Rocky Mountain Mobile Medical v. United States ( 2021 )

In the United States Court of Federal Claims
No. 20-1936C
(Filed: March 18, 2021)
(Re-Filed: April 6, 2021) 1
*********************
ROCKY MOUNTAIN MOBILE MEDICAL,
Plaintiff,
v.
Bid protest; pre-award bid
THE UNITED STATES,
protest; FAR 13.106-3(a)
(2008); exchanges; best value
Defendant,
determination.
and
MEDEXPRESS AMBULANCE SERVICES, INC.,
Intervenor.
**********************
Shaun C. Kennedy, Denver, CO, for plaintiff, with whom was Thomas
A. Morales and Hannah E. Armentrout, of counsel.
Geoffrey M. Long, Trial Attorney, United States Department of
Justice, Civil Division, with whom were Brian M. Boynton, Acting Assistant
Attorney General, Robert E. Kirschman, Jr., Director, and Douglas K.
Mickle, Assistant Director, for defendant. Maj. Laura B. Bauza, United
States Air Force, of counsel.
Bradley L. Drell, Alexandria, LA, for intervenor.
1
This opinion was originally issued under seal in order to afford the parties
an opportunity to propose redactions of protected material. The parties filed
a joint document with proposed redactions on April 1, 2021 (ECF No. 49).
We thus reissue this opinion with the proposed redactions.
OPINION
BRUGGINK, Judge.
In this post-award bid protest, Rocky Mountain Mobile Medical
(“RMMM”), alleges that the U.S. Department of the Air Force, U.S. Space
Force (the “Air Force”) failed to conduct a fair and rational evaluation of
each offeror’s quotation in accordance with the solicitation and the Federal
Acquisition Regulation (“FAR”), resulting in a flawed contract award
decision. Plaintiff filed a motion for judgment on the administrative record
on January 22, 2021. Plaintiff seeks a permanent injunction preventing the
agency and intervenor, MedExpress Ambulance Services, Inc.
(“MedExpress”) from commencing performance on the contract, requiring
the agency to conduct a reevaluation of quotations in accordance with the
solicitation, and requiring the agency to create a new award determination.
The government and intervenor filed their respective responses and the
government also filed a cross-motion for judgment on the administrative
record, all of which are fully briefed.
Oral argument was held on March 12, 2021. Because the agency
properly documented its decision and its analysis was reasonable, we grant
defendant’s motion for judgment on the administrative record and deny
plaintiff’s motion.
BACKGROUND 2
On May 8, 2020, the Air Force issued a solicitation seeking quotations
from contractors to perform ambulance services at two military installations
in Colorado Springs, Colorado, Peterson Air Force Base (“PAFB”) and
Schriever Air Force Base (“SAFB”). The contract was for a twelve-month
base year and four twelve-month option years, including a pre-priced 6-
month extension of services. The agency set aside the solicitation as “100%
For Small Business.” Solicitation, AR 43 (ECF No. 34 at 43).
According to the representations made by the parties during the status
conference held on December 23, 2020, it is apparent that plaintiff formerly
served as the incumbent on the SAFB military installation contract.
Following the agency’s award of this contract to MedExpress and plaintiff’s
subsequent GAO protest, however, the agency elected to utilize a third-party
bridge contract to service that base during the pendency of this protest.
2
The facts in the background are derived from the administrative record
(ECF No. 34).
2
Additionally, the second location, the PAFB military installation contract, is
currently being serviced by another contractor.
The solicitation stated that the agency would select the quote
providing the best value to the government considering technical capability,
past performance, and price. The solicitation also allowed the government
to perform a tradeoff between past performance and price, if it determined
that to be justifiable and if it would result in providing the best value to the
government. AR 256.
The Air Force indicated in the solicitation that this would be “a
competitive selection conducted in accordance with [FAR] 13.106-2(b)(3).”
AR 258. There was no indication in the solicitation that FAR Part 15
procedures would be used. Though not included in the solicitation, the Air
Force checked boxes in the streamlined acquisition strategy summary
(“SASS”) indicating that it would use the procedures of FAR Part 13 entitled,
“Simplified Acquisition Procedures (“SAP”),” but did not check the box that
would indicate that it was using FAR 15 procedures. AR 458. In the SASS,
the agency gave its reasoning for selecting FAR 13 procedures and stated
that because the “acquisition is less than $7M,” it would be able to utilize the
SAP described in FAR Part 13. AR 458. Although, as plaintiff points out,
the solicitation notified bidders that “exchanges” might be “conducted with
one, some, or all offerors,” the term exchanges does not appear in FAR Part
13, but it does appear in FAR Part 15. AR 258.
Offerors were required to submit proposals in three separate
volumes—technical capability, past performance, and price. The evaluation
was based upon the ratings of these three factors. Technical capability was
evaluated on a pass/fail basis. It was comprised of two subfactors, staffing
and response time. To receive a “pass” rating for the technical capability
factor, both of its subfactors had to receive a “pass” rating. If a proposal
received a “fail” rating for either subfactor, then the proposal was not
considered for award. A proposal’s technical capability had to receive a
“pass” rating to proceed to the past performance and price evaluation. This
volume was not to exceed six pages double-spaced, excluding a table
depicting the staffing plan.
Past performance was assessed on an overall performance confidence
rating including “substantial confidence,” “satisfactory confidence,” “neutral
confidence,” “limited confidence,” or “no confidence.” AR 257. The
solicitation required offerors to submit two recent past performance reference
citations. For each past performance reference citation, the agency assigned
recency, relevancy and quality ratings. The solicitation defined recency as
3
“work completed or ongoing during the 3 years prior to the solicitation
issuance of 08 May 2020.” AR 255. After evaluating the recency of a past
performance, the agency would then assign a “recent” or “not recent” rating.
If a past performance reference received a “not recent” rating, then it would
not be evaluated for relevancy or quality, and the reference would not receive
an overall performance confidence rating.
The solicitation defined relevancy “as a present or past performance
effort involving similar scope, magnitude, and complexity of effort as this
solicitation.” AR 256. If a past performance reference received a “not
relevant” rating, then the evaluation process was to end at that point, and the
reference would not be evaluated for quality or given an overall performance
confidence rating.
The quality assessment was based upon past performance reference
citations, the quality assessment definitions listed in table one of the
solicitation, and information independently obtained by the Contracting
Officer (“CO”). The agency then assigned an overall performance
confidence rating based upon the definitions listed on Table two of the
solicitation. AR 257.
Price was evaluated in accordance with FAR 13.106-3(a) (2008), after
the technical and past performance evaluations, to determine if the proposed
price was reasonable and balanced. The solicitation required offerors to
submit a firm-fixed price quote and detailed pricing data specifying the unit
price and the extended amount for each contract line item number.
A. Evaluation
On July 7, 2020, the submission deadline, the agency received six
proposals from six different offerors: Contractor A, RMMM, MedExpress,
Contractor D, Contractor E, and Contractor F.
The agency completed a preliminary review of all six offers for
compliance with the solicitation instructions and initially found that three of
the six were “non-compliant,” including Contractor D, Contractor F, and
Contractor A. 3 AR 491. “Exchange notices” were sent to these three
3
Contractor D had pricing inconsistencies (essentially rounding errors) that
were resolved. Contractor F did not submit any past performance references
and stated they did not have DoD experience, but submitted two (2) non-
DoD references as a result of the exchanges. Contractor A had rounding
issues with pricing and technical volume was more than six (6), which
4
offerors, however, and all six offers were considered compliant after the
issues were resolved. RMMM argues that these exchanges were an
indication that the agency elected to use elements of FAR Part 15.
MedExpress also included a three-page introduction letter along with
its technical submission. Because the package collectively exceeded the six
page limit, the Contracting Officer, Ms. Sheri L. Burks (“ CO”) removed the
introductory material before forwarding the technical capability volume for
evaluation. RMMM contends that MedExpress’s inclusion of the three-page
introductory letter rendered its submission non-compliant and that its
submission should have been excluded; that it was error for the CO to simply
remove the introductory letter.
The agency convened a Technical Evaluation Team (“TET”) to
evaluate the technical capability of each quotation on a “pass/fail” basis.
With the exception of Contractor A, all the offerors received an overall rating
for both subfactors of “pass.” Contractor A received a “fail” rating for not
meeting the response time requirements, making it ineligible for award.
The CO then evaluated the remaining five quotes for past performance
and price. Both Contractor D and MedExpress received an overall
“substantial confidence” rating. RMMM received an overall “satisfactory
confidence” rating. Contractor E received an overall “neutral confidence”
rating, and Contractor F was not rated because the references it provided
were not deemed relevant in accordance with the solicitation’s definition for
relevancy. The CO’s evaluation of each offeror’s past performance is
depicted in table one below:
Table 1: Past Performance Evaluation
Offeror Recency Per Relevancy Per Quality Rating Overall
Citation Citation Per Citation Confidence
Rating
Ref 1 Yes Ref 1 Yes Marginal Satisfactory
RMMM
Ref 2 Yes Ref 2 Yes Satisfactory Confidence
CPAR Yes CPAR Yes Satisfactory
S S
CPAR Yes CPAR Yes Satisfactory
S S
Ref 1 Yes Ref 1 Yes Exceptional Substantial
Contractor D Confidence
Ref 2 Yes Ref 2 No Not Rated
exceeded the page limit per the instructions in 52.212-1 but corrected the
pricing and technical volume to six (6) pages after exchanges.” AR 491.
5
Ref 1 Yes Ref 1 Yes Exceptional
MedExpress Ref 2 Yes Ref 2 Yes Satisfactory Substantial
Confidence
CPAR Yes CPAR Yes Exceptional
S S
Ref 1 Yes Ref 1 Yes Satisfactory Neutral
Contractor E Ref 2 Non- Ref 2 Non- Non-Rated Confidence
Respon Respon (Non-
sive sive Responsive
)
Ref 1 Yes Ref 1 No Not Rated Not Rated
Contractor
Ref 2 Yes Ref 2 No Not Rated
F
AR 498.
MedExpress received an overall “substantial confidence” rating based
on information provided by the references and/or information available in
the Contractor Performance Assessment Reporting System (“CPARS”)
reports or the Past Performance Information Retrieval System (“PPIRS”)
reports as part of an independent Government assessment. The CO found
that MedExpress had “exceptional” and “satisfactory” quality ratings,
allowing the government to have confidence in the contractor’s ability to
successfully perform the contract. MedExpress submitted two references,
both of which the CO determined were “recent” and “relevant” reference
citations. Both references stated that MedExpress was an excellent partner
and that they would award another contract to MedExpress. Additionally,
the CO found that the contractor never provided services using expired
vehicle permits, nor experienced staffing issues or delays. The CO also
found that all of MedExpress’s quality ratings were “satisfactory” or
“exceptional,” resulting in an overall “substantial confidence” rating.
RMMM takes issue with the overall confidence rating assigned to
MedExpress, contending that it should have been no higher than “neutral.”
MedExpress’s first reference was for an ambulance services contract
at Creech Air Force Base in Nevada. The reference for this contract was [
], the CO for the contract at Creech Air Force Base, who gave the following
response to the question, “Has there ever been a time when the contractor did
not have current employee certifications or vehicle permits?”: “No; there has
not been anytime that contractor did not have current employee certifications
or vehicle permits.” AR 495. She also gave the following response to the
question, “Would you award another contract to this contractor? Why/why
not?”: “Yes; Definitely would award another contract to this contractor.
Their support to Creech EMS has been an outstanding partner.” AR 495.
6
MedExpress’s second reference was for its contract for ambulance
services with the Louisiana Rural Ambulance Alliance, Inc. (“LRAA”), in
which it provided “emergency medical response in the form of ambulance
and/or personnel in times of disaster and in cooperation with Federal, State,
and Local Governments.” AR 489. MedExpress further explained that it had
performed “[m]ost recently to respond to the COVID pandemic in the New
Orleans, Louisiana area.” AR 489. The contract type was indicated as firm-
fixed-price at [ ] per day, and the contract was awarded competitively in
2017 with performance ongoing. AR 489. MedExpress also submitted
information that the LRAA contract’s annual dollar amount was “[to be
determined], 2020 [year to date]: [ ].” AR 831.
The Air Force solicited further information about the LRAA contract
from [ ], the CEO of LRAA. [ ] gave the following response
to the question, “Did the contractor exhibit/experience staffing issues or
delays during performance?”: “Med Express has never experienced staffing
issues or delays during performance. Med Express has consistently
performed above expectations and provided leadership for not only Med
Express crews but for other services responding.” AR 495.
[ ] also gave the following response for MedExpress to the
question, “Has there ever been a time when the contractor did not have
current employee certifications or vehicle permits?”: “We have activated our
contract with Med Express over seven times in the last 3 years; for every
response/event MedExpress has always had current employee certifications
and vehicle permits.” AR 495. Additionally, the CPARS report for
MedExpress from September 2018 to September 2019 reflected
“exceptional” ratings in quality, schedule, and management.
Contractor D received an overall “substantial confidence” rating
based on information provided by the references and/or information available
in CPARS/PPIRS reports as part of an independent Government assessment.
Similar to the past performance citations that MedExpress received,
Contractor D also received high praise in responses from its three references.
Although only one of the references cited was considered “relevant,” overall
the quality rating provided for the recent and relevant reference citation was
exceptional, leading to a “substantial confidence” rating overall. RMMM
argues that this was error; that Contractor D should have been excluded
because only one of its references was found to be relevant.
RMMM received an overall “satisfactory confidence” rating based
upon information provided by the references and information available in
CPARS/PPIRS reports as part of an independent Government assessment.
7
RMMM received a “marginal” quality rating for its services at SAFB
because the contractor provided these services using ambulance vehicles
with expired permits and unpermitted vehicles. Additionally, after an
inspection that occurred in May 2020, the government found that RMMM
used “expired supplies, medications, and missing equipment vital to
emergency services.” AR 499. Although these deficiencies were corrected
in about three weeks during RMMM’s contract with SAFB, these issues
lowered the government’s confidence that RMMM could successfully
perform medical services according to solicitation requirements. RMMM
argues that it should have been afforded the opportunity through “exchanges”
to provide ameliorating information and that not receiving that opportunity
was prejudicial error.
RMMM offered two reference citations, the first reference was from
its contract at the SAFB, and was submitted by [ ], a CO at this Air
Force Base. He gave the following response to the question, “Would you
award another contract to this contractor? Why/why not?”:
No, after an anonymous tip from a former employee a thorough
inspection was conducted for the contract. That inspection
showed that the contractor had been using expired medical
equipment to perform services on Schriever AFB. Attached is
a copy of the cure notice that was provided to the contractor.
Due to the contractor’s previous discrepancies, Schriever AFB
has been conducting more thorough and frequent inspections
to ensure the contractor is continuing to perform contractually.
The contractor did cure their deficiencies, but the confidence
that we had in their ability to protect Schriever was greatly
diminished.
AR 496. A response by the same reference to the question, “Has there
ever been a time when the contractor did not have current employee
certifications or vehicle permits?” was as follows: “Yes; there was an
ambulance that expired April 2019, Feb 2019, and an ambulance that was
never permitted.” AR 496. Although RMMM had been given the
opportunity to address the negative past performance references and cured
the discrepancies noted while completing its contract at SAFB, the Air
Force’s confidence in the contractor’s ability to successfully perform was
impacted according to the reference citation. The quality rating assigned for
that reference citation was “marginal.”
The second reference was from its contract at the United States Air
Force Academy (“USAFA”) in Colorado Springs, CO, and was submitted by
8
[ ], a contracting specialist at this location. [ ] gave the
following response to the question, “Would you award another contract to
this contractor? Why/why not?”: “Yes, they have proven to perform in an
environment that is not without risk and demands customer satisfaction.
While I would always encourage competition to check the market conditions,
they have in previous acquisitions for USAFA presented economical and
satisfactory performance over time.” AR 496. A response by the same
reference to the question, “Did the contractor exhibit/experience staffing
issues or delays during performance?” was as follows: “Never to the point of
jeopardizing the mission, had few to no corrective action reports over
previous and current contract which were immediately addressed. Appears
to be normal management/staff turnover and associated learning curve that
comes with this turnover.” AR 496. The quality rating assigned for that
reference citation was “satisfactory.”
Additionally, the CPARS assessed for contract FA700014C0009 for
the period Oct 2018-Mar 2019 reflected a “satisfactory” in quality, a
“marginal” in schedule, and a “satisfactory” in management for a satisfactory
quality rating for that citation. The CPARS assessed for contract
FA255016C0001 for the period Oct 2018-Sept 2019 reflected a
“satisfactory” in quality, a “satisfactory” in schedule, and a “satisfactory” in
management, with an overall “satisfactory” quality rating for that citation.
Finally, the CO evaluated price in accordance with FAR 13.106-3(a)
to determine if the offeror’s quoted price was reasonable and balanced.
Because the solicitation states that price will only be assessed on quotes that
received a “pass” rating for both technical subfactors, only the five quotes
which received a “pass” in technical capability were evaluated for price:
Table 2: Price Evaluation
Offeror Technical Quality Overall Total Price Difference in
Capabilit Rating Per Confidence Price compared
y Citation Assessment to the IGE
Rating
[ ] [ ] [ ] [ ] [ ] [ ]
RMMM PASS Marginal, Sat, Satisfactory $4,677,600.00 [ ]
Sat, & Sat Confidence
PASS Exceptional & Substantial [ ] [ ]
Contractor Not Rated Confidence
D
MedExpre PASS Exceptional, Substantial $5,282,100.00 [ ]
ss Sat, & Confidence
Exceptional
9
Contractor PASS Sat & Non- Neutral [ ] [ ]
E Rated (Non- Confidence
Responsive)
PASS Not Rated & Not Rated [ ] [ ]
Contractor
Not Rated
F
AR 500.
The CO conducted a price analysis comparing MedExpress’s quoted
priced to the Independent Government Estimate (“IGE”) for the base period
and all option years, which also included the pre-priced 6-month extension.
She found that MedExpress’s prices for the base period was [ ] than the
IGE of [ ] and [ ] for the option years. In conclusion, the CO
determined that MedExpress’s evaluated price of $5,282,100.00 was fair and
reasonable in accordance with FAR 13.103-3(a)(1).
The CO stated that the solicitation allows the government to select an
offer providing the best value considering all three factors. In her best value
analysis, the CO stated that although the technical and past performance
factors, when combined, are approximately equal to price, the solicitation
allows the government to perform a tradeoff between past performance and
price, if it determines that it is justifiable and will result in the best value for
the government. Here, the CO found that although MedExpress’s price was
higher than RMMM’s total price, MedExpress provided a higher overall
performance confidence rating warranting a tradeoff with RMMM, which
provided a lower overall performance confidence rating.
The CO determined that significant value for the agency in terms of
quality, schedule, and management exists between the past performance
“satisfactory” and “substantial confidence” ratings, and thus, she found that
paying slightly more for higher past performance ratings constituted the best
value for the government. 4 The CO concluded that paying an additional
4
The CO explained that a contractor receiving a “substantial confidence”
rating, with documented excellent past performance, gives the government
confidence that “there is little to low risk in operations, compliance, legal,
quality, and unsuccessful performance of these vital, life-saving, mission
essential, emergency services.” AR 499. She also stated that a “satisfactory
confidence” rating gives the government “a reasonable expectation that [the
contractor] can perform these critical lifesaving services, however,” because
issues exist with the contract, the government has questions regarding
whether the contractor would be successful in executing the contract. AR
499.
10
$604,500.00 over the course of five years of performance on the contract (the
difference between $4,677,600.00 and $5,282,100.00), an additional
$120,900 per year, was justifiable in view of the appreciable difference in
past performance ratings. This represented less than a 13% difference over
the contract’s lifetime. The CO found, however, that performing a similar
tradeoff between RMMM and Contractor D was not necessary. Contractor
D’s quoted price was $1,404,312.00 more than RMMM’s, while both
Contractor D and MedExpress received the same “substantial confidence”
rating.
MedExpress’s past performance evaluation showed that it filled all
required positions on time with the “necessary education, experience and all
required certifications/licensing in accordance with the contract requirement
and specifications 97% of the time during performance.” AR 498.
MedExpress was evaluated as “very responsive when it comes to responding
to any issues or concerns 95% of the time as well as very professional and
adheres to what is required to provide continued mission support.” AR 498.
The CO noted that the contractor was reported as actively responding to
concerns with personnel to prevent any service issues within its control 98%
of the time, and that MedExpress complied with regulations and proactively
communicated regarding questions and concerns during performance.
Because MedExpress’s past performance was exceptional, she concluded
that the government could be confident that it would meet and exceed the
contract requirements concerning quality, schedule, and management.
B. Exchanges Prior to Award
The solicitation stated that the agency was not required to conduct
exchanges with all offerors, but that exchanges might be conducted with
“one, some, or all offerors.” AR 258. The Air Force did in fact conduct what
it characterized as exchanges prior to award, but only with Contractor F and
Contractor A, regarding discrepancies with their respective quotes. The Air
Force advised Contractor F that its quote failed to comply with the
solicitation in that it did not submit past performance references as required
by solicitation Addendum 52.212-1, section 1.4. AR 526. Although
Contractor F submitted a past performance narrative, it failed to include the
required references. Contractor F responded to the exchange notice that
same day and provided the two past performance references. On July 16,
2020, the agency sent Contractor F a second exchange notice asking it to
address the technical acceptability requirement by providing a single-page
explanation of how it would ensure employee compliance with certifications
and licenses during contract performance. Contractor F furnished a single-
page response.
11
On July 17, 2020, the Air Force sent a third exchange notice to
Contractor F, concerning the technical acceptability of Contractor F’s quote.
The agency notified Contractor F that its quote was deficient because it
“restate[d] the requirement(s), [and] mention[ed] training, but [did] not
include a clear approach for meeting the 8-minute response time.” AR 539.
Contractor F was permitted to submit a single-page response to correct this
discrepancy, which it did on July 20, 2020.
On July 7, 2020, the agency notified Contractor A that its technical
capability volume exceeded the six-page limit and that its prices were not
rounded to the nearest dollar. Contractor A submitted a revised technical
capability volume and corrected its pricing. The agency sent a second
exchange notice to Contractor A on July 16, 2020, stating that its quote was
deficient because it failed to provide a plan to meet the eight-minute response
time requirement. Contractor A responded the next day. Contractor A’s
revised approach still did not meet the response time requirements and it later
withdrew from the competition.
RMMM contends that, like Contractor F and Contractor A, it should
have been notified of the agency’s concerns about its own past performance
references. If it had been, it argues, RMMM could have explained or
corrected the problems.
C. RMMM’s Protest at GAO
On September 17, 2020, the Air Force notified RMMM that its quote
was not selected for award. RMMM filed a protest with the Government
Accountability Office (“GAO”) on September 24, 2020. The basis for its
challenge was that the agency allowed MedExpress’s technical volume to
exceed the page limit and because its evaluation of past performance was
unreasonable. RMMM argued that the agency should have ignored
everything after the first six pages of the technical proposal, including the
three-page introduction letter, effectively proposing that half the technical
proposal be ignored. GAO dismissed the protest on December 16, 2020,
concluding that the agency could and did sever MedExpress’s introductory
letter from the technical capability volume; it was not necessary to consider
only the three-page letter of introduction and the first three pages of the
awardee’s technical quotation. Rocky Mountain Mobile Med., B-418788.2,
2020 WL 7698817 (Comp. Gen. Dec. 23, 2020). The GAO also found that
the Air Force was reasonable in its evaluation of RMMM’s past performance
references. Id.12
On September 17, 2020, the Air Force notified MedExpress that it
would be the awardee. Rocky Mountain filed its bid protest here on
December 21, 2020. Award has not yet occurred, pending resolution of this
protest.
DISCUSSION
Our review is deferential in accordance with the standard set forth in
the Administrative Procedures Act, 5 U.S.C. § 706, which is to say that we
review agency action in a procurement for illegality and a lack of rationality.
Impressa Construzioni Geom. Domenico Garufi v. United States, 238 F.3d
1324, 1332-33 (Fed. Cir. 2001). So long as the agency’s decision was not
irrational or otherwise illegal, we will leave it undisturbed.
RMMM brings four challenges: (1) the agency was required to, but
did not, conduct discussions with RMMM to address adverse past
performance information; (2) MedExpress’s technical capability volume
should have been excluded as noncompliant; (3) the agency’s overall
performance confidence rating was irrational because it incorrectly
concluded that MedExpress’s LRAA past performance reference was
“relevant”; (4) the agency treated RMMM unequally by relaxing its past
performance evaluation of Contractor D and assigning it an overall past
performance assessment of “substantial confidence,” rather than “neutral
confidence,” despite the fact that Contractor D only had one relevant past
performance reference. Plaintiff seeks permanent injunctive relief to enjoin
the Air Force from continuing its award to MedExpress.
When considering whether to grant a permanent injunction, the court
must consider whether “(1) the plaintiff has succeeded on the merits, (2) the
plaintiff will suffer irreparable harm if the court withholds injunctive relief,
(3) the balance of hardships to the respective parties favors the grant of
injunctive relief, and (4) the public interest is served by a grant of injunctive
relief.” Centech Grp., Inc. v. United States, 554 F.3d 1029, 1037 (Fed. Cir.
2009). Although an award of injunctive relief is based on consideration of
this four-factor test, failure to achieve success on the merits is dispositive.
See Career Training Concepts, Inc. v. United States, 83 Fed. Cl. 215, 219
(2008) (“[A] permanent injunction requires actual success on the merits.”).
For the reasons below, we find that all four of plaintiff’s challenges lack merit
and it is therefore unnecessary to consider the last three factors. We consider
each of plaintiff’s arguments in turn.
A. The Air Force Reasonably Conducted Exchanges with Offerors by
Following the Simplified Acquisition Procedures of FAR Part 13
13
RMMM argues that the Air Force failed to conduct discussions in
accordance with FAR 15.306 and FAR 15.307, and thus, the agency’s
evaluation was arbitrary and capricious. Although plaintiff acknowledges
that the solicitation was issued under FAR Part 13 procedures, and that these
procedures provided the agency more flexibility than FAR Part 15, it argues
that by conducting exchanges with some offerors, the agency signaled its
intent to incorporate elements of FAR Part 15 generally. Thus, once the
agency elected to exercise its right to conduct discussions under the SAP of
FAR Part 13, the agency was obligated to comply with both the procedural
requirements of FAR 15.306 and FAR 15.307.
There is no question that the agency engaged in what it termed
exchanges with two of the offerors, and that such exchanges are more
typically associated with FAR Part 15 procedures. Indeed, there is no
reference to them in FAR Part 13. As plaintiff points out, FAR Part 13 gives
the contracting officer broad discretion in fashioning suitable evaluation
procedures, including the possibility of incorporating procedures prescribed
in Parts 14 and 15. FAR 13.106-2(b)(1). RMMM’s argument is that, having
chosen, in effect to exercise this option, the agency did not go far enough and
failed to apply the exchange process to plaintiff.
RMMM argues that what the agency did was conduct discussions
under FAR 15.306(d)(3) which requires the CO to “indicate to, or discuss
with, each offeror still being considered for award, deficiencies, significant
weaknesses, and adverse past performance information to which the offeror
has not yet had an opportunity to respond.” FAR 15.306(d)(3). Having done
so, it argues that the agency’s communications were unequal because the
agency did not disclose adverse past performance deficiencies to RMMM
and did not permit it to explain the deficiencies. 5 RMMM also argues that
the discussions violated FAR 15.307(b) which requires that each contractor
5
RMMM claims that, contrary to [ ] response, it maintained the Colorado
Department of Revenue Emergency Vehicle Equipment Authorization and
El Paso County Board of County Commissioners Ambulance Service
License without lapse. RMMM states that it would have “further explained
that the local El Paso County permit referenced by [ ] did not even
apply to Rocky Mountain’s performance of the SAFB contract.” Pl’s Mem.
at 34. Plaintiff adds that it would have also explained mitigating information,
that the expired medical supplies referred to in [ ] response are included
on the U.S. Federal Drug Administration’s Drug Shortage List because of a
supply chain shortage caused by the COVID pandemic.
14
“be given an opportunity to submit a final proposal revision” at the
conclusion of discussions. FAR 15.307(b).
The most basic difficulty with plaintiff’s argument is that the agency
did precisely what it advertised it would do: have exchanges with some but
not all bidders. There is a clear warning in the solicitation that the agency
reserved the right to conduct “exchanges” with some, all, or none of the
bidders. RMMM thus got precisely what it gambled on. 6 If, as plaintiff
argues, the possibility of exchanges would seem to be a reference to FAR
Part 15, the agency simultaneously disavowed such an intent by stating that
such communications could be with a limited number of bidders, which, as
plaintiff currently argues, was something the agency did not have the option
of doing. Plaintiff contends that the exchanges actually held were conducted
pursuant to 15.306(d), which specifically requires access by all bidders to the
exchange process.
In addition, if RMMM thought that the agency’s description of
potential exchanges was inconsistent with FAR Part 15, the time to complain
of that was prior to bidding. 7 While it argues that it was fooled into thinking
that perhaps the agency had in mind the more selective, benign
communications offered by 15.306(a) or (b), the solicitation is not so limited.
The potential for mischief should have been apparent. In any event, the
solicitation did not contemplate use of a competitive range, which is
presumed under section 15.306(b) and (d), another dissonance which
RMMM should have picked up on.
Plaintiff responds that Dubinsky v. United States, 43 Fed. Cl. 243(1999), stands for the proposition that a solicitation conducted pursuant to
FAR Part 13, must also comply with the procedural requirements of FAR
15.306 and FAR 15.307, as “it is not ‘appropriate’ for an agency to cherry-
pick which FAR Part 15 procedures to apply.” Pl. Mem. at 22-23 (citing
Dubinsky, 43 Fed. Cl. at 264). The facts of Dubinsky are distinguishable,
however. The agency in that case did not inform offerors that the agency
was using SAP under FAR Part 13, nor did the solicitation specifically warn
bidders of the possibility of exchanges with some bidders. As a result, the
6
The GAO has found that it was “not legally objectionable” for a CO to
follow a provision of a solicitation that reserved the right to conduct
discussions with any or all offerors, even where that solicitation was issued
pursuant to FAR 13. Oregon Innovative Products, B- 231767, 1988 WL
227585 (Comp. Gen. Aug. 2, 1988). We agree.
7
Blue & Gold Fleet, L.P. v. United States, 492 F.3d 1308, 1313 (Fed. Cir.
2007).
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Dubinsky court was “obligated to analyze the agency’s conduct under the
rubric of Part 15.” Id. The court noted that “[i]f simplified procedures under
Part 13 had been utilized, then many of plaintiff’s concerns about the conduct
of discussions in this procurement would be irrelevant,” because “[t]he
simplified acquisition procedures in Part 13 allow contracting officers
considerable flexibility in the contract award process.” Id. at 254. 8 Of course
such simplified procedures were called out in this procurement.
In short, the agency may have announced the creation of a platypus of
a procurement, drawing bits and pieces from various practices, but RMMM
cannot legitimately complain that it had reason to be surprised at what
actually happened. Alternatively, RMMM was on notice that the agency had
created what it argues now is a potentially illegal syncretism of processes.
B. The Agency Rationally Evaluated MedExpress’s Technical
Capability Volume
RMMM argues that because the solicitation limited the technical
volume to six pages and warned that quotes not meeting the solicitation
requirements “may be considered non-compliant,” the agency should have
considered MedExpress’s proposal as non-compliant for exceeding the page
limit. AR 245. While the CO removed MedExpress’s introductory letter
before referring the technical proposal to the TET, RMMM argues that the
proper response should have been to disqualify the entire proposal or
evaluate only the first six pages of the total submission. Pl’s Mem. at 39
(citing Board of Regents of Nev. Sys. of Higher Educ. on Behalf of Desert
Res. Inst. v. United States, 132 Fed. Cl. 435, 452 (2017)). RMMM asserts
that it was prejudiced because MedExpress’s introduction letter provided a
description of MedExpress’s experience with similar projects, its technical
capabilities, and approaches to ambulance service performance.
The government responds that the agency enforced the page
requirement for the technical capability volume because the CO submitted
8
In its reply, plaintiff argues that the court’s alternative holding in Dubinsky
supports its argument that the Air Force was required to follow FAR Part 15.
We disagree. In Dubinsky, the court alternatively found that even if that
procurement was conducted under FAR Part 13, FAR 15.307(b) would apply
because “defendant conceded that FAR 15.306 applied.” Dubinsky, 43 Fed.
Cl. at 263. The court held that, having conceded that FAR 15.306 applied to
that procurement, the agency could not sever the applicability of FAR
15.307(b). Here there was no such concession.
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the copy of MedExpress’s technical capability volume, but not the
introductory letter. Indeed, plaintiff concedes that there is no indication in
the record that the agency ever reviewed the introduction letter. Pl’s Mem.
at 38. The government also argues that there is no authority limiting the Air
Force to either rejecting the proposal or lopping the last three pages off.
We agree with the government. The CO was reasonable in enforcing
the page-limit requirement by discarding MedExpress’s introductory letter
prior to sending the balance to the evaluators. 9 In the absence of any
evidence that the introductory letter impacted the evaluation, the letter of
introduction did not give MedExpress any advantage over the others. 10
C. The Air Force Rationally Found MedExpress’s Past Performance
Relevant
RMMM asserts that the Air Force irrationally found that the past
performance reference for MedExpress’s LRAA contract was relevant,
resulting in an irrational overall performance confidence assessment rating
for MedExpress. RMMM argues that the agency failed to show adequate
justification for its decision that MedExpress’s LRAA past performance
reference satisfied the relevancy requirement. RMMM also asserts that the
agency relied on MedExpress’s description of its work performed under the
LRAA contract, without conducting its own investigation to verify its
relevancy.
RMMM contends that MedExpress’s LRAA contract was not relevant
under the solicitation’s definition, which defined relevancy as “a past or
present past performance effort involving similar scope, magnitude, and
complexity of effort as this solicitation.” AR 256. RMMM argues that there
are several issues with MedExpress’s LRAA contract, causing the past
9
Plaintiff’s argues in its reply that the Air Force’s “acceptance of
MedExpress’s noncompliant proposal,” constituted an inconsistent
application of the solicitation requirements because the Air Force required
Contractor A to revise its noncompliant proposal. Pl’s Reply at 18. (ECF
No. 40 at 18). By disregarding the introductory letter, however, the Air Force
enforced the page-limit requirement.
10
In Board of Regents, the CO’s decision to include the preliminary materials
in the page limit rather than excluding them, was in accordance with the
solicitation and the decision thus does not represent a controlling rule of
procurement law. Board of Regents, 132 Fed. Cl. at 452.
17
performance to fall short of the solicitation’s definition requirement that the
contract be similar in magnitude and complexity.
First, RMMM argues that although MedExpress’s past performance
volume indicated that the price of the LRAA contract was “[ ] per day,”
the volume lacked detail on the number of days included in the contract
performance. AR 489. It points out that the LRAA contract reference, [
], stated that the LRAA “activated [its] contract with Med Express over seven
times in the last 3 years,” without, however, providing any further
information on the total number of days of contract performance. AR 320.
Plaintiff argues that the agency did not explain how it came to the conclusion
that the contract’s total dollar value was over [ ]. Thus, RMMM
contends that there was no basis to conclude that the LRAA contract was
similar in magnitude to the solicitation.
RMMM also argues that MedExpress’s LRAA contract lacks the
same “complexity of effort” required by the solicitation’s relevancy
definition. RMMM states that the only similarity between the two contracts
is that they are both for ambulance services. RMMM argues that the LRAA
contract and the current solicitation are dissimilar, as the LRAA was for as
services as needed and was an augmentation to the services of other entities,
whereas the present solicitation requires the contractor to be the sole provider
of services 24 hour per day services, every day of the year. Additionally, the
LRAA contract was not providing services at a federal facility, while this
solicitation requires services to be provided at a military installation. Thus,
plaintiff argues that the agency’s relevancy assessment of the LRAA contract
was arbitrary and capricious.
RMMM thus concludes that MedExpress’s past performance volume
only provided one relevant reference, disqualifying it from receiving a
“substantial confidence” rating. Instead, because MedExpress’s LRAA past
performance reference was not relevant to the solicitation, it should have
been assessed a “neutral confidence” rating.
We disagree. The agency’s evaluation of MedExpress’s past
performance LRAA contract reference was rational. First, the solicitation
points out that “The past performance assessment [is] subjective.” AR 255.
While the determination is subject to a review for reasonableness, the Federal
Circuit has held that an agency’s “determination of relevance is owed
deference as it is among ‘the minutiae of the procurement process,’” which
this court “‘will not second guess.’” Glenn Def. Marine (ASIA), PTE Ltd. v.
United States, 720 F.3d 901, 911 (Fed. Cir. 2013) (quoting E.W. Bliss Co. v.
United States, 77 F.3d 445, 449 (Fed. Cir. 1996)).
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RMMM’s claim that the agency’s determination of the LRAA
contract’s total dollar value was not supported by the record is refuted, as it
conceded during oral argument, by the amended record which includes
MedExpress’s statement that the LRAA contract’s total dollar value was [
] as of August 27, 2020. AR 831. As to RMMM’s assertion that the LRAA
effort is not similar in complexity to this solicitation, this solicitation does
not define complexity, and the agency’s relevancy assessment was within its
discretion and not unreasonable. In the CO’s view, MedExpress’s LRAA
contract was relevant because the LRAA’s description of work and dollar
value matched the solicitation’s requirements of complexity of effort,
magnitude, and scope:
[T]he primary services of both efforts is the provision of
medical transportation and support services. It is apparent that
[MedExpress’s] reference involves the very type of medical
services contemplated by the [solicitation]. Additionally, both
efforts require the awardee to provide qualified personnel and
to comply with applicable professional standards and license
requirements.
AR 448. We have no basis for overturning this assessment.
While RMMM argues that the record “contains no explanation,
contemporaneous or otherwise” of the agency’s decision for evaluating
MedExpress’s past performance for relevancy, the record documents the
pertinent facts leading to the agency’s decision. Pl.’s Mem. at 34. The
agency developed a chart to evaluate the recency of each offeror’s past
performance. The chart had two columns detailing factors that the agency
used to determine whether each past performance reference was relevant, the
citation’s description of work and total dollar value. For the description of
work column, the agency noted that the LRAA contract required MedExpress
to provide emergency medical services “in the form of Ambulance Services
and personnel in the time of a disaster and in corporation with Federal, State,
and Local Government,” and the most recent emergency was a “response to
COVID pandemic in New Orleans.” AR 503. For the total dollar value
column, the agency noted that the LRAA contract’s value was “[ ]
YTD 2020/ [ ] per unit, per day, as required for disaster relief efforts.”
AR 503. After reviewing all of the pertinent information provided by
MedExpress including the responses from the LRAA reference, [ ],
the agency determined that the LRAA contract was relevant because the
LRAA’s description of work and total dollar value matched the solicitation’s
requirements of complexity of effort, magnitude, and scope.
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There is no legal support for RMMM’s argument that the agency
should have conducted an independent verification of the LRAA contract for
relevancy, rather than relying solely on MedExpress’s past performance
volume and [ ] responses. Even if the solicitation did require an
independent investigation, which it does not, RMMM fails to acknowledge
that the agency did conduct independent research; the past performance
evaluation was based on the responses of the past performance reference
citations that each offeror submitted, and any other information that the
government obtained independently, including the government’s
CPARS/PPIRS reports. In fact, MedExpress’s “substantial confidence” past
performance rating was “based on information assessed as provided by the
references and/or information available in CPARS/PPIRS reports as part of
an independent Government assessment.” AR 495.
Plaintiff concedes that the government correctly recognized that the
solicitation did not only define “relevant,” but also provided a definition for
“not relevant.” The solicitation defined “not relevant” as a “present or past
performance effort involving little or none of the scope and magnitude of
effort as this solicitation.” AR 256. The binary nature of the relevance
determination means that only those past performance efforts involving
“little or none” of the scope and magnitude of effort of the solicitation are
not relevant. Thus, the agency’s relevancy assessment was rational, as the
agency could not conclude that the LRAA reference involved “little or none
of the scope and magnitude of effort” as compared to the solicitation, such
that the effort was “not relevant.” AR 256.
D. The Agency’s Evaluation of Contractor D’s Past Performance
Assessment did not Prejudice RMMM
We will assume for argument’s sake that the agency’s past
performance evaluation of Contractor D was contrary to the solicitation,
which required each contractor to submit two references, and that both
references had to be “recent” and “relevant.” AR 249. Contractor D
remained in the competition despite the agency’s rejection of one of its past
performance references as, among other things, irrelevant. RMMM states
that if RMMM knew that the agency would deviate from the evaluation
criteria, RMMM would have prepared its past performance volume
differently by omitting the reference for the SAFB contract which resulted in
an adverse rating and argues that it would have received a higher overall
performance confidence rating if the agency only evaluated its USAFA
contract past performance reference.
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Plaintiff’s argument would have more traction if Contractor D had
been selected for award. But it was not. At the end of the day, plaintiff was
not competing against Contractor D, it was competing against MedExpress,
which did submit two relevant past performance references. For a protestor
to prevail in a bid protest, it must show that, absent the alleged error, there
would be a reasonable likelihood of the protestor receiving the contract. Linc
Gov’t Servs., LLC v. United States, 96 Fed. Cl. 672, 695 (2010). Even if
Contractor D received a “neutral confidence” rating, it would not affect the
agency’s decision that MedExpress’s proposal presented a better value to the
government than RMMM’s proposal. We therefore fail to see the prejudice
to plaintiff nor any basis for taking the award away from intervenor.
Trying to reconstruct the procurement in light of the agency’s
apparently erroneous treatment of Contractor D would be highly unfair to
MedExpress and would necessarily involve accepting a contrived and highly
speculative scenario. It involves an assumption that, if RMMM had known
that it could get by with one reference, it would have deleted the problematic
one, and that the agency would treat that one reference as so superior that,
like Contractor D, it would vault RMMM’s assessment to “outstanding.”
Presumably others would have had the same opportunity, however, further
muddying a conclusion that the result would have been different. It is much
simpler to deal with the undisputed facts: MedExpress and RMMM were the
two finalists; both were given the opportunity and obligation to furnish two
past performance references; the agency was impressed with intervenor’s
prior performances and justifiably concerned about plaintiff’s. Even
assuming a foul up with respect to Contractor D, that fact was an irrelevant
sideshow.
CONCLUSION
Plaintiff asserts that the agency erred in several ways, and that
collectively, these mistakes warrant the court’s intervention on a theory that
the whole (a general verdict of unfairness) is greater than the sum of its parts.
We are not permitted to take a gestalt approach to bid protests, however. To
overturn an agency action, we must find a discrete, prejudicial error. This
may not have been a textbook procurement, but none of the alleged errors
individually or collectively permit the court to reverse. Therefore, no relief
is warranted, and we deny plaintiff’s motion for judgment on the
administrative record and grant defendant’s cross-motion. The Clerk of
Court is directed to enter judgment for defendant. No costs.
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s/Eric G. Bruggink
ERIC G. BRUGGINK
Senior Judge
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