Crowley Government Services, Inc. v. United States

In the United States Court of Federal Claims
No. 21-1387
(Filed under seal: January 18, 2022)
(Reissued for Publication: March 10, 2022) 1
***************************************
CROWLEY GOVERNMENT SERVICES, *
INC., *
*
Plaintiff, *
*
v. * Bid Protest; Motion for Judgment
* on the Administrative Record;
* Incumbent Preference; Incumbent
THE UNITED STATES, * Advantage; Unstated Evaluation
* Criteria; Misleading Discussions.
Defendant, *
*
and *
*
*
PATRIOT CONTRACT SERVICES, LLC, *
*
Defendant-Intervenor. *
*
***************************************
James Y. Boland and Christopher Griesedieck, Venable, LLP, Vienna, VA, for Plaintiff.
William James Grimaldi, Senior Trial Attorney, U.S. Department of Justice, Civil Division,
Washington, DC, with Robert D. Young, Supervisory Associate Counsel, Military Sealift
Command, of counsel, and Johanna Crawford, Associate Counsel, Military Sealift Command, of
counsel, for Defendant.
Craig S. King, Richard J. Webber, and Travis L. Mullaney, Arent Fox LLP, Washington, DC, for
Defendant-Intervenor.
1
This Order and Opinion was filed under seal on January 18, 2022, see ECF No. 26, in accordance with the
Protective Order entered on May 26, 2021, see ECF No. 13. The parties were given an opportunity to identify
protected information, including source selection information, propriety information, and confidential information
for redaction. The parties filed a notice proposing redactions on February 1, 2022. See ECF No. 28. As explained in
the Memorandum Opinion and Order, see ECF No. 29, contemporaneously filed with this public version of the
Order and Opinion, the Court has accepted the parties’ proposed redactions. All redactions are indicated by
bracketed asterisks, e.g., “[* * *].”
ORDER AND OPINION
DIETZ, Judge.
Plaintiff, Crowley Government Services, Inc. (“Crowley”), protests a decision by the
Military Sealift Command (“MSC”) to award a contract for operation and maintenance of several
WATSON Class ships to the incumbent contractor, Patriot Contract Services, LLC (“Patriot”).
Crowley challenges MSC’s proposal evaluation by arguing that MSC improperly favored Patriot
due to its incumbent status. Because the Court finds that MSC’s proposal evaluation was based
on the evaluation criteria set forth in the solicitation and supported by the contents of Patriot’s
proposal, Crowley’s motion for judgment on the administrative record is denied, and the
government’s and Patriot’s respective motions for judgment on the administrative record are
granted.
I. BACKGROUND
A. Overview of the Solicitation and Evaluation Factors
MSC issued a solicitation for the operation and maintenance (“O&M”) of eight
government-owned large, medium-speed roll on/roll off vessels (“LMSR”), collectively referred
to as the WATSON Class LMSR vessels. Admin. R. 257, ECF No. 17 [hereinafter AR]. The
solicitation called for a competitively negotiated source selection conducted in accordance with
Part 15 of the Federal Acquisition Regulation (“FAR”). AR 3907. The government intended to
award a firm-fixed price contract with a one-year base period and four one-year option periods.
AR 3908. The solicitation required submission of a proposal in three volumes: Solicitation
Package, Technical Proposal, and Past Performance Proposal. AR 491. The Solicitation
Packages submitted by Crowley and Patriot are not at issue in this protest.
Section M of the solicitation stated that the “award will be made to a responsible offeror
whose offer . . . represents the best value to the [g]overnment after considering the evaluation
factors in this solicitation[,]” and further stated that MSC “will evaluate offers on a trade-off
basis in accordance with FAR 15.101-1.” 2 AR 503. To determine best value, Section M stated
that MSC would conduct a trade-off analysis of three factors: Technical, Past Performance, and
Price. Id. Section M explained that the Technical and Past Performance factors are
“approximately equal” and “[w]hen combined . . . are significantly more important than cost or
price.” Id. Nonetheless, “[t]he importance of price will increase . . . when differences in the
evaluated quality of proposals decreases, or . . . when price is so high it diminishes the value of
non-cost factors to the [g]overnment.” Id.
The Technical Factor comprised of two subfactors—Technical Management Approach
and Manning Approach. AR 506. However, the solicitation explained that the “entire Technical
[F]actor will be evaluated as a single technical factor.” Id. The solicitation provided that “the
[g]overnment will consider the [t]echnical proposal submitted by the offeror in evaluating this
2
FAR 15.101-1 states that a “tradeoff process is appropriate when it may be in the best interest of the [g]overnment
to consider award to other than the lowest priced offeror or other than the highest technically rated offeror.”
2
factor.” Id. The solicitation went on to specify areas of interest to the government under each
subfactor. Id. For the Technical Management Approach, the solicitation provided four areas of
interest. Id. The Manning Approach consisted of seven areas of interest. Id. The solicitation
provided that the entire Technical Factor would be evaluated using one of five adjectival ratings:
“Outstanding,” “Good,” “Acceptable,” “Marginal,” or “Unacceptable.” AR 507.
The Past Performance Factor “assess[ed] the [g]overnment’s confidence in the offeror’s
likelihood of success in performing the solicitation’s requirements as indicated by that offeror’s
record of relevant past performance.” AR 507. As part of the past performance proposal, each
offeror was required to provide “up to five [g]overnment reference contracts that are on-going or
have been completed within five years of issuance of th[e] solicitation or final amendment . . .
that demonstrates its experience successfully operating ship(s) similar to the ship(s) described in
the [solicitation].” AR 499. If the offeror did not have a government reference contract available,
the solicitation stated, “commercial contracts may be used . . . . However, government contracts
will be deemed more relevant.” AR 500. The solicitation instructed offerors to “specifically
address how the referenced contracts reflect quality performance pertinent to the solicitation
requirements” in their past performance narrative. Id. In addition to the narrative, offerors were
required to “provide a point of contact and the contact’s email and phone number” for each
submitted reference contract. Id.
For the past performance evaluation, the solicitation provided that an offeror’s past
performance effort would be evaluated only if it was deemed to be “recent,” meaning it must
have been completed within five years of the solicitation’s close date, as amended. AR 507. Past
performances that were determined to be recent would also be assessed for relevance. Id. The
solicitation stated that “[c]ontracts that are most similar . . . in terms of scope, complexity, and
magnitude will be considered most relevant.” 3 Id. For the relevancy assessment, each past
performance effort would be graded on a scale of: “Very Relevant,” “Relevant,” “Somewhat
Relevant,” or “Not Relevant.” AR 508. The weight given to a particular past performance effort
would depend on how relevant it was to the solicitation requirements. See AR 4404. The Past
Performance Evaluation Team (“PPET”) was tasked with evaluating proposals and assigning
adjectival ratings. AR 507. Based on the totality of all past performance efforts, an overall Past
Performance Confidence rating would be assigned using one of five adjectival ratings:
“Substantial Confidence,” “Satisfactory Confidence,” “Neutral Confidence,” “Limited
Confidence,” or “No Confidence.” AR 508-09.
B. The Evaluation, Award Decision and Protest
MSC received six proposals, including those from Crowley and Patriot. AR 3163-64.
MSC conducted two rounds of discussions, three rounds of Final Proposal Revisions (“FPR”),
and one round of clarifications to obtain acceptable proposals from offerors in the competitive
3
The solicitation defined “scope” as “[e]xperience operating, manning, and maintaining a similar number of ship(s)
with a similar mission[;]” “complexity” as the “[s]imilarity of technical difficulty, managerial complexity, and/or
required coordination of efforts and disciplines performed by the offeror and any subcontractors to the requirements
outlined in the solicitation[;]”and “magnitude” as “[t]he measure of the similarity of the volume, dollar value and
duration of the work actually performed under the offeror’s submitted contracts[.]” AR 508.
3
range. AR 3774. The Source Selection Evaluation Board (“SSEB”) evaluated each proposal
based on the FPRs and documented the results in the SSEB Reports. AR 3171-74, 3342-436,
3539-62. Crowley and Patriot each received an “Outstanding” rating for the technical trade-off
factor, which means that each proposal indicates an exceptional approach and understanding of
the requirements, contains multiple strengths, and has a low risk of unsuccessful performance.
AR 507, 3702, 3710. For the past performance trade-off factor, Crowley received a rating of
“Satisfactory Confidence,” which means that the government has a reasonable expectation that
the offeror will successfully perform the required effort based on the offeror’s recent and
relevant performance record. AR 508, 3440. Patriot received a rating of “Substantial
Confidence,” which means that the government has a high expectation that the offeror will
successfully perform the required effort based on the offeror’s recent and relevant performance
record. AR 508, 3463, 3710. 4
The SSEB presented its findings to the Source Selection Advisory Council (“SSAC”).
AR 3702. After its review, the SSAC issued a memorandum with additional findings to the
Source Selection Authority (“SSA”). AR 3700-43. The SSA performed an independent review of
the proposals and described his evaluation process and decision in the Source Selection Decision
Document (“SSDD”). AR 3744-53. In the SSDD, the SSA concurred with the SSEB and SSAC
findings and recommendation and concluded “that [the] award should be made to [Patriot].” AR
3742-43, 3752-53.
On March 22, 2021, Crowley protested the evaluation and source selection at the
Government Accountability Office (“GAO”). AR 4082-125. Before the GAO proceedings
concluded, Crowley filed its complaint with this Court. The parties subsequently filed cross-
motions for judgment on the administrative record, and oral argument was held on August 25,
2021. Crowley’s protest is now ripe for decision.
II. LEGAL STANDARDS
The Tucker Act grants this Court jurisdiction to review post-award bid protests and
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[.]” 28 U.S.C. § 1491(b); Impresa Construzioni Geom. Domenico Garufi v. United
States, 238 F.3d 1324, 1330 (Fed. Cir. 2001). The Tucker Act’s waiver of sovereign immunity
“covers a broad range of potential disputes arising during the course of the procurement
process[,]” including objections to an award. Sys. Application & Techs., Inc. v. United States,
691 F.3d 1374, 1380-81 (Fed. Cir. 2012).
This Court reviews agency decisions in bid protests using the standard of review set forth
in the Administrative Procedure Act (“APA”). 28 U.S.C. § 1491(b)(4); Impresa, 238 F.3d at
1332. This standard permits a court to set aside an agency’s contracting decision if the protestor
shows it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with
law.” 5 U.S.C. § 706(2)(A); Bannum, Inc. v. United States, 404 F.3d 1346, 1351 (Fed. Cir.
2005). “Under an arbitrary or capricious standard, the reviewing court should not substitute its
4
Crowley’s total evaluated price was $460,647,335.29, and Patriot’s total evaluated price was $455,164,761.90. AR
3710. However, their respective price proposals are not directly at issue in this protest.
4
judgment for that of the agency[] but should review the basis for the agency decision to
determine if it was legally permissible, reasonable, and supported by the facts.” Glenn Def.
Marine (Asia), PTE Ltd. v. United States, 105 Fed. Cl. 541, 559 (2012) (citing Motor Vehicle
Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)). The
protestor has the burden to show by a preponderance of evidence the arbitrary and capricious
nature of the agency’s decision. Mortg. Contracting Servs., LLC v. United States, 153 Fed. Cl.
89, 124 (2021). While the APA standard calls for considerable deference to the agency,
Advanced Data Concepts, Inc. v. United States, 216 F.3d 1054, 1058 (Fed. Cir. 2000), a court
may set aside an agency’s procurement decision if the decision lacked a rational basis, or the
procurement procedure involved a violation of regulation or procedure. Impresa, 238 F.3d at
1332; see also Safeguard Base Operations, LLC v. United States, 989 F.3d 1326, 1343 (Fed. Cir.
2021). Nevertheless, if the reviewing court finds that the agency’s action evinced rational
reasoning and consideration of relevant factors, it must sustain the agency’s action. Advanced
Data Concepts, 216 F.3d at 1058 (citing Bowman Transp., Inc. v. Arkansas-Best Freight Sys.,
Inc., 419 U.S. 281, 285-86 (1974)).
III. DISCUSSION
In its protest, Crowley raises several challenges to MSC’s proposal evaluation with an
underlying premise that MSC improperly credited Patriot because of its incumbent status. First,
Crowley argues MSC improperly assigned strengths to Patriot and failed to assign strengths to
Crowley as part of the technical evaluation. Second, Crowley argues MSC treated Crowley and
Patriot unequally in evaluating past performance. Third, Crowley argues MSC conducted
misleading discussions in violation of FAR 15.306(d)(3).
While Crowley’s challenges are extensive, the Court nevertheless finds that Crowley has
failed to demonstrate that MSC improperly credited Patriot for its incumbency or that MSC’s
proposal evaluation was arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law. It is apparent from the record that MSC considered Patriot’s incumbency
during its proposal evaluation, but consideration of an offeror’s incumbency does not, on its
own, render an agency’s decision arbitrary or capricious. This Court has long recognized that
incumbent contractors may possess inherent competitive advantages, and those “natural”
advantages are generally permissible. Omega World Travel, Inc. v. United States, 54 Fed. Cl.
570, 575 (2002); see Worldwide Language Res., LLC. v. United States, 127 Fed. Cl. 125, 133
(2016); Gulf Grp., Inc. v. United States, 56 Fed. Cl. 391, 398 (2003); Galen Med. Assocs., Inc. v.
United States, 56 Fed. Cl. 104, 111 (2003); Comput. Scis. Corp. v. United States, 51 Fed. Cl.
297, 311 (2002). While an agency may not unduly tip the scales in favor of an incumbent
contractor, an agency is not required to ignore the benefits or advantages derived from an
offeror’s incumbency, and it likewise need not attempt to level the playing field for all other
offerors. Gulf Grp., 56 Fed. Cl. at 398; Galen Med. Assocs., 56 Fed. Cl. at 111. As explained in
the below analysis of each of Crowley’s challenges, the record demonstrates that MSC’s decision
to select Patriot for award was based on the evaluation criteria set forth in the solicitation and
supported by the contents of Patriot’s proposal.
5
A. Technical Evaluation
Crowley argues that MSC improperly credited Patriot for its incumbent status throughout
the technical evaluation and, in doing so, employed unstated evaluation criteria. Pl.’s Mot. for J.
on the Admin. R. at 7-8, ECF No. 18 [hereinafter Pl.’s MJAR]. “Government agencies are
entrusted with a good deal of discretion in making procurement decisions.” Grumman Data Sys.
Corp. v. Widnall, 15 F.3d 1044, 1046 (Fed. Cir. 1994). In particular, the assignment of technical
ratings by an agency is a discretionary determination that is part of the “minutiae of the
procurement process[,]” and, as such, the Court typically will not second guess the agency’s
determination. E.W. Bliss Co. v. United States, 77 F.3d 445, 449 (Fed. Cir. 1996). Furthermore,
“[i]t is well established that the evaluation of proposals for their technical quality generally
requires the special expertise of procurement officials,” so “[r]eviewing courts therefore give the
greatest deference possible to these determinations.” KCS Boss All., LLC v. United States, 142
Fed. Cl. 368, 380 (2019) (citing E.W. Bliss Co., 77 F.3d at 449). An agency’s evaluation,
however, must be consistent with the standards set forth in the solicitation. 10 U.S.C. § 2305;
FAR 15.305(a). If an agency evaluates proposals based on unstated evaluation criteria, a
protestor can challenge the award decision by showing: (1) the agency used a significantly
different basis in evaluating its proposal than was disclosed and (2) the protestor has been
prejudiced as a result, or in other words, that it had a substantial chance to receive the contract
award but for the error. Banknote Corp. of Am. v. United States, 56 Fed. Cl. 377, 387 (2003),
aff’d, 365 F.3d 1345 (Fed. Cir. 2004).
1. Technical Management Approach
Crowley poses three challenges to MSC’s assignment of strengths to Patriot for its
proposed Technical Management Approach: (i) strength sixteen, (ii) [* * *] individual strengths
assigned for Patriot’s proposed key personnel, and (iii) strength seventeen.
i. Strength Sixteen
Crowley takes issue with MSC assigning Patriot strength sixteen, see Pl.’s MJAR at 8-9,
which stated:
[Patriot] is presently performing O&M for the WATSON class of ships and as
described above, doing it well. Note that incumbent contractors have an advantage
because they possess the most relevant past performance, and incumbent
contractors with good performance records can offer real advantages to the
government in terms of lessened performance risk. Such a competitive advantage
is not an unfair or improper competitive advantage, and an agency is not required
to attempt to equalize competition to compensate for that advantage. There is no
basis to object to an incumbent offeror’s advantage unless it is created by an
improper preference or other unfair action by the procuring agency. This advantage
is reflected in the key personnel’s current experience and knowledge of [the
WATSON] Class and MSC processes and procedures. It also affects past
performance and risk analyses. Specifically, if awarded [Patriot] can seamlessly
assume new contract performance from the predecessor contract performance.
6
AR 3716. By assigning this strength, Crowley argues that MSC “utilized Patriot’s incumbency to
create an unwarranted strength based upon how Patriot had performed on the incumbent
contract” and employed unstated evaluation criteria by encompassing “past performance” and
“transition” as criteria under the technical evaluation. Pl.’s MJAR at 8-9.
Crowley mischaracterizes MSC’s considerations as employing unstated evaluation
criteria. As Crowley acknowledges, see Pl.’s MJAR at 8, the solicitation expressly permitted
MSC to consider the experience of an offeror’s key personnel in the technical evaluation. 5 One
area of interest for the government under the Technical Management Approach included “[t]he
relevance and benefits of the proposed Key Personnel whose qualifications, experience,
education, expertise, percentage of time they dedicate, and skill levels exceed contract
requirements in relation to their assigned roles.” AR 506. The solicitation further advised that an
adjectival rating would be assigned for the Technical Factor in consideration of the offeror’s
proposed approach and understanding of the requirements and whether the risk of unsuccessful
performance was low. AR 507. Based on the stated evaluation criteria, MSC was within its
discretion to assign this strength to Patriot for its proposed key personnel’s experience, the
relevance of the experience, and the resulting benefits to the government. The key personnel
proposed by Patriot are largely the same personnel presently performing O&M services on the
WATSON Class. See AR 2995, 3011. Therefore, it was unavoidable that MSC would consider
Patriot’s incumbency when evaluating the “relevance and benefits” of Patriot’s proposed key
personnel, their “experience” with the WATSON Class ships and MSC processes and
procedures, and the impact on “the risk of unsuccessful performance.” The solicitation criteria
permitted this consideration. See Forestry Surveys & Data v. United States, 44 Fed. Cl. 493, 499
(1999) (stating an agency has “great discretion in determining the scope of an evaluation
factor”). While MSC cannot unduly tip the scales in favor of an incumbent contractor, it may
weigh the advantages offered by the incumbent via its relevant experience and performance with
the contract subject matter. Gulf Grp., 56 Fed. Cl. at 398.
MSC was also within its discretion to determine that Patriot’s prior performance and
ability to seamlessly assume contract performance provided a benefit to the government. The
stated areas of interest in the solicitation permitted MSC to consider “[a]ny other aspect in the
offeror’s technical management approach that will provide a benefit to the government[.]” AR
506. The stated areas of interest also permitted MSC to consider “[t]he feasibility [that] the
offeror’s technical management approach will facilitate operations and result in a successful
coordination/collaboration effort with the [g]overnment in a timely and effective manner.” Id.
Furthermore, in assigning an adjectival rating, MSC was permitted to consider the risk of
unsuccessful performance. See AR 507. Thus, while past performance and transition, as
characterized by Crowley, are not explicitly identified as evaluation criteria under the Technical
Management Approach, under the stated areas of interests, it was reasonable for MSC to
consider Patriot’s “good performance records” as part of its technical evaluation and determine
that they “c[ould] offer real advantages to the government in terms of lessened performance
risk.” AR 3716; see ARINC Eng’g Servs., LLC v. United States, 77 Fed. Cl. 196, 203 n.9 (2007)
(“[I]ncumbent contractors with good performance records can offer real advantages to the
5
Crowley also benefitted from this consideration because MSC also credited Crowley for the experience of its
proposed key personnel. See AR 3719-20.
7
government in terms of lessened performance risk; accordingly, proposal strengths flowing from
[an offeror’s] prior experience are proper considerations in selecting an awardee[.]”) (citations
omitted).
Aside from its consistency with the evaluation criteria, MSC’s assignment of strength
sixteen is supported by Patriot’s proposal. In the Technical Management Approach portion of its
proposal, Patriot stated that it intends to leverage its experience managing the same vessel class
during the previous five-plus years and to scale up, improve, and refocus existing management
practices to the new solicitation requirements. AR 2994-3005. Patriot’s proposal lists the key
principles that have contributed to Patriot’s successful management of the WATSON Class,
which Patriot states will continue, as well as the proposed tasks and objectives for meeting the
new solicitation requirements. AR 2994-95. Thus, based on the record, MSC’s assignment of
strength sixteen was rational because it was consistent with the solicitation evaluation criteria
and supported by Patriot’s proposal. 6
ii. [* * *] individual strengths assigned for proposed key personnel
Crowley also challenges MSC’s assignment of [* * *] individual strengths to Patriot for
each of its proposed incumbent personnel. Pl.’s MJAR at 11. To support its challenge, Crowley
points to the following portion of MSC’s Technical Management Approach comparison:
If [Patriot] had not offered [* * *] incumbent personnel with present and seasoned
WATSON Class experience, as shown by the above list of strengths for each, then
[Crowley’s] technical proposal would be slightly stronger than [Patriot’s] proposal.
Nonetheless, the incumbent personnel’s experience provides the tipping point to
make [Patriot’s] technical proposal stronger. [Patriot’s] incumbent personnel
collectively reduce performance risk across the entire spectrum of performance in
that the personnel are currently performing the RFP tasks. Thus, [Patriot’s] proposal
offers more benefit to the [g]overnment when its incumbent personnel are
combined with [Patriot’s] other strengths[.]
AR 3721-22. Crowley argues that assignment of these individual strengths was unreasonable
because these strengths are based solely on Patriot’s incumbency, are unearned, and reflect clear
incumbent preference. Pl.’s MJAR at 11.
As explained above, the evaluation criteria in the solicitation permitted MSC to consider
the qualifications, experience, and expertise of the proposed key personnel and any other aspects
of the offeror’s technical proposal that provide a benefit to the government, and to assign a
6
Crowley also argues that MSC “presumed [Patriot would have a] risk-free transition based solely upon Patriot’s
incumbency.” Pl.’s MJAR at 12. To the contrary, the record shows that MSC found “[Patriot’s] proposal provided a
better approach by increasing the likelihood of successful performance on this contract, without startup risks.” AR
3723 (emphasis added). MSC’s conclusion was based on Patriot’s proposed approach, not “presumed” based on its
incumbency. Further, MSC was rational to conclude that Patriot’s proposed approach would not introduce “startup
risks” because Patriot is the incumbent contractor currently performing the services and its proposal leveraged the
benefits Patriot could provide due to its incumbent experience. MSC is not prohibited from considering advantages
that incumbent offerors may provide. See Gulf Grp., 56 Fed. Cl. at 398.
8
strength when MSC determined that a strength was warranted. See AR 506, 3938. The
solicitation defined a “strength” as “an aspect of an offeror’s proposal that has merit or exceeds
specified performance or capability requirements in a way that will be advantageous to the
[g]overnment during contract performance.” AR 3925. The technical evaluation report issued by
the PPET also stated that “strengths” are typically assigned for “high quality personnel, facilities,
organizational structures[,] and/or technical approaches that allow an offeror to perform the work
cost effectively or at a higher level of quality.” AR 3339.
In assigning these individual strengths, MSC determined that Patriot’s proposed key
personnel with WATSON Class experience made Patriot’s proposal “stronger” and provided a
benefit to the government by “collectively reduc[ing] performance risk across the entire
spectrum of performance.” AR 3721-22. Patriot’s proposal provided that “most of the shoreside
and shipboard senior management proposed have been with the [WATSON] class program for
much of the current contract.” AR 2995; see AR 3011. While the advantage of employing
personnel experienced with the specific solicitation subject matter may be “inherent” for any
incumbent contractor, MSC is not required to neutralize the competitive advantages that
incumbent contractors, such as Patriot, enjoy simply because of their own circumstances.
WinStar Commc’ns, Inc. v. United States, 41 Fed. Cl. 748, 763 (1998). Further, the
administrative record shows, and Crowley ignores, that MSC explained its rationale for why
Patriot’s technical proposal and its proposed incumbent personnel were determined to provide
greater benefit to the government. In this regard, MSC stated:
There are no weaknesses or deficiencies noted in the technical proposals submitted
by [Patriot] or [Crowley]. Both offerors proposed many strengths in their technical
management approaches that would benefit the government. [Crowley] proposed
[* * *]. However, [Patriot] offered [* * *] personnel who possess prior WATSON
LMSR O&M experience gained under the current WATSON O&M contract. The
recent experience of [Patriot’s] incumbent personnel, combined with [Patriot’s]
other strengths, makes [Patriot’s] technical tradeoff proposal more beneficial to the
[g]overnment than [Crowley’s] proposal.
AR 3721. “The question is not whether the court would reach the same conclusions as the
agency regarding the comparison of proposals, but, rather, whether the conclusions reached by
the agency lacked a reasonable basis[.]” Glenn Def. Marine, 105 Fed. Cl. at 561. Here, MSC’s
assignment of [* * *] individual strengths to Patriot for its proposed incumbent key personnel
and their directly relevant and recent experience was consistent with the solicitation evaluation
criteria and had a reasonable basis.
iii. Strength Seventeen
Crowley’s final challenge to MSC’s evaluation of the technical management approach
relates to strength seventeen. Pl.’s MJAR at 9. Strength seventeen stated:
[Patriot] is presently performing O&M for the WATSON class of ships and has the
inherent benefit of having trained crews already on each ship. This also benefits the
[g]overnment by facilitating seamless and smooth operations, and we expect it will
9
result in a successful coordination/collaboration effort with the government, in a
timely and effective manner.
AR 3716. Crowley argues that “[t]his is nothing more than a strength for incumbency in which
MSC rewarded Patriot not for its proposed approach . . . but merely because Patriot had been
successful in winning the predecessor contract[.]” Pl.’s MJAR at 9. Because only the incumbent
could have its crew already on the ship, this strength, according to Crowley, “was not available
to any other offeror.” Id. at 10. This argument likewise fails because, not only does this strength
explicitly reference and connect to the solicitation evaluation criteria, but it is also based on the
contents of Patriot’s proposal.
The solicitation permitted MSC to consider “[t]he feasibility [that] the offeror’s technical
management approach will facilitate operations and result in a successful
coordination/collaboration effort with the [g]overnment in a timely and effective manner.” AR
506 (emphasis added). Patriot’s proposal stated that “most of the shoreside and shipboard senior
management proposed have been with the [WATSON] class program for much of the current
contract[,]” AR 2995, and “the crewmembers that will fill key positions on the next [WATSON]
contract currently average 4-5 years of experience in those positions on the [WATSON]
vessels[,]” AR 3011. Patriot also provided an extensive list of proposed key personnel in its
proposal—a majority of whom are currently employed by Patriot for its incumbent contract
performance. See AR 2990-93, 3066-162.
Considering Patriot’s proposal against the evaluation criteria, MSC’s assignment of
strength seventeen is reasonably supported by the government’s interest in a smooth transfer of
ongoing operations from the incumbent contract to the new contract, and the benefits that the
government would obtain from Patriot’s proposed continued use of the “trained crews already on
each ship.” AR 3716. Further, just because this strength is “not available to any other offeror”
does not render its assignment arbitrary or capricious. This strength directly correlates to the
solicitation evaluation criteria and the contents of Patriot’s proposal, and, within these
parameters, MSC has broad discretion to determine that Patriot’s proposed approach offers a real
advantage over other proposals, and MSC is not required to neutralize this competitive
advantage. See One Largo Metro, LLC v. United States, 109 Fed. Cl. 39, 74 (2013); WinStar, 41
Fed. Cl. at 763.
2. Manning Approach
Crowley poses three challenges to MSC’s assignment of strengths to Patriot for its
proposed manning approach: (i) strength one, (ii) strength three, and (iii) MSC’s comparison of
Crowley’s and Patriot’s respective manning approaches.
i. Strength One
MSC assigned strength one to Patriot for the following: “As the incumbent, [Patriot] has
maintained a gapped billet rate of [* * *].” AR 3717. MSC determined that “[t]his demonstrates
that the current manning methodologies, which [Patriot] intends to retain, are working in a very
successful manner.” Id. Crowley argues that, because Patriot’s proposed manning approach did
10
not state its intention to retain the “manning methodologies” that resulted in this gapped billet 7
rate from the incumbent contract, MSC made an unsupported assumption based on Patriot’s
incumbent performance that Patriot would continue the same manning approach. Pl.’s MJAR at
10. The record, however, shows that MSC did not make any unsupported assumptions by
assigning this strength.
When evaluating Patriot’s proposed manning approach, the evaluation criteria permitted
MSC to consider Patriot’s “past success of programs to indicate potential for future success.” AR
506. Patriot’s proposed manning approach stated that Patriot “[* * *].” AR 3006. Patriot went on
to describe in detail its approaches to [* * *]. See AR 3006-15. These manning approaches
described by Patriot in its proposal appear to reflect the approaches that Patriot utilizes on its
incumbent contract, as well as its intention to continue and improve its approaches as needed to
meet the solicitation requirements. See, e.g., AR 3007 (“[* * *]”); AR 3008 (“[* * *]”); AR 3011
(“[* * *]”); AR 3012 (“[* * *]”); AR 3013 (“[* * *]”); id. (“[* * *]”); AR 3008 (“[* * *]”).
While Patriot does not explicitly state that it “intends to retain” the same gapped billet rate from
the predecessor contract, the record shows that Patriot explicitly described how it planned to
continue its current manning methodologies under the new contract, and MSC rationally
assigned this strength to Patriot based on the evaluation criteria.
ii. Strength Three
Crowley next challenges strength three assigned to Patriot. See Pl.’s MJAR at 10-11.
Strength three stated:
[Patriot] noted in its proposal that “most of the shoreside and shipboard senior
management proposed have been with the [WATSON] class program for much of
the current contract.” Additionally, [Patriot] stated in regard[] to its port engineers
that many “have been with the current MSC [WATSON] Class program since
contract award in 2014.” This will provide personnel at contract inception that are
trained and receiving ongoing training on with [sic] MSC processes and/or
WATSON Class technical specifics -- which ensures a ready level of technical
proficiency, coupled with efficiency coming from familiarity when dealing with
common issues as they arise. Put another way, it provides a greater systemic
capability to reach back to recent issues that have occurred on the [WATSON]
Class vessels and address them in a timelier manner.
AR 3717 (internal citations omitted). Crowley argues that MSC improperly credited Patriot
because the portion of the strength that states “most of the shoreside and shipboard management
proposed have been with the [WATSON] class program for much of the current contract” is
contained in Patriot’s technical management approach, not in the manning approach. Pl.’s MJAR
at 10-11. Crowley further argues this strength was assigned “based on nothing more than
[Patriot’s] incumbent experience, unrelated to the evaluation criteria” and the strength does not
reflect Patriot’s proposed manning approaches or methods. Id. at 11.
7
A “billet” can mean a specific personnel position, assignment, or duty station which may be filled by one person.
The term “gapped billet” is the difference between billets authorized and the current personnel onboard.
11
Detrimental to this argument is the fact that the solicitation provides that the “entire
Technical [F]actor will be evaluated as a single technical factor.” AR 506. So, it was not
unreasonable or improper for MSC to assign this strength to Patriot based on relevant
information in Patriot’s technical proposal irrespective of whether such information was included
under the Technical Management Approach or Manning Approach. Cf. Office Depot, Inc. v.
United States, 95 Fed. Cl. 517, 533 n.18 (2010) (“The general rule is that an agency is not
precluded from considering an element of a proposal under more than one evaluation criterion
where the element is relevant and reasonably related to each criterion under which it is
considered.”) (quotations omitted). Furthermore, for the manning approach, the evaluation
criteria identified “retention” and “training” as areas of interest to the government. AR 506. As
demonstrated by Patriot’s proposal, and as discussed above, Patriot set forth in detail its current
and planned approaches and methods for personnel recruitment, retention, and training. See AR
3008-15. Therefore, based on the solicitation evaluation criteria and Patriot’s proposal, MSC was
rational and within its discretion when it assigned this strength to Patriot.
iii. MSC’s Manning Approach Comparison
Crowley also challenges MSC’s comparison of Crowley’s and Patriot’s respective
manning approaches. MSC’s comparison stated:
[Crowley] and [Patriot] were both recognized for possessing several manning
approach strengths. Against [Crowley’s] advantage in number of strengths, we
balanced [Patriot’s] incumbent advantage of already manning the WATSON Class
vessels and shore support establishment, and having done so successfully during
the incumbent contract period. On balance, we believe that slightly outweighs
[Crowley’s] well-stated program.
AR 3723. Crowley argues that “Patriot’s incumbent status was the deciding factor” in this
comparison. Pl.’s MJAR at 13. The Court, however, is not persuaded that Patriot’s incumbent
status was the deciding factor. Instead, MSC’s conclusion was consistent with the solicitation
evaluation criteria and supported by Patriot’s proposal.
The solicitation evaluation criteria stated that MSC had an interest in crew recruitment
and retention, an offeror’s past success with crew retention programs, and any other aspect of an
offeror’s manning approach that provided a benefit to the government. AR 506. Patriot’s
proposal included a detailed manning approach, which, not surprisingly, reflected various
recruitment and retention approaches that it utilizes on the incumbent contract. AR 3006-15.
Where an incumbent contractor’s proposal exhibits its experience and resources naturally
derived from performance on the incumbent contract, it may be difficult to distinguish the
incumbent’s advantages based solely on incumbent status from those advantages derived from
performance on the incumbent contract. In this case, since Patriot leveraged its incumbent
experience and resources throughout its proposed manning approach, MSC did not simply rely
on Patriot’s incumbent status as the deciding factor but instead credited Patriot for its inherent
incumbent advantages as illustrated in its proposal, which naturally included “already manning
the [WATSON] Class vessels and shore support establishment[.]” AR 3723. Under these
circumstances, MSC is permitted to recognize the natural advantages that Patriot possesses and
12
conclude that Patriot’s proposed manning approach provides greater benefit to the government
than Crowley’s proposed approach. Omega World Travel, 54 Fed. Cl. at 575; see E.W. Bliss Co.,
77 F.3d at 449; Comput. Scis. Corp., 51 Fed. Cl. at 311; see also Vantage Assocs., Inc. v. United
States, 59 Fed. Cl. 1, 19 (2003) (“The wide discretion afforded contracting officers extends to a
broad range of procurement functions, including the determination of what constitutes an
advantage over those proposals.”).
3. Other challenges to MSC’s technical evaluation
Crowley also asserts that MSC improperly relied upon Patriot’s incumbency when
assessing risk in the trade-off analysis. See Pl.’s MJAR at 13-14. As part of the trade-off
analysis, the SSAC assessed risk as a separate consideration from the technical, past
performance, and price factors. See AR 3711-12. As part of this assessment, the SSAC
considered “the degree to which an offeror’s proposed approach to achieving the technical factor
may involve risk of disruption of schedule, degradation of performance, the need for increased
[g]overnment oversight, and/or the likelihood of unsuccessful contract performance.” AR 3712.
For Patriot, the SSAC determined:
[Patriot] is the incumbent for this contract. Its present performance is overall well
rated. Its past performance and known management, and management practices,
minimize the known or anticipated performance risk factors.
AR 3717. Crowley argues that this determination is based on Patriot’s incumbent status alone, as
opposed to Patriot’s proposed technical approach. Pl.’s MJAR at 13. While SSAC’s
determination does not explicitly reference Patriot’s proposal, the definition of risk as set forth in
SSAC’s award recommendation involved an assessment of Patriot’s “proposed approach,” AR
3712, and Patriot’s proposed approach was replete with direct references to its performance on
the incumbent contract. See discussion supra section III.A.2.i; see also AR 2994 (discussing the
key principles that have contributed to its success); AR 3040 (“While [Patriot] can draw recent
and relevant examples of past performance from across its fleet contractor-operated MSC . . .
vessels, no other contract would match the recency and relevancy of our 5+ years of performance
successes with the [WATSON] Class LMSR contract.”). Thus, SSAC’s determination, as
summarized in the risk portion of its award recommendation, is supported by Patriot’s proposal,
and the Court will not disturb its determination. See Banknote, 56 Fed. Cl. at 381 (stating that
this Court is in no position to second-guess an agency’s discretionary determinations that involve
highly technical matters).
Crowley’s last challenge to the technical evaluation is that MSC “ignored and
downplayed multiple benefits of Crowley’s technical proposal” in the Technical Management
Approach comparison. Pl.’s MJAR at 14-15. To support its position, Crowley lists an array of
purported benefits that it claims MSC failed to identify in its evaluation. Id. The Court, however,
does not accept Crowley’s invitation to second guess MSC’s evaluation of Crowley’s proposal
and determine what aspects of Crowley’s proposal would benefit the government. Rather, it is
within MSC’s broad discretion to determine which bid is the most advantageous to the
government. See Lockheed Missiles & Space Co., Inc. v. Bentsen, 4 F.3d 955, 959 (Fed. Cir.
1993). Indeed, the record shows that MSC identified areas where Crowley’s proposal provided a
13
benefit to the government. See AR 3719-21. Crowley’s argument that MSC failed to give credit
for other aspects of its proposal which Crowley considers beneficial to the government amounts
to mere disagreement with MSC’s technical evaluation and does not provide grounds for the
Court to disturb it. See Avtel Servs., Inc. v. United States, 70 Fed. Cl. 173, 218 (2006) (“[A]
protestor’s mere disagreement with the agency’s evaluation determination does not provide a
basis for sustaining the protest.”) (quotations omitted).
B. Past Performance Evaluation
To advance its underlying premise that MSC improperly favored preservation of the
incumbent contractor, Crowley next challenges MSC’s past performance evaluation on the
grounds that MSC ignored the context of Crowley’s and Patriot’s past performance data in the
Contractor Performance Assessment Reporting System (“CPARS”), unequally applied the
solicitation evaluation criteria when determining the relevance of past performance efforts, and
failed to consider past performance data that Crowley submitted with its proposal. Pl.’s MJAR at
16-32. In general, an agency is afforded very broad discretion when it determines whether and to
what extent an offeror’s past performances instill confidence that the offeror will successfully
perform and meet the needs of the contracting agency. Vectrus Sys. Corp. v. United States, 154
Fed. Cl. 29, 41 (2021). An agency’s past performance evaluation will not be disturbed unless it is
unreasonable, inconsistent with the terms of the solicitation, or in violation of applicable statutes
or regulations. Fort Carson Support Servs. v. United States, 71 Fed. Cl. 571, 599 (2006); see Al
Andalus Gen. Conts. Co. v. United States, 86 Fed. Cl. 252, 262 (2009); see also Univ. Rsch. Co.,
LLC v. United States, 65 Fed. Cl. 500, 506 (2005); JWK Int’l Corp. v. United States, 52 Fed. Cl.
650, 659 (2002). In this case, the record demonstrates that MSC’s past performance evaluation
was reasonable, consistent with the stated evaluation criteria, and compliant with applicable law,
and, therefore, the Court will not disturb it.
1. Evaluation of CPARS
Crowley argues that MSC’s past performance evaluation was arbitrary and violated the
FAR because it failed to consider the “context” of the offeror’s past performance data. Pl.’s
MJAR at 17, 19. FAR 15.305(a)(2)(i) sets forth requirements for how agencies should conduct
past performance evaluations and, in relevant part, provides:
Past performance information is one indicator of an offeror's ability to perform the
contract successfully. The currency and relevance of the information, source of the
information, context of the data, and general trends in contractor's performance
shall be considered.
Crowley posits that the “context” of past performance data that is stored in the CPARS is found
in the narratives that explain the circumstances of the offeror’s performance. Pl.’s MJAR at 19.
Therefore, Crowley argues that MSC is required by FAR 15.305(a)(2)(i) to review the CPARS
narratives—not just the adjectival ratings—and that MSC failed to do so. Id. at 19-23.
The Court is not persuaded by Crowley’s interpretation of FAR 15.305(a)(2)(i). This
clause affords MSC considerable discretion in deciding what data is most relevant for the past
14
performance evaluation. Seaborn Health Care, Inc. v. United States, 101 Fed. Cl. 42, 51 (2011).
It does not by its terms require MSC to review the CPARS narratives, nor does it require MSC to
consider whether the CPARS narratives justify the corresponding adjectival ratings. Further, it
does not mandate that “the context of the [past performance] data” be derived from the CPARS
narratives. See FAR 15.305(a)(2)(i). Instead, it provides latitude to MSC to select a method for
evaluating offerors’ past performance. See Vanguard Recovery Assistance v. United States, 101
Fed. Cl. 765, 784 (2011) (“The deference owed to the procuring agency extends not just to the
actual rating, but also to its selection of a method for evaluating offerors’ past performance.”)
(internal quotations omitted). In this regard, the solicitation set forth the methods that MSC
would use to evaluate past performance. AR 507. Similarly, the methods described in the
solicitation likewise did not require MSC to use the CPARS narratives, and instead provided
MSC discretion. See id. (“The [g]overnment may use data provided in the offeror’s proposal . . .
in addition to data obtained from other sources such as the Past Performance Information
Retrieval System (PPIRS), CPARS, etc.”) (emphasis added). Because neither the FAR nor the
solicitation required MSC to review the CPARS narratives in conducting its past performance
evaluation, Crowley’s argument fails. 8
Crowley further argues that MSC’s past performance evaluation was arbitrary because
MSC “failed to consider significant negative past performance information regarding Patriot’s
incumbent contract and 5301 contract.” 9 Pl.’s MJAR at 23. Crowley asserts that, had MSC
considered Patriot’s CPARS narratives, MSC “would have concluded that Patriot’s past
performance did not warrant a rating of Substantial Confidence.” Id. at 25. To support its
argument, Crowley directs the Court to various excerpts in Patriot’s CPARS narrative for the
incumbent contract that it argues contain negative information about Patriot’s past performance.
See AR 3648 (“[* * *]”); AR 3649 (“[* * *]”); id. (“[* * *]”). However, in its argument,
Crowley focuses only on the negative information contained in Patriot’s CPARS narratives. See
Pl.’s MJAR at 24. The fact that the narrative reflects that Patriot’s past performance may have
been imperfect does not render MSC’s “Substantial Confidence” rating arbitrary. When viewed
in full, the narratives explain how Patriot’s performance improved and how Patriot was able to
overcome the challenges. See AR 3647 (“[* * *]”); AR 3649 (“[* * *]”); id. (“[* * *]”).
Regarding Patriot’s 5301 contract, MSC acknowledged Patriot’s “[* * *]” ratings and
downward performance trend in its evaluation. AR 3520 (“[* * *]”); id. (“[* * *]”). In weighing
its assessment of the 5301 contract against Patriot’s overall past performance, MSC found this
negative information was offset by the positive information on the more relevant incumbent
contract. Id. In this regard, MSC articulated:
The quality of the [o]fferor’s contracts gives the government a high expectation the
offeror will successfully perform the contract because quality ratings combined a
mix of exceptional, very good, satisfactory[,] and marginal ratings. However, the
weight given to [the incumbent contract] and [the 5301 contract] for quality ratings
8
Although not required, the record shows that MSC did consider CPARS narratives, at least in part, in its past
performance evaluation, including with respect to Crowley. See AR 3444-45, 3447, 3464; see also AR 3471, 3473.
9
Patriot’s 5301 contract was a government reference contract submitted by Patriot as part of its past performance
proposal. The scope of this contract consisted of O&M of four large, medium-speed vessels for MSC. AR 3050.
15
were high and medium weight, because they were “very relevant” and “relevant[,]”
respectively. The positive effects on the confidence ratings by the quality ratings of
“[* * *]” on the very relevant [incumbent contract] more [than] offsets the
weakening effects on the confidence rating by the [* * *] quality ratings received
on the less relevant [5301 contract]. Thus, the evaluators assigned a low substantial
confidence rating.
AR 3520-21, 3555. As shown above, and contrary to Crowley’s contention, the record
demonstrates that MSC considered Patriot’s negative past performance information and weighed
such information against other positive past performance information derived from Patriot’s
CPARS. The Court will not disturb MSC’s past performance evaluation on these grounds.
Crowley’s argument that MSC “ignored” the CPARS narrative for Crowley’s ROCON
contract is likewise unavailing. Pl.’s MJAR at 25. As stated above, MSC was not required by the
FAR or the solicitation to review the CPARS narratives in its past performance evaluation.
Further, the role of the Court is not to determine what MSC could have done in its evaluation;
rather, it is to determine whether MSC had a rational basis for what it did. Motor Vehicle Mfrs.,
463 U.S. at 43. Here, MSC had a rational basis. In its overall confidence rating for Crowley,
MSC articulated:
Based upon the reference contracts; CDRs and USCG 835s, 2692s; and CPARS, in
the [judgment] of the evaluators, the confidence rating for this offeror is
Satisfactory Confidence. The [g]overnment has a reasonable expectation that the
offeror will successfully perform the required effort because the contract provided
by the offeror as a reference was evaluated as being recent and relevant with an
associated high quality of performance. However, the [g]overnment could not
conclude a higher confidence rating because the [ROCON] contract was evaluated
as being the most relevant contract evaluated and the [ROCON] contract had [* *
*] quality of performance, which in the judgment of the PPET does diminish the
[government’s] overall [confidence] rating[.]
AR 3447 (emphasis in original). The FAR defines a “[* * *]” rating as “[* * *]” and where “[* *
*].” FAR 42.1503; see AR 3568. Given that Crowley received [* * *] ratings for its ROCON
contract and that MSC determined that Crowley’s ROCON contract was “the most relevant
contract evaluated,” MSC had a rational basis for assigning Crowley an overall “Satisfactory”
confidence rating. Crowley’s “mere disagreement” is not enough to disturb MSC’s decision. See
Blackwater Lodge & Training Ctr., Inc. v. United States, 86 Fed. Cl. 488, 514 (2009).
2. Relevancy of Crowley’s ROCON contract
In its proposal, Crowley submitted two past performance efforts—the BOBO contract 10
and the Hapag Lloyd contract—for evaluation by MSC. AR 2555-61, 3440-45. In addition to
10
Crowley’s BOBO contract was a government reference contract submitted by Crowley as part of its past
performance proposal. The scope of this contract consisted of full ship management and operation of six vessels—
five BOBO Class vessels and the USNS STOCKHAM—for MSC. AR 2555-57.
16
evaluating the submitted reference contracts, as part of the past performance evaluation, the
solicitation provided:
The Past Performance evaluation will assess CPARS, if any had been completed,
that did not correspond to a contract submitted by an offeror. The Past Performance
Evaluation Team (PPET) will review these CPARS contracts, and their associated
ratings, to determine whether each could affect the overall confidence ratings.
When the PPET determine[s] CPARS ratings for a contract could not affect the
overall confidence rating, the contract will not be evaluated further. When the PPET
determine[s] a CPARS contract could affect the overall confidence rating, then
relevance will also [be] evaluated so the contract can be factored into the overall
confidence rating.
AR 507 (emphasis added). After its initial evaluation, and consistent with the solicitation terms
above, MSC identified a CPARS for another contract—the ROCON contract—that “did not
correspond to a contract submitted” by Crowley. AR 3445-47; see AR 4631. Because Crowley
had received “[* * *]” ratings on the ROCON contract, MSC determined that it “could affect
[Crowley’s] overall confidence ratings” and thus proceeded to determine its relevancy. AR 3445-
46. Crowley argues that MSC acted irrationally when it determined that Crowley’s ROCON
contract was “Relevant” for the purposes of evaluating past performance. Pl.’s MJAR at 26.
The relevance of past performance information is a determination for the agency to make
based on the evaluation criteria set forth in the solicitation. FAR 15.305(a)(2)(ii) (“The source
selection authority shall determine the relevance of similar past performance information.”).
Under the adjectival rating system used in the instant solicitation, a contract would be deemed
“Relevant” if the “[p]resent/past performance effort involved similar scope and magnitude of
effort and complexities this solicitation requires.” AR 508. The record shows that MSC first
determined Crowley’s ROCON contract to be “Very Relevant.” AR 3445-46. However, in its
FPR, Crowley explained its position that the ROCON contract was “Not Relevant,” stating:
[Crowley] did not submit a past performance data sheet for [the ROCON contract].
A business decision was made that this contract is not relevant in scope, magnitude,
and complexity. The vessels on this contract are in Reduced Operating Status, three
are steam ships, and the one that is gas turbine has a very rare and outdated Russian
gas turbine engine. They are stateside, and normally only activated for sea trials.
AR 2562. In receipt of Crowley’s position, MSC further assessed the differences between the
ROCON contract and the solicitation requirements and concluded that the ROCON contract was
“less relevant than was initially determined” but still “Relevant,” contrary to Crowley’s preferred
rating of “Not Relevant.” AR 3499-500. In reaching the conclusion, MSC explained as follows:
First, [the ROCON] contract and the solicitation possess almost exactly the same
mission, cargo type, contract length, contract terms and conditions. Second, the
number of vessels and propulsion type are comparable with minor differences.
However, operational tempo, five and one-year contract values are significantly
different from the solicitation because the vessels were not operated in the same
17
type of ROS environment the [WATSON] vessels incur and the one-year contract
value does not even equal half of the [WATON’s] one-year value. In light of the
significant differences (operational tempo, and contract value (five and one-year))
and minor differences (number of vessels, and propulsion type), the PPET could
not conclude the contract involved essentially the same[] scope, magnitude and
complexity this solicitation requires. Nonetheless, the contract operational tempo
and contract values are the only areas that were significantly different from the
solicitation. Every other area was very comparable and any differences were
deemed minor. So while the PPET team could not say the contract involved
essentially the same scope, complexity, and magnitude of effort; it was apparent all
other contract characteristics indicated the contract involved similar scope,
complexity and magnitude, which make it “Relevant.”
AR 3546-47. As shown above, MSC’s relevancy determination is based on the evaluation
criteria in the solicitation and has a rational explanation. MSC’s determination is afforded
deference, and the Court will not second guess it. See E.W. Bliss Co., 77 F.3d at 459; Glenn Def.
Marine (Asia), PTE Ltd. v. United States, 720 F.3d 901, 911 (Fed. Cir. 2013) (“The [agency’s]
determination of relevance is owed deference as it is among the minutiae of the procurement,
which this court will not second guess.”) (quotations omitted).
3. Unequal treatment of Crowley’s ROCON contract and Patriot’s USNS
MARTIN contract
Crowley argues that MSC treated it unequally by evaluating Crowley’s ROCON contract
and not evaluating Patriot’s USNS MARTIN contract, which Crowley states is a contract for the
same services on the same vessel for the same agency. Pl.’s MJAR at 26, 29. FAR 1.102-2(c)(3)
requires impartial and fair treatment to all government contractors. “Equal treatment, however,
does not require that all proposals be treated the same.” Mil-Mar Century Corp. v. United States,
111 Fed. Cl. 508, 530 (2013). To prevail on a claim for unequal treatment, a bid protestor must
show that the instance of unequal treatment was prejudicial. WellPoint Mil. Care Corp. v. United
States, 953 F.3d 1373, 1378 (Fed. Cir. 2020); see also Office Design Grp. v. United States, 951
F.3d 1366, 1372 (Fed. Cir. 2020).
The solicitation stated that MSC would assess completed CPARS for contracts that did
not correspond to a contract submitted by an offeror in its past performance proposal when MSC
determined that the CPARS rating for the undisclosed contract “could affect the [offeror’s]
overall confidence ratings.” AR 507. If MSC determined that the CPARS ratings could not affect
the offeror’s overall confidence ratings, then “the contract [would] not be evaluated further.” Id.As explained earlier, MSC rationally determined that Crowley’s ROCON contract could affect
Crowley’s overall confidence rating because Crowley received a “[* * *]” rating. AR 3445. As a
result, MSC continued its evaluation of Crowley’s performance on the ROCON contract. Similar
to Crowley and its ROCON contract, Patriot did not submit its USNS MARTIN contract as part
of its past performance proposal. See AR 2909, 3518-20. However, unlike Crowley on its
ROCON contract, Patriot received a “[* * *]” rating for its USNS MARTIN contract. AR 4679.
It follows that, based on the terms of the solicitation, had MSC identified Patriot’s USNS
MARTIN contract as part of its past performance evaluation, MSC could have decided not to
18
further evaluate Patriot’s USNS MARTIN contract because Patriot had received a “[* * *]”
rating, and, thus, MSC could reasonably conclude that the contract could not affect Patriot’s
overall confidence rating. Taken a step further, even if MSC had decided to proceed with
evaluating Patriot’s USNS MARTIN contract, it still would not have changed the outcome
because Patriot’s “[* * *]” rating would not have detrimentally affected Patriot’s overall
“Substantial Confidence” rating. AR 3466. Under these circumstances, Crowley cannot show the
requisite prejudice to succeed on its unequal treatment claim. WellPoint Mil. Care, 953 F.3d at
1378 (“To prevail, [the protestor] must show that [the] instance of unequal treatment was
prejudicial.”) (internal citations omitted).
4. Crowley’s Hapag Lloyd contract
Crowley argues MSC violated the terms of the solicitation and FAR 15.305(a)(2)(ii) by
ignoring its “directly relevant past performance” under its Hapag Lloyd contract, a commercial
contract which Crowley submitted as part of its past performance proposal. Pl.’s MJAR at 31.
Crowley asserts that the solicitation did not require submission of a completed past performance
questionnaire (“PPQ”) from Crowley’s reference for the Hapag Lloyd contract as a prerequisite
for MSC to consider the quality of its Hapag Lloyd contract. Id. at 32. According to Crowley,
even in the absence of a completed PPQ, the solicitation required MSC to consider information
that Crowley submitted regarding the quality of its performance under the Hapag Lloyd contract.
Id. at 31-32.
The solicitation instructed offerors to “provide up to five [g]overnment reference
contracts that are on-going or have been completed within five years . . . that demonstrate[] its
experience successfully operating ship(s) similar to the ship(s) described in [the solicitation].”
AR 499. If the offeror did not have a government reference contract available, commercial
contracts could be used. AR 500. However, the solicitation cautioned that “government contracts
would be deemed more relevant” than commercial contracts. Id. Offerors were instructed to
include a past performance narrative that “specifically address[ed] how the referenced contracts
reflect quality performance pertinent to the solicitation requirements[.]” Id. The solicitation also
stated that “offerors shall provide a point of contact and the contact’s email and phone number”
for each past performance reference. Id.
For the past performance evaluation, the solicitation provided that “[t]he [g]overnment
may use data provided in the offeror’s proposal . . . in addition to data obtained from other
sources such as the Past Performance Information Retrieval System (PPIRS), CPARS, etc.” AR
507 (emphasis added). It further provided that MSC “may contact references provided in
offeror’s submitted narratives . . . to request information to determine the quality of [the]
[o]fferor’s performance.” Id. (emphasis added). In assigning past performance ratings, the
solicitation stated “[t]he evaluation of past performance will review the recency, relevancy, and
quality of the offeror’s performance[.]” AR 508.
Based on the record, MSC determined that Crowley’s Hapag Lloyd contract was relevant
and recent; however, MSC was ultimately unable to determine the quality of Crowley’s
performance. AR 3547. Because the Hapag Lloyd contract was a commercial contract, MSC
could not obtain data from the government’s CPARS system to verify the quality of performance
19
independently. See AR 3442 (“[The Hapag Lloyd contract] is a commercial contract and does
not get reported in the [g]overnment’s CPARS system.”). Indeed, MSC could have relied on
Crowley’s past performance narrative but instead determined that “[i]n the absence of available
CPARS reports” it relies on PPQs that are provided by the offeror’s references to determine the
quality of contract performance. See id. Since MSC did not receive a completed PPQ for the
Hapag Lloyd contract, MSC concluded:
No quality information is available for [the Hapag Lloyd contract]. [Crowley’s]
point of contact for the reference did not complete the past performance
questionnaire that was provided. Therefore, it could not be evaluated by the PPET
for quality.
AR 3547. While the solicitation required Crowley to submit a narrative addressing the
quality of its performance under the Hapag Lloyd contract, the solicitation did not
explicitly require MSC to use that information to determine the quality of Crowley’s
performance—whether a PPQ was submitted or not. See AR 507. To the contrary, the
solicitation permitted MSC, at its discretion, to use information from various sources
when evaluating past performance. See AR 507 (“The [g]overnment may use data
provided in the offeror’s proposal . . . in addition to data obtained from other sources[.]”)
(emphasis added).
Furthermore, contrary to Crowley’s contention, FAR 15.305(a)(2)(ii) does not
require that MSC consider information provided in Crowley’s past performance narrative
to determine the quality of its performance. See Pl.’s MJAR at 31-32. FAR
15.305(a)(2)(ii) requires that the solicitation “authorize offerors to provide information
on problems encountered on the identified contracts and the offeror[’s] corrective
actions” and generally states that “[t]he [g]overnment shall consider this information, as
well as information obtained from any other sources, when evaluating . . . past
performance.” In this instance, MSC was not considering any problems encountered on
the Hapag Lloyd contract or corrective actions undertaken by Crowley, so the specific
type of information referenced in the cited FAR clause was not at issue. MSC simply
determined that it could not evaluate the Hapag Lloyd contract for quality because it was
missing certain information from other sources, namely a completed PPQ from the Hapag
Lloyd contract reference. MSC acted within its discretion, and not in violation of the
FAR, when it determined that a completed PPQ from Hapag Lloyd was needed to
effectively evaluate the quality of Crowley’s contract performance.
C. Discussions regarding Crowley’s Hapag Lloyd contract
For Crowley’s last challenge, it argues MSC engaged in misleading and inadequate
discussions because MSC failed to inform Crowley that it had to contact and retrieve a
completed PPQ for the Hapag Lloyd contract as a prerequisite for MSC to consider the quality of
the contract. Pl.’s MJAR at 33-36. In doing so, Crowley argues MSC violated FAR 15.306(d)(3)
by failing to alert Crowley to a “significant weakness” or “deficiency” in its proposal. Id. at 33-
34. Based on the record, however, the Court finds that MSC’s discussions were not misleading or
inadequate and were consistent with the FAR requirements.
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FAR 15.306(d)(3) requires the agency to discuss “deficiencies, significant weaknesses,
and adverse past performance information to which the offeror has not yet had an opportunity to
respond.” In this instance, the record shows that MSC alerted Crowley to the deficiency at issue.
In its first discussion letter, MSC informed Crowley that its reference for the Hapag Lloyd
contract “did not complete the past performance questionnaire that was provided” to the
referenced contract point of contact (“POC”). AR 3686. Crowley responded by informing MSC
that it “w[ould] reach out to Hapag Lloyd to uncover this deficiency and correct this for FPR
submission.” AR 3494. Crowley subsequently provided MSC with a new POC for its Hapag
Lloyd contract as part of its FPR submission. AR 2558. Despite Crowley’s efforts to remedy this
deficiency, MSC still did not receive a PPQ from Crowley’s Hapag Lloyd contact. AR 3494. In
its second discussion letter, MSC informed Crowley again that it had not received a completed
PPQ for the Hapag Lloyd contract. AR 3690. Crowley responded by stating that it had “reached
out to Hapag Lloyd and confirmed that [its] referenced contract POC . . . is correct and will
complete the [PPQ].” AR 3543-44. Ultimately, however, MSC never received a completed PPQ
for the Hapag Lloyd contract. AR 3544, 3547.
In negotiated procurements, “the agency must provide ‘meaningful’ discussions that are
not misleading.” Greenland Contractors I/S v. United States, 131 Fed. Cl. 216, 225 (2017). In
this instance, the discussions between MSC and Crowley were not misleading. Rather, these
discussions directly informed Crowley—not once, but twice—that MSC had not received a
completed PPQ for its Hapag Lloyd contract. See Poplar Point RBBR, LLC v. United States, 147
Fed. Cl. 201, 224-25 (2020) (“To conduct meaningful discussions, the agency must point out
weaknesses or deficiencies in a proposal as specifically as practical considerations permit so that
the agency leads the offeror into areas of its proposal which require amplification or correction.”)
(quotations omitted); see also Advanced Data Concept, Inc. v. United States, 43 Fed. Cl. 410,
422 (1999), aff’d, 216 F.3d 1054 (Fed. Cir. 2000). FAR 15.306(d)(3) does not require MSC to
explain the steps needed to resolve the deficiency or to advise Crowley of the adverse effects for
a deficiency. See Carahsoft Tech. Corp. v. United States, 86 Fed. Cl. 325, 343 (2009) (“[A]n
agency is not required to ‘spoon-feed’ offerors in order to have meaningful discussions.”). MSC
need only accurately identify the weaknesses and deficiencies contained in the offeror’s
proposal—which it did. See Dynacs Eng’g Co., Inc. v. United States, 48 Fed. Cl. 124, 131 (2000)
(“To be meaningful, discussions must include sufficient information as to the areas in which the
offerors' proposals are believed to be weak so that the offerors have a reasonable opportunity to
address those areas of weakness which could have a competitive impact.”) (internal brackets and
quotations omitted). Furthermore, the record shows that Crowley communicated to MSC that it
was in contact with Hapag Lloyd to address the deficiency, and, thus, it was reasonable for MSC
to conclude that Crowley had been given adequate notice of the deficiency and that Crowley had
assumed the responsibility to remedy the deficiency—whether it was ultimately remedied or not.
Under these circumstances, the Court finds that MSC satisfied its obligations to Crowley under
FAR 15.306(d)(3).
IV. CONCLUSION
An incumbency advantage may be improper in circumstances where there is a disparity
of access to information, there is evidence of preferential treatment or other improper action by
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the agency, or the competitive advantage is by reason of government action as opposed to the
result of the incumbent’s own circumstances. See, e.g., Sys. Plus, Inc. v. United States, 69 Fed.
Cl. 757, 772 (2006); Oak Grove Techs., LLC v. United States, 155 Fed. Cl. 84, 115 (2021);
WinStar, 41 Fed. Cl. at 763; see also Bd. of Regents of Nev. Sys. of Higher Educ. v. United
States, 132 Fed. Cl. 435, 458 (2017). Based on an examination of the record in this case,
Crowley has failed to demonstrate that MSC improperly favored Patriot due to its incumbent
status or that MSC’s proposal evaluation and award decision was arbitrary, capricious, an abuse
of discretion, or otherwise not in accordance with law.
For the reasons stated above, Crowley’s motion for judgment on the administrative
record is DENIED, and the government’s and Patriot’s respective cross-motions are
GRANTED. The Clerk is DIRECTED to enter judgment accordingly.
IT IS SO ORDERED.
s/ Thompson M. Dietz
THOMPSON M. DIETZ, Judge
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