Veterans Electric, LLC v. United States

In the United States Court of Federal Claims
No. 18-1908C
(Filed Under Seal: April 4, 2019)
(Reissued for Publication: April 17, 2019)1
*************************************
*
VETERANS ELECTRIC, LLC, *
*
Plaintiff, *
* Pre-award Bid Protest; Motion for Judgment
v. * on the Administrative Record; Rule 52.1;
* Agency’s Competitive Range Decision.
THE UNITED STATES, *
*
Defendant. *
*
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Andrew R. Newell, Whitcomb, Selinsky, McAuliffe P.C., Denver, Colorado, for Plaintiff.
Christopher L. Harlow, Trial Attorney, with whom were Joseph P. Hunt, Assistant
Attorney General, Robert E. Kirschman, Jr., Director, Deborah A. Bynum, Assistant
Director, Commercial Litigation Branch, Civil Division, U.S. Department of Justice,
Washington, D.C., and Brian R. Reed, Procurement Counsel, Office of General Counsel,
United States Department of Veterans Affairs, for Defendant.
OPINION AND ORDER
WHEELER, Judge.
In this pre-award bid protest, Plaintiff Veterans Electric, LLC challenges the
Department of Veterans Affairs’ (“DVA”) evaluation of Veterans Electric’s proposal and
decision to exclude it from the competitive range. Plaintiff’s protest poses two questions:
(1) whether DVA’s evaluation of Veterans Electric’s proposal was arbitrary, and (2)
whether DVA arbitrarily excluded Veterans Electric from the competitive range.
1
The Court issued this decision under seal on April 4, 2019 and invited the parties to submit proposed
redactions of any proprietary, confidential, or other protected information on or before April 11, 2019.
None of the parties proposed any redactions. Thus, the Court reissues the opinion in full.
1
The parties have filed cross-Motions for Judgment on the Administrative Record,
pursuant to Rule 52.1 of the Court. For the reasons explained below, the Court DENIES
Veterans Electric’s motion, and GRANTS the Government’s cross-motion.
Background
A. The Solicitation
On February 5, 2018, DVA issued a solicitation for a Multiple Award Task Order
Contract, Solicitation No. 36C52-18-R-0104, relating to construction services at the
Clement J. Zablocki VA Medical Center in Milwaukee, Wisconsin. AR 51. The
solicitation contained one task order to be addressed in offeror proposals—the first
construction project to be awarded under the contract (designated the “seed project”). After
contractors submitted proposals, the solicitation called for DVA to narrow the field of
offerors to those deemed most highly qualified based on the evaluation of their proposals.
AR 107-08. DVA would then ultimately award the contract to one of these remaining
offerors within this “competitive range.” Id.
DVA planned to evaluate proposals based on five factors identified in the
solicitation: company experience, project management, safety plan, past performance, and
price. The price factor included two sub-factors: reasonableness and realism. AR 105.
Reasonableness refers to whether the offeror’s quoted price is at or around fair market
value (the price “a prudent person would pay in a competitive business environment”);
price realism reflects an offeror’s understanding of the project generally. AR 107.
The agency’s Source Selection Evaluation Board (“SSEB”) evaluated the “technical
factors” of company experience, project management, and safety plan of each candidate’s
proposal using an adjectival assessment rating of “exceptional,” “good,” “satisfactory,”
“marginal,” or “unsatisfactory.” AR 19. Under past performance, the agency assessed the
level of confidence in the contractor’s ability to perform the contemplated work. DVA
rated proposals as posing “low performance risk,” “moderate performance risk,” “high
performance risk,” or “unknown performance.” AR 19. In assessing price, DVA used
each proposal’s bid for the seed project to measure realism and reasonableness. AR 20,
2125. DVA then ranked proposals based on the ratings given in each category. The
solicitation explained how DVA would weigh each factor against the others: “[a]ll non-
price factors are of equal importance and, when combined, are significantly more important
than price.” AR 105.
B. The Competitive Range
Fourteen offerors submitted proposals. AR 2121. DVA reviewed the proposals,
assigned ratings based on the evaluation criteria outlined above, and established a
competitive range consisting of the seven highest-rated offerors. AR 2121-38. Seven
2
offerors were excluded from the competitive range in this process.2 Veterans Electric fell
into the latter category. The SSEB found Veterans Electric’s technical factors to be
substandard; it gave Veterans Electric’s company experience and project management
“marginal” ratings and determined its safety plan to be “unsatisfactory.” AR 2132-33.
DVA determined that Veterans Electric’s past performance posed “low risk.” AR 2133.
Veterans Electric submitted the seventh lowest price quote for the seed project, and DVA
found its price to be both realistic and reasonable. AR 2125, 2133. Based on these ratings,
DVA determined that Veterans Electric’s “proposal contained multiple deficiencies and
significant weaknesses and lacked depth and substance.” AR 2137. Veterans Electric’s
proposal was therefore “excluded from the competitive range because it was not among the
most highly rated proposals and for the purpose of efficiency.” Id.
C. The Present Dispute
Veterans Electric alleges multiple shortcomings in DVA’s assessment of Veterans
Electric’s proposal and competitive range determination. Plaintiff points to ambiguities in
the solicitation and criticizes what it characterizes as DVA’s overly technical evaluation of
its proposal. Veterans Electric adds that DVA improperly measured Veterans Electric’s
proposal using undisclosed criteria and unreasonably labeled aspects of Veterans Electric’s
proposal as “weaknesses.” Finally, Plaintiff asserts that DVA failed to explain how its
adjectival assessments of each proposal translated into a ranking system used to construct
the competitive range.
Procedural History
Veterans Electric first protested this procurement before the Government
Accountability Office (“GAO”) in October 2018. AR 2189-2208. GAO dismissed
Veterans Electric’s protest approximately one month later on procedural grounds without
reaching the merits. AR 3531.
On December 12, 2018, Veterans Electric filed its complaint in this Court. The
parties completed briefing on March 8, 2019, and the Court held oral argument on March
20, 2019. DVA voluntarily stayed its procurement while the Court considered Veterans
Electric’s protest.
2
Two offerors submitted facially incomplete proposals and were excluded without consideration. AR 2121.
DVA eliminated the remaining five offerors after evaluating their proposals.
3
Discussion
I. Standard of Review
A. Courts Are Highly Deferential to the Agency’s Determination.
The Tucker Act grants this Court subject-matter jurisdiction over bid protests. 28
U.S.C. § 1491(b)(1) (2012). In a bid protest, the Court reviews an agency’s decision
pursuant to the standards set out in the Administrative Procedure Act (“APA”). 28 U.S.C.
§ 1491(b)(4); 5 U.S.C. § 706. The APA provides that “a reviewing court shall set aside
the agency action if it is arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law.” 5 U.S.C. § 706(2)(A); see Banknote Corp. of Am., Inc. v. United
States, 365 F.3d 1345, 1350–51 (Fed. Cir. 2004). An agency’s decision does not violate
the APA if the agency “provided a coherent and reasonable explanation of its exercise of
discretion.” Impresa Construzioni Geom. Domenico Garufi v. United States, 238 F.3d
1324, 1332–33 (Fed. Cir. 2001). Further, an agency must articulate a “rational connection
between the facts found and the choice made.” Motor Vehicle Mfrs. Ass’n of U.S., Inc. v.
State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (citation omitted). The Court’s
review is “highly deferential” to the agency as long as the agency has rationally explained
its award decision. Bannum, Inc. v. United States, 91 Fed. Cl. 160, 169–70 (2009).
Even if the agency acted without a rational basis, the Court cannot grant relief unless
the agency’s action prejudiced the protestor. Bannum, Inc. v. United States, 404 F.3d 1346,
1351 (Fed. Cir. 2005). Erroneous agency action prejudices a protestor if, but for the
agency’s error, there was a “substantial chance” that the agency would have awarded the
contract to the protestor. Alfa Laval Separation, Inc. v. United States, 175 F.3d 1365, 1367
(Fed. Cir. 1999) (internal citation omitted); see also Bannum, 404 F.3d at 1353.
B. The Federal Acquisition Regulation (“FAR”) Permits the Agency to
Establish a Competitive Range.
In conducting a procurement, the FAR permits a contracting officer to set a
competitive range, generally comprised of the highest-rated offerors. See FAR §
15.306(c). Agencies possess “broad discretion in determining the competitive range.”
Birch & Davis Int’l, Inc. v. Christopher, 4 F.3d 970, 973 (Fed. Cir. 1993). Due to this
broad discretion, review of an agency’s competitive range decision is limited to whether it
was reasonable, consistent with the stated evaluation criteria, and compliant with the
applicable statutory and regulatory requirements. See Pitney Bowes Gov’t Solutions, Inc.
v. United States, 94 Fed. Cl. 1, 11 (2010). Courts defer to the agency’s competitive range
evaluation unless the agency’s determination is “clearly unreasonable.” Id.
4
II. DVA’s Evaluation of the Technical Factors in Veterans Electric’s Proposal
Was Not Arbitrary.3
The solicitation requested offerors to submit a 25-page proposal outlining the
offeror’s company experience, project management staffing, and safety plan. AR 102.
DVA did not consider conclusory statements or unsupported assurances regarding the
offeror’s ability to meet the contract requirements. Id. The solicitation warned offerors
that “[f]ailure to provide a technical proposal in accordance with the solicitation
instructions may render an Offeror’s proposal incomplete and ineligible for award.” AR
102.
A. Company Experience
The Company Experience factor aimed to “assess an offeror’s experience in
performing construction work in a health care environment.” AR 106. The solicitation
provided that DVA would evaluate the “breadth and depth” of “each offeror’s company
experience in providing construction services which are similar in nature of work which
could appropriately be awarded as an order under this [contract] as defined for this
requirement.” Id. In crafting their proposals, the solicitation asked offerors to “include
detail about the company’s experience in providing construction services, which are of
similar nature to the work to be performed under the requirement described in the
solicitation.” AR 102.
The SSEB rated Veterans Electric’s company experience as “marginal.” AR 2132-
33. That rating was not made arbitrarily. Veterans Electric’s proposal simply listed
“satisfied customers” without any additional information from which to discern the nature
of the projects or the extent of work performed. AR 1940. This listing does not provide
the level of detail the solicitation called for and, as DVA points out, made it difficult to
properly evaluate the company’s breadth and depth of experience. AR 2133. Moreover,
Veterans Electric’s assertion regarding its “satisfied customers” appears to be the sort of
conclusory statement that the agency would not consider. Veterans Electric thus failed to
supply sufficient details to assure the SSEB that Veterans Electric could perform under the
contract; the SSEB rightly found these omissions to be shortcomings in Veterans Electric’s
proposal and rated them accordingly.
Review of competitors’ offers validates the agency’s marginal rating. Offeror
number 3, for example, submitted a list of projects like Veterans Electric. AR 1190-95;
2003. But unlike Plaintiff’s submission, offeror 3 included additional explanations of its
projects for which it received a “good” rating. Id. More detail translated into a higher
rating—such an assessment is patently not unreasonable.
3
DVA rated Veterans Electric’s past performance as posing “low performance risk” and its price as both
realistic and reasonable. Veterans Electric does not challenge those evaluations.
5
B. Project Management
The solicitation required offerors to “include detailed information on the proposed
management team” and supply “resumes for the Project Manager, Site Superintendent,
Quality Control Manager, and Safety Officer.” AR 102. DVA evaluated resumes based
“on the level and type of experience and education” and each individual’s experience “on
projects similar in nature of work which could appropriately be awarded as an order under
this [contract].” AR 106.
The SSEB gave Veterans Electric’s project management section a “marginal”
rating. AR 2133. Veterans Electric provided a list of its management team members with
an accompanying list of these individuals’ prior jobs, notable projects, and skills. AR
1943-44. However, that list again lacked the detailed information requested in the
solicitation. Each employee’s overview showed job titles and durations but not places of
employment. Plaintiff listed each individual’s “notable projects” but did not indicate the
kind of projects, the work performed on each project, or these projects’ relationship to the
present contract. It is no surprise that the SSEB viewed Veterans Electric’s failure to
supply the detailed information it requested on employees’ skills and experience as
troublesome, considering the solicitation’s express position that it would evaluate the
management team based on those individuals’ history of performing similar work.
Other offeror’s proposals confirm that the SSEB did not act arbitrarily in assigning
Veterans Electric’s rating. Offeror number 3’s submission more extensively outlined each
relevant employee’s work history, skills, roles, and responsibilities for which it received a
“good” rating. AR 2027, 1197-1209. Again, it is entirely reasonable that more detail
yielded a higher rating.
C. Safety Plan
The solicitation instructed each offeror to detail its familiarity with and its policies
and practices for ensuring compliance with OSHA construction safety requirements. AR
102. Safety plans must also outline work activity safety measures, emergency response
measures, a safety reporting plan, OSHA training course certifications, and the offeror’s
plan for enforcing and monitoring its safety plan. AR 106.
Veterans Electric defends its plan despite the SSEB’s “unsatisfactory” rating.
However, a review of the administrative record shows that this rating was reasonable.
Veterans Electric provided a general workplace safety overview and basic first aid which
failed to address work activity safety measures, safety reporting, training requirements or
training monitoring and enforcement as the solicitation requested. AR 106, 1945-48, 2066.
Again, Veterans Electric’s poor rating is consistent with its competitors’ evaluations. For
example, offeror number 11 provided similarly limited detail but better addressed the safety
6
plan factors outlined in the solicitation. Its more thorough proposal earned that offeror a
“good” rating. AR 1716-1718; 2063.
Veterans Electric’s primary contention here is that any shortcoming in its safety
plan is attributable to ambiguity in the solicitation. Plaintiff adds that the technical
proposal’s short 25-page limit compounded this confusion; it explained that full safety
plans often cover over 200 pages.4 As a threshold matter, to the extent that Veterans
Electric raises a defect in the solicitation, the time for that challenge has long since passed.
See, e.g., Blue & Gold Fleet, L.P. v. United States, 492 F.3d 1308, 1315 (Fed. Cir. 2007)
(requiring offerors to challenge any purported solicitation defect before submitting
proposals).
Turning to the proposal itself, it is curious that Veterans Electric complains about
the 25-page limit. After accounting for a considerable amount of unused space on each
page and removing pages which did not count towards the cap, Veterans Electric’s
technical factor proposal is approximately 10 pages long. The solicitation set forth criteria
which DVA believed to be especially relevant to understanding an offeror’s safety
experience, policies, and practices. As explained above, Veterans Electric’s brief recitation
did not adequately address the safety plan features that the solicitation outlined. The
agency, therefore, could not properly evaluate Veterans Electric’s safety experience,
policies, and procedures which reasonably translated into a poor rating.5
D. Veterans Electric’s Additional Challenges are Unsupported.
Veterans Electric advances two additional arguments. First, it contends that DVA
and the SSEB unfairly evaluated Veterans Electric’s proposal based on undisclosed criteria
not included in the solicitation. Second, it maintains that the purported shortcomings in its
proposal were not weaknesses according to that term’s true definition.
4
Plaintiff adds that DVA wrongly criticized Veterans Electric for providing no information on its
employees’ OSHA certifications, when its proposal indicates that all supervisors have performed the OSHA
30-hour construction safety program. AR 1943-44. However, Veterans Electric included that information
in the project management section, not in Veterans Electric’s safety plan. As discussed herein, offerors
bear the burden of submitting technically accurate proposals. Even so, this confusion would not have
prejudiced Veterans Electric because its overall proposal was seriously limited.
5
Veterans Electrics makes a second criticism of the page limit. It maintains that a short summary of an
offeror’s safety plan is irrelevant because it provides no insight into the actual final plan. Veterans Electric
claims that this factor is therefore an invalid evaluation criterion. The solicitation asked for offerors to touch
on certain key safety policies and procedures as a basis for evaluating the offeror’s general safety measures
and experience. It is difficult to see how this could be irrelevant.
7
1. The Agency Did Not Use Undisclosed Evaluation Criteria.
a. The Solicitation’s Plain Language Dispenses with Several of
Plaintiff’s Contentions.
DVA explained that Veterans Electric failed to include information on its “Project
Manager’s and Site Superintendent’s ability to coordinate multiple contract tasks” and
further, that “no durations, magnitude, descriptions, or scope of the projects were provided
in order to effectively evaluate company experience.” AR 2132-33. Veterans Electric
argues that DVA unfairly measured its proposal against these two factors which were not
outlined in the solicitation.
Plaintiff need only look to the text to see its error. The solicitation plainly provides
that the “[e]valuation of the Project Manager and Site Superintendent will include . . . the
ability to coordinate multiple contract tasks.” AR106. The solicitation could not be clearer.
Moreover, the solicitation asks for “detail about the company’s experience” so that DVA
can evaluate the “breadth and depth” of “each offeror’s company experience in providing
[similar] construction services.” Id. “Magnitude” and “scope” are closely related to
“breadth.” See Breadth, MERRIAM-WEBSTER, https://www.merriam-
webster.com/thesaurus/breadth. Duration, magnitude, and scope are not separate criteria,
but rather a restatement of the detail, breadth, and depth standards.
b. The Rest of Plaintiff’s Arguments Stem from a General Failure
to Include Detailed Information in Its Proposal.
Generally, the remainder of what Veterans Electric alleges to be undisclosed criteria
are instead the agency’s reasonable assessments based on Plaintiff’s limited submission.
The Court will address each in turn.
Veterans Electric takes issue with the assessments that its “subcontractor
relationships, team approach, or prequalification of subcontractor process” did not touch
on Veterans Electric’s “ability to obtain and retain quality subcontractors.” AR 2132. The
solicitation directed offerors to provide sufficient detail on its industry-specific projects so
that the agency could review the “breadth and depth” of an offeror’s experience. AR 102,
106. Put differently, it requested that offerors paint a complete picture of their company’s
prior projects. As a solicitation for a construction project, it should be no surprise that
interactions with subcontractors could be part of this picture.
Plaintiff next challenges the SSEB’s conclusion that Veterans Electric’s decision to
designate a single employee to act as both the Site Superintendent and Quality Control
Manager “poses a higher risk of unsuccessful performance by increasing the workload of
a single person.” AR 2047. Plaintiff gave no explanation for its decision nor did it provide
any assurance that this employee could effectively perform two core functions. AR 1943.
8
The SSEB therefore rationally concluded that this consolidation could result in an
unmanageable high work load for one employee, which could impact overall contract
performance.
Veterans Electric then objects to the SSEB’s assessment that “the Quality Control
Manager[’s] . . . relevant QCM certificates/training” were lacking. The solicitation
provides that “the resumes for the . . . Quality Control Manager . . . will be evaluated on
the level and type of experience and education.” AR 106. Certificates and training are a
logical, non-arbitrary measure of experience and education.
Lastly, DVA’s assessments that Veterans Electric’s proposal lacked “an
organizational chart, narrative, or additional information to provide information about your
firm’s approach to project management,” and that its “Safety Officer does not appear to
have any specific or relevant Safety Professional Certificates (Certified Safety
Professional/Certified Health and Safety Technician)” are not undisclosed criteria. AR
2133. Rather, they are shortcomings DVA identified which speak to the general dearth of
information in Plaintiff’s proposal, regardless of the form in which it chose to present that
information.
In sum, Plaintiff does not identify undisclosed criteria. The agency did not act
irrationally in making its aforementioned assessments.
2. The Agency Properly Assessed Weaknesses in Plaintiff’s Offer.
Veterans Electric challenges DVA’s use of the term “weakness” and adds that DVA
labels its critiques of Plaintiff’s proposal as weaknesses in a conclusory way. Veterans
Electric also maintains that even if it did fail to follow the solicitation’s terms, such failure
cannot automatically be labeled as a weakness if it has no bearing on contract performance.
The solicitation defines a “weakness” “as a flaw in the proposal that increases the
risk of unsuccessful contract performance.” AR 18. It defines a “significant weakness”
“as a flaw in the proposal that appreciably increases the risk of unsuccessful contract
performance.” AR 18. The solicitation’s definition tracks that set out in Standard
Commc’ns v. United States, 101 Fed. Cl. 723, 742 (2011) (a significant weakness is “a
flaw that appreciably increases the risk of unsuccessful contract performance” (quoting
FAR § 15.001)).
In the solicitation, DVA requested specific details on company experience, project
management, and safety plans from which it could evaluate offeror competency to
complete the work called for in this contract. Proposals were therefore required to include
“sufficient detail” upon which the agency can assess whether the offeror could perform the
services requested. Mercom, Inc. v. United States, 131 Fed. Cl. 32, 40 (2017). Veterans
Electric’s proposal included no such detail. Its scant offer failed to show DVA that it could
9
perform the required services, a flaw which DVA reasonably assessed would increase the
risk of unsuccessful contract performance. Accordingly, DVA did not arbitrarily determine
that the little information Veterans Electric provided was insufficient to assure the agency
that the contract’s requirements would be met.
Veterans Electric adds that its failure to follow the solicitation’s terms should not
be considered a weakness without some tie to its ability to perform under the contract. Pl.
Motion at 23. The solicitation’s requirements are not meaningless. Rather, successful
proposals must supply the required information and demonstrate the offeror’s capabilities
to the procuring agency. See, e.g., Red River Holdings, LLC v. United States, 87 Fed. Cl.
768, 787 (2009) (“Proposals must be complete and conform to the Solicitation.”); Orion
Tech. v. United States, 102 Fed. Cl. 218, 218 n. 20 (2011). Veterans Electric did not
address many of the solicitation’s requirements. Its incomplete recitation of its company
experience, project management, and safety plan lacked the requisite detail to inspire
DVA’s and the SSEB’s confidence in Veterans Electric’s capacity to perform the work
required.
III. DVA’s Decision to Exclude Veterans Electric from the Competitive Range
Was Not Arbitrary.
A. The Solicitation Sufficiently Outlined Each Factor’s Weight.
Veterans Electric complains that DVA “[f]ailed to establish the relative importance
of factors and subfactors” and how the interplay of these factors resulted in a final ranking.
Solicitations must “indicate the relative weights of evaluation factors” but need not supply
a “precise quantitative comparison” in assessing proposals. Firstline Transp. Sec., Inc. v.
United States, 100 Fed. Cl. 359, 393 (2011).
The solicitation explains that “[a]ll non-price factors are of equal importance and,
when combined, are significantly more important than price.” AR 105. Contrary to
Plaintiff’s assertion, this language establishes the relative importance of each factor in
evaluating proposals. Agencies may use this adjectival system to then rank proposals and
need not supply any answer key, conversion chart or any similar metric to show how those
ratings translated into a final ranking. The administrative record reflects that DVA
consistently applied its stated evaluation criteria and that other offerors submitted
comparatively superior offers which warranted inclusion in the competitive range.
10
1. Veterans Electric Submitted a Comparably Inferior Proposal.
Veterans Electric’s technical proposal received the lowest ratings given to any
submission across all technical factors.6 AR 2123. Plaintiff offered the seventh lowest
price which DVA considered both realistic and reasonable, and received a “low risk” past
performance rating. Taken together, DVA determined that Veterans Electric submitted the
tenth best proposal out of twelve considered. AR 2125, 2133, 2517. Veterans Electric’s
poor technical factor ratings, combined with the heavy weight placed on these technical
factors, make it unsurprising that DVA excluded Veterans Electric from the competitive
range.
Veterans Electric attempts to save its proposal by contending that DVA’s analysis
of the technical factors measured the proposal’s form and style over its content. Pl. Motion
at 20. Veterans Electric also points to DVA’s failure to consider relevant material that
Veterans Electric included in the wrong section of its proposal in support of its position
that DVA’s evaluation was overly technical. Plaintiff maintains that the evaluation process
was, therefore, “better described as a writing contest than an evaluation of contractor
responsibility.” Pl. Motion at 20; see also Pl. Motion at 26 (comparing the solicitation to
“a high school homework assignment to write an English essay.”). However, the more apt
schoolhouse analogy is to that of a student submitting a paragraph on A Tale of Two Cities
after being asked to write a paper on Great Expectations; its submission simply missed the
mark.
Both the law and the solicitation are clear that the onus is not on the agency to cobble
together a compliant offer from an offeror’s submission. See ST Net, Inc. v. United States,
112 Fed. Cl. 99, 110 (2013) (“Indeed, this court has held that an agency is not required to
sift through a proposal in order to identify information that the offeror failed to include in
the correct place.”); Prescient, Inc. v. United States, 125 Fed. Cl. 475, 491 (2016) (“[I]t
was not the responsibility of the agency to sift through [a] proposal and piece together a
compliant offer. Rather, it is well established that all offerors . . . are expected to
demonstrate their capabilities in their proposals.” (quotations omitted) (alteration in
original)); AR 102 (“Failure to provide a technical proposal in accordance with the
solicitation instructions may render an Offeror’s proposal incomplete and ineligible for
award.”). Rather, offerors are responsible for submitting complete and thorough proposals
that address the solicitation’s requirements and demonstrate their capacity to perform under
the contract. Red River Holdings, 87 Fed. Cl. at 787.
Veterans Electric’s deficiencies were, therefore, not up to the agency to correct.
Veterans Electric’s lower rating was not the result of a mere technicality, rather it was due
6
Veterans Electric received “marginal” ratings for the company experience and project management
components of its proposal. AR 2123. Its safety plan was “unsatisfactory.” Id.
11
to its sparse and incorrectly compiled technical proposal.7 Accordingly, DVA’s exclusion
of Veterans Electric’s “less-than-thorough proposal” from the competitive range was not
arbitrary. See PGBA, LLC v. United States, 60 Fed. Cl. 196, 209-210 (2004).
2. DVA Did Not Play Favorites Among Offerors.
Veterans Electric points to DVA’s treatment of two other offerors—offeror number
2 and offeror number 5—to highlight DVA’s purportedly illogical rankings. It claims that
DVA afforded these offerors improper additional opportunities to discuss their proposals
and assigned unduly favorable overall rankings.
Veterans Electric’s criticisms stem from its misapplication of the solicitation’s
weighting system and of the FAR. FAR § 15.306(b)(1)(i) permits agencies to request that
offerors “address adverse past performance information to which an offeror has not had a
prior opportunity to respond.” Moreover, the solicitation provides that all non-price factors
are weighed equally and, taken together, are much more significant than price. AR 105.
DVA contacted offeror number 5 pursuant to section 15.306(b)(1)(i) to better
understand that offeror’s past performance issues. Offeror number 5 chose not to respond
and DVA eliminated it from the competitive range accordingly. AR 2136. DVA’s
behavior comported with the applicable legal standards and was not irrational as Plaintiff
contends.
Plaintiff then offers a “head-to-head” comparison with offeror number 2 to show
arbitrary treatment. DVA rated that offeror’s company experience as “satisfactory,” its
project management as “good,” and its safety plan as “marginal.” Its past performance
posed a “moderate risk.” That offeror’s price was realistic but not reasonable. Like with
offeror number 5, DVA contacted offeror number 2 to address past performance
apprehensions. Offeror number 2 responded and satisfied DVA’s concerns. The
contracting officer also concluded that offeror number 2’s high price could be resolved
through subsequent discussions. AR 2134.
Veterans Electric appears surprised that DVA included offeror number 2 in the
competitive range but excluded Veterans Electric. The Court does not share this same
surprise. Veterans Electric supplied superior past performance and a more competitive
price but received lower (and, in some instances, substantially lower) ratings in every other
category. Based on the equal weight of each non-price factor, offeror number 2’s uniformly
more attractive technical capabilities, the non-price factors’ substantial weight compared
to price, and offeror number 2’s satisfactory explanation regarding its past performance,
offeror number 2’s higher ranking was warranted.
7
Moreover, the agency need not give the offeror the opportunity to rewrite its proposal. See Orion Tech.,
102 Fed. Cl. at 218.
12
B. DVA Considered Price Appropriately.
Veterans Electric argues that the solicitation’s price evaluation on realism and
reasonableness grounds caused the agency to lose sight of the most important price factor,
the actual price quoted. Plaintiff submitted the seventh lowest price which DVA deemed
to be both realistic and reasonable. Veterans Electric contends that DVA (1) did not
appropriately factor in that price into Veterans Electric’s overall evaluation and (2) failed
to perform a proper best-value tradeoff to justify including offerors with higher prices than
Veterans Electric in the competitive range.
First, Veterans Electric’s position regarding DVA’s failure to engage in a best value
analysis conflates a competitive range determination with an award decision. The
solicitation outlined that this procurement would proceed in successive stages. First, DVA
would establish a competitive range. AR 107-08. FAR § 15.306(c)(1) explains that
“[a]gencies shall . . . establish a competitive range comprised of all of the most highly rated
proposals” after reviewing “the ratings of each proposal against all evaluation criteria.”
The FAR permits further reduction to the number of proposals selected to the competitive
range “for purposes of efficiency.” Id. Then, DVA will make its award after performing
a best-value tradeoff analysis with offerors in the competitive range and holding
discussions with those offerors. AR 105, 108.
The agency was therefore not required to perform a best-value analysis at this stage
of the procurement as Veterans Electric suggests. In making its competitive range
determination, DVA need only identify “the most highly rated proposals” based on the
solicitation’s evaluation criteria. DVA did just that: it followed the factor analysis outlined
in the solicitation to rate proposals in a rational, non-arbitrary way and from that analysis
established a competitive range comprised of the highest rated offerors. Lastly, the
solicitation contemplated future discussions, including price negotiations, with members
of the competitive range. As a result, DVA could negotiate higher priced offers down into
what DVA deems a more reasonable range. Inclusion of higher priced offerors was,
therefore, not arbitrary or irrational but rather followed the terms of the solicitation and the
FAR.
Second, DVA did evaluate price; it considered each proposal’s price realism and
reasonableness. At this stage, DVA was not required to engage in the same price and value
tradeoff analysis required to support an award decision. Accordingly, DVA sufficiently
accounted for each offeror’s price in making its overall assessment of which offers were
most competitive.8
8
Veterans Electric is also incorrect that DVA did not account for the actual price quoted itself.
Reasonableness measures whether the offeror’s price quoted is at or around fair market value. AR 107.
That factor addressed the actual price.
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The administrative record supports DVA’s assessment that Veterans Electric’s
proposal “contained multiple deficiencies and significant weaknesses and lacked depth and
substance.” DVA’s choice to exclude Veterans Electric from the competitive range was
not arbitrary.
Conclusion
In conclusion, the Court DENIES Veterans Electric’s Motion for Judgment on the
Administrative Record and GRANTS the Government’s Cross-Motion for Judgment on
the Administrative Record. The Clerk shall enter judgment in favor of the Government.
No costs. Plaintiff Veterans Electric, LLC’s complaint is dismissed with prejudice.
IT IS SO ORDERED.
s/ Thomas C. Wheeler
THOMAS C. WHEELER
Judge
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