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FAR 15.308:  Source selection/tradeoff decision

Comptroller General - Key Excerpts

New MSN challenges the agency's award decision, generally asserting that the cost/technical tradeoff decision was inadequately documented and that the agency improperly converted the solicitation from a best-value tradeoff source selection methodology to a lowest-priced, technically-acceptable source selection methodology. Comments and Supp. Protest of Aug. 17, at 3-9; Comments on Second Supp. AR of Sept. 13, at 2-5.

Source selection decisions must be documented, and must include the rationale for any business judgments and price/technical tradeoffs made or relied upon by the SSA. Wyle Labs., Inc., B-407784, Feb. 19, 2013, 2013 CPD ¶ 63 at 6; see FAR § 15.308. However, there is no need for extensive documentation of every factor considered in a tradeoff decision. See Terex Gov't Programs, B-404946.3, Sept. 7, 2011, 2011 CPD ¶ 176 at 3. Rather, the documentation need only be sufficient to establish that the agency was aware of the relative merits and costs of the competing quotations and that the source selection was reasonably based. Id. The source selection decision here meets this standard.

We agree with the agency that MSN's challenges to the adequacy of its source selection decision are largely a rehash of its assertions that it should have received higher technical ratings, which, as we noted above, have no merit. Moreover, our Office has explained that so long as the ultimate selection decision reflects the selection official's independent judgment, agency selection officials may rely on reports and analyses prepared by others. See, e.g., Puglia Eng'g of California, Inc., B-297413 et al., Jan. 20, 2006, 2006 CPD ¶ 33 at 8. Here, the record demonstrates that the SSA reviewed the report prepared by the TEB to assess the relative merits of the respective quotations. He then utilized his own independent judgment in determining, consistent with the solicitation's evaluation criteria, that FJC represented the best value to the government. Accordingly, on this record, we have no basis to conclude that the SSA failed to adequately document the rationale to support his source selection decision. See Terex Gov't Programs, supra.

As noted above, after completing his comparative analysis of the quotations with respect to their technical capability and past performance, the SSA found that FJC and Vendor B had technical advantages over MSN's technical proposal for specified reasons, and the record shows that the prices of both vendors were significantly lower than the price of MSN. AR, Tab 10, Basis for Award Decision at 9. The SSA performed a cost/technical tradeoff between FJC and Vendor B, concluding that FJC offered the best value to the government notwithstanding Vendor B's superior past performance based on its technical advantages, and FJC also offered a lower price. Id.  (MSN Services, LLC B-414900, B-414900.2, B-414900.3, B-414900.4: Oct 4, 2017)


Source selection officials in negotiated procurements have broad discretion in determining the manner and extent to which they will make use of the technical and price evaluation results; price/technical tradeoffs may be made, and the extent to which one may be sacrificed for the other is governed only by the test of rationality and consistency with the solicitation's evaluation criteria. SRA International, Inc.; Vistronix, LLC, B-413000, B-413000.2, July 25, 2016, 2016 CPD ¶ 208 at 11-12.

Based on our review of the record, we find no merit to any of the allegations raised by the protester and thus, no basis upon which to sustain the protest. The record confirms that a robust analysis was performed by the CO, which was then adopted by the SSA in the agency's award decision. AR, Tab 33, SSR, at 1-24; Tab 34, SSD, at 1. The CO documented the various strengths in the proposals and then performed a comparative analysis to identify any discriminators that might exist between these proposals. AR, Tab 33, SSR, at 6-15; 15-23. For example, the CO found that both offerors proposed a superior transition plan which met all the solicitation's requirements and that both demonstrated a good understanding of the requirements, with each proposal having several features offering advantages to the government. Id. at 16. Based on the comparative analysis, the CO determined that ManTech's proposal offered the best value to the government and that no tradeoffs were required because ManTech's proposal offered higher relative technical value at a lower price. Id. at 23-24. The SSA then reviewed and adopted the CO's award recommendation. AR, Tab 34, SSD, at 1.

Where, as here, the highest-rated, lowest-priced proposal is selected for award in a best-value procurement, a tradeoff is not required. Dell Servs. Fed. Govt., Inc., B-412340, et al., Jan. 20, 2016, 2016 CPD ¶ 43 at 7 n.6; Alliance Tech. Servs., Inc., B-311329, B-311329.2, May 30, 2008, 2008 CPD ¶ 108 at 3. Although ManTech's and OGS's proposals received the same adjectival ratings for all non-price factors, the record confirms that, the CO (and later, the SSA) reasonably found ManTech's proposal to be technically superior and lower-priced. Accordingly, contrary to the protester's assertion, no tradeoff analysis was required.

Moreover, although the protester contends that the agency failed to perceive the benefits offered by various aspects of OGS's proposal, the record reflects otherwise. For example, the CO credited the protester's proposal with strengths because its transition plan demonstrated an ability to ensure no gaps in service. AR, Tab 33, SSR, at 12. With regard to OGS's employee recruitment and retention plan, the CO credited the proposal for providing an emphasis on retaining incumbent personnel. Id. at 11. The CO also credited OGS's proposal with a strength because of the protester's ability to quickly deploy or re-deploy personnel efficiently by appropriately managing pre-deployment requirements. Id. at 13. Contrary to the protester's assertions, our review of the record establishes that the CO properly gave credit to OGS for strengths that the protester alleges were missing from the selection recommendation. Even if the CO had not properly credited OGS's proposal with the strengths that the protester claims were ignored by the agency in its best-value decision, our review finds nothing in the record to support OGS's assertion that its proposal was superior to ManTech's.

Accordingly, we see no basis to sustain OGS's protest.  (
Olgoonik Global Security, LLC, B-414762, B-414762.2: Sep 8, 2017)


New Best-Value Determination

TAG also contends that the SSA’s selection decision was inadequately documented and thus unreasonable. In this regard, TAG argues that the SSA found MIRACORP’s past performance to consist of similar projects, such that the awardee deserved a higher technical past performance rating, but offered no explanation of the basis of this conclusion. We agree.

As explained above, the SSEB concluded that MIRACORP had a significant weakness under the past performance evaluation factor because “it was difficult to determine if the past performance was on similar projects.” AR, exh. 10, SSEB Report, at 8. The evaluators stated that, “One project was for Administrative Technicians at a surgical center while other two were for Administrative Support for a vehicle maintenance and warehousing services.” Id.

The SSA, when making her initial tradeoff decision, stated that she “believes [the weaknesses identified by the SSEB] are not significant risks to acceptable performance.” AR, exh. 11, SSDD, at 6. However, the SSA’s Addendum Report: Price Realism Analysis, drafted as part of the corrective action, stated that she “disagrees with . . . . the SSEB’s consensus rating for Factor 3 [Past Performance] for MIRAC[ORP].” AR, exh. 14, at 5. She found “that MIRAC[ORP] met the definition of similar on its three past performance projects and the finding of a significant weakness and “5” Consensus rating were not warranted.” Id. The SSA did not provide any further explanation of how she concluded that MIRACORP met the definition for similar projects on its three past performance projects, such that the finding of the significant weakness and awardee’s past performance point score were not warranted.

TAG argues that there is no support in the record for the SSA’s rationale for changing the awardee’s past performance rating, and the record shows that the SSA relied upon this as a discriminator in her selection decision. We agree.

Where a cost/technical tradeoff is made, the source selection decision must be documented, and the documentation must include the rationale for any tradeoffs made, including the benefits associated with additional costs. Opti-Lite Optical, B‑281693, Mar. 22, 1999, 99-1 CPD ¶ 61 at 5 (citing Federal Acquisition Regulation § 15.308 in the context of a commercial item acquisition); see Crowder Constr. Co., B-411928, Oct. 8, 2015, 2015 CPD ¶ 313 at 10. Although source selection officials may reasonably disagree with the ratings and recommendations of lower-level evaluators, they are nonetheless bound by the fundamental requirement that their independent judgments be reasonable, consistent with the provisions of the solicitation, and adequately documented. See IBM U.S. Fed., a division of IBM Corp.; Presidio Networked Solutions, Inc., B‑409806 et al., Aug. 15, 2014, 2014 CPD ¶ 241 at 14; see Earl Indus., LLC, B‑309996, B‑309996.4, Nov. 5, 2007, 2007 CPD ¶ 203 at 7.

Here, the SSEB rated the past performance of MIRACORP as containing a significant weakness. The record reflects that the SSA reviewed the SSEB’s assessment, performed her own assessment, and disagreed with the SSEB’s findings. The SSA found that MIRACORP’s past performance did not warrant the significant weakness, that the firm’s past performance score was also unwarranted, and that the technical difference between the protester’s and awardee’s ratings was not as significant as the SSEB found. The SSA, however, did not explain how she reached her conclusions; rather she simply stated that they met the definition. The SSA relied on this finding as part of her determination that MIRACORP’s proposal provided the best value to the Government. Having failed to adequately document the basis for her conclusion regarding MIRACORP’s past performance, the determination that MIRACORP’s lower-priced, lower-rated proposal was more similar in technical ratings to TAG’s proposal than the SSEB found is not supported by the record. We find the agency’s best-value determination to be unreasonable because it is relies, in part, on a determination that is inadequately documented.  (The Arcanum Group, Inc. B-413682.2, B-413682.3: Mar 29, 2017)


In addition to the evaluation and discussions errors addressed above, Mevacon and Encanto argue that the Corps’ best‑value tradeoff decision was flawed because it relied solely on adjectival ratings and did not articulate a reasonable basis for the selection of Infinite’s higher-rated, higher-priced proposal. For the reasons discussed below, we agree and sustain the protest.

As a general matter, source selection officials enjoy broad discretion in making tradeoffs between the comparative merits of competing proposals in a best-value setting; such tradeoffs are governed only by the test of rationality and consistency with the solicitation’s evaluation criteria. Coastal Int’l Sec., Inc., B-411756, B-411756.2, Oct. 19, 2015, 2015 CPD ¶ 340 at 14. As our Office has consistently explained, adjectival ratings are merely guides for intelligent decision-making in the procurement process. Envtl. Restoration, LLC, B-406917, Sept. 28, 2012, 2012 CPD ¶ 266 at 5. The essence of an agency’s evaluation is reflected in the evaluation record--the underlying merits of particular strengths and the proposal as a whole--rather than a comparison of the adjectival ratings. URS Fed. Servs., Inc., B-408893, B-408893.2, Dec. 23, 2013, 2014 CPD ¶ 14 at 4. Where, as here, an agency selects a higher-priced proposal that has been rated technically superior to a lower-priced one, the award decision must be supported by a rational explanation demonstrating that the higher-rated proposal is in fact superior, and explaining why its technical superiority warrants the additional cost. e-LYNXX Corp., B‑292761, Dec. 3, 2003, 2003 CPD ¶ 219 at 7; see FAR § 15.308. A protester’s disagreement with the agency’s judgments about the relative merit of competing proposals, without more, does not establish that the evaluation was unreasonable. General Dynamics Land Sys., B-412525, B‑412525.2, Mar. 15, 2016, 2016 CPD ¶ 89 at 11.

Here, the SSA concluded that Infinite’s proposed price (i.e., its proposed coefficient) was fair and reasonable. AR, Exh. 11, SSDD, at 15. The SSA noted that the RFP provided that non-price factors were more important than price, and that the following provided his basis for the selection of Infinite’s proposal for award:

Considering the technical merits and the associated coefficients proposed by the six (6) Offerors, the proposal submitted by Infinite Energy Construction, Inc. is selected for award as their proposal represents the best overall value to the Government when taking into considering both non-price factors and price while utilizing the Best Value Continuum.

Id. at 15-16.

Although the SSA noted that Infinite’s proposal had the highest technical rating, the award decision did not explain what aspects of that proposal merited payment of a price premium as compared to the other lower-priced, technically-acceptable proposals. Id. at 15-16. In fact, while the [Source Selection Decision Document] SSDD cited the number of strengths and weaknesses assigned to each offeror’s proposal under the non-price evaluation factors, the award decision did not identify or provide any details regarding those strengths and weaknesses. Id. at 5‑15. On this record, we conclude that the award decision failed to provide a reasonable basis for the tradeoff decision and the selection of Infinite’s proposal for award. See ACCESS Sys., Inc., B‑400623.3, Mar. 4, 2009, 2009 CPD ¶ 56 at 7 (protest sustained where the award decision did not identify the advantages associated with the awardee’s higher-rated, higher-priced proposal). (Mevacon-NASCO JV; Encanto Facility Services, LLC B-414329, B-414329.2, B-414329.3, B-414329.4: May 11, 2017)


Eleven offerors submitted proposals in response to the RFP. After evaluating the proposals, the agency established a competitive range, which included the protester and the awardee, and conducted discussions. As provided in the solicitation, the evaluation included a detailed assessment of each offeror’s past performance by mission area. The evaluation also included a breakdown of the percentage of effort in each mission area to be performed by each prime contractor, subcontractor, and joint venture partner. After receipt of final proposal revisions, the proposals included in the competitive range were rated as follows:


Offeror

Technical Subfactors

Past Performance

Total Evaluated Price

1

2

3

4

5

Offeror A

A

A

A

A

A

Satisfactory

$175,250,047

ITES

A

A

A

A

A

Substantial

$202,020,240

Valdez

A

A

A

A

A

Substantial

$203,254,989

Offeror B

A

A

A

A

A

Satisfactory

$210,023,524

Offeror C

A

A

A

A

A

Satisfactory

$213,989,540

Offeror D

A

A

A

A

A

Substantial

$220,342,866

Offeror E

A

A

A

A

A

Satisfactory

$259,032,686

______________________

A= “Acceptable”

Source Selection Decision Document (SSDD) at 3.

After performing a tradeoff analysis, the source selection authority (SSA) selected the proposal of Valdez as representing the best value to the government. SSDD at 1.

(sections deleted)

Finally, the protester argues that the price/past performance tradeoff between Valdez’s proposal and its own was inconsistent with the solicitation because both proposals received performance confidence ratings of substantial confidence. According to the protester, once the agency decided not to select the lowest-price proposal submitted by Offeror A, it should have “compared the prices of the remaining, equally rated offerors that received ratings of Substantial Confidence, and made award to the lowest priced offeror amongst them--ITES.” Comments at 10.

The protester’s argument is, in essence, that the solicitation did not provide for past performance/price tradeoffs among offerors receiving the same performance confidence ratings. We disagree. The RFP provided for “a competitive best value source selection,” and permitted the Air Force to “elect to trade present/past performance for price if warranted.” RFP, § M, at 97. While the RFP explained that one circumstance in which the agency would make a best-value tradeoff was where the lowest-priced offeror had a performance confidence rating of satisfactory confidence or lower, the solicitation did not limit the circumstances in which a past performance/price tradeoff could be performed. In this connection, we have repeatedly recognized that proposals with the same adjectival ratings are not necessarily of equal quality, and that an agency may properly consider–and, in fact, should consider--specific advantages that make one proposal of higher quality than another. ERC, Inc., B‑407297, B-407297.2, Nov. 19, 2012, 2012 CPD ¶ 321 at 6-7. In sum, we see nothing in the terms of the solicitation that would have precluded the agency from determining that distinctions between Valdez’s and the protester’s past performance merited the payment of a price premium to Valdez, even though both offerors received overall performance confidence ratings of substantial confidence.

The protest is denied.  (IT Enterprise Solutions JV, LLC B-412036.3: Jan 31, 2017)


CI maintains that the agency made an unreasonable cost/non-cost tradeoff in making award to UCS. In this connection, the record shows that the agency’s evaluators identified specific strengths and weaknesses in the offerors’ proposals and past performance. AR, exh. 7, Technical Evaluation Team Report. The record also shows that the evaluators ranked the firms, and specifically ranked the protester ahead of the awardee under the non-cost evaluation factors. Id. at 11. Those detailed strengths and weaknesses, along with the ranking of the proposals was carried forward into the agency’s source selection decision. AR, exh. 10, SSD. The protester maintains that the agency unreasonably concluded that CI and UCS (along with two other offerors) were equivalent based solely on the firms’ adjectival ratings and did not perform a detailed critical analysis of the comparative merits of the proposals.

We sustain this aspect of CI’s protest. Adjectival or point score evaluation ratings are merely guides to intelligent decision making. Metis Solutions, LLC, et al., B‑411173.2 et al., July 20, 2015, 2015 CPD ¶ 221 at 13. Evaluators and source selection officials are required to consider the underlying bases for the ratings assigned, including the advantages and disadvantages associated with the specific content of competing proposals. Even in an acquisition conducted under FAR part 16, a contracting officer is required to document the basis for the agency’s selection decision based on a comparative assessment of proposals against all source selection criteria in the solicitation. FAR § 16.505(b)(7); see also Systems Research & Applications Corp.; Booz Allen Hamilton, Inc., B-299818 et al., Sept. 6, 2007, 2008 CPD ¶ 28 at 11-12. While a comparative assessment might be made in the underlying documents upon which the selection decision relies, or in the selection decision itself, it must be documented and reviewable.

Here, as noted, the evaluators identified specific strengths and weaknesses in the offerors’ non-cost proposals and past performance information, and also expressly ranked the proposals, and those findings were incorporated into the agency’s source selection decision. Notwithstanding these facts, the record shows that the agency’s conclusion that four of these proposals were equivalent under the non-cost evaluation factors was based entirely on the adjectival ratings assigned, rather than on a detailed comparison of the strengths and weaknesses of the four proposals. AR, exh. 10, SSD, at 67. In addition, the record contains no explanation of why, although the agency expressly ranked the proposals under the non-cost evaluation factors, it nonetheless found them equivalent. We therefore sustain this aspect of CI’s protest.  (CALNET, Inc. B-413386.2, B-413386.3: Oct 28, 2016)


Next, Heartland protests that the agency’s best-value determination was contrary to the terms of the solicitation, which provided that the technical/management and past performance evaluation factors were significantly more important than price. In this regard, Heartland characterizes the RFP as providing that price would “only be given a major consideration” if the vendors’ quotations were considered equal under the non-price factors, and asserts that its “modestly higher” price should have been “of minor importance” since Heartland’s quotation was rated higher than Ace’s with regard to past performance and technical/management approach. Protest at 3-4.

Where, as here, a solicitation provides for a best-value award and identifies the factors for which tradeoffs will be made, a procuring agency must make its source selection decision consistent with those solicitation provisions. Blue Rock Structures, Inc., B-293134, Feb. 6, 2004, 2004 CPD ¶ 63 at 5. Nonetheless, it is well-settled that an agency may properly select a lower-rated, lower-priced proposal where it reasonably concludes that the benefits of the higher-rated proposal are not worth the price premium. See, e.g., Bella Vista Landscaping, Inc., B-291310, Dec. 16, 2002, 2002 CPD ¶ 217 at 4. The extent of required tradeoffs is governed by the test of rationality and consistency with the evaluation criteria. Best Temporaries, Inc., B‑255677.3, May 13, 1994, 94-1 CPD ¶ 308 at 3.

Here, as discussed above, the agency’s source selection decision document contains an extensive comparison of the evaluated strengths and weaknesses in both vendors’ quotations. AR, Tab 16, Source Selection Decision Document, at 18‑24. Specifically, with regard to the technical/management evaluation factor, the agency performed a subfactor-by-subfactor comparision that recognized the superiority of Heartland’s proposal, but also documented the agency’s assessments regarding the relative value of that superiority under each subfactor, along with the agency’s overall conclusion that Heartland’s advantages were not significant. Id. at 18-22. Similarly, the agency performed a comparison of the vendors’ past performance information, concluding that Heartland’s evaluated superiority under that factor was primarily due to its status as the incumbent and concluded that, in the context of Ace’s positive past performance evaluation, the value to the government of Heartland’s incumbency was “not a large advantage.” Id. at 24. Finally, the agency considered Heartland’s $19,683,612 price premium, and concluded that, even though the technical/management and past performance factors were substantially more important than price, Heartland’s price was “beyond substantially more” than Ace’s price. Accordingly, the agency concluded that Heartland’s price premium outweighed the “minimal gains provided by Heartland’s slightly higher ratings.” Id.

In short, in performing its best-value tradeoff determination, the agency specifically recognized the evaluated superiority of Heartland’s quotation under the non-price factors; made assessments regarding the relative value of that superiority; considered the magnitude of Heartland’s price premium; and concluded that the benefits offered by Heartland’s higher-rated quotation were not worth Heartland’s substantially higher price. We find nothing unreasonable in the agency’s assessments and conclusions; accordingly, we find no merit in Heartland’s protest challenging the agency’s best-value tradeoff.  (Heartland Technology Group, LLC B-412402.2: Sep 29, 2016)


Best-Value Determination

Lastly, Arcadis challenges the agency’s best-value determination, arguing that the SSA’s selection decision is flawed because it is based on a flawed evaluation. Protester’s Comments at 22. We agree with the protester and find that, based on the errors we have identified in the agency’s evaluation of proposals, we are unable to conclude that the agency’s best-value determination was reasonable. Additionally, we sustain the protest because the record does not demonstrate that the agency performed an adequate price/technical tradeoff or considered Arcadis’ lowest price in the evaluation.

In a best-value procurement, such as the one here, it is the function of the source selection authority to perform a tradeoff between price and non-price factors to determine whether one proposal’s superiority under the non-price factors is worth a higher price. System Engineering International, Inc., B-402754, July 20, 2010, 2010 CPD ¶ 167 at 4. Even where, as here, price is stated to be of less importance than the non-price factors, an agency must meaningfully consider cost or price to the government in making its selection decision. Id. at 5. Specifically, before an agency can select a higher-priced proposal that has been rated technically superior to a lower‑priced but acceptable proposal, the award decision must be adequately documented and supported by a rational explanation of why the higher-rated proposal is, in fact, superior, and explain why its technical superiority warrants paying a price premium. Id.

Here, the contemporaneous record lacks documentation of an adequate tradeoff analysis and consideration of Arcadis’ lower-priced, but not unacceptable, proposal. In this regard, the agency performed a price/technical tradeoff between only the two lowest-priced proposals with acceptable ratings. AR, Tab 11, SSDD at 31. Specifically, the agency did not consider either of the marginal-rated proposals in its tradeoff analysis, even though Arcadis proposed a lower price than the awardee. Although Arcadis’ proposal received a marginal rating, the agency did not find the proposal unacceptable, which would have precluded it from issuance of the task order. As such, it should have been included in the tradeoff analysis. System Engineering International, Inc., supra.

In sum, the record reflects that the agency’s ultimate cost/technical tradeoff decision was inadequately documented, premised, at least in part, on an unreasonable evaluation, and failed to consider Arcadis’ lowest-priced proposal. Correction of the identified errors could reasonably improve Arcadis’ evaluation rating under the technical approach factor, and could also result in a lower rating for the awardee under the previous experience and project team factor. Accordingly, we cannot conclude that the SSA would have reached the same source selection decision had the errors in the evaluation not occurred, or that Arcadis was not prejudiced. A reasonable possibility of prejudice is a sufficient basis for sustaining a protest. J.R. Conkey & Assocs., Inc. dba Solar Power Integrators, B-406024.4, Aug. 22, 2012, 2012 CPD ¶ 241 at 11. We therefor sustain Arcadis’ challenge to the agency’s best-value tradeoff decision.  (Arcadis U.S., Inc. B-412828: Jun 16, 2016)


Sterling also argues that Valor should have received a lower rating under the experience factor. In this regard, the TEB assigned Valor’s proposal a rating of satisfactory under the factor, identifying no significant strengths, three strengths, and five weaknesses. The SSA raised the rating to good after identifying a significant strength under the factor and removing three weaknesses.[9] Sterling argues that the significant strength added by the SSA was based on information not relevant to the evaluation criteria for the factor. The protester also contends that Valor omitted required information from its proposal pertaining to administrative support, and failed to propose adequate staffing.[10] Supp. Comments at 17-19.

With respect to Sterling’s contention that the SSA deviated from the evaluation scheme, Sterling argues that it was inconsistent with the terms of the RFP for the SSA to assign Valor’s proposal the following significant strength under the experience factor:

Valor currently operates 28 CBOCs across the nation ranging in size from a few hundred enrollees to over 8,000. They are the only national CBOC operator to have a blanket accreditation from the Joint Commission for their CBOCs. This accreditation applies to all of their existing clinics as well as any new clinics they are awarded.

AR, Tab 15, Source Selection Decision at 13-14. According to Sterling, this information is not responsive to the evaluation criteria for this factor. As previously discussed, agencies are required to evaluate proposals based solely on the factors identified in the solicitation, and must adequately document the bases for their evaluation conclusions. Intercon Assocs.,Inc.,B-298282, B‑298282.2,Aug. 10, 2006,2006 CPD ¶121 at5. While agencies properly may apply evaluation considerations thatare not expressly outlined in the RFP if those considerations are reasonably and logically encompassed within the stated evaluation criteria, there mustbe a clear nexus betweenthe stated and unstated criteria. RaytheonCo., B‑404998,July 25, 2011, 2011 CPD¶ 232 at 15-16.

The experience factor, as set forth in the RFP, directed offerors to submit information, including curriculum vitae and references, for the physicians, physician assistants, nurse practitioners, nurses, and other primary care provider staff that will be used in the performance of the contract. RFP at 149-50. Offerors were also instructed to list the number of administrative support staff and describe the level of training and experience that will be utilized to meet the administrative support functions of this contract, including such functions as patient scheduling, medical record documentation, record processing and reporting, grievance system, and quality assurance and performance improvement. Id.

In the one-page narrative Valor provided in response to this factor, Valor highlights the fact that it operates 28 CBOCs across the nation. While we acknowledge that this information speaks generally to the company’s experience, Valor’s experience operating CBOCs does not provide information about the experience of the specific individuals being proposed to do this work, which is the focus of the evaluation criteria for this factor. Again, the SSA’s finding, set out in its entirety above, provides no explanation. As such, the nexus between the experience of the company and the evaluation criteria is unclear.

The VA argues, in response to the protest, that the Joint Commission accreditation is “directly related to [Valor’s] administrative support functions, proven abilities, and the level of training and experience that will be extended to meet the necessary administrative support functions of this contract.” Supp. AR at 7. Nonetheless, the TEB did not assign a strength or significant strength to Valor under this factor based on its accreditation, and the SSA provided no explanation as to why he believed Valor merited a significant strength on this basis. Given the lack of a clear nexus to the evaluation factor, and the failure of the SSA to adequately document the rationale for the assignment of a significant strength in this regard, we have no basis upon which to conclude that the SSA’s evaluation was reasonable.

In a related argument, Sterling contends that Valor failed to describe the level of training and experience that will be utilized to meet the administrative support functions of the contract, including such functions as patient scheduling, medical record documentation, record processing and reporting, grievance system, and quality assurance and performance improvement altogether. RFP at 149-50. In response to this argument, the VA argued that the fact that Valor is accredited by the Joint Commission speaksto Valor’s administrative support functions, proven abilities, and the level of training and experience that will be extended to meet the necessary administrative support functions of this contract. Supp. AR at 7. As discussed above, however, the record is devoid of any explanation as to how the accreditation speaks to the training or experience of the Valor personnel that will be used to carry out the administrative support functions required by the contract.

While the curricula vitae Valor provided in its proposal for some administrative staff provides certain information about the experience and qualifications of those individuals, and while Valor described its medical scribe program, which would presumably be related to medical record documentation, Valor’s proposal does not describe the level of training and experience that Valor will use to meet the administrative requirements here. For example, Valor’s proposal does not specifically address patient scheduling or a grievance system. Based on the lack of information in the record, we conclude that the agency did not reasonably evaluate whether the staff proposed by Valor would be sufficiently experienced and trained to carry out the administrative tasks called for under the contract. As such, we cannot find the evaluation or source selection decision reasonable and consistent with the requirements of the solicitation.   (Sterling Medical Corporation B-412407, B-412407.2: Feb 3, 2016)  (pdf)


Best Value Tradeoff Determination

Lastly, DTSV alleges that the agency’s price/technical tradeoff analysis was unreasonable. The protester contends that as the agency’s underlying evaluation was materially flawed, the evaluation resulted in an unreasonable best value determination. DTSV also argues the agency’s decision to pay a $13.5 million price premium was irrational insofar as the protester allegedly offered an equivalent, if not superior, proposal to that of FCi.

Source selection officials in negotiated best-value procurements have broad discretion in making cost/technical tradeoffs, and the extent to which one may be sacrificed for the other is governed only by the tests of rationality and consistency with the solicitation’s stated evaluation criteria. InfoPro, Inc., B-408642.2, B-408642.3, Dec. 23, 2014, 2015 CPD ¶ 59 at 24. Source selection decisions must be documented, and the documentation must include the rationale for any business judgments and cost/technical tradeoffs made, including the benefits associated with the additional costs. Federal Acquisition Regulation § 15.308; General Dynamics Info. Tech., Inc., B-406059.2, Mar. 30, 2012, 2012 CPD ¶ 138 at 4. However, there is no need for extensive documentation of every consideration factored into a tradeoff decision; rather, the documentation need only be sufficient to establish that the agency was aware of the relative merits and costs of the competing proposals and that the source selection was reasonably based. Wyle Labs., Inc., B-407784, Feb. 19, 2013, 2013 CPD ¶ 63 at 11.  (Italics provided by Wifcon.com)

DTSV’s argument here is essentially that it was prejudiced by the underlying evaluation of offerors’ proposals cited in its protest--“[i]f these [evaluation] errors were corrected, USCIS would lack any reasonable basis to select FCi’s proposal.” Protest, Oct. 23, 2015, at 19. As discussed above, we find no basis to question the propriety of the underlying evaluation. Further, the record reflects that the SSA reasonably considered FCi’s technical advantages and documented in textbook fashion why these advantages warranted the associated price premium. AR, Tab 26, Source Selection Decision, at 10-12. Thus, we find no basis on which to sustain the protest.

The protest is denied.  (Diversified Technology & Services of Virginia, Inc. B-412090.2, B-412090.3: Dec 16, 2015)  (pdf)


HGS and ACG object to the SSO’s determination that Aktarius’ proposal represented the best value. The protesters contend that the agency improperly converted the best-value procurement to one where award was made to the offeror that submitted the lowest-priced, technically acceptable proposal. Each protester asserts that its higher-rated, higher-priced proposal offered the best value and warranted contract award. We have considered all of the protesters’ various objections to the award decision and find that they provide no basis to sustain the protests.

Generally, in a negotiated procurement, an agency may properly select a lower-rated, lower-priced proposal where it reasonably concludes that the price premium involved in selecting a higher-rated proposal is not justified in light of the acceptable level of technical competence available at a lower price. E.g., Delaware Res. Group of Oklahoma, LLC, B-408962.3, B-408962.4, Mar. 24, 2014, 2014 CPD ¶ 111 at 12, citing Bella Vista Landscaping, Inc., B-291310, Dec. 16, 2002, 2002 CPD ¶ 217 at 4. The extent of such tradeoffs is governed only by the test of rationality and consistency with the evaluation criteria. Best Temporaries, Inc., B-255677.3, May 13, 1994, 94-1 CPD ¶ 308 at 3. A protester’s disagreement with the agency’s determinations as to the relative merits of competing proposals, or disagreement with its judgment as to which proposal offers the best value to the agency, does not establish that the source selection decision was unreasonable. General Dynamics-Ordnance & Tactical Sys., B-401658, B-401658.2, Oct. 26, 2009, 2009 CPD ¶ 217 at 8.

Here, we find unobjectionable the agency’s determination that Aktarius’ proposal represented the best value to the agency. In this regard, the agency’s post-BCM, which memorializes the SSO’s cost/technical tradeoff, reflects a reasonable source-selection decision that is adequately-documented and consistent with the solicitation. The post-BCM included a comprehensive discussion of the TET’s evaluation findings; the voluminous section detailed all proposal features, strengths, and weaknesses, as well as TET concerns resolved through discussions. The document also contained a tradeoff section in which the agency separately compared Aktarius’ lowest-priced proposal against the other four proposals. In each instance, the agency concluded that Aktarius’ proposal represented a better value and documented the basis for this conclusion. ARs, Tab O, Post-BCM, at 57, 59, 61-62, and 64.

(Sections deleted)

In our view, the tradeoff and source selection here were reasonable. Contrary to the protesters’ suggestions, the award was not driven solely by price; rather, as discussed above, the record demonstrates that FEMA performed a meaningful analysis of the differentiating features of the proposals and reached a reasonable conclusion that any technical superiority of the protesters’ proposals was simply not worth the higher price. In this regard, the record shows that the agency acknowledged and extensively documented the advantages of the higher-priced, higher-rated proposals and, as part of its tradeoff analysis, explained in detail why they were not worth the price premium. Such a tradeoff between price and non-price factors and the ultimate determination to award to the lower-priced, lower-rated offeror was in accord with the solicitation’s terms and applicable regulations. See RFP at M-1; FAR § 15.308. Indeed, the award here is particularly unobjectionable where price was weighed approximately equal to the technical criterion and where the RFP plainly contemplated that price could become the “ultimate determining factor for award” as technical proposals became more equal. See RFP at M-1.  (HGS Engineering, Inc.; American Commercial Group, Inc. B-412042, B-412402.2: Dec 10, 2015)  (pdf)


Celta challenges the agency’s evaluation and ultimate award decision. The protester argues that the source selection decision was unreasonable because it was based upon weaknesses that were not contained in Celta’s final proposal. Celta also asserts that the agency unreasonably evaluated its proposal and improperly considered certain assessments of the awardee’s past performance. We have reviewed the entire record and the arguments of the parties, and, as described below, find that the agency’s evaluation and award decision were unreasonable.

Celta first asserts that the agency’s source selection decision was flawed because the SSA relied on erroneous information. Specifically, Celta points to the weaknesses highlighted by the SSA in her source selection decision memorandum. Celta maintains that the firm resolved each of these weaknesses during discussions and, consequently, the SSA’s consideration of these weaknesses as part of her award decision was improper. We agree.

In reviewing protests of an agency’s evaluation and source selection decision, our Office will not reevaluate proposals; rather, we review the record to determine whether the evaluation and source selection decision are reasonable and consistent with the solicitation’s evaluation criteria, and applicable procurement laws and regulations. Velos, Inc., B-400500.8, B-400500.9, Dec. 14, 2009, 2010 CPD ¶ 13 at 11; Keeton Corrections, Inc., B-293348, Mar. 4, 2004, 2005 CPD ¶ 44 at 6. While we will not substitute our judgment for that of the agency, we will sustain a protest where the agency’s conclusions are inconsistent with the solicitation’s evaluation criteria, undocumented, or not reasonably based. DRS ICAS, LLC, B‑401852.4, B‑401852.5, Sept. 8, 2010, 2010 CPD ¶ 261 at 4-5.

Based on our review of the record, we cannot conclude that the agency’s source selection decision was reasonable. In this regard, the record confirms that the TEP determined that Celta’s final proposal resolved all of the weaknesses cited by the SSA in her memorandum. See Agency Supp. Memorandum, exh. A, Response of TEP Chair, at 1-2. Indeed, the contract specialist concedes that when she drafted the source selection decision memorandum for the SSA’s review and signature, she erroneously “assumed that they were still considered to be weaknesses” because she did not see language in the TEP’s reports that Celta addressed the weaknesses. Id., exh. A, Response of Contract Specialist, at 6. Thus, the record is clear that the inclusion of Celta’s weaknesses in the SSA’s memorandum was in error. Consequently, we find unreasonable the agency’s source selection decision.

While the agency argues that the SSA in making her award determination actually did not consider the weaknesses she described in her source selection decision, we find this argument unavailing. In this regard, in a declaration submitted to our Office during the course of the protest, the SSA maintains that she “did not rely upon the specific strengths and weaknesses” described in her memorandum. Agency Supp. Memorandum, exh. A, Response of SSA, at 3. Instead, the SSA asserts that her award decision was “based upon a comparison of each proposal’s final consensus score and price.” Id. at 3, 5. The agency’s explanation in this respect is problematic for several reasons.

First, the contemporaneous record does not support the agency’s post-hoc position that the documented weaknesses did not influence the SSA’s decision. As noted above, the source selection decision memorandum clearly describes the (erroneous) weaknesses in Celta’s proposal as part of the SSA’s “findings.” AR, Tab 9, SSDM, at 6. Nowhere in the source selection decision memorandum does the SSA report that she did not consider these “findings”; only in her post‑protest declaration does the SSA disavow relying on the documented proposal strengths and weaknesses. See Agency Supp. Memorandum, exh. A, Response of SSA, at 3. Because the agency’s post-protest defense is not supported by the contemporaneous record, we find such explanation to be unpersuasive and afford it little weight. See Dismas Charities, Inc., B‑292091, June 25, 2003, 2003 CPD ¶ 125 at 8-9; Boeing Sikorsky Aircraft Support, B‑277263.2, B‑277263.3, Sept. 29, 1997, 97‑2 CPD ¶ 91. We accord much greater weight to contemporaneous source selection materials than to representations, such as the selection official’s statements here, made in response to protest contentions. Southwest Marine, Inc.; Am. Sys. Eng’g Corp., B-265865.3, B-265865.4, Jan. 23, 1996, 96-1 CPD ¶ 56 at 10.

Furthermore, to the extent the SSA actually relied primarily on the point scores assigned by the TEP in making her award determination--as she suggests--such mechanical comparison of the consensus scores, without any qualitative assessment of proposals (i.e., without a consideration of the proposal strengths or weaknesses, as the SSA reports) is unreasonable. See YORK Bldg. Servs., Inc., B‑296948.2 et al., Nov. 3, 2005, 2005 CPD ¶ 202 at 5; Opti-Lite Optical, B‑281693, Mar. 22, 1999, 99‑1 CPD ¶ 61 at 5 (finding source selection not reasonable where award determination was based entirely on a comparison of total technical points and prices). Point scores cannot be used as a substitute for adequate documentation showing the bases for the evaluation conclusions reached and source selection decision made. Panacea Consulting, Inc., B‑299307.4, B‑299308.4, July 27, 2007, 2007 CPD ¶ 141 at 5. Thus, if we accept the agency’s post-hoc explanation, then we are left with a source selection based on a mechanical application of point scores, which would be unreasonable. See The Clay Group, LLC, B‑406647, B-406647.2, July 30, 2012, 2012 CPD ¶ 214 at 12 (finding comparison of proposals based on point scores alone to be inadequate); Midland Supply, Inc., B‑298720, B‑298720.2, 2007 CPD ¶ 2 at 5; see also FAR § 15.308.

We also find the agency’s post-hoc explanation problematic because we cannot conclude that the TEP’s assignment of technical point scores was proper. The assignment of the underlying point scores must be on an intelligible, reasonable, equal and consistent basis for all proposals. Nexant, Inc., B‑407708, B‑407708.2, Jan. 30, 2013, 2013 CPD ¶ 59 at 7. Here, on the record before us, we conclude that the point scores were not reasonably or consistently assigned.

For example, as discussed above, the CRB reviewed the TEP’s evaluation report and had “reservations about consistency in the scoring process.” Contracting Officer’s Statement at 3. In response to the CRB’s concerns, the TEP revised the consensus scores of four proposals. The record shows that, with respect to Diversitech’s proposal, the TEP added one point under the management and operation factor because “there were no documented weaknesses or deficiencies” to support a less than perfect score. AR, Tab 11, Additional TEP Review Addressing CRB Concerns, at 1. However, with respect to Celta’s proposal, the TEP made no such adjustments under the management and operation factor even though, as the TEP chairperson declared, the firm had addressed its weaknesses during discussions, i.e., there were no documented weaknesses or deficiencies. Without explanation, Celta’s proposal was assigned less than the maximum number of points under the factor. Thus, it appears that the TEP increased the points for Diversitech’s proposal but did not similarly increase Celta’s point score, even though both proposals contained no weaknesses. Without any contemporaneous explanation or documentation in the record to justify the TEP’s actions here, we cannot conclude that the point scores, on which the SSA allegedly placed so much reliance, were rationally assigned.

As another example, we find that the record of the agency’s evaluation of the awardee’s past performance factor is insufficient for us to conclude that the evaluation was reasonable. For instance, despite the RFP’s provision that offerors submit for review contracts performed within the past five years, see RFP at 47, Diversitech submitted, and the TEP considered, multiple positive past performance evaluations clearly outside the 5-year window established in the solicitation. See e.g., AR, Tab 17, Diversitech’s Revised Proposal, at 19, 38, 40, 43-59; Agency Supp. Memorandum, exh. A, Response of TEP Chair, at 4. Indeed, the record shows that Diversitech submitted for review a performance evaluation from as far back as September 2004. AR, Tab 17, Diversitech’s Revised Proposal, at 58. Because the contemporaneous evaluation record does not describe how or why point scores were assigned, or which of Diversitech’s past performance evaluations specifically were considered, we are unable to determine to what extent these performance reviews led to Diversitech’s 48-point rating. Consequently, we cannot conclude that the point score assigned to Diversitech’s proposal under the past performance factor was reasonable. Computer Sciences Corp., et al., B-408694.7 et al., Nov. 3, 2014, 2014 CPD ¶ 331 at 11 (agencies are required to adequately document their evaluation results in order to facilitate our examination of the record; where, due to a lack of documentation, we are unable to understand the agency’s evaluation conclusions, we will sustain a protest challenging the agency’s evaluation).

In sum, the record reflects that the source selection decision contained incorrect information with regard to weaknesses in Celta’s proposal, which the protester argues, and the agency has not effectively rebutted, influenced the ultimate award decision. Moreover, the overall evaluation documents demonstrate a lack of rationality and consistency on the part of the agency evaluators in assigning point scores to the proposals, such that the scores relied on by the SSA cannot be said to be reliable or reflective of the comparative merits of the proposals. Thus, we cannot conclude that the agency’s evaluation or award determination was reasonable, and we sustain Celta’s protest. (Celta Services, Inc. B-411835,B-411835.2: Nov 2, 2015) (pdf)


Noble further argues that the SSA failed to exercise his independent judgment in making his selection decision, alleging that the SSA merely adopted the conclusions and rationale of the [Source Selection Decision Document] SSDD from a prior procurement for MRO contracts in DLA’s southwest region, geographical zones 1 and 2. Supp. Protest at 6. In this regard, Noble identifies multiple passages in the two SSDDs that are similar, if not identical, including typographical errors and the assignment of strengths identified in the southwest region’s SSDD to the SSDD for this procurement. For example, Noble notes that with respect to the comparison of Noble’s proposal with SupplyCore’s, the two SSDDs contained the identical following paragraph:

SupplyCore versus Noble Supply: SupplyCore is selected for award over Noble as SupplyCore has received a higher Factor I, Past Performance-Confidence Assessment rating; however, SupplyCore’s total evaluated price is higher than that of Noble. The findings of the SSEB/SSA as well as a comparative analysis are presented above for Factor I and Factor II and those considerations apply here as well. SupplyCore is only one of two offerors to receive the highest Factor I Past Performance-Confidence Assessment of Substantial Confidence and is considered better than Noble which received a Factor I Past Performance-Confidence Assessment of Satisfactory. Factor I, Past Performance is the most important factor.

Supp. Protest at 12; see AR, Tab 7, SSDD (South Central), at 36; AR, Tab 18, SSDD (Southwest), at 38-39. Noble also notes the inclusion in the south central SSDD of strengths that were identified in the southwest SSDD, but had not been identified by the SSEB in the south central procurement. Noble Supp. Comments at 6 n.2. Noble further points out that the south central SSDD included the statement that, “by comparison, [Deleted], and Noble were given ratings of Satisfactory Confidence for Factor 1,” even though [Deleted] was not included in the competitive range for the south central procurement and therefore not evaluated in the SSDD. Supp. Protest at 17; see AR, Tab 7, SSDD (South Central) at 16.

FAR § 15.308 provides that:


The source selection authority’s (SSA) decision shall be based on a comparative assessment of proposals against all source selection criteria in the solicitation. While the SSA may use reports and analyses prepared by others, the source selection decision shall represent the SSA’s independent judgment.

FAR § 15.308.

Our Office conducted a hearing on the record to obtain testimony from the SSA regarding the basis for his source selection decision. The SSA testified that the RFP for the southwest region was used as a template for RFPs for other regions such as the south central region, and tailored for use in other regions with regard to details such as estimated values and number of delivery orders. Hearing Transcript (Tr.) at 12-13. The SSA explained that each procurement had a different contracting officer, who was responsible for preparing the price negotiation memorandum and making an award recommendation, as well as a separate SSEB with a different chairperson. The SSEBs for the southwest and south central regions had one member of the technical evaluation panel in common. Tr. at 15, 20.

The SSA further explained that he reviewed the RFP, the SSP, the final technical report, the price negotiation memorandum, and the offerors’ proposals, and then checked to ensure there was consistency between the technical report and price negotiation memorandum. He stated that he took notes on what should go into the SSDD with respect to the technical subfactors and past performance information. Tr. at 17, 53‑54. With respect to drafting the actual SSDD, the SSA stated that he used the southwest SSDD as a template because of the similarity between the two procurements, highlighting the draft, then adjusting based on the facts of the south central documents and removing the highlights. As a result, some typographical errors transferred to the south central SSDD. Tr. at 18-19, 21.

The SSA also noted that the same past performance reference contracts were submitted by the offerors in response to both the southwest and south central RFPs, and the evaluators reached the same conclusions; therefore the summary conclusions in the SSDD were the same. Tr. at 24-25, 26. With respect to additions the SSA made to the technical evaluations for the south central procurement, the SSA explained, for example, that he added SAIC’s [Deleted] as a strength to SAIC’s proposal not because it was listed in the southwest SSDD, but rather because [Deleted] was included as a strength in the south central SSDD for other offerors. Tr. at 29-30.

In reviewing an agency’s evaluation, we do not limit our consideration to contemporaneously-documented evidence, but instead consider all the information provided, including the parties’ arguments, explanations, and any hearing testimony. The S.M. Stoller Corp., B-400937 et al., Mar. 25, 2009, 2009 CPD ¶ 193 at 13. While we generally give little or no weight to reevaluations and judgments prepared in the heat of the adversarial process, Boeing Sikorsky Aircraft Support, B‑277263.2, B-277263.3, Sept. 29, 1997, 97-2 CPD ¶ 91 at 15, post-protest explanations that provide a detailed rationale for contemporaneous conclusions, and simply fill in previously unrecorded details, will generally be considered in our review of the rationality of selection decisions--so long as those explanations are credible and consistent with the contemporaneous record. Remington Arms Co., Inc., B-297374, B-297374.2, Jan. 12, 2006, 2006 CPD ¶ 32 at 12.

Here, the record--including the SSA’s testimony--indicates that the SSA exercised his independent judgment with respect to the SSDD for the south central procurement. As the SSA explained, the RFPs were very similar, contemplating contracts for MRO items for two geographic zones within the same region. In addition, the RFPs identified evaluation criteria that were almost identical. In response, the record shows that offerors submitted similar proposals, and that both teams of evaluators evaluated the same contract references. Thus, we see no support for concluding that the selection official did not make an independent assessment based on the fact that the two SSDDs included many instances of similar language.

Further, where the two teams of evaluators differed, the record includes evidence that the SSA exercised his independent judgment. For example, when the SSA raised the performance ratings for [Deleted] contract reference in the south central SSDD to equal those of the southwest SSDD, he provided an explanation. In this regard, for one contract, the SSA noted that the most recent “CPARS ratings were very good to exceptional with customers stating they Definitely Would do business with [Deleted] again.” AR, Tab 7, SSDD (South Central), at 10-11; AR, Tab 18, SSDD (Southwest), at 11.

With respect to the additional strengths included by the SSA in the south central procurement SSDD, which in the protester’s view evidenced a lack of independent judgment, we conclude that these strengths support DLA’s position. For example, the SSA added three strengths to the assessment of SAIC’s proposal in the south central SSDD that were not reflected in the south central SSEB report. While all three of the strengths mirrored those in the southwest SSDD, one strength added by the SSA (concerning [Deleted]) included information not included in the southwest SSDD. Additionally, the south central SSDD included a strength for SAIC for a Defense Contract Management Agency approved ordering system that was not a strength in the southwest SSDD. AR, Tab 7, SSDD (South Central), at 18-19; AR, Tab 18, SSDD (Southwest), at 20-21.

In sum, while there is clear evidence that the SSA utilized the southwest SSDD as a template, the record--including credible hearing testimony provided by the SSA--supports the agency’s contention that the SSA exercised his independent judgment in making his selection decision for the south central awards for zones 1 and 2. Moreover, Noble has not demonstrated that the errors incorporated into the decision document as a result of using the southwest SSDD as a template (e.g., a passing reference to [Deleted], a company that was not included in the competitive range for the south central procurement), resulted in any competitive prejudice to the protester. Interfor US, Inc., B-410622, Dec. 30, 2014, 2015 CPD ¶ 19 at 7 (competitive prejudice is an essential element of every viable protest, and where none is shown or otherwise evident, we will not sustain a protest).  (Noble Supply and Logistics, B-410788.4, B-410788.5, B-410788.6, B-410788.7: Jul 29, 2015)  (pdf)


In a best value procurement, it is the function of the source selection authority to perform a tradeoff between cost and non-cost factors, that is, to determine whether one proposal’s superiority under the non-cost factor is worth a higher cost. Even where, as here, cost is stated to be of less importance than the non-cost factors, an agency must meaningfully consider cost to the government in making its selection decision. See e-LYNXX Corp., B-292761, Dec. 3, 2003, 2003 CPD ¶ 219 at 7; see also 10 U.S.C. § 2304c(d)(3) (requiring consideration of cost in the award of orders under multiple-award contracts). Specifically, before an agency can select a higher-cost proposal that has been rated technically superior to a lower-cost, but acceptable one, the award decision must be supported by a rational explanation of why the higher-rated proposal is, in fact, superior, and explain why its technical superiority warrants paying a cost premium. ACCESS Sys., Inc., B-400623.3, Mar. 4, 2009, 2009 CPD ¶ 56 at 7.

DARPA argues that it conducted a rational tradeoff because Agile’s proposal was rated higher than DKW’s proposal under the non-cost factors, and because DKW’s proposal represented a high cost risk to the government. Supp. Agency Report at 1. DARPA states that the benefit identified in Agile’s proposal that was worth the cost premium was that its proposal was deemed reasonable, realistic and represented the lowest cost risk to the government in terms of dollars. Id. at 20.

Our review of the record shows that the agency did not conduct a rational best value tradeoff decision. As discussed above, the SSA accepted the adjectival ratings assigned by the evaluation team to each of the three proposals under consideration, but did not discuss the proposal features underlying those ratings. AR, exh. 17, SDD, at 3-4. The SSA also adopted the evaluation team’s assessment of cost proposals, which consisted entirely of proposals being evaluated for cost risk, as described above, and contained no meaningful consideration of the relative costs evaluated for each proposal. Id. at 4. The sum total of the SSA’s best value tradeoff decision consisted of the statement, “I determine that Agile has the technical and business expertise to most successfully perform the . . . requirements. I also determine that Agile’s proposed costs are reasonable and realistic and have the lowest overall cost risk to the Government.” Id. at 5.

There is no evidence in the record that the agency considered cost to the government in making its selection decision. As discussed, in deciding to award to a higher-cost proposal that has been rated technically superior to a lower-cost but acceptable one, an award decision must be supported by a rational explanation of why the higher-rated proposal is, in fact, superior, and why its technical superiority warrants paying a cost premium. Stated simply, such an analysis weighs the benefits of lower cost versus technical superiority. In this context, the cost premium represents the higher price the agency will pay in order to receive some evaluated benefit from the higher-rated proposal.

Here, a rational tradeoff by the agency would have required it to consider whether the benefits of Agile’s technical proposal warranted paying more for that proposal (i.e., a cost premium), as opposed to accepting DKW’s lower-rated, lower-cost proposal. While the agency asserts that it conducted a rational tradeoff, and gave meaningful consideration to cost, our review of the record shows that the analysis was not rational. While DKW’s evaluated most probable cost of $129.9 million is clearly lower than Agile’s most probable cost of $154.4 million, the contemporaneous record does not reflect any consideration of this potential cost savings. Instead, the agency concluded that Agile’s cost proposal was more favorable simply because its higher proposed costs were closer to the agency’s estimate of the proposal’s most probable cost. Such an analysis does not consider the relative benefit of paying a lower cost, as required in a tradeoff analysis. Since the record shows that the agency did not meaningfully consider the overall cost to the government in selecting Agile’s higher-cost proposal in its tradeoff decision, we sustain the protest.

We also agree with the protester that, to the extent that the SSA considered the non-cost features of the proposals, the best-value tradeoff analysis was not sufficiently documented. An award decision must be supported by a rational explanation of why the higher-rated proposal is, in fact, superior, and explain why its technical superiority warrants paying a cost premium. ACCESS Sys., Inc., supra, at 7. Here, both the evaluation team and the SSA’s consideration of the technical merits of each proposal consisted only of the adjectival ratings assigned and the agency’s assessment of cost risk. As our Office has held, adjectival ratings serve only as guides to intelligent decision making, and source selection officials should reasonably consider the underlying bases for ratings, including the advantages and disadvantages associated with the specific content of competing proposals. See CPS Prof’l Servs., LLC, B-409811, B‑409811.2, Aug. 13, 2014, 2014 CPD ¶ 260 at 5. On this record, we cannot determine the reasonableness of the agency’s award decision.  (DKW Communications, Inc. B-411182, B-411182.2: Jun 9, 2015)  (pdf)


The solicitation established a best-value selection process considering, in descending order of importance, technical, past performance, and price factors. RFP at 2.

(sections deleted)

The agency received six proposals, in response to the RFP. Following evaluations, Cherokee and AGEISS were rated as follows:

 

Cherokee

AGEISS

Technical

   

Technical Capability/

Understanding

Technical Rating

Good

Acceptable

Risk Rating

Low

Low

Personnel/

Team Qualifications

Technical Rating

Good

Good

Risk Rating

Low

Low

Past Performance

Satisfactory Confidence

Satisfactory Confidence

Price

$12,400,457

$11,404,145

Best Value Tradeoff

Finally, Cherokee asserts that the agency’s best value decision was improper. Cherokee contends that the agency failed to conduct and document a comparative analysis of the proposals, and that the selection of AGEISS's lower-rated, lower‑priced proposal was not consistent with the solicitation's evaluation scheme providing that the non‑price factors were more important than price. Comments on AR at 13. The agency argues that the selection of AGEISS’s lower-rated, lower‑priced proposal was proper where the agency reasonably documented the basis for its conclusion that the cost premium involved in selecting the protester’s higher‑rated, higher-priced proposal was not justified. AR at 17-19.

Source selection officials in negotiated procurements have broad discretion in determining the manner and extent to which they will make use of the technical and price evaluation results; price/technical trade-offs may be made, and the extent to which one may be sacrificed for the other is governed only by the test of rationality and consistency with the solicitation’s evaluation criteria. Halfaker and Associates, LLC, B-407919, B-407919.2, April 10, 2013, 2013 CPD ¶ 98 at 12. Even where, as here, technical merit is significantly more important than cost, an agency may properly select a lower-cost, lower-rated proposal if it reasonably decides that the cost premium involved in selecting a higher-rated, higher-cost proposal is not justified. Id.

The record here does not support Cherokee’s contention that the CO’s comparison of the proposals was inadequate, or that the award decision was inconsistent with the solicitation’s award scheme. The selection decision demonstrates that the CO thoroughly reviewed the technical evaluation report before reaching her award decision. In her selection decision, the CO recognized that the RFP established price as the least important of the evaluation factors. AR, Tab 23, CO Decision Document at 24. The CO also acknowledged that Cherokee’s proposal had an advantage under the first technical subfactor based on the protester’s extensive knowledge and a sound understanding of the PRD process. Id. According to the CO, the benefit associated with Cherokee’s technical advantage was not worth the additional $996,312 cost, given that AGEISS’s proposal also demonstrated a clear understanding and experience with the PRD process. Id. Cherokee has not shown that the CO's judgment in this regard was unreasonable.

The protest is denied.  (Cherokee Nation Technology Solutions, LLC B-411140: May 22, 2015)  (pdf)


Here, the RFP expressly provided for evaluation of technical proposals “on an Acceptable/Unacceptable basis,” RFP, amend. 1, at 18, and established no comparative or qualitative rating system. While the RFP, in Section M (Evaluation Factors for Award), referred to forming a competitive range of “the most highly rated proposals,” which by itself could be read as suggesting a qualitative review, it also stated that “[h]ighly rated proposals . . . will include all proposals rated Technically Acceptable.” Id. In this circumstance, the protester’s insistence that the agency was required to identify strengths and weaknesses in competing proposals, and “make discriminating comparisons of the advantages and disadvantages of the competing proposals,” is inconsistent with the plain terms of the RFP. Protester’s Comments at 2.

Similarly, while Nangwick argues that “cost was not a discriminating factor” because the price difference between its offer and Technica’s was small, this argument is factually incorrect. Here, the two proposals were rated identically under all of the non-price factors, and one proposal was priced lower than the other; price was the only discriminator. In a negotiated procurement with a best-value source selection methodology, where selection officials reasonably regard proposals as being essentially technically equal, price properly may become the determining factor in making award, notwithstanding that the solicitation assigned price less importance than the technical factors. Synergetics, Inc., B‑299904, Sept. 14, 2007, 2007 CPD ¶ 168 at 7.

Although the agency refers to its selection decision as a tradeoff, no price/technical tradeoff was required here, since the proposals were reasonably determined to be technically equal and award was made to the offeror that submitted the lowest-priced proposal. The fact that Nangwik disagrees with the agency’s judgment does not establish that the evaluation was unreasonable. Entz Aerodyne, Inc., supra. Nangwik has provided no basis to question the reasonableness of the SSA’s decision to make award to Technica.  (Nangwik Services, LLC B-410444: Dec 23, 2014)  (pdf)


Prior to the deadline for the submission of proposals, the Army received proposals from E&Y, PwC, and IBM (the incumbent contractor). PwC AR at 10. An Army technical evaluation team (TET) evaluated proposals under factors 1-5, identifying strengths and weaknesses for factors 1 and 2 and determining the acceptability of proposals under factors 3, 4, and 5. Id. A small business evaluator reviewed proposals under factor 6, and a price evaluator analyzed proposed prices. Id. The results of the agency’s evaluation were as follows:

 

E&Y

PwC

IBM

1 - Experience

Outstanding

Outstanding

Outstanding

2 - Approach to Sample Scenario

Acceptable

Outstanding

Outstanding

3 - Past Performance

Acceptable

Acceptable

Acceptable

4 - Key Personnel

Acceptable

Acceptable

Acceptable

5 - Transition Plan

Acceptable

Acceptable

Acceptable

6 - Small Business Utilization

Acceptable

Acceptable

Acceptable

7 - Price

$55,553,597

$106,619,357

$85,986,434

(Sections deleted)

Source Selection Decision

The source selection authority (SSA) reviewed the [source selection advisory council] SSAC’s briefing slides and memorandum and prepared a source selection decision document (SSDD) explaining the decision to award the contract to E&Y. PwC AR, Tab P, SSDD, at 1-17. In this regard, the SSA detailed the evaluators’ findings under each of the factors.

(Sections deleted)

With respect to price, the SSA conducted a comparative price analysis and found that the differences in offerors’ proposed prices were due to differences in the discounted GSA rates that each offeror proposed. Id. at 14. The SSA explained that E&Y’s “low price and significant discounts were carefully considered to ensure that they were accurate and not the result of a mistake.” Id. at 15. The SSA confirmed that E&Y “consciously discounted their GSA schedule rates heavily,” and he documented several explanations from E&Y’s proposal. Id. With respect to E&Y’s price, the SSA concluded:

While the rates proposed by [E&Y] are deeply discounted, considering the fixed nature of these rates, the contract maximums in place, the explanation in Offeror A’s proposal confirming and explaining the prices and discounts provided, the size and experience of the company, and the Government oversight and controls over cost increases, there is no reason to doubt the Army will reap the savings proposed.

Id. at 16-17. The SSA further concluded that each firm proposed fair and reasonable prices. Id. at 15.

Ultimately, the SSA determined that E&Y’s proposal represented the best value to the agency. Id. at 17. In reaching this conclusion, the SSA explained as follows:

[E&Y’s] proposal clearly indicates that they can perform this mission, offers several strengths, and has limited weaknesses. While there is clearly a distinction between the technical proposals, and while award to [E&Y] may not result in the best performance possible, ultimately it is the Army that is responsible for the approach, cost, oversight and success of this mission. After careful assessment, it is evident that the additional strengths provided by [IBM] and [PwC] do not warrant paying a premium of $30,432,837 (or 54.8%) to award to [IBM] or a premium of $51,065,760 (or 91.9%) to award to [PwC].

Id. On May 22, the Army awarded the contract to E&Y. Following their respective debriefings, PwC and IBM filed these protests.

Source Selection Decision

The source selection authority (SSA) reviewed the SSAC’s briefing slides and memorandum and prepared a source selection decision document (SSDD) explaining the decision to award the contract to E&Y. PwC AR, Tab P, SSDD, at 1-17. In this regard, the SSA detailed the evaluators’ findings under each of the factors. With respect to the experience factor, the SSA noted that E&Y demonstrated the experience to meet five of the solicitation’s six experience points, and that the TET assigned the firm’s proposal several strengths under the factor. Id. at 3. The SSA also, however, highlighted the two weaknesses identified by the TET. The SSA concluded that E&Y’s “lack of detail to demonstrate experience with the [deleted] could result in missed audit readiness milestones, deliverable delays, and increased level of effort from IT contractor personnel, and could create a risk in meeting milestones if not properly managed.” Id. On the other hand, the SSA noted that neither IBM nor PwC had any weaknesses and both firm’s proposals offered significant strengths that the SSA documented. Id. at 4-5. Under the experience factor, the SSA concluded that IBM’s proposal was “superior” to E&Y’s, and that PwC’s proposal was “even better than” IBM’s. Id. at 5.

(Section deleted)

With respect to price, the SSA conducted a comparative price analysis and found that the differences in offerors’ proposed prices were due to differences in the discounted GSA rates that each offeror proposed. Id. at 14. The SSA explained that E&Y’s “low price and significant discounts were carefully considered to ensure that they were accurate and not the result of a mistake.” Id. at 15. The SSA confirmed that E&Y “consciously discounted their GSA schedule rates heavily,” and he documented several explanations from E&Y’s proposal. Id. With respect to E&Y’s price, the SSA concluded:

While the rates proposed by [E&Y] are deeply discounted, considering the fixed nature of these rates, the contract maximums in place, the explanation in Offeror A’s proposal confirming and explaining the prices and discounts provided, the size and experience of the company, and the Government oversight and controls over cost increases, there is no reason to doubt the Army will reap the savings proposed.

Id. at 16-17. The SSA further concluded that each firm proposed fair and reasonable prices. Id. at 15.

Ultimately, the SSA determined that E&Y’s proposal represented the best value to the agency. Id. at 17. In reaching this conclusion, the SSA explained as follows:

[E&Y’s] proposal clearly indicates that they can perform this mission, offers several strengths, and has limited weaknesses. While there is clearly a distinction between the technical proposals, and while award to [E&Y] may not result in the best performance possible, ultimately it is the Army that is responsible for the approach, cost, oversight and success of this mission. After careful assessment, it is evident that the additional strengths provided by [IBM] and [PwC] do not warrant paying a premium of $30,432,837 (or 54.8%) to award to [IBM] or a premium of $51,065,760 (or 91.9%) to award to [PwC].

Id. On May 22, the Army awarded the contract to E&Y. Following their respective debriefings, PwC and IBM filed these protests.

DISCUSSION

(Sections deleted)

Cost/Technical Tradeoff

The protesters also contend that the Army’s award decision was irrational. PwC argues that the SSA did not provide “[s]ufficient [j]ustification” for selecting E&Y’s “[l]ower [q]uality [p]roposal.” PwC Comments/Supp. Protest at 35. IBM decries the SSDD as “fundamentally flawed” because the SSA “irrationally concluded” that the agency would realize savings from E&Y’s low price. IBM Comments/Supp. Protest at 62-65. IBM also asserts that the SSA deviated from the TET’s evaluation conclusions, and that his decision was “fatally infected” from the underlying evaluation errors it raises in its protest. Id. at 66-70.

Source selection officials in negotiated best-value procurements have broad discretion in making price/technical tradeoffs, and the extent to which one may be sacrificed for the other is governed only by the tests of rationality and consistency with the solicitation’s evaluation criteria. World Airways, Inc., B-402674, June 25, 2010, 2010 CPD ¶ 284 at 12. Even where, as here, price is stated to be of less importance than technical merit, an agency may properly select a lower-rated, lower-priced proposal if the agency reasonably concludes that the price premium involved in selecting the higher-rated proposal is not justified. Aegis Defence Servs., Ltd., B-403226 et al., Oct. 1, 2010, 2010 CPD ¶ 238 at 10. A protester’s mere disagreement with the agency’s determinations as to the relative merits of competing proposals, or disagreement with its judgment as to which proposal offers the best value to the agency, does not establish that the source selection decision was unreasonable. General Dynamics-Ordnance & Tactical Sys., B-401658, B-401658.2, Oct. 26, 2009, 2009 CPD ¶ 217 at 8.

As detailed above, the SSA reasonably explained in his SSDD his rationale for selecting the lower-priced, lower-rated proposal submitted by E&Y. Notwithstanding the protesters’ assertions to the contrary, the SSA fully acknowledged the superiority of IBM’s and PwC’s proposals, particularly under the experience and approach to sample scenario factors. See PwC AR, Tab P, SSDD, at 3-8, 16-17. Indeed, the SSA concluded that the approaches offered by IBM and PwC were “more advantageous” than E&Y’s proposed approach. Id. at 16. The SSA also detailed the concerns he had with E&Y’s proposal, even noting that award to E&Y “could result in missed audit readiness milestones, deliverable delays, and increased level of effort from IT contractor personnel. . . .” Id. at 3. Ultimately, though, the SSA determined that the weaknesses associated with E&Y’s proposal “do not preclude [E&Y] from performing the required services.” Id. at 5.

With respect to E&Y’s proposal weaknesses, the protesters further complain that the TET characterized the weaknesses under the experience factor as “significant,” but that the SSA and SSAC “ignored” this fact. PwC Comment/Supp. Protest at 32; IBM Comment/Supp. Protest at 66-69. We acknowledge that neither the SSAC nor the SSA refer to E&Y’s weaknesses as significant, nor does either proffer any explanation for failing to do so. However, we are not persuaded that this alone demonstrates an irrational award decision. That these weaknesses were not described in the SSDD as significant does not mean that they were not considered by the SSA or taken into account in the ultimate award decision. Indeed, the SSA described in detail the relative shortfalls associated with E&Y’s proposal under the experience factor. PwC AR, Tab P, SSDD, at 3, 5. The SSA recognized that award to E&Y “may not result in the best performance possible,” yet still selected the firm for award because of the “substantial” price variance. Id. at 16-17. On this record, we disagree that the SSA’s failure to describe E&Y’s proposal weaknesses as significant constitutes an error that renders the award decision irrational.

The protesters also take exception to the SSA’s conclusion that “there is no reason to doubt the Army will reap the savings proposed” by E&Y’s “deeply discounted” rates. Id. at 17; see PwC Comment/Supp. Protest at 37-42; IBM Comment/Supp. Protest at 63-65. In his SSDD, the SSA documented E&Y’s explanations for the firm’s low rates. Specifically, the SSA noted:

· [E&Y] recognizes that the Army Audit Readiness program is not immune to & will be subject to budget restrictions caused by sequestration and ongoing budget battles. Therefore a conscious determination was made by [E&Y] to reduce proposed price.

· [E&Y’s] staffing approach will [deleted], allowing [E&Y] to provide personnel with the required experience and skills [deleted].

· [E&Y] will leverage prior work, gather relevant documentation and transition quickly to a new phase of audit remediation effort with [deleted]. [E&Y] has existing tools, templates, and methodologies to perform each requirement.

PwC AR, Tab P, SSDD, at 15. In finding E&Y’s proposed price reasonable, the SSA also remarked that E&Y relied on “[deleted]” than IBM and PwC. Id. The SSA explained, “[deleted] can result in inherently higher costs due to [deleted].” Id. Ultimately, as discussed above, the SSA found “no reason to doubt” the cost savings associated with E&Y’s low rates because of the “fixed nature of these rates, the contract maximums in place, the explanation in [E&Y’s] proposal . . . the size and experience of the company, and the Government oversight and controls over cost increases. . . .” Id. at 17.

The protesters challenge these determinations regarding E&Y’s proposed prices. We have considered all of the protesters’ objections and conclude that their disagreements with the agency’s judgments do not establish that the SSA’s conclusions were unreasonable. For example, IBM argues that the “contract maximums” do not provide any assurance that the agency would realize any anticipated savings because if E&Y performs inefficiently and hits the maximums without fulfilling the Army’s needs, then the Army would have to pay more to fulfill its requirements. IBM Comments/Supp. Protest at 63. We agree with the Army that IBM’s stated concerns are inherent in any time-and-materials contract--including one awarded to IBM--but that does not demonstrate that the awardee’s prices were unreasonable or that the agency had reason to believe that E&Y will perform inefficiently such that the Army will need to pay more to acquire the services. See IBM Supp. AR at 25. In any event, we note that the SSA acknowledged that “ultimately it is the Army that is responsible for the approach, cost, oversight and success of the this mission.” PwC AR, Tab P, SSDD, at 17. IBM’s concerns about the possibility of inefficient performance, a matter expressly considered by the agency, do not demonstrate that the SSA’s findings were unreasonable.  (PricewaterhouseCoopers LLP; IBM U.S. Federal, B-409885, B-409885.2, B-409885.3,B-409885.4, B-409885.5, B-409885.6: Sep 5, 2014). (pdf)


PwC challenges the agency’s selection decision, arguing that the SSA in his price/ technical tradeoff unreasonably ignored both PwC’s technical strengths and CLA’s technical weaknesses, thereby essentially finding the vendors’ quotations to be technically equal when they were not. PwC contends that had the agency reasonably considered the firms’ respective technical merit, it (and not CLA) would have been selected to receive the task order.

In reviewing protests of awards in a FSS competition, we do not reevaluate quotations but examine the record to determine whether the evaluation and source selection decision are reasonable and consistent with the solicitation’s evaluation criteria and applicable procurement laws and regulations. Savvee Consulting, Inc., B-408416.3, Mar. 5, 2014, 2014 CPD ¶ 92 at 4; IBM Global Bus. Serv. - U.S. Fed., B-409029, B-409029.2, Jan 27, 2014, 2014 CPD ¶ 43 at 4. In this regard, FAR Subpart 8.4 requires that agencies make their award decisions in accordance with the solicitation’s stated evaluated criteria. FAR § 8.405-2(c)(3)(iii)(C) (the ordering activity contracting officer shall ensure . . . award is made in accordance with the evaluation criteria in the RFQ).

Where, as here, a procurement provides for issuance of a task order on a “best value” basis, it is the function of the SSA to perform a price/technical tradeoff, that is, to determine whether one quotation’s technical superiority is worth its higher price. General Dynamics Info. Tech., Inc., B-406030, B-406030.3, Jan. 25, 2012, 2012 CPD ¶ 55 at 6; InnovaTech, Inc., B-402415, Apr. 8, 2010, 2010 CPD ¶ 94 at 6. While an agency has broad discretion in making a tradeoff between price and nonprice factors, an award decision in favor of a lower-rated, lower-priced quotation must acknowledge and document any significant advantages of the higher-priced, higher-rated quotation, and explain why they are not worth the price premium. See NOVA Corp., B-408046, B-408046.2, June 4, 2013, 2013 CPD ¶ 127 at 5. For example, in Blue Rock Structures, Inc., B-293134, Feb. 6, 2004, 2004 CPD ¶ 63, our Office sustained a challenge to an agency’s selection of a lower-rated, lower-priced proposal, where the SSA failed to acknowledge the evaluated advantages of the higher-rated proposal, and to furnish an explanation as to why the protester’s higher-rated proposal’s advantages were not worth price premium. In contrast, our Office held in Phoenix Group of Virginia, Inc., B-407852, Mar. 12, 2013, 2013 CPD ¶ 80, that the selection of a lower-rated, lower-priced proposal was unobjectionable where the record showed that the SSA considered evaluated differences in quotations, documented her deliberations and rationale, and concluded that a slight technical advantage was not worth a substantial price premium.

Here, after reviewing the agency’s report and the SSA’s selection decision, our Office had concerns about the adequacy of the SSA’s price/technical tradeoff determination and conducted a hearing to obtain the SSA’s further explanation. We find from our review of this record, as explained below, that the SSA’s tradeoff determination was not consistent with the stated evaluation criteria. Rather, the SSA discounted PwC’s technical superiority based upon CLA’s past performance (which the record does not show to be a discriminator) and based upon the SSA’s view that CLA’s weaknesses would be negated by contract oversight.

As noted above, the SSA accepted the SET’s underlying findings regarding PwC’s technical strengths and CLA’s technical weaknesses. The SSA concluded, however, that CLA’s weaknesses could be effectively mitigated by government oversight, and were not a cause for concern because CLA’s record of past performance indicated that the firm could satisfactorily perform the task order. Likewise, the SSA found that PwC’s significant strength--to the extent not offset by CLA’s smaller-in-scope strength--was offset by CLA’s record of past performance. Again, the SSA found that PwC’s other two strengths were also offset by CLA’s record of past performance. Put simply, the testimony provided in the hearing before our Office showed that the SSA essentially used CLA’s past performance as a replacement, or substitute, for CLA’s evaluated technical inferiority:

Q: Why -- on a number of occasions now, [SSA], you seem to be relying upon CLA’s past performance to either make up for weaknesses in their proposal or to negate the strengths in PwC’s technical proposal.

A: And I certainly don’t mean to do that. But PwC had a very solid technical proposal. And -- you know, CLA had a very good one too. But then when I looked at [CLA’s]--any of the weaknesses identified, when I looked at the past performances, they had done all of this comparable work in all of these [audit] areas, they just did not put it in the -- in the technical proposal section.

Tr. at 131-32.

The record reflects, however, that CLA did not have stronger past performance than PwC, such that the SSA could reasonably make tradeoffs between one vendor’s technical superiority and another vendor’s stronger past performance. Rather, PwC and CLA were found to have essentially equal past performance. In fact, the SSA expressly found that past performance was not a discriminator between the PwC and CLA quotations. AR, Tab 22, Source Selection Decision, Feb. 11, 2014, at 14.

The SSA, however, treated CLA’s past performance as if it were superior to PwC’s, and used it as the reason to offset PwC’s technical advantages. In this regard, the SSA repeatedly testified that in making his determination, both CLA’s weaknesses and PwC’s strengths were offset by CLA’s past performance (“when you look at the past performance, that would just offset some of [PwC’s] strengths”). Tr. at 139; see also Tr. at 62-63, 129, 147. We fail to see how CLA’s past performance, which was equal to PwC’s and was not a discriminator between the two vendors, could reasonably be considered to offset PwC’s technical advantages.

The agency argues that the SSA, within the broad discretion afforded him, properly selected CLA’s lower-technically rated, lower-priced quotation after reasonably deciding that the price premium involved in selecting PwC’s higher-rated, higher-priced quotation was not justified. NASA cites to the SSA’s testimony, concluding that “I just made the determination that for the best value to the government, that the $2 million price differential was not worth the technical advantage. Tr. at 54. Taken as a whole, however, the record reflects that the SSA did more than simply trade technical merit for price; instead the SSA improperly magnified the importance of past performance and used it to conclude that the identified technical differences were of no consequence. Put simply, the SSA first concluded that there is no difference between the vendors’ past performance, but then relied upon CLA’s past performance as the reason for offsetting PwC’s technical superiority, before conducting the final price/technical tradeoff.

In sum, considering the broad discretion accorded selection officials to make price/technical tradeoffs, NASA might well decide that the technical merit of the PwC’s quotation is not worth the added cost--recognizing that past performance for these companies provides no basis to distinguish one from the other. Such a judgment is governed only by tests of rationality and consistency with the solicitation’s evaluation criteria. See Buckley & Kaldenbach, Inc., B-298572, Oct. 4, 2006, 2006 CPD ¶ 138 at 3. On this record, we cannot conclude NASA met this test.  (PricewaterhouseCoopers LLP, B-409537, B-409537.2: Jun 4, 2014)  (pdf)


IBM and Presidio challenge multiple aspects of the agency’s evaluations and source selection decisions leading to the BPA awards to Agilex and Leidos. Where, as here, an agency has elected to award BPAs under FSS contracts, and uses an approach more akin to a competition in a negotiated procurement than to a simple FSS buy, GAO will review the record to ensure that the procurement was conducted on a fair and reasonable basis and consistent with standards generally applicable to negotiated procurements. CourtSmart Digital Systems, Inc., B‑292995.2, B‑292995.3, Feb. 13, 2004, 2004 CPD ¶ 79; KPMG Consulting LLP, B‑290716, B‑290716.2, Sept. 23, 2002, 2002 CPD ¶ 196. As discussed below, we sustain the protests challenging the award to Agilex and deny the protests challenging the award to Leidos.

Award to Agilex

IBM and/or Presidio protest the award to Agilex asserting that: (A) Agilex’s quotation contained assumptions that conflicted with various aspects of the solicitation’s requirements; (B) Agilex’s quotation exceeded the solicitation’s specific page limitations; and (C) the SSA’s decision to overrule the TEC’s evaluation was inadequately documented and unreasonable.

A. Agilex’s Assumptions

First, the protesters assert that Agilex’s quotation included various “assumptions” that effectively took exception to the solicitation’s specific performance requirements and, therefore, that Agilex’s quotation was ineligible for award. We agree.

A quotation that takes exception to a solicitation’s material terms and conditions should be considered unacceptable and may not form the basis for an award. CHE Consulting, Inc., B‑406639, June 28, 2012, 2012 CPD ¶ 190 at 2-3; Solers, Inc., B‑404032.3, B-404032.4, Apr. 6, 2011, 2011 CPD ¶ 83 at 3-7; CAMS, Inc., B‑292546, Oct. 14, 2003, 2003 CPD ¶ 191 at 2. Material terms of a solicitation are those which affect the price, quantity, quality, or delivery of the goods or services being provided. Seaboard Elecs. Co., B-237352, Jan. 26, 1990, 90-1 CPD ¶ 115 at 3.

Here, as discussed above, the solicitation’s SOW included 15 required tasks that were to be evaluated under the technical evaluation factor. For each of these tasks, the SOW listed specific performance requirements that the contractor “shall perform.” See, e.g., BPA SOW at 8. Nonetheless, in describing the basis for its proposed staffing levels, Agilex’s quotation took exception to several of these performance requirements.

For example, with regard to task 5, UNIX/LINUX services, the SOW listed 18 specific requirements. BPA SOW at 34-37. Among other things, the solicitation stated that the contractor “shall perform” virtualization “that includes server consolidation”; automation “that includes seamless server/software/storage provisioning”; “server hardware/software patching”; and “documentation of server and software system changes.” Id.

In responding to task 5, however, Agilex’s quotation stated:

This task is required to support 2500 servers. . . . Our ratio of FTEs to servers is [redacted]. . . . Our ratio of FTEs to servers assumes [redacted]. . . . Additionally, we assume . . . some of the workload is being performed by Government employees.

Agilex Price Narrative at E-97 (emphasis added).

Similarly, with regard to task 7, enterprise storage, the solicitation advised vendors that “[a]vailability and resiliency of our storage is critical to CBP meeting its mission,” noted that CPB “operates close to 16 petabytes of enterprise class storage across multiple data centers,” and listed 35 specific performance requirements. BPA SOW at 42-45. Among other things, the solicitation stated that the contractor “shall perform”: “storage management support services for the enterprise infrastructure”; “technical management for related hardware devices”; “monitor[ing of] storage consumption”; and “audit remediation support.” Id.

In responding to task 7, however, Agilex’s quotation stated:

Our adjusted labor estimate assumes [redacted]. . . . Additionally, we assume some of the workload is being performed by Government employees.

Agilex Price Narrative at E-128 (emphasis added).

That is, in calculating its staffing requirements, Agilex’s quotation assumed that some of the performance requirements the solicitation directed the contractor to perform would, instead, be performed by government employees.

Additionally, Agilex’s quotation took exception to the terms of the solicitation governing the acceptance of deliverables. In this regard, the solicitation identified numerous specific deliverables, stating “[t]he work products shall be delivered in accordance with the schedule below.” See, e.g., AR, Tab B4, Base Services SOW, at 11. Under the heading “Government Acceptance Period,” the SOW provided that an agency representative will review submitted deliverables “prior to acceptance.” Id. at 92-93. The SOW further provided that, in the event the agency representative determines a deliverable is not acceptable, the representative “will document and provide reason(s) to the contractor.” Id. Finally, the solicitation established a limited period during which the contractor must “make corrections and redeliver,” at which point the government will again review the submission and make an acceptability determination. Id. In short, the solicitation established that “acceptance” of deliverables would not occur upon delivery, but only upon the government’s affirmative determination of the deliverable’s compliance with the contract requirements.

Contrary to these provisions, Agilex’s quotation stated: “Deliverables will be considered ‘accepted’ in terms of timeliness, upon submission.” Agilex Price Narrative at 28. We have specifically recognized that a solicitation’s provisions regarding inspection and acceptance are material requirements. CAMS, Inc., supra; Rel-Tek Sys. & Design, Inc., B‑280463.3, Nov. 25, 1998, 99-1 CPD ¶ 2 at 3.

In sum, Agilex’s quotation, and the level of staffing on which that quotation was based, was conditioned on “assumptions” in its quotation that were directly contrary to the solicitation’s requirements. That is, Agilex’s quotation took exception to the requirement that the contractor--not government personnel--“shall perform” the requirements specified under each task. Similarly, Agilex’s quotation took exception to the solicitation’s specific provisions regarding when deliverables will be considered “accepted.” Accordingly, award to Agilex on the basis of its nonconforming quotation was improper. We sustain the protests on this basis.

B. Page Limitations

The protesters also assert that Agilex’s quotation violated the solicitation’s explicit provisions regarding page limitations. Accordingly, the protesters maintain that Agilex was afforded an unfair competitive advantage. We agree.

As noted above, the vendors were required to submit their proposed technical solutions for each of the 15 required tasks. In this regard, the solicitation provided that “[t]he Contractor’s Technical response is limited to 30 pages in length,” adding “[a]ny information submitted beyond the 30 page limit will not be evaluated.” RFQ at 3.

As a general matter, firms competing for government contracts must prepare their submissions in a manner consistent with the format limitations established by the agency’s solicitation, including any applicable page limits. See TechSys Corp., B‑278904.3, Apr. 13, 1998, 98-2 CPD ¶ 64 at 10; see also All Star Maintenance, Inc., B-244143, Sept. 26, 1991, 91-2 CPD ¶ 294 at 3-4; Infotec Dev., Inc., B‑238980, July 20, 1990, 90-2 CPD ¶ 58 at 4-5. Consideration of submissions that exceed established page limitations is improper in that it provides an unfair competitive advantage to a competitor that fails to adhere to the stated requirements. TechSys Corp., supra.

Here, Agilex submitted a 30-page technical response as Part I of its quotation. AR, Tab C1, Agilex Technical Quotation. In addition, Agilex submitted a 306-page price narrative which included 15 sections titled “Proposed Technical Approach.” Agilex Pricing Narrative at E-7, E‑20, E-31, E‑49, E-96, E-112, E-127, E-145, E-153, E‑168, E-182, E-201, E-211, E-222, E-231. Consistent with the title of these sections, Agilex discussed its technical approach to performing each of the 15 tasks in its pricing narrative. These sections clearly fall within the scope of the solicitation’s 30‑page limitation on technical quotations--and, accordingly, violated that limitation. The fact that the solicitation placed no page limitation on the pricing portion of the quotation did not authorize Agilex to, effectively, circumvent the 30‑page limitation on technical quotations through its submission of a 306-page pricing narrative.

As noted above, consideration of submissions that exceed established page limitations is improper in that it provides an unfair competitive advantage to a vendor who fails to adhere to the stated requirements. Here, the SSA’s decision to overrule the TEC’s determination regarding the technical unacceptability of Agilex’s quotation was specifically based on the SSA’s consideration of Agilex’s additional 306-page submission--significant portions of which included discussion of Agilex’s technical approach. Accordingly, we sustain the protest on this basis.

C. SSA’s Decision to Overrule the TEC

Finally, the protesters assert that the SSA’s decision overruling the TEC’s determination regarding the technical unacceptability of Agilex’s quotation was inadequately documented and otherwise improper. We agree.

In reviewing an agency’s evaluation of proposals, GAO examines the supporting record to determine whether the decision was reasonable, consistent with the stated evaluation criteria and adequately documented. Johnson Controls World Servs., Inc., B-289942, B-289942.2, May 24, 2002, 2002 CPD ¶ 88 at 6. Although source selection officials may reasonably disagree with the ratings and recommendations of lower-level evaluators, they are nonetheless bound by the fundamental requirement that their independent judgments be reasonable, consistent with the provisions of the solicitation, and adequately documented. Earl Indus., LLC, B‑309996, B-309996.4, Nov. 5, 2007, 2007 CPD ¶ 203 at 7; see also AT&T Corp., B-299542.3, B-299542.4, Nov. 16, 2007, 2008 CPD ¶ 65 at 8. Further, the independence granted to source selection officials does not equate to a grant of authority to ignore, without explanation, those who advise them on selection decisions. Univ. Research Co, LLC, B‑294358 et al., Oct. 28, 2004, 2004 CPD ¶ 217 at 8.

Here, as discussed above, the SSA’s decision to overrule the TEC’s conclusion regarding the technical unacceptability of Agilex’s quotation was based on the SSA’s consideration of Agilex’s 306-page price narrative which improperly augmented Agilex’s page‑limited technical quotation. Further, the SSA created virtually no contemporaneous documentation supporting his decision. Following submission of the protests, the SSA created and submitted a “Statement of Facts” which included approximately 3 pages discussing some of the TEC’s stated concerns. SSA Statement of Facts at 3-5. Since this document was created in response to the protests, we do not view it in the same context as documentation created during the source selection process.

Even if we were to give weight to the SSA’s post-protest statement, that document, in large part, merely repeats portions of Agilex’s price submission and does not meaningfully explain the SSA’s bases for overruling the TEC’s stated concerns. For example, with regard to tasks 1 and 2, the TEC expressed specific concerns that Agilex’s quotation reflected a lack of senior staffing levels and the absence of a plan for option year 3 “if task 1 migrations fail or fall behind.” Initial TEC Crosswalk Report at 4-5; Final TEC Crosswalk Report at 5. The SSA’s post-protest statement fails to meaningfully explain why Agilex’s staffing approach renders the TEC’s concern regarding senior staffing levels invalid, nor does it address the TEC’s option year concerns in any way. SSA’s Statement of Facts at 3-4.

With regard to task 7, the TEC expressed concern that Agilex’s quotation did not reflect a system architect, which the TEC characterized as “a critical technical position.” Initial TEC Crosswalk Report at 4-5; Final TEC Crosswalk Report at 5. While the SSA’s post-protest statement notes that Agilex’s quotation included “new labor categories,” it offers no substantive explanation as to how these new labor categories rendered the “critical” system architect position unnecessary. SSA’s Statement of Facts at 5.

On this record, we conclude that the SSA’s decision to overrule the TEC’s determination regarding the technical unacceptability of Agilex’s quotation improperly considered portions of Agilex’s quotation that exceeded the solicitation’s page limitation, was inadequately documented, and failed to explain the basis for the SSA’s decision. Accordingly, award on the basis of the SSA’s decision was improper and we sustain the protests on this basis.  (IBM U.S. Federal, a division of IBM Corporation; Presidio Networked Solutions, Inc., B-409806, B-409806.2, B-409806.4, B-409806.5: Aug 15, 2014)  (pdf)


D&S and Abacus both argue that the agency’s source selection decision was flawed because it essentially relied entirely on the performance confidence ratings, without regard to price. D&S couches its allegation in terms of the agency failing to consider price in making its award decisions, and also in terms of the agency not giving adequate consideration to evaluation considerations other than relevance. Abacus asserts that the agency failed to make the price-performance tradeoffs required by the RFP. Both firms essentially take issue with the agency’s decision to award contracts only to those firms receiving substantial confidence ratings.

We sustain this aspect of the protests. In this connection, FAR § 15.308 specifically requires that the source selection decision be based on a comparative assessment of proposals against all source selection criteria in the solicitation. It further requires that the source selection decision be documented, and the documentation include the rationale for any business judgments and tradeoffs made or relied on by the SSA, including benefits associated with additional costs. FAR § 15.308; see also, ACCESS Sys., Inc., B-400623.3, Mar. 4, 2009, 2009 CPD ¶ 56 at 7.

The record shows that the SSA essentially made a “class” division between all offerors receiving satisfactory confidence ratings, and all offerors receiving substantial confidence ratings. Based on that division, the SSA made award only to those offerors with substantial confidence ratings, regardless of their [total evaluated price] TEP in relation to offerors with satisfactory confidence ratings. The SSA states:

I have a high expectation that Offerors with Substantial confidence will successfully perform the required effort. While some of the Offerors with Satisfactory confidence ratings may appear to provide a price discount as compared to some of the Offerors rated Substantial, it is my judgment that awarding a contract to an offeror with Satisfactory confidence introduces performance risk in the areas of concern identified by the PCAG which does not justify awarding to those Offerors. Additionally, since the pool of Offerors with whom I have Substantial confidence exceeds the target number of awardees, award to an Offeror with Satisfactory confidence is not warranted. The Offerors with Satisfactory confidence failed to provide evidence consistent with the RFP to convince the PCAG, the SSAC and me of their ability to perform work of the depth and breadth and scope necessary in at least two of the criteria areas.

* * * * *

It is my judgment that awarding a contract to any offeror with Satisfactory confidence could impact mission capability and increase contract costs while also creating additional management and oversight costs and requirements for the decentralized awarding office as well as the Business Enterprise Systems NETCENTS-2 Team.

SSDD at 11.

The SSA ignored significant price differences among the offerors in refusing to make award to offerors with satisfactory confidence ratings. This point is most dramatically demonstrated by the price disparity between Abacus and the awardees; Abacus’s TEP is almost half of the TEP of the highest-priced awardee, and is below the TEPs of the 10 of the 12 awardees. The SSA offers no explanation for why it is worth making award to these firms offering such significant price premiums in comparison to Abacus. The absence of specific performance/price tradeoff explanations for each successful and unsuccessful offeror pairing does not withstand logical scrutiny, and is inconsistent with the mandate of the FAR that awards be based on a comparative assessment of proposals that documents the agency’s rationale for any business judgments and tradeoffs made by the SSA. FAR § 15.308.

We also agree with D&S that the source selection decision does not explain why significant differences among the offerors in terms of the other RFP considerations (quality of performance, sustained track record of contract performance, similarity in terms of magnitude, and worldwide performance) are not material to the selection decisions. For example, D&S notes that it received higher quality ratings than some awardees, but there is no explanation in the SSDD of why these comparative quality advantages enjoyed by D&S did not overcome its relative lack of relevant performance examples. Here, too, the absence of performance/price tradeoff explanations for each successful and unsuccessful offeror pairing also fails to meet the requirements of the FAR that an agency’s source selection be based on a comparative assessment of proposals against all source selection criteria indentified in the RFP.  (Intelligent Decisions, Inc.; Abacus Technology Corporation; D&S Consultants, Inc.; CDO Technologies, Inc., B-409686, B-409686.2, B-409686.3, B-409686.5, B-409686.6, B-409686.12, B-409686.14: Jul 15, 2014)  (pdf)


Proposed innovations

First, we address the protester’s complaint that the [source selection authority] SSA departed from the RFP’s stated evaluation scheme by failing to give its proposal credit for the multiple innovations identified by the [Source Evaluation Board] SEB. As noted above, under the technical requirements subfactor, the SSA considered the protester’s proposed innovations, which formed the basis for the significant strengths assigned by the SEB, to be “of relatively lesser value to the Government,” [Source Selection Statement] SSS at 9, and she gave them little weight in her source selection decision. In dismissing the weight of the SEB’s findings, the SSA concluded that she did not have high confidence that the innovations could be implemented due to their unknown implementation costs.

Although the SSA’s selection decision questions the value of all of GTI’s innovations under the technical requirements subfactor due to unknown implementation costs, the selection decision only in fact addresses a few of the innovations by way of example. These examples, however, constitute a relatively small subset of the innovations identified by the SEB, which formed the basis for GTI’s significant strengths under the technical requirements subfactor.

In order to further shed light on the extent to which the SSA’s concerns regarding funding pertained to the innovations underpinning the significant strengths assigned GTI’s proposal by the SEB, our Office held a hearing. During this hearing and as set forth in detail below, the SEB chair explained that a number of the significant innovations identified in GTI’s proposal, which formed the basis for GTI’s significant strengths, do not in fact require any implementation funding; the SEB chair also testified that for other innovations, funding was in fact included in the protester’s cost proposal.

For example, the SEB chair testified that there would be no direct cost associated with the protester’s proposed implementation of horizontal protection for data loss prevention (bullet 1, 3rd significant strength), an initiative that, according to the SEB chair, reflected a “very sophisticated approach to IT security” and was the “heavy weight item on the page” supporting the finding of a significant strength pertaining to IT security. Hearing Transcript (Tr.) at 108-109, 116-117.[9] The SEB chair also testified that there was no cost associated with either the protester’s software development approach (bullet 2, 3rd significant strength) or its implementation of the Factor Analysis Information Risk model (bullet 6, 2nd significant strength). Id. at 105. She further testified that the protester’s proposed solution for applications that cannot be managed within the NASA Access Management System (bullet 3, 2nd significant strength) was funded. Id. at 101.[10]

During the hearing, the GAO hearing officer asked the SSA for further explanation as to why the proposed innovative approaches that were funded were not considered to be of value. In response, the SSA indicated that she had concerns about the level of detail in the protester’s proposal pertaining to these items. For example, with regard to the protester’s above-cited proposed implementation of horizontal protection for data loss prevention, she testified that “they didn’t provide us with the details to say how they were going to develop that.” Id. at 41.

In our view, the SSA’s explanation for why she did not attribute value to the innovative approaches proposed by the protester that were funded is not supported by the contemporaneous record. The SSA made no contemporaneous reference to insufficiently detailed descriptions in her SSS (she referred only to unknown implementation costs), nor is there any indication in the record that she directly reviewed the content of the proposals herself (rather, she based her decision on the information presented by the SEB). Moreover, there is no evidence in the record that the SEB questioned the value of proposed innovative approaches, such as horizontal protection, on the basis that the approaches were not adequately described, or that the SEB conveyed such a concern to the SSA. Indeed, the SSA’s assertion during the hearing that the protester had not furnished adequate details regarding its development of the horizontal protection would appear to be at odds with the SEB chair’s testimony, which described the approach as “very sophisticated.” Tr. at 108, 117.

In sum, we find that the record fails to support the SSA’s conclusion that the protester’s proposal should not be given any meaningful credit for the multiple proposed innovative approaches for which implementation funding either was included in the protester’s proposal or was not required. That is, while we recognize that the overall impact of the SEB’s findings pertaining to the protester’s proposed innovations is diminished when items with unknown implementation costs are excluded, we nonetheless fail to see a reasonable basis for the SSA to have given the innovations for which unknown implementation costs was not an issue--in particular, those pertaining to IT security--essentially no weight. Accordingly, we sustain GTI’s complaint pertaining to the evaluation of its proposed innovative approaches.  (Gaver Technologies, Inc., B-409535: Jun 3, 2014)  (pdf)


The principal focus of Prism’s protest concerns the SSA’s [source selection authority] independent reevaluation of proposals. Prism maintains that, in reevaluating proposals, the SSA improperly applied unstated evaluation criteria, failed to consider the impact of the deficiencies identified by the SSEB [source selection evaluation board] in concluding that the Valkyrie proposal was acceptable, and otherwise reached evaluation conclusions that were unreasonable or irrational in concluding that the two proposals were technically equal.

(sentences deleted)

Further, while source selection officials reasonably may disagree with the evaluation ratings and results of lower-level evaluations, they are nonetheless bound by the fundamental requirements that their independent judgments be reasonable, consistent with the stated evaluation factors, and adequately documented. AT&T Corp., B-299542.3, B-299542.4, Nov. 16, 2007, 2008 CPD ¶ 65 at 16; AIU N. Am., Inc., B-283743.2, Feb. 16, 2000, 2000 CPD ¶ 39 at 8-9.

We have reviewed the record and conclude that the SSA’s disagreement with the SSEB’s identified deficiencies does not withstand logical scrutiny, provide a reasonable basis for his findings that the Valkyrie proposal was technically acceptable, or provide a basis for finding that the proposals were technically equal. In this connection, the record shows that the SSEB identified seven material deficiencies in the Valkyrie proposal, any one of which would provide a basis to conclude that award to Valkyrie would be improper under the terms of the RFP. (sentence deleted)

Asset Staging Facility

The RFP requires the successful offeror to have available an asset staging facility to be used in connection with performance of the requirement. The facility is required to be established within 30 days after issuance of the task order; to be cleared to the classification level of secret by the Defense Security Service (DSS); to include 13,800 square feet; and to be located either in Port Hueneme, Oxnard, Ventura or Camarillo, California. RFP at 17-18. The RFP further provides as follows:

No award will be made to any offeror which does not possess a facility security clearance issued by the Defense Investigative Service at the Secret level. Naval Sea Systems Command will initiate appropriate security clearance action for any apparent successful offeror which does not already possess such clearance. The Government is not obligated to delay award pending security clearance of any offeror.

RFP at 67.

The record shows that Valkyrie makes reference to two facilities in its proposal. First, Valkyrie describes the location of its program management office (PMO), which it states is located in a facility on Eastman Avenue in Ventura, California. AR, exh. O, Valkyrie Technical Proposal, at 1-6, 1-29-1-30. Second, Valkyrie represents that it intends to use a facility currently being used by Prism for asset staging purposes under a predecessor contract to meet this aspect of the requirement. Id. For example, the Valkyrie proposal represents as follows:

As shown in the POA&M [plan of action and milestones], we have pre-negotiated with the landlord to assume the lease on the current [asset staging] facility. These negotiations are scheduled [to] be completed well before contract start and, Valkyrie will assume the cost for the lease two weeks before contract start. Early lease assumption ensures all personnel and resources are in place to minimize interruptions to [contractual] tasks and complete transfer and inventory of all [on-hand material and inventory] . . . .

Id. at 1-29-1-30.

The agency’s evaluators identified a weakness and two deficiencies under the transition/mitigation plan subfactor in connection with Valkyrie’s proposed approach of assuming the lease for Prism’s asset staging facility. AR, exh. E-1, at 18. Their principal concerns had to do with the fact that Valkyrie was offering to perform the requirement using the asset staging facility currently under lease to Prism; that Valkyrie had negotiated with the landlord that owned the building but not with Prism; that Valkyrie had not offered any alternate asset staging facility in the event it was unable to obtain an agreement to occupy the Prism facility; and Valkyrie’s proposal included no information regarding how it would pursue or obtain recertification or approval of the facility by DSS in the event the firm was successful in obtaining Prism’s facility. Id. The evaluators concluded that these concerns created a high risk of unsuccessful performance that rendered the Valkyrie proposal unacceptable. Id. at 18, 21.

Against this backdrop, the SSA disagreed with the findings of the SSEB and concluded that, in fact, Valkyrie’s proposal should have been rated acceptable under the transition plan/mitigation plan subfactor. The SSA specifically found:

A transition plan is just that, the offerors idea on how to ensure uninterrupted support to the requirements upon assuming a contract from the incumbent. It can be argued that a plan can never be so badly planned and written that it is unacceptable. Here, Valkyrie took the least expensive and most probable approach by acquiring the existing space from the incumbent. Furthermore, a Clarification notice dated 15 August 2013 was sent to Valkyrie seeking clarification as to whether their facility in Ventura County could support this effort in regard to the square footage required in the solicitation; Valkyrie's response was "yes." The plan in itself has merit and is acceptable but lacks specific details. The lack of details makes the plan weak. The SSA determined that the two deficiencies identified by the SSEB are nothing more than two minor weaknesses.

AR, exh. B-1, SSDD-2, at 9.

We find the SSA’s conclusion unreasonable. First, as correctly noted by the SSEB, Valkyrie offered only Prism’s asset staging facility in connection with performance of the asset staging activites of the task order. The SSA’s reference to, and apparent consideration of, Valkyrie’s Eastman Avenue facility--whether or not it was dimensionally satisfactory to perform the requirement--is immaterial, given that Valkyerie did not propose to perform asset staging activities at that facility. Simply stated, to the extent he did so, the record does not support the propriety of the SSA’s consideration of Valkyerie’s Eastman Avenue facility as having been offered in satisfaction of the RFP’s requirement for an asset staging facility.

Second, as noted by the protester, it currently holds a lease for the asset staging facility proposed by Valkyrie, and there is nothing in the record to show that Valkyrie has negotiated a transfer of the lease with Prism, the entity legally entitled to occupy the facility. Where, as here, one offeror proposes the facility for which another competitor currently holds the lease, and there is nothing in the record to show that the original lessee is willing to transfer the lease to its competitor, an agency may appropriately find the first offeror’s proposal technically unacceptable and ineligible for award for failing to meet a material solicitation requirement. Galen Medical Assocs.Inc., B-288661.4, B-288661.5, Feb. 25, 2002, 2002 CPD ¶ 44 at 3-4.

Finally, even if we were to accept the SSA’s position that Valkyrie can, in fact, successfully negotiate a lease for Prism’s asset staging facility, there remains a valid concern regarding the fact that, once the facility is transferred to Valkyrie, it would be necessary to obtain a DSS security clearance for the facility. The SSEB raised precisely this concern in evaluating Valkyrie’s proposal, noting that it did not include any information at all regarding recertification or approval of the facility by DSS. AR, exh. E-1, SSEB report, at 18. In this connection as well, the protester points out that the Center for Development of Security Excellence estimates that the average time to process a secret facility clearance is 137 days. Protester’s Comments, Mar. 3, 2014, at exh. E.

The SSA never considered either the complete absence in Valkyerie’s proposal of information relating to recertification or approval of the facility, or the amount of time that would be necessary to process a request for a secret facility clearance, even assuming that Valkyrie properly could obtain possession of Prism’s asset staging facility. As noted, the RFP expressly advised offerors that a facility security clearance was a condition precedent to issuance of a task order, and that the agency was not obligated to delay issuance of the task order in order to facilitate an offeror in its effort to obtain a facility security clearance. RFP at 67.

In sum, the record demonstrates that the Valkyrie proposal failed to meet one of the RFP’s three mandatory threshold requirements, the requirement either to have a facility for performing the requirement that is designated as cleared to the level of secret by the DSS, or an acceptable plan for meeting that requirement. The record shows that the SSEB identified this failing as a material deficiency rendering the proposal ineligible for award. Despite the SSEB’s finding which is supported by the record, the SSA unreasonably reached a contrary conclusion.  (Prism Maritime, LLC, B-409267.2, B-409267.3: Apr 7, 2014)  (pdf)


Trailboss contends that the agency’s evaluation and source selection was unreasonable in not crediting Trailboss’s proposal with any strengths, and that as a result, the SSA’s best-value analysis based on the technical evaluation of its proposal as technically equal to CAV’s proposal is flawed. Trailboss argues that the best-value analysis was flawed because the agency focused on the technical acceptability of the proposals, as opposed to technical distinctions between the proposals. In response, the agency argues that the source selection document reflects that the agency did not have any basis upon which to distinguish proposals under the staffing and implementation factors because no strengths were identified in either proposal.

In reviewing an agency’s evaluation of proposals and source selection decision, we examine the supporting record to determine whether the decision was reasonable, and in accord with the evaluation criteria listed in the solicitation and applicable procurement laws and regulations. Cherry Rd. Techs.; Elec. Data Sys. Corp., B-296915 et al., Oct. 24, 2005, 2005 CPD ¶ 197 at 6. The agency must have adequate documentation to support its judgment. Southwest Marine, Inc.; Am. Sys. Eng’g Corp., B-265865.3, B-265865.4, Jan. 23, 1996, 96-1 CPD ¶ 56 at 10. Where, as here, the RFP contemplates that the relative merits of the proposals will be qualitatively compared, evaluation is not limited to determining whether a proposal is merely technically acceptable; rather, proposals should be further differentiated to distinguish their relative quality under each stated evaluation factor by considering the degree to which technically acceptable proposals exceed the stated minimum requirements or will better satisfy the agency’s needs. Systems Research & Applications, Corp.; Booz Allen Hamilton, Inc., B-299818 et al., Sept. 6, 2007, 2008 CPD ¶ 28 at 24. In fact, we have long stated that evaluation ratings should be merely guides for intelligent decision making, see Citywide Managing Servs. of Port Washington, Inc., B-281287.12, B-281287.13, Nov. 15, 2000, 2001 CPD ¶ 6 at 11, and that therefore evaluators and SSAs should reasonably consider the underlying bases for ratings, including the advantages and disadvantages associated with the specific content of competing proposals, in a manner that is fair, equitable, and consistent with the terms of the solicitation. In this regard, FAR § 15.308 requires a documented decision based on a comparative assessment of proposals against all source selection criteria in the solicitation. Systems Research & Applications Corp.; Booz Allen Hamilton, Inc., supra.

Here, the record is devoid of any evidence that the SSEB and SSA meaningfully considered the technical or qualitative distinctions between the competing proposals under the technical evaluation factors. In this regard, except for the statements that neither proposal had any strengths or weaknesses, there is no evidence in the record of any comparative or qualitative evaluation of the merits of the proposals under these factors by the SSEB or SSA. In its protest, Trailboss points to various aspects of its proposal that it asserts should have been considered strengths in its proposal. While the agency report responding to these allegations asserts that these aspects were not strengths, this discussion is not supported by any contemporaneous evaluation documentation. We find that the contemporaneous record evidences that evaluation of Trailboss’ and CAV’s proposals under the staffing and implementation factors only considered whether the proposals were technically unacceptable or acceptable, and did not, as contemplated by the RFP, consider their relative qualitative merit.


Where the agency undertakes a cost/technical tradeoff, adequate documentation requires more than just generalized statements of proposal equivalency where the record evidences the existence of relative differences in proposals. See LIS, Inc., B-400646.2, B-400646.3, Mar. 25, 2009, 2010 CPD ¶ 5 at 7. Source selection decisions that are devoid of substantive analysis or consideration of whether one proposal is superior to another are insufficient to demonstrate the reasonableness of the agency’s decision. Id. Because the record here is devoid of any evidence that the SSEB or SSA considered the qualitative merits of the proposals under the staffing and implementation factors as required by the evaluation scheme, we find the evaluation of proposals and source selection decision to be unreasonable, and sustain the protest on this basis. 

We recommend that TRANSCOM perform a new evaluation consistent with this decision, reopen discussions, if necessary, and make a new source selection decision. If CAV is not selected for award, the agency should terminate CAV’s contract and make award to the firm whose proposal is determined to represent the best value. We also recommend that the protester be reimbursed its costs of filing and pursuing its protest, including reasonable attorneys’ fees. Bid Protest Regulations, 4 C.F.R. § 21.8(d)(1) (2012). The protester’s certified claim for costs, detailing time expended and costs incurred, must be submitted directly with the agency within 60 days of receiving this decision. 4 C.F.R § 21.8(f)(1).  (Trailboss Enterprises, Inc. B-407093, Nov 6, 2012)  (pdf)


AWD’s primary argument is that its proposal represented both the overall best value because its price was lower, and that it also submitted the lowest-priced, technically acceptable offer. Protest at 2. The protester argues that the agency was not justified in paying a 5 percent price premium, which it asserts was simply a price for convenience as Apple is the incumbent contractor. Id. at 3. The agency counters that the procurement was not conducted on a lowest-priced, technically acceptable basis, and that it was justified in paying a price premium for Apple’s technically superior proposal. Legal Memorandum at 11-13. We agree with the agency.

When a protester challenges an agency’s award decision, we will review that decision solely to determine if it was reasonable and consistent with the solicitation’s evaluation scheme, procurement statues and regulations. Great Lakes Towing Co. dba Great Lakes Shipyard, B-408210, June 26, 2013, 2013 CPD ¶ 151 at 3. Proposals with the same adjectival ratings are not necessarily of equal quality, and agencies may properly consider specific advantages that make one proposal of higher quality than another. Id. In conducting such an analysis, agencies may reasonably consider the underlying bases for ratings and assess advantages and disadvantages associated with the content of competing proposals. Id.

It is plain from the solicitation that award was to be made on a best value basis, not on a lowest-priced, technically acceptable basis. As a result, the solicitation afforded the agency the discretion to make a tradeoff between price and non-price factors in making its award decision. Our review of the record shows that the agency reasonably considered the underlying merits of each proposal and identified qualitative differences between the two proposals--even though both proposals received the same overall adjectival ratings for technical capability and past performance. In her weighing of these differences, the SSA reasonably determined that Apple’s proposal offered technical strengths not found in AWD’s proposal, and that AWD’s proposal contained evaluated weaknesses not present in Apple’s proposal. On this record, we find that the SSA reasonably concluded that the price premium for Apple’s superior technical proposal was warranted.  (Alliance Worldwide Distributing, LLC B-408491, Sep 12, 2013)  (pdf)


Cost/Technical Tradeoff

The protester also challenges the reasonableness of the agency’s tradeoff determination in which the source selection authority concluded that the protester’s higher ratings were not worth paying an additional $46 million for these services.

An agency properly may select a lower-rated, lower-priced proposal, even where price is a less important evaluation factor than technical merit, where it reasonably concludes that the price premium involved in selecting the higher-rated proposal is not justified in light of the acceptable level of technical competence available at a lower price. The extent of such tradeoffs is governed only by the test of rationality and consistency with the evaluation criteria. Thus, a protester’s disagreement with the agency’s determination as to the relative merits of competing proposals, or disagreement with its judgment as to which proposal offers the best value to the agency, does not establish that the evaluation or source selection was unreasonable. General Dynamics-Ordnance & Tactical Sys., B-401658, B-401658.2, Oct. 26, 2009, 2009 CPD ¶ 217 at 8.

The record reflects that the contracting officer specifically considered DaeKee’s outstanding past performance and recognized its marginally better technical rating in making the source selection decision, yet concluded that these did not outweigh GDMA’s very significant price advantage. While DaeKee disagrees, we have no basis to object to the agency’s decision.  (DaeKee Global Co. Ltd., B-402687.8,  Jan 3, 2012)  (pdf)


In general, evaluation ratings are merely guides for intelligent decision-making in the procurement process; the evaluation of proposals and consideration of their relative merit should be based upon a qualitative assessment of proposals consistent with the solicitation’s evaluation scheme. Highmark Medicare Servs., Inc., et al., B-401062.5 et al., Oct. 29, 2010, 2010 CPD ¶ 285 at 19. While an agency has broad discretion in making a tradeoff between price and non-price factors, an award decision in favor of a lower-rated, lower-priced proposal must acknowledge and document any significant advantages of the higher-price, higher-rated proposal, and explain why they are not worth the price premium. For example, in Blue Rock Structures, Inc., B-293134, Feb. 6, 2004, 2004 CPD ¶ 63, our Office sustained a challenge to an agency’s selection of a lower-rated, lower-priced proposal, finding that the decision was inadequately documented because the SSA failed to acknowledge the evaluated advantages of the higher-rated proposal, and furnish an explanation as to why the protester’s higher-rated proposal’s advantages were not worth price premium. In contrast, our Office held in Phoenix Group of Virginia, Inc., B-407852, Mar. 12, 2013, 2013 CPD ¶ 80, that the selection of a lower-rated, lower-priced proposal was unobjectionable where the record showed that the SSA considered evaluated differences in quotations, documented her deliberations and rationale, and concluded that a slight technical advantage was not worth a substantial price premium. See also General Dynamics Info. Tech., Inc., B-406030, B-406030.3, Jan. 25, 2012, 2012 CPD ¶ 55 (selection of a lower-rated, lower-priced proposal was unobjectionable where the SSA’s tradeoff decision included a detailed comparative analysis of the quotations, and set forth ten bullet-points supporting the agency’s conclusion that the value of the proposed enhancements did not justify the price premium).

Here, the RFP stated that the technical/management approach factor was more important than the past performance factor, and when combined, the non-cost factors are significantly more important than the cost factor. RFP Amend. 4, at 2-3. The SSA’s award decision, which was based upon the evaluation team’s assessments, assigned equal technical ratings for NOVA’s and DMI’s proposals. The SSA’s decision acknowledged that the proposal of NOVA received a substantial confidence past performance rating, while DMI received a lower satisfactory confidence rating. Notwithstanding this difference, the SSA found that DMI’s proposal, which was $858,224 lower than NOVA’s proposal, provided the best value for the Government because NOVA’s “slightly better” past performance ratings were not significant enough to warrant paying the higher evaluated price. AR, Tab 7, Price Negotiation Memorandum, at 7.

NOVA contends that the record does not explain why the SSA concluded that the protester’s past performance was only “slightly better” than the awardee’s. We agree. As discussed above, the record shows that the agency identified clear differences between the offerors’ past performance records. The evaluation team’s assessment found that three of NOVA’s four references were relevant to the current requirement; in contrast, only two of DMI’s five references were relevant, and the remaining three were somewhat relevant. AR, Tab 6, Evaluation Team Selection Recommendation, at 8. Similarly, as discussed above, NOVA’s references received one excellent, two very good, and one satisfactory quality ratings, while DMI’s references received two very good and three satisfactory quality ratings. Id. These substantive differences resulted in the agency’s evaluation team concluding that NOVA’s past performance references provided a high expectation of successful performance (substantial confidence); in contrast, the evaluation team concluded DMI’s past performance references provided a reasonable expectation of successful performance (satisfactory confidence). Id., at 11, 15. Despite these differences, neither the contemporaneous record nor the agency’s response to the protest, explain whether the SSA meaningfully considered the differences between the offerors’ past performance. For this reason, the record does not support the SSA’s conclusion that NOVA’s past performance was only “slightly better” than DMI’s past performance, and not worth the price premium for the protester’s proposal.  (NOVA Corporation, B-408046, B-408046.2, Jun 4, 2013)  (pdf)


WingGate challenges the selection of Travco’s lower-rated, lower-priced proposal as reflecting the best value to the government. WingGate contends that the agency failed to follow the announced evaluation criteria when it placed too much emphasis on price in its source selection decision.

Source selection officials in negotiated procurements have broad discretion in making price/technical tradeoffs, and the extent to which one may be sacrificed for the other is governed only by the test of rationality and consistency with the solicitation’s evaluation criteria. World Airways, Inc., B-402674, June 25, 2010, 2010 CPD ¶ 284 at 12. Even where technical merit is significantly more important than price, an agency may properly select a lower-priced, lower-rated proposal if the agency reasonably decides that the price premium involved in selecting a higher-rated, higher-priced proposal is not justified. Hogar Crea, Inc., B-311265, May 27, 2008, 2008 CPD ¶ 107 at 8.

The record here does not support WingGate’s contention that the selection of Travco was inconsistent with the RFP’s evaluation scheme. In this regard, the source selection decision reflects the source selection authority’s (SSA) recognition that technical and past performance when combined were significantly more important than price. Award Rationale Memorandum at 4. The decision also includes a detailed discussion of each of WingGate’s technical strengths, as well as an explanation as to why WingGate’s proposal was rated exceptional under the technical factor while Travco’s was rated acceptable, one rating level lower. Id. at 10-15, 49-51, 53. Notwithstanding WingGate’s recognized advantage under the technical factor, the SSA nonetheless concluded that the strengths of WingGate’s proposal did not warrant payment of the 14% premium associated with that proposal. Id. at 53. Although WingGate disagrees with that judgment, it has not shown it to be unreasonable.  (WingGate Travel, Inc., B-405007.14, Apr 12, 2013)  (pdf)


Finally, Koontz argues that the Corps made an unreasonable best value decision in selecting ABB’s proposal for award at that firm’s higher price. Protest attach. A, at 1. Where an agency selects a higher-priced proposal over a lower-rated but lower-priced alternative, the agency’s contemporaneous record must show that the source selection official was aware of the technical advantages of the awardee’s proposal, and specifically determined that those advantages were worth the awardee’s higher cost. 4-D Neuroimaging, B-286155.2, B-286155.3, Oct. 10, 2001, 2001 CPD ¶ 183 at 11. Our Office’s review will assess whether the agency fully considered all of the underlying evaluation documentation in concluding that the awardee’s technical advantages warranted its higher cost, and whether that judgment was reasonable. Science Applications Int’l Corp., B-290971 et al., Oct. 16, 2002, 2002 CPD ¶ 184 at 21.

Here, the record reflects that the contracting officer compared the evaluated advantages of ABB’s proposal to each of the other offerors. In comparison to Koontz’s proposal, the contracting officer concluded that ABB possessed the experienced required by the RFP--particularly in successful simultaneous implementation of RDC and LDC--and that ABB had experience that was more clearly relevant to the RFP requirements. The contracting officer found that, together, these advantages justified paying ABB’s higher price in comparison to Koontz. The contracting officer’s tradeoff was thus consistent with the RFP’s award criteria, which made the technical factor the most important non-price factor, and made the non-price factors, together, significantly more important than price. Koontz has given our Office no basis to question the best value decision.  (Koontz Electric Company, Inc., B-407946, Apr 5, 2013)  (pdf)


B. Number of Strengths and Weaknesses Enumerated in the Selection Decision Document

As noted in the initial part of this decision, the record includes two selection decision documents, one prepared at the time of the agency’s source selection and another prepared by the agency after IBM filed its protest. IBM maintains that the original selection decision improperly relied on an inaccurate and exaggerated characterization of the comparative number of strengths and weaknesses in the two proposals. IBM also contends that the new selection decision was prepared in the heat of litigation and cannot be relied on by the agency to repair problems with the initial selection document. The agency, on the other hand, maintains that neither the original nor the revised selection decision relied in any way on the quantitative difference between the number of strengths and weaknesses identified in the proposals, but, rather, the selection decision was based on the qualitative difference between the strengths and weaknesses identified in the proposals.

The record shows that the agency’s original selection decision included an inaccurate qualitative characterization of the number of strengths and weaknesses for the IBM proposal as compared to the HP proposal. Specifically, the original selection decision provided that HP had a superior number of strengths as compared to IBM, and also had significantly fewer weaknesses as compared to IBM. AR, exh. 3, at 4. In fact, the evaluation record shows that the IBM proposal had more strengths than HP’s proposal (IBM had 7 significant strengths and 6 strengths compared to HP’s 5 significant strengths and 28 strengths) and that the two firms had a comparable number of weaknesses (IBM was assigned 9 weaknesses and 5 significant weaknesses, while HP was assigned 7 weaknesses and 5 significant weaknesses). AR, exhs, 4, 5, 19.

At its debriefing, IBM was provided information about the evaluation of its proposal and also a redacted copy of the agency’s selection decision. One of IBM’s original protest grounds was that the selection decision erroneously failed to give its proposal credit for having more strengths than HP’s, and also erroneously identified its proposal as having significantly more weaknesses than HP’s when, in fact, the two firms had a comparable number of weaknesses. Shortly after IBM filed its original protest, the agency prepared a new selection decision that changed the agency’s characterization of the strengths and weaknesses assigned to the two firms’ proposals. The new selection decision provided: “Although strengths were similar in number, Offeror B [HP] had qualitatively superior strengths as compared to Offeror C [IBM], particularly in the most important Technical Factor subfactor--Subfactor A, Task Order Execution--and one less weakness.” AR, exh. 13, at 4.

We have long held that we accord greater weight to contemporaneous source selection materials rather than judgments, such as those embodied in the agency’s second selection decision here, made in response to protest arguments. Boeing Sikorsky Aircraft Support, B-277263.2, B-277263.3, Sept. 29, 1997, 97-2 CPD ¶ 91 at 15.

Here, the agency’s original selection decision relied on a factually inaccurate characterization of the relative number of strengths and weaknesses identified in the offerors’ respective proposals, and made no mention of the “qualitative” differences between the strengths in the HP proposal versus the strengths in the IBM proposal. Although the agency argues that the original, inaccurate quantitative characterization of the comparative strengths and weaknesses was not considered--or relied on--by the SSA in arriving at her selection decision, the first observation in the document relating to HP and IBM compares the number of strengths and weaknesses found in the two firms’ proposals. In addition, the document clearly identifies the different number of strengths and weaknesses as a basis for distinguishing between the offers. In contrast, the revised selection decision’s reference to the “qualitatively superior” strengths of HP’s versus IBM’s proposal was never considered during the agency’s original selection decision and was advanced by the agency only during the heat of litigation. As a result, our Office will give greater weight to the selection decision that was prepared contemporaneously with the selection decision. Boeing Sikorsky Aircraft Support, supra. We therefore sustain this aspect of IBM’s protest.  (IBM Corporation, U.S. Federal B-406934, B-406934.2, B-406934.3, Oct 3, 2012)  (pdf)


Technical Discriminators and Tradeoff Decision

Concerning the agency’s ultimate decision that the technical advantages of Metropolitan’s proposal offset its higher price and that the proposal represented a better value to the government, MVM first alleges that the SEB and SSA did not adequately evaluate the proposals, but instead based the award decision on a mechanical comparison of adjectival ratings, without a qualitative assessment of the underlying differences between the proposals. More specifically, MVM argues that the SSD demonstrates a comparative assessment of the proposal under only the staffing plan technical factor and fails to document a comparative assessment of the proposals under the remaining technical factors, including the first two factors, which were more important than the staffing plan factor.

Source selection officials in negotiated procurements have broad discretion in determining the manner and extent to which they will make use of technical and cost evaluation results; cost/technical tradeoffs may be made, and the extent to which one may be sacrificed for the other is governed only by the tests of rationality and consistency with the evaluation criteria. World Airways, Inc., B-402674, June 25, 2010, 2010 CPD ¶ 284 at 12. Where a cost/technical tradeoff is made, the source selection decision must be documented, and the documentation must include the rationale for any tradeoffs made, including the benefits associated with additional costs. FAR § 15.308; The MIL Corp., B-297508, B-297508.2, Jan. 26, 2006, 2006 CPD ¶ 34 at 13. However, there is no need for extensive documentation of every consideration factored into a tradeoff decision, nor is there a requirement to quantify the specific cost or price value difference when selecting a higher-priced higher-rated proposal for award. FAR § 15.308; Advanced Fed. Servs. Corp., B-298662, Nov. 15, 2006, 2006 CPD ¶ 174 at 5.

We conclude that the SSA adequately documented her comparison of proposals in the SSD. In support of her conclusion that Metropolitan’s proposal represented a better value than MVM’s, the SSA cited two key discriminators under the staffing plan factor, i.e., Metropolitan’s “established pool of [DELETED] verified DEA cleared local resident Analytical Linguists” and its “retention and benefit plan to retain Analytical Linguists.” SSD at 2. In the SSD, the SSA also confirmed that she had “reviewed and analyzed all of the documentation and [the] recommendation provided by the SEB,” and agreed with the SEB that award to Metropolitan was in the best interests of the government. Id. at 4. In turn, the SEB reports contain the complete evaluation results for each proposal and contain discussions of the key advantages of each proposal. See Initial SEB Report at 8-10; Final SEB Report, Attachments B, C. We do not consider the SSA’s focus on the key discriminators between the proposals in the SSD to constitute a lack of documentation, where the underlying SEB evaluation record demonstrates that the proposals were fully evaluated and compared, and the evaluation record was reviewed by the SSA prior to the award decision.

MVM next asserts that the technical advantages specifically cited by the SSA in the tradeoff decision--i.e., Metropolitan’s established pool of [DELETED] verified DEA cleared local resident analytical linguists and the company’s retention and benefit plan--were illusory. Concerning the first advantage, MVM argues that the agency erred in uncritically accepting Metropolitan’s claim of DEA cleared analytical linguists, because the agency knew or should have known that Metropolitan’s statement was not accurate. According to MVM, the record suggests that Metropolitan mischaracterizes the experience of its claimed analytical linguists.

MVM’s argument in this regard is essentially that Metropolitan failed to demonstrate that its [DELETED] individuals were qualified as “analytic linguists.” In this connection, the protester contends that Metropolitan’s incumbent contract required only “language analysts,” which MVM contends is a lower-level labor category than “analytic linguist,” with fewer training requirements. As support for its contention, MVM points to an agency questions and answers document, which states:

Question 99: Have incumbent personnel currently providing these services been vetted against the qualifications for analytic linguists listed in the RFP, or are these new requirements that will require a requalification of incumbent employees if they are hired by the selected vendor?


Answer 99: This is a new requirement.


Question 100: Do incumbent personnel currently exist in the numbers and skill levels required to support the requirements of the RFP?


Answer 100: No, however incumbent personnel exist and partially meet potential maximum requirements of the new contract.

RFP Q&A at 24.

In response, the agency explains that the questions and answers statements cited by MVM were not unique to the southern west coast region, but were posted verbatim to all eight regional linguist RFPs. The agency further reports that in the southern west coast region, Metropolitan has “over the past nine years trained an incumbent workforce to perform analytical duties.” Supplemental Agency Report at 15. The agency further explains that while the questions and answers are properly read to reaffirm the fact that the requirement for analytic linguists, versus language analysts, is a new requirement, the answers do not imply that an incumbent contractor’s linguists do not currently have the required analytical skills. In light of the agency’s explanation, we see no basis on which to question the agency’s acceptance of Metropolitan’s claim of an “established pool of [DELETED] verified DEA cleared local resident Analytical Linguists.”

MVM also challenges the agency’s identification of Metropolitan’s “retention and benefit plan” as a technical advantage, arguing that the record contains no contemporaneous evaluation of Metropolitan’s retention and benefit plan compared to MVM’s own retention and benefit plan. However, the SEB report demonstrates that Metropolitan received a “major strength” under the staffing plan factor because its “retention and benefit plan to retain Analytical Linguists within the region is strong,” while MVM’s proposal received no similar major strength under the staffing plan factor. Final SEB Report, Attachment B, at 2. This major strength, reflected in the contemporaneous record, supports the SSA’s identification of Metropolitan’s “retention and benefit plan” as a technical discriminator.

Finally, MVM argues that the SEB and SSA relied on incorrect information in making the award decision. Specifically, MVM notes that the SEB report and the SSD indicate that Metropolitan was rated “Outstanding/Low Risk” for each factor. Final SEB Report at 3; SSD at 3. In fact, however, Metropolitan was rated Good/Low Risk, not Outstanding/Low Risk, under the security plan factor. Final SEB Report, Attachment B, at 3.

The agency acknowledges that the SEB and SSD narratives misstated Metropolitan’s technical rating under the security plan factor, but contends that the ratings under that factor played no role in the SSA’s decision that Metropolitan’s proposal represented the best value to the government, and thus MVM was not prejudiced by the error.

Our Office will not sustain a protest, unless the protester demonstrates a reasonable possibility that it was prejudiced by the agency’s actions; that is, unless the protester demonstrates that, but for the agency’s actions, it would have had a substantial chance of receiving the award. McDonald-Bradley, B-270126, Feb. 8, 1996, 96-1 CPD ¶ 54 at 3. In this case, we agree that the protester has not demonstrated that it was prejudiced by the agency’s misstatement of Metropolitan’s rating under the security plan technical factor.

In the SSD, the SSA specifically identified the technical discriminators that she relied upon in reaching the conclusion that Metropolitan’s proposal was worth the associated price premium, and all of the identified technical advantages related to technical factor 3, staffing plan. That is, the SSA did not rely on discriminators pertaining to factor 4, security plan. Where the record demonstrates that the SSA relied on technical discriminators related to the staffing plan factor in concluding that Metropolitan’s proposal was technically superior and worth the additional price, and not the misstatement of Metropolitan’s rating under the less-important security plan factor, the record does not establish that MVM was prejudiced as a result of the erroneous statement of Metropolitan’s rating.  (MVM, Inc., B-407779, B-407779.2, Feb 21, 2013)  (pdf)


Source Selection Decision

Nexant argues that the FMN does not adequately document the agency’s cost/technical tradeoff. According to the protester, the SSA principally relied on the difference in the point scores assigned, and also the number--but not the quality--of the strengths and weaknesses assigned to the proposals in arriving at her selection decision.

We find that the agency’s selection decision is inadequate, in and of itself, to support the award to Deloitte. In this connection, where an agency makes award to a higher-rated, higher-cost proposal in a best value acquisition, the award decision must be supported by a rational and adequately-documented explanation of why the higher-rated proposal is, in fact, superior, and why its technical superiority warrants paying a price premium. FAR § 15.308; ACCESS Sys., Inc., B-400623.3, Mar. 4, 2009, 2009 CPD ¶ 56 at 7. An agency that fails to adequately document its source selection decision bears the risk that our Office may be unable to determine whether the decision was proper. ACCESS Sys., Inc., supra.

Here, the FMN does not identify any particular features of the Deloitte proposal for which the SSA thought it was worth paying a price premium. Instead, the record shows that she relied principally on the ranking of the proposals based on point scores or the generic number of strengths assigned to the proposals in concluding that award to Deloitte offered the best value to the government. She states:

As noted in the supplemental technical evaluation memorandum dated September 12, 2012, Deloitte had a significant lead in the original TEC review, and subsequently resolved most of the concerns the TEC raised during discussions with regard to its technical approach, draft work plan, draft PMP [performance management plan], management approach, and personnel. In all, Deloitte provided an outstanding and clear proposal for implementing the PFAN-Asia program.

Deloitte’s, [Offeror A’s] and Nexant’s proposals were all strengthened during discussions. However, while [Offeror A and] Nexant demonstrated general improvements, both again achieved a revised score considerably lower than Deloitte’s revised score. Deloitte continued to reflect significantly more strengths and fewer weaknesses than both [Offeror A] and Nexant’s proposals.

* * * * *

Given the significant overall quality of its response to the requirements of the RFP, the TEC unanimously concluded that Deloitte’s proposal offered a substantially better chance for success in achieving the program objectives of the PFAN-Asia program. Ultimately, Deloitte’s proposal had more exceptional strengths that would significantly benefit the Government than either Nexant’s or [Offeror A’s] proposals.

AR, exh. 15, FMN, at 28-29.

This generic, albeit often repeated, conclusion--that the Deloitte proposal offers the best value because it was ranked higher than the other two proposals and included more strengths than the other two proposals--does not meet the requirement for an explanation of why the higher-rated proposal is, in fact, superior, and why its technical superiority warrants paying a price premium. As a result, we sustain Nexant’s protest that the agency failed to reasonably explain its basis for selecting Deloitte’s higher-rated, higher-cost proposal.

Finally, Nexant contends that AID’s source selection decision does not support the award to Deloitte because it was not a contemporaneously-prepared document. In this connection, as noted, the record shows that the agency’s FMN--which is the only document produced by the agency that embodies its source selection decision--was executed on October 31, some 49 days after the SSA states she made the decision to award the contract to Deloitte, 30 days after the actual award was made, and 9 days after Nexant filed its protest with our Office. The protester maintains that we should therefore accord little weight to the FMN because it was prepared in the heat of litigation.

Among the most basic requirements in a negotiated best value acquisition is the requirement that the agency adequately document its source selection decision. FAR § 15.308 expressly provides:

The source selection decision shall be documented, and the documentation shall include the rationale for any business judgments and tradeoffs made or relied on by the SSA, including benefits associated with additional costs.

While the FAR itself is silent on the question of when this documentation should be prepared, our Office has spoken on numerous occasions about the probity of information presented or prepared after the source selection decision has been made. Most notably, for example, in our decision in Boeing Sikorsky Aircraft Support, B-277263.2, B-277263.3, Sept. 29, 1997, 97-2 CPD ¶ 91 at 15, we stated:

While we consider the entire record, including statements and arguments made in response to a protest in determining whether an agency’s selection decision is supportable, we accord greater weight to contemporaneous source selection materials rather than judgments, such as the selection officials’ reevaluation here, made in response to protest contentions. [citations omitted]. As pointed out above, the agency does not acknowledge that it erred. Rather, we are faced with an agency’s efforts to defend, in the face of a bid protest, its prior source selection through submission of new analyses, which the agency itself views as merely hypothetical and which are based on information that the agency continues to argue is not accurate. The lesser weight that we accord these post-protest documents reflects the concern that, because they constitute reevaluations and redeterminations prepared in the heat of an adversarial process, they may not represent the fair and considered judgment of the agency, which is a prerequisite of a rational evaluation and source selection process.

We recognize that the situation we faced in Boeing Sikorsky is not completely analogous to the situation here. Of significance, the agency’s source selection decision in the Boeing Sikorsky case had been memorialized contemporaneously; the question we were considering was what weight to give to a new, revised source selection decision--prepared during the course of the protest--that the agency maintained demonstrated that the protester had not been prejudiced.

Here, we are faced with the unusual circumstance of there being no contemporaneous source selection document. Instead, the agency offers only a source selection document prepared well after the selection decision was made, and after Nexant filed its protest. While AID points out that the underlying technical and cost evaluations were completed and documented prior to the award and the protest, the rationale for the SSA’s selection of Deloitte’s higher-rated, higher-cost proposal for award was not documented until after Nexant’s protest was filed.

Because this document was prepared after the agency had the benefit of having reviewed Nexant’s protest allegations,[5] the protester expresses a reasonable concern that the document may not represent the agency’s fair and considered judgment about the selection, and instead was crafted in response to the protest. To answer this concern would require our Office to consider and decide what weight should be given to a selection decision prepared after the agency receives the protest.[6] However, since we otherwise conclude, as set forth above, that both the selection decision, and the underlying assessments on which it relies, are unreasonable, we need not answer at this time the question of the appropriate weight to be given the post-protest FMN.  (Nexant, Inc., B-407708, B-407708.2, Jan 30, 2013)  (pdf)


Crockett challenges GSA’s selection of TK Services’ lower-rated, lower-priced proposal as reflecting the best value to the government. Crockett contends that the agency placed too much emphasis on price in its selection decision. Protest at 4.

Source selection officials in negotiated procurements have broad discretion in determining the manner and extent to which they will make use of the technical and price evaluation results; price/technical tradeoffs may be made, and the extent to which one may be sacrificed for the other is governed only by the test of rationality and consistency with the solicitation’s evaluation criteria. World Airways, Inc., B-402674, June 25, 2010, 2010 CPD ¶ 284 at 12. Even where, as here, technical merit is significantly more important than price, an agency may properly select a lower-priced, lower-rated proposal if it reasonably decides that the price premium involved in selecting a higher-rated, higher-priced proposal is not justified. Hogar Crea, Inc., B-311265, May 27, 2008, 2008 CPD ¶ 107 at 8.

The record here does not support Crockett’s contention that GSA’s selection decision was inconsistent with the RFP’s evaluation scheme. The contracting officer and the SSEB recognized that the RFP provided that technical merit was more important than price, and both recognized that Crockett’s proposal was technically superior to TK Services’. The contracting officer and the SSEB nonetheless concluded that TK Services’ much lower price outweighed Crockett’s technical advantage. Although Crockett disagrees with that judgment, it has not shown it to be unreasonable.  (Crockett Facilities Services, Inc., B-406558.3, Dec 13, 2012)  (pdf)


PAST PERFORMANCE EVALUATION

Kollsman also contends that the agency’s evaluation of L-3’s past performance was unreasonable and undocumented. Specifically, Kollsman contends that L-3’s past performance rating of “substantial confidence” was not warranted given L-3’s documented negative past performance on the predecessor HLM I contract.

While, as a general matter, the evaluation of an offeror’s past performance is within the discretion of the contracting agency, we will question an agency’s evaluation of past performance where it is unreasonable or undocumented. Navistar Def., LLC; BAE Sys., Tactical Vehicle Sys. LP, B-401865 et al., Dec. 14, 2009, 2009 CPD ¶ 258 at 13; Clean Harbors Envtl. Servs., Inc., B-296176.2, Dec. 9, 2005, 2005 CPD ¶ 222 at 3.

The contract specialist received and reviewed two past performance questionnaires regarding L-3’s performance on previous contracts. MTD, Tab 3, L-3 Past Performance Questionnaire. Of relevance to this protest is the questionnaire that concerned L-3’s performance on the predecessor contract for the [Handheld Laser Marker Block I] HLM I. This contract was administered by the United States Special Operations Command and technical support was provided by NSWC Crane. The task manager for the HLM I contract was stationed at Crane and completed the HLM I past performance questionnaire. This questionnaire contained the following:

10a. Did the contractor request any changes to performance specifications because they could not be met?

Through appropriate consideration provided by L-3/Insight, the acceptance test plan was re-negotiated to allow for a [DELETED]. Once this consideration was negotiated, L-3/Insight has consistently provided products that met the acceptance test plan.

10b. If so, what were the areas and what was the ultimate impact on system performance, cost and schedule?

Negotiated areas were beam [DELETED]. Once this consideration was negotiated, L-3/Insight has consistently provided products that met the acceptance test plan. The Gov’t asked for and received [DELETED]. Schedule has been revised twice with a major impact on fielding the devices.

MTD, Tab 3, L-3 Past Performance Questionnaire, at 3. The past performance questionnaire regarding L-3’s performance of the HLM I contract contained a few “excellent” responses, and the remaining responses were equally divided between “good” and “average.” Id. at 2-4

The contract specialist used this information to draft the past performance evaluation section that was included in the Source Selection Evaluation Report (SSER). Tr. at 111. The SSER was prepared by the source selection board chairperson, who was the same individual who was the task manager for the HLM I contract and who completed L-3’s past performance questionnaire regarding that contract. Tr. at 111, 118-19, 121. The SSER rated L-3’s past performance as “substantial confidence” and its report stated that “[t]he references were checked and no negative information was obtained.” AR, Tab 5, SSER at 34. The SSER also included the following:

Have you requested relief from system specification requirements on any of your [contracts that are the] same or similar to the proposed systems? If yes, please describe the areas and the ultimate impact on system performance, cost and schedule for each request.

On a previous contract for a similar system L-3 requested relief from system specification [DELETED] for the HLM I. Delivery schedule was [a]ffected. However, L-3 provided adequate consideration ([DELETED] at no cost to the Government) and [is] currently ahead of the revised delivery schedule. L-3’s past performance clearly demonstrated the contractors’ ability to work with the customer needs to ensure minor technical issues were resolved and deliver[y] schedule was met without sacrificing a quality product.

Id. The SSER did not otherwise discuss the schedule delays on the HLM I contract reported in the questionnaire or further explain why a significant confidence past performance rating was warranted.

The contract specialist later received the informal preaward survey for L-3 completed by the Defense Contract Management Agency (DCMA). AR, Tab 7, L-3 Preaward Survey; Tr. at 55. This survey concerned an additional performance problem, which occurred later in time than the acceptance test plan issue discussed in the questionnaire. This problem was based on the complaint of a customer, who found that a “secondary beam was being transmitted off to one side creating a possible safety hazard of laser radiation to the personnel using the product in the field.” AR, Tab 7, L-3 Preaward Survey, at 3. This problem caused the HLM I line to be shut down until effective corrective action could be taken and caused an additional delay in performance. Id. The SSER was not updated to consider this problem and there is no contemporaneous evidence as to how this affected L-3’s substantial confidence past performance rating.

The source selection decision did not discuss the past performance evaluation except to report the substantial confidence ratings and report that both proposals received the same adjectival rating. AR, Tab 4, Source Selection Decision, at 3.

Because the contemporaneous record did not explain why L-3’s substantial confidence rating was warranted in view of the reported problems under the HLM I contract, we called a hearing to more fully consider this matter.

During the hearing, the contract specialist testified that, after the SSER was prepared and after he reviewed the preaward survey, he contacted the task manager for the HLM I contract who answered the questionnaire to discuss “inconsistencies with his written comments and the actual questions that we asked.” Tr. at 45. As a result of these discussions, the contract specialist determined that the questionnaire responses of the task manager for the HLM I contracts concerning problems with L-3’s acceptance test plan were erroneously reported. Specifically, the contract specialist concluded that the questionnaire asked whether the performance specifications had been revised during the course of the HLM I contract, and the task manager’s responses concerned problems with L-3’s proposed acceptance test plan. The contract specialist testified that this disconnect created an impression that the performance specifications had been revised for L-3 during the course of the HLM I contract. Tr. at 122. The SSER was not amended to memorialize these discussions or to mention the preaward survey.[8] Id. The contract specialist stated that additional documentation in the SSER was not warranted because L-3’s ultimate past performance rating of “substantial confidence” remained the same. Id.

The contract specialist also testified that the concerns of the task manager did not specifically concern modifications to the performance specifications, but dealt with the fact that the acceptance test plan had been modified. Tr. at 45-47. However, he does not explain why these modifications and concerns are not material. Indeed, we fail to see, and the agency has not explained, the distinction between modifications to the acceptance test plan and the performance specifications.

The contract specialist testified that schedule delay was “[i]rrelevant” in evaluating past performance under this RFP, and that schedule relief for adequate consideration was appropriate. Tr. at 125. The contract specialist also testified that L-3 was not late in making deliveries after the schedule changed. Tr. at 127. We find that this testimony, which does not include any detailed explanation of the reported problems under the HLM I contract, does not reasonably support the “substantial confidence” past performance rating.

Moreover, the past performance ratings on the L-3 questionnaire do not support a substantial confidence rating. As stated above, the past performance questionnaire regarding L-3’s performance of the HLM I contract contained a few “excellent” answers, and the remaining responses were equally divided between “good” and “average.” MTD, Tab 3, L-3 Past Performance Questionnaires, at 3. The average rating was not a favorable one, and was defined on the front of the questionnaire as follows:

AVERAGE-The contractor’s performance was acceptable as expected from a qualified source. Although there is a possibility of doing business with this contractor again, time might be spent looking for a better source.

MTD, Tab 3, L-3 Past Performance Questionnaire, at 1. Thus, without further explanation, we think that average ratings on the past performance questionnaire do not support a substantial confidence past performance ratings. At the hearing, the contract specialist testified with regard to this matter as follows:

Q. Did you note that there were numerous instances of average responses given?

A. Yes.

Q. And how did you interpret those average responses?

A. Talking with the task manager regarding this past performance questionnaire, I believe that his rating of the word average was inconsistent with his written and verbal discussion.

Q. You believe they were inconsistent with his verbal discussions?

A. Yes

Q. In what way?

A. I don’t think he looked at the average definition as being a negative rating.

Tr. at 96-97. Considering the referenced problems under the HLM I contract, it seems more likely that the task manager intended to respond with the “average” rating, as defined in the questionnaire. Given the fact that the same individual prepared the past performance questionnaire and prepared the SSER, it seems that if any of these documents had not reflected his true intentions that he would have noticed any discrepancies and rectified the situation. We find that the agency’s post hoc arguments presented at the hearing are contradicted by the record. Boeing Sikorsky Aircraft Support, B-277263.2, B-277263.3, Sept. 29, 1997, 97-2 CPD ¶ 91 at 15.

We note that the agency and intervenor argue that the contract specialist’s undocumented analysis of L-3’s past performance by the contract specialist was reviewed by the contracting officer and the source selection official, who acquiesced in his analysis in making the source selection decision. However, the agency can produce no documentary evidence of the review by the contracting officer and the source selection official, except the source selection decision document prepared by the source selection decision, which states that “[t]he remaining subfactors of the technical factor and past performance all received the same adjectival rating.” Tr. at 42. Given the lack of documentation and support for the substantial confidence rating, we find no basis to conclude that the agency reasonably evaluated L-3’s past performance.  (Kollsman Inc., B-406990, Oct 15, 2012)  (pdf)


NR-RJV does not challenge the technical evaluations, but instead simply relies on its higher overall technical point score to argue that, contrary to the agency’s position, the difference between the overall technical merits of the two proposals was significant. According to the protester, given the solicitation’s emphasis on the importance of technical considerations relative to price, and in light of the higher technical point score for its proposal, the selection of Allied’s lower-rated proposal was improper.

In conducting cost/technical tradeoffs, selection officials retain considerable discretion in determining the significance of technical point score differentials. The determinative element is not the difference in technical scores per se, but the considered judgment of the selection officials concerning the significance of the difference. IBP, Inc., B-289296, February 7, 2002, 2002 CPD ¶ 39 at 5. Further, the business judgment of a source selection official in determining how much additional cost an agency is willing to incur to obtain the benefit of a higher rated proposal is governed only by the tests of rationality and consistency with established evaluation criteria. Id.

We see nothing unreasonable in the agency’s award decision here. NR-RJV’s argument that it should have been selected for award is based entirely on its point score relative to Allied’s point score. However, contrary to the protester’s assertion, there is no basis to conclude that the 1.4-point difference in the overall technical scores assigned the two proposals represented a finding by the TEB of NR-RJV’s technical superiority. While it appears that NR-RJV’s point score was higher than Allied’s as a result of the protester having an additional reference for a similar contract effort, the agency determined that this advantage was largely offset by the fact that one of NR-RJV’s references indicated that she would not use the protester to perform work in the future (while all of Allied’s references were positive), and by Native Resource’s own limited experience. Given these concerns, and the similar number of strengths and weaknesses for the two firms, we see no basis to question the agency’s conclusion that the technical difference between the proposals was minor. Nor do we see a basis to question the agency’s conclusion that this minor technical difference did not warrant payment of an 16.7% price premium.  (Native Resource-Rowe Joint Venture, B-406880, Sep 13, 2012)  (pdf)


As a final matter, SPINT argues that the CO, acting as the SSA, failed to conduct an adequate price/technical tradeoff analysis because that analysis only considered the three proposals with the highest point-scores, and failed to consider whether their alleged technical superiority was worth paying a higher price than that offered by SPINT. We agree.

In a “best value” procurement, it is the function of the source selection authority to perform a tradeoff between price and non-price factors, that is, to determine whether one proposal’s superiority under the non-price factor is worth a higher price. Even where, as here, price is stated to be of less importance than the non-price factors, an agency must meaningfully consider cost or price to the government in making its source selection decision. e-LYNXX Corp., B-292761, Dec. 3, 2003, 2003 CPD ¶ 219 at 7. Before an agency can select a higher-priced proposal that has been rated technically superior to a lower-priced but acceptable one, the award decision must be supported by a rational explanation of why the higher-rated proposal is, in fact, superior, and explaining why its technical superiority warrants paying a price premium. Coastal Env’ts, Inc., B-401889, Dec. 18, 2009, 2009 CPD ¶ 261 at 4; ACCESS Sys., Inc., B-400623.3, Mar. 4, 2009, 2009 CPD ¶ 56 at 7.

Here, the record shows that the CO impermissibly limited his price/technical tradeoff analysis to a comparison of the three proposals with the highest point-scores, regardless of their price, without any qualitative assessment of the technical differences between these proposals and any of the other technically acceptable, lower-priced proposals--such as SPINT’s--to determine whether they contained features that would justify the payment of a price premium. A proper tradeoff decision must provide a rational explanation of why a proposal’s evaluated technical superiority warrants paying a premium. Federal Acquisition Regulation (FAR) § 15.308 (The source selection “documentation shall include the rationale for any business judgments and tradeoffs made or relied on by the SSA, including benefits associated with additional costs.”); Coastal Env’ts, Inc., supra, at 4-5. Here, the SSA did not identify what benefits in R.E.M.’s proposal warranted paying a premium to R.E.M. when compared to SPINT’s apparently acceptable lower-priced proposal.  (J.R. Conkey & Associates, Inc. dba Solar Power Integrators, B-406024.4, Aug 22, 2012)  (pdf)


Clark/F-P objects to the SSA’s determination that the protester’s and awardee’s final revised proposals were essentially equal, complaining that this determination is inadequately documented and is inconsistent with the evaluation record. Protester’s Supp. Comments at 10. The State Department responds that the SSA’s selection decision is based upon his independent assessment of the evaluated strengths and weaknesses in each firm’s proposal and is adequately documented by his 4-page selection decision. Supp. AR at 19; Agency’s Post-Hearing Comments at 21. The agency also contends that the SSA’s testimony at our July 11 bid protest hearing, which included his discussion of an undocumented March 8 meeting with the TEP, persuasively supports the reasonableness of his decision. Agency’s Post-Hearing Comments at 22-23.

We find, as explained below, that the basis of the SSA’s determination that the two firms’ proposals were essentially technically equal is inadequately documented in the record. That is, despite our Office conducting a bid protest hearing to receive further explanation from the SSA with respect to how he determined that the two firms’ proposals were essentially equal, the record does not explain why the strengths identified in Clark/F-P’s higher rated proposal did not reflect technical superiority that should be considered in a cost/technical tradeoff analysis, where the RFP provided that technical merit was more important than price.

In reviewing an agency’s evaluation of proposals and source selection decision, we will examine the supporting record to determine whether the decision was reasonable, consistent with the stated evaluation criteria, and adequately documented. Johnson Controls World Servs., Inc., B-289942, B-289942.2, May 24, 2002, 2002 CPD ¶ 88 at 6. In this regard, an agency’s evaluation of proposals and source selection decision should be documented in sufficient detail to allow for the review of the merits of a protest. See Southwest Marine, Inc.; American Sys. Eng’g Corp., B-265865.3, B-265865.4, Jan. 23, 1996, 96-1 CPD ¶ 56. An agency which fails to adequately document its evaluation of proposals or source selection decision bears the risk that its determinations will be considered unsupported, and absent such support, our Office may be unable to determine whether the agency had a reasonable basis for its determinations. Engineering and Computation, Inc., B-261658, Oct. 16, 1995, 95-2 CPD ¶ 176; U.S. Defense Sys., Inc., B-245563, Jan. 17, 1992, 92-1 CPD ¶ 89; American President Lines, Ltd., B-236834.3, July 20, 1990, 90-2 CPD ¶ 53.

Here, the record contains significant documentation of the TEP’s consideration of the technical merit of the protester’s and awardee’s proposals. All of the contemporaneous evaluation documentation, including the minority best value recommendation, reflects that Clark/F-P’s initial and final revised proposals were the highest technically rated of all offers received. In this regard, the TEP documented numerous strengths in both Clark/F-P’s and Harbert’s proposals, reflecting the two firms’ differing approaches to performing the contract. Although the TEP could not agree on a consensus best value recommendation as to which firm should be selected to receive award, there is no documentation in the record that any member of the TEP believed that Clark/F-P’s and Harbert’s proposals were technically equal. In this regard, the SSA acknowledged at our hearing that none of the evaluators ever stated that the two proposals were essentially technically equal. Tr. at 85-86, 139-40.

Despite the evidence in the contemporaneous record to the contrary, the SSA concluded that the two proposals were essentially technically equal. Specifically, the SSA concluded that the two firms’ technical proposals were “similar in that no weakness or deficiencies are noted and each offeror has clearly demonstrated the capability to perform the required construction.” AR, Tab 14, Source Selection Decision, at 3. This conclusion, however, was unsupported by any discussion of the respective strengths or weaknesses evaluated in the firms’ proposals or any analysis supporting why he viewed the proposals to be essentially equal. Rather, the SSA appeared to base his judgment about the equality of the two firms’ proposals upon the minority best value recommendation, which the SSA described as having found the firms’ proposals essentially technically equal. See id.; see also Tr. at 100.

The minority best value recommendation, however, does not state that these two evaluators found Clark/F-P’s and Harbert’s proposals to be essentially technically equal. In this regard, the State Department has not provided statements from these two evaluators, or any other evaluator, stating that the two firms’ proposals had essentially equal technical merit. Contrary to the SSA’s statement in his selection decision, the minority best value recommendation actually states that these two evaluators recommended award to Harbert as “offer[ing] an equal degree of best value at a lower cost.” AR, Tab 11, Minority Best Value Recommendation, at 5.

Moreover, the minority recommendation attributed a number of strengths to Harbert’s proposal that do not appear in the TEP initial or final consensus evaluation reports or elsewhere in the contemporaneous evaluation record. For example, with regard to Area 1, Risk Management, the minority recommendation stated that Harbert presented an excellent [Deleted] in their interview presentation. AR, Tab 11, Minority Best Value Recommendation, at 6. However, this attributed strength was not recorded as either a strength or exceptional strength in the initial TEP consensus evaluation report, which included strengths identified from oral presentations. See AR, Tab 8, TEP Initial Consensus Evaluation Report, at 5.

Given the lack of support in the contemporaneous record for the SSA’s conclusion about the technical equality of the two firms’ proposals, we conducted a hearing to obtain the SSA’s testimony. The SSA, however, provided little detail or substantiation in this testimony to support his conclusion that the two proposals were essentially technically equal. The SSA acknowledged that he did not read the proposals, explaining that he did not want to “circumvent the findings” of the TEP given his lack of technical expertise. Tr. at 52. The SSA also testified that, based on his review of the TEP’s consensus evaluation reports, the two best value recommendations, and the March 8 meeting, he decided that the two proposals were equal under all eight evaluation areas. This judgment is not supported by the record, however. For example, in two of the three most heavily weighted areas--Area 2, organization and management, and Area 5, sustainable design and construction project experience--the TEP rated Clark/F-P’s proposal as excellent and Harbert’s proposal as good. See AR, Tab 9, TEP Final Consensus Evaluation Report, at 7. Despite having testified to his limited technical expertise, the SSA did not ask any TEP member why the two proposals were not rated the same in these areas, and the record does not show that any TEP member believed the two firms’ proposals were essentially technically equal under these areas. Instead, the SSA testified that he relied on the written documents and his recollections from the March 8 meeting. Tr. at 53, 144-45. Given the lack of any substantiating detail or explanation to support the SSA’s conclusion that the firms’ proposals were essentially technically equal under every one of the evaluation areas, we have no basis to find reasonable this conclusion.

The record also shows that the SSA’s equality determination is based in part upon a misinterpretation of one of the strengths the minority best value recommendation attributed to Harbert’s proposal. At the hearing, the SSA testified that the minority recommendation identified as a proposal strength Harbert’s intention to [Deleted]. Tr. at 111; see AR, Tab 11, Minority Best Value Recommendation, at 6. This strength was viewed as offsetting the exceptional strength that was identified by the TEP in Clark/F-P’s proposal for its use of [Deleted] to reduce risk. Tr. at 108-11. Not only was this offsetting strength for Harbert not identified in the consensus evaluation reports, but it appears inconsistent with what Harbert actually offered. Instead of [Deleted], the record shows that Harbert actually proposed to [Deleted]. See AR, Tab 4, Harbert Revised Proposal, Section L.23.2.2.2, Risk Management, at 9.

We are also unable to reconcile the contemporaneous evaluation documentation with the SSA’s testimony about the undocumented March 8 meeting, which the SSA apparently believed established that some TEP members changed their earlier views and agreed that the Harbert and Clark/F-P proposals were technically equal. Although, in determining the reasonableness of an agency’s evaluation and award decision, we will consider all information provided to our Office for consideration during the protest, including the parties’ arguments and explanations, and testimony elicited at a hearing, see Southwest Marine, Inc.; American Sys. Eng’g Corp., supra, we accord greater weight to contemporaneous evaluation and source selection material than to the parties’ later explanations, arguments, and testimony. Matrix Int’l Logistics, Inc., B-272388.2, Dec. 9, 1996, 97-2, CPD ¶ 89 at 6. Here, the SSA testified that neither he nor any member of the TEP took notes during the March 8 meeting. Tr. at 28, 139. Additionally, the SSA could not testify with any specificity as to the content of the meetings--beyond stating that “there was a lot of back and forth” between members of the TEP. See Tr. at 27, 89, 142. Moreover, the State Department has not provided any declarations from TEP members as to the content of the meeting or otherwise supporting the SSA’s contention that his conclusions were supported by discussion at this meeting.

We recognize that while agency selection officials may rely on reports and analyses prepared by others, the ultimate selection decision reflects the selection official’s independent judgment. See, e.g., Puglia Eng’g of California, Inc., B-297413 et al., Jan. 20, 2006, 2006 CPD ¶ 33. However, the independence granted selection officials does not equate to a grant of authority to ignore, without explanation, those who advise them on selection decisions. University Research Co., LLC, B-294358, et al., Oct. 28, 2004, 2004 CPD ¶ 217 at 8. Furthermore, although source selection officials may reasonably disagree with the ratings and recommendations of evaluators, their independent judgments must be reasonable, consistent with the stated evaluation scheme, and adequately documented. Earl Indus., LLC, B-309996, B-309996.4, Nov. 5, 2007, 2007 CPD ¶ 203 at 7.

Here, the record provides no evidence of any meaningful consideration by the SSA of the evaluated differences in the firms’ offers. Where a solicitation provides for award on a best value basis, the decision as to the relative technical merit of the offers must be based upon a comparative consideration of the technical differences of the proposals. See Systems Research & Applications, Corp.; Booz Allen Hamilton, Inc., B-299818 et al., Sept. 6, 2007, 2008 CPD ¶ 28 at 24.  (Clark/Foulger-Pratt JV, B-406627, B-406627.2, Jul 23, 2012)  (pdf)


Background

  West Carter

Technical Total

83.8 77.8

Price

$32,357,760

$26,884,000

Discussion

West also challenges the agency’s selection of Carter’s lower-rated, lower-priced proposal for award. West contends that this was not consistent with the the RFP’s evaluation scheme that provided that the technical factors, combined, were significantly more important than price.

Source selection officials in negotiated procurements have broad discretion in determining the manner and extent to which they will make use of the technical and price evaluation results; price/technical trade-offs may be made, and the extent to which one may be sacrificed for the other is governed only by the test of rationality and consistency with the solicitation’s evaluation criteria. World Airways, Inc., B-402674, June 25, 2010, 2010 CPD ¶ 284 at 12. Even where, as here, technical merit is significantly more important than cost, an agency may properly select a lower-cost, lower-rated proposal if it reasonably decides that the cost premium involved in selecting a higher-rated, higher-cost proposal is not justified. Hogar Crea, Inc., B-311265, May 27, 2008, 2008 CPD ¶ 107 at 8.

The record here does not support West’s contention that the agency’s selection decision was inconsistent with the solicitation’s best value award scheme and failed to adequately consider the technical merit of the protester’s proposal. The CO recognized that the technical superiority was substantially more important than low price in the solicitation’s selection criteria and that West’s proposal had been found technically superior to Carter’s. Nevertheless, the CO concluded that Carter’s lower price outweighed West’s technical advantage. West has not shown that the CO’s judgment in this regard was unreasonable.  (West Construction, Inc., B-406511, Jun 15, 2012)  (pdf)


The Medicare Prescription Drug, Improvement, and Modernization Act of 2003 (MMA), Pub. L. No. 108-173, requires CMS to use competitive procedures to replace all current fiscal intermediary, carrier, durable medical equipment regional carrier, and regional home health intermediary contracts with uniform contract services provided by a [Medicare administrative contractor] MAC. CMS divided the country into 15 geographic jurisdictions, each of which will be served by a MAC that will provide services for Medicare Part A and B benefits. The award challenged here by NGS concerns jurisdiction 8 (J8), which covers Michigan and Indiana.

(Sections deleted)

Inconsistent Evaluations in the J8 and J6 Procurements

First, NGS argues that CMS’s evaluation of its technical proposal was unreasonable because the agency’s evaluation of its proposal in the J6 competition identified different strengths and weaknesses than found in the J8 competition. The protester contends the circumstances here are similar to those in CIGNA Gov’t Servs., LLC, B-401062.2, B-401062.3, May 6, 2009, 2010 CPD ¶ 283, where our Office sustained a protest based on CMS’s failure to reconcile differences in the evaluations and award decisions for MAC services for different jurisdictions. For the reasons discussed below, we conclude that the facts here are significantly different than those in CIGNA, and that there is no basis to find that evaluation here was unreasonable.

As discussed above, during the procurement for the J8 MAC contract challenged here, CMS also conducted a separate procurement for the J6 MAC contract. Both awards were announced on or near the same date--J8 was awarded to WPS and J6 was awarded to NGS. NGS was provided a debriefing for both procurements on October 19. NGS notes that its proposal for the J8 procurement was rated as green under the technical capability factor, based on three strengths and one weakness. AR, Tab 21, TEP Consensus Report, at 21-22. In contrast, NGS’s successful and nearly identical proposal for J6 was also rated green under the technical capability factor, but was identified as having 20 strengths and 4 weaknesses. Protester’s Comments (Dec. 5, 2011) at 6.

In CIGNA, our Office addressed a protest concerning the award of a MAC contract for J15. As discussed in CIGNA, CMS had issued a single solicitation for the J6, J11, J14, and J15 contracts. CIGNA argued that the agency’s evaluation of its proposal in connection with the J15 award was unreasonable because the protester had received different, and materially higher ratings in the evaluation for the J11 award, despite submitting nearly identical proposals for both competitions.

In discussing CIGNA’s arguments, we noted that, as a general matter, it is not unusual for individual evaluators to reach different conclusions and assign different scores or ratings when evaluating proposals, since both objective and subjective judgments are involved. CIGNA Gov’t Servs., LLC, supra, at 13, citing Novel Pharm., Inc., B-255374, Feb. 24, 1994, 94-1 CPD ¶ 149 at 6. Moreover, evaluation ratings under another solicitation are not probative of the alleged unreasonableness of the evaluation ratings under the solicitation at issue, given that each procurement stands on its own. Id., citing Parmatic Filter Corp., B-285288, B-285288.2, Aug. 14, 2000, 2000 CPD ¶ 185 at 7.

Notwithstanding these general principles, we agreed with CIGNA that CMS’s evaluation was not reasonable because of the “unique circumstances” involved in the J11 and J15 evaluations and awards. Id. We noted that although CIGNA’s proposals under that solicitation were essentially the same for both jurisdictions, the evaluators’ consensus reports reached materially different ratings. While the agency used separate evaluation teams to prepare consensus reports for each jurisdiction, these consensus reports were subsequently reviewed by a common source selection board (SSB) and SSA, and all of the award decisions were documented in a single selection memorandum. Id. at 5, 13-14.

We found that although the evaluators could reasonably reach different evaluation conclusions and ratings, it was incumbent on the common SSB and SSA to recognize the materially different conclusions reached with regard to what were, essentially, identical proposals. Id. at 14. We especially noted that the SSA had not met her obligation to exercise independent judgment. Id., citing Federal Acquisition Regulation (FAR) § 15.308; University Research Corp. LLC, B-294358 et al., Oct. 28, 2004, 2004 CPD ¶ 217 at 8. We summarized the holding in CIGNA as follows: “[T]he general proposition that each acquisition stands on its own is simply inapplicable to this situation, which involves the same solicitation, proposals that were materially the same, and the same SSB and SSA.” Id. at 13-14.

Here, while it is true that the RFPs for J6 and J8 were essentially the same (with the primary exception that J6 involved additional work for Medicare home health and hospice care), and that NGS submitted largely identical proposals for J6 and J8, there are three crucial differences from CIGNA: (1) the J6 and J8 procurements were conducted under different solicitations; (2) the evaluations did not involve a common SSB that reviewed the consensus ratings prepared by the evaluators; and (3) a different SSA was responsible for each award, each of whom prepared a separate award decision.

NGS argues that our ruling in CIGNA applies nonetheless because there were, in the protester’s view, substantial “overlaps” between the J6 and J8 evaluations. In this regard, the protester notes that the separate TEPs for the J6 and J8 competitions relied on common subject-matter experts (SMEs) and technical cost advisors (TCAs). We do not think the fact that the TEPs were advised by some common advisors made the procurement here similar to that in CIGNA.

Although the TEPs received input from the SMEs and TCAs, nothing in the record suggests that these advisors were responsible for the TEP evaluations, or were otherwise responsible for ensuring consistency between the evaluations. In this regard, the TEP members made the decisions as to which aspects of an offeror’s proposal merited a strength or weakness. Decl. of TEP Chair (Nov. 22, 2011) at 2. More importantly, the protester does not allege, and the record does not otherwise indicate, that the CO for J8 reviewed the evaluations for J6, or vice-versa.

As discussed above, CIGNA addressed the limited circumstances of a common SSB and SSA reviewing inconsistent evaluations concerning identical proposals submitted under a single solicitation. We do not view CIGNA as standing for the proposition that advisors to evaluation panels are responsible for ensuring that the judgments made by different evaluators and selection officials are consistent. On this record we find no basis to conclude that the differences between NGS’s evaluation in the J6 and J8 procurements evidences that the evaluations were unreasonable.  (National Government Services, Inc., B-401063.2,B-401063.3,B-401063.4, Jan 30, 2012)  (pdf)


Source Selection Decision

As set out below, all three of the protesters here raise challenges to the HCA's selection decision. King Farm argues that the HCA failed to perform the required tradeoff analysis, and failed to articulate any rationale for paying the [Deleted] price premium [Deleted] for the Fishers Lane proposal. King Farm Supp. Protest (B‑404896.5) at 19. King Farm argues that such a rationale is necessary, particularly where the evaluation record provided to the HCA included the SSA's tradeoff analysis, which found that the cost savings and shuttle service offered by King Farm's proposal mitigated King Farm's lower rating in the access to existing Metrorail subfactor. Id. at 21-22.

One Largo, the highest-rated offeror, argues that the HCA's recitation of offerors' scores and prices--without additional explanation weighing the strengths and weaknesses of each proposal--was insufficient to support the HCA's determination that the Fishers Lane proposal represented the best value to the government. One Largo Supp. Protest (B-404896.6) at 2-3. In this regard, One Largo complains that the HCA failed to credit One Largo for its evaluated technical superiority by looking behind its higher ratings to discern the substantive differences in the proposals. Id. at 5. For example, One Largo contends that, while its proposal received a superior rating under the access to existing Metrorail subfactor--which represented [Deleted] percent of the total rating--compared to the highly successful rating of the Fishers Lane proposal, the HCA failed to evaluate the true difference between the proposals under that subfactor, that is, the actual difference in distances from a Metrorail station. One Largo's location was assessed as less than 525 wlf from the nearest Metrorail station, whereas the Fishers Lane location was assessed as roughly 2,407 wlf from the nearest Metrorail station--more than four times farther.

Finally, Metroview argues that the HCA failed to meaningfully consider whether Metroview's proposal, which received a higher percentage of superior ratings than the Fishers Lane proposal, merited the cost premium, based each proposal's strengths and weaknesses. Metroview Supp. Protest (B-404896.7) at 3. Metroview notes, for example, that the HCA did not consider the higher rating its proposal received compared to the Fishers Lane proposal under the access to existing Metrorail subfactor, based on the location of Metroview's offered building, which was approximately 1,280 wlf from the nearest Metrorail station, as compared to the Fishers Lane building located approximately 2,407 wlf, or almost double the distance. Id.

Metroview also challenges the HCA's failure to consider in her selection decision the merits of Metroview's proposal with regard to other proposals. Id. at 4. Metroview argues that, although Metroview's proposal received only [Deleted] percent fewer superior ratings than One Largo's proposal, the HCA did not substantively discuss the technical strengths and weaknesses of the two proposals to determine whether they were technically equal or whether one was technically superior, but instead mechanically applied the adjectival ratings to determine technical superiority. Id. Moreover, Metroview asserts that the evaluation record does not provide clear support for any one proposal. In this regard, Metroview notes that the SSEB concluded in its final evaluation report that all proposals were technically equal and recommended King Farm based on its lower price; the SSA disagreed with the SSEB's determination of technical equality and selected King Farm's proposal after a tradeoff analysis; and the HCA disagreed with the conclusions of both the SSEB and the SSA to select the Fishers Lane proposal. Id.

In summary, the crux of the protesters' challenges to the HCA's selection decision is that the HCA failed to consider the evaluated differences between the firms' proposals in her tradeoff analysis.

In reviewing an agency's evaluation of proposals and source selection decision, we examine the supporting record to determine whether the decision was reasonable, consistent with the stated evaluation criteria, and adequately documented. Johnson Controls World Servs., Inc., B-289942, B-289942.2, May 24, 2002, 2002 CPD para. 88 at 6. Although source selection officials may reasonably disagree with the ratings and recommendations of evaluators, they are nonetheless bound by the fundamental requirement that their independent judgments be reasonable, consistent with the stated evaluation scheme, and adequately documented. Earl Indust., LLC, B‑309996, B-309996.4, Nov. 5, 2007, 2007 CPD para. 203 at 7. In this regard, ratings, whether numerical, color, or adjectival, are merely guides for intelligent decisionmaking. Citywide Managing Servs. Of Port Washington, Inc., B-281287.12, B‑281287.13, Nov. 15, 2000, 2001 CPD para. 6 at 11. An agency's source selection decision cannot be based on a mechanical comparison of the offerors' technical scores or ratings per se, but must rest upon a qualitative assessment of the underlying technical differences among competing offers. See The MIL Corp., B‑294836, Dec. 30, 2004, 2005 CPD para. 29 at 8; Opti-Lite Optical, B-281693, Mar. 22, 1999, 99-1 CPD para. 61 at 5.

GSA argues that the HCA reasonably exercised her discretion in determining that the Fishers Lane proposal represented the best value to the government. Supp. AR at 1‑2. GSA further argues that the HCA's review of the SSEB report and the SSA decision, which each contained a detailed discussion of the merits of each proposal, provided sufficient basis for the HCA's selection decision. Id. at 4. In particular, GSA notes that the HCA adopted the overall technical ratings assigned by the SSEB in its January 2011 report. Id. GSA also contends that our prior decisions do not require agency selection officials to discuss every detail regarding the relative merit of the proposals in the selection decision document. Id. at 6.

We recognize that while agency selection officials may rely on reports and analyses prepared by others, the ultimate selection decision reflects the selection official's independent judgment. See, e.g., Puglia Eng'g of California, Inc., B-297413 et al., Jan. 20, 2006, 2006 CPD para. 33 (SSA concurred with recommendation in detailed price negotiation memorandum without preparing separate source selection decision). However, the independence granted selection officials does not equate to a grant of authority to ignore, without explanation, those who advise them on selection decisions. University Research Co., LLC, B-294358, et al., Oct. 28, 2004, 2004 CPD para. 217 at 8.

Here, unlike in Puglia, the HCA did not concur with the recommendations of the lower-level evaluators. Although the HCA adopted the subfactor-level adjectival ratings assigned by the SSEB, she did not adopt either the SSEB's or the SSA's analyses concerning the relative merits of the proposals or selection recommendations. Rather, without explaining the basis for her disagreement with the conclusions of the lower-level evaluators, the HCA proceeded to make conclusory pronouncements concerning which proposal offered the best value to the government. Moreover, contrary to the agency's contentions concerning the clarity of support for the HCA's selection decision, the record shows considerable disagreement between the SSEB and the SSA concerning the relative merits of the proposals.

We find from our review of the record no evidence of any meaningful consideration by the HCA of the evaluated differences in the firms' offers. Rather, the HCA's tradeoff assessment was based upon a mechanical comparison of the percentage of superior and highly successful ratings assigned to each offer. Where, as here, a solicitation provides for award on a best value basis, the decision as to the relative technical merit of the offers must be based upon a comparative consideration of the technical differences of the proposals. See Systems Research & Applications, Corp.; Booz Allen Hamilton, Inc., B-299818 et al., Sept. 6, 2007, 2008 CPD para. 28 at 24.

As noted above, the SSEB documented a number of differences between the offerors' proposals, which would appear to provide discriminators for a determination of the relative technical merit of the offers. For example, under the most important subfactor, access to existing Metrorail, the offerors' proposed buildings were at differing distances from a Metrorail station. Also, King Farm, which offered a building at the greatest distance from a Metrorail station, proposed a shuttle service plan to mitigate that weakness. See AR, Tab 76, SSEB Final Report, at 48. Similarly, under the planning efficiency and flexibility subfactor, the SSEB noted a number of differing strengths and weaknesses in the offerors' proposed building layouts. See id. at 21-28.

In the absence of a documented, meaningful consideration of the technical differences between the offerors' proposals, the HCA could not perform a reasonable tradeoff analysis. That is, the HCA had no basis to determine that the Fishers Lane higher-priced proposal outweighed the cost savings offered by the King Farm lower‑rated, but lower-priced offer. Similarly, the HCA had no basis to conclude that the Fishers Lane proposal was more advantageous than the proposals of One Largo and Metroview. Accordingly, we sustain the protesters' challenge to GSA's selection of the Fishers Lane offer as the best value to the government.  (One Largo Metro LLC; Metroview Development Holdings, LLC; King Farm Associates, LLC, B-404896; B-404896.2; B-404896.3; B-404896.4; B-404896.5; B-404896.6; B-404896.7, June 20, 2011)  (pdf)


CIGNA also challenges the agency's evaluation of its proposal under each of the evaluation factors set forth in the RFP. In doing so, CIGNA, in addition to arguing that the agency's evaluations under these factors were not reasonably based given the contents of CIGNA's proposal, also protests that agency's evaluation of its Jurisdiction 15 proposal under certain of the evaluation factors cannot be considered reasonable because the nearly identical proposal it submitted under the same RFP for Jurisdiction 11 received materially different, and more favorable, evaluation ratings, and there is no explanation for the differences in ratings. For example, CIGNA points out that its proposal received a "very good" rating under the technical understanding factor for Jurisdiction 11, in contrast to a "good" rating under the technical understanding factor for Jurisdiction 15. AR, Tab 33, Contracting Officer Award Recommendation, Jurisdiction 15, at 3, 18; Tab 46, Contracting Officer Award Recommendation, Jurisdiction 11, at 6. CIGNA further points out in this regard that under the provider customer service program, audit and reimbursement, and fraud and abuse subfactors to the technical understanding factor, its proposal was evaluated as "very good" with regard to Jurisdiction 11, but "good" under these same subfactors with regard to Jurisdiction 15. Id. The protester adds that the evaluation results were more disparate under the provider enrollment subfactor to the technical understanding factor, where its proposal received an "outstanding" rating with regard to Jurisdiction 11, and a "good" rating with regard to Jurisdiction 15. Id. The protester raises similar arguments regarding the evaluation of its proposal under the key personnel subfactor to the personnel factor, pointing out that two individuals, each of whom was proposed for one of the key personnel positions in Jurisdiction 11 as well as Jurisdiction 15, received lower evaluation ratings under Jurisdiction 15. Id.; Protest at 34-35; Protester's Comments at 69-71.

As mentioned previously, the agency issued a single RFP in response to which offerors could submit proposals for Jurisdictions 6, 11, 14, and/or 15. The record reflects that the agency convened separate evaluation panels for, and assigned separate contracting officers to, each jurisdiction. The agency then had the evaluation results and award recommendations from each jurisdiction presented by the cognizant contracting officers to a single SSB and SSA. The SSA ultimately issued a single source selection statement that provided for the awards under Jurisdiction 6, 8, 10, 11 and 15.

In responding to this aspect of the protest, the agency acknowledges that the evaluation results differ from Jurisdiction 11 to Jurisdiction 15, and does not argue that the proposals CIGNA submitted for Jurisdictions 11 and 15 differed in any material way with regard to the aspects of the evaluation challenged here. Rather, the agency states that it is not unusual or objectionable for different evaluators to reach different conclusions regarding the same proposal. With regard to the actions of the SSB and SSA, the agency, while recognizing "that the same SSA and SSB made the award decisions" for the differing jurisdictions, notes that "neither the SSB nor the SSA reviewed the underlying proposals," and "[a]s a result, neither the SSB nor the SSA was in a position to reconcile the differences in the independent ratings assigned by the evaluation panels in each jurisdiction." Agency Supp. Report at 3. The agency concludes that because of this, the Jurisdiction 15 evaluation and source selection should be considered reasonable, given that an SSA may generally rely on the advice and evaluation recommendations of the cognizant agency evaluators, and need not actually read the proposals submitted. Id.

We cannot find, based on the unique circumstances here, that the evaluation of CIGNA's proposal under Jurisdiction 15 was reasonable or that the SSA adequately fulfilled her responsibilities. In this regard, we agree with the agency that as a general matter, it is not unusual for individual evaluators to reach different conclusions and assign different scores or ratings when evaluating proposals since both objective and subjective judgments are involved, Novel Pharm., Inc., B-255374, Feb. 24, 1994, 94-1 CPD para. 149 at 6, and that evaluation ratings under another solicitation are not probative of the alleged unreasonableness of the evaluation ratings under the solicitation at issue given that each procurement stands on its own. Paramatic Filter Corp., B-285288; B-285288.2, Aug. 14, 2000, 2000 CPD para. 185 at 7. However, neither of these general propositions justifies the actions of the agency here. That is, this protest does not involve a challenge to a consensus evaluation based solely on the fact that individual evaluators had different views of the proposal during the evaluation process and prior to reaching a consensus. In such protests, our concern is whether the consensus evaluation was reasonable and consistent with the evaluation factors set forth in the solicitation. Here, each set of evaluators reached a consensus regarding essentially the same proposal submitted in response to the same solicitation. However, the consensuses reached were materially different, and nothing was done by the common SSB or SSA to either reconcile or understand the differences. This, in our view, stands in contrast to the actions taken by an evaluation team when arriving at a consensus evaluation. Additionally, the general proposition that each acquisition stands on its own is simply inapplicable to this situation, which involves the same solicitation, proposals that were materially the same, and the same SSB and SSA.

With regard to the SSA's duties, again, while the agency is correct that an SSA may generally rely on reports and analyses prepared by others and need not actually read the proposals, see Pan Am World Servs., Inc., et al., B-231840 et al., Nov. 7, 1988, 88‑2 CPD para. 446 at 22, the ultimate source selection decision must represent the SSA's independent judgment. FAR sect. 15.308; University Research Corp., B-294358 et al., Oct. 28, 2004, 2004 CPD para. 217 at 8. That is, the FAR as well as our bid protest decisions recognize that while an SSA may rely on the views of others in making a source selection, this does not allow an SSA to abrogate his or her responsibility to exercise independent judgment. Applied here, the fact that the SSA relied upon the views of the Jurisdiction 11 and Jurisdiction 15 contracting officers does not support a conclusion that a source selection, made without an adequate understanding of the proposals submitted and agency's evaluation, is unobjectionable, or that the SSA's ultimate source selections, and determinations upon which they were made, are beyond review.

Our views here are not meant to provide that anything short of the assignment of the same ratings under each of the evaluation factors and subfactors to CIGNA's proposal under Jurisdiction 11 and 15 would be considered unreasonable. However, we believe it was incumbent upon the SSB and SSA, when confronted with the differing evaluation results of essentially the same proposal, submitted by the same offeror under the same solicitation, to seek some sort of explanation, or otherwise arrive at an understanding, as to why this was the case, especially where there were significant rating differences in the respective evaluations. In our view, such an understanding was necessary for intelligent decision making, and absent such an understanding by the SSA, we cannot find either the underlying evaluation of CIGNA's proposal or the ultimate source selection reasonable. We sustain the protest on this basis. 
(CIGNA Government Services, LLC, B-401062.2; B-401062.3, May 6, 2009)  (pdf)


SSB Evaluation

Several of API's protest grounds are based on asserted improprieties in the SSB's evaluation. For example, API asserts that the SSB's evaluation was inconsistent with the evaluation factors stated in the RFQ in that the SSB applied only two of the identified evaluation factors and used undisclosed weighting, Comments at 7-15, and that weaknesses the SSB identified in its quotation regarding tools necessary for installation were "irrational." Comments at 17-18.

These arguments are without merit. Source selection officials are not bound by the recommendation of lower-level evaluators. Verify, Inc., B-244401.2, Jan. 24, 1992, 92‑1 CPD para. 107 at 7. Rather, they have broad discretion in determining the manner and extent to which they will make use of technical and price evaluation results. TRW, Inc., B-234558, June 21, 1989, 89-1 CPD para. 584 at 4. Accordingly, in determining whether the award decision was reasonable and consistent with the solicitation evaluation criteria, we review the decision, not of the evaluators, but of the source selection authority. Id. It follows that evaluators' judgments are relevant only to the extent that they affected the source selection authority's best value determination.

Here, there is no indication in the record that any of the asserted improprieties with regard to the SSB's evaluation affected the CO's best value determination. The Army advises that the CO did not make use of the scores and other determinations by the SSB that the protester asserts were inconsistent with the RFQ, SAR at 1, and the record indicates that none of the three deficiencies in API's quotation identified in the CO's best value analysis was based on the SSB's evaluation. For example, the SSB identifies only one weakness in API's quotation, tools necessary for installation, and that weakness is not mentioned in the best value analysis. SSB Report at 3; SSDD at 11. Thus, since the CO did not base her best value determination on the SSB's judgments, the fact that the evaluators may have deviated from the RFQ's evaluation scheme in arriving at its judgments (we do not reach this question) is irrelevant for purposes of assessing the reasonableness of the best value determination and source selection.  (All Points International Distributors, Inc., B-402993; B-402993.2, September 3, 2010) (pdf)
 


FSA administers several student aid programs furnishing federal financial assistance for education beyond high school, including, as relevant here, direct loans (DL) made by the federal government and loans guaranteed by the federal government under the Federal Family Education Loan Program (FFEL). Due to recent economic and liquidity uncertainty facing financial markets, many student loan vendors began dropping out of the market. With the markets unable to generate adequate capital at prices that would ensure that loans needed for the 2009-2010 academic year would be available, recent legislation authorized the agency to accept former FFEL loans tendered by private lenders, and to purchase former FFEL loans dating back to 2003, to return liquidity and stability to the student loan market. In this regard, FSA expected that lenders that had received federal funds under the agency's FFEL Loan Participation Purchase Program likely would transfer their student loans to the agency, rather than repay the federal funds, commencing in September 2009. In total, the agency originally anticipated an approximate doubling of the number of borrowers under the DL program, from the 6.5 to 7 million borrowers serviced by ACS in June 2008 under its Common Services for Borrowers (CSB) contract, to approximately 13 million borrowers. Hearing Transcript (Tr.) at 10-13, 50-58; RFP sect. C.1.

(sections deleted)

Of the five offerors that subsequently submitted final proposal revisions (FPR), only ACS declined to accept all of the amended proposed Common Pricing and Additional Terms and Conditions. In this regard, for two of the seven borrower status categories, ACS proposed higher pricing than was set forth in the proposed Common Pricing--a monthly service fee of $[REDACTED] per borrower in In-school Status, versus FSA's proposed $1.05, and a monthly service fee of $[REDACTED] per borrower in Grace or Current Repayment Status, for quantities of 1 to 3,000,000 borrowers, versus the proposed $2.11. ACS also proposed escalation based upon the selected Bureau of Labor Statistics Employment Cost Index, with the adjustment limited to the amount by which the index change exceeded plus or minus [REDACTED]%, rather than plus or minus 3%, as proposed by FSA. Further, ACS's proposal effectively rejected FSA's proposal to retain the right to periodically review and equitably adjust the rate structure to maintain the effectiveness of the services provided. Finally, while ACS stated that it accepted proposed Common Pricing term No. 7--the provision stating that the government "makes no guarantee to any awardee that their organization will retain their current loan servicing volume"

(sections deleted)

ACS's proposal was evaluated as offering a number of advantages, primarily related to ACS's status as the incumbent DL contractor and its offer of early compliance with the contract requirements, which, the agency found, would afford the government significant risk mitigation with respect to ability to service loans in the near or immediate future. However, FSA calculated that ACS's refusal to accept the proposed Common Pricing monthly service fees would result in an additional cost to the government of $11,429,832 per year versus the cost under the proposed Common Pricing for a sample loan portfolio, and an additional yearly cost of $233,933 to $3,343,815 due to ACS's higher proposed escalation rates. SSD at 25-27. In addition, FSA determined that ACS's proposal that borrowers being serviced under the CSB that are transferred to the Title IV contract "shall not be subject to transfer to another servicer prior to June 1, 2014" implied that the agency would be unable to transfer the borrowers to another servicer even if ACS failed to comply with the contract requirements. Tr. at 173, 273-75, 306. In any case, the SSA determined that ACS's proposal to retain the transferred CSB borrowers until 2014 "frustrates the performance-based objective of the acquisition." SSD at 28. (Indeed, the SSA believed that this one provision by itself "would render ACS's proposal unacceptable… ." Id. ) FSA concluded that these considerations outweighed any risk mitigation benefits from ACS's proposal and that ACS's proposal therefore did not represent the best value to the government; accordingly, FSA made awards only to Great Lakes, Nelnet, PHEAA, and Sallie Mae.

ACS challenges the evaluation of proposals and the resulting source selection decision. We have considered all of ACS's arguments and find that none furnishes a basis for questioning the awards. We discuss the most significant arguments below.

(sections deleted)

INCUMBENT STATUS

ACS maintains that the price/technical tradeoff decision did not adequately account for the significant risk mitigation that the agency found would innure from ACS's status as the incumbent DL contractor and its offer of early compliance with the contract requirements.

Our review of price/technical tradeoff decisions is limited to determining whether the tradeoff was reasonable and consistent with the solicitation's evaluation criteria. WorldTravelService, B--284155.3, Mar. 26, 2001, 2001 CPD para. 68 at 8. Notwithstanding a solicitation's emphasis on technical merit, an agency properly may select a lower‑priced, lower technically rated proposal if it decides that the cost premium involved in selecting a higher-rated, higher-priced proposal is not justified, given the level of technical competence available at the lower price. Id.

The tradeoff here was reasonable. While, as discussed, the SSA acknowledged that ACS's advantage with respect to transitioning to the new contract mitigated start-up risk, SSD at 7-8, he viewed this advantage as only an initial, temporary advantage that did not offset the cost impact from ACS's refusal, unlike the other four offerors, to accept the agency's proposed Common Pricing, and the program impact from ACS's refusal to fully accept the performance-based approach contemplated by the solicitation. The SSA ultimately concluded that, while ACS's offer would mitigate risk and provide benefits to the government in the short term, these advantages were not worth the increased overall cost to the government, frustration of the contemplated performance-based approach under the acquisition, and introduction of uncertainty with respect to contract administration associated ACS's proposal. SSD at 27-28, 32-33. We find no basis to object to this determination.  (ACS Education Solutions, LLC, B-401531; B-401531.2; B-401531.3, October 5, 2009)  (pdf)


T-C also argues that the award decision was improperly based only on the overall ratings, and did not take into account the greater significance of the technical factor assigned by the RFP. Protester's Comments at 52-53. Our Office also asked the VA to respond to this argument. Fax from GAO to Parties, Aug. 3, 2009, at 1-3 (Questions 4 & 16). In answer, the VA argued that it was not required to consider T‑C's proposal for award because the firm "was not the lowest priced or the highest technically rated proposal at any of the locations," and that the weighting of the factors set forth in the RFP was adequately addressed when T-C's proposal was assigned an overall rating of "good." Supp. AR at 2, 5 (Answers 4 & 16).

The PNM shows that the CO based his decision on the overall adjectival rating for the two awardees, and their total prices. The record thus shows that the CO did not consider--and may not have known--that T-C's proposal was rated higher than eTrans's proposal under the most significant technical factor, and several of the subfactors. Consistent with our view of the contemporaneous record, during the course of this protest, the VA has emphasized that the proposals of both T-C and eTrans were assigned overall ratings of "good," as evidence that T-C's proposal had no advantage over eTrans's proposal that could justify its higher price. AR at 6; Supp. AR at 6. To the contrary, the RFP placed higher significance on the technical factor, indicating that the agency would consider paying more for an offeror's superior technical approach. The elimination of T-C's proposal from further consideration in some of these tradeoffs, without a reasonable supporting explanation in the contemporaneous record--or a finding that the proposals rated "good" overall were technically equal, despite the underlying differences in their ratings--is inconsistent with the weighting of the non-price factors stated in the RFP.

Finally, the VA argues that, notwithstanding errors in the evaluation, T-C was not competitively prejudiced because it would not have received an award. Supp. AR at 6. Our Office will not sustain a protest unless the protester demonstrates a reasonable possibility that it was prejudiced by the agency's actions, that is, unless the protester demonstrates that, but for the agency's actions, it would have had a substantial chance of receiving the award. McDonald‑Bradley, B‑270126, Feb. 8, 1996, 96‑1 CPD para. 54 at 3; see Statistica, Inc. v. Christopher, 102 F.3d 1577, 1581 (Fed. Cir. 1996).

The contemporaneous record shows that for the four locations awarded to K&R, T-C proposed prices higher than K&R, which had excellent ratings in all factors. T-C has not meaningfully challenged the evaluation of K&R. Even after correcting the errors identified above (which relate to the technical factor, but not the management factor), T-C's proposal would still be higher priced--and lower rated--than K&R's proposal. As such, T-C has not shown that it had a substantial chance for award at the four locations awarded to K&R.

Similarly, with respect to the award of the Birmingham and Columbia locations to eTrans, T-C's proposal was higher-priced than those of K&R and eTrans. Moreover, the record shows that the VA already performed a tradeoff and decided against awarding those locations to K&R based on its higher-rated but higher-priced proposal. Since T-C's proposal (even after correction of the errors in its technical evaluation) will remain higher-priced, but lower-rated, than K&R's proposal for those locations, there appears to be no reasonable possibility that T-C, rather than K&R, would be selected if the agency made a new tradeoff decision for these locations.

However, for two locations (Atlanta and Charleston), the record appears to support a conclusion that T-C was competitively prejudiced by the VA's failure to consider the protester's proposal in the tradeoff analysis. At these locations, T-C's proposal offered lower prices than K&R's proposal, and as explained above, the record provides no evidence that the CO was aware that T-C's proposal had higher evaluation ratings than eTrans's proposal (even before correcting the errors in the technical evaluation). Therefore, in our view, T-C can make the required showing of competitive prejudice with respect to the award of the Atlanta and Charleston locations to eTrans. Accordingly, we sustain the protest. 
(T-C Transcription, Inc., B-401470, September 16, 2009) (pdf)


HCRS protests that the SSA's new source selection determination is improper. The protester essentially challenges the SSA's failure to find its proposal technically superior based on the three strengths noted by the TEP, and failure to conclude that such alleged technical superiority warranted payment of the additional cost associated with its proposal. HCRS contends that the SSA's changed opinion of the value of these three proposal features is insufficiently explained or supported, rendering his new decision to award to Innotion unreasonable and inconsistent with the RFP's terms. We disagree.

Source selection officials have broad discretion in determining the manner and extent to which they will make use of the results of a technical evaluation panel's assessment of proposals, subject only to the tests of rationality and consistency with the evaluation criteria. Development Alternatives, Inc., B-279920, Aug. 6, 1998, 98-2 CPD para. 54 at 9. Where, as here, a higher-level official determines that the technical evaluators' findings do not reflect the actual value of proposals and the selection decision is protested, the agency must show that its ultimate determination is reasonable, with sufficient detail and explanation to permit our Office to review the determination for reasonableness. SAMS El Segundo, LLC, B‑291620, B-291620.2, Feb. 3, 2003, 2003 CPD para. 44 at 17. Our review of the record provides no basis to question the reasonableness of the SSA's decision to award a contract to Innotion based on his determination that the firm's technically equal, lower-priced proposal was the most advantageous to the agency.

The SSA prepared a comprehensive source selection decision document summarizing his view of the TEP's findings regarding the 15 proposals received. With respect to the SSA's consideration of the HCRS proposal for his new source selection decision, the document references the evaluators' identification of the three strengths in the proposal. While the SSA recognized that HCRS had been credited for [deleted], he also noted that [deleted] and thus, he did not find any added value from the [deleted]. In the agency report, the SSA further points out that Innotion's proposal also generally discussed [deleted], but that no similar credit as a proposal strength had been added to the awardee's evaluation rating. The agency report also points out that the RFP does not specifically provide for additional evaluation credit for [deleted]. Accordingly, we cannot find unreasonable either the SSA's change in his assessment of the value of the TEP-identified strength or his conclusion that no added value was demonstrated by the protester in its proposal in this regard.

The SSA explained that he also discounted a strength cited by the TEP for [deleted] mentioned in the HCRS proposal [deleted]. The SSA stated that, since there was no mention of [deleted] in the RFP's performance work statement or evaluation criteria, the TEP's award of the credit was inconsistent with the RFP's terms.

While HCRS contends that the evaluators reasonably credited its proposal with a strength for [deleted], the proposal did not detail [deleted] or otherwise demonstrate that it relates to the evaluation subfactor under which it was noted as a strength by the TEP (management techniques and staffing processes for performance of the coding, coaching, auditing and training work required here). In fact, in a proposal chart [deleted]. Since the protester has not persuasively supported its contention that the credit given by the TEP for the referenced [deleted] was warranted under the RFP's terms or that the SSA unreasonably concluded that the experience did not present any added value to the agency, we cannot conclude that the SSA's discounting of such credit during his review of the previous source selection was unreasonable.

Lastly, the SSA failed to accept a strength noted by the evaluators in the HCRS proposal for a [deleted]. The SSA found that the HCRS proposal failed to demonstrate that the [deleted] offered any additional value; the SSA explains that under the RFP's terms, [deleted] which already provide beneficial results for the agency at no additional cost. The SSA adds [deleted], which, although noted by the evaluators, had not been similarly credited as a proposal strength. The protester has not provided any persuasive basis to question the reasonableness of the SSA's decision that the firm's proposed [deleted] did not present additional value to the agency so as to justify a technically superior rating or warrant the payment of a price premium.

In sum, our review of the record shows no basis to question the reasonableness of the SSA's new source selection decision that, among the technically equal proposals, Innotion's lowest-priced proposal was the most advantageous to the agency.  (Healthcare Resolution Services, Inc., B-400826.4, August 13, 2009)  (pdf)


The evaluation of technical and management proposals is primarily the responsibility of the contracting agency, since the agency is responsible for defining its needs and identifying the best method of accommodating them, and it must bear the burden of any difficulties resulting from a defective evaluation. Federal Envtl. Servs., Inc., B‑260289, B‑260490, May 24, 1995, 95-1 CPD para. 261 at 3. Point scores and adjectival ratings are only guides to assist source selection officials in evaluating proposals, and information regarding particular strengths and weaknesses of proposals is the type of information such officials are bound to consider to determine whether, and to what extent, meaningful differences exist between proposals. See, e.g., TPL, Inc., B‑297136.10, B-297136.11, June 29, 2006, 2006 CPD para. 104 at 17. In reviewing protests challenging an agency’s evaluation of proposals, we will not substitute our judgment for that of the agency regarding the merits of proposals; rather, we will examine the agency’s evaluation only to ensure that it was reasonable and consistent with the solicitation’s evaluation criteria and with procurement statutes and regulations. Honolulu Marine, Inc., B-245329, Dec. 27, 1991, 91-2 CPD para. 586 at 3. Finally, source selection officials and higher-level agency evaluators may reasonably disagree with the evaluation ratings and results of lower-level evaluators. See, e.g., Verify, Inc., B‑244401.2, Jan. 24, 1992, 92-1 CPD para. 107 at 6-8. In this regard, the issue is not whether the agency’s final assessments are consistent with earlier assessments, but whether they reasonably reflect the relative merits of the proposals. KPMG Consulting LLP, B-290716, B-290716.2, Sept. 23, 2002, 2002 CPD para. 196 at 13-14; Brisk Waterproofing Co., Inc., B-276247, May 27, 1997, 97-1 CPD para. 195 at 2 n.1.

Here, Jacobs’ proposal was initially considered by the lower-level MTET to have [deleted] risk, based on various MTET concerns. For example, the MTET expressed concern that “four of the seven key personnel proposed [by Jacobs] reside outside of the local area”; therefore, the MET “questioned the long term commitment of [those] personnel.” MTET Report at 16. In contrast, the SSEB noted that Jacobs’ proposal contained letters of commitment from its proposed key personnel and, therefore, found no basis to question those commitments. SSEB Report at 4. Additionally, the MTET expressed concern regarding Jacobs’ plan to [deleted], questioning whether Jacobs could successfully [deleted] without creating “morale and/or retention problems.” MTET Report at 15-16. The SSEB rejected the MTET’s concern regarding an [deleted] on the basis that there was no objective support for this concern, and (echoing the MTET’s assessment of a “strength” in this area) stated: [deleted]. SSEB Report at 5. Finally, although the MTET identified other “minor discrepancies” in Jacobs’ proposal, the SSEB concluded that these matters would cause “no disruption in performance.” Id. at 4. Overall, based on the SSEB’s consideration of the solicitation requirements, the stated evaluation factors, and its review of Jacobs’ proposal, the SSEB concluded that a rating of [deleted] with regard to the management evaluation factor was more appropriate than the MTET’s initial rating of [deleted]; thereafter, the SSA accepted the SSEB’s assessment.

Based on our review of the record, we conclude that the SSEB’s assessments are consistent with and supported by the record, and we find no basis to question the reasonableness of either the SSEB’s judgments regarding risk, nor the SSA’s reliance on the SSEB’s judgments. While Wyle disagrees with the agency’s final risk assessment, such disagreement does not provide a basis for sustaining the protest.  (Wyle Laboratories, Inc., B-311123, April 29, 2008) (pdf)
 


Best Value Tradeoff Determination

Yates also protests the Corps of Engineers' best-value tradeoff determination. Specifically, the protester argues that the agency's decision was improper because it failed to properly consider Walton's higher price and because it failed to sufficiently document the rationale for the tradeoff determination. The Corps of Engineers asserts that its source selection decision adequately supports the agency's tradeoff determination. We agree.

Where solicitations provide for award on a "best value" or "most advantageous to the government" basis, it is the function of the source selection authority to perform a price/technical tradeoff, that is, to determine whether one proposal's technical superiority is worth the higher price, and the extent to which one is sacrificed for the other is governed only by the test of rationality and consistency with the stated evaluation criteria. Remington Arms Co., Inc., B-297374, B-297374.2, Jan. 12, 2006, 2006 CPD para. 32 at 15; Chenega Technical Prods., LLC, B-295451.5, June 22, 2005, 2005 CPD para. 123 at 8. Where a price/technical tradeoff is made, the source selection decision must be documented, and the documentation must include the rationale for any tradeoffs made, including the benefits associated with the additional costs. Federal Acquisition Regulation sections 15.101-1(c), 15.308; All Star-Cabaco Enter., Joint Venture, B-290133, B-290133.2, June 25, 2002, 2002 CPD para. 127 at 8-9.

In conducting the tradeoff here, the SSA first premised his determination upon review of the relative importance of the RFP's evaluation criteria, including that all nonprice factors, when combined, were significantly more important than price. AR, Tab 33, Revised Source Selection Decision, at 1, 6. The SSA then reviewed the evaluation findings and ratings of the two offerors' proposals under all stated evaluation factors and subfactors. Id. at 3-4. The SSA then performed a head-to-head comparison of the Walton and Yates technical proposals, finding that Walton's technical advantages included:

  • superior designs for both the barracks atriums and roofs
  • a detailed approach to concrete masonry unit (CMU) wall evaluation and removal
  • an advanced regenerative desiccant which would be invaluable in the removal of moisture
  • a contract schedule that was well-grounded, plausible, and which reduced project duration by [DELETED] days (the resulting early barracks occupancy was estimated to have a direct cost savings of approximately $[DELETED] as well as a tremendous improvement on the quality of life for the affected soldiers).

After recognizing the $20.68 million cost difference between the offerors' proposals, the SSA concluded as follows:

In summary, [Walton] presented better value for the Government in terms of design through the submission of superior products and design, demonstrated a proven positive record of past performance and specialized experience, offered a significant savings in terms of contract duration, and demonstrated a comprehensive, unconditional grasp of the scope of work. For the above reasons it is my determination that the added value of Walton's technical proposal, which is significantly more important than price, outweighs the lower price offered by Yates, whose proposal offers little or no discernible value to the Government.

Id. at 8.

Contrary to Yates' assertions, we find that the source selection decision adequately documented the agency's rationale for the tradeoff made, including the benefits associated with the higher price. The propriety of such a price/technical tradeoff decision turns not on the difference in the technical scores or ratings per se, but on whether the source selection official's judgment concerning the significance of the difference was reasonable in light of the RFP's evaluation scheme. Remington Arms Co., Inc., supra, at 16-17; Johnson Controls World Servs., Inc., B-289942, B-289942.2, May 24, 2002, 2002 CPD para. 88 at 6. Here, the SSA properly looked behind the evaluation ratings and considered the underlying qualitative merits that distinguished the offerors' proposals, including the awardee's better and more detailed design approach and a contract duration that was [DELETED] days less than both the RFP requirement and that proposed by Yates. Consistent with the RFP's provision that nonprice factors when combined were significantly more important than price, the SSA reasonably concluded that the $20.68 million price premium associated with Walton's proposal was justified by its greater technical merit. As the SSA stated, Walton's superior design, past performance, specialized experience, and contract schedule warranted the associated price premium. Under these circumstances, we see no basis to question the agency's decision to make award to Walton.  (W.G. Yates & Sons Construction Company, B-400753.3, March 25, 2009)  (pdf)


The RFP sought a contractor to provide training for the M9 pistol, 12-gauge shotgun, M16 rifle, and M60 medium machine gun. The RFP provided for the award of a contract on a "best value" basis considering the following factors (in descending order of importance): technical/management (with subfactors for technical understanding, technical capability, and management), past performance, and price.

(sections deleted)

The evaluation in this area was unobjectionable. Blackwater attaches unwarranted weight to the adjectival ratings, which serve only as a guide to intelligent decision making. Chapman Law Firm, LPA, B-293105.6 et al., Nov. 15, 2004, 2004 CPD para. 233 at 5. The essence of the evaluation is reflected in the evaluation record itself, not the adjectival ratings. In this regard, while the source selection evaluation board (SSEB) assigned Blackwater's and APT's proposals the same adjectival and risk ratings, the record shows that this was with full knowledge of the relative merits of the proposals. Specifically, in its report to the source selection authority (SSA), the SSEB listed as Blackwater's unique strengths that it would conduct all training within the highly desirable driving range, and that Blackwater has no risk of being denied access because it would conduct all training at a Blackwater-owned facility. SSEB Report at 29. The SSA likewise recognized these unique strengths in Blackwater's proposal. However, the SSA determined that these considerations did not represent significant differences in the proposals, and thus concluded that Blackwater's proposal was only slightly superior to APT's regarding the training site. SSA report at 9, 10. In the final analysis, the SSA concluded that this slight advantage, together with Blackwater's past performance advantage, was not sufficient to warrant paying Blackwater's 10 percent higher price. Id. at 10. While Blackwater disagrees with the agency's judgment in this regard, the evaluation was in no way inconsistent with anything in the solicitation, and Blackwater has not established that it was otherwise unreasonable.  (Blackwater Lodge and Training Center, Inc., B-311000.2; B-311000.3; B-311000.4, November 10, 2008) (pdf)


ViroMed next argues that the agency’s price/technical tradeoff was based improperly on price where the RFP indicated that technical proposals would be more important than price. Our review of price/technical tradeoff decisions is limited to determining whether the tradeoff was reasonable and consistent with the solicitation’s evaluation criteria. WorldTravelService, B-284155.3, Mar. 26, 2001, 2001 CPD para. 68 at 8. Notwithstanding a solicitation’s emphasis on technical merit, an agency may properly select a lower-priced, lower technically rated proposal if it decides that the cost premium involved in selecting a higher-rated, higher-priced proposal is not justified, given the acceptable level of technical competence available at the lower price. Id.

The record in this case indicates that the contracting officer did not give undue weight to price in making the award decision. Rather, the record demonstrates that the contracting officer acted in accordance with the RFP’s direction that technical factors were more important than price, but concluded that CDD’s lower-priced, lower-rated proposal represented the best value to the government. As noted above, while CDD’s proposal was rated equal to ViroMed’s proposal under the technical approach, corporate experience, and past performance factors, and higher than ViroMed’s proposal in socio-economic plan, ViroMed in fact was ranked first technically on the basis of the contracting officer’s independent judgment that ViroMed’s corporate experience and past performance were superior to CDD’s, despite the equal, highly acceptable, technical ratings. SSDM at 4, 8. In making the selection decision, however, the contracting officer, after recognizing that “the RFP specified that the evaluation of proposals considers the offeror’s technical proposal more important than the offeror’s price proposal,” determined that “the technical superiority of ViroMed’s proposal cannot be offset by the overall price differential of $4,965,179.50 or 13.46% that exists between ViroMed and CDD.” SSDM at 8. Given that under the RFP here it was within the contracting officer’s discretion to decide that the price premium involved in selecting ViroMed’s higher-rated, higher-priced proposal was not justified in light of the acceptable level of technical competence available at CDD’s lower price, we see no basis to conclude that the contracting officer’s decision here was inconsistent with the RFP or otherwise unreasonable.  (ViroMed Laboratories, Inc., B-310747.4, January 22, 2009) (pdf)


Wackenhut also challenges the SSA’s award decision, arguing that it was based upon an unreasonable and unsupported reevaluation of the SEB’s findings, and that the SSA’s award decision was not adequately documented. As a general matter, where price is secondary to technical considerations under a solicitation’s evaluation scheme, the selection of a lower-priced proposal over a proposal with a higher technical rating requires an adequate justification, i.e., one showing the agency reasonably concluded that notwithstanding the point or adjectival differential between the two proposals, they were essentially equal in technical merit, or that the differential in the evaluation ratings between the proposals was not worth the cost premium associated with selection of the higher technically rated proposal. In making these determinations, the propriety of a price/technical tradeoff turns not on the difference in technical scores per se, but on whether the contracting agency’s judgment concerning the significance of that difference was reasonable in light of the solicitation’s evaluation scheme. In this regard, adjectival ratings and point scores are but guides to, and not substitutes for, intelligent decision making. SAMS El Segundo, LLC, B-291620, B-291620.2, Feb. 3, 2003, 2003 CPD para. 44 at 17. Source selection officials have broad discretion in determining the manner and extent to which they will make use of, not only the adjectival ratings or point scores, but also the written narrative justification underlying those technical results, subject only to the tests of rationality and consistency with the evaluation criteria. Development Alternatives, Inc., B-279920, Aug. 6, 1998, 98-2 CPD para. 54 at 9; Midwest Research Inst., B-240268, Nov. 5, 1990, 90-2 CPD para. 364 at 4.

Here, the record reflects that, contrary to Wackenhut’s assertions, the SSA in fact accepted all of the findings of the SEB and engaged in a comparative assessment of Wackenhut’s and Coastal’s proposals, considering the point scores of the offerors, their adjectival ratings, and the specific significant strengths attributed to the proposals by the SEB, and thereby considered the underlying qualitative merits that distinguished Wackenhut’s and Coastal’s proposals. Based on this assessment, the SSA concluded that Wackenhut’s and Coastal’s proposals were “essentially equal” for mission suitability and past performance. While Wackenhut argues that its greater number of significant strengths should have been the dispositive discriminator, rendering the SSA’s finding of equivalence unreasonable, as noted above, what is important is not the number of significant strengths, but rather the qualitative findings underlying these significant strengths. In this regard, the SSA’s determination that the proposals were essentially equal qualitatively was entirely consistent with the SEB’s evaluation results, which, notwithstanding Wackenhut’s greater number of significant strengths, reflected only a slim advantage. Moreover, Wackenhut’s argument that the SSA failed to properly consider its own web portal and continuous improvement plan (the two primary significant strengths of Coastal’s proposal) is misplaced since the SEB did not in fact identify these aspects of Wackenhut’s proposal as offering significant strengths. Thus, consistent with the RFP, the SSA reasonably concluded that price became the determining factor for award and decided that payment of a premium of [DELETED] percent (approximately [DELETED]) for Wackenhut’s proposal was not justified. Under these circumstances, we see no basis to question the agency’s decision to make award to Coastal.  (Wackenhut Services, Inc., B-400240; B-400240.2, September 10, 2008) (pdf)  (NOTE:  See Court of Federal Claims decision below,
Wackenhut Services, Inc., v. U. S. and Coastal International Security, No. 08-660C, December 15, 2008.)

 


In its second supplemental protest, Colson further argued with regard to the evaluation of its proposal under the technical approach factor that the evaluators had incorrectly determined in their evaluation report that its proposal had failed to demonstrate compliance with the bonding, audit, and IT security requirements set forth in section H of the RFP. The protester also argued that the agency had treated the proposals of the two offerors unequally in failing “to fully credit Colson for its voluntary initiative to implement at its expense a transformation initiative to upgrade, automate and modernize the 7(a) FTA system . . . , while giving RSG exceptional credit for a similar system upgrade proposal . . . .” Second Supplemental Protest at 5. 

Regarding the former argument, the contracting officer explained that she reviewed and considered the contents of both offerors’ proposals, as well as the evaluation team’s reports, in arriving at her source selection decision, and thus was aware at the time she made her decision that while Colson had not addressed the bonding and audit requirements in its technical proposal, leading to the finding of weakness by the technical evaluation team, Colson had in fact addressed them in its business proposal. That is, according to the contracting officer, she was aware at the time of her source selection decision that the weaknesses attributed to Colson’s proposal by the technical evaluation team in these two areas were not in fact weaknesses, and did not take them into consideration in her trade-off determination. The contracting officer’s position is supported by the contemporaneous source selection document, in which she makes no mention of Colson’s non-compliance with the bonding and audit requirements in summarizing the proposal’s strengths and weaknesses. See AR Tab 32, Award Determination at 1. 

The protester asserts that even though the contracting officer was aware that Colson had in fact addressed the bonding and audit requirements in its business proposal and took this information into consideration in making her award decision, her decision was nevertheless flawed in that it was based on a defective technical evaluation. Thus, we understand the protester to be arguing that although the contracting officer was aware that two of the weaknesses identified by the technical evaluation team were not in fact weaknesses and did not consider them in making her source selection decision, her determination was nonetheless flawed because it also took into consideration the rating of green under the technical approach factor assigned by the technical evaluators, which rating the evaluators had arrived at taking the two weaknesses into consideration. We disagree with the protester’s reasoning. It is clear from the contracting officer’s source selection decision that she considered the underlying basis for the evaluators’ rating of green, i.e., the strengths and weaknesses in Colson’s technical approach, and not simply the color rating assigned by the evaluators, in making her tradeoff determination; accordingly, we see no reasonable basis for the argument that her trade-off determination was flawed.  (Colson Services Corporation, B-310971; B-310971.2; B-310971.3, March 21, 2008) (pdf)


The best value tradeoff memorandum then adopted essentially verbatim the language in the TET’s final evaluation report regarding Nortel’s staffing levels. The memorandum also characterized Nortel’s overall staffing levels as one of the areas in which Nortel’s proposal offered a significant technical advantage over AT&T’s proposal. Id., Tab 33, Final Technical Evaluation Report, at 20, 23. The memorandum did not address the TET’s finding that Nortel’s continued staffing of managers, trainers, field engineers, and other personnel associated with the TSRP system’s implementation beyond the deployment schedule was an ineffective and uneconomical use of resources.  AT&T argues that both the TET’s final technical evaluation report and the best value tradeoff memorandum are inconsistent with the evaluators’ findings regarding Nortel’s staffing levels. The protester argues that while the evaluators found that Nortel had proposed excessive staffing levels throughout the entire contract period--too many management and operations personnel in the implementation period and too many implementation personnel in the steady state period--the agency ignored these findings and instead, without explanation, characterized Nortel’s staffing levels as an unconditional strength. Protest, Sept. 20, 2007, at 27, 57-58.  The agency does not dispute the TET’s determination that Nortel’s final proposal contained “some overstaffing,” nor deny that the best value tradeoff memorandum considered Nortel’s higher staffing levels to be an unqualified strength. Rather, SSA argues that under the RFP’s best value evaluation scheme here, the agency set forth its preference for a low risk technical solution and thus, could properly conclude that a proposal that reduced risk by exceeding the staffing requirements, even when there is a price premium, will better satisfy the agency’s needs. AR, Oct. 1, 2007, at 13.

While source selection officials may reasonably disagree with the evaluation ratings and results of lower-level evaluators, Verify, Inc., B-244401.2, Jan. 24, 1992, 92-1 CPD para. 107 at 6-8, they are nonetheless bound by the fundamental requirement that their independent judgments be reasonable, consistent with the stated evaluation factors, and adequately documented. AIU N. Am., Inc., B-283743.2, Feb. 16, 2000, 2000 CPD para. 39 at 8-9 (protest sustained because selection official did not document the basis for concluding that proposals were technically equal, after the evaluation panel concluded that one proposal was superior to the other).  As shown above, SSA’s best value tradeoff determination reached conclusions regarding Nortel’s staffing levels that were inconsistent with the underlying evaluation findings. Further, the best value tradeoff memorandum provides no explanation for its conclusion that Nortel’s higher staffing levels represented an unqualified strength of significant benefit to the agency, in contrast to the evaluators’ determination that certain aspects of Nortel’s staffing plan appeared to be an ineffective and uneconomical use of resources. In fact, the best value tradeoff memorandum does not indicate that the contracting officer, who prepared the memorandum, considered or was even aware of the TET’s finding of no apparent benefit in Nortel’s decision to continue implementation staffing levels beyond the deployment schedule. The record also reflects that this conclusion regarding the benefits of Nortel’s staffing levels was material to the agency’s source selection determination. We recognize that an agency may properly conclude that a proposal with higher staffing levels may reduce the offeror’s risk of performance. The fact that a proposal has higher staffing levels does not automatically mean reduced risk, however, and there has been no showing or explanation offered here as to how Nortel’s continuation of its implementation staffing personnel during the managed services years would reduce the risk of performance here. In sum, we cannot find SSA’s evaluation of Nortel’s management approach to be reasonable when the agency reached a conclusion regarding the offeror’s staffing plan that was inconsistent with the underlying evaluation findings and provided no explanation for this inconsistency, and then relied on this conclusion as a material part of its best value tradeoff determination. 
AT&T Corp., B-299542.3; B-299542.4, November 16, 2007) (pdf)


Karrar argues that the agency performed an unreasonable best value determination. According to Karrar, its proposal was substantially superior to BANC3’s under the most important technical factor, while BANC3’s proposal was only slightly superior to Karrar’s under the less important management factor. Karrar concludes that, in selecting BANC3 for award, the agency improperly gave more weight to the management factor than to the more important technical factor. SSOs have broad discretion in determining the manner and extent to which they will make use of the technical and price evaluation results; their judgments are governed only by the tests of rationality and consistency with the stated evaluation criteria. Chemical Demilitarization Assocs., B-277700, Nov. 13, 1997, 98-1 CPD para. 171 at 6. The propriety of a tradeoff depends not on the mere difference in technical scores or ratings, but on the reasonableness of the SSO’s judgment concerning the significance of the difference. Digital Sys. Group, Inc., B-286931, B-286931.2, Mar. 7, 2001, 2001 CPD para. 50 at 7. Here, while the SSO noted that the Aberdeen Proving Ground management subfactor was the most important subfactor, and that BANC3’s proposal was rated good under this subfactor, SSD at 6, there is no basis to conclude that she gave the management factor greater weight than the technical factor. Rather, as discussed above, the SSO reviewed the relative weights of the evaluation factors, the adjectival ratings for each subfactor, and the underlying strengths and weaknesses on which those ratings were based. The SSO’s resulting conclusion that Karrar’s proposal was slightly superior to BANC3’s under the technical factor, but that BANC3’s proposal was superior to Karrar’s under the management factor, formed the non-price side of the tradeoff equation. Balanced against those considerations was Karrar’s $7.9 million (31 percent) higher price. In weighing the two, the SSO concluded that any relative benefit offered by Karrar’s proposal was not sufficient to offset its significantly higher price. Id. There was nothing unreasonable in the agency’s methodology or conclusion.  (Karrar Systems Corporation, B-310661.3; B-310661.4, March 3, 2008) (pdf)


Finally, the protester contends that the selection decision here cannot withstand scrutiny because of certain factual errors in the document that have been acknowledged by the CO. We disagree.  As discussed above, the CO acknowledges that the selection decision erroneously states that the record considered when selecting JVP for award included evaluations by TEB and PEB evaluators. Decl. of CO, Nov. 7, 2007, at 1. As the record shows, the Navy used a TEB or PEB to evaluate offerors’ proposals for the initial award in 2006, but did not use these teams in its reevaluation of proposals in 2007. Instead, all of the 2007 reevaluations were conducted by the SSB. The CO explains that the misstatements in the selection decision were due to Navy personnel who assisted in the drafting of the document using an outdated model document. Id. The CO further states that he relied solely on the SSB reports produced during the recompetition, and that he “did not rely . . . upon any reports other than the SSB [reports] to reach my evaluation and award decisions.” Id.  The CO’s clarification is consistent with the record. Although the selection decision refers to “recommendations reported by the TEB and Price Evaluator,” AR exh. 15, SSD, at 1, the source of the information relied upon in the tradeoff determination clearly comes from the SSB report. First, the technical ratings for JVP reflect the SSB’s reevaluation of that offeror’s proposal that were conducted in February 2007, following the Navy’s decision to take corrective action in response to JVP’s COFC protest. See AR, BCM, Feb. 26, 2007. The record shows that the TEB, in contrast, had no input as to technical evaluations after its final August 2006 report.  Next, the prices cited in the selection decision are clearly those from the offerors’ final proposals, submitted during the 2007 recompetition. Both JVP’s and BOS’s revised prices, and the differences between them, are cited in the selection decision and reflect the 2007 proposals, rather than the initial proposals which were evaluated by the PEB in 2006.  In sum, all of the information cited by or relied upon in the selection decision for the award determination is clearly based on the August 16, 2007, SSB report; conversely, none of the information cited is based on the outdated TEB or PEB evaluations. In our view this essentially cosmetic error--misidentifying the source of the final assessments when the record clearly shows that the assessments were drawn from different sources (which were provided to protester’s counsel during the course of this protest)--does not provide a basis to challenge the reasonableness of the selection decision here.  (Team BOS/Naples--Gemmo S.p.A./DelJen, B-298865.3, December 28, 2007) (pdf)


With respect to UTT’s challenge to the SSA’s tradeoff decision, we think selection officials have considerable discretion in making price/technical tradeoffs. Their judgments in these tradeoffs are by their nature subjective; nevertheless, the exercise of these judgments must be reasonable and must bear a rational relationship to the announced criteria upon which competing offers are to be selected. Award may be made to a firm that submitted a lower-rated, lower-priced proposal where the decision is consistent with the evaluation criteria and the agency reasonably determines that the premium involved in awarding to the offeror with the higher-rated, higher-priced proposal is not justified. Computer Tech. Servs., Inc., B-271435, June 20, 1996, 96-1 CPD ¶ 283 at 5.  Here, the SSA recognized UTT’s slight delivery advantage with respect to the six FOB Destination trailers and concluded that the advantage was not worth the price premium. In making this decision, the SSA appropriately recognized the relative importance of the solicitation’s evaluation factors, in particular that the delivery factor was more important than the price factor. AR, Tab 17, Source Selection Decision at 4. Although UTT believes that its shorter delivery schedule for the six FOB Destination trailers should have resulted in an award to UTT, the protester’s disagreement with the SSA’s business judgment does not show that that judgment is unreasonable. See ACS State Healthcare, LLC et al., B-292981 et al., Jan. 9, 2004, 2004 CPD ¶ 57 at 44. Rather, we find that the decision reflects a price/technical tradeoff assessment that is within the realm of discretion given selection officials on these matters.  (Utility Tool & Trailer, Inc. B-310535, January 3, 2008) (pdf)


The RFP here specifically informed offerors that award would be made under Phase II of the evaluation on a price/technical tradeoff basis, considering the evaluated advantages, disadvantages and risks of each proposal under the delivery, small business participation, and price factors. The RFP also advised that offerors’ proposed delivery schedules for FOB origin and FOB destination would be considered under the delivery evaluation factor. RFP sect. M.2.2. Moreover, the RFP advised that the delivery factor was the most important evaluation factor.  Based on our review of the record--and contrary to the protester’s contention that had it known the importance of the delivery factor in the evaluation of proposals, it would have adjusted its delivery dates accordingly--the record shows that the protester proposed delivery dates that were significantly below the government’s stated objectives. In this regard, the protester’s proposal, on its face, suggests that the protester understood that the agency needed these items sooner than later, and understood the importance of an expedited delivery schedule. The record shows that CKP simply did not propose a delivery schedule that was as favorable as the delivery schedule proposed by Polaris.

CKP also challenges the SSA’s price/technical tradeoff determination that Polaris’ offer of a shorter delivery schedule was worth the $5.5 million price premium associated with Polaris’ higher-priced proposal. In our view, selection officials have considerable discretion in making price/technical decisions. Their judgments in these tradeoffs are by their nature subjective; nevertheless, the exercise of these judgments must be reasonable and must bear a rational relationship to the announced criteria upon which competing offers are to be selected. Award may be made to a firm that submitted a higher-rated, higher-price proposal where the decision is consistent with the evaluation criteria and the agency reasonably determines that the technical superiority of the higher-priced offer outweighs the price difference. ACS State Healthcare, LLC et al., B-292981 et al., Jan. 9, 2004, 2004 CPD para. 57 at 44. Here, the SSA recognized CKP’s price advantage, but concluded that Polaris’ shorter delivery schedule was worth the price premium. In making this decision, the SSA appropriately recognized the relative importance of the solicitation’s evaluation factors, in particular that the delivery factor was more important than the price factor. AR, Tab 17, Source Selection Decision, at 4. The SSA noted that there was an urgent need for these items and indicated that she was willing to pay the price premium for faster deliveries with lower risk. Although CKP does not believe that Polaris’ faster delivery schedule was worth an additional $5.5 million, CKP’s disagreement with the SSA’s business judgment does not show that that judgment is unreasonable. See ACS State Healthcare, LLC et al., supra, at 45. Rather, we find that the decision reflects a price/technical tradeoff assessment that is within the realm of discretion given selection officials on these matters.  (Charles Kendall & Partners, Ltd., B-310093, November 26, 2007) (pdf)


In a best-value procurement such as this, award may be made based upon a higher-priced proposal where the award decision is consistent with the evaluation criteria and the agency reasonably determines that the technical superiority of the higher-priced proposal outweighs the price difference. American Material Handling, B‑297536, Jan. 30, 2006, 2006 CPD para. 28 at 4. The record demonstrates that the agency did undertake a detailed comparison of the View One and Eggs & Bacon proposals, from which it reasonably concluded that View One had a significantly better technical proposal than Eggs & Bacon that was worth the associated price premium and overcame Eggs & Bacon’s price advantage. Agency Report, Tab 10, SSEB Report; Tab 11, Source Selection Decision Document. Specifically, the SSA adopted View One’s proposal’s excellent ratings under all of the evaluation factors. The SSA found that View One possessed extensive experience organizing SOA events and other similar productions, proposed personnel with extensive experience, had an “immense pool of talent that would benefit this production,” had a technical proposal that contained precise information that addressed all aspects of the performance work statement (PWS), and had excellent past performance reference evaluations. Agency Report, Tab 11, Source Selection Decision Document, at 3-4. While Eggs & Bacon also had excellent past performance reference evaluations, its proposal was otherwise rated inferior to View One’s. Eggs & Bacon’s prior experience, rated good, involved similar type of productions but was based largely on trade shows of short duration. Eggs & Bacon proposed experienced personnel, but did not explain exactly how they would be organized for this effort and there were indications that the proposed personnel had not worked together as a group, and thus its proposal was considered only acceptable under this factor. Eggs & Bacon’s proposal was rated marginal under the technical capability factor because there was insufficient detail and clarity as to how and with what equipment the PWS requirements would be met, including such requirements as local editing facilities and certain specialized requirements, such as wide angle resolution, digital imaging and the use of rear projection of at least 1,300 square feet. Id. at 2-3. Our review of the record, including the proposals, provides us with no basis to question the reasonableness of this evaluation, or the decision to select View One’s higher-rated, higher-price proposal over Eggs & Bacon’s lower-rated, lower-priced proposal since this result was permitted by the evaluation scheme, particularly given price’s lesser weight in the evaluation scheme. In fact, Eggs & Bacon does not specifically question the agency’s evaluation of its proposal despite having had access to this part of the record.  (Eggs & Bacon, Inc., B-310066, November 20, 2007) (pdf)


The BVAC’s findings and recommendation were reported to the source selection authority (SSA), who also received oral briefings from the TERP and CAP chairs regarding their respective findings. The SSA noted that the BVAC had found that Earl’s “slight technical advantage” was attributable to “several predominantly minor strengths” in Earl’s proposal that were not found in MTJV’s proposal. In this regard, the SSA stated that the BVAC’s report documented “that all of the offerors met the requirements of the solicitation.” The SSA selected MTJV’s proposal as reflecting the best value to the agency because “the slight technical advantage inherent in [Earl’s proposal]” did not warrant the payment of a [Deleted]-percent premium associated with Earl’s higher evaluated cost. AR, Tab 18, Source Selection Decision, at 1. Award was made to MTJV, and this protest followed. Earl first complains that the Navy did not reasonably assess the relative technical merit of its and MTJV’s proposals. In this regard, Earl argues that the SSA’s conclusion in his selection decision that Earl’s proposal reflected only a “slight technical advantage” over MTJV’s proposal was not consistent with the TERP’s evaluation and the solicitation evaluation criteria.

(Section deleted.)

Here, the RFP provided for a comparative assessment of the offerors’ management capability, resource capabilities, and past performance. See RFP sect. M, at 178. With respect to the resource capabilities factor, offerors were instructed to identify resources committed to the work effort. See RFP sect. L, at 159. The TERP found that Earl provided “the strongest proposal to this solicitation in all areas because of their well thought out plan and their strong current and past performance, especially in the area of Resource Capabilities.” AR, Tab 15, TERP Report, at 2. With respect to Earl’s proposed resource capabilities, the TERP noted as a major proposal strength under the resource capabilities factor that

Team Earl’s proposal clearly demonstrates that they have the facilities and manning to execute the requirements of the FFG7 . . . contract. Team Earl’s available resources are unmatched in the Southeast region. Three team members--Earl Industries and Atlantic Marine have significant facilities located on Mayport Naval Station. They previously provided significant industrial base support for the Navy in Mayport for many years. Combined, they have almost six acres of land and approximately 120,000 square feet of fully certified facilities dedicated to the Navy. These facilities have completed the overwhelming majority of maintenance on over twenty surface ships and an aircraft carrier at Mayport Naval Station. Team Earl has more than adequate resources and manning to conduct multiple FFG7 availabilities concurrently.

Id., encl. 3, Earl Evaluation, at 2.

MTJV’s final revised proposal, on the other hand, was found by the TERP to be only satisfactory under the management capability, resource capabilities, and past performance factors. AR, Tab 15, TERP Report, at 3. As noted above, with respect to the awardee’s resource capabilities, the TERP assessed MTJV’s initial proposal as being “weak” because the firm had not identified adequate resources to perform the contract, and assigned a “marginal” rating to MTJV’s proposal under this factor. In discussions, MTJV admitted that the “overwhelming majority” of MTJV’s current resources were located in Norfolk, Virginia, and not in Mayport, Florida. MTJV promised to augment its existing Mayport facilities and resources with “new local resources as required” and to solicit all local “master ship repair agreement” and “agreement for boat repair” contractors (such as Earl, Atlantic Marine, and QED) to execute various tasks. See AR, Tab 3, MTJV Discussions Reponses, at 11; Tab 15, TERP Report, encl. 4, MTJV Evaluation, at 3. In addition, MTJV promised to provide the Navy with MTJV’s “Shipyard in a Box,” which reflected shipyard resources that MTJV stated could be shipped to Mayport, as required. Id. at 12. With little explanation, the TERP changed MTJV’s rating for the resource capabilities factor from marginal to satisfactory based upon these promises. As noted above, the TERP concluded that Earl had provided a superior proposal to that of MTJV, particularly in the area of resource capabilities, under which the TERP documented a major strength. The BVAC and SSA concluded, however, that Earl’s higher technical ratings were attributable to “several predominantly minor strengths” and that Earl’s technical advantage was “slight.”  Although source selection officials may reasonably disagree with the ratings and recommendations of evaluators, they are nonetheless bound by the fundamental requirement that their independent judgments be reasonable, consistent with the stated evaluation scheme and adequately documented. DynCorp Int’l LLC, B-289863, B-289863.2, May 13, 2002, 2002 CPD para. 83 at 4. Here, the SSA’s conclusion with respect to Earl’s technical advantage is unsupported by any meaningful explanation in either the contemporaneous record or in response to the protest. That is, we have been provided with no explanation supporting the BVAC’s and SSA’s judgment that Earl’s proposal of significant resources in Mayport (which the TERP termed “unmatched in the Southeast region”), as compared to MTJV’s promise to obtain resources as necessary, represented only a slight technical advantage, where the RFP provided for a comparative evaluation of the offerors’ respective resource capabilities. In this regard, there is no explanation for the SSA’s and BVAC’s conclusion that Earl’s superior technical ratings were attributable to minor strengths. Based upon this record, we do not find that the SSA reasonably assessed, in accordance with the solicitation’s evaluation criteria, the relative technical merit associated with Earl’s and MTJV’s proposals in his decision to select MTJV’s proposal on the basis of its lower evaluated costs. Earl’s protest is sustained on this basis.  (Earl Industries, LLC, B-309996; B-309996.4, November 5, 2007) (pdf)


An SSA may select a lower-priced, lower technically rated proposal if he or she decides that the price premium involved in selecting the higher-rated, higher-priced offer is not justified given the acceptable level of technical competence available at the lower cost. The determining element is not the difference in technical merit, per se, but the contracting agency’s judgment concerning the significance of the difference. In making this determination, the SSA has broad discretion, and the extent to which technical merit may be sacrificed for cost, or vice versa, is limited only by the requirement that the tradeoff decision be reasonable in light of the established evaluation and source selection criteria. CVB Co., B-278478.4, Sept. 21, 1998, 98-2 CPD para. 109 at 8. As detailed above, the record shows that the SSA was provided with a comprehensive briefing of the offerors’ proposals, which highlighted for the SSA significant strengths, weaknesses, and discriminators in each proposal. Agency Hearing Book, exhs. C-F, SSA Final Briefing Materials; Tr. at 17, 56. During the briefing, the SSA “probed” behind the briefing materials and asked questions of the expert evaluators and “users.” Tr. at 18-21, 29. In reviewing the materials, the SSA did not just “put blinders on,” but instead “went through [the briefing chart] meticulously to find out if there was value in those attributes above and beyond what’s listed on that chart.” Tr. at 119. From this briefing, the SSA fully understood the relative differences in capability between the EADS and AWI proposals in terms of the mission and did not “trivialize” AWI’s proposal strengths, as asserted by AWI. Tr. at 37-38, 227. In fact, given the detailed, voluminous record in this case and the complexities in this procurement, the SSA reasonably relied on the expertise of the factor leads, LUH “users,” SSEB, and SSAC to advise him of the value of exceeding, or failing to meet, attributes relative to the mission.[50] Although it is true that the SSA did not separately quantify the value for each element, Tr. at 68, 180-81, this was not required and does not mean that the SSA failed to perform any analysis of value as AWI appears to argue. See FAR sect. 15.308 (SSA’s “documentation need not quantify the tradeoffs that led to the decision”). Contrary to AWI’s arguments, the SSA considered essentially all of the areas where AWI’s aircraft capability exceeded EADS’s, including those elements where both offers received the same rating.[51] He considered the offerors’ proposed capabilities under the technical elements “individually” and then “cumulatively” to determine whether AWI’s technical superiority in the “totality” was worth the additional cost. Tr. at 67, 117, 122-23. Although the SSA did not discuss each and every element in the SSDD as AWI would have liked, the record shows that the relative differences between the proposals under each of these elements were thoroughly documented in a well‑reasoned and rational SSEB report, and a detailed summary of these findings was briefed to the SSA and considered in his decision. Agency Hearing Book, exhs. C-F, SSA Final Briefing Materials; Tr. at 17-21, 204. The SSDD highlighted the key discriminators among offerors’ proposals, albeit not all of the elements that AWI would have liked the SSA to agree were discriminators, and illustrates a well‑reasoned and sufficiently detailed selection decision that clearly credits AWI’s strengths and technical superiority, but explains why its proposal was not worth $800 million over EADS’s highly rated $3.9 billion proposal. (MD Helicopters, Inc.; AgustaWestland, Inc., B-298502; B-298502.2; B-298502.3; B-298502.4; B-298502.5, October 23, 2006) (pdf)


We conclude that the agency’s evaluation of offerors’ proposals was unreasonable because of the contradiction between the cost evaluation and technical evaluation. See Honeywell Tech. Solutions, Inc.; Wyle Labs., Inc., B-292354, B-292388, Sept. 2, 2003, 2005 CPD para. 107 at 7-8 (evaluation was unreasonable where agency found that awardee was rated as “appropriate” under technical evaluation, yet also concluded that awardee had proposed insufficient staffing under cost realism analysis). The agency argues that the technical evaluations were reasonable because the evaluators relied upon numerous strengths in concluding that each offeror warranted high technical scores. The technical evaluation and source selection decision, however, conclude that each offeror was “technically superior,” in part because of each offerors’ “more than adequate” proposed staff. The SSD makes no attempt to reconcile the clearly opposing views of the technical evaluation and the cost evaluation. We conclude that the agency’s evaluation that both offerors’ proposals were “technically superior,” with near-perfect technical scores, is unsupported in light of the patent contradiction in the record, as discussed above. (Information Ventures, Inc., B-297276.2; B-297276.3; B-297276.4, March 1, 2006) (pdf)


Based on our review, the source selection official could not reasonably accept Badger’s proposed delivery schedule as the basis for award. As indicated above, the “required” delivery schedule, as specified by the RFP if FAT was waived, was delivery of 3,000 units in 90 days (not the 150 days proposed by Badger) with deliveries at 3,000 units per month until completion (not the 1,800 units per month proposed by Badger). While, as noted above, the RFP indicated that “earlier shipments of smaller quantities, phased out longer may be accepted,” RFP at 2, this provision had no applicability to Badger’s noncompliant delivery proposal, which did not offer “earlier shipments.” Indeed, while Badger’s proposed initial delivery of 3,000 units in 150 days was somewhat better than the RFP-required delivery of 165 days if FAT was not waived--which was the delivery proposed by Novex--Badger’s 1,800-unit monthly rate of delivery for the rest of the contract was significantly less advantageous than the RFP-required 3,000-unit monthly rate, which was proposed by Novex. This means that, except for the initial quantity, Novex’s proposed delivery schedule, which would be completed in 315 days (initial delivery in 165 days and five deliveries at 3,000-unit rate every 30 days), was significantly better than Badger’s, which would not be completed until 390 days (initial delivery in 150 days and eight deliveries at 1,800-unit rate every 30 days). There is no evidence in the award selection documentation that the agency recognized Novex’s superiority with regard to delivery of the bulk of the units, and the source selection official did not reasonably explain why gaining earlier delivery of only 15 days for the initial delivery was worth the additional cost, considering that the rest of Badger’s proposed delivery was significantly less advantageous than Novex’s. Cf. American Material Handling, B‑297536, Jan. 30, 2006, 2006 CPD para. __ at 4 (agency reasonably focused on early initial delivery as award discriminator where the delivery evaluation factor in the solicitation expressly stated that such credit would be given). While the award selection documentation indicates that up to 75 days would be needed to obtain and approve FAT before production could begin, Novex’s proposal committed to supply the total initial quantity in 165 days from date of award, including FAT, which is only 15 days longer than the 150 days proposed for delivery by Badger. The agency did not indicate that Novex’s proposed delivery schedule was unrealistic. Instead, in a supplemental agency submission made after the attorney from our Office, in response to an agency request for alternate dispute resolution, advised the agency of the reasons (set forth in this decision) that our Office believed the award selection was unreasonable, the agency for the first time argued that the source selection official was actually considering the risk that Novex might fail its FAT in determining that Badger offered superior delivery because FAT had been waived for it and therefore its offer represented the best value. However, the contemporaneous documentation does not mention that any such risk was considered. We give little weight to this argument because it was made in the heat of litigation. See Boeing Sikorsky Aircraft Support, B-277263.2, B‑277263.3, Sept. 29, 1997, 97‑2 CPD para. 91 at 15. (Novex Enterprises, B-297660; B-297660.2, March 6, 2006) (pdf)


TruLogic first argues that the SSA failed to act with “impartiality.”[12] It asserts that the SSA unreasonably ignored the SSET majority view, instead relying on the minority view, and “manipulated” the evaluation to support his selection of CTI for award. TruLogic further contends that the SSA either ignored or only mentioned in a cursory way TruLogic’s proposal strengths, while dedicating several paragraphs of the SSD to emphasize CTI’s proposal strengths. The record, however, shows a well-documented, reasoned evaluation and award decision without evidence of bias. Despite TruLogic’s insistence that the SSA should have adopted the majority view, source selection officials are not bound by the evaluation judgments of lower level evaluators; they may come to their own reasonable evaluation conclusions. MW-All Star Joint Venture, B-291170.4, Aug. 4, 2003, 2004 CPD para. 98 at 3 n.3. Here, we find that the SSA reasonably concluded that the minority view was a more accurate assessment of CTI’s proposal. The record confirms that CTI’s EN responses and final proposal revision adequately address the functionality requirements at issue, and supports the minority SSET report and the SSA’s conclusion that CTI’s proposal met the functionality requirements of the RFP.[14] The SSA did not “manipulate” the evaluation, as alleged, but documented in detail his disagreement with the majority of the SSET. To the extent that TruLogic complains that the SSD contains more paragraphs discussing CTI’s proposal than TruLogic’s, the agency explains that this was because the SSA was explaining his disagreement with the majority of the SSET, not because the SSA was ignoring the benefits of TruLogic’s approach or over-emphasizing CTI’s proposal strengths. In sum, our review of the record reveals that the SSD fairly considered the benefits and drawbacks of both TruLogic’s and CTI’s proposal features, and reasonably concluded that CTI’s proposal provided the better value. (TruLogic, Inc., B-297252.3, January 30, 2006) (pdf)


AMH complains that TACOM unreasonably viewed JLG’s offer of a shorter delivery schedule for the minimum quantity to be a discriminator in the SSA’s price/technical tradeoff award selection decision. In AMH’s view, the RFP only provided that offerors’ proposals would be evaluated to determine whether the proposed schedule was credible and would “beat or meet the 180 day delivery objective.” AMH argues that, because both it and JLG offered an accelerated delivery schedule, the two firms’ proposals should have received the same evaluation rating for this factor. We disagree with AMH’s view that the solicitation did not allow TACOM to consider a shorter, credible delivery schedule to be a proposal advantage. Here, the RFP specifically informed offerors that award would be made on a price/technical tradeoff basis, considering the evaluated advantages, disadvantages and risks of each proposal under the delivery, small business participation, and price factors, and the delivery factor specifically stated that the offeror’s proposed “single date for completion of delivery of the minimum guaranteed quantity” would be considered. RFP at 68. We have found that where, as here, a solicitation provides for award on a best-value basis, an agency may reasonably assess as a proposal advantage the manner in which a proposal exceeds the minimum requirements of the solicitation. See, e.g., Preferred Sys. Solutions, B-291750, Feb. 24, 2003, 2003 CPD para. 56 at 3-4; F2M-WSCI, B‑278281, Jan. 14, 1998, 98-1 CPD para. 16 at 7-8. AMH also challenges the SSA’s price/technical tradeoff determination that JLG’s offer of a 29-day shorter delivery schedule was worth the $286,873 price premium associated with JLG’s higher-priced proposal. In this regard, AMH argues that JLG’s accelerated delivery schedule was for only the minimum guaranteed quantity and that the agency has not explained why an earlier delivery schedule for the minimum quantity “is better for the Iraq mission.” Protester’s Comments at 2. Selection officials have considerable discretion in making price/technical tradeoff decisions. Their judgments in these tradeoffs are by their nature subjective; nevertheless, the exercise of these judgments must be reasonable and must bear a rational relationship to the announced criteria upon which competing offers are to be selected. Award may be made to a firm that submitted a higher-rated, higher‑priced proposal where the decision is consistent with the evaluation criteria and the agency reasonably determines that the technical superiority of the higher‑priced offer outweighs the price difference. ACS State Healthcare, LLC et al., B-292981 et al., Jan. 9, 2004, 2004 CPD para. 57 at 44. Here, the SSA recognized AMH’s price advantage, but concluded that JLG’s shorter delivery schedule was worth the price premium. In making this decision, the SSA appropiately recognized the relative importance of the solicitation’s evalutation factors, in particular that the delivery factor (that focused on the guaranteed minimum quantity) was more important than the price factor. AR, Tab 17, Source Selection Decision, at 2. The SSA found that JLG’s shorter delivery schedule for the guaranteed minimum quantity provided a real benefit to the government, given that “early delivery of this tactical forklift is critical to provide Iraqi troops with the capability to off-load supplies from containers.” Id. at 5. Although AMH does not believe that the 29-day shorter delivery schedule was worth the additional $286,873, AMH’s disagreement with the SSA’s business judgment does not show that that judgment is unreasonable. See ACS State Healthcare, LLC et al., supra, at 45. Rather, we find that the decision reflects a reasonable price/technical tradeoff assessment. (American Material Handling, Inc., B-297536, January 30, 2006) (pdf)


We conclude that, on this record, YORK was competitively prejudiced by the errors. Of particular significance, the record shows that YORK’s proposal was scored higher than Obsi1’s proposal on the most important evaluation factor, technical approach. The SSO’s reliance on total scores (which themselves did not reflect the RFP’s relative weighting of the factors) indicates that her selection decision did not consider the significance of YORK’s apparent technical advantage under the most important technical evaluation factor. (YORK Building Services, Inc., B-296948.2; B-296948.3; B-296948.4, November 3, 2005) (pdf)


The agency unfairly and unreasonably evaluated the proposals on the feature of field control of inventory. Both offerors proposed a capability that would permit field locations to have full control of all types of inventory. Agency Report, Tab 26, ReserveAmerica’s Final Revised Proposal, at 915-17; Tab 39, Spherix’s Final Revised Proposal, at 1809‑12, 1969-70. The agency stated that Spherix’s proposed inventory management capability focused on campground inventory and did not address tours and ticketing. Agency Report, Tab 16, Source Selection Decision, at 474. That statement is inconsistent with the terms of Spherix’s proposal, which states that its inventory management capability applies to both recreation facilities and recreation activities. Agency Report, Tab 39, Spherix’s Final Revised Proposal, at 1809. The agency also stated that Spherix did not quantify how much control would be granted to field sites. Agency Report, Tab 16, Source Selection Decision, at 474. This also is inconsistent with the terms of Spherix’s proposal, which stated [DELETED].[5] Agency Report, Tab 39, Spherix’s Final Revised Proposal, at 1969-70. These misstatements formed the basis for inventory control being one of the discriminators in the SSA’s tradeoff analysis. Agency Report, Tab 16, Source Selection Decision, at 474.  (Spherix, Inc., October 20, 2005, B-294572.3; B-294572.4) (pdf)


In reviewing a protest against an agency’s evaluation of proposals and award, including tradeoff determinations, we examine the record to determine whether the agency’s judgment was reasonable and consistent with the solicitation’s evaluation criteria and applicable statutes and regulations. Ostrom Painting & Sandblasting, Inc., B-285244, July 18, 2000, 2000 CPD para. 132 at 4. An agency may properly select a lower-rated, lower-priced proposal where it reasonably concludes that the price premium involved in selecting a higher-rated proposal is not justified in light of the acceptable level of technical competence available at a lower price. Bella Vista Landscaping, Inc., B-291310, Dec. 16, 2002, 2002 CPD para. 217 at 4. In its comments on the agency report, which included the full evaluation record and source selection decision documentation, the protester does not persuasively refute the noted strengths in the evaluation record of the awardee’s past performance, the reasonableness of the SSA’s consideration of the two past performance proposals as being essentially equal, or the SSA’s concerns about the protester’s limited joint venture and government contract experience (and the limited supporting commentary for high past performance ratings). Rather, the firm generally alleges that because the RFP provided that past performance is the most important factor for award, and because it received a higher past performance adjectival rating, it should have been selected for award. We disagree. A protester’s mere disagreement with the agency’s determinations as to the relative merit of competing proposals and its judgment as to which proposal offers the best value to the agency, does not establish that the evaluation or source selection was unreasonable. Weber Cafeteria Servs., Inc., B-290085.2, June 17, 2002, 2002 CPD para. 99 at 4. Our review of the record here supports the reasonableness of the agency’s comparative review of the merits of the proposals, its price/past performance tradeoff, and the award decision. It is well-established that adjectival ratings are merely guides to intelligent decisionmaking; they do not mandate automatic selection of a particular proposal. See Calspan Corp., B-255268, Feb. 22, 1994, 94-1 CPD para. 136 at 10. Rather, selection officials must decide whether the different ratings show technical superiority and what that difference may mean in terms of contract performance in determining whether a price premium associated with that superiority is warranted. See Computer Tech. Servs., Inc., B-271435, June 20, 1996, 96-1 CPD para. 283. Here, as discussed above, the SSA performed a comprehensive integrated assessment of the proposals and concluded that in terms of performance risk, based on a comparative review of the offerors’ past performance, the proposals were essentially equal, making price the determinative factor for award. Neither the protester, nor our review of the record, provides a basis to question the reasonableness of that determination. As set forth above, while the protester’s past performance had noted strengths, the SSA also noted its related weaknesses and the agency’s concerns about the offeror’s limited relevant experience as a joint venture and government contractor. Conversely, while the awardee’s past performance was rated as very good, rather than exceptional, the SSA noted the strengths of the firm’s past performance and its direct relevance to the current SABER contract. Moreover, the protester provides no basis to challenge the reasonableness of the SSA’s determination that, given NASCENT’s lower price, and the acceptable level of technical competence and the high probability of successful performance by this experienced SABER contractor, any technical superiority that might be associated with the slightly higher adjectival rating received by the protester does not justify the payment of the price premium associated with an award to that offeror. Therefore, whether the SSA viewed the proposals as essentially technically equal, making price the proper basis of selection, or concluded that the adjectival ratings of the proposals did not warrant paying the price premium associated with the Brewbaker White Sands proposal, we find nothing improper in the SSA’s selection decision.Id. (Brewbaker White Sands JV, B-295582.4,October 5, 2005) (pdf)


The protester argues that the source selection authority’s price/technical tradeoff determination was [deleted] because it took into account only the advantages in Coastal’s proposal that resulted in quantifiable cost savings to the government. In a best-value procurement, it is the function of the source selection authority to perform a price/non-price factor(s) tradeoff, that is, to determine whether one proposal’s superiority under the non-price factor or factors is worth a higher price. A.G. Cullen Constr., Inc., B-284049.2, Feb. 22, 2000, 2000 CPD para. 45 at 4. We will review the selection decision to ensure that it was reasonable and consistent with the evaluation scheme set forth in the solicitation. Id. Based on our review of the record here, we agree with the protester that the SSA’s tradeoff analysis was unreasonable. The SSA concluded that Coastal’s proposal was not worth the cost differential of approximately [deleted] that separated it from MTCE’s proposal based on information furnished to her by the program manager regarding the [deleted] identified in Coastal’s technical proposal. The SSA mischaracterizes the information furnished to her by the program manager, however. Contrary to the SSA’s statement in the Negotiation Summary Memorandum at 14, quoted above, the program manager’s analysis did not indicate that only some of the [deleted] identified by the technical evaluators “would be worth an additional cost to the government”; instead, he identified those [deleted] that would result in a cost benefit (i.e., cost savings) to the government. The distinction is far more than a semantic one, since an advantage in an offeror’s technical proposal need not result in cost savings to the government to be of value to the government. In our view, the SSA had an obligation to consider all of the advantages of Coastal’s proposal in her tradeoff determination, and not simply those that would effectively reduce the cost of Coastal’s proposal. That is, the SSA had an obligation to consider whether the [deleted] advantages that, according to the Program Manager, would not result in cost savings to the government nonetheless furnished sufficient additional value to the government to make Coastal’s proposal a better value overall than MTCE’s, despite [deleted]. Because the SSA failed to perform such an analysis, we think that her determination lacked a reasonable basis. The SSA’s analysis was further unreasonable in that it failed to take into account the difference in the ratings of the two proposals with regard to performance risk, instead, as noted above, focusing exclusively on the [deleted]. Where a price/technical tradeoff is made, the source selection decision must be documented, and the documentation must include the rationale for any tradeoffs made. FAR sect. 15.308; Blue Rock Structures, Inc., B-293134, Feb. 6, 2004, 2004 CPD para. 63 at 5. A tradeoff determination in favor of a lower-rated, lower-priced proposal that fails to acknowledge significant strengths of the higher-rated proposal and furnish an explanation as to why they are not worth a price premium is not, in our view, a sufficiently documented tradeoff determination. See Blue Rock Structures, Inc., supra, at 6. (Coastal Maritime Stevedoring, LLC, B-296627, September 22, 2005) (pdf)


With respect to the senior IQ personnel that the project officers identified as lacking in experience, AR, Tab 72, at 2-3, the selection official expressed concerns that the project officers appeared to be judging IQ's proposed personnel against requirements not found in the RFP. In addition, and as indicated above, the selection official noted that the experience of key personnel had been reviewed and assessed by the evaluation panel, and that the proposals of both URC and IQ had received fairly high, and essentially equal ratings in this area. In our view, there was nothing unreasonable in the selection official's decision to look to the evaluators' assessment in this area as the more reliable indicator of whether the personnel proposed by URC and IQ had sufficient backgrounds to meet the requirements of the solicitation. Moreover, the HHS regulations lend support to the selection official's judgment about which of the two panels to look to for an informed assessment about the qualifications of proposed personnel. Specifically, our review of the regulations leads us to conclude that they do not anticipate that project officers will undertake the job of reviewing the backgrounds of proposed key personnel.  Finally, we recognize that URC apparently views the project officers' memorandum in this record as an attempt by agency managers most familiar with the requirements of this effort to ensure that this evaluation fairly assessed the capabilities of these two offerors to perform this work. On the other hand, this memorandum's unusual timing, its unusual scope, its unusual level of detail, and the unusually high level of the agency officials involved in ensuring its consideration, lend support to other views. Specifically, evidence in this record supports a view that this memorandum represents an effort by agency officials resistant to installing a new contractor in the place of a long-time incumbent, with a good performance history. Tr. at 20-21, 23-27, 29, 34-37, 59-60, 100, 101. Looking at the context of this procurement and the facts in the record, we conclude that the selection official dealt reasonably with the recommendations of the HHS project officers. (University Research Company, LLC, B-294358.6; B-294358.7, April 20, 2005) (pdf)


At the end of the past performance evaluation memorandum, the contracting officer prepared a three-page narrative summary of her evaluation findings. Although the contracting officer found that both Dismas's and Keeton's past performance warranted a good overall adjectival rating, the summary identified only the firms' respective average CEF point scores (4.24 for Dismas and 4.03 for Keeton (out of a possible 5 points)), as well as the adjectival ratings on the BOP contracts considered in the evaluation. Also in the summary, the contracting officer identified numerous strengths but no weaknesses for Dismas, whereas for Keeton the contracting officer identified a few strengths and many weaknesses. Agency Report, Tab 17, Contracting Officer's Past Performance Evaluation Memorandum, at 29-31. The contracting officer testified that although she relied upon the individual adjectival ratings for each contract derived from the firms' CEFs to determine that Dismas had better overall past performance, she prepared the narrative summary of the firms' strengths and weaknesses to justify the adjectival past performance ratings. Tr. at 25354. In this regard, she testified that she only identified strengths for Dismas and few strengths and almost only weaknesses for Keeton because she believed that this would point out the areas in which Dismas was superior. Tr. at 255. The SSA testified that he relied upon this summary of the firms' past performance and did not independently assess the firms' past performance in making his source selection decision. Tr.at3536. In this regard, the SSA further testified that he did not know whether this summary accurately reflected the contracting officer's past performance evaluation. Tr. at 54. While the contracting officer testified that the past performance evaluation summary she prepared was drafted to highlight Dismas's superiority in past performance, this explanation was not provided to the SSA or SSEP chairperson; instead, the summary was presented and appeared as a significant part of the basis for the source selection without the SSA being apprised of, and considering, that there were actually numerous weaknesses in Dismas's past performance and numerous strengths in Keeton's past performance. Thus, we conclude that the source selection decision was based upon a misapprehension of the offerors' past performance evaluation and therefore the decision lacks a reasonable basis. See Ashland Sales and Serv. Co. , supra , at 8-10. (Keeton Corrections, Inc., B-293348, March 4, 2005) (pdf)


Moreover, the propriety of a cost/technical tradeoff turns not on the difference in technical score, per se , but on whether the contracting agency's judgment concerning the significance of that difference was reasonable in light of the solicitation's evaluation scheme. Where cost is secondary to technical considerations under a solicitation's evaluation scheme, as here, the selection of a lower-priced proposal over a proposal with a higher technical rating requires an adequate justification, i.e., one showing the agency reasonably concluded that notwithstanding the point or adjectival differential between the two proposals, they were essentially equal in technical merit, or that the differential in the evaluation ratings between the proposals was not worth the cost premium associated with selection of the higher technically rated proposal. Where there is inadequate supporting rationale in the record for a decision to select a lower-priced proposal with a lower technical ranking, notwithstanding a solicitation's emphasis on technical factors, we cannot conclude that the agency had a reasonable basis for its decision. Preferred Sys. Solutions, Inc. , supra , at 7; MCR Fed., Inc. , B-280969, Dec.14, 1998, 991 CPD 8 at 5. As noted above, the rationale stated in the source selection decision for selecting McNeil's proposal as the best value was the SSA's conclusion that all of the competitive range proposals were technically substantially equal. In making this decision, the SSA discussed certain aspects of the proposals, in particular the evaluation of SOS's proposal under the personnel and security plan subfactors and the past performance factor, and the evaluation of McNeil's proposal under the personnel subfactor. Although the SSA's analysis documents the rationale for adjusting the adjectival scores under these subfactors and factor, she does not discuss or acknowledge SOS's evaluated advantage under the other two technical evaluation factors, quality control plan and transition plan, where SOS's proposal was assigned "outstanding" ratings and McNeil's proposal received only "highly satisfactory" ratings. The record shows that the TEP provided detailed reasons for the proposals' respective ratings under these subfactors. Agency Report, Tab 8, Final Consensus Evaluation, McNeil's Evaluation, at10, 15; Final Consensus Evaluation, SOS's Evaluation, at 10, 15; Initial Consensus Evaluation, McNeil's Evaluation, at 8, 12; Initial Consensus Evaluation, SOS's Evaluation at 8, 12. Because of SOS's proposal's documented superiority under these factors and the SSA's failure to consider this evaluated superiority in her source selection decision, the SSA's statement that the proposals were technically substantially equal is not reasonably supported by the contemporaneous documentation. At the hearing, the SSA also essentially repudiated her finding that McNeil's and SOS's proposals were substantially technically equal, and testified that she considered both the proposals to be technically acceptable, rather than technically equal, and that in reviewing the two proposals "[she] did not see anything that was basically that superior to warrant paying [DELETED] extra in costs." Tr. at 63-64. In our view, the inadequately supported source selection decision and testimony of the SSA suggest that the agency may have improperly converted the source selection to one based upon technical acceptability and low price, instead of one that emphasized relative technical superiority, as was contemplated by the RFP's evaluation scheme here. An agency does not have the discretion to announce in the solicitation that it will use one evaluation plan, and then follow another; once offerors are informed of the criteria against which their proposals will be evaluated, the agency must adhere to those criteria in evaluating proposals and making its award decision, or inform all offerors of any significant changes made in the evaluation scheme. See Preferred Sys. Solutions, Inc. , supra , at 10. (SOS Interpreting, LTD., B-293026; B-293026.2; B-293026.3, January 20, 2004) (pdf)


We find the agency's assessment of ReserveAmerica's offer of dedicated staff problematic in a number of regards. First, the SSA apparently believed that Spherix did not propose the "dedicated" support that ReserveAmerica proposed. In this regard, in the hearing conducted by our Office in this matter, the SSA testified that he understood from the SSET's briefing that Spherix's proposal had not committed to provide the level of effort needed to provide the call center services. [13] Tr. at97100. Both Spherix and ReserveAmerica addressed staffing in their proposals. ReserveAmerica's proposal identified "[DELETED] dedicated to serving the needs of the NRRS" that would include [DELETED] agencyspecific program managers and [DELETED] contact center agents. AR, Tab 92, ReserveAmerica Final Proposal Revision, at 1491, 1500, 1526, 1541-42. As noted above, this offer was assessed as a proposal strength for ReserveAmerica. Spherix's proposal stated that Spherix would deliver [DELETED] call center seats and "a dedicated staff of Reservation Specialists and Customer Service Representatives" with experienced management, and specifically proposed key personnel that included [DELETED] dedicated to each major stakeholder Agency." AR, Tab 112, Spherix Final Proposal Revision, at 2522, 2583. This aspect of Spherix's proposal was not discussed in the SSET final consensus evaluation. See AR, Supplemental Documents, Final Consensus Evaluation Worksheets for Spherix, 2995-96, 3003-04. From our review of the record, we find no reasonable support for the agency's conclusion that ReserveAmerica's promise of dedicated staff represented a significant proposal advantage over Spherix's similar offer. As noted above, both firms indicated in their proposals that dedicated staff would be provided. Although it is true that Spherix's proposal did not specifically identify the number of dedicated staff, as ReserveAmerica's proposal did, this specific information was neither requested by the RFP nor sought by the agency during discussions. Moreover, the record does not show that the SSA otherwise fairly considered Spherix's offer of dedicated staff. The SSA stated that he had not reviewed Spherix's proposal and the SSET's briefing left him with the understanding that Spherix's proposal had not committed to provide the level of effort needed to provide the call center services. Tr. at 97-100. This was neither a reasonable evaluation of Spherix's proposal, nor a reasonable assessment of the difference between ReserveAmerica's and Spherix's proposals. (Spherix, Inc., B-294572; B-294572.2, December 1, 2004) (pdf)


FAR 15.308 requires documentation of source selection decisions, and recognizes that while the selection official may rely on reports and analyses prepared by others, the ultimate decision reflects the selection official's independent judgment. The independence granted selection officials, however, does not equate to a grant of authority to ignore, without explanation, those who advise them on selection decisions. See , e.g. , DynCorp Intl LLC , B-289863, B-289863.2, May 13, 2002, 2002 CPD 83 at 6-7 (protest sustained where selection official failed to document the basis for rejecting the evaluation panels conclusion that it was not possible to determine whether the proposal included all required costs); AIU North America, Inc. , supra , at 8-9 (protest sustained, in part, because selection official did not document the basis for concluding that proposals were technically equal, after the evaluation panel concluded that one proposal was superior to the other). In response to the agency's arguments about the requirements in its regulations, we recognize that there is no express requirement in the HHSAR for selection officials to document their reasons for rejecting the evaluation input received from project officers. On the other hand, our review of the HHSAR requirements reveals that the agency has anticipated the possibility that project officers will provide significant input, especially in the area of evaluated costs. See 48 C.F.R. 315.305(a)(1). While the permissive language of the regulation does not require this input in every procurement, there is no dispute that it was received here, it was detailed, and it was mischaracterized by the CO in the Source Selection Determination document. Given that HHS has elected to supplement the FAR with a process for receiving input from agency project officers, and given the detailed nature of the input provided in this procurement and the importance all participants attached to it, we think the CO here was required to document the existence of these different views, and state her rational basis for either accepting or rejecting those views. Even leaving aside a Source Selection Determination document that misstates the input of agency officials with a prescribed role in reviewing proposals, there is still no statement in the record from the CO regarding her rationale for rejecting the input of the project officers. Without such a statement, the areas where the project officers disagree with the technical evaluation panel have been elevated to our Office for review, without having been first resolved by the agency. (University Research Company, LLC, B-294358; B-294358.2; B-294358.3; B-294358.4; B-294358.5, October 28, 2004) (pdf)


As an initial matter, we note that many of the allegations share a common challenge to the specific ratings that the agency assigned a given proposal. These allegations identify various terms of a given proposal and assert that the corresponding rating assigned by the agency should have been higher or lower, as the case may be. However, it is well established that ratings, be they numerical or adjectival, are merely guides for intelligent decision-making in the procurement process. Citywide Managing Servs. of Port Washington, Inc. , B281287.12, B281287.13, Nov. 15, 2000, 2001 CPD 6 at11. Where a source selection decision reasonably considers the underlying bases for the ratings, including advantages and disadvantages associated with the specific content of competing proposals, in a manner that is fair and equitable, and consistent with the terms of the solicitation, the protesters' disagreement over the actual adjectival ratings is essentially inconsequential, in that it does not affect the reasonableness of the judgments made in the source selection decision. See id. ; National Steel and Shipbuilding Co. , B281142, B281142.2, Jan. 4, 1999, 99-2 CPD 95 at 15. As the remainder of our discussion of the evaluation shows, rather than resting upon a superficial comparison of ratings, the agency, as indicated by the source selection decision, reasonably considered the specific content of the proposals in weighing the relative merits of competing proposals and determining which proposal represented the best value. (Mechanical Equipment Company, Inc.; Highland Engineering, Inc.; Etnyre International, Ltd.; Kara Aerospace, Inc., B-292789.2; B-292789.3; B-292789.4; B-292789.5; B-292789.6; B-292789.7, December 15, 2003) (pdf)


In any case, even where price is the least important evaluation factor, an agency may properly select a lower-priced, lower-rated proposal if it decides that the price premium involved in selecting a higher-rated, higher-priced proposal is not justified. NAPA Supply of Grand Forks, Inc., B-280996.2, May 13, 1999, 99-1 CPD ¶ 94 at 5. Based on our review of the record, we find that the Air Force reasonably concluded that the [REDACTED] percent price differential in price did not justify award to SSL. As noted above, the agency found the differences between the two firms’ past performance ratings to be “marginal.” The grounds for that finding were, in our view, reasonable: ATS’s lower past performance ratings were due to limited, rather than negative, past performance information; favorable customer ratings suggested to the agency that ATS could satisfactorily perform; and SSL had only limited performance information available concerning its performance as a subcontractor on semi-relevant contracts, which caused the agency to have “some doubt” as to SSL’s ability to successfully perform as a prime contractor on this contract. Although SSL disagrees with the agency’s judgment that the past performance distinctions were “marginal,” it has not shown this judgment to be unreasonable. UNICCO Gov’t Servs., Inc., B‑277658, Nov. 7, 1997, 97-2 CPD ¶ 134 at 7. (Specific Systems, Ltd., B-292087.3, February 20, 2004) (pdf)


In a negotiated procurement, where the solicitation does not provide for award on the basis of the lowest cost, technically acceptable proposal, an agency has the discretion to make an award to an offeror with a higher technical rating and a higher cost where it reasonably determines that the cost premium is justified and the result is consistent with the evaluation criteria. ACC Constr. Co., Inc., B‑288934, Nov. 21, 2001, 2001 CPD ¶ 190 at 5-6. Here, the RFP stated that the mission capability, proposal risk, and past performance evaluation factors, when combined, were significantly more important than the cost evaluation factor in determining the proposal representing the best value to the government. The RFP also stated that the agency reserved the right to award to an offeror that submitted a higher technically rated, higher cost proposal. The record shows that in making his best value determination, the SSA was aware that Raytheon’s evaluated cost was higher (by approximately 11 percent) than Northrop’s evaluated cost and that both Raytheon and Northrop received the same significant confidence ratings for past performance (thereby neutralizing past performance in terms of the best value determination). However, and as more completely set forth above, the SSA concluded that Raytheon’s proposed technical approach reflected a more open architecture than Northrop’s proposed technical approach in terms of accommodating modifications, growth, and system upgrades in a plug-and-play fashion. The SSA believed that Raytheon’s exceptional, low risk architecture and design approach would “best enable [his] customer to streamline information flow so that operational decisions are made logically and rapidly[,] providing the best value to the Government, and it is well worth the premium.” AR, Vol. 131, Tab 16C, SSD, supra, at 10. In this respect, at the hearing, the SSA testified that by awarding to Raytheon, the agency “was going to get an architecture that the warfighter could fight with, that streamlines information flow so the decision is made logically, quickly and rapidly and, based on [his] lessons [learned] from [Operation Iraqi Freedom], it was an important component. This is why [he] chose [Raytheon].” Tr. at 382. The SSA continued by stating that “the architectural approach that Raytheon was offering was an opportunity to ensure the maximum combat capability.” Id. at 394. While Northrop disagrees with the SSA’s decision to pay a premium to Raytheon for its technically superior approach, Northrop has failed to show that the SSA’s best value determination was unreasonable or otherwise not in accordance with the terms of the RFP. (Northrop Grumman Systems Corporation, B-293036.5; B-293036.6; B-293036.7, June 4, 2004) (pdf)


In our view, the SSA has failed to furnish an adequate rationale for his tradeoff determination here, and thus we are unable to conclude that the determination was reasonable. As the excerpt from his selection decision quoted above shows, the SSA simply concludes, without any mention of the technical advantages of Blue Rock’s higher-rated proposal or a finding that despite its higher rating, Blue Rock’s proposal was essentially equal to those of Virtexco and C Construction in technical merit, that the latter two proposals represent better value than the protester’s because they are significantly lower in price. A tradeoff analysis that fails to furnish any explanation as to why a higher-rated proposal does not in fact offer technical advantages or why those technical advantages are not worth a price premium does not satisfy the requirement for a documented tradeoff rationale, particularly where, as here, price is secondary to technical considerations under the RFP’s evaluation scheme. See Preferred Sys. Solutions, Inc., B-292322 et al., Aug. 25, 2003, 2003 CPD ¶ 166. In addition to failing to furnish an adequate rationale for his selection of Virtexco and C Construction for award, the SSA failed to furnish an adequate rationale for his selection of Shaw Beneco. The SSA justified his selection of Shaw on the grounds that it had “a technical rating of Good+ and low competitive pricing.” SSA Memorandum for the File, Sept. 25, 2003, at 1. Shaw’s technical rating of Good Plus resulted from the SSB’s technical score adjustment scheme, however; i.e., Shaw’s original technical rating (of Good) was raised one step as credit for its low price. Accordingly, the SSA in essence gave Shaw double credit for its low price by considering both its adjusted rating and its price. Since Shaw’s technical rating, as unadjusted, was lower than the technical ratings of both Blue Rock and Sauer, and its price was higher than the prices of Virtexco and C Construction, we think that it was unreasonable for him to select Shaw for award without comparing its combination of technical merit and price to those of the other four offerors. (Blue Rock Structures, Inc., B-293134, February 6, 2004) (pdf)


In evaluating the revised CIS proposal, four of the five evaluators again prepared only cursory narrative materials. In terms of scoring, three of these four evaluators raised CIS’s score by [deleted] points; the agency’s final consensus technical evaluation report states that two of the three evaluators increased their scores based on their conclusion that the CIS proposal now met the personnel experience requirements, and that the third increased his score based on CIS’s providing “additional information” in its revised proposal. AR, exh. 7, at 5-6. Among these four evaluators, two assigned a final overall technical score of [deleted] points and two assigned a score of [deleted] points. Id. at 7. The fifth evaluator scored CIS’s revised proposal dramatically differently, reducing CIS’s score from [deleted] total points initially to [deleted] points on reevaluation. Unlike the other four evaluators, he prepared extensive narrative materials during his rescoring of the proposal, AR, exh. 4, at 25-26, and his unedited comments were ultimately incorporated into the final consensus technical evaluation report, along with a summary of the other evaluators’ limited comments. AR, exh. 7, at 5. The agency’s source selection decision document, AR, exh. 18, does not reflect any critical or independent analysis or evaluation of the proposals by the source selection official (SSO); instead, it relies entirely upon the numeric scores for purposes of the agency’s source selection decision. This being the case, the comments of the fifth evaluator regarding deficiencies in CIS’s proposal represent the sole support in the evaluation record for the relatively low ranking of CIS’s revised proposal. This is problematic for the agency because we find that the conclusions expressed by the fifth evaluator are unreasonable. (Computer Information Specialist, Inc., B-293049; B-293049.2, January 23, 2004)  (pdf)


As indicated, the agency also considered the underlying basis for the scores. While LSA’s proposal had 36 identified strengths and BGS’s 26, the TEP identified four risks posed by LSA’s proposal and only one risk and two weaknesses posed by BGS’s. The TEP considered these different strengths, weaknesses, and risks in making its best value recommendation, and concluded that, as the scores had indicated, the proposals were technically equivalent. SSRR at 3-4, 9-10. Having made this determination, and after finding no technical differences that would justify the higher costs associated with other award scenarios, the TEP concluded that an award under the lowest-priced of the technically equivalent scenarios--BGS alone (scenario 12)--represented the best value. While LSA asserts that its proposal offered real benefits to the agency over BGS’s at a minimal price premium, it does not identify any of those alleged benefits but, rather, points only to the TEP’s description of its proposal as “innovative,” “excellent,” “outstanding,” and “comprehensive.” LSA Comments at 10. Having failed to identify any particular benefit for which it did not receive credit or that would call into question the agency’s determination of technical equivalence, LSA’s assertions amount to mere disagreement with the agency’s conclusions, which is not sufficient to establish that the best value determination was unreasonable. UNICCO Gov’t Servs., Inc., B‑277658, Nov. 7, 1997, 97-2 CPD ¶ 134 at 7.  (Language Service Associates, Inc., B-293041, December 22, 2003)  (pdf)


More specifically, in making her revised past performance/price tradeoff, the record shows that the source selection authority ignored, contrary to statute and regulation, as cited above, Beautify’s significantly lower price vis-à-vis Southway’s higher past performance rating, as well as the fact that Beautify, which received a very good/significant confidence rating, submitted the lowest price among all competitors. There is nothing in the source selection document that suggests that the source selection authority believed that Beautify’s significantly lower price in this fixed‑price, commercial item acquisition reflected any lack of understanding by Beautify of the RFP requirements or that Beautify was otherwise incapable of performing the requirements. On this record, we conclude that the source selection authority’s revised tradeoff decision was materially flawed because she inexplicably gave no consideration to Beautify’s low price in relation to Southway’s higher past performance rating (which was only one rating category higher than Beautify’s rating) and, as a result, she failed to document why it was worth paying a 25-percent price premium to Southway.  (Beautify Professional Services Corporation, B-291954.3, October 6, 2003)  (pdf)


Moreover, the propriety of a cost/technical tradeoff turns not on the difference in technical score, per se, but on whether the contracting agency’s judgment concerning the significance of that difference was reasonable in light of the solicitation’s evaluation scheme. Where cost is secondary to technical considerations under a solicitation’s evaluation scheme, as here, the selection of a lower-priced proposal over a proposal with a higher technical rating requires an adequate justification, i.e., one showing the agency reasonably concluded that notwithstanding the point or adjectival differential between the two proposals, they were essentially equal in technical merit, or that the differential in the evaluation ratings between the proposals was not worth the cost premium associated with selection of the higher technically rated proposal. Where there is inadequate supporting rationale in the record for a decision to select a lower-priced proposal with a lower technical ranking notwithstanding a solicitation’s emphasis on technical factors, we cannot conclude that the agency had a reasonable basis for its decision. MCR Fed., Inc., B-280969, Dec. 14, 1998, 99-1 CPD ¶ 8 at 5.  Here, as noted above, the SSA’s and SSAC’s source selection documents reflecting the agency’s best-value analysis did not include any meaningful analysis of the differentiating features of the two proposals upon which the SSA based the cost/technical tradeoff. Although the SSA and SSAC acknowledged PSS’s proposal’s technical superiority under the task order competence factor, there was no analysis as to why the well-documented technical superiority of PSS’s proposal with its attendant advantages was not worth the associated cost/price premium. Instead, the source selection document simply concluded that the proposals had “nearly equivalent ratings in non-cost areas,” with no analysis discussing the SSEB report justifying PSS’s proposal’s superior technical rating. The general statements in the SSAC’s and SSA’s source selection documents as to why PSS’s technical superiority did not offset the price/cost premium fall far short of the requirement to justify cost/technical tradeoff decisions. See Johnson Controls World Servs., Inc., supra, at 7.  (Preferred Systems Solutions, Inc., B-292322; B-292322.2; B-292322.3, August 25, 2003) (pdf)


Contrary to the source selection decision, nowhere in CBD's proposal does it offer to provide an [DELETED] to develop a custom approach to address technological weaknesses in the current database to meet the current and future requirements, nor does CBD agree that it would seek input from USAFWS instructors for this purpose. In our view, a fairer reading of CBD's proposal to engage an [DELETED] is that CBD recognized that it had no knowledge of the USAFWS's current academic database and LAN, and that [DELETED] was only to assist the [DELETED] CBD to “meet the contract requirements.” We find no support for the SSA's conclusion that CBD offered a “custom approach to address technological weaknesses in the current database.” In fact, CBD's approach (quoted above) for the most part either acknowledges, restates, or generically responds to the SOW requirements with no discussion or promise of a customized approach to satisfying these requirements, except for some reference to employing [DELETED] software.  (SDS International, Inc., B-291183; B-291183.2, December 2, 2002)  (pdf)


JWH asserts that it was improper for the source selection authority (SSA) to serve as head of the price evaluation team, since Federal Acquisition Regulation (FAR) § 15.308 provides that “the source selection decision shall represent the SSA's independent judgment.” This argument is clearly without merit. While FAR § 15.308 requires the source selection decision to be based on the SSA's exercise of independent judgment, it does not expressly preclude the SSA from participating in the evaluation process, and we see nothing in an SSA's doing so that is inherently inconsistent with the exercise of independent judgment. We are aware of no other applicable prohibition in this regard. (J W Holding Group & Associates, Inc., B-285882.3; B-285882.6, July 2, 2001)  (pdf)


Thus, when viewed in the overall scope of the procurement, the SSA found the technical risk associated with the baseline antenna approach to be narrow, isolated from the critical path, and not of great concern to the overall cost and success of the contract. Tr. at 172-76, 202-03, 217-19, 241-46, 259-60; Agency Report, Tab 5B, Source Selection Decision, at 4. Considering that antenna design was but one aspect of the architecture and system performance subfactor, the developmental nature of this procurement, and the fact that the SSA's rationale for changing the risk evaluation is apparent in the source selection decision, we find this rating change to be within the discretion of the SSA and reasonable. See KPMG Consulting LLP, supra, at 13-14. As indicated above, this type of analysis by the SSA, giving due consideration to the evaluation conclusions of the lower-level evaluators, was entirely appropriate and reasonable. See GTE Hawaiian Tel. Co., Inc., B-276487.2, June, 30, 1997, 97-2 CPD ¶ 21 at 18-19. (Raytheon Company, B-291449, January 7, 2003)  (pdf)  (txt version)


Thus, the record is clear that the SSA's tradeoff decision was based on incorrect information concerning the relative timing of Ashland's and Valley's delinquencies and a misstatement that a contract was extended due to inexcusable rather than excusable delay.  Because of this, the decision's conclusion that Valley had a superior timely record was unsupported by the record.  Moreover, the decision cast Ashland's proposal in a more negative light than would be the case if the facts were correctly stated, so that the evaluated advantage of Ashland should be greater than what the SSA believed to be the case when making the price/technical tradeoff.  Since the SSA's price/technical tradeoff decision favoring Valley's small price advantage over Ashland's narrow technical advantage was extremely close, correction of these errors could quite possibly tip the tradeoff in favor of Ashland's higher-rated proposal.  In this regard, we note that as between Offeror A and Valley that the SSA found a difference under the experience/past performance factor that warranted payment of an even larger price premium than existed between the proposals of Ashland and Valley.  (Ashland Sales and Service Company, B-291206, December 5, 2002) (pdf)  (txt version


While adjectival ratings, like scores, may be useful as guides to intelligent decision-making, they are not binding on the SSA, who has discretion to determine the weight to accord them in making an award decision. Porter/Novelli, B-258831, Feb. 21, 1995, 95-1 CPD ¶ 101 at 5.  Of concern to our Office is whether the record as a whole supports the reasonableness of the evaluation results and the source selection decision. Orbital Techs. Corp., B-281453 et al., 99-1 CPD ¶ 59 at 9.  Here, as discussed above, the record demonstrates the reasonableness of the agency's evaluation of Campbell's proposal, and that the SSA, in making the source selection, was aware of the TEB's findings with regard to Campbell's proposal, the ratings Campbell's proposal received under each of the evaluation factors, and that the proposal was considered deficient with regard to Campbell's approach to safety, quality control, and experience of key personnel. As such, it is of little or no significance whether the agency's overall rating of Campbell's proposal as marginal was reasonable.  (R. L. Campbell Roofing Company, Inc., B-289868, May 10, 2002) (pdf)  (txt version)


In a negotiated procurement with a "best value" evaluation plan where selection officials reasonably regard proposals as being essentially equal technically, price can become the determining factor in making award, notwithstanding that the evaluation criteria assigned price less importance than technical factors.  M-Cubed Info. Sys., Inc., B 284445; B-284445.2, Apr. 19, 2000,  2000 CPD P: 74 at 8.  Here, the RFP evaluation scheme explicitly provides that price would increase in importance as the technical proposals become close to equal, and that price may be the deciding factor between highly rated proposals.  At best, Vantage's technical proposal was evaluated as equal to Raytheon's; in fact, the record reflects that the agency consistently evaluated the Raytheon proposal as technically superior, notwithstanding that the same *outstanding* ratings were given to both proposals.  Accordingly, Vantage's objection that the agency improperly considered price to be determinative is without merit because the agency's decision to use low price as the determining factor between two equally highly rated technical proposals was fully consistent with the RFP award criteria.  (Vantage Associates, Inc., B-290802.2, February 3, 2003)  (txt version)


Here, there was no technical or price evaluation factor providing for the evaluation of the offerors' understanding of the requirements.  The price evaluation factor provided only for the evaluation of the “reasonableness” of the proposed price (that is, whether the price was unreasonably high) and for whether the price proposal was unbalanced, which is not contended here.  See RFP amend. 2, at 27-28.  Moreover, the RFP did not request cost or pricing information or any other information that would allow the agency to determine that a low proposed price reflected a lack of understanding of the contract requirements.  The agency's apprehension that CSE's price was too low would appear to concern the firm's responsibility, that is, whether CSE could satisfactorily perform at its proposed price, Possehn Consulting, supra, at 4, or whether CSE may have made a mistake in its proposed price.  Since CSE is a small business concern, if the agency believed that CSE could not satisfactorily perform the contract at its proposed price, the Corps was required to refer this finding of non-responsibility to the Small Business Administration (SBA) for that agency's review under its certificate of competency procedures.  Id.  If the agency believed CSE had made a mistake in its proposed price, it was required to request that CSE verify its price.  FAR § 15.306(b)(3)(i), which incorporates the bid mistake rules of FAR § 14.407-3 (contracting officer should obtain sufficient information to be reasonably assured that the bid confirmed is without error).  As noted above, the agency did not request verification here.  In any case, here, the record establishes that CSE's proposal was not considered for award by the SSA based primarily upon her judgment that CSE's proposed price was unreasonably low and reflected a lack of understanding of the contract requirements.  See Agency Report, Tab 9, Source Selection Decision, at 2.  That is, although CSE was considered to be the “second best qualified offeror,” CSE was not selected because of its two marginal ratings and “unreasonably low” price.  Id.  In performing the price/technical tradeoff required by the RFP, the SSA did not consider CSE's significantly lower price to be an advantage to be weighed against the awardee's higher technical rating.  We think that if CSE's price advantage had been properly weighed in the agency's price/technical tradoff analysis, it would have had a reasonable possibility of being selected for award.  Accordingly, we sustain CSE's protest on this basis.  (CSE Construction, B-291268.2, December 16, 2002)


Furthermore, and perhaps more significantly, the SSA's determination that the responses for Carr "were slightly more positive than" for M&S Farms is also not supported by the record. Indeed, three of the questionnaires rated the awardee [DELETED]. Agency Report, Tab 6, Carr's Proposal, Questionnaires. In contrast, one of these respondents, [DELETED], also submitted a questionnaire for M&S Farms, where [DELETED] rated M&S Farms [DELETED]. Agency Report, Tab 5, M&S Farms' Proposal, Questionnaires. In sum, this record provides no reasonable basis to rate Carr slightly higher than M&S Farms under the questionnaire criterion of, or overall under, the past performance factor.  (M&S Farms, Inc., B-290599, September 5, 2002)  (pdf)


The record shows that the focal point of the agency's price/technical tradeoff decision here was URS's higher technical point score, without discussing what, if anything, the spread between the technical scores of URS and Shumaker actually signified. The record contains no evidence that the agency compared the advantages of the awardee's proposal to those of Shumaker's proposal, or considered why any advantages of the awardee's proposal were worth the approximately $400,000 higher price. As we have previously stated, point scores are but guides to intelligent decision making. Ready Transp., Inc., B-285283.3, B-285283.4, May 8, 2001, 2001 CPD ¶ 90 at 12. In this case the Forest Service's tradeoff is inadequate because its mechanical comparison of the offerors' point scores was not a valid substitute for a qualitative assessment of the technical differences between the offers from URS and Shumaker, so as to determine whether URS's technical superiority justified the price premium involved. Opti-Lite Optical, supra, at 5."  (Shumaker Trucking and Excavating Contractors, Inc., B-290732, September 25, 2002)  (pdf)


An agency which fails to adequately document its source selection decision bears the risk that our Office may be unable to determine whether the decision was proper.  Matrix Int'l Logistics, Inc., B-272388.2, Dec. 9, 1996, 97-2 CPD ¶ 89 at 5.  While source selection officials may reasonably disagree with the evaluation ratings and results of lower-level evaluators, Verify, Inc., B-244401.2, Jan. 24, 1992, 92-1 CPD ¶ 107 at 6-8, they are nonetheless bound by the fundamental requirement that their independent judgments be reasonable, consistent with the stated evaluation factors, and adequately documented.  AIU North America, Inc., supra.  The contemporaneous source selection statement did not meet these requirements.  (Johnson Controls World Services, Inc., B-289942; B-289942.2, May 24, 2002)


Although source selection officials may reasonably disagree with the ratings and recommendations of evaluators, they are nonetheless bound by the fundamental requirement that their independent judgments be reasonable, consistent with the stated evaluation scheme and adequately documented. Id. For the reasons discussed below, we find the SSA’s conclusions here unreasonable.  (DynCorp, International LLC, B-289863; B-289863.2, May 13, 2002)  (pdf)


Here, we find no support in the record for the agency’s judgment that Stronghold had offered technical advantages that outweighed A&D’s $148,124 price advantage. As explained above, the agency’s determination that Stronghold’s proposal reflected the best value to the government was chiefly based upon the agency’s conclusion that Stronghold offered a shorter contract completion schedule than did A&D. This conclusion was in error. Stronghold’s “intention” and “belief” that it could complete the contract work sooner than the minimum 420-day completion schedule required by the RFP is not the contractual commitment that the solicitation required to receive additional evaluation credit for an accelerated schedule.  (A&D Fire Protection Inc., B-288852.2, May 2, 2002  (pdf))


Where a solicitation provides for a best value procurement and, as here, emphasizes the significantly greater importance of technical factors over cost/price, an agency has considerable discretion to award to an offeror with a higher technical rating and higher price. Systems Integration & Dev., Inc., B-271050, June 7, 1996, 96-1 CPD ¶ 273 at 6. Further, there is no requirement that an agency attach specific dollar values to the benefits associated with a technically superior proposal. Federal Acquisition Regulation (FAR) § 15.308; Suddath Van Lines, Inc.; The Pasha Group, B-274285.2, B-274285.3, May 19, 1997, 97-1 CPD ¶ 204 at 10; Kay and Assocs., Inc., B-258243.7, Sept. 7, 1995, 96-1 CPD ¶ 266 at 6.  (WPI, B-288988.4; B-288998.5, March 22, 2002)  (pdf)


In conducting cost/technical tradeoffs, selection officials retain considerable discretion in determining the significance of technical point score differentials. The determinative element is not the difference in technical scores per se, but the considered judgment of the selection officials concerning the significance of the difference. Hardman Joint Venture, B-224551, Feb. 13, 1987, 87-1 CPD ¶ 162. Where, as here, a negotiated procurement provides for award after a cost/technical tradeoff, point scores are merely guides to assist contracting agencies in evaluating proposals; they do not mandate automatic selection of a particular proposal, and an agency is not required to give equal weight to the percentage differential between technical scores and the percentage differential between proposed costs. Ecology and Env't, Inc., B-209516, Aug. 23, 1983, 83-2 CPD ¶ 229. The business judgment of a source selection official in determining how much additional cost an agency is willing to incur to obtain the benefit of a higher rated proposal is governed only by the tests of rationality and consistency with established evaluation criteria. Grey Adver., Inc., B-184825, 76-1 CPD ¶ 325 at 9-12.  (IBP, Inc., B-289296, February 7, 2002)


Where consistent with a solicitation's terms, price/technical tradeoffs may be made, and the extent to which one may be sacrificed for the other is governed only by the tests of rationality and consistency with the established evaluation criteria. TRW, Inc., B-234558, June 21, 1989, 89-1 CPD para. 584 at 4. In deciding between competing proposals, the propriety of such a tradeoff turns not on the difference in technical scores or ratings per se, but on whether the selection official's judgment concerning the significance of that difference was reasonable and adequately justified in light of the RFP evaluation scheme. DynCorp, B-245289, B-245289.2, Dec. 23, 1991, 91-2 CPD para. 575 at 6. Source selection officials in negotiated procurements have broad discretion in determining the manner and extent to which they will make use of the technical and price evaluation results, and the selection officials are not bound by the recommendation of lower-level evaluators.. See DynCorp, supra.  (Hubbell Electric Heater Company, B-289098, December 27, 2001)


Regarding the fact that Acorn's proposal did not receive the highest past performance rating, this does not render the award improper. Source selection officials in a negotiated procurement have broad discretion in determining the manner and extent to which they will make use of the technical and price evaluation results; price/technical tradeoffs may be made, and the extent to which one may be sacrificed for the other is governed only by the test of rationality and consistency with the established evaluation factors. Creative Apparel Assocs., B-275139, Jan. 24, 1997, 97-1 CPD para. 65 at 6. Even where price is the least important factor, an agency may award to an offeror with a lower-priced, lower-scored proposal if it determines that the price premium involved in awarding to an offeror with a higher-rated, higher-priced proposal is not justified. Id.  In the source selection report, the contracting officer recognized that Acorn's proposal was not the most highly rated (in terms of past performance), but decided that payment of the price premium associated with SelRico's proposal--approximately 22 percent--was too great to be justified by SelRico's higher past performance rating, notwithstanding the RFP's emphasis on past performance. That analysis appears reasonable and consistent with the RFP, and we therefore have no basis to question the contracting officer's tradeoff determination.  (SelRico Services, Inc., B-286664.4; B-286664.5; B-287481.2; B-287481.3, June 22, 2001)


Where a source selection official does not specifically discuss the cost/technical tradeoff in the source selection decision itself, we will not object if the tradeoff is otherwise reasonable based upon the record before us. PRC, Inc., B-274698.2, B-274698.3, Jan. 23, 1997, 97-1 CPD para. 115 at 12-13.  (Digital Systems Group, Inc., B-286931; B-286931.2, March 7, 2001)


Whether a given point spread between two competing proposals indicates a significant superiority of one proposal over another depends on the facts and circumstances of each procurement and is primarily a matter within the discretion of the procuring agency. Resource Management Int'l, Inc., supra, at 4. Where selection officials reasonably regard proposals as being essentially equal technically, cost can become the determining factor in making award, notwithstanding that the evaluation criteria assigned cost less importance than technical factors. Id.; The Parks Co., B-249473, Nov. 17, 1992, 92-2 CPD para. 354 at 4. Moreover, an agency may properly award to a lower-rated, lower-cost offeror, even if cost is the least important evaluation factor, if it reasonably determines that award to the higher cost offeror is not justified given the level of technical competence available at the lower cost. Resource Management Int'l, Inc., supra, at 4.  (DevTech Systems, Inc., B-284879; B-284879.2, June 16, 2000)


To the extent that the protester is arguing that to justify its selection of a higher-priced proposal, the agency was required to find not simply that the proposal was technically superior, but also that this superiority would translate into better performance, we disagree. We think that it is inherent in the agency decision to evaluate on the basis of specified criteria that an offeror whose proposal is determined to be technically superior on the basis of those criteria can be expected to render superior performance.  (Butt Construction Company, Inc., B-284270, March 20, 2000)


The source selection decision does not compare Wilson 5's proposal and Eastco's lowest price proposal, since Eastco's proposal was rated only seventh in line for award. However, the record as a whole shows that the agency did compare Wilson 5's technical advantages to Eastco's lower price. Specifically, in a November 3, 1999 letter to Eastco setting forth debriefing information, GSA advised Eastco, in part, that Page 114 of the solicitation states: Management Plan and Approach and past performance, when combined, are significantly more important than price. Wilson 5 easily had the most highly rated technical proposal and was a close second to [Eastco's] lowest price offer. Therefore, Wilson 5's offer was accepted as the best value to the government.  (Eastco Building Services, Inc., B-283972.2, February 10, 2000)


The protester's position is based on the incorrect view that post-protest documentation can never constitute adequate support for an award decision. While we generally accord greater weight to contemporaneous evidence, we will consider post-protest explanations that provide a rationale for contemporaneous conclusions, so long as those explanations are credible and consistent with contemporaneous record. Jason Assocs. Corp., B-278689 et al., Mar. 2, 1998, 98-1 CPD para. 67 at 6-7; PRC, Inc., supra, at 4-5.  (Simborg Development, Inc., B-283538, December 7, 1999)


With respect to the technical evaluation of Sato's proposal, Omega argues that because one of the five evaluators rated Sato's proposal green/acceptable for technical understanding, while all five evaluators rated Omega's proposal blue/exceptional for this factor, the contracting officer could not reasonably assign both proposals the same overall rating of blue in this area. Omega characterizes this as "ignor[ing] and effectively throw[ing] out the rating of one evaluator simply because [the contracting officer] likes one of the bidders," and "arbitrarily equaliz[ing] two unequal scores." Protester's Comments at 2.  Contrary to the protester's assertions, a finding of technical equality need not be based on strict equality in terms of each evaluator's rating for each factor, or even point scores. N W Ayer Inc., B-248654, Sept. 3, 1992, 92-2 CPD ¶ 154 at 4. The significance of a given point spread or difference in rating depends upon all the facts and circumstances surrounding a given procurement; the scores themselves are not controlling, reflecting as they do the disparate subjective judgments of evaluators, but are useful as guides to intelligent decisionmaking. Earle Palmer Brown Cos., Inc., B-243544, B-243544.2, Aug. 7, 1991, 91-2 CPD ¶ 134 at 10. The overriding concern in the evaluation process is that the final score assigned accurately reflect the actual merits of the proposals, not that it be mechanically traceable back to the scores initially given by the individual evaluators. Dragon Servs., Inc., B-255354, Feb. 25, 1994, 94-1 CPD ¶ 151 at 11. (Omega World Travel, Inc., B-283218, October 22, 1999) 


In making the tradeoff decision resulting in an award to an offeror with a higher technically rated, higher priced proposal, there is no requirement that the agency provide an exact quantification of the dollar value to the agency of the proposal's technical superiority. Kay and Assocs., Inc., B-258243.7, Sept. 7, 1995, 96-1 CPD para. 266 at 6.  (Allied Technology Group, Inc., B-282739, August 19, 1999)


It is improper to rely, as the agency did here, on a purely mathematical price/technical tradeoff methodology. See Teltara, Inc., B-280922, Dec. 4, 1998, 98-2 CPD para. at 4; General Offshore Corp.-Riedel Co., a Joint Venture, B-271144.2, B-271144.3, July 2, 1996, 96-2 CPD para. 42 at 8.[4] In this case the tradeoff is inadequate because, beyond the mechanical comparison of the total point scores, the contracting officer made no qualitative assessment of the technical differences between the offers from Classic and Opti-Lite to determine whether Classic's technical superiority justified the cost premium involved.  (Opti-Lite Optical, B-281693, March 22, 1999)


Arora maintains that the cost/technical tradeoff was improper because the agency did not specifically compare Arora's proposal to the awardee's higher technically rated, higher-cost ([DELETED]) proposal in making its best value determination. The argument is without merit. The award document lists the costs of all proposals and specifically discusses the merits and deficiencies of the proposals with respect to nonprice factors; in other words, the agency was fully aware of the protester's and awardee's prices, as well as the relative merits of the technical proposals, when the tradeoff was made.  (The Arora Group, Inc., B-280978.3; B-280978.4, January 27, 1999)

Comptroller General - Listing of Decisions

For the Government For the Protester
New MSN Services, LLC B-414900, B-414900.2, B-414900.3, B-414900.4: Oct 4, 2017 The Arcanum Group, Inc. B-413682.2, B-413682.3: Mar 29, 2017
Olgoonik Global Security, LLC, B-414762, B-414762.2: Sep 8, 2017 CALNET, Inc. B-413386.2, B-413386.3: Oct 28, 2016
Mevacon-NASCO JV; Encanto Facility Services, LLC B-414329, B-414329.2, B-414329.3, B-414329.4: May 11, 2017 Arcadis U.S., Inc. B-412828: Jun 16, 2016
IT Enterprise Solutions JV, LLC B-412036.3: Jan 31, 2017 Sterling Medical Corporation B-412407, B-412407.2: Feb 3, 2016  (pdf)
Heartland Technology Group, LLC B-412402.2: Sep 29, 2016 Celta Services, Inc. B-411835,B-411835.2: Nov 2, 2015 (pdf)
Diversified Technology & Services of Virginia, Inc. B-412090.2, B-412090.3: Dec 16, 2015  (pdf) PricewaterhouseCoopers LLP, B-409537, B-409537.2: Jun 4, 2014  (pdf)
HGS Engineering, Inc.; American Commercial Group, Inc. B-412042, B-412402.2: Dec 10, 2015  (pdf) IBM U.S. Federal, a division of IBM Corporation; Presidio Networked Solutions, Inc., B-409806, B-409806.2, B-409806.4, B-409806.5: Aug 15, 2014  (pdf)
Noble Supply and Logistics, B-410788.4, B-410788.5, B-410788.6, B-410788.7: Jul 29, 2015  (pdf) Intelligent Decisions, Inc.; Abacus Technology Corporation; D&S Consultants, Inc.; CDO Technologies, Inc., B-409686, B-409686.2, B-409686.3, B-409686.5, B-409686.6, B-409686.12, B-409686.14: Jul 15, 2014  (pdf)
DKW Communications, Inc. B-411182, B-411182.2: Jun 9, 2015  (pdf) Gaver Technologies, Inc., B-409535: Jun 3, 2014  (pdf)
Cherokee Nation Technology Solutions, LLC B-411140: May 22, 2015  (pdf) Prism Maritime, LLC, B-409267.2, B-409267.3: Apr 7, 2014  (pdf)
Nangwik Services, LLC B-410444: Dec 23, 2014  (pdf) Trailboss Enterprises, Inc. B-407093, Nov 6, 2012  (pdf)
PricewaterhouseCoopers LLP; IBM U.S. Federal, B-409885, B-409885.2, B-409885.3,B-409885.4, B-409885.5, B-409885.6: Sep 5, 2014 (pdf) IBM Corporation, U.S. Federal B-406934, B-406934.2, B-406934.3, Oct 3, 2012  (pdf)
Alliance Worldwide Distributing, LLC B-408491, Sep 12, 2013)  (pdf) Nexant, Inc., B-407708, B-407708.2, Jan 30, 2013  (pdf)
DaeKee Global Co. Ltd., B-402687.8,  Jan 3, 2012  (pdf) Kollsman Inc., B-406990, Oct 15, 2012  (pdf)
NOVA Corporation, B-408046, B-408046.2, Jun 4, 2013  (pdf) J.R. Conkey & Associates, Inc. dba Solar Power Integrators, B-406024.4, Aug 22, 2012  (pdf)
WingGate Travel, Inc., B-405007.14, Apr 12, 2013  (pdf) Clark/Foulger-Pratt JV, B-406627, B-406627.2, Jul 23, 2012  (pdf)
Koontz Electric Company, Inc., B-407946, Apr 5, 2013  (pdf) One Largo Metro LLC; Metroview Development Holdings, LLC; King Farm Associates, LLC, B-404896; B-404896.2; B-404896.3; B-404896.4; B-404896.5; B-404896.6; B-404896.7, June 20, 2011  (pdf)
MVM, Inc., B-407779, B-407779.2, Feb 21, 2013  (pdf) CIGNA Government Services, LLC, B-401062.2; B-401062.3, May 6, 2009  (pdf)
Crockett Facilities Services, Inc., B-406558.3, Dec 13, 2012  (pdf) T-C Transcription, Inc., B-401470, September 16, 2009 (pdf)
Native Resource-Rowe Joint Venture, B-406880, Sep 13, 2012  (pdf) AT&T Corp., B-299542.3; B-299542.4, November 16, 2007 (pdf)
West Construction, Inc., B-406511, Jun 15, 2012  (pdf) Earl Industries, LLC, B-309996; B-309996.4, November 5, 2007 (pdf)
National Government Services, Inc., B-401063.2,B-401063.3,B-401063.4, Jan 30, 2012  (pdf) Information Ventures, Inc., B-297276.2; B-297276.3; B-297276.4, March 1, 2006 (pdf)
All Points International Distributors, Inc., B-402993; B-402993.2, September 3, 2010 (pdf) Novex Enterprises, B-297660; B-297660.2, March 6, 2006 (pdf)
ACS Education Solutions, LLC, B-401531; B-401531.2; B-401531.3, October 5, 2009  (pdf) YORK Building Services, Inc., B-296948.2; B-296948.3; B-296948.4, November 3, 2005 (pdf)
Healthcare Resolution Services, Inc., B-400826.4, August 13, 2009  (pdf) Spherix, Inc., October 20, 2005, B-294572.3; B-294572.4 (pdf)
Wyle Laboratories, Inc., B-311123, April 29, 2008 (pdf) Coastal Maritime Stevedoring, LLC, B-296627, September 22, 2005 (pdf)
W.G. Yates & Sons Construction Company, B-400753.3, March 25, 2009  (pdf) Keeton Corrections, Inc., B-293348, March 4, 2005 (pdf)
Blackwater Lodge and Training Center, Inc., B-311000.2; B-311000.3; B-311000.4, November 10, 2008 (pdf) SOS Interpreting, LTD., B-293026; B-293026.2; B-293026.3, January 20, 2004 (pdf)
ViroMed Laboratories, Inc., B-310747.4, January 22, 2009 (pdf) Spherix, Inc., B-294572; B-294572.2, December 1, 2004 (pdf)
Wackenhut Services, Inc., B-400240; B-400240.2, September 10, 2008 (pdf) University Research Company, LLC, B-294358; B-294358.2; B-294358.3; B-294358.4; B-294358.5, October 28, 2004 (pdf)
Colson Services Corporation, B-310971; B-310971.2; B-310971.3, March 21, 2008 (pdf) Blue Rock Structures, Inc., B-293134, February 6, 2004 (pdf)
Karrar Systems Corporation, B-310661.3; B-310661.4, March 3, 2008 (pdf) Computer Information Specialist, Inc., B-293049; B-293049.2, January 23, 2004  (pdf)
Team BOS/Naples--Gemmo S.p.A./DelJen, B-298865.3, December 28, 2007 (pdf) Beautify Professional Services Corporation, B-291954.3, October 6, 2003  (pdf)
Utility Tool & Trailer, Inc. B-310535, January 3, 2008 (pdf) Preferred Systems Solutions, Inc., B-292322; B-292322.2; B-292322.3, August 25, 2003  (pdf)
Charles Kendall & Partners, Ltd., B-310093, November 26, 2007 (pdf) SDS International, Inc., B-291183; B-291183.2, December 2, 2002
Eggs & Bacon, Inc., B-310066, November 20, 2007 (pdf) Ashland Sales and Service Company, B-291206, December 5, 2002) (pdf)  (txt version
MD Helicopters, Inc.; AgustaWestland, Inc., B-298502; B-298502.2; B-298502.3; B-298502.4; B-298502.5, October 23, 2006 (pdf) CSE Construction, B-291268.2, December 16, 2002
TruLogic, Inc., B-297252.3, January 30, 2006 (pdf) M&S Farms, Inc., B-290599, September 5, 2002  (pdf)
American Material Handling, Inc., B-297536, January 30, 2006 (pdf) Shumaker Trucking and Excavating Contractors, Inc., B-290732, September 25, 2002  (pdf)
Brewbaker White Sands JV, B-295582.4,October 5, 2005 (pdf) Johnson Controls World Services, Inc., B-289942; B-289942.2, May 24, 2002
Manassas Travel, Inc., B-294867.3, May 3, 2005 DynCorp, International LLC, B-289863; B-289863.2, May 13, 2002  (pdf)
University Research Company, LLC, B-294358.6; B-294358.7, April 20, 2005 (pdf) A&D Fire Protection Inc., B-288852.2, May 2, 2002  (pdf)
Manufacturing Engineering Systems, Inc., B-293299.3; B-293299.4, August 3, 2004 (pdf) Satellite Services, Inc., B-286508; B-286508.2, January 18, 2001
Mechanical Equipment Company, Inc.; Highland Engineering, Inc.; Etnyre International, Ltd.; Kara Aerospace, Inc., B-292789.2; B-292789.3; B-292789.4; B-292789.5; B-292789.6; B-292789.7, December 15, 2003 (pdf) Myers Investigative and Security Services, Inc., B-287949.2, July 27, 2001  
Specific Systems, Ltd., B-292087.3, February 20, 2004 (pdf) Wackenhut Services, Inc, B-286037; B-286037.2, November 14, 2000
Northrop Grumman Systems Corporation, B-293036.5; B-293036.6; B-293036.7, June 4, 2004 (pdf) J&J Maintenance, Inc., B-284708.2; B-284708.3, June 5, 2000
Continental RPVs, B-292768.6, April 5, 2004 ITT Federal Services International Corporation, B-283307; B-283307.2, November 3, 1999
Hyperbaric Technologies, Inc., B-293047.4, March 29, 2004 Si-Nor, Inc., B-282064; B-282064.2, May 25, 1999  (pdf)
Language Service Associates, Inc., B-293041, December 22, 2003  (pdf) Opti-Lite Optical, B-281693, March 22, 1999
Planning Systems, Inc., B-292312, July 29, 2003  
J W Holding Group & Associates, Inc., B-285882.3; B-285882.6, July 2, 2001)  
Raytheon Company, B-291449, January 7, 2003 (pdf)  (txt version)  
R. L. Campbell Roofing Company, Inc., B-289868, May 10, 2002  (pdf)  (txt version)  
Vantage Associates, Inc., B-290802.2, February 3, 2003)  (txt version)  
Atteloir, Inc., B-290601; B-290602, August 12, 2002  
TeKONTROL, Inc., B-290270, June 10, 2002  
WPI, B-288988.4; B-288998.5, March 22, 2002  (pdf)  
IBP, Inc., B-289296, February 7, 2002  
Hubbell Electric Heater Company, B-289098, December 27, 2001  (print  pdf)  
SelRico Services, Inc., B-286664.4; B-286664.5; B-287481.2; B-287481.3, June 22, 2001  (print pdf)  
Digital Systems Group, Inc., B-286931; B-286931.2, March 7, 2001  
DevTech Systems, Inc., B-284879; B-284879.2, June 16, 2000  
Butt Construction Company, Inc., B-284270, March 20, 2000  
Eastco Building Services, Inc., B-283972.2, February 10, 2000  (documentation)  
Simborg Development, Inc., B-283538, December 7, 1999  (documentation)  
Omega World Travel, Inc., B-283218, October 22, 1999   
Allied Technology Group, Inc., B-282739, August 19, 1999  
The Arora Group, Inc., B-280978.3; B-280978.4, January 27, 1999  

U. S. Court of Federal Claims - Key Excerpts

The SSA Performed an Adequate Best Value Tradeoff Analysis

Spectrum argues that the SSA failed to properly conduct a meaningful tradeoff analysis because she failed to “engage in a meaningful, comparative consideration of the technical differences of Spectrum’s and Jacobs’ proposals or to explain why the Agency failed to choose a technically superior contractor to perform these exacting requirements when the price difference was less than five percent . . . .” Pl.’s Reply 2. Contrary to Plaintiff’s assertion, the SSA has provided a reasoned explanation on her tradeoff decision - - she did not believe the advantages in Spectrum’s proposal outweighed the lower price in Jacobs’ technically inferior, but perfectly adequate proposal. In her detailed post corrective action source selection decision, the SSA pointed out that Spectrum’s quote represented a 6.3% price premium and that Spectrum’s advantages in Mission Capability did not warrant that price premium. AR 627, 866. Spectrum’s disagreement with the SSA’s exercise of discretion does not warrant the radical relief Plaintiff seeks. Banknote Corp. of Am., Inc. v. United States, 56 Fed. Cl. 377, 384 (2003), aff’d, 365 F.3d 1345.

The Air Force Did Not Convert this Best Value Procurement to an LPTA Buy

Spectrum argues that because price became a determinative factor for award, the SSA improperly conducted the procurement on a lowest-priced technically acceptable basis. Pl.’s Mot. 21. Spectrum posits that “by ignoring and otherwise neutralizing the many technical advantages proposed by Spectrum over Jacobs, [the SSA] effectively elevated the relative importance of Price and converted the best value procurement contemplated under the RFQ into one based on low price and mere technical acceptability, as opposed to technical superiority.” Id. at 22. Because the SSA fully considered the technical and past performance attributes and inferiorities of the proposals as well as the price differential, she reasonably conducted a best
value tradeoff analysis. The SSA’s conclusion that Spectrum’s superior proposal did not warrant a price premium did not convert this best value procurement into an LPTA procurement. In short, the Agency was required to consider price in its integrated best value assessment and properly did so.  (Spectrum Comm, Inc.’s v. U. S. and  Jacobs Technology, Inc., No. 16-348C May 26, 2016)  (pdf)


B. The Merits of Braseth’s Bid Protest

Based on its review of the administrative record, the Court concludes that it is not possible to determine whether the CO’s decision to make an award to Connie’s rather than Braseth represented a reasonable exercise of his discretion. Most notably, the CO did not supply a consistent rationale regarding how Braseth’s past performance (or lack thereof) affected his decision.

Thus, as recounted above, at one point in the negotiation memorandum the CO stated that Braseth “lacked recent past performance with the agency,” noting too that, under FAR 15.305(a)(2)(iv), “an offeror without a record of relevant past performance . . . may not be evaluated favorably or unfavorably on past performance.” AR Tab 12 at 70. Yet later in the memorandum, when conducting the trade-off analysis required by FAR 15.308, the CO stated both that Braseth was “considered a new company without a recent record of past performance” and that there were “[i]dentical concerns as Connie’s”—i.e., concerns about past performance. Id. at 75.

These contradictory statements within the award decision itself simply cannot be reconciled. It is not logically possible to treat Braseth in a neutral fashion, as a new company without a record of past performance, and also to impute to it concerns about Connie’s past performance.

Further, the remaining documents in the administrative record only deepen the confusion. For instance, the “performance document” written by the cache manager mainly describes issues with Connie’s past performance; but the document’s cover email also states that she “can deal with him having 2 of the contracts,” indicating that the concerns about Connie’s past performance apply equally to Braseth. AR Tab 11 at 66–66.1 (emphasis added). And in Braseth’s debriefing letter, the CO clearly ascribes Connie’s past performance to Braseth (albeit without explicitly stating that he was doing so), asserting that “[y]our past performance was considered satisfactory overall, but several issues were noted during the evaluation including: late arrival at the cache, trailers arriving with pallets/dunnage that had to be sent back, and delays with submitting your invoices.” AR Tab 18 at 180. This statement (which the Court observes is a post hoc explanation of the decision to select Connie’s and therefore entitled to less weight) appears to flatly contradict the portion of the negotiation memorandum stating that Braseth would not be evaluated favorably or unfavorably based on its past performance because it “lacked recent past performance with the agency.” See AR Tab 12 at 70.

Beyond this internal incoherence, it is clear to the Court that, to the extent that the CO intended to treat Braseth as “an offeror without a record of relevant past performance [who] may not be evaluated favorably or unfavorably on past performance,” ascribing Connie’s past performance “issues” to Braseth (as the debriefing memorandum clearly did) would have been arbitrary and capricious. There is simply no rational way to frame the attribution of performance weaknesses to Braseth as anything other than a relatively “unfavorable” evaluation of its performance, even if the adjectival rating it was ultimately assigned for past performance was “satisfactory.” The government’s contrary argument—that such an evaluation was not “unfavorable” in this case because it resulted in a “satisfactory” rating, which was considered “neutral”—is circular and unconvincing. See Def.’s Mot. at 30–31; Def.’s Reply in Supp. of its Mot. to Dismiss and Cross-Mot. for J. upon the Admin. R. at 14, ECF No. 19. As discussed above, adjectival ratings serve as a means to an end, not an end in and of themselves. See Metcalf Const., 53 Fed. Cl. at 640–41. If the CO in this case did in fact ascribe Connie’s performance weaknesses to Braseth, then he did not treat Braseth in a neutral fashion (i.e., as though it had no past performance history at all), even if he gave both Connie’s and Braseth the same adjectival rating.

To be clear, the Court is not suggesting that the CO would have been required to select Braseth over Connie’s if he compared the former’s lack of a performance history against Connie’s identified weaknesses. For example, the CO might reasonably have decided that Connie’s identified weaknesses were not significant enough to justify paying the slightly higher price quoted by Braseth. Or, he might have determined that it would be best to go with a known entity, rather than one with no relevant performance history. But either way, the CO must provide an explanation for his exercise of discretion that is coherent and not internally inconsistent so that the Court has a basis for reviewing its reasonableness.

Finally, because the actual basis for the CO’s decision is not discernible from the administrative record, the Court does not at this time address Braseth’s argument that the contracting officer’s decision was arbitrary, capricious, or contrary to law because it imputed Connie’s past performance to Braseth (rather than treating Braseth as having no relevant past performance).10 Similarly, because the administrative record does not make it clear whether or not the CO intended to treat Braseth as an entity with no past performance history, the Court does not at this time address Braseth’s arguments that USFS was required to consult PPIRS or CPARS when evaluating its past performance or that it violated the FAR by failing to give Braseth the opportunity to respond to its negative past performance evaluations.

In summary: the CO’s explanation for choosing Connie’s over Braseth lacks sufficient clarity to permit this Court to exercise its review function. Accordingly, the Court will remand the matter back to the agency for it to provide a coherent explanation for its decision consistent with the concerns expressed in this opinion. See PlanetSpace, Inc. v. United States, 92 Fed. Cl. 520, 549 (2010) (“[I]f the reviewing court simply cannot evaluate the challenged agency action on the basis of the record before it, the proper course, except in rare circumstances, is to remand to the agency for additional investigation or explanation.” (quoting Florida Power & Light Co. v. Lorion, 470 U.S. 729, 744 (1985))). The Court will further stay resolution of the parties’ cross-motions for judgment on the administrative record, pending receipt of such explanation.

CONCLUSION

For the reasons stated above, the Defendant’s motion to dismiss is GRANTED as to Corwin but DENIED as to Braseth. Accordingly, Corwin’s complaint is hereby DISMISSED without prejudice.

Further, because the Court cannot determine the basis (or bases) on which the CO assigned Braseth a “satisfactory” past performance rating or the rationale for his trade-off analysis, the Court REMANDS this matter to USFS to explain, consistent with this opinion, the basis for its evaluation of Braseth’s offer and its decision to select Connie’s rather than Braseth. USFS shall provide the Court with a coherent explanation of the reasons behind its determination by January 8, 2016. Once USFS has filed its explanation, the parties shall—within seven days thereafter—file a joint proposal to govern proceedings going forward, including, as appropriate, a proposed schedule for supplemental briefing. The parties’ cross-motions for judgment on the administrative record are hereby STAYED for the duration of the remand.  (Braseth Trucking, LLC and Corwin Company, Inc. v. U. S., No. 15-837C/15-844C December 14, 2014)  (pdf)


2. DLA Acted Within Its Discretion in Awarding the Contract to OFI Based on Its Conclusion That BMMI’s Price Premium Was Unwarranted.

There is no merit to BMMI’s argument that given its advantages as to Factors I and II, DLA’s award of the contract to OFI effectively and unlawfully converted a best-value procurement into a lowest-price, technically-acceptable procurement. Pl.’s Mot. 27–28. As noted above, it is well established that the scope of agency discretion to choose among qualified offerors is particularly broad when a contract award decision is based on a best-value determination. Source selection officials therefore have broad discretion in making a price/technical tradeoff, “and the extent to which one may be sacrificed for the other is governed only by the test of rationality and consistency with the established evaluation factors.” Truetech, Inc., B-402536.2, 2010 CPD ¶ 129, at 4 (Comp. Gen. June 2, 2010). In particular, an agency may select a lower -priced, technically-lower-rated proposal in a best-value procurement even when technical factors have been identified as being of greater importance than price, where it reasonably concludes that the technically superior proposal does not warrant a price premium. See Mil-Mar Century Corp. v. United States, 111 Fed. Cl. 508, 553 (2013) (“Even where a solicitation provides that technical criteria are more important than price, an agency must select a lower-priced, lower technically scored proposal if it reasonably decides that the premium associated with selecting the higher-rated proposal is unwarranted.” (citing Serco Inc. v. United States, 81 Fed. Cl. 463, 497 (2008))); Allied Tech. Grp., Inc. v. United States, 94 Fed. Cl. 16, 49 (2010) (“Even when a solicitation emphasizes technical merit, an agency ‘may properly select a lower-priced, lower-technically-rated proposal if it decides that the cost premium involved in selecting a higher-rated, higher-priced proposal is not justified, given the acceptable level of technical competence available at the lower price.’” (quoting Banknote Corp., 56 Fed. Cl. at 390)); Afghan Am. Army Servs. Corp. v. United States, 90 Fed. Cl. 341, 360 (2009) (“[I]n a best-value procurement, the agency may decide to select a lower-technically-rated proposal— even if the solicitation emphasizes the importance of technical merit—if it decides that the ‘higher price of a higher-technically-rated proposal is not justified’” (quoting Blackwater Lodge & Training Center., Inc. v. United States, 86 Fed. Cl. 488, 514 (2009))).

To be sure, an agency must include in its final award decision “the rationale for any business judgments and tradeoffs made or relied on by the SSA, including benefits associated with additional costs.” FAR 15.308. In that regard, “[c]onclusory statements, devoid of any substantive content, . . . fall short of” this documentation requirement. Serco Inc., 81 Fed. Cl. at 497. Therefore, it is not sufficient for the government to simply assert that a proposal’s technical superiority is not worth the payment of a price premium; it must explain the reasons for that conclusion. FirstLine Transp. Sec., Inc. v. United States, 100 Fed. Cl. 359, 381 (2011) (observing that “bare statement that the benefits of the [plaintiff’s] proposal do not justify the higher price of the proposal does not adequately address the issue”); Femme Comp Inc., 83 Fed. Cl. at 767–68 (holding that FAR 15.308 requires more than conclusory assertions to support the selection of a lower-priced, technically inferior offer). The documentation, however, “need not quantify the tradeoffs that led to the decision.” FAR 15.308. And “[i]n performing the tradeoff analysis, the agency need neither assign an exact dollar value to the worth associated with the technical benefits of a contract nor otherwise quantify the non-cost factors.” Serco Inc., 81 Fed. Cl. at 497 (citing FAR 15.308). 

Here, contrary to BMMI’s contentions, DLA did not rest on generalized statements comparing the strengths and weaknesses of the two proposals or merely assert a conclusion that BMMI’s value added benefits were not worth the price premium. To the contrary, as described above, the [source selection authority] SSA compared the two proposals and their relative risks in detail. AR 46:2410–13. Further, DLA also catalogued the strengths of OFI’s proposal (id.; see also OFI’s Final Technical Evaluation at AR 37:1825-1937), which were the ultimate basis for its conclusion that paying BMMI the [. . .]% price premium that it sought for its technically superior proposal did not represent the best value to the government. 

Thus, as described above, the SSA acknowledged that BMMI’s proposal contained value added benefits “that result in a somewhat lower level of risk as compared with OFI’s proposal.” AR 46:2413. Nonetheless, the SSA stated, and “[m]ore significantly, OFI’s proposal contains most of the same strengths that are identified in the BMMI proposal.” AR 46:2413. 

Specifically, the SSA observed that “[i]n Factor I, one of the most important factors, both firms have substantial equipment and resources, regular successful experience performing airlifts, quality and warehousing procedures, comprehensive and sophisticated inspection procedures, formal supplier selection programs, the ability to exceed the contractual surge and sustainment requirements, and experienced key personnel.” AR 46:2413. Further, the SSA explained, “[i]n Factor III, both firms have formal customer service programs, automated systems in place to track deliveries and accuracy of orders, capability of sourcing all of the items that were identified in the schedule of items or acceptable equivalent items; and proposed pipelines greater than the solicitation’s estimated requirement.” AR 46:2413. “It is for this reason,” the SSA concluded, that the [. . .]% premium in price to award to BMMI “is not supportable” and that “OFI offers the best value to the Government.” AR 46:2413; see also AR 46:2416 (describing in detail OFI’s capabilities and basis for concluding that it will successfully perform the contract requirements). 

In short, the bottom line for the SSA was that—notwithstanding BMMI’s technical superiority—OFI’s strengths were such that, on balance, it would not be in the government’s best interest to pay a [. . .]% premium for the reduction of performance risk that BMMI’s proposal offered. This rationale, documented in the [Source Selection Decision Document] SSDD, appears to the Court to be a reasonable one. See Mil-Mar Century Corp., 111 Fed. Cl. at 560 (award to technically-inferior, less experienced, lower-priced offeror in best-value tradeoff was sufficiently documented and rational where agency acknowledged technical advantages and lower risk associated with plaintiff’s proposal but selected lower-priced offeror based on agency’s confidence in awardee’s own strengths, which agency documented and discussed). 

Nor is the rationale used to award the Zone 1 contract to OFI inconsistent with DLA’s treatment of the contract award for Zone 2, as BMMI argues. Thus, BMMI observes that DLA was willing to pay a third offeror (Seven Seas) a [. . .]% price premium based on technical superiority in connection with the Zone 2 contract. Pl.’s Mot. 33-34. It claims that “[t]his unequal treatment reveals both the arbitrariness of the Zone 1 award decision and the lack of adequate explanation for the best value tradeoff.” Pl.’s Reply 16. But contrary to BMMI’s arguments, DLA’s discussion of the differences between Zones 1 and 2 in its original contract award actually provide further support for the rationality of its decision not to pay BMMI a higher [. . .]% price premium based largely on its experience and OFI’s lack thereof. 

Thus, DLA’s first SSDD, which awarded contracts for both Zone 1 and Zone 2, observed that the “Zone 1 region is not as intricate as Zone 2 due to the lack of large Navy ship support demands.” AR 108:6027. Further, it explained that “[t]he customers supported in [Zone 1] are mainly Air Force, Army and Navy Land customers,” so that there would be “no erratic demand fluctuations created by the sudden appearance of Navy Ships, which does routinely occur in Zone 2.” AR 108:6027. For these reasons, “[u]nlike Zone 2, past experience supporting Navy Ships is not a benefit in support of this contract for this zone [Zone 1].” AR 108:6027. In addition, it noted, “regional instability and surges to a second battle group create additional support difficulties that are unique to Zone 2.” AR 108:6026. These characteristics of Zone 2 (which are not present for Zone 1) made Seven Seas’ experience with contracts of similar size and complexity “particularly valuable” to the government. AR 108:6001. Consequently, the SSA concluded that Seven Seas’ past experience was “well worth the [. . .]% price difference between it and OFI” for purposes of Zone 2. Id.

BMMI’s attempt to draw a contrast between DLA’s willingness to pay a [. . .]% price premium to Seven Seas in Zone 2, and DLA’s unwillingness to pay a [. . .]% price premium to BMMI for Zone 1, is unhelpful to its position. As the administrative record reveals, the rationale for paying Seven Seas a price premium for its technical superiority and experience for the Zone 2 contract was based on the unique characteristics of that zone. If anything then, the discussion of the differences between Zones 1 and 2 contained in the original SSDD provides additional support for DLA’s decision not to pay what would have been an even higher premium to BMMI for the Zone 1 contract. (Bahrain Maritime & Mercantile International BSC(C) v. U. S. No.14-720C, October 21, 2014)  (pdf)


Government-Furnished Property

The protestor alleges that “accepting a proposal that relied on RGS’s offer to utilize Government Furnished Equipment (GFE) software licenses and a telephony-based communications system allegedly in the possession of another Government Agency violated the FAR requirements for the offer, acceptance, and use of GFE in federal government contracts pursuant to FAR Part 45.” The protestor maintains that “[i]t is clear from the Administrative Record that the Agency Evaluators thought that RGS was offering GFE.” The protestor argues that when an offeror proposes using GFE, the FAR requires that “‘Agencies shall . . . [e]liminate to the maximum practical extent any competitive advantage a prospective contractor may have by using Government property.’” (quoting FAR § 45.103(a)(2) (2013)) (emphasis and modification in original). According to the protestor, however, the Air National Guard ignored FAR Part 45 and “made no effort to eliminate in any way the competitive pricing advantage that RGS and AtHoc held in proposing to use Government property.” Furthermore, the protestor claims that the Solicitation failed to “include sufficient information that would demonstrate that RGS’s proposed GFE would be available for use under this contract,” and that the Air National Guard failed to consider the other requirements that accompany the use of government-furnished property, which RGS allegedly failed to meet in its proposal. FCN claims, in the alternative, that because pursuant to FAR § 45.000(b)(4), “[s]oftware and intellectual property” are exempt from FAR Part 45, “it seems equally valid to say that FAR 45.000 acts as a bar to offering software and intellectual property as GFE.” See FAR § 45.000 (“Scope of part”).

(sections deleted)

Defendant has been unable, after multiple requests from the court, to provide sufficient information to explain the ownership and transferability to the Air National Guard of the Air Force licenses and telephony capability, which RGS intended to “leverage” as part of its winning proposal. At the hearing before this court, in response to the court’s straightforward question - what is the licensing situation? - counsel for the defendant, after conferring with agency representatives at counsel table, stated that “the Guard is in the process of working through those issues right now with the Air Force,” and that the government is “checking on the transferability of the licenses . . . .” Defendant also has been unable to offer a reason as to why it could not find any of the United States Air Force - AtHoc license agreements, and could only indicate that the process for searching for them is complicated, and that the licenses are “spread out among the -- all the Air Force,” with multiple contracts involved. Moreover, the contracting officer declared during the protest at the GAO: “I recognize that the transferability issue was not 100% verified prior to my award decision, however, I believe that our agency's examination of this issue was reasonable.” To date, no supplemental documents to address these issues have been submitted to the court.

(sections deleted)

In sum, defendant counsel’s unsupported reversal on behalf of his client from the agency’s previously stated position as to whether government-furnished property was offered and available for RGS’ proposal is not sufficient to counter the agency’s action or inaction during the evaluations. Moreover, based on the record before the court, RGS’ proposed use of government-furnished property appears to have been considered a positive element of RGS’ proposal during the Source Selection Evaluation Board’s review, and to the selection decision to award to RGS. Even if the licenses and telephony services offered by RGS turn out not to be government-furnished property, the agency “offered an explanation for its decision that runs counter to the evidence before the agency.” See Ala. Aircraft Indus., Inc.-Birmingham v. United States, 586 F.3d at 1375; see also Motor Vehicle Mfgs. Ass'n v. State Farm Mutual Auto. Ins. Co., 463 U.S. at 43 (“[T]he 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.’” (quoting Burlington Truck Lines v. United States, 371 U.S. 156, 168 (1962)); GHS Health Maint. Organization, Inc. v. United States, 536 F.3d 1293, 1303 (Fed. Cir. 2008); Supreme Foodservice GmbH v. United States, 109 Fed. Cl. at 384. If, however, items offered under RGS’ and [redacted’s] proposal turn out to be government-furnished property, and therefore, subject to the rules included in FAR Part 45, then the Air National Guard “entirely failed to consider an important aspect of the problem.” SKF USA Inc. v. United States, 630 F.3d at 1374. Regardless, the agency made its selection based on insufficient and incomplete information, in an uninformed fashion, without having conducted sufficient inquiry to make a rational decision which was not arbitrary or capricious.  (FCN, Inc. v. U. S., No. 13-616C, April 4, 2014)  (pdf)


Ms. Kronopolous’ determination that Fishers Lane’s offer represented the best overall value to the government, as compared to the other offers, including One Largo, was reasonable and consistent with the terms of the Solicitation. Ms. Kronopolous looked beyond the adjectival ratings assigned to One Largo and Fishers Lane, and directly compared the strengths and weaknesses of the two offers. She then took price into consideration, as directed by the Solicitation, and found that One Largo’s technical superiorities were not adequate to justify the $51 million price difference between One Largo’s and Fishers Lane’s offers. Her determination was also consistent with the Solicitation’s requirement that “the perceived benefits of the higher priced offer, if any, must merit the additional cost.” The same can be said of Ms. Kronopolous’ comparisons of Fishers Lane’s offer with Metroview’s and University’s offers. Ms. Kronopolous exercised her independent judgment to determine whether the technical advantages of the other offers warranted their significantly higher prices over Fishers Lane’s proposal. In each case, she determined that any technical merit achieved by the other proposal did not merit the significant price difference. Her evaluations were reasonable and consistent with the Solicitation’s requirement that a higher priced offer could only be selected if its technical benefits merited its cost, given that each of the other overall “Superior” offers was approximately $48 and $52 million more expensive than Fishers Lane, for Metroview and University respectively. Based on her analysis, Ms. Kronopolous’ decision that Fishers Lane represented the best overall value to the government was not arbitrary and capricious.

Ms. Kronopolous, after reviewing the offers and evaluations, exercised her independent judgment in making her August 24, 2011 selection decision, and documented her rationale for deciding why Fishers Lane represented the best overall value to the government. In accordance with FAR 15.308, Ms. Kronopolous used the technical evaluations performed by the Technical Evaluation Teams and the Source Selection Evaluation Board, and considered the Source Selection Authority’s recommendation, when making her August 24, 2011 selection decision. Ms. Kronopolous produced her own written selection decision, which analyzed the various strengths and weaknesses of each of the offers. Ms. Kronopolous explained her rationale as to why the offers from One Largo, Fishers Lane, Metroview, and University “approached technical equality,” while King Farm’s lowest priced offer was technically evaluated as somewhat inferior, due to its lower rating on the most important sub-factor, Access to Metrorail. She also explained why she concluded that the perceived benefits of the offers from One Largo, Metroview, and University did not warrant their higher prices, as compared to the offer submitted by Fishers Lane. Ms. Kronopolous’ discussion in her August 24, 2011 selection decision of why Fishers Lane’s offer represented the best overall value to the government goes far beyond the source selection official’s analysis of FirstLine’s proposal in FirstLine Transportation Security Inc. v. United States, cited by Plaintiff, which consisted of one sentence and which did not even mention FirstLine’s offer. See FirstLine Transp. Sec., Inc. v. United States, 100 Fed. Cl. at 382-83. In sum, Ms. Kronopolous’ ultimate award determination in her August 24, 2011 selection decision that Fishers Lane represented the best overall value to the government was the product of her own independent judgment, and was adequately documented, thus, complying with both requirements of FAR 15.308. Plaintiff has failed to meet the high burden of demonstrating that Ms. Kronopolous’ trade-off analysis had no rational basis or failed to consider the relevant factors. See, e.g., Galen Med. Assocs., Inc. v. United States, 369 F.3d at 1330.  (One Largo Metro, LLC v. U. S., No. 12-501C, February 21, 2013)  (pdf)  (This is a 93-page opinion about a source-selection.  It has numerous citations to other cases and there are no redactions to the information)


Best Value Trade-Off

Plaintiff also argues that “[t]he Agency’s best value determination is arbitrary, capricious, an abuse of discretion, and contrary to law.” Defendant responds that “the Court should not overturn the Navy’s best value trade-off decision awarding the contract to MLS,” arguing, “[t]he record fully supports the best value decision in this case, which reasonably reflects the Navy’s evaluation of the relative merits of the proposals, consistent with the Solicitation.”

(sections deleted)

Generally speaking, the United States Court of Federal Claims “will not disturb an agency's best value decision merely because a disappointed bidder disagrees with the agency's analysis,” Blackwater Lodge & Training Ctr., Inc. v. United States, 86 Fed. Cl. at 515, but if “ratings that provided the basis for the Agency's tradeoff analysis and best value award were fundamentally flawed and arbitrary, the best value award itself was arbitrary and capricious.” BayFirst Solutions, LLC v. United States, 102 Fed. Cl. 677, 695 (2012) (citing Huntsville Times Co. v. United States, 98 Fed. Cl. 100, 119 (2011)); Serco Inc. v. United States, 81 Fed. Cl. at 497 (“Conclusory statements, devoid of any substantive content, have been held to fall short of this requirement, threatening to turn the tradeoff process into an empty exercise.”) (footnote omitted); see also FirstLine Transp. Sec., Inc. v. United States, 100 Fed. Cl. at 381 (“when selecting a low-price technically inferior proposal in a best-value procurement where non-price factors are more important than price, it is not sufficient for the government to simply state that a proposal's technical superiority is not worth the payment of a price premium. Instead, the government must explain specifically why it does not warrant a premium.”) (emphasis in original). The FAR at 48 C.F.R. § 15.308, however, does require the government to document the reasons for selecting the higher priced offeror. See 48 C.F.R. § 15.308 (“the documentation need not quantify the tradeoffs that led to the decision.”). In Akal Security, Inc. v. United States, 103 Fed. Cl. 310, the court noted, however, that, “[u]nderstandably, the United States Court of Federal Claims has declined to venture too far into the weeds of most bid protests that are factually driven.” Id. at 332. “In performing the tradeoff analysis, the agency need neither assign an exact dollar value to the worth associated with the technical benefits of a contract nor otherwise quantify the non-cost factors.” Serco Inc. v. United States, 81 Fed. Cl. at 497 (citing 48 C.F.R. § 15.308).

Plaintiff’s main argument that the Agency’s best value determination was arbitrary, capricious, an abuse of discretion, and contrary to law, seems to stem from its belief that the past performance evaluations of Glenn Defense Marine and MLS were flawed. Yet the court already has determined that the past performance evaluations of Glenn Defense Marine and MLS were not arbitrary, capricious, an abuse of discretion, or contrary to law. As to whether the Navy sufficiently documented its decision to accept the higher price, the Primary Contracting Officer/Source Selection Authority first noted that only Glenn Defense Marine and MLS had submitted proposals in the competitive range, had submitted acceptable security plans, “did not receive any unacceptable ratings for non-price factors, submitted complete proposals, and did not take any exceptions to the terms and conditions contained within the solicitation.” Therefore, the Agency concluded that the trade-off analysis would be limited to those two offerors. The Primary Contracting Officer/Source Selection Authority noted that: “The trade-off process outlined below is in accordance with FAR 15.101-1, the solicitation, and SSP [Source Selection Plan]. The evaluation assesses each offerors technical approach and past performance as a means of evaluating the offerors ability to successfully meet the requirements of the solicitation. The analysis compares offerors’ non-price factors (i.e., technical approach and past performance and price.”26 The Primary Contracting Officer/Source Selection Authority continued, “[t]he following factors, in order of importance, were used to evaluate the acceptable offers: technical approach; past performance; and price. The non-price factors, when combined, are significantly more important than price.”

The Primary Contracting Officer/Source Selection Authority’s analysis revealed that both offerors received a Better rating for technical approach, noted many of the strengths were the same for both offerors and identified an individual technical strength for each offeror, before concluding that the offerors were equal in their Technical Approach. The Primary Contracting Officer/Source Selection Authority also indicated a “significant difference” between the past performance of MLS, which was rated as Better and which had no performance concerns and Glenn Defense Marine, which was rated as Less than Satisfactory, and had “past performance issues regarding responsiveness to Government inquiries, late and/or incomplete pre-port visit cost estimates, lack of transparency into prices that were not pre-priced in the contract and communications difficulties.” MLS also was identified as “responsive with solutions and providing a very high level of customer service.” The Primary Contracting Officer/Source Selection Authority, therefore, decided the contract should be awarded to MLS, despite MLS’s price coming in 63.8% higher than that of Glenn Defense Marine.

(Table deleted)

MLS’ price of $2,537,414.00 in its revised proposal was $989,214.00 higher or approximately 64% higher than Glenn Defense Marine’s price of $1,548,200.00 in its revised proposal. The Primary Contracting Officer/Source Selection Authority stated that since Glenn Defense Marine’s total evaluated price is $989,214.00 lower than MLS’ total evaluated price, “a trade-off analysis is required to determine the ‘best value’ proposal that will be the most advantageous to the Government.”

The Primary Contracting Officer/Source Selection Authority concluded, “[t]he Contracting Officer has determined MLS’s proposal to be the ‘best value’ and most advantageous to the Government,” and identified three specific perceived benefits which warranted the higher cost of MLS’ proposal: performance risk, pricing transparency, and contract administration. Regarding performance risk, the Primary Contracting Officer/Source Selection Authority stated that Glenn Defense Marine had fallen short of meeting contract requirements related to contract administration for “timely and accurate pre-port visit estimates, transparency in pricing matters, and communications,” all of which the Primary Contracting Officer/Source Selection Authority indicated were “very important for the successful delivery of husbanding services.”

The Primary Contracting Officer/Source Selection Authority also indicated that as it related to past performance, Glenn Defense Marine had “significant deficiencies in meeting both pricing submission requirements as well as responding in a timely manner to facilitate pricing transparency.” This was of particular concern to the Primary Contracting Officer/Source Selection Authority because of the high number of requirements which were not pre-priced in the contract. According to the Primary Contracting Officer/Source Selection Authority, up to $7,000,000.00 out of the estimated $10,000,000.00 total contract value potentially could be non-pre-priced items, such as port tariffs, fuel, provisions and incidentals. Although conceding that Glenn Defense Marine had an adequate system and process to obtain fair and reasonable prices for non-priced items, the Primary Contracting Officer/Source Selection Authority concluded that Glenn Defense Marine’s past performance “indicates that attempts by the Government to obtain pricing information from GDM for items not pre-priced in previous relevant contracts were never adequately addressed to the Government’s satisfaction,” even after discussions between the Navy and Glenn Defense Marine.

By contrast, the Primary Contracting Officer/Source Selection Authority determined that “pricing transparency has been an area where MLS has clearly excelled,” noting their “long and established past performance history of going above and beyond the minimum contract requirements to substantiate non-priced items through a very robust information system developed specifically for this purpose.” The Primary Contracting Officer/Source Selection Authority concluded that there was a “very high degree of confidence” that MLS would not only exceed the pricing transparency requirements, but through the specifically designed online pricing application, provide additional benefits to the Navy related to invoicing, data mining and other analytic tools.

Finally, the Primary Contracting Officer/Source Selection Authority analyzed contract administration and indicated that additional contract administration costs would likely be required if a contract were awarded to Glenn Defense Marine, stating that “a conservative estimate of enhanced contract oversight and management that would be required by Government to mitigate the risks would be hundreds of thousands of dollars over a five-year period.” The Primary Contracting Officer/Source Selection Authority specifically noted Glenn Defense Marine’s “late pre-port cost estimates, lack of a response to correspondence, and pricing issues.” As applied to the contract to be awarded, the Primary Contracting Officer/Source Selection Authority concluded that Glenn Defense Marine’s potential lack of responsiveness “not only increases the contract administration costs to the Government, but also could jeopardize the mission of the U.S. Navy since much of this correspondence was in relation to an upcoming ship visit where timely communication is critical to Government decision makers.”

(sections deleted)

The Primary Contracting Officer/Source Selection Authority was not required to assign an exact amount to quantify the impact of plaintiff’s past performance on future contract performance. See Serco Inc. v. United States, 81 Fed. Cl. at 497 (citing 48 C.F.R. § 15.308) (“in performing the tradeoff analysis, the agency need neither assign an exact dollar value to the worth associated with the technical benefits of a contract nor otherwise quantify the non-cost factors.”); see also Fort Carson Support Servs. v. United States, 71 Fed. Cl. at 598. The Primary Contracting Officer/Source Selection Authority also gave specific examples as to why Glenn Defense Marine’s past performance could impact the cost to the Navy if the contract under consideration was awarded to plaintiff. Moreover, in a bid protest review, addressing a past performance evaluation and a best value trade-off analysis, this court must accord considerable deference to the Agency. The plaintiff has not met its substantial burden of proof and cannot prevail. Based on the foregoing, this court concludes that the Navy's best value determination in selecting MLS for contract award over Glenn Defense Marine was reasonable, in compliance with the solicitation's evaluation criteria and applicable law, not arbitrary or capricious and in accordance with law. Because the court also has determined that the past performance evaluations of Glenn Defense Marine and MLS had a rational basis, the court does not reach the issue of injunctive relief.  (Glenn Defense Marine (Asia), PTE Ltd. v. U. S. and MLS-Multinational Logistic Services Ltd., No. 11-718C, May 25, 2012)  (pdf)


1.   DVA’s Analysis of Plaintiff and Offerors 1 (7 Delta, Inc.), 20 ([***]) 49 (Information Innovators, Inc.) Was Proper, and DVA’s Documentation and Explanation Were Sufficient.

In the SSD document, the SSA explained that “[t]he proposals submitted by Offerors 1 [(7 Delta, Inc.)], 20 [([***])], and 49 [(Information Innovators, Inc.)], when compared to Offeror 87, [were] essentially equal in technical quality at lower evaluated prices and, therefore, represent[ed] a better overall value to the government.” AR Tab 280, 83099.

In addition to its allegations about arbitrariness and inadequate documentation, plaintiff suggests that the SSA did not adequately explain why she determined that these offerors were technically equal. Pl.’s Mot. for J. on AR 19–20. However, plaintiff does not point to any underlying facts that cause the Court to question whether the SSA properly concluded that the proposals of these offerors were technically equal. See id. Moreover, although the Court recognizes that the SSA’s statements in this regard are conclusory and could well have included more detail, the SSD document includes a table of rankings, and it references the Source Selection Evaluation Board (“SSEB”) briefing, AR Tab 280, at 83096–97, both of which support the SSA’s finding that the proposals were technically equal.

According to the SSEB briefing provided to the SSA, the findings of which are reflected in the table in the SSD document, plaintiff and offerors 1 (7 Delta, Inc.), 20 ([***]), and 49 (Information Innovators, Inc.) all received ratings of “good” for the technical factor, AR Tab 279, at 82926–27, 82940–41, 82952–53, 82960–61; “low risk” for the past performance factor, AR Tab 279, at 82976–77, 82990–91, 83002–03, 83010–11; and “full credit” for the veterans involvement factor, AR Tab 279, at 83023. The only non-price factor in which one offeror differed from the others was SBPC, for which offeror 1 (7 Delta, Inc.) was rated “outstanding”and plaintiff and offerors 20 ([***]) and 49 (Information Innovators, Inc.) were rated “acceptable.” AR Tab 279, at 83071. Accordingly, the SSA was rational in her determination that these offerors were “essentially equal in technical quality” when technical refers to all non-price factors combined.

With regard to price, offeror 1 (7 Delta, Inc.) had a final evaluated price of $9,819,470,669, AR Tab 279, at 83074; offeror 20 ([***]) had a final evaluated price of $9,261,152,446, AR Tab 279, at 83081; offeror 49 (Information Innovators, Inc.) had a final evaluated price of $8,470,370,919, AR Tab 279, at 83087; and plaintiff had a final evaluated price of [***], AR Tab 279, at 83091. Plaintiff, therefore, was priced higher than any of the other offerors included in this analysis.

That the SSA did not engage in a detailed analysis to justify her choosing lower-priced proposals that were technically equal to plaintiff’s higher-priced proposal does not amount to a violation of the FAR documentation requirement. See FAR 15.308. As this court noted in Carahsoft Technology Corp. v. United States, “where proposals are technically equal, a best-value tradeoff analysis between price and technical factors is not required.” 86 Fed. Cl. 325, 349 (2009) (citing Consol. Eng'g Servs., Inc. v. United States, 64 Fed. Cl. 617, 635 n.26 (2005)). “No amount of agency reasoning could justify selecting a higher-priced proposal, where a lower-priced and technically equal proposal is available.” Id. In fact, the language of Carahsoft states that an agency is “compelled” to choose the lower-priced proposal when they are otherwise technically equal. Id. at 350. Accordingly, because plaintiff and offerors 1 (7 Delta, Inc.), 20 ([***]), and 49 (Information Innovators, Inc.) were technically equal but plaintiff was higher in price than each of the other three offerors, the SSA did not have to engage in a best-value tradeoff analysis with respect to these offerors, and her overall conclusion was both reasonable and adequately documented.

2. The Documentation and Explanation of DVA’s Best-Value Tradeoff Analysis Regarding Plaintiff and Offerors 3 (Adams), 9 (By Light Professional IT Services, Inc.), and 95 (Technatomy Corporation) Were Insufficient.

As noted, FAR requires that the SSD be well documented with regard to its tradeoff analyses. FAR 15.308. To be well documented, the SSD must contain more than conclusory and generalized statements. Serco Inc., 81 Fed. Cl. at 497. With regard to plaintiff and offerors 3 (Adams), 9 (By Light Professional IT Services, Inc.), and 95 (Technatomy Corporation), the SSD document stated: “The proposal submitted by [plaintiff] is a higher-priced proposal than the proposals submitted by Offeror 3 [(Adams)] . . . , Offeror 9 [(By Light Professional IT Services, Inc.)] . . . , and Offeror 95 [(Technatomy Corporation)] . . . . I have determined that this higher priced proposal does not exhibit sufficient superiority in the non-Price factors to warrant award.” AR Tab 280, at 83100.

As demonstrated in the SSD document, offerors 3 (Adams), 9 (By Light Professional IT Services, Inc.), and 95 (Technatomy Corporation) all received a ranking of “acceptable” for the technical factor, AR Tab 280, at 83096–97, meaning that their proposals “satisfie[d] all of the Government’s requirements, contain[ed] minimal detail, demonstrate[d] a minimal understanding of the problems, and [was] minimally feasible (moderate to high degree of risk) in meeting the Government’s requirements.” AR Tab 284, at 83204. Plaintiff received a “good” ranking for the technical factor. AR Tab 280, at 83097. A “good” rating indicated a proposal “that satisfie[d] all of the Government’s requirements, contain[ed] adequate detail, demonstrate[d] an understanding of the problems and [was] feasible (low to moderate degree of risk) in meeting the Government’s requirements.” AR Tab 284, at 83204. Accordingly, plaintiff was ranked superior in the technical factor—the most important factor—as compared to the other three offerors.

With regard to the other non-price factors—namely past performance, SBPC, and veterans involvement—plaintiff fared well when compared to the other three offerors. All four offerors were rated “low risk” with regard to the past performance factor. AR Tab 279, at 82978–79, 82984–85, 83010–11, 83016–17. Under the veterans involvement factor, plaintiff, offeror 9 (By Light Professional IT Services, Inc.), and offeror 95 (Technatomy Corporation) received “full credit,” and offeror 3 (Adams) received “partial credit.” AR Tab 279, at 83021–23. Under the SBPC factor, offeror 3 (Adams) received a rating of “outstanding,” and plaintiff and offerors 9 (By Light Professional IT Services, Inc.) and 95 (Technatomy Corporation) received a rating of “acceptable.” AR Tab 279, at 83071. Accordingly, plaintiff and offerors 3 (Adams), 9 (By Light Professional IT Services, Inc.), and 95 (Technatomy Corporation) were equal in the past performance factor; plaintiff was equal to two and better than one in the veterans involvement factor; plaintiff was equal to two, but ranked lower than one in the SBPC factor; and plaintiff was ranked higher than all the offerors with respect to the technical factor, the most significant evaluative factor of the five according to the Solicitation.

With regard to price, plaintiff’s proposal was higher than the proposals of offerors 3 (Adams), 9 (By Light Professional IT Services, Inc.), and 95 (Technatomy Corporation). Plaintiff proposed a final evaluated price of [***]. AR Tab 279, at 83091. Offeror 3 (Adams) proposed a final price of $7,619,760,088, AR Tab 279, at 83075; offeror 9 (By Light Professional IT Services, Inc.) proposed $7,265,761,129, AR Tab 279, at 83078; and offeror 95 (Technatomy Corporation) proposed $8,811,539,306. AR Tab 279, at 83094. Therefore, plaintiff’s price was [***] higher than the next highest-priced offeror in this group—offeror 95 (Technatomy Corporation).

According to Firstline Transportation Security, Inc. v. United States,

when selecting a low-price technically inferior proposal in a best-value procurement where non-price factors are more important than price, it is not sufficient for the Government to simply state that a proposal’s technical superiority is not worth the payment of a price premium. Instead, the Government must explain specifically why it does not warrant a premium.

No. 11-375 C, 2011 WL 4467756, at *22 (Fed. Cl. Sept. 27, 2011); cf. Indus. Prop. Mgmt., Inc. v. United States, 59 Fed. Cl. 318, 324 (2004) (“[T]he government is only required to make a ‘cost/technical tradeoff . . . where one proposal is rated higher technically than another, but the other is lower in cost.’” (quoting State Mgmt. Servs. Inc., B-255528 et al., 1995 WL 19600, at *5 (Comp. Gen. Jan. 18, 1995))). Here, the SSA provided no such explanation when she determined that plaintiff’s proposal did not warrant the higher price.

Defendant argues that the SSA’s statements were satisfactory because FAR only requires explanatory documentation when a higher-priced proposal is selected over lower-priced proposals. Hearing at 11:26:24, Standard Communications, Inc. v. United States, No. 11-530C (Fed. Cl. Oct. 20, 2011). Defendant highlights the following FAR language to support its argument: “[D]ocumentation shall include the rationale for any business judgments and tradeoffs made or relied on by the SSA, including benefits associated with additional costs.” FAR 15.308.

Defendant is partially correct in its reading of FAR 15.308—when selecting a proposal that involves “additional cost,” the rationale for the decision must be documented. However, defendant reads the provision to require documentation only in that scenario. In its interpretation, defendant overlooks the qualifying term “including,” a word that indicates that the material that follows is neither exclusive nor exhaustive. See Black’s Law Dictionary 831 (9th ed. 2009) (defining “include” as “[t]o contain as a part of something,” and explaining that “[t]he participle including typically indicates a partial list”); see also Amgen Inc. v. Hoechst Marion Roussel, Inc., 314 F.3d 1313, 1345 (Fed. Cir. 2003) (noting, in the context of patent law, that “include” means the same thing as “comprise,” which indicates that “the named elements are essential, but other elements may be added and still form a construct within the scope of the claim” (quoting Genentech, Inc. v. Chiron Corp., 112 F.3d 495, 501 (Fed. Cir. 1997))) (internal quotation marks omitted). Therefore, the Court finds that defendant’s interpretation is unpersuasive. FAR 15.308 does not excuse an SSA from documenting his or her reasoning for declining to pay a premium for a higher-priced, technically superior proposal, particularly in a situation where, as here, the non-price factors were said to be more important than price.

Defendant also argues that, even if additional explanatory documentation were required, that requirement was satisfied because the SSA stated that she reviewed the findings that the SSEB and the Source Selection Advisory Council (“SSAC”) submitted to her and considered those in her decision-making process. See Hearing at 10:19:39, Standard Communications, Inc. v. United States, No. 11-530C (Fed. Cl. Oct. 20, 2011). Specifically the SSA states: “Based upon the findings of the [SSEB] and the [SSAC] as presented to me on March 24, 2011, I compared the proposals, giving appropriate consideration to the evaluation criteria set forth in the solicitation and their relative importance.” AR Tab 280, at 83097. Defendant contends that this blanket reference to the briefings prepared by the SSEB and the SSAC is enough to show that the SSA engaged in a thorough best-value tradeoff analysis with respect to the offerors. Hearing at 10:20:06, Standard Communications, Inc. v. United States, No. 11-530C (Fed. Cl. Oct. 20, 2011).

Although the SSA may have been fully briefed, she did not document her consideration of the facts and figures presented to her in a way that satisfies FAR. For example, in Firstline, the court found that the agency’s documentation of its best-value tradeoff analysis was inadequate when the SSEB, which conducted the tradeoff analysis in that case, included “nothing more than a selective summary of the ratings, strengths, and weaknesses assigned to the proposals by lower-level evaluators.” 2011 WL 4467756, at *21. Including a summary of the evaluations of each entity did not amount to a meaningful comparison of the proposals. Id. Furthermore, the Court stated that “[t]he simple physical juxtaposition of otherwise unrelated discussions of the proposals does not address the relative benefits and disadvantages of those competing proposals, nor does it explain why a higher-priced, but technically superior, proposal does not merit its higher price.” Id. Accordingly, because the agency failed to document an active comparison of the proposals at issue, the court found that the agency violated FAR’s documentation requirement.

Here, the SSA did even less than the SSEB in Firstline. The Firstline SSEB included in its tradeoff analysis a regurgitation of analyses that other evaluators had provided. The SSA here did not even go that far. Rather she alluded to a chart in the SSD document and stated only that she considered the factors presented to her by others. She also made only short, conclusory statements about plaintiff’s proposal. See AR Tab 280, at 83100. She never delved into an analysis of the proposals nor explained why plaintiff’s higher-priced proposal did not “exhibit sufficient superiority in the non-Price factors,” although it was ranked higher in the technical factor than the other offerors. See id. She simply made reference to a briefing by the SSEB. See id.

Accordingly, the Court finds that the SSA’s best-value analysis with respect to plaintiff and offerors 3 (Adams), 9 (By Light Professional IT Services, Inc.), and 95 (Technatomy Corporation) was insufficiently documented in violation of FAR.  Without adequate documentation, it is not possible to determine whether the SSA engaged in an appropriate best-value tradeoff analysis.  (Standard Communications, Inc. v. U. S. and CACI-ISS, Inc., HP Enterprise Services, LLC., Science Applications International Corporation, No. 11-530C, November 22, 2011)  (pdf)


2. The SSA Failed to Perform and Document an Independent Assessment and Evaluation of the Competing Proposals as Required under FAR 15.308

While the SSEB plays an important role in the source selection process, it is the SSA that is ultimately responsible for selecting the proposal that represents the best value to the government. See 48 C.F.R. § 15.303(b)(6). In discharging that responsibility, the SSA is required to conduct a tradeoff analysis of the competing proposals and must base its contract award decision on that analysis. FAR 15.308 sets forth the requirements for the SSA’s best-value decision:

The source selection authority’s (SSA) decision shall be based on a comparative assessment of proposals against all source selection criteria in the solicitation. While the SSA may use reports and analyses prepared by others, the source selection decision shall represent the SSA’s independent judgment. The source selection decision shall be documented, and the documentation shall include the rationale for any business judgments and tradeoffs made or relied on by the SSA, including benefits associated with additional costs. Although the rationale for the selection decision must be documented, that documentation need not quantify the tradeoffs that led to the decision.

48 C.F.R. § 15.308.

These requirements are mirrored in the SSP. See AR at 456 (“The SSA shall make an independent award decision based on a comparative assessment of proposals against all source selection criteria in the solicitation.”) (punctuation omitted).

In essence, there are two principal requirements embodied in FAR 15.308. First, the SSA must reach an independent award decision based on a comparative assessment of the proposals against all of the criteria set forth in the solicitation. In reaching that decision, the SSA may use reports and other materials prepared by others. Second, the SSA must document its independent award decision. While that documentation must advance a rationale for business judgments or tradeoffs, the SSA is not required to quantify those tradeoffs.

On a short form attached to the SSEB recommendation, the SSA stated that “[a]fter consideration of the information provided to me by the technical and price evaluation members and after accomplishing an independent review and assessment of the technical and price consensus reports, I hereby determine that AKAL Security is the best value offer solution by utilizing the trade-off method.” AR at 1539. Based on that determination, the SSA awarded the MCI contract to intervenor in the amount of $[ ]. Id.

FirstLine asserts that the SSA did not perform the independent assessment of proposals required by the FAR. Instead, according to plaintiff, the SSA relied entirely on the recommendation of the SSEB. FirstLine argues that, in this case, the SSA wholly abdicated her legal duty to perform a best-value tradeoff analysis and to render an independent award decision based on that analysis. Because the required tradeoff analysis was not documented in the source selection decision statement, according to plaintiff, the SSA also failed to meet the documentation requirement of FAR 15.308.

Both the government and intervenor note that the source selection decision statement contains a signed representation that the SSA performed the required independent assessment and evaluation, and thus assert that her representation is entitled to a strong presumption of regularity and good faith. The court agrees. See Am-Pro Prot. Agency, Inc. v. United States, 281 F.3d 1234, 1239 (Fed. Cir. 2002) (“The presumption that government officials act in good faith is nothing new to our jurisprudence.”); Impresa, 238 F.3d at 1338 (noting that a “litigant challenging that presumption necessarily bears a heavy burden”). But that presumption does not grant the SSA a license to disregard FAR 15.308. As noted above, that provision does not merely require the SSA to perform an independent evaluation and assessment of competing proposals; it also requires her to document that evaluation and assessment. See Serco, 81 Fed. Cl. at 498 (“Of course, it is conceivable that the SSA, in his own mind, made such cost/benefit comparisons, but merely failed to capture them on paper. But, that too would violate the FAR and its documentation requirements.”). Here, the SSA’s documentation is limited to her adoption of the SSEB report and her otherwise unsupported statement that intervenor’s proposal represents the best value to the government.

FAR 15.308 permits the SSA to “use reports and analyses prepared by others,” but it also requires the SSA to document “the rationale for any business judgments and tradeoffs made or relied on by the SSA . . . .” 48 C.F.R. § 15.308. There is no question that the source selection decision statement in this case fails to document any business judgments or tradeoffs made or relied upon by the SSA. Indeed, the statement does not even mention – much less discuss – the FirstLine proposal. Because a tradeoff analysis necessarily involves the comparison of more than one proposal, a document that mentions only the winning proposal cannot be viewed as documentation of the tradeoff analysis that resulted in its selection.

With respect to the source selection decision statement of the SSA, the court must answer a single question: does the SSA’s adoption of the SSEB report meet the documentation requirement of FAR 15.308? Here, the court is constrained to conclude that it does not.

In Information Sciences Corp. v. United States, 73 Fed. Cl. 70 (2006), this court held that the SSA violated FAR 15.308 because he did not document his reasons for adjusting technical ratings that had been assigned to competing proposals by lower-level evaluators. Because the SSA in that case agreed with the recommendation of the SSEB minority report, and thus did not adopt the contrary recommendation of the majority report, the court held that some documentation for his rationale in choosing one over the other was necessary under FAR 15.308. Id. at 119-21. GAO has sustained protests on the same basis. See DynCorp Int’l LLC, B-289863, B-289863.2, 2002 CPD ¶ 83, 2002 WL 1003564, at *4 (Comp. Gen. May 13, 2002) (“Although source selection officials may reasonably disagree with the ratings and recommendations of evaluators, they are nonetheless bound by the fundamental requirement that their independent judgments be reasonable, consistent with the stated evaluation scheme and adequately documented.”) (citation omitted).

The SSA decision set aside in Information Sciences disagreed with the majority recommendation of the SSEB. Here, in contrast, the SSA adopted the SSEB report in full. The government and intervenor both attempt to distinguish Information Sciences on that basis, arguing that the SSA is required to document its independent judgment and any business judgments or tradeoffs only when it disagrees with the recommendation of the SSEB or other lower-level evaluators. See Def.’s Reply at 5 (asserting that the SSA was not required to provide separate documentation of its decision because it concurred with the recommendation of the SSEB); Akal’s Reply at 5 (asserting that the SSA is required to “separately articulate only those areas, if any, in which the SSA disagrees with the recommendation of the SSEB”). There is no basis in FAR 15.308 for the distinction proposed by the government and intervenor, nor does such a distinction find solid footing in logic. FAR 15.308 does not state that “the SSA may use reports and analyses prepared by others,” only when it agrees with the SSEB recommendation, nor does it require that the SSA document its independent decision only when it disagrees with the SSEB recommendation. Rather, the express language of the FAR requires the SSA to exercise independent judgment and document that judgment in every best-value procurement, regardless of whether it agrees with the recommendation of the SSEB.

In fact, the requirement that the SSA document its independent judgment is even more important when it agrees with the SSEB. When the SSA declines to adopt a recommendation from the SSEB, that disagreement suggests that the SSA has exercised independent judgment, rather than just rubber-stamping the decision of the SSEB. When the SSA agrees with the SSEB, on the other hand, there is an increased risk that the SSA has not exercised its independent judgment as required under FAR 15.308. Unless the SSA documents the basis of its agreement or disagreement with the SSEB, it is impossible to confirm that the decision was the product of the SSA’s independent judgment.

The precise requirements for a source selection decision that complies with FAR 15.308 will depend on the circumstances of the case, and the reasonableness of the reports and other materials upon which the SSA relies in reaching its decision. In Information Sciences, this court described what might be viewed as the sine qua non of an adequate source selection decision under FAR 15.308:

The SSA could have met the FAR requirement by stating: I agree with the Minority Report because of reasons X, Y, Z. Instead, the SSA wrote, “The SSA . . . agrees with the minority reports, and that the proposals received from ISC Corporation and Symplicity Corporation be considered acceptable.”

73 Fed. Cl. at 121 (emphasis in original). In short, the SSA must document the rationale for its decision. Here, the SSA should have explained why the FirstLine proposal was not worth its higher price, notwithstanding its substantial technical superiority.

The source selection decision statement here is nothing more than the unsupported adoption of the SSEB report, along with a conclusory assertion that intervenor’s proposal represents the best value to the government. The court has held that the SSEB failed to perform a proper best-value tradeoff analysis. The> court further holds that the SSA’s adoption of the flawed SSEB recommendation does not show that the SSA conducted a comparative assessment of proposals, in this case a best-value determination, as required by the RFP. Furthermore, the documentation requirements of FAR 15.308 were not satisfied by the SSA in this procurement. In so holding, the court has essentially set forth the core of its ruling in this case, i.e., that the source selection decision in this procurement, as manifested in the SSEB report and the SSA’s award decision, was fatally flawed and cannot stand.  (FirstLine Transportation Security, Inc. v. U. S. and Akal Security, Inc., No. 11-375C, September 27, 2011)  (pdf)


On July 23, 2009, plaintiff, PlanetSpace Inc. (“PlanetSpace”), filed this post-award bid protest, alleging six counts of error in a negotiated procurement by the National Aeronautics and Space Administration (“NASA”) for cargo transportation services to the International Space Station (“ISS”). The procurement concluded with NASA’s decision to award contracts to the two intervenors, Space Exploration Technologies Corporation (“Space-X”) and Orbital Sciences Corporation (“Orbital”), but not to plaintiff. Through a prior opinion and order, the court held in favor of defendant on counts (3)–(6) of the complaint, but withheld judgment on counts (1)–(2) pending a remand to NASA for additional explanation of the grounds for the agency’s award decision. See PlanetSpace, Inc. v. United States (“PlanetSpace I”), 92 Fed. Cl. 520, 549 (2010). On May 3, 2010, pursuant to the court’s remand order, defendant submitted this additional explanation in the form of a sworn declaration from NASA’s Source Selection Authority (“SSA”).

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Ultimately, the SSA concluded that it was in NASA’s best interests to award two contracts. AR 5181. Because Space-X’s proposal was the best in both price and mission suitability, no trade-off analysis was necessary in selecting Space-X as one of the two contract-awardees. Id. However, having concluded that Orbital’s proposal offered superior mission suitability but at a higher price than plaintiff’s proposal, the SSA was required by the RFP to conduct a trade-off analysis in order to determine which of the two proposals provided the best value. See AR 2089; supra note 3. The SSA’s only explicit documentation of his trade-off analysis was the following single paragraph in the source selection statement:

I concluded the proposal from Orbital was superior due to the serious Management risks inherent in PlanetSpace’s proposal: however, I recognized PlanetSpace had a lower overall price than the Orbital proposal. I had reservations with regard to PlanetSpace’s ability to successfully address the technical challenges associated with its proposal given the risks I identified in its Management approach. Although I recognized the evaluation criteria provided that Mission Suitability was more important than price, I could not conduct [a] “typical” trade-off analysis since I believed there was a low likelihood PlanetSpace could perform the contract.

AR 5181. On that basis, the SSA selected Orbital to be the second contract-awardee. Id. And on the same day that the SSA issued his source selection decision, the contracting officer awarded contracts to Space-X and Orbital. AR 5252–53.

B. The Remand to NASA

After an unsuccessful protest at the United States Government Accountability Office (“GAO”), PlanetSpace, Inc., B-401016 et al., 2009 CPD ¶ 103 (Comp. Gen. Apr. 22, 2009), plaintiff filed the instant complaint, alleging six counts of error in the ISS-CRS procurement, Compl. ¶¶ 46–106. As noted above, the court previously held in favor of defendant on counts (3)–(6). See PlanetSpace I, 92 Fed. Cl. at 533–41, 549. However, the court concluded that an irresolvable ambiguity in the SSA’s source selection statement precluded judgment on the first two counts of the complaint, see id. at 542–49, wherein plaintiff alleges that the SSA rejected its proposal based upon (1) a de facto non-responsibility determination, Compl. ¶¶ 46–61, and (2) a legally deficient trade-off analysis, id. ¶¶ 62–70.

On the one hand, it appeared to the court that the SSA “conducted and documented a sufficient, albeit atypical, trade-off analysis,” one that fully supported his decision “in light of the risks inherent in plaintiff’s proposal and the high-risk, critical nature of the procurement.” PlanetSpace I, 92 Fed. Cl. at 547. In particular, the court recognized that the contract-awardees would be “expected to deliver such necessary cargo as air, food, clothing, medicine [and] spare parts to the ISS,” and that “the chance of successful contract performance [was] relatively low for all of the competing proposals.” Id. at 545 (alteration in original) (citations and internal quotation marks omitted). Furthermore, notwithstanding the brevity of the SSA’s explicit documentation of his trade-off analysis, “the SSA repeatedly articulated concerns about the nature and degree of risk posed by plaintiff’s proposal” relative to Space-X and Orbital’s proposals. Id. at 544. As such, the court concluded, “in the SSA’s considered judgment, the balance of the trade-off between Orbital’s and plaintiff’s proposals may well have weighed heavily and patently against plaintiff, despite plaintiff’s self-described ‘whopping’ price advantage.” Id. at 545.

On the other hand, some portions of the SSA’s source selection statement “arguably questioned plaintiff’s ability to perform the proposed contract,” i.e., plaintiff’s responsibility as a contractor, “not merely the soundness of [plaintiff’s] proposal itself.” Id. Particularly beguiling was the SSA’s statement that he “could not conduct [a] ‘typical’ trade-off analysis since [he] believed there was a low likelihood PlanetSpace could successfully perform the contract.” Id. at 541, 546 (quoting AR 5181). The court’s “concerns about a [possible] de facto non-responsibility determination [were] heightened” due to the SSA’s receipt of a draft copy of the pre-award survey report, an apparent violation of NASA regulations. Id. at 547 (citing NASA FAR Supplement (“NFS”) 1809.106-1).

The court was thus “faced with two competing interpretations of the SSA’s source selection” statement: one interpretation favored plaintiff, while the other favored defendant. Id. Unable to resolve this ambiguity based upon the record before it, the court remanded the matter to NASA in order for “the SSA to provide a sworn statement, making explicit and unambiguous the trade-off analysis that he believed was implicit in his source selection” statement. Id. at 549 (citing Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 744 (1985) (“[I]f the reviewing court simply cannot evaluate the challenged agency action on the basis of the record before it, the proper course, except in rare circumstances, is to remand to the agency for additional investigation or explanation.”)).

Pursuant to the court’s remand order, defendant submitted a sworn declaration from the SSA on May 3, 2010. See Decl. of William H. Gerstenmaier, May 3, 2010 (“SSA Decl.”), ECF No. 95. The content and import of that declaration are the focus of the court’s present analysis. See infra Discussion. Following submission of the SSA’s declaration, the court afforded the parties the opportunity to file supplemental memoranda that “address the SSA’s declaration, including whether, in light of the declaration, any issues remain for the court to decide.” Scheduling Order, May 10, 2010, ECF No. 97.

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D. Plaintiff’s Challenges to the SSA’s Declaration

All the same, and somewhat incredibly, plaintiff asserts that the SSA’s “declaration confirms that the agency did not conduct the required trade-off analysis and instead made an impermissible [non-]responsibility determination.” Pl.’s Supplemental Mem. at 2 (emphasis added). Specifically, plaintiff argues that the declaration fails to “demonstrate that the [SSA’s] evaluation and assessment of PlanetSpace was not influenced by the information” in the pre-award survey report. Id. at 8. Plaintiff also posits that the SSA’s declaration merely “re-cast[s] what were clearly statements regarding PlanetSpace’s ability to carry out the contract (i.e., responsibility evaluations) into statements regarding alleged deficiencies in PlanetSpace’s proposal.” Id. at 4. According to plaintiff, the SSA attempts this “transmutation through the simple expedient of substituting the term ‘proposal’ where . . . the [s]ource [s]election [s]tatement employed [the term] ‘PlanetSpace.’” Id. Plaintiff concludes that the SSA’s declaration is a “post hoc rationalization” that “cannot reasonably be seen as ‘consistent’” with the source selection statement and “should not be given any weight.” Id. at 5. Yet plaintiff’s attempt to discredit and even dismiss entirely the SSA’s declaration is based upon a misapprehension of law, an elevation of form over substance, and unfounded insinuations of bad faith.

To address the last defect in plaintiff’s position first, the SSA explicitly states that his declaration “reflect[s] [his] considerations of the evaluation record prior to making [his] selection decision,” SSA Decl. at 1 (emphasis added), and “declare[s] under penalty of perjury that the information stated [t]herein is true and correct to the best of [his] knowledge,” id. at 5. These categorical statements by the SSA, made under oath, only augment the strong presumption of regularity and good faith to which procurement officials are ordinarily entitled. See Am-Pro Protective Army, Inc. v. United States, 281 F.3d 1234, 1239–41 (Fed. Cir. 2002); Aero Corp. v. United States, 38 Fed. Cl. 408, 413 (1997). Thus, to the extent that plaintiff insinuates that the SSA has deliberately mischaracterized his trade-off analysis and evaluation of proposals, see Pl.’s Supplemental Mem. at 4–5, the court can give such insinuation no weight absent “clear and convincing evidence,” Am-Pro Protective Army, 281 F.3d at 1239–40. Yet plaintiff offers nothing in support of that insinuation save its own conviction. See, e.g., Pl.’s Supplemental Mem. at 4–5.
Equally misguided is plaintiff’s attempt to discredit the SSA’s declaration based upon the SSA’s access to the pre-award survey report. See id. at 7–10; Pl.’s Consol. Resp. to Def.’s, Orbital’s, and Space-X’s Supplemental Mems. (“Pl.’s Supplemental Resp.”) at 5–6. To be sure, this fact heightened the court’s prior concern that the SSA might have made a de facto non-responsibility determination. PlanetSpace I, 92 Fed. Cl. at 547. However, any prior “inference” that the SSA considered the contents of the pre-award survey report, see Pl.’s Supplemental Mem. at 9, must yield to the SSA’s express statement in his declaration, made under penalty of perjury, that he “did not consider or rely on any of [the] contents” of the pre-award survey report “in making [his] selection decisions,” SSA Decl. ¶ 15.

More to the point, the court’s concerns, prior to remand, stemmed first and foremost from the ambiguity in the SSA’s source selection statement. See PlanetSpace I, 92 Fed. Cl. at 544–47. The SSA’s access to the pre-award survey report was merely circumstantial evidence tending to favor one of “two competing interpretations” of that document, specifically, that the SSA may have rejected plaintiff’s proposal based upon a de facto non-responsibility determination. Id. at 547. As explained above, the SSA’s post-remand declaration fully resolves that ambiguity in favor of the opposing interpretation, specifically, that the SSA rejected plaintiff’s proposal based upon a legally sufficient and carefully conducted trade-off analysis. Therefore, to the extent that the SSA’s access to the pre-award survey report was a violation of NASA regulations, see NFS 1809.106-1, NFS 1809.106-70, the court concludes that the violation was harmless.

Finally, plaintiff argues that the SSA’s declaration merely “recasts” prior responsibility evaluations into evaluations of plaintiff’s proposal, and that the declaration otherwise fails “to address the [purportedly] myriad additional responsibility assessments” in the SSA’s source selection statement. Pl.’s Supplemental Mem. at 4–6. Plaintiff describes this as “quintessential post hoc rationalization” and a source of decided inconsistency between the SSA’s declaration and the source selection statement. Id. at 5. Yet, in making these arguments, plaintiff misapprehends two critical points of law.

First, plaintiff continues to overlook the “fine, but important distinction” in procurement law, PlanetSpace I, 92 Fed. Cl. at 545, between evaluating the soundness of an offeror’s proposal and evaluating the offeror’s ability to perform the proposed contract. Only the latter evaluation goes to the contractor’s responsibility. See FAR 9.104-1. Thus, some of the purported responsibility evaluations that plaintiff quotes from the SSA’s source selection statement are nothing of the sort. A salient example is the SSA’s conclusion that “the considerable risk inherent in PlanetSpace’s [m]anagement approach made the likelihood of successful performance of this proposal remote.” AR 5177. Plaintiff contends that this was “clearly” a responsibility evaluation rather than an assessment of a deficiency in plaintiff’s proposal. Pl.’s Supplemental Mem. at 4. Yet the converse is manifestly true: the RFP specified “[m]anagement [a]pproach” as one of three mission suitability subfactors to be used in the comparative evaluation of proposals. AR 2089, 2091. Thus, any statements concerning plaintiff’s management approach—whether those statements appear in the source selection statement or in the SSA’s declaration—are evaluations of plaintiff’s proposal, not plaintiff’s responsibility as a contractor, whatever the precise phraseology. See Pl.’s Supplemental Mem. at 5 (reproving the “minor shift in phraseology” between the source selection statement and the SSA’s declaration).

Second, and more importantly, plaintiff misapprehends the law to contend that the SSA’s arguable reliance on responsibility criteria in evaluating and rejecting plaintiff’s proposal automatically amounted to a de facto non-responsibility determination. See Pl.’s Supplemental Mem. at 5–6. As explained above, it is well established that the use of traditional responsibility criteria as part of a comparative evaluation of proposals is permissible. See, e.g., YRT Servs. Corp., 28 Fed. Cl. at 394–95; Zolon Tech, Inc., 2007 CPD ¶ 183, at *6. Indeed, the RFP in this case expressly provided that an offeror’s past performance record—a responsibility criterion under FAR 9.104-1(c)—was to be considered as part of the comparative evaluation of proposals, AR 2090. Therefore, to reiterate, a de facto non-responsibility determination is made only if and when the consideration of responsibility criteria precludes a trade-off or other comparative analysis. See PlanetSpace I, 92 Fed. Cl. at 546; Capitol CREAG LLC, 2005 CPD ¶ 31, at *5 n.6.

For that reason, the SSA’s unfavorable assessment of plaintiff’s proposal based upon arguable responsibility criteria was not, in and of itself, troubling to the court prior to remand. See PlanetSpace I, 92 Fed. Cl. at 545–47. Rather, the “key inquiry” was, and remains, whether the SSA “performed a proper trade-off analysis at all.” Id. at 546. It is that narrow inquiry to which the ambiguous and somewhat cryptic source selection statement yielded no answer. See id. at 547.

The SSA’s post-remand declaration supplies the answer by confirming that the SSA’s decision to reject plaintiff’s proposal was grounded upon a properly conducted trade-off analysis. The SSA’s critiques of plaintiff’s proposal based upon arguable responsibility criteria, see id. at 545–47, were thus made in service, rather than to the preclusion, of a comparative evaluation of the offerors’ proposals. As a matter of law, those critiques—now viewed in proper context—did not amount to a de facto non-responsibility determination. See id. at 546; Zolon Tech, Inc., 2007 CPD ¶ 183, at *6; Capitol CREAG LLC, 2005 CPD ¶ 31, at *5. Therefore, contrary to plaintiff’s contention, the SSA’s post-remand declaration is perfectly consistent with the source selection statement (the contemporaneous record of the SSA’s decision).  (PlanetSpace Inc. V. U. S. and Space Exploration Technologies Corporation and Orbital Sciences Corporation, No. 09-476C, December 14, 2010)  (pdf)


B. Evaluation of Proposals

The All State proposals were evaluated by the All State SSEB, which was established in accordance with the Source Selection Evaluation Plan (“SSEP”).

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B. The Decision To Re-Evaluate GCC’s Proposal Was Not Arbitrary and Capricious in the Unique Circumstances of this Procurement

GCC contends that the agency’s decision to re-evaluate its proposal was arbitrary and capricious and amounted to an abuse of discretion. GCC argues first and foremost that the SSA abused his authority by ordering a re-evaluation of the All State ratings based on the information he had received regarding the Florida ratings. GCC contends that the SSA had to confine his review of the All State ratings to the information contained within the “four corners” of the All State proposals and could not look at outside information during his evaluation and selection process. A review of the record, however, reveals that under the terms of the SSEP in this case, the SSA was authorized to consider information outside the four corners of the proposals. Thus, the SSA’s decision to re-evaluate certain proposals was not improper in this context. In addition, the court finds that the information that was considered by the SSA was proper.  

To begin, the SSEP for the All State solicitation provides that “any information that pertains to factors/sub-factors to be evaluated is germane and may be used in the evaluation process.” AR 50 (emphasis added). The SSEP further provides that “[d]uring past performance evaluation, the Government reserves the right to look outside of the proposals for past performance information of the offeror. The Government will consider information submitted by the offeror, as well as any other relevant and reliable information obtained from any other source. . . .” AR 72-73 (emphasis added). Thus, in this case, by the terms of the solicitation, the SSA was authorized to consider relevant information from the Florida SSEB in considering the ratings by the All State SSEB. In this connection, the court notes that in similar circumstances involving multiple contracts for the same services, it is recognized that information related to concurrent proposals by the same offeror may be considered. See Ashbritt, 87 Fed. Cl. at 350-51 (acknowledging that where a solicitation imposed geographic limitations on the award of multiple contracts under one solicitation, the agency could look to offerors’ concurrent proposals).

Given that the SSEP granted the SSA the authority to look at germane information outside the four corners of the proposal, the court does not find that he was arbitrary or capricious in considering the ratings of the Florida SSEB in his evaluation of the All State ratings. Certainly the information from the Florida SSEB was “germane” and “relevant” to the All State evaluation because it suggested that the All State SSEB could have been improperly applying the evaluation criteria. Given this provision in the SSEP and the wide discrepancy among the ratings, the SSA did not act arbitrarily or capriciously in ordering a re-evaluation. GCC’s contention that the SSA impermissibly interjected himself into the decision making process is without merit. Under the SSEP, the SSA’s duties included “[e]nsur[ing] that the evaluation of proposals is consistent with the SS[E]P and the requirements of the RFP” and “[p]rovid[ing] the SSEB with guidance and special instructions for conducting the evaluation and selection process.” AR 46. The decision to order a re-evaluation under more clearly-explicated criteria was within the scope of these duties. Therefore, the decision to request the SSEBs to re-examine their ratings was not an abuse of discretion.  (GCC Enterprises, Inc.,  v. U. S. and Ironclad Services, Inc., No. 09-465C, December 23, 2009) (pdf)


Now, to the merits. The SSA was responsible for making a Final Source Selection Decision awarding the contract to the “responsible Offeror whose proposal results in the best value to the Government.” AR at 1472 (emphasis added). The SSA compared the SEB Final Findings regarding both the WSI and CIS proposals. Id. at 26642-43. The SSA, however, mistakenly afforded more weight to CIS’s “continuous improvement plan,” than WSI’s similar plan. Id. at 26642, 26434. Accordingly, the court has determined that the SSA’s resulting conclusion that the “Mission Suitability” Factor between WSI’s and CIS’s proposals “was basically equal,” ipso facto was “arbitrary and capricious.” In contrast, the SSA’s conclusion that, although WSI had a “marginal advantage” as to the “Past Performance” Factor, WSI and CIS “could perform the contract effectively since both had successfully performed Government contracts directly related to the NPSC” was supported by the Administrative Record. Id. at 26643.

The SSA’s dispositive error, however, was that the SSA determined that “a trade-off analysis was required, since the SEB gave [WSI] a slightly higher Mission Suitability score and more significant strength than [CIS],” yet the SSA’s Final Source Selection Decision contains absolutely no discussion about the relevant factors of that trade-off analysis. See AR at 26643; see also Serco, Inc. v United States, 81 Fed. Cl. 463, 497 (2008) (holding that “generalized statements that fail to reveal the agency’s tradeoff calculus deprive this court of any basis upon which to review the award decisions.”).  (Wackenhut Services, Inc., v. U. S. and Coastal International Security, No. 08-660C, December 15, 2008) (pdf)


2. The New Source Selection Authority’s September 13, 2007 Source
Selection Decision.

a. “Best Value” Analysis Did Not Comply With FAR 15.101 And
FAR 15.308.

FAR 15.308 provides, in relevant part, that the Source Selection Decision “be based on a comparative assessment of proposals against all source selection criteria in the solicitation.” 48 C.F.R. § 15.308. In addition, FAR 15.101, the regulation governing “best value” procurements, provides:

An agency can obtain best value in negotiated acquisitions by using any one or a combination of source selection approaches. In different types of acquisitions, the relative importance of cost or price may vary. For example, in acquisitions where the requirement is clearly definable and the risk of unsuccessful contract performance is minimal, cost or price may play a dominant role in source selection. The less definitive the requirement, the more development work required, or the greater the performance risk, the more technical or past performance considerations may play a dominant role in source selection.

48 C.F.R. § 15.101 (emphasis added).

The United States Court of Appeals for the Federal Circuit has held that a “best value” determination “grounded in reason” generally must be afforded considerable discretion. See Grumman Data Sys. Corp. v. Navy, 88 F.3d 990, 995-96 (Fed. Cir. 1996); see also Galen Med. Assocs., 369 F.3d at 1330 (“[A]s the contract was to be awarded based on ‘best value,’ the contracting officer had even greater discretion . . . the relative merit of competing proposals is primarily a matter of administrative discretion.”) (citations omitted). “Best value” decisions, however, must be conducted according to the criteria established in the Solicitation and FAR. See Banknote Corp., 365 F.3d at 1355 (“It is well-established that contracting officers have a great deal of discretion in making contract award decisions, particularly when . . . the contract is to . . . provide the agency with the best value. The issue here is whether the contracting officer acted within the scope of that discretion.”) (emphasis added) (citations omitted). In the prior protest, ISC and DEVIS challenged the procedure by which the SSA conducted the “comparative assessment.” In this protest, ISC and DEVIS challenge the new SSA’s failure to adhere to the Solicitation’s Source Selection Criteria in issuing the September 13, 2007 revised Source Selection Decision and re-awarding the FBO contract to Symplicity. See, e.g., Int. Mem. II at 27 (“In this case, the SSA did violate FAR 15.308 because there is no evidence in the record that the SSA adhered to the either of the two critical evaluation rules[.]”).

The Solicitation lists four “Evaluation Factors:”

A. Technical Proposal, Volume 1, Evaluation Factors

1. Technical Approach

2. Management Approach

3. Past Performance

4. Key Personnel Staffing and Experience

B. Oral Presentation and Operational Capability Demonstration (OCD) (will be performed after the competitive range is set and is an extension of the Technical Proposal)

C. Price Analysis (Separate from Technical and Incentive Plan Analysis)

D. Incentive Plan Analysis (Separate from Technical and Price Analysis)

The technical proposal, which includes the oral presentation and operational capabilities demonstration (OCD) will be evaluated and rated.

AR 257-58 (RFP § M.2).

The Solicitation also describes the “relative importance” of each of the aforementioned “Evaluation Factors,” and emphasizes that all “technical evaluation proposals, when combined, are significantly more important than price and incentive plan [factors].” AR 258-65 (RFP § M.2) (emphasis added). In addition, the Solicitation states that “if technical evaluations are close, [then] the price analysis and incentive plan analysis will take on more importance.” AR 258. Of the five Subfactors for the Technical Proposal Factor, Technical Approach was the most important, followed by Management Approach, Past Performance, Key Personnel Staffing and Experience. Id. The Administrative Record evidences a significant contrast between the technical evaluations of DEVIS, Symplicity, and ISC. The new SSA recognized that DEVIS “was the only technical proposal where there was a consensus of excellent or acceptable on all evaluation factors,” including strength in “technical software and hardware architecture, data archival strategy, features and functionality, understanding of the issues, and transition plan.” AR 2560 (Sept. 13, 2007 Source Selection Decision). In fact, DEVIS’s proposal was “uniformly rated ‘Excellent’ with ‘Significant Confidence.’” Id. Although the Minority Report identified some “weaknesses” in DEVIS’s proposal, almost all were expressly characterized as being “minor.” See AR 856-74. In contrast, the Majority Report rated Symplicity’s technical proposal as “Unacceptable,” with a “Little Confidence” risk rating, concluding that:

The amount of resources to adequately manage and provide transition, maintenance, and support has been grossly underestimated by Symplicity and presents a significant risk of unsuccessful contract performance. Symplicity’s technical approach is acceptable, but the government is acquiring a contractor for comprehensive development, implementation, transition, operations and support for a new FBO system, and the Symplicity proposal is too vague in key areas and too lightly staffed in areas that are crucial to the introduction of new techniques and interfaces. The performance risk is rated as unacceptable.

AR 813 (April 5, 2005 Majority Technical Report: Symplicity) (emphasis added).

On the other hand, while the Minority and Mitretek Reports concluded that Symplicity’s proposal was “Acceptable,” both expressed concern that:

Symplicity proposes FBO with very little staff support and has probably proposed the minimum feasible staffing . . . . [A] question remains whether Symplicity has enough staff resource allocated to its transition and ongoing program support efforts. Outreach and training look to be severely understaffed during initial transition . . . . Most implementation activities have relatively little staff resource allocated indicating that Symplicity does not expect significant efforts in any of those tasks. Ongoing operations staffing also appears minimal . . . . Based on the information provided and the interpretations and conclusions drawn, the minority opinion-holders believe the aggregate hours available are the absolute minimum to support Symplicity’s planned approach. It is possible that they have understated their proposed hours . . . . The minority opinion holders agree with the majority opinion which states, “Outreach and training during the initial transition are well described but staff sources explicitly assigned to activities associated with outreach and training appear inadequate for the level of activity proposed” . . . . As stated elsewhere, there is concern about Simplicity not having identified any labor hours specifically assigned to outreach and training in years 2 through 8.

AR 719, 964, 971-72, 975, 986 (emphasis in original).

The Majority Report rated ISC’s technical proposal as “Marginal” with “Little Confidence,” the Minority Report rated ISC as “Acceptable” with “Confidence,” and the Mitretek Report rated ISC as “Acceptable.” See AR 2560, 2563. Therefore, ISC’s proposal was rated higher overall than Symplicity’s. The new SSA, however, erroneously concluded that “ISC and Symplicity both received similar technical adjectival ratings.” AR 2561 (emphasis added). First, the new SSA was not authorized to change the ratings of the Technical Team. The new SSA’s job was to compare the existing technical ratings of the technical professionals with the price analysis and incentive plan analysis and conduct a “best value” analysis. See AR 265 (RFP § M.8) (“Once the technical proposals have been evaluated and a consensus adjectival and confidence ratings are assigned, the rated technical proposals shall then be compared to the price analysis and incentive plan analysis for each proposal, to complete a best value determination for the Government.”). In making his own independent assessment of the technical ratings, the new SSA reached a conclusion that is not supported by the record:

The following chart sets forth the relevant final “adjectival ratings:”

 

Majority Report

 
Offeror Adjectival Rating Confidence Rating
DEVIS Excellent Significant Confidence
ISC Marginal Little Confidence
Symplicity Unacceptable Little Confidence

AR 1189, 2563 (emphasis added).

 

Minority Report

 
Offeror Adjectival Rating Confidence Rating
DEVIS Excellent Significant Confidence
ISC Acceptable Confidence
Symplicity Acceptable Confidence

Id.

 

Minority Report

 
Offeror Adjectival Rating Confidence Rating
DEVIS Excellent N/A
ISC Acceptable N/A
Symplicity Acceptable N/A

Id.

The new SSA’s misperception of the technical ratings of ISC and Symplicity is even more apparent when the Majority Report’s textual explanation is reviewed. Compare AR 774 (April 5, 2007 Final Technical Assessment Report Summary for ISC) (“ISC’s proposal can be expected to produce a result that is very similar to the existing FBO. The new functionality . . . includes features that, while improving the current FBO system, are generally considered standard in contemporary web applications.”) (emphasis added); with AR 813 (April 5, 2007 Final Technical Assessment Report Summary of Symplicity) (“Symplicity had proposed to build an application, install it on servers, keep the servers running, and answer the Help Desk phones. There is little to no support for outreach, training, or agency transition to a significantly different FBO. The amount of resources to adequately manage and provide transitions, maintenance, and support has been grossly underestimated . . . and presents a significant risk of unsuccessful contract performance.”) (emphasis added). Therefore, contrary to the SSA’s assertion, ISC’s overall technical ratings and capabilities were superior to Symplicity’s. See AR 1189-90, 2561. The SSA’s error tainted the “best value” analysis, because the trade off among price and noncost factors was made assuming the offerors’ technical ratings were ranked as follows:

  DEVIS  
ISC   Symplicity

Instead, the new SSA should have conducted the “best value” analysis with the offerors ranked as follows:

DEVIS

ISC
Symplicity

In addition, the new SSA disregarded the Solicitation’s directive to place significantly more weight on all technical evaluation factors than on price and “incentive plan” and, instead, accorded equal or greater weight on price. Compare AR 258 (RFP § M.2) (all “technical evaluation proposals, when combined, are significantly more important than price and incentive plan [factors].”) with AR 2561-62 (Sept. 13, 2007 Source Selection Decision) (“A trade-off for the non-cost factors does not justify DEVIS’s price premium whether compared to ISC or the Symplicity proposal . . . . The strengths of ISC’s proposal do not outweigh the strengths, innovative approach, and lower price of the Symplicity proposal, and the Government will not receive [deleted] in benefits from ISC.”) (emphasis added); 11/29/07 TR at 56-57 (DEVIS’S COUNSEL: “[T]his was supposed to be a procurement to procure a premium federal acquisitions system . . . . They converted this to a low cost procurement. That’s the bottom line.”).

Section C.3.3 of the Solicitation also requires that “[t]he offeror shall provide a system . . . that . . . [p]lan[s] for and accomplish[es] a seamless system transition from the current FBO system to the offeror’s proposed FBO system[.]” AR 198-99 (emphasis added). The significant transition and staffing risks associated with Symplicity’s proposal alone indicated that it failed to meet the minimum requirements necessary for selection here.25 See AR 971 (April 6, 2005 Minority Report Technical Report: Symplicity) (“[S]taff sources explicitly assigned to activities associated with outreach and training appear inadequate for the level of activity proposed.”) (emphasis in original).

For these reasons, the court has determined that the new SSA improperly re-evaluated ISC’s and Symplicity’s technical ratings, which tainted the “best value” analysis, and did not comply with the evaluation criteria set forth in the Solicitation in violation of FAR 15.101 and FAR 15.308. See Banknote Corp., 365 F.3d at 1355 (“It is well-established that contracting officers have a great deal of discretion in making contract award decisions, particularly when . . . the contract is to . . . provide the agency with the best value. The issue here is whether the contracting officer acted within the scope of that discretion.”) (emphasis added) (citations omitted); see also Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 42 (1983) (“[T]he 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 . . . . In reviewing that explanation, we must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.”) (emphasis added) (internal citation and quotation omitted). To the extent there is a conflict between the language of Section M.2 of the Solicitation, emphasizing the importance of the technical evaluation over both price and incentive plan factors (AR 258), with Section M.8 advising that FAR 15.101 permits a tradeoff of cost and non-cost factors that “allows the Government to accept other than the lowest price proposal or highest technical proposal” (AR 265), the conflict must be reconciled to favor the more specific instruction in Section M.2. See Hills Materials Co. v. Rice, 982 F.2d 514, 517 (1992) (“Where specific and general terms in a contract are in conflict, those which relate to a particular matter control over the more general language.”) (citation omitted); see also RESTATEMENT (SECOND) OF CONTRACTS § 203(c) (1981) (“specific terms and exact terms are given greater weight than general language”); Id. § 202(1) (“[I]f the primary purpose of the parties is ascertainable it is given great weight.”); AR 197 (RFP § C.1 (“Purpose”)) (emphasizing importance of technical solutions) (“Offerors are encouraged to propose creative, innovative solutions that deliver the required functionality without the constraints of the current system and exceed cited requirements and capabilities so that the government may obtain the best value.”) (emphasis added). Both ISC and DEVIS were prejudiced by these errors. See Bannum, 404 F.3d at 1358 (“To establish prejudice [the plaintiff] was required to show that there was a ‘substantial chance’ it would have received the contract award but for . . . errors in the bid process.”); see also Statistica, 102 F.3d at 1581 (“To establish competitive prejudice, a protestor must demonstrate that but for the alleged error, there was a ‘substantial chance’ that [it] would receive an award-that is was within the zone of active consideration.”) (internal citations omitted) (emphasis and alterations in the original). If the SSA had appropriately weighed technical ratings and risks in the Source Selection Decision, as required by the Solicitation, Symplicity likely would have been eliminated and ISC and DEVIS, as the two remaining offerors, would have had a “substantial chance” of winning the award. See Bannum, 404 F.3d at 1351. (Information Sciences Corp., Gallagher, Hudson, & Hunsberger, Inc. (d/b/a Development InfoStructure or DEVIS)  v. U. S. and Symplicity Corporation, No. 07-744, March 18, 2008) (pdf)


The court assumes, without deciding, for the purposes of this opinion, that JANTEC was improperly included in the cost/technical tradeoff with Ferguson. Even assuming that JANTEC’s proposal should have been, and was, excluded from the cost/technical tradeoff analysis, however, the government was under no obligation to conduct a cost/technical tradeoff analysis that included IPM. The government, therefore, did not act arbitrarily, capriciously, or contrary to law by failing to conduct a cost/technical tradeoff analysis between IPM and Ferguson. It is well settled that the government is only required to make a “cost/technical tradeoff . . . where one proposal is rated higher technically than another, but the other is lower in cost.” State Mgmt. Servs. Inc., B-255,528 Comp. Gen., 1995 WL 19600 at *5. See Gulf Group, Inc. v. United States, 56 Fed. Cl. 391, 399 (2003); Joint Threat Services, B-278,168 Comp. Gen., 1998 WL 23073 at *10. In the present case, the government only made a cost/technical tradeoff between JANTEC and Ferguson because Ferguson received a higher technical rating than JANTEC, while JANTEC’s price was lower. Therefore, the government correctly determined that a cost/technical tradeoff analysis was only required to compare JANTEC’s lower price proposal with Ferguson’s proposal. Had JANTEC not been included in the consideration, the government would not have been required to make such a tradeoff between Ferguson and IPM. IPM’s higher cost proposal was not ranked superior to Ferguson’s proposal. To the contrary, Ferguson received higher ratings than IPM in three out of four parts of the Technical Subfactor. In the end, both Ferguson and IPM received the same “good” rating. The government, therefore, did not act arbitrarily, capriciously, or contrary to law when it failed to conduct a cost/technical tradeoff analysis between IPM and Ferguson.  (Industrial Property Management, Inc., v. U. S., No. 03-2500C, January 13, 2004 (Originally filed December 18, 2003)  (pdf)

U. S. Court of Federal Claims - Listing of Decisions
For the Government For the Protester
Spectrum Comm, Inc.’s v. U. S. and  Jacobs Technology, Inc., No. 16-348C May 26, 2016  (pdf) Braseth Trucking, LLC and Corwin Company, Inc. v. U. S., No. 15-837C/15-844C December 14, 2014  (pdf)
Bahrain Maritime & Mercantile International BSC(C) v. U. S. No.14-720C, October 21, 2014  (pdf) FCN, Inc. v. U. S., No. 13-616C, April 4, 2014  (pdf)
One Largo Metro, LLC v. U. S., No. 12-501C, February 21, 2013  (pdf)  (This is a 93-page opinion about a source-selection.  It has numerous citations to other cases and there are no redactions to the information) Standard Communications, Inc. v. U. S. and CACI-ISS, Inc., HP Enterprise Services, LLC., Science Applications International Corporation, No. 11-530C, November 22, 2011  (pdf)
Glenn Defense Marine (Asia), PTE Ltd. v. U. S. and MLS-Multinational Logistic Services Ltd., No. 11-718C, May 25, 2012  (pdf) FirstLine Transportation Security, Inc. v. U. S. and Akal Security, Inc., No. 11-375C, September 27, 2011  (pdf)
PlanetSpace Inc. V. U. S. and Space Exploration Technologies Corporation and Orbital Sciences Corporation, No. 09-476C, December 14, 2010  (pdf) Wackenhut Services, Inc., v. U. S. and Coastal International Security, No. 08-660C, December 15, 2008 (pdf)
GCC Enterprises, Inc.,  v. U. S. and Ironclad Services, Inc., No. 09-465C, December 23, 2009 (pdf) Information Sciences Corp., Gallagher, Hudson, & Hunsberger, Inc. (d/b/a Development InfoStructure or DEVIS)  v. U. S. and Symplicity Corporation, No. 07-744, March 18, 2008 (pdf)
Industrial Property Management, Inc., v. U. S., No. 03-2500C, January 13, 2004; Originally filed December 18, 2003  (pdf)  
Ryder Move Management, Inc. v. U.S. and Associates Relocation Management Co. Inc, et al, No. 00-599C, January 3, 2001 (.pdf)  
Marine Hydraulics International, Inc. v. U.S., No. 99-107C, April 27, 1999  

U. S. Court of Appeals for the Federal Circuit - Key Excerpts

 I. The Navy’s Best Value Determination Was Not Arbitrary And Capricious

“Procurement officials have substantial discretion to determine which proposal represents the best value for the government.” E.W. Bliss, 77 F.3d at 449. In this case, the Navy’s best value decision is supported by the record and well within the substantial discretion of the contracting officials. After considering all of the offerors’ proposals, references, and corrective actions, the Navy reasonably determined that an award to MLS would provide the best value. In particular, the Navy reasonably compared the negative comments in GDMA’s relevant references and GDMA’s inadequate corrective action to the reviews of MLS, which contained no negative feedback. The contracting officer determined that although there was a price difference between GDMA’s final proposal and MLS’s final proposal, MLS had superior past performance and would ultimately provide the best value to the Navy. This was consistent with the Solicitation, which expressly stated that non-price factors were significantly more important than price. Even considering price, the contracting officer reasonably found the real cost to the Navy might actually be higher if the award went to GDMA because of increased administration costs resulting from GDMA’s documented non-responsiveness in communications, late estimates, etc.5 Based on the record and recognizing the broad discretion courts afford agencies in the negotiated procurement process, the Navy’s best value determination was not arbitrary, capricious, or in violation of law.

II. GDMA’s Past Performance Evaluation Did Not Lack Rational Basis

GDMA argues that the Navy’s past performance rating of “Less than Satisfactory” is inconsistent with the record evidence because the references upon which the Evaluation Team relied all rated GDMA’s overall performance as “Satisfactory” or better. However, GDMA cites no reason why the Navy should have only considered the overall ratings and disregarded the subfactor ratings and narrative comments. The Navy’s decision was rationally based on its evaluation of all of the evidence before it. Even though each reference rated GDMA’s performance as “Satisfactory” or “Better” overall, the narrative comments detracted from those ratings. The Navy reasonably considered the entire record, including several “Less than Satisfactory” subfactor ratings and negative comments from the narrative portion of the questionnaires.

The evaluation Team’s report stated that “[o]verall, [GDMA] was less than fully cooperative and did not demonstrate a commitment to service.” Glenn Defense Marine, 105 Fed. Cl. at 554 (internal quotation marks omitted). The primary contracting officer observed that the majority of GDMA’s re-visit estimates for port visits were received late and repeatedly required corrections. He also indicated that GDMA had failed to provide force protection barriers as specified by the ships in their order. In another instance, GDMA failed to provide a pricing plan, which was necessary to insure that non-priced items were fairly and reasonably priced. Finally, the primary contracting officer noted routine delays in GDMA’s responses to questions, which “exacerbate[d] the short lead time for arranging port visit services.” Id. at 566 (internal quotation marks omitted). The Evaluation Team’s final Summary Report for GDMA indicated:

For Region 1, [GDMA’s] past performance on previously awarded relevant contracts did not meet some significant requirements. Although the offeror was generally responsive to changes in requirements, provided timely services and had reasonably good control over managing subcontractors, there were several noted deficiencies in its performance when it came to the reliability and consistency of its customer service practices, transparency in pricing and ease of communications.

Id. at 554.

Moreover, the Navy’s rating was not premised on these references alone. Before the Navy’s final rating, the Navy gave GDMA an opportunity to respond to specific concerns. GDMA acknowledged those issues and explained it had taken or was in the process of taking corrective action. The Navy conducted a follow-up review and found that these corrective actions had not adequately addressed its concerns. In considering GDMA’s corrective action in response to the negative reviews, the reviewer found GDMA’s corrective action “lacked sufficient details for the [Evaluation Team] to determine the offeror’s effectiveness in addressing the deficiencies.” Id. In sum, GDMA’s past performance record led the Evaluation Team “‘to expect marginal customer satisfaction and less than fully successful performance.’” Id. (quoting the Evaluation Team’s Summary Report).

Based upon the broad discretion courts afford agencies in the procurement process and based upon the ratings and comments in the past performance questionnaires, the analysis and review performed by the Evaluation Team and the contracting officer, as well as the discussions between GDMA and the Navy, this court cannot conclude that the overall past performance rating of “Less than Satisfactory” lacked rational basis. The Navy established a rational basis for its decision, explaining that a higher rating was not substantiated by the comments, and the agency’s reasonable interpretation of the facts is entitled to considerable deference.

III. MLS’s Past Performance Evaluation Did Not Lack Rational Basis

GDMA asserts that the Navy’s rating of MLS’s past performance as “Better” was arbitrary and capricious on the grounds that the “underlying finding” that the contracts of MLS’s subcontractors were highly relevant lacks a rational basis. GDMA asserts that the Evaluation Team could not provide a rational basis for finding the contracts performed by MLS’s subcontractors were of similar scope, magnitude, and complexity to that in the Solicitation because the record is incomplete.

The Solicitation stated that “[p]ast [p]erformance is a measure of the degree to which an offeror satisfied its customers in the past by performing its contractual obligations on relevant directly related contracts and subcontracts . . . that are similar in scope, magnitude, and complexity to that required by the solicitation. . . .” Solicitation ¶ OP-1.8.2.1. It also stated that “[i]n the case of an offeror whose past performance is somehow not similar in scope, complexity, or magnitude, or otherwise lacks relevance to some degree then the Government will take this into consideration and evaluate accordingly . . ..” Id. ¶ OP- 1.8.2.4.

MLS’s subcontracts involved husbanding services at many of the same ports covered by the Solicitation, for a variety of vessels of various sizes that “‘spend the majority of their useful life traveling from port to port,’” similar to the services required by this Solicitation. Glenn Defense Marine, 105 Fed. Cl. at 575 (quoting GAO Decision at *8). The Navy’s determination of relevance is owed deference as it is among “the minutiae of the procurement process,” which this court “will not second guess.” E.W. Bliss, 77 F.3d at 449 (finding matters such “as technical ratings and the timing of various steps in the procurement” to involve discretionary determinations); see also Linc Gov’t Servs., LLC v. United States, 96 Fed. Cl. 672, 718 (2010) (“Thus, when evaluating an offeror’s past performance, the [Source Selection Authority] may give unequal weight, or no weight at all, to different contracts when the [Source Selection Authority] views one as more relevant than another.”) (internal quotation marks and citations omitted); PlanetSpace, Inc. v. United States, 92 Fed. Cl. 520, 539 (2010) (“At the outset, it is important to note that what does or does not constitute ‘relevant’ past performance falls within ththe [Source Selection Authority’s] considered discretion.”).

Additionally, the Court of Federal Claims noted that there is no evidence that MLS’s past performance would have been evaluated any lower than “Better” if the subcontractors’ references were given less weight. The Evaluation Team’s summary report indicated that:

The offeror was very responsive to customer service issues, provided timely services, flexible when responding to changes in requirements, maintained control over managing subcontractors, was transparent in its pricing processes and was effective in communications. Overall, the offeror was very cooperative and demonstrated a commitment to customer service. There were no substantiated problems or issues documented in this past performance assessment. Therefore, based upon the offeror’s past performance record, it leads the [Evaluation Team] to expect a strong customer satisfaction and fully successful performance.

Glenn Defense Marine, 105 Fed. Cl. at 555 (quoting the Evaluation Team’s Summary Report).8 Accordingly, the Court of Federal Claims’ determination did not lack rational basis.  (Glenn Defense Marine (Asia), PTE Ltd. v. U. S. and MLS-Multinational Logistic Services, LTD., No. 12-5125, June 25, 2013)  (pdf)

U. S. Court of Appeals for the Federal Circuit - Listing of Decisions
For the Government For the Protester
Glenn Defense Marine (Asia), PTE Ltd. v. U. S. and MLS-Multinational Logistic Services, LTD., No. 12-5125, June 25, 2013  (pdf)  
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