IBM CORPORATION, U.S. FEDERAL et al v. USA

Filing 70

PUBLISHED OPINION and ORDER denying 46 plaintiff's motion for judgment on the administrative record and granting 48 defendant's and 45 defendant-intervenor HP Enterprise Services, LLC's cross-motions for judgment on the administrative record. Signed by Judge George W. Miller. (ps) Copy to parties.

In the United States Court of Federal Claims
BID PROTEST
No. 11-533 C
(Filed Under Seal: November 15, 2011)
(Reissued for Publication: December 1, 2011) *
TO BE PUBLISHED

IBM CORPORATION, U.S. FEDERAL,
Plaintiff,
v.
THE UNITED STATES,
Defendant,
and
SCIENCE APPLICATIONS
INTERNATIONAL CORPORATION,
and
CACI-ISS, INC.,
and
HP ENTERPRISE SERVICES, LLC,
Defendant-Intervenors.

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Post-award bid protest; agency properly
evaluated strengths and weaknesses of
plaintiff’s proposal; agency’s adjectival
ratings of plaintiff’s proposal were proper;
agency did not introduce a new factor not
described in solicitation in evaluating
plaintiff’s proposal for veterans
involvement; agency did not engage in
disparate treatment in evaluating
proposals; SSA’s findings of technical
superiority and technical equality were
rational and adequately documented; bestvalue analyses were unnecessary when
SSA found that lower-priced proposals
were technically superior or equal to
plaintiff’s proposal; SSA’s best-value
tradeoff analyses were thoroughly
explained, documented, and rational; FAR
15.101-1; FAR 15.308; Blue & Gold Fleet
L.P. v. United States, 492 F.3d 1308 (Fed.
Cir. 2007), waiver of challenge to terms of
solicitation; meaningful discussions; FAR
15.306.

This Opinion and Order was originally filed under seal on November 15, 2011 (docket entry
65), pursuant to the protective order entered in this action on August 31, 2011 (docket entry 25).
The parties were given an opportunity to advise the Court of their views with respect to what
information, if any, should be redacted under the terms of the protective order. The parties filed
a Joint Status Report (docket entry 67) on November 28, 2011, proposing certain redactions.
The Government made two further submissions regarding its proposed redactions (docket entries
68 and 69, Nov. 30, 2011 and Dec. 1, 2011). The Court has adopted the redactions as finally
proposed by the parties. Accordingly, the Court is reissuing its Opinion and Order dated
November 15, 2011, with those redactions indicated by three consecutive asterisks within
brackets ([***]).

Jonathan D. Shaffer, Smith, Pachter, McWhorter PLC, Vienna, Va., for plaintiff. John S.
Pachter, Mary Pat Buckenmeyer, Erica J. Geibel, and Armani Vadiee, Smith, Pachter,
McWhorter PLC, Vienna, Va., of counsel. Jesse J. Williams, IBM Corporation, U.S. Federal,
Bethesda, Md., of counsel.
Anuj Vohra, Trial Attorney, Christopher L. Krafchek, Trial Attorney, Kirk T. Manhardt,
Assistant Director, Jeanne E. Davidson, Director, Civil Division, Commercial Litigation Branch,
Tony West, Assistant Attorney General, Civil Division, United States Department of Justice,
Washington, D.C., for defendant. Robert Russo, Staff Attorney, Desiree DiCorcia, Staff
Attorney, Frank DiNicola, Staff Attorney, Colin Nash, Staff Attorney, Department of Veterans
Affairs, Eatontown, N.J., of counsel.
James J. McCullough, Fried, Frank, Harris, Shriver & Jacobson LLP, Washington, D.C.,
for defendant-intervenor Science Applications International Corporation. Karen M. Soares and
Brian M. Stanford, Fried, Frank, Harris, Shriver & Jacobson LLP, Washington, D.C., of counsel.
Claude P. Goddard, Husch Blackwell LLP, Washington, D.C., for defendant-intervenor
CACI-ISS, Inc. Daniel J. Donohue and Sarah M. Graves, Husch Blackwell LLP, Washington,
D.C., of counsel.
Richard J. Conway, Dickstein Shapiro LLP, Washington, D.C., for defendant-intervenor
HP Enterprise Services, LLC. Michael J. Slattery, Pablo A. Nichols, and Jade C. Totman,
Dickstein Shapiro LLP, Washington, D.C., of counsel.
OPINION AND ORDER
GEORGE W. MILLER, Judge
Plaintiff IBM Corporation, U.S. Federal (“IBM”) filed a complaint against the United
States alleging that the Department of Veterans Affairs (“DVA”) improperly evaluated the
proposal submitted by IBM in response to DVA’s Request for Proposals (“RFP” or
“Solicitation”), No. VA-118-10-RP-0052, and in so doing acted in a manner that was arbitrary,
capricious, an abuse of discretion, and contrary to law (docket entry 1, Aug. 24, 2011). For the
following reasons, the Court DENIES IBM’s motion for judgment on the administrative record
(docket entry 46, Sept. 23, 2011), GRANTS defendant’s motion for judgment on the
administrative record (docket entry 48, Sept. 23, 2011), and GRANTS defendant-intervenor HP
Enterprise Services, LLC’s (“HP”) motion for judgment on the administrative record (docket
entry 45, Sept. 23, 2011).
I.

Background
A.

DVA’s Solicitation for the T4 Program

On July 26, 2010, DVA issued an RFP for its Transformation Twenty-One Total
Technology (“T4”) Program. Administrative R. (“AR”) Tab 3. The RFP sought proposals for “a
total IT services solution encompassing, but not limited to software and IT products incidental to
2

the solution, in conjunction with all services needed to integrate a system, network, or other IT
service in order to meet [DVA’s] mission requirements.” AR Tab 3, at 163. The Performance
Work Statement described general requirements of the contract. Id. More specific requirements
were to be defined in individual task orders to be issued during the pendency of the contract. See
id.
The agency anticipated entering into an Indefinite Delivery/Indefinite Quantity (“IDIQ”),
Multiple Award Task Order contract with a five-year period of performance. AR Tab 3, at 164.
The RFP provided for a maximum selection of 15 awardees, with at least 4 contracts being
awarded to Service-Disabled Veteran-Owned Small Business (“SDVOSB”) firms and at least 3
being awarded to Veteran-Owned Small Business (“VOSB”) firms. AR Tab 3, at 250. The
ceiling value of the T4 Program was $12 billion, with a minimum $50,000 guaranteed to each
awardee. AR Tab 3, at 158.
B.

Section M: Evaluation Factors

The Solicitation explained that “[a]ny awards to be made will be based on the best overall
(i.e., best value) proposals that are determined to be the most beneficial to the Government.” AR
Tab 3, at 250. To evaluate the proposals under this standard, the RFP set forth five factors: (1)
technical, consisting of two sub-factors: (a) sample tasks and (b) management; (2) past
performance; (3) veterans involvement; (4) small business participation commitment (“SBPC”);
and (5) price. AR Tab 3, at 250–51. With regard to the weight to be assigned to each factor, the
Solicitation provided that “[t]he [t]echnical factor is significantly more important than the [p]ast
[p]erformance factor, which is slightly more important than the [v]eterans [i]nvolvement factor,
which is of equal importance to the SBPC factor, which is slightly more important than the
[p]rice factor.” AR Tab 3, at 250. Additionally, when combined, factors one through four were
viewed as “significantly more important” than factor five. Id. The RFP cautioned that “awards
may not necessarily be made based upon the lowest prices offered.” Id.
1.

Technical Factor

Under the sample tasks sub-factor, which was more important than the management subfactor, AR Tab 3, at 251, offerors were to propose solutions to three sample tasks designed to be
similar to task orders that would be issued under the contract. Id. The offerors’ proposed
solutions to the sample tasks were evaluated by assessing the offerors’ understanding of the
problems and the feasibility of each offeror’s approach. See AR Tab 3, at 251–52. Each sample
task was of equal importance. AR Tab 3, at 251.
The second technical sub-factor, management, was to be similarly evaluated, see AR Tab
3, at 252, to determine the offerors’ understanding of the problems and the feasibility of each
offeror’s proposed approach. See id.
2.

Past Performance Factor

DVA also used past performance as a factor in assessing the desirability of the proposals.
This evaluative factor looked at “the relative risks associated with an offeror’s likelihood of
success in performing the solicitation’s requirements as indicated by that offeror’s record of past
3

performance.” AR Tab 3, at 252. The assessment was conducted by looking at “the quality,
relevancy[,] and recency” of the offeror’s and its major subcontractors’ past performances. Id.
The Solicitation specifically identified as significant to its analysis past contracts greater than
$100,000 for the provision of services similar to those to be provided pursuant to the T4
Program. AR Tab 3, at 252–53. A “Past Performance Assessment Questionnaire” was attached
to the Solicitation for offerors to employ when reporting past performance information. See AR
Tab 3, at 258.
3.

Veterans Involvement Factor

Under the veterans involvement factor, evaluation credit was assigned to an offeror that
was an SDVOSB or a VOSB firm. AR Tab 3, at 253. Offerors that were not such entities could
receive evaluation credit if they “agree[d] to subcontract 10% or more of the contract value to
SDVOSB concerns or 12% or more of the contract value to VOSB concerns.” Id.
4.

SBPC Factor

Section M stated that “[a]ll offerors (both large and small businesses) will be evaluated
on the level of small business commitment that they demonstrate for the proposed acquisition,
and their prior level of commitment to utilizing small businesses in performance of prior
contracts.” AR Tab 3, at 253. Specifically, the agency assessed
(a) the extent to which small business firms, as defined in FAR Part 19, were
“specifically” identified in proposals;
(b) “[t]he extent of commitment to use such firms (enforceable commitments [would] be
weighted more heavily than non-enforceable ones)”;
(c) “[t]he complexity and variety of the work” small business firms were to perform;
(d) the “realism” of the commitment to small business participation;
(e) “[p]ast performance of the offeror in complying with the requirements of the clauses
at FAR 52.219-8, Utilization of Small Business Concerns, and, for all large business
offerors, FAR 52.219-9, Small Business Subcontracting Plan”;
(f) the extent of participation of small business firms in the value of the total acquisition;
(g) whether the offeror “me[t] the . . . overall subcontracting requirement for this
procurement”—namely, that small business firms receive 35 percent of the total contract
value—which was required in order to be found “acceptable” under the SBPC factor; and
(h) the extent to which the offeror met or exceeded specific subcontracting goals, namely,
that SDVOSB firms receive 10 percent of the total contract value, VOSB firms receive
12 percent of the total contract value, Small Disadvantaged Business (“SDB”) firms
receive 5 percent of the total contract value, Women-Owned Small Business (“WOSB”)
firms receive 5 percent of the total contract value, and Historically Underutilized
4

Business Zone (“HUB Zone”) small business firms receive 3 percent of the total contract
value.
AR Tab 3, at 253–54.
5.

Price Factor

The final evaluative factor in the agency’s analysis of proposals was price. See AR Tab
3, at 250.
C.

Section L: Instructions, Conditions, and Notices to Offerors

In addition to describing evaluative factors, the Solicitation contained instructions,
conditions, and notices to offerors. See AR Tab 3, at 233–49. For example, section L.5
indicated that while SDVOSB and VOSB firms could receive “full credit” and “partial credit”
for veterans involvement, respectively, non-SDVOSB and non-VOSB firms could only receive
“some consideration.” AR Tab 3, at 236.
Section L.7 contained proposal submission instructions. AR Tab 3, at 237. The proposal
was required to be submitted in six separate volumes. Volume IV of the proposal was titled
“Small Business Participation Commitment Files” and included a file for “Small Business
Participation Commitment” and a file for “Small Business Subcontracting Plan.” AR Tab 3, at
239. The latter was only required from large business offerors. Id. With respect to the file for
“Small Business Participation Commitment,” Section L.7 explained how to address criteria (a)
through (e) of the SBPC factor. See AR Tab 3, at 242; see also supra Part I.B.4. For example,
with respect to criterion (b), which stated that DVA would consider the extent of commitment to
use small business firms and weigh enforceable teaming agreements more heavily, an offeror
was instructed: “To demonstrate this element, list any small business subcontractors with which you
have teaming agreements for this solicitation and indicate whether they are bilateral, unilateral, long
term relationships or mentor protégé arrangements.” AR Tab 3, at 243.
D.

IBM’s Response to the Solicitation

On August 31, 2011, IBM, designated as offeror 47, submitted its initial proposal in
response to the Solicitation. See AR Tab 18. Among other aspects, 1 IBM’s proposal indicated
that it would subcontract approximately [***] percent of the contract value to small business
firms, exceeding DVA’s 35-percent requirement. See AR Tab 18, at 24257. IBM’s proposal
also indicated that it would exceed DVA’s subcontracting goals with regard to specific types of
small business firms: SDB ([***] percent proposed versus 5 percent goal), WOSB ([***] percent
proposed versus 5 percent goal), HUB Zone ([***] percent proposed versus 3 percent goal),
VOSB ([***] percent proposed versus 12 percent goal), and SDVOSB ([***] percent proposed
versus 10 percent goal). See AR Tab 18, at 24257–58.

1

The Court describes the content of IBM’s proposal in more detail in Part I.F, which deals with
the Final Evaluation Report.

5

E.

Initial Evaluation, Initial Competitive Range, Items for Negotiation, Interim
Proposal, Final Competitive Range, and Final Revisions

The Source Selection Evaluation Board (“SSEB”) conducted initial evaluations and the
Source Selection Authority (“SSA”) established an initial competitive range, consisting of
proposals from 22 offerors, one of which was IBM. See AR Tab 135. DVA then released Items
for Negotiation (“IFNs”) to each of the 22 offerors that had submitted proposals in the initial
competitive range. See AR Tabs 136–57. With respect to IBM’s proposal, DVA identified five
IFNs. See AR Tab 149. IBM, along with other offerors that had submitted proposals that were
found to be in the initial competitive range, responded with a first revised proposal (“interim
proposal”) addressing the concerns raised in the IFNs. See AR Tab 172.
In March 2011, the SSA determined a final competitive range consisting of proposals
from 21 offerors, which included IBM. See AR Tab 204. IBM was then permitted to revise any
part of its proposal a final time, although it declined to do so. See AR Tabs 235, 249.
F.

Final Evaluation Report
1.

Technical Factor

The offerors’ technical proposals were assessed for understanding, detail, feasibility, and
risk. AR Tab 2, at 131. The Source Selection Evaluation Plan (“SSEP”) provided that the rating
for the technical factor and both sub-factors would be expressed as an adjectival assessment of
“outstanding,” “good,” “acceptable,” or “unacceptable.” 2 Id. To be considered for an award, the
Solicitation provided that an offeror’s proposal was required to receive a rating of “acceptable”
for the technical factor and both technical sub-factors. AR Tab 3, at 250.
The definition of “outstanding” was “[a] proposal that satisfies all of the Government’s
requirements, contains extensive detail, demonstrates a thorough understanding of the problems,
and is highly feasible (low risk) in meeting the Government’s requirements.” AR Tab 2, at 131.
“Good” was defined as “[a] proposal that satisfies all of the Government’s requirements,
contains adequate detail, demonstrates an understanding of the problems, and is feasible (low to
moderate degree of risk) in meeting the Government’s requirements.” Id. “Acceptable” meant
“[a] proposal that satisfies all of the Government’s requirements, contains minimal detail,
demonstrates a minimal understanding of the problems, and is minimally feasible (moderate to
high degree of risk) in meeting the Government’s requirements.” Id. The foregoing definitions
of “outstanding,” “good,” and “acceptable” were used in the evaluation of the technical subfactors of sample tasks and management. The rating for the technical factor was a “roll up” of
the technical sub-factor ratings. Id. (internal quotation marks omitted).
In addition to ratings for factors and sub-factors, an offeror could receive “strengths” and
“weaknesses.” The SSEP defined “strength” as “[a]ny aspect of a proposal that, when judged
against a stated evaluation criterion, enhances the merit of the proposal or increases the
2

The Court has omitted original capitalization in quotations from the administrative record
regarding ratings for the factors and sub-factors.

6

probability of successful performance of the contract. A [‘]significant strength[’] appreciably
enhances the merit of a proposal or appreciably increases the probability of successful contract
performance.” AR Tab 2, at 133. “Weakness” was defined as follows: “A flaw in a proposal
that increases the risk of unsuccessful contract performance. A [‘]significant weakness[’] in a
proposal is a flaw that appreciably increases the risk of unsuccessful contract performance.” Id.
Here, IBM’s proposal received a technical factor rating of “[***]” and ratings of “[***]”
for the sample tasks and management sub-factors. AR Tab 270, at 82662. IBM’s proposal
received an “[***]” rating for sample task 1: “The offeror received a rating of [***] since the
proposal satisfies all of the Government’s requirements, contains minimal detail, demonstrates a
minimal understanding of the problems, and is minimally feasible ([***]) in meeting the
Government’s requirements.” AR Tab 270, at 82669. DVA found one significant strength and
one strength. Two weaknesses were found with IBM’s proposal for sample task 1. AR Tab 270,
at 82667–69.
With respect to sample task 2, IBM’s proposal received a rating of “[***]”: “The offeror
received a rating of [***] since the proposal satisfies all of the Government’s requirements,
contains minimal detail, demonstrates a minimal understanding of the problems, and is
minimally feasible ([***]) in meeting the Government’s requirements.” AR Tab 270, at 82673.
DVA found two significant strengths, one strength, one weakness, and two significant
weaknesses. AR Tab 270, at 82670–73.
IBM’s proposal received an “[***]” rating for sample task 3 “since the proposal satisfies
all of the Government’s requirements, contains extensive detail, demonstrates a thorough
understanding of the problems, and is highly feasible ([***]) in meeting the Government’s
requirements.” AR Tab 270, at 82676. IBM’s proposal received one significant strength and
three strengths. AR Tab 270, at 82674–75.
DVA rated IBM’s proposal as “[***]” with respect to the management sub-factor “since
the proposal satisfies all of the Government’s requirements, contains adequate detail,
demonstrates an understanding of the problems and is feasible ([***]) in meeting the
Government’s requirements.” AR Tab 270, at 82681. IBM’s proposal received three significant
strengths and one strength. AR Tab 270, 82679–80.
2.

Past Performance Factor

A proposal could receive a rating of “high risk,” “moderate risk,” “low risk,” or
“unknown risk” for the past performance factor. AR Tab 2, at 132. “Low risk” was defined in
the SSEP as “[l]ittle doubt exist[ing], based on the offeror’s performance record, that the offeror
can perform the proposed effort.” Id.
Here, DVA rated IBM’s proposal as “[***]” for past performance. AR Tab 270, at
82658. The Final Evaluation Report shows that IBM’s proposal indicated that it had 11 major
subcontractors and 38 recent and relevant past performances. Id. IBM’s proposal was evaluated
for specific performance issues and overall performance, commitment to and concern for
customers, and controlling costs. Id. IBM’s proposal provided 240 questionnaire responses,
with [***] percent being “exceptional,” [***] percent being “satisfactory,” and [***] percent
7

being “not applicable.” Id. With respect to other sources of past performance information, DVA
reviewed the Past Performance Informational Retrieval System for IBM’s proposed team and
found 16 recent and relevant past performance records, none of which contained adverse
information. AR Tab 270, at 82659.
3.

SBPC Factor

The SBPC factor was evaluated for commitment to small business participation, detail,
and feasibility, the latter of which included risk. AR Tab 2, at 132. A proposal could receive an
adjectival rating of “outstanding,” “good,” “acceptable,” or “unacceptable.” Id. To be
considered for an award, the Solicitation provided that an offeror’s proposal was required to
receive a rating of at least “acceptable” for the SBPC factor. AR Tab 3, at 250.
“Outstanding” meant “[a] proposal that demonstrates a strong level of commitment to
small business participation, contains extensive detail, and is highly feasible (low risk).” AR
Tab 2, at 132. “Good” was defined as “[a] proposal that demonstrates an adequate level of
commitment to small business participation, contains adequate detail, and is at least feasible (low
to moderate risk).” Id. “Acceptable” meant “[a] proposal that demonstrates a minimal
commitment to small business participation, contains minimal detail, and is at least feasible
(moderate to high risk).” Id.
Here, DVA rated IBM’s proposed SBPC as “[***],” explaining: “Offeror 047 provides a
proposal that demonstrates a strong level of commitment to small business participation, contains
adequate detail, and is at least feasible with low risk.” AR Tab 270, at 82661. DVA found five
strengths because IBM’s proposal exceeded DVA’s subcontracting goals with respect to SDB,
WOSB, HUB Zone small business, VOSB, and SDVOSB firms; a strength for the bilateral
teaming agreements with 4 of the 24 proposed small business subcontractors; a strength for the
mentor-protégé agreement with a proposed small business subcontractor; a strength for the
complexity and variety of the work to be performed by small business subcontractors; and a
strength for IBM’s extensive lists and supplier databases to ensure small business goals were
met. AR Tab 270, at 82660–61.
IBM’s proposal did not receive a strength for its 20 unilateral teaming agreements with
small business subcontractors. See AR Tab 18, at 24247. IBM’s proposal also did not receive a
strength for its “dedicated IDIQ center of excellence that manages several IDIQ vehicles,
including small business participation.” AR Tab 18, at 24255.
As required of large business offerors, IBM’s proposal included a “Small Business
Subcontracting Plan” file in Volume IV. See AR Tab 18, at 24260. In this file, IBM’s proposal
identified small business awards and an employee dedicated to small business subcontracting
coordination, but IBM’s proposal did not receive strengths for these aspects of its proposal.
4.

Veterans Involvement Factor

The SSEP indicated that the ratings for veterans involvement were “full credit,” “partial
credit,” “minor credit,” and “no credit.” AR Tab 2, at 133. “Minor credit” meant that “[t]he
Offeror is neither a[n] SDVOSB nor [a] VOSB but has provided an acceptable subcontracting
8

plan in which SDVOSB or VOSBs are subcontracted 10% and 12% respectively or more of the
contract value.” Id.
Here, IBM’s proposal received “minor credit” for veterans involvement because IBM
was not an SDVOSB or a VOSB firm, but had agreed to subcontract [***] percent of the total
contract value to SDVOSB firms and [***] percent to VOSB firms, 3 exceeding DVA’s goals.
AR Tab 270, at 82682.
5.

Price

The Final Evaluation Report indicated that IBM’s proposed price was approximately
[***] billion. AR Tab 270, at 82655.
G.

Source Selection Decision Document

A color-coded 4 table in the Source Selection Decision Document (“SSD document”) sets
forth the final ratings, risks, and prices of the final proposals from the 21 offerors in the final
competitive range. 5 See AR Tab 280, at 83096–97. The Court has re-created the table below to
account for the fact that the copy of the table in the administrative record is not in color:

3

A subcontractor could be both an SDVOSB and a VOSB firm, which explains why IBM’s
proposed percentages exceeded 100 percent.
4

The Source Selection Decision Document does not actually include a code indicating the
meaning of the colors. However, the intended meaning of each color is not disputed by the
parties.
5

As noted earlier, IBM was offeror 47.

9

SBPC
Factor

Veterans
Involvement
Factor

9.819

Blue

Blue

Green

7.619

Blue

Green

Yellow

6.87

Blue

Blue

Yellow

8.655

Blue

Yellow

Blue

7.265

Blue

Green

Yellow

7.19

Blue

Green

Yellow

8.199

[***]

[***]

[***]

Blue

Yellow

Blue

[***]

[***]

[***]

Blue

Blue

Yellow

9.088

Blue

Green

Yellow

7.464

[***]

[***]

[***]

[***]

Blue

Yellow

Blue

8.47

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

Green
L
[***]

Blue

Yellow

Yellow

7.809

[***]

[***]

[***]

[***]

Blue

Yellow

Blue

7.619

Blue

Yellow

Yellow

6.833

Blue

Yellow

Blue

8.811

Yellow

Yellow

7

Green

Green

8

Blue

Blue

9

Yellow

Yellow

10

Blue

Blue

15

Green

Green

[***]

[***]

[***]

Blue
Yellow Yellow
L
H
M
Green Yellow Green
L-M
M
L
Blue
Green Green
L
L
M
Blue
Green
Blue
L
L
L
Yellow Yellow Yellow
H
H
M
Blue
Green Green
L
L-M
L-M
Yellow Green Green
M
L
L-M
[***]
[***]
[***]

Yellow

Yellow

[***]

[***]

[***]

Yellow
H
[***]

Yellow Yellow
M-H
M-H
[***]
[***]

Green
L-M
[***]

41

Green

Green

45

Green

Green

47

[***]

[***]

Blue
L
Green
L
[***]

Green
L-M
Yellow
H
[***]

Green
L-M
Green
L-M
[***]

Blue
L
Green
L-M
[***]

49

Green

Green

[***]

[***]

[***]

Yellow
M
[***]

Yellow
M
[***]

Blue
L
[***]

Green
M
[***]

[***]

[***]

[***]

[***]

[***]

[***]

81

Green

Green

[***]

[***]

[***]

Yellow
M
[***]

Green
L
[***]

Green
L-M
[***]

90

Green

Green

91

Green

Green

95

Yellow

Yellow

Green
M
Green
M
Yellow
M

Green Green Yellow
L-M
L-M
M
Green Green Green
L
L-M
L-M
Yellow Yellow Yellow
M-H
H
M

37

Sample
Task 3

3

Yellow
H
Red
VH
Yellow
M-H
Blue
L
Green
L-M
Blue
L
Green
L-M
[***]

Sample
Task 2

Sample
Task 1

Green

Offeror

Green

10

Factor

Blue

1

Past

Blue

Sample
Tasks
SubFactor

Performance

Blue

Mgmt.
Sub-Factor

Price
in
Billions
($)

Technical
Factor

[***]
9.408
[***]

With respect to the technical factor, the table set forth the adjectival ratings for the
technical factor, adjectival ratings for the sample tasks sub-factor, adjectival ratings for the
individual sample tasks and the risk associated with each sample task (low, low-to-moderate,
moderate, moderate-to-high, high, and very high), and adjectival ratings for the management
sub-factor and the risk associated with the management proposal. Adjectival ratings were
indicated by color, with blue representing “outstanding,” green representing “good,” yellow
representing “acceptable,” and red representing “unacceptable.”
With respect to the past performance factor, the table indicated the degree of risk. Blue
represented “low risk.” With respect to the SBPC factor, the table indicated the adjectival
ratings. Blue represented “outstanding,” green represented “good,” and yellow represented
“acceptable.”
With respect to veterans involvement, the table indicated the amount of credit a proposal
was awarded. Blue represented “full credit,” green represented “partial credit,” and yellow
represented “minor credit.” Finally, the table indicated the price in billions of dollars.
The SSA stated:
Based upon the findings of the [SSEB] and the Source Selection Advisory
Council ([“]SSAC[”]) as presented to me on March 24, 2011, I compared the
proposals, giving appropriate consideration to the evaluation criteria set forth in
the solicitation and their relative importance. Based on this comparison, I have
determined that the proposals submitted by Offerors 7 [(ASM Research Inc.)], 8
[(Booz Allen Hamilton Inc.)], 10 [(CACI-ISS, Inc.)], 15 [(Creative Computing
Solutions, Inc.)], 41 [([Harris Corporation)], 45 [(HP)], 81 [(Science Applications
International Corporation)], 90 [(Systems Made Simple, Inc.)], and 91 [(SRA
International, Inc.)] are the best overall proposals and most beneficial to the
Government. All of these offerors, with the exception of Offeror 90 [(Systems
Made Simple, Inc.)], are non-SDVOSB/VOSB concerns. They constitute the
awards to be made in the first step (open competition awards) of the award
determination process as set forth in the solicitation.
These award determinations are based on the relative importance of the
evaluation factors, the SSEB’s detailed evaluation of each of the offerors’
proposals and the comparative analysis of the evaluation results reflected in the
attachments to this [SSD document].
AR Tab 280, at 83097. The SSA’s reference to the briefing she received appears to refer to
briefing documents that are in the administrative record. See AR Tab 279. These documents
contain more information about each proposal than is contained in the table prepared by the SSA.

11

The SSA then went on to set forth her conclusion that the proposals from the nine offerors
identified above represented the best value to DVA. 6
In addition to the nine proposals selected at step one, the SSA also selected proposals at
step two in the source selection process. However, IBM’s proposal was not eligible to be
selected because IBM was not an SDVOSB or a VOSB firm. See AR Tab 3, at 251.
H.

Instant Action

On August 24, 2011, IBM filed the instant action. In its complaint, IBM alleges that
DVA (1) conducted an unreasonable evaluation of IBM’s proposed SBPC, Compl. ¶¶ 34–51; (2)
conducted an unreasonable evaluation of IBM’s proposed veterans involvement, id. ¶¶ 52–57;
(3) improperly evaluated the other offerors’ proposed prices, id. ¶¶ 58–64; (4) improperly
evaluated IBM’s technical proposal, id. ¶¶ 65–77; (5) failed to conduct meaningful discussions
with IBM, id. ¶¶ 78–82; and (6) improperly determined the proposals that represented the best
value to DVA. Id. ¶¶ 83–89.
IBM filed a motion for judgment on the administrative record. Defendant and defendantintervenor HP (offeror 45) filed cross-motions for judgment on the administrative record.
Defendant and defendant-intervenors HP, CACI-ISS, Inc. (“CACI”) (offeror 10), and Science
Applications International Corporation (“SAIC”) ([***]) filed responses in opposition to IBM’s
motion (docket entries 52, 54–55, 57, Oct. 7, 2011). IBM filed a response in opposition to
defendant’s and defendant-intervenor HP’s cross-motions for judgment on the administrative
record (docket entry 58, Oct. 7, 2011). IBM, defendant, and defendant-intervenors HP and
SAIC filed replies (docket entries 60–63, Oct. 14, 2011). On October 21, 2011, the Court heard
oral argument on the motions.
II.

Analysis

The parties filed cross-motions for judgment on the administrative record pursuant to
Rule 52.1 of the Rules of the Court of Federal Claims. In a bid protest action, the Court will set
aside agency action if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law.” 5 U.S.C. § 706(2)(A); see 28 U.S.C. § 1491(b)(4); Banknote Corp. of Am.
Inc. v. United States, 365 F.3d 1345, 1350 (Fed. Cir. 2004). The protestor will succeed when
“(1) the procurement official’s decision lacked a rational basis; or (2) the procurement procedure
involved a violation of regulation or procedure.” Banknote Corp. of Am., 365 F.3d at 1351
(quoting Impresa Construzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324, 1332
(Fed. Cir. 2001)) (internal quotation marks omitted). The protestor must show that the agency
failed to provide a “coherent and reasonable explanation of its exercise of discretion” or that
there was a “clear and prejudicial violation of applicable statutes or regulations.” Id. (quoting
Impresa Construzioni Geom. Domenico Garufi, 238 F.3d at 1332–33) (internal quotation marks
omitted). To demonstrate prejudice in a post-award protest, the protestor “must show that there
6

In this Opinion and Order, the Court will refer to these nine offerors as follows: 7 (ASM
Research), 8 (Booz Allen), 10 (CACI), 15 (CCSI), 41 (Harris), 45 (HP), 81 ([***]), 90 (Systems
Made Simple), and 91 (SRA International).

12

was a ‘substantial chance’ it would have received the contract award absent the alleged error.”
Banknote Corp. of Am., 365 F.3d at 1351 (quoting Emery Worldwide Airlines, Inc. v. United
States, 264 F.3d 1071, 1086 (Fed. Cir. 2001)).
The protestor’s burden becomes more difficult the greater the degree of discretion vested
in the contracting officer. DynCorp Int’l v. United States, 76 Fed. Cl. 528, 537 (2007).
Negotiated procurements afford the contracting officer a “breadth of discretion,” id. (quoting
Burroughs Corp. v. United States, 617 F.2d 590, 598 (Ct. Cl. 1980)) (internal quotation marks
omitted); “best value” awards afford the contracting officer additional discretion. Id. Therefore,
in a negotiated, best-value procurement, the “protestor’s burden is especially heavy.” Id.
In reviewing cross-motions for judgment on the administrative record, the Court must
determine “whether, given all the disputed and undisputed facts, a party has met its burden of
proof based on the evidence in the record.” A & D Fire Prot. v. United States, 72 Fed. Cl. 126,
131 (2006). In a manner “akin to an expedited trial on ‘the paper record,’” the Court will make
findings of fact where necessary. CHE Consulting, Inc. v. United States, 78 Fed. Cl. 380, 387
(2007) (quoting A & D Fire Prot., 72 Fed. Cl. at 131).
A.

DVA Properly Evaluated IBM’s Proposed SBPC
1.

That DVA Did Not Find Any Significant Strengths or Additional
Strengths for IBM’s SBPC Was Rational

The assignment of ratings is within the broad discretion of the contracting officer. See
E.W. Bliss Co. v. United States, 77 F.3d 445, 449 (Fed. Cir. 1996) (noting that matters such as
technical ratings “involve discretionary determinations of procurement officials that a court will
not second guess”); Femme Comp Inc. v. United States, 83 Fed. Cl. 704, 740 (2008) (“A
protestor’s mere disagreement with an evaluation does not provide an adequate basis to overturn
the agency’s decision.”).
Here, IBM’s proposal received numerous strengths, although no significant strengths.
See AR Tab 270, at 82660–61. The majority of IBM’s argument with respect to its proposal’s
entitlement to significant strengths and additional strengths amounts only to disagreement with
DVA’s evaluation of IBM’s SBPC, which is not a sufficient basis to overturn the evaluation. See
Femme Comp Inc., 83 Fed. Cl. at 740; see, e.g., Pl.’s Mot. 12 (arguing that “IBM should have
received the highest credit” for the complexity and variety of the work small firms were to
perform under its proposal).
2.

DVA Did Not Introduce a New Factor by Affording Greater Weight to
Bilateral Teaming Agreements with Small Business Subcontractors, as
Opposed to Unilateral Teaming Agreements

IBM proposed 4 bilateral teaming agreements with small business subcontractors and 20
unilateral teaming agreements. See AR Tab 18, at 24247. IBM received a strength for the four
bilateral teaming agreements. See AR Tab 270, at 82660. IBM did not receive a significant
strength or strength for its unilateral teaming agreements. Other offerors received a significant
strength when all of their teaming agreements with small business subcontractors were bilateral.

13

See, e.g., AR Tab 261, at 82400; AR Tab 268, at 82604. IBM argues that DVA introduced a new
evaluation factor not set forth in the Solicitation, specifically whether the teaming agreements
were unilateral or bilateral, and was required to limit itself to considering whether a teaming
agreement was enforceable pursuant to 41 U.S.C. § 3701(a) and FAR 15.305(a). See Pl.’s Mot.
16–18.
With respect to SBPC, section M stated that DVA would consider “[t]he extent of
commitment to use such firms (enforceable commitments will be weighted more heavily than
non-enforceable ones).” AR Tab 3, at 253 (emphasis added). Section L explained: “To
demonstrate this element, list any small business subcontractors with which you have teaming
agreements for this solicitation and indicate whether they are bilateral, unilateral, long term
relationships or mentor protégé arrangements.” AR Tab 3, at 243 (emphasis added). In light of
the language in sections M and L, the Court rejects IBM’s argument that DVA introduced a new
factor into its evaluation by only affording a significant strength when all of the teaming
agreements were bilateral, i.e., were enforceable commitments.
Moreover, in making this argument IBM appears to challenge the terms of the
Solicitation. Specifically, IBM appears to take issue with the fact that the Solicitation did not
define bilateral or unilateral contracts 7 or better explain how DVA would take into consideration
the type of teaming agreement in determining an offeror’s level of commitment to small business
participation. To the extent IBM challenges the terms of the Solicitation, IBM waived this
challenge by not raising it earlier. See Blue & Gold Fleet, L.P. v. United States, 492 F.3d 1308,
1314 (Fed. Cir. 2007) (recognizing “a waiver rule against parties challenging the terms of a
government solicitation”).
3.

DVA Did Not Conduct a Disparate Evaluation of IBM’s Proposal

Agencies “must treat all offerors equally, evaluating proposals evenhandedly against
common requirements and evaluation criteria.” Banknote Corp. of Am. v. United States, 56 Fed.
Cl. 377, 383 (2003), aff’d, 365 F.3d 1345 (Fed. Cir. 2004). IBM argues that DVA engaged in
disparate treatment by failing to award it significant strengths for its (1) “dedicated IDIQ center
of excellence that manages several IDIQ vehicles, including small business participation,” (2)
small business awards, and (3) employee dedicated to small business coordination. Pl.’s Mot.
18–20. IBM claims disparate treatment based on DVA’s awarding significant strengths to, inter
alia, offeror 8 (Booz Allen) for an employee dedicated to small business coordination and small
business awards and to offeror 41 (Harris) for a supplier diversity program responsible for
soliciting small businesses and small business awards. Id. (citing AR Tab 261, at 82400; AR
Tab 268, at 82604).
7

Black’s Law Dictionary defines a unilateral contract as “[a] contract in which only one party
makes a promise or undertakes a performance; a contract in which no promisor receives a
promise as consideration for the promise given.” Black’s Law Dictionary 374 (9th ed. 2009);
see also Def.’s Opp’n 8 (“[The] [e]ssence of a ‘unilateral contract’ is that neither party is bound
until the promisee accepts the offer by performing the proposed act[.]” (quoting Black’s Law
Dictionary 325 (6th ed. 1990))) (alterations in original) (internal quotation marks and emphasis
omitted).

14

As an initial matter, defendant correctly points out that no other offerors received
recognition for IDIQ centers of excellence and thus that cannot be a basis for disparate treatment.
See Def.’s Opp’n 9 n.2. IBM is correct that other offerors received credit for employees
dedicated to small business participation and small business awards. Nonetheless, IBM failed to
include this information in the correct portion of its proposal, and DVA was not required to
search for additional information to assist IBM. Cf. Hi-Tec Sys., Inc., B-402590 et al., 2010 WL
2799417, at *2 (Comp. Gen. June 7, 2010) (“[W]e do not think the agency was required to
search the other volumes of Hi-Tec’s proposal for information bearing on the identified
weaknesses.”). IBM included the information at issue in its “Small Business Subcontracting
Plan,” the second file in Volume IV, which the Solicitation did not indicate would be evaluated
for purposes of an award of a contract and which small business offerors were not required to
submit. See AR Tab 3, at 252 (section M.2.C.4); AR Tab 3, at 237, 242–47 (section L.7.2.c and
section L.7.2.c(iv)). If IBM wanted the information to be considered, IBM should have included
it in the first file of Volume IV, titled “Small Business Participation Commitment,” as other
offerors did. 8
4.

That DVA Rated IBM’s Proposal as [***] with Respect to SBPC Was
Rational

IBM’s argument that it deserved a rating of “outstanding” for SBPC is primarily based on
its argument that it deserved significant strengths or additional strengths or that DVA introduced
a new factor, arguments the Court has rejected above. Moreover, the rating for SBPC was based
only in part on the level of commitment to small business participation. AR Tab 2, at 132. The
SBPC evaluation also considered the level of detail and feasibility. Id. The Final Evaluation
Report for IBM’s proposal stated that IBM “provides a proposal that demonstrates a strong level
of commitment to small business participation, contains adequate detail, and is at least feasible
with low risk.” AR Tab 270, at 82661 (emphasis added). IBM has not demonstrated to this
Court that DVA acted irrationally in finding the level of detail only adequate, as opposed to
“extensive,” as required for a rating of “outstanding.” AR Tab 2, at 132. Accordingly, IBM’s
claim that it deserved an “outstanding” rating for the SBPC factor must fail.
B.

DVA Properly Evaluated IBM’s Proposed Veterans Involvement

IBM strenuously challenges DVA’s only affording IBM “minor credit” in evaluating the
veterans involvement factor, despite the fact that “IBM’s veteran subcontracting totals amounted
to approximately [***] of the entire contract value.” Pl.’s Mot. 20. Nonetheless, section L
explained that, while SDVOSB and VOSB firms could receive “full credit” or “partial credit,”
respectively, for veterans involvement, non-SDVOSB and non-VOSB firms could only receive
8

The Court recognizes that DVA considered offeror 15’s (CCSI) “Small Business
Subcontracting Plan” when evaluating its “Small Business Participation Commitment.”
However, as acknowledged by IBM, see Pl.’s Reply 11, offeror 15 (CCSI) expressly
incorporated the “Small Business Subcontracting Plan” file when addressing three of the criteria
that the Solicitation stated would be considered in evaluating SBPC. See, e.g., AR Tab 11, at
11784 (“Element F is provided in the Small Business Subcontracting Plan document entitled,
Creative Computing Solutions, Inc. (CCSi)_SBSP.”).

15

“some consideration.” AR Tab 3, at 236. “Some consideration” was described as “minor credit”
in the SSEP. See AR Tab 2, 133. Thus, DVA properly evaluated IBM’s veterans involvement
proposal. Moreover, to the extent IBM is challenging the terms of the Solicitation, such as the
term limiting credit to “minor credit” for non-veteran offerors, that challenge is waived pursuant
to Blue & Gold, 492 F.3d at 1313.
C.

IBM Has Not Shown that DVA Improperly Evaluated IBM’s Technical Proposal
or Other Offerors’ Price Proposals

The Court agrees with defendant and defendant-intervenor HP that IBM appears to have
abandoned its claims regarding improper evaluation of technical and price proposals. See Def.’s
Reply 3–5; Def.-Intervenor HP’s Opp’n 10. To the extent IBM stands by its claims, the Court
finds that IBM has not met its burden.
D.

The SSA’s Best-Value Determinations Were Explained and Documented
Consistent with FAR 15.308

The best-value tradeoff process is described in FAR 15.101-1: “This process permits
tradeoffs among cost or price and non-cost factors and allows the Government to accept other
than the lowest priced proposal. The . . . rationale for tradeoffs must be documented in the file in
accordance with 15.406.” FAR 15.101(c). As noted earlier, in a negotiated, best-value
procurement, the “protestor’s burden is especially heavy.” DynCorp Int’l, 76 Fed. Cl. at 537.
FAR 15.308 addresses the role of the SSA. First, the SSA’s “decision shall be based on a
comparative assessment of proposals against all source selection criteria in the solicitation.”
FAR 15.308. Second, the “decision shall represent the SSA’s independent judgment.” Id.
Third, the decision shall be documented, and the documentation “shall include the rationale for
any business judgments and tradeoffs made or relied on by the SSA, including benefits
associated with additional costs,” although any tradeoffs need not be quantified. Id.
The court in Serco, Inc. v. United States, 81 Fed. Cl. 463, 496 (2008), thoroughly
explained the requirements of the regulations, creating “a skeletal framework” of the inquiry.
“First, the regulation requires the agency to make a business judgment as to whether the higher
price of an offer is worth the technical benefits its acceptance will afford.” Id. An agency must
“do more than simply parrot back the strengths and weaknesses of the competing proposals—
rather, the agency must dig deeper and determine whether the relative strengths and weaknesses
of the competing proposals are such that it is worth paying a higher price.” Id. at 497. “Second,
in performing the tradeoff analysis, the agency need neither assign an exact dollar value to the
worth associated with the technical benefits of a contract nor otherwise quantify the non-cost
factors. But . . . logic suggests that as that magnitude increases, the relative benefits yielded by
the higher-priced offer must also increase.” Id. (citation omitted). Third, the agency must
document its tradeoff analysis. Id. “Conclusory statements, devoid of any substantive content,
have been held to fall short of this requirement, threatening to turn the tradeoff process into an
empty exercise.” Id.
The SSA need not conduct a best-value analysis for every proposal. “[W]here
proposals are technically equal, a best-value tradeoff analysis between price and technical

16

factors is not required. A best-value tradeoff analysis is not required because under such
circumstances . . . a best-value tradeoff is not possible.” Carahsoft Tech. Corp. v. United
States, 86 Fed. Cl. 325, 349 (2009) (citing Consol. Eng’g Servs., Inc. v. United States, 64
Fed. Cl. 617, 635 n.26 (2005)). The reason a best-value tradeoff is not possible is “[n]o
amount of agency reasoning could justify selecting a higher-priced proposal, where a
lower-priced and technically equal proposal is available.” Id.
IBM alleges three grounds on which the best-value determinations were improper,
challenging the nine awards made at step one of the source selection process, consisting
of eight awards to large business offerors and one award to an SDVOSB offeror: “[t]he
best value determination was materially erroneous because the agency (1) relied upon the
improper evaluation under the [SBPC] and [v]eterans [i]nvolvement factors; (2) gave
undue weight to price; and (3) failed to properly consider the strengths and weaknesses of
offerors’ proposals.” Pl.’s Mot. 24. IBM makes numerous arguments in support of each
of these three primary claims. See Pl.’s Mot. 24–32; Pl.’s Opp’n 16–22; Pl.’s Reply 13–
18.
1.

The SSA Did Not Conduct Improper Evaluations of SBPC and Veterans
Involvement

To the extent IBM seeks to overturn the SSA’s selection of any of the awards at step one
of the source selection process based on its claims that DVA improperly evaluated SBPC and
veterans involvement, the Court has previously rejected those contentions.
2.

The SSA Did Not Give Undue Weight to Price

IBM specifically argues that DVA “(1) considered only the [t]echnical and [p]rice factors
when analyzing proposals for best value; and (2) weighted the [p]rice factor equal to the
[t]echnical factor.” Pl.’s Mot. 26. With respect to the proposals from offerors 8 (Booz Allen)
and 41 (Harris), the SSA conducted best-value analyses to determine whether their technical
superiority was worth a price higher than IBM’s price. 9 See AR Tab 280, at 83103–08, 83124–
28.
The Court rejects IBM’s argument that undue weight was given to price in these two
best-value analyses for a number of reasons. The best-value analyses attached to the SSD
document with respect to proposals from IBM and offerors 8 (Booz Allen) and 41 (Harris)
compared their SBPC, past performance, and veterans involvement. See AR Tab 280, at 83103–
08, 83124–28. Moreover, at the outset of the SSD document, the SSA stated: “Based upon the
9

Because offerors 8’s (Booz Allen) and 41’s (Harris) proposals were higher-priced and
technically superior to IBM’s proposal, the SSA was required to conduct best-value analyses to
determine whether to select those two proposals over IBM’s proposal. However, as noted below,
the SSA was not required to conduct best-value analyses with respect to the proposals from IBM
and the seven offerors other than offerors 8 (Booz Allen) and 41 (Harris) that were selected at
step one because the SSA found that the proposals submitted by the seven others were lowerpriced and technically superior or equal to IBM’s proposal. See infra Part II.D.3.a.

17

findings of the [SSEB] and the [SSAC] as presented to me on March 24, 2011, I compared the
proposals, giving appropriate consideration to the evaluation criteria set forth in the solicitation
and their relative importance.” AR Tab 280, at 3097. The SSA also stated: “These award
determinations are based on the relative importance of the evaluation factors, the SSEB’s
detailed evaluation of each of the offerors’ proposals and the comparative analysis of the
evaluation results reflected in the attachments to this [SSD document].” Id. Thus, the Court
rejects the claim that the SSA only considered the technical and price factors and weighted the
price factor equal to the technical factor.
3.

The SSA Properly Evaluated Strengths and Weaknesses of Offerors’
Proposals
a.

The SSA’s Findings of Technical Superiority and Equality Were
Rational and Adequately Documented

In order to conduct a best-value analysis, the SSA was required to find that the proposals
were both lower-priced and technically superior or equal to IBM’s proposal. See Carahsoft, 86
Fed. Cl. at 349 (“No amount of agency reasoning could justify selecting a higher-priced
proposal, where a lower-priced and technically equal proposal is available.”). The SSA
concluded that proposals from seven of the nine offerors that were selected at step one were
lower-priced and technically superior or equal to IBM’s proposal. These seven proposals were
submitted by offerors 7 (ASM Research), 10 (CACI), 15 (CCSI), 45 (HP), 81 ([***]), 90
(Systems Made Simple), and 91 (SRA International). 10 See AR Tab 280, at 83097–98. IBM has
challenged the SSA’s findings of technical superiority and equality with respect to these seven
lower-priced proposals, one of which was submitted by an SDVOSB—offeror 90 (Systems
Made Simple).
An SSA’s finding that certain proposals are technically equal is entitled to “great
weight.” See, e.g., Moorman’s Travel Serv., Inc.-Request for Reconsideration, B-219728 et al.,
1985 WL 57072, at *5 (Comp. Gen. Dec. 10, 1985). Absolute equality is not required to find
technical equality. See Consol. Eng’g Servs., 64 Fed. Cl. at 638 (“[S]he needed only to
determine that the proposals ‘were essentially equal as to all noncost factors.’” (quoting SAMS El
Segundo, LLC, B-291620, 2003 WL 1055212, at *13 (Comp. Gen. Feb. 3, 2003)); Alturdyne, B214103 et al., 1984 WL 46723, at *1 (Comp. Gen. Oct. 2, 1984).
10

The SSA expressly stated that the proposals from offerors 7 (ASM Research), 10 (CACI), 45
(HP), 90 (Systems Made Simple), and 91 (SRA International) were lower-priced and technically
superior to IBM’s proposal. See AR Tab 280, at 83097. The SSA also expressly stated that the
proposal from offeror 15 (CCSI) was lower-priced and technically equal to IBM’s proposal. See
AR Tab 280, at 83098. While the SSA did not expressly state that offeror 81’s ([***]) lowerpriced proposal was technically superior or equal to IBM’s proposal, the Court finds that this
determination was necessarily included in the SSA’s selection of offeror 81’s ([***]) proposal
over IBM’s proposal. See AR Tab 280, at 83097 (“Based on this comparison, I have determined
that the proposals submitted by Offerors 7 [(ASM Research)], 8 [(Booz Allen)], 10 [(CACI)], 15
[(CCSI)], 41 [([Harris)], 45 [(HP)], 81 [([***])], 90 [Systems Made Simple], and 91 [(SRA
International)] are the best overall proposals and most beneficial to the Government.”).

18

The sufficiency of the documentation of a finding of technical superiority or equality
depends on the record supporting the finding; for example, conclusory statements of superiority
or equality are insufficient when the record reflects differences in technical merit between a
protestor’s proposal and the selected proposal. See Magellan Health Servs., B-298912, 2007 WL
1469049, at *15 (Comp. Gen. Jan. 5, 2007) (“Notwithstanding the fact that Magellan’s FPR was
scored higher than Ceridian’s FPR, as documented by the TEP, the source selection decision is
devoid of any discussion as to how, or even if, the contracting officer determined before award
that the offerors’ proposals were technically equal.”); Johnson Controls World Servs., Inc., B289942 et al., 2002 WL 1162912, at *10 (Comp. Gen. May 24, 2002) (“Where, as here, the
evaluation record evidences relative differences in proposal merit, general statements of
equivalency are inadequate to show equivalency; the agency must compare the relative merits of
the proposals in a manner that reasonably supports a determination of equivalency.”); The
Jonathan Corp., B-199407 et al., 1982 WL 27712, at *4 (Comp. Gen. Sept. 23, 1982) (“We have
held that in explaining the basis for a determination that competing technical proposals are
essentially equal, procuring agencies may not rely on bare conclusionary statements, but must
provide factual explanation as to why the proposals are perceived as essentially equal. . . .
However, the amount of factual explanation provided regarding technical equality . . . will, of
course, vary from case to case depending on the circumstances.”), aff’d on reh’g, B-199407 et
al., 1982 WL 27561, at *1 (Comp. Gen. Nov. 17, 1982) (“[W]e see no merit in the contention
that the contracting officer was obligated to record why the proposals were scored technically
equal aside from a mere point score comparison.”).
Here, as a threshold matter, the Court finds that the SSA sufficiently documented her
findings of technical superiority and equality. The Court recognizes that the SSA stated in a
conclusory fashion that she compared all proposals. AR Tab 280, at 83097. She later stated in a
conclusory fashion that the proposals from offerors 7 (ASM Research), 10 (CAIC), 45 (HP), 90
(Systems Made Simple) and 91 (SRA International) were technically superior. AR Tab 280, at
83097. She also made such a conclusory statement with respect to the technical equality of the
proposals from IBM and offeror 15 (CCSI). AR Tab 280, at 83098. She failed to make even a
conclusory statement of technical equality with respect to IBM’s and offeror 81’s ([***])
proposals, although a finding of technical equality was necessarily implied. See supra note 10.
In addition to conclusory statements, the SSA alluded in her decision to the color-coded
table, see supra Part I.G, identifying the ratings of the 21 proposals in the final competitive range
for the technical factor, sample tasks technical sub-factor, individual sample tasks, management
technical sub-factor, past performance factor, SBPC factor, and veterans involvement factor.
The SSD document also appears to refer to certain briefing documents that contained greater
detail relating to the final evaluation reports. AR Tab 280, at 83097; see also AR Tab 279.
While the adequacy of the documentation raises concern, this is not a case like, for
example, Magellan Health Services or Johnson Controls, in which the record revealed
differences with respect to the proposals’ technical merits and yet the SSA found technical
superiority or equality without any explanation. The documentation and explanation here is
adequate to permit the Court to review the merits of the SSA’s findings of technical superiority
or equality. In holding that the documentation here is sufficient to explain the SSA’s findings of
technical superiority or equality, the Court does not mean to suggest that such documentation

19

and explanation would be sufficient to conduct a proper best-value tradeoff analysis when the
SSA must decide whether to select a higher-priced and technically superior proposal.
With respect to the merits of the SSA’s best-value determinations, the Court finds that the
SSA rationally concluded that the seven lower-priced proposals from offerors 7 (ASM
Research), 10 (CACI), 15 (CCSI), 45 (HP), 81 ([***]), 90 (Systems Made Simple), and 91 (SRA
International) were technically superior or equal to IBM’s proposal.
IBM advances two primary arguments regarding the SSA’s findings of technical
superiority or equality. First, IBM argues that the past performance factor was “normalized” or
“leveled.” However, IBM has not shown that its proposal differed qualitatively in terms of risk
based on past performance from proposals submitted by other offerors. Second, IBM repeatedly
notes that its proposal exceeded DVA’s requirement for work to be performed by small business
firms and goals for work to be performed by SDB, WOSB, HUB Zone small business, VOSB,
and SDVOSB firms by a greater percentage than did these seven offerors’ proposals. 11 IBM
argues that if the SSA had looked beyond the adjectival ratings for SBPC and the amount of
credit for veterans involvement the SSA would have found that IBM’s proposal was technically
superior to the proposals from offerors 7 (ASM Research), 10 (CACI), 15 (CCSI), 45 (HP), 81
([***]), 90 (Systems Made Simple), and 91 (SRA International). 12
Notwithstanding these differences in terms of the extent by which IBM’s proposal
exceeded DVA’s requirement with respect to small business firms generally and goals with
respect to specific types of small business firms in particular, the Court cannot conclude that the
SSA acted irrationally in finding the other proposals were technically superior or equal to
plaintiff’s proposal. As illustrated by the color-coded table cited in the SSA’s decision, see
supra Part I.G, all of the seven proposals except IBM’s received at least two ratings of “[***]” or
better on the individual sample tasks. IBM received two “[***]” ratings and an “[***]” rating.
As noted earlier, sample tasks constituted the most important sub-factor under the technical
factor, which was significantly more important than past performance. Accordingly, the Court
rejects IBM’s challenge to the SSA’s findings of technical superiority and technical equality.

11

IBM concedes that offeror 90 (Systems Made Simple), which was an SDVOSB firm, may
have proposed greater small business and veterans involvement than did IBM. See Pl.’s Mot. 26.
12

The proposals from IBM and offerors 7 (ASM Research), 10 (CACI), 15 (CCSI), and 45 (HP)
each received a “[***]” rating for SBPC. IBM’s proposal was rated better than offerors 81’s
([***]), 90’s (Systems Made Simple), and 91’s (SRA International) proposals for SBPC, which
only received “acceptable” ratings.
IBM’s proposal received “minor credit,” for veterans involvement, as did proposals from
offerors 7 (ASM Research), 10 (CACI), 15 (CCSI), 45 (HP), 81 ([***]), and 91 (SRA
International). The proposal from offeror 90 (Systems Made Simple), an SDVOSB firm,
received “full credit.”

20

b.

The SSA’s Best-Value Tradeoff Analyses of IBM’s Proposal and
Offeror 8’s (Booz Allen) and Offeror 41’s (Harris) Proposals Were
Well Documented and Explained

Having rejected IBM’s challenge to the awards to offerors 7 (ASM Research), 10
(CACI), 15 (CCSI), 45 (HP), 81 ([***]), 90 (Systems Made Simple), and 91 (SRA International)
because the SSA rationally found that the proposals submitted by these seven awardees were
technically superior or equal to IBM’s proposal, the Court turns to IBM’s challenge to the
awards to offerors 8 (Booz Allen) and 41 (Harris). These two awardees proposed prices that
were [***] million and [***] million, respectively, higher than IBM’s proposed price. Because
these two proposals were higher-priced and technically superior to IBM’s proposal, the SSA was
required to conduct best-value tradeoff analyses, which she did. See AR Tab 280, at 83103–08,
83124–28.
As an initial matter, the Court rejects IBM’s argument that the SSA’s best-value analyses
were flawed by DVA’s evaluation of IBM’s proposed SBPC. As explained above, DVA did not
act irrationally in rating IBM’s proposal as “[***]” with respect to SBPC and not finding any
significant strengths or additional strengths.
The Court also rejects IBM’s argument that the SSA “normalized” or “leveled” the past
performance factor. IBM has not demonstrated that its proposal was in fact superior to the
proposals from offerors 8 (Booz Allen) and 41 (Harris) under the past performance factor. The
Court also rejects IBM’s argument that the SSA failed to take into account the number of
enforceable agreements that IBM had with small business subcontractors and the significant
strengths that IBM shared with these two offerors. The Court previously rejected these
arguments when it rejected IBM’s claim of a disparate evaluation.
The Court finds that the SSA’s best-value tradeoff analyses with respect to proposals
from IBM and offeror 8 (Booz Allen), see AR Tab 280, at 83103–08, and proposals from IBM
and offeror 41 (Harris), AR Tab 280, 83124–28, were well explained, sufficiently documented,
and rational. See Serco, 81 Fed. Cl. at 496–97. This is not a case in which an SSA concluded
without explanation that a higher-priced and technically superior proposal was or was not worth
the premium. To the contrary, the SSA, in five- and six-page attachments to the SSD document,
compared the proposals to IBM’s proposal and thoroughly and rationally explained why the
proposals from offerors 8 (Booz Allen) and 41 (Harris) represented the best value to DVA
despite the fact that their prices were higher than IBM’s proposed price.
While IBM is correct that the SSA did not compare the difference in percentages with
respect to work to be performed by small business firms generally and specific types of small
business firms in particular, IBM has not demonstrated that it was prejudiced by the SSA’s
failure to do so. For example, offeror 8’s (Booz Allen) proposal would have still been far
superior to IBM’s proposal under the technical factor. Offeror 8’s (Booz Allen) proposal
received an “outstanding” for the overall technical factor, with “outstanding” ratings for the
sample tasks and management sub-factors. It also received an “outstanding” rating for the SBPC
factor. See AR Tab 280, 83096–97. Similarly, offeror 41’s (Harris) proposal was also superior
to IBM’s proposal under the technical and SBPC factors. Id.

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E.

DVA Conducted Meaningful Discussions

Under FAR Part 15, when conducting discussions “the contracting officer must . . .
indicate to, or discuss with, each offeror still being considered for award, deficiencies, significant
weaknesses, and adverse past performance information to which the offeror has not yet had an
opportunity to respond.” 13 FAR 15.306(d)(3). Despite this obligation, FAR states that the
contracting officer “is not required to discuss every area where the proposal could be improved”
and explains that the contracting officer has considerable discretion regarding the contents of the
discussions. Id.
Here, IBM challenges DVA’s failure to discuss “significant weaknesses” in its sample
tasks as required by FAR 15.306(d)(3). Pl.’s Mot. 33. However, the Solicitation did not permit
DVA to discuss with IBM its sample tasks. See AR Tab 3, at 251. By not previously
challenging this portion of the Solicitation that made clear that DVA could not discuss sample
tasks proposals with offerors, IBM has waived the challenge. Blue & Gold, 492 F.3d at 1313.
IBM’s remaining challenge is that DVA failed to inform IBM that it “(1) [would] g[i]ve
great weight to ‘bilateral’ agreements, an undefined term that is not included as an evaluation
factor in the solicitation; and (2) . . . would use pass/fail evaluation criteria for all non-veteran[-]
owned businesses.” Pl.’s Mot. 33–34. IBM has merely recast its previously rejected claims that
the SSA engaged in disparate treatment with respect to the SBPC factor and improperly
introduced a new factor into the evaluation of veterans involvement as claims with respect to
discussions. For the reasons stated earlier, the Court rejects those claims.
CONCLUSION
Based on the foregoing, the Court DENIES IBM’s motion for judgment on the
administrative record and GRANTS defendant’s and defendant-intervenor HP’s cross-motions
for judgment on the administrative record. The Clerk shall enter judgment accordingly.
Some information contained herein may be considered protected information subject to
the protective order entered in this action on August 31, 2011 (docket entry 25). This Opinion
and Order shall therefore be filed under seal. The parties shall review the Opinion and Order to
determine whether, in their view, any information should be redacted in accordance with the
terms of the protective order prior to publication. The Court FURTHER ORDERS that the

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Additionally, the FAR “encourage[s]” contracting officers to include in their discussions other
aspects of a proposal at issue that could, if amended or explained, increase the likelihood that the
proposal will result in an award. FAR 15.306(d)(3).

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parties shall file, by Monday, November 28, 2011, a joint status report identifying the
information, if any, they contend should be redacted, together with an explanation of the basis
for each proposed redaction.
IT IS SO ORDERED.
s/ George W. Miller
GEORGE W. MILLER
Judge

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