ received an overall rating of ‘Satisfactory Confidence.’” /d. at 25. And this
purportedly harmed IFAS because it neutered its “incumbent advantage” and “eliminat[ed] the
disparity in true past performance experience between IFAS and all other quoters.” /d. As
explained above, however, the RFQ gives no indication that it would grant extra past
performance credit for incumbency, meaning there was no “incumbent advantage” to begin with.
The RFQ provides that “Neutral Confidence” rating means “[n]o recent/relevant
performance record is available or the Schedule Contractor’s performance record is so sparse
that no meaningful confidence assessment rating can be reasonably assigned.” ECF No. 25-1 at
AR188. The RFQ also states:
Schedule contractors for whom information on past performance is
not available or so sparse that no confidence assessment rating can
be reasonably assigned will not be evaluated favorably or
unfavorably on past performance and as a result will receive a
“Neutral Confidence” rating for the Past Performance Factor.
ECF No. 31 at AR291. IFAS believes this language covers two situations, neither of which
apply: “(1) the contractor either does not provide any past performance references or the
references do not respond to PPQs, so the agency has no information, and (2) the contractor
simply has no available information to provide the 3 required past performance references.”
ECF No. 28-1 at 25-26.
DISA determined there was “scarce” information for one task in enGenius’s first
reference, ECF No. 25-3 at AR803, and for one task in its third reference, id. at AR816. And the
Agency specified which information was missing from both references. In fact, DISA
recognized that the first reference enGenius provided was within the magnitude range in the RFQ
($4-6 million) but because of the scarcity of information the Agency could only rate it
“Somewhat Relevant.” /d. at AR803-04. Given the significant deference to the Agency, the
Court does not find it arbitrary and capricious for DISA to have concluded that although there
was some relevant performance information, there was not enough to allow a “meaningful
confidence assessment rating” to be assigned to enGenius’s past performance references. ECF
No. 25-3 at AR964.
20
The same past performance criteria recently came before Judge Lettow in Gritter
Francona, Inc. v. United States, 158 Fed. Cl. 597 (2022), and his analysis is persuasive here. In
Gritter, the solicitation defined “Neutral Confidence” as “no recent/relevant performance record
[was] available or the offeror’s performance record [was] so sparse that no meaningful
confidence assessment rating c[ould] be reasonably assigned. The offeror may not be evaluated
favorably or unfavorably on the factor of past performance.” /d. at 602 (alterations in original).
Here, the RFQ includes the same definition. ECF No. 25-1 at AR188. In Grifter, like here, “[a]
neutral confidence rating contemplated a finding that an offeror had too ‘sparse’ of a history to
make a confidence determination whereas a limited confidence rating was to be given when there
was a ‘low expectation’ of successful performance.” Gritter Francona, 158 Fed. Cl. at 608.
Like IFAS, Gritter Francona argued that the awardee’s limited but somewhat relevant and
highly rated past performance must be rated lower than Neutral Confidence. /d. Judge Lettow
rejected this argument because it “would require placing double emphasis on relevancy and
experience while downgrading the importance of quality.” /d. at 608-09. Judge Lettow
ultimately concluded that “[i]t would misapply the text of the solicitation to require an offeror
with somewhat relevant and positive ratings to receive a lower confidence rating .. . while an
offeror with no relevant or recent efforts would receive a higher rating and remain in the
competition.” /d. at 609 (emphasis omitted). While it is true that the agency in Grifter
responded to a question that it would use neutral confidence as a sort of catch-all provision, that
was clearly not necessary to Judge Lettow’s analysis. And the GAO reached the same
conclusion in this case without reliance on any responses during the Q&A. ECF No. 25-6 at
AR2460. In fact, the GAO “ha[s] repeatedly concluded” that somewhat relevant and positive
past performance should receive no less than a neutral confidence rating to avoid penalizing
those with limited experience. /d. Therefore, it was not arbitrary or capricious for DISA to rate
enGenius or the other quoters with less than relevant, positive past performance ratings as having
Neutral Confidence.
2. Technical management rating
IFAS also argues that DISA deviated from the evaluation scheme by downplaying the
two weaknesses it found in enGenius’s management approach. ECF No 28-1 at 29. The first
weakness was for “not adequately describing the relationship between the corporate
administration and onsite administration.” ECF No. 31 at AR280; ECF No. 25-3 at AR953. The
second weakness was for “not explicitly stating that it will use its Place or Performance
Management approach in the case of a contingency environment or while its employees are
working from home.” ECF No. 31 at AR280; ECF No. 25-3 at AR953. DISA explained that
despite these weaknesses, enGenius’s quote “meets requirements and indicates an adequate
approach and understanding of the requirements, and risk of unsuccessful performance is no
worse than moderate.” ECF No. 31 at AR280; ECF No. 25-3 at AR953. IFAS claims these two
weaknesses should have prevented enGenius from receiving an “‘Acceptable’ management
rating pursuant to the RFQ.” ECF No. 28-1 at 30.
This court does not “second guess” an agency’s technical ratings that “involve
discretionary determinations of procurement officials.” E.W. Bliss Co. v. United States, 77 F.3d
445, 449 (Fed. Cir. 1996); see also Aero Corp., S.A. v. United States, 38 Fed. Cl. 739, 763 (1997)
(“Decisions as to the adequacy of the information presented in a proposal are . . . rightfully left to
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the discretion of evaluators, especially where . . . the decisions are technical in nature.”). The
issue for the Court is whether DISA was arbitrary and capricious when it considered these
weaknesses in evaluating enGenius’s proposal.
The technical evaluation team assessed the weaknesses because enGenius’s proposal was
“unclear” on the two requirements, and it was “uncertain” how enGenius’s would meet them.
ECF No. 25-3 at AR927-28. While these uncertainties may “increase[] the risk of unsuccessful
contract performance,” id., the question for the Court is whether DISA rationally considered
them in making the award decision. The contracting officer clearly considered them, compared
them to another quoter’s similar weaknesses, and determined that enGenius’s “approach had a no
worse than moderate risk of unsuccessful performance... .” /d. at AR971. Given that these
weaknesses were the result of uncertainty rather than inadequacies, the Court cannot find DISA’s
consideration of them arbitrary and capricious.
C. Best Value Tradeoff Analysis
Following its challenges to its and enGenius’s evaluations, IFAS turns to the Agency’s
best value determination. ECF No. 28-1 at 31-32. IFAS contends that before the GAO the
Government offered only one paragraph to justify the best value tradeoff analysis, which IFAS
characterizes as “superficial and insufficient.”. /d. at 31. The Government responds that IFAS’s
argument relies on cases that address FAR Part 15 procurements, not a FAR Subpart 8.4
procurement like this one. ECF No. 33 at 23. And because the amount of documentation in a
FAR Subpart 8.4 procurement is less than that in a FAR Part 15 procurement, the Agency’s
justification is sufficient. /d. at 23-25. Moreover, the Government argues the paragraph
excerpted by IFAS was merely a “concluding summary” and a “rational reader” would have
understood the preceding 19 pages to be documenting the Agency’s best value tradeoff analysis.
Id. at 25-26. The Court considers the entirety of the tradeoff analysis in the price negotiation
memorandum regardless of what the Government argued to GAO, because the document speaks
for itself.
Here too, IFAS argues that DISA deviated from the RFQ’s best-value evaluation scheme
because DISA “clearly used an LPTA evaluation scheme for its tradeoff analysis between IFAS”
and enGenius. ECF No. 28-1 at 35. According to IFAS, the Agency “decided IFAS and the
awardee both met the technical requirements and then made the award decision based on the
lowest price.” /d. This argument is easily dispatched because, as explained above, DISA did not
conduct an LPTA evaluation.
IFAS also faults the Agency for not accounting for the “risk” in enGenius’s management
weaknesses, and for not analyzing any risk in moving from “a successful incumbent offeror [i.e.,
IFAS] to one without any ‘relevant’ past performance.’” /d. IFAS’s final argument alleges the
culmination of these failures renders the entire best-value tradeoff analysis invalid because “a
tradeoff analysis based on significantly flawed evaluation ratings is itself irrational.” /d. at 36
(citing BayFirst Sols., LLC v. United States, 102 Fed. Cl. 677, 695 (2012)). Again, the Court has
already considered and denied each of IFAS’s challenges to DISA’s technical and past
performance evaluations. Thus, there were no flawed evaluation ratings, much less
“significantly flawed evaluation ratings.”
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And there is an insurmountable obstacle to IFAS’s arguments—much of IFAS’s
arguments rely on cases applying FAR Part 15. But this was a FAR Subpart 8.4 procurement,
not a FAR Part 15 procurement. And the requirements for a best value tradeoff under FAR
Subpart 8.4 are significantly less than those for FAR Part 15. Under FAR Subpart 8.4, “the high
standards for a proper tradeoff analysis under FAR Part 15 discussed by plaintiff... do not
apply.” Distrib. Sols., Inc., 106 Fed. Cl. at 24; see also 22nd Century Techs., Inc. v. United
States, No. 21-1137, 2021 WL 3856038, at *10 (Fed. Cl. July 21, 2021) (“Plaintiff fails to
appreciate that this procurement is a FAR Subpart 8.4, not FAR Part 15, procurement for which
the Agency is neither expected nor required to document every decision it makes in rigorous
detail.”); Matt Martin Real Est. Mgmt., 96 Fed. Cl. at 116 (‘The amount of documentation
necessary in FAR Subpart 8.4 procurements does not rise to the level required by FAR Part
15.”).
The Agency’s price negotiation memorandum explains in detail the
technical/management, past performance, and price factors for each of the quoters, including
IFAS and enGenius. ECF No. 25-3 at AR949-75. Contrary to IFAS’s repeated assertions, the
contracting officer provided more than one paragraph of tradeoff analysis. It does not matter to
the Court what representation IFAS insists the Government made to GAO that the analysis is
only one paragraph, the record here speaks for itself. Again, the record here shows clearly that
the contracting officer reviewed all the technical, price, and past performance evaluations before
turning to her best value analysis. Over five pages, the contracting officer eliminated certain
quoters due to ratings before comparing the three remaining quoters, enGenius, IFAS, and one
other, against each other. /d. at AR969-73. The contracting officer then spent another 1.5 pages
explaining her decision, and specifically that IFAS’s rating was not worth the added cost. /d. at
AR972-73. In the end, she concluded that IFAS’s higher rated proposal was “not worth an
additional $3,618,507.28 (11.1%) over the lifecycle of the program.” /d. at AR973.
DISA’s best value decision was reasonable and supported by the record, with the choice
to not pay IFAS’s price premium well within the contracting officer’s discretion. While the
Court does not opine on whether this analysis would survive a protest if this were a FAR Part 15
procurement, but it clearly survives under FAR Subpart 8.4. Therefore, the Court will not
disturb it.
D. Good faith and fair dealing
Finally, IFAS argues that DISA breached an implied covenant to fairly and honestly
consider its proposal. ECF No. 28-1 at 36-37. According to IFAS, DISA breached the implied
duty of good faith and fair dealing based on the same conduct that it alleged violated the RFQ.
See id. at 37. Although the Parties muddy the waters to a degree, the resolution of this argument
is straightforward.
Recently, the Federal Circuit held that this Court has jurisdiction to hear an implied
contract claim in a bid protest under 28 U.S.C. § 1491(b), and only § 1491(b). Safeguard Base
Operations, LLC vy. United States, 989 F.3d 1326, 1342 (Fed. Cir. 2021). The Circuit also made
clear that the arbitrary and capricious standard applies to these implied contract claims like IFAS
makes here. /d. Because the Court already determined that DISA’s evaluation and award
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decisions were all rational, IFAS cannot prevail here for the same reasons it did not prevail
above—none of the alleged conduct was arbitrary and capricious.
Yet IFAS points to two post-Safeguard cases that it claims support the opposite view:
that a plaintiff may allege, independent of its other claims, a breach of the duty of good faith and
fair dealing. ECF No. 34 at 24. IFAS relies on Thalle Constr. Co., Inc. v. United States, 159
Fed. Cl. 698, 707 (2022), and claims the Court evaluated “whether an offeror was treated fairly
and impartially per FAR 1.102-2 — a basis for two of IFAS’s claims, including the breach of the
duty of good faith and fair dealing.” ECF No. 34 at 25. IFAS also relies on Blue Origin Fed’n,
LLC v. United States, 157 Fed. Cl. 74, 113 (2021), to argue that Safeguard Base Operations did
not foreclose an independent claim for breach of good faith and fair dealing. ECF No. 34 at 24.
Thalle concerned a claim of unequal treatment under FAR 1.102-2. See Thalle Constr.
Co., Ine. v. United States, 159 Fed. Cl. 698, 707 (2022) (“A claim of unequal treatment is
derived from the FAR requirement that ‘[a]ll contractors and prospective contractors shall be
treated fairly and impartially but need not be treated the same.’”). But the Court’s finding that
DISA adhered to the RFQ throughout its evaluation and award precludes such a claim here.
IFAS’s reliance on Blue Origin is similarly misplaced (as is the Government’s
disagreement with it). While IFAS relies on Blue Origin to argue that the implied duty claim
survives Safeguard Base Operations, the Government argues that Blue Origin is wrong in
finding such an implied duty survives Safeguard Base Operations. On its face, however, it
appears quite clear that Blue Origin’s holding does exactly what the Government asks the Court
to do here—reject the implied duty claim because the Court found nothing arbitrary and
capricious in any of the agency’s evaluations or award decision. Blue Origin, 157 Fed. Cl. at
113.
In Blue Origin, the court understood the Federal Circuit’s holding in Safeguard Base
Operations to mean that a breach of implied-in-fact contract, in the procurement context, falls
within the bid-protest jurisdiction of this court under 28 U.S.C. § 1491(b)(1). /d. And Blue
Origin also recognized that Safeguard requires this Court to review such implied claims under
the same APA review as other bid protest claims under § 1491(b)(1). /d. The Court rejected
Blue Origin’s claim, which like IFAS’s, alleged the same conduct underlying its prior counts
also amounted to a breach of the implied duty. According to Blue Origin, “the Court has found
no portion of [the agency’s] evaluation to have been arbitrary and capricious; the sum of Blue
Origin’s claims does not yield more than the sum of its parts.” /d. (emphasis in original); see
also SAGAM Securite Senegal v. United States, 154 Fed. Cl. 653, 662 n.3 (2021), appeal
docketed, No. 21-2279 (Fed. Cir. Sept. 21, 2021). The same applies here. Having found none of
DISA’s conduct arbitrary and capricious, its implied contract claim on those same issues must
fail.
The only thing that is new in IFAS’s implied contract claim is an assertion that DISA
acted with “a specific intent to injure IFAS.” ECF No. 28-1 at 37. To prevail on such a claim,
IFAS must come forward with clear and convincing evidence that DISA intended to cause IFAS
specific injury. Savantage Fin. Servs., Inc. v. United States, 595 F.3d 1282, 1288 (Fed. Cir.
2010) (quoting Galen Med. Assocs., Inc v. United States, 369 F.3d 1324, 1330 (Fed. Cir. 2004)
(“In the cases where the court has considered allegations of [governmental] bad faith, the
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necessary ‘irrefragable proof’ has been equated with evidence of some specific intent to injure
the plaintiff.”)). IFAS has not alleged, much less come forward with clear and convincing
evidence, any conduct that could overcome the presumption of good faith by the Government.
IV. _Injunctive Relief
When determining whether to issue a permanent injunction, a court considers: (1)
whether the plaintiff has succeeded on the merits; (2) whether the plaintiff will suffer irreparable
harm if the court withholds injunctive relief: (3) whether the balance of hardships to the
respective parties favors granting relief, and (4) whether granting injunctive relief is in the public
interest. PGBA, LLC v. United States, 389 F.3d 1219, 1228 (Fed. Cir. 2004) (citing Amoco Prod.
Co. v. Vill. of Gambell, Alaska, 480 U.S. 531, 546 n.12 (1987)). As explained above, IFAS has
not succeeded on the merits. Because IFAS has not succeeded on the merits, a necessary factor
to receive permanent injunctive relief, the Court denies IFAS’s motion for a permanent
injunction. This is because “[a]bsent success on the merits, the other factors are irrelevant.”
Info. Tech. & Applications Corp. v. United States, 51 Fed. Cl. 340, 357 n.32 (2001), aff'd, 316
F.3d 1312 (Fed. Cir. 2003).
Vv. Motion to Strike
The Government included in its cross-MJAR a declaration from the contracting officer
regarding potential harms from injunctive relief. ECF No. 33 at 31; see also ECF No. 33-1.
IFAS moved to strike the declaration claiming it is “improper protest evidence” and arguing the
contents of the declaration were “speculative, improper, and prejudicial” to IFAS. ECF No. 34
at 28. Because the Court denies IFAS’s motion for injunctive relief without reference to the
declaration, the Court denies the motion to strike as moot.
VI. ‘Conclusion
For the reasons stated above, the Court hereby:
1. Denies IFAS’s motion for judgment on the administrative record, ECF No. 28;
2. Grants the United States’ cross-motion for judgment on the administrative record, ECF
No. 33;
3. Grants enGenius’s cross-motion for judgment on the administrative record, ECF No.
32;
4. Denies IFAS’s motion to strike the declaration of the contracting officer as moot, ECF
No. 34; and
5. Directs the Clerk’s Office to enter judgment in favor of the United States and enGenius
Consulting Group, Inc.
IT IS SO ORDERED.
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s/ Edward H. Meyers
Edward H. Meyers
Judge