Mercom, Incorporated v. United States

In the United States Court of Federal Claims
No. 16-1475C
(Filed Under Seal: March 14, 2017)
(Reissued: March 17, 2017)
)
MERCOM, INC., ) Post-award bid protest; challenge to
) agency’s technical rating of protester’s
Plaintiff, ) proposal
)
v. )
)
UNITED STATES, )
)
Defendant. )
)
H. Todd Whay, The Whay Law Firm, Sterling, Virginia for plaintiff.
P. Davis Oliver, Trial Attorney, Commercial Litigation Branch, Civil Division, United
States Department of Justice, Washington, D.C. for defendant. With him on the briefs were
Joyce R. Branda and Chad A. Readler, Acting Assistant Attorney Generals, Civil Division, and
Robert E. Kirschman, Jr., Director, and Elizabeth M. Hosford, Assistant Director, Commercial
Litigation Branch, Civil Division, United States Department of Justice, Washington, D.C.
OPINION AND ORDER1
LETTOW, Judge.
This post-award bid protest arises from a solicitation by the United States Department of
the Navy, Space and Naval Warfare Systems Center Atlantic (“Navy” or “agency”) for
commercial, off-the-shelf command and control equipment, software, and hardware licenses and
maintenance. The Navy anticipated making multiple awards for indefinite delivery/indefinite
quantity (“IDIQ”), firm fixed-price contracts from this solicitation, and ultimately issued 21
contracts. Mercom, Inc. (“Mercom”), an incumbent contractor and offeror on the solicitation,
was not among the awardees because its proposal received a rating of “Unacceptable” on a
technical sub-factor specified in the solicitation. Mercom initially protested the Navy’s award
1
Because this opinion and order might have contained confidential or proprietary
information within the meaning of Rule 26(c)(1)(G) of the Rules of the United States Court of
Federal Claims (“RCFC”) and the protective order entered in this case, it was initially filed under
seal. The parties were requested to review this decision and provide proposed redactions of any
confidential or proprietary information. No redactions were requested.
decision at the Government Accountability Office (“GAO”), alleging that the agency failed to
follow the terms of the solicitation and that the “Unacceptable” rating assigned to Mercom’s
proposal was unreasonable. On October 25, 2016, GAO denied Mercom’s protest on all
grounds. Two weeks later, Mercom filed a bid protest in this court.
Mercom seeks to permanently enjoin the Navy from taking any action with regard to the
solicitation until it awards a contract to Mercom or reevaluates Mercom’s proposal and issues a
new best value determination. In its protest, Mercom asserts that the Navy unreasonably
assigned an “Unacceptable” rating to the technical support services sub-factor of the solicitation
and failed to follow the terms of the solicitation by rolling up the “Unacceptable” sub-factor
rating to the proposal as a whole. Pending before the court are the parties’ cross-motions for
judgment on the administrative record. A hearing was held on February 17, 2017.
For the reasons stated, the court has concluded that plaintiff’s motion should be denied
and the government’s motion should be granted.
FACTS2
A. The Agency’s Mission
The Space and Naval Warfare Systems Center Atlantic, also referred to as
“SPAWARSYSCEN ATLANTIC” and “SSC LANT,” is a Navy Working Capital Fund
(“NWCF”) Engineering Center. AR 7-258.3 The primary mission of the agency is “to enable
knowledge superiority for the Joint Warfighter through the development, acquisition, and life
cycle support of effective, integrated Command, Control, Communications, Computers, Combat
Systems, Intelligence, Surveillance, and Reconnaissance (C5ISR) capabilities.” Id. The agency
delivers “speed-to-capability” in support of the Department of Defense and the Navy to fulfill
this mission. Id.
2
The recitations that follow constitute findings of fact by the court drawn from the
administrative record of the procurement filed pursuant to RCFC 52.1(a). See Bannum, Inc. v.
United States, 404 F.3d 1346, 1356 (Fed. Cir. 2005) (specifying that bid protest proceedings
“provide for trial on a paper record, allowing fact-finding by the trial court”).
3
Citations to the administrative record refer to the record as filed on November 22, 2016.
The record is paginated sequentially and is also divided into tabs. In citing to the administrative
record, the court will first designate the tab, followed by the page number, e.g., AR 7-258 refers
to page 258, which is located in tab 7 of the record.
2
B. Solicitation No. N65236-13-R-0016
On January 8, 2015, the agency issued its request for proposals (“RFP”) (solicitation
number N65236-13-R-0016) for commercial, off-the-shelf command and control equipment and
related services. AR Tab 6.4 The RFP contemplates multiple IDIQ contract awards with a
cumulative value not to exceed $750 million. AR 6-152; -177. The contract period
contemplated by the solicitation is five years, with a one-year base period and four option years.
AR 6-152.
The purpose of the contracts is to “provid[e] Commercial Off-The-Shelf (COTS)
equipment to [the Department of Defense] and [f]ederal [c]ivilian [a]gencies that will meet
existing and future mission support requirements.” AR 7-258. The solicitation covers
commercial, off-the-shelf command and control equipment, as well as software and hardware
licenses and maintenance associated with the equipment “not available via mandatory sources.”
Id. This includes license and maintenance renewals, warranties, and “associated incidental
services.” Id.
The evaluation criteria in Section M of the RFP stated that the agency would conduct a
best value analysis and award the contracts based on an assessment of five factors: (A) reseller
relationships/agreements, (B) technical capability, (C) past performance, (D) small business
participation, and (E) price. See AR 7-286 to -91.5 Factor (A) contained two sub-factors, A1-
reseller/purchasing agreements and A2-Original Equipment Manufacturers (OEM) relationships.
AR 7-287 to -88. Factor (B) also contained two sub-factors, B1-systems and equipment and B2-
technical support services. AR 7-289. The agency told offerors that the non-price evaluation
factors were more important than price. AR 7-287. Among the non-price factors and sub-
factors, factor (A) was more important than factor (B), sub-factor A2 was more important than
sub-factor A1, sub-factor B1 was more important than sub-factor B2, and factors (C) and (D)
would be evaluated on an Acceptable/Unacceptable basis. AR 7-287 to -91.
Sub-factor B2 is specifically at issue in Mercom’s protest. See Pl.’s Mot. for Judgment
Upon the Administrative Record (“Pl.’s Mot.”) at 1, ECF No. 19. To demonstrate technical
capability under factor (B), offerors were required to “identify current contracts which are
relevant to the requirements of th[e] [RFP]” and “verify the[ir] specific demonstrated experience
in performing the work identified.” AR 8-303. Specifically with regard to sub-factor B2, the
offerors needed to demonstrate experience in: (1) “[p]erforming maintenance, overhaul,
troubleshooting and repair of system(s) and/or equipment” (sub-sub-factor B2.1), and (2)
“[c]onfiguration, integration, packaging, kitting and installation of equipment” (sub-sub-factor
B2.2). AR 8-304. To demonstrate this experience, the offerors were required to submit
information regarding current and relevant contracts that encompassed work performed within
4
The solicitation was amended on February 10, 2015, February 13, 2015, and March 12,
2015. See AR Tabs 7-9. Tab 7 contains the most updated version of Section M, which explains
evaluation criteria and basis for awards, and Tab 8 contains the most updated version of Section
L, which includes clauses incorporated by reference and guidelines for proposals.
5
A sixth factor, business practices, was included in the original solicitation but was
deleted in the first amendment to the solicitation. See AR 6-229; 7-287 to -91.
3
the last five years of a similar nature and scope to the requirements of the solicitation. AR 8-303.
The solicitation requested at least four but no more than ten contract references with a
cumulative invoiced value of at least $30 million. Id. Failing to include the minimum number of
current and relevant contract references would result in an “Unacceptable” rating for factor (B)
and the proposal would be rejected and rendered ineligible for a contract award. AR 7-289. The
Navy also reserved the right to consider other references and information not provided by the
offerors. Id.
The Navy assessed the offerors’ proposals under factor (B) in two respects: (1) “[d]epth
of experience (the frequency in which an offeror has completed same or similar tasks across the
range of tasks within the element),” and (2) “[b]readth of experience (the multiplicity or variety
of programs and/or projects [where] an offer[or] has completed same or similar tasks and the
range of tasks within the element).” AR 7-289. Sub-factors B1 and B2 of the proposals were
assigned an adjectival rating of “Outstanding,” “Good,” “Acceptable,” “Marginal,” or
“Unacceptable” based on “an overall assessment of strengths, weaknesses, deficiencies, and risk
for the entire sub[-]factor.” AR 3-101; 7-289. The ratings generally correspond to the following
assessments:
AR 3-101. Factor (B) was then assigned an adjectival rating on the same scale based on the
agency’s assessment of the two sub-factors. See AR 7-289.
The RFP also instructed offerors that their non-price proposals must be “sufficient to
enable evaluators to make a thorough and complete evaluation, and to arrive at a sound
determination as to whether the requirements of th[e] solicitation are understood and satisfied.”
AR 8-301. To accomplish this goal, offerors were to be “sufficiently specific, detailed, and
complete to demonstrate clearly and fully that [they] ha[d] a thorough understanding of the
requirements for, and technical problems inherent in, the requirements of the solicitation.” Id.
In this respect, the solicitation warned:
4
A concise and comprehensive proposal is desired. Organization, clarity, accuracy of
information, relevance, and completeness are of prime importance. Statements such as
“will comply,” or “noted and understood” without supporting narrative to define
compliance are not acceptable. Cursory responses or responses which merely reiterate or
reformulate solicitation language will not be considered as satisfying the requirements of
the RFP or as demonstrating the ability to perform.
Id.
A proposal that did not meet the requirements as stated in the RFP would be deemed
unacceptable and could be “rejected without further evaluation.” AR 7-287. An “Unacceptable”
rating for any non-price factor would result in an “Unacceptable” rating for the proposal as a
whole, rendering the offeror ineligible for a contract award. Id.
C. Evaluation of Mercom’s Proposal
The offerors’ proposals were evaluated by a source selection team assembled by the
Navy, consisting of the Source Selection Authority (“SSA”), the Source Selection Advisory
Council (“SSAC”), and the Source Selection Evaluation Board (“SSEB”), among other
procurement officials. AR 2-8. The SSEB evaluated each proposal and prepared a narrative
report of its evaluations, the SSAC reviewed the SSEB’s analysis of each proposal as it
developed its comparative reports, and the SSA made the ultimate best-value assessments and
source selection decisions. AR 2-8 to -10.
The SSA issued its source selection decision on June 1, 2016, in which Mercom received
an overall technical rating of “Unacceptable” for factors (A) and (B). AR 20-1047. In light of
this rating, the SSA deemed Mercom ineligible to receive a contract award. See AR 21-1051.
The SSEB specifically evaluated Mercom’s proposal as follows:
AR 18-772. To arrive at the “Unacceptable” rating for factor (B), the SSEB evaluated sub-
factors B1 and B2 as follows:
5
AR 18-868. Mercom had submitted ten contract references for factor (B), all of which met the
currency and relevancy criteria of the RFP. AR 18-867. In evaluating these references, the
SSEB determined that Mercom “failed to demonstrate any technical capability/experience as it
pertains to the [s]ub[-f]actor B2 requirements.” AR 18-871.
The SSEB identified two “[s]ignificant [w]eaknesses” in Mercom’s proposal respecting
sub-factor B2. AR 18-869 to -71.6 First, “Mercom failed to document/substantiate a single
instance in any of [its] submitted contract references of demonstrating experience in performing
maintenance, overhaul, troubleshooting and repair of system(s) and/or equipment” as required by
sub-sub-factor B2.1 of the RFP. AR 18-869. The SSEB considered that Mercom’s proposal
“parroted” the requirements of the solicitation and used generalized, conditional language (i.e.,
“Mercom may provide . . .”; “if authorized by the contracting officer . . .”) to explain its previous
contract work rather than providing a detailed narrative describing the company’s depth of
experience in these regards. Id. (emphasis added). The SSEB interpreted this language as
describing Mercom’s “technical approach” for each contract rather than the work it had actually
performed. Id. Without the requisite detail describing the services actually provided under the
referenced contracts, the SSEB could not determine the depth and breadth of the work Mercom
performed and therefore could not be “assured that [Mercom] c[ould] perform the requirements
as defined in [the solicitation], which may have a negative impact on cost, schedule and
performance.” Id. Second, Mercom also “failed to document a single instance in any of [its]
submitted contract references of demonstrating experience in performing configuration,
integrations, packaging, kitting and installation of equipment,” which was required by sub-sub-
factor B2.2 of the solicitation. AR 18-870. Similar to the first significant weakness, the SSEB
adjudged that Mercom had used vague, conditional language to describe its past contracts rather
than provide a detailed explanation of the depth and breadth of its experience. Id.
In light of both significant weaknesses, “the SSEB determined that . . . Mercom’s lack of
demonstrated experience in performing the relevant technical services required in [s]ub[-]factor
B2 resulted in increased risk of unsuccessful contract performance at the delivery order level to
an unacceptable level.” AR 18-870 to -71. Therefore, as Mercom did not meet the requirements
of the solicitation for sub-factor B2, the SSEB assigned Mercom’s proposal a rating of
“Unacceptable” for the sub-factor. AR 18-867. The SSEB then assigned an overall
“Unacceptable” rating to factor (B) because sub-factor B2 was deemed not to meet the
requirements of the solicitation. Id. Finally, in accord with the solicitation, the SSEB assigned
Mercom’s proposal an overall technical rating of “Unacceptable” for factors (A) and (B) because
the proposal merited an “Unacceptable” rating for a “non-price factor,” i.e., factor (B). AR 18-
865. Specifically, Mercom’s proposal was deemed “Unacceptable” because it “[did] not meet
the requirements, [did] not indicate an adequate understanding of the requirements[,] and the risk
of unsuccessful performance [was] high.” Id.
In its review of the SSEB’s analysis, the SSAC upheld the “Unacceptable” technical
6
The solicitation defined “[s]ignificant [w]eakness” as “a flaw [in the proposal] that
appreciably increases the risk of unsuccessful contract performance.” AR 3-102 (emphasis in
original).
6
rating for Mercom’s proposal. AR 19-1005. The SSAC reiterated that the proposal contained
significant weaknesses with regard to sub-factor B2 because Mercom “failed to demonstrate any
experience” in technical support services as required by the solicitation. AR 19-1006. The
SSAC also noted that Mercom “provided high-level summaries concerning the types of services
that [it] provides” and “largely relied upon generalized statements that were repeated for each
contract reference,” representing a “material failure to meet the requirements of the solicitation.”
Id. In combination, the significant weaknesses of sub-factor B2 of Mercom’s proposal were
deemed to “constitute a deficiency and an ‘Unacceptable’ adjectival rating” for factor (B)
overall. Id.7
Relying on the analyses of the SSEB and the SSAC, the SSA ultimately determined in its
best value assessment that Mercom “failed to meet the minimum solicitation requirements for
Factor B,” rendering the entire proposal “Unacceptable” and ineligible to receive a contract
award. AR 20-1048; 21-1051. Mercom timely requested a debriefing from the Navy to
ascertain why it was not selected for an award, and the Navy reiterated the analysis of sub-factor
B2 from the SSEB and SSAC reports. See AR 23-1069 to -72.
D. Mercom’s GAO Protest
Mercom timely filed a protest at GAO on July 20, 2016, and filed a supplemental protest
on July 22, 2016. AR Tabs 26-27. In its protest, Mercom alleged that the Navy failed to follow
the terms of the solicitation for rejecting proposals with “Unacceptable” factor ratings, failed to
properly weigh the factors being applied to Mercom’s proposal in line with the terms of the
solicitation, and unreasonably assigned a rating of “Unacceptable” to sub-factor B2. AR 26-
1126 to -28; 27-1152 to -58. On October 25, 2016, GAO denied Mercom’s protest. AR 29-
1193. GAO agreed with the agency that Mercom’s proposal failed to satisfy the requirements of
the solicitation for sub-factor B2 by failing to provide sufficient detail in the contract references
to show the depth and breadth of Mercom’s experience. AR 29-1196 to -97. GAO concluded
that it was reasonable for the Navy to assign an “Unacceptable” rating to sub-factor B2, and in
turn to assign an “Unacceptable” rating to factor (B) and to Mercom’s proposal as a whole. AR
29-1197.
E. Mercom’s Protest in This Court
On November 8, 2016, Mercom filed its protest in this court. See Compl. In its
complaint, Mercom asserts four counts regarding the Navy’s procurement: (1) “the agency
unreasonably assigned a rating of unacceptable under sub[-]factor B2” because Mercom’s
proposal demonstrated work it actually performed under the contracts provided, (2) “the agency
unreasonably assigned a rating of Unacceptable under sub[-]factor B2” because Mercom’s
proposal demonstrated the depth and breadth of its work as required by the solicitation, (3) “the
agency failed to follow the solicitation’s terms regarding the rejection of proposals for a rating of
7
The solicitation defined “[d]eficiency” as “a material failure of a proposal to meet a
[g]overnment requirement or a combination of significant weaknesses in a proposal that increases
the risk of unsuccessful contract performance to an unacceptable level.” AR 3-102 (emphasis in
original).
7
unacceptable,” and (4) “the agency’s best value determination was unreasonable.” Compl. ¶¶
30-59. Contemporaneously with its complaint, Mercom filed an application for a temporary
restraining order and a motion for preliminary injunction. Pl.’s Appl. for TRO and Mot. for
Prelim. Inj., ECF No. 4. During a hearing on November 14, 2016, “the parties represented that
the government has agreed to voluntarily stay performance on the contract at issue until the
resolution of plaintiff’s protest.” Order of Nov. 14, 2016, ECF No. 14. The court therefore
denied the application for a temporary restraining order and the motion for preliminary
injunction as moot. Id.
Pursuant to the court’s scheduling order, the government promptly filed the
administrative record, ECF No. 18. The parties’ cross-motions for judgment on the
administrative record have been submitted and fully briefed, and were addressed at a hearing.
JURISDICTION
Pursuant to the Tucker Act, this court has jurisdiction to “render judgment on an action
by an interested party objecting to a solicitation by a Federal agency for bids or proposals for a
proposed contract or 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), added by the Administrative Dispute Resolution Act, Pub. L. No. 104320, § 12, 110
Stat. 3870, 3874 (Oct. 19, 1996); see also Systems Application & Techs., Inc. v. United States,
691 F.3d 1374, 1380-81 (Fed. Cir. 2012). Accordingly, the court has jurisdiction over this
protest.
STANDARDS FOR DECISION
The Administrative Procedure Act (“APA”), specifically 5 U.S.C. § 706, governs the
court’s review of an agency’s contract award. See 28 U.S.C. § 1491(b)(4) (“In 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.”). A court may set aside an agency decision that was
“arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C.
§ 706(2)(A). The “arbitrary and capricious” standard is “highly deferential,” see Advanced Data
Concepts, Inc. v. United States, 216 F.3d 1054, 1058 (Fed. Cir. 2000), and the court may not
“substitute its judgment for that of the agency,” Keeton Corrs., Inc. v. United States, 59 Fed. Cl.
753, 755 (2004) (quoting Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416
(1971), abrogated in part by Califano v. Sanders, 430 U.S. 99, 105 (1977)), recons. denied, 60
Fed. Cl. 251 (2004).
Notwithstanding this deferential standard, the court may set aside a procurement action if
“(1) the procurement official’s decision lacked a rational basis; or (2) the procurement proce[ss]
involved a violation of regulation or procedure.” Impresa Construzioni Geom. Domenico Garufi
v. United States, 238 F.3d 1324, 1332 (Fed. Cir. 2001) (citations omitted). The “agency must
examine the relevant data and articulate a satisfactory explanation for its action including a
‘rational connection between the facts found and the choice made.’” Motor Vehicle Mfrs. Ass’n
v. State Farm Mut. Auto Ins. Co., 463 U.S. 29, 43 (1983) (quoting Burlington Truck Lines v.
United States, 371 U.S. 156, 168 (1962)). An agency’s decision lacks a rational basis, and is
8
therefore arbitrary and capricious, when 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 [the decision] is so implausible that it could not be ascribed to a difference
in view or the product of agency expertise.” Alabama Aircraft Indus., Inc.-Birmingham v.
United States, 586 F.3d 1372, 1375 (Fed. Cir. 2009) (quoting State Farm, 463 U.S. at 43).
ANALYSIS
A. Technical Evaluation of Sub-Factor B2
Mercom argues that the agency unreasonably assigned an “Unacceptable” rating to sub-
factor B2 of its proposal for two reasons. First, Mercom asserts that the ten contract references it
provided for sub-factor B2 describe work actually performed by Mercom rather than just its
technical approach under these contracts. Pl.’s Mot. at 12-18. Second, Mercom claims that the
portion of its proposal related to sub-factor B2 adequately demonstrated the depth and breadth of
its experience in technical support services and satisfied the requirements of the RFP. Id. at 18-
23.
In a bid protest, “[t]he evaluation of proposals for their technical excellence or quality is a
process that often requires the special expertise of the procurement officials, and thus reviewing
courts give greatest deference possible to these determinations.” CRAssociates, Inc. v. United
States, 102 Fed. Cl. 698, 717 (2011) (citing E.W. Bliss Co. v. United States, 77 F.3d 445, 449
(Fed. Cir. 1996); Bannum, Inc. v. United States, 91 Fed. Cl. 160, 174 (2009)) (internal quotation
marks omitted), aff’d, 475 Fed. Appx. 341 (Fed. Cir. 2012). The agency need only show that it
reached its final decision as “the result of a process which ‘consider[ed] the relevant factors’ and
[wa]s ‘within the bounds of reasoned decisionmaking.’” JWK Int’l Corp. v. United States, 52
Fed. Cl. 650, 654 n.8 (2002) (quoting Baltimore Gas & Elec. Co. v. Natural Res. Def. Council,
Inc., 462 U.S. 87, 105 (1983)), aff’d, 56 Fed. Appx. 474 (Fed. Cir. 2003).
The offeror bears “the burden of presenting ‘an adequately written proposal’” that
satisfies the requirements of the solicitation. Westech Int’l, Inc. v. United States, 79 Fed. Cl. 272,
296 (2007) (quoting United Enter. & Assocs. v. United States, 70 Fed. Cl. 1, 26 (2006)). Here,
the Navy’s assignment of an “Unacceptable” rating to sub-factor B2 of Mercom’s proposal had a
rational basis because Mercom failed to submit satisfactory evidence of qualifying experience
related to sub-factor B2. Mercom’s proposal does not describe its work under the contracts it
cited in sufficient detail to enable the agency to reasonably conclude that Mercom performed all
of the work stated and had the requisite depth and breadth of experience to be awarded the
contract. The contract references provided by Mercom frame the company’s work pursuant to
sub-factor B2 hypothetically, i.e., in terms of work that Mercom could perform rather than work
it actually did perform. See, e.g., AR 16-393; -399; -404; -409; -414; -419; -424; -429; -433; -
439 (“In accordance with individual Delivery Orders, Mercom may provide incidental equipment
support. . . .”) (emphasis added). As the SSEB explained, this conditional and hypothetical
language describes Mercom’s “technical approach” rather than substantively explaining the
services Mercom actually performed under these past contracts. See AR 18-869. Without an
explanation of Mercom’s past experience, the agency could not evaluate the frequency or
“multiplicity or variety of programs and/or projects” performed by Mercom within the scope of
9
sub-factor B2, as required by the RFP. AR 7-289. Thus, it was reasonable to assign Mercom’s
proposal an “Unacceptable” rating with respect to sub-factor B2 because Mercom failed to
satisfy the requirements of the solicitation.
Mercom argues that it used conditional language in its contract references because nine
of the ten contracts it cited were IDIQ contracts. See Hr’g Tr. 7:1-12 (Feb. 17, 2017); Pl.’s Mot.
at 12. An IDIQ contract “provides for an indefinite quantity, within stated limits, of supplies or
services during a fixed period.” 48 C.F.R. § 16.504(a). IDIQ contracts are used “when the
[g]overnment cannot predetermine, above a specified minimum, the precise quantities of
supplies or services that the [g]overnment will require during the contract period.” 48 C.F.R §
16.504(b). Thus, while Mercom is correct that “the work required by an individual order may
vary from another order placed under [an IDIQ] contract,” Pl.’s Mot. at 12, a general description
of the services that could be provided under the contract does not necessarily represent the types
and amounts of work actually performed. Under the cited IDIQ contracts, the government could
have ordered performance of any or all of the possible services that Mercom could provide. See
48 C.F.R. § 16.504(a) (explaining that the government must order a minimum amount of services
as specified in an IDIQ contract, but has the option to order additional services as well). The
burden was on Mercom to describe the services it actually provided under the IDIQ contract
references to demonstrate the depth and breadth of its experience in technical support services
for sub-factor B2. Nonetheless, the actual services ordered and work performed are not evident
from the generalized list of potential services Mercom provided. Each of Mercom’s contract
references provides essentially the same description of technical support services with regard to
sub-sub-factors B2.1 and B2.2. See AR 16-393 to -94; -399; -404; -409; -414; -419; -424; -429;
-433 to -34; -439. As noted by the SSAC, Mercom’s repeated description contains merely
“generalized statements” and “high-level summaries concerning the types of services that
[Mercom] provides,” rather than “specific supporting information concerning [Mercom’s]
experience” in performing the services sought under the solicitation. AR 19-1006. The RFP
required specific supporting information so the agency could evaluate the depth and breadth of
the offerors’ past experience and determine their likelihood of successful contract performance.
See AR 7-289; 18-869 to -71. Based on the nonspecific references Mercom provided, it was
reasonable for the Navy to determine that Mercom did not describe work actually performed
under the contract references for sub-factor B2, and therefore did not satisfy the requirements of
the solicitation. The Navy’s assignment of a rating of “Unacceptable” to sub-factor B2 for
Mercom’s proposal thus was rational.
B. Assignment of “Unacceptable” Rating to Mercom’s Full Proposal
Mercom further contends that the agency’s assignment of an “Unacceptable” rating to
Mercom’s full proposal based on the “Unacceptable” rating for sub-factor B2 was unreasonable
because it did not follow the terms of the solicitation. See Pl.’s Mot. at 24-26. Specifically,
Mercom argues that the solicitation stated that a proposal would be rejected for receiving an
“Unacceptable” rating for a factor, not just a sub-factor, and that the assignment of an
“Unacceptable” rating to factor (B) was unreasonable in light of the “Good” rating assigned to
sub-factor B1 and the weighting scheme set forth in the solicitation. Id. at 24-25. Mercom
believes that this rating approach amounted to an “automatic rejection” of its proposal without
due consideration given to factor (B) as a whole. Id. at 26.
10
As Mercom notes, “[i]t is a fundamental tenet of procurement law that proposals must be
evaluated in accordance with the terms of the solicitation.” Red River Holdings, LLC v. United
States, 87 Fed. Cl. 768, 786 (2009) (quoting AshBritt, Inc. v. United States, 87 Fed. Cl. 344, 374
(2009), opinion clarified, 87 Fed. Cl. 654 (2009)). An agency’s failure to follow the terms of its
solicitation in evaluating and selecting offerors is arbitrary and capricious. See Q Integrated
Cos. v. United States, 126 Fed. Cl. 124, 142-43 (2016), appeal dismissed, No. 2016-1991 (Fed.
Cir. June 2, 2016); Hunt Bldg. Co. v. United States, 61 Fed. Cl. 243, 273 (2004) (citing Banknote
Corp. of Am. v. United States, 365 F.3d 1345, 1351 (Fed. Cir. 2004); LaBarge Prod., Inc. v.
West, 46 F.3d 1547, 1555 (Fed. Cir. 1995)), opinion modified, 63 Fed. Cl. 141 (2004).
Contrary to Mercom’s assertions, however, the Navy followed the terms of the
solicitation in assigning an “Unacceptable” rating to factor (B) of Mercom’s proposal, and
consequently to the proposal as a whole. Although the RFP did state that sub-factor B1 was
“more important” than sub-factor B2, AR 7-289, nowhere does it indicate that a rating better
than “Unacceptable” for sub-factor B1 would always outweigh an “Unacceptable” rating for sub-
factor B2. As the government explains, “[t]he fact that [s]ub[-]factor B1 is more important than
[s]ub[-]factor B2 under the solicitation is relevant only in the situation in which an offeror’s
proposal is otherwise acceptable.” Def.’s Cross-Mot. for Judgment Upon the Administrative
Record and Resp. to Pl.’s Mot. for Judgment Upon the Administrative Record (“Def.’s Cross-
Mot.”) at 24, ECF No. 22. Where, as here, the offeror’s proposal is partially “Unacceptable,” it
is reasonable for the agency to deem the whole proposal unacceptable under the terms of the
solicitation. An “Unacceptable” rating for either a sub-factor or a factor indicates that the
“[p]roposal does not meet [the] requirements” of the RFP and thus is “unawardable.” AR 3-101;
see also AR 8-299 (“Proposals which fail to address the stated requirements will be considered
unacceptable.”). The solicitation also explicitly states that “OFFERS THAT DO NOT
CONFORM TO THE REQUIREMENTS STATED HEREIN MAY BE DETERMINED
UNACCEPTABLE AND MAY BE REJECTED WITHOUT FURTHER EVALUATION.” AR
7-287. As explained supra, Mercom’s proposal did not conform to the requirements of the RFP
with regard to sub-factor B2 because it failed to provide sufficiently detailed contract references
to demonstrate the depth and breadth of Mercom’s technical support services experience. For
this reason, the combination of significant weaknesses for sub-factor B2 “constitute[d] a
deficiency and an ‘Unacceptable’ adjectival rating” for factor (B) under the terms of the
solicitation. AR 19-1006. The Navy’s decision to assign an “Unacceptable” rating to factor (B)
and reject the proposal as a whole due to the significant weaknesses in sub-factor B2 thus had a
rational basis because the solicitation explicitly permitted rejection of proposals that did not
conform to its requirements, regardless of whether this failure occurred at the factor or sub-factor
level.
In sum, the Navy’s decision to assign an “Unacceptable” rating to Mercom’s factor (B)
proposal, and consequently to deem the entire proposal ineligible for a contract award, was
supported by the terms of the solicitation and was not arbitrary and capricious.8
8
Because the court has determined that the Navy’s evaluations of sub-factor B2, factor
(B), and Mercom’s proposal as a whole were reasonable and not arbitrary and capricious, it need
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CONCLUSION
For the reasons stated, Mercom’s motion for judgment on the administrative record is
DENIED and the government’s cross-motion for judgment on the administrative record is
GRANTED. The clerk is directed to issue final judgment in accord with this disposition.
No costs.
It is so ORDERED.
s/ Charles F. Lettow
Charles F. Lettow
Judge
not independently address Mercom’s summarizing argument that the agency’s best-value
determination was flawed by the alleged errors in the evaluation process. See Pl.’s Mot. at 26.
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