FAR 15.303:  Evaluation team, Source Selection Plan

Comptroller General - Key Excerpts

Reevaluation after Multiple Corrective Actions

MILVETS asserts that the agency’s reevaluation is unreasonable because the evaluation differs from prior evaluations. MILVETS contends that during the first two rounds of evaluations, MILVETS’s quotation was evaluated as highly acceptable under both the technical approach and the management approach factors, yet the agency’s final evaluation rated the firm’s quotation as only acceptable under these factors. MILVETS also notes that the firm was never evaluated as having any disadvantages prior to the final round of evaluations. MILVETS argues that since the PWS has not changed from the prior rounds, and MILVETS’s technical quotation is virtually identical to its prior submissions, the changes to the evaluation ratings are improper. For the reasons explained below, we find nothing improper with the agency’s evaluations.

The fact that a reevaluation varies from a prior evaluation does not constitute evidence that the reevaluation was unreasonable. QuinetiQ North America, Inc., B‑405163.2 et al., Jan. 25, 2012, 2012 CPD ¶ 53 at 13; Sabre Sys., Inc., B‑402040.2, B‑402040.3, June 1, 2010, 2010 CPD ¶ 128 at 5 n.3. The essence of an agency’s evaluation is reflected in the evaluation record itself, not in the adjectival ratings or adjectival characterizations of proposal features as strengths or weaknesses. QinetiQ North America, Inc., supra; See Stateside Assocs., Inc., B‑400670.2, B-400670.3, May 28, 2009, 2009 CPD ¶ 120 at 8.

Here, the record demonstrates that the first two rounds of evaluations (where MILVETS was rated as highly acceptable) used the same TEP and the same SSA. Contracting Officer’s Statement at 1. During the third round of evaluations, the agency assembled a new TEP and assigned a new SSA to the procurement, which “had no knowledge of the previous panel’s evaluation ratings, advantages or disadvantages.” Id. The new panel rated MILVETS’s quotation as acceptable under the technical and management factors. AR, Tab 32, Memorandum of Source Selection Decision, Evaluation Results. For the fourth and final evaluation, the agency convened the same panel and SSA as the third round of evaluation, and this same panel again rated MILVETS’s quotation as acceptable under these two evaluation factors.

We find nothing unreasonable with the evaluators reaching different evaluation conclusions, given that the agency utilized a new evaluation panel and new SSA following the second round of evaluations. Our Office has long held that the mere fact that a reevaluation of proposals after corrective action varies from the original evaluation does not constitute evidence that the reevaluation was unreasonable, since it is implicit that a reevaluation can result in different findings and conclusions. See Marcola Meadows VA LLC, B-407078.2 et al., Jun. 4, 2013, 2013 CPD ¶ 141 at 8. In this regard, our Office has recognized that it is not unusual for different evaluators, or groups of evaluators, to reach different conclusions and assign different scores or ratings when evaluating proposals, since both objective and subjective judgments are involved. See eAlliant, LLC, B‑407332.6, B‑407332.10, Jan. 14, 2015, 2015 CPD ¶ 229 at 10.

While the protester asserts that it was incumbent upon the SSA to seek some explanation, or otherwise arrive at an understanding of the differing ratings and evaluation findings because the contracting officer (CO) has been involved with this procurement through each of the four evaluations, we disagree. Our Office has recognized, that where the same source selection official reviews conclusions by different evaluators, it is incumbent upon an SSA when confronted with 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, especially where there were significant rating differences in the respective evaluations. eAlliant, LLC, supra (sustaining the protest where the SSA was required to provide some explanation as to why the evaluation results were materially different from those reached in the prior evaluations).

Under the circumstances here, however, there is nothing in the record to indicate that the contracting officer was either a member of the TEP or otherwise associated with the evaluation of the quotations after the second round of evaluations. Accordingly, the protester’s assertion that the agency was required to explain the differing evaluation results has no merit. See Domain Name Alliance Registry, B‑310803.2, Aug. 18, 2008, 2008 CPD ¶ 168 at 11 (denying protest that agency reevaluation and technical ratings were unreasonable because agency did not explain why evaluations differed between the initial evaluation and reevaluation undertaken during corrective action); Impregilo Edilizia S.p.A., B-292468.4, Nov. 25, 2003, 2003 CPD ¶ 216 at 5 n.5 (while protester may disagree with technical rating change, its disagreement, absent factual or legal basis indicating why awardee’s rating was improper, does not present an adequate basis for protest).  (MILVETS Systems Technology, Inc. B-409051.7, B-409051.9: Jan 29, 2016)  (pdf)

IB primarily argues that the RFP did not state that the competition was limited to small businesses, or precluded other than small offerors from receiving award. The protester notes that although the RFP stated for CLIN No. 1 that “[t]he government has significant preference for small businesses over other than small businesses,” id. at 3, small business size status was not listed as a go/no-go factor in the solicitation. Instead, the protester argues, the RFP provided for a best‑value decision based on consideration of both price and socio-economic status. In response to the protest, GSA argues that the RFP, read as a whole, informed vendors that the best-value proposals would be from small business contractors. Agency’s Request for Dismissal (Sept. 16, 2014) at 3-4; Agency’s Supp. Request for Dismissal (Oct. 2, 2014) at 3-4.

Where a protester and agency disagree over the meaning of solicitation language, we will resolve the matter by reading the solicitation as a whole and in a manner that gives effect to all of its provisions; to be reasonable, and therefore valid, an interpretation must be consistent with the solicitation when read as a whole and in a reasonable manner. Alluviam LLC, B-297280, Dec. 15, 2005, 2005 CPD ¶ 223 at 2; Fox Dev. Corp., B-287118.2, Aug. 3, 2001, 2001 CPD ¶ 140 at 2.

Here, we agree with IB that the solicitation was not specifically set aside for small businesses, and also agree that an offeror’s small business status was not listed as a go/no-go evaluation subfactor. Nonetheless, we agree with GSA that the RFP specifically advised offerors of the agency’s intent to award contracts to small businesses. As discussed above, the solicitation stated that there would be a “significant preference for small businesses over other than small businesses” and that there was a “strong preference for small business participation for CLINS one, two and three.” RFP, SOW, at 3-4. Moreover, the RFP also advised that “[a]chievement of socio-economic objectives will be designated as an evaluation factor,” and further advised that the application of this evaluation factor “will result in best-value proposals being those from small business contractors.” Id. at 38.

Although the RFP did not expressly state that other than small business offerors were precluded from award, we cannot ignore the solicitation’s statement that the evaluation preference for small businesses would “result in best-value proposals being those from small business contractors.” Id. We conclude that the agency’s interpretation of the RFP, as reflected in its award decision, was consistent with the terms of the solicitation--which provided for a best‑value award decision under circumstances where only small business offerors would be found the best value.

Although we find this solicitation language concerning the best-value selection criteria somewhat unusual, we think that offerors were on notice that the agency would apply the socio-economic preference in a manner that would, effectively, preclude other than small business offerors from receiving an award. For this reason, we conclude that the plain language of the RFP, when read as a whole, and in a manner that gives effect to all its provisions, demonstrates that the agency’s award decisions were reasonable and consistent with the terms of the solicitation.

The protest is denied.  (Industries for the Blind, Inc. B-409528.35, B-409528.36: Dec 3, 2014)  (pdf)

The protester bases these challenges solely on the rating definitions included in the source selection plan, which was not provided to offerors as part of the RFP. Id. at 4. The protester does not contend that the SSEB’s technical evaluation was otherwise unreasonable.

Source selection plans provide internal agency guidelines and, as such, do not give outside parties any rights. E.g., Walsh Investors, LLC, B-407717, B-407717.2, Jan. 28, 2013, 2013 CPD ¶ 57 at 8 n.6; Mid Pacific Envtl., B-283309.2, Jan. 10, 2000, 2000 CPD ¶ 40 at 6. It is the evaluation scheme in the RFP, not internal agency documents, such as the source selection plan, to which an agency is required to adhere in evaluating proposals and in making the source selection. All Points Logistics, Inc., B‑407273.53, June 10, 2014, 2014 CPD ¶ 174 at 10 n.10; Meadowgate Techs., LLC, B‑405989, B‑405989.3, Jan. 17, 2012, 2012 CPD ¶ 27 at 6 n.7; Synergetics, Inc., B‑299904, Sept. 14, 2007, 2007 CPD ¶ 168 at 8.

Here, Epsilon’s protest allegation, based entirely on definitions included in the source selection plan, is without merit. See Comments/Supp. Protest at 4. The protester has not argued that the technical evaluation was unreasonable or inconsistent with the RFP’s evaluation criteria. The protester’s complaint does not allege that the agency violated any procurement law or regulation. Instead, Epsilon’s objection is that the SSEB’s findings under the two technical subfactors were more consistent with the source selection plan’s definition of an exceptional rating rather than the very good rating assigned. Id. at 7, 11. As stated above, the source selection plan was not provided to offerors nor was it incorporated into the solicitation. Thus, because the source selection plan here is an internal agency document that does not give rights to outside parties--contrary to the protester’s suggestions otherwise--this protest ground is denied. See Park Tower Mgmt. Ltd., B‑295589, B-295589.2, Mar. 22, 2005, 2005 CPD ¶ 77 at 6 n.5 (denying challenge based on alleged deficiency in the application of an agency’s source selection plan because such plans are internal agency instruction and do not give outside parties any rights).  (Epsilon Systems Solutions, Inc., B-409720, B-409720.2: Jul 21, 2014)  (pdf)

The agency noted that the EOHF on VIRGINIA class submarines, which has 10 connectors, is similarly identified by reference number PPD 802-6337554-8.7.1-3, and further concluded that the EOHF on VIRGINIA class submarines will not fit into the existing hole cut into the submarine sail to accommodate the EOHF on LOS ANGELES class submarines (which are the subject of this procurement). TERP Chair Declaration (July 16, 2008) para. 2. Accordingly, in the absence of further information provided by Ultra regarding the size of its “modified hybrid E/O receptacle,” the agency concluded that Ultra’s proposed 10-connector EOHF would not fit into the existing hole cut into the submarine to accommodate the EOHF described in the solicitation, and that Ultra’s proposed approach would likely require cutting a larger hole. Accordingly the agency assessed a major weakness to Ultra’s proposal based on its proposed EOHF, noting that additional engineering efforts would be required due to “platform integration impacts.” AR, Tab 2, TERP Report, at 36.

In our view, a procuring agency’s technical personnel, who are most familiar with the government’s requirements, are in the best position to make judgments regarding the methods for meeting those requirements, and this Office will not question those determinations absent a showing that they are unreasonable. In this regard, we will afford particular deference to the technical expertise of agency personnel regarding judgments that involve matters of human life and safety. E.g., American Airlines Training Corp., B-217421, Sept. 30, 1985, 85-2 CPD para. 356 at 6; Marine Transport Lines, Inc., B-224480.5, July 27, 1987, 87-2 CPD para. 91 at 4. Further, an offeror bears the burden for failing to submit an adequately written proposal, and a contracting agency is not obligated to go in search of needed information that the offeror has omitted or failed to present. E.g. Fluor Daniel, Inc., B-262051, B-262051.2, Nov. 21, 1995, 95-2 CPD para. 241 at 8.

In its comments responding to the agency report on this matter, Ultra expresses disagreement with the agency’s conclusions and asserts that it had no affirmative obligation to show the dimensions of its “modified hybrid E/O receptacle,” in its proposal. However, Ultra does not dispute the agency’s assertions regarding the similarity of its proposed EOHF to the EOHF on VIRGINIA class submarines, nor does it refute the agency’s assertion that the 10‑connector EOHF used on VIRGINIA class submarines will not fit into the existing hole cut to accommodate the EOHF on the USS Cheyenne, the LOS ANGELES class submarine on which the ADM is installed.

As noted above, the solicitation specifically directed that, if an offeror elected to propose a design other than the ADM design, the offeror “shall explain in their technical proposal how the design meets the [solicitation requirements].” RFP amend. 4, at 2. On the record here, as discussed above, we find no basis to question the agency’s evaluation of weaknesses flowing from Ultra’s proposed EOHF. Further, we have reviewed all of the agency’s multiple criticisms of Ultra’s proposal and find no basis to question any portion of the agency’s technical evaluation.  (Ultra Electronics Ocean Systems, Inc., B-400219, September 8, 2008) (pdf)

The protesters first complain that the Navy’s evaluators were not trained, experienced, “operational military personnel” and that the hearing of these evaluators was not tested before the product sample tests were conducted. IMLCORP Supp. Protest at 2; Wattre Protest at 8. The Navy responds that the solicitation did not require the use of operational military personnel or identify any other experience requirements for these evaluators and that, in any event, the SSEB chair is an electrical engineer with significant experience with acoustic hailing devices. The Navy also asserts that there was no requirement that the evaluators’ hearing be tested prior to the product sample evaluation and that the evaluators reflected the average hearing that would be expected of actual users of the shipboard devices. See, e.g., Wattre AR at 10.  We find that the protesters’ speculative challenges to the qualifications of the Navy’s evaluators provide us with no basis to question the agency’s product sample evaluation. See Philadelphia Produce Mkt. Wholesalers, LLC, B-298751.5, May 1, 2007, 2007 CPD para. 87 at 5 n.2. Moreover, we have long found that the selection of individuals to serve as evaluators is a matter within the discretion of the agency, and, accordingly, we do not review allegations, such as these, concerning the evaluators’ qualifications or the composition of evaluation panels absent a showing of possible fraud, conflict of interest, or actual bias on the part of evaluation officials, none of which have been alleged or shown here. See Eggs & Bacon, Inc., B-310066, Nov. 20, 2007, 2007 CPD para. 209 at 4; Glatz Aeronautical Corp., B‑293968.2, Aug. 10, 2004, 2004 CPD para. 160 at 3 n.1. (IMLCORP LLC; Wattre Corporation, B-310582; B-310582.2; B-310582.3; B-310582.4; B-310582.5, January 9, 2008) (pdf)

We have recognized that it is within the CO's discretion to convene a new evaluation panel where, for example, the CO, in good faith, determines that such action is necessary to ensure the fair and impartial evaluation of proposals, and the record shows that it was not made with the specific intent of changing a particular offeror's technical ranking or avoiding an award to that offeror. See Loschky, Marquardt & Nesholm, B-222606, Sept. 23, 1986, 86-2 CPD para. 336 at 5; Pharmaceutical Sys., Inc., B-221847, May 19, 1986, 86-1 CPD para. 469 at 5.  (SOS Interpreting, Ltd., B-287505, June 12, 2001)

Comptroller General - Listing of Decisions

For the Government For the Protester
MILVETS Systems Technology, Inc. B-409051.7, B-409051.9: Jan 29, 2016  (pdf)  
Industries for the Blind, Inc. B-409528.35, B-409528.36: Dec 3, 2014  (pdf)  
Epsilon Systems Solutions, Inc., B-409720, B-409720.2: Jul 21, 2014  (pdf)  
Ultra Electronics Ocean Systems, Inc., B-400219, September 8, 2008 (pdf)  
IMLCORP LLC; Wattre Corporation, B-310582; B-310582.2; B-310582.3; B-310582.4; B-310582.5, January 9, 2008 (pdf)  
W R Systems, Ltd., B-287477; B-287477.3, June 29, 2001  
SOS Interpreting, Ltd., B-287505, June 12, 2001  

U. S. Court of Federal Claims - Key Excerpts

New 2. The Expanding Role of SSPs in Judicial Review of Procurements

Historically, the purely internal use of [Source Selection Plan] SSPs led the Claims Court to conclude that “when rules and regulations are promulgated for the benefit of the government and no one else, the other party to a contract cannot complain if such regulations are not complied with.” C & L Constr. Co. v. United States (C & L), 6 Cl. Ct. 791, 804 (1984) (citing Perkins v. Lukens Steel Co. (Lukens Steel), 310 U.S. 113, 129, (1940); Hartford Accident & Indemnity Co. v. United States (Hartford Accident), 130 Ct. Cl. 490, 492-94, (1955)). The court and the “GAO [have] repeatedly held that [source selection] plans generally do not give outside parties any rights and, thus, provide no basis for departing from the requirements of a solicitation….[and thus] it appears the Source Selection Plan has little, if any, bearing in defining the rights of the parties under the Solicitation.” Mantech, 49 Fed. Cl. at 67 (internal citations to GAO decisions omitted). The court has added that “the elements of a source selection plan are not considered to provide procedural requirements that are binding on a procuring agency.” Huntsville Times Co. v. United States, 98 Fed. Cl. 100, 107 (2011) (citing Mantech, 49 Fed. Cl. at 67). The intended use of a SSP as an internal agency resource appears to have influenced the court’s restrictive interpretation of its legal effect. Manson Constr. Co. v. United States, 79 Fed. Cl. 16, 19 (2007) (“Internal agency documents that are not distributed as part of a solicitation do not themselves confer rights to potential offerors.”); see also Lincoln Servs. Ltd. v. United States (Lincoln Services), 230 Ct. Cl. 416, 428-30 (Ct. Cl. 1982) (noting that an agency’s deviation from its own internal guidance to be arbitrary and capricious if such deviation results in prejudicial error).

Plaintiff asserts that an agency’s departure from the evaluation criteria and procedures provided by the SSP “can undermine the rationality of the ultimate source selection decision.” Pl.’s Supp. Br. 5-6 (citing USfalcon, Inc. v. United States, 92 Fed. Cl. 436, 452-456 (2010)). Plaintiff asserts that the VA’s departure from the SSP in the corrective action source selection decision prejudiced Progressive and was arbitrary, capricious, and contrary to law. Id. at 7.

Relying on a series of cases, defendant argues that the VA’s deviation from the SSP does not furnish a ground for Progressive to protest. See Def.’s Suppl. Br. 2-3 (citing Allied Tech. Group, Inc. v. United States, 94 Fed. Cl. 16, 41 (2010); ManTech, 49 Fed. Cl. at 67; Atlantic Diving Supply, Inc. v. United States, 107 Fed. Cl. 244, 263 (2012)). Defendant claims that “noncompliance with the terms of an SSP cannot serve as the basis for a bid protest unless the SSP is incorporated into the solicitation.” Id.

As the case law reveals, the court has looked to prepared SSPs in certain limited circumstances.

In Pikes Peak Family Housing, LLC v. United States, 40 Fed. Cl. 673, 678 (1998), the court found three unexplained inconsistences between the SSP and the procurement. The inconsistencies included a misapplication of the SSP’s definitions for rating criteria, a failure to categorize the proposals according to their acceptability, and prolonged delays in notifying offerors excluded from the competitive range. Id. at 678-79. These discovered inconsistences prompted the court to allow the AR to be supplemented with additional documents so that the court could perform its review. Id. at 678.

The court , however, exercises care not to review a SSP as it would a solicitation. Rather it looks to the SSP to evaluate the rationality of the agency’s departure from its procurement plan. The court may consider whether the deviations from the SSP are reasoned departures. USfalcon, Inc., 92 Fed. Cl. at 454 (“Because the SSA relies on the evaluators working for him to follow source selection plan mandates, departures from the plan could undermine the rationality of the ultimate source selection decision.”).

When the AR reveals a disparity between the SSP and the solicitation, the court will examine the record further to find the agency’s expressed rationale for the divergence or to understand the circumstances that led to the change in the evaluation criteria or procedures. Such variance is not necessarily indicative of an irrational agency action. As the court observed in USfalcon, Inc., 92 Fed. Cl. at 454, “if no reason is given for departing from a source selection plan….[the] departure could be due to error and the resulting ratings [might] be different than the evaluators intended.” While the court noted that an agency’s failure to follow the SSP could be shown in certain circumstances to have been irrational, it found in that particular case that the agency had complied with the evaluation procedures and criteria set forth by the SSP. USfalcon, Inc., 92 Fed. Cl. at 462; but see Fort Carson Support Services v. United States, 71 Fed. Cl. 571, 592-93 (2006) (stating that ‘[u]nless an element of the SSP is expressly waived by an official with the power to do so, via a valid, articulated reason, the failure to follow that element is, by its very nature, an arbitrary act.”); United Int'l Investigative Servs. v. United States, 41 Fed. Cl. 312, 314-15 (1998), aff’d, 194 F.3d 1335 (Fed. Cir. 1999) (table) (finding that the agency’s deviation from the internal procedures “deprived [the] plaintiff of the opportunity to have its proposal considered fairly and honestly”); Beta Analytics International, Inc. v. United States, 67 Fed. Cl. 384, 407-408 (2005) (looking to the procedures set forth in the SSP, the court found that an agency’s departure from those procedures resulted in unequal treatment of the protestor.) The cases show that the court has considered deviations from the SSP that cast doubt on either the rationality or the fairness of the procurement process.

Here, the court relies upon more than the agency’s deviation from the procedures set forth in the SSP to conclude that it cannot make a finding that the VA’s corrective action source selection decision was a rational one. The court makes this conclusion based on the agency’s inability to describe its own evaluation procedures in a clear or consistent manner.

In this bid protest, the contracting officer offered an affidavit describing evaluation procedures that differed from those set forth in the corrective action source selection decision, Compare Suppl. Hurt Decl. ¶ 40 (ECF No. 41), with Tab 9, AR 125, and Tab 59, AR 2370-71, and at oral argument, the VA struggled to explain the difference between the procedures in the SSP and the procedures followed to make the corrective action source selection decision. See Hr’g Tr. 23. The corrective action source selection decision itself made no mention of how the agency reevaluated the proposal. Nor can the court reconcile the rationale offered in the corrective action source selection decision with the contracting officer’s explanation.

Although the court may uphold a decision of less than ideal clarity if the agency’s path may reasonably be discerned, the marked inconsistencies between the evaluation procedures described in the SSP, the corrective action source selection decision, and in the contracting officer’s affidavit do not permit the court to follow the agency’s path.

Here, the agency appears to have adopted different procedures from those set forth in the SSP—without explanation as to why or how it did so. Compare Tab 9, AR 125, with Tab 45, AR 2015-16; Tab 59, AR 2370.

Thus the court looks to the SSP, at defendant’s invitation, to evaluate the rationality of this procurement process. See Avtel Servs., 70 Fed. at 216-17; see Def.’s Mot. 6-8.

3. The VA Misstated the Evaluation Procedures Set Forth in the SSP in Its Corrective Action Source Selection Decision

Defendant relies on the SSP to show that the agency contemplated both establishing a competitive range and holding discussions. Def.’s Mot. 18. Defendant further relies on the SSP to justify the contracting officer’s position on price analysis. Def.’s Mot. 8-9; Hr’g Tr. 78 (citing Tab 45, AR 2022-24; Tab 59 AR 2381-85), 108.

But, the VA’s reevaluation of technical capability did not comport with the evaluation methodology set forth in the SSP. See Tab 9, AR 125. As provided in the SSP, only past performance, veterans preference, and price (steps two through five), would receive reevaluation by the agency. Tab 9, AR 125; see Pl.’s Mot. 23-24. Addressing the agency’s deviation from the SSP, defendant explained that the SSP contained a typographical error and that “[t]he contracting officer meant to indicate that the technical capacities, as well as past performance…would be part of that iterative process.” Hr’g Tr. 23; Def.’s Mot. 5 n.3. But, the Solicitation did not address the reevaluation of technical capability. Tab 11, AR 214-17.

The contracting officer referenced the SSP in her description of the TET’s evaluation methods. She stated that “the first step required by each TET member [in evaluating the revised final proposals] was an evaluation of the technical capability of each offeror.” Suppl. Hurt Decl. ¶¶ 39-40 (ECF No. 41). This described process differs from the iterative process described in the SSP—which did not provide for the reevaluation of technical capability. See Tab 9, AR 125. The additional steps the contracting officer described were incongruent with the procedures found in the SSP and with the corrective action source selection decision. Compare Suppl. Hurt Decl. ¶ 40, with Tab 9, AR 125, and Tab 59, AR 2370.

Progressive asserts that the VA acted in contravention of the SSP by revisiting the technical capability factor after conducting the initial evaluation. Pl. Mot. 23-24 (citing Tab 9, AR 125; Tab 45, AR 2015). Essentially, Progressive asks the court to disallow any deviation from the evaluation criteria and methods set forth in the SSP, in the agency’s reevaluation of the offerors’ technical capability as part of its corrective action. See Tab 59, 2376.

Defendant maintains the position that VA “did not deviate from the SSP by reevaluating the technical capability factor after the competitive-range determination.” Def.’s Supp. Br. 4. The VA explained at oral argument that the disparity between the evaluation procedures of the SSP and those documented in the corrective action source selection decision “is . . . an issue of form over substance.” Hr’g Tr. 23. Defendant points to the sentence in the SSP addressing the possibility of reevaluating technical capability after the competitive range determination: “In the event that additional capability information is desired before making a source selection, discussions [might] be held for those offerors with a realistic chance for award (competitive range).” Def.’s Suppl. Br. 5 (citing Tab 9, AR 125). Defendant insists that the placement of that sentence before the instruction that only past performance, veterans preference, and price (steps two through five) would receive agency reevaluation makes clear that the phrase “[s]teps two through five” is a typographical error. Def.’s Suppl. Br. 5 (citing Tab 9, AR 125). Defendant’s explanation for the disparity between the contracting officer’s characterization of the five-step evaluation process in the corrective action source selection decision—which was derived purportedly from the SSP—and those described in the SSP is summary and unsupported. Compare Suppl. Hurt Decl. ¶ 40, with Tab 9, AR 125, and Tab 59, AR 2370.

Although the contracting officer states in her supplemental affidavit that the TET’s first step in reevaluating proposals was to assess the offerors’ technical capability, Suppl. Hurt Decl. ¶ 40 (ECF No. 41), the first step described in the corrective action source selection decision was “a determination of the acceptability of each offer by evaluating the consistency of each Offeror’s promises with the terms and conditions in the RFP.” Tab 59, AR 2370. The corrective action source selection decision also described technical capability comprised of: (1) individual evaluations; and (2) “an overall group consensus on findings leading to a competitive range.” Id. The two-phased process identified in the corrective action source selection decision does not include a reevaluation, but instead incudes a fifth procedural step involving “comparisons among Offerors, [and] trading off expected value against price in order to determine the best value source selection.” Id.15 Moreover, the corrective action source selection decision misstated the evaluation procedures of the SSP and failed to set forth the rationale for reevaluating the proposals. The evaluation procedures that were detailed in the corrective action source selection decision also differed from what was described in the contracting officer’s supplemental affidavit.

Looking to the SSP to understand how the VA arrived at its corrective action source selection decision, the court finds the explanation for the disparity between the evaluation procedures as described in the contracting officer’s affidavit and those found within the corrective action source selection decision to be wanting. Compare Suppl. Hurt Decl. ¶ 40 (ECF No. 41), with Tab 9, AR 125, and Tab 59, AR 2370. The agency’s own inability to describe, with consistency, the evaluation process it used is tellingly indicative of the lack of clarity in the record as to this aspect of the procurement. Given the inadequacy of the agency’s explanation, the court cannot make a finding that the agency acted rationally in its evaluation of the proposals.  (Progressive Industries, Inc. v. U. S. and Irish Oxygen, Co., No. 14-1225C, December 6, 2016)

V. Regulatory Standard for CE Newspaper Contracting

This procurement is governed by 32 C.F.R. pt. 247 (2010), “Department of Defense Newspapers, Magazines and Civilian Enterprise Publications.”4 It is important to note that contracting for CE newspapers is not governed by the Federal Acquisition Regulation (FAR) or the Defense Federal Acquisition Regulation Supplement (DFARS). See 32 C.F.R. pt. 247 App. B(J)(2) (stating that “CE contracts are not subject to the FAR or DFARS, because they do not involve the expenditure of appropriated funds”). For this reason, the arguments of the parties that reference specific FAR provisions, particularly those that set standards for communications between offerors and a procuring authority, are largely unhelpful.6 In general, the government must “ensure that the [procurement] process is objective and fair.” 32 C.F.R. pt. 247 App. B(J)(8)(c).

The [Letter Request for Proposal] LRFP in this procurement references not the applicable regulation, but Department of Defense Instruction (DODI) 5120.4 (dated June 16, 1997), a document which largely replicates the standards and information contained in 32 C.F.R. pt. 247. The governing regulation and DODI 5120.4 each include an attached sample source selection plan and a sample evaluation scoring sheet, which are similar if not identical in content. Compare 32 C.F.R. pt. 247 App. B Atts. 1-2 with DODI 5120.4 Enc. 4 Atts. 1-2. The parties disagree as to whether the numerical scoring system set forth in the sample source selection plan and scoring sheet is required by the regulation, or is simply provided as an example. The court agrees with defendant and TVP that the numerical scoring system offered as an example by the regulation provides guidance to the Army, but does not impose this, or any other, numerical scoring system as a requirement for this procurement.

VI. The Source Selection Plan Contained Two Conflicting Sets of Evaluation Criteria, Conflicting Weighting Schemes, and Was Not Approved in Accordance with the Governing Regulation

According to the introduction to the [Source Selection Plan] SSP, this document “describe[d] the organization, responsibilities, evaluation process, and instructions to the evaluation committee for the competitive award of a civilian printer for the civilian enterprise (CE) installation newspaper, hereinafter referred to as the Redstone Rocket.” AR Tab 4 at 3. The purpose of the SSP was to “to ensure an impartial; equitable, and thorough evaluation of proposals; ensure that the technical evaluation findings provide for the selection of the offer most advantageous to the Government; and document all aspects of the evaluation and decision process.” Id. According to the governing regulation, the [evaluation committee] EC must follow the SSP, because the SSP “serve[s] as a guide for the personnel involved and ensure[s] a fair and objective process and a successful outcome.” 32 C.F.R. pt. 247 App. B(J)(8)(b)- (9).

(sections deleted)

In the end, this analysis of the differences between Evaluation Criteria Set A and Evaluation Criteria Set B is disturbing. The evaluation team, the EC, was given two very different sets of evaluation criteria, and it is difficult to imagine how such an evaluation process could reconcile the conflicting descriptions of the evaluation criteria and apply these evaluation criteria with any degree of uniformity or accuracy. Indeed, proceeding with an internally inconsistent source selection plan appears to the court to be an irrational enterprise, not a rational one. It is also disturbing to note that the EC relied heavily on the descriptions of subfactors of criteria found in Set B, when Set B differed so significantly from the descriptions of evaluation criteria sub-factors advertised in the LRFP. See CACI Field Servs., Inc. v. United States, 13 Cl. Ct. 718, 728 (1987) (noting that if the government “utilized the evaluation criteria listed in the SSP rather than the RFP, and if the SSP evaluation factors were significantly different from the RFP evaluation factors (in terms of content and/or relative importance), then [the protestor] would be entitled to relief assuming that it was prejudiced by such actions.”), aff’d, 854 F.2d 464 (Fed. Cir. 1988). The court now turns to another flaw in the rating procedures set forth in the SSP.

B. Differing Weighting Schemes

As stated in the background section of this opinion, the weighting scheme in the LRFP informed offerors that Technical Capability and Services Offered were approximately equal in weight, Past Performance had approximately half the weight of Technical Capability or Services Offered, and Management Approach had less weight than Past Performance. AR Tab 5 at 3. The SSP has three weighting pronouncements, all of them distinguishable from the weighting scheme announced in the LRFP. First, in what appears to be the weighting scheme to be applied to Evaluation Criteria Set A,9 the SSP states that:

Technical and Production Capability and Services and Items Offered are approximately equal in importance.  Technical and Production Capability and Services and Items Offered are each approximately twice as important as Past Performance. Past Performance is approximately twice as important as Management Approach.

AR Tab 4 at 7. Aside from a slight difference in describing the weight of the Management Approach rating, this pronouncement is roughly consistent with the LRFP.

Next, however, within the text of the Services Offered evaluation criteria, Set A announces that the sub-factors announced in Services Offered (version Set A) are “listed in order of relative importance.” Id. at 8. The same sub-factors in the LRFP are not similarly designated, AR Tab 5 at 2, and many offerors with experience in FAR-governed procurements would assume that the listed Services Offered sub-factors were equal in importance, see, e.g., Bean Stuyvesant, L.L.C. v. United States, 48 Fed. Cl. 303, 321 (2000) (“In the absence of a statement of the relative importance of the factors or subfactors, [the FAR instructs that] each factor or subfactor must be weighed equally.” (citing Isratex, Inc. v. United States, 25 Cl. Ct. 223, 229 (1992))). Finally, Set B contains an assignment of weight to the four evaluation factors, so that the percent weighting is as follows: Technical Capability (40%); Services Offered (30%); Past Performance (20%), and Management Approach (10%). AR Tab 4 at 11-13. The court notes that most mathematicians would dispute that 40% is approximately equal to 30%, and finds that Set B’s weighting scheme varies significantly from the weighting scheme set forth in the LRFP.

Having thus discovered that the SSP contains weighting schemes that differ from the scheme presented in the LRFP, the court cannot immediately determine the gravity of this error. The court found no evidence of mathematical scoring in the administrative record, and defendant’s counsel agreed that there is no evidence before the court that “numerical scoring” was utilized by the Army in this procurement. Oral Arg. Tr. at 53. Nor has the court found any evidence that the EC or the SSA adhered to, or even applied, the weighting scheme presented to offerors in the LRFP. To the extent that the two competing proposals for this CE newspaper contract each had a substantial chance of award, as discussed below, the court finds the absence of any evidence of the application of the weighting scheme set forth in the LRFP troubling.

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VII. Evaluation Errors Committed by the Evaluation Committee

In addition to the creation of a flawed SSP, the failure to get the SSP approved before offers were received on August 12, 2010, and the failure to document any weighting of the evaluation criteria ratings, this court has found significant errors in every area of the consensus evaluation produced by the EC. The court turns first to Technical Capability, one of the two most important evaluation criteria.

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IX. Significantly Flawed Award Decision and Prejudice to the Protestor

The court has closely examined this procurement and found (1) procedural errors in establishing the SSP; (2) a confusing and internally inconsistent SSP; (3) ratings that were based on evaluation criteria different from those stated in the LRFP; (4) ratings that were irrational or were in violation of the governing regulation; and (5) a failure to apply the weighting scheme for evaluation criteria set forth in the LRFP. These errors are significant, and the court finds that the decision to award this contract to TVP was “‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.’” Banknote, 365 F.3d at 1350- 51 (quoting Advanced Data Concepts, 216 F.3d at 1057-58). The SSA’s award decision, although rational, in the main, as to the different ratings assigned to Huntsville and TVP in Management Approach and Services Offered, was arbitrary and capricious in the remainder of its assessment of proposals. These errors are too significant to disregard as harmless or de minimis errors.

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XI. Nature of the Permanent Injunction

When the injunctive relief factors are weighed together, the court concludes that a permanent injunction must issue. The award of Contract No. W9124P-10-RA001 must be set aside. The court has considered a variety of solutions to the hardships faced by Huntsville, TVP and the Army in the wake of a permanent injunction. In the court’s view, the injunction must be timed to take effect on May 23, 2011. This timing should allow for an orderly transition and a fair opportunity to compete for the remaining six months of the first year of contract performance (and the follow-on option years) improperly awarded to TVP, if the Army chooses to award a new contract for the publication of the Redstone Rocket. The court does not set any restrictions on the Army’s options for the re-solicitation of proposals, or for the re-evaluation of proposals received under Letter Request for Proposals W9124P-10-R-A005. The court notes, however, that a related protest would be reviewed under the standards referenced in this opinion. The Clerk’s Office will assign a related protest to the undersigned.  (The Huntsville Times Co. Inc. v. U. S. and Tennessee Valley Printing Co., Inc., No. 10-812C, March 31, 2011) (pdf)

C. The Relevance of Source Selection Plans to Court Review

As the ratings used in the technical evaluation of each offeror’s proposal, and their definitions, were provided in the SSEP rather than the Solicitation,21 a consideration of the relevance of a source selection plan to our Court’s review is in order. As the government notes, see Def.’s Br. at 33-34, our Court has acknowledged the long-standing rule of the GAO that source selection “plans generally do not give outside parties any rights.” ManTech Telecomms. & Info. Sys. Corp. v. United States, 49 Fed. Cl. 57, 67 (2001). The rule traces back to a decision in which the GAO analogized such plans to directives and other internal agency regulations, and found that failure to comply with such an “internal instruction” was no “basis for questioning the validity of [an] award since an internal agency guideline does not have the force and effect of law.” Robert E. Derecktor of R.I., Inc., 84-1 CPD ¶ 40, 1984 WL 43785, at *4 (Comp. Gen. Feb. 2, 1984).

Thus, unlike the treatment of a statute, the prejudicial violation of a source selection plan is not, per se, a ground for a protest. Since the agency is free to change or waive its internal policies, under the GAO approach “agencies are permitted to deviate from their stated evaluation plans so long as the agency’s evaluation is reasonable.” Textron Marine Sys., 91-2 CPD ¶ 162, 1991 U.S. Comp. Gen. LEXIS 967, at *9 n.3 (Comp. Gen. Aug. 19, 1991). On the other hand, adherence to a source selection plan may result in an unreasonable procurement decision and thus a protest that is sustained -- for instance, when an evaluation methodology blurs all technical distinctions and effectively makes a lesser important price factor decisive. See Trijicon, Inc., 71 Comp. Gen. 41, 91-2 CPD ¶ 375, 1991 U.S. Comp. Gen. LEXIS 1245, at *10-12 (1991); see also The MIL Corp., 2005 CPD ¶ 29, 2004 U.S. Comp. Gen. LEXIS 283, at *9-11 (Comp. Gen. Dec. 30, 2004) (finding evaluation unreasonable when an unfavorable rating was given to an offeror for a past performance subfactor concerning which the offeror had no relevant information). To the GAO, what is relevant is what an agency actually did in its evaluation, not what it may have intended to do -- unless the intention was expressed in the Solicitation itself. See Frank E. Basil, Inc., 69 Comp. Gen. 472, 90-1 CPD ¶ 492, 1990 U.S. Comp. Gen. LEXIS 518, at *5-6 (1990) (holding that “agencies do not have the discretion to announce in a solicitation that one evaluation plan will be used and then follow another in the actual evaluation,” unless offerors are informed and given the “opportunity to structure their proposals with the new evaluation scheme in mind”).

This Court has developed a refinement of the GAO approach, which recognizes that the act of choosing an evaluation methodology is itself a discretionary decision in the evaluation process, and which takes stock of the natural and logical consequences of this act. See, e.g., Fort Carson, 71 Fed. Cl. at 592-93; Beta Analytics, 67 Fed. Cl. at 399, 407. The FAR does not require that agencies use any particular rating method, see 48 C.F.R. § 15.305(a), or disclose rating methods in the solicitation, except for the “approach for evaluating past performance.” 48 C.F.R. §§ 15.304(d), 15.305(a)(2)(ii). No law or regulation appears to prevent an agency’s changing from one undisclosed rating method to another, and in that respect a source selection plan is similar to general guidelines or internal policies which are adopted by an agency. But source selection plans differ from these other internal policies in a significant respect -- as, presumably, when an agency adopts a source selection plan for a particular procurement, its officials are employing their expertise to select a rating methodology they believe will best meet the agency’s needs that are the subject of the specific solicitation.

In a negotiated procurement under the FAR, the SSA, acting on behalf of the agency head, is ultimately responsible for the evaluation and the best value decision. 48 C.F.R. §§ 15.303(b), 15.308. He must assemble an “evaluation team” which is “tailored for the particular acquisition” and possesses the “expertise to ensure a comprehensive evaluation of offers.” 48 C.F.R. § 15.303(b)(1). He must ensure that the agency is consistent in the information requested of offerors, and that “proposals are evaluated based solely on the factors and subfactors contained in the solicitation.” 48 C.F.R. § 15.303(b)(3)-(4). And although “the SSA may use reports and analyses prepared by others, the source selection decision shall represent the SSA’s independent judgment.” 48 C.F.R. § 15.308. On this last point, nothing prevents the SSA from basing his judgment upon the evaluations and ratings of others, and indeed the provision cited expressly allows the SSA’s decision to be based on “business judgments and tradeoffs made or relied on by the SSA.” Id. (emphasis added).

Since the SSA is responsible for the source selection decision, and will want to efficiently make use of the talents and expertise of the evaluation team, the contents of a source selection plan guiding his subordinates would naturally be his concern. For Department of Defense procurements, including those of the military departments, the Defense Federal Acquisition Regulation Supplement (“DFARS”) requires that for “high-dollar value” and certain other acquisitions, the SSA “shall approve a source selection plan before the solicitation is issued.” 48 C.F.R. § 215.303(b)(2).22 A mandatory procedure, see 48 C.F.R.§ 202.101 (definition for “Procedures, Guidance, and Information” (“PGI”)), requires that this source selection plan include “[a] description of the evaluation process, including specific procedures and techniques to be used in evaluating proposals.” PGI § 215.303(b)(2)(C)(3). Thus, at least where procedures similar to the Defense Department’s are followed, the source selection plan is drawn up before any proposals are seen by evaluators, and is expressly approved by the SSA.23 The evaluation procedures and techniques embodied in these plans may vary, of course, given the particular needs being addressed in a procurement, and could employ detailed and objective rules, on the one hand, or more subjective and deferential standards, on the other. But the important point for our purposes is that once the SSA approves a particular source selection plan, he should expect, unless informed to the contrary, that it has been followed. Thus, mandatory instructions that evaluators “must” and “shall” rate proposals a certain way are fixed among the foundational assumptions of the SSA.

Because the SSA relies on the evaluators working for him to follow source selection plan mandates, departures from the plan could undermine the rationality of the ultimate source selection decision. He might believe, for instance, that a certain rating was produced by one formula, when in fact another formula was used by evaluators, creating a disconnect between his decision and the underlying facts. Now, it could be the case that the formula used was better adapted to the needs of the agency than the original one selected -- but it is also possible that the change in formula was an unintended error or, perhaps worse, reflected a (conscious or unconscious) reaction to the actual features and qualities presented by a particular proposal. Thus, the failure of evaluators to follow the specific procedures and techniques mandated by a source selection plan, to the prejudice of a protester, could be evidence of an erroneous or biased evaluation. See Fort Carson, 71 Fed. Cl. at 592-93. Any such suspicions could be dispelled by records showing that the departure from the plan was consciously chosen prior to the viewing of proposals, or articulating a rational reason for the departure. Although an agency may have wide discretion in selecting the procedures and techniques to be used in an evaluation, provided these have some possible relation to the relevant factors and subfactors, when its evaluators choose to depart from these after being exposed to offerors’ proposals, the integrity of the process would demand that some reason be documented. And to ensure that there is no disconnect between the SSA’s decision and its underlying assumptions, the choice to depart must have been made known to him so that it may receive at least implied approval.

There are, of course, many good reasons why a source selection plan may be changed midstream, and documentation of these is but a minor burden. The record in this case provides one example of this, as the SSEP was changed to eliminate a consideration from the ratings definitions for the SBPP factor because this consideration was not contained in the Factor elements described in the Solicitation. AR at 10447-48. This change was memorialized in a contemporaneous memorandum from the CO, id., and resulted in a revised SSEP, AR at 10449- 98, that was expressly approved by the SSA. See AR at 10450. In other circumstances, the evaluators may conclude that the plan’s definitions are too rigid or otherwise not well-suited for the factors they are judging. But if no reason is given for departing from a source selection plan (or the departure is not highlighted to allow the SSA to articulate a reason), a departure could be due to error and the resulting ratings may be different than the evaluators intended. Or, in extreme (and, the Court hopes, rare) cases, the departure could have been intended to benefit a particular offeror.24 Particularly when the SSA bases his ultimate decision not on the proposals themselves but on briefings in which the ratings are presented as the inputs for his calculus, an unjustified departure from a source selection plan may rob this ultimate decision of its rational basis.

Source selection plans could be relevant to court review for other reasons. The regularity presumed by an SSA may also be presumed by the court. Thus, if the source selection plan required a certain event to take place, such as a consensus meeting, the presumption of regularity will support that event’s occurrence, absent other record evidence. Cf. Beta Analytics, 67 Fed. Cl. at 397 (finding no presumption because there was no plan requirement) (citing Tecom, Inc. v. United States, 66 Fed. Cl. 736, 769-70 (2005)). Under this presumption, “predicate acts that were required of public officials could be presumed upon proof of their natural results.” Tecom, 66 Fed. Cl. at 769. The presumption can apply to substantive matters, such as the inference that a particular finding was made to support a rating, see Beta Analytics, 67 Fed. Cl. at 400, or to procedural matters -- for instance when a plan articulates the circumstances under which fewer than all proposals would get a second review. Cf. id. at 407 (finding no plan provision justifying> a reevaluation for just one offeror). In the latter case, a decision that at first glance might appear to treat offerors unequally would instead be seen as the fair application of a preexisting rule (under which not every offeror qualified for the particular treatment).

A source selection plan may also be the source of a restriction on evaluators, foreclosing certain actions. Thus, an action that might initially appear to be fair procedurally, such as a rescoring of all proposals, could be the ground for a successful protest when such reevaluations are specifically forbidden by the source selection plan. But in the absence of such a restriction -- even if the reevaluation resulted in a change in ordering or ranking of offerors -- the action would not be objectionable, so long as the offerors were given equal treatment. See Fort Carson, 71 Fed. Cl. at 599.

And, of course, when a source selection plan is the source of the ratings definitions that are followed in the course of evaluating offerors, it figures prominently in court review of a procurement decision. This review “entails identifying the judgments made by the relevant officials and verifying that the relevant information was considered, the relevant factors were employed, and a satisfactory explanation was articulated.” Id. at 592 (citing Overton Park, 401 U.S. at 416 and Motor Vehicle Mfrs. Ass’n, 463 U.S. at 43). A procurement decision’s explanation necessarily includes the ratings assigned to proposals. When a rating, given its definition, cannot be squared with an actual proposal, the decision to assign that rating is arbitrary. But since courts are not to second guess discretionary determinations that are technical and subjective in nature, see E.W. Bliss, 77 F.3d at 449, the less objective the rating criteria happen to be, the harder it is for a protester to establish that a rating decision was arbitrary. See Beta Analytics, 67 Fed. Cl. at 399.

With these various ways in which a source selection plan may be relevant to court review, it is little wonder that the source selection plan is identified in our rules as among the “relevant core documents” of the administrative record which may be produced early to expedite a case. RCFC App. C, ¶ 22(b).  (USfalcon, Inc., v. U. S., No. 09-602c, May 21, 2010) (pdf)

U. S. Court of Federal Claims - Listing of Decisions

For the Government For the Protester
USfalcon, Inc., v. U. S., No. 09-602c, May 21, 2010 (pdf) New Progressive Industries, Inc. v. U. S. and Irish Oxygen, Co., No. 14-1225C, December 6, 2016
  The Huntsville Times Co. Inc. v. U. S. and Tennessee Valley Printing Co., Inc., No. 10-812C, March 31, 2011 (pdf)


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