Acc Construction Company, Inc. v. United States

In the United States Court of Federal Claims
No. 15-498C
(Originally filed: August 14, 2015)
(Re-filed: August 21, 2015)*
**********************
ACC CONSTRUCTION CO., INC.,
Bid Protest; Two-Phase
Plaintiff, Procurement; Unstated
Evaluation Criteria; 10 U.S.C.
v. §§ 2305, 2305a; FAR 15.305;
Lack of Prejudice.
THE UNITED STATES,
Defendant.
**********************
Karl Frederick Dix, Atlanta, GA for plaintiff with whom was Stephen
J. Kelleher, Washington, DC, of counsel.
Erica A. Hixon, Civil Division, Department of Justice, Washington, DC,
with whom were Benjamin C. Mizer, Principle Deputy Assistant Attorney
General, Robert E. Kirschman, Jr., Director, Douglas K. Mickle, Assistant
Director, and Tarrah M. Beavin, of counsel with the U.S. Army Corps of
Engineers, for defendant.
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OPINION
_______________
BRUGGINK, Judge.
*
This opinion was originally filed under seal. The parties were directed
to confer and propose redactions. The court adopted the parties’ suggested
redactions, removed the information, and inserted brackets to replace the
redacted content. The opinion is now prepared for release.
This is a pre-award, post-solicitation protest of the United States Army
Corps of Engineers’s (the “agency”) decision to exclude plaintiff from
participation in Phase II of the competitive bidding process for the design and
construction of the Army Reserve Center Complex at the Aberdeen Proving
Ground in Maryland (“Aberdeen Complex”). Currently before the court are
the parties’ cross-motions for judgment on the administrative record pursuant
to Rule 52.1 of the Rules of the United States Court of Federal Claims
(“RCFC”). See RCFC 52.1(c). Plaintiff also filed a motion for leave to
supplement the administrative record with two affidavits from its employees,
several documents pertaining to the agency’s initial and unsuccessful attempt
to compete this procurement through small businesses, and a design
specifications sheet. Defendant filed a motion to correct the administrative
record, agreeing with plaintiff that the design specifications sheet should be
included in the record. The motions are fully briefed, and we heard oral
argument on August 5, 2015. For reasons set out below, we grant in part and
deny in part plaintiff’s motion to supplement the administrative record; we
grant defendant’s motion to correct the administrative record; we deny
plaintiff’s motion for judgment on the administrative record; and we grant
defendant’s cross-motion.
BACKGROUND1
On February 13, 2015, the agency’s Louisville District issued Request
for Proposal (“RFP”) No. W912QR-15-R-0014 (the “solicitation”), requesting
bids for the design and construction of an Army Reserve Center Complex at
the Aberdeen Proving Ground in Maryland. Administrative Record (“AR”)
145-501. The Aberdeen Complex will be comprised of a training building, a
maintenance building (“OMS”), and an unheated storage building (“UHS”),
and will have the capacity to house eleven Army Reserve units.
Prior to issuance of the current solicitation, the agency attempted to
designate this project as a small business set-aside. The agency published a
market survey requesting small businesses to submit descriptions of their past
projects that were similar in scope to the proposed Aberdeen Complex. The
survey specifically stated that projects considered to be similar in scope are
those that involved “design and construction of multiple buildings that include:
1
The facts are drawn from the administrative record.
2
army reserve complexes, armed forces training complexes, office complexes,
education facilities, and multi-story multipurpose complexes.” AR 5.
The agency received a number of responses to this survey. One
response that the agency considered acceptable was from a small business joint
venture, [ ], which submitted past performance examples, primarily
consisting of pre-engineered metal buildings. AR 6-7, 54. Due to the interest
generated, the agency issued the first solicitation for the Aberdeen Complex,
RFP No. W912QR-14-R-0018, as a small business set-aside. After receiving
proposals from small businesses, however, the agency determined that the set-
aside was unworkable due to its inability to generate an acceptable bid price.
Later, in preparing to advertise the project as unrestricted, the agency noted
that the “current scope was not modified from the prior acquisition attempt.”
AR 59.
In the pre-solicitation notice for the second solicitation, the agency
described several construction requirements for the Aberdeen buildings:
“[P]ermanent construction with reinforced concrete foundations, concrete floor
slabs, structural steel frames, masonry veneer walls, standing seam metal roof,
Heating, Ventilation, and Air Conditioning (HVAC), plumbing, mechanical
systems, security systems, and electrical systems.” AR 69. This language is
identical to that contained in the sources sought notice issued before the small
business market survey.
For the unrestricted solicitation, the agency decided to utilize a two-
phase procurement method to identify the contractor that would bring the most
value to the agency. Under Phase I, offerors submitted a limited proposal
comprised of past performance, technical, and pro forma information. The
solicitation asked the offerors to list in the past performance section three
projects that were similar in size and scope to the Aberdeen Complex. AR
153. The Aberdeen Complex is roughly 78,004 square feet in size. Projects
similar in size are those that were “a minimum of 45,000 square feet.” Id. The
Aberdeen Complex will require the construction of a training building, a
maintenance building, an unheated storage building, a vehicle wash platform,
and other site improvements, such that the completed center is capable of
supporting Army Reserve units and their training missions.
The solicitation defined a project “similar in scope” as one that
involved “NEW CONSTRUCTION of multi-story building facilities such as
training complexes, office complexes, educational facilities, and multi-purpose
3
complexes.” Id. In the technical section, offerors were required to “[p]rovide
a management plan for the project that describes how [their] labor, resources,
designers, subcontractors and material suppliers will be coordinated and used
to ensure successful completion of the project.” AR 155. The management
plan had to “demonstrate a clear understanding of the work and an ability to
coordinate resources to ensure successful pursuit of the work.” Id. Finally,
offerors were requested to include several other documents regarding their
bonding and financial capabilities within the pro forma section.
The agency received [ ] offers in response to the solicitation. A Source
Selection Evaluation Board (“SSEB”) was created to review and rate the offers
so that up to five offerors could be selected to advance to Phase II. The SSEB
applied several adjectival rating criteria in making its determinations. Under
past performance, the SSEB evaluated the projects listed by the offeror for
relevance and confidence. For relevance, the SSEB looked to the following
table:
Rating Definition
Present/past performance effort involved
essentially the same scope and magnitude of
Very Relevant
effort and complexities this solicitation
requires.
Present/past performance effort involved
Relevant similar scope and magnitude of effort and
complexities this solicitation requires.
Present/past performance effort involved
Somewhat Relevant some of the scope and magnitude of effort
and complexities this solicitation requires.
Present/past performance effort involved
little or none of the scope and magnitude of
Not Relevant effort and complexities this solicitation
requires.
AR 151. Based on the relevance of each of the listed projects, the SSEB then
assigned an overall confidence rating, reflecting whether the SSEB believed
the offeror could complete the Aberdeen Complex project and characterizing
4
the offeror’s overall past performance rating. These ratings are encapsulated
in the following table:
Rating Definition
Based on the offeror’s recent/relevant
performance record, the Government
Substantial Confidence
has a high expectation that the offeror
will successfully perform the required
effort.
Based on the offeror’s recent/relevant
performance record, the Government
Satisfactory Confidence has a reasonable expectation that the
offeror will successfully perform the
required effort.
Based on the offeror’s recent/relevant
performance record, the Government
Limited Confidence has a low expectation that the offeror
will successfully perform the required
effort.
Based on the offeror’s recent/relevant
performance record, the Government
No Confidence
has no expectation that the offeror will
successfully perform the required effort.
No recent/relevant performance record
is available or the offeror’s performance
Unknown Confidence (Neutral) record is so sparse that no meaningful
confidence assessment rating can be
reasonably assigned.
Id.
Under the technical section, the SSEB evaluated the offeror’s
management plan by identifying any strengths, weaknesses, or deficiencies.
AR 152. A strength is defined as an “aspect of an offeror’s proposal that has
merit or exceeds specified performance or capability requirements in a way
that will be advantageous to the Government during contract performance.”
Id. A weakness is defined as a “flaw in the proposal that increases the risk of
5
unsuccessful contract performance.” Id. A deficiency is 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 level.” Id. Depending on the
outcome of this evaluation, the SSEB would rate the management plan in
accordance with this table:
Adjectival Rating Definition
Proposal meets requirements and indicates an
exceptional approach and understanding of
Outstanding the requirements. Strengths far outweigh any
weaknesses. Risk of unsuccessful
performance is very low.
Proposal meets requirements and indicates a
thorough approach and understanding of the
Good requirements. Proposal contains strengths
which outweigh any weaknesses. Risk of
unsuccessful performance is low.
Proposal meets requirements and indicates an
adequate approach and understanding of the
requirements. Strengths and weaknesses are
Acceptable
offsetting or will have little or no impact on
contract performance. Risk of unsuccessful
performance is no worse than moderate.
Proposal does not clearly meet requirements
and has not demonstrated an adequate
approach and understanding of the
Marginal requirements. The proposal has one or more
weaknesses which are not offset by strengths.
Risk of unsuccessful contract performance is
high.
Proposal does not meet requirements and
Unacceptable
contains one or more deficiencies and is
unawardable.
Id. The five offerors who received the best past performance and technical
ratings would advance to Phase II of the procurement process. AR 148.
6
In Phase II, the five offerors were to submit a proposal comprised of
technical information, schedule, small business participation, and price and pro
forma sections. The SSEB then will review the proposals under another set of
criteria before the contract is awarded by the Source Selection Authority.
One of the key issues raised in this protest is what the solicitation says
with respect to the use of pre-engineered buildings. Plaintiff points out that
section 00116, which controls the preparation of the Phase I submissions,
makes no specific reference to the use of pre-engineered buildings. The
Statement of Work section (“SOW”), however, which controls the ultimate
work which the agency wishes to have performed, does mention pre-
engineered metal buildings. The general construction requirements subsection
of the SOW states: “A pre-engineered building is not allowed for the Training
Building or OMS. Pre-engineered buildings are typically used only for UHS
buildings.” AR 451. The structural design subsection also provides the
following: “Unless otherwise accepted by the Government, the following
systems shall NOT be permitted for the Training Center and Vehicle
Maintenance Shops structures: Pre-engineered metal buildings.” AR 465.
A limited allowance for pre-engineered buildings is made by reference
to the Design Guide for United States Army Reserve Facilities, UFC 4-171-05
(“Design Guide”), where bidders could read that “[t]he unheated storage
building serves only one function: the storage of operational equipment that
requires no temperature or humidity control. A pre-engineered metal building
system is frequently used to house this function.” AR 1431. It also notes that
UHS buildings “are typically simple pre-engineered metal buildings.” AR
1432.
The material describing the agency’s requirements for the Aberdeen
Complex, therefore, made it clear that pre-engineered buildings were not
acceptable for the principal buildings, unless a specific exception was made.
While Section 00116, which lays out the requirements for Phase I
submissions and evaluation criteria, does not specifically direct the reader to
other portions of the solicitation, such as the SOW or the Design Guide, it does
indicate that “Phase I proposals will be evaluated in accordance with the
factors and subfactors below . . . .” AR 150. One of the requirements, as
mentioned above, was the submission of three projects similar in size and
scope to the project at issue. Although the limitation in the SOW regarding
pre-engineered buildings is not specifically mentioned at that point, the
7
evaluation criteria for past performance projects repeated the following
explanation: “Present/past performance effort involved . . . the same scope
and magnitude of effort and complexities this solicitation requires,” with the
wording varying for each rating, depending on how close the project was to the
solicitation. See AR 151 (emphasis supplied). The evaluation of past projects
is thus directly connected to the solicitation as a whole.
Plaintiff submitted its offer to the agency in response to the solicitation
on March 17, 2015. Plaintiff listed three projects it had managed as the prime
contractor that were completed within the previous five years and which
exceeded the 45,000 square feet minimum size requirement of the Aberdeen
Complex. The first two were [
]. A majority of the buildings
for these two projects were constructed as pre-engineered metal buildings.
[
]. There is no
mention of pre-engineered metal buildings in the description of this project.
All three projects involved construction of a training complex, office complex,
educational facilities, and a multi-purpose complex. Plaintiff received
favorable reviews following the completion of each of these projects. Plaintiff
also submitted a management plan, as required by the solicitation. The
management plan details plaintiff’s approach to selecting subcontractors,
coordinating the various subcontractors during the project, supervising the
work of the subcontractors, and interacting with plaintiff’s partner company,
Gensler. Finally, plaintiff submitted the required documents in the pro forma
section.
On March 23, 2015, the SSEB convened to review the 20 proposals that
the agency received. After reviewing plaintiff’s proposal, the SSEB deemed
plaintiff’s first two past performance submissions not relevant. Although they
met the solicitation’s size specifications, the SSEB noted as to each that the
project was “NOT considered similar in scope because it was a pre-engineered
metal building; which doesn’t meet the complexity of the solicited project. .
. . This project included little or none of the scope and magnitude of effort of
the proposed project and is therefore considered Not Relevant.” AR 1255.
The third project was deemed very relevant. Based on all three assessments,
the SSEB assigned plaintiff a confidence rating of satisfactory confidence. AR
1254-55. As for plaintiff’s management plan, the SSEB did not identify any
strengths or deficiencies. AR 1258. However, it did note one weakness: “The
8
[
].” Id. Accordingly, the SSEB rated plaintiff’s management
plan as acceptable. Id.
Ultimately, plaintiff was not selected to advance to Phase II of the
procurement process. The five offerors chosen to advance were [
]; [ ]; [
]; [ ]; and [ ]. AR 1347. The
following is a brief summary of the ratings these five companies earned on
their proposals.
[ ]
Two of [ ] comparable past performance projects were deemed
relevant, and the other was very relevant. The SSEB gave [ ]a
substantial confidence rating for past performance. The SSEB also identified
six strengths, no weaknesses, and no deficiencies in [ ] management
plan, earning [ ] a rating of outstanding.
[ ]
Two of [ ] listed projects were deemed very relevant, while the
other was listed as relevant. This earned [ ] a substantial confidence
rating for its past performance. As for [ ] management plan, the SSEB
identified two strengths, no weaknesses, and no deficiencies, resulting in a
technical rating of good.
[ ]
All three of [ ] past projects were rated as very relevant, leading
to a past performance rating of substantial confidence. The SSEB listed four
strengths, no weaknesses, and no deficiencies in [ ] management plan.
This earned [ ] a technical rating of outstanding.
[ ]
Two of [ ] projects were deemed very relevant, and one was deemed
somewhat relevant. The SSEB rated [ ] past performance with substantial
confidence. [ ] management plan contained three identified strengths, one
weakness, and no deficiencies, leading to a technical rating of good.
9
[ ]
[ ] comparable projects received ratings, respectively, of
somewhat relevant, relevant, and very relevant. The SSEB assigned an overall
substantial confidence rating to [ ] past performance. The SSEB
identified four strengths, no weaknesses, and no deficiencies in [ ]
management plan, earning it a technical rating of good.
Of the fifteen projects listed in the five offerors’s past performance
sections, only three mention use of pre-engineered metal buildings. Two of [
] projects contained several pre-engineered metal structures, but they
were not the primary buildings constructed during the project. Similarly, one
of [ ] projects mentions pre-engineered metal structures, but notes that
these were only storage facilities that were ancillary to the primary building
constructed. Unlike plaintiff’s projects, therefore, [ ] and [ ] past
performance did not primarily consist of pre-engineered metal buildings.
Plaintiff was one of fifteen offerors not invited to participate in Phase
II by the agency’s contracting officer, [ ]. [ ] of these
unsuccessful offerors had the same past performance rating as plaintiff,
satisfactory confidence, but received a higher rating of either good or
outstanding for their management plans.
Plaintiff requested a debriefing by the agency. In response to plaintiff’s
question regarding why pre-engineered metal buildings do not meet the
solicitation’s requirements, the agency responded: “Pre-engineered buildings
do not meet the proposed complexity of the project. The project description
is listed within the Solicitation, specifically the Section 00116 and the
Specifications provided with the Solicitation documents.” AR 1351.
On May 1, 2015, plaintiff filed a protest with the Government
Accountability Office (“GAO”). Plaintiff then informed the GAO that it
intended to file a complaint with this court concerning the same protest.
Pursuant to 4 C.F.R. § 21.11 (2015), the GAO dismissed the protest after
plaintiff filed its complaint here on May 14, 2015.
DISCUSSION
The Tucker Act gives this court jurisdiction to “render judgment on an
action by an interested party objecting to a solicitation by a Federal agency for
10
bids or proposals for a proposed contract or to a proposed award . . . or any
alleged violation of statute or regulation in connection with a procurement or
a proposed procurement.” 28 U.S.C. § 1491(b)(1) (2012). Plaintiff is an
“interested party” because it is a prospective bidder “whose direct economic
interest would be affected by the award of the contract.” Am. Fed’n of Gov’t
Emps., ALF-CIO v. United States, 258 F.3d 1294, 1302 (Fed. Cir. 2001)
(quoting 31 U.S.C. § 3551(2)(a) (2012)). The agency’s decision to exclude
plaintiff from Phase II was made “in connection with” a proposed
procurement, and plaintiff alleges that the decision was made in violation of
applicable statutes and regulations. We therefore have jurisdiction.
I. Supplementation of the Administrative Record
On June 12, 2015, plaintiff filed a motion to supplement the
administrative record with several documents: two affidavits by ACC
employees; the pre-solicitation notice and the solicitation that the agency
issued as part of its efforts to pursue the Aberdeen Complex as a small
business set-aside; and an excerpt of the project’s specifications that is
referenced in the solicitation but not included in the administrative record.
During oral argument, plaintiff dropped its request to add the two affidavits,
and we agree, in any event, that they are not appropriately included. See
Axiom Res. Mgmt., Inc. v. United States, 564 F.3d 1374, 1379-81 (Fed. Cir.
2009). Defendant agrees with plaintiff that the design specifications sheet
referenced in the solicitation should be included and accordingly moved
independently to have this document added to the administrative record and
assigned it a record reference. See AR 1431-32. During oral argument, the
government also conceded that the solicitation documents from the previous
small business set-aside should have been properly included in the
administrative record.
We agree with the parties that the design guidelines, which are
referenced in the current solicitation, along with the previous Aberdeen
Complex solicitation and pre-solicitation notice for the failed small business
set-aside are appropriately included in the administrative record. They were
before the agency at the time of its decision and they explain the terminology
and specifications used by the agency.
11
II. The Cross-Motions for Judgment on the Administrative Record
Plaintiff alleges that the agency violated the Competition in Contracting
Act (“CICA”), Pub. L. No. 98-369, 98 Stat. 494 (1984) (codified in part as
amended at 10 U.S.C. § 2305 (2012)), and provisions of the Federal
Acquisition Regulation (“FAR”). The relevant portions of CICA state:
(c) Procedures described. Two-phase selection procedures
consist of the following:
(1) The agency develops . . . a scope of work statement
for inclusion in the solicitation that defines the project
and provides prospective offerors with sufficient
information regarding the Government’s requirements
(which may include criteria and preliminary design,
budget parameters, and schedule or delivery
requirements) to enable the offerors to submit proposals
which meet the Government’s needs. . . . .
(2) The contracting officer solicits phase-one proposals
that
(A) include information on the offeror’s
(i) technical approach; and
(ii) technical qualifications; and
(B) do not include
(i) detailed design information; or
(ii) cost or price information.
(3) The evaluation factors to be used in evaluating phase-
one proposals are stated in the solicitation and include
specialized experience and technical competence,
capability to perform, past performance of the offeror’s
team (including the architect-engineer and construction
members of the team) and other appropriate factors . . .
12
. The agency evaluates phase-one proposals on the basis
of the phase-one evaluation factors set forth in the
solicitation.
10 U.S.C. § 2305a(c)(1)-(3) (emphasis supplied). CICA also mandates that
“[t]he head of an agency shall evaluate sealed bids and competitive proposals
and make an award based solely on the factors specified in the solicitation.”
§ 2305(b)(1).
Furthermore, the applicable provisions of the FAR state: “An agency
shall evaluate competitive proposals and then assess their relative qualities
solely on the factors and subfactors specified in the solicitation.” 48 C.F.R. §
15.305(a). Under the past performance evaluation section, the regulation notes
that the “source selection authority shall determine the relevance of similar
past performance information.” Id. § 15.305(a)(2)(ii).
Both CICA and the FAR require that an agency’s procurement
decisions be based solely on the factors delineated in the solicitation.
Microdyne Outsourcing, Inc. v. United States, 72 Fed. Cl. 694, 699 (2006).
Nonetheless, the “solicitation need not identify each element to be considered
by the agency during the course of the evaluation where such element is
intrinsic to the stated factors.” NEQ, LLC v. United States, 88 Fed. Cl. 38, 48
(2009) (internal quotation and citation omitted). Thus, “an agency still has
‘great discretion in determining the scope of an evaluation factor.’” Banknote
Corp. of Am., Inc. v. United States, 56 Fed. Cl. 377, 386 (2003) (quoting
Forestry Surveys & Data v. United States, 44 Fed. Cl. 493, 499 (1999)). For
a protestor to successfully claim that an agency relied on an unstated factor, it
must show that the agency used a “significantly different basis” than the stated
factors when evaluating the proposal, which resulted in prejudice to the
protestor. NEQ, 88 Fed. Cl. at 48.
A. Evaluation Criteria, Complexity, and Pre-engineered Buildings
In its motion, plaintiff argues that the agency exceeded its authority
under CICA and the FAR when the SSEB assigned no better than a
satisfactory confidence rating, in part because it concluded that two of
plaintiff’s past history submissions did not demonstrate sufficient complexity
due to their reliance on construction of pre-engineered buildings. The agency
characterized these two projects as not relevant experience. While plaintiff
acknowledges the discouragement of pre-engineered metal buildings in the
13
SOW, it argues that the SSEB could not measure relevance of past experience
against the SOW, but should have limited its consideration to the literal
application of the evaluation criteria for Phase I, listed in section 00116 of the
solicitation, namely, size and scope. Plaintiff argues that what the agency did
amounts to the application of an undisclosed evaluation term, namely
“complexity,” as measured by whether or not a building would be constructed
using pre-engineering methods.
Plaintiff argues in the alternative that, even if the SSEB was entitled to
look outside of section 00116 when evaluating the past performance projects,
it should have recognized that the Design Guide’s characterization of pre-
engineered buildings as simple structures without climate control was
incorrect. Plaintiff argues that this is readily apparent from the description of
its prior pre-engineered metal building projects, which plaintiff contends were
demonstrably as complex as what the agency wanted. Plaintiff asserts that the
agency already utilized this approach when, under the first solicitation, it
characterized [ ] past performance projects as acceptable even
though they were primarily pre-engineered buildings. According to plaintiff,
it would be inconsistent for the agency to categorically dismiss pre-engineered
metal buildings as less complex when it considered them relevant in an earlier
procurement for the same project.
In its cross-motion, defendant argues that the factor “similar in scope”
would self-evidently include a comparison of plaintiff’s past performance
projects with the SOW, which presumptively prohibits pre-engineered metal
structures for the two main buildings. We agree. Past performance as applied
in Phase I cannot be read in isolation from the rest of the solicitation. The
adjectival rating system for past performance obviously assumes relevance in
connection with the work, as set out in the SOW, that the agency wants done.
This is made explicit in the rating terms, which each include a reference to the
solicitation generally. This is not superfluous. The Aberdeen Complex SOW
explicitly prohibits pre-engineered metal structures for the OMS and Training
buildings. AR 451.
Plaintiff points out that the prohibition of pre-engineered buildings was
not absolute; the agency retained the discretion to permit pre-engineered metal
structures, presumably if asked by a bidder. But there is nothing improper
about the presumptive disallowance. Additionally, the agency’s earlier
acceptance of pre-engineered buildings to establish past performance was
expressed during the market survey period conducted approximately two years
14
ago with the aim of awarding the work to a small business. The agency is
entitled to refine its preferences as the procurement shifted from a small
business set-aside to an unrestricted best value trade-off firm fixed price
contract. See SDS Int’l v. United States, 48 Fed. Cl. 759, 772 (2001). We will
not second-guess the agency’s preferences regarding pre-engineered metal
buildings, meaning that there was a disconnect between plaintiff’s past
performance and what the agency decided it wants.
B. The Management Plan and Lack of Prejudice
Plaintiff also takes issue with the agency’s evaluation of its
management plan. The agency concluded that ACC’s management plan was
not specifically tailored to the Aberdeen Complex and therefore assigned it a
weakness. Plaintiff, however, asserts that the agency applied an unstated
evaluation criteria because nothing in the solicitation required the management
plan to be specifically tailored to the Aberdeen Complex. Additionally,
plaintiff avers that [ ] management plan was not specifically tailored to
the Aberdeen project either, but it was not assigned a weakness for the lack of
specificity. Instead, that offeror ultimately received the rating of outstanding
for its technical approach. Plaintiff argues that, if the agency had been
consistent in docking offerors for failure to tailor the management plan, then
ACC should not have received a weakness, which would have resulted,
according to plaintiff, in an overall rating of good or outstanding for its
technical approach.
As defendant points out, however, if plaintiff’s past performance
evaluation does not change, it has a serious problem in obtaining relief based
solely on critiquing the SSEB’s evaluation of other bidder’s management
plans.
The SSEB did not identify a deficiency in plaintiff’s management plan;
it only identified a weakness based on the lack of specificity.2 In other words,
2
The definitions of weakness and deficiency appear in the FAR, 48
C.F.R. § 15.001, which is incorporated into the solicitation by section 00116.
Weakness is defined as a “flaw in the proposal that increases the risk of
unsuccessful contract performance.” AR 152. On the other hand, deficiency
is defined as a “material failure of a proposal to meet a Government
(continued...)
15
the SSEB did not fault plaintiff’s plan for failing to comply with the
solicitation’s requirements; rather, the SSEB concluded that the plan met the
minimum requirements but contained this single weakness. This is why
plaintiff ultimately received an acceptable rating. As defendant notes, even
though [ ] management plan was not specifically tailored to the
Aberdeen Complex, it merited six strengths, which set it apart from ACC’s
technical plan. The SSEB assigned plaintiff’s management plan no strengths
and one weakness for failing to tailor the plan to the Aberdeen Complex
project. Because there were no identified deficiencies, the SSEB concluded
that plaintiff’s plan met the minimum requirements. We have no basis for
overturning the agency’s considered judgment in that respect.
More importantly, plaintiff cannot establish prejudice. As noted above,
a protestor cannot be successful by merely showing a violation of the
applicable statutes and regulations; it must also demonstrate that the violation
resulted in prejudice, that there was a “substantial chance” the protestor would
have received the award but for the violation. Bannum, Inc. v. United States,
404 F.3d 1346, 1353 (Fed. Cir. 2005). Even if plaintiff’s management plan
was not deemed to have a weakness, it still would have merited no higher than
an acceptable rating because the SSEB did not rate any offeror’s management
plan as good unless it identified at least two strengths. To merit a rating of
good, the plan must contain “strengths which outweigh any weaknesses.” AR
152. The SSEB did not identify any strengths in plaintiff’s plan, and plaintiff
does not argue that the SSEB should have done so. Accordingly, it is
reasonable to assume that the plan would have been rated acceptable, which
is defined as a plan where “[s]trengths and weaknesses are offsetting.” Id.
Furthermore, all of the offerors who received a technical rating of good had at
least two identified strengths.
Without a technical rating of good and a past performance rating of
substantial confidence, it is extremely unlikely that plaintiff would have been
invited to advance to Phase II. The solicitation indicates that the agency will
select five offerors to advance to Phase II. Plaintiff received a rating of
satisfactory confidence for its past performance and an acceptable technical
2
(...continued)
requirement or a combination of significant weaknesses in a proposal that
increases the risk of unsuccessful contract performance to an unacceptable
level.” Id.
16
rating. All five of the offerors who advanced received a technical rating of
good or higher. The agency also expressed substantial confidence in the past
performance of the five offerors who were chosen to compete in Phase II.
Furthermore, there were [ ] offerors who did not advance to Phase II who
received better ratings than plaintiff. See AR 1348. Plaintiff has supplied us
with no reason to think that it would have fared any better than these [ ]
unsuccessful offerors had it received a higher past performance rating.
Without prevailing on both issues, the relevancy of pre-engineered buildings
in the evaluation of past performance and the application of an unstated
evaluation criteria to plaintiff’s management plan, ACC is unable to show that
it could have scored high enough to be included in the final five.
C. Injunctive Relief
Plaintiff has failed to establish that the agency violated the law or was
otherwise arbitrary or capricious in its decision-making to plaintiff’s prejudice,
and we, therefore, find it unnecessary to reach the issue of injunctive relief.
CONCLUSION
For the reasons stated above, we grant in part and deny in part
plaintiff’s motion to supplement the administrative record, and we grant
defendant’s motion to correct the administrative record. Furthermore, we
conclude that the agency exercised reasonable judgment and complied with
applicable statutes and regulations when it excluded plaintiff from Phase II of
the procurement process. We therefore deny plaintiff’s motion for judgment
on the administrative record and grant defendant’s cross-motion. The Clerk
is directed to enter judgment accordingly. No costs.
s/ Eric G. Bruggink
ERIC G. BRUGGINK
Judge
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