Quantico Tactical Inc. v. United States ( 2020 )

In the United States Court of Federal Claims
Nos. 20-120C & 20-150C (consolidated)
(Originally Filed: September 23, 2020)
(Re-issued: November 2, 2020)1
**************************
QUANTICO TACTICAL INC.,
Plaintiff,
v. Pre-award bid protest;
Competitive range
THE UNITED STATES, determination; FAR
15.306; technically
Defendant, unacceptable; prejudice.
and
ATLANTIC DIVING SUPPLY, INC.
Intervenor-Defendant.
**************************
UNIFIRE, INC.,
Plaintiff,
v.
THE UNITED STATES,
Defendant.
**************************
Anuj Vohra, Washington, D.C., with whom was Daniel R. Forman,
Eric M, Ransom, and Rina M. Gashaw, for plaintiff Quantico Tactical Inc.
1
This opinion was originally issued under seal in order to afford the parties
an opportunity to propose redactions of protected material. The parties have
done so but disagree as to the extent of those redactions. Appropriate
redactions appear in brackets below.
David S. Black, Tysons Corner, VA, for plaintiff Unifire, Inc. Gregory
R. Hallmark and Amy L. Fuentes of counsel.
Douglas T. Hoffman and Mariana T. Acevedo, United States
Department of Justice, Commercial Litigation Branch, Civil Division,
Washington, D.C., with whom was Martin F. Hockey, Jr., Deputy Director,
Robert E. Kirschman, Jr., Director, and Ethan P. Davis, Acting Assistant
Attorney General, for defendant.
Paul F. Khoury, Washington, D.C., for intervenor. John R. Prairie,
Kendra P. Norwood, and J. Ryan Frazee of counsel.
OPINION
BRUGGINK, Judge.
In these consolidated bid protest actions, Quantico Tactical Inc.
(“Quantico”) and Unifire, Inc. (“Unifire”) challenge their exclusion from the
competitive range by the Defense Logistics Agency (“DLA”) in a
procurement for special operations equipment and logistical support.
Pending before the court are plaintiffs’ motions for judgment on the
administrative record and the cross-motions of defendant and intervenor,
Atlantic Diving Supply, Inc. (“ADS”). The motions are fully briefed, and
oral argument was held on September 15, 2020. Because Quantico cannot
show prejudice, its protest must be denied. Unifire’s protest is denied because
it has not shown irrationality in DLA’s decision to exclude it from the
competitive range.
BACKGROUND
On November 16, 2018, DLA issued Request for Proposals (“RFP”)
No. SPE8EJ-18-R-0001 for the Special Operations Equipment (“SOE”)
Tailored Logistics Support (“TLS”) Program. The RFP contemplated
multiple awards for an indefinite-delivery/indefinite-quantity (“IDIQ”)
contract with a two-year base period and up to four two-year option periods
(potential 10-year total). Under the SOE TLS program, contract holders will
compete to supply special operations equipment to authorized Department of
Defense customers. In addition, contractors will provide logistics support for
the supplied equipment.
The RFP provides that DLA would engage in a best value tradeoff
process to make “[a]wards . . . to offerors whose proposals are most
advantageous to the Government considering non-price evaluation factors
and price.” Administrative Record (“AR”) at 151. The two non-price
2
evaluation factors are: Factor I – Past Performance; and Factor II – Technical
Merit. The Technical Merit Factor is broken into two subfactors: (a) Product
Sourcing and (b) Distribution. Factor I is more important than Factor II and,
within Factor II, (a) Product Sourcing is more important than (b)
Distribution. Non-price factors are “significantly more important than
price,” but, the importance of price would increase if the technical merits of
proposals were equivalent. Id.
The Past Performance Factor assesses “the offeror’s probability of
meeting the solicitation requirements.” Id. at 151-52. Offerors were to submit
up to three past performance references to allow DLA to evaluate their
relevance. DLA would then assign a ranking based on each past performance
reference of either “Very Relevant,” “Relevant,” “Somewhat Relevant,” or
“Not Relevant,” along with a quality of contractor performance ranking of
either “Outstanding,” “Good,” “Acceptable,” “Marginal,” or
“Unacceptable.” Id. at 145, 152. These assessments resulted in DLA
assigning an overall “Confidence Assessment” of the contractor’s ability to
perform on the new contract—“Substantial Confidence,” “Satisfactory
Confidence,” “Limited Confidence,” “No Confidence,” or “Neutral
Confidence”—which DLA assigned “based on the offeror’s record of
relevancy and quality of performance.” Id. at 152.
The Solicitation’s Statement of Work (“SOW”) contained several
critical performance metrics that offerors’ proposals would be measured
against. Contractors are required to maintain a “quote rate” of 90%, meaning
the contractor “must submit quotes on 90% of the Delivery Order RFQs.”
AR 130. Contractors must also maintain a 95% “fill rate,” defined as the
proportion of quantity ordered that the contractor actually delivers. Id. at 135.
The contractor also must maintain a 90% “on-time delivery rate,” defined as
the proportion of quantity ordered that the contractor delivers on time. Id.
Under Factor II, Technical Merit, subfactor (a), Product Sourcing,
DLA would assess an offeror’s plan to meet certain RFP requirements,
including: (1) purchasing system requirements; (2) a 90 percent Quote Rate
Performance Metric; and (3) a 95 percent Fill Rate Metric. Subfactor (b),
Distribution, would assess an offeror’s distribution plan for whether it could
“meet the delivery requirements including, routine, urgent, emergency
orders, and consolidated bill of material requirements and plan to meet the
90% on-time delivery metric and ensure control over subcontracting.” Id. at
153. Under each subfactor, DLA promised to assign an overall adjectival
rating of “Outstanding,” “Good,” “Acceptable,” “Marginal,” “Unacceptable”
based on the strengths, deficiencies, weaknesses, and risks of the offeror’s
proposal. AR at 45-46 (acquisition plan).
3
The Source Selection Plan explained that these adjectival technical
ratings “reflect[] the degree to which the proposal meets or does not meet the
minimum requirements” for each subfactor. Id. at 43 (Product Sourcing), 44
(Distribution). An offeror’s plan to meet the SOW’s performance metrics
was an important aspect of the ratings for each subfactor. See id. at 43-46.
An unacceptable rating was defined as a “proposal [that] does not meet
requirements of the solicitation, and thus, contains one or more deficiencies,
and/or risk of unsuccessful performance is unacceptable.” Id. at 44, 46. The
solicitation warned that such a rating meant that the proposal was
“unawardable.” Id. A “weakness” was defined by DLA to mean a “flaw in
the proposal that increases the risk of unsuccessful contract performance,
while a “deficiency” meant that DLA found a “material failure of a proposal
to meet a Government requirement.” AR at 151. A deficiency was
alternatively defined as a “combination of significant weaknesses.” Id.
Either of which would “increase the risk of unsuccessful contract
performance to an unacceptable level.” Id.
Quantico, Unifire, and 27 other vendors timely submitted offers by
the deadline of January 18, 2019. [ ] of the [ ] offerors failed to meet the
requirement to offer on 90 percent of the Price Evaluation List (“PEL”) and
were thus considered unresponsive. The remaining [ ] offerors were
evaluated by the Source Selection Evaluation Board (“SSEB”), which began
its non-price evaluation on January 31, 2019. The non-price evaluation was
completed on June 14, 2019; the report details the results for the plaintiffs as
detailed below.
I. Quantico
DLA rated Quantico as follows:
Factor I Factor II Factor II Total
Past Technical Merit Technical Merit Evaluated
Performance – Subfactor (a) (b) Distribution Price
Confidence Product
Assessment Sourcing
Satisfactory Marginal Unacceptable $[ ]
Confidence
According to DLA’s debriefing letter, under Factor I – Past
Performance, DLA had “a reasonable expectation that Quantico [would]
successfully perform the required effort.” Id. at 4515. Under Factor II –
Technical Merit, subfactor (a), Quantico’s proposal received [
4
]. Id. Under subfactor (b), Quantico received [
]. Id.; see also AR at 3568-83 (SSEB Non-
Price Evaluation Report).
II. Unifire
Unifire was evaluated as follows:
Factor I Factor II Factor II Total
Past Technical Merit Technical Merit Evaluated
Performance – Subfactor (a) (b) Distribution Price
Confidence Product Sourcing
Assessment
Satisfactory Unacceptable Good $[ ]
Confidence
For Past Performance, Unifire was rated as Satisfactory Confidence,
which means, like Quantico, DLA had a “reasonable expectation” that
Unifire would successfully perform. For the technical subfactors, Unifire was
rated having one strength and one deficiency for Product Sourcing. The
deficiency was found due to a lack of a plan for how Unifire would meet the
95 percent fill rate metric and ensure control over subcontracting. For the
Distribution subfactor, Unifire was found to have a strength and it was rated
“Good” overall. AR at 4528-36 (Unifire’s debriefing letter from DLA); see
also AR at 3680-98 (SSEB Non-Price Evaluation Report).
Ultimately, DLA only selected [ ] offerors for inclusion in the
Competitive Range: (1) ADS; [
]. On December 4, 2019,
DLA informed both Quantico and Unifire in that they were being excluded
from the competitive range. More detailed debriefing letters were requested
and provided shortly thereafter.
III. Procedural History
On December 23, 2019, Quantico filed a protest before the
Government Accountability Office (“GAO”). After GAO’s denial of
Quantico’s request for documents, Quantico filed its complaint here on
February 3, 2020. On January 6, 2020, Unifire filed a protest at GAO. GAO
dismissed Unifire’s protest after Quantico filed its protest here. Unifire filed
here on February 13, 2020, and we consolidated the actions at the request of
the parties on March 3, 2020. We also granted the request by ADS, an offeror
5
who was part of the competitive range, to intervene by separate order on that
date.
Although the parties were then fully assembled, they presented
several preliminary matters. On March 12, 2020, Quantico filed a motion to
supplement the administrative record and for permission to take limited
discovery relevant to asserted bias and fraud in the procurement on the part
of DLA and ADS. On March 20, 2020, ADS filed a motion to disqualify
plaintiff’s counsel because it is had formerly represented intervenor in a
related matter. The parties then completed briefing on those motions. We
held oral argument on the motion to disqualify counsel on April 29, 2020, at
the conclusion of which we announced that we would grant the motion
because we agreed that the former representation of ADS concerned matters
substantially related to the issues presented here. See Quantico Tactical Inc.
v. United States, 148 Fed. Cl. 440 (2020) (explaining that counsel was
disqualified for breaching duty of loyalty). We afforded plaintiff 30 days in
which to substitute new counsel, which it did on May 11, 2020.
After affording new counsel time to get up to speed and an opportunity
to amend its request to supplement the record, which it declined, we held
argument on that motion on June 4, 2020, at the conclusion of which we
announced that we would, except for two documents, deny the request. We
issued a written opinion several days later. Quantico Tactical Inc. v. United
States, No. 20-120C, 2020 WL 4197333 (Fed. Cl. July 17, 2020) (publication
pending). The case was then set for disposition on the merits by cross-
motions for judgment on the administrative record.
DISCUSSION
The main thrust of Quantico’s motion is that DLA’s evaluation of its
proposal under the Past Performance Factor was arbitrary because it
measured Quantico against a standard that it did not apply to any other
offeror, i.e., that it should have been rated higher. It also challenges the
weakness it received for the Product Sourcing subfactor and [ ]
deficiencies for the Distribution subfactor. It believes that, had any or all of
the ratings, but particularly past performance, come out differently, it might
have been kept in the competitive range.
Defendant and intervenor respond generally that plaintiff has not
established any error in DLA’s evaluation, but more importantly, they
highlight the [ ] left unchallenged by Quantico for its
Distribution rating, namely that Quantico[
]. They argue that Quantico cannot show
6
prejudice because its proposal was technically unacceptable and
unawardable [ ], irrespective of what the court might
conclude with respect to the errors Quantico asserts.
Unifire argues that DLA’s flawed evaluation of its proposal under
technical subfactor (a), Product Sourcing, kept it out of the competitive range
arbitrarily. It challenges DLA’s assignment of a deficiency for failing to
show how it will meet the 95 percent fill rate metric and alleges that it was
treated unequally in this regard when compared to another offeror who it
argues offered a similar plan but was found acceptable. Unifire also argues
that it should have been awarded a strength for its plan to provide a narrative
explanation to DLA whenever it could not source an item and submit a quote
for it, which is relevant to the 90 percent quote rate requirement from the
SOW for the Distribution subfactor. Unifire again points to another offeror
that received a strength for offering to exceed the fill rate and to notify and
explain when it could not source a compliant item. This, Unifire urges, is
unequal treatment because, in substance, the two proposals offered the same
service but only one, not the protestor, received a strength for it. The
competitive range determination was thus based on flawed ratings and was
not rational, according to Unifire.
Defendant disagrees, arguing that Unifire’s challenges are nothing
more than disagreements with government evaluators and are not the basis
of a legitimate protest.2 The government finds a substantive difference when
comparing the proposals highlighted by Unifire and also argues that Unifire’s
reliance on material outside the particular section of its proposal dealing with
the fill rate was improper. Defendant argues finally that Unifire has not
established prejudice, even if we were to sustain its challenges, because there
is no evidence it would have received a high enough rating to make the
competitive range.
Under Court of Federal Claims Rule 52.1, we review agency
procurement decisions to determine whether they are supported by the
already-existing administrative record. See, e.g., Lawrence Battelle, Inc. v.
United States, 117 Fed. Cl. 579, 585-86 (2014) (citing Florida Power &
Light v. Lorion, 470 U.S. 729, 743 (1985) (stating “the focal point for judicial
review should be the administrative record already in existence, not some
record made initially in the reviewing court”)). Rule 52.1 is “designed to
provide for trial on a paper record, allowing fact-finding by the trial court.”
Bannum, Inc. v. United States, 404 F.3d 1346, 1356 (Fed. Cir. 2005).
2
Intervenor did not respond to Unifire’s motion for judgment on the
administrative record.
7
The Court reviews the merits of an award decision under the arbitrary
and capricious standard of the Administrative Procedure Act, 5 U.S.C. §
706(2)(A). See 28 U.S.C. § 1491(b)(4) (2012). The proper inquiry is whether
the agency action was “arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law.” Lawrence Battelle, Inc., 117 Fed. Cl.
at 586 (citing 5 U.S.C. § 706(2)(A)). Under this standard, the court should
set aside an agency decision if “(1) the procurement official’s decision lacked
a rational basis; or (2) the procurement involved a violation of regulation or
procedure.” Impresa Construzioni Geom. Demonico Garufi v. United States,
238 F.3d 1324, 1332 (Fed. Cir. 2001). Generally, this court gives great
deference to an agency’s decision in establishing the competitive range.
Birch & Davis Int’l, Inc. v. Christopher, 4 F.3d 970, 973 (Fed. Cir. 1993).
Therefore, the protestor “bears a heavy burden” to demonstrate that the
contracting offeror’s determination lacked a rational basis as the agency
“need only articulate ‘a rational connection between the facts found and the
choice made.’” KSC Boss Alliance, LLC v. United States, 142 Fed. Cl. 368,
380 (2019) (quoting Impresa, 238 F.3d at 1338)).
I. Quantico Has Not Established That It Was Prejudiced By DLA’s Evaluation
The bulk of Quantico’s briefing is focused on its Past Performance –
Confidence Assessment rating of “Satisfactory Confidence.” It believes that
it has objectively the best Past Performance history, particularly regarding its
incumbent SOE TLS effort. In its view then, it should have been rated higher
than all the other offerors. By not singling Quantico out for its superior past
performance, DLA was able to exclude Quantico from the competition based
entirely on Quantico’s Technical Merit scores. In other words, if DLA had
recognized Quantico’s superior past performance and weighted that factor
according to the terms of the RFP, Quantico believes that it would have been
included in the competitive range. Additionally, Quantico views the agency’s
reliance on technical subfactors as a discriminator on which to exclude
Quantico, as having “diminish[ed] the importance of past performance in the
evaluation” contrary to the terms of the solicitation. Quantico’s Mot. for J.
on the AR 23. Therefore, Quantico concludes that, “[b]y evaluating past
performance as it did, DLA rendered Quantico’s superior past performance
– and really, the Past Performance Factor as a whole – a nullity, making the
less-important Technical Merit Factor singularly determinative for purposes
of inclusion in the Competitive Range.” Id.
For any of that to matter, however, Quantico must have had a
technically acceptable proposal, which, according to defendant and
intervenor, it did not due to the “unacceptable” rating for the Distribution
8
subfactor. This rating would not change, argues the defense, even crediting
Quantico’s arguments, because [ ] are left undisturbed
by plaintiff’s protest. Per the Source Selection Plan, [
] and the proposal
unawardable. Thus, in intervenor’s and defendant’s eyes, plaintiff cannot
show any prejudice from the errors alleged regarding its Past Performance or
other aspects of its Technical Merit.
Quantico’s response is twofold. First, it argues that DLA’s treatment
of technical deficiencies as per se disqualifying is contrary to FAR part 15
because, in a negotiated procurement, deficiencies and weaknesses are to be
discussed by the agency during the period for discussions and clarifications,
which had not happened prior to the competitive range determination. Using
them as a discriminator in a competitive range determination is thus illegal,
according to Quantico. Second, Quantico argues that the weighing of factors
by the Contracting Officer (“CO”) was contrary to the solicitation, which
promised that a best value tradeoff would be performed in which Past
Performance would be the most important factor. Thus, the decision to
exclude solely based on Quantico’s technical deficiencies was arbitrary and
capricious because DLA did not follow its own promise to perform a tradeoff
in which it weighted past performance more heavily. We disagree.
For the Technical Merit subfactor (b), Distribution, DLA assigned
Quantico’s proposal [ ] and an
overall rating of “Unacceptable.” An “unacceptable” proposal is one that
“does not meet requirements of the solicitation, and thus, contains one or
more deficiencies, and/or risk of unsuccessful performance[.]” AR at 46.
Even crediting Quantico’s arguments with respect to this subfactor, it would
only have had [ ], still
resulting in an unacceptable rating.
[
]. Quantico does not challenge this
assessment. [
]. According to its proposal, Quantico stated that “[u]rgent
orders will be flagged in our system and shipped the same day via the best
method to ensure delivery within seven days,” AR at 1482, which is well
beyond 72 hours.
[ ] resulted from Quantico’s failure to provide [
]. According
to its proposal, Quantico stated that it would [
9
]. Quantico does not argue that it could
meet this requirement.
[
]. We do not
reach the merits of this rating, however, because, taken alone, a different
result would not change the agency’s rating of the proposal as unacceptable
and unawardable.
The CO’s competitive range determination document thoroughly
reviewed the SSEB’s ratings for each of the factors and for price. Although
it listed several areas for discussion with Quantico for each factor, when it
came to the Distribution subfactor, the summary of findings notes that
Quantico’s proposal was unawardable. AR at 4402. No areas were listed for
discussions for the Distribution subfactor.
After exhaustively detailing all of the offerors’ proposal ratings by the
SSEB, including listing areas for discussions with each offeror, the CO
ranked all of the offerors for non-price factors. Quantico was ranked [
]. Id. at 4455-57. The CO then ranked the offerors by lowest
to highest evaluated price. Quantico was [ ]. Id. at 4458. The CO wrote a
narrative description for each offeror’s ratings in the order of their non-price
ratings. The top six such offerors were included in the competitive range.
For Quantico, the CO wrote that, for subfactor (b) [
] Id. at 4470. The CO also took note of
Quantico’s [ ]. She concluded that Quantico was not
included in the competitive range because its proposal was not considered a
“highly rated proposal.” Id. She notes that [
].
When considering what the CO did in making the determination and
what the solicitation promised, we find no reversible error. The CO
concluded that Quantico was not among the most highly rated offerors. This
may not have been the most artful explanation, but it is clear that she
excluded Quantico due to its inability to meet all of the technical subfactors.
No offerors with such a rating were included in the competitive range, which
is consistent with the Source Selection Plan’s instruction that unacceptable
technical factors were unawardable. Nothing alleged by Quantico as error
10
could change that result, even if it were rated higher on Past Performance.
When confronted, as here, with almost over [ ] responsive offers, the agency
is well within its rights to be selective in setting the competitive range, a
determination that is owed a great deal of deference regardless of the number
of offerors and is, in any event, a result clearly spelled out in the solicitation
and source selection plan.
Quantico had [ ] for the second technical subfactor,
any one of which, according the Source Selection Plan, would render the
proposal unawardable. Not having challenged [ ], the conclusion
is inescapable that the other ratings challenged are immaterial to the
outcome. The CO excluded all offerors with unacceptable ratings. Plaintiff
would still have such a rating even if we agreed with its allegations of
irrationality.
FAR part 15 does not prohibit the CO from using deficiencies as a
basis for a competitive range determination. Although plaintiff is correct that
the agency is required to discuss weaknesses and deficiencies for any offeror
with which it holds discussions, see 48 C.F.R. § 15.306(d)(3), that same
subpart also requires that agencies make a competitive range determination
prior to discussions and that it include in the range only those offerors whose
proposal are the “most highly rated.” Id. § 306(c). Further, subpart 306
assumes that, in doing so, the agency will conduct an evaluation consistent
with the solicitation, which, here, is to say that deficiencies in technical
proposals would make those proposals unawardable. See id. § 306(c)(1)
(“agencies shall evaluate all proposals in accordance with 15.305(a), and if
discussions are to be conducted, establish a competitive range”). FAR
15.305(a) establishes general guidelines for proposal evaluations, stating that
they “may be conducted using any rating method or combination of methods”
and that the “relative strengths, deficiencies, significant weaknesses, and
risks supporting proposal evaluation shall be document in the contract file.”
Agencies are required to evaluate proposals consistent with the scheme
advertised in the solicitation. Id. Thus subpart 306 contemplates, if not
requires, agencies taking deficiencies and weaknesses into account in making
the competitive range determination. Further, the limited communication
with offerors allowed prior to the competitive range determination is
prohibited by the FAR from being used as an opportunity to “cure proposal
deficiencies” or to otherwise afford an opportunity to revise proposals. Id. §
306(b)(2).
FAR part 15 establishes that the steps in a negotiated procurement
(competitive range determination and discussions) be taken seriatim and that
they be independent of one another. The purpose of the competitive range
11
determination, as made clear in FAR part 15.306, is to winnow the number
of offerors with whom discussions are required. That being the case, the
former cannot anticipate the latter, otherwise its purpose would be frustrated.
Weaknesses and deficiencies are properly considered as part of the
competitive range determination. We also find no incompatibility with the
solicitation in this regard. Although Past Performance was the most
important factor, that weighting did not prevent the agency from treating a
technically unacceptable proposal unawardable nor relying on this rubric to
set a competitive range. We thus find no irrationality nor illegality in treating
the technical ratings in the competitive range determination as the agency
did. The conclusion is thus unavoidable that Quantico has not shown
prejudice from the alleged evaluation errors. Its rating for the Distribution
subfactor would not have improved and its proposal was unawardable.
Quantico was thus properly excluded from the competitive range.
II. Unifire’s Technical Ratings Were Not Arbitrary
As shown in the table above, Unifire received a Factor I, Past
Performance – Confidence Assessment rating of “Satisfactory Confidence.”
Under Factor II, Technical Merit, subfactor (a), Product Sourcing, it received
a rating of “Unacceptable,” and for subfactor (b), Distribution, it received a
rating of “Good.” Unifire argues that DLA’s flawed evaluation of its
proposal under Factor II, subfactor (a), Product Sourcing, kept Unifire out of
the competitive range.
Under Technical Merit, subfactor (a), the solicitation identified three
components of the Product Sourcing subfactor and instructed offerors to
provide a clear explanation as to how the offeror would meet each
requirement. The first component related to purchasing system requirements,
listing six elements to be addressed. The Solicitation also instructed offerors
to provide a plan to meet the quote rate metric. Finally, the Solicitation
instructed offerors to describe a plan to meet the fill rate metric and ensure
control over subcontracting.3
While Unifire received a strength because it “has manufacturers and
vendors visit the offeror’s location to demonstrate products and provide
training on these items to Unifire staff[,]” it received a deficiency because
“[t]he information provided in [its] proposal does not constitute a plan as to
3
The quote rate metric requires vendors to submit quotes on 90% of delivery
order competitions; whereas, the fill rate metric requires vendors to provide
the full quantity for 95% of all lines delivered to be calculated as quantity
delivered/quantity ordered.
12
how the offeror will meet the 95% Fill Rate Performance Metric and ensure
control over subcontracting.” AR at 3695. As a result, Unifire received an
“unacceptable” rating for subfactor (a). Like Quantico, it was thus kept from
the competitive range because the unacceptable rating put it outside of the
top-rated offerors because none selected for discussions had any ratings
lower than “acceptable” and all had prices lower than Unifire’s. AR at 4471.
Unifire argues that it did submit a plan to satisfy the solicitation’s
requirement of a 95% Fill Rate Performance Metric, which was clearly
denominated in its proposal as its “Plan to Meet the 95% Fill Rate
Performance Metric.” Unifire further points out that its proposal for this
requirement touted its established relationships with manufacturers of all of
the products in the Price Evaluation List and also highlighted its relationship
with certain notable non-manufacturer suppliers in its proposal section
labeled “Business Alliances and Contractual Relationships,” which was
directly referenced in the plan to meet the 95% Fill Rate Performance Metric.
The import is that the agency ought to have understood that this meant that
Unifire could meet the requirement. Moreover, Unifire also avers that its
technical proposal, considered as a whole, addresses how it plans to fill
orders in detail. The agency ought not have ignored other indicia in its
proposal that provided details regarding its ability to meet the fill rate
requirements, according to Unifire.
Unifire also argues that another offeror included in the competitive
range, [ ], provided a similarly scanty level of detail in its specific response
to the Fill Rate requirement and also touted generally its relationship with
manufactures and suppliers, but was found to have met the requirement.
Thus, in Unifire’s view, it, like [ ], ought not to have been assigned a
deficiency and booted from the competitive range.
Defendant responds that, unlike [ ], Unifire failed to explain how it
would use its business relationships to meet the fill rate metric, reiterating
that the SSEB found a general lack of information and narrative regarding
the “steps, processes, procedures, methods, etc. that it intends to utilize to
meet the Fill Rate Performance Metric and ensure control over
subcontracting.” AR at 3694. By way of contrast, the government points out
that [ ]’s proposal offered a “Vendors Relations” group that would seek
“out new manufacturing companies,” conduct “market research to
proactively meet the future demands,” maintain frequent “product training
with outside and inside sales representatives,” and do “joint sales calls,” its
“own on base trade shows,” and “sales training” with top vendors at its
headquarters.” AR at 2848.
13
Defendant also contends that the reviewers were not obligated to sift
through Unifire’s technical proposal to supplement the brief comments
unique to the fill rate metric. Indeed, the solicitation warned offerors not to
incorporate other sections of their proposal by reference when it stated: “TO
ENSURE THAT YOUR NON-PRICE PROPOSAL IS PROPERLY
EVALUATED, PLEASE ARRANGE YOUR REPSONSES IN THE
ORDER SHOWN ON THE FOLLOWING PAGES. EACH OF YOUR
INDIVIDUAL REPSONSES SHOULD CITE THE APPLICABLE
NON-PRICE FACTOR AND PARAGRAPH TO WHICH YOU ARE
RESPONDING.” AR at 145. Thus, because information regarding Business
Alliances was not found in the section of Unifire’s proposal marked “Fill
Rate,” it could not be considered by the SSEB nor the CO, urges the
government.
We need not go so far in accepting the government’s larger point that
it was not erroneous or arbitrary for the SSEB to evaluate Unifire’s proposal
with respect to the first technical subfactor in the way that it did. A
comparison between Unifire’s and [ ]’s proposals regarding this metric
reveals that, although both relied on business relationships and took up very
similar (limited) space in their proposals, there was a difference in approach
in the way the two companies explained their respective abilities to meet the
fill rate metric. Unifire touted its existing network of manufacturers and
suppliers, but [ ] primarily relied on a plan to continually grow its network,
a plan that included certain specific proposed activities. In essence, [ ]’s
was prospective while Unifire’s was retrospective. The agency chose to
credit the forward-looking approach of [ ] and discredit Unifire’s plan to
rest on its laurels. We find no irrationality therein.
In sum, having a deficiency for the Product Sourcing subfactor,
Unifire’s rating was properly considered unacceptable and unawardable.
The CO found such proposals not among the most highly rated, consistent
with FAR 15.306, and excluded Unifire from the competitive range.
Plaintiff’s other arguments are thus moot because it cannot show prejudice
resulting from the alleged errors, and we need not reach them. Unifire’s
protest must be denied.
CONCLUSION
Given the lack of success on the merits, we need not reach the other
injunctive factors. Both plaintiffs have [ ] deficiencies
that rendered their proposals for a technical subfactor unacceptable and
unawardable. That fact is dispositive of all the other arguments because the
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protestors cannot show prejudice resulting from the alleged other errors.
Accordingly, the following is ordered:
1. Plaintiffs’ motions for judgment on the administrative record (ECF
Nos. 72 and 73) are denied.
2. Defendant’s and intervenor’s cross-motions for judgment on the
administrative record (ECF Nos. 76, 77, and 78) are granted.
3. The Clerk of Court is thus directed to enter judgment for defendant,
dismissing the complaints in case numbers 20-120C and 20-150C. No
costs.
s/ Eric G. Bruggink
ERIC G. BRUGGINK
Senior Judge
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