Dynamic Systems Technology, Inc. v. United States

In the United States Court of Federal Claims
No. 16-353C (Bid Protest)
(Filed Under Seal: June 30, 2016 | Reissued: July 18, 2016)*
) Keywords: Post-Award Bid Protest;
DYNAMIC SYSTEMS ) Judgment on the Administrative
TECHNOLOGY, INC., ) Record; Technical Evaluation; Past
) Performance Evaluation; Best-Value
Plaintiff, ) Determination
)
v. )
)
THE UNITED STATES OF AMERICA, )
)
Defendant, )
)
and )
)
INTERACTIVE GOVERNMENT )
HOLDINGS, INC., )
)
Defendant- )
Intervenor. )
)
James S. DelSordo, Argus Legal, PLLC, Manassas, VA, for Plaintiff. James S. Phillips
and Julie M. Nichols, Argus Legal, PLLC, Of Counsel.
Michael D. Austin, Trial Attorney, Commercial Litigation Branch, U.S. Department of
Justice, Washington, DC, with whom were Douglas Mickle, Assistant Director, Robert E.
Kirschman, Jr., Director, and Benjamin C. Mizer, Principal Deputy Assistant Attorney
General, for Defendant. Hattie DuBois and William Moorhouse, Defense Human
Resources Activity, Of Counsel.
David E. Fletcher, Cooley, LLP, Washington, DC, for Defendant-Intervenor. Christopher
J. Kimball and Erin M. Estevez, Cooley, LLP, Of Counsel.
*
This Opinion was originally issued under seal, and the parties were given the
opportunity to request redactions. Neither party requested redactions, and the Opnion is
now being reissued in full.
OPINION AND ORDER
KAPLAN, Judge.
This post-award bid protest concerns a contract with the Defense Human
Resources Activity (DHRA) to provide comprehensive support services for its Family
Employer Programs and Policy (FEPP) initiative. After DHRA awarded the contract to
Defendant-Intervenor Interactive Government Holdings, Inc. (IGH), Plaintiff Dynamic
Systems Technology, Inc. (DysTech), a disappointed offeror, filed this action. DysTech
asserts that the agency improperly evaluated the technical and past performance aspects
of IGH’s proposal, and that it erred when it determined that IGH’s proposal offered the
best value to the government.
Pending before the Court are the parties’ cross-motions for judgment on the
administrative record. For the reasons set forth below, the government’s and the
Intervenor’s cross-motions for judgment on the administrative record are GRANTED,
and DysTech’s cross-motion is DENIED.
BACKGROUND
I. The Solicitation
DHRA is an agency within the Department of Defense. Its mission is to
“enhance[] the operational effectiveness and efficiency of diverse programs supporting
the Department of Defense” by “develop[ing] products and services that promote and
sustain a high performing workforce.” See Dep’t of Defense, Directive No. 5100.87 (Feb.
19, 2008) at 2 ¶ 3. Among many other programs, DHRA administers FEPP, which
provides dedicated support services for members of the armed services reserves and the
National Guard. See Administrative Record (AR) Tab 2 at 10; FEPP, Manpower and
Reserve Affairs, http://www.people.mil/Deputates/FamilyEmployerProgramsPolicy.aspx
(last visited June 29, 2016). FEPP has three major components: the Employer Support of
the Guard and Reserve (ESGR); the Yellow Ribbon Reintegration Program (YRRP); and
the Employment Initiative Program (EIP). AR Tab 2 at 10. Through these programs,
DHRA aims to help National Guard and Reserve members balance the demands of
civilian employment and military life. See Who Is ESGR, Employer Support of the
Guard and Reserve, http://www.esgr.mil/About-ESGR/Who-is-ESGR/What-is-
ESGR.aspx (last visited June 29, 2016); About, Yellow Ribbon Reintegration Program,
http://www.yellowribbon.mil/yrrp/ (last visited June 29, 2016).
On October 19, 2014, DHRA issued a solicitation seeking offers from contractors
to provide comprehensive support services for FEPP. AR Tab 1 at 1. In particular, the
contractor would “[p]rovide all personnel management, materials, and equipment
necessary to provide the FEPP and its major components with program administrative,
logistical, and technical support and subject matter expert services.” AR Tab 2 at 10. The
heart of the solicitation was a twenty-five-page performance work statement (PWS)
spelling out the contract’s requirements in great detail. Id. at 10–34.
Offerors’ proposals were to include three volumes: business, technical, and price
proposal. Id. at 35–36. The technical volume was to be broken into three parts. First,
offerors were to include a technical proposal “address[ing] the technical requirements of
the Performance Work Statement (PWS) and Evaluation Factors.” Id. at 36. Next,
offerors were to “submit up to five relevant and recent past performance references.” Id.
Finally, offerors were to provide a quality control plan. Id.
DHRA informed offerors that it would evaluate their proposals based on three
factors: technical, past performance, and price. Id. at 72–74. For the technical factor,
DHRA would assess three elements: technical approach and methodology, project
management plan, and quality control plan. Id. at 73–74. In terms of technical approach
and methodology, the solicitation explained that “[b]y addressing each portion of the
PWS, proposals shall describe the offeror’s understanding of the requirement, assessment
of the objectives to be accomplished, [and] methodology for accomplishing the
requirement.” Id. at 73.
Offerors’ technical proposals would be assigned one of four adjectival ratings:
outstanding, acceptable, marginal, or unacceptable. Id. at 74–75. As pertinent to the
issues in this case, under the solicitation an “outstanding” technical proposal:
[E]xceeds stated requirements, as reflected through an innovative,
comprehensive, outstanding approach. The response is complete in
terms of the basic content and level of information the Government
seeks for evaluation. There is a high probability of success and
minimal risk that this Offeror would fail to meet the quantity,
quality, and schedule requirements. Minor weaknesses, if any, need
not be corrected to make award.
Id. A technical proposal would be rated “acceptable” where:
The proposal meets the stated requirements. The response is
considered complete in terms of the basic content and level of
information the Government seeks for evaluation. There is a
reasonable probability of success and little risk that this Offeror
would fail to meet the quantity, quality, and schedule requirements.
Minor weaknesses, if any, may not need to be corrected to make
award.
Id. at 75.
For past performance, the solicitation informed offerors that “[t]he Government
will conduct a performance confidence assessment based upon the past performance of
major or critical aspects of the requirement as it relates to the probability of successfully
performing the solicitation requirements.” Id. at 74. Past performance would be rated
along several dimensions.
First, offerors’ past performance references would be evaluated for relevancy.
According to the solicitation, “[i]nformation regarding contract performance that is
3
recent1 and has a logical connection with the matter under consideration indicates
relevancy.” Id. at 73. Applying that standard, each example of past contract performance
would be assigned one of four “relevancy” ratings: very relevant, relevant, somewhat
relevant, or not relevant. Id. at 75. An offeror’s “past/present performance effort” would
be rated “very relevant” where it “involved essentially the same magnitude of effort and
complexities this solicitation requires.” Id. A “relevant” present/past performance effort
would “involv[e] much of the magnitude of effort and complexities this solicitation
requires.” Id. An offeror’s “past/present performance effort” would be rated “somewhat
relevant” where it “involved some of the magnitude of effort and complexities this
solicitation requires.” Id. Finally, a past/present performance effort was “not relevant”
where it “did not involve any of the magnitude of effort and complexities this solicitation
requires.” Id.
Thereafter, based on “[t]he combination of relevancy and recency,” along with
evidence of performance documented by information gathered by the government,
DHRA would assign the offer as a whole a “performance confidence” rating. Id. at 75–
76. The available performance confidence ratings were substantial confidence (i.e., “the
Government has a high expectation that the offeror will successfully perform the required
effort”), satisfactory confidence (i.e., “the Government has an expectation that the offeror
will successfully perform the required effort”), limited confidence (i.e., “the Government
has a low expectation that the offeror will successfully perform the required effort”), no
confidence (i.e., “the Government has no expectation that the offeror will successfully
perform the required effort”), or unknown confidence (i.e., “[n]o relevant past
performance record is available or the offeror’s performance record is so sparse that no
meaningful confidence assessment rating can be reasonably assigned”). Id.
Finally, to decide which offeror would receive the award, the solicitation
explained that the government would “us[e] the trade-off approach” to determine which
proposal represented the “best value to the Government.” Id. at 74. When conducting this
trade-off, the technical factor would be considered the most important one, followed by
past performance and price. Id. The solicitation further specified that, when combined,
technical and past performance would be considered “significantly more important than
cost or price.” Id.
II. Offers, Evaluation, and Award2
A. Review by the Technical Evaluation Board
DHRA received seventeen offers. See AR Tab 24 at 582–83; AR Tab 35 at 691–
92. It convened a Technical Evaluation Board (TEB), which reviewed the offerors’
1
“Recency refers to the state or quality of being current.” AR Tab 2 at 73. “The more
recent the contract, the greater likelihood that the offeror has the capacity to perform in a
like manner.” Id.
2
DHRA initially awarded the contract to IGH on April 1, 2015, after which several
offerors protested before the Government Accountability Office (GAO). Def.’s Cross-
4
technical proposals and past performance references. See AR Tab 24. The TEB assigned
each technical proposal an adjectival rating. Id. at 582–83. IGH’s technical proposal was
rated “outstanding.” Id. at 582–84. The TEB found that IGH’s proposal “include[d]
numerous strengths and exceed[ed] the stated solicitation requirements in most areas, as
reflected by creative and innovative approaches.” Id. at 583. It noted five particular
strengths in IGH’s proposal, including: (1) an emphasis on the individual development of
each support staff member and the use of a mentor/protégé program to “maximize the
FEPP mission in assisting service members and employers;” (2) a program for soliciting
feedback and using it to implement program improvements; (3) the use of assessments
during the hiring process, which would be advantageous to the government because it
would ensure a baseline level of competence and “eliminate[] time spent during a
learning curve phase;” (4) the establishment of a dedicated advisory board consisting of
senior leadership to “anticipate upcoming challenges and introduce new concepts and
ideas to the Government for consideration;” and (5) an “integrated management
approach” designed to create “synergy” among FEPP’s three main components. Id. at
583–84. The TEB concluded on the basis of the strengths of the proposal that “[t]here is a
high probability of success that [IGH] would meet the quantity, quality, and schedule
requirements.” Id. at 583.
DysTech’s technical proposal received an “acceptable” rating. Id. at 585. The
proposal was considered “complete in terms of basic content,” and it demonstrated “a
reasonable probability of success.” Id. The TEB identified two particular strengths and no
weaknesses. Id. The identified strengths were DysTech’s plans (1) to train and test each
Employment Coordinator using webinars, which would “give[] high confidence to the
government that the [Employment Coordinators] will be more than technically
proficient;” and (2) to use instructors from the National Veterans Training Institute and
the Transition Assistance Program, plus outside instructors and others, to provide annual
Employment Coordinator counseling regarding the latest new trends and research in the
counseling arena. Id. The TEB concluded that DysTech’s proposal reflected “a
reasonable probability of success and little risk that [DysTech] would fail to meet the
quantity, quality, and schedule requirements.” Id.
The TEB then reviewed the offerors’ past performance references and assigned a
relevancy rating to each. Id. at 603–10. As discussed in greater detail below, IGH
submitted three past performance references, each of which was rated “somewhat
relevant.” Id. at 603–04. DysTech submitted four past performance references: one was
rated “relevant,” and the other three were rated “somewhat relevant.” Id. at 605.
Mot. for J. Upon the Admin. R. and Opp’n to Pl.’s Mem. in Supp. of Its Mot. for J. on the
Admin. R. (Def.’s Mot.) at 4, ECF No. 24. The GAO sustained the protests and
recommended that DHRA correct the flaws it identified and reevaluate the proposals. Id.;
see also AR Tabs 45–46. Following the GAO’s decision, the agency “conduct[ed] an
entirely new evaluation.” Def.’s Mot. at 4. Thus, the discussion that follows concerns
only DHRA’s reevaluation of the proposals following the first GAO bid protest.
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B. Review by the Contract Specialist
After the TEB’s evaluation, a DHRA contract specialist (CS) independently
reviewed the offerors’ past performance references and made performance confidence
assessments. AR Tab 35. These assessments were based on the recency, relevancy, and
dollar value of the offerors’ previous contracts, along with information about the
offerors’ past performance found in (1) the government’s Past Performance Information
Retrieval System (PPIRS) and (2) questionnaires completed by the references
themselves. See id. at 691–92, 701.
The CS gave IGH a “satisfactory confidence” rating, indicating, as described
above, an expectation that it would “successfully perform the required effort.” Id. at 705.
Two of IGH’s references completed questionnaires, and the CS determined that the
responses provided established that IGH’s performance was “Satisfactory” with respect
to seven of the total eight elements examined, and “Neutral” as to one element. Id. There
was no information about IGH’s past contracts in the PPIRS. Id. In total, the dollar value
of IGH’s previous contracts amounted to less than $600,000. Id. at 705. The CS
observed, however, that “[a]lthough the magnitude of the references are below that of the
overall FEPP requirement, IGH has performed efforts that collectively involve much of
the complexities of the FEPP requirement.” Id. Thus, the CS concluded that “[t]he
Government has an expectation that IGH will successfully perform . . . should they
receive the award.” Id.
DysTech also received a satisfactory confidence rating. Id. at 707. Only one of
DysTech’s references completed a questionnaire, and the CS determined that the
responses established “Satisfactory” performance. Id. The PPIRS also had information
about two of DysTech’s previous contracts, for which it received ratings of “Satisfactory”
and “Very Good.” Id. The dollar value of DysTech’s previous references added up to
nearly $54 million. Id. According to the CS, DysTech’s past performance information
“g[ave] the Government an expectation that [DysTech] will successfully perform the
required effort.” Id.
C. Review by the Contracting Officer and Award Recommendation
Following the CS’s assessment, and after reviewing all the available information,
the CO conducted a trade-off analysis to determine which offer represented the best value
to the government. AR Tab 36. IGH priced its offer at about $48.9 million, making it the
highest-priced offer DHRA received. See id. at 759. DysTech priced its offer at about
$38.2 million. Id. The CO determined that both these prices were within the range of “fair
and reasonable.” See id. at 757.
In the first step of the trade-off analysis, the CO found that of the five offers
receiving “acceptable” technical ratings, DysTech’s offer provided the best value to the
government. Id. at 760–61. She then compared DysTech’s offer to IGH’s offer, which
had received an “outstanding” technical rating. Id. at 761–62. After noting that IGH’s
offer and DysTech’s offer both received “satisfactory” performance confidence ratings,
the CO listed several ways in which IGH’s proposal offered additional concrete benefits
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to the government. Id. Specifically, the CO noted that IGH planned to provide its staff
members with individualized, high-touch trainings; that it would “collect regular
feedback . . . in an attempt to facilitate constant improvement;” that it would screen for
employees with skills that the government required; and that it would create a leadership
board within FEPP, which would “provide an additional resource to meet the needs of
reserve component service members who require specialized assistance.” Id.
Thus, in light of the “significant value IGH’s proposal offer[ed],” the CO decided
that IGH’s “28% higher price premium” was “warranted.” Id. at 762. Accordingly, the
CO recommended awarding the contract to IGH. Id.
D. Review by the Source Selection Authority and Contract Award
Following the CO’s review, the agency’s source selection authority (SSA)
conducted a “factor-by-factor, independent assessment” of the proposals to determine the
contract award. See AR Tab 37 at 763. Upon reviewing the offerors’ technical, past
performance, and price submissions, she found that “IGH’s superior proposal warrant[ed]
a price premium, particularly [because] IGH’s proposal [was] the sole technically
superior proposal, and so greatly exceeded all of the acceptably rated proposals.” Id. at
767. Accordingly, she awarded the FEPP contract to IGH. Id. at 767–68.
III. GAO Protest
Following the award, DysTech and two other offerors, TENICA and Associates,
LLC and TEK Source USA, Inc. filed protests with the Government Accountability
Office (GAO). See AR Tab 47. Before the GAO, DysTech argued that the CO erred by
(1) rating its technical proposal “acceptable” rather than “outstanding;” (2) rating three of
its past performance references as “somewhat relevant” rather than “relevant;” (3) giving
IGH a past performance rating of “satisfactory confidence” despite the small dollar value
of its past performance references relative to the scope of the contract; and (4) failing to
properly conduct the trade-off analysis when assessing the offerors’ prices. Id. at 898–99,
902–06.
The GAO denied the protests on March 2, 2016. Id. at 907. It found “no basis to
question” the CO’s determination that DysTech’s technical proposal did not “exceed[]
[the] stated requirements, as reflected through an innovative, comprehensive, outstanding
approach.” Id. at 898 (internal quotation omitted). Nor did it find a basis to question the
CO’s decision to rate its past performance references as “somewhat relevant.” Id. at 902.
The GAO also rejected the protesters’ view of the CO’s responsibility in assessing IGH’s
past performance references—i.e., that she should have based the ratings “solely on
magnitude—dollar value—of past contracts.” Id. at 903. Rather, the solicitation indicated
that past performance would be assessed based on its “logical connection with the matter
under consideration;” and IGH’s past performance references indicated that it had
performed “numerous tasks . . . linked to numerous [solicitation] requirements.” Id. at
903–04 (internal quotation omitted). Finally, the GAO found no reason to question the
CO’s trade-off analysis, given that “the technical factor was the most important factor”
and that IGH submitted a superior technical proposal. Id. at 906–07.
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IV. Proceedings in this Court
On March 18, 2016, DysTech filed its complaint in this Court, along with a
motion for a preliminary injunction. ECF Nos. 1–2. As it had before the GAO, DysTech
questioned the CO’s evaluation of IGH’s past performance references, claiming that the
dollar value of those contracts was “miniscule compared to the contract value [of] the
current procurement.” Compl. ¶ 22. Further, DysTech contended that the CO should have
given it a more favorable past performance rating because “over the totality of [its]
references” it had supported several branches of the military nationwide. Id. ¶¶ 24–25.
DysTech also alleged that DHRA “breached the duty of good faith, fair dealing, and
honest consideration” by “fail[ing] to follow the stated terms of the [solicitation] in
making its award decision” and by “favoring . . . IGH’s proposal by failing to downgrade
it where IGH failed to properly respond to the [solicitation’s] requirements.” Id. ¶ 37. It
requested that the Court “enjoin[] DHRA from continuing performance of any contract
awarded to IGH . . . until the Agency has performed a re-evaluation of the offers
submitted in response to the Solicitation.” Id. at 11.
Pursuant to Rules of the Court of Federal Claims (RCFC) 24(a)(2), IGH
intervened in the case on March 22, 2016. ECF No. 9. At a status conference held that
day, the parties agreed to resolve the case through expedited briefing of cross-motions for
judgment on the administrative record, thus obviating the need for preliminary injunctive
relief. Status Conf. at 5:18–6:06 (March 22, 2016). The cross-motions have been filed
and are now ripe for decision.
DISCUSSION
I. Jurisdiction
The Court of Federal Claims has “jurisdiction to render judgment on an action by
an interested party objecting to . . . a proposed award or the award of a contract 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). A party is an “interested party” with
standing to bring suit under 28 U.S.C. § 1491(b)(1) if the party “is an actual or
prospective bidder whose direct economic interest would be affected by the award of the
contract.” Orion Tech., Inc. v. United States, 704 F.3d 1344, 1348 (Fed. Cir. 2013). A
bidder has a direct economic interest if the alleged errors in the procurement caused it to
suffer a competitive injury or prejudice. Myers Investigative & Sec. Servs., Inc. v. United
States, 275 F.3d 1366, 1370 (Fed. Cir. 2002) (holding that “prejudice (or injury) is a
necessary element of standing”).
In a post-award bid protest, the protestor has suffered prejudice if it would have
had a “‘substantial chance’” of winning the award “but for the alleged error in the
procurement process.” Info. Tech. & Applications Corp. v. United States, 316 F.3d 1312,
1319 (Fed. Cir. 2003) (quoting Alfa Laval Separation, Inc. v. United States, 175 F.3d
1365, 1367 (Fed. Cir. 1999)); see also Weeks Marine, Inc. v. United States, 575 F.3d
1352, 1359 (Fed. Cir. 2009); Rex Serv. Corp. v. United States, 448 F.3d 1305, 1308 (Fed.
8
Cir. 2006). In other words, the protestor’s chance of securing the award absent the
alleged error “must not have been insubstantial.” Info. Tech., 316 F.3d at 1319.
Neither the government nor IGH disputes that DysTech is an “interested party” in
this case. DysTech was, of course, an actual offeror for the contract in question; and, as
noted above, the CO determined that DysTech was second in line for the contract award
behind IGH. See AR Tab 36 at 760–61. It follows, therefore, that DysTech had a
substantial chance of winning the award but for the errors it alleges.
II. Standard for Granting Judgment on the Administrative Record
Pursuant to RCFC 52.1, the Court reviews an agency’s procurement decision
based on the administrative record. Bannum, Inc. v. United States, 404 F.3d 1346, 1354
(Fed. Cir. 2005). The Court makes “factual findings under RCFC [52.1] from the record
evidence as if it were conducting a trial on the record.” Id. at 1357. Thus, “resolution of a
motion respecting the administrative record is akin to an expedited trial on the paper
record, and the Court must make fact findings where necessary.” Baird v. United States,
77 Fed. Cl. 114, 116 (2007). The court’s inquiry is “whether, given all the disputed and
undisputed facts, a party has met its burden of proof based on the evidence in the record.”
A&D Fire Prot., Inc. v. United States, 72 Fed. Cl. 126, 131 (2006). Unlike a summary
judgment proceeding, genuine issues of material fact will not foreclose judgment on the
administrative record. Bannum, Inc., 404 F.3d at 1356.
III. Standard of Review in Bid Protest Cases
The court reviews challenges to a contract award under the same standards used
to evaluate an agency action under the Administrative Procedure Act, 5 U.S.C. § 706. See
28 U.S.C. § 1491(b)(4) (stating that “[i]n any action under this subsection, the courts
shall review the agency’s decision pursuant to the standards set forth in section 706 of
title 5”). Thus, to successfully challenge an agency’s procurement decision, a plaintiff
must show that the agency’s decision was “arbitrary, capricious, an abuse of discretion,
or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A); see also Bannum, Inc.,
404 F.3d at 1351. This “highly deferential” standard “requires a reviewing court to
sustain an agency action evincing rational reasoning and consideration of relevant
factors.” Advanced Data Concepts, Inc. v. United States, 216 F.3d 1054, 1058 (Fed. Cir.
2000) (citing Bowman Transp., Inc. v. Arkansas-Best Freight Sys., Inc., 419 U.S. 281,
285 (1974)).
In a bid protest action, the disappointed offeror “bears a heavy burden” in
attempting to show that a procuring agency’s decision lacked a rational basis. Impresa
Construzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324, 1338 (Fed. Cir.
2001). And “the protestor’s burden is greater in [a] negotiated procurement, as here, than
in other types of bid protests because ‘the contracting officer is entrusted with a relatively
high degree of discretion.’” Glenn Defense Marine (ASIA), PTE Ltd. v. United States,
720 F.3d 901, 907 (Fed. Cir. 2013) (quoting Galen Med. Assocs., Inc. v. United States,
369 F.3d 1324, 1330 (Fed. Cir. 2004)). Further, the court “accords contracting officers an
even greater degree of discretion when the award is determined based on the best value to
9
the agency.” Glenn Defense, 720 F.3d at 908 (internal citations omitted); see also
Croman Corp. v. United States, 724 F.3d 1357, 1363 (Fed. Cir. 2013); Galen Med.
Assocs., 369 F.3d at 1330; Banknote Corp. of Am. Inc. v. United States, 365 F.3d 1345,
1355 (Fed. Cir. 2004); Am. Tel. & Tel. Co. v. United States, 307 F.3d 1374, 1379 (Fed.
Cir. 2002); Advanced Data Concepts, 216 F.3d at 1058; E.W. Bliss Co. v. United States,
77 F.3d 445, 449 (Fed. Cir. 1996); Lockheed Missiles & Space Co. v. Bentsen, 4 F.3d
955, 958–59 (Fed. Cir. 1993). In short, an agency’s contract award is “least vulnerable to
challenge” when it is based on a best-value determination. PlanetSpace Inc. v. United
States, 96 Fed. Cl. 119, 125 (2010) (citing Galen Med. Assocs., 369 F.3d at 1330).
Given this highly deferential standard of review, the court’s function is limited to
“determin[ing] whether ‘the contracting agency provided a coherent and reasonable
explanation of its exercise of discretion.’” Impresa Construzioni, 238 F.3d at 1332–33
(quoting Latecoere Int’l, Inc. v. U.S. Dep’t of Navy, 19 F.3d 1342, 1356 (11th Cir.
1994)). To prevail, the agency need only articulate a “rational connection between the
facts found and the choice made;” and the court will “uphold a decision of less than ideal
clarity if the agency’s path may reasonably be discerned.” Motor Vehicle Mfrs. Ass’n v.
State Farm Mut. Auto Ins. Co., 463 U.S. 29, 43 (1983) (quotations omitted). Thus, the
agency’s action is vulnerable to challenge only if the plaintiff can show that 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]
is 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) (alteration in original) (quoting State Farm, 463 U.S. at 43).
IV. Merits
A. Evaluation of IGH’s Technical Proposal
It is well-established that “[t]he evaluation of proposals for their technical
excellence or quality is a process that often requires the special expertise of procurement
officials, and thus reviewing courts give the greatest deference possible to these
determinations.” One Largo Metro, LLC v. United States, 109 Fed. Cl. 39, 74 (2013)
(alteration in original) (quoting Beta Analytics Int’l, Inc. v. United States, 67 Fed. Cl.
384, 395 (2005)); see also E.W. Bliss Co., 77 F.3d at 449 (“[M]atters [such] as technical
ratings . . . involve discretionary determinations of procurement officials that a court will
not second guess.”). In this case, DysTech claims that because its proposal was assigned
two strengths and no weaknesses, “under the [a]gency’s stated evaluation criteria, [its]
proposal should have been rated [o]utstanding.” Pl.’s Mem. in Supp. of its Mot. for J. on
the Admin. R. (Pl.’s Mem.) at 29, ECF No. 23. It further argues that the agency erred
when it rated IGH’s technical proposal “outstanding,” contending that the outstanding
rating assigned IGH was neither “reasonable” nor “consistent with the solicitation and
evaluation criteria.” See id. at 22. Both of these contentions lack merit.
As set forth above, the solicitation specified that a proposal would merit an
“outstanding” technical rating if it was “complete in terms of the basic content and level
of information the Government seeks” and also “exceed[ed] stated requirements, as
10
reflected through an innovative, comprehensive, and outstanding approach.” AR Tab 2 at
74. Further, an “outstanding” proposal would demonstrate a “high probability of success
and minimal risk that [the] Offeror would fail to meet the quantity, quality, and schedule
requirements.” Id. at 74–75.
As is readily apparent, the evaluation criteria do not establish that a proposal be
rated outstanding based upon either the number of “strengths” identified by the agency or
the fact that no weaknesses have been identified. As noted by the Source Selection
Authority, “[w]hile [DysTech] received no weaknesses, [its] strengths were limited to the
training of Employment Coordinators.” AR Tab 37 at 765. This explanation for the
agency’s assignment of an acceptable rather than outstanding rating provides adequate
justification for the agency’s conclusion that DysTech’s proposal, unlike IGH’s, did not
“exceed stated requirements as reflected through an innovative, comprehensive, and
outstanding approach.” See AR Tab 2 at 74. Therefore, there is no merit to DysTech’s
assertion that the agency’s decision to assign it an acceptable rather than outstanding
rating was arbitrary, capricious, or contrary to law.
There is further no merit to DysTech’s argument that IGH’s technical proposal
“did not address multiple PWS requirements” and therefore did not merit an outstanding
rating. See Pl.’s Mem. at 22. DysTech’s first claim is that IGH failed to address section
2.2 of the PWS, which described the contours of FEPP’s EIP component. See Pl.’s Mem.
at 23; AR Tab 2 at 10. Thus, section 2.2 explained that EIP “utilizes a high-tech/high-
touch approach to foster employer partnerships” and that it “delivers employment
assistance to Guard and Reserve Service members via the Veterans Employment Center
(VEC) website www.ebenefits.va.gov/jobs, individualized case management and
participation in job fairs and Yellow Ribbon Reintegration events.” AR Tab 2 at 10.
According to DysTech, DHRA “did not recognize that IGH did not address PWS 2.2 in
its proposal,” even though it “assigned weaknesses, significant weaknesses, or
deficiencies to . . . [other] offerors for failing to discuss the VEC or not demonstrating an
understanding of the VEC.” Pl.’s Mem. at 23.
Contrary to DysTech’s argument, however, the TEB reasonably concluded that
IGH’s proposal did discuss the VEC and did demonstrate an understanding of its
importance. Thus, although IGH’s proposal did not use the term “VEC website,” it
identified the website by its URL—“ebenefits.va.gov”—and described it as one of the
“highest priority resources” about which new employees would be trained. See AR Tab
10 at 206. The TEB reasoned that IGH’s proposal “recognized the importance of the
eBenefits.va.gov website by proposing to ensure that they would train all full-time staff
to be able to assist Service members.” AR Tab 25 at 611.
DysTech’s second contention—that IGH’s offer was “silent on PWS Section 5”—
is equally without merit. See Pl.’s Mem. at 24. That section, titled “Reports and
Information,” listed several “required work reports” that the contractor was to submit at
specified intervals. See AR Tab 2 at 22–24. Contrary to DysTech’s contention, IGH
committed in its proposal to submitting reports on a weekly and monthly basis that would
“measure and report against milestone plans,” AR Tab 10 at 221; and it singled out the
key manager responsible for all “formal reporting to FEPP contacts as specified in the
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PWS,” id. at 219. Thus, the TEB reasonably concluded that IGH “satisfied the
deliverables requirement from Section 5 of the PWS,” because its proposal adequately
“referenced reports and reporting procedures applicable to FEPP,” notwithstanding that
the proposal did not list the individuals responsible for the reports using the particular
acronyms found in the PWS. AR Tab 25 at 611.
Third, DysTech claims that IGH’s proposal did not include a plan to hire a Mobile
Job Store Scheduler (MJSS). See Pl.’s Mem. at 24–25. DysTech contends that “IGH did
not reference the MJSS . . . in its proposal in any way.” Id. at 25. It also contends that
IGH failed to discuss how persons hired for certain key positions (identified in section
4.21 of the PWS) would interact with each other and with outside agencies such as the
State Department, or how those individuals would submit certain reports to DHRA. Id. at
25–26. Again, DysTech claims that other offerors were penalized if their proposals
lacked this same information. Id. at 26.
These contentions also lack merit. The MJSS’s duties are outlined in section
4.21.5 of the PWS, and include “[b]e[ing] knowledgeable of FEPP missions and
programs,” “[d]evelop[ing] an annual scheduling calendar,” and “establish[ing] routine
logistics coordination . . . for MJS scheduling, support, and event execution.” AR Tab 2
at 21. In evaluating IGH’s proposal, the TEB noted that the proposal “incorporated the
MJSS duties within its discussion of how it will drive event logistics and collaboration
across FEPP,” and that the proposal “align[ed] with the normal primary duties of the
[MJSS].” AR Tab 25 at 612. And the TEB similarly found that “the duty descriptions for
the [various] positions . . . proposed by IGH . . . corresponded” to the duty descriptions
set forth in section 4.21 of the PWS, observing that the TEB “did not penalize any offeror
for using different names or titles for the positions so long as they would satisfy the
performance requirements.” Id.
Thus, the record does not support DysTech’s claim that IGH failed to address
several solicitation requirements that served as the basis for assigning weaknesses to
other offerors. In fact it shows the opposite. Accordingly, DysTech has not shown that
the agency’s decision to assign IGH’s technical proposal an “outstanding” rating was
arbitrary, capricious, or contrary to law.
B. Evaluation of IGH’s Past Performance
In addition to challenging the assignment of an outstanding rating to IGH’s
technical proposal, DysTech’s argues that the agency erred in finding that IGH’s past
performance references were “somewhat relevant”—i.e., that they “involved some of the
magnitude of effort and complexities this solicitation requires.” See AR Tab 2 at 75.
According to DysTech, this error led the agency to improperly assign IGH a “satisfactory
confidence” rating based on IGH’s satisfactory performance of those recent and
“somewhat relevant” contracts. Pl.’s Mem. at 11. In DysTech’s view, “IGH’s [references]
could not have received any rational rating under past performance higher than Not
Relevant because IGH has never performed the work required under the RFP.” Id.
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As with an agency’s evaluation of a technical proposal, courts give “the greatest
deference possible . . . to the agency” when reviewing an agency’s evaluation of an
offeror’s past performance. Sci. and Mgmt. Res., Inc. v. United States, 117 Fed. Cl. 54,
65 (2014) (quoting Gulf Grp. Inc. v. United States, 61 Fed. Cl. 338, 351 (2004)); see also
Glenn Defense, 720 F. 3d at 911 (observing that an agency’s past performance evaluation
is “owed deference as it is among ‘the minutiae of the procurement process,’ which [the]
court ‘will not second guess.’” (quoting E.W. Bliss Co., 77 F.3d at 449)).
Here, the solicitation set a relatively low bar for finding an offeror’s performance
on another contract “somewhat relevant.” As noted, under the solicitation, relevancy is
indicated where the performance of the prior contract was recent and has a “logical
connection” with performance under the solicitation. AR Tab 2 at 73. A “somewhat
relevant” reference is one for which “[p]resent/past performance effort involved some of
the magnitude of effort and complexities this solicitation requires.” Id. at 75 (emphasis
supplied). A “not relevant” rating, by contrast, would mean that the “[p]resent/past
performance effort did not involve any of the magnitude of effort and complexities this
solicitation requires.” Id. (emphasis supplied).
In this case, the agency provided adequate explanation to support its conclusion
that IGH’s past performance references were “somewhat” rather than “not” relevant.
Thus, to determine the relevancy of IGH’s past performance references, the TEB
analyzed each of the references in detail. See AR Tab 24 at 603–04. In each instance, the
TEB found that IGH had performed tasks that were similar in kind and complexity to
those required by the solicitation, while also acknowledging that the “magnitude of
effort,” when measured in terms of the dollar amount of the contract, was significantly
smaller than that which would be required to fulfill the requirements of the present
solicitation. See id. (listing specific examples of the “[s]imilarity of work” and
“numerous like tasks” performed during IGH’s past contracts).
For example, the TEB found “somewhat relevant” to IGH’s ability to perform the
requirements of this solicitation its performance of an Army Community Services
Contract. See id. at 603; AR Tab 36 at 739. While the TEB acknowledged that the dollar
amount of that contract was much smaller, it concluded that—consistent with the tasks
required to perform the solicitation’s requirements—the Army contract also included
management of web content, providing support outside of duty hours, knowledge of DTS
(the Defense Travel System) and USERRA (the Uniformed Service Employment Rights
and Restoration Act), and direct support of employers, National Guard and Reserve
members, and ESGR volunteers. AR Tab 24 at 603. “Further,” the TEB observed, under
the Army Community Services contract, IGH has “provided direct support to ESGR,
YRRP, and EIP programs.” Id.
IGH’s contract with HUD for Grant Management Support was also “somewhat
relevant” because, among other reasons, “it requires familiarity with the JFTR (Joint
Federal Travel Regulations) and DTS, it consults USERRA, it includes quality assurance,
[and] the effort crosses all 50 states servicing Guard and Reserve.” Id. at 603–04; see also
AR Tab 36 at 739. Finally, IGH’s contract with the VA involving rural veterans
coordination included relevant tasks such as providing assistance in the development of
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an annual budget and spending plan and in outreach to Guard and Reserve in rural areas,
as well as partnering with employment assistance agencies. AR Tab 24 at 604; see also
AR Tab 36 at 739.
The agency also explained and documented why it assigned IGH a performance
confidence rating of “satisfactory confidence.” Under the solicitation, a rating of
“satisfactory confidence” meant that “[b]ased on the offeror’s performance record, the
Government has an expectation that the offeror will successfully perform the required
effort.” AR Tab 10 at 75. In assigning IGH a rating of “satisfactory confidence,” the CS
reviewed the TEB’s report along with information from the PPIRS and questionnaires
completed by the references. AR Tab 35 at 705. The CS explained that “[a]lthough the
magnitude of the references are below that of the [solicitation’s] requirement[s], IGH has
performed efforts that collectively involve much of the complexities of the [solicitation’s]
requirement[s].” Id. The “positive feedback [IGH] received on their references” led the
CS to have “an expectation that IGH will successfully perform the [solicitation’s]
requirement[s].” Id. Accordingly, under the CS’s analysis, a rating of “satisfactory
confidence” was warranted; and the CO subsequently relied on the CS’s analysis when
conducting the trade-off analysis. See AR Tab 36 at 748, 761–62.
DysTech does not seriously contest the agency’s determination that at least some
of the work IGH performed on its recent contracts was similar in complexity to at least
some of the work required under the solicitation. Nonetheless, it faults the agency for not
finding that IGH’s references were “not relevant” at all in light of their relatively low
dollar value.3 See Pl.’s Mem. at 11.
This objection amounts to nothing more than a disagreement with the balance
struck and the conclusion reached by the agency in the exercise of its discretion. Nothing
in the solicitation set a bar on the dollar value of a recent contract, below which it would
be considered irrelevant. In fact, the contract was a 100% set aside for small businesses.
See AR Tab 1 at 2. Further, as GAO recognized in rejecting a similar argument made
before it, the notion that the relative dollar value of past contracts would control a
determination of their relevance “would read out of the solicitation the agency’s more
specific definition of relevancy: performance with a ‘logical connection with the matter
under consideration’—the FEPP tasks.” See AR Tab 47 at 903 (quoting AR Tab 2 at 73).
As GAO observed, the argument “would also ignore the past performance questionnaire’s
request for information regarding the ‘scope of work and complexity/diversity of tasks
performed,’ the ‘skills/expertise required,’ and relevancy.” Id. (quoting AR Tab 2 at 77).
Further, the “somewhat relevant” rating IGH’s references received was the
second-lowest rating available, behind “very relevant”—“[p]resent/past performance
3
In its motion, DysTech also advanced an argument that IGH’s proposal improperly
relied on “the apparent past performance of its proposed subcontractors.” See Pl.’s Mem.
at 11. It pointed to no evidence in the record to support this claim, however, and counsel
for DysTech abandoned this claim at oral argument. Oral Argument at 14:06–47 (June
22, 2016).
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effort involved essentially the same magnitude of effort and complexities this solicitation
requires”—and “relevant”—“[p]resent/past performance effort involved much of the
same magnitude of effort and complexities this solicitation requires.” See AR Tab 2 at
75. The only other available rating was “not relevant”—“[p]resent/past performance
effort did not involve any of the magnitude of effort and complexities this solicitation
requires”—and the agency reasonably concluded that IGH’s references deserved a higher
rating based on the “similarity of work” and “numerous like tasks” IGH had performed in
the course of those contracts. See AR Tab 24 at 603–04; AR Tab 35 at 705.
In sum, the agency reasonably exercised its discretion when it rated IGH’s past
performance references as “somewhat relevant” and gave it a performance confidence
rating of “satisfactory confidence.” Accordingly, the agency did not err in its past
performance evaluation.
C. Trade-Off Analysis and Best Value Determination
Finally, DysTech questions the agency’s trade-off analysis and its decision that
IGH’s offer represented the best value to the government. “Procurement officials,”
however, “have substantial discretion to determine which proposal represents the best
value for the government.” Glenn Defense, 720 F.3d at 908 (quoting E.W. Bliss Co., 77
F.3d at 449). Thus, “[w]here agency officials reasonably and properly exercise their
discretion when conducting a best value analysis, the Court will not disturb an agency
award.” Blackwater Lodge & Training Ctr., Inc. v. United States, 86 Fed. Cl. 488, 514
(2009) (citing E.W. Bliss Co., 77 F.3d at 449). And to demonstrate the proper exercise of
discretion, the agency need only “document[] its final award decision and include[] the
rationale for any business judgments and tradeoffs made.” Id.; see also Banknote Corp. of
Am., Inc. v. United States, 56 Fed. Cl. 377, 390 (2003) (“Ultimately, th[e] court’s task is
to ensure that the contracting officer examined the relevant data and articulated a
‘rational connection between the facts found and the choice made.’” (quoting State Farm,
463 U.S. at 43)); FAR § 15.101-1(c) (when an agency conducts a trade-off process, “[t]he
perceived benefits of the higher priced proposal shall merit the additional cost, and the
rationale for tradeoffs must be documented”).
DysTech asserts that the CO “articulated no basis” for choosing IGH’s higher-
priced offer over its lower-priced one, and, relatedly, that the CO failed to “identify and
describe the specific advantages” that made IGH’s proposal superior to DysTech’s. See
Pl.’s Mem. at 29. These assertions ignore the explanation found in the CO’s award
rationale, which clearly identifies the features of IGH’s proposal that the CO “deemed
advantageous” and that “exceed[ed] the government’s requirements.” See AR Tab 36 at
761–62. Specifically, the CO observed that staff members would receive “face to face
training” that would give them “a better understanding of their roles and responsibilities,
thereby providing better support to their customers;” that IGH would “collect regular
feedback following ITIL, ISO, and PMBOK best practices in an attempt to facilitate
continuous improvement;” that IGH’s proposed employee screening process would
“ensure that FTS are fully proficient in the applications and systems the government
requires;” and that IGH’s proposed advisory board, which would “consist of senior
leadership from each of the teaming partners,” would “provide an additional resource to
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meet the needs of reserve component service members who require specialized
assistance.” Id.
Likewise, in comparing DysTech’s proposal with IGH’s proposal, the SSA
reported that DysTech’s strengths “were limited to the training of Employment
Coordinators,” whereas IGH’s strengths “were evident along the program’s continuum.”
AR Tab 37 at 765. The SSA highlighted the portions of IGH’s proposal describing “the
manner by which employees were vetted” and “their individually focused development
and retention.” Id. She also noted that IGH planned to “employ continuous improvement
tools and practices to evolve with the program’s dynamic nature,” and that the “dedicated
advisory board and clear articulation and integration of each of the FEPP’s distinct, yet
related services” exceeded the government’s requirements. Id. at 765–66. In her view,
“[e]ach of IGH’s strengths will have beneficial effects across the FEPP program
compared to the narrow focus of positive qualities presented by the other offerors.” Id. at
766. Thus, she concluded, “IGH’s superior proposal warrant[ed] a price premium,
particularly [because] IGH’s proposal [was] the sole technically superior proposal, and so
greatly exceeded all of the acceptably rated proposals.” Id. at 767.
These detailed explanations more than suffice to document the agency’s proper
exercise of discretion, especially because the technical and past performance factors,
“when combined, [were] significantly more important than cost or price.” See AR Tab 2
at 74; see also Structural Assocs., Inc./Comfort Systems USA (Syracuse) Joint Venture v.
United States, 89 Fed. Cl. 735, 749 (2009) (rejecting plaintiff’s argument that the agency
should have selected its lower-priced, technically inferior proposal where solicitation
specified that non-price factors were significantly more important than price).
Accordingly, the agency did not err in conducting the best-value analysis and awarding
the contract to IGH.
CONCLUSION
For the reasons discussed above, the government’s and the Intervenor’s cross-
motions for judgment on the administrative record are GRANTED, and DysTech’s
cross-motion for judgment on the administrative record is DENIED. The Clerk of the
Court is directed to enter judgment accordingly.
IT IS SO ORDERED.
s/ Elaine D. Kaplan
ELAINE D. KAPLAN
Judge
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