In the Court of Federal Claims:  Savantage Financial Services, Inc. v. U. S., No. 19-1805C, October 26, 2020

The language used really seems to imply that the Judge dismissed the protest with the greatest of reluctance. 

H-2-H:

Is this it.  I think it is worth reading.

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As the record now stands, the 6,500-users threshold seems at best an approximation; the record contains no actual data or calculations to support it. While an agency may not have to support its selection of any specific number, there must be more in the record to support a number like the 6,500 users at issue in this case than there is here.

I haven't done a thorough reading of the decision but it appears that the COFC backed down because of a "novel" ruling by the CAFC. 

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Reviewing the challenged provisions of the Request for Proposal under the applicable standards, the Court finds that it is constrained to reject Savantage’s protest

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Both sides present reasonable and consistent positions. The plaintiff accurately advances the position that the requirement restricts competition. The question is whether the restriction is reasonable. On that point, the Court acknowledges it faces a close call. Ultimately, the Court must defer to the agency’s approach if the record supports it. In this case, the record does.

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The Court is skeptical of the merits of the defendant’s position. The record supports DHS’s need for software to support a large user-load, and a target of 6,500 users, as was contained in Factor 2 of the Technical Proposal requirements of the initial EFiMS Solicitation, could well have been supported on the record. A firm floor of requiring at least 6,500 users is different. Any firm number is often, to some extent, arbitrary. As a result, an agency’s use of a precise number as a floor for offerors to satisfy merits special attention to ensure a rational explanation in the record because of the many questions arising from its use and the potential to disadvantage arbitrarily otherwise eligible offerors. ... The Court’s skepticism regarding the validity of the number of users contained in the Amended EFiMS Solicitation is deepened by the fact that DHS itself appeared not to know how many users Savantage’s software currently supports at its own agency. DHS’s opening brief on the cross-motions for judgment on the administrative record argued that Savantage met the 6,500-users threshold based on the number of users it currently has at DHS. (ECF 44 at 24, n. 3.) Its own calculation turned out to be incorrect, as the plaintiff explained in its reply brief. (ECF 50 at 21-22.)

 

This is a really tough situation and the answers are not crystal clear.  DHS faces an extremely complex tasks.  Implementing financial management solutions at a single agency is tough enough.  But DHS has many, many systems and processes across 22 agencies and offices with several operational financial systems.  On the other hand, Savantage is a small business with a current piece of the work.  They are aiming for a multiple fold increase in their existing capabilities.  They have a difficult time supporting they have the capacity and resources to do it.

All things considered, Savantage would constitute a huge performance risk.  They are a very good company with an excellent performance record.  But they are trying for something much, much bigger than they’ve ever done.  At the same time, DHS is facing a monumental task of consolidating a large and diverse group of users.