MED TRENDS INC. v. USA

Filing 44

PUBLISHED OPINION. Signed by Senior Judge Eric G. Bruggink. (tt1) Copy to parties.

In the United States Court of Federal Claims
No. 11-420
(Originally Filed: August 19, 2011)
(Reissued: September 13, 2011)1
**********************
MED TRENDS, INC.,
Plaintiff,
B id P rotest; Task O rder
Contract; Federal Acquisition
Streamlining Act; Jurisdiction;
Sunset of 41 U.S.C. § 4106(f);
Government Cost Estimate; Best
Value Analysis

v.
THE UNITED STATES,
Defendant,
and
MICROTECHNOLOGIES, LLC,
Intervenor.
**********************

Cyrus E. Phillips, IV, Arlington, VA, for plaintiff.
Nicholas Jabbour, United States Department of Justice, Civil
Division, Washington, D.C., with whom were Tony West, Assistant
Attorney General, Jeanne E. Davidson, Director, Brian M. Simkin, Assistant
Director for defendant. Herman J. Narcho, United States Department of
Labor, of counsel.
Katherine S. Nucci, Washington, D.C., for intervenor.
_________
OPINION
_________
BRUGGINK, Judge.

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.
1

This is a post-award protest of a solicitation for information technology
services. Plaintiff, MED Trends, LLC (“MED Trends”) challenges the award
by the Department of Labor (“DOL”) of a task order pursuant to an indefinite
quantity/indefinite delivery contract. The awardee, MicroTechnologies, LLC
(“MicroTech”), intervened in the action. Currently before the court are the
parties’ cross-motions for judgment on the Administrative Record pursuant to
Rule 52.1 of the Rules of the Court of Federal Claims (“RCFC”). Also
pending are defendant’s and intervenor’s motions to dismiss pursuant to RCFC
12(b)(1) and 12(b)(6). The motions are fully briefed, and we heard oral
argument on August 12, 2011. For the reasons explained below, we deny
defendant’s and intervenor’s motions to dismiss; we deny plaintiff’s motion
for judgment on the administrative record; and we grant defendant’s and
intervenor’s cross-motions for judgment on the Administrative Record.
FACTUAL BACKGROUND 2
MED Trends challenges a procurement made pursuant to the Veterans
Technology Services Government-Wide Acquisition Contract (“VETS
GWAC”). The VETS GWAC is a government-wide contract between the
General Services Administration (“GSA”) and a pool of pre-qualified
contractors, all of which are small businesses owned by service-disabled
veterans.3 Pursuant to the VETS GWAC, and within its guidelines, these
contractors are eligible to compete for information technology task orders from
various federal agencies.
DOL, acting through the Occupational Safety and Health
Administration (“OSHA”), issued Request for Quotations No. RFQ547327
(“RFQ”) on February 23, 2011, seeking quotations for maintenance and
operation of its Integrated Management Information System. The award
would be made on a “best value” basis with consideration given to three
factors: technical capability, past performance, and price. Administrative
Record (“AR”) 140. The three factors were not of equal importance. Rather,
technical capability was significantly more important than past performance,
which was significantly more important than price. Further, when combined,
2

The facts are drawn from the Administrative Record.

3

A detailed review of the history and nature of the VETS GWAC is set
out in Knowledge Connections, Inc. v. United States, 76 Fed. Cl. 6, 8-11
(2007).
2

the non-price factors were “significantly more important than Factor III
‘Price.’” AR 141. The RFQ further provided that “as offerors’ ratings for the
non-price factors approach equality, Factor III ‘Price’ becomes significantly
more important in the award decision.” AR 141. The agency warned that “the
Government will not make an award at a significantly higher overall price to
achieve slightly superior technical features.” AR 141.
Task orders placed under the VETS GWAC are based on a firm fixedprice pursuant to Subpart 16.2 of the Federal Acquisition Regulation (“FAR”).
An offeror’s bid, based on its estimate of cost and risk, is fixed and not subject
to adjustment on the basis of the actual cost incurred while performing the
contract. Here, the RFQ stated that the Contracting Officer would evaluate
offerors’ proposed prices pursuant to FAR 15.404-1(b)(2)4 . The price analysis
could rely on a number of metrics when evaluating the reasonableness and
realism of an offeror’s price, including comparing it to an independent
government cost estimate (“IGCE”). Here, the task order contemplated a oneyear base period with four successive one-year options. The estimated total
cost of the contract was [
]. The estimate was based on a calculation
“using historical data from previous similar contracts.” AR 596. It included
and was based in part on a prediction of the number of full-time equivalent
workers for particular labor categories for each year of the contract.
Three offerors, MED Trends, [
], and MicroTech submitted bids
by the April 1, 2011 deadline. The technical proposals were evaluated by three
DOL representatives who prepared an Evaluation Consensus Form for each of
the technical proposals.
The RFQ provided for and defined adjectival ratings for the two nonprice factors. “Factor I, Technical Capability,” was broken into four subfactors: “Understanding of the Requirement,” “Key Personnel Experience,”
“Corporate Experience,” and “Start-Up Plan Phase-Out Plan.” The possible
ratings for each sub-factor were “Excellent,” “Good,” “Marginal,” and
“Unsatisfactory.” 5

4

The FAR is contained in title 48 of the Code of Federal Regulations,
all citations to “FAR” refer to 48 C.F.R.
5

The solicitation defined the ratings as:
3

MED Trends, [
for the Factor I:

], and MicroTech received the following ratings

MED Trends
Understanding of the
Requirement

[

]

Good

Marginal

MicroTech
Excellent

Excellent

A proposal that satisfies all of the Government’s
requirements with extensive detail to indicate feasibility
of the approach and shows a thorough understanding of
the problems and offers numerous significant strengths,
which are not offset by weaknesses, with an overall low
degree of risk in meeting the requirements.

Good

A proposal that satisfies all of the Government’s
requirements with adequate detail to indicate feasability
of the approach and shows an understanding of the
problems and offers some significant strengths or
numerous minor strengths, which are not offset by
weaknesses, with an overall low to moderate degree of
risk in meeting the requirements.

Marginal

A proposal that satisfies all of the Government’s
requirements with minimum detail to indicate feasibility
of approach and shows a minimal understanding of the
problem with an overall high degree of risk in meeting
the Government’s requirement.

Unsatisfactory

A proposal that contains a major error(s), omission(s),
or deficiency(ies) that indicates a lack of understanding
or the problems or an approach that cannot be expected
to meet requirements or involves a very high risk and
none of these conditions can be corrected without a
major rewrite or revision of the proposal.

AR 95. The adjectival ratings for past performance were “Low Risk,”
“Moderate Risk,” “High Risk,” and “Unknown Risk.” AR 142.
4

Key Personnel

Good

Good

Good

Corporate Experience

Marginal

Marginal

Excellent

Start-up/Phase-out
Plans

Excellent

Marginal

Excellent

AR 600.
The RFQ provided that, “[t]o receive consideration for award, a rating
of no less than ‘Good’ must be achieved for Factor I, and its associated subfactors . . . .” AR 141. Despite the fact that MED Trends received a
“Marginal” rating for “Corporate Experience,” the subsequent de-briefing
letter to MED Trends reflected an “Overall Technical Rating–Good.” AR
635.
For the past performance factor, MicroTech received a “Low Risk”
rating, and MED Trends received a “Moderate Risk” rating. AR 588, 591.
Plaintiff does not challenge its past performance rating.
MED Trends’ total offered price was $16,868,386.30, which was [
] than the IGCE. [
] total price was [
], which was [
] than the IGCE. MicroTech’s total price was $39,886,717.88, which was [
] than the IGCE. The agency conducted a price analysis of the three
competing bids.6 It found MicroTech’s price to be in line with “the level and
scope of work required.” AR 596. Based on the disparity between the IGCE
and MED Trends’ and [
] total prices, however, the price analysis
concluded that “it is possible that both vendors underestimated the depth of
work required,” and that accepting “[
] or MED Trends’ price proposal
would expose the Government to a high level of risk.” AR 596.
On June 8, 2011, the agency issued a two-page Award Decision
Memorandum. The memorandum reviewed the results of the technical, past
performance, and price evaluations for all three offerors and concluded that,
“[b]ased on the above, the Contracting Officer has determined that it is in the
best interest of the Government” to make the award to MicroTech. AR 601.
Accordingly, on June 10, 2011, DOL entered into the task order
contract with MicroTech. On the same day, DOL notified MED Trends by
6

The analysis was conducted by the Contracting Officer and a Contract
Specialist.
5

letter that it had not been awarded the contract because its proposal did not
“represent the best value to the government.” AR 632. The agency also
provided a post-award debriefing report to MED Trends. In the report, DOL
noted that the price proposal was “assessed for reasonableness, realism, and
affordability.” AR 634. The report compared MicroTech’s and MED Trends’
respective ratings and price proposals. For weaknesses under the
“Understanding of the Requirement” sub-factor, the report stated “[h]elp desk
[level of effort] appeared to be underestimated and training should be more
robust to reach up to 16,000 users.” AR 635. For the Key Personnel subfactor, the report stated that “[s]ome of the key personnel had 1 year or less at
OIS, but were not key on the OIS project.” AR 635. For the “Corporate
Experience” sub-factor, the report stated “[s]hort 1 page summary of corporate
experience dominated by check box matrices that were not very informative.”
AR 636. For the past performance factor, the report stated that MED Trends
was a moderate risk; and finally, for the price factor, the report stated that
MED Trends’ “price proposal underestimated the depth of work required.
Accepting [MED Trends’] price proposal . . . would expose the Government
to a high level of risk.” AR 636.
On June 24, 2011, MED Trends filed its complaint with this court
protesting the award to MicroTech.
DISCUSSION
Currently before the court are defendant’s and intervenor’s motions to
dismiss as well as the parties’ cross-motion for judgment on the Administrative
Record. When considering the motions to dismiss, we examine the pleadings
and supporting documents to determine whether, as a matter of law,
jurisdiction is lacking or the claimant has failed to state a claim upon which
relief can be granted. Assuming we find jurisdiction and proceed to consider
the merits of the protest, we treat plaintiff’s motions for judgment on the
Administrative Record as the equivalent of an expedited trial on a “paper
record, allowing fact-finding by the trial court.” Bannum v. United States, 404
F.3d 1346, 1356 (Fed. Cir. 2005). Questions of fact are resolved by reference
to the administrative record. Id.
Our standard of review is the same as that found in the Administrative
Procedures Act. 28 U.S.C. § 1491(b)(4) (2006) (“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 any agency action found to be “arbitrary, capricious, an abuse of
6

discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A)
(2006). Should plaintiff prevail, we “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) (2006).
I.

Jurisdiction
A. Defendant’s Motion to Dismiss Based on 41 U.S.C. § 4106(f)

There is no question that, had this protest been brought one month
earlier, the court would not have been able to exercise jurisdiction. Under the
Federal Acquisition Streamlining Act of 1994 (“FASA”), as amended,
protests of FASA task orders (other than those challenging an increase in
scope) could be brought only before the Government Accountability Office
(“GAO”), and then only if the amount in controversy exceeded $10,000,000.
41 U.S.C. § 4106(f) (West Supp. 2011). Section 4106(f) contains the
following sunset provision, however: “This subsection shall be in effect for
three years, beginning on the date that is 120 days after the date of the
enactment of the National Defense Authorization Act for Fiscal Year 2008.”
Plaintiff contends that, because the time prescribed in subsection (f) expired
on May 27, 2011, the jurisdictional bar to court review of such protests has
been eliminated. In the absence of subsection (f), there is nothing that
prevents this court from exercising its general bid protest jurisdiction under 28
U.S.C. § 1491(b)(1).
The government disagrees. It concedes that a literal reading of the
sunset provision means that all of section 4106(f) is vacated. It points to
legislative history that it believes conclusively demonstrates that Congress
intended the repeal to apply only to that portion of section 4106(f) that granted
jurisdiction to the GAO over any protest of a FASA task order award greater
than $10,000,000.
The jurisdictional bar at issue first arose as part of FASA, a
“comprehensive overhaul of the federal acquisition laws,” S. Rep. No. 103258, at 3 (1994), intended to “simplify and streamline” the often burdensome
requirements for competitive acquisitions. Digital Tech, Inc. v. United States,
89 Fed. Cl. 711, 719 (2009); see Navarro Research & Eng., Inc. v. United
States, 94 Fed. Cl. 224, 227-28 (2010). As part of this simplification, FASA
encouraged federal agencies to use “multiple task order contracts, in lieu of
single task order contracts” when possible. Digital Tech, 89 Fed. Cl. at 719.
7

Multiple task order contracts allow an agency to use an initial competitive
process to select a contractor or pool of eligible contractors, secure contract
terms, and make subsequent orders within that smaller group of contractors.
As originally written, FASA generally barred any protest concerning the
issuance or proposed issuance of a task order. The only exception to this rule
was “on the ground that the order increased the scope, period, or maximum
value of the contract under which the order is issued.” 41 U.S.C. § 253j(d)
(2006) (re-codified at 41 U.S.C. § 4106(f) by Pub. L. No. 111-350, 124 Stat.
3677 (2011)). In 2008, under the National Defense Authorization Act
(“NDAA”), Congress added another limited exception to FASA’s general bid
protest preclusion: task orders valued over $10 million could be protested at
GAO. National Defense Authorization Act of 2008, Pub. L. No. 110-181, §
843, 122 Stat. 3, 236-37 (2008). Also at that time, a three-year sunset clause
was inserted. Id. The current version of the jurisdictional statute reads as
follows:
(f) Protests.—
(1) Protest not authorized.—A protest is not authorized in
connection with the issuance or proposed issuance of a task or
delivery order except for—
(A) a protest on the ground that the order increases the
scope, period, or maximum value of the contract under
which the order is issued; or
(B) a protest of an order valued in excess of $10,000,000.
(2) Jurisdiction over protests.—Notwithstanding section 3556 of
title 31, the Comptroller General shall have exclusive
jurisdiction of a protest authorized under paragraph (1)(B).
(3) Effective period.—This subsection shall be in effect for
three years, beginning on the date that is 120 days after January
28, 2008.
41 U.S.C. § 4106(f) (West Supp. 2011).
The question posed by the motion to dismiss is whether section
4106(f)(3) applies to the whole of subsection (f) or only to paragraph (f)(1)(B).
8

The government argues that, notwithstanding the clear language of the statute,
the legislative history associated with the 2008 amendment makes clear that
the grant of jurisdiction to GAO in 2008 was a short-term experiment. The
sunset provision, it contends, was intended to affect only that experiment and
not the whole of section 4106.
The government points to two sources to support its interpretation of
the legislative history: the conference report regarding the NDAA and draft
legislation that is pending before Congress. With respect to the conference
report, the government relies on the statement: “The provision would raise the
threshold for bid protests to $10.0 million and sunset the authorization for bid
protests after three years. The conferees expect that the sunset date will
provide Congress with an opportunity to review the implementation of the
provision and make any necessary adjustments.” H.R. Rep. No. 110-477, at
956 (2007) (Conf. Rep.). With respect to the pending legislation, the
government relies on Senate Bill 498 and House Bill 899, both of which make
clear that the sunset date, which would be extended, applies only to the
specific grant of jurisdiction to GAO: “Paragraph (3) of section 4106(f) of
title 41, United States Code, is amended to read as follows: ‘(3) EFFECTIVE
PERIOD.—Paragraph (1)(B) and paragraph (2) of this subsection shall not be
in effect after September 30, 2016.’” H.R. 899, 112th Cong. § 1 (2011); see
also S. 498 112th Cong. § 2 (2011). The language in the committee report
accompanying Senate Bill 498 explains that the purpose of the original sunset
provision was to “allow Congress the opportunity to assess the impact of the
[high-value] protests on [the] Federal procurement system before deciding
whether to extend, or let expire, the authority.” S. Rep. No. 112-16, at 3
(2011).
The proposed legislation demonstrates two things. First, the perceived
need for it suggests that Congress understands that the existing sunset
provision does not accomplish the same result. Second, the proposals
demonstrate that Congress can legislate with precision when it chooses to do
so. Both observations reinforce our reluctance to follow the government’s
invitation to tell Congress what we think it really intended in 2008.
The legislature “says in a statute what it means and means in a statute
what it says there.” BedRoc Ltd., LLC v. United States, 541 U.S. 176, 183
(2004) (quoting Conn. Nat. Bank v. Germain, 503 U.S. 249, 253-54 (1992)).
For that reason, “our inquiry begins with the statutory text, and ends there as
well if the text is unambiguous.” Id.; see also United States v. Gonzales, 520
U.S. 1, 9 (1997) (“[T]he straightforward language of [the statute] leaves no
9

room to speculate about congressional intent.”). In this case, the term
“subsection” used in section 4106 has a commonly understood and
unambiguous meaning: a division of a section. 17 Oxford English Dictionary
56 (2d ed. 1989). Therefore, when section 4106(f)(3) refers to “this
subsection,” it can mean only one thing: the division of section 4106 labeled
as (f).
While the government suggests that the meaning of even
straightforward statutes can be subject to modification upon resort to
legislative history, we read that practice as available only when a straightforward reading leads to an absurd result. See, e.g., Crooks v. Harrelson, 282
U.S. 55, 59-60 (1930). Here, a default to the court’s general jurisdiction over
bid protests under 28 U.S.C. § 1491(b)(1) would not be an absurd result.
B. Intervenor’s Motion to Dismiss Based on Lack of Standing
Intervenor correctly points out that standing is a jurisdictional
requirement. See Myers Investigative & Sec. Servs., Inc. v. United States, 275
F.3d 1366, 1369 (Fed. Cir. 2002). Standing for a bid protestor, in turn,
depends on an ability to demonstrate prejudice from the asserted violation.
See, e.g., Digitalis Educ. Solutions v. United States, 97 Fed. Cl. 89, 93-94
(2011). Typically, this requires that the bidder was in a position to receive the
award but for the error. See id. Here, intervenor argues that plaintiff could not
have been awarded the task order because it received a “Marginal” rating on
technical sub-factor 3, “Corporate Experience,” and, according to the
intervenor, the RFQ required at least a “Good” rating on all sub-factors to be
eligible for award. The RFQ stated: “To receive consideration for award, a
rating of no less than ‘Good’ must be achieved for Factor I, and its associated
sub-factors.” AR 94. One plausible reading of this language is that any rating
lower than “Good” on any sub-factor would be fatal to a proposal. We decline
to apply it in that fashion, however, because the agency itself did not do so.
It evaluated both MED Trends and [
] as if they remained eligible for
award, despite the fact that both had “Marginal” ratings on one or more subfactors. Both were included in the agency’s best-value analysis. Therefore,
even assuming, arguendo, that the agency could have restricted competition
to those offerors without “Marginal” ratings on sub-factors, by not doing so,
it waived the right to interpret the provision differently.

10

II.

Merits

At oral argument, plaintiff announced that it was limiting the grounds
for protest to two assertions: that the agency’s price analysis and best-value
tradeoff analysis were both arbitrary and capricious. It becomes apparent that
the assertions present a common issue, namely, whether the agency’s reliance
on its IGCE was flawed.
A. The Price Analysis Did Not Violate the FAR and Was Not Arbitrary
or Capricious
Plaintiff argues that the price analysis was “wholly implausible” and
violated the FAR. See Pl’s. Br. 36.7 Specifically, plaintiff argues that the
IGCE was a flawed basis of comparison because FAR 15.404-1(b)(2)(ii)
dictates that any price comparison based on previous contracts be adjusted for
material differences between the terms of the acquisitions. The plaintiff
argues that the IGCE was inherently flawed because it was based on historical
contract pricing data different than that which would be relevant to the RFQ.
It points to nothing in the Administrative Record to support that assertion,
however.
FAR 15.404-1(b)(2) provides that the “Government may use various
price analysis techniques and procedures to ensure a fair and reasonable price.
Examples of such techniques include, but are not limited to, the following . .
. .” The FAR then proceeds to list seven examples of appropriate price
comparison models, which are not exhaustive. See FAR 15.404-1(b)(2)(i)(vii). Example two provides for a “comparison of the proposed prices to
historical prices paid . . . .” Example two also has two sub-paragraphs, which
as plaintiff notes, require adjustments of the prior price for material differences
between the contracts. See FAR 15.404-1(b)(2)(ii)(A) & (B). It is example
two only, however, to which these sub-paragraphs apply. Example five is
“Comparison of proposed prices with independent Government cost
estimates.” FAR 15.404-1(b)(2)(v). There are no additional requirements
provided under example five. Under the FAR, therefore, the government is
allowed to use a government-prepared cost estimate.

7

Unless otherwise indicated, references to “Pl’s. Br.” refers to
Plaintiff’s Brief in Support of Motion for Judgment on the Administrative
Record.
11

The IGCE was broken down into cost areas, labor categories, labor
rates, and full-time equivalency hours. DOL prepared the IGCE “using
historical data from previous similar contracts.” AR 596. The plaintiff has not
demonstrated, or even alleged, that any of these particular figures were
unreasonable or inaccurate. Nor has it pointed to any authority for the
proposition that the agency must provide a more detailed explanation of how
its IGCE was formulated. We have held that agencies are “given broad
latitude in establishing methods to evaluate price proposals.” Biospherics, Inc.
v. United States, 48 Fed. Cl. 1, 11 (2000). The FAR expressly provides that
an IGCE is an appropriate pricing method, and there is nothing in the record
to indicate that the IGCE used here was unreasonable. The agency could
therefore use it as a basis for evaluating proposals.
B. The Best-Value Tradeoff Did Not Violate the FAR and Was Not
Arbitrary or Capricious
Plaintiff also attacks the best-value tradeoff analysis as “wholly
implausible” and in violation of the FAR 16.505(b)(1)(5)(i). Pl’s. Br. 41. It
contends that the agency failed to articulate any “tradeoffs between non-price
factors . . . and Price . . . .” Pl’s. Br. 41. In other words, plaintiff contends that
the best-value tradeoff was based solely on price quotations and the IGCE.
Plaintiff also argues that the best-value tradeoff is erroneous because the
Contracting Officer did not “analyze, as was promised in the published
Answer to Question Number 88, the quality of the VETS GWAC Contractors’
estimates of the Level of Effort which will be required to now deploy the
redesigned OSHA OI and to operate and maintain OSHA OIS . . . .” Pl’s. Br.
41. Both of these arguments fail.
The FAR provides that:
The contracting officer shall document in the contract file the
rationale for placement and price of each order, including the
basis for award and the rationale for any tradeoffs among cost
or price and non-cost considerations in making the award
decision. This documentation need not quantify the tradeoffs
that led to the decision.”
FAR 16.505(b)(5)(i) (emphasis added). In the Award Decision Memorandum,
the Contracting Officer listed the technical ratings for all three offerors. Of the
four sub-factors to “Technical Approach,” MicroTech received three
“Excellent” ratings and one “Good” rating. Whereas, MED Trends received
two “Good” ratings, a “Marginal” rating, and only one “Excellent” rating. As
the RFQ noted, “[t]he Government is more concerned with obtaining superior
12

technical features than with making an award at the lowest overall price to the
government.” AR 141. Moreover, the Contracting Officer noted that
MicroTech was rated higher for the second factor, past performance. As the
RFQ provided, “non-Price factors [i.e., technical approach and past
performance] combined are significantly more important than [price].” AR
140.
After setting forth the ratings for technical approach, past performance,
and price, the Contracting Officer concluded that MicroTech offered the best
value to the government. While the decision could have benefitted from more
detail, we are entitled to infer that the Contracting Officer was fully aware of
the significant differences in technical and past performance ratings, and that,
in light of the RFQ’s weighting of those factors, she concluded that award to
MicroTech was warranted. Banknote Corp. of Am., Inc. v. United States, 365
F.3d 1345, 1355-56 (Fed. Cir. 2004) (“It is well-established that contracting
officers have a great deal of discretion in making contract award decisions,
particularly when, as here, the contract is to be awarded to the bidder or
bidders that will provide the agency with the best value.”). In other words,
based on its superior ratings, and despite the significant difference in price,
there was a rational basis to award the contract to MicroTech.8 See CHE
Consulting, Inc. v. United States, 552 F.3d 1351, 1354 (Fed. Cir. 2008). We
believe that a remand merely to confirm that inference would be pointless.
Plaintiff’s second challenge to the best-value tradeoff is that Question
and Answer 88 in the RFQ provided that some form of special analysis would
take place.9 We find, however, that Question and Answer 88 does not promise

8

The RFQ specifically cautioned that “the Government will not make
an award at a significantly higher overall price to achieve slightly superior
technical features.” AR 141. While MicroTech’s proposal was significantly
higher in price, it was also more than “slightly superior” in terms of technical
capability.
9

Question and Answer 88 stated:
88. Does the government have high-level of effort
estimates for development work? Are strategic requirements
defined? If not, on what basis would the government like us to
estimate level of effort for development work?
Answer: Vendors are expected to estimate the level of
effort based on their experience with similar projects and
expertise in the IT field. It is up to the vendors to review the
13

that any special analysis will take place. Therefore, there is nothing in the
record to demonstrate that the Contracting Officer’s decision was arbitrary,
capricious, or otherwise not in accordance with the law.
CONCLUSION
For the reasons stated above, we deny defendant’s and intervenor’s
motions to dismiss, deny plaintiff’s motion for judgment on the Administrative
Record, and grant defendant’s and intervenor’s motions for judgment on the
Administrative Record. The Clerk is directed to enter judgment accordingly.
No costs.

s/ Eric G. Bruggink
Eric G. Bruggink
Judge

SOW and propose what they estimate the level of effort would
be for their company to performance [sic] the services.
AR 195.
14