UNITED CONCORDIA COMPANIES, INC. v. USA

Filing 82

PUBLISHED OPINION. Signed by Senior Judge Eric G. Bruggink. (jpk1) Copy to parties.

In the United States Court of Federal Claims
No. 11-276C
(Originally Filed: July 1, 2011)
(Reissued: July 20, 2011)1
**********************
UNITED CONCORDIA COMPANIES,
INC.
Plaintiff,
v.
THE UNITED STATES,
Defendant,

Post-Award Bid Protest;
Comparative Assessment of
Proposals; FAR 15.305; FAR
15.308; Proposal Risk; Past
Performance

METROPOLITAN LIFE INSURANCE
COMPANY
Intervenor.
*********************
David P. Metzger, Washington, DC, for plaintiff. Kristen E. Ittig,
Dominique L. Casimir, and Lauren J. Schlanger of counsel.
Elizabeth A. Speck, United States Department of Justice, Civil Division,
Commercial Litigation Branch, Washington, DC, with whom were Tony West,
Assistant Attorney General, Jeanne E. Davidson, Director, and Kenneth
Dintzer, Assistant Director, for defendant. Gerald A. Wesley, Tricare
Management Agency, Department of Defense, of counsel.
Thomas P. Humphrey, Washington, DC., for intervenor. John E.
McCarthy, Jr., Puja Satiani, James G. Peyster, Sarah B. Gleich, Raja S.

1

In accordance with the protective order in this case, publication was
deferred pending the parties’ review for redaction of controlled materials.
Those redactions are indicated by brackets.

Mishra, of counsel. Lawrence K. Wolff, Metropolitan Life Insurance Co., of
counsel.
_____________
OPINION
_____________
This is a post-award bid protest of the award of a contract for the
continuation of a comprehensive dental insurance program for family members
of military personnel world-wide. The agency handling the procurement is the
Department of Defense TRICARE Management Activity (“TMA”), a field
activity of the Undersecretary of Defense for Personnel and Readiness. TMA
manages the TRICARE health and dental programs for active duty military
members and their families. The procurement was conducted competitively
pursuant to Federal Acquisition Regulation (“FAR”) part 15.
We heard oral argument on the parties’ cross-motions for judgment
upon the administrative record (“AR”) on June 23, 2011; we denied plaintiff’s
motion for judgment and granted defendant’s and intervenor’s cross-motions
by order of June 24, 2011. As stated in that order, we now issue this opinion
to give our reasons for so ruling
BACKGROUND 2
TMA issued a Request for Proposals (“RFP”) for the continuation of
the comprehensive dental insurance program as a follow-on to the TRICARE
Dental Program (“TDP”) contract on December 21, 2009. The original TDP
contract was performed by United Concordia Companies, Inc. (“UCCI”).
TMA amended the RFP four times. The final amendment issued on September
23, 2010. The RFP called for a competitive procurement, resulting in the
award of a fixed-price incentive contract with one base year and five one-year
options. The commencement of services under the new TDP contract is
scheduled for February 1, 2012, with the preceding year as a transition period.

2

The facts are undisputed unless otherwise noted and are drawn from
the Administrative Record and the exhibits and declarations allowed as part of
the record by our orders of June 6 and 24, 2011.
2

The RFP’s Description/Specification/Work Statement (“SOW”)
established four objectives for the TDP contract: (1) sustain or increase
enrollment; (2) increase member use of diagnostic and preventive services; (3)
establish and maintain enrollee and provider satisfaction at the highest level
through the delivery of a high quality dental care program meeting or
exceeding all standards in the contract; and (4) cost-effective management
approach to provide services, incorporating best commercial practices when
practicable.
Award was to be made to the responsive and responsible offeror whose
proposal represented the best overall value to the government. The RFP
announced that, in making this determination, TMA would evaluate: (1) the
extent to which the proposal exhibited a clear understanding of “the work
requirements and the means required to fulfill the requirements;” (2) the extent
that the proposal demonstrates “an ability to meet or exceed the requirements
in the RFP” and the “quality of service” likely to result from the offeror’s
“proposed methods;” and (3) “the feasability of the offeror satisfactorily
performing all RFP requirements within the total price proposed.” AR 111.
In doing so, the RFP established the following factors and subfactors against
which to evaluate proposals:
Factor 1 – Technical Approach
Subfactor 1 - Network Development and Maintenance
Subfactor 2 - Beneficiary/Provider Services and Satisfaction
Subfactor 3 - Management Approaches
Factor 2 – Past Performance
Factor 3 – Price
AR 112. Technical approach was the most important factor. The three
subfactors were of equal importance. Past performance was the second most
important factor, and price was the least important. Technical approach and
past performance were “significantly more important than Price” when
combined. Id. The RFP did state, however, that “if two or more proposals are
determined essentially equal in terms of non-price factors, the Government
may determine that price is more important in the ultimate evaluation.” AR.
111.
The RFP provided a detailed description of how it would evaluate each
3

factor and subfactor.3 Factor one and its subfactors were to be evaluated both
for merit and for “proposal risk.” “Proposal risk considers the potential for
disruption of schedule, increased cost, degradation of performance, the need
for increased Government resources/oversight to monitor and manage risk, and
the likelihood of unsuccessful contract performance.” AR 113. The risk
evaluation was to include, but was not limited to, “the proposed approach,
method of process of completing tasks and the demonstrated experience in
performing tasks.” Id.
Offerors were instructed to provide past performance information for
both themselves and any “first-tier subcontractors.” AR 105. A “first-tier
subcontractor” was defined as “a company with a direct contractual
relationship with the offeror and whose total contract price exceeds
$25,000,000, or a subcontractor who has direct responsibility for providing
dental healthcare services, or who provides claims processing services
regardless of price.” Id.
Price was evaluated for fairness and reasonableness. The RFP stated
that a “Total Evaluated Price” would be calculated and then used in the best
value trade off process.4 AR 114.
Five offerors timely submitted offers. Only two are relevant here:
UCCI and Metropolitan Life Insurance Company (“Met Life”). Those offers
were evaluated as set out in the RFP and the Source Selection Evaluation
Guide (“SSEG”). The guide established the source selection organization. It
consisted of a Source Selection Authority (“SSA”), Source Selection Advisory
Counsel (“SSAC”), and Source Selection Evaluation Board (“SSEB”). The
SSA appointed the SSAC and SSEB. The SSEB was headed by a chairman
who oversaw three independent teams each responsible for the evaluation of
a separate factor: the Technical Evaluation Team (“TET”); The Performance
Assessment Group (“PAG”); and the Price Team.
The Evaluation Guide called for the TET to evaluate and develop
technical merit and proposal risk ratings for each offeror for each subfactor
3

We will discuss the evaluation of the factors and subfactors in more
detail only as relevant to the merits of the protest later in this opinion.
4

The “Total Evaluated Price” was the sum of certain enumerated
Contract Line Items as set forth in section M.6.2 of the RFP.
4

along with detailed rationales for each rating. TET was instructed not to
“compare one offeror’s proposal to another offeror’s proposal.” AR 575. The
TET produced detailed reports for each offeror that included both what the
offeror proposed and the TET’s technical merit and proposal risk ratings. The
PAG evaluated past performance and established a confidence rating for each
offeror. The Price Team evaluated the proposed prices for reasonableness and
fairness.
After the SSEB teams issued their reports, they were reviewed by the
SSAC for compliance with the evaluation criteria as detailed by the RFP. The
SSEB chairman, Col. Jeff Chaffin, performed a comprehensive review of the
team reports, compared proposals, and issued a best value recommendation.
The SSA, Capt. Robert Mitton, reviewed the RFP, the offerors’ final
proposals, the SSEB team reports, the SSEB chairman’s report, and the
SSAC’s report. He reviewed for compliance with the evaluation criteria in the
RFP, compared proposals and ratings, and made the final best value
determination resulting in an award decision.
The Evaluation
The TET rated both UCCI and Met Life as “Blue: exceptional” for each
of the technical subfactors and assigned both a rating of “low risk” for
proposal risk. The SSEG defined an exceptional rating as “exceed[ing]
minimum requirements in a manner beneficial to the Government; no
weaknesses. The offer has exceeded some requirements and is at least
acceptable in all other requirements. Where exceeded, it must be documented
by a strength(s) that is of clear benefit to the Government.” AR 578. A
strength was defined by the SSEG as “an aspect of an offeror’s proposal that
exceeds specified requirements and is a clear benefit to the Government.” AR
578.
UCCI was evaluated as having [ ] strengths for Network Development
and Maintenance (subfactor one), [
] strengths for Beneficiary/Provider
Services and Satisfaction (subfactor two), and [ ] strengths for Management
Approaches (subfactor three). Met Life was rated as having [ ] strengths for
subfactor one, [
] strengths for subfactor two, and [ ] strengths for
subfactor three. Neither offeror was found to have any weakness or
deficiencies.

5

The PAG evaluated each offeror’s performance on its three largest prior
contracts, assigning a relevance and performance rating for each and then an
overall confidence rating. UCCI received the following ratings:
Contract

Relevancy

Performance

TRICARE Dental
Program

Relevant

Exceptional

Federal Employee
Dental and Vision

Somewhat
Relevant

Very Good

Active Duty Dental
Program

Somewhat
Relevant

Very Good

Contract

Relevancy

Performance

Federal Employee
Dental and Vision

Relevant

Exceptional

International
Business Machines

Relevant

Very Good

General Electric Co.

Somewhat
Relevant

Exceptional

AR 6792.
Met Life was rated:

AR 6830. Both offerors received a “High Confidence” overall rating. “High
Confidence” was defined as “virtually no doubt exists that the offeror will
successfully perform the required effort.” AR 587.
The Price Team calculated the total evaluated price in the Price/Cost
Report Outline. It calculated UCCI’s price to be $3,225,335,443 and Met
Life’s price to be $3,091,651,022. Met Life’s proposal was 4.3 percent lower
than UCCI’s, a difference of $133,684,421. The Price Team found both
offerors’ prices reasonable.
The SSEB chairman reviewed the TET’s reports and produced a report
comparing the technical subfactors for each offeror. He produced charts
6

comparing each offeror’s strengths for each subfactor. In addition, under
subfactor one, he compared [
] standards, noting their importance in
affecting beneficiary satisfaction. This was particularly important because
“beneficiary satisfaction is one of the overarching objectives of this
procurement as defined in [the RFP].” AR 642. He ultimately found Met Life
to have the slight edge under this subfactor “based on the overall value to the
Government [
] AR 643.
Under subfactor two, the SSEB chairman found that both UCCI and
Met Life proposed to exceed customer service standards relating to “[
]” and that both proposed
additional standards “not dictated in the RFP.” AR 645. He explained that
these were of value but not more valuable than strengths “directly associated
with [
].” Id. He concluded under subfactor two that UCCI and Met Life
were above and beyond all the other offerors by “proposing enhancements that
relate directly to the RFP Statement of Objectives . . . .” AR 646. He ranked
UCCI slightly ahead of Met Life under this subfactor because of UCCI’s
proposed “[
]” relating to two RFP Statements of Objectives. Id.
For subfactor three, all offerors were found to meet and exceed
requirements. The chairman found UCCI and Met Life, as well as two other
offerors, to be “essentially equal” for subfactor three. AR 647. He could not
find any further basis upon which toto distinguish between the proposals under
this subfactor.
The SSEB report also considered proposal risk. The chairman
concluded that UCCI merited a rating of “low risk” for subfactor one due to
its network development and maintenance and based upon UCCI’s proposed
[
]. [
] AR 602. Met Life was also awarded a rating of “low risk”
by the chairman for subfactor one due to Met Life’s provider network of [
] dentists “in over [
] access points” and because of its approach to
network expansion and maintenance. AR 610. The Chairman also noted Met
Life’s record of successfully providing dental benefits to over [
] group
dental customers and customer service to over [
] beneficiaries.

7

Both offerors were similarly awarded low risk ratings for subfactor two.
For each, the chairman based this rating upon their successful performance of
similar efforts currently or in the past, and he noted UCCI’s proposed [
]. For Met
Life, the chairman found that customer service functions performed for its
commercial business were similar to those required by the TDP and that Met
Life would “need to make minimal modifications to its current customer
services for the TDP solicitation, which will not affect overall risk.” AR 614.
UCCI was awarded a low risk rating for subfactor three based on [

]. Based on the structures and processes currently
used in its commercial business, the chairman found Met Life to warrant a low
risk rating as well.
The chairman concluded that Met Life and UCCI were the two
strongest technical proposals. With equal risk ratings and Met Life being
stronger on subfactor one, UCCI stronger on subfactor two, and both being
equal on subfactor three, he concluded that the proposals were “essentially
equal” for technical approach. AR 647.
The SSEB chairman also evaluated past performance. He compared the
PAG’s ratings for each of the offeror’s three largest contracts. With respect
to UCCI, he noted that the two “somewhat relevant” contracts were both
federal but did not reach the 800,000 processed claims level required for a
rating of “relevant.” He also found UCCI’s rating for the Active Duty Dental
Program to be less important in the overall rating because [
] AR 635. He concluded
that “UCCI demonstrates positive past performance history with scope and the
type of lives covered, including the DOD TDP program.” Id. As to Met Life,
the chairman concluded: “[Met Life] has a successful past performance history
with a very large Government contract (Federal Employees Dental and Vision
Insurance Program . . .) and with other private entities of the comparable scope
and magnitude of the TDP requirements.” AR 636. He also noted that the one
contract rated as “somewhat relevant” consisted of 773,000 processed claims
and was thus very close to the threshold for a “relevant” rating. He therefore
found it to have “minimal effect in the determination of the overall confidence
rating.” Id. He concluded, in his recommendation, that both UCCI and Met
Life were “essentially equal” and that there was “no doubt of their ability to
8

perform.” AR 648. The report concludes that, given the high quality of past
performance, this factor played a “small role in differentiating the offerors for
this solicitation.” Id.
The report then offers a summary comparison of all offerors in a matrix
format, including technical merit and risk rating for each technical subfactor,
past performance rating, and total evaluated price. Finding UCCI and Met
Life to be the two highest and equally ranked offerors under technical
approach, both having “High Confidence” ratings for past performance, the
SSEB chairman recommended award to Met Life as the best value to the
government in view of its lower price.
The SSAC reviewed the SSEB’s reports for accuracy, consistency, and
supportability. The SSAC concluded that the source selection process was
followed and that the SSEB chairman had evaluated the offers consistently.
With the reports of the SSEB teams, the SSEB Chair, and the SSAC in
hand, the SSA performed his own summary comparison, noting the SSEB’s
rankings and assignment of relative value to the government of the strengths
awarded by the TET. The SSA assigned one additional strength to UCCI
under subfactor two.5 He then selected Met Life for award, finding that there
were no “discernible differences in overall value to the Government” between
UCCI and Met Life. AR 728. The SSA found that neither proposal offered
any strength that was not balanced out by the other’s proposal “either directly
or through a different technical approach.” Id. The SSA also noted that both
offerors were given “High Confidence” ratings for past performance. No trade
off was performed because the SSA found UCCI and Met Life to be, in all
material respects, equal with respect to non-price factors:
Even though factors 1 and 2, when combined, are significantly
more important than price, UCCI and [Met Life] are essentially
equal in technical and matched in Past Performance ratings.
No trade off analysis was required because UCCI provided no
additional value for either factor. . . . [Met Life] offers a

5

The SSA assigned UCCI a strength for proposing [
]. This did not affect the
final rankings because UCCI was already ranked slightly ahead of Met Life for
subfactor two by the SSEB.
9

significant price advantage over all of the other offerors. . . .
No offeror’s technical approach and past performance rating
provided any additional values to overcome the price
difference.
AR 728-29.
The award was made to Met Life on January 7, 2011. TMA debriefed
UCCI on January 12, 2011, detailing the evaluation process, UCCI’s results,
and TMA’s rationale for its decision. UCCI then protested the award at GAO.
GAO denied the protest on April 27, 2011. United Concordia Comps., Inc.,
B-404740, 2011 CPD ¶ 97 (Apr. 27, 2011). UCCI filed its protest here on May
3, 2011. We granted Met Life’s motion to intervene on May 4, 2011.
DISCUSSION
We have jurisdiction under the Tucker Act to hear protests “in
connection with a procurement or proposed procurement.” 28 U.S.C.
§ 1491(b)(1). In a bid protest, the court “may award any relief that the court
considers proper, including declaratory and injunctive relief except that any
monetary relief shall be limited to bid preparation and proposal costs.” 28
U.S.C. § 1491(b)(2). The Tucker Act also mandates that our standard of
review is the same as that found in the Administrative Procedures Act. Id.
§ 1491(b)(4) (“In any action under this subsection, the courts shall review the
agency’s decision pursuant to the standards set forth in section 706 of title 5.”).
Thus, we may hold unlawful and set aside only agency action found to be
“arbitrary, capricious, an abuse of discretion, or otherwise not in accordance
with law.” 5 U.S.C. § 706(2)(A) (2006). The arbitrary and capricious
standard is highly deferential. Advanced Data Concepts, Inc. v. United States,
216 F.3d 1054, 1058 (Fed. Cir. 2000). It means that we will not overturn an
agency decision that has a rational basis. See, e.g., Motor Vehicle Mfrs. Ass’n
of the U.S., Inc. v. State Farm Mut. Ins. Co., 463 U.S. 29, 43 (1983). We may
not substitute our judgment for that of the agency. Advanced Data Concepts,
Inc., 216 F.3d at 1058.
Plaintiff makes two arguments in its protest. The first is that TMA did
not do a proper comparative assessment as required by FAR subparts 15.308
and 15.305. The second is that Met Life erred by not submitting past
performance data for one of its subcontractors and that it was irrational for
TMA to not have required them to. We turn first to the required comparative
10

assessment.
I. Comparative Assessment
Plaintiff argues that TMA failed to assess the relative technical merit,
relative risk, and relative past performance of the bidders. Plaintiff believes
that, had a proper comparative assessment been done, “material
discriminators” between UCCI and Met Life could not have been ignored.
The result, according to UCCI, would be that UCCI would be rated higher,
relative to Met Life, in the technical and past performance factors. UCCI also
challenges as immaterial those things upon which TMA did rely when it
discriminated between offerors. The thrust of plaintiff’s complaints is that it
believes its proposal to be better compared to that of intervenor. We need not
go into great detail as to plaintiff’s specific allegations as to why its proposal
is superior to Met Life’s. Each must fail for the same reason–they amount to
mere disagreements with the agency’s exercise of its own reasonable
judgment.
A. Technical Merit
Under subfactor one, Network Development and Maintenance, plaintiff
disagrees with TMA’s assessment that [ ] of Met Life’s strengths offered a
slightly better value to the government. Those were its strengths in [
] and [
] AR 643. Plaintiff argues that its proposal was equal to or superior in each
of those areas.
Under subfactor three, Management Approaches, UCCI argues that the
agency did not perform a comparative assessment of proposed [
],
including [
], because, if it had, UCCI and Met Life could not have been found to be
equal. Plaintiff also challenges the comparisons between the offerors’ [
]. UCCI believes it was owed more credit because its proposed
[
].6 UCCI also touts, here and in its proposal, its
proposed [

6

UCCI cites an average of [

] in its [
11

].

]. Plaintiff contrasts its [
Life’s promises [

] with Met

]. Plaintiff urges that
this shows a lack of understanding by intervenor at the time it submitted its
bid, making irrational TMA’s assessment of Met Life’s [
] plan as
“reasonable.”
Defendant and intervenor disagree with plaintiff on all points, and
makes a larger argument that plaintiff’s allegations consist wholly of
disagreements with the assessments of relative merit and not with how the
assessments were conducted. Thus, plaintiff’s real thrust is an invitation for
the court to disagree with TMA and substitute its judgment for that of the
agency’s. We agree.
Plaintiff’s disagreements with TMA’s assessments of merit under
subfactors one and three are not a basis upon which to sustain a protest. It is
clear that both the SSEB chairman and the SSA performed comparative
assessments in making the recommendation and ultimate award to intervenor.
FAR subpart 15.308 requires that the SSA’s decision “be based on a
comparative assessment of proposals against all source selection criteria in the
solicitation.” 48 C.F.R. § 15.308 (2010). It allows the SSA to use reports and
analysis “prepared by others.” Id. The decision must be documented,
including “the rationale for any business judgments and the tradeoffs made or
relied on by the SSA.” Id. FAR subpart 15.305(a) directs the agency to
“evaluate competitive proposals and then assess their relative qualities solely
on the factors and subfactors specified in the solicitation.” Id. § 15.305(a). It
allows the evaluation to be made using “any rating method or combination of
methods, including color or adjectival ratings, numerical weights, and ordinal
rankings.” Id. “The relative strengths, deficiencies, significant weaknesses,
and risks supporting proposal evaluation shall be documented in the contract
file.” Id.
Both the SSEB chairman and the SSA relied heavily upon the work
performed by the TET, PAG, and Price Team, including the color/adjectival
ratings and assessments of strengths for various areas of the proposals. Both
the SSEB chairman and SSA reproduced those ratings in their reports and
relied upon them in making their recommendation and award. The teams
evaluated each offeror separately and were instructed not to compare one
offeror with another.

12

The SSEB chairman, relying on the work of the teams, then undertook
his own comprehensive comparative assessment. He looked at each of the
strengths assessed by the teams and then weighed them against the RFP’s
overall objectives in order to determine which proposal offered the best value
to the agency, a task not done by the TET. He compared as between offerors
the strengths found to provide more value to the government and ranked the
offerors for each of the technical subfactors. This satisfies the FAR’s
requirements that the agency “assess [the proposals’] relative qualities on the
factors and subfactors specified in the solicitation.” Id. The SSA relied on the
SSEB chairman’s report and the team reports, weighed the rankings, found
UCCI and Met Life to be equal in non-price factors, and then selected Met
Life for award based upon the substantial savings it offered the government.
This is not irrational nor does it violate the FAR. The SSA’s decision was
based “on a comparative assessment of proposals against all source selection
criteria in the solicitation.” Id. § 15.308.
This case is not similar to Femme Comp. Inc. v. United States, 83 Fed.
Cl. 704 (2008), which plaintiff frequently quotes and cites for the proposition
that the SSA cannot rely only upon adjectival ratings and must provide
substantive reasons for a ranking of offerors, including finding them equal.
See 83 Fed. Cl. at 767-78. In Femme, the court found the SSA’s tradeoff
determination to be insufficient because her comparison of offerors was
wholly conclusory, often nothing more than noting their adjectival ratings, and
she provided no rationale for her finding that several offerors were equal in
non-price factors. Id. The court also found that the SSA “inflate[d] the
technical portions of the low-price offerors’ proposals and downplay[ed] the
technical superiority of the higher-priced offerors' proposals.” Id. at 768-69.
No similar situation occurred here.
In this case, the SSA agreed with and relied upon the SSEB chairman’s
ranking of strengths based on value to the agency as determined by each
particular offeror’s assessed strengths’ impact on the overall objectives
identified by the RFP. That the SSA found UCCI and Met Life to be equal in
non-price factors, which coincides with their identical adjectival ratings for
technical merit, proposal risk, and past performance, is not evidence of a lack
of comparative assessment. Here, unlike in Femme, these equal ratings are the

13

result of a comparison of strengths weighted as to value offered to the agency.7
This meets the requirements of FAR subparts 15.305 and 15.308 and is not
arbitrary, capricious, or contrary to law.
UCCI’s allegations amount only to disagreements with TMA’s
evaluation of its and Met Life’s proposals. For example, under subfactor one,
plaintiff believes that its offer of [
] was superior to Met Life’s offer of a [
]. That merely reflects a disagreement with the evaluators
and does not show arbitrariness on the part of the agency. Under subfactor
three, plaintiff touts its [
] as superior to Met Life’s, citing the [
] and Met Life’s failure to disclose that
it proposed to use foreign call centers and [
]. UCCI’s selfassessment of the superiority of its own [
] is irrelevant. Both offerors
proposed fully developed [
]. The agency [
] found them both satisfactory. The RFP did not call for
extra credit to be given for TDP contract experience. Thus it was not irrational
for the agency to rank both plans equally. The fact that Met Life did not
disclose that some of its contract functions would be performed abroad does
not matter because the RFP neither forbade it nor required disclosure in the
technical section of proposals.
We defer to the agency’s evaluation of proposals so long as the agency
is not irrational in its conclusions and followed the requirements of the RFP
and the FAR in making them. See Advanced Data Concepts, 216 F.3d at1058
(“This standard requires a reviewing court to sustain an agency action evincing
rational reasoning and consideration of relevant factors.”); Beta Analytics Int’l,
Inc. v. United States, 67 Fed. Cl. 384, 395 (2005) (citing, e.g., E.W. Bliss Co.
v. United States, 77 F.3d 445, 449 (Fed. Cir. 1996)). TMA followed the
guidelines of the FAR and the RFP and was within its discretion to find the
offerors equal in technical merit.
B. Proposal Risk
As to the RFP’s requirement for an assessment of proposal risk,

7

Also unlike Femme, there is neither allegation or evidence in the
record of the SSA inflating the technical ratings of lower-priced offerors nor
deflating the merit of the higher-rated, higher-priced proposals.
14

plaintiff argues that UCCI and Met Life were evaluated separately and not
compared to one another. UCCI notes that the SSA only mentioned risk in its
table showing TET ratings and that the SSEB chairman only considered each
offeror individually. It argues that a listing of risk ratings cannot comprise a
comparative assessment, especially when two offerors are awarded the same
adjectival ratings. Plaintiff once again quotes Femme for the proposition that,
“[l]ooking beyond the adjectival ratings is necessary because proposals with
the same adjectival ratings are not necessarily of equal quality.” 83 Fed. Cl.
at 758.
Plaintiff then points to areas in the proposals on which a comparative
assessment of risk ought, in its view, to have resulted in a differentiation
between offerors resulting in UCCI receiving a higher ranking than Met Life.
It points to its offer to [
]; it points to the fact that, being an
incumbent, UCCI already held the necessary Department of Defense
Assurance and Accreditation Process (“DIACAP”) 8 certification while Met
Life did not; it states that it ought to have been given credit for its experience
already performing the TDP contract as showing “demonstrated experience in
performing tasks,” which Met Life could not have shown given that it had no
TDP experience; further, plaintiff touts its more developed [
] and
points out that intervenor would have to higher more new employees to staff
the TDP contract, evincing less risk for UCCI. Plaintiff also highlights Met
Life’s use of foreign call centers located in the [
] and [
] as evidence of higher proposal risk.
Defendant and intervenor answer that plaintiff is, in essence, seeking
credit not contemplated by the RFP for being the incumbent. They respond in
detail to each of the areas that plaintiff identifies, arguing why Met Life’s
proposal was as deserving of a low risk rating as UCCI. Intervenor argues
additionally that proposal risk does not lend itself to the sort of comparative
analysis that plaintiff seeks to impose on it because proposal risk asks a
question, the answer to which is relative only with respect to that offeror’s
proposal. A comparison of those answers would be highly subjective and not
form a proper basis upon which to decide which proposal offered a better
value to the government.

8

DIACAP is the process by which information systems are certified as
being compliant with DOD security requirements.
15

We find that TMA’s assessment of proposal risk complied with both the
FAR and the RFP. Under section M of the RFP, “Proposal risk considers the
potential for disruption of schedule, increased cost, degradation of
performance, the need for increased Government resources/oversight to
monitor and manage risk, and the likelihood of unsuccessful contract
performance.” AR 113. Proposal risk is a measure of the evaluators’
confidence in the offeror’s ability to deliver what it offers. As stated in the
SSEG, this assessment asks “what is the likelihood that the offeror can actually
deliver what it proposes.” AR 579.
Proposal risk was a part of the technical assessment of each of the
technical subfactors. In comparing the TET’s ratings and weighing the
strengths of the various proposals, both the SSEB chairman and the SSA
comparatively assessed the proposal risk as well. Both offerors were found to
have proposed low risk approaches to meeting the requirements of the TDP
program. Neither the RFP nor the FAR require an additional consideration of
which offeror’s proposal presented a lower relative “low risk” rating.
This makes sense given the question posed by the evaluation of
proposal risk: “what is the likelihood that the offeror can actually deliver what
it proposes.” Id. This evaluation is of one offeror’s risk relative to its own
proposal. The questions posed by the evaluation of proposal risk do not lend
themselves to the sort of assessment plaintiff seeks to impose. As intervenor
puts it, “[t]here is no common variable between the two offerors so any
comparison would be inexact and extremely subjective.” Intervenor’s Opp’n
and Mot. for J. on the AR 17. That being the case, plaintiff seeks to highlight
what it believes to be factors that ought to separate it from intervenor in this
regard: [
], DIACAP certification, and Met Life’s use of
foreign call centers and [
]. In essence, plaintiff seeks to inject its own
set of common variables on which the assessment that it seeks could have been
performed. TMA considered the [
] offered by plaintiff in
its rating of UCCI as low risk. The fact that Met Life did not yet have
DIACAP certification is immaterial because it was not required as part of the
technical evaluation. Likewise, the use of foreign call centers and [
]
was not prohibited nor was notice of their use required in the technical volume

16

of the proposal.9 We will not require the Agency to insert variables into its
evaluation that are not required by the FRP nor the FAR. TMA properly
considered proposal risk and did not act arbitrarily or capriciously in rating
both UCCI’s and Met Life’s proposals as low risk.
C. Past Performance
Confronted with an equal “High Confidence” rating under the past
performance factor, plaintiff argues that TMA once again failed to conduct a
comparative analysis that would distinguish past performance as between it
and intervenor. UCCI reminds us that the PAG looked at each offeror
separately and argues that both the SSEB chairman and the SSA simply
adopted the PAG’s ratings in finding UCCI and Met Life to be equal under
past performance. Plaintiff cites FAR subpart 15.305 in arguing that this sort
of reliance on the PAG’s ratings without doing more to compare the offeror’s
actual past performance efforts is insufficient. Thus, per plaintiff, “TMA’s
determination that [Met Life] and UCCI offered identical High Confidence

9

At oral argument, plaintiff’s counsel raised the fact that intervenor did
not include DD Form 2139 with its proposal. DD Form 2139 notifies the
agency of intended contract performance outside of the United States. The
RFP incorporated Defense Federal Acquisition Regulation Supplement
(“DFARS”) clause 252.255-7003, which requires that an offeror submit the
form or a “computer-generated report that contains all information required by
DD Form 2139.” DFARS 252.225-7003(2).
This allegation was not raised by plaintiff in its briefing. As this court
and the Federal Circuit have held, when a party fails to raise an issue in its
principal brief, it has not afforded the opposing party an opportunity to
respond, and has thus waived the argument. See, e.g., Novosteel SA v. United
States, 284 F.3d 1261,1274 (Fed. Cir. 2002); Ironclad/EEI v. United States, 78
Fed. Cl. 351, 358 (2007). Inclusion in the complaint is insufficient. Ironclad,
78 Fed. Cl. at 357-58.
In any event, we find no prejudice to UCCI or the agency from Met
Life’s failure to submit the form. There is no dispute that Met Life put TMA
on notice of its intent to use foreign call centers and [
] by its
inclusion of those items in its price volume. We also note that the DFARS
regulation itself contemplates notice by alternative means by use of a
“computer generated report that contains all information required.” DFARS
252.225-7003(2)
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past performance was arbitrary and capricious given the offerors’ markedly
different track records of relevant experience.” Pl.’s Mem. in Supp. of Mot.
for J. on the AR 33. Plaintiff then touts its experience on the TDP contract as
an example of its superiority.
Defendant first responds that offerors need not have identical
experience in order to receive an identical past performance rating. It then
defends the PAG’s past performance review as exhaustive and reasonable
given the standards set forth by the RFP. It also defends the SSEB chairman’s
and SSA’s reviews of past performance as independent and reasonable.
Defendant reminds us that agencies are afforded great deference in their
assessment of past performance and urges that we not accept UCCI’s
invitation to upset TMA’s past performance rating. Intervenor adds that the
past performance evaluation was reasonable because the FAR allows the
solicitation to define how past performance will be evaluated and, here, the
agency followed the RFP in assessing the scope and magnitude of past efforts
as they related to the work to be performed under this contract. Additionally,
intervenor points out that FAR does not require past performance to be
measured against other offeror’s experience but only against the RFP’s
requirements.
We agree with defendant and intervenor. We cannot say that TMA
lacked a rational basis for its conclusion that UCCI and Met Life were equal
under the Past Performance factor. The real center of plaintiff’s argument,
once again, is that the agency should have rated it higher than intervenor given
its prior experience on the TDP contract. We will not upset the agency’s rating
simply because plaintiff was the incumbent and believes its experience to be
superior. See generally PGBA, LLC v. United States, 60 Fed. Cl. 196, 208-09
(2004) (holding that the agency was not required to give “extra credit” for
incumbency in a past performance evaluation when the evaluation otherwise
followed the standards set forth in the solicitation).
The FAR, in subpart 15.305, “Past performance,” requires only that the
solicitation “describe the approach for evaluating past performance” and that
it “provide[s] offerors an opportunity to identify past or current contracts for
efforts similar to the Government requirement.” 48 C.F.R. 15.305(a)(2)(ii).
It defines the past performance evaluation as “one indicator of an offeror’s
ability to perform the contract successfully. Id. § 15.305(a)(i). In making its
assessment, the agency must consider “[t]he currency and relevance of the
information, source of the information, context of the data, and general trends
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in contractor’s performance . . . . This comparative assessment of past
performance information is separate from the responsibility determination
required under subpart 9.1.” Id. No extra advantage is assigned to
incumbency.
Plaintiff seizes upon the partial clause “comparative assessment of past
performance” from FAR subpart 15.305(a)(2)(ii) without regard for the
context in which that language appears. The term “comparative” is used in
this section in the sense that the offerors’ past performance is compared with
the requirements of the contract. This was done here. It does not mean that
TMA was required to weigh the efforts of plaintiff’s three cited past
performances against the three of intervenor in order to create additional
quantitative or qualitative differences and weigh those against each other. This
is in accord with the nature of the past performance evaluation. As stated by
intervenor, the comparative analysis sought by plaintiff would require an
“apples-to-oranges” comparison because the offeror’s past efforts arise out of
different contracts.
The RFP called for an assessment of relevancy and performance on the
past contracts, which fed into an assignment of an overall rating describing the
agency’s confidence, based on the offeror’s cited examples of prior efforts, of
the offeror’s ability to perform the contract. Both offerors received a “High
Confidence” rating. Plaintiff does not allege that TMA did not follow the
criteria set forth in the RFP for the assessment of the past performance factor.
Plaintiff’s real complaint is that it views its own past performance as superior
to that of intervenor. The problem for plaintiff is that the agency followed the
method called for in the solicitation. The RFP’s method for evaluation of
relevance was based on number of claims adjudicated. If plaintiff wished to
challenge that metric, it should have done so prior to bidding.
FAR part 15’s requirement that the SSA’s “decision . . . be based upon
a comparative assessment of proposals against all source selection criteria in
the solicitation,” 48 C.F.R. § 15.308, was satisfied here. The SSA’s
conclusion that past performance was not a basis on which to rank UCCI
higher than Met Life was not arbitrary, capricious, nor did it lack a rational
basis. The solicitation called for an evaluation of prior contracts based on
relevance and performance. The PAG, SSEB Chairman, and SSA all
independently found both offerors to be worthy of a “High Confidence” rating.
The SSA compared the relevance of the past contracts per FAR subpart
15.308, did not find a basis upon which to discriminate, and thus looked
19

elsewhere for grounds upon which to award the contract. This was not
unreasonable.
II. Past Performance Data for Claims Processing Subcontractors
Plaintiff also alleges that Met Life failed to submit past performance
data for its subcontractor, [
], and that
it was required to do so because [ ] was offered to perform claims processing
services. The RFP required that offerors submit past performance data for
“first-tier” subcontractors, the definition of which included those that
“provide[] claims processing services regardless of price.” AR 105. Plaintiff
argues that [ ] would function as a claims processor because of statements
in plaintiff’s proposal such as Met Life’s description of [ ] as a “claim intake
vendor,” AR 4897, a “strategic partner assisting with the processing of over
38 million claims per year,” AR 5070, and that it was involved in “Dental
Claim intake,” AR 5163. Met Life listed [ ] in its past performance volume
in an organizational chart under its “Claims” portion of the chart branch for
“Customer Service & Operations,” AR 4933, although in a box distinct from
“Claims Processing.” Plaintiff believes that these references establish [ ] as
a claims processing subcontractor and that the failure by intervenor to submit
past performance information for [
] made the offer non-complaint.
Therefore, “[i]t was arbitrary, capricious, an abuse of discretion, and contrary
to law for TMA to rate MLIC ‘High Confidence’ for Past Performance without
assessing [ ]’s past performance.” Pl.’s Mem. in Supp. 24.
Plaintiff argues that, although [ ] will not adjudicate claims, it will
certainly perform a major portion of the claims processing process. Plaintiff
points the court to the areas that the FRP states may be tested by the agency
during performance: “At the Government’s discretion, any or all of the aspects
of claims processing may be tested, e.g., receiving and sending electronic
transactions . . . , screening, coding, data entry . . . .” AR 236. Because these
selected services may be performed by [ ], plaintiff believes [ ] falls into
the category of a claims processing subcontractor.
Defendant and intervenor respond that [ ] was offered merely to
perform data processing and mail handling. They urge that a claims
processing subcontractor adjudicates claims, which [
] will not do.
Intervenor provides an exhaustive listing of its statements regarding the
services [
] was offered to provide and contrasts those with claims
processing. Met Life described [
] as its “enterprise subcontractor for
20

Dental intake as it pertains to mail handling, opening, imaging, key entry, and
data cleansing.” AR 5163. The record is replete with similar statements. See,
e.g., AR 5197 (“[ ] is primarily responsible for the mail opening, keying, and
scanning [of claims submitted by mail]”); AR 9420 (stating that Met Life
anticipates that over [ ] percent of claims will be submitted electronically and
that “because of the keying and scanning done by [ ], we anticipate that over
[ ]% of the claims will be auto-adjudicated.”). Similarly, Met Life touted
[ ] elsewhere in its proposal as the [
] AR 4897.
We read Met Life’s proposal in the same way the agency apparently
did, namely [
] was offered only to provide mail handling and data
processing services. In fact, the chart cited by plaintiff to show that [ ] was
a claims processor actually supports the conclusion that it is not. Plaintiff fails
to point out that, although [ ] is listed under the “Claims” subheading, that
subheading is further subdivided into “Claims Processing” and “Mailroom,
Data Entry, Imaging” sub-subheadings. [ ] appears under the latter division.
As was made clear at oral argument, and not challenged by UCCI, [ ]
is involved claims only when a dental health provider submits a claim on
paper. If the claim is sent electronically, Met Life’s internal systems and
personnel handle and adjudicate it without any involvement by [ ]. When a
claim is submitted on paper, then [ ], in effect, converts the information to
a digital format and submits it to Met Life’s internal system for processing and
adjudication. If Met Life is unable to process the claim through adjudication,
it is sent back to [ ] in order to determine whether there is additional
information in the hard copy of the claim that can be inputted to allow Met
Life to adjudicate the claim. Under no set of circumstances is [ ] handling
a claim from beginning to end. It adjudicates no claims and is involved only
in the entry of data to allow Met Life to process and adjudicate a claim using
its own system.
The past performance information required to be submitted for first-tier
subcontractors is the same information required of the offerors themselves.
The subcontractors must submit for consideration their three most recent
relevant contracts. These prior efforts are then evaluated just the same as the
three contracts submitted by the offerors themselves. As with the evaluation
of the offerors, the relevance of the contracts is determined by an 800,000
claims-processed standard. E.g., AR 636-38 (SSEB chairman’s past
performance evaluation of two other offerors who submitted past performance
21

data for their first-tier subcontractors). It is plain that the relevance standard
refers to claims which are processed to completion or adjudicated. That then
begs the question of how [ ]’s past performance could have been evaluated
against this standard. It could not have been because [ ] does not perform
claims processing nor provide dental health services. Met Life thus was not
required to submit past performance data for its subcontractor [ ] because
[ ] was not a “first-tier” subcontractor and was not offered to provide claims
processing. Neither Met Life nor TMA were in violation of the RFP’s
requirements, and TMA’s assessment of past performance was reasonable.
CONCLUSION
The agency properly conducted a comparative assessment as required
by FAR part 15. The agency’s evaluation was reasonable. Plaintiff’s
complaints are disagreements with the agency’s evaluation and not a basis to
sustain a protest. We cannot say that the agency acted arbitrarily, capriciously,
or contrary to law. Lack of success on the merits established, we need not
consider the other factors relevant to injunctive relief. For these reasons, we
denied plaintiff’s motion for judgment on the administrative record and
granted defendant’s and intervenor’s cross-motions by order of June 24, 2011.
The clerk of court is directed to dismiss the complaint and to enter judgment
accordingly. No costs.

s/ Eric G. Bruggink
ERIC G. BRUGGINK
Judge

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