AL ANDALUS GENERAL CONTRACTS COMPANY v. USA

Filing 71

PUBLISHED OPINION (Reissuance of 2/27/09 Opinion for Publication). The Clerk is directed to enter judgment. Signed by Judge Nancy B. Firestone. (sf) Modified on 3/13/2009 to edit docket text. (dls).

AL ANDALUS GENERAL CONTRACTS COMPANY v. USA

Do c. 71

In the United States Court of Federal Claims
No. 08-599C (Filed: March 11, 2009)**
* * O P I N IO N ORIGINALLY FILED UNDER SEAL ON FEBRUARY 27, 2009

******************* AL ANDALUS GENERAL CONTRACTS CO., Plaintiff, v. THE UNITED STATES, Defendant. *******************

* * * * * * * * * * * * *

Bid Protest; Indefinite Delivery Indefinite Quantity ("IDIQ") Contracts; Failure to Show Prejudice; Past Performance Evaluations; Price Reasonableness Determination; Waiver of Minor Irregularities; 48 C.F.R. 52.215-1(f)(3)

David T. Ralston, Washington, DC, for plaintiff. Frank S. Murray, Washington, DC, of counsel. Joseph A. Pixley, U.S. Department of Justice, Washington, DC, with whom were Gregory G. Katsas, Assistant Attorney General, and Jeanne E. Davidson, for defendant. Parag Rawal, U.S. Corps of Engineers, Washington, DC, of counsel.
OPINION F I R E S T O N E , Judge. T h is post-award bid protest comes before the court on the parties' cross-motions for ju d g m e n t on the administrative record pursuant to Rule 52.1 of the Rules of the United S ta te s Court of Federal Claims ("RCFC"). Plaintiff Al Andalus General Contracts Co. (" A l Andalus"), an unsuccessful offeror, challenges five Indefinite Delivery Indefinite

Dockets.Justia.com

Q u a n tity ("IDIQ") awards made under a Multiple Award Task Order Contract (" M A T O C " ) issued by the United States Army Corps of Engineers ("defendant," " U S A C E " or "the agency") for miscellaneous construction projects in and around B a g h d a d , Iraq. Al Andalus seeks to enjoin USACE from issuing solicitations for task o rd e rs and making award of task orders under the MATOC and to have USACE reopen th e competitive bid process on the grounds that the agency failed to properly conduct the p ro c u re m e n t. In the alternative, Al Andalus seeks an award of bid and proposal costs, as w e ll as attorney's fees and costs. F o r the reasons set forth below, the plaintiff's motion for judgment on the a d m in i str a tiv e record is DENIED, and the defendant's motion for judgment on the a d m in i str a tiv e record is GRANTED. I. BACKGROUND FACTS T h e following background facts are taken from the pleadings. The facts below are u n d is p u te d unless otherwise noted. A. T h e Solicitation

O n May 13, 2008, USACE issued solicitation No. W917BG-08-R-0044 ("the so licitatio n ") inviting offerors to compete for award of up to five individual IDIQ M A T O C contracts for "miscellaneous construction projects within the boundary of B ag h d ad , Iraq." 1 AR 160. The proposed period of performance was for one base year,

The actual language of the solicitation reads, "The Government intends to award up to a minimum of FIVE (5) individual MATOC contracts providing sufficient qualified and 2

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p lu s two one-year option periods. Id. The maximum value for all contracts combined, in c lu d in g for base and option years, was $450,000,000. Id. Each individual task order is s u e d under the MATOC was to range from a minimum of $5,000,000 to a maximum of $ 2 0 ,0 0 0 ,0 0 0 . AR 162. The procurement covers a range of miscellaneous design-build and constructionre la te d requirements in Baghdad, Iraq, including "projects inside and outside the b o u n d a rie s of existing Multi-National Bases." AR 186. The solicitation cautioned that " [ s]e c tar ian violence in Iraq is commonplace. The work to be performed in this s o lic ita tio n is located in a predominately Shi'a neighborhood." Id. T h e solicitation stated that award of the IDIQ contracts will be made using a "best v a l u e " approach. AR 188. The solicitation defines "best value" as "the most a d v a n ta g e o u s offer, based on their Technical Proposal, with low past performance risk and f a ir and reasonable pricing." AR 188 (emphasis added). Al Andalus timely submitted its proposal. AR 143. Al Andalus provided in f o r m a tio n regarding its technical capabilities, construction experience, and past p erf o rm an ce in Volume A of its proposal. AR 1424-74. Volume A of Al Andalus's p ro p o s a l consisted of a cover page and fifty pages of substantive material. Id. Al Andalus

responsible contractors present offers." Administrative Record ("AR") 160 (emphasis added). The court acknowledges that the phrase "up to a minimum of" is unclear, but based on language contained elsewhere in the solicitation, interprets this to mean "up to five." See, e.g., AR 162 ("The procurement consists of one solicitation with the intent to award up to five . . . IDIQ Contracts. . . ." (emphasis added and internal parentheses removed)). In any event, the court finds that this language, although awkward, does not affect the outcome of this case. 3

a ls o submitted 278 pages of drawings outside of Volume A because it did not have enough ro o m under the fifty-page limit to include these in Volume A itself. See AR 3329-3607 (A l Andalus's drawings); AR 1466 (Al Andalus stated, "In reference to the sample project, w e have attached in a separate form a [sic] preliminary (35%) construction design d ra w in g s and specifications as VOLUME A dose [sic] not fit for." (emphasis added)). Proposed pricing was provided for the items contained in the Bill of Quantities ("BOQ") in Volume B of Al Andalus's proposal. AR 1475-96. U S A C E received twenty-seven offers in response to the solicitation. Three of the p ro p o sa ls were received late (and therefore not evaluated), and seven of the proposals w ere excluded from further consideration upon completion of the Contract Specialist's in itia l compliance review for noncompliance with the solicitation's instructions. AR 1689. Thus, seventeen proposals were evaluated by a USACE Source Selection Evaluation B o ard ("SSEB") for award under the MATOC contract. AR 1690. Following the SSEB's re v iew , the Source Selection Authority ("SSA") identified certain concerns, which led to a d d itio n a l review by the SSEB. After the SSEB's second review, the SSA considered the S S E B 's final report and made a final decision. AR 1707. The SSA made awards to O f f e ro rs 2, 3, 10, 14, and 24 (collectively, "the awardees"), but not to the plaintiff. Al A n d u lu s was not considered for an award, because following a review of its technical p r o p o s a l, Al Andalus received only mediocre ratings on the non-price evaluation factors, in c l u d in g a rating of "Adequate - Moderate Risk" for past performance. As a

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c o n se q u e n ce , Al Andalus did not meet the requisite "low performance risk" rating re q u ire d for "best value" consideration under the solicitation. 1. N o n -P r ic e Evaluation Factors

T h re e technical factors were identified as comprising the "non-price evaluation f a c to rs " : past performance, construction experience, and technical capability. AR 188. The solicitation stated that the three non-price evaluation factors were of equal importance a n d when combined, were to be "significantly more important than price." Id. a. Past Performance Factor

T h e solicitation provided that past performance would be evaluated based on the f o llo w in g criteria: (1) timeliness - which required information to show that the offeror met o r exceeded contract schedules; (2) problem resolution - which required information on p rio r projects to show that prior customers were satisfied with the offeror's resolution of c o n stru c tio n problems "with regard to minimizing cost and other field associated p ro b le m s ," AR 193; (3) quality of product and services - which required information on the offeror's demonstrated compliance with quality control; (4) cooperative manner w h ic h required information on the offeror's cooperation in achieving customer goals; (5) c u sto m e r satisfaction - which required information regarding the satisfaction of prior cu stom ers; and finally (6) safety - which required information regarding the offeror's c o m p lia n c e with safety regulations. AR 34. Under the terms of the solicitation, the o f f ero rs were instructed to provide a "Past Performance Project Sheet, Attachment B for

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e a ch of the projects listed on the Experience Sheet, Attachment A." AR 190. Attachment B was designed as a summary sheet regarding each of the projects identified on A tta c h m e n t A. Offerors were also to provide Point of Contact ("POC") information for e a c h of the five projects they identified in the construction experience portion of their p ro p o s a ls so that USACE could forward to the POCs the Past Performance Questionnaires (" P P Q " ) attached to the solicitation as Attachment C. Id. Paragraph 1.9.1 of the s o lic ita tio n , entitled "Attachment B," stated: T h e Offeror shall provide a PAST PERFORMANCE PROJECT SHEET, A T T A C H M E N T B for each of the projects listed on the EXPERIENCE S H E E T , ATTACHMENT A. F a ilin g to submit attachments or failing to complete properly[] may result in re je c tio n of the offer without further evaluation. Therefore, Offerors are urged to follow instructions and speak with the Contracting Officer if instructions are n o t understood. Id . (emphasis added). Al Andalus concedes that it did not submit Attachment B worksheets for the p ro je c ts it identified in its Attachment A. See 2nd. Am. Compl. ¶ 38 ("Al Andalus did not p ro v id e its past performance information via the Attachment B . . . forms that had been in c lu d e d with the Solicitation."). Instead, Al Andalus attached a spreadsheet with inf o rm atio n regarding its past performance on 61 projects, only two of which were in c lu d e d in Al Andalus's Attachment A submission. AR 1445-46. It is not disputed that A l Andalus also failed to provide any information on problem recognition and corrective a c tio n for the submitted projects, as required by the solicitation, other than to submit a 6

s a m p le "Problem Resolution Request Form." AR 1447-48. As such, Al Andalus never s u b m itte d any information regarding its past experience vis-á-vis minimizing cost during c o n stru c tio n as required by the solicitation. AR 191. Al Andalus did, however, attach s e v e ra l letters and certificates of commendation and recommendation it had received from s a tis f ie d clients on past projects. AR 1449-56. The SSEB received and reviewed five PPQs completed by government customers e v a lu a tin g Al Andalus's performance on previous projects. AR 1747, 2819-42. Based on th e PPQs and the information submitted by Al Andalus, the SSEB, for the past p e rf o rm a n c e factor, evaluated Al Andalus as "Adequate - Moderate Risk" based on the a s s e s s m e n t of one strength, one weakness, and one deficiency. AR 1747-48. Specifically, th e SSEB assigned Al Andalus a strength (but not a significant strength) for having re c eiv e d an average rating of "very good" on five performance reviews for four of the p ro je c ts submitted, with no ratings that were below "satisfactory." AR 1747. The SSEB also noted that "[e]valuations stated that a quality project was delivered." Id. However, th e SSEB stated in its evaluation, "As these were all on VBC [("Victory Base C o m p le x " 2 )] , this is not considered a significant strength." Id. T h e SSEB then assigned Al Andalus a weakness under the past performance factor b e c au s e Al Andalus's proposal "did not provide information for problem recognition and c o rre c tiv e actions in submitted projects. The offeror did not provide any information

The Victory Base Complex is the main site for international forces in Baghdad, Iraq and is more secure than most areas in Baghdad. 7

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re g a rd in g minimizing cost during construction." Id. F in a lly, the SSEB assigned Al Andalus a deficiency under the past performance f a cto r because the past performance section of Al Andalus's proposal "did not follow d ire c tio n s and provided a long list of completed projects with no Attachment B in f o rm a tio n ." AR 1748. Based on the findings of the SSEB, the SSA concluded: [ A l Andalus ]received [a] rating[] of. . . . "Adequate -[]Moderate Risk" for Past P e rf o rm a n c e. . . . [T]he offeror submitted evidence that it received an average ra tin g of "very good" for four project[s]. No ratings were below satisfactory. E v a lu a tio n s stated that a quality project was delivered. However, all of the p ro je c ts were on Victory Base Complex. The offeror did not provide in f o rm a tio n for problem recognition and corrective actions in submitted p r o je c ts . The Offeror did not provide information regarding minimizing cost d u rin g construction. The [O]fferor failed [to] properly complete [A]ttachment B (reporting past performance). Instead, it provided a one[-]page cursory s u m m a r y. " AR 1698-99. b. T h e Construction Experience Factor

U n d e r the terms of the solicitation, the evaluation of the construction experience f a cto r was to be focused on "the relevancy of the Offeror's experience within the last three ye a rs ." AR 189. The solicitation required offerors to submit information for no more than f iv e projects using a construction experience worksheet, Attachment A, to demonstrate re le v a n t design and construction experience within the past three years. Id. To be c o n s id e r e d under the construction experience factor, projects were required to be at least 5 0 % complete based on the current approved construction schedule. Projects closer to 8

p h ys ic a l completion would be considered more relevant by USACE. Id. The solicitation d id not expressly define relevant experience, but instead instructed offerors to provide e v id e n c e of experience in designated construction categories. For example, projects d e m o n s tra tin g multiple trades were to be given a higher rating than those that d e m o n s tra te d one or two trades only. AR 189-90. B e c au s e the majority of projects to be awarded under the MATOC are anticipated to be within the price range of $5,000,000 to $20,000,000, the solicitation provided that o f f ero rs would be rated more favorably under the construction experience technical factor if they identified projects they had performed that fell within that price range. The so licita tio n also advised that "[c]urrent and previous experience in Baghdad, Iraq will re c e iv e a higher rating." AR 190. With respect to its construction experience, Al Andalus identified the following f iv e projects in Volume A of its proposal: (1) Contract No. W917BG-06-C-0019, dated A u g u s t 2006, MATOC for construction and construction-related projects in Central Iraq a n d the Al Unbar Region, with a maximum potential value over three years of $ 1 5 0 ,0 0 0 ,0 0 0 ; (2) Contract No. W917BG-07-C-0092, dated July 9, 2007, for the c o n stru c tio n of a Waste Water Treatment Plant at VBC in Baghdad, Iraq; (3) Contract No. W 9 1 7 B G -0 7 -C 0 1 3 0 , dated August 2007, for construction of the VBC Boundary and Area L ig h tin g at Victory Base Complex in Baghdad, Iraq; (4) Contract No. W917BG-07-C0 0 6 9 , dated May 4, 2007, for construction of a Reverse Osmosis Water Purification Unit

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(" R O W P U " ) Facility at VBC, Baghdad, Iraq (the "ROWPU Contract"); and (5) Contract N o . W917BG-06-D-0019-0006, dated August 2007, for design and construction of Entry C o n tro l Point ("ECP") 14 at VBC, Baghdad, Iraq (the "ECP 14 Contract"). AR 1433-36. A ll five of the contracts identified by Al Andalus in the construction experience p o rtio n of its proposal were USACE contracts, and Al Andalus provided USACE POCs f o r each of the contracts. In a box labeled "Final Invoiced Amount (or Amount Invoiced to Date)," Al Andalus listed the value of the contracts. While Al Andalus did not identify a n y contract with a value exceeding $5,000,000, it is not disputed that under one of the lis te d contracts, the ROWPU Contract, Al Andalus in fact received more than $5,000,000. Although Al Andalus had claimed that it had received $4,287,235.00 under the ROWPU c o n tra c t in its proposal, AR 1435, Al Andalus states in its second amended complaint that su b se q u e n t amendments to the contract raised the value of the ROWPU Contract to $ 5 ,9 9 0 ,6 4 2 . 2nd. Am. Compl. ¶ 35 ("[$4,287,235] was the originally awarded amount of th e ROWPU Contract and did not include subsequent amendments that had raised the v alue of the ROWPU Contract to $5,990,642[]."). F o r the construction experience factor, the SSEB gave Al Andalus an "Acceptable" ra tin g based on the assessment of three strengths, one weakness, and one significant w e a k n e s s . AR 1747. Specifically, the SSEB noted the following strengths: first, Al A n d alus "demonstrated experience in the construction of gates, physical barriers, guard to w e rs , and fencing with the submittal of [the ECP 14 Contract] . . . ." Id. Second, all of

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A l Andalus's experience was with projects located in Baghdad. Although the SSEB a ss e ss e d Al Andalus a strength for this, the SSEB did not consider it a significant strength b e c au s e "[a]ll projects submitted for consideration . . . . are located on VBC." Id. Third, A l Andalus "submitted projects with overlapping construction dates, demonstrating their a b ility to manage construction project[s] concurrently." Id. T h e SSEB assigned Al Andalus a weakness under construction experience because A l Andalus's proposal "did not include construction experience with roads, 3-5 story b u ild in g s and explosive storage bunkers." Id. Although Al Andalus does not dispute that its proposal demonstrated no experience with the construction of either three- to five-story b u ild in g s or explosive storage bunkers, Al Andalus asserts that the ECP 14 Contract in v o lv e d experience with the construction of roads. 2nd. Am. Compl. ¶ 76. In response, th e government asserts that this project involved "paving" of an entry control point, but n o t actual road construction as contemplated by the solicitation. Def.'s Reply at 34-35. T h e SSEB also assigned Al Andalus a significant weakness based on the fact that A l Andalus's proposal "did not submit construction experience within the value of $ 5 [ 0 0 0 ,0 0 0 ]-[ $ ]2 0 [ 0 0 0 ,0 0 0 ]. All projects submitted for evaluation were for projects with a construction value under $5[,000,000]." AR 1747. The SSEB took this information d ire c tly from Al Andalus's submission. AR 1433-36. As noted above, however, it is not d is p u te d that Al Andalus was eventually paid more than $5,000,000 on the ROWPU C o n tr a c t.

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In the decision memorandum, the SSA stated with regard to construction e x p e rie n c e : T h e offeror demonstrated experience in construction of gates, physical barriers, g u a rd towers and fencing. All projects submitted for consideration are in B a g h d a d , however, all of the projects were on FOBs [("forward operating b ase s")].3 The offeror did not submit construction experience with roads, 3-5 s to ry buildings, and explosive storage bunkers. All five projects submitted w e re below the value of $5,000,000 identified in the RFP. A R 1698. c. T e c h n ic a l Capability Factor

U n d e r the terms of the solicitation, the technical capability rating was to be based o n five equally important subfactors: (1) management team; (2) design capability; (3) m a n a g em e n t approach; (4) local Iraqi development; and (5) security. AR 194. For the m a n a g e m e n t team subfactor, offerors were instructed to identify by name and submit a re su m e for the following key personnel: (1) project manager; (2) site superintendent; (3) c o n tra c to r quality control ("CQC") manager 4 ; and (4) safety manager. Id. For the Design C a p a b ilitie s subfactor, the solicitation advised offerors that the government was seeking a c o n tra c to r that could demonstrate "the ability to analyze the requirements described in the S c o p e of Work and develop satisfactory preliminary (35%) construction design drawings

FOBs are secured environments that generally offer a safer environment than that in which the construction projects would be executed under the MATOC at issue in this case. See, e.g., Richard Tomkins, FOBs the Closest Thing to Home in Iraq, Wash. Times, Mar. 26, 2008, at A15.
4

3

The information Al Andalus provided about its proposed CQC manager is discussed

infra. 12

a n d specifications." Id. Offerors were also required to demonstrate knowledge of and f a m ilia rity with appropriate international design standards. Id. A l Andalus's technical proposal provided background on the company and d e sc rib e d its technical approach and "Project Plan of Operations." The plaintiff's Project P lan of Operations described the company's "Management and Execution Plan" (¶ 2.0 5 ) , its mobilization plans ("Mobilization," ¶ 3.0), the size and breakdown of the projected w o rk f o rc e it would use to perform under the work required by the solicitation ("Manpower R eq u irem en t," ¶ 4.0), the procedures and sources it would use to procure necessary c o n stru c tio n materials ("Material Procurement," ¶ 5.0), the types and amount of various p lants and equipment owned by Al Andalus ("Plant & Equipment Requirement," ¶ 6.0), p ro je c t financial and administrative requirements (¶¶ 7.0 and 8.0), site security plans and c o n sid e ra tio n s ("Site Security," ¶ 9.0), and the company's language capabilities, including th e fluency in English of many of the company's employees ("Communication Issues," ¶ 10.0). AR 1427-30. A l Andalus stated in its proposal that it had 393 employees "available for this p ro je c t." AR 1428. However, in paragraph 6 of its Local Iraqi Development Plan, Al A n d a lu s stated: "Our planning department declared that if this contract [sic] awarded to o u r company [sic] expected workers in our company working for this project is expected to be more than 45, including engineers, foreman, drivers, skilled and unskilled workers,

All paragraph references contained in this paragraph are to Al Andalus's Project Plan of Operations. 13

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g u ard s, our people in the office." AR 1472 (emphasis added). F o r the technical capability factor, the SSEB evaluated Al Andalus as " A c c ep ta b le ," based on the assessment of one significant strength, two strengths, three w e a k n e s s e s , and one significant weakness. AR 1748. Specifically, the SSEB assigned Al A n d alus a significant strength under the technical capability factor because Al Andalus's p ro p o s a l "provided an extensive amount of detail regarding the electrical and mechanical p o rtio n of the proposal. [Al Andalus] provided a good design plan to include scheduling m e th o d o lo g y, CQC plan, Safety plan, good design drawings, and electrical/mechanical d is c u ss io n s ." Id. T h e SSEB assigned Al Andalus a strength under the technical capability factor b e c a u se Al Andalus had proposed "a well conceived security plan, demonstrating their u n d e rs ta n d in g of the hostile environment for the proposed project." Id. The SSEB a s s ig n e d Al Andalus another strength under the technical capability factor because Al A n d a lu s had "provided a detailed local Iraqi Development Plan." Id. Al Andalus's proposal was assigned a weakness under the technical capability f a cto r based on its stated personnel levels. As stated above, Al Andalus's proposal in d ic a te d that "more than 45" employees would be used for this project. AR 1472. The S S E B determined that "this level of manning is considered inadequate for a project of this s iz e ." AR 1748. Al Andalus asserts that the use of the phrase "more than 45" in Al A n d a lu s 's Local Iraqi Development Plan was the result of a typographical error, in that Al

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A n d a lu s intended to say "more than 450," given that the 393-employee count provided e a rlie r in the proposal included only on-site workers and did not include administrative a n d office staff. Ptf.'s Br. Supp. Mot. J.A.R. ("Ptf.'s Br.") at 31. T h e SSEB also assigned the plaintiff a weakness under the technical capability f a c to r on the grounds that Al Andalus "did not include information for Key Personnel to in c lu d e past project location and value of construction." AR 1748. T h e third weakness identified in Al Andalus's proposal under the technical c a p ab ility factor was that Al Andalus's proposal "did not address their ability to manage a n d deal with multiple projects at the same time. They also did not show a process to m in im iz e risk." Id. Finally, the SSEB assigned Al Andalus a significant weakness under the technical c a p ab ility factor because "[t]he CQC Manager has no practical experience in construction; th is would be the first construction project for the CQC Manager." Id. The CQC manager p ro p o s e d by Al Andalus had passed USACE's CQC management course in Baghdad and w a s identified in Al Andalus's proposal as "[c]urrently" working in "quality control a ss u ra n c e." AR 1465. T h e SSA stated with regard to Al Andalus's technical capability that despite several s tr e n g th s , the offeror's [C]QC manager has no practical experience in construction; this w o u ld be the first project the [C]QC manager would be responsible for. [Al A n d a lu s ] did not include all of the required information for each key member o f management, to include project value and location of the construction 15

p ro jec t. The offeror did not address its ability to manage and deal with multiple p ro je c ts at the same time. It also did not show a process to minimize risk. A R 1698. 2. Volume A Page Limit

O f f ero rs were instructed to address all three non-price factors (construction e x p e rie n c e , past performance, and technical capability) in Volume A of their proposals. AR 187. Offerors were to include their price proposals in a separate volume (Volume B), a n d their completed Standard Form 1442, representations and certifications and various o th e r administrative attachments in a third volume (Volume C). Id. T h e government specified through two amendments to the solicitation that the o f f ero rs could not exceed fifty pages in the Volume A portion of their proposals. AR 402, 4 1 0 . Specifically, Amendment 0002 to the solicitation contained the following question a n d response: Question 16: Is there a page limitation for Volume A which shall b e comprised of Construction Experience, Past Performance, and T e c h n ic a l Capability? A n sw e r/R e sp o n se : Volume A shall not exceed 50 type written p a g e s . All pages shall be prepared on standard 8.5 x 11 inch p a p e r (charts may be landscaped) and shall be in a legible font siz e (10). All pages of each proposal shall be appropriately n u m b ere d and identified with the solicitation number. A R 402 (emphasis added). Amendment 0003 to the solicitation addressed another question from an offeror re g a rd in g the page limitations for Volume A and provided additional clarification,

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e m p h a s iz in g that the fifty-page limit included any attachments to Volume A: Q u e stio n 40: Do the Attachments A&B (Factors 1 and 2) c o u n t toward the 50[-]page limit? A n s w e r /R e s p o n s e : Yes. Volume A shall not exceed 50 pages.

A R 410 (emphasis added). In response to the solicitation, Al Andalus submitted a proposal containing, inter a lia , a section entitled "Volume A Technical Proposal" that was fifty pages in length. AR 1 4 2 4 -74 . Within the Volume A Technical Proposal, in a section entitled "Factor 3 T e c h n ic a l Capability," see AR 1459, Al Andalus included a subsection entitled "Design C a p a b ilities ," to address that evaluation subfactor. AR 1466; see AR 194 ¶1.11.2. In its D e s ig n Capabilities subsection, Al Andalus did not include drawings, but referred to them, a s follows: In reference to the sample project, we have attached in a separate form a [sic] p re lim in a ry (35%) construction design drawings and specifications as V O L U M E A dose [sic] not fit for. A R 1466 (emphasis added). To demonstrate its design capabilities, Al Andalus submitted a p p ro x im a te ly 278 pages of drawings and schematics in five separate binders. AR 33293607. O f f ero r 14, an awardee, submitted a Volume A technical proposal that was 165 p a g e s long and also included eighteen pages of drawings and schematics in a subsection e n title d "Attachment B, Design." AR 1091-1248 (Offeror 14's Volume A), 1249-66 (O f f e ro r 14's drawings). Apparently, Al Andalus and Offeror 24 were the only offerors to 17

e x c e e d the page limitations set for Attachment A, and the SSEB considered both p r o p o s a ls . 3. The Price Reasonableness Determination

T h e solicitation advised that USACE would evaluate the price proposals to d e ter m in e if the prices submitted for the sample project defined in the solicitation and in th e BOQ were fair and reasonable, using the cost or price analysis techniques described in F e d e ra l Acquisitions Regulations ("FAR") 15.305(a)(1) and (4), 48 C.F.R. §§ 15.305(a)(1) & (4) (2005). AR 197. The solicitation provided that: F o r cost (Price) to be reasonable, it must represent a cost (Price) that provides b e st value to the Government when consideration is given to prices in the m ark et, (market conditions may be evidenced by other competitive proposals), tec h n ica l and functional capabilities of the offeror. . . . Price Proposals u n re a lis tic a lly high or low in price, when compared to the Government e stim a te, and market conditions evidenced by other competitive proposals re c eiv e d , may be indicative of an inherent lack of understanding of the s o lic ita ti o n requirements and may result in the proposal being rated lower or c o n s id e re d unacceptable. Id. USACE's technical experts prepared an Independent Government Estimate ("IGE") f o r the scope of work called for under the solicitation, namely, the BOQ for the Explosive O rd n a n c e Disposal ("EOD") projects. AR 439-60. The IGE was approved by the a g e n cy's Chief of Construction Services on June 21, 2008. AR 439. T h e IGE estimated the reasonable cost of the EOD project called for under the s o lic ita tio n to be $12,595,840. Id. The IGE contained twenty-one pages of documentation

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to support the $12,595,840 estimate, with an estimated value for each of the various s u b to ta l categories in the Estimated BOQ. AR 440-59. The June 21, 2008 IGE estimated th e reasonable cost to mobilize, demobilize and provide security for the EOD Project as $ 2 2 5 ,0 0 0 . AR 440 (Line Item A-1). T h e closing date for receipt of proposals was June 12, 2008. AR 160. Thus, the IG E was finalized nine days after the agency had received price proposals from all offerors in d ic a tin g how they proposed to price the EOD Project. AR 439. B. T h e Final Source Selection Decision

T h e source selection decision memorandum ("SSDM") summarized the adjectival r a tin g s and price information for Al Andalus's proposal as follows: O FFE R O R P R IC E C o n s tr u c tio n E x p e rie n c e R a tin g ACCEPTABLE T e c h n ic a l C a p a b i l it y R a tin g ACCEPTABLE Past P e rf o rm a n c e R a tin g AD EQUATEM OD ERATE RISK

2 3 [Al A n d a lu s ]

[ re d a c te d ]

A R 1694. In making a final decision, the SSA found that although Al Andalus presented "a v e ry low price proposal," Al Andalus "merited low non-price ratings and these ratings w e ig h heavily against it." AR 1699 (emphasis added). As such, the SSA concluded, "I d e te rm in e d this offeror does not represent the Best Value to the Government." Id. (emphasis added).

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B a se d on this determination, the SSA assigned Al Andalus to a "first group" of nine o f f e ro rs that all "received at least one non-price factor rating of less than `Good,'" AR 1 6 9 5 , including for failure to achieve low past performance risk. AR 1705 ("Each offeror in this group of nine received a past performance rating less favorable than `Low Risk.'"). This group included Offerors 1, 4, 7, 9, 11, 12, 16, 20, and 23 (Al Andalus). The SSA a ss ig n e d to a "second group" the eight remaining offerors that "received ratings of `Good' o r higher on all non-price factors." AR 1695. This group included Offerors 2, 3, 10, 14, 1 8 , 21, 22, and 24. AR 1703. The SSA conducted her price analysis and trade-off a n a lysis with only this second group.

The SSA explained: A d e q u a te competition was obtained as a result of the solicitation, which is k n o w n as one of the best basis [sic] for price analysis and for establishing price re a so n a b le n e ss since all offerors submitted independent proposals to meet the s a m e requirement during the same time period. However, due to the wide v a ria n c e in price proposals, as SSA I elected to compare the prices among the e ig h t . . . highest rated (non-price ratings) offerors. Id. Based on that comparison, the SSA concluded that the average price of $ 1 8 ,2 4 0 ,9 7 8 , which was the average of the eight top-rated offerors, "reflects current m a rk e t conditions in Baghdad, Iraq." AR 1704. She rejected the IGE price of $ 1 2 ,5 9 5 ,8 4 9 on the grounds that it was unreliable. Id. More specifically, she explained th a t the IGE "was compiled using prices from past projects located in an area that is re la tiv e ly safe to work in. But the project the offerors priced is located in an area of 20

B a g h d a d with significantly greater security issues." Id. A f te r subjecting the members of the second group to a trade-off analysis, see AR 1 7 0 3 -06 , the SSA selected the following five offerors for award of individual IDIQ c o n t r a c ts :

O FFE R O R

P R IC E

C o n s tr u c tio n E x p e rie n c e R a tin g GOOD GOOD GOOD GOOD GOOD

T e c h n ic a l C a p a b il i t i e s R a tin g GOOD GOOD GOOD GOOD O U T S T A N D IN G

P a s t Performance R a tin g EXCELLENT EXCELLENT GOOD GOOD GOOD

3 10 2 14 24

$13,838,609 $13,985,213 $ 1 7 ,1 9 0 ,0 7 3 $16,409,705.40 $19,420,164

A R 1707. The SSA specifically found that "[t]he government's stated goal of achieving lo w past performance risk is achieved through selection of Offerors 2, 3, 10, 14 and 24." AR 1706 (emphasis added); see also AR 188 ¶ 1.5.1. By letter dated July 21, 2008, the Contracting Officer notified Al Andalus that it did not receive award of an IDIQ contract. AR 2244-45. By letters dated the same d a y, the Contracting Officer notified Offerors 2, 3, 10, 14, and 24 that they had been a w a rd e d IDIQ contracts pursuant to the solicitation. AR 1751-55.6

Al Andalus initially lodged a protest with the United States Government Accountability Office, which it withdrew on August 18, 2008. AR 2268-69. 21

6

C.

T h e Present Litigation

A l Andalus filed its original complaint in this action on August 26, 2008. It filed its f irs t amended complaint on October 24, 2008, and a second amended complaint on N o v e m b e r 7, 2008. In this action, and in its cross-motion for judgment on the a d m in is tra tiv e record, Al Andalus complains that the IDIQ awards must be set aside and th e competitive bidding process reopened for various reasons. First, Al Andalus claims that USACE engaged in impermissible disparate treatment b y waiving the fifty-page limit for Volume A submissions for Offeror 14, one of the a w a rd e e s, while applying it to Al Andalus and other offerors. As stated above, Al Andalus d o e s not deny that it submitted additional pages of drawings outside of its Attachment A b e c au s e its drawings would not fit within the allotted fifty pages. Nonetheless, Al Andalus c la im s it was prejudiced by the waiver for Offeror 14, on the grounds that Al Andalus was c riticiz e d for not providing sufficient information on other matters within its proposal. S e c o n d , Al Andalus claims that the SSEB's assignment of a consensus rating of " A d e q u a te - Moderate Risk" under the past performance factor, and "Acceptable" for the te c h n ic a l capability and construction experience categories is not supported by the record. Al Andalus claims that all of its ratings should have been higher. Al Andalus takes p a rtic u la r issue with its past performance rating and claims that the SSEB should not have a ss ig n e d it a deficiency for failing to submit Attachment B because the SSEB had all of th e information it needed to make an assessment of Al Andalus's past performance from

22

th e PPQs that were submitted and considered by the SSEB. Al Andalus claims that if the S S E B and the SSA had performed a proper analysis of the PPQs and its submission, Al A n d a lu s would have received a "low risk" rating and would have then been eligible for co n side ratio n in the best value evaluation. Al Andalus also challenges the SSEB's a ss ig n m e n t of a consensus rating of "Acceptable" for technical capability and for c o n stru c tio n experience. Al Andalus complains that other offerors with similar proposals w e re given higher ratings and that Al Andalus's own ratings should have been higher. Al A n d a lu s also complains that the weakness determinations were not warranted. For ex am p le, Al Andalus contends that had the agency probed deeper into Al Andalus's p ro p o s a l, it would have determined that despite stating otherwise in the proposal, one of th e contracts Al Andalus listed in its proposal was valued at over $5,000,000 and that Al A n d a lu s had made a typographical error when it stated that it had identified "more than 4 5 " people for work on the project. Third, Al Andalus claims that the Contracting Officer violated FAR 15.4041 (b )(2 )(I), 48 C.F.R. § 15.404-1(b)(2)(I) (2008), by including only the eight offerors with th e highest non-price ratings in the price reasonableness determination. Al Andalus claims th a t this provision requires a contracting officer to base the price reasonableness d e te rm in a tio n on all submitted bids, not on a subset of them. Al Andalus challenges the S S A 's decision to consider only those offerors who met the "low-risk" past performance s ta n d a rd in its evaluation. The government, in its response to Al Andalus's complaint and

23

m o tio n for judgment on the administrative record, argues that the SSA's decision is s u p p o rte d by the administrative record. The government contends that Al Andalus was p ro p e rly excluded from the best value consideration based on the weakness and deficiency A l Andalus earned for its past performance. The government argues that because Al A n d a lu s failed to meet the threshold criteria for award consideration, Al Andalus was not e lig ib le for award and was therefore not prejudiced by any of the alleged errors it has id e n tif ie d in the procurement process. The government further argues that Al Andalus was n o t prejudiced by the government's decision to consider proposals in excess of the fiftyp a g e Volume A limit on the grounds that Al Andalus also exceeded the page limit by s u b m ittin g numerous pages of drawings. Finally, the government contends that the SSA c o n d u c te d a proper price reasonableness evaluation when she elected not to consider the n in e offerors with unacceptably low non-price ratings. Briefing was completed on January 13, 2009, and oral argument on the crossm o tio n s was heard on January 14, 2009. II. S T A N D A R D OF REVIEW T h e United States Court of Federal Claims has jurisdiction to adjudicate preand post-award bid protest claims pursuant to the Tucker Act, 28 U.S.C. § 1491(b) (2000), w h ic h provides this court with jurisdiction 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 o r to a proposed award or the award of a contract or any alleged violation of s ta tu te or regulation in connection with a procurement or a proposed 24

p ro c u re m e n t[ ,] . . . without regard to whether suit is instituted before or after th e contract is awarded. 2 8 U.S.C. § 1491(b)(1); see also, e.g., Impresa Construzioni Geom. Domenici Garufi v. U n ite d States, 238 F.3d 1324, 1330 (Fed. Cir. 2001).7 The Federal Circuit has held that " th e proper standard to be applied in bid protest cases is provided by [the Administrative P r o c e d u re Act (`APA'),] 5 U.S.C. § 706(2)(A) [(2006)]: a reviewing court shall set aside th e agency action if it is `arbitrary, capricious, an abuse of discretion, or otherwise not in a c co rd a n c e with law.'" Banknote Corp. of Am. v. United States (Banknote), 365 F.3d 1 3 4 5 , 1350-51 (Fed. Cir. 2004) (quoting 5 U.S.C. § 706(2)(A); citing Advanced Data C o n c e p ts , Inc. v. United States, 216 F.3d 1054, 1057-58 (Fed. Cir. 2000)); 28 U.S.C. § 1 4 9 1 (b )(4 ) (2000); see also Int'l Res. Recovery, Inc. v. United States, 60 Fed. Cl. 428, 431 (20 0 4 ) ("`While a disappointed bidder does not have the right to have a federal court s u b s titu te its judgment for that of the administrative agency, the bidder does have the right to introduce appropriate evidence to allow the court to determine whether the agency a c tio n was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance

Because Al Andalus is an Iraqi company, the court has given due consideration to the jurisdictional requirement of the Reciprocity Act, 28 U.S.C. § 2502 (1992), which states, in pertinent part: (a) Citizens or subjects of any foreign government which accords to citizens of the United States the right to prosecute claims against their government in its courts may sue the United States in the United States Court of Federal Claims if the subject matter of the suit is otherwise within such court's jurisdiction. The court finds that this statute does not deprive it of jurisdiction as U.S. citizens are accorded the right to pursue claims against the Iraqi government in Iraqi courts. 25

7

w ith law.'" (quoting GraphicData, LLC v. United States, 37 Fed. Cl. 771, 780 (1997))). Under the APA standards, a procurement decision "may be set aside if either: (1) the p roc u rem en t official's decision lacked a rational basis; or (2) the procurement procedure in v o lv e d a violation of regulation or procedure." Impresa, 238 F.3d at 1332. If the c h a l le n g e is "based on alleged violations of `regulation or procedure,' a claimant must s h o w `a clear and prejudicial violation of applicable statutes or regulations.'" Galen Med. A s s o c s. v. United States, 369 F.3d 1324, 1331 (Fed. Cir. 2004) (quoting Banknote, 365 F .3 d at 1351). To establish prejudice, a protester "must show that there was a `substantial c h a n c e ' it would have received the contract award but for the errors" alleged. Bannum, In c . v. United States, 404 F.3d 1346, 1353 (Fed. Cir. 2005) (citing Info. Tech. & A p p lic a tio n s Corp. v. United States, 316 F.3d 1312, 1319 (Fed. Cir. 2003); Alfa Laval S ep ara tio n , Inc. v. United States, 175 F.3d 1365, 1367 (Fed. Cir. 1999)). III. D IS C U S S IO N A. A l Andalus's Past Performance Rating Is Supported by the A d m in is tr a tiv e Record and Precludes a Finding of Prejudice.

T h e plaintiff alleges that the SSEB erred in assigning Al Andalus an adjectival ra tin g of "Adequate - Moderate Risk" for the past performance factor. Al Andalus takes e x c e p tio n to the deficiency it was given by failing to include the Attachment B worksheets f o r the projects it identified in Attachment A. Al Andalus also takes issue with the w e a k n es s it was assigned for failing to provide information on problem recognition and m inim izin g costs. Finally, Al Andalus argues that the SSEB gave certain other offerors 26

b e tte r ratings than are supported by the administrative record. Each objection will be e x a m in e d in turn. F irst, with regard to the deficiency for failing to submit the Attachment B w o rk sh e e ts, Al Andalus argues that it should not have been downgraded for failing to f o llo w the solicitation's instructions because the government was able to obtain enough in f o rm a tio n in the PPQs provided to the SSEB regarding Al Andalus's performance to m a k e a decision. Al Andalus contends that the omission was therefore "ministerial" and s im p ly a "formatting" error. Ptf.'s Reply at 16. The government argues in response that th e SSEB's decision to give Al Andalus a deficiency for failing to submit Attachment B w o rk s h e e ts was fully merited. The court agrees with the government that the SSEB's deficiency rating was ju stif ied for several reasons. First, there is no dispute that the Attachment B worksheets w e re required by the solicitation. Indeed, as noted above, the language of the solicitation c le a rly emphasized the importance of these worksheets. The solicitation expressly stated th a t the omission of Attachment B worksheets "may result in rejection of the offer without fu rth er evaluation." AR 190. In that same paragraph, the solicitation stated, "Offerors are u rg e d to follow instructions and speak with the Contracting Officer if instructions are not u n d e rs to o d ." Id. In view of these statements in the solicitation, the requirement to include th e Attachment B worksheets was not simply "ministerial." Rather, Al Andalus failed to c o m p ly with an express solicitation requirement, which could have led to rejection of its

27

e n tire proposal. As such, the court finds that the assignment of a deficiency for failing to in c lu d e the Attachment B worksheets was not "arbitrary, capricious, an abuse of d is c re tio n , or otherwise not in accordance with law." Impresa, 238 F.3d at 1332. Second, contrary to Al Andalus's contentions, the PPQs were not by themselves e n o u g h to make up for Al Andalus's failure to comply with an express solicitation re q u ire m en t. Attachment B required Al Andalus to provide information regarding its own p e rf o rm a n c e and experience. The submitted PPQs, in contrast, are essentially check-offth e block score sheets; they did not provide any detail as to the work Al Andalus itself p e rf o rm e d , the types of contracts used, and the current state of the projects. The court also finds that the SSEB's decision to assign Al Andalus a weakness for f a ilin g to provide information on "problem recognition and corrective actions in submitted p ro je c ts . . . . [as well as] information regarding minimizing cost during construction," was a ls o fully justified by the evidence in the administrative record. AR 1747. Al Andalus a d m its that it did not submit the required information in its proposal. Once again, it argues th a t the PPQs it submitted with its proposal were sufficient to make up for this deficiency. This assertion is not supported. Under the solicitation, paragraph 1.9.4, "Problem R e so lu tio n ," offerors were required to submit information "on problems encountered and c o rre c tiv e action taken, especially in regard to contract completion dates, quality control, a n d cost increases." AR 191. Al Andalus omitted any discussion of "problem resolution" in its proposal. It did not include any narrative discussion of the issue to be addressed.

28

W h ile it is true that the PPQs did not identify any specific problems, the PPQs were not in te n d e d to serve as the "narrative" for the "Problem Resolution" portion of the offer. Indeed, the PPQs were rated under a separate scoring category. PPQs were designed to ad d ress the issue of customer satisfaction, not problem resolution. The two issues are re la te d but are not identical. It is well-recognized that an agency's evaluation of past performance is entitled to g re a t deference. See Westech Int'l, Inc. v. United States, 79 Fed. Cl. 272, 293 (2007) (" W h e n the court considers a bid protest challenge to the past performance evaluation co n d u cted by the agency, the `greatest deference possible is given to the agency.'" ( q u o t in g Gulf Group Inc. v. United States, 61 Fed. Cl. 338, 351 (2004)); see also O v e rs tre e t Elec. Co. v. United States, 59 Fed. Cl. 99, 117 (2003) (stating that "when a p ro c u re m e n t involves performance standards . . . a court must grant even more deference to the evaluator's decision[,] . . . a triple whammy of deference"). Where, as here, the o f f e ro r did not include a discussion called for in the solicitation, the agency's decision to a ss ig n Al Andalus a weakness for the past performance portion of its proposal was not a rb itr a ry or capricious. Under the adjectival rating system used in this solicitation, an "Adequate" rating m e a n s that "[s]ome doubt exists that the offeror will successfully perform the required e f fo rt based on their performance record." AR 1693. Given the support for the deficiency a n d weakness ratings assigned to Al Andalus for past performance, the court concludes

29

th a t the SSA's decision to give Al Andalus an overall "Adequate-Moderate Risk" rating f o r past performance was not arbitrary, capricious or an abuse of discretion. In such circu m stan ce s, it is not necessary to address Al Andalus's contention that other offerors ( O f f e r o r s 2 and 14) should not have been given a better rating than Al Andalus in the past p e rf o rm a n c e category. The court will not engage in a re-weighing of the various proposals re c eiv e d . Al Andalus's objections to the ratings for Offerors 2 and 14 go to the merits of th e SSEB's evaluation. See Beta Analytics Int'l, Inc. v. United States, 67 Fed. Cl. 384, 3 9 5 (2005) (challenges regarding "the minutiae of the procurement process in such matters a s technical ratings . . . involve discretionary determinations of procurement officials that a c o u rt will not second guess." (quoting E.W. Bliss Co. v. United States, 77 F.3d 445, 449 ( 1 9 9 6 ) ) ). The SSA's evaluation required technical judgement and expertise that is entitled to th e greatest possible deference. E.W. Bliss Co., 77 F.3d at 449. In contrast, an evaluation o f Al Andalus's rating does not require the exercise of technical expertise. Al Andalus w a s given a lower past performance rating because it failed to follow instructions and p rov ide the information that was needed to fully evaluate its past performance. The failure to provide that information, by itself, justifies an "Adequate - Moderate Risk" rating. Because Al Andalus was not entitled to a "Good - Low Risk" rating, it cannot show that it h a d a substantial chance for award. In such circumstances, Al Andalus cannot show it was p re ju d ic e d by any errors in the SSA's evaluation of other offerors. Bannum, 404 F.3d at

30

1353. B. T h e Agency Did Not Err in Assigning Al Andalus an "Acceptable" R a tin g for Its Technical Capability.

H a v i n g concluded that Al Andalus was not eligible to be considered for the best v a lu e evaluation because of its "Adequate-Moderate Risk" past performance rating, this c o u rt finds that Al Andalus cannot show prejudice based on the SSA's acceptance of the S S E B 's "Acceptable" consensus rating of Al Andalus's technical capability. In other w o rd s, even if Al Andalus had been given a better technical capability rating, it still would n o t have met the requisite low-risk past performance rating to be considered for award. Nonetheless, the court finds for the reasons set forth below that the government did not err in any event in assigning Al Andalus an adjectival rating of "Acceptable" for the technical c a p a b ility factor. First, the SSEB and SSA acted rationally in assigning Al Andalus a significant w e a k n es s based on its proposed CQC manager's lack of experience. Al Andalus provided m in im a l information about the experience of its proposed CQC manager. Al Andalus s u b m itte d a one page resume for the proposed CQC manager, [name redacted]. Half of th e page was occupied by a reproduction of a certificate awarded to [name redacted] for c o m p letin g "the Corps of Engineers Training Course [in] Construction Quality M a n g e m e n t: CD-ROM." AR 1465. The second half of the page contains the following inf o rm atio n about [name redacted]: P e rs o n a l Information 31

F u ll Name: [name redacted] D a te and location of birth: [redacted] R e sid e n c e address: [redacted] F a m ily status: [redacted] E m a il: [redacted] T e l No: [redacted] M o b il [sic] No: [redacted] C e r t i f i c a ti o n 1. B a c h elo r degree [sic] (BA) for Information and computers [sic] engineering f ro m the University of Technology in Baghdad/Iraq. (2003-2007) 2. E n g lis h training certified by the IACCI. (3 months) 3. U S A C E constructions [sic] quality management training course 2008. E x p e rie n c e W o rk e d as IT at [A]l Andalus general contracting and trading company in B a g h d a d for [t]he duration from [sic] January 2005 - 2008 C u rre n tly, quality control assurance. Id . While [name redacted]'s resume does show some training in construction, albeit m in im a l, it was not arbitrary or capricious for the government to determine that he had "no p ra c tic a l experience in construction" and that this would be his first construction project. AR 1748 (emphasis added). Although his resume does state "[c]urrently, quality control assu ran ce ," apparently in reference to his current position with Al Andalus, this four-word s ta te m e n t gives no indication that he has ever worked on a construction project. AR 1465. [Redacted]'s resume also states that he was employed by Al Andalus in another field, in f o rm a tio n technology ("IT"), until the year Al Andalus bid on this contract, a fact that su p p o rts the agency's conclusion that [name redacted] was not sufficiently experienced in

32

co n stru ctio n . Taking into account [name redacted]'s lack of demonstrated work e x p e rie n c e and his training and background, including the fact that his only degree is in " [ i]n f o rm a tio n and computers [sic] engineering," the agency's conclusion that he has no p ra c tic a l construction experience is supported. Id. (emphasis added). Likewise, the plaintiff cannot demonstrate that the assignment of a weakness for f a ilin g to include past project location and value of construction information for key p e rso n n e l was erroneous. The solicitation clearly mandated the provision of this in f o r m a tio n , and the plaintiff did not provide it. See AR 194 (Solicitation ¶ 1.11.1 states, " T h e description of [each key personnel member's] experience shall detail projects s u c c es s f u lly completed, to include the name of the project, location, monetary value, and in what capacity the individual served on the project." (emphasis added)). Regardless of w h e th e r or not other offerors were properly rated for failing to include this information, th e agency acted well within its discretion in assigning the plaintiff a weakness for not in c lu d in g it. The plaintiff cannot show that the agency acted irrationally in assigning the plaintiff a weakness for not "address[ing] their ability to manage and deal with multiple projects at th e same time" and not "show[ing] a process to minimize risk." AR 1748. While it is true th a t the SSEB credited Al Andalus with a strength under the construction experience f a c to r for "submit[ting] projects with overlapping construction dates, demonstrating their a b ility to manage construction project [sic] concurrently," AR 1747, the court agrees with

33

th e government that submitting evidence of managing concurrent construction projects in th e past did not satisfy the requirement of Solicitation ¶ 1.11.3 (a) to "Describe how Prime w ill administer and utilize resources to rapidly respond to and manage multiple, c o n c u rr e n t, dispersed projects within the Baghdad Province." AR 194 (emphasis added). The solicitation required offerors to demonstrate how they would do so in the future, w h ic h requires a prospective plan, not simply evidence of achieving that goal in the past. Additionally, while Al Andalus briefly mentioned its intention to minimize risk in a s e c tio n of its proposal entitled "Management Approach," the proposal did not show a p ro c e ss to minimize risk. AR 1467. Thus, the agency's assessment of a weakness for this o m is s io n under the technical capability factor was not irrational. Finally, while the SSEB probably should have known that Al Andalus would be u sin g significantly more than forty-five employees for this project, the plaintiff is unable to s h o w that if this weakness had been deleted, it would have resulted in an overall "Good" ra tin g for technical capability. Although it was mentioned in the SSEB report, the SSA d id not mention the staffing level issue in her SSDM, but noted that other problems with A l Andalus's technical capability were significant. Thus, there is no reason to believe that A l Andalus was prejudiced by the weakness assigned due to the "forty-five employee" is s u e . See Bannum, 404 F.3d at 1353. Rather, given the record support for the other " w e a k n es s e s" in technical capability, Al Andalus cannot show that a rating of " A c c e p ta b le " for this factor was arbitrary or capricious. Furthermore, as noted above, Al

34

A n d a lu s cannot demonstrate that a higher technical capability rating would have led to a su b sta n tial chance of an award under the contract. C. The Agency Did Not Err in Assigning Al Andalus an "Acceptable" R a tin g for Its Construction Experience.

B ec a u s e the court finds that the "past performance" rating was supported, Al A n d a lu s cannot show that it was prejudiced by any error in the government's evaluation of its construction experience. However, once again, the court finds that the government did n o t err in assigning Al Andalus an adjectival rating of "Acceptable" for the construction e x p e rie n c e factor in any event. First, the court finds that the SSEB committed no error in a ss ig n in g Al Andalus a significant weakness for not submitting construction experience w ith in the value of $5,000,000 to $20,000,000. While the plaintiff advances several a rg u m e n ts as to why the SSEB should have known that the value of one of the five p ro je c ts listed in Al Andalus's proposal exceeded $5,000,000, it is plain from the s o lic ita tio n itself that the government did not have such a burden. By its terms, the so licitatio n stated that all of the required information needed to be within the four corners o f the proposal. See AR 189, Para. 1.7.1 ("The Offeror shall submit all information re q u e ste d on Attachment A. Failing to submit this attachment or failing to complete the f o rm s properly[] may result in rejecting the offer without further evaluation."). Accordingly, Al Andalus cannot place responsibility for its error on the government. Furthermore, even if the information regarding the ultimate payment to Al Andalus under th e ROWPU Contract was over $5,000,000, this was the only contract that was in the 35

$ 5 ,0 0 0 ,0 0 0 to $20,000,000 range. As such, the government could still have justified a " s ig n if ic a n t weakness" finding. Other offerors were given "weakness" ratings because m o re than one but less than all of the five projects they identified did not exceed $ 5 ,0 0 0 ,0 0 0 in value. See AR 1722 and 1736. Thus, based on the evidence in the ad m inistrativ e record, Al Andalus's rating was within the bounds of the agency's d is c re tio n . T h is court also finds the assignment of a weakness for not submitting construction e x p e rie n c e with roads, three- to five-story buildings, and explosive storage bunkers was ra tio n a l. While reasonable minds may differ as to whether construction and paving of an e n try control point constitutes "construction of roads," this court is required to determine w h e th e r the agency action is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." Impresa, 238 F.3d at 1332 (quoting 5 U.S.C. § 706(2)(A)); B a n k n o te, 365 F.3d at 1350-51. The court finds that the agency did not violate this highly d e f ere n tia l standard by concluding that Al Andalus's ECP 14 Contract did not involve ro a d construction. Furthermore, this court also notes that it is likely that Al Andalus w o u ld still have received a weakness for construction experience even if the agency did c o n stru e the entry control point project as involving road construction. There is no dispute th a t Al Andalus did not submit any evidence to show that it had constructed three- to fives to ry buildings or an explosive storage bunker. There is ample evidence in the a d m in i str a tiv e record to show that Al Andalus still would have received this weakness

36

ev en if it had been credited for construction experience with roads. For example, Offerors 1 , 2, 9, 11, 22, and 24 received a weakness for failing to demonstrate only the ability to c o n stru c t explosive storage bunkers. AR 1717, 1719, 1728, 1732, 1745, 1749. Thus, the w e a k n e s s rating is rationally supported. D. Al Andalus Was Not Prejudiced by the Government's Consideration of O ff e r o r 14's Technical Proposal.

The government concedes that Offeror 14 submitted a Volume A proposal in excess of fifty pages. The government argues that Al Andalus was not prejudiced by c o n sid e ra tio n of Offeror 14's proposal because Al Andalus also submitted a proposal in e x c es s of the page limits. In particular, Al Andalus included 278 pages of drawings that w e re considered by the SSEB in making its evaluation of Al Andalus's proposal. A p p a re n tly, other offerors, including Offerors 10, 18, 21, and 24 also exceeded the fiftyp a g e limit but their proposals were considered nonetheless. Because the government considered proposals in excess of the fifty-page limit, the g o v e rn m e n t contends that it should be deemed to have waived the fifty-page limit under F A R 52.215-1(f)(3), 48 C.F.R. § 52.215-1(f)(3) (2004), which allows the government to " w a iv e informalities and minor irregularities in proposals received." Al Andalus contends that the government cannot simply "waive" the page limit, because the government's a c tio n s resulted in unfair and unequal treatment of offerors in violation of FAR 1.602-2, 4 8 C.F.R. § 1.602-2 (2005). Ptf.'s Br. at 11 ("[T]he agency violated [its] fundamental duty [ to treat offerors impartially, fairly, and equitably] . . . by waiving the [solicitation's] strict 37

p a g e limit . . . for one of the successful offerors, but not for Al Andalus."). Al Andalus d isp u tes that its drawings should count toward the fifty-page limit. It also claims that it w a s prejudiced by the government's failure to adhere to the limit, on the grounds that Al A n d a lu s was penalized for failing to follow instructions, whereas Offeror 14 was not. Al A n d a lu s argues that this is a "classic case" of disparate treatment, and therefore the u ltim a te procurement decision lacks a rational basis. The plaintiff asserts: Allowing one offeror to overcome deficiencies in its proposal by exceeding the p a g e limitations, while penalizing other offerors such as Al Andalus for a d h e rin g to the page limitations is a textbook example of impermissible d ispa rate treatment. Indeed, this court has observed that "the agency's failure to follow the terms of its own [request for proposals] and selection of an offeror b a se d upon different requirements than those imposed upon the . . . other o f f e ro r[ s ] are quintessential examples of conduct which lacks a rational basis." P tf.'s Br. at 12 (quoting Hunt Bldg. Co. v. United States, 61 Fed. Cl. 243, 273 (2004)). In response to Al Andalus's arguments, the government explains that Offeror 14 w a s, in fact, assigned a "weakness" for exceeding the fifty-page limit and therefore, c o n tra ry to Al Andalus's contentions, Offeror 14 was penalized for exceeding the page lim it. Most importantly, the government contends that where, as here, Al Andalus also e x c e e d e d the page limit, it cannot claim prejudice because it was not subject to disparate tre a tm e n t. According to the government, so long as every offeror with a proposal in e x c es s of fifty pages was considered, the government should be deemed to have waived th e requirement. See FAR 52.215-1(f). The court agrees with the government that Al Andalus has not demonstrated any

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p r e ju d ic e by the government's decision to consider proposals, including Al Andalus's, w h ic h did not strictly conform to the fifty-page limit for Volume A. Al Andalus does not a lle g e that its failure to include key information regarding its fatal past performance rating w as due to the limitation of pages. There is no evidence to suggest that Al Andalus's d e c is io n not to include certain information called for in the solicitation was tied to the f if ty-p a g e limitation. Nor does Al Andalus contend that its "Acceptable" ratings for te c h n ic a l capability or construction experience were tied to problems in meeting any page lim itatio n . To the contrary, Al Andalus explained that it included its drawings separately b e c a u s e of the fifty-page limit. As stated above, the government did not penalize Al A n d a lu s for exceeding the fifty-page limit. In such circumstances, the court agr