The protester argues that both the evaluation of its own proposal and the agency’s competitive range determination were unreasonable. In the latter connection, Arc-Tech contends that the agency failed to consider price in determining the competitive range and instead based its determination as to which proposals were included on an arbitrary technical cut-off score.

The determination of whether a proposal is in the competitive range is principally a matter within the reasonable exercise of discretion of the procuring agency. Smart Innovative Solutions, B-400323.3, Nov. 19, 2008, 2008 CPD para. 220 at 3. In reviewing an agency’s evaluation of proposals and subsequent competitive range determination, we will not evaluate the proposals anew in order to make our own determination as to their acceptability or relative merits; rather, we will examine the record to determine whether the evaluation was reasonable and consistent with the evaluation criteria. Foster-Miller, Inc., B-296194.4, B-296194.5, Aug. 31, 2005, 2005 CPD para. 171 at 6.

Here, based upon our examination of the record, we conclude that the agency’s competitive range determination was unreasonable in that there is no evidence that price was considered in deciding whether a proposal should be included or excluded. In this connection, we recognize that an agency may properly exclude a technically unacceptable proposal from the competitive range regardless of its price. TMC Dev. Corp., B-296194.3, Aug. 10, 2005, 2005 CPD para. 158 at 4. We also recognize that an agency has the discretion to exclude a technically acceptable proposal that is not among the most highly rated proposals where it determines that the number of most highly rated proposals that might otherwise be included in the competitive range exceeds the number at which an efficient competition can be conducted (provided that the solicitation notifies offerors, as the RFP here did, that the competitive range might be limited for purposes of efficiency). See FAR sect. 15.306(c)(2); Computer & Hi-Tech Mgmt., Inc., B‑293235.4, Mar. 2, 2004, 2004 CPD para. 45 at 6. An agency may not exclude a technically acceptable proposal from the competitive range, however, without taking into account the relative cost of that proposal to the government. Kathpal Techs., Inc.; Computer & Hi-Tech Mgmt., Inc., B-283137.3 et al., Dec. 30, 1999, 2000 CPD para. 6 at 9; Meridian Mgmt. Corp., B‑285127, July 19, 2000, 2000 CPD para. 121 at 4. That is, an agency may not exclude a technically acceptable proposal from the competitive range simply because the proposal received a lower technical rating than another proposal or proposals, without taking into consideration the proposal’s price. A&D Fire Protection Inc., B‑288852, Dec. 12, 2001 CPD para. 201 at 3. Similarly, an agency may not limit a competitive range for the purposes of efficiency on the basis of technical scores alone. See Kathpal Techs., Inc.; Computer & Hi-Tech Mgmt., Inc., supra, at 9-10.

In this case, the record shows that Arc-Tech’s proposal was excluded from the competitive range not because it had been determined technically unacceptable, but because it was not among the most highly rated proposals technically. While the competitive range determination and the technical evaluation panel (TEP) report both label the protester’s proposal “unacceptable,” neither of those documents provides any explanation for such a finding, and there is no support for it anywhere else in the record. On the contrary, the score sheets of the individual evaluators reflect ratings of [deleted]. In fact, it is apparent from the TEP report--in particular, the statement that “the results [of the individual technical evaluations] were averaged to provide a total score to determine whether the company was in the competitive range or not,” TEP Report, Oct. 6, 2008, at 1--that the evaluators used the offerors’ technical scores to determine whether their proposals should be included in the competitive range, and that proposals excluded from the competitive range based on their technical scores were, simply as a consequence of their exclusion, labeled unacceptable. Further, there is no indication in the record that the agency considered the protester’s proposed price as part of the competitive range determination. In sum, because the record shows that the agency’s decision to exclude the protester’s proposal from the competitive range was based on its technical score alone--without consideration of its relative cost to the government and without a documented finding that the proposal was unacceptable--the decision was improper, and on that basis we sustain Arc-Tech’s protest.

We recommend that the agency make a new competitive range determination, taking into consideration offerors’ proposed prices, as well as their technical scores.[6] We also recommend that the agency reimburse the protester for its cost of filing and pursuing the protest, including reasonable attorneys’ fees. 4 C.F.R. sect. 21.8(d)(1) (2008). The protester’s certified claim for costs, detailing the time spent and cost incurred, must be submitted to the agency within 60 days after receiving this decision.

The protest is sustained.  (Arc-Tech, Inc., B-400325.3, February 19, 2009) (pdf)

Cambridge alleges that the agency impermissibly reopened the competitive range to conduct discussions with Chugach and Sim-G, whose initial proposals were previously determined technically marginal overall. Protest at 3. It asserts that since the proposals of the remaining small business offerors received evaluation ratings that were not acceptable, i.e., satisfactory, the set-aside should be withdrawn and the procurement recompeted on an unrestricted basis. Protester's Comments at 4-6.

The decision to establish a competitive range and the determination whether a proposal should be included therein is principally a matter within the sound judgment of the procuring agency. Dismas Charities, Inc., B-284754, May 22, 2000, 2000 CPD para. 84 at 3. The significance of the weaknesses and/or deficiencies in an offeror's proposal, within the context of a given competition, is a matter for which the procuring agency is, itself, the most qualified entity to render judgment. Our Office will review that judgment only to ensure it was reasonable and in accord with the solicitation provisions; a protester's mere disagreement with an agency's judgment does not establish that the judgment was unreasonable. Albert Moving & Storage, B-290733, B-290733.2, Sept. 23, 2003, 2003 CPD para. 8 at 6; CMC & Maint., Inc., B-290152, June 24, 2002, 2002 CPD para. 107 at 2.

We find Cambridge's argument that the agency improperly established a revised competitive range comprised of allegedly technically unacceptable proposals without merit. Under the regulatory scheme applicable here, the contracting officer was required to establish a competitive range comprised of all of the most highly rated proposals based on the "ratings of each proposal against all evaluation criteria." Federal Acquisition Regulation (FAR) sect. 15.306(c)(1). As mentioned previously, of the remaining small business offerors, the initial proposals submitted by Chugach and Sim-G were determined to be the most highly rated based on the overall technical rating of marginal. That is, the agency evaluators concluded that any errors or deficiencies in the proposals could be corrected through discussions without a major rewrite or major revision of proposals.

Moreover, contrary to the protester's view, the solicitation did not require the inclusion of only technically acceptable proposals in the competitive range. Rather, as noted above, section M of the solicitation simply mandated that to be considered for award, proposals had to receive at least an acceptable rating under the non-price evaluation factors. In any event, as the agency and Chugach both argue, based on the initial evaluation of proposals the two offerors included in the revised competitive range were determined capable of performing the required effort, and Cambridge has not shown otherwise. Since the record indicates that neither Chugach's or Sim-G's initial proposal were rated unsatisfactory under any non-price factor, we find the contracting officer reasonably concluded that the agency could receive offers from these two small businesses at fair market prices if discussions were conducted with both concerns. In short, we are not persuaded by, and nothing in the record supports, the protester's contention that the agency was required to withdraw the set-aside and reissue the solicitation on an unrestricted basis.

Finally, the protester maintains that the agency impermissibly reopened the competitive range despite a FAR provision prohibiting it to do so. The provision in question provides as follows:

If an offeror's proposal is eliminated or otherwise removed from the competitive range, no further revisions to that offeror's proposal shall be accepted or considered.

FAR sect. 15.307(a). Under this provision, the contracting agency is prohibited from accepting further proposal revisions from an offeror where the offeror's proposal is excluded from the competitive range. In our view, this provision does not address the situation where, as here, the agency decides to establish a new and/or revised competitive range; it would be unreasonable to interpret this provision to effectively deprive the agency of the discretion to establish a new and/or revised competitive range, to conduct discussions with competitive range offerors, or to evaluate revised proposals. In fact, FAR part 15 recognizes the authority to make successive competitive range determinations albeit generally with the intent of narrowing the competitive range. However, GAO consistently has upheld the agency's authority to establish successive competitive ranges. Dynacs Eng'g Co., Inc., B-284234 et al., Mar. 17, 2000, 2000 CPD para. 50 at 4; see also FAR sect. 15.306(c)(3).

Here, we have already concluded that the contracting officer reasonably determined that of the remaining offerors, Chugach's and Sim-G's proposals were the most highly rated, and our review of the record shows that this determination was consistent with the terms of the solicitation and the applicable procurement regulations. As a result, the contracting officer's decision to establish a revised competitive range and conduct discussions with these two offerors was reasonable.  (Cambridge Systems, Inc., B-400680; B-400680.3, January 8, 2009)  (pdf)

Where, as here, a protest challenges an agency’s evaluation and exclusion of a proposal from the competitive range, we first review the propriety of the agency’s evaluation of the proposal, and then turn to the agency’s competitive range determination. Government Telecomms., Inc., B-299542.2, June 21, 2007, 2007 CPD para. 136 at 4; Americom Gov’t Servs., Inc., B-292242, Aug. 1, 2003, 2003 CPD para. 163 at 4. In reviewing such protests, we do not conduct a new evaluation or substitute our judgment for that of the agency, but examine the record to determine whether the agency’s judgment was reasonable and in accordance with the terms of the solicitation and applicable procurement statutes and regulations. Wahkontah Servs., Inc., B-292768, Nov. 18, 2003, 2003 CPD para. 214 at 4. An offeror’s mere disagreement with the agency’s evaluation is not sufficient to render the evaluation unreasonable. Ben-Mar Enters., Inc., B-295781, Apr. 7, 2005, 2005 CPD para. 68 at 7. As explained in detail below, based upon our review of the record, HUD’s evaluation of Lakeside’s proposal and the subsequent exclusion of Lakeside’s proposal from the competitive range were reasonable and consistent with the solicitation. The record reflects that Lakeside’s technical proposal was downgraded in large part because the information provided lacked sufficient detail for the agency to determine that Lakeside would be able to successfully comply with the RFP’s requirements. Although we do not here specifically address all of the protester’s arguments about the evaluation of its proposal, we have fully considered all of them and find that they afford no basis to question the agency’s evaluation. With regard to HUD’s evaluation of its proposal under the technical and management approach factor, the protester contends that, contrary to the TEP’s findings, the proposal clearly described how the firm would be able to handle the increase in work (i.e., closing services for Michigan) without increasing its staff. Lakeside contends, for example, that its proposal stated that all of the individuals listed would perform the Michigan work and that they were committed to the contract. The protester also asserts that, given the technology and networking software described in Lakeside’s proposal, it is quite simple to perform any needed closing service tasks from Ohio or the local Michigan offices. Further, Lakeside argues, because it is a fully-licensed “National Producer” able to do work in all 50 states, the company possessed the ability to “move into any [new] State and be up and running as a fully functioning title company within no time at all.” Comments at 5-6. Notwithstanding the offeror’s view that its proposal had adequately addressed the technical and management approach factor, Lakeside does not dispute the TEP’s finding that its headquarters personnel would not in fact be working 100 percent of their time on the Michigan contract, or that its proposal failed to disclose the intended office locations of its key personnel. Lakeside also does not dispute the TEP’s findings that its proposal provided no methodology for determining the number of closers needed, that the proposal did not explain how interactions, communications, and logistics would be handled between its various offices, or that Lakeside’s proposed staff lacked closing experience. Rather, Lakeside essentially argues that the TEP’s judgment that there existed considerable doubt about the firm’s ability to meet the PWS requirements was unreasonable. We find the protester’s challenge to the agency’s evaluation here amounts to mere disagreement with the agency’s judgment and, thus, does not establish that the evaluation was unreasonable. JAVIS Automation & Eng’g, Inc., B-293235.6, Apr. 29, 2004, 2004 CPD para. 95 at 5. Lakeside also argues that the TEP’s evaluation of its proposal under the prior experience factor was improper. Specifically, the protester asserts that the agency evaluators believed that Lakeside had no experience in Michigan, although its proposal made explicit that the firm was currently closing properties and issuing policies in Michigan. Comments at 4-5. Lakeside’s assertion here, however, is based on the statements of an individual evaluator, and the record shows that these statements were not carried forward into the agency’s consensus evaluation report. See AR, Tab 9, TEP Report, at 68. Since it was the TEP final report upon which the contracting officer relied in making his competitive range determination, Lakeside’s objections to the statements of an individual evaluator provide us with no basis to question the competitive range determination. See Instrument Control Serv., Inc., B-285776, Sept. 6, 2000, 2000 CPD para. 186 at 3 n.6.  Given our determination that the agency’s evaluation of Lakeside’s proposal was reasonable and consistent with the solicitation, and in view of the agency’s conclusion that the proposal was unacceptable as a result of the weaknesses and deficiencies identified in the evaluation, we find that it likewise was reasonable for the agency to conclude that Lakeside’s proposal had no reasonable chance for award and to exclude Lakeside’s proposal from the competitive range. See TMC Design Corp., B-296194.3, Aug. 10, 2005, 2005 CPD para. 158 at 5; Network Sys. Solutions, Inc., B-249733, Dec. 14, 1992, 92-2 CPD para. 410 at 4.  (Lakeside Escrow & Title Agency, Inc., B-310331.3, January 7, 2008) (pdf)

The Federal Acquisition Regulation (FAR) provides that an agency "shall establish a competitive range comprised of all of the most highly rated proposals." FAR sect. 15.306(c)(1). Although agencies are not required to retain proposals in the competitive range that the agency reasonably concludes have no realistic chance for award, SDS Petroleum Prods., Inc., B-280430, Sept. 1, 1998, 98-2 CPD para. 59 at 5, where, as here, a determination to exclude a proposal is based entirely on the proposal’s higher evaluated cost, the agency’s cost realism analysis must be reasonably thorough, accurate and complete. See SGT, Inc. B-294722.4, July 28, 2005, 2005 CPD para. 151. Where an agency’s cost realism analysis reflects material errors or flawed assumptions it cannot be considered reasonable. Future-Tec Mgmt. Sys, Inc., B-283793, Mar. 20, 2000, 2000 CPD para. 59. Here, as discussed in more detail below, the record establishes that the agency’s cost realism analysis and its cost/price evaluation contained various errors and, as a result, the agency’s competitive range determination lacked a reasonable basis. Further, the record does not reasonably support the contracting officer’s determination that Global could not significantly lower its evaluated cost/price in response to discussions. (Global, A 1st Flagship Company, B-297235; B-297235.2, December 27, 2005) (pdf)

The determination of whether a proposal is in the competitive range is principally a matter within the sound judgment of the procuring agency. Dismas Charities, Inc., B-284754, May 22, 2000, 2000 CPD paragraph 84 at 3. While exclusion of technically unacceptable proposals is permissible, it is not required. Albert Moving & Storage, B-290733, B-290733.2, Sept. 23, 2002, 2003 CPD paragraph 8 at 6. The significance of the weaknesses and/or deficiencies in an offeror's proposal, within the context of a given competition, is a matter for which the procuring agency is, itself, the most qualified entity to render judgment. Our Office will review that judgment only to ensure it was reasonable and in accord with the solicitation provisions, and a protester's mere disagreement with an agency's judgment does not establish that the judgment was unreasonable. Id. Contrary to the protester's view, there is nothing under the circumstances here that required the exclusion of Evolvent's proposal from the competitive range. As mentioned above, there is no requirement that an agency exclude a proposal that is technically unacceptable as submitted. Here, the record includes a relatively detailed analysis of the agency's decision to include Evolvent's proposal in the competitive range (as well as the agency's decision to exclude the proposals of other offerors). See AR, Tab 13, Contract Review Board Presentation, at 16-17; Tab 14, Contracting Officer's Determination of the Competitive Range. The agency recognized that Evolvent would need to acknowledge its receipt of the amendments in order for its proposal to comply with the terms of the RFP. Moreover, the agency also recognized that Evolvent's proposed labor rates were significantly lower than those proposed by Grove (the other competitive range offeror) and concluded that Evolvent should be requested to provide price information that would allow the agency to assess the realism of the firm's proposed labor rates. See AR, Tab 13, Contract Review Board Presentation, at 15, 17. A fundamental purpose in conducting discussions is to determine whether deficient proposals are reasonably susceptible of being made acceptable. See Aviate L.L.C. , B-275058.6, B-275058.7, Apr. 14, 1997, 97-1 CPD paragraph 162 at 8. There is simply no evidence in the record here to show that the agency unreasonably concluded that Evolvent's proposal would have reasonable chance of being selected for award if the firm received discussions concerning its proposal. We conclude that the Navy reasonably included Evolvent's proposal in the competitive range. (Grove Resource Solutions, Inc., B-296228; B-296228.2, July 1, 2005) (pdf)

As noted above, the solicitation permitted the agency to limit the number of proposals in the competitive range to the greatest number that would permit an efficient competition. Although JAVIS submitted an acceptable proposal, its evaluation ratings were lower than those of the proposals included in the competitive range; the agency reasonably determined that a competitive range consisting of those higher-rated proposals was the largest number that could be permitted and still allow an efficient competition. In sum, we conclude that the agency reasonably excluded JAVIS’s proposal from the competitive range.  (JAVIS Automation & Engineering, Inc., B-293235.6, April 29, 2004) (pdf)

Finally, CHM’s complains that the agency impermissibly failed to ensure that the competitive range was comprised of the greatest number of offerors that would permit an efficient competition. In its view, an efficient competition could be conducted even if proposals such as CHM’s, which received an overall rating of green, were included in the competitive range. The RFP specifically permitted the agency to limit the number of proposals in the competitive range to the greatest number that would permit an efficient competition. FAR § 15.306(c)(2). Here, the agency did so, selecting [DELETED] proposals for inclusion in the competitive range. The record shows that, while CHM submitted an acceptable proposal, its proposal was not among the [DELETED] most highly rated ones. We see no basis to question the agency’s determination that a competitive range of [DELETED] proposals was the largest number that could be permitted and still allow an efficient competition. (Indeed, we believe the agency had the discretion to establish a smaller competitive range.) On this record, the agency reasonably excluded CHM’s proposal from the competitive range.  (Computer & Hi-Tech Management, Inc., B-293235.4, March 2, 2004) (pdf)

1. The Competitive Range Decision

Plaintiff contends that its unacceptable Technical/Management rating cannot be reconciled with its adequate Past Performance rating. The narrative description accompanying its Technical/Management rating provides, in part, that the “proposal is highly inadequate; the offeror cannot meet performance requirements.” AR 524. Plaintiff’s Past Performance rating, on the other hand, includes the following narrative: “minimum doubt exists, based on the Offeror’s performance record, that the Offeror can successfully perform the proposed effort.” AR 525. A similar argument was made and rejected in ManTech. We concluded there that such assessments are not inconsistent because the Past Performance evaluators had a fundamentally different task than did the Technical/Management evaluators.

Past performance “is a measure of the degree to which an Offeror has kept its previous contractual promises and thus satisfied its customers, to include management of teaming arrangements for large businesses.” AR 518. The evaluators were to make the following assessments after contacting the clients serviced by the bidders’ previous contracts: whether previous contracting efforts indicate the scheduling standards were achieved without affecting cost or performance; whether the quality of services provided were professional and at the level expected by the customer; whether the offeror’s team can effectively manage large contracts similar in scope, complexity and size; and whether the offeror demonstrated satisfactory previous teaming arrangements and positive business relationships. AR 518.

The Technical/Management evaluators, on the other hand, were required to ensure that the offeror had the “depth and breadth [of] experience and expertise” to “meet the requirements for each of the functional areas.” AR 514, 517. The evaluators were probing for detail on particular experience relevant to the Statement of Objectives. For instance, one of nine standards required the offeror to demonstrate “an understanding of the applicable information systems’ technical standards required to enable information sharing, integration, and interoperability by using best practices and align the evolving architecture with overarching federal, IC and DOD architecture guidance.” AR 518. Another required offerors to provide “an understanding of the US and allied forces’ logistics support system and proposes an integrated solution that allows efficient and rapid distribution of assets between DOD and its strategic partners, especially during times of national crisis.” AR 517.

Hyperion satisfied customers on related types of work in the past; it was unable to demonstrate to the Technical/Management evaluators that its experience was in the precise areas covered by the Statement of Objectives. These findings are not at odds.  (Hyperion Inc., v. U. S., No. 09-758c, April 29, 2010) (pdf)

This court has interpreted the language of FAR 15.306(c)(1) to require close scrutiny when an agency establishes a competitive range of only one offeror, thus allowing that offeror to modify its proposal through discussions, while denying this opportunity to other offerors. E.g., Int’l Outsourcing Servs., LLC v. United States, 69 Fed. Cl. 40, 51 n.12 (2005); Bean Stuyvesant, L.L.C. v. United States, 48 Fed. Cl. 303, 339 (2000) (citation omitted). Where, as here, the government has established a competitive range of one, the court must closely examine the reasons for eliminating all other competitors from the procurement. See Chapman Law Firm Co. v. United States, 71 Fed. Cl. 124, 132 (2006) (“Case law and common sense counsel that close scrutiny is appropriate where an agency has included only one firm in the competitive range . . . .”), aff’d in relevant part sub nom. Chapman Law Firm Co. v. Greenleaf Constr. Co., 490 F.3d 934, 938 (Fed. Cir. 2007).  (p. 14)

(sections deleted)

IV. Whether the Army’s Competitive Range Determination and Proposed Discussions with Aimpoint are Arbitrary and Capricious or Contrary to Law.

The court turns first to plaintiff’s contention that Aimpoint and EOTech received, or will receive, disparate treatment. This allegedly disparate treatment is the result of the Army’s decision to create a competitive range of one offeror, which necessarily permits Aimpoint to revise Aimpoint A through discussions, and the Army’s decision to permit the reconfigured Aimpoint A to proceed to award without being subjected to Endurance-Live Fire Essential Criteria testing. As discussed below, the court views this series of decisions by the Army to constitute a relaxation of the solicitation requirement that eliminated EOTech from further consideration. Furthermore, there were enough departures from the evaluation plan described in the solicitation to cast a shadow upon this procurement, when these irregularities are properly placed in context. Finally, the Army’s decision to secure EOTech’s gooseneck mount to the M16A2 by finger-tightening cannot be judged to be fundamentally fair or rational, [ ]. The cumulative effect of these procurement errors invalidates the Army’s competitive range determination and its proposed plan to select the modified Aimpoint A without a retest of the Endurance-Live Fire criteria. If these procurement procedures were allowed to stand, the Army’s upcoming “best value” decision would be fundamentally flawed, arbitrary and capricious, and would not reflect full and open competition.  (p. 15)  (L-3 Communications Eotech, Inc., v. U. S. and Aimpoint, Inc., No. 08-515C, September 23, 2008) (pdf)

a.     Did Not Violate FAR 15.306, In Not Conducting Additional Offeror Discussions.

ISC interprets FAR 15.306(c)(1) to mean that discussions are required if a competitive range is set. See Sec. Am. Compl. ¶ 34 at 9. The text of FAR 15.306(c)(1), however, provides that setting a competitive range is required only if discussions are to be conducted, but not the reverse. See 48 C.F.R. § 15.306(c)(1) (“[a]gencies shall evaluate all proposals in accordance with 15.305(a), and, if discussions are to be conducted, establish the competitive range.”). In this case, the Solicitation provides that GSA may make an award without any discussions. See AR 144 (RFP § L.10); see also 48 C.F.R. § 15.306(a)(3) (“Award may be made without discussions if the solicitation states that the Government intends to evaluate proposals and make award without discussions.”) (emphasis added). Although the CO’s April 18, 2007 Competitive Range Determination may be read to imply that additional discussions would be held after the competitive range was reconsidered,14 the court does not construe this statement as imposing any legal obligation on the CO to do so. The court has determined that the CO properly elected not to hold additional discussions, because neither the FAR, the Solicitation, nor the court required additional discussions. See AR 2561; see also Impresa, 238 F.3d at 1338-39 (when reviewing agency action the court must independently determine whether a decision has a rational basis based on the facts in the record); DynCorp Intern LLC v. United States, 76 Fed. Cl. 528, 539 (2007) (“It is well-established that when offerors are on notice that award may be made without discussions, the [G]overnment is not required, as a general rule, to hold discussions before award.”).

b.     Did Not Violate FAR 15.306, In Not Relying On The Price Evaluation Team’s Analysis.

In Information Sciences II, the court instructed the CO to reconsider the August 16, 2004 Competitive Range Determination, in compliance with the Solicitation and all applicable FAR requirements. See Info. Scis. II, 75 Fed. Cl. at 414 (“GSA must reconsider the competitive range determination. Once GSA establishes a competitive range that complies with the terms of the Solicitation and the FAR, a newly appointed SSA may utilize existing technical and price evaluations to determine which proposal represents the ‘best value’ to the agency.”). In this case, the Solicitation states that price was one of four evaluation criteria. See AR 258 (“Price proposal(s) . . . will be evaluated[.]”); see also AR 264 (“To ensure fair, reasonable, balanced, and realistic prices, the Government will perform a price analysis.”). Although the Solicitation requires the CO to consider price, when making the Competitive Range Determination, the Solicitation did not require the CO to rely on the price analyses of the Price Evaluation Team. See AR 154 (RFP § M.6.B) (as modified by Amendment 0006). The Solicitation only stated that the Price Evaluation Team’s analysis would not employ ratings. Id. (“The price proposal will not be rated and will be separate from the technical evaluation.”) (emphasis in original); see also AR 155 (RFP § M.8) (“Once the technical proposals have been evaluated and a consensus adjectival and confident [sic] rating are assigned, the rated technical proposals shall then be compared to the price analysis and incentive plan and analysis for the proposal, to complete a best value determination for the Government.”). FAR 15.306(c)(1) only requires the CO to consider price, if it is a Solicitation term. See 48 C.F.R. § 15.306(c)(1) (“Based on the ratings of each proposal against all evaluation criteria, the contracting officer shall establish a competitive range comprised of all of the most highly rated proposals[.]”) (emphasis added). FAR 15.308, however, permits the SSA to consider the final price evaluation in rendering a “best value” determination. See 48 C.F.R. § 15.308 (in making a “best value” determination “the SSA may use reports and analyses prepared by others”). Since neither the FAR nor the Solicitation prohibited the CO from determining the price of Symplicity’s initial proposal and then using that price to establish the Reconsideration of Competitive Range, nor required the CO to reconvene the Price Evaluation Team to correct an error that the CO identified and reconciled, the CO’s price determination will not be set aside. See Honeywell, 870 F.2d at 648 (citation omitted) (holding when the trial court finds a “reasonable basis” for an agency’s action, the court should “stay its hand even though it might, as an original proposition, have reached a different conclusion as to the proper administration and application of the procurement regulations.”); see also John C. Grimberg, 702 F.2d at 1372 (holding that the court may interfere with a federal procurement “only in extremely limited circumstances”).

c.     Did Not Violate FAR 15.306, In Correcting Defendant-Intervenor’s Price Proposal.

The court rejects DEVIS’s contention that the April 18, 2007 Reconsideration of the Competitive Range is “is flatly contradicted by the Administrative Record,” “invalid,” and that Symplicity’s proposal “clearly inhibited easy access to whatever price information it did include,” in violation of Sections L.7 and L.8.1 of the Solicitation and FAR 15.306. See Pl. Int. PH Br. at 16- 17; see also Int. Mem. II at 14. The court is satisfied that Symplicity’s total offered price could be discerned by comparing the price proposal to the Solicitation’s requested CLIN pricing format. See AR 2545 (April 18, 2007 Competitive Range Determination) (“Symplicity’s price proposal clearly contained accurate pricing, with sufficient back-up data for eight years, including pricing for CLIN 0002 - FedTeds and CLIN 0003 - Electronic Proposal Receipt.”). Accordingly, it was rational for the CO to determine that Symplicity’s total price was $12,044,563. See AR 2545; see also AR Tab 158 (Symplicity’s price proposal identifying and explaining each CLIN including “CLIN 0004” and “CLIN 0001B1”); Int. Ex. A (DEVIS exhibit showing that Symplicity’s total price was around $12 million).  The court also rejects DEVIS’s argument that the CO engaged in “fraud,” because Symplicity’s price was not the result of a “clerical error,” but the CO calculating Symplicity’s “Year 1” CLINs so they would comply with the Solicitation. See Int. Ex. A (Symplicity Price Calculation Table); see also 11/29/07 TR at 135 (DEVIS’S COUNSEL: “[T]he omissions of contract line item 0004 and 0001B1 were in fact identified by the contracting officer[.]”). Without evidence of actual misconduct, the court must assume that the CO misread Symplicity’s proposal and the CO’s corrective actions were made in good faith. See T&M Distribs., Inc. v. United States, 185 F.3d 1279, 1285 (Fed. Cir. 1999) (“[G]overnment officials are presumed to act in good faith, and it requires ‘well-nigh irrefragable proof’ to induce the court to abandon the presumption of good faith[.]”) (quoting Kalvar Corp. v. United States, 543 F.2d 1298, 1301-02 (Ct. Cl. 1976)). Symplicity’s price proposal also did not violate the terms of the Solicitation stating that all “CLINs in Section B shall be addressed,” and “be priced as a Firm-Fixed Price[.]” AR 247 (RFP § L.8.2), 263 (RFP § M.6). Section L.8.3.4 of the Solicitation requires that an offeror’s price proposal contain “sufficient price detail for equipment, labor, hosting, etc., to support the proposed Firm-Fixed Price and to permit the Government to determine that the proposed Firm-Fixed Price is fair and reasonable.” AR 254. The Solicitation also requires offerors to propose prices for the threeyear Base Period and five one-year option periods using CLINs 0001A through 0001F, and propose two options for the ‘FedTeds’ (CLIN 0002) and ‘EPR’ modules (CLIN 0003). See AR 196 (RFP § B.2). In response, Symplicity provided a price summary for Year 1, but broke out the “lump sum CLIN” into “five sub-CLINs 0001A through E,” pricing the FedTeds and EPR options by using the requested format of CLINs 0002 and 0003, proposing support maintenance labor under a separate CLIN 0004, and “hosting services back-up” under CLIN 0001B1. See AR Tab 158 at 2, 8. CLIN 0004 for Ongoing Support Maintenance, including Help Desk (7 am – 7 pm) for years 1 through 8, and CLIN 0001B1 for Hosting Services Back-up for years 2 through 8, were expressly contemplated in the Solicitation, and properly were included by the CO in finding Symplicity’s total price was $12,044,563. See AR 92. In effect, Symplicity simply broke down “certain [requested] services and price[d] them under additional, separate CLINs,” without changing the overall price. See Def. Int. PH Br. at 14. The court recognizes that Sub-CLIN 0001F, requested in Section B of the Solicitation, was not included in Symplicity’s price proposal. See AR 247 (“All CLINs in Section B shall be addressed, including optional CLIN’s 0002 and 0003.”); see also AR 196 (“CLIN 0001F Option Period 5 (1 year)”); AR Tab 158 (Symplicity price proposal missing sub-CLIN 0001F, without explanation). It is unclear, however, if inclusion of each “sub-CLIN” was required by the Solicitation, even if each CLIN was required. See AR 247 (“All CLINs in Section B shall be addressed, including optional CLIN’s 0002 and 0003.”). In any event, ISC’s and DEVIS’s initial price proposals also had a “number of minor price and technical issues.” See AR 2545-47 (April 18, 2007 Competitive Range Determination) (“The clarification issues associated with [ISC’s, DEVIS’s, and Symplicity’s] price proposal[s] were minor[.]”). For this reason, Section L.8.3.3 of the Solicitation provides that “[s]uch exceptions, deviations, or conditional assumptions will not, of themselves, automatically cause a proposal to be termed unacceptable.” AR 253 (RFP § L.8.3.3) (emphasis added). Accordingly, the court has determined that the CO did not violate FAR 15.306, nor act contrary to the Solicitation, by including Symplicity’s price proposal in the April 18, 2007 Reconsideration of the Competitive Range Determination, although there were “some” deviations from the requested pricing structure. See Data Gen., 78 F.3d at 1564 (holding that a CO should not be required to “disqualify[] an otherwise qualified bidder because of inconsistencies in its quoted prices,” where there is no substantial deviation from the RFP.).  

d.     Did Not Violate FAR 15.306, In Not Conducting A “Price Realism Analysis.”

In this case, the Solicitation advised potential offerors that the “[p]rice evaluation will focus heavily on the realism of the proposed prices for the scope and nature of the solution/services proposed.” AR 257 (emphasis added); see also Int’l Outsourcing Servs., LLC v. United States, 69 Fed. Cl. 40, 47 n.7 (2005) (“However, an agency at its discretion may . . . provide for a price realism analysis in the solicitation of fixed-price proposals.”) (internal citations omitted) (emphasis added); 48 C.F.R. §§ 15.404-1(a)(1), (d)(3) (“The contracting officer is responsible for evaluating the reasonableness of the offered prices . . . [P]roposals shall be evaluated using the criteria in the solicitation[.]”) (emphasis added). The Solicitation also provided that: “A price analysis of each  CLIN, including optional CLIN 0002 and optional CLIN 0003, will be performed on the proposed Firm-Fixed Price, including an analysis of the price detail for equipment, labor, hosting, etc., which supports the proposed Firm-Fixed Price. The price analysis will be performed in accordance with FAR 15.404-1(b)(2)(ii) through (vii) to allow the Government to determine that the proposed Firm- Fixed Price is fair and reasonable.” AR 264 (emphasis added). The Solicitation provided for a “price analysis” and a “price realism analysis,” but nothing more. Id. (“The price analysis will be performed in accordance with FAR 15.404-1(b)(2)(ii) through (vii)”); see also AR 257 (“Price evaluation will focus heavily on the realism of the proposed prices for the scope and nature of the solution/services proposed.”) (emphasis added). The court previously determined that GSA conducted an adequate price analysis and price realism analysis of Symplicity’s proposal. See Info. Scis. I, 73 Fed. Cl. at 102-03 (“By providing a cogent explanation as to why Symplicity’s price was lower than the other offerors, the court is satisfied that GSA Price Team performed a ‘price realism analysis’ in accordance with the Solicitation.”); see also AR 2404 (Feb. 11, 2005 FBO Price Analysis approved by CO). ISC’s re-argument to the contrary is not persuasive. See Info. Scis. II, 75 Fed. Cl. at 413-14 (“GSA must reconsider the competitive range determination. Once GSA establishes a competitive range that complies with the terms of the Solicitation and the FAR, a newly appointed SSA may utilize existing technical and price evaluations to determine which proposal represents the ‘best value’ to the agency.”) (emphasis added). The record evidences that the CO did not violate FAR, act contrary to the Solicitation, nor fail to comply with the court’s order. See AR 2559-61.  (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)

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

For the Government

For the Protester