Cw Government Travel, Inc., D/B/A Cwtsatotravel v. United States ( 2013 )

In the United States Court of Federal Claims
No. 12-708 C
(Filed Under Seal: March 27, 2013)
(Reissued: April 11, 2013) ∗
*************************************
CW GOVERNMENT TRAVEL, INC., *
d/b/a CWTSATOTRAVEL, *
*
Plaintiff, * Postaward Bid Protest; 28 U.S.C.
* § 1491(b); Standing; Timeliness;
v. * FAR 16.504(c)(1)(ii)(D)(1)(iii); Qualified
* and Capable; Unequal Treatment; Injunctive
THE UNITED STATES, * Relief
*
Defendant, *
*
and *
*
CONCUR TECHNOLOGIES, INC., *
*
Defendant-Intervenor. *
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Lars E. Anderson, James Y. Boland, and Christina K. Kube, Tysons Corner, VA, for plaintiff.
Russell J. Upton, United States Department of Justice, Washington, DC, for defendant.
Jonathan D. Shaffer, John S. Pachter, Mary Pat Buckenmeyer, and Armani Vadiee, Tysons
Corner, VA, for defendant-intervenor.
OPINION AND ORDER
SWEENEY, Judge
Plaintiff CW Government Travel, Inc., d/b/a CWTSatoTravel (“CWT”) protests the
General Services Administration’s (“GSA”) decision not to award CWT an indefinite-delivery,
indefinite-quantity (“IDIQ”) contract in response to Solicitation No. QMAD-JM-100001-N
∗
The parties proposed joint redactions to the court’s decision, with the exception of
certain quotations from defendant-intervenor’s (the awardee’s) proposal that only the
government and defendant-intervenor requested be redacted. Because the competition is
ongoing, and in the event plaintiff receives an award, it will be competing against defendant-
intervenor at the task order level, the court has redacted this information as requested by
defendant and defendant-intervenor.
(“solicitation” or “RFP”) for travel management services for federal civilian agencies under the
E-Gov Travel Service 2.0 (“ETS2”) program. Pending before the court are plaintiff’s motions
for judgment upon the administrative record and for declaratory and injunctive relief;
defendant’s motion to dismiss or, in the alternative, cross-motion for judgment upon the
administrative record; and defendant-intervenor’s cross-motion for judgment upon the
administrative record. Also pending before the court are plaintiff’s, defendant’s, and defendant-
intervenor’s motions to strike.
There are several issues raised by the parties. The first issue is, as a threshold matter,
whether CWT has standing to bring this challenge. The next issue is, also as a threshold matter,
whether CWT’s protest is timely. With respect to the merits, the issues are, in CWT’s words,
whether the following government actions were arbitrary, capricious, constituted an abuse of
discretion, or otherwise not in accordance with the law: (1) finding that the awardee, Concur
Technologies, Inc. (“Concur”), was the only source qualified and capable of performing the
ETS2 work under Federal Acquisition Regulation (“FAR”) 16.504(c); (2) accepting Concur’s
assurances of postaward corrections, revisions, or updates to Concur’s ETS2 system, while
disqualifying CWT for promising to meet outstanding requirements after award; and (3)
permitting Concur to take exception to mandatory solicitation requirements and rely on
“promises” of compliance after award. Finally, assuming that CWT has established success on
the merits, whether it has suffered irreparable harm that outweighs the harm to the government
and Concur if injunctive relief is not granted. For the reasons set forth below, the court grants
plaintiff’s request for injunctive relief and denies the motions to strike.
I. FACTUAL BACKGROUND
A. The Procurement and the RFP
The ETS2 contract is the successor to the ETS1 (E-Gov Travel Service) contract
currently in operation. 1 Three contractors, CWT, Northrop Grumman Missions Systems, and
Electronic Data Systems (later novated to Hewlett-Packard), were awarded ETS1 contracts that
run from November 2003 to November 2013. Tab 1 at AR 1. Seventy-six federal agencies
currently use ETS1 contracts, Tab 73 at AR 4677, which represents approximately ninety percent
of government travel expenses for executive branch agencies, excluding the United States
Department of Defense. Tab 103 at AR 5292.
In anticipation of the November 2013 expiration of the ETS1 contracts, GSA began
preparations for ETS2 in 2009. Tab 73 at AR 4677. The ETS2 solution requires integration with
agency systems, such as financial systems, human resource systems, and charge card vendors, to
allow the efficient operation of travel authorization, booking, fulfillment, and vouchering. Tab 2
at AR 149. GSA anticipates that it will take agencies twenty-four months, on average, to fully
integrate their individual systems with the contractor’s system to begin performance of ETS2
travel services. Tab 150 at AR 8319. Initially, the ETS2 contract award was anticipated in early
2011, Tab 118 at AR 6598, to ensure adequate lead time for the agencies to transition to ETS2
1
The facts are derived from the administrative record, which will be cited as “Tab __ at
AR __.”
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when ETS1 expires in November 2013. Tab 73 at AR 4677. Following CWT’s first preaward
protest before the United States Government Accountability Office (“GAO”), however, GSA
was forced to push back the ETS2 award date by several months. Tab 115 at AR 6459-60. The
ETS2 award date was pushed out further due to additional preaward protests filed by CWT. Tab
128 at AR 7654.
After GAO’s recommendation regarding CWT’s second preaward protest, Tab 75 at AR
4722-36, GSA reopened the solicitation until July 6, 2011, allowing CWT to submit a revised
proposal. Tab 76 at AR 4741.1. Based upon these delays and the lead time required for ETS2 to
be fully operational, GSA determined that, in order to ensure continual service, it was necessary
to extend the ETS1 period of performance while agencies worked toward a timely transition to
ETS2. Tab 128 at AR 7653. In early 2012, all three ETS1 contractors agreed to contract
modifications providing for potential option periods. Tab 127 at AR 7600-47. The options, if
exercised, will extend ETS1 contract performance for a one-year term and for up to four
additional three-month periods, which could take ETS1 through November 2015. Tab 128 at AR
7653.
Like the predecessor program, the ETS2 RFP calls for the provision of a consolidated and
centralized “Web-based, self-service solution offering End-to-End commercial travel
management services,” and covers all aspects of official federal business travel. Tab 2 at AR 55.
Use of an electronic travel system is required by the Federal Travel Regulation for civilian
agency travel. Id. GSA intended to award one or more master IDIQ contract vehicles against
which civilian agencies will later conduct agency-specific competitions for task orders when
their ETS1 contracts end. Id. at AR 699. ETS2 contains numerous enhancements and additional
requirements, including some based upon laws and regulations implemented since the 2003
award of ETS1, and incorporates changes in the electronic travel service industry since 2003. Id.
at AR 55-57. ETS2 also incorporates emerging technologies, such as cloud computing, that
include on-demand self-service, ubiquitous network access, location-independent resource
pooling, rapid elasticity, and measured-service performance. Id. ETS2 is intended to deliver a
user-friendly, customer-centric, configurable, policy-compliant, reliable, and secure automated
civilian federal agency-wide travel service, building upon lessons learned from ETS1, but adding
improvements by bringing more clarity to the government’s desired performance outcomes in
usability and contractor performance. Tab 1 at AR 11.
B. Evaluation Criteria and Ratings
GSA decided to limit the number of ETS2 contract awards to a maximum of two (the
minimum allowed by law) based on a best value analysis among the offerors. Tab 118 at AR
6568 (stating that “more than two awards will inhibit the ability to successfully re-procure
ETS2”). The evaluation consisted of two phases. For Phase I, section F.3 of the RFP provided
that “[t]his is a best value source selection,” and that “best value” will be based on the following
evaluation factors: Technical (Performance Work Statement, Project Management Plan,
Demonstration, and Key Personnel/Resumes); Non-Technical (Socio-Economic and Past
Performance); and Price. Tab 2 at AR 740-41. Section F.5 established the criteria for the Phase
II evaluation, which consisted of Independent Verification & Validation (“IV&V”) of the
proposed ETS2 solutions. Id. at AR 767-70. The RFP provided that the “determination of which
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Offeror(s) moves forward to IV&V will depend on the outcome of Phase I evaluations and will
be based on the evaluation team’s consensus ratings.” Id. at AR 768. The criteria for the IV&V
phase were as follows: IV&V Technical Factors (Computational Ratings, Functional/Usability,
Security, and Section 508/Accessibility), 2 and IV&V Non-Technical (Price). Id. at AR 770.
The RFP established five possible ratings for the nonprice factors: Outstanding, Very
Good, Acceptable, Marginal, and Unacceptable. Id. at AR 767. Of relevance here, Marginal
was defined as: “A marginal proposal does not meet Government requirements necessary for
acceptable contract performance, but issues are correctable. The Offeror’s proposal contains one
or more significant weaknesses.” Id. Unacceptable was defined as:
An unacceptable proposal fails to meet the preponderance of specified minimum
performance and technical capability requirements defined in the [Statement of
Work]. The Offeror’s proposal contains numerous weaknesses and/or
deficiencies, or contains weaknesses and/or deficiencies that are not correctable.
The evaluator is confident that the Offeror will be unable to successfully complete
the required tasking. The proposal does not adequately acknowledge or address
risk, mitigate risk, or may actually introduce risk.
Id.
For both Phase I and Phase II, GSA would evaluate total price, but only to verify that
evaluated prices were “reasonable and realistic.” Id. at AR 745, 771. For a price to be
reasonable, the government stated that it “must represent a price to the [g]overnment that a
prudent person would pay in the conduct of competitive business.” Id. at AR 745. For purposes
of price evaluation, the government would evaluate the sum of the base period pricing for the
contract line item numbers (“CLINs”) identified in the RFP and their corresponding option
period pricing based on the government’s estimated quantities to determine the overall contract
price. Id. In the solicitation, GSA requested proposals with pricing for nineteen CLINs. Id. at
AR 772-73. CLINs 1-5 (and their associated option CLINs) were for services that will be
requested at the task order stage by all customer agencies when each agency seeks to integrate its
system with the awardee’s ETS2 system, while CLINs 6-19 (and their associated option CLINs)
were for services that not all customer agencies will request. Id.
Because GSA decided to limit the number of awards to only two, there were only two
possible award scenarios under the RFP: a single award or a dual award. Id. GSA was
obligated to make a dual award unless a valid exception existed, and GSA required offerors to
submit pricing for both a single-award and dual-award scenario. Id. The RFP thus provided that
the government would evaluate prices under both scenarios, as well as the reasonableness and
realism of the “[s]ingle award v. dual award variance” in pricing. Id.
2
Section 508 of the Rehabilitation Act of 1973, as amended by the Workforce
Investment Act of 1998 (Public Law No. 105-220), requires the government to ensure that
federal employees with disabilities have access to and use of services, information, and data that
is comparable to that of employees without disabilities. “The goal for ETS2 is to provide
equivalent access to Electronic and Information Technology (EIT) resources to all users
regardless of disabilities . . . .” Tab 2 at AR 148.
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C. Evaluation of Initial Proposals
GSA received two timely, alternate proposals (proposal A and B) from Concur on
January 18, 2011. Tab 73 at AR 4679. After the new July 6, 2011 proposal deadline was
established, Tab 76 at AR 4741.1-.3, CWT submitted its timely proposal and Concur submitted
revised proposals (proposal A and B). Tab 73 at AR 4679. The proposals were evaluated by a
multiagency source selection evaluation team in a two-phase source selection. Id. at AR 4680.
Phase I included evaluation of technical factors, nontechnical factors, and price. Tab 2 at AR
740; Tab 73 at AR 4680. After Phase I evaluations, both offerors were determined to have
strengths and weaknesses. Tab 74 at AR 4717-21; Tab 77 at AR 4745. In addition to
weaknesses, CWT’s initial proposal also had significant weaknesses and a deficiency, Tab 77 at
AR 4745, while Concur’s initial proposals in Phase I did not have any significant weaknesses or
deficiencies. Tab 74 at AR 4717-18; Tab 77 at AR 4745. The Source Selection Advisory
Council (“SSAC”) and Source Selection Authority (“SSA”) decided to include both offerors in
the competitive range. Tab 77 at AR 4751.
Under Phase II, IV&V testing, each offerors’ ETS2 solution was independently evaluated
by the IV&V technical team using test scenarios designed to validate the proposed solution. Tab
115 at AR 6455. The purpose of IV&V testing was to review the proposed ETS2 solution
against the stated requirements and objectives in the RFP. Tab 2 at AR 768. Whereas under
Phase I, the offeror only had to conduct a live demonstration of its ETS2 solution, id. at AR 744,
Phase II was a comprehensive, independent test of electronic travel service scenarios to
determine whether the ETS2 solution could perform the services offered in the Performance
Work Statement, in the manner offered in the Project Management Plan. Id. at AR 767-73; Tab
115 at AR 6468. The IV&V tests evaluated the computational accuracy of the service (e.g., the
accuracy of the services, proper application of the Federal Travel Regulation in terms of meals
and incidental expenses, lodging, and adjustments based on the traveler going over the
International Date Line); the functionality/usability of the service (e.g., how the service would
function when used for routing, workflow and notifications, policy enforcement, types of travel,
and online booking); the security of the service (e.g., conducting a modified Certification and
Accreditation); and the Section 508/Accessibility of the service (e.g., the extent to which the
proposed solution met applicable accessibility standards). Tab 2 at AR 768-70.
D. Discussions
On December 6, 2011, GSA notified each offeror in writing of the areas of their Phase I
technical proposals that needed attention in the form of additional information, clarifications,
and/or discussions. Tab 73 at AR 4682. GSA requested that offerors respond to each issue by
December 13, 2011. Tabs 82-84. On December 9, 2011, GSA issued a second written
notification to each offeror regarding areas of their Phase I technical proposals that needed to be
addressed in the offeror’s final proposal revisions (“FPRs”). Tabs 85-87.
On December 13, 2011, both offerors submitted responses to the December 6, 2011
letters. Tabs 88-90. CWT stated that its proposal demonstrated “over 70 percent of the 1,000
plus requirements,” that some of the remainder of the functionality would be implemented in a
January 2012 refresh of its ETS1 solution, called “E2 Solutions,” and the “final set of
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requirements” would be implemented in November 2012, which was after contract award. Tab
90 at AR 4937. On December 22, 2011, GSA issued to each offeror a third written notification
of Phase II, IV&V testing weaknesses, significant weaknesses, and deficiencies. Tab 73 at AR
4683. Offerors were asked to be prepared to discuss these matters during negotiation discussions
and to address these issues in their FPRs. Tabs 91-92. GSA held detailed discussions with
offerors from January 9 to 20, 2012. Tab 73 at AR 4686. Each offeror had four-and-one-half
days to discuss the significant weaknesses, weaknesses, and deficiencies in their respective
proposals. Id.
E. Revised Proposals
Both offerors submitted FPRs on February 15, 2012, and Phase II, IV&V retesting was
conducted between February 16 and 23, 2012. Tab 73 at AR 4687. In the IV&V retest, both
offerors increased their respective pass rating for test scenarios and improved some ratings. Id.
1. Concur
Concur’s FPR passed all test scenarios that GSA retested. Id. GSA increased Concur’s
IV&V rating from Marginal on the Computational, Functional/Usability, and Security factors to
Acceptable, but its proposal remained Marginal on the IV&V factor concerning Section
508/Accessibility. Id. at AR 4690. The Marginal rating it received under Section
508/Accessibility was based upon its ETS2 solution having “unlabeled HTML elements which
impeded 508 testing and operation.” Id. at AR 4687-88. GSA determined, however, that
Concur’s remediation plan for this remaining significant weakness was a clearly defined,
postaward mitigation strategy to correct the Section 508 compliance issue within ninety days of
contract award, which was determined to be acceptable. Tab 120 at AR 7257-58. Also, GSA
determined that the correction would be completed before the Authority to Operate (“ATO”) and
Assessment and Authorization (“A&A”) would be complete. Id. Concur’s FPR received an
overall technical rating of Very Good. Tab 103 at AR 5277.
2. CWT
CWT’s FPR passed sixty-eight of the eighty-seven test scenarios that were retested in
IV&V. Tab 73 at AR 4687. CWT corrected many of the weaknesses, significant weaknesses,
and deficiencies noted in GSA’s December 6, 9, and 22, 2011 letters, but it failed to correct its
FPR in certain respects. Tab 103 at AR 5277-78; Tab 121 at AR 7403-04, 7409-11, 7423-29.
Like Concur, CWT submitted a remediation plan with its FPR. Tab 113 at AR 6380, 6385-442.
GSA determined the proposed remediation plan for addressing Section 508 compliance was
acceptable. Id. at AR 6441-42. Just like Concur’s weakness in this area, CWT’s rating was not
negatively affected by this weakness. Tab 103 at AR 5278, 5312. The evaluators, however,
found CWT’s remediation plan insufficient to address the other significant weaknesses in CWT’s
FPR. Tab 121 at AR 7403-04, 7409-11, 7413-15, 7422-30.
In particular, CWT’s FPR for Technical Factor One, Performance Work Statement
(Phase I), did not meet ninety-nine mandatory requirements. Tab 103 at AR 5291. CWT
indicated that it would deliver these functionality requirements by a date it set, November 2012.
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Tab 113 at AR 6091. Therefore, these ninety-nine requirements could not be retested during the
final evaluation process before contract award, resulting in a significant weakness in CWT’s
ETS2 solution. Tab 73 at AR 4688; Tab 103 at AR 5326-27. Significant weaknesses remained
in other areas of CWT’s FPR, including CWT’s failure to offer government-wide, summary-
level reporting capability in its proposal under Technical Factor One, Performance Work
Statement (Phase I) in accordance with the RFP requirement, and its failure to offer to the user a
means to optionally select the most applicable explanatory codes under Technical Factor Two,
Project Management Plan (Phase I) in accordance with the RFP requirement. Tab 109 at AR
5571-73. Significant weaknesses also remained in the area of Technical Factor Two,
Functional/Usability (Phase II). Tab 103 at AR 5278, 5311. Further, CWT’s FPR also contained
a significant weakness under Phase II, IV&V Factor 4, Section 508/Accessibility. Id. at AR
5368.
Lastly, CWT did not address the security deficiency concerning its failure to offer the
disaster recovery site required by the RFP. Tab 2 at AR 126. In its December 22, 2011 letter to
CWT, GSA identified as a deficiency that “CWT’s subcontractor, [ . . . ], does not have a Data
Recovery Center; there are no continuity or disaster recovery plans; and all backup tapes are
stored at the same site[; t]he Government data is at risk if the contractor is not prepared to
recover after a potential disaster and there is no plan on how to resume services or recover
losses.” Tab 92 at AR 5074. GSA requested CWT describe in its FPR how it would remediate
its security deficiency related to its lack of a disaster recovery site. Id. at AR 5016, 5074, 5075.
CWT proposed to review and address this crucial security deficiency with CWT’s information
system security officer and [ . . .] security personnel, and to have a remediation effort in place for
A&A (the certification and accreditation process performed by GSA prior to the contractor
receiving ATO). Tab 113 at AR 6440. However, CWT’s plan was not considered sufficient, and
the evaluators determined that CWT’s security deficiency remained a deficiency in the final
evaluation. Tab 103 at AR 5278. Accordingly, the evaluators determined that this deficiency
could jeopardize CWT’s “ability to secure the necessary security clearances to operate
ETS2.” Id. In the final evaluation, CWT’s FPR received an overall rating of Marginal. Id. at
AR 5311.
The Proposal Analysis Report (“PAR”), prepared by the SSAC, summarized the
evaluation of both offerors’ FPRs and is an attachment to the Source Selection Decision
Document and Recommendation for Award (“SSDD”). Id. at AR 5305. In the PAR, the
government determined that while Concur’s proposal A included additional services not offered
under its proposal B, these added services were not deemed to be worth the additional price. Id.
at AR 5321. Thus, between the two Concur proposals, proposal B was determined to offer better
value to the government. Id.
The SSAC then compared Concur’s proposal B to CWT’s proposal and determined that,
between the two, CWT’s proposal had the lowest technical rating at the highest price. Id.
Notably, the SSAC concluded that CWT’s proposal did not meet ETS2 requirements in the areas
of integration, group authorization functionality, availability of trip types, local voucher
availability, retained advances, and government-wide reporting, in addition to other significant
weaknesses and weaknesses and one deficiency. Id. at AR 5326-27. The SSAC also concluded
that the Source Selection Evaluation Board’s (“SSEB”) determination—that the evaluated IV&V
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security deficiency and CWT’s numerous significant weaknesses outweighed the strengths
identified in CWT’s proposal and its overall rating of Marginal—was warranted. Id. at AR
5329; Tab 121 at AR 7404, 7409, 7424, 7427-29. The SSAC decided that Concur’s proposal B,
with its Very Good rating was, therefore, the only offeror remaining in the competition that was
qualified and capable of performing the work at a reasonable price. Tab 103 at AR 5329. The
SSAC concluded that Concur’s single-award price was significantly less costly to the
government than dual-award prices would be. Id. at AR 5329-31. CWT’s single-award price of
$1,427,876,623 was $231 million (19%) higher than Concur’s proposal B single-award price of
$1,196,549,911, while CWT’s dual-award price of $1,562,846,138 was $216 million higher
(30%) than Concur’s proposal B dual-award price of $1,347,148,895. Id. at AR 5287-88, 5295.
At the same time, the government acknowledged the preference for a dual award and that a dual
award would reduce risk to the government. Id. at AR 5329-30. The SSAC also discussed the
risks associated with making a single award to Concur, but concluded that those risks could be
closely administered and mitigated. Id. Based upon these facts and conclusions, the contracting
officer and SSEB prepared the SSDD.
F. The SSDD
In the SSDD, the contracting officer, who also served as the SSA, summarized the
evaluations, discussed pricing assumptions made by each offeror, recognized the strong
preference for multiple-award IDIQ contracts, explored the benefits and risks of a single award
and a dual award, and discussed the preference for dual award over a single award. Id. at AR
5275-93. Ultimately, the recommendation was based upon these conclusions reached in the
PAR: (1) CWT’s FPR indicated that it is not capable of fulfilling the government’s requirements
before award; (2) CWT’s FPR was not as competitive as Concur’s proposal B from both a
technical and price standpoint; (3) Concur is the only qualified and capable source of performing
the work at a reasonable price; (4) single award is less costly than dual award; and (5) the risks
associated with a single award can be controlled through close administration and mitigation
measures. Id. at AR 5293-300.
G. Determination and Findings
Once the SSA made his decision that a single contract should be awarded to Concur, the
contracting team prepared the Determination and Findings (“D&F”) to support the single IDIQ
contract award pursuant to FAR 16.504(c). Tab 104. The D&F summarized the key stages of
the procurement and the technical and price evaluation findings made by the SSEB and the
SSA. See generally id. In particular, the D&F noted that:
a. CWTSatoTravel had the lowest technical rating and the highest price, for both
single and multiple award scenarios.
b. Concur Proposals A and B were technically equal. Proposal A offered no
distinct advantages that would merit the increased price over Proposal B. As
stipulated by the RFP, as technical merit becomes more equal, price becomes
more important. Accordingly, Proposal B offered the better value over
Proposal A.
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c. Concur Proposal A shared the highest technical rating with its Proposal B, and
was in the mid range price, for the single and multiple award scenarios.
d. Concur Proposal B shared the highest technical rating, and had the lowest
price, for both single and multiple award scenarios. Concur B, Single Award,
has the lowest evaluated price of $1,196,549,911. By comparison, the next
highest proposed price is Concur A, Single Award, in the amount of
$1,352,997,478, which is $156,447,567 (13%) higher than Concur B. The
highest proposed price for Single Award is CWTSatoTravel’s proposed price
of $1,562,846,138, which is $231,326,712 (19%) higher than Concur B,
Single Award price.
Id. at AR 5398-99. The SSA then stated:
The SSAC and the SSA agreed that a single award to CWTSatoTravel was not
possible as CWTSatoTravel was the technically inferior and higher priced offer.
The SSAC and the SSA agreed that should a single award determination be made,
Concur is the only contender for it.
Id. at AR 5399 (emphasis added). The SSA compared the benefits and risks of single and
multiple awards. Id. at AR 5399-5403. One of the benefits of a single award was that the
government would “obtain [the] best price for all Government customers,” and the SSA noted
that Concur offered a lower price than CWT. Id. at AR 5399. The SSA cited one of the benefits
of a dual award as: “There is a strong FAR preference for multiple awards.” Id. at AR 5400.
The SSA then discussed the “cost/technical tradeoff” that was performed:
The Source Selection Authority’s cost/technical tradeoff analysis resulted in a
determination that Concur Technologies, Proposal B, is superior to
CWTSatoTravel in overall technical merit and is lowest in the evaluated price,
representing a lower risk of performance issues at a more favorable price. The
Government selects Concur as the awardee based upon an integrated assessment
of all factors stated in the Solicitation, including Price. Concur is deemed
responsible in accordance with the Federal Acquisition Regulation, its proposal
conforms to the Solicitation requirements (to include all stated terms, conditions,
representations, certifications, and all other information required by this
solicitation) and is judged, based on the evaluation factors, to offer the most
advantageous contract solution to the Government.
Id. at AR 5403 (emphasis added). The SSA noted that because the value of the contract
exceeded $103 million, FAR 16.504(c)(1)(ii)(D)(1) “requires that the agency head make a
determination prior to the award of any single award task and delivery order contract” that
addresses one of the exceptions in that FAR provision. Id. at AR 5404. The SSA relied upon the
exception found at FAR 16.504(c)(1)(ii)(D)(1)(iii), which permits the government to make a
single award that will exceed $103 million where there is “[o]nly one source [that] is qualified
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and capable of performing the work at a reasonable price to the Government.” Id. The SSA
stated:
Concur is the only source qualified and capable of performing the work at a
reasonable price to the Government. Both offerors have evaluated strengths and
weaknesses in their proposals. Concur’s overall rating of Very Good reflects the
SSEB’s determination that the strengths, which were significant in number and/or
individual importance, outweighed Concur’s evaluated minor weaknesses.
Id.
In the D&F, the SSA then discussed how CWT did not meet the government’s
requirements, citing ninety-nine requirements that CWT failed to meet and promised to meet
months after award and a deficiency assigned under Phase II, IV&V Factor Three, Security. Id.
at AR 5404-05. The SSA concluded that based on the deficiency and weaknesses in CWT’s
proposal, CWT’s proposal “d[id] not meet requirements for contract award” and “is not
technically acceptable for contract award.” Id. at AR 5405.
With respect to price, the SSA noted that the Price Evaluation Board found “Concur’s
price assumptions to be fair and reasonable,” whereas “some” of CWT’s “price assumptions
[were] reasonable.” Id. The SSA then commented that eleven of thirty-one price assumptions
offered by CWT represented cost and/or performance risk and were considered
unreasonable. Id. The SSA determined that “Concur Technologies, Proposal B, is superior to
CWTSatoTravel’s proposal in overall technical merit and is lowest in evaluated price,
representing less risk of performance issues at a more favorable price.” Id. at AR 5406.
In conclusion, the SSA stated:
Based on the findings above, only one source is qualified and capable of
performing the work at a reasonable price to the Government. In accordance with
Agency procedures outlined in FAS Memorandum dated December 3, 2009,
approval authority has been delegated from the Head of the Agency to the
Assistant Commissioner of the Office of Travel, Motor Vehicle and Card
Services. Therefore, pursuant to FAR 16.504(c)(1)(ii)(D)(l)(iii), only one source,
Concur Technologies, Inc., is qualified and capable of performing the work at a
reasonable price to the Government.
Id. The D&F was signed by the SSA and various agency officials on May 22, 2012. Id. at AR
5406-07.
II. PROCEDURAL BACKGROUND
A. Prior Protests
CWT has filed several protests related to this procurement. In November 2010, CWT
filed a preaward protest before GAO (B-404479) in which it challenged the solicitation’s terms.
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Tab 132 at AR 7720-826. In response, GSA notified GAO that it intended to take corrective
action by amending the solicitation. Tab 133 at AR 7827. GAO thus dismissed the protest as
academic. Tab 135 at AR 7843-44.
In January 2011, CWT filed a second GAO preaward protest (B-404479.2) in which it
argued that GSA’s corrective action was inadequate. Tab 62 at AR 4481-592. In April 2011,
GAO denied all protest grounds but one regarding whether the RFP’s “stated objectives” were
required. Tab 75 at AR 4722-36. On June 3, 2011, GSA issued Amendment 13 to clarify this
one issue. Tab 76 at AR 4741.1, 4741.2. On July 6, 2011, CWT submitted its proposal and
Concur submitted revised proposals. Tab 73 at AR 4679.
In May 2011, before GSA issued the RFP clarification on the issue of “stated
objectives,” CWT filed a preaward protest before the United States Court of Federal Claims
(“Court of Federal Claims”) arguing, among other things, that GSA had not obtained the proper
waiver to enter into a fifteen-year fixed-price contract. CW Gov’t Travel, Inc. v. United States,
99 Fed. Cl. 666, 669 (2011). On September 16, 2011, the Court of Federal Claims issued its
decision, concluding that although GSA had obtained a waiver, its waiver was deficient. Id. at
681. On December 20, 2011, GSA rectified this deficiency. Tab 166 at AR 8573-80. On May
31, 2012, GSA awarded a single IDIQ contract to Concur. Tab 106 at AR 5551-66. After
receiving a written debriefing, Tab 109 at 5571-679, CWT filed a postaward protest at GAO (B-
404479.3), Tab 111 at AR 5682-737, and subsequently supplemented its protest grounds, Tab
126 at AR 7536-99.
On September 24, 2012, GAO issued its unredacted recommendation in which it denied
CWT’s protest. Tab 146 at AR 8167-81. Specifically, GAO found that GSA evaluated both
offerors equally and in accordance with the RFP. GAO also determined that GSA complied with
the requirements in FAR 16.504(c) because the record reflected a reasonable basis for the
agency’s determination that CWT was technically unacceptable.
B. The Current Protest
On October 18, 2012, CWT filed this postaward protest. In its complaint, CWT alleges,
among other things, that GSA’s single award decision violated FAR 16.504(c)’s prohibition
against awarding a major IDIQ contract to a single source and that GSA engaged in unequal
treatment. CWT seeks:
(a) a judgment declaring that GSA’s determination that Concur is the only source
qualified and capable of performing the ETS2 work was arbitrary, irrational and
capricious;
(b) a judgment declaring that GSA’s decision to award only one IDIQ contract
violates federal procurement law since Concur is not, in fact, the only source
qualified and capable of performing the work;
(c) a judgment declaring that GSA violated federal procurement law by treating
CWT and Concur unequally;
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(d) a judgment declaring that GSA’s evaluation of Concur’s proposal was
arbitrary, irrational, and unfair;
(e) an injunction directing GSA to award a second IDIQ contract to CWT;
(f) CWT’s costs of purs[u]ing this protest; and
(g) [a]ny other relief the Court deems just and proper.
Compl. 47.
On November 21, 2012, plaintiff filed its motion for judgment on the administrative
record, and on December 20, 2012, the government filed its motion to dismiss pursuant to Rule
12(b)(1) of the Rules of the United States Court of Federal Claims (“RCFC”) or, in the
alternative, cross-motion for judgment on the administrative record. Concur filed its cross-
motion on the same day. Defendant and Concur filed motions to strike the declaration of Robert
McCauley, Vice President of E2 Solutions at CWT, that was filed by CWT. CWT then filed a
motion to strike the declaration of Ernesto Martinez, the contracting officer, and to strike
portions of defendant’s reply brief. The parties fully briefed the issues, and oral argument was
held on February 14, 2013.
III. LEGAL STANDARDS
A. RCFC 12(b)(1) Motion to Dismiss
The court’s “general power to adjudicate in specific areas of substantive law . . . is
properly raised by a [Rule] 12(b)(1) motion.” Palmer v. United States, 168 F.3d 1310, 1313
(Fed. Cir. 1999). When considering a motion raised under RCFC 12(b)(1), the burden of
establishing the court’s subject matter jurisdiction resides with the party seeking to invoke
it. See McNutt v. Gen. Motors Acceptance Corp. of Ind., 298 U.S. 178, 189 (1936). The
plaintiff “bears the burden of establishing subject matter jurisdiction by a preponderance of the
evidence.” Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 748 (Fed. Cir. 1988). The
court must accept as true the allegations in the plaintiff’s complaint and must construe such facts
in the light most favorable to the plaintiff. See Scheuer v. Rhodes, 416 U.S. 232, 236
(1974), overruled on other grounds by Harlow v. Fitzgerald, 457 U.S. 800, 814-19
(1982); Reynolds, 846 F.2d at 747. If the defendant or the court questions jurisdiction, the
plaintiff cannot rely solely on allegations in the complaint but must bring forth relevant, adequate
proof to establish jurisdiction. See McNutt, 298 U.S. at 189. In deliberating on a motion to
dismiss for lack of subject matter jurisdiction, the court may examine relevant evidence in order
to decide any factual disputes. See Moyer v. United States, 190 F.3d 1314, 1318 (Fed. Cir.
1999); Reynolds, 846 F.2d at 747. If the court finds that it lacks subject matter jurisdiction, then
it must dismiss the claim. RCFC 12(h)(3).
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B. Bid Protests
The Court of Federal Claims has “jurisdiction to render judgment on an action by an
interested party objecting to . . . 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), and may “award any relief that the court considers proper, including declaratory and
injunctive relief except that any monetary relief shall be limited to bid preparation and proposal
costs,” id. § 1491(b)(2). Interested parties are those “prospective bidders or offerors whose
direct economic interest would be affected by the award of the contract or by failure to award the
contract.” Am. Fed’n of Gov’t Emps. v. United States, 258 F.3d 1294, 1302 (Fed. Cir. 2001).
Judicial review of agency actions in bid protest cases is limited to the administrative
record. The court determines whether the agency action was arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law based solely upon the administrative record.
28 U.S.C. § 1491(b)(1), (4); 5 U.S.C. § 702, 706(2)(A); see also Impresa Construzioni Geom.
Domenico Garufi v. United States, 238 F.3d 1324, 1332 (Fed. Cir. 2001).
When reviewing agency action alleged to be arbitrary or capricious or an abuse of
discretion, the court must “determine whether the contracting agency provided a coherent and
reasonable explanation of its exercise of discretion.” Sys. Application & Tech., Inc. v. United
States, 100 Fed. Cl. 687, 711 (2011) (quoting and citing Impresa, 238 F.3d at 1332-33) (citations
omitted and quotation marks). An agency’s decision lacks a rational basis if the contracting
officer “entirely failed to consider an important aspect of the problem, offered an explanation for
[his] decision that runs counter to the evidence before the agency, or is so implausible that it
could not be ascribed to a difference in view or the product of agency expertise.” Motor Vehicle
Mfrs. Ass’n of U.S. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). A disappointed
bidder bears a heavy burden of showing that an agency’s decision lacked a rational
basis. Banknote Corp. of Am. v. United States, 365 F.3d 1345, 1351 (Fed. Cir. 2004).
The rational basis standard of review is highly deferential. See PAI Corp. v. United
States, 614 F.3d 1347, 1351 (Fed. Cir. 2010). The agency decision is entitled to a presumption
of regularity, and the court should not substitute its judgment for that of the agency. Citizens to
Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 415 (1971); Great Lakes Dredge & Dock
Co. v. United States, 60 Fed. Cl. 350, 359 (2004). When a disappointed bidder alleges
contravention of law, it must show “a clear and prejudicial violation of applicable statutes or
regulations.” Impresa, 238 F.3d at 1333 (citations omitted and quotation marks). Moreover, the
plaintiff must make a nonfrivolous allegation that the agency’s actions violate a statute or
regulation. 28 U.S.C. § 1491(b)(1); Distributed Solutions, Inc. v. United States, 539 F.3d 1340,
1345 n.1 (Fed. Cir. 2008) (“A non-frivolous allegation of a statutory or regulatory violation in
connection with a procurement or proposed procurement is sufficient to establish jurisdiction.”).
The violation must be “rooted in a specific statute or regulation,” not merely an allegation that
the agency has acted arbitrarily or irrationally. Data Monitor Sys., Inc. v. United States, 74 Fed.
Cl. 66, 73 (2006). Moreover, even if the protester can demonstrate errors in the procurement
process, the protester must also show that it was “significantly prejudiced” by those
errors. Bannum, Inc. v. United States, 404 F.3d 1346, 1357 (Fed. Cir. 2005). The postaward bid
protest “substantial chance” test “envisions a review of the contract award or bid evaluation
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process to determine what might have occurred if the government had not erred.” Weeks
Marine, Inc. v. United States, 79 Fed. Cl. 22, 35 (2007) (internal quotations omitted), aff’d in
relevant part, 575 F.3d 1352 (Fed. Cir. 2009).
C. Standing
Standing constitutes a “threshold requirement in every federal action.” Myers
Investigative & Sec. Servs., Inc. v. United States, 275 F.3d 1366, 1369 (Fed. Cir. 2002). As an
“indispensable part of the plaintiff’s case,” Lujan v. Defenders of Wildlife, 504 U.S. 555, 561
(1992), standing is “not a mere pleading requirement,” Night Vision Corp. v. United States, 68
Fed. Cl. 368, 391 (2005). “[T]he question of standing,” the United States Supreme Court
explained, “is whether the litigant is entitled to have the court decide the merits of the dispute or
of particular issues.” Warth v. Seldin, 422 U.S. 490, 498 (1975). Standing must be determined
“as of the commencement of suit.” Rothe Dev. Corp. v. Dep’t of Def., 413 F.3d 1327, 1334
(Fed. Cir. 2005).
“[T]he plaintiff in a bid protest must show that it has standing to bring the suit.” L-3
Global Commc’ns Solutions, Inc. v. United States, 82 Fed. Cl. 604, 608 (2008) (citing Info.
Tech. & Applications Corp. v. United States, 316 F.3d 1312, 1319 (Fed. Cir. 2003)). Although
the Court of Federal Claims, an Article I court, “applies the same standing requirements enforced
by other federal courts created under Article III,” Anderson v. United States, 344 F.3d 1343,
1350 n.1 (Fed. Cir. 2003), the United States Court of Appeals for the Federal Circuit (“Federal
Circuit”) has determined that 28 U.S.C. § 1491(b) “imposes more stringent standing
requirements than Article III,” Weeks Marine, 575 F.3d at 1359.
“The pivotal element of standing in a bid protest is whether a protestor qualifies as an
‘interested party’ under [section] 1491(b)(1).” RhinoCorps Ltd. v. United States, 87 Fed. Cl.
481, 485 (2009). The Federal Circuit has construed the term “interested party” as synonymous
with the term “interested party” defined in the Competition in Contracting Act (“CICA”), Pub. L.
No. 98-369, 98 Stat. 494 (1984), and now codified at 41 U.S.C. § 3304(a)-(c) (Supp. V
2012). 3 See Am. Fed. of Gov’t Emps., 258 F.3d at 1302. In order to have standing as an
“interested party,” a protester must satisfy a two-part test. First, the protester must demonstrate
that it is an actual or prospective bidder. Rex Serv. Corp. v. United States, 448 F.3d 1305, 1307
(Fed. Cir. 2006); see also MCI Telecomm. Corp. v. United States, 878 F.2d 362, 365 (Fed. Cir.
1989) (noting that “one who has not actually submitted an offer must be expecting to submit an
offer prior to the closing date of the solicitation”). Second, the protester must demonstrate that it
has a direct economic interest in the procurement. Rex Serv. Corp., 448 F.3d at 1307.
In order to establish a direct economic interest in the procurement, a protester must
demonstrate prejudice. See Info. Tech., 316 F.3d at 1319 (“To establish prejudice, [a protester]
must show that there was a ‘substantial chance’ it would have received the contract but for the
alleged error in the procurement process.”); Textron, Inc. v. United States, 74 Fed. Cl. 277, 283
3
CICA defines the term “interested party” as “an actual or prospective bidder or offeror
whose direct economic interest would be affected by the award of the contract or by failure to
award the contract.” 31 U.S.C. § 3551(2)(A) (2006).
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(2006) (“[A] successful protestor must also establish that the errors complained of caused
prejudice.”). Therefore, “prejudice (or injury) is a necessary element of standing.” Myers, 275
F.3d at 1370; accord Info. Tech., 316 F.3d at 1319; see also Media Techs. Licensing, LLC v.
Upper Deck Co., 334 F.3d 1366, 1370 (Fed. Cir. 2003) (“Because standing is jurisdictional, lack
of standing precludes a ruling on the merits.”). “It is basic that ‘because the question of
prejudice goes directly to the question of standing, the prejudice issue must be reached before
addressing the merits.’” 4 Labatt Food Serv., Inc. v. United States, 577 F.3d 1375, 1378 (Fed.
Cir. 2009) (quoting Info. Tech., 316 F.3d at 1319).
A protester’s burden of establishing standing differs depending upon the nature of the
protest. In postaward bid protests, a protester must show that it had a “substantial chance” of
receiving the contract. Rex Serv. Corp., 448 F.3d at 1308. In other words, “[t]o have standing,
the plaintiff need only establish that it ‘could compete for the contract’ . . . .” Myers, 275 F.3d at
1370 (quoting Impresa, 238 F.3d at 1334). Since plaintiff in this case has filed a postaward
protest, it must demonstrate prejudice under the “substantial chance” standard.
D. Standard for Judgment Upon the Administrative Record
Pursuant to RCFC 52.1, this court reviews the agency’s procurement decisions to
determine whether they are supported by the already-existing administrative record. The
standards applicable to a motion for judgment upon the administrative record differ from those
applied in the context of an RCFC 56 motion for summary judgment. Bannum, 404 F.3d at1355- 56. Unlike an RCFC 56 motion, “proceeding under RCFC [52.1] merely restricts the
evidence to the agency record . . . .” Id. at 1356. “Thus, the central inquiry on a motion for
summary judgment–whether the movant has proved its case as a matter of fact and law or
whether a genuine issue of material fact precludes summary judgment–has no bearing on a
review of the administrative record . . . .” Tech Sys. v. United States, 50 Fed. Cl. 216, 222
(2001); accord Bannum, 404 F.3d at 1356 (holding that RCFC 52.1 requires a different standard
of review without the burden-shifting and presumptions required pursuant to RCFC 56). In
reviewing cross-motions for judgment on the administrative record, the court must determine
“whether, given all the disputed and undisputed facts, a party has met its burden of proof based
4
A protester must also demonstrate prejudice to succeed on the merits. See Data Gen.
Corp. v. Johnson, 78 F.3d 1556, 1562 (Fed. Cir. 1996) (“[T]o prevail in a protest the protester
must show not only a significant error in the procurement process, but also that the error
prejudiced it.”). The test for demonstrating prejudice at both the standing and merits stages of
the protest is the same, but application of the test may yield different results due to the differing
standards of review. See L-3 Commc’ns Corp. v. United States, 99 Fed. Cl. 283, 289 (2011)
(“The difference between the two [prejudice standards] is that the prejudice determination for
purposes of standing assumes all non-frivolous allegations to be true, whereas the post-merits
prejudice determination is based only on those allegations which have been proven true.”); Tech
Sys., Inc. v. United States, 98 Fed. Cl. 228, 244 (2011) (“[S]ince, for purposes of standing,
prejudice must be analyzed before a merits determination is made, it is more properly considered
as a question of potential rather than actual prejudice, and assessed based on the cumulative
impact of the well-pled allegations of agency error (which are assumed true at this juncture of
proceedings).”).
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on the evidence in the record.” A & D Fire Prot. v. United States, 72 Fed. Cl. 126, 131 (2006).
In a manner “akin to an expedited trial on the paper record,” the court will make findings of fact
where necessary. CHE Consulting, Inc. v. United States, 78 Fed. Cl. 380, 387 (2007).
IV. DISCUSSION
A. Preliminary Matters
1. Standing
Defendant asserts that CWT cannot demonstrate that but for the errors it alleges the
government made in the procurement, it had a substantial chance of receiving an award.
Defendant argues that because CWT’s FPR received a Marginal rating, which was assigned
when a proposal did “not meet Government requirements necessary for acceptable contract
performance,” CWT was ineligible for an award. Further, it asserts that because CWT cannot
show that its Marginal rating was arbitrary or capricious, CWT cannot demonstrate that it had a
substantial chance of receiving the award. Finally, with respect to FAR
16.504(c)(1)(ii)(D)(1)(iii), the government argues that CWT cannot show that it was qualified
and capable of performing the work at a reasonable price because the government found that
CWT’s price was not reasonable. Thus, defendant asserts that even assuming that everything
CWT raises in its protest is true, CWT lacks standing to challenge the procurement because it
cannot demonstrate that it is eligible for an award.
In response, CWT argues that defendant’s position on standing is misguided, and the
standing inquiry is made at the threshold of the merits inquiry. CWT asserts that defendant
effectively cites its original reason for not awarding a second contract to CWT as a basis to claim
that CWT does not have a chance of receiving a contract. It argues that GSA was required by
FAR 16.504(c)(1)(ii)(D) to award CWT a second contract because CWT is in fact qualified and
capable of correcting the weaknesses and performing the ETS2 task orders. Thus, if CWT wins
on the merits, CWT not only has a substantial chance of receiving a contract, but would be
guaranteed to receive a contract.
As explained above, a plaintiff can establish standing by proving that it
suffered prejudice, or, in other words, that it had a substantial chance of receiving the contract,
but for the alleged procurement error. A plaintiff with a substantial chance of winning the
contract has a direct economic interest in the procurement, and has standing before this
court. See Rex, 448 F.3d at 1307-08 (citing Myers, 275 F.3d at 1369-70).
The court finds that CWT has standing. CWT contends that GSA violated procurement
law by awarding only one IDIQ contract to Concur despite the fact that GSA was required by
FAR 16.504(c)(1)(ii)(D) to award a contract to CWT because CWT is qualified and capable of
performing the ETS2 task orders. More specifically, CWT asserts that the government did not
find that CWT was not qualified and capable of performing the work, but rather conducted a best
value analysis in deciding to make one award.
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Defendant argues that like the plaintiff in Joint Venture of Comint Sys. Corp. v. United
States, 102 Fed. Cl. 235, 252 (2011), aff’d, 700 F.3d 1377 (Fed. Cir. 2012), the propriety of the
Marginal rating assigned to CWT by the agency is determinative of both CWT’s standing and
the merits. The facts in Comint, however, are markedly different than those here. In Comint,
this court determined that the plaintiff did not have standing, in part because the plaintiff
received a Marginal rating, which was the second lowest rating, under the most heavily weighted
factor Quality/Capability, while eight other offerors received higher factor ratings. 102 Fed. Cl.
at 252. In fact, this court noted that the plaintiff was ranked, at best, ninth based upon its rating
under this factor. Id. Moreover, the plaintiff had not challenged the evaluation of the other
offerors. Id. As a result, the plaintiff could not show that it was in contention for an award.
Contrary to defendant’s position, the facts here are different than those in Comint. While
CWT received a Marginal rating, as the plaintiff in Comint did, that is not determinative here.
Here, CWT alleges several instances in which its proposal was treated unequally in relation to
Concur’s proposal, and CWT asserts that if GSA had evaluated its proposal equally by allowing
CWT to correct issues after award, as it allowed Concur to do, GSA could not have reasonably
concluded that only Concur was capable of performing the contract. Moreover, the RFP allowed
for two awards, and there were only two offerors; thus, the agency could have awarded a contract
to CWT as well as to Concur. In sum, if everything CWT alleges in its protest is true, CWT
would have a substantial chance of receiving a contract. Thus, the court declines to dismiss the
protest on standing grounds.
2. Timeliness
Concur asserts that CWT’s challenge against a single award is untimely because CWT
did not protest before the proposal due date given that the RFP terms provided for the possibility
of a single award. For support, Concur cites Blue & Gold Fleet, L.P. v. United States, 492 F.3d
1308 (Fed. Cir. 2007), and Weeks Marine, 575 F.3d 1352. CWT asserts that since Concur did
not file a motion to dismiss, the court should disregard Concur’s arguments. Nevertheless, even
if the court does consider Concur’s timeliness argument, CWT contends that its protest is not
barred by the waiver rule of Blue & Gold Fleet, 492 F.3d 1308, which established that a protester
waives its right to challenge an impropriety in a solicitation if it does not protest prior to the
proposal submission deadline. CWT asserts that it could not have protested GSA’s
determination that Concur was the only qualified and capable source prior to the due date for
proposals because GSA did not make that determination until after the evaluation of proposals.
Further, CWT argues that it could not know that GSA would violate FAR 16.504(c)(1)(ii)(D)
until receiving notice that GSA had awarded a single IDIQ contract to Concur.
The court finds that CWT’s protest is timely, and it would have been premature for CWT
to file a preaward protest on the grounds it has raised here. First, the RFP included FAR 52.216-
27, Single or Multiple Awards, which is a standard clause required by FAR 16.506(f) to be
included in all IDIQ solicitations when more than one award is possible. Tab 2 at AR 601. FAR
16.506(f) instructs agencies to “[i]nsert the provision at 52.216-27, Single or Multiple Awards, in
solicitations for indefinite-quantity contracts that may result in multiple contract awards.” The
mere fact that the RFP included FAR 52.216-27 did not require CWT to file a preaward
challenge under Blue & Gold, 492 F.3d 1308. Reserving the right to make one award authorized
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GSA to do so assuming all other legal requirements were met. In order to make only one award,
GSA still had to comply with FAR 16.504(c)(1)(ii)(D), which allows a single award if there is
only one qualified and capable source. CWT had no competitive injury sufficient to file a
preaward protest. Therefore, CWT had no basis to challenge the terms of the RFP before the
proposal submission deadline, and the court declines to dismiss the protest on timeliness
grounds.
3. Motions to Strike
Before turning to the merits of the cross-motions for judgment upon the administrative
record, the court must also address the parties’ motions to strike declarations that were filed by
CWT and defendant. For the reasons explained below, the court denies the motions to strike.
a) Legal Standard
Under RCFC 52.1, which governs the scope of the court’s review on motions for
judgment upon the administrative record, the court must make “factual findings under RCFC
52.1 from the [limited] record evidence as if it were conducting a trial on the record.” Bannum,
404 F.3d at 1357. The purpose of this limited scope of review is to ensure that the court
“exercise[s] restraint in examining information that was not available to the agency. A failure to
do so risks converting arbitrary and capricious review into a subtle form of de novo
review.” Arinc Eng’g Servs., LLC v. United States, 77 Fed. Cl. 196, 200-01 (2007). “The task
of the reviewing court is to apply the appropriate [Administrative Procedure Act (“APA”)]
standard of review, 5 U.S.C. § 706, to the agency decision based on the record the agency
presents to the reviewing court.” Florida Power & Light v. Lorion, 470 U.S. 729, 743-44 (1985)
(citing Citizens to Preserve Overton Park, 401 U.S. 402). Therefore, in a bid protest, judicial
review is generally limited to “the administrative record already in existence, not some new
record made initially in the reviewing court.” Axiom Res. Mgmt, Inc. v. United States, 564 F.3d
1374, 1379 (Fed. Cir. 2009).
According to Federal Circuit precedent, the prohibition against extra-record evidence
applies when such statements are presented in declarations. The Federal Circuit in Axiom, in
reversing the Court of Federal Claims, held that “the trial court abused its discretion in this case
by adding Axiom’s documents to the record without evaluating whether the record before the
agency was sufficient to permit meaningful judicial review.” 564 F.3d at 1380. The Court of
Federal Claims’ review should be focused upon “the administrative record already in existence,
not some new record made initially in the reviewing court.” Id. at 1379. The Federal Circuit
held therefore that “supplementation of the record should be limited to cases in which the
omission of extra-record evidence precludes effective judicial review” and the Court of Federal
Claims must decide “whether supplementation of the record [is] necessary in order not to
frustrate effective judicial review.” Id. at 1381 (quotations omitted).
However, apart from evidence intended to supplement the administrative record, there are
evidentiary submissions filed in support of the prospective relief sought. These submissions
relate to an issue wholly within the court’s purview. PlanetSpace, Inc. v. United States, 90 Fed.
Cl. 1, 5 (2009). Accordingly, “[i]t is the responsibility of this [c]ourt, not the administrative
agency, to provide for factual proceedings directed toward, and to find facts relevant to,
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irreparability of harms or prejudice to any party or to the public interest through grant or denial
of injunctive relief.” PGBA, LLC v. United States, 60 Fed. Cl. 567, 568 n.1 (2004). “The
limited scope of the court’s APA review and the cautionary note of Axiom address this court’s
examination of the reasonableness of the challenged agency action. Evidence respecting relief,
however, rests on a separate and distinct footing.” PlanetSpace, 90 Fed. Cl. at 5. Such evidence
“necessarily would not be before an agency decision-maker effecting a procurement decision
such as a source selection award, . . . but would necessarily post date and flow from such agency
decision.” AshBritt, Inc. v. United States, 87 Fed. Cl. 344, 367 (2009). Accordingly, such
evidence is admitted, not as a supplement to the administrative record, but as part of this court’s
record. Id.b) Summary of the Declarations at Issue in the Motions to Strike
With its cross-motion, defendant submitted a declaration from Mr. Martinez, the
contracting officer for the ETS2 procurement who has been detailed to another division within
GSA, but remains involved in the ETS2 procurement for purposes of CWT’s protest. Martinez
Decl. ¶ 1. In his declaration, under the subheading “Harm to Government Should Court Award
to CWT,” Mr. Martinez states that “not only did CWT not satisfy the basic mandatory
requirements of the request for proposals (RFP) prior to contract award, but CWT still has not
satisfied all of the mandatory RFP requirements. It remains technically unacceptable today.” Id.
¶ 3. Mr. Martinez goes on to state that since the submission of FPRs, CWT has implemented six
software releases for its ETS1 system, E2 Solutions, but these releases have failed to satisfy all
of the ETS2 mandatory requirements. Id. ¶ 8. In particular, he asserts that CWT “did not
indicate which of the 99 outstanding requirements were allegedly being met, if any at all.
However, based on the six software releases for CWT’s ETS1 system, described above, the
agency has determined that only 11 of the 99 outstanding requirements may have been met in
E2.” Id. ¶ 9 (emphases omitted). Mr. Martinez concludes that if the court were to direct an
award to CWT today, the government would be “at risk of not receiving many mandatory
requirements or waiting another prolonged and unknowable period before CWT delivers the
requirements, the agency tests the requirements, and the requirements are deemed
acceptable.” Id.
With its opposition to defendant’s cross-motion, CWT filed Mr. McCauley’s declaration.
In his declaration, Mr. McCauley states that in his role, he “review[s] the development and
execution of [CWT’s] annual Product Management Plans including the release management
decisions associated with E2 Solutions functional releases.” McCauley Decl. ¶ 2. Mr.
McCauley states that consistent with the responses to CWT’s weaknesses and deficiencies
identified during the IV&V process, CWT “successfully executed a development plan to deliver
the remaining ETS-2 functional requirements . . . in November 2012.” Id. ¶ 5. The declaration
then states that CWT’s “focus has been to deliver E2 Solutions functionality to a demonstration
environment to fulfill the commitments expressed in our IV&V responses to GSA . . . [which]
was accomplished in November 2012 as promised and GSA may commence testing at any
time.” 5 Id. ¶ 7.
5
With its opposition to defendant’s cross-motion for judgment upon the administrative
record, CWT also submitted a declaration from Jim Hotze, the Vice President and Chief
- 19 -
c) Mr. Martinez’s Declaration
CWT argues that if the court strikes Mr. McCauley’s declaration, then, under the same
analysis, the court must also strike Mr. Martinez’s declaration. CWT asserts that Mr. Martinez’s
declaration lacks credibility and is false, but states that it did not file a motion to strike at the
time this declaration was offered because defendant was relying upon this declaration to support
its opposition to the injunction, rather than to support its merits argument under RCFC 52.1.
Further, CWT asserts that Mr. Martinez does not have any actual knowledge that the outstanding
items in CWT’s system are “still” not ready for testing, but rather that he is speculating that
“CWT may have incorporated only 11 out of 99 ETS2 requirements.” Pl.’s Mot. Strike 2
(quoting Martinez Decl. ¶ 15). Defendant correctly observes that a declaration that speaks to
injury can be considered by the court. Moreover, defendant asserts that as the contracting officer
at the time, Mr. Martinez was privy to the ETS2 retest results and had “actual knowledge” of
these failures, and even though he is no longer the contracting officer, Mr. Martinez is kept
apprised of contract issues impacting ETS1 in his current role, including CWT’s additional
software releases for its ETS1 system, E2 Solutions.
The court finds it appropriate to consider the declaration submitted by Mr. Martinez
because it speaks to the alleged harm that the government will suffer if forced either to award a
second contract to CWT or to reevaluate CWT’s technical acceptability. See PlanetSpace, 90
Fed. Cl. at 5; AshBritt, 87 Fed. Cl. at 366-67.
d) Mr. McCauley’s Declaration
Defendant asserts that because Mr. McCauley’s declaration did not exist and was not
before the government at the time it was conducting the evaluation, GSA obviously could not
have considered it when evaluating CWT’s FPR, and as a result, the declaration is irrelevant to
the court’s review of GSA’s ETS2 proposal evaluations and award determination. Moreover,
defendant argues that Mr. McCauley’s declaration is unnecessary for effective judicial review
because the record in this case is exhaustive, and “CWT’s effort to introduce extraneous
information into this proceeding, without first demonstrating that the existing record somehow
does not permit ‘meaningful review,’ is contrary to law.” Def.’s Mot. to Strike 7. Defendant
notes that CWT cites to Mr. McCauley’s declaration only once, and to support the statement that
it “‘has continued to develop its ETS2 system to satisfy all the RFP requirements. CWT has been
ready to demonstrate correction of the 99 weaknesses since the last week of November
Financial Officer of CWT. In his declaration, Mr. Hotze states that he has knowledge of the
various costs and expenditures incurred by the protester in developing ETS1 and ETS2. Hotze
Decl. ¶ 5. He states that since March 2003, CWT has incurred costs in excess of $[ . . . ] for
ETS1 and $[ . . . ] for ETS2, and that there is a risk that [ . . . ] full-time equivalent employees
would lose their jobs if CWT is not awarded a ETS2 contract. Id. ¶¶ 7-8. Neither defendant nor
Concur object to the court’s consideration of Mr. Hotze’s declaration because that declaration
speaks solely to CWT’s alleged irreparable harm. The Court of Federal Claims has previously
considered declarations that speak to prejudice and injunctive relief, deeming them part of the
record before the court. See PlanetSpace, 90 Fed. Cl. at 5; AshBritt, 87 Fed. Cl. at 366-67.
Therefore, the court finds it appropriate to consider this declaration.
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2012.’” Id. (quoting CWT Opp’n 37). In other words, defendant argues that Mr. McCauley is
attempting to testify, through his declaration, that CWT is “qualified and capable of performing
the work” under FAR 16.504(c)(1)(ii)(D)(1). Id. at 7-8. Whether CWT is ready to perform now,
defendant contends, is irrelevant to the merits of this bid protest. 6 Id. at 8.
CWT asserts that since it is not relying on Mr. McCauley’s declaration for RCFC 52.1
judgment, the Axiom principles are inapplicable. CWT states that it submitted Mr. McCauley’s
declaration for the sole purpose of countering Mr. Martinez’s allegations, and CWT only cites to
Mr. McCauley’s declaration once in support of its request for injunctive relief. Because Mr.
McCauley’s declaration counters the harm that the government alleges it will suffer if forced
either to award a second contract to CWT or to reevaluate CWT’s technical acceptability, the
court finds it appropriate to consider this declaration. See PlanetSpace, 90 Fed. Cl. at
5; AshBritt, 87 Fed. Cl. at 366-67.
e) Portions of Defendant’s Reply Brief
CWT also moves to strike the portions of defendant’s reply brief that purportedly contain
an argument that is both outside of the administrative record and was never raised in prior
briefing. In particular, CWT contends that defendant argues in its reply brief that CWT’s price
was deemed unreasonable even though the contemporaneous record reflects that GSA found all
proposals to be reasonably priced. Further, citing case law, CWT argues that the court should
also strike defendant’s that CWT’s price was deemed unreasonable because it was presented for
the first time in a reply brief.
Defendant contends that CWT is focusing on the wrong evaluation, and that CWT’s
“total price” (i.e., for CLINs 1-5 and their associated option CLINs) was evaluated and
determined to be unreasonable. Moreover, defendant asserts that in its opening brief, it pointed
out that CWT’s price was unreasonable and relied upon this finding in making its arguments.
Lastly, defendant argues that even if the court concludes that defendant did raise the price
reasonableness argument in its reply brief for the first time, the court should not consider the
issue waived because CWT is not prejudiced. Rather, defendant states that CWT has had the
opportunity to respond to this argument in its own motion to strike and at oral argument.
Defendant further notes that the waiver rule to which CWT cites is rooted in “concepts of fair
notice and prejudice.” Def.’s Reply to Mot. to Strike 12.
The court finds no basis to strike these portions of defendant’s reply brief. Defendant, in
its moving brief, did state that the evaluators “considered CWT’s single award price to be
unreasonable compared to Concur Proposal B’s single award price.” Def.’s Cross-Mot. at 44.
Further, the price analysis consensus report reflects that the Price Evaluation Board
“consider[ed] [CWT’s] Single Award price of $1,427,876,623 to be unreasonable compared to
the lowest competitive offer [submitted by Concur]. [CWT’s] Dual Award price of
6
Concur similarly argues that the existing record is more than sufficient to permit
meaningful review. Citing Axiom, 564 F.3d at 1379, Concur further asserts that the court should
only consider evidence that is already part of the record, instead of considering the McCauley
declaration, which was created for use before this court.
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$1,562,846,138 [is considered] to be unreasonable compared to the lowest competitive offer
[submitted by Concur].” Tab 122 at AR 7478. Therefore, the court will not strike these
arguments from defendant’s reply brief.
B. Arguments on the Merits
1. CWT Argues That GSA’s Decision to Make a Single Award Violated FAR 16.504(c)’s
Prohibition Against Awarding an IDIQ Contract Over $103 Million to a Single Source
Although the FAR establishes a general discretionary “preference” for multiple IDIQ
awards, FAR 16.504(c)(1)(ii)(D) permits the award of an IDIQ contract to a single source when
the procurement is valued in excess of $103 million and one of a limited number of exceptions is
present. CWT argues that no exception to the multiple-award mandate is present. The
government, however, asserts that because Concur was the only qualified and capable source, the
exception at FAR 16.504(c)(1)(ii)(D)(iii) applies. For the reasons discussed below, the court
holds that the government’s award decision was not consistent with FAR 16.504(c)(1)(ii)(D).
a) FAR 16.504, Indefinite-Quantity Contracts
Under FAR 16.504(c)(1)(i), the contracting officer “must, to the maximum extent
practicable, give preference to making multiple awards of indefinite-quantity contracts under a
single solicitation for the same or similar supplies or services to two or more sources.” The
contracting officer should consider the following when determining the number of contracts to
be awarded:
(1) The scope and complexity of the contract requirement.
(2) The expected duration and frequency of task or delivery orders.
(3) The mix of resources a contractor must have to perform expected task or
delivery order requirements.
(4) The ability to maintain competition among the awardees throughout the
contracts’ period of performance.
FAR 16.504(c)(1)(ii)(A). However:
(1) No task or delivery order contract in an amount estimated to exceed $103
million (including all options) may be awarded to a single source unless the head
of the agency determines in writing that—
....
(iii) Only one source is qualified and capable of performing the work at a
reasonable price to the Government.
FAR 16.504(c)(1)(ii)(D). Plaintiff cites to this provision in support of its argument, discussed
below, that the government did not determine that CWT was not qualified and capable of
performing the work at a reasonable price.
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b) The Parties’ Arguments
CWT contends that GSA’s decision to award only one contract violated FAR 16.504(c),
which prohibits an agency from awarding a major IDIQ contract to a single source, because
Concur is not the only source qualified and capable of performing the work at a reasonable price.
CWT asserts that GSA misunderstood FAR 16.504(c)(1)(ii)(D) when it evaluated proposals and
selected Concur for a single award because GSA mistakenly believed that a dual award was only
a “preference.” For instance, CWT points to the acquisition plan in which GSA stated that there
is a “strong preference for choice among providers . . . and for multiple awards.” Tab 118 at AR
6576. Further, CWT argues that GSA’s decision to follow FAR 16.504(c)(1)(ii)(A) was
unlawful because FAR 16.504(c)(1)(ii)(D) clearly states that “[n]o task or delivery order contract
in an amount estimated to exceed $103 million (excluding options) may be awarded to a single
source unless the head of the agency determines in writing” that one of the specific narrow
exceptions is present, including that there is only “one qualified and capable source.”
CWT argues that while its proposal contained weaknesses, its proposal did not fail to
conform to the material terms and conditions of the RFP. It claims that the only issue that led to
its Marginal rating was that its proposal did not adequately demonstrate that its system had
finalized all of the outstanding items. CWT argues that none of the case law cited by GSA or
Concur pertaining to “unacceptable” proposals is applicable to this protest because those cases
do not involve FAR 16.504(c)(1)(ii)(D). CWT asserts that because the government admits that it
did not make any finding that CWT was not qualified and capable of performing the work, this
protest should be sustained because FAR 16.504(c)(1)(ii)(D) requires the government to issue a
valid determination that “[o]nly one source is qualified and capable of performing the work” in
order to legally authorize the award of only one master IDIQ contract.
The government argues in response that it did not make a finding of whether CWT, as a
company, was qualified and capable of performing the work, but the government did find that
CWT’s FPR did not meet government requirements. Further, defendant notes that CWT
corrected some, but not all, of the significant weaknesses and chose not to correct its deficiency.
As a result, defendant argues that CWT’s FPR did not meet the RFP requirements, “which was
consistent with a rating of ‘Marginal’ and, therefore, was not technically acceptable.” Cross-
Mot. at 40. Defendant contends that because CWT’s proposal was not technically acceptable,
GSA could not award CWT an ETS2 contract as such an award would violate the procurement
statutes and regulations and would place significant risk upon the government that the awardee
may not be able to perform the contract. Moreover, defendant points out that the SSAC did
conclude that CWT is not “currently qualified.” Tab 103 at AR 5301.
c) GSA Did Not Satisfy FAR 16.504(c)(1)(ii)(D)(1)(iii)
As discussed above, FAR 16.504(c)(1)(ii)(D) permitted GSA to award one IDIQ contract
valued at greater than $103 million where there is only one source qualified and capable of
performing the work. This bid protest appears to be a case of first impression since there are no
reported decisions addressing this FAR exception.
Here, instead of discussing in the D&F whether CWT was qualified and capable of
performing the ETS2 work, the government’s D&F arrives at the conclusion that Concur is the
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only qualified and capable source because CWT received an overall rating of Marginal. That is,
the government essentially conducted a best value tradeoff, which was inappropriate for
purposes of FAR 16.504(c)(1)(ii)(D)(1)(iii). In the D&F, the government compares the relative
strengths and weaknesses in the offerors’ proposals under the RFP’s evaluation criteria and total
prices, as well as the perceived general risks and benefits of a single versus dual award. Thus,
GSA selected Concur on a best value basis, which was inconsistent with what FAR
16.504(c)(1)(ii)(D) required. Moreover, the assignment of a Marginal rating to CWT meant that
its proposal did not “meet Government requirements necessary for acceptable contract
performance, but issues are correctable.” Tab 2 at AR 767, 774 (emphasis added). The
government points to the D&F, in which the contracting officer stated that CWT was found “not
technically acceptable for contract award.” Tab 104 at AR 5405. Nonetheless, the government
assigned CWT a Marginal rating, which was not consistent with a finding that CWT, either the
company or its FPR, was not qualified and capable of performing the ETS2 work at a reasonable
price, but rather was a finding that CWT’s proposal did not meet “[g]overnment requirements
necessary for acceptable contract performance, but issues are correctable.” Tab 2 at AR 767,
774. A Marginal rating was different from an Unacceptable rating, which would be assigned
where the proposal contained “numerous weaknesses and/or deficiencies, or contains weaknesses
and/or deficiencies that are not correctable,” and the government determined that the offeror
would be “unable to successfully complete the required tasking.” Id.Moreover, the contemporaneous record appears to conflict with any alleged
determination that CWT is not qualified and capable of performing the work. CWT was
awarded a strength because “[t]he experience and capabilities of the E2 Solutions team, with
CWTSatoTravel as the prime, and Northrop Grumman Corporation (NGC), . . . are unmatched
by any other potential Offeror.” Tab 121 at AR 7240. While CWT received this strength under
the past performance factor, the government did state that the CWT team’s “experience and
capabilities” are unmatched by any other potential offeror. Therefore, the government was not
speaking simply of CWT’s past capabilities. The government gave CWT an Acceptable rating
under the past performance factor because CWT’s “proposal meets the performance and
technical capability requirements defined in the [Statement of Work]. The SSEB is confident
that the Offeror can successfully achieve the requirements in the [Statement of Work] if the
technical approach proposed is followed.” Id. at AR 7419. CWT also received the following
strength under the technical factor, Project Management Plan:
The Offeror states that “by combining CWTSatoTravel and NGC’s resources, the
client agencies currently serviced under NGC will have the expertise of resources
currently servicing their account.” The knowledge they have of their ETS1
clients will minimize the amount of time during the preparation phase and assist
in the setup within the Offeror’s ETS2 solution. This shows potential for reducing
migration tasks or shortening the time to perform RFP requirements to meet goals
and to minimize the disruption, costs, and time required to integrate agency
systems to ETS2.
Id. at AR 7411.
- 24 -
With respect to the allegation that CWT is not qualified and capable of performing the
work at a “reasonable price,” the record here also is inconsistent. In the SSDD, the government
states that CWT “was not competitive when compared” to Concur, and CWT’s “price proposal
was the highest priced offer.” Tab 103 at AR 5295. Then, the SSDD reflects that the
government performed a best value tradeoff analysis, stating “it is not reasonable to pay
$231,326,712 more for a Marginal proposal with significant weaknesses and a security
deficiency.” Id. at AR 5296 (emphasis omitted). However, as stated above, it was improper to
make a single award based on a best value tradeoff approach. The government additionally
states that “some of CWTSatoTravel’s price assumptions [were] reasonable, representing
minimal risk to the Government,” but “11 of 31 price assumptions represented cost and/or
performance risk to a degree that was considered unreasonable as these assumptions could result
in either a refusal to perform or delay in performance.” Id. at AR 5297. However, the D&F
reflects that the government only selected Concur for award because it had a higher rating and
lower relative price, not because CWT’s price was “unreasonable.” See Tab 104 at AR 5406
(“The Government determines that Concur Technologies, Proposal B, is superior to
CWTSatoTravel’s proposal in overall technical merit and is lowest in evaluated price,
representing less risk of performance issues at a more favorable price.”). Finally, the SSDD
reflects that the government believed that “[a]ll proposals had both reasonably and unreasonably
priced CLINs, and “[w]hile a few of the prices for individual CLINs were determined to be
unreasonable, the overall price offered was determined to be fair and reasonable for all three
offers, despite the presence of these unreasonably priced CLINs.” Tab 103 at AR 5288.
On the one hand, the RFP did require the agency to make a best value determination. On
the other hand, the FAR nonetheless allowed the agency to award to a single offeror only upon
determining that there is a single source that is qualified and capable of performing the work at a
reasonable price. Here, the record demonstrates that the agency used a best value determination
when it decided to award the contract to a single offeror. That is, the agency selected Concur
because it was technically superior and priced lower than CWT. Such determination is
inconsistent with FAR 16.504(c)(1)(ii)(D).
2. CWT Contends That GSA Engaged in Unequal Treatment
CWT next argues that GSA’s award decision was the result of unequal treatment.
Specifically, CWT contends that GSA did not require Concur to demonstrate compliance with all
requirements before award, but required CWT to improve its offer by addressing the outstanding
ninety-nine items prior to award, and when CWT did not, GSA used this as the primary reason to
determine that Concur was the only source qualified and capable of performing the work. With
respect to Concur, CWT asserts that GSA permitted Concur to address at least sixteen IV&V
functional/usability factor weaknesses after contract award without deeming it unqualified or
incapable of performing the work. In particular, CWT states that Concur promised to start
studying the weaknesses, which were not insignificant, sixty days after award and then develop a
plan to improve its ETS2 solution, but Concur did not commit to when or even if these
weaknesses would actually be corrected. CWT also points out that Concur stated that it would
correct a security weakness thirty days after award and before the agency goes live, and GSA
apparently agreed that this was acceptable, but found that it was not acceptable for CWT to
promise to correct all weaknesses a year before the agency goes live.
- 25 -
With respect to the GAO decision, CWT contends that while GAO properly recognized
that GSA’s response to CWT’s unequal treatment claim was without merit, GAO improperly
concluded that this GSA error was not prejudicial. CWT asserts that GAO’s analysis that CWT
did not suffer prejudice was flawed because this was not a best value decision where the agency
makes a tradeoff to select the winner.
The government identified 186 “weaknesses, including those considered significant
weaknesses, deficiencies, and comments concerning objectives not fully met, from the
Government’s Phase II evaluation which require[d] [Concur’s] attention in preparation for
negotiations.” Tab 91 at AR 4961. Concur’s FPR reflects that for sixteen of the 186, Concur
stated that the government’s comments would be “considered as outlined in section 4.0 of the
PMP.” Tab 120 at AR 7292-93, 7318-20, 7328-31. In Section 4.4 of Concur’s Project
Management Plan, Concur stated:
[ . . .]
Id. at AR 7058. Thus, Concur’s plan merely consisted of a promise to start studying the
weaknesses within sixty days after award and then develop a plan to improve its ETS2 solution.
The SSEB report includes the following reference to this issue: “Due to not re-testing
usability, usability weakness comments previously evaluated remained as weaknesses.” Tab 121
at AR 7368. The SSAC report does not appear to address the issue. However, with respect to
CWT’s approach to offering postaward testing, the SSAC/PAR shows that CWT was evaluated
adversely under the IV&V functional/usability factor. See Tab 103 at AR 5386 (“Vendor has
cited that [the feature/function] will be in the November 2012 update, but at present, this exposes
the government to risk of contract underperformance via an unmet requirement. This is a
SIGNIFICANT weakness.” (emphasis omitted)).
In response, the government asserts that by CWT not even offering to address the ninety-
nine requirements it failed to meet in its FPR, GSA could not evaluate them, but Concur offered
the functionalities associated with the minor weaknesses in its FPR, and therefore, those
functionalities could be evaluated. Next, the government states that the language CWT quotes
from Concur’s FPR as proof that GSA accepted Concur’s postaward remediation plan while not
accepting CWT’s postaward remediation plans is misleading because the RFP requires ongoing
usability improvements, which can only be made after award when users use the tool and can
provide feedback. The government contends that, by contrast, CWT’s postaward promises to
remediate its significant weaknesses and deficiency were not acceptable because “they were not
specific, failed to detail the resources or methodology [CWT] would use to resolve issues, and
did not provide a schedule of what functionality would be available and when.” Def.’s Reply 7.
This is an insufficient explanation for why the government considered Concur’s proposed
approach of postaward testing under this factor as acceptable, but the government viewed CWT’s
approach as a significant weakness. The government notes that Concur’s proposal did not suffer
from several significant weaknesses and a deficiency as CWT’s did. It appears, however, that
the government unfairly held CWT to the award date in finding CWT to be technically
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unacceptable but did not do the same for Concur, and even allowed Concur to correct
outstanding items postaward with a remediation plan that was not as specific as the government
asserts in its briefing. The government contends that CWT did not address the ninety-nine
outstanding requirements in its FPR, but even if in general terms, CWT agreed to comply with
all RFP terms, including those ninety-nine requirements that were to be incorporated by
November 2012. Tab 113 at AR 6091, 6095-97. Concur’s FPR, as quoted above, does not
appear to fare better, stating also that it would address the requirements after award, and the
SSEB stated that it had reviewed “the remediation plan; however, it did not inspire the level of
confidence in the board to remove the applicable weakness comments.” Tab 121 at AR 7392.
While both CWT and Concur responded to some of the concerns the government had with their
proposals with plans to correct the weaknesses after award, GSA treated CWT and Concur
unequally by rejecting CWT’s postaward compliance date but accepting Concur’s promises.
GAO determined that even if there was unequal treatment, such error was not prejudicial
to CWT in this best value competition. However, in the context of FAR
16.504(c)(1)(ii)(D)(1)(iii), when the agency decided to make a single award and had to
determine whether there was only a single source that was qualified and capable of performing
the work at a reasonable price, such error could have impacted CWT’s chance at obtaining an
award.
3. CWT Contends That GSA Permitted Concur to Take Exception to Mandatory RFP
Requirements and/or Qualify Its Promise to Meet RFP Requirements
It is well-established that a “contracting agency must treat all offerors equally, evaluating
proposals evenhandedly against common requirements and evaluation criteria.” Banknote Corp.
of Am. v. United States, 56 Fed. Cl. 377, 383 (2003), aff’d, 365 F.3d at 1345; see also Afghan
Am. Army Servs. Corp. v. United States, 106 Fed. Cl. 714, 729 (Fed. Cl. 2012). “[U]neven
treatment goes against the standard of equality and fair-play that is a necessary underpinning of
the federal government’s procurement process and amounts to an abuse of the agency’s
discretion.” PGBA, LLC v. United States, 60 Fed. Cl. 196, 207 (2004), aff’d, 389 F.3d 1219(Fed. Cir. 2004); see also TLT Constr. Corp. v. United States, 50 Fed. Cl. 212, 216 (2001) (“A
fundamental principle of government procurement is that [the agency] treat all offerors equally
and consistently apply the evaluation factors listed in the solicitation.”).
CWT asserts that Concur took exceptions to certain RFP requirements and included
conditions regarding the personnel, resources, and responsibilities that each agency customer
must contribute for Concur to meet mandatory RFP requirements, but the government failed to
evaluate the substantial risk and cost associated with these conditions. As a result of Concur’s
conditioned proposal commitments, CWT argues that Concur was not capable of performing
100% of the ETS2 requirements at the time of contract award. Therefore, CWT contends that
GSA’s determination that Concur is the only qualified and capable source was based on an
arbitrary, irrational, and unequal evaluation. Finally, CWT asserts that Concur’s “conditioned
commitments are the substantive equivalent of pricing assumptions embedded within its
technical proposal,” and GSA failed to evaluate the significant costs and burdens that Concur’s
compliance plan imposes upon individual agencies and the implications of Concur’s qualified
commitment to perform. Pl.’s Mot. at 45.
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a) Accommodated Travel Management Centers (“ATMCs”)
CWT asserts that GSA waived express RFP requirements regarding ATMCs by
disregarding Concur’s exception to the requirement that ETS2 contractors accommodate ATMCs
at no additional cost to the ATMC. Section C.4.2.12, Accommodated Travel Management
Centers, of the RFP states:
Customer agencies may utilize [Travel Management Centers] other than
Contractor’s [Embedded Travel Management Centers] for ETS2 fulfillment and
agent-assisted reservation services, including [Agent-Assisted Travel Reservation
Service]. Accordingly, the Contractor shall be required to accommodate the
services of ATMCs.
The Contractor shall establish a cooperative relationship with each [Travel
Management Center], including ATMCs, to ensure the Federal traveler
experiences no degradation in travel service, consistent with the terms, conditions,
and scope of the contract to be awarded hereunder . . . .
Tab 2 at AR 90. One of the mandatory requirements with respect to ATMCs was the following:
The Contractor shall accommodate an ATMC at no expense to the ATMC or no
additional cost beyond the transaction fee to the government in accordance with
proposed expedited customer agency accommodation schemes to speed
transaction utilization and growth.
Id. at AR 91.
In particular, CWT alleges that Concur stated that its ability to engage with an ATMC
would depend on the ATMC’s willingness to mitigate or absorb various costs that may be
associated with using the particular ATMC, and that Concur insisted that all ATMCs bear the
costs arising from the integration with its ETS2 system. The government argues that the ATMC
requirement was intended to ensure that the contractor did not charge ATMCs ancillary fees over
and above the reservation and fulfillment transaction fees paid by the government in the resulting
contract, and both the government and Concur argue that the Concur proposal did not state that
Concur would charge ATMCs.
For instance, Concur stated that its “[ . . .].” Tab 120 at AR 6912. It went on to say:
“[ . . . ].” Id. Concur then stated that it would engage ATMCs if they would agree to business
terms, including: “[ . . . ].” Id.The RFP stated that an offeror was prohibited from charging a fee to the ATMC in order
to accommodate the ATMC or from charging a fee to the government in addition to the awarded
price, but an offeror did not have to accommodate or indemnify an ATMC for costs charged by
the ATMC’s third-party supplier. Thus, Concur did not state that it would charge ATMCs or the
government fees, but rather, Concur discussed how it would handle fees that could be charged to
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the ATMCs by third-party vendors. Concur stated that if the ATMC’s third-party supplier
charged certain fees in excess of what Concur would charge for the same service, the ATMC
could select a different third-party supplier or absorb the additional fees.
CWT also argues that Concur shifted the costs of training to the ATMCs, and this is a
price assumption that should have been included in its proposal. Concur stated: “[ . . . ].” Id. In
other words, if Concur must provide training services to the government that include information
specific to the ATMC, then the ATMC will bear the cost or pay Concur for that ATMC-specific
content. This is not a price assumption that impacts what the government pays, and CWT has
not pointed to any requirement in the RFP that mandates that an offeror train customers on an
ATMC’s specific information. Likewise, CWT asserts that Concur required the ATMC to
absorb fees associated with Concur auditing and/or devising quality control routines for the
ATMC. Here, too, there was no RFP requirement that Concur perform quality control on behalf
of ATMCs who are under separate contracts to ordering agencies. The court finds no merit to
any of these arguments raised by CWT.
b) Integration With Customers’ Business Systems
CWT next argues that Concur took exception to the RFP, section C.8, “Agency Business
Systems Data Integration Capabilities and Characteristics,” which states: “[G]oals for
integration in ETS2 are to a) minimize the disruption, costs, and time required to integrate
agency systems to ETS2 to the maximum extent possible, b) promote technologies that provide
for the accurate and timely exchange of data in accordance with agency needs, and c) support
easier adaptation later (should agencies need that).” Tab 2 at AR 149. CWT points to Concur’s
technical proposal, in which Concur states that it has “[ . . . ].” Tab 120 at AR 7062-63. Such
language, CWT contends, required the government to provide specific and extensive personnel
resources, in a way that violated the stated objective of minimizing costs and time to the
customer agencies.
The court finds no merit to CWT’s argument. The RFP required the contractor to
coordinate with the customer agency regarding integrating agency systems and transition to
ETS2. Clearly, agencies have to be involved in the integration and implementation process to
ensure successful transition. Moreover, the RFP required offerors to clearly identify agency
roles and responsibilities in the transition and implementation process. Tab 2 at AR 742; Tab
120 at AR 7062.
c) Types of Travel
In section C.3.2.1, Mandatory Requirements, the government identified the following
types of federal official travel that had to be addressed by a contractor’s ETS2 system:
1) Temporary duty (TDY) travel, including foreign and domestic;
2) Local travel;
3) Long-term TDY, including foreign and domestic;
4) Blanket/Open Travel;
5) Group Travel;
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6) Invitational travel;
7) Non-Federally Sponsored travel;
8) Joint Federal Travel Regulation (JFTR) authorization and voucher
entitlements for the U.S. Coast Guard (see Attachment 12, Joint Federal
Travel Regulation (Separately Priced Mandatory Requirement)[)];
9) Federal Emergency Management Administration (FEMA) Surge Blanket
Travel (SBT), which requires an extremely large number of employees to
be granted authority to travel under one travel authorization. See
Attachment 13, FEMA Surge Blanket Travel Requirements (Mandatory,
Separately Priced), for more detail;
10) U.S. Department of State (DoS) authorization and voucher requirements
for dependents. (See Attachment 19, Department of State Travel for
additional guidance and 14 FAM 500 and 4 FAM 460 for specific
requirements (Mandatory, Separately Priced)). Entitlement computations
including family members but excluding relocation are separately priced;
11) Other special types of travel that are included in the as-determined-by-
customer agency task order requirements. These may include, but are not
limited to the following;
1) Patient travel (Mandatory, Separately Priced); and
2) Entitlement travel for overseas Government employees including:
a. Educational travel for dependents overseas with employees,
including JFTR[,] DoS, and U.S. Agency for International
Development (USAID);
b. Medical evacuation, including JFTR, DoS, USAID;
c. Dependent patient travel, including JFTR, DoS, USAID;
d. Escort travel, including JFTR, DoS, USAID;
e. Attendant travel, including JFTR, DoS, USAID;
f. Ship-overhaul travel for JFTR;
g. Home leave, including JFTR, DoS, USAID;
h. Rest and Recuperation (R&R) travel, including JFTR, DoS,
USAID; and
12) Visitation travel for children of separated parents, including JFTR, DoS,
USAID.
Tab 2 at AR 61. The government also stated that it intended to test certain section C
requirements during the IV&V phase, but reserved the right to adjust the requirements tested. Id.at AR 722. “Mandatory, separately priced requirements will not be tested during Phase II IV&V,
but will be tested after award.” Id. Of relevance here, the government identified requirements 1
through 7 and 11.2 of section C.3.2.1, Types of Travel, as those that it intended to test during the
IV&V phase. Id. at AR 722-23. In other words, requirements 8 through 10, 11.1, and 12 were
not marked as those that the government intended to test.
CWT argues that Concur qualified its promise to meet four mandatory section C.3.2.1
requirements, months after award, when it stated in its proposal that “‘[f]our comprehensive
mandatory requirements specified in the solicitation may require some additional work to fully
support, as outlined below.’” Pl.’s Mot. 44 (quoting Tab 120 at AR 7039). In particular, CWT
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cites to requirements 8 through 11 of section C.3.2.1 that described the types of federal official
travel that the contractor’s ETS2 had to support. Tab 2 at AR 61. The government and Concur
state that the contracting officer noted that these requirements “were specifically excluded from
the pre-award evaluations,” (Def.’s Cross-Mot. 51 (quoting Tab 128 at AR 7661-62)), and the
government notes that both Concur and CWT offered to develop these specific requirements that
would apply only to specific agencies upon the award of a task order.
CWT’s challenge has no merit. The RFP, section E.6.3.6.3, Mandatory Requirements
Testable in IV&V, identified certain requirements that the government intended to test during the
IV&V and other requirements that would “not be tested during Phase II IV&V, but [would] be
tested after award.” Tab 2 at AR 722. Requirements 8 through 10 of section C.3.2.1 were not
identified as those that would be tested during IV&V. Id. at AR 723. Requirement 11 was
divided into 11.1 and 11.2. Defendant, nonetheless, asserts that requirements 8 through 11 were
not on the table. Requirement 11.1 was not on the table of requirements that the government
would test during IV&V. Requirement 11.2, however, which required the contractor to support
entitlement travel for overseas government employees, including educational travel and medical
evacuation, was on the table of requirements that would be tested during IV&V. Id. Thus, it
appears that the government intended to evaluate requirement 11.2 of section C.3.2.1 during
IV&V. However, neither offeror appears to have been downgraded for not meeting this
requirement during IV&V testing. Moreover, like Concur, CWT did not offer to provide these
same requirements before award. Tab 113 at AR 5949, 6095. Thus, CWT cannot establish that
its proposal was prejudiced.
d) Section 508 Requirements
Third, CWT claims that Concur qualified its commitment to meet the RFP’s mandatory
“Section 508” requirements up to ninety days after contract award. Pl.’s Mot. 45 (referring to
Tab 120 at AR 7257). The government notes that neither offeror met this requirement preaward.
Rather, as the government notes, both offerors offered an acceptable remediation plan for this
issue, and neither offerors’ proposal was downgraded. Finally, Concur argues that it did not take
exception to the Section 508 compliance requirement and the agency specifically noted during
discussions that both Concur and CWT had weaknesses with their compliance.
This CWT challenge also lacks merit. Both offerors proposed postaward solutions to
Section 508 compliance as permitted by the RFP. During discussions and in their FPRs, both
offerors improved their proposals by offering remediation plans for how they would meet the
Section 508 requirements. The government determined that both remediation plans were
satisfactory regarding Section 508 compliance, and the record reflects that neither offeror was
downgraded for its failure to provide full preaward Section 508 compliance. Tab 121 at AR
7396-98, 7427-28. CWT has not shown that it was treated differently than Concur, and it has not
shown that it suffered prejudice.
C. CWT Was Prejudiced
The Federal Circuit has held that “prejudice (or injury) is a necessary element of
standing” in bid protests. Myers, 275 F.3d at 1370. To establish prejudice, CWT “must show
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that it had a substantial chance of being awarded the contract but for the alleged violation of the
procurement statute or regulation.” Hamilton Sundstrand Power Sys. v. United States, 75 Fed.
Cl. 512, 515 (2007). In other words, CWT’s “chance of securing the award must not have been
insubstantial.” Info. Tech., 316 F.3d at 1319. When a protester asserts a violation of regulation
or procedure, “the disappointed bidder must show ‘a clear and prejudicial violation of applicable
statutes or regulations.’” Impresa, 238 F.3d at 1333; Data Gen., 78 F.3d at 1562-63. As
explained above, the government failed to follow FAR 16.504(c)(1)(ii)(D)(1)(iii) and treated the
offerors unequally. As a result, CWT was significantly prejudiced by the government’s actions.
Further, the court gives no weight to the government’s contention, made in the midst of
litigation, that the agency would reach the same conclusion should the court find that the
government violated the FAR.
D. Injunctive Relief Is Appropriate
To obtain permanent injunctive relief, CWT must demonstrate: (1) success on the
merits; (2) irreparable harm to CWT if the injunction is not granted; (3) the balance of hardships
on all parties weighs in CWT’s favor; and (4) that an injunction is in the public interest. See
PGBA, 389 F.3d at 1228-29 (citations omitted). No single factor is determinative, and “the
weakness of the showing regarding one factor may be overborn by the strength of the
others.” 7 FMC Corp. v. United States, 3 F.3d 424, 427 (Fed. Cir. 1993). CWT has
demonstrated that GSA’s determination that Concur was the only source qualified and capable of
performing the work at a reasonable price and GSA’s decision to award a single IDIQ contract
were arbitrary and unlawful and, therefore, has satisfied the first element of success on the
merits. As discussed below, the remaining three factors also weigh in CWT’s favor. 8
7
The government, citing Baird Corp. v. United States, 1 Cl. Ct. 662, 664 (1983), argues
that CWT must establish an entitlement to injunctive relief by clear and convincing evidence.
The court disagrees, and finds persuasive the analysis in Textron, 74 Fed. Cl. at 287, and
Bannum, Inc. v. United States, 60 Fed. Cl. 718, 723-24 (2004), aff’d 404 F.3d at 1346. There is
no binding precedent requiring this elevated burden of proof. See Bannum, 60 Fed. Cl. at 723.
It is clear from a review of the relevant precedent that the preponderance of the evidence test
should apply. See Career Training Concepts, Inc. v. United States, 83 Fed. Cl. 215, 218-19
(2008).
8
In its complaint and motion for judgment upon the administrative record, CWT requests
that the court “issue an injunction directing GSA to award a second IDIQ contract to CWT.”
Compl. at ¶ 9; Pl.’s Mot. 47. The court, however, lacks the authority to direct the award of a
contract. As the Federal Circuit has held, the disappointed bidder has “‘no right . . . to have the
contract awarded to it in the event the . . . court finds illegality in the award of the contract . . . .’”
CACI, Inc.-Fed. v. United States, 719 F.2d 1567, 1575 (Fed. Cir. 1983) (quoting Scanwell Labs.,
Inc. v. Shaffer, 424 F.2d 859, 864 (D.C. Cir. 1970)). Rather, appropriate injunctive relief is
where the court “enjoin[s] the illegal action and return[s] the contract award process to the status
quo ante.” Parcel 49C Ltd. P’ship v. United States, 31 F.3d 1147, 1153 (Fed. Cir. 1994); see also
Turner Constr. Co. v. United States, 645 F.3d 1377, 1388 (Fed. Cir. 2011) (same).
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1. CWT Has Demonstrated Irreparable Harm
When assessing irreparable injury, “[t]he relevant inquiry in weighing this factor is
whether plaintiff has an adequate remedy in the absence of an injunction.” Overstreet Elec. Co.
v. United States, 47 Fed. Cl. 728, 743 (2000) (citation omitted). The Court of Federal Claims
has repeatedly held that a protester suffers irreparable harm if it is deprived of the opportunity to
compete fairly for a contract. See CRAssociates, Inc. v. United States, 95 Fed. Cl. 357, 390-91
(2010); Serco, Inc. v. United States, 81 Fed. Cl. 463, 501-02 (2008); Impresa Construzioni
Geom. Domenico Garufi v. United States, 52 Fed. Cl. 826, 828 (2002).
The facts here demonstrate that CWT will suffer irreparable harm if the court does not
provide injunctive relief. The ETS2 IDIQ contract vehicle will provide over seventy individual
federal civilian agencies with electronic travel management services, with up to a fifteen-year
period of performance and an evaluated contract price exceeding $1.3 billion. CWT asserts that
in the absence of an injunction, Concur will possibly have a fifteen-year monopoly over
electronic travel management services for these federal civilian agencies, “effectively shutting
CWT out of this market for good.” Pl.’s Mot. 47. CWT also asserts that it would likely be
forced to lay off [ . . .] employees.
The government and Concur argue that economic harm only is insufficient to meet this
prong of the four-factor test. However, the cases cited in support of this argument are
inapplicable. As noted above, the losses alleged by CWT that derive from a lost opportunity to
compete on a level playing field for a contract have been found sufficient to prove irreparable
harm. See, e.g., CRAssociates, 95 Fed. Cl. at 390. Accordingly, plaintiff has adequately
demonstrated that it will suffer irreparable harm if injunctive relief is not provided.
2. The Balance of Hardships Weighs in Favor of an Injunction
Under this factor, “the court must consider whether the balance of hardships leans in
plaintiff’s favor,” requiring “a consideration of the harm to the government and to the
intervening defendant.” Reilly’s Wholesale Produce v. United States, 73 Fed. Cl. 705, 715
(2006). The government, citing the contracting officer’s declaration, asserts that it will be
significantly harmed by a directed award to CWT. The contracting officer explains that a
directed award to CWT would result in the government procuring services from a company that
as of today still cannot satisfactorily comply with the terms of the RFP. This argument is moot
because, as the court has explained, it does not have the authority to direct an award to a
contractor. The government further argues that an injunction ordering GSA to evaluate CWT’s
current technical acceptability would be fruitless because any proposal CWT could currently
submit would not be technically acceptable, and agency resources would be wasted in the
process. The government additionally asserts that allowing CWT to submit a revised final
proposal would likely delay the transition from ETS1 to ETS2 and result in significant cost
increases for the government.
On the other hand, CWT states that it is not requesting an opportunity to submit a revised
proposal, and as a result, there is no need for GSA to incur costs associated with restarting the
evaluation process. Rather, CWT asserts that the government need only verify CWT’s system to
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issue an authority to operate, just as it had to do with Concur and its remediation plan after
contract award. Finally, CWT asserts that Concur will not be harmed because CWT has not
asked that Concur’s award be disturbed.
With respect to the delay that the government states is likely to occur, the Court of
Federal Claims has observed that “‘only in an exceptional case would [such delay] alone warrant
a denial of injunctive relief, or the courts would never grant injunctive relief in bid
protests.’” Id. (quoting Ellsworth Assocs., Inc. v. United States, 45 Fed. Cl. 388, 399
(1999)); see also Serco Inc., 81 Fed. Cl. at 502 (same); Reilly’s Wholesale, 73 Fed. Cl. at 715-16
(same). Defendant has offered no reason why this is such an exceptional case. Any harm to
GSA stemming from potential delay to ETS2 transition is mitigated by GSA’s ability to exercise
its options under the current ETS1 contract through November 2015. Moreover, the
government’s assertion that it would be required to procure travel services from CWT even if its
ETS2 system is not fully compliant is erroneous because an IDIQ contract merely allows CWT
to compete for task orders, and it will only win and perform task orders if it meets RFP
requirements at competitive prices and has an authority to operate. Further, with respect to an
increase in transition costs, any harm flowing to any offeror or to itself stems from defendant’s
own arbitrary and capricious actions.
3. The Public Interest Will Be Served if the Court Enters an Injunction
“[T]he public interest in honest, open, and fair competition in the procurement process is
compromised whenever an agency abuses its discretion in evaluating a contractor’s bid.” PGBA,
LLC v. United States, 57 Fed. Cl. 655, 663 (2003); see also Bilfinger Berger AG Sede
Secondaria Italiana v. United States, 94 Fed. Cl. 389, 393 (2010) (“The public interest in
preserving the integrity and fairness of the procurement process is served by enjoining arbitrary
or capricious agency action . . . .”). Here, the public interest is best served by requiring the
government to comply with federal procurement law–law that was intended to promote
competition.
V. CONCLUSION
For the reasons set forth above, it is hereby ORDERED:
1. The court DENIES defendant’s motion to dismiss.
2. CWT’s Motion for Judgment on the Administrative Record is GRANTED. The
General Services Administration, its officers, agents, servants, employees and
representatives, and all persons acting in concert and participating with them
respecting the subject procurement, are ordered to conduct a reevaluation
consistent with FAR 16.504(c), and in particular FAR 16.504(c)(1)(ii)(D)(1)(iii),
and this court’s decision. In the interim, the contract award to Concur shall
remain in full force and effect.
3. The court DENIES defendant’s and defendant-intervenor’s cross-motions for
judgment upon the administrative record.
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4. The court DENIES plaintiff’s, defendant’s, and defendant-intervenor’s motions to
strike.
5. Prior to the release of this opinion to the public, the parties shall review it for
competition-sensitive, proprietary, confidential, or other protected information.
The parties shall confer and file a joint proposed redacted version of this decision
by no later than Monday, April 8, 2013.
6. The Clerk is directed to enter judgment on the administrative record in favor of
plaintiff consistent with this opinion.
s/ Margaret M. Sweeney
MARGARET M. SWEENEY
Judge
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