Enhanced Veterans Solutions, Inc. v. United States

In the United States Court of Federal Claims
No. 15-1022C
(Filed under seal April 26, 2017)
(Reissued May 3, 2017) †
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*
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ENHANCED VETERANS * Post-award bid protest; service
SOLUTIONS, INC., * center operation support services;
* U.S. Citizenship & Immigration
Plaintiff, * Services; solicitation interpretation;
* patent ambiguity; FAR §§ 15.304(d),
v. * 15.305; roll-up of subfactor ratings;
* FAR § 1.602-2(b); alleged disparate
THE UNITED STATES, * treatment; integrity and business
* ethics, FAR § 9.104-1(d); subcontractor
Defendant, * past performance.
and *
*
CENTRAL RESEARCH, INC., *
*
Defendant-Intervenor. *
*
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Alexander O. Levine, PilieroMazza PLLC, with whom were Pamela J. Mazza,
Megan C. Connor, Patrick T. Rothwell, and Jacqueline K. Unger, all of Washington,
D.C., for plaintiff.
Domenique Kirchner, Commercial Litigation Branch, Civil Division,
Department of Justice, with whom were Benjamin C. Mizer, Principal Deputy
Attorney General, Robert E. Kirschman, Jr., Director, and Deborah A. Bynum,
Assistant Director, all of Washington, D.C., for defendant. Joshua A. Kranzberg,
Associate Counsel, Department of Homeland Security, Washington, D.C., of counsel.
Gerald H. Werfel, Baker, Cronogue, Tolle & Werfel, LLP, McLean, Virginia,
for defendant-intervenor Central Research, Inc. H. Todd Whay, Sterling, Virginia,
of counsel.
† This opinion, initially filed under seal, is reissued for publication, with the name
of a third-party offeror redacted and some minor, non-substantive corrections made.
OPINION AND ORDER
WOLSKI, Judge.
Enhanced Veterans Solutions, Inc. (eVETS) filed a bid protest seeking to
enjoin the U.S. Department of Homeland Security’s United States Citizenship &
Immigration Services (USCIS or the agency) from proceeding with the contract for
service center operations support services that was awarded to defendant-
intervenor, Central Research, Inc. (CRI). Before the Court are the motions for
judgment on the administrative record filed by each party pursuant to Rule 52.1(c)
of the Rules of the United States Court of Federal Claims (RCFC). Among other
things, eVETS argues that USCIS’s evaluation was unreasonable, that the agency
erred by excluding eVETS from the best value analysis, and that the award to CRI
was improper. For the reasons stated below, the Court disagrees with plaintiff and
finds that the agency’s award to CRI was not arbitrary or unreasonable.
Accordingly, defendant’s and defendant-intervenor’s motions for judgment on the
administrative record are GRANTED and plaintiff ’s cross-motion for judgment on
the administrative record is DENIED.
I. BACKGROUND
A. The Solicitation
The agency issued Solicitation No. HSSCCG-14-R-00027 (the Solicitation) on
June 20, 2014. Admin. R. (AR), Tab 7c at 138–41. The Solicitation sought proposals
to provide comprehensive records management services at USCIS’s four service
centers for a one-year base period and three one-year option periods. 1 AR, Tab 8b at
147. Two single-award contracts were to be awarded. Id. at 253. The contract at
issue is the Group A contract for the Nebraska Service Center (NSC) and the Texas
Service Center (TSC). Id. The USCIS service centers process correspondence,
perform data entry, collect fees, provide file operation support services, and perform
adjudication operations concerning most applications and petitions for immigration
services and benefits. Id. at 147. The Solicitation explained that USCIS was
shifting from a paper-based model towards the processing of applications and
petitions online using the USCIS Electronic Immigration System (ELIS). Id. at 149.
By using ELIS, an applicant may view his case status, access forms, and submit
forms online. Id. As the service centers transition to ELIS, certain tasks will either
no longer be performed or be performed at a reduced level. Id. The agency was
seeking a proposal that would “result in improved efficient, accurate, and timely
performance of . . . records management and support services.” Id. at 147.
1The period of performance was later amended to shorten the base period to six
months and add a fourth option period of six months. AR, Tab 26b at 1525.
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B. Evaluation Criteria
The Solicitation informed offerors that an award would be made:
[T]o the responsible offeror that offers the best value to the
Government, price and non-price factors considered. In making this
comparison, the Government is more concerned with obtaining
performance capability superiority rather than the lowest overall price.
However, the Government will not issue an award to a contractor who
presents a significantly higher overall price to achieve only slightly
superior performance capabilities. The Government will make this
assessment through the development of a trade-off analysis.
AR, Tab 8b at 270. Each proposal would be evaluated based on three factors:
Technical, Price, and Past Performance. Id. at 271. Technical and Price were
“approximately equal,” and both were individually more important than Past
Performance. Id. The Technical factor consisted of four subfactors: Operational
Approach, Management Approach, Corporate Experience, and Experience with
Unions. Id. The first three subfactors were all of “equal importance,” while the
fourth was of lesser importance. Id. The first volume of each offeror’s submission
was to be its Technical Proposal, addressing the Technical subfactors, AR Tab 8b at
257–59, and the second volume would be the Business Proposal, including Price and
Past Performance information, id. at 260–64.
Under the Source Selection Plan (SSP), the Technical factor and each of its
subfactors were to be rated based on five adjectival ratings. AR, Tab 5 at 109. The
possible ratings were “Outstanding,” “Good,” “Acceptable,” “Marginal,” and
“Unacceptable.” Id. “Outstanding” was to be given to a proposal that “clearly
demonstrates an outstanding understanding of all aspects of the requirement so
that performance is expected to be of the highest quality,” “has strengths that will
very significantly benefit the Government,” and has no identified weaknesses. Id.
“Good” describes a proposal that “clearly demonstrates a good understanding of all
aspects of the requirement so that performance is expected to be of high quality,”
“has strengths that will significantly benefit the Government,” and contains no
significant weaknesses. Id.
The rating of “Acceptable” was to apply to a proposal that “demonstrates an
acceptable understanding of the requirements” and “contains only minor or no
strengths” and no significant weaknesses. AR, Tab 5 at 109. A proposal was to be
found “Marginal” if it “demonstrates a marginal solution and approach and contains
a significant weakness in any factor or sub-factor,” and “does not meet the
requirements to be rated Acceptable,” but, if given the opportunity for discussions or
clarifications, “has a reasonable chance of becoming Acceptable.” Id. The rating of
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“Unacceptable” was to be given to a proposal that “contains deficiencies and/or gross
omissions; or failed to demonstrate an understanding of the scope of work necessary
to perform the required tasks; or failed to provide a reasonable, logical approach to
fulfilling much of the Government’s requirements,” and that requires significant
revisions to be considered “other than unacceptable.” Id.
The SSP mirrored the Federal Acquisition Regulation (FAR), see 48 C.F.R.
§ 15.001, in defining key rating terms. “Significant weakness” was defined as “[a]
flaw in the proposal that appreciably increases the risk of unsuccessful contract
performance.” AR, Tab 5 at 110. “Deficiency” was defined as “[a] material failure of
a proposal to meet a Government requirement or a combination of significant
weaknesses in a proposal that increases the risk of unsuccessful contract
performance to an unacceptable risk.” Id. Perhaps because the SSP employed the
same adjectival ratings at the factor and subfactor levels, see id. at 109; see also AR,
Tab 1 at 7–8, the Technical Evaluation Committee (TEC) adopted the following
evaluation process: “In the event an offeror was rated Marginal or Unacceptable in
any subfactor, that rating rolled up and became the overall rating for the factor
because the proposal was determined to have either a significant weakness or a
deficiency.” AR, Tab 17 at 1019; AR, Tab 30 at 2054.
C. Evaluation of Proposals and Award of Contract
Four amendments to the Solicitation were issued by USCIS prior to the
proposal deadline. AR, Tabs 9–12. Of relevance, Amendment 1 was issued on July
3, 2014, and included answers to questions submitted by offerors regarding the
Solicitation. AR. Tab 9a at 535. One question, submitted by eVETS, see Pl.’s Stat.
Facts & Mem. Pts. & Auths. Supp. Cross-Mot. J. Admin. R. & Opp’n Def.’s Mot. J.
Admin. R. (Pl.’s Mot.) at 9, asked whether the TSC ELIS immigration visa (IV) work
--- described as “an average monthly volume of 40,000 which annualizes to 480,000
(960,00 [sic] to include both forms)” --- was a data collection function or a file
operations function. AR, Tab 9b at 543. The agency responded: “ELIS IV
processing is a file operation performed under CLIN 0006.” Id.Five offerors submitted proposals for the Group A contract by the July 22,
2014 deadline, including CRI and eVETS. 2 See AR, Tab 17 at 1018. Following the
review and evaluation of the initial proposals by the TEC, eVETS had the best
overall rating of Good for the Technical factor --- with a Good rating for
Management Approach and for Corporate Experience, and Acceptable for the other
two subfactors. Id. All other offerors received the rating of Marginal for the
2 Plaintiff proposed that Veterans Enterprise Technology Solutions, Inc. (VETS)
would serve as its major subcontractor. AR, Tab 15 at 785. Under the previous
task order, VETS was the incumbent prime contractor for the Texas and Nebraska
service centers and eVETS served as a subcontractor. Id.-4-
Technical factor, presumably because each had an Operational Approach subfactor
rating of Marginal. Id. at 1018–19. The Contracting Officer noted that eVETS was
the highest priced offeror and the only one proposing higher costs than the
Independent Government Cost Estimate (IGCE). AR, Tab 20 at 1315. 3 With the
other four offerors having significant weaknesses in the area of staffing, and eVETS
having the highest price and a weakness due to low staffing, the Contracting Officer
decided to include all five offerors in the competitive range. Id. at 1315–16.
On December 23, 2014, Amendment 5 to the Solicitation was issued, AR, Tab
21, and discussion letters were sent to eVETS and the other offerors, AR, Tabs 22,
23, 78–80. In the letter to eVETS, concerning its Technical Proposal, the second of
fourteen areas for discussion under the Operational Approach subfactor stated:
T2. The staffing chart was determined to allocate insufficient numbers
of employees in the following areas:
Data Collections at NSC. The 37 allocated [Full Time
Equivalents] (FTEs) are not considered to be sufficient to meet
base year requirements.
Data Collections at TSC. The 28 allocated FTEs are not
considered to be sufficient to meet base year requirements.
AR, Tab 23 at 1487–88.
Concerning plaintiff ’s Business Proposal, the first area for discussion noted
that the period of performance was to be revised, with the new base period of six
months running through November 30, 2015, followed by three one-year option
periods, and a fourth option lasting six months. Id. at 1489. 4 The fifth area for
discussion referenced Attachment 1 to the letter, described as “Volumes and Hours
for CLINs 6 and 8,” and stated: “Volumes by center by period for CLIN XXX6 File
Operations are provided. The volumes begin with GFY 13 incurred volumes and
reflect a percentage decrement each period that USCIS expects to occur as a result
of ELIS impacts.” Id. at 1490. And in discussion areas eight through ten, under the
Pricing Template category, eVETS was told:
B8. Summary Tab---Proposed Full Time Equivalents (FTEs) and
hours are significantly higher than the Government’s estimate.
3Plaintiff, intervenor, and two other offerors received a Low Risk assessment for
Past Performance, with the fifth assigned a Medium Risk. AR, Tab 20 at 1314.
4 The solicitation originally called for a one-year base period ending November 30,
2015, and three one-year options. AR, Tab 8b at 144. The base period was modified
by Amendment 1, to a separate two-month transition period through January 31,
2015, and a ten-month period ending November 30, 2015. AR, Tab 9d at 1569–70.
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B9. Summary Tab---Proposed price is significantly high.
B10. Summary Tab---eVETS flat lined FTEs for all periods. Volumes
decrease each period for ELIS. See Amendment No. 5, Attachment 1.
Id. at 1490.
Attachment 1 to the letter consisted of spreadsheets entitled “Contract Year
Workload Activity Report,” listing file operations for the Nebraska and Texas
Service Centers. Id. at 1492-1–1492-4. Of particular relevance to this protest is the
report concerning the TSC. The first column of data apparently shows the number
of times each of the listed file operations was processed in the period December 1,
2012, through November 30, 2013, a twelve-month period that aligns with the
endpoints of the four contract periods. AR, Tab 23 at 1492-3. 5 The other four
columns projected that work over the periods of performance then in effect under
the Solicitation (through Amendment 5). In the next column representing the base
period, the numbers of each operation from the December 2012 through November
2013 period are prorated over the ten-month base period and multiplied by 95
percent. Id. The next three columns represent the three option years, and multiply
the first column figures by 85 percent, 75 percent, and 60 percent, respectively. Id.A notation below the data fields explains: “These % represents [sic] the anticipated
workload reduction from FY13 operation volumes due to USCIS ELIS
implementation.” Id. at 1492-4.
Before submitting formal responses to the areas of discussion and revisions to
their proposals, each offeror participated in a telephone conference call with agency
officials, with the eVETS discussion apparently occurring on January 6, 2015. See
id. at 1487; see also AR, Tab 36 at 2421; Tabs 24a & 24b (discussion notes of
Contract Specialist and Contracting Officer). After the oral discussions, USCIS
issued Amendment 6 on January 9, 2015, revising the period of performance as
announced in the discussion letters --- a six-month base period ending November
30, 2015, and an additional six-month option period ending May 31, 2019. See AR,
Tab 26b at 1524–25; Tab 23 at 1489. The amendment included an updated version
of Attachment 1 to the discussion letters, the Contract Year Workload Activity
Report. See AR, Tab 26c at 1538 (revised report for the TSC). Offerors were
informed that the purpose of the revised Attachment 1 was “to reflect the correct
period of performance and decrement volumes.” AR, Tab 26a at 1523. The revised
5 Although the column heading is “FY13 Processed,” a notation on the second line
indicates the report is “for TSC from 12/1/2012 to 11/30/13.” AR, Tab 23 at 1492-3.
Prospective offerors had previously been given workload data for fiscal year 2013,
which ran from October 1, 2012, to September 30, 2013, see AR Tab 6b at 134–35,
containing the identical fields but slightly different numbers from the Attachment 1
data.
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portions of the report were depicted in red. See AR, Tab 26c at 1538. The base
period was changed to four months, id., subtracting the two-month transition period
from the new six-month base period, see AR, Tab 26b at 1527–28. The data in the
base year column changed, as it was now prorated over four rather than ten
months. Compare AR, Tab 23 at 1492-3 (ten-month figures) with Tab 26c at 1538
(four-month figures). The only other revision concerning CLIN 6 file operations was
the addition of a column with data for the fourth option period, prorated over six
months and calculated at 60 percent of the levels for the year ending November 30,
2013. AR, Tab 26c at 1538. All of the fields describing the operations, and the data
in the other columns, were unchanged from the prior version of the report.
On February 4, 2015, offerors submitted their final proposal revisions (FPRs)
and responses to the areas for discussion. AR, Tab 36 at 2421; see AR, Tab 29a at
1755 (eVETS response); Tab 29b at 1812 (eVETS FPR, Business Proposal); Tab 29c
at 1941 (eVETS FPR, Technical Proposal). Plaintiff made several changes to its
final proposal, including increasing the number of proposed staffing for data
collections at TSC and NSC. 6 AR, Tab 29a at 1756–59. In response to the B8 area
for discussion, eVETS stated:
• Our original bid for CLIN 6 was based on the period FY 13
(10/1/12–09/30/13) data from the current SCOSS Task Order. The
Contract Year Workload Activity Report (Attachment 1 of
Amendment 6) has since provided volumes of work from the period
12/01/12–11/30/13 that is now factored into this latest bid. The
volume of work provided in the Contract Year Workload Activity
Report (Attachment 1 of Amendment 6) also included a decrease
over the life of the contract which is in contrast to our original bid
that did not factor in decreasing volumes.
• Our original proposed price included the movement of all ELIS
work at the TSC from CLIN 4 to CLIN 6. These volumes were
added to the FY 13 volumes for CLIN 6 that were used in our
original price proposal.
• The Contract Year Workload Activity Report volumes do not
include ELIS work. This equates to 50 FTEs at the TSC.
• The eVETS Final Proposal Revision provides FTEs in CLIN 6 based
solely on the Contract Year Workload Activity Report (Attachment
1 Amendment 6).
Id. at 1789–90.
6 Plaintiff increased its proposed data collections staff level at NSC by 5.3 FTEs
and at TSC by 2 FTEs. AR, Tab 29a at 1756–59.
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Despite this language in its discussion response, eVETS’s revised Technical
Proposal retained the language pledging “to process the TSC Visa Packets,” which it
noted “has an average monthly volume of 40,000 cases.” AR, Tab 29c at 1982; see
also id. at 1976 (“File Operations at the Service Centers involve a variety of tasks,
to include Visa packet at the TSC.”), 1994 (“Visa Packets ELIS” included in TSC
basis of estimate at 3.1 per hour). But in the revised Business Proposal, eVETS
reduced the overall level of staffing proposed to perform file operations at the TSC
in the base year, from 260 FTEs to 176 FTEs. See AR, Tab 16a at 939; Tab 29b at
1908.
The FPRs were reviewed by the TEC and the Business Evaluation
Committee (BEC). The TEC rated eVETS’s overall Technical factor Marginal with
subfactor ratings of Good in both Management Approach and Corporate Experience,
Acceptable in Union Experience, and Marginal in Operational Approach. AR, Tab
30 at 2053. Under the Operational Approach subfactor, eVETS received two
strengths, two weaknesses, and a significant weakness. AR, Tab 30 at 2070–71.
The significant weakness was assigned due to concerns about file operations at the
TSC, as the TEC found “[t]he allocated 176 FTEs . . . which is considered
understaffed by over 80 FTEs demonstrates a failure to provide a reasonable, logical
approach to fulfill much of the Government’s file operations requirements.” Id. at
2071. The TEC concluded that “the staffing plan is inadequate and the proposal
lacks an explanation of how this staffing is sufficient that allows the TEC to
determine the offeror can perform with this few staff, making this Subfactor
Marginal.” Id. In contrast, the TEC rated CRI’s Overall Technical factor Good,
with subfactor ratings of Acceptable for Management Approach and Good for
Operational Approach, Corporate Experience, and Union Experience. Id. at 2053.
One other offeror, [XXXXXXXXX] ([XXXXXX]), received a Good rating for the
Technical factor. Id. The other two received Technical factor ratings of
Unacceptable and Marginal, respectively, reflecting the assignment of those same
ratings for the Operational Approach subfactor. AR, Tab 30 at 2053.
For the Past Performance factor, the BEC assigned Low Risk to all offerors
except [XXXXX], which was assessed to present a Medium Risk. AR, Tab 31a at
2109. Plaintiff ’s price of $97,565,189.16 was the second lowest on offer, nearly $15
million lower than intervenor’s price --- which, in turn, was nearly $15 million lower
than [XXXXX]’s price. AR, Tab 31b at 2154.
The Source Selection Advisory Committee (SSAC) --- composed of the
directors of the four service centers to be supported by the work solicited, see AR,
Tab 35 at 2418 --- and the Source Selection Authority (SSA), received a briefing
from the chairmen of the TEC and BEC on April 3, 2015, see AR, Tab 34 at 2348,
2351; Tab 35 at 2412; Tab 36 at 2423. After reviewing the reports of the TEC and
the BEC, the SSAC “did not take exception to any of the findings or conclusions” in
the reports. AR, Tab 35 at 2414. The SSAC found that the eVETS ratings of
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Marginal for the overall Technical factor and for the Operational Approach
subfactor, and the “associated weaknesses and risks were too significant to
overcome for consideration of an award.” Id. at 2415. It “noted that the significant
staffing concern was in more than one functional area,” and that “[t]he file
operations area is a Labor Hour CLIN which shifts all risk of performance/costs to
the agency[,] further compounding the risks associated with the insufficient
proposed staffing levels.” Id. The SSAC found these concerns were further
compounded by a “noted variation in productivity metrics” that was not credibly
explained. Id. Due to its concerns regarding eVETS and the other offeror with a
Marginal Technical factor rating, and with a third offeror rated Unacceptable under
this factor, the SSAC determined that only CRI and [XXXXX] were viable for the
award. Id. at 2414–15. It recommended that the award be made to intervenor. AR,
Tab 35 at 2416.
The SSA reviewed the TEC and BEC reports and the SSAC’s
recommendation, and concurred in all respects. AR, Tab 36 at 2423–26. Regarding
eVETS’s proposal, the SSA pointed out concerns over eVETS’s proposed staffing
levels. The SSA stated that “despite being advised during discussions that [its]
staffing was considered inadequate and making some minor adjustments to the
data collections staffing at both NSC and TSC,” eVETS further downsized what had
been a properly-sized file operations workforce by over 80 FTEs. Id. at 2424. After
reiterating the SSAC’s concerns, id., the SSA found the file operations staffing
levels “an unacceptable risk” based on the likelihood that eVETS would be
understaffed and unable to absorb the increased costs of hiring more workers,
resulting in unbudgeted and disruptive contract cost increases for USCIS. Id. at
2425. Based on the above concerns with eVETS, the SSA did not consider eVETS
viable for possible award and thus did not include eVETS in the best value trade-off
analysis. Id. The SSA awarded the contract to CRI because CRI offered “the best
integration of technical, price and past performance for Group A.” Id. at 2426, 2428.
D. The GAO Protest and Proceedings in This Court
Plaintiff challenged the award of the Group A contract to CRI by filing a
protest with the United States Government Accountability Office (GAO) on May 26,
2015. AR, Tab 43 at 2497. In its initial protest, eVETS argued that the agency
materially erred by failing to consider the advantageous aspects of its proposal in a
proper best-value analysis, id. at 2503–04; that the agency violated the Solicitation
by making the Operational Approach subfactor more important than the others, id.at 2504–05; that the evaluation of its Operational Approach was unreasonable, id.at 2506–18; that it should have received a higher rating than CRI under the
Experience with Unions subfactor, id. at 2518–19; that CRI should have received
lower ratings for the Corporate Experience subfactor and the Past Performance
factor, id. at 2519–21; that intervenor’s proposal showed that CRI would
impermissibly perform less than 50 percent of the contract, id. at 2521–22; that CRI
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should have been found not responsible due to alleged concerns about its
subcontractor, id. at 2522–23; and that intervenor should have been found to have
overstaffed its proposal, id. at 2523. Seven weeks later, eVETS filed a
supplemental protest, adding the argument that CRI’s revised Technical Proposal
was one page longer than the limit and, as a consequence, its last page ---
containing intervenor’s entire discussion of the Experience with Unions subfactor ---
should have been disregarded. AR, Tab 50 at 2675.
On September 3, 2015, the GAO denied the protest in part and dismissed the
remainder, after finding no basis to sustain the protest. AR, Tab 59 at 2754, 2759,
2763. The GAO explained that eVETS’s interpretation of Attachment 1 to
Amendment 6 would have created a patent ambiguity the clarification of which was
not timely sought, and that it was reasonable for the agency to evaluate the TSC file
operations staffing based on the required ELIS IV work. Id. at 2760–61. The GAO
found that the Solicitation did not require the mechanical combination of Technical
subfactor ratings, and that the eVETS proposal was technically unacceptable and
thus properly excluded from the best value determination. Id. at 2761–63. The
remaining protest grounds were dismissed because plaintiff, having been found
ineligible for award, lacked the requisite interest to raise them. Id. at 2763.
Eleven days later, eVETS filed its complaint in our court, containing six
counts. Count I alleged that USCIS unreasonably evaluated eVETS’s proposal
under the Operational Approach subfactor. Compl. ¶¶ 27–51. Count II argued that
in basing the eVETS proposal’s Marginal rating for the Technical factor on just the
Operational Approach subfactor, the agency failed to follow the Solicitation’s
evaluation criteria. Id. ¶¶ 52–64. In Count III, eVETS claimed that the best value
analysis was improper due to the exclusion of its proposal. Id. ¶¶ 65–77. Count IV
alleged disparate treatment in the agency’s evaluation of plaintiff ’s training plan,
quality control plan, and use of proprietary data tools. Id. ¶¶ 78–88. Count V
challenged the reasonableness of USCIS’s assessment of CRI’s past performance
and corporate experience. Id. ¶¶ 89–101. And in Count VI, eVETS argued that
USCIS unreasonably ignored available and relevant information concerning
intervenor’s proposed subcontractor in determining that CRI was responsible. Id.¶¶ 102–14.
Along with its complaint, eVETS filed an application for a preliminary
injunction and a temporary restraining order. Pl.’s Appl. Prelim. Inj. & TRO, ECF
No. 4. After that motion was fully briefed, and at the conclusion of a hearing on the
motion, the Court denied plaintiff ’s requested preliminary injunction, due to
eVETS’s failure to demonstrate a likelihood of success on the merits. See Order
(Sept. 18, 2015), ECF No. 26. The parties then fully briefed motions for judgment
on the administrative record, and plaintiff moved for leave to supplement the
administrative record with a declaration from an officer of VETS and documents
concerning intervenor’s proposed subcontractor, FCi Federal, Inc. (FCi), see Pl.’s
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Mot. Suppl. Admin. R. (Pl.’s Mot. Suppl.), ECF No. 35. 7 At the end of a lengthy
hearing on the motions for judgment on the administrative record, held two days
before intervenor was to begin full performance of the contract, the Court indicated
that handover of the contract would not be enjoined, and explained its tentative
intention to decide matters in favor of defendant and intervenor. Tr. (Oct. 8, 2015)
(Tr.) at 251–54. After a full and thorough consideration of the record and
arguments of counsel, the Court is confirmed in that view, and explains its ruling
below.
II. DISCUSSION
A. Legal Standards
The Administrative Dispute Resolution Act (ADRA) amendments to the
Tucker Act require our court to follow Administrative Procedure Act (APA)
standards of review in bid protests. 28 U.S.C. § 1491(b)(4). Those standards,
incorporated by reference, provide that a:
reviewing court shall . . . (2) hold unlawful and set aside agency action,
findings, and conclusions found to be -- [¶] (A) arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with law; [¶] (B)
contrary to constitutional right, power, privilege, or immunity; [¶] (C) in
excess of statutory jurisdiction, authority, or limitations, or short of
statutory right; [¶] (D) without observance of procedure required by law;
[¶] (E) unsupported by substantial evidence in a case subject to sections
556 and 557 of this title or otherwise reviewed on the record of an agency
hearing provided by statute; or [¶] (F) unwarranted by the facts to the
extent that the facts are subject to trial de novo by the reviewing court.
In making the foregoing determinations, the court shall review
the whole record or those parts of it cited by a party, and due account
shall be taken of the rule of prejudicial error.
5 U.S.C. § 706 (2012).
Based on an apparent misreading of the legislative history, see Gulf Grp., Inc.
v. United States, 61 Fed. Cl. 338, 350 n.25 (2004), the Supreme Court had
determined, before the 1996 enactment of the ADRA, that the de novo review
standard of 5 U.S.C. § 706(2)(F) does not usually apply in review of informal agency
decisions --- decisions, that is, such as procurement awards. See Citizens to Pres.
Overton Park, Inc. v. Volpe (Overton Park), 401 U.S. 402, 415 (1971). Instead,
7The government opposed the motion to supplement, see Def.’s Opp’n to Pl.’s Mot.
Suppl. (Def.’s Suppl. Opp’n), ECF No. 40, and plaintiff filed a reply in support of the
motion, see Pl.’s Reply to Def.’s Suppl. Opp’n, ECF No. 43.
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courts in those cases are supposed to apply the standard of 5 U.S.C. § 706(2)(A):
whether the agency’s acts were “arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law.” See Overton Park, 401 U.S. at 416 (citation
omitted); see also Advanced Data Concepts, Inc. v. United States, 216 F.3d 1054,
1057 (Fed. Cir. 2000) (applying 5 U.S.C. § 706(2)(A)). But see Impresa Construzioni
Geom. Domenico Garufi v. United States (Domenico Garufi), 238 F.3d 1324, 1332
n.5 (Fed. Cir. 2001) (also citing 5 U.S.C. § 706(2)(D) as applicable in bid protests).
The “focal point for judicial review” is usually “the administrative record already in
existence,” Camp v. Pitts, 411 U.S. 138, 142 (1973), even when the matter under
review was not the product of a formal hearing. See Fla. Power & Light Co. v.
Lorion, 470 U.S. 729, 744 (1985); Axiom Res. Mgmt., Inc. v. United States, 564 F.3d
1374, 1379 (Fed. Cir. 2009).
A motion for judgment on the administrative record pursuant to RCFC 52.1
differs from a motion for summary judgment under RCFC 56, as the existence of
genuine issues of material fact does not preclude judgment on the administrative
record. See Bannum, Inc. v. United States, 404 F.3d 1346, 1355–57 (Fed. Cir. 2005);
Fort Carson Supp. Servs. v. United States, 71 Fed. Cl. 571, 585 (2006). Rather, a
motion for judgment on the administrative record examines whether the agency,
“given all the disputed and undisputed facts appearing in the record, acted in a
manner that was arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law.” Fort Carson, 71 Fed. Cl. at 585; see also Greene v. United
States, 65 Fed. Cl. 375, 382 (2005); Arch Chems., Inc. v. United States, 64 Fed. Cl.
380, 388 (2005). Factual findings are based on the evidence in the record, “as if [the
court] were conducting a trial on the record.” Bannum, 404 F.3d at 1357; see also
Carahsoft Tech. Corp. v. United States, 86 Fed. Cl. 325, 337 (2009); Gulf Grp., 61
Fed. Cl. at 350.
Under the “arbitrary and capricious” standard, this court considers “whether
the decision was based on a consideration of the relevant factors and whether there
has been a clear error of judgment” by the agency. Overton Park, 401 U.S. at 416.
Although “searching and careful, the ultimate standard of review is a narrow one.
The court is not empowered to substitute its judgment for that of the agency.” Id.This court will instead look to see if an agency has “examine[d] the relevant data
and articulate[d] a satisfactory explanation for its action,” Motor Vehicle Mfrs. Ass’n
v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983), and “may not supply a
reasoned basis for the agency’s action that the agency itself has not given.”
Bowman Transp., Inc. v. Ark.–Best Freight Sys., Inc., 419 U.S. 281, 285–86 (1974).
This court must determine whether “the procurement official’s decision lacked a
rational basis.” Domenico Garufi, 238 F.3d at 1332 (adopting APA standards
developed by the D.C. Circuit); see also Delta Data Sys. Corp. v. Webster, 744 F.2d
197, 204 (D.C. Cir. 1984). A second ground for setting aside a procurement decision
is when the protester can show that “the procurement procedure involved a
violation of regulation or procedure.” Domenico Garufi, 238 F.3d at 1332. This
showing must be of a “clear and prejudicial violation of applicable statutes or
- 12 -
regulations.” Id. at 1333 (quoting Kentron Haw., Ltd. v. Warner, 480 F.2d 1166,
1169 (D.C. Cir. 1973)).
Under the first rational basis ground, the applicable test is “whether ‘the
contracting agency provided a coherent and reasonable explanation of its exercise of
discretion.’” Domenico Garufi, 238 F.3d at 1333 (quoting Latecoere Int’l, Inc. v. U.S.
Dep’t of Navy, 19 F.3d 1342, 1356 (11th Cir. 1994)). This entails determining
whether the agency “entirely failed to consider an important aspect of the problem,
offered an explanation for its decision that runs counter to the evidence before the
agency,” or made a decision that was “so implausible that it could not be ascribed to
a difference in view or the product of agency expertise.” Ala. Aircraft Indus., Inc.–
Birmingham v. United States, 586 F.3d 1372, 1375 (Fed. Cir. 2009) (quoting Motor
Vehicle Mfrs. Ass’n, 463 U.S. at 43).
Because of the deference courts give to discretionary procurement decisions,
“the disappointed bidder bears a heavy burden of showing that the [procurement]
decision had no rational basis.” Domenico Garufi, 238 F.3d at 1333 (internal
quotation marks omitted) (quoting Saratoga Dev. Corp. v. United States, 21 F.3d
445, 456 (D.C. Cir. 1994)). The protester must demonstrate, by a preponderance of
the evidence, the absence of any rational basis for the agency decision. See
Overstreet Elec. Co. v. United States, 59 Fed. Cl. 99, 117 (2003); Info. Tech. &
Applications. Corp. v. United States, 51 Fed. Cl. 340, 346 (2001) (citing
GraphicData, LLC v. United States, 37 Fed. Cl. 771, 779 (1997)), aff’d, 316 F.3d
1312 (Fed. Cir. 2003). If arbitrary action is found as a matter of law, this court will
then decide the factual question of whether the action was prejudicial to the bid
protester. See Bannum, 404 F.3d at 1351–54.
The interpretation of a solicitation, as that of contract provisions generally, is
a question of law which courts review de novo. NVT Techs., Inc. v. United States,
370 F.3d 1153, 1159 (Fed. Cir. 2004); Banknote Corp. of Am., Inc. v. United States,
365 F.3d 1345, 1353 (Fed. Cir. 2004). Whether a provision in a solicitation is
ambiguous, and whether an ambiguity is latent or patent, are also questions of law
over which courts exercise independent review on a case-by-case basis. NVT Techs.,
370 F.3d at 1159; Grumman Data Sys. Corp. v. Dalton, 88 F.3d 990, 997 (Fed. Cir.
1996). When interpreting a solicitation, the document must be considered as a
whole and interpreted in “a manner that harmonizes and gives reasonable meaning
to all of its provisions.” Banknote Corp., 365 F.3d at 1353; NVT Techs., 370 F.3d at
1159. If the provisions are clear and unambiguous, the court must give them “their
plain and ordinary meaning.” Banknote Corp., 365 F.3d at 1353 (citation omitted).
- 13 -
B. Analysis
1. The Agency Did Not Act Unreasonably in Assigning eVETS a Marginal
Rating under the Operational Approach Subfactor
Plaintiff ’s first ground for its protest challenges USCIS’s determination that
its proposal warranted a significant weakness and the resulting Marginal rating
under the Operational Approach subfactor. Pl.’s Stat. Facts & Mem. of P & A in
Supp. Cross-Mot. J. Admin. R. & Opp’n Def.’s Mot. J. Admin. R. (Pl.’s Mot.) at 14–
31. According to the SSP, a “Marginal” rating was to be assigned to a factor or
subfactor that “demonstrates a marginal solution and approach and contains a
significant weakness in any factor or sub-factor.” AR, Tab 5 at 109 (emphasis
added). A “Significant weakness” was defined as “[a] flaw in the proposal that
appreciably increases the risk of unsuccessful contract performance.” Id. at 110.
The agency gave eVETS a significant weakness for Operational Approach because
plaintiff ’s “staffing chart was determined to allocate insufficient numbers of
employees for file operations at the TSC,” as “[t]he allocated 176 FTEs . . . which is
considered understaffed by over 80 FTEs demonstrates a failure to provide a
reasonable, logical approach to fulfill much of the Government’s file operations
requirements.” AR, Tab 30 at 2071. In challenging this determination, plaintiff
makes three distinct arguments, considered in turn.
a. Plaintiff ’s explanation for its staffing reduction.
Plaintiff cannot dispute the TEC’s finding that its final proposal reduced the
base year FTEs proposed to perform file operations at the TSC by more than 80
from the initial proposal, resulting in a total staffing of 176 to perform the CLIN 6
functions at that center. See AR, Tab 30 at 2066, 2071. Plaintiff initially proposed
260 FTEs to perform this work, including quality control staff (but not the site
quality manager). See AR, Tab 15 at 808; Tab 16 at 939, 941. In its FPR, this
number was reduced to 176.2 FTEs (including the site quality manager). See AR,
Tab 29c at 1990; Tab 29b at 1908. Not counting the task managers, drivers, and
quality control personnel, the number of file operations staff proposed for the base
year was 160.2 FTEs. See AR, Tab 29c at 1990. The TEC report stated that “[t]he
TEC does not consider the proposed file operations workforce of 160 sufficient to
meet the base year requirements.” AR, Tab 30 at 2066.
The TEC further explained that “for the TSC in particular, [it] considers the
proposed staffing inadequate and lacking in explanation as to why the offeror
considers it sufficient.” Id. at 2067. Using the eVETS labor basis of estimate figure
for processing visa packets at the TSC, the TEC calculated that plaintiff would need
“approximately 580 hours of labor to complete our daily average of 1,800 packets,”
equating to 77 FTEs --- leaving less than 90 FTEs to perform the rest of the file
- 14 -
operation tasks. Id. at 2068. 8 The significant weakness assigned to eVETS rested
on the finding of “insufficient numbers of employees for file operations at the TSC,”
which was found to be “understaffed by over 80 FTEs.” Id. at 2071. The subfactor
evaluation concluded that “the staffing plan is inadequate and the proposal lacks an
explanation of how this staffing is sufficient that allows the TEC to determine the
offeror can perform with this few staff, making this Subfactor Marginal.” Id.
In the briefing given to the SSAC and the SSA, the TEC reiterated that it
“does not consider the proposed file operations workforce sufficient to meet
requirements.” AR, Tab 34 at 2364. The TEC finding that the TSC file operations
staffing was “inadequate and lacking in explanation as to why the offeror considers
it sufficient” was quoted in the SSAC report, AR, Tab 35 at 2415, and in the SSA’s
decision, AR, Tab 36 at 2424.
Plaintiff ’s first argument concerning the significant weakness it received for
the Operational Approach subfactor focuses on a different statement of the TEC,
one not referenced by the SSAC or the SSA. After noting the reduction in file
operations staffing proposed for the TSC, the TEC stated: “There was no narrative
provided by the offeror explaining the drastic changes from their [sic] original
staffing after being advised during discussions the TEC considered the staffing to be
inadequate.” AR, Tab 30 at 2066. 9 Plaintiff disputes this, pointing to a passage in
its response to discussion questions, and argues that the TEC overlooked this
explanation for its revised staffing levels. Pl.’s Mot. at 14–16 (citing AR, Tab 29a at
1789–90).
If the TEC did overlook this passage, it would be understandable. The
passage responds to the first in a series of discussion questions from the BEC (and
not the TEC), focusing on the aggregate hours, FTEs, and costs identified in a
summary tab in the pricing template for all periods of performance. See AR, Tab
29a at 1789–90; Tab, AR, Tab 16a at 898; AR, Tab 19b at 1292–93. The first of
these questions noted that proposed FTEs and hours were “significantly higher
than the Government’s estimate,” and the third revealed why --- as “eVETS flat
lined FTEs for all periods,” although “[v]olumes decrease each period for ELIS.”
AR, Tab 23 at 1490. While these questions implicitly concern only the file
operations CLIN --- as offerors were given spreadsheets to use for the fixed-unit
8 The 3.1 per hour estimate was carried over in a table reproduced from the initial
proposal. See AR, Tab 15 at 809. The revised table in the FPR eliminated the “Visa
Packets ELIS” field, formerly number 6.33. See AR, Tab 29c at 1994.
9 The briefing provided to the SSAC and SSA included an abbreviated form of the
statement: “There was no narrative provided by the offeror explaining the drastic
changes from their [sic] original staffing.” AR, Tab 34 at 2364.
- 15 -
price CLINs, with identified annual workloads decreasing over time due to ELIS
efficiencies, compare AR, Tab 14 at 721–24 (CRI spreadsheets) with AR, Tab 16 at
900–03 (eVETS spreadsheets), precluding any possibility of flat lining --- they would
not be the place one would expect to find an explanation for changes to the base
year FTEs proposed. 10
In any event, there are two problems with this argument of eVETS. The
passage it believes that the agency ignored seems, in a rather circuitous fashion, to
suggest that 50 FTEs who would perform ELIS work were removed from the file
operations staffing proposed for the TSC, based on eVETS’s belief that only the
workload listed in Attachment 1 to Amendment 6 should be used for purposes of the
final proposal. AR, Tab 29a at 1789–90. First, if the TEC was truly faulting eVETS
for not explaining the “drastic changes” in proposed staffing which reduced file
operations by 84 FTEs, a discussion covering just 50 FTEs would fall well short of
the mark. But more significantly, the TEC interpreted the Solicitation as requiring
the ELIS IV work as a file operation at the TSC, see AR, Tab 30 at 2068, and its
actual concern was that “the proposal lacks an explanation of how this staffing is
sufficient that allows the TEC to determine the offeror can perform with this few
staff,” id. at 2071. Instead of explaining how it would perform all of the required
work, in the discussion response eVETS was suggesting that certain work need not
be proposed. See AR, Tab 29a at 1789–90 (eVETS explaining that “[t]he Contract
Year Workload Activity Report volumes do not include ELIS work” and that its FPR
“provides FTEs in CLIN 6 based solely on the Contract Year Workload Activity
Report”). 11
Thus, the eVETS discussion response did not contain the answer that the
TEC found lacking, but instead questioned the TEC’s premise. A review of that
passage does not demonstrate that the agency objectively misstated what eVETS
10 The only portion of the eVETS response to discussion questions cited in the TEC
report concerned a question from the TEC. See AR, Tab 30 at 2067 (citing AR, Tab
29a at 1766 (part of response to question T8)).
11 Plaintiff has moved to supplement the administrative record with, among other
things, a declaration from a VETS executive explaining why she believed ELIS IV
processing was not required, and how --- through ELIS productivity advances and
file operations staff efficiency gains --- that work could nevertheless be done with
the staffing proposed by eVETS. See Ex. A to Pl.’s Mot. Suppl. For such
explanations to be relevant to these proceedings, they needed to be included in the
eVETS FPR. The Court is not persuaded that effective review of a procurement
decision requires that the record be supplemented with information an offeror
neglected to provide to the procuring agency, and thus the motion to supplement the
administrative record is DENIED regarding this declaration. See Axiom Res.
Mgmt., Inc. v. United States, 564 F.3d 1374, 1380 (Fed. Cir. 2009).
- 16 -
proposed, see USfalcon, Inc. v. United States, 92 Fed. Cl. 436, 462 (2010), but rather
points to a disagreement concerning the proper interpretation of the Solicitation.
This leads into plaintiff ’s second argument, to which we now turn.
b. Amendment 6 and ELIS IV processing.
Plaintiff ’s second argument concerns its interpretation of the updated
Contract Year Workload Activity Report regarding file operations at the TSC, which
was part of Attachment 1 to Amendment 6 of the Solicitation. See AR, Tab 26c at
1538. This document was a revision of a spreadsheet distributed to offerors with
the discussion letters, see AR, Tab 23 at 1492-3, adjusted to reflect a base period of
four rather than ten months, and an additional option period of six months, see AR,
Tab 26c at 1538. The first column of data on these reports is the number of times,
for the year ending November 30, 2013, each task that had been reported as a file
operation under the predecessor contract was processed at the TSC. The task fields
are identical to the ones contained in the file operations portions of the Fiscal Year
Workload Activity Report spreadsheets that had been provided to potential offerors.
See AR, Tab 6b at 128–29, 131–32, 134–35. 12 To the extent Immigrant Visa packet
processing, involving forms I-864 and DS-230, 13 had been reported under the
predecessor contract, this was as a data collection operation rather than a file
operation. See id. at 128, 131, 134. 14 As the fields containing this data were not
under the file operations heading in the historical reports, the Contract Year
Workload Activity Report --- copying verbatim the file operations fields from those
reports --- did not contain data concerning IV packet processing. Plaintiff interprets
this omission as the agency’s decision to remove IV packet processing from the work
to be proposed, and argues this is the only reasonable interpretation of this
attachment to Amendment 6. Pl.’s Mot. at 16–27.
Considering the Solicitation as a whole, and giving “reasonable meaning to
all of its provisions,” Banknote Corp., 365 F.3d at 1353, the Court does not agree
that the attachment to Amendment 6 had the effect of removing IV packet
12These same spreadsheets were provided to offerors on a compact disk, as PWS
Attachment 8.6, described as “historical volume information,” to be used “as a
guide” in creating the pricing spreadsheets of proposals. AR, Tab 8b at 262; see AR,
Tab 8k at 404.
13 The DS-230 form was previously known as the OS-155A. Tr. at 135.
14 While IV processing includes scanning these forms and verifying their data, and
thus the numbers for each form suggests the amount of IV packets processed, it also
involves other tasks such as assembling a paper A-File, see AR, Tab 8b at 150,
which apparently were not reported under any of the CLINs of the predecessor
contract, see Tr. at 19.
- 17 -
processing from the work to be proposed. In the “General Scope of Work” section of
the PWS, while offerors were informed that the use of online filings via the ELIS
system would “eliminate[ ] data entry” --- with an “Immigrant Visa (IV) processing
exception” --- and reduce file operations, they were also told that “[t]he TSC
processes approximately 40,000 immigrant visa packets each month.” AR, Tab 8b
at 149–50. This processing was described to include such tasks as “completing data
capture of the packet into USCIS ELIS, ordering a Permanent Resident Card for
the immigrant, and creating a physical A-File of the packet contents.” Id. at 150.
Of the three forms involved in the process, ELIS would eliminate the scanning of
but one. Id.
In the “Contractor Tasks/Requirements” section of the PWS, the “File
Operations Support” section begins by informing contractors they must “receive,
store, retrieve, maintain, and distribute files,” and notes that “[u]nder USCIS ELIS,
existing paper files (primarily A-Files) will continue to be utilized in conjunction
with adjudication of a USCIS ELIS record.” Id. at 160 (¶ 4.5). One subparagraph
required contractors to “track and update files in the National File Transfer
System,” and another required them to “process documents received from district,
port of entry, or consulate offices.” Id. at 162, 166 (¶¶ 4.5.6, 4.5.22). The processing
of IV packets, see AR, Tab 8j at 396, which are sent to TSC from the port of entry,
see AR, Tab 8b at 150, would fall in these categories.
Plaintiff argues that IV processing is not explicitly discussed in the two PWS
requirements sections (¶¶ 4.1 & 4.5) that are identified as corresponding to file
operations in the Schedule of Services overview. Pl.’s Mot. at 18 & n.5 (discussing
AR, Tab 8u at 432). But the requirements are described at a general level, and
rarely mention any of the specific tasks or forms that are processed under data
collection or file operations. Compare AR, Tab 8b at 151–53, 156–68 (using general
terms such as documents, files, forms, materials) with AR, Tab 6b at 133–35 (listing
specific descriptions of tasks and forms). Even less plausibly, eVETS stresses that
“no ELIS IV work was included in the Solicitation’s Schedule of Services.” Pl.’s Mot.
at 17. But the Schedule of Services for the fixed-unit-priced CLIN for data
collection support was a spreadsheet which folded all tasks into three lines --- one
for forms requiring the entry of one to twenty-five fields, another for forms
requiring the entry of more than twenty-five fields, and a third for forms that were
manually rejected. See AR, Tab 21b at 1330. 15 And the Schedule of Services for
labor hour pricing CLINs, like file operations support, was a blank spreadsheet into
which an offeror would enter its own labor categories, proposed hours, and proposed
rates. Id. at 1337–38. Thus, no specific work at all was included in the Schedule of
15 The referenced document is the Schedule of Services provided with Amendment
5, which changed the base period from ten months to four months. The format is
otherwise the same as initially provided. See AR, Tab 16b at 973 (initial eVETS
proposal).
- 18 -
Services --- the only specific information provided was the annual estimated
quantities of documents falling into the three data collection operations categories.
Id. at 1330.
For the original, ten-month base period, the Schedule of Services provided
offerors with an estimated quantity of 300,000 forms to be processed in Tier 1
(requiring up to 25 data fields), and 30,000 forms to be processed in Tier 2
(requiring more than 25 fields of data). See AR, Tab 16b at 973. But Attachment
8.4 to the Solicitation stated that the number of fields associated with the two forms
used in IV packet processing, the I-864 and the OS-155A, were 32 and 34,
respectively, and that the TSC processed 364,509 of the former and 569,233 of the
latter in fiscal year 2013. AR, Tab 8h at 339–40, 346. Elsewhere, the same
attachment listed as file operations the entry of “ELIS data fields” totaling 23 for
the I-864 and 38 for the OS-155A. Id. at 341. When eVETS detected these
discrepancies, and noted that with a monthly volume of 40,000 IV packets there
would be 960,000 forms annually between the two of them, it submitted a question
to the agency. Plaintiff asked whether ELIS IV packet processing was to be
proposed under data collection or file operations, and the agency responded: “ELIS
IV processing is a file operation performed under CLIN 0006.” AR, Tab 9b at 543.
If the matter had previously been in doubt, this answer, submitted to all offerors as
part of Amendment 1 to the Solicitation, clarified that this work was a file
operation. 16
Plaintiff maintains that the issuance of the revised Attachment 1, distributed
along with Amendment 6 to the Solicitation, 17 could only mean that IV packet
processing was no longer to be included in proposals. The email which
accompanied this document described it as “Revised Attachment 1 (CLIN 6 Volumes
and CLIN 8 Hours), Group A (NSC/TSC) to reflect the correct period of performance
and decrement volumes.” AR, Tab 26a at 1523. It was a revised Attachment 1, as
16 A close review of other Solicitation materials demonstrated that this work was to
be proposed under file operations. Attachment 8.5 to the Solicitation contained a
glossary and sample forms for the periodic reporting of forms processed. AR, Tab 8j
at 385–402-5. The tasks of creating OS-155A IV packet A-Files, processing IV
packets in ELIS, and verifying IV packet data were all placed under file operations.
Id. at 396, 400, 402-4–402-5. The processing of I-864 forms was to be counted under
data collection “when done in C3, but not when done in ELIS,” id. at 391, and data
entry connected with the OS-155A was considered data collection when the legacy
CLAIMS 3 system was used, id. at 392.
17Although all of the parties have treated this attachment as part of Amendment 6,
and for purposes of these motions the Court has done the same, it is nevertheless
noted that Amendment 6 itself makes no reference to the attachment. See AR, Tab
26b at 1524–36.
- 19 -
the original was distributed along with the discussion letters, seventeen days
earlier. See AR, Tab 23 at 1492-3. Plaintiff places great emphasis on the phrase
“correct period of performance and decrement volumes,” insisting that this means
that the volumes contained on the spreadsheet are correct and no other work can be
required under CLIN 6. Pl.’s Mot. at 21; see also Pl.’s Reply in Supp. Mot. J. Admin.
R. (Pl.’s Reply) at 3–5. But what was corrected from the previous iteration were the
length of the base period, which was converted from ten to four months, and the
number of option periods, as a fourth option of a six-month duration was added.
Compare AR, Tab 23 at 1492-3 with AR, Tab 26c at 1538. To the extent that any
“decrement volumes” could be said to have been corrected, this was the by-product
of changing the base period. Even the additional option year did not represent any
“volume” that was reduced, as its column used the same numbers as the previous
option period. 18 Moreover, the reduced levels of operations from year to year were
not the result of some determination of the particular volume expected for each
operation, but the result of applying the same percentage to all totals from the 2013
workload data. See AR, Tab 26c at 1538. The most natural reading of this phrase is
the only reasonable one, and the Court concludes that “correct” was only modifying
“period of performance.”
Despite plaintiff ’s best efforts, the Court fails to understand how the use of
the words “decrement volumes” rather than “volume decrements” makes any
difference in construing the words of the agency email --- either way, it means the
amounts by which the figures were reduced. And even if the spreadsheet reflected
the correct reductions, this would only be true for the work listed in the first place.
In any event, an agency would hardly remove a requirement from a Solicitation in
the roundabout manner suggested by plaintiff --- by not adding a new field of data
to an updated version of a spreadsheet, when the requirement was previously
recognized despite its absence from this spreadsheet.
Plaintiff contends that the areas for discussion the agency sent to it
suggested that the IV packet processing work was not required in proposals, and
that if this was not the case, then the discussion areas were misleading. Pl.’s Mot.
at 22–24; Pl.’s Reply at 8–9. In the Technical Proposal portion of the discussion
letter, eVETS was told that its data collections FTEs were “not considered to be
sufficient to meet base year requirements,” AR, Tab 23 at 1487–88, while the
Business Proposal portion stated that plaintiff ’s “[p]roposed Full Time Equivalents
(FTEs) and hours [were] significantly higher than the Government’s estimate” and
its “[p]roposed price [was] significantly high,” id. at 1490. From this, eVETS
maintains that it reasonably concluded that file operations FTEs should be reduced.
Pl.’s Reply at 8–9; Pl.’s Mot. at 22. But the understaffing comments regarding data
18 Incidentally, the volumes contained in the Option 4 column are on their face
decidedly not correct, as they are the same ones depicted for Option 3, which covers
a period that is twice as long. See AR, Tab 26c at 1538.
- 20 -
collections expressly concerned “base year requirements,” while the excessive hours
and price comments concerned the “Summary Tab” of the pricing template, which
contained the total costs per CLIN for each year and the total hours and FTEs per
contract period. AR, Tab 16b at 971. Moreover, the Business Proposal comments
included the statement that “eVETS flat lined FTEs for all periods,” and noted that
“[v]olumes decrease each period for ELIS” --- citing the initial version of Attachment
1. AR, Tab 23 at 1490. Thus, the agency informed eVETS that data collections
were understaffed in the base year, and that overall costs, FTEs and hours were too
high because of its failure to reduce effort in the out years to match reduced
volumes of work due to ELIS. These discussion comments were not misleading,
were sufficiently specific, see Fort Carson Support Servs. v. United States, 71 Fed.
Cl. 571, 611 (2006), and could not reasonably have been taken to mean that file
operations were overstaffed in the base year.
In support of its argument that the revised Attachment 1 should be construed
as removing IV packet processing from the work to be proposed, eVETS infers from
the proposals of its competitors that they, too, reached this conclusion. Pl.’s Mot. at
24–27; Pl.’s Reply at 10. But nothing has been identified in their proposals to
indicate that the IV packet processing work was removed from the FPRs. All four of
the other offerors had each been told that they initially proposed too few staff to
meet the base year file operations requirements at the TSC, AR, Tab 22 at 1481;
Tab 78 at 4971; Tab 79 at 4979; Tab 80 at 4985; and three of the four responded by
increasing the number of base year staffing, see AR, Tab 28 at 1544; Tab 63a at
3477; Tab 63e at 3798–3800; Tab 65a at 4159. Plaintiff places great stress on the
outlier, which was told that its proposed FTEs for data collections and file
operations at both the TSC and NSC were not “sufficient to meet base year
requirements,” but responded by reducing the base year FTE totals for three of the
four identified areas. See AR, Tab 61b at 2969–70. Although that offeror explained
that these lower totals were the result of plugging into a model “the new workload
volumes provided in Amendments 5 and 6,” id. at 2969 (italics in original), from the
manner in which information is presented in the proposals, it is impossible to know
if IV packet processing was originally included and then removed. 19
The final argument of plaintiff relating to the interpretation of the revised
Attachment 1 is that, if the absence of IV packet processing data did not clearly
remove this work from requirements, this at least resulted in a latent ambiguity
concerning the matter. Pl.’s Mot. at 27–28. As is explained above, the Court does
not believe that ELIS IV processing, which was clearly identified as part of the TSC
file operations in the agency response to Question 24, see AR, Tab 9b at 543, could
reasonably be viewed as having been deleted from the Solicitation by being absent
from an updated spreadsheet that never contained this work in the first place. But
19That offeror retained in its FPR an historical reference to experience with “ELIS
implementation of DS-230 IV forms at TSC.” AR, Tab 61c at 3012.
- 21 -
the Court recognizes that there are two reasonable interpretations of the impact of
revised Attachment 1 on this work, and both have been used by the government in
this case. Government counsel argued that the absence of ELIS IV processing from
the spreadsheet meant that the decrement percentages depicted for the option years
would not apply to this work. See Tr. at 150–52. The agency, however, applied
those percentages to ELIS IV processing in calculating the Independent
Government Cost Estimate. See id. at 234–36 (discussing AR, Tab 75b). As the
Solicitation provided offerors with reductions in the volumes of all of the rest of the
work to be performed, see AR, Tab 21b at 1330–34; AR, Tab 26c at 1538, the absence
of information on how to treat the 480,000 IV packets that were processed at the
TSC was the sort of “obvious, gross, or glaring” ambiguity that is necessarily patent,
NVT Techs., 370 F.3d at 1162 (citing H & M Moving, Inc. v. United States, 204 Ct.
Cl. 696, 716 (1974)). As plaintiff failed to inquire about whether this work should
be reduced or remain constant, the ambiguity cannot be challenged in this
proceeding. Id. In any event, neither reasonable interpretation of the Solicitation
is advanced by eVETS, which instead embraces an interpretation that has been
found unreasonable for the reasons stated above.
c. Strengths and weaknesses were not arbitrarily assigned.
The third argument raised by eVETS to challenge its rating under the
Operational Approach subfactor focuses on the details of the evaluation. Pl.’s Mot.
at 28–31. First, eVETS maintains that its reduced ratio of employees proposed to
work performed actually reflects productivity gains. Id. at 28. Plaintiff argues that
a sufficient number of TSC file operations staff will be liberated by its expected
efficiencies such that, combined with available surge support staffing, all of the
ELIS IV processing work can nevertheless be performed. Id. at 28–29 & nn.11–12.
The problem with this argument is that it is based on explanations of productivity
and the use of the surge CLIN that were not included in its proposals. 20
Plaintiff next maintains that it was unreasonable for it to receive a Marginal
rating based on the low number of file operations staff proposed for the TSC, when
another offeror proposed but 19 more and received a Good rating. Id. at 29. But
challenges concerning “the minutiae of the procurement process in such matters as
technical ratings . . . involve discretionary determinations of procurement officials
that a court will not second guess.” E.W. Bliss Co., 77 F.3d at 449. Such subjective
judgments will only be disturbed when inconsistencies are demonstrated, USfalcon,
92 Fed. Cl. at 462, which is not the case when the offeror with the higher rating also
proposed a higher staff level.
20Plaintiff relies on explanations contained in a declaration that it sought,
unsuccessfully, to add to the administrative record. See supra note 11.
- 22 -
The rest of this argument similarly concerns minutiae. Plaintiff complains
that its explanation for the differences in tasks per hour between the two centers
was found by the TEC to be “not credible,” AR, Tab 30 at 2067; see Pl.’s Mot. at 30.
But this finding did not result in a weakness or risk being assigned to eVETS, see
AR, Tab 30 at 2070–71, and the difference in opinion was explained by the agency,
id. at 2067. Plaintiff also challenged the TEC’s finding of a risk of “an immediate
front log forming in data collection at both centers,” AR, Tab 30 at 2071, although
plaintiff was found to have proposed adequate staffing for the NSC, id. at 2066, and
plaintiff believed it explained how it could cover data collections with other staff,
Pl.’s Mot. at 30 (citing AR, Tab 29a at 1756–59). While there appears to be no
explanation as to why the TEC believed that data collections at the NSC would be
impacted by the insufficient staffing at the TSC, this risk had no impact on the
rating eVETS received --- as the significant weakness assigned due to the
understaffing of file operations at the TSC alone warranted a Marginal rating under
the methodology used in the procurement. See AR, Tab 30 at 2054, 2071. And
while it might appear to be overkill for the TEC to have found separate data
collections weaknesses for the staffing chart depicting FTEs and for the number of
FTEs proposed for the TSC, other offerors received similar treatment. See id. at
2080–81, 2091. We are not in the business of second guessing the judgments of
evaluators, E.W. Bliss Co., 77 F.3d at 449, and eVETS has not demonstrated the
sort of subjective inconsistencies or objective inaccuracies, see USfalcon, 92 Fed. Cl.
at 462, which would have rendered the Operational Approach subfactor evaluation
an arbitrary and capricious one.
2. The Agency Did Not Violate the Solicitation by Assigning eVETS a
Marginal Rating for the Technical Factor
In plaintiff ’s second challenge, it argues that USCIS failed to follow the
Solicitation’s evaluation criteria by assigning a Marginal rating to eVETS’s overall
Technical factor. Pl.’s Mot. at 31–40; Pl.’s Reply at 13–17. The Solicitation provided
that three of the four Technical subfactors were of equal importance, AR, Tab 8b at
271, but the adjectival ratings adopted in the SSP applied both to the Technical
factor and to its subfactors --- thus, the presence of a significant weakness or a
deficiency under any of the latter would result in an overall rating of Marginal or
Unacceptable, respectively, for the former, see AR, Tab 5 at 109. Utilizing this
methodology, the TEC explained that “[i]n the event an offeror was rated Marginal
or Unacceptable in any subfactor, that rating rolled up and became the overall
rating for the factor because the proposal was determined to have either a
significant weakness or a deficiency.” AR, Tab 30 at 2054 (emphasis added).
Plaintiff contends that by automatically rolling-up the Operational Approach
subfactor’s Marginal rating to be the overall Technical factor rating, the Solicitation
was violated because the agency failed to adequately consider the merits of the
other subfactors. Pl.’s Mot. at 31–38. It argues that this approach gave “100% of
- 23 -
the weight” to the Operational Approach subfactor, id. at 32 (emphasis omitted),
although two other subfactors were supposed to be equally important.
The government counters that eVETS is taking issue with the evaluation
methodology, which the FAR does not restrict and does not require to be disclosed in
a solicitation. Def.’s Mot. J. Admin. R. (Def.’s Mot.) at 22 (citing 48 C.F.R.
§ 15.305(a), (d)). Defendant explains that the roll-up approach served the purpose
of ensuring that significant weaknesses and deficiencies were not overlooked in the
overall factor evaluation, as might be the case had the agency followed a method
which averaged subfactor ratings, id. at 22–24, and notes that the Federal Circuit
has rejected the notion that “adjectival ratings can be added up and ‘averaged out’
to score the contractor,” id. at 24 (quoting Glenn Defense Marine v. United States,
720 F.3d 901, 909 n.6 (Fed. Cir. 2013)). The government cites several cases from
our court and opinions from the GAO which recognize that “‘adjectival ratings are
merely a guide’ for the agency’s decision making process,” id. (quoting Hyperion,
Inc. v. United States, 92 Fed. Cl. 114, 119 (2010)), and argues that even among
subfactors of equal weight, the presence of a significant weakness or several
weaknesses in one could be decisive for the overall factor rating, id. at 26–27 (citing
Apptis Inc.-Costs¸ B-402146.3, 2010 CPD ¶ 123, 2010 WL 2561522 (Comp. Gen.
Mar. 31, 2010)). Intervenor argues that the use of adjectival ratings is not a
mechanical process involving averaging and similar quantitative constructs, and
that the factor evaluation was based on the agency’s assessment of the severity of
the understaffing issue. Def.-Intervenor’s Mot. J. Admin. R. (Intervenor’s Mot.) at
14–17.
The Court is not persuaded that the evaluation methodology employed by
USCIS violated the Solicitation’s stated criteria. The agency had decided that a
Technical Proposal with any significant weakness would rate no higher than
Marginal for the Technical factor, and one with deficiencies would receive a factor
rating of Unacceptable, regardless of which subfactor evaluation contained them.
AR, Tab 5 at 109. While this meant, as a practical matter, that the subfactor
containing significant weaknesses or deficiencies would have the most influence on
the overall factor rating, despite three of the subfactors having been deemed of
equal importance and the fourth of lesser importance, the same is true in any
procurement in which a particularly poor rating can be decisive. Plaintiff rejects
this as “procedural equality” rather than “substantive” equality, Pl.’s Mot. at 33, but
as long as one of the three equally-important subfactors was the one for which the
significant weakness was found, the Court does not believe that the “relative
importance” stated in the Solicitation, 48 C.F.R. § 15.304(d), was contravened. 21
21 The Court agrees with eVETS that the evaluation scheme contradicted the
“relative importance” stated in the Solicitation by allowing the subfactor of lesser
importance, Experience with Unions, to have the same decisive effect under the roll-
up approach. See Pl.’s Mot. at 33 n.13. This error was not to plaintiff’s prejudice,
- 24 -
It was not a departure from the relative importance of the subfactors that
resulted in the Marginal Technical factor rating received by eVETS, but rather the
exacting grading scheme employed by USCIS. The agency determined beforehand
that if it were to find a significant weakness in the evaluation of a factor, the rating
for that factor could not be higher than Marginal. AR, Tab 5 at 109. 22 No authority
has been disclosed to the Court which disapproves of the use of such a minimum
standard as part of the rating methodology, a rating ceiling akin to a pass/fail
approach or an on/off switch. The Court notes that none of the evaluation
documents simply rest on the subfactor rating label of “Marginal” in assessing the
quality of eVETS’s Technical Proposal, but discuss in detail why a significant
weakness was assessed. AR, Tab 30 at 2066–68, 2071; Tab 35 at 2415; Tab 36 at
2424–25. It was the substance of these findings, and not the associated labels or
the subfactor category in which the significant weakness was discovered, that
mattered. In light of this, and considering the binding precedent which rejects the
concept of computing an average based on adjectival ratings, see Glenn Def. Marine,
720 F.3d at 909 n.6, and the persuasive precedents showing the outsized influence a
poor rating in one of several equally-weighted subfactors may have, see., e.g., Apptis
Inc., 2010 WL 2561522, at *5, the Court cannot find that the roll-up evaluation
methodology violated 48 C.F.R. § 15.305. 23
3. The Exclusion of eVETS’s Proposal from the Best Value Trade-Off Analysis
Plaintiff next argues that the agency acted irrationally by failing to include
its proposal in the best value tradeoff analysis and to perform a best value tradeoff
between its proposed lower price and CRI’s technical superiority. Pl.’s Mot. at 40–
47. Plaintiff concedes that case law allows an agency to exclude a proposal from a
best value determination when the proposal is deemed “technically unacceptable,”
however, as no significant weakness or deficiency was found for that subfactor. AR,
Tab 30 at 2075.
22 If the SSP had not prescribed such a methodology, and it was instead adopted by
the evaluators after proposals were reviewed, such a practice could potentially rob
the ultimate source selection decision of its rationality. See USfalcon, 92 Fed. Cl. at
453–54. This was not the case here.
23 The agency’s non-disclosure of the roll-up method would not have affected the
competitive strategy of any offerors, who presumably did not intend to have
significant weaknesses or deficiencies in their proposals. If the undisclosed
definition of Marginal --- which included “demonstrat[ing] a marginal solution and
approach,” AR, Tab 30 at 2054 --- were one that could apply only to the Operational
Approach subfactor, the matter would be different. But eVETS has not made that
case.
- 25 -
but stresses that its proposal was never assigned this rating. Id. at 41–42. In this
regard, the SSA agreed with the ratings given by the SSAC and the TEC, neither of
which assigned eVETS a deficiency or an Unacceptable rating. AR, Tab 36 at 2424.
Plaintiff argues that, in the absence of a solicitation provision informing offerors
that marginal proposals will not be considered in the best value determination,
agencies must include them and consider whether their lower prices could provide
the government with the best value compared to the more highly-rated proposals.
Pl.’s Mot. at 43–44 (citing, inter alia, Metis Sols., LLC, B-411173.2, 2015 CPD ¶ 221,
2105 WL 4572442 (Comp. Gen. July 20, 2015)). Plaintiff maintains it “would have
had a substantial chance for award” if its proposal was included in the best value
tradeoff analysis. Pl.’s Mot. at 45–47.
The government responds that the Solicitation was silent regarding whether
Marginal-rated proposals must be included in the best value tradeoff analysis, and
argues that the agency thus had discretion to reasonably exclude eVETS’s proposal
from this analysis. Def.’s Opp’n Pl.’s Cross-mot. J. Admin. R. (Def.’s Reply) at 17
(citing Banknote Corp. of Am. v. United States, 365 F.3d 1345, 1353–55 (Fed. Cir.
2004)). It contends that the SSA was not required to compare the eVETS proposal
with the two higher-rated ones, as he had explained why he found plaintiff ’s file
operations understaffing to pose “an unacceptable risk,” making the proposal not
“viable for a possible award.” Def.’s Mot. at 29 (quoting AR, Tab 36 at 2425).
Intervenor notes that the TEC found plaintiff ’s file operations understaffing
to represent “a failure to provide a reasonable, logical approach to fulfill much of the
Government’s file operations requirements,” and did not consider the FTEs
proposed to be “sufficient to meet the base year requirements.” Intervenor’s Mot. at
18 (quoting AR, Tab 30 at 2071, 2066). It recounts the SSA’s explanation of his
misgivings regarding the eVETS proposal, id. at 19 (citing AR, Tab 36 at 2424–25),
and stresses “the performance concerns raised by the TEC and the SSAC,” and “the
potential pricing concerns raised by the SSA,” explaining that only further
discussions could have made the eVETS proposal acceptable for award, id. at 20. In
its reply paper, CRI argues that plaintiff ’s proposal should be considered as failing
to conform to the Solicitation’s material terms, making it technically unacceptable;
and that by omitting the file operations staff needed to process IV packets, the
eVETS proposal failed to provide the true costs necessary for a meaningful
comparison with other proposals. Def.-Intervenor’s Opp’n Pl.’s Cross-mot. J. Admin.
R. (Intervenor’s Reply) at 3–4, 11–12. 24
Under the unusual circumstances presented by this case, the Court cannot
say that the agency erred in its best value analysis. Once the one offeror which
received an Unacceptable rating for the Technical factor dropped from the picture,
24Intervenor calculates the TSC file operations staffing shortfall to be 28.4% of the
FTEs proposed by eVETS for that CLIN. Intervenor’s Reply at 11 & n.17.
- 26 -
eVETS’s proposal was the lowest priced one of the four remaining. See AR, Tab 36
at 2419–20. If technically acceptable, it should have been included in the formal
best value tradeoff. Plaintiff, however, received a Marginal rating for the Technical
factor, which meant it did “not meet the requirements to be rated Acceptable,” but
“ha[d] a reasonable chance of becoming Acceptable,” were there “the opportunity for
discussions and/or clarifications.” AR, Tab 30 at 2054. That opportunity did not
exist, though, when the FPRs were being evaluated, and thus the eVETS proposal
was less than Acceptable when the Source Selection Decision was being made.
While, as a general proposition, proposals which are marginal might qualify for
inclusion in a best value tradeoff, it is difficult to see why this should require a
proposal which, by definition, has been found not acceptable to be nevertheless
considered for award. 25
Even if, by falling somewhere in the limbo between “technically
unacceptable” and generically “acceptable,” the eVETS proposal should have had its
low price considered against its technical shortcomings, this formality would not
have altered the SSA’s decision. Far from disregarding plaintiff ’s proposal due to
the Marginal rating, the SSA explained in detail that he found “the negative
impacts” due to file operations understaffing to be “severe,” and that prevention of
these impacts would require “unbudgeted and disruptive contract cost increases.”
AR, Tab 36 at 2425. He termed this scenario “an unacceptable risk,” and noted the
prospect that the resulting cost increases could “be so large as to be out of scope of
the contract.” Id. Earlier in the decision, he noted his concurrence with the SSAC
view that the eVETS “Marginal rating and associated weaknesses and risks were
too significant to overcome for consideration of an award,” id. at 2424, and he began
the best value tradeoff discussion by stating that his “above concerns” with the
eVETS proposal removed it from the group he “consider[ed] viable for a possible
award,” id. at 2425.
By finding that the technical shortcomings of the eVETS proposal were “too
significant to overcome” and posed “an unacceptable risk,” the SSA left no doubt
that he believed that the lower price could not justify an award. This was
underscored by his cognizance that costs would be higher than proposed. To fault
the SSA for not repeating his conclusion that “this is an unacceptable risk to me”
when the best value analysis began two paragraphs later, and for not adding “even
to save $15 million,” would elevate form over substance. The formal, express
inclusion of the eVETS proposal in the best value tradeoff would not have made a
difference, and its absence cannot justify a remand, much less the setting aside of
the award to CRI.
25 The Court notes that at an earlier stage in the process, when the competitive
range is selected, the FAR allows an agency to exclude all but the highest rated
proposals. See 48 C.F.R. § 15.306(c).
- 27 -
4. Plaintiff’s Technical Proposal Was Not Evaluated Disparately
Plaintiff also alleges that USCIS evaluated its proposal disparately from the
other offerors’ proposals, violating the FAR requirement “that contractors receive
impartial, fair, and equitable treatment.” Pl.’s Mot. at 47 (quoting 48 C.F.R.
§ 1.602-2(b)). 26 Three specific examples are provided by eVETS to demonstrate this
alleged disparate treatment, as eVETS contends it did not receive strengths for
similar qualities and elements that warranted strengths in the evaluations of other
offerors. Id. at 47–50. Plaintiff contends that if it had received these strengths, its
Operational Approach would have received a Good rating and its Management
Approach would have received an Outstanding rating. Id. at 50.
While these types of challenges can succeed when protesters demonstrate
inconsistencies in subjective judgments, see USfalcon, 92 Fed. Cl. at 462, such
inconsistencies require the existence of nearly identical provisions in the proposals
under consideration. When a court is not convinced that the aspects of the
proposals brought to its attention are indistinguishable for purposes of the
evaluation, then the exercise instead crosses the line and involves the second
guessing of “minutiae” which we are not allowed to undertake, see E.W. Bliss Co., 77
F.3d at 449. A careful review of the proposals in question shows that the evaluated
portions are not so similar as to suggest disparate evaluations.
Plaintiff ’s first example of alleged disparate treatment is the strength
[XXXXX] received under the Operational Approach subfactor for its training plan.
Pl.’s Mot. at 47–48 (citing AR, Tab 30 at 2100). Plaintiff argues that its own
training plan was described in positive terms by the TEC, yet no strength was
assigned. Id. (citing AR, Tab 30 at 2067–68). But two of the features warranting
the strength, remedial and short deadline trainings, do not have counterparts in the
eVETS proposal, and the training portions of the two proposals are hardly identical
--- [XXXXX]’s section is about twice as long as eVETS’s, and includes additional
detail such as 39 different aspects of its training. Compare AR, Tab 65d at 4388–91
([XXXXX] proposal) with AR, Tab 29c at 1997–98 (eVETS proposal).
The next example eVETS provides is the strength given another offeror
under the Operational Approach subfactor for “[t]he use of statistical process control
charts.” Pl.’s Mot. at 48 (citing AR, Tab 30 at 2090). Plaintiff argues that its own
proposed use of control charts was ignored, id. (citing AR, Tab 29c at 2004), but its
brief reference to such charts is not comparable to the other offeror’s explanation of
what the charts would enable it to do, see AR, Tab 63f at 3892.
26This provision serves as “the codification of the government’s duty, previously
implicit, to fairly and honestly consider bids.” MORI Assocs., Inc. v. United States,
102 Fed. Cl. 503, 523 (2011).
- 28 -
The third example eVETS cites for disparate treatment is the proposed use of
proprietary data tools. Pl.’s Mot. at 49–50. [XXXXX] and CRI each received a
strength under Management Approach for their tools, but eVETS didn’t --- even
though plaintiff did receive a strength under Operational Approach for its tool. See
AR, Tab 30 at 2062, 2070, 2073–74, 2103. A review of the proposals, however,
shows that the actual disparity is in the approaches taken by the offerors in
describing the benefits provided by these proprietary tools. Intervenor extensively
discussed its proprietary tool in both the Operational Approach and the
Management Approach portions of its proposal. Under Operational Approach, the
tool is the topic of three bullet points and sixteen sentences, scattered over nine
separate pages and involving various tasks and functions such as remedial training,
quality approach, cost control, and fee collection. AR, Tab 28c at 1608, 1636, 1638,
1640–43, 1645–46. In the Management Approach section of the proposal, over a full
page is devoted to the manner in which the tool will be of benefit, in addition to an
earlier bullet point. Id. at 1648, 1653. This resulted in a strength assigned to CRI
under each subfactor. AR, Tab 30 at 2059, 2062.
[XXXXX] also extensively discussed its proprietary tool under both subfactor
sections. Under Operational Approach, it is mentioned on eight different pages,
including a discussion concerning staffing that is more than a page in length. AR,
Tab 65d at 4357, 4363, 4370, 4373–74, 4390, 4397, 4399. [XXXXX] devoted a bullet
point and a full page of its Management Approach section to the tool. Id. at 4401,
4403–04. It received a strength only under Management Approach. See AR, Tab 30
at 2100, 2103.
Plaintiff provided an extensive discussion of its proprietary tool in the
Operational Approach portion of its proposal, mentioning it on eighteen separate
pages, AR, Tab 29c at 1964–67, 1971, 1978, 1984, 1987, 1990–91, 2000–07 ---
including an extended treatment about two pages in length, id. at 1965–67 --- and
also included three sentences and four bullet points about it in the executive
summary, id. at 1963. But the tool was barely mentioned in the Management
Approach section of the proposal --- two sentences discuss it, and another sentence
and two bullet points reference proposed employees who would have had some
responsibilities regarding it. See id. at 2007–09, 2014–15. Thus, if the agency
failed to appreciate how the eVETS tool could be a strength under the Management
Approach subfactor, this was because eVETS failed to make this case in its
proposal. Had eVETS devoted as much attention to the tool under Management
Approach as it did under Operational Approach, it might well have replicated the
strength received for the latter. Any disparity was plaintiff ’s own doing.
As described above, the record does not show that very similar features were
evaluated differently in the eVETS proposal as compared with those of other
offerors. Plaintiff has failed to demonstrate that the agency acted arbitrarily or
unlawfully in this regard.
- 29 -
5. The Agency’s Determination of CRI’s Responsibility Was Not Unreasonable
Plaintiff also challenges the agency’s determination that CRI is a responsible
contractor, due to information concerning intervenor’s major subcontractor, FCi,
that eVETS contends the agency ignored. Pl.’s Mot. at 51–56; Pl.’s Reply at 21–23.
Plaintiff argues it was unreasonable for the agency to have found that FCi was
responsible --- and in particular to have found “a satisfactory record of integrity and
business ethics,” 48 C.F.R. § 9.104-1(d) --- in light of allegations in the divorce
proceedings involving two FCi executives, and two state court civil proceedings
involving FCi. Pl.’s Mot. at 51–57 & n.29. In connection with this challenge,
eVETS has moved to supplement the record with the complaint from one of the
state court cases, Ex. B to Pl.’s Mot. Suppl.; articles from two Internet news sites
concerning the divorce proceedings and the other state court case, Exs. C & D to id.;
an Internet profile of an FCi employee whose actions were at issue in one of the
state cases, Ex. E to id.; and the first page of the results of an Internet search
regarding FCi, Ex. F to id. Since allegedly pertinent but overlooked information
bearing on a contractor’s responsibility is the sort of “information that by its very
nature would not be found in an agency record,” Orion Int’l Techs. v. United States,
60 Fed. Cl. 338, 343 (2004), the Court finds that supplementation of the record is
“necessary in order not ‘to frustrate effective judicial review,’” Axiom Res. Mgmt.,
564 F.3d 1381 (quoting Pitts, 411 U.S. at 142–43). Accordingly, the motion to
supplement the record is GRANTED as to Exhibits B through F.
A contracting officer is “generally given wide discretion” regarding
responsibility determinations, and “is the arbiter of what, and how much,
information he needs.” John C. Grimberg Co. v. United States, 185 F.3d 1297, 1303
(Fed. Cir. 1999) (citing 48 C.F.R. § 9.105-1(a)). While the Federal Circuit has noted
that “this discretion is not absolute,” it has also held that a protester “necessarily
bears a heavy burden” to demonstrate that a contracting officer failed to adequately
explain why unfavorable information did not preclude a finding of responsibility.
Domenico Garufi, 238 F.3d at 1335, 1338. That particular case involved the
criminal conviction and indictments, relating to federal contracts, of an individual
who once controlled the contractor. See id. at 1327–28. Nothing comparable has
been shown by eVETS, and a review of the record shows that the Contracting
Officer’s responsibility determination was reasonable.
The Contracting Officer executed the responsibility determination on April
15, 2015. AR, Tab 37a at 2429. In finding a satisfactory record of integrity and
business ethics, she relied upon the BEC’s review of the System for Award
Management (SAM) and Federal Awardee Performance and Integrity Information
System (FAPIIS) data concerning CRI and FCi, and reviewed the SAM certifications
for both. Id. at 2431; see also AR, Tab 37d at 2438–63b (Feb. 27, 2015 SAM report),
Tab 37e at 2463-1–2463-26 (Aug. 6, 2014 SAM report). She also relied upon the
- 30 -
past performance determination of the BEC, which utilized Past Performance
Information Retrieval System (PPIRS) records. AR, Tab 37a at 2431; see AR, Tab
31a at 2116. 27 The contracting officer explained: “[T]he BEC searched the internet
to see if there were any derogatory news articles in regards to past performance or
business ethics and integrity for CRI or FCI [sic]. There were none found.” AR, Tab
37a at 2431; see also AR, Tab 31a at 2109–17; AR, Tab 71 at 4480. The final BEC
report on past performance shows that the Better Business Bureau and Dun &
Bradstreet databases were previously searched for “any negative information
regarding past performance,” AR, Tab 31a at 2216, and that after the receipt of
FPRs, the SAM, FAPIIS and PPIRS records were again checked, and another
Internet search of news articles was conducted, id. at 2115–17; see also AR, Tab 72
at 4501–02 (FAPIIS /PPIRS report for CRI); AR, Tab 73 at 4503–04 (FAPIIS/PPIRS
report for FCi). 28
Based on the above, the Contracting Officer’s determination appears perfectly
rational. Plaintiff faults her for not uncovering or discussing allegations in divorce
proceedings that were publicly reported in an article posted by The Daily Caller on
March 9, 2015. See Ex. C to Pl.’s Mot. Suppl. Regardless of whether the second
Internet search had already been conducted prior to that date, 29 or if the search
failed to produce this article, the Court cannot see how the failure to discuss such
allegations can taint the responsibility determination. After all, “[r]eview of a
contracting officer’s procurement decision should not involve assessing her
computer proficiency or calibrating what the sufficiency of a computer search
entails.” Acrow Corp. of Am. v. United States, 97 Fed. Cl. 161, 179 (2011).
Moreover, mere allegations in civil, family law proceedings are a far cry from the
convictions and indictments which the Federal Circuit found sufficient the carry the
“heavy burden” in Domenico Garufi, 238 F.3d at 1338.
27 The FAR requires that contracting officers consider information from FAPIIS,
SAM, and PPIRS in making the responsibility determination. 48 C.F.R. § 9.105-
1(c).
28The BEC’s post-FPR search of the internet apparently resulted in no additional
news articles recounting poor performance by any of the contractors or their major
subcontractors. AR, Tab 31a at 2116, 2124, 2132, 2145, 2151. As a result, the only
news articles in the administrative record were from searches conducted in mid-
October, 2014. See AR, Tab 71a–g, at 4481–92.
29 The exact date of the second Internet search regarding CRI and FCi cannot be
determined from the record, which shows that the BEC re-convened to evaluate the
FPRs on February 18, 2015, and apparently distributed its reports on April 3, 2015.
AR, Tab 36 at 2422.
- 31 -
Similarly, the one state court matter which plaintiff stresses in its motion,
coincidentally also filed on March 9, 2015, see Ex. B to Pl’s Mot. Suppl. at 1, does
not involve any judicial or law-enforcement determinations concerning wrongdoing
by FCi. Indeed, according to the pleading, filed by FCi, it was the victim of the
wrongdoing alleged. See id. at 2–13. Plaintiff mischaracterizes the lawsuit,
suggesting that one of the parties sued by FCi was a “subcontractor” on a federal
contract and suggesting that a potential violation of the Anti-Kickback Act of 1986,
41 U.S.C. § 8702, was involved. Pl.’s Mot. at 55–56. Instead, FCi was suing one of
its former employees, a business in which that former employee had an unconcealed
interest, and a firm that had been retained by FCi as a lobbyist. See Ex. B to Pl.’s
Mot. Suppl. at 2–6. The three defendants had allegedly conspired to hide kickbacks
from the lobbying firm to the other business, to reward the former employee who
had retained the lobbying firm. Id. at 6–7. Although the lobbying firm was
retained to lobby regarding a federal contract, see id. at 35–36, it was not a
subcontractor performing the contract, and thus the federal act was not implicated.
See 41 U.S.C. § 8701(2), (4), (7)–(8). The Court notes that FCi did inform the
agency, in somewhat cursory fashion, of the “ethical conflict” necessitating the
departure of the individual in question, on February 10, 2015. AR, Tab 37c at 2437.
In any event, the Court does not see how a lawsuit brought by FCi against an
employee it fired, and against two entities which it alleges conspired to violate
duties owed to FCi, reflects upon FCi’s responsibility, much less in a manner that
required further investigation and an explanation from a contracting officer. 30
Plaintiff has failed to show that the determination of CRI’s and FCi’s responsibility
was irrational.
6. CRI’s Past Performance and Corporate Experience Assessments Were Not
Unreasonable
Plaintiff ’s final argument is that the agency erred in assigning intervenor a
Low Risk rating under the Past Performance factor, and a Good rating under the
Corporate Experience subfactor. Pl.’s Mot. at 57–61. Plaintiff contends that the
three contracts that CRI relies upon that the latter actually performed either were
not or should not have been found relevant for purposes of the two evaluations. Id.30 Plaintiff relegated its discussion of the other state court lawsuit to a footnote, see
Pl.’s Mot. at 56–57 n.29, and so, too, will the Court. That civil lawsuit, brought by
another government contractor against FCi, apparently alleged that a former
employee of that other contractor violated her non-compete clause and brought
confidential information to her new employer, FCi. See Ex. D to Pl.’s Mot. Suppl.
Although the case does involve competition for a federal contract, the Court does not
find that mere allegations in a civil lawsuit are sufficient to meet the “heavy
burden” recognized by Domenico Garufi, 238 F.3d at 1338.
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According to eVETS, USCIS improperly allowed CRI to rely upon its large
subcontractor FCi’s experience and past performance. Id. at 57–58.
Under the Solicitation, relevant experience for both the Corporate Experience
subfactor and the Past Performance factor was based on the same four elements:
1. Managing operations over multiple, geographically dispersed
locations[.]
2. Managing surges and spikes[.]
3. Providing services in correspondent management, data-entry, fee
receipting, and file operations.
4. Managing multiple hundreds of employees over multiple shifts[.]
AR, Tab 8b at 263; see also id. at 259. In both evaluations, the experience of the
prime contractor offeror and its major subcontractors was to be considered “in the
aggregate” to determine relevance or similarity to the requirements being procured.
Id. at 259, 263, 273–74. Accordingly, it was appropriate for the TEC to rate
intervenor’s Corporate Experience as Good when the fourth element “was met by
FCi but not CRI,” AR, Tab 30 at 2063; and for the BEC to assign Low Risk for Past
Performance when CRI was “not able to demonstrate [it] managed multiple
hundreds of employees,” but FCi was able to do so, AR, Tab 31a at 2116–17. Under
the evaluation approach explained in the Solicitation, it was entirely rational for
the agency to have determined that the experience of CRI, which satisfied three of
the four elements, and the experience of FCi, which satisfied all four, could in the
aggregate demonstrate relevance. See AR, Tab 30 at 2063; Tab 31a at 2116–17. 31
Plaintiff argues that one of the CRI contracts was never determined relevant
based on language from the initial Past Performance report, carried over into the
final version, which states “[t]here is not enough information in the questionnaire to
determine whether this contract is relevant or not.” Pl.’s Mot. at 58 (quoting AR,
Tab 31a at 2110). The BEC later states, however, that the issue which caused this
difficulty “was resolved with the submission of the FPR.” AR, Tab 31a at 2117.
Plaintiff also focuses on matters that are not part of the relevance calculus, such as
teaming efforts and volumes of work, and disputes the judgment of the agency in
light of a few criticisms that appeared in the CRI past performance questionnaires.
Pl.’s Mot. at 60–61 & n.34. But the agency adequately explained the basis for
finding the experience relevant, see AR, Tab 31a at 2109–17, and thus “the great
deference and discretion an agency is given to determine the relevance and quality
of an offeror’s past performance will not allow this aspect of the evaluation to be
31 Moreover, offerors were told that the four listed elements “will be used to assist
in determining relevance of past performance,” AR, Tab 8b at 263, not that all four
must be demonstrated for any particular contract to be considered in the
evaluation.
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disturbed.” Tech Sys., Inc. v. United States, 98 Fed. Cl. 228, 259 (2011) (citations
omitted). Plaintiff has failed to demonstrate that the agency’s treatment of CRI’s
experience was unreasonable.
III. CONCLUSION
For the foregoing reasons, defendant’s and defendant-intervenor’s motions for
judgment on the administrative record are GRANTED and plaintiff ’s cross-motion
for judgment on the administrative record is DENIED. The Clerk shall enter
judgment accordingly.
IT IS SO ORDERED.
s/ Victor J. Wolski
VICTOR J. WOLSKI
Judge
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