DISTRIBUTED SOLUTIONS, INC. v. USA
PUBLISHED OPINION AND ORDER. The Court GRANTS defendant's and defendant-intervenor's motions for judgment on the administrative record and DENIES plaintiff's motion for judgment on the administrative record. Additionally, plaintiff's motion to stay contract performance pending final ruling is DENIED as moot. Signed by Judge George W. Miller. (ps) Copy to parties.
In the United States Court of Federal Claims
No. 12-274 C
(Filed Under Seal: July 30, 2012)
(Reissued for Publication: August 10, 2012)*
TO BE PUBLISHED
DISTRIBUTED SOLUTIONS, INC.,
THE UNITED STATES,
Department of Labor RFQ to procure
Acquisition Management System; use of
GSA Federal Supply Schedule to acquire
IT system; FAR Part 8; FAR Part 15
inapplicable; DOL seeking a commercialoff-the-shelf (“COTS”) solution;
plaintiff’s pre-award and post-award
protests at GAO; DOL’s corrective action;
reevaluation of proposals; live product
demonstration; past performance
evaluation; price reasonableness analysis;
DOL’s calculation of Independent
Government Cost Estimate (“IGCE”);
tradeoff analysis was reasonable and
adequately documented; IT Dashboard;
DOL complied with duty to evaluate bids
fairly and honestly.
Thomas A. Coulter, Nicole Hardin Brakstad, LeClairRyan, Richmond, Va., for plaintiff.
Daniel G. Kim, Trial Attorney, Kenneth M. Dintzer, Assistant Director, Jeanne E.
Davidson, Director, Commercial Litigation Branch, Stuart F. Delery, Acting Assistant Attorney
General, Civil Division, United States Department of Justice, Washington, D.C., for defendant.
David R. Koeppel, Dennis Adelson, Colin W. O’Sullivan, Office of the Solicitor, United States
Department of Labor, Washington, D.C., of counsel.
David S. Cohen, Cohen Mohr, LLP, Washington, D.C., for defendant-intervenor. John J.
O’Brien, Gabriel E. Kennon, Cohen Mohr, LLP, Washington, D.C., of counsel.
This Opinion and Order was filed under seal on July 30, 2012 (docket entry 65) pursuant to the
protective order entered on May 4, 2012 (docket entry 17). The parties were given an
opportunity to advise the Court of their views with respect to what information, if any, should be
redacted prior to publication. The parties filed a joint status report on August 9, 2012 (docket
entry 67) in which they proposed certain redactions and explained their reasons therefor. The
Court has reviewed those proposed redactions and concluded that they should be accepted.
Accordingly, the Court is reissuing for publication its Opinion and Order dated July 30, 2012
with redactions indicated by three consecutive asterisks within brackets ([***]).
OPINION AND ORDER
GEORGE W. MILLER, Judge
On May 1, 2012, plaintiff, Distributed Solutions, Inc. (“DSI”), filed a complaint in this
Court (docket entry 1), which was subsequently amended on May 22, 2012 (docket entry 24),
alleging that the Department of Labor (“DOL”) acted arbitrarily, capriciously, and not in
accordance with law, and abused its discretion when it awarded a contract for an Acquisition
Management System (“AMS”)1 to defendant-intervenor, Compusearch Software Systems, Inc.
(“Compusearch”). Thereafter, the parties filed cross-motions for judgment on the administrative
record (docket entry 22, May 22, 2012; docket entry 23, May 22, 2012; docket entry 26, May 23,
2012;2 docket entry 33, June 7, 2012; docket entry 35, June 7, 2012) as well as corresponding
responses and replies (docket entry 45, June 18, 2012; docket entry 47, June 25, 2012; docket
entry 50, June 25, 2012). On July 10, 2012, following oral argument, see Transcript of July 10,
2012 Hearing, Distributed Solutions, Inc. v. United States, No. 12-274 C (Fed. Cl. July 17, 2012)
(hereinafter “Hr’g Tr.”), the Court issued a bench ruling GRANTING defendant’s and
defendant-intervenor’s motions for judgment on the administrative record and DENYING
plaintiff’s motion for judgment on the administrative record. The Court stated that a written
opinion would follow.
Procurement History and Original Request for Quotes
On November 23, 2009, DOL issued a Request for Information (“RFI”) to conduct
market research for E-Procurement Capabilities. Administrative R. (“AR”) Tab 25. On January
4, 2010, plaintiff responded to the RFI, see AR Tab 26, at 544–78, and simultaneously notified
DOL that it believed the RFI was biased because it used language adopted from defendantintervenor’s website describing its acquisition software and, therefore, DOL’s market research
would be flawed, AR Tab 26, at 542–43. DOL replied assuring plaintiff that its market research
was appropriate. AR Tab 27, at 581.
In May 2010, DOL issued its Market Research Report. AR Tab 90. The report explained
that DOL received nine responses to its RFI and that there were three feasible alternative
solutions proposed: (1) cheapest to implement (plaintiff), (2) mainstream (defendant-intervenor),
“Generally, an acquisition management system would be used by the agency to order material
and supplies.” Distributed Solutions, Inc. v. United States, No. 06-466 C, 2012 WL 1570997, at
*1 n.2 (Fed. Cl. Apr. 13, 2012).
Plaintiff submitted an amended memorandum in support of its motion for judgment on the
administrative record that provided proper page numbers. The Court cites to this document
throughout its opinion.
and (3) Oracle Advance Procurement Suite with a Contract System ([***]). AR Tab 90, at 2290.
The report noted that plaintiff’s solution met 96.6% of DOL’s requirements and would be the
least expensive to implement, that defendant-intervenor’s so-called mainstream solution met
97.6% of DOL’s requirements, and that [***] solution met 98% of DOL’s requirements. Id.
When discussing pros and cons, the report explained that plaintiff’s solution had “no established
‘community of users’ (federal users group) outside of DOL” and that the PRISM solution
proposed by both defendant-intervenor and [***] had “a very active community of users group
[and was] used by 75 federal organizations across the civilian, defense, intelligence and public
sectors.” Id. Of the three solutions, DOL found that the two most viable alternatives were
proposed by defendant-intervenor and plaintiff. Id.
On June 25, 2010, DOL finalized its Acquisition Plan and accompanying Independent
Government Cost Estimate (“IGCE”). See AR Tab 18; AR Tab 19, at 395. The Acquisition Plan
concluded “that a [General Services Administration (‘GSA’)] competition would be the most
advantageous procurement strategy to obtain the best value for the Government.” AR Tab 18, at
On July 16, 2010, DOL issued RFQ No. DOL110RQ21021, seeking a firm-fixed price
task order contract issued under the GSA Federal Supply Schedule (“FSS”) Information
Technology Schedule 70 for “commercial-off-the-shelf” (“COTS”) acquisition software. AR
Tab 34, at 603–04, 627; see also AR Tab 1. The original Request for Quotes (“RFQ”) called for
a performance period of a one-year base period, plus four one-year option periods, AR Tab 34, at
628, which was later amended to include six one-year option periods, AR Tab 93, at 2422
(amendment eight). Quotes were limited to GSA schedule holders with applicable Special Item
Numbers (“SINs”). AR Tab 34, at 604. On July 29, 2010, in an answer to a quoter’s question,
DOL indicated it was seeking a government-off-the-shelf (“GOTS”) solution. AR Tab 2, at 82;
compare AR Tab 1 (amended solicitation with COTS references), with AR Tab 34 (original
solicitation containing several GOTS references).
Bid Protest History, RFQ Amendments, and Corrective Action
Plaintiff filed a pre-award protest at the Government Accountability Office (“GAO”) on
August 13, 2010. AR Tab 24. Plaintiff protested, among other things, DOL’s use of the FSS to
procure a GOTS system. AR Tab 24, at 478–80. At the request of the GAO, GSA issued
comments on the solicitation stating that it could not determine whether the product DOL sought
fell within FSS Schedule 70 and that, in general, GOTS systems cannot be acquired through FSS
Schedule 70. AR Tab 41, at 718–20. In response to the protest and GSA’s comments, DOL
informed GAO that it would not seek a GOTS solution and that it would not issue an award
under the solicitation as it was then written. AR Tab 44, at 724. As a result, on October 29,
2012, GAO dismissed plaintiff’s protest as academic. AR Tab 46, at 227–28.
On December 9, 2010, DOL issued an amended RFQ, RFQ No. DOL110RQ21021-01,
utilizing the same FAR Part 8 procurement strategy. AR Tab 1. DOL removed all references to
a GOTS system and instead made clear that DOL was pursuing a COTS system. See id.
The RFQ provided that quotes would be evaluated based on technical approach, past
performance, product demonstration, and price. AR Tab 1, at 72. Technical approach was
“significantly more important than Past Performance and when combined, these two factors
[were] more important than Price.” Id. The price factor became “significantly more important
as non-price factors approach[ed] equality.” Id. The live product demonstration factor was
equal in importance to past performance. Id.
The RFQ stated that technical proposals were to be rated using an adjectival scale ranging
from “unsatisfactory” to “excellent.” AR Tab 1, at 69–70. Within the technical factor, subfactor
(a), functionality requirements, and subfactor (b), technical approach, were of equal importance.
AR Tab 1, at 69, 72. The RFQ instructed that the technical quotes “shall address the
requirements of the RFQ and the evaluation factors presented in [the] RFQ in a straightforward,
complete and concise manner.” AR Tab 1, at 69. Additionally, quoters were required to
“demonstrate [their] ability to comply with each requirement and explain how such compliance
is achieved.” Id. Quotes that paraphrased or regurgitated requirements were considered
“inadequate and [would] be deemed not to comply with the RFQ.” Id.
With regard to subfactor (a) of the technical factor, the RFQ required quoters to “provide
comment(s) for Attachments 2–4 on how their proposed product meets that specific
functionality.” Id. “No comment, commenting as ‘N/A’, or leaving this field blank [would]
count against the overall total score.” Id. The RFQ went on to explain: “It is very important that
all quoters make it clear how and when they intend to meet each functional requirement.
Solutions that fail to meet any of the High Priority functional requirements will not be
Pursuant to the RFQ, subfactor (b) of the technical factor contained the following ten
components, for which each quote was evaluated: (1) Understanding of the Management and
Implementation Requirements (based on data migration and conversion requirements), (2) DOL
System Interface Requirements, (3) DOL IT Security System Requirements, (4) Project
Management and System Development Life Cycle Methodology (“SDLCM”) Implementation
Plan and Approach, (5) Quality of Key Personnel, (6) Training, (7) Operations and Maintenance,
(8) Help Desk Support, (9) Quality Control Plan, and (10) Quality Assurance Surveillance Plan.4
For the past performance factor, quoters were to provide at least three past performance
references that were directly related to the RFQ requirements, including “implementation,
operations and maintenance, training, and help desk support in a Federal agency in the past five
years.” AR Tab 1, at 70. Additionally, the RFQ provided that “DOL [could] check other
sources of past performance information.” Id. The past performance information was
“combined to assess the risk of the Quoter to successfully perform the requirements of [the]
The original paragraph explaining subfactor (a) was subsequently altered by amendment six to
the RFQ. See AR Tab 7, at 90.
The solicitation set forth various requirements for each component identified within subfactor
(b). See AR Tab 1, at 32–55.
After all technical and past performance evaluations were complete, “a competitive range
consisting of the most highly rated Quotes [could] be further evaluated” based on a live product
demonstration. AR Tab 1, at 72. For the live product demonstration, quoters were required to
“conduct two separate user sessions with DOL staff following the script provided.” AR Tab 1, at
71. Each of the two sessions, “one for the procurement request functions and one for the
solicitation/contracting functions,” was to be attended by up to five DOL staff members who
would “evaluate the product’s User Interface, Reports, Wizards/Help Tips, etc.” Id. Quoters
were to send “key personnel to conduct these sessions and provide specific guidance on moving
the users through [the] procurement software.” Id.
The RFQ further stated that DOL “intend[ed] to evaluate quotes and make award without
discussions,” and, therefore, the “initial quote should contain the Quoter’s best terms from a
price and technical standpoint.” AR Tab 1, at 72. DOL “reserve[d] the right to conduct
discussions, if necessary,” and could “reject any or all quotes if such action is in the public
interest, accept other than the lowest quote, and waive informalities and minor irregularities in
Quotes received.” Id. The RFQ expressly stated that DOL was “more concerned with obtaining
superior technical features than with making an award at the lowest overall price to the
Government,” but would “not make an award at a significantly higher overall price to the
Government to achieve slightly superior technical features.” Id.
On December 29, 2010, plaintiff wrote DOL objecting to portions of the amended RFQ
and requesting that DOL take corrective action. AR Tab 47. Plaintiff asserted, among other
things, that the changes to the RFQ were “[u]nduly restricting vendors from providing the most
affordable solutions to the DOL.” AR Tab 47, at 729. In response, DOL treated plaintiff’s letter
as an agency-level protest and stated it would amend the RFQ.5 AR Tab 48, at 732–33; see AR
Tab 8 (amendment seven); see also AR Tab 52, at 773–74 (explaining that DOL issued
amendment seven in response to plaintiff’s December 29, 2010 protest). Plaintiff filed a second
Prior to the January 27, 2011 amendment (amendment seven), AR Tab 8, DOL had twice
amended the December 9, 2010 RFQ, see AR Tab 22, at 456; see also AR Tab 6 (amendment
five); AR Tab 7 (amendment six). Amendment five, in part, removed the following paragraph
from the “Basis for Award” section of the RFQ:
Rejection of Unrealistic Quotes: The Government may but is not required to reject
any quote that is evaluated to be unrealistic in terms of program commitments,
including task order terms and conditions, or unrealistically high or low in prices
when compared to Government estimates, such that the quote is deemed to reflect
an inherent lack of competence or failure to comprehend the complexity and risks
of the requirements.
AR Tab 6, at 89; see AR Tab 1, at 72. Amendment six principally deleted the paragraph
describing subfactor (a) and replaced it with a similar paragraph requiring that quoters provide
template language in response to each identified requirement. AR Tab 7, at 90. In addition, the
RFQ was later amended once more, as mentioned previously. See supra Part I.A; AR Tab 93
(amendment eight). Amendment eight modified, among other things, the solicitation’s
performance metrics and the performance period. AR Tab 93.
pre-award protest at the GAO on January 18, 2011. See AR Tab 51. An agency report issued by
DOL stated that amendment seven “rendered moot” several of plaintiff’s protest grounds. AR
Tab 52, at 774. Plaintiff filed a supplemental protest at the GAO on February 28, 2011,
contending, in part, that DOL “failed to adequately plan for this acquisition or conduct it in
compliance with the FAR or federal law.” AR Tab 55, at 796. Plaintiff withdrew its protest and
supplemental protest on April 26, 2011, AR Tab 67, at 1764, allegedly after receiving
confirmation that its quote was deemed to be in the competitive range and would be fully
considered for award, Pl.’s Mem. in Supp. of Mot. for J. on Administrative R. (“Pl.’s MJAR”) 7.
After receiving initial proposals, DOL held discussions with each quoter. See AR Tab
22, at 457. On June 3, 2011, quoters submitted final proposal revisions. See AR Tab 10, at 98;
AR Tab 21, at 404; see also AR Tab 12 (defendant-intervenor’s revised price proposal); AR Tab
13 (plaintiff’s revised price proposal). On August 11, 2011, the contracting officer (“CO”)
issued an Award Decision Document selecting defendant-intervenor as the awardee. AR Tab 16.
Plaintiff filed a third GAO protest on August 26, 2011, its first post-award protest, alleging that
DOL had failed to properly conduct the procurement. AR Tab 68. Plaintiff then filed a
supplemental protest alleging that DOL evaluated quoters using unstated evaluation criteria and
that DOL failed to properly amend the solicitation after changing its requirements. AR Tab 79.
DOL subsequently acknowledged making errors in its evaluation and, on October 26, 2011, DOL
notified GAO of its intent to take corrective action by conducting a reevaluation of the quoters’
technical proposals. AR Tab 85, at 2255. As a result, the GAO dismissed plaintiff’s third
protest as academic. AR Tab 88, at 2263–64.
On March 27, 2012, following the completion of the corrective action, the CO issued a
new Award Decision Document, reaffirming the award to defendant-intervenor. AR Tab 22.
Plaintiff states that it filed a fourth protest on April 9, 2012 “seeking to remedy the remaining
flaws in DOL’s evaluation.” Pl.’s MJAR 11.
Evaluation, Reevaluation, and Present Action
As noted, on June 3, 2011, DOL received final quotations from defendant-intervenor,
plaintiff, and [***]. See AR Tab 10, at 98; AR Tab 21, at 404; see also AR Tabs 12–13.
Plaintiff’s total evaluated price was [***] and defendant-intervenor’s total evaluated price was
$19,877,878.63. See AR Tab 16, at 316. DOL evaluated each offeror’s price in relation to the
IGCE, which was [***]. Id. The IGCE was computed based on the existing rates DOL
experienced with its current vendors and the responses DOL received to the RFI. AR Tab 18, at
389; see AR Tab 19, at 395–96. Defendant-intervenor’s price quote was approximately [***]
lower than the IGCE, and plaintiff’s price quote was approximately [***] lower. AR Tab 22, at
The technical quotations were evaluated by DOL’s technical evaluation panel (“TEP”)
and assigned adjectival ratings. See AR Tab 10. The TEP rated defendant-intervenor as “very
good” and plaintiff as “good” overall for the technical factor. AR Tab 10, at 145.
For the past performance factor, each quoter identified at least three references for similar
work completed within the past five years. AR Tab 11, at 146. Each reference received and
answered a questionnaire via e-mail. Id. Additionally, a DOL reference with “firsthand
knowledge of the procurement and implementation of DOL’s E-Procurement System (EPS)”
received a questionnaire. Id. DOL also searched through the Contractor Performance
Assessment Reporting System for additional past performance information. Id. Overall, DOL
considered fourteen questionnaires: four for plaintiff, five for defendant-intervenor, and five for
[***]. Id. Defendant-intervenor received a “very good” past performance rating, and plaintiff
received a “satisfactory” rating. AR Tab 11, at 146–47.
After the competitive range was established, each remaining offeror conducted a live
product demonstration of its proposed system. AR Tab 1, at 71–72; see AR Tab 9 (summary of
product demonstrations). The demonstrations were attended by contracting personnel from
several DOL agencies who “tested the systems for look, feel, logic, flow and robustness of
reporting function.” AR Tab 81, at 2163; see AR Tab 1, at 71; AR Tab 16, at 316; see also AR
Tab 9, at 95–97 (listing personnel who attended the product demonstrations). A summary of the
product demonstrations recorded that attendees found defendant-intervenor’s system easy to use
and plaintiff’s system “very difficult to understand.” AR Tab 9, at 93. Additionally, some users
questioned whether plaintiff’s system was Section 508 compliant.6 AR Tab 9, at 93–94.
Ultimately, defendant-intervenor received a rating of “very good” and plaintiff received a rating
of “good” for the live product demonstration factor. AR Tab 16, at 317.
Following DOL’s decision to take corrective action on October 26, 2011, the TEP
reevaluated the offerors’ technical proposals under each of the factors set forth in the RFQ. AR
Tab 21, at 404. The TEP was able to “reach a new consensus of ratings” for the quotes that it
documented in its January 26, 2011 report. AR Tab 21, at 405. After the reevaluation of subfactor (a) of the technical factor, defendant-intervenor and plaintiff each received the same
ratings as the first evaluation for functional requirements, technical requirements, and integration
requirements. Compare AR Tab 10, at 144, with AR Tab 21, at 408; see also AR Tab 21, at 405.
The overall ratings for sub-factor (a) changed from a “very good/minimal risk” rating to an
“excellent/very good” rating for defendant-intervenor, and from a “good/moderate risk” rating to
a “good/marginal” rating for plaintiff. Compare AR Tab 10, at 144, with AR Tab 21, at 408.
The TEP explained that defendant-intervenor had “a very good to excellent probability of
satisfying the requirements with minimal risk to DOL” and that it did not have “a high degree of
confidence that [plaintiff’s] product ‘really does what [plaintiff] says it does.’” AR Tab 21, at
Under sub-factor (b) of the original evaluation, defendant-intervenor received three
“excellent,” six “very good,” and two “good” ratings for an overall rating of “very good/minimal
risk.” AR Tab 10, at 144. In the reevaluation, defendant-intervenor received six “excellent,”
Section 508 of the Rehabilitation Act requires that federal departments and agencies ensure that
their electronic and information technology is accessible to users with disabilities. 29 U.S.C.
§ 794d. Section 508 compliance was mandatory under subfactor (a) of the technical factor of the
solicitation. The solicitation stated: “The Quote shall be evaluated as to what extent it meets
each functional requirement of Attachments 2–4. Requirements in attachments 2–4 identified as
‘High’ priority are mandatory . . . .” AR Tab 1, at 69. Attachment 3 to the solicitation,
Technical Requirement, provided that Section 508 compliance was high priority. See AR Tab
96, at 2514.
three “very good,” and one “good” rating with an overall rating of “excellent/very good.” AR
Tab 21, at 453–54. Plaintiff received five “very good” and six “good” ratings, with an overall
rating of “good/moderate risk” in the original evaluation. AR Tab 10, at 144. In the
reevaluation, plaintiff received seven “very good” and three “good” ratings, with an overall
rating of “very good/good.” AR Tab 21, at 453–54. The subfactor (b) reevaluation removed two
improperly included evaluation categories, “Change Management” and “Business Process ReEngineering,” and added an additional category, “Quality Assurance Surveillance Plan,”
pursuant to the solicitation and in accordance with the agency’s corrective action. Compare AR
Tab 10, at 101–02, with AR Tab 21, at 453–54; see AR Tab 85, at 2255.
In her second award decision, the CO reviewed the TEP ratings and assigned her own
overall technical ratings to each offeror, giving defendant-intervenor an overall technical rating
of “excellent” and plaintiff an overall technical rating of “very good.” AR Tab 22, at 468–70.
The CO then engaged in a tradeoff analysis, evaluating price and non-price factors in relation to
each other. AR Tab 22, at 472–74. The CO determined that defendant-intervenor “offer[ed] the
significantly better quote/proposal from a non-price standpoint.” AR Tab 22, at 473. The CO
then concluded that defendant-intervenor, even at a higher price than plaintiff, presented the best
overall value to the Government. AR Tab 22, at 474.
On May 22, 2012, plaintiff filed an amended complaint alleging DOL “conducted an
arbitrary and capricious procurement process, resulting in flawed evaluations of both plaintiff’s
and the awardee’s quotes.” Am. Compl. 1. Plaintiff alleges that errors in its initial evaluation
went uncorrected and that there were errors in the corrective action. See id. Specifically,
plaintiff alleges that (1) DOL improperly reevaluated plaintiff’s and defendant-intervenor’s
technical approaches; (2) DOL failed to engage in meaningful discussions with plaintiff; (3)
DOL misevaluated plaintiff’s past performance; (4) DOL misevaluated plaintiff’s product
demonstration; (5) DOL misevaluated defendant-intervenor’s technical approach; (6) DOL failed
to engage in a proper price-reasonableness evaluation; (7) the IGCE was unreasonably high; (8)
DOL’s misevaluations of plaintiff’s and defendant-intervenor’s quotes caused a flawed
cost/technical tradeoff analysis and resulted in a flawed best-value determination; (9) DOL acted
arbitrarily and capriciously when it decided to pay more than a [***] price premium for a onelevel rating improvement; (10) DOL breached the implied contract to fully and fairly consider
plaintiff’s proposal; (11) DOL failed to treat plaintiff impartially, fairly, and equitably; (12) DOL
breached the implied duty of good faith and fair dealing; and (13) DOL failed to implement its
proposed corrective action. See Am. Compl. 35–59.
On May 1, 2012, the date the original complaint was filed, the Court held an initial status
conference (docket entry 13), during which the Court granted defendant-intervenor’s motion to
intervene. See May 2, 2012 Order 1 (docket entry 14). The administrative record was filed on
May 4, 2012 (docket entry 18), and amended on May 18, 2012 (docket entry 19). As noted, on
May 22, 2012, plaintiff filed its motion for judgment on the administrative record. Defendant
and defendant-intervenor filed their cross-motions for judgment on the administrative record and
responses in opposition to plaintiff’s motion for judgment on the administrative record on June 7,
2012. Plaintiff filed its reply to defendant’s and defendant-intervenor’s responses to plaintiff’s
motion for judgment on the administrative record on June 18, 2012. On June 25, 2012,
defendant and defendant-intervenor filed their replies to plaintiff’s response to their crossmotions for judgment on the administrative record.
This Court has jurisdiction over post-award protests, such as this one, pursuant to the
Tucker Act, 28 U.S.C. § 1491, as amended by the Administrative Dispute Resolution Act of
1996, Pub. L. No. 104-320, 110 Stat. 3870. Specifically, 28 U.S.C. § 1491(b)(1) provides this
court with the authority “to render judgment on an action by an interested party objecting to a
solicitation by a Federal agency for bids or proposals for a proposed contract or to a proposed
award or the award of a contract or any alleged violation of statute or regulation in connection
with a procurement or a proposed procurement.” 28 U.S.C. § 1491(b)(1).
Notably, the Federal Acquisition Streamlining Act’s (“FASA”) limitation on the protest
of task or delivery orders in the Court of Federal Claims, 41 U.S.C. § 4106(f), does not extend to
task orders issued pursuant to the GSA FSS. Furniture by Thurston v. United States, 103 Fed.
Cl. 505, 511 n.8 (2012) (“[T]his statutory constraint [of FASA] does not apply to the court’s
jurisdiction over protests of task orders under GSA FSS contracts . . . .”); Data Mgmt. Servs.
Joint Venture v. United States, 78 Fed. Cl. 366, 371 (2007) (“The court’s protest jurisdiction
extends to protests of task or delivery orders placed against a GSA schedule contract.”); Idea
Int’l, Inc. v. United States, 74 Fed. Cl. 129, 135–37 (2006) (discussing FASA and its relation to
orders placed against the GSA FSS and concluding that “FASA’s prohibition on bid protests
does not cover GSA [FSS] orders”); see also Data Mgmt. Servs. Joint Venture, 78 Fed. Cl. at 371
n.4 (discussing the court’s precedent on the applicability of FASA to GSA FSS task orders).
Accordingly, this Court possesses subject matter jurisdiction over plaintiff’s bid protest action.
When deciding a case based on cross-motions for judgment of the administrative record
pursuant to Rule 52.1 of the Rules of the Court of Federal Claims, the court “examines whether
the administrative body, given all the disputed and undisputed facts appearing in the record,
acted in a manner that complied with the legal standards governing the decision under review.”
MORI Assocs., Inc. v. United States, 102 Fed. Cl. 503, 518 (2011). The court’s “[f]actual
findings are based on the evidence in the record, ‘as if [the Court] were conducting a trial on the
record.’” Id. (quoting Bannum Inc. v. United States, 404 F.3d 1346, 1357 (Fed. Cir. 2005))
(second alteration in original); accord Harper v. United States, No. 11-45C, 2012 WL 1072308,
at *6 (Fed. Cl. Apr. 2, 2012).
The Court of Federal Claims reviews an agency’s procurement decisions pursuant to the
Administrative Procedure Act. Banknote Corp. of Am., Inc. v. United States, 365 F.3d 1345,
1350 (Fed. Cir. 2004). “[A] reviewing court shall set aside the agency action if it is ‘arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with law.’” Id. at 1350–51
(quoting Advanced Data Concepts, Inc. v. United States, 216 F.3d 1054, 1057–58 (Fed. Cir.
2000)). “Under this standard, a procurement decision may be set aside if it lacked a rational
basis or if the agency’s decision-making involved a violation of regulation or procedure.”
DynCorp Int’l LLC v. United States, 76 Fed. Cl. 528, 536 (2007) (citing Impresa Construzioni
Geom. Domenico Garufi v. United States, 238 F.3d 1324, 1332 (Fed. Cir. 2001)).
To determine if an agency’s decision lacked a rational basis, the court must analyze
“whether the contracting agency provided a coherent and reasonable explanation of its exercise
of discretion.” MORI Assocs., Inc., 102 Fed. Cl. at 519 (quoting Impresa Construzioni Geom.
Domenico Garufi, 238 F.3d at 1333) (internal quotation marks omitted). This analysis involves
assessing whether the agency “‘failed to consider an important aspect of the problem, offered an
explanation for its decision that runs counter to the evidence before the agency,’ or made a
decision that was ‘so implausible that it could not be ascribed to a difference in view or the
product of agency expertise.’” Id. (quoting Ala. Aircraft Indus., Inc.-Birmingham v. United
States, 586 F.3d 1372, 1375 (Fed. Cir. 2009)). With regard to a showing that an agency’s action
violated regulation or procedure, the “showing must be of a ‘clear and prejudicial violation.’” Id.
(quoting Impresa Construzioni Geom. Domenico Garufi, 238 F.3d at 1333).
The agency has broad discretion in conducting a procurement. See Lockheed Missiles &
Space Co. v. Bentsen, 4 F.3d 955, 958–59 (Fed. Cir. 1993) (“Effective contracting demands
broad discretion. Accordingly, agencies ‘are entrusted with a good deal of discretion in
determining which bid is the most advantageous to the Government.’” (citations omitted)
(quoting Tidewater Mgmt. Servs., Inc. v. United States, 573 F.2d 65, 73 (Ct. Cl. 1978)) (citing
Burroughs Corp. v. United States, 617 F.2d 590, 598 (Ct. Cl. 1980))); DynCorp Int’l LLC, 76
Fed. Cl. at 537 (“‘[B]est value’ contract awards give a contracting officer more discretion than
awards based on price alone.” (citing Galen Med. Assocs., Inc. v. United States, 369 F.3d 1324,
1330 (Fed. Cir. 2004))). Specifically, in the context of a rational basis analysis, “courts have
recognized that contracting officers are ‘entitled to exercise discretion upon a broad range of
issues confronting them’ in the procurement process.” Impresa Construzioni Geom. Domenico
Garufi, 238 F.3d at 1332 (quoting Latecoere Int’l, Inc. v. U.S. Dep’t of Navy, 19 F.3d 1342, 1356
(11th Cir. 1994)). The court, thus, must afford agency decisions deference, and plaintiff bears
the burden to show by a preponderance of the evidence that the award decision lacked a rational
basis or violated law. MORI Assocs., Inc., 102 Fed. Cl. at 519.
Waiver Does Not Apply to Plaintiff’s Claims Except to the Extent that Plaintiff
Challenges DOL’s Decision Not to Conduct a Small-Business Set Aside
Defendant-intervenor contends that plaintiff has waived certain arguments pursuant to
Blue & Gold Fleet, L.P. v. United States, 492 F.3d 1308 (Fed. Cir. 2007), because plaintiff failed
to submit timely challenges to DOL’s actions that occurred before October 26, 2011, the date
DOL decided to take corrective action and reevaluate the proposals. Specifically, defendantintervenor states that plaintiff failed to timely raise its contentions that “(1) the original [RFI]
was copied verbatim from Compusearch’s website; (2) DOL switched the procurement to a GSA
schedule solicitation in order to circumvent small business set aside requirements; and (3) DOL
undertook procurement revisions and corrective actions in order to steer the award to
Compusearch.” Def.-Intervenor’s Cross-Mot. for J. on Administrative R. 8 (citations omitted).
According to Blue & Gold Fleet, “a party who has the opportunity to object to the terms
of a government solicitation containing a patent error and fails to do so prior to the close of the
bidding process waives its ability to raise the same objection subsequently in a bid protest action
in the Court of Federal Claims.” 492 F.3d at 1313.
With regard to the first and third arguments defendant-intervenor contends are waived,
the Court finds that these are not properly objections to a patent error in the terms of the
solicitation at issue. In rejecting plaintiff’s claims below, the Court rejects these arguments as
well. See infra Parts II.I, II.K.
The second argument, to the extent that it is a challenge to the agency’s decision not to
conduct a small-business set aside, is not properly before this court. This is an objection to the
terms of the solicitation that could have been made pre-award. Although alluded to in its
protests to GAO, plaintiff’s small-business set-aside argument was never identified as a specific
challenge to the procurement before GAO. See AR Tab 24; AR Tab 51. Accordingly, to the
extent that plaintiff is now seeking to rely upon this argument,7 it has been waived. See
Benchmade Knife Co. v. United States, 79 Fed. Cl. 731, 737–38 (2007) (finding the plaintiff’s
small-business set-aside argument waived when it did not raise it prior to the close of the
DOL’s Reevaluation of the Proposals Was Proper, and Its Corrective Action Was
Plaintiff argues that DOL’s reevaluation of the proposals was improper. Specifically,
plaintiff alleges that the new ratings resulting from DOL’s reevaluation were arbitrary and
capricious because the same TEP evaluated the same proposal information and issued different
ratings, resulting in a larger spread between the technical ratings of plaintiff and defendantintervenor. Plaintiff also argues that the corrective action as executed was arbitrary and
capricious because it did not comport with DOL’s stated plan for its corrective action.
To support its argument that the reevaluation was improper because it involved the same
TEP and the same proposals, plaintiff points to Wackenhut Services, Inc. v. United States, in
which the Court of Federal Claims found that the Source Evaluation Board (“SEB”) violated the
Administrative Procedure Act “by failing to create a record to explain and justify the . . . increase
in point score . . . between the SEB’s Preliminary and Final Findings as to [an offeror’s]
Technical Approach Subfactor.” 85 Fed. Cl. 273, 297 (2008). Because of this failure to create a
record, the court could not determine whether the SEB acted arbitrarily or capriciously in its
evaluation of the offerors’ revised final proposals, which were submitted after the agency
conducted discussions. Id.
Here, unlike in Wackenhut, the TEP provided adequate documentation to support its
analysis and the adjectival ratings it assigned to the quotes. See AR Tab 21; Def.-Intervenor’s
Reply Br. in Supp. of Def.-Intervenor’s Mot. for J. on Administrative R. (“Def.-Intervenor’s
Reply”) app. A (comparing excerpts from the TEP’s initial evaluation report and its reevalution
report); compare AR Tab 10, with AR Tab 21. Additionally, as defendant highlights, in
Wackenhut, the solicitation provided for a negotiated procurement with two rounds of
evaluation—the first round based on initial proposals and the second, post-discussion round
DSI does not set out any of the above allegations as arguments unto themselves. All of these
concepts are discussed or implied in the background section of plaintiff’s motion for judgment
on the administrative record or throughout its other arguments.
based on final proposals. Def.’s Reply to Pl.’s Resp. to Cross-Mots. for J. upon Administrative
R. (“Def.’s Reply”) 5; see Wackenhut, 85 Fed. Cl. at 280–81. Here, one round of evaluations
was contemplated by the solicitation after the competitive range was established, AR Tab 1, at
72, and the second round of evaluations—intended to replace the first round—was conducted as
a result of DOL’s corrective action, see AR Tab 85, at 2255. Accordingly, explanation of the
increase in quoter ratings was not necessitated by the solicitation. Regardless, the detailed
analysis the TEP provided in the reevaluation report adequately supported the new adjectival
ratings and justified the changes made to the evaluations.8 See AR Tab 21.
Nothing suggests that it was improper for DOL to employ the same TEP to reevaluate the
same quotes. Despite plaintiff’s contentions, the record does not reveal that the members of the
TEP were biased or otherwise negatively motivated, and plaintiff posits no persuasive reason
why employing the same TEP was unreasonable. Accordingly, the Court finds meritless
plaintiff’s argument that the ratings were arbitrary and capricious because DOL employed the
same TEP on reevaluation. See Comprehensive Health Servs., Inc. v. United States, 70 Fed. Cl.
700, 710, 726–29 (2006) (finding that a reevaluation was not arbitrary or capricious when it was
conducted by the same evaluation board with one new member, involved the same proposals as
the first evaluation, and resulted in changed adjectival ratings for the offerors, including at least
one downgrade); YRT Servs. Corp. v. United States, 28 Fed. Cl. 366, 390–91 (1993) (finding the
agency’s actions reasonable and that the agency did not merge two distinct evaluation phases
when it used “largely the same individuals” from the first phase of evaluations to conduct the
second phase of evaluations); see also 4D Security Solutions, Inc., B-400351.2 et al., 2008 WL
5505408, at *1–5 (Comp. Gen. Dec. 8, 2008) (denying a protest from an offeror who was
originally awarded the contract and, after corrective action was taken involving reevaluation of
quotes by the same evaluator, was not found to present the best value to the Government); U.S.
Def. Sys., Inc., B-245563 et al., 1992 WL 328737, at *1–2 (Comp. Gen. Nov. 3, 1992) (involving
a reevaluation of proposals by the same two-member TEP that conducted the initial evaluation of
Plaintiff also argues that DOL’s execution of the corrective action was arbitrary and
capricious because it did not comport with DOL’s stated plan for its corrective action. Pl.’s
MJAR 25–27. After plaintiff alleged that DOL erred in its initial evaluation by, among other
things, adding two evaluation items not specified in the solicitation under subfactor (b) of the
technical factor and by failing to evaluate an evaluation item, DOL decided to take corrective
action. AR Tab 85, at 2255. The proposed corrective action consisted of a reevaluation of the
quotes “without reference to the Technical Subfactor (b) factors of ‘Change Management’ and
‘Business Process Re-Engineering’ and with reference to the factor of ‘Quality Assurance
Surveillance Plan.’” Id.
The corrective action DOL outlined was appropriately conducted. In the second TEP
report, the TEP properly listed and evaluated the ten components that the solicitation provided
This holds true for DOL’s assessment of the technical factor for defendant-intervenor. See Pl.’s
MJAR 40–41 (arguing that the TEP’s assessment of defendant-intervenor’s technical factor was
arbitrary and capricious for the same reasons it alleged that the TEP’s assessment of plaintiff’s
technical factor was arbitrary and capricious).
would be analyzed under subfactor (b) of the technical factor, notably excluding “Change
Management and Business Process Re-Engineering” and including “Quality Assurance
Surveillance Plan” as the solicitation required. See AR Tab 21, at 409. However, “Change
Management” and “Business Process Re-Engineering” were stated considerations in the
solicitation within the “Project Management and SDLCM Implementation Plan and Approach”
component of subfactor (b). AR Tab 1, at 47–48. Contrary to plaintiff’s contentions, the
solicitation provided that DOL was to evaluate these considerations as part of an announced
factor. See Fulcra Worldwide, LLC v. United States, 97 Fed. Cl. 523, 536 (2011) (“A solicitation
must state all significant factors and subfactors that the agency will consider in evaluating
proposals. Evaluators must base their decisions on these factors and subfactors.” (citations
omitted)). The TEP thus reevaluated the proposals appropriately when it looked at “Change
Management” and “Business Process Re-Engineering” in its review of “Project Management and
SDLCM Implementation Plan and Approach.”
Plaintiff also contends that DOL acted arbitrarily and capriciously when it “simply
moved the same verbiage from its original TEP report regarding ‘Change Management’ and
‘Business Process Re-Engineering’ into another evaluation factor—‘Project Management’” Pl.’s
MJAR 12, 26. The Court finds that it was not unreasonable for the TEP, when writing its
reevaluation report, to reuse language from its initial evaluation when its initial evaluation of
those components did not change upon reevaluation.
Accordingly, the corrective action DOL implemented was rational and supported by the
record. Moreover, as discussed above, DOL’s execution of its corrective action was appropriate,
reasonable, and within its discretion.
DOL’s Discussions with Plaintiff Were Proper and in Accordance with FAR
Plaintiff contends that DOL failed to engage in meaningful discussions regarding the
weaknesses in its proposals and its past performance evaluations. First, it is not disputed that this
solicitation was issued under the GSA FSS for Schedule 70, Information Technology.
Accordingly, FAR 8.4 provided the requisite guidelines and procedures for the procurement.
FAR 8.403(a) (“Procedures in this subpart apply to—(1) Individual orders for supplies or
services placed against [FSS] contracts; and (2) [blanket purchase agreements] established
against [FSS] Contracts.”).
Despite the applicability of FAR 8.4, plaintiff contends that DOL failed to conduct
meaningful discussions pursuant to FAR 15.306 because, when conducting discussions, “DOL
never mentioned any deficiencies in [plaintiff’s] Technical Approach, despite its later evaluation
of deficiencies in [plaintiff’s] Sub-factor (a) and Sub-factor (b) submissions.” Pl.’s MJAR 33.
Additionally, plaintiff contends DOL failed to comply with FAR 15.306 because it did not
provide plaintiff with an opportunity to respond to its past performance evaluations. Id. at 34.
Plaintiff’s contentions lack merit. As an initial matter, FAR 8.404 expressly provides that
FAR Part 15 “do[es] not apply to . . . orders placed against [FSS] contracts.” FAR 8.404(a).
“FAR Part 15, therefore, is explicitly made inapplicable to FSS contracts.” Sys. Plus Inc. v.
United States, 68 Fed. Cl. 206, 210 (2005). Plaintiff contends that because DOL engaged in
discussions, it was required to follow FAR Part 15 procedures. This misconstrues case law.
This court “consistently has held that procurements conducted under Subpart 8.4 are different
from those conducted under Part 15, even if ‘some procedures also present in Part 15 are
utilized.’” Allied Tech. Grp. v. United States, 94 Fed. Cl. 16, 44 (2010) (quoting Sys. Plus Inc.,
68 Fed. Cl. at 211), aff’d, 649 F.3d 1320 (Fed. Cir. 2011). Therefore, that DOL conducted
discussions did not mean it had to comply with the strict procedures of FAR Part 15. Id.
(“Where a solicitation governed by FAR Subpart 8.4 uses procedures found in FAR Part 15, the
procurement official need not comply with ‘the more formal and rigorous procedures for
negotiated procurements.’” (quoting Holloway & Co. v. United States, 87 Fed. Cl. 381, 393
(2009))); Sys. Plus Inc., 68 Fed. Cl. at 210 (“[W]hile the agency can elect to use procedures from
[FAR Part 15], they are not presumptively applicable.”); Labat-Anderson Inc. v. United
States, 50 Fed. Cl. 99, 104 (2001) (“[T]his Court has held that FSS acquisitions are not
transformed into negotiated procurements simply because an agency chooses to utilize in its
evaluation process more formal elements typically used in a negotiated procurement . . . .”).
Despite this, relevant portions of FAR Part 15 may be used in analyzing a procurement
when those specific portions of FAR Part 15 were “implicated by the particular procedure that
the solicitations stated would be used.” Sys. Plus Inc., 68 Fed. Cl. at 211. Case law suggests that
relatively clear intentions that FAR Part 15 procedures will be used is necessary to trigger their
application to a procurement. See id.; see, e.g., ACS Gov’t Solutions Grp., Inc., B-282098 et al.,
1999 WL 397426, at *10 (Comp. Gen. June 2, 1999) (analyzing discussions conducted in a FAR
Part 8 procurement using FAR Part 15 guidance when the solicitation expressly provided that
discussions were part of the procurement process). Here, the solicitation specifically provided
that the agency “intend[ed] to evaluate quotes and make award without discussions,” although it
reserved the agency’s “right to conduct discussions, if necessary.” AR Tab 1, at 72 (emphasis
added). Accordingly, the solicitation not only did not contemplate discussions, but also did not
condone a FAR Part 15 procedure governing discussions. And, under FAR Part 8, DOL was
under no obligation to hold discussions. See Career Training Concepts, Inc., B-311429 et al.,
2008 WL 6049972, at *4 (Comp. Gen. June 27, 2008) (“[W]here a procurement is an FSS
purchase conducted pursuant to FAR part 8.4, . . . an agency properly may make award without
conducting discussions, even if the solicitation does not expressly advise vendors of that
possibility.” (citing Avalon Integrated Servs. Corp., B-290185, 2002 WL 1577705, at *3 (Comp.
Gen. July 1, 2002)). Accordingly, plaintiff’s contention that DOL violated FAR by failing to
provide meaningful discussions fails.9
Although FAR Part 15 does not apply, the Court will review DOL’s actions to ensure they
comply with FAR’s requirement of fundamental fairness in the procurement process. Allied
Tech. Grp. Inc., 94 Fed. Cl. at 44; Unisys Corp. v. United States, 89 Fed. Cl. 126, 140 (2009).
This requires that “[a]ll contractors and prospective contractors shall be treated fairly and
impartially but need not be treated the same.” FAR 1.102-2(c)(3). DOL treated all quoters fairly
with respect to discussions. As plaintiff points out, “DOL held Discussions with each of the
vendors in the competitive range following product demonstrations.” Pl.’s MJAR 33; see AR
Tab 22, at 457. Nothing in the record implies that these discussions were unequal or that one
quoter was provided more information than another.
DOL Did Not Act Arbitrarily or Capriciously When It Evaluated Plaintiff’s Quote
With Respect to the Technical Subfactors
DOL Properly Evaluated Plaintiff’s Quote for Subfactor (A)
Plaintiff contends that DOL “improperly downgraded” plaintiff’s rating for subfactor (a)
of the technical factor, which assessed functionality requirements, because plaintiff “follow[ed]
the RFQ.” Pl.’s MJAR 28–29. In the solicitation, DOL explained that a quote “shall be
evaluated as to what extent it meets each functional requirement” of certain attachments to the
RFQ. AR Tab 1, at 69. The solicitation explained: “The quoter must provide comment(s) for
Attachments 2–4 on how [its] proposed product meets that specific functionality. No comment,
commenting as ‘N/A’, or leaving this field blank WILL count against the overall total score.” Id.
(emphasis added). The penultimate sentence in the explanatory paragraph stated, “It is very
important that all quoters make it clear how and when they intend to meet each functional
Amendment six to the solicitation deleted the entire paragraph that explained subfactor
(a) and replaced it with a revised paragraph. AR Tab 7, at 90. The revised paragraph stated, in
relevant part: “The quoter shall provide comment(s) for Attachments 2–4 on how [its] proposed
product meets that specific functionality. No comment, commenting as ‘N/A’, or leaving this
field blank WILL count against the overall total score.” Id. The final sentence read:
[I]t is very important that all quoters make it clear as to how and when they intend
to meet each functional requirement by stating one of the following:
(a) included in the core software package
(b) included through customization at no additional cost to the government
(c) included through customization at additional cost to the government
(d) included by another means (identify means)
(e) not included/offered.
Id. When responding, plaintiff used only the template responses and did not provide any
comments or other detail as to how its quote complied with subfactor (a)’s functionality
requirements. See AR Tab 21, at 406. Despite not providing comments, plaintiff was rated
“good/marginal” for this subfactor. Id.
Plaintiff now claims that it was “downgraded” for complying with the terms of the
solicitation, namely for replying to the functionality subfactor with the template responses. The
Court is not persuaded. First, plaintiff was not deemed unsatisfactory and, despite not providing
comments, was still assigned a relatively favorable rating—“good/marginal.” Second,
amendment six explicitly stated that quoters “shall provide comment(s) . . . on how their
proposed product meets that specific functionality.” AR Tab 7, at 90 (emphasis added). Third,
the amendment does not state that the template responses are themselves “comments” nor that
they can be provided in lieu of comments. The TEP evaluation report explains that the TEP
“looked to the template responses . . . to determine whether offerors met the requirements, and
[it] looked to the comments to support the vendors’ template responses.” AR Tab 21, at 406.
Notably, the TEP did not evaluate the comments themselves, which is in accordance with DOL’s
answer to a question posed by a quoter. AR Tab 2, at 77. The Court finds the TEP’s evaluative
method consistent with the explanation contained in the solicitation and, therefore, not arbitrary
In addition, the TEP’s evaluation report expressed concern with plaintiff’s template
responses to some of the functionality requirements because the specific response did not always
properly correspond to the functionality requirement being assessed. For example, the TEP
explained that plaintiff responded “[i]ncluded in the core software package” for an item that was
not a core functionality requirement. AR Tab 21, at 406. The TEP, therefore, could not discern
how plaintiff would meet this requirement. See id. This lack of clarity, presumably resulting
from a lack of detailed comments, reasonably caused the TEP to lack confidence in plaintiff’s
proposal, thus resulting in plaintiff’s “good/marginal” rating. It therefore appears that it was
plaintiff’s inadequate responses to the functionality requirements, not its failure to provide
comments, that resulted in its rating.
Accordingly, the agency’s evaluation of plaintiff’s response to subfactor (a) was
reasonable and within its discretion. See Benchmade Knife Co., 79 Fed. Cl. at 735 (“Agency
technical evaluations . . . should be afforded a greater deference by the reviewing court.”).
DOL Did Not Act Arbitrarily or Capriciously When It Evaluated
Plaintiff’s Quote for Subfactor (B)
DOL’s Evaluation of Plaintiff’s Work Breakdown Structure Was
Not Arbitrary or Capricious
Plaintiff also takes issue with the weakness it was assigned as a result of its Work
Breakdown Structure (“WBS”), which was assessed within the “Project Management and
SDLCM Implementation Plan and Approach” component of subfactor (b) of the technical factor.
According to the solicitation: “The WBS is the project roadmap; as such, it shall be used
throughout the life cycle of the project. The WBS shall document the activities, milestones,
resource and duration anticipated to complete each phase of the specific request/requirement.”
AR Tab 1, at 46. Notably, DOL expected that quoters would provide a proposed WBS with their
quotes. See AR Tab 1, at 68.
Plaintiff rests its challenge on question and answer number 56. See Pl.’s MJAR 30.
Question 56 posited: “Does the DOL require Quoters to provide an updated WBS with the
quotation? If so, can the basic WBS provided be modified at all levels or are we supposed to
only add subtasks to the high-level tasks?” AR Tab 2, at 79. DOL’s answer stated, “DOL does
not require the offerors to provide an updated WBS with their quotes.” Id.
Upon evaluation, the TEP determined that “DSI did not provide a comprehensive WBS.”
AR Tab 21, at 433. The TEP explained that there were gaps in plaintiff’s WBS and noted that
the “lack of detailed WBS means there is poor up-front definition and planning, which will cause
serious problems for DOL in many areas later in the project lifecycle.” Id. The TEP noted that
“there is a moderate risk to DOL that DSI will NOT satisfy this requirement.” Id. Accordingly,
this was determined to be a weakness of plaintiff’s within the “Project Management” component
of subfactor (b) of the technical factor. Id.
The term “updated” in the answer to question 56 seems to refer to the WBS model
contained in attachment 5 of the solicitation, see AR Tab 98, at 2545–46, which was also
referenced by the initial July 2010 solicitation, AR Tab 34, at 652. Defendant-intervenor
contends that “there would be no purpose to having offerors supply a WBS with their proposal if
they could simply copy the identical WBS from the solicitation.” Def.-Intervenor’s Reply 7.
The Court agrees. Moreover, when compared to the solicitation’s WBS, AR Tab 98, at 2545–46,
plaintiff did, in fact, supply additional detail to its WBS submitted with its quote, indicating that
it understood that mirroring the solicitation’s WBS was not contemplated by the agency. See AR
Tab 70, 2053–55. Given this, and after review of the record, the Court determines that DOL did
not act arbitrarily or capriciously when it assessed a weakness for plaintiff’s WBS.
Even if the Court were to find that it was improper for DOL to assess plaintiff a weakness
for its WBS, this was only one of six non-material weaknesses plaintiff received for this
component, which ultimately received a “good technical rating and moderate risk rating.”10 AR
Tab 21, at 431. Had the TEP not assessed plaintiff’s WBS as a weakness, it is unlikely that
either the component’s rating or the overall rating for subfactor (b) would have increased.11
Taking WBS out of the evaluation scheme, plaintiff would have received three strengths and five
weaknesses; if WBS were included as a strength, plaintiff would have received four strengths
and five weaknesses. It is unlikely that this would have altered the “good/moderate” rating that
plaintiff received for this component. In fact, the “DOL System Interface Requirements”
component, which had two strengths and two non-material weaknesses, also received “a Good
technical rating and Moderate risk rating.” AR Tab 21, at 428. Therefore, even if plaintiff’s
WBS were not considered, or were considered a strength, the ratio of strengths to weaknesses
likely would not alter the overall adjectival rating.
DOL Properly Concluded that Plaintiff Did Not Adequately
Address Risk in Subfactor (B)
Plaintiff also takes issue with another weakness it was assessed under the “Project
Management” component of subfactor (b). Plaintiff argues that the TEP’s assessment that
plaintiff “did not address ‘how [it] will manage, track and communicate project risks,’” Pl.’s
MJAR 30 (quoting AR Tab 21, at 433), was improper because “[r]isk management is not one of
the evaluation components listed in the RFQ,” id. at 31. Plaintiff explains that, in the Project
Management description, “the only mention of risk is ‘risk monitoring.’” Id. (quoting AR Tab 1,
at 43). It notes that the concluding paragraph of the pertinent section of the solicitation states
that the specific phase of the contract at issue “includes assisting the [Project Management Office
(“PMO”)] to setup the project infrastructure and reporting required to manage the project—
charter, change management plan, templates, communications and risk management plans.” Id.
(quoting AR Tab 1, at 47). Plaintiff argues that “there was no requirement to provide a risk
This component had three identifiable strengths. AR Tab 21, at 433.
This component is one of ten evaluative components that comprise subfactor (b) of the
technical subfactor. Accordingly, the overall impact of the TEP’s assessment of plaintiff’s WBS
management plan and, in fact, that responsibility, post-contract award[,] was only to assist the
PMO with such a plan.” Id.
The Court does not find plaintiff’s argument persuasive. Although the solicitation did not
provide for a specific “risk management” evaluative factor, it is not the case, as plaintiff implies,
that plaintiff was faulted for not providing a risk management plan. Instead, in its review of
plaintiff’s project management proposal, the TEP explained: “DSI did not address how [it] will
manage, track and communicate project risks (as all projects have risks). This demonstrates that
the vendor does not understand how to manage risks for a project of this size and complexity.”
AR Tab 21, at 433. The TEP did not fault plaintiff for not providing a specific risk management
proposal, but rather, under the Project Management component of subfactor (b), the TEP
observed that plaintiff did not demonstrate how it would deal with project risks. See AR Tab 1,
at 43, 72. The Court finds that it was reasonable for the agency to expect a certain level of
competence and understanding demonstrated in the Project Management proposals. It was not
an abuse of discretion for the agency to assess the quoter’s attention to risk, or lack thereof, in its
Project Management proposal.12
Moreover, even if this were not considered a “weakness,” plaintiff’s overall adjectival
rating for this component would not likely change. See supra Part II.F.2.a (concerning plaintiff’s
adjectival ratings for its WBS). Accordingly, DOL properly concluded that plaintiff did not
adequately address risk in subfactor (b).
DOL Properly Evaluated Plaintiff’s Quote With Respect to the Past Performance
and Product Demonstration Factors
DOL Reasonably Evaluated Plaintiff’s Past Performance
The solicitation required quoters to provide past performance references. AR Tab 1, at
70; see AR Tab 22, at 466. DOL sent Past Performance Questionnaires (“PPQs”) to each of the
quoter’s respective references. AR Tab 22, at 466. DOL received four responses for plaintiff:
one from the [***], one from the [***], and two from [***]. AR Tab 105. [***]’s
questionnaires both rated plaintiff as “satisfactory” overall, the [***] rated plaintiff as “very
good” overall, and [***] rated plaintiff as “unsatisfactory.”13 Id.; see also AR Tab 22, at 466.
As a result of these ratings, plaintiff was given an overall past performance rating of
“satisfactory.” AR Tab 22, at 466.
Moreover, the TEP included this analysis concerning risk in its discussion of a table plaintiff
provided in its quote “that relate[d] the AMS requirements by solicitation section to the
implementation deliverables.” AR Tab 21, at 432. That risk was not its own distinct discussion
supports the conclusion that the agency did not improperly consider it a separate component or
Note that there was no “good” rating available. The adjectival scale responders were
instructed to utilize was, in ascending order, unsatisfactory, marginal, satisfactory, very good,
and exceptional. See AR Tab 105, at 2884.
Plaintiff argues several points with regard to DOL’s past performance evaluation. First,
plaintiff argues that [***] effectively controlled the outcome of plaintiff’s past performance
rating by providing two questionnaire responses on the same contract, both of which provided
overall ratings of satisfactory. Second, plaintiff argues that it should not have received ratings of
satisfactory from [***] because it had not been told that it performed inadequately during the
course of the contract. Third, plaintiff argues that [***] questionnaire was flawed because it
reviewed a period of time for which plaintiff was a subcontractor and issues with the prime
contractor prevented it from performing adequately. Plaintiff contends that DOL should have
provided it with an opportunity to explain its unsatisfactory rating from [***].
The Court finds that plaintiff’s arguments lack merit. First, [***]’s two questionnaires
did not control the outcome of the evaluation. Both questionnaires rated plaintiff “satisfactory.”
If one had been eliminated, plaintiff would have had one “satisfactory,” one “very good,” and
one “unsatisfactory” past performance rating. It is unlikely that this would result in an adjectival
rating higher than “satisfactory,” namely “very good” or “exceptional.”
Further, the solicitation explicitly reserved for DOL the ability to obtain past performance
information beyond the information provided by the quoters’ references. AR Tab 1, at 70 (“The
DOL may check other sources of past performance information.”). Accordingly, it was not
improper for DOL to seek out additional information about the past performance of each offeror.
Moreover, the past performance evaluation document provides DOL’s reasoning for requesting a
second [***] questionnaire for plaintiff. The document explained that “[a]n additional reference,
with firsthand knowledge of the procurement and implementation of [***], was also given PPQs
to complete.” AR Tab 11, at 146. Therefore, it is reasonable to conclude that [***] PPQs
concerning plaintiff’s past performance. The agency’s action was certainly reasonable and
explicitly contemplated by the solicitation.14
Plaintiff also argues that it should not have received “satisfactory” ratings from [***]
because [***] never provided any negative feedback or criticism during the course of the
contract. Plaintiff overlooks the fact that satisfactory is third on a scale of five ratings and
indicates that “[p]erformance meets contractual requirements” and that there were “some minor
problems for which corrective actions taken by the contractor appear or were satisfactory.” AR
Tab 105, at 2884. This is not a negative rating; in fact, this rating reflects a generally acceptable
performance.15 Additionally, plaintiff appears to simply disagree with the rating provided, which
is not enough to demonstrate arbitrary or capricious conduct on behalf of DOL. Bannum, Inc. v.
United States, 91 Fed. Cl. 160, 173 (2009) (“[The plaintiff’s] mere disagreement with the
[agency’s] incumbent contract rating is not sufficient for this Court to overturn it.”). The
solicitation provided that the CO was entitled to consider past performance ratings in her
In addition to this record evidence, defendant explains that two questionnaires were submitted
because “[***] had only been in her position for a short time when the questionnaires were
distributed, so [***] also sought feedback from her predecessor [***], who was no longer
employed by [***].” Def.’s Reply 13 (citing AR Tab 105, at 2883–94); see also Hr’g Tr. at 12.
DOL indicates that the only ratings that were considered unfavorable were “unacceptable” and
“marginal.” AR Tab 22, at 470.
assessment of the quotes. AR Tab 1, at 70–72. The Court finds that the CO did not abuse her
discretion and acted reasonably in her consideration of the past performance factor.
Finally, plaintiff takes issue with the fact that it could not provide an explanation to DOL
of the negative rating [***] assigned it. First, as previously discussed, this is not a FAR Part 15
procurement; therefore FAR 15.306’s directive to discuss adverse past performance information
does not apply. Second, DOL did not conduct past performance discussions with any offerors,
see AR Tab 22, at 470, therefore treating all offerors fairly in accordance with FAR 1.102-2, see
infra Part II.K. Moreover, discussions were explicitly not contemplated by the solicitation, AR
Tab 1, at 68, and the solicitation was clear that past performance questionnaires would be used as
an evaluative factor, AR Tab 1, at 70. Third, DOL noted that each offeror received one “lessthan-favorable” reference, either marginal or unacceptable, and determined that “no explanation
would have changed the overall result of the Past Performance evaluation.” AR Tab 22, at 470.
The CO explained that “[a]t best, if any offeror had submitted an explanation to rebut its rating,
DOL might have concluded that the Past Performance on that particular project should not be
viewed unfavorably. In all cases, it would not have caused DOL to upgrade the offerors’ overall
Past Performance ratings.” AR Tab 22, at 470–71. Given the ratings the offerors received,
specifically defendant-intervenor and plaintiff, this is a reasonable assessment. Therefore,
discussions regarding past performance evaluations were not required by law and were not
contemplated by the solicitation. And, in any event, discussions would not have altered the
overall past performance ratings for any offeror. Accordingly, the agency acted reasonably and
within its discretion, and not arbitrarily, capriciously, or contrary to law, when it evaluated past
performance according to the terms of the RFQ. See Bannum, Inc., 91 Fed. Cl. at 173 (“An
agency does not act unreasonably when it sets forth specific past performance evaluation criteria
and then applies those criteria.”).
DOL Reasonably Evaluated Plaintiff’s Product Demonstration
Next, plaintiff argues that DOL misevaluated its product demonstration. Plaintiff bases
this argument on the fact that (1) the chair of the TEP did not attend its product demonstration,
but attended the demonstrations of the other offerors, and (2) the users at the product
demonstration questioned whether plaintiff’s system was Section 508 compliant.
Neither of these arguments has merit. First, the solicitation did not state that the
members of the TEP had to attend the product demonstrations. See AR Tab 1, at 71. The
solicitation instead stated that “[u]p to five (5) DOL staff members will attend each of the
[product demonstration] sessions and evaluate the product’s User Interface, Reports,
Wizards/Help Tips, etc.” Id. Accordingly, there was no requirement or expectation that the TEP
chair attend the product demonstrations.
Second, plaintiff argues that its Section 508 compliance, see supra note 6, was questioned
as a result of the product demonstration and that this is erroneous because it had never before
been cited as being Section 508 noncompliant during the incumbent contract. Plaintiff neglects
to realize that the comments about Section 508 compliance appear only in the “Summary of
Product Demonstrations,” which noted that “[t]he users [at the product demonstration]
questioned whether the system is Section 508 compliant.” AR Tab 9, at 93–94. This document
contains a mere recital of the observations of users present at the product demonstration as
summarized by Ms. Tova Stein, Hr’g Tr. at 17–18, an advisory member of the TEP, see AR Tab
21, at 404–05. Section 508 compliance did not factor into the CO’s discussion or determination
regarding product demonstration. See AR Tab 22; see also Hr’g Tr. at 16–17, 35. The record
reflects that this was simply the agency’s thorough recordation of the comments it received as a
result of the product demonstration. Accordingly, DOL did not act arbitrarily, capriciously, or
contrary to law, nor did it abuse its discretion, with regard to how it conducted and assessed the
product demonstration factor.
DOL Properly Conducted a Price Reasonableness Analysis
Plaintiff argues that DOL failed to conduct a proper price reasonableness analysis. In
support of its contention, plaintiff states that the agency’s analysis was erroneous because it
“judged all prices reasonable simply because they were below the IGCE.” Pl.’s MJAR 42.
Additionally, plaintiff takes issue with DOL’s determination that the price disparity among the
offerors, particularly between plaintiff and defendant-intervenor, was due to the types of
solutions being proposed—specifically a new-to-the-market product from defendant-intervenor
and an upgrade to DOL’s existing product from plaintiff. Id. at 42–43. Relatedly, plaintiff
asserts that the spread in prices between plaintiff and defendant-intervenor “should have raised
red flags with DOL as to price reasonableness.” Id. at 43. Finally, plaintiff argues that the
rationale presented by the CO in the award decision document is post hoc because, despite
referencing the same price proposals, it is more extensive than her initial analysis. Id. at 42–43.
The Court does not find any of plaintiff’s arguments persuasive. First, FAR 8.404, which
governs this procurement, states:
Supplies offered on the schedule are listed at fixed prices. Services offered on the
schedule are priced either at hourly rates, or at a fixed price for performance of a
specific task . . . . GSA has already determined the prices of supplies and
fixed-price services, and rates for services offered at hourly rates, under schedule
contracts to be fair and reasonable. Therefore, ordering activities are not
required to make a separate determination of fair and reasonable pricing, except
for a price evaluation as required by 8.405-2(d). By placing an order against a
schedule contract using the procedures in 8.405, the ordering activity has
concluded that the order represents the best value.16
FAR 8.404(d) (emphasis added). In turn, FAR 8.405-2(d) states that “[t]he ordering activity is
responsible for considering the level of effort and the mix of labor proposed to perform a specific
task being ordered, and for determining that the total price is reasonable.” FAR 8.405-2(d)
(emphasis added). That reasonableness determination must be documented. FAR 8.405-2(f)
(“The Ordering Activity shall document . . . [t]he price reasonableness determination required by
paragraph (d) of this subsection.”).
“‘Ordering activity’ means an activity that is authorized to place orders, or establish blanket
purchase agreements (BPA), against the General Services Administration’s (GSA) Multiple
Award Schedule contracts.” FAR 8.401.
“Price reasonableness generally addresses whether a price is too high . . . .” First Enter.
v. United States, 61 Fed. Cl. 109, 123 (2004); accord Tech Sys. Inc. v. United States, 98 Fed. Cl.
228, 264 (2011); see also Afghan Am. Army Servs. Corp. v. United States, 90 Fed. Cl. 341, 356
(2009) (“[T]he purpose of price reasonableness analysis is to ensure that the offeror’s price is not
unreasonably high or unreasonably low.” (quoting Erinys Iraq Ltd. v. United States, 78 Fed. Cl.
518, 531 (2007)) (internal quotation marks omitted)). This is distinct from price realism, which
seeks to “ensure that an offeror understands the solicitation requirements and actually can
perform those requirements.” Erinys Iraq Ltd., 78 Fed. Cl. at 531. Here, the parties do not
dispute that a price reasonableness analysis was required.
One way to determine price reasonableness is to compare the quoters’ price proposals to
the IGCE. See FAR 15.404-1(b)(2)(v);17 see Tech Sys. Inc., 98 Fed. Cl. at 264; Holloway &
Co., 87 Fed. Cl. at 395 (involving an FSS procurement). Here, that is precisely what the CO did,
noting that all price proposals fell below the IGCE of [***]. AR Tab 22, at 467–68. As
discussed infra, the IGCE itself was reasonable. See infra Part II.I. Accordingly, the CO was
within her discretion when she determined that the price proposals were reasonable based on
their comparison to the IGCE. The court also finds that the documentation of this assessment,
see AR Tab 22, at 471–72, is adequate.
Additionally, the CO discussed the reason for the price discrepancy between plaintiff and
defendant-intervenor, noting the differences in their proposed products, AR Tab 22, at 468, 471–
72, and the overall desirability of purchasing defendant-intervenor’s technically superior, more
efficient solution, AR Tab 22, at 472–74 (discussing the price/technical tradeoff analysis). The
Court finds the agency’s rationale regarding the discrepancy among the offerors’ price proposals
to be reasonable.
Finally, plaintiff’s argument that DOL’s analysis represents a post-hoc rationale for its
price reasonableness determination is unfounded. First, that the evaluation of price proposals in
the second award selection document is slightly longer and more detailed than the evaluation of
price proposals in the initial award selection document does not suggest that the agency engaged
in conduct that was arbitrary, capricious, not in accordance with law, or otherwise unreasonable.
In fact, the second evaluation and source selection document was in response to a protest
plaintiff mounted which alleged, among other things, that DOL did not engage in a proper price
reasonableness analysis. AR Tab 83, at 2190–93. Plaintiff’s protest also challenged the
agency’s best value determination, stating that a tradeoff analysis weighing technical and price
factors was not conducted. AR Tab 83, at 2193.
In response to this protest, the agency reevaluated the proposals and drafted a new award
decision document. That it included additional detail and analysis regarding the price
reasonableness determination is entirely reasonable, especially in light of the allegations in
plaintiff’s protest. It appears that, at most, the agency was responding to perceived flaws that
plaintiff identified. This cannot now be faulted, especially because the Court finds DOL’s price
reasonableness rationale and its documentation to be reasonable and adequate.
Although FAR Part 15 does not govern this case, the Court may look to it for definitions and
guidance when necessary. See Allied Tech. Grp., Inc., 94 Fed. Cl. at 44; see also supra Part II.E.
The IGCE Was Not Irrationally High
Related to its price reasonableness argument is plaintiff’s contention that the IGCE was
irrationally high. The IGCE was [***], which is more than [***] higher than the highest-priced
quote DOL received. Plaintiff states that this in itself suggests that the IGCE was unreasonable.
Additionally, plaintiff contends that the research supporting the IGCE is skewed. Plaintiff
argues that the RFI was “based almost verbatim on specifications for a Compusearch product.”
Pl.’s MJAR 44. Thus, plaintiff alleges that the “IGCE appears to be geared toward
accommodating an award to Compusearch.” Id. at 45. Additionally, plaintiff challenges the
methodology behind the IGCE by stating that DOL simply took “the highest-priced offering on
the market and insert[ed] that amount as the IGCE.” Id. This, plaintiff maintains, was
“Generally, independent government estimates ‘represent the agency’s best estimate of
the most reasonable current price of the products or services being procured.’” Process Control
Techs. v. United States, 53 Fed. Cl. 71, 77 (2002) (quoting John Cibinic, Jr. & Ralph C. Nash,
Jr., Formation of Government Contracts 1317 (3d ed. 1998)). “While the court accepts that an
IG[C]E need not be supported with exhaustive details, the agency must be able to demonstrate
the basis for the estimate, where as here, the analysis is questioned.” Nutech Laundry & Textile,
Inc. v. United States, 56 Fed. Cl. 588, 594 (2003).
In this case, the record adequately supports DOL’s IGCE, and DOL has satisfactorily
demonstrated the basis for its estimate. In DOL’s acquisition plan, issued June 25, 2010, the
agency stated that “[t]he total estimated lifecycle cost is a maximum of [***] (if vendor hosted).”
AR Tab 18, at 389. This estimate was “based on a comparison of labor categories, cost estimates
received from the market research conducted in January 2010, and the requirements established
in the current contract plus an appropriate price escalation.” Id.
Regarding the market research conducted, DOL issued an RFI, which included 419
questions prospective vendors were to answer. AR Tab 25; see AR Tab 90, at 2296. These
questions were “based on the identified and documented requirements of the procurement
community in DOL.” AR Tab 90, at 2296. Additionally, the RFI asked vendors to “provide a
Rough Order of Magnitude (ROM) cost estimate for” several service models. AR Tab 25, at
538. Two of the three identified alternative solutions provided ROMs totaling [***], see AR Tab
90, at 2310, and [***], see AR Tab 90, at 2309. The third alternative solution was plaintiff’s,
and it was singled out for its low price of [***]. AR Tab 90, at 2306.
Accordingly, the IGCE was relatively close to two of the three potential solutions
identified after market research was completed. That these two solutions were proposed by large
businesses does not necessarily reveal any partiality toward large businesses. This is especially
true considering plaintiff’s was one of the identified alternative solutions.
Additionally, the record reflects an adequate documentation of the IGCE’s calculation. A
spreadsheet containing figures computed in part using information from DOL’s market research
and the cost of the then-current contract demonstrates that the estimated cost for the base period
of a vendor-hosted service,18 was [***]. AR Tab 19, at 395. The estimated cost for each option
year for vendor-hosted services was [***]. AR Tab 19, at 396. Taken together, the cost of each
of the four option years plus the base year totals [***]. See AR Tab 18, at 388. Nothing in the
record indicates that these calculations were arbitrary, capricious, or otherwise unreasonable.
Plaintiff also argues that “DOL’s IT Dashboard reflects a total projected cost of only
$12.5 million for the AMS.” Pl.’s MJAR 44. Plaintiff argues that it was surprised that the IGCE
was so high in part because the IT Dashboard did not “indicate that magnitude of expenditure.”
Hr’g Tr. at 8–9.
This argument is unavailing. The parties explain that the IT Dashboard is a system
through which the agency publishes budgeting information for certain projects.19 Hr’g Tr. at 8–
9, 25–26. In this case, the IT Dashboard states that the total planned cost of DOL’s AMS
procurement was $12.5 million over the course of a two-year period, AR Tab 66, at 1762, not the
five-year period that the initial solicitation contemplated, AR Tab 34, at 628. Further, no
evidence suggests that the IT Dashboard provided a figure that DOL was obligated to employ in
its procurement process. Accordingly, it cannot be properly used to assess the reasonableness of
In conclusion, the Court finds that the IGCE was reasonable and that the agency has
adequately demonstrated the basis for its estimate.
Vendor hosted means that “[t]he hardware will be housed and hosted at the Contractor’s
chosen data center facility” and that “infrastructure services . . . will be provided by the
Contractor and/or the contractor’s chosen hosting facility.” AR Tab 1, at 14.
The IT Dashboard is a website enabling federal agencies, industry, the
general public and other stakeholders to view details of federal information
The purpose of the Dashboard is to provide information on the
effectiveness of government IT programs and to support decisions regarding the
investment and management of resources. The Dashboard is now being used by
the Administration and Congress to make budget and policy decisions.
Federal IT Dashboard, http://www.itdashboard.gov/ (last visited July 27, 2012); see 74 Fed. Reg.
66661-01, 66662 (Dec. 16, 2009) (“[T]he IT dashboard Web site, which is a part of
USAspending.gov, provides details of Federal Information Technology (IT) investments and is
based on data received from agency reports to the Office of Management and Budget (OMB).”).
DOL’s Tradeoff Analysis Was Reasonable and Adequately Documented
Plaintiff next takes issue with DOL’s tradeoff analysis. First plaintiff alleges that the
errors made throughout the solicitation process, such as conducting the reevaluation with the
same TEP and assessing plaintiff’s understanding of risk under technical subfactor (b),
“obviously infected” the tradeoff analysis. Pl.’s MJAR 46–48. Each “error” plaintiff cites,
however, has been addressed by the Court and has been found to be a reasonable action taken by
DOL within its sound discretion. Therefore, plaintiff’s argument on this ground fails.
Plaintiff next argues that the tradeoff analysis fails to justify the price premium the
agency chose to pay for defendant-intervenor’s product. Pursuant to FAR 8.405-2(f), the
contracting officer must document “[t]he rationale for any tradeoffs in making the selection.”
FAR 8.405-2(f)(5). “The amount of documentation necessary in FAR Subpart 8.4 procurements
does not rise to the level required by FAR Part 15.” Matt Martin Real Estate Mgmt. LLC v.
United States, 96 Fed. Cl. 106, 116 (2010); accord Allied Tech. Grp. Inc., 94 Fed. Cl. at 50; see
supra Part II.E. Accordingly, the high standards for a proper tradeoff analysis under FAR Part
15 discussed by plaintiff in its motion for judgment on the administrative record do not apply.
See Pl.’s MJAR 49–50.
Even though a lower threshold applies for a FAR Part 8 tradeoff analysis, the Court will
analyze the CO’s tradeoff decision to determine whether it is reasonable and within the agency’s
discretion. See Allied Tech. Grp. Inc., 94 Fed. Cl. at 50 (finding, in the context of a FAR Part 8
procurement, that a “CO’s best value determination . . . was coherent and a reasonable exercise
of his discretion”).
Here, DOL engaged in a lengthy tradeoff analysis, detailing the reasons defendantintervenor presented the best overall value to the Government. See AR Tab 22, at 472–74. The
CO and contracting specialist fully explored the benefits of defendant-intervenor’s product
relative to the benefits of plaintiff’s product. Additionally, the CO put a premium on efficiency,
explaining that plaintiff’s “proposed system, which users find difficult to interface with, and
which is not intuitive or user-friendly, does not serve DOL’s needs.” AR Tab 22, at 474. This
was properly within her discretion and certainly reasonable given the nature of the solicitation
and the product being procured.
Plaintiff also contends that the CO incorrectly applied the RFQ award criteria to her bestvalue analysis by stating that “non-price elements combined are significantly more important
than price.” Pl.’s MJAR 51–52 (quoting AR Tab 22, at 472) (internal quotation marks omitted).
The RFQ provided that “Technical Approach is significantly more important than Past
Performance and when combined, these two factors are more important than Price.” AR Tab 1,
at 72. The RFQ further explained that the “product demonstration is equal in importance to Past
Performance.” Id. Plaintiff contends that the CO’s statement that non-price elements are
significantly more important than price misconstrues the RFQ.
In the Court’s opinion, the CO was not using “significant” as a term of art and included it
in the analysis merely to explain that price was outweighed by the non-price factors. This is in
accordance with the solicitation. Her tradeoff analysis does not suggest that she unreasonably
assessed the weight of price relative to non-price factors; indeed, had she not included the term
significant in her tradeoff analysis, it does not appear that the analysis itself would have changed.
The tradeoff properly accounts for defendant-intervenor’s higher ratings and technical
superiority. The analysis evidences adherence to the terms of the solicitation and is not only
reasonable, but well within the CO’s discretion. Accordingly, the Court finds that DOL
conducted and adequately documented a reasonable tradeoff analysis.
DOL Did Not Breach the Duty to Treat Bids Fairly and Honestly
Plaintiff argues that DOL breached the duty to treat bids fairly and honestly and violated
various FAR provisions during the course of the procurement. Pl.’s MJAR 55–60. Specifically,
plaintiff points to FAR 1.602-2, which tasks contracting officers with the responsibility of
“ensur[ing] that contractors receive impartial, fair, and equitable treatment”; FAR 1.102-2, which
states that “[a]ll contractors and prospective contractors shall be treated fairly and impartially but
need not be treated the same”; and FAR 3.101-1, which provides that “[g]overnment business
shall be conducted . . . with complete impartiality and with preferential treatment for none.”
In support of its argument, plaintiff reiterates many of the grievances it has already
alleged, which effectively amount to a contention that throughout the procurement DOL was
attempting to direct an award to defendant-intervenor. See Pl.’s MJAR 55–60. It contends that
“DOL’s persistent pattern of conduct demonstrates bias and the absence of a reasonable basis for
its decision to award a contract to Compusearch.” Id. at 58.
Here, as discussed, the Court finds that DOL did not act arbitrarily, capriciously, or
contrary to law, nor did it abuse its discretion, in the course of the procurement process.
Accordingly, DOL did not breach the duty to treat bids fairly and honestly. See FAS Support
Servs., LLC v. United States, 93 Fed. Cl. 687, 694 (2010) (“For recovery under the implied
contract for bids to be fairly and honestly considered, a plaintiff has to establish arbitrary and
capricious action, or an abuse of discretion by the government.” (citing Keco Indus., Inc. v.
United States, 492 F.2d 1200 (Ct. Cl. 1974))); L-3 Commc’ns Integrated Sys., L.P. v. United
States, 94 Fed. Cl. 394, 397 (2010). Furthermore, the Court finds that DOL conducted the
procurement in accordance with FAR; nothing suggests that the quoters were treated unfairly or
With regard to plaintiff’s allegations of bad faith and bias, plaintiff has not presented
facts sufficient to overcome the presumption of good faith afforded the agency. Galen Med.
Assocs., Inc., 369 F.3d at 1330 (noting that the Government is presumed to act in good faith); see
also Avtel Servs., Inc. v. United States, 70 Fed. Cl. 173, 210 (2006) (collecting cases regarding
the presumption of good faith). To rebut this presumption, a protestor must provide “almost
irrefragable,” “clear and convincing” proof of bad faith. Galen Med. Assocs., Inc., 369 F.3d at
1330. “In the cases where the court has considered allegations of [governmental] bad faith, the
necessary ‘irrefragable proof’ has been equated with evidence of some specific intent to injure
the plaintiff.” Id. (quoting Torncello v. United States, 681 F.2d 756, 770 (Ct. Cl. 1982)) (internal
quotation marks omitted); accord Savantage Fin. Servs., Inc. v. United States, 595 F.3d 1282,
1288 (Fed. Cir. 2010). Here, plaintiff has presented no such evidence of specific intent to injure
nor any other record evidence sufficient to raise an inference of bad faith or bias on the part of
In view of the foregoing, the Court GRANTS defendant’s and defendant-intervenor’s
motions for judgment on the administrative record and DENIES plaintiff’s motion for judgment
on the administrative record. Additionally, plaintiff’s motion to stay contract performance
pending the court’s final ruling (docket entry 56, July 12, 2012) is DENIED as moot. The Clerk
shall enter judgment accordingly.
Some information contained herein may be considered protected information subject to
the protective order entered in this action on May 4, 2012 (docket entry 17). This Opinion and
Order shall therefore be filed under seal. The parties shall review the Opinion and Order to
determine whether, in their view, any information should be redacted in accordance with the
terms of the protective order prior to publication. The Court ORDERS that the parties shall file,
by Thursday, August 9, 2012, a joint status report identifying the information, if any, they
contend should be redacted, together with an explanation of the basis for each proposed
IT IS SO ORDERED.
s/ George W. Miller
GEORGE W. MILLER
Notably, to the extent plaintiff contends that DOL’s prior evaluations of plaintiff’s
performance on the incumbent contract demonstrate bias, this court has before found that
“[c]riticism of [a p]laintiff’s performance on the incumbent contract in areas required to be
evaluated or erroneous evaluations or inconsistent scoring do not rise to the level of motivation
for bias.” Four Points by Sheraton v. United States, 63 Fed. Cl. 341, 344 (2005).
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