COHEN FINANCIAL SERVICES, INC. v. USA

Filing 49

PUBLISHED OPINION granting preliminary injunction. Signed by Judge Susan G. Braden. (mk) Copy to parties.

In the United States Court of Federal Claims
No. 13-37
Filed under seal: March 27, 2013 *
Reissued for publication: April 4, 2013
*******************************************
*
Bid protest;
COHEN FINANCIAL SERVICES, Inc.,
*
FDIC Acquisition Policy Manual ¶ 3.210(c)
*
(price evaluation);
Plaintiff,
*
FDIC Acquisition Procedures, Guidance,
*
and Information
v.
*
3.206(a)(2) (required price analysis in
*
best value procurements);
THE UNITED STATES,
*
3.210(c)(2) (price realism);
*
3.214 (documentation of source
Defendant,
*
selection);
*
5 U.S.C. § 706(2)(A) (review under the
and
*
Administrative Procedure Act);
*
28 U.S.C. § 1491(b)(4) (review of bid
MIR MITCHELL & COMPANY, LLP,
*
protests).
*
Defendant-Intervenor.
*
*
*******************************************
Jason A. Carey, Luke W. Meier, McKenna Long & Aldridge, Washington, D.C., Counsel for
Plaintiff.
Corinne A. Niosi, United States Department of Justice, Civil Division, Washington, D.C.,
Counsel for Defendant.
Scott McCaleb, Wiley Rein, LLP, Washington, D.C., Counsel for Intervenor-Defendant.
MEMORANDUM OPINION AND ORDER
BRADEN. Judge.

*

On March 27, 2013, the court asked the parties to suggest deletions from the public
version of any confidential and/or privileged information, and to note any citation or editorial
errors requiring correction. The court received one correction and incorporated it in footnote 2.

I.

RELEVANT FACTUAL BACKGROUND. 1
A.

The Solicitation.

On July 2, 2012, the Federal Deposit Insurance Corporation (“FDIC”) issued Solicitation
No. RECVR-12-R-0088 (“Solicitation”). AR Tab 5 at 28-150. The purpose of the Solicitation
was to provide business operations support services for the FDIC’s Division of Resolutions and
Receiverships. AR Tab 5 at 37. To provide those services, the Solicitation required that a core
group of contract workers be available in six functional areas—cash management, financial
processing, general accounting, tax, securities accounting, and global functions—plus the
capability to expand the number of workers quickly in the event of an increased workload. AR
Tab 5 at 37, 40. Staffing levels could be as low as ten workers and as high as 131. AR Tab 5 at
31, 42. The period of performance was to run from the signing of the contract through
December 31, 2014, but the FDIC had the option to extend the performance period for four
additional one-year periods. AR Tab 5 at 38.
The Solicitation required each offeror to propose a single hourly pay rate for six pay
grades: project manager, team lead, senior professional, professional, technician, and
administration. AR Tab 5 at 31-32. Although there were only those six pay grades, the
Solicitation required a workforce able to deliver services in seventeen specializations. AR Tab 5
at 39. Offerors were required to “demonstrate that proposed key personnel possess the necessary
experience and qualifications.” AR Tab 5 at 143.
The Agency was required to award the contract based on best value, considering three
elements, in descending order of importance: Mission Capability, Past Performance, and Price.
AR Tab 5 at 146. Although Price was listed third in order of importance, “[t]he degree of
importance of price as a factor . . . could increase depending upon how equally matched the
competing proposals are for the other factors evaluated. When competing proposals are judged
to be equal upon evaluation of the other factors considered in the best value analysis, total price
and other price factors would become the most significant factor.” AR Tab 5 at 146. The price
proposals were to be “evaluated with respect to completeness, reasonableness, and realism.” AR
Tab 5 at 149. Under realism, the Solicitation stated, “Labor rates that do not reflect a reasonable
compensation for the skill required in a labor category will be considered unrealistic.” AR Tab 5
at 150.
B.

The Proposals.

Eight offerors, including Cohen Financial Services, Inc. (“Cohen” or “Plaintiff”) and
defendant-intervenor Mir Mitchell & Company, LLP (“MMC” or “Intervenor”), submitted
proposals in response to the Solicitation. AR Tab 9 at 812. The two proposals at issue here are
those of Cohen and MMC.

1

The relevant facts were derived from the January 25, 2013 Administrative Record, as
supplemented on February 4 and 13, 2013 (“AR Tab 1-69 at 1-2922”).

2

Cohen submitted a timely proposal. AR Tab 7 at 153-612 (undated proposal); AR Tab 9
at 812 (FDIC abstract showing Cohen’s submission was on time). The members of the FDIC’s
Technical Evaluation Panel (“Panel”) rated Cohen’s proposal as follows:
Maximum
points available
Mission Capability
Technical approach
Management plan
Key personnel
Total*
Past Performance
Oral Presentation
Management plan overview
Transition plan overview
Capability to provide contractor
support in Dallas and D.C.
Key personnel and maintenance
of core competence
Past experience supporting the
banking industry/failed
financial institutions
Total*

40
45
15
100

(no subtotal)
(no subtotal)
(no subtotal)

25
15
15

(no subtotal)

25

(no subtotal)

20

100

* The evaluation form contained a line labeled “CONSENSUS” but no line labeled “Total,” so
that the format of the evaluations was not consistent. For example,
’s Mission Capability
subtotals added up to
; she listed
on the “CONSENSUS” line. As to Oral
Presentation,
wrote
on the CONSENSUS line, but noted and circled her total of
elsewhere on the page.
wrote
on the CONSENSUS line and also “MY
SCORE
” elsewhere on the sheet;
’s total was
, on the CONSENSUS line.
AR Tab 11 at 838-94.

3

On July 31, 2012, MMC also timely submitted a proposal. AR Tab 8 at 613-811
(proposal); AR Tab 9 at 812 (FDIC abstract showing MMC’s submission was on time). The
Panel rated MMC’s proposal as follows:
Maximum
points available
Mission Capability
Technical approach
Management plan
Key personnel
Total*
Past Performance
Oral Presentation
Management plan overview
Transition plan overview
Capability to provide contractor
support in Dallas and D.C.
Key personnel and maintenance
of core competence
Past experience supporting the
banking industry/failed
financial institutions
Total*

40
45
15
100

(no subtotal)
(no subtotal)
(no subtotal)

(no subtotal)

25
15
15

(no subtotal)

(no subtotal)

25

(no subtotal)

(no subtotal)

20

100

* Again, the evaluation form contained a line labeled “CONSENSUS,” but no line labeled
“Total,” so that the format of evaluations was not consistent. For Oral Presentation,
listed
, presumably his total;
listed
on the CONSENSUS line, but circled
her total,
, elsewhere on the page.
listed
on the CONSENSUS line.
AR Tab 12 at 895-958.
After the Panel members completed individual ratings, they held a “meeting and
determined a consensus rating for each Offeror’s technical proposal.” AR 27 at 1411. Those
consensus ratings and the initial prices were as follows:
Offeror
MMC
Cohen

Score
75
80
80
85
70
70
60
45

Past Performance
Very Good/Significant Confidence
Very Good/Significant Confidence
Very Good/Significant Confidence
Excellent/High Confidence
Satisfactory/Confidence
Satisfactory/Confidence
Neutral/Neutral
Moderate/Low Confidence

AR 27 at 1412.

4

Initial Price Minority Status

Then, the Contracting Officer (“CO”) determined that the proposals of MMC, Cohen,
were within the competitive range and held discussions with each of those offerors. AR
Tab 27 at 1419.
On September 4, 2012, the FDIC sent MMC and Cohen requests for best and final offers
(“BAFO”). AR Tab 13 at 959-60; AR Tab 14 at 961-62. The letter to MMC listed the following
areas “that may benefit from improvement”:
AR Tab 14 at 962. On September 5, 2012,
Cohen sent the FDIC an email requesting clarification. AR Tab 16 at 966. On September 6,
2012, the FDIC responded that it “Need[ed] more information re:
” AR Tab 17 at 968.
On September 11, 2012, MMC submitted its BAFO. AR Tab 18 at 971-1053. Cohen
also submitted its BAFO. AR Tab 19 at 1054-1330 (undated). On September 13, 2012, Cohen
and MMC were invited to make oral presentations. AR Tab 20 at 1331; AR Tab 21 at 1332.
On October 10, 2012, the Panel issued a report, concluding that MMC represented “the
overall Best Value for the FDIC” and recommending that the contract be awarded to MMC. AR
Tab 27 at 1408-23. The Panel summarized the selection data as follows:
Offeror
MMC
Cohen

BAFO Technical Score
75
80

Oral Technical Score
88
88

Total Technical Score BAFO Price
163
$11,496,293
168

AR 27 at 1422.
The Panel further explained that “the three competing proposals were determined to be
generally equal when comparing actual Mission Capability scores when combined for the
Technical Evaluation and the Oral Presentation as well as the Past Performance factors.” AR
Tab 27 at 1423. “[T]he types of services being offered by these companies did not warrant the
higher costs proposed by [Cohen] or by
.” AR Tab 27 at 1423.
On November 8, 2012, the FDIC finalized its Selection Recommendation Report and
approved awarding the Receivership Basic Ordering Agreement for Business Operations Support
Services to MMC. AR Tab 31 at 1443. On November 28, 2012, the FDIC awarded MMC a
contract, effective January 1, 2013. AR Tab 32 at 1447.
On December 7, 2012, the CO responded to Cohen’s request for a debriefing with a letter
stating, “
” AR Tab 41 at 1782. On December 12, 2012, Cohen filed a protest with the
FDIC. AR Tab 34 at 1560-1769. On December 13, 2012, Cohen submitted a correction to its
December 12, 2012 protest. AR Tab 35 at 1770. Cohen based its protest on the FDIC’s failure
to notify it of “any deficiencies in its proposal relating to price.” AR Tab 34 at 1561. On
December 27, 2012, the FDIC denied Cohen’s protest, because at the time it held discussions
with the offerors, the FDIC was concerned only about whether the prices were within the
competitive range—and Cohen’s price was within that range. AR Tab 37 at 1774-77.

5

II.

PROCEDURAL HISTORY.

On January 15, 2013, Cohen filed a post-award bid protest Complaint (“Compl.”) in the
United States Court of Federal Claims, alleging that the FDIC violated section 3.210(c)(2) of its
Acquisition Procedures, Guidance, and Information (“PGI”) and the terms of the Solicitation by
failing to perform a reasonable price realism analysis of MMC’s proposal. Compl. ¶¶ 93-101.
The January 15, 2013 Complaint also alleges that the FDIC improperly relied on MMC’s
misrepresentations about the key personnel that MMC intended to hire. Compl. ¶¶ 102-113.
On the same day, Cohen also filed a Motion For Temporary Restraining Order And
Preliminary Injunction, a Motion For Leave To File Under Seal, and a Motion For A Protective
Order. On January 16, 2013, the court held a telephone conference to consider Cohen’s motions.
Pursuant to that telephone conference, on January 17, 2013, Cohen’s Motion For A Protective
Order was granted, and the FDIC voluntarily issued a stop work order of up to ninety days,
pending resolution of this case. AR Tab 39 at 1779. On January 18, 2013, the FDIC modified
its contract with Cohen to rescind the January 31, 2013 Termination for Convenience to set a
new expiration date on April 13, 2013. AR Tab 40 at 1781.
On January 18, 2013, MMC filed an Unopposed Motion To Intervene, that the court
granted on January 22, 2013.
On January 25, 2013, the Government filed an Unopposed Motion For Leave To File The
Administrative Record On DVD, that the court granted on the same day.
On February 4, 2013, the Government filed a Motion For Leave To Correct The
Administrative Record (“2/4/13 Gov’t Mot. Supp.”). 2 On February 5, 2013, Cohen requested a
status conference regarding the Administrative Record. On February 6, 2013, the court granted
Cohen’s Motion and held a telephone status conference. On February 13, 2013, the Government
filed a Second Motion For Leave To Correct The Administrative Record (“2/13/13 Gov’t Mot.
Supp.”). 3
2

The Government’s February 4, 2013 Motion requested to supplement the
Administrative Record with: technical and price proposals from offerors, other than Cohen and
MMC; the FDIC evaluations and Panel evaluation sheets; post-BAFO Panel evaluations of all
proposals; the FDIC’s communications with offerors; past performance questionnaires for Cohen
and MMC; three pages omitted from the evaluation worksheets in the Administrative Record;
and more legible copies of pages already in the Administrative Record. MMC objected to the
inclusion of: the technical proposals of offerors other than MMC and Cohen; material pertaining
to the FDIC’s evaluation of those proposals; and past performance questionnaires for Cohen and
MMC. 2/4/13 Gov’t Mot. Supp. at 1-3 & n.2. Since all of the documents at issue fall within the
list of Administrative Record “core documents relevant to a protest case,” the court has
determined that it must grant the Government’s February 4, 2013 Motion. See RCFC App. C ¶
22.
3

The Government’s February 13, 2013 Motion requested to supplement the
Administrative Record with emails pertaining to the procurement that were exchanged between
the CO and potential offerors. 2/13/13 Gov’t Mot. Supp. at 2. Again, since these emails are
6

On February 8, 2013, Cohen filed a Motion For Judgment On The Administrative Record
(“Pl. Mot. JAR”) and a First Amended Complaint (“Am. Compl.”) that alleged that the FDIC:
failed to perform and document price realism analysis, as required by its regulations and the
Solicitation; acted arbitrarily and capriciously in its erroneous evaluation of MMC’s mission
capability; and violated its regulations by relaxing the minimum requirements set forth in the
Solicitation. On February 22, 2013, the Government filed a Cross-Motion For Judgment Upon
The Administrative Record And Response (“Gov’t Mot. JAR”). On the same day, MMC filed a
Cross Motion For Judgment On The Administrative Record (“Int. Mot. JAR”). On March 5,
2013, Cohen filed a Reply (“Pl. Reply”). On March 15, 2013, the Government filed a Reply
(“Gov’t Reply”) and MMC filed a Reply (“Int. Reply”).
III.

DISCUSSION.
A.

Jurisdiction.

The February 8, 2013 post-award bid protest First Amended Complaint alleges that the
November 28, 2012 award to MMC violated FDIC Acquisition Policy Manual (“APM”) ¶
3.210(c) and PGI §§ 3.210(c)(2), 3.214(a)(2), because the FDIC failed to evaluate price realism
and document that analysis in a written report. Am. Compl. ¶¶ 117-24. The February 8, 2013
Amended Complaint also alleges that the FDIC acted without a rational basis when it failed to
downgrade MMC’s proposal that relied on unqualified and geographically unavailable
personnel. Am. Compl. ¶¶ 125-34. The February 8, 2013 Amended Complaint further alleges
that in awarding MMC a contract, despite the presence of three unqualified members on MMC’s
proposed management team, the FDIC improperly relaxed the Solicitation’s requirements. Am.
Compl. ¶¶ 135-39. The February 8, 2013 Amended Complaint also seeks a permanent injunction
requiring the FDIC to set aside the November 28, 2012 award of a business operations support
contract to MMC. Am. Compl. at 27.
Pursuant to 28 U.S.C. § 1491(b)(1) (2006), the United States Court of Federal Claims has
jurisdiction
to render judgment on an action by an interested party objecting to a solicitation
by a Federal agency for bids or proposals for a proposed contract or to a proposed
award or the award of a contract or any alleged violation of statute or regulation
in connection with a procurement or a proposed procurement.
28 U.S.C. § 1491(b)(1) (2006).
Accordingly, 28 U.S.C. § 1491(b)(1) authorizes the court to adjudicate the claims alleged
in the February 8, 2013 Amended Complaint.
B.

Standing.

“core documents relevant to a protest case,” the court has determined it must grant the
Government’s February 13, 2013 Motion. RCFC App. C ¶ 22(i).

7

As a threshold matter, a plaintiff contesting the award of a federal contract must establish
that it is an “interested party” to have standing under 28 U.S.C. § 1491(b)(1). See Myers
Investigative & Sec. Servs., Inc. v. United States, 275 F.3d 1366, 1369 (Fed. Cir. 2002)
(“[S]tanding is a threshold jurisdictional issue.”). The United States Court of Appeals for the
Federal Circuit has construed the term “interested party” to be synonymous with the definition of
“interested party” provided in the Competition in Contracting Act of 1984, 31 U.S.C. §
3551(2)(A) (“CICA”). See Rex Serv. Corp. v. United States, 448 F.3d 1305, 1307 (Fed. Cir.
2006) (citing decisions adopting the CICA definition of “interested party” to convey standing
under 28 U.S.C. § 1491(b)(1)). A two-part test is applied to determine whether a protester is an
“interested party,” a protestor must establish that: “(1) it was an actual or prospective bidder or
offeror, and (2) it had a direct economic interest in the procurement or proposed procurement.”
Distrib. Solutions, Inc. v. United States, 539 F.3d 1340, 1344 (Fed. Cir. 2008).
Cohen was one of the three offerors that met the best value requirements of the
Solicitation and was selected to make an oral presentation. AR Tab 31 at 1441. In addition,
Cohen received the highest technical evaluation of the three offerors asked to submit oral
presentations, and Cohen’s price was lower than that of the other unsuccessful offeror. AR Tab
31 at 1441. Therefore, Cohen is an “interested party.”
A second standing requirement that the protestor must satisfy is that the alleged errors in
the procurement were prejudicial. See Labatt Food Serv., Inc. v. United States, 577 F.3d 1375,
1378 (Fed. Cir. 2009) (“It is basic that because the question of prejudice goes directly to the
question of standing, the prejudice issue must be reached before addressing the merits.”)
(internal quotation marks omitted); see also Myers, 275 F.3d at 1370 (“[P]rejudice (or injury) is a
necessary element of standing.”). Prejudice is demonstrated where the protestor “can show that
but for the error, it would have had a substantial chance of securing the contract.” Labatt, 577
F.3d at 1378. A proper standing inquiry, however, should not conflate the requirements of
“direct economic interest” and prejudicial error. Id. at 1380 (explaining that examining
economic interest but excluding prejudicial error from the standing inquiry “would create a rule
that, to an unsuccessful but economically interested offeror in a bid protest, any error is
harmful”).
If, as Cohen asserts, a proper price realism analysis and fidelity to the Solicitation’s
personnel qualification requirements would have led the FDIC to reject MMC’s proposal, Cohen
would have had a substantial chance of securing the contract. AR Tab 31 at 1441 (showing that
Cohen received the highest evaluation of the three offerors asked to submit oral presentations,
plus a lower price than the other unsuccessful offeror). Therefore, the court has determined that
Cohen has standing to contest the award of the contract at issue in this case.
C.

Standard Of Review.

Pursuant to the Tucker Act, 28 U.S.C. § 1491, as amended by the Administrative Dispute
Resolution Act, Pub. L. No. 104-320 § 12, 110 Stat. 3870, 3874 (Oct. 19, 1996), the United
States Court of Federal Claims is required to review challenges to an agency decision, pursuant
to the standards set forth in the Administrative Procedure Act (“APA”). 28 U.S.C. § 1491(b)(4)

8

(“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.”); see also 5 U.S.C. § 706(2)(A) (2006) (The
reviewing court shall “hold unlawful and set aside agency action, findings, and conclusions
found to be . . . arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with
law.”); Banknote Corp. of Am., Inc. v. United States, 365 F.3d 1345, 1350 (Fed. Cir. 2004)
(“Among the various APA standards of review in section 706, the proper standard to be applied
in bid protest cases is provided by 5 U.S.C. § 706(2)(A): a reviewing court shall set aside the
agency action if it is ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance
with law.’”). The United States Court of Appeals for the Federal Circuit has provided the trial
courts with specific guidance in how to analyze the required showings for injunctive relief under
APA standards.
The United States Court of Appeals for the Federal Circuit has held that a bid award may
be set aside if “the procurement procedure involved a violation of regulation or procedure.”
Weeks Marine, Inc. v. United States, 575 F.3d 1352, 1358 (Fed. Cir. 2009). The United States
Court of Appeals for the Federal Circuit has clarified, however, that when a contract award is
challenged, based on a regulatory or procedural violation, “the disappointed bidder must show a
clear and prejudicial violation of applicable statutes or regulations.” Axiom Res. Mgmt. v. United
States, 564 F.3d 1374, 1381 (Fed. Cir. 2009) (internal quotation marks omitted).
If an award decision is challenged as arbitrary, capricious or lacking a rational basis, the
trial court “must sustain an agency action unless the action does not evince rational reasoning
and consideration of relevant factors.” Savantage Fin. Servs. v. United States, 595 F.3d 1282,
1287 (Fed. Cir. 2010) (internal alterations, quotation marks, and citations omitted); see also
Centech Grp., Inc. v. United States, 554 F.3d 1029, 1037 (Fed. Cir. 2009) (holding that the trial
court must “determine whether the contracting agency provided a coherent and reasonable
explanation of its exercise of discretion, and the disappointed bidder bears a heavy burden of
showing that the award decision had no rational basis”).
Moreover, the court may set aside a procurement “only in extremely limited
circumstances.” United States v. John C. Grimberg Co., Inc., 702 F.2d 1362, 1372 (Fed. Cir.
1983). This rule recognizes a zone of acceptable results in each particular case and requires that
the final decision evidences that the agency “considered the relevant factors” and is “within the
bounds of reasoned decision making.” Baltimore Gas & Elec. Co. v. Natural Res. Def. Council,
Inc., 462 U.S. 87, 105 (1983); see also Weeks Marine, 575 F.3d at 1368-69 (“We have stated that
procurement decisions invoke . . . highly deferential rational basis review. . . . Under that
standard, we sustain an agency action evincing rational reasoning and consideration of relevant
factors.”) (internal quotation marks and citations omitted).
The existence of a material issue of fact, however, does not prohibit the court from
granting a motion for judgment on the administrative record, nor is the court required to conduct
an evidentiary proceeding. See Bannum v. United States, 404 F.3d 1346, 1353-54 (2005)
(“RCFC [52.1] requires the [United States] Court of Federal Claims, when making a prejudice
analysis in the first instance, to make factual findings from the record evidence as if it were
conducting a trial on the record.”).

9

D.

Issues Raised By Plaintiff’s Motion For Judgment On The Administrative
Record.
1.

Whether The Agency’s Evaluation Of Defendant-Intervenor’s
Mission Capability Was Based On Critical And Objective Errors.
a.

The Experience And Qualifications Of Key Personnel.
i.

The Plaintiff’s Argument.

Cohen asserts that the FDIC made a critical and objective error in awarding MMC a
strength based on a finding that the “[e]xperience and backgrounds” of the proposed MMC
management team mirrors “industry experience required in the [Statement of Work].” Pl. Mot.
JAR at 33 (quoting AR Tab 27 at 1412). Cohen argues that the Solicitation listed positionspecific qualifications for key personnel and that three of the
members of MMC’s
proposed management team failed to meet those minimum requirements. Pl. Mot. JAR at 33.
The
Lead lacked the minimum five years’ experience working with
in a financial
processing or accounting operations environment, AR Tab 18 at 1044, both
Leads lacked
the required
, AR Tab 18 at 1046, 1049. Had the FDIC properly evaluated the
qualifications of MMC’s management team and the location of MMC’s staff, MMC would have
received “a much lower Mission Capability score, and likely found MMC’s proposal deficient
for proposing unqualified personnel.” Pl. Mot. JAR at 33-34. As a result, Cohen would have
had a substantially increased advantage in the most important technical factor and would have
received the contract award as the best value offeror. Pl. Mot. JAR at 33-34.
ii.

The Government’s Response.

The Government responds that the Solicitation “did not require offerors to propose key
personnel for a ‘position.’” Gov’t Mot. JAR at 34. Offerors were required “to submit resumes to
demonstrate only that the key personnel had expertise in ‘each of the six functional areas’
described in the [Solicitation.]” Gov’t Mot. JAR at 34 (quoting AR Tab 5 at 141). The
Solicitation allowed offerors to identify “key personnel with ‘similar experience’ to that called
for in the [Solicitation].” Gov’t Mot. JAR at 34 (quoting AR Tab 5 at 141). The Government
concedes that personnel who do not meet the requirements for a position listed in the Solicitation
“cannot be assigned to that position[.]” Gov’t Mot. JAR at 35 (citing AR Tab 5 at 71). But the
Government argues that the Solicitation’s requirements for including personnel in a proposal are
less stringent. Gov’t Mot. JAR at 34. In fact, Cohen’s proposal listed key personnel who “did
not meet the minimum requirements for the position that Cohen identified they would fill.”
Gov’t Mot. JAR at 35 (citing AR Tab 19 at 1203, 1212 (showing that
of Cohen’s
proposed
did not have the required
experience); AR Tab 19 at 1206-07
(demonstrating that Cohen’s proposed
did not have the required education, but the FDIC
waived that requirement on 10/11/2011); AR Tab 19 at 1221 (demonstrating that Cohen’s
proposed
lacked the required
experience in banking or related industry); AR Tab
19 at 1236-37 (showing that Cohen’s proposed
did not have the required
experience)).

10

iii.

The Intervenor-Defendant’s Response.

MMC responds that Cohen “fundamentally misconstrue[s]” the Solicitation’s personnel
qualification requirements. Int. Mot. JAR at 22. “[T]he Solicitation did not require proposed
key personnel to meet specific requirements, in general, nor did the Solicitation require key
personnel to meet the specific ‘
’ qualifications in the
or
functional areas.”
Int. Mot. JAR at 22. MMC’s “proposed key personnel had sufficient depth of experience that
was similar to the [Statement of Work’s] functional areas, and therefore the strength that
evaluators assigned was consistent with the Solicitation’s instructions and evaluation scheme.”
Int. Mot. JAR at 22. Therefore, Cohen cannot establish “prejudice sufficient to sustain its protest
or justify injunctive relief,” because “as many as
of [Cohen’s] proposed key personnel
did not meet the labor category descriptions outlined in the [Statement of Work.]” Int.
Mot. JAR at 22-23.
iv.

The Court’s Resolution.

Interpretation of the Solicitation is a question of law and it “must be considered as a
whole and interpreted so as to harmonize and give reasonable meaning to all of its parts.” NVT
Techs., Inc. v. United States, 370 F.3d 1153, 1159 (Fed. Cir. 2004); see also Banknote, 365 F.3d
at 1353 (stating that interpretation of a solicitation is a question of law). In this case, one part of
the solicitation states that: “The offeror must identify and demonstrate that proposed key
personnel possess the necessary experience and qualifications.” AR Tab 5 at 143. Another part
states: “[The Key Personnel] Subfactor is met when the Offeror has identified and demonstrated
that it possesses the specified experience and qualifications through the depth of its resources,
including Key Personnel with similar experience.” AR Tab 5 at 141. Cohen’s reading of the
Solicitation is consistent with the first sentence, but not the second. If the proposed key
personnel must satisfy every experience and qualification requirement in a formalistic way, then
the second sentence would have required key personnel to have “the specified experience” rather
than “similar experience.” The court therefore reads the Solicitation as not requiring a perfect
match between the individual position requirements in the Solicitation and the experience of the
offerors’ proposed key personnel.
This interpretation is consistent with the doctrine that “the language of a contract must be
given that meaning that would be derived from the contract by a reasonably intelligent person
acquainted with the contemporaneous circumstances.” Metric Constructors, Inc. v. Nat’l
Aeronautics & Space Admin., 169 F.3d 747, 752 (Fed. Cir. 1999) (quoting Hol–Gar Mfg. Corp.
v. United States, 351 F.2d 972, 975 (Ct. Cl. 1965)); see also Banknote, 365 F.3d at 1353 n.4
(stating that the principles for interpreting contracts apply equally to interpreting solicitations).
MMC and Cohen could each be described as a “reasonably intelligent person acquainted with the
contemporaneous circumstances,” and they each proposed personnel consistent with an
understanding that the Solicitation required proposed key personnel to have “similar experience”
to the Solicitation’s position requirements. MMC filled twenty pages of its proposal with tables
evidencing how its key personnel complied with the Solicitation’s position-specific
requirements, as well as where those personnel failed to satisfy the position-specific
requirements. AR Tab 18 at 1031-50. MMC also provided details to show that its personnel had
similar experience to the experience required. AR Tab 18 at 1044 (“
does not meet the

11

five year requirement; however, he has
for the FDIC on approximately
separate
bank closings.”); AR Tab 18 at 1046 (“
does not have the
; however, he was a
Director and Manager of the finance department for
for approximately
years. As
a result, he oversaw very large projects all over the globe for the company.”); AR Tab 18 at 1049
(“
does not have a
; however, he has held senior management positions and was
the team leader for
at the FDIC offices in Dallas.”). Similarly, where one of Cohen’s
proposed key personnel failed to meet a position-specific requirement, Cohen explained that she
had similar experience. AR Tab 19 at 1206-07 (“Education requirement waived due to relevant
performance by Oversight Management on 10/11/2011.”). In addition, another of Cohen’s key
personnel listed only
years of experience instead of the
required for a
or
of specialized experience required of a
, but his resume listed
bullet points
to show that the quality of his experience made up for its brevity. AR Tab 19 at 1236-37
(resume); AR Tab 5 at 67-68 (requirements for a generic senior professional); AR Tab 5 at 97-98
(requirements for a Securities Accounting Senior Professional). Therefore, both MMC and
Cohen’s proposals evidence that “a reasonably intelligent person acquainted with the
contemporaneous circumstances” would interpret the Solicitation to require key personnel to
have only similar experience to the listed requirements.
For these reasons, the court has determined that the FDIC did not make a critical and
objective error or act in an arbitrary or capricious manner in concluding that the “[e]xperience
and backgrounds of the proposed [MMC] management team mirrors industry experience
required in the [Statement of Work].”
b.

The Location And Qualifications of Intervenor-Defendant’s
Staff.
i.

The Plaintiff’s Argument.

The FDIC credited MMC with
Mission Capability strengths. Cohen argues that
the Administrative Record contradicts two of those findings: (1) MMC had a “[p]ool of
professional staff in core areas . . . available to meet staffing needs in Dallas and D[.]C[.],” and
(2) the “[e]xperience and backgrounds of the proposed management team mirrors industry
experience required in the [Solicitation’s Statement of Work].” Pl. Mot. JAR at 31 (quoting AR
Tab 27 at 1412 (Panel Report) (emphasis added in brief) and citing AR Tab 31 at 1434
(Selection Recommendation Report using the same language to describe MMC’s Mission
Capability strengths)). In fact, MMC’s proposal claimed only a “core base of over
professionals working on client assignments throughout the United States[.]” Pl. Mot. JAR at 32
(quoting AR Tab 18 at 998, 1010 (MMC’s BAFO) (emphasis added in brief)). Nothing in
MMC’s proposal, however, indicates that those
professionals are available in Dallas and
Washington, D.C. Pl. Mot. JAR at 32. Furthermore, nothing in MMC’s proposal supports the
FDIC’s finding that MMC’s self-described “core base” of professionals perform work in what
the Agency described as “core areas” of the Solicitation. Pl. Mot. JAR at 32.

12

ii.

The Government’s Response.

The Government responds that the FDIC’s evaluations of MMC’s mission capability are
discretionary and supported by the record. Gov’t Mot. JAR at 29. Contrary to Cohen’s
assertion, the Panel report concluded only that MMC’s
professionals were “available to
meet staffing needs in Dallas and D[.]C[.],” not that they were concentrated in those areas.
Gov’t Mot. JAR at 30. The Panel was under no misapprehension about the location of MMC’s
employees. Gov’t Mot. JAR at 31 (quoting Panel evaluation sheets stating that “>
[of
them were] in D[.]C[.]—
in Dallas” (AR Tab 12 at 910), “located both D[.]C[.], Dallas—
” (AR Tab 12 at 924), and “Local Co. w/
employees in Dallas” (AR Tab 12 at
4
927)). Furthermore, the Government asserts that the court should not delve into the minutiae of
the procurement process and substitute its judgment for the agency’s regarding the proposals’
relative merits. See Beta Analytics Int’l, Inc. v. United States, 67 Fed. Cl. 384, 395 (2005) (“The
evaluation of proposals for their technical excellence or quality is a process that often requires
the special expertise of procurement officials, and thus reviewing courts give the greatest
deference possible to these determinations.”) (citing E.W. Bliss Co. v. United States, 77 F.3d 445,
449 (Fed. Cir. 1996) (“[T]he minutiae of the procurement process in such matters as technical
ratings and the timing of various steps in the procurement . . . involve discretionary
determinations of procurement officials that a court will not second guess.”)).
iii.

The Intervenor-Defendant’s Response.

MMC asserts that “neither MMC’s proposal nor the assigned strength states that ‘each
and every one’ of the
professionals described in MMC’s proposal is currently located in
either Dallas or Washington, D[.]C[.] or working in ‘core areas’ of the [Solicitation].” Int. Mot.
JAR at 18-19. MMC’s proposal stated, instead, that MMC “‘currently employs over
personnel in the Washington, D.C. area’ and, during the previous 18 months, had ‘employed
over
personnel in the Dallas, Texas metropolitan area.’” Int. Mot. JAR at 19 (quoting
AR Tab 18.1 at 977). In addition, MMC’s proposal stated that MMC deployed more than
Dallas residents on FDIC contracts during the recent financial crisis. Int. Mot. JAR at 19
(citing AR Tab 18.1 at 977). The Panel’s worksheets establish that the panel understood the
location of MMC’s employees. Int. Mot. JAR at 20 (quoting Panel evaluation sheets stating that
“>
[of MMC’s employees were] in D[.]C[.]—
in Dallas” (AR Tab 12 at 910);
“over
in Dallas now known to be qualified and available—
” (AR Tab 12 at 912);
“
in D[.]C[.] . . .
Dallas residents deployed . . .
employed in Dallas” (AR
Tab 12 at 922); “Local co. w/
employees in Dallas. PM travel to/from D[.]C[.] . . .
Management plan includes
in D[.]C[.]” (AR Tab 12 at 927); “
in Dallas area” (AR
Tab 12 at 944); “
employees on staff . . .
@ FDIC—Dallas (#
total)” (AR
Tab 12 at 947); and “
@ FDIC . . .
Dallas” (AR Tab 12 at 953)). Finally, nothing
in the record supports Cohen’s claim that every one of the
personnel MMC referenced
“provides sophisticated financial and accounting services that are at the core of the
4

The Government’s brief quotes the first sheet as stating “
in Dallas” and the
second sheet as stating “D[.]C[.] & Dallas” instead of “D[.]C[.], Dallas.” Gov’t Mot. JAR at 31.
The court assumes that the discrepancies likely are due to the barely legible reproduction of the
handwritten evaluation sheets in the administrative record. AR Tab 12.

13

[Solicitation].” Int. Mot. JAR at 21. Therefore, the FDIC’s evaluation of MMC’s proposal
“reasonably reflected the benefits of MMC’s nationwide hiring capabilities and its existing
presence in the Dallas and Washington, D[.]C[.] areas[.]” Int. Mot. JAR at 22.
iv.

The Court’s Resolution.

The agency in a bid protest must provide “a coherent and reasonable explanation of its
exercise of discretion[.]” Centech Grp., 554 F.3d at 1037. There is nothing incoherent or
unreasonable about the Panel Report’s assertion that MMC’s “[p]ool of
professional staff
in core areas is available to meet staffing needs in Dallas and D[.]C.” AR Tab 27 at 1412. First,
MMC’s proposal states that the
members of its professional staff are involved in “either
or
, similar to that required under the Statement of Work.” AR Tab 18 at 998.
Therefore, the FDIC acted within its discretion in determining that those were “core areas,” a
phrase the Solicitation does not define. See E.W. Bliss Co., 77 F.3d at 449; see also AR Tab 5 at
28-150. Second, nothing in the Panel Report implies that all
members of MMC’s
staffing pool live in Dallas or Washington, D.C. The Panel Report says only that the pool is
“available to meet staffing needs” in those cities, and the record does not disprove that assertion.
For these reasons, the court has determined that there were no critical and objective errors nor
did FDIC act in an arbitrary and capricious manner in awarding MMC a Mission Capability
strength based on the characteristics of MMC’s professional staff pool.
2.

Whether The Agency Improperly Relaxed Minimum Solicitation
Requirements By Accepting Intervenor-Defendant’s Offer.
a.

The Plaintiff’s Argument.

Cohen asserts that an agency must either enforce the minimum standards established in
the Solicitation or amend the Solicitation and notify all offerors of the amendment. Pl. Mot. JAR
at 34 (citing Alfa Laval Separation, Inc. v. United States, 175 F.3d 1365, 1367-68 (Fed. Cir.
1999) (citing 48 C.F.R. § 15.606(a), (c) (1996) (requiring the government to issue a written
amendment to a solicitation when it “changes, relaxes, increases, or otherwise modifies its
requirements,” and to provide an opportunity for competitors to submit new or amended
proposals when it “depart[s] from the stated requirements”))). In this case, the FDIC awarded a
contract to MMC, despite MMC’s admission that three of its key personnel did not meet the
qualifications of the Solicitation. Pl. Mot. JAR at 34 (citing AR Tab 5 at 71-104 (stating the
“minimum qualifications” for each position, including five years of
experience for
Leads, and a
designation for
Leads) and AR Tab 18 at 1044, 1046, 1049
(admitting that those qualifications were unmet)). 5 Specifically, MMC’s proposed
did
not meet the requirement of a “[m]inimum five years’ experience working with
in a
financial processing or accounting operations environment.” AR Tab 18 at 1044. And, both of
its proposed
Leads were not
, as required by the Solicitation. AR Tab 18 at 1046,
5

MMC’s proposal lists “
” as the job title for the two proposed key personnel
Cohen describes as “
Leads.” Pl. Mot. JAR at 15 n.2 (explaining that there are two kinds
of
Leads within
and that the job requirements MMC listed for the positions
matched the requirements for
Leads).
14

1049. The FDIC’s failure to note these shortcomings prejudiced Cohen, because if the FDIC had
adhered to the Solicitation it would have “found MMC’s proposal deficient for proposing
unqualified personnel.” Pl. Mot. JAR at 33-34.
b.

The Government’s Response.

The Government responds that Cohen again mischaracterizes the Solicitation as setting
“minimum requirements” for key personnel. Gov’t Mot. JAR at 36-37. There was no
requirement in the Solicitation to identify in the proposal the staff who would fill particular
positions or “that proposed key personnel met the minimum qualification requirements for any
particular Functional Specialty position.” Gov’t Mot. JAR at 37. “[T]he FDIC simply evaluated
the key personnel resumes to ensure that the functional areas were covered by the collective
expertise of the proposed key personnel.” Gov’t Mot. JAR at 38. Because the Solicitation did
not require that the proposed key personnel meet any minimum qualifications, the court cannot
mandate such a requirement. Gov’t Mot. JAR at 38 (citing Ala. Aircraft Indus. v. United States,
586 F.3d 1372, 1376 (Fed. Cir. 2009) (holding that the trial court may not “introduce new
requirements outside the scope of the [Solicitation]”)). In addition, Cohen cannot show
prejudice, because Cohen also proposed key personnel who did not meet the minimum
qualifications.
c.

The Defendant-Intervenor’s Response.

MMC contends that “the Solicitation gave complete discretion to the offeror to selfidentify key personnel and did not require key personnel be assigned to particular labor
categories or functional specialties.” Int. Mot. JAR at 26-27 (citing AR Tab 10 at 813 (“Key
personnel are not associated with a particular labor category.”)). The FDIC did not relax its
minimum requirements, because no minimum requirements existed. Int. Mot. JAR at 26-28.
Second, although Cohen argues that three MMC key personnel did not meet the requirements to
be
the Solicitation did not require a
for the
and
, the two areas in
which those three key personnel were proposed. Int. Mot. JAR at 26, 28-31 (citing AR Tab 5 at
32 (chart showing that the Solicitation required
in
under the baseline staffing
model, but not in
or in
); AR Tab 19.1 at 1236, 1239, 1245, 1284, 1287, 1290
(resumes showing that Cohen’s proposal listed
, not
, in the
and
functional areas)). Furthermore, even if MMC’s key personnel did not satisfy the Solicitation’s
requirements, Cohen was not prejudiced, because “
of [Cohen’s] proposed key personnel
did not meet the experience or qualification standards for the labor category and functional
specialty for which they were proposed.” Int. Mot. JAR at 32-34 (citing AR Tab 19.1 at 1206
(establishing that the
did not have a requisite college degree); AR Tab 19.1 at 1203
(showing that the
did not have the required experience); AR Tab 19.1 at 1212 (showing
that the
did not have the required experience); AR Tab 19.1 at 1221 (showing that the
did not have the required experience); AR Tab 19.1 at 1236 (showing that the
did
not have the required experience); AR Tab 19.1 at 1255 (establishing that the
lacked the
required experience); AR Tab 19.1 at 1258 (establishing that the
lacked the required
experience); AR Tab 19.1 at 1276 (showing that the
did not have the required
experience)). Despite these deficiencies in Cohen’s proposed workforce, the FDIC credited
Cohen with a strength for management team experience and background, the same strength
awarded MMC. Int. Mot. JAR at 34 (citing AR Tab 27 at 1413).
15

d.

The Court’s Resolution.

Cohen’s assertion that the FDIC relaxed the requirements in the Solicitation misinterprets
the Solicitation’s requirements. As the court explained above, the Solicitation required that an
offeror’s proposed key personnel have “similar experience” to the position-specific experience
requirements listed in the Solicitation. Therefore, the FDIC did not relax the Solicitation’s
requirements, when it determined that MMC’s key personnel had “similar experience,”
satisfying the Solicitation’s terms. For these reason, the court has determined that the FDIC did
not relax the minimum requirements in the Solicitation and did not act in an arbitrary and
capricious manner in awarding MMC a strength for management team experience and
background.
3.

Whether The Agency Failed To Perform And Document A Price
Realism Analysis As Required By The Solicitation And The Agency’s
Acquisition Regulations.
a.

The Plaintiff’s Argument.

Next, Cohen asserts that the FDIC failed to conduct the price realism analysis required by
the Solicitation and FDIC regulations, or, in the alternative, failed to document that analysis. Pl.
Mot. JAR at 23-30. PGI procedural standards are binding in FDIC procurements. Pl. Mot. JAR
at 24 n.5 (citing Office Depot, Inc. v. United States, 95 Fed. Cl. 517, 527-28 (2010) (observing
that the FDIC must adhere to the PGI)). FDIC regulations “mandate a rigorous, welldocumented analysis of price realism in every best value procurement.” Pl. Mot. JAR at 23
(citing PGI § 3.206(a)(2) (requiring that best value procurement must include “a determination of
reasonableness, realism, and completeness for price”), § 3.210(c)(2) (listing the required
elements of a price realism analysis)). The Solicitation required price realism analysis of the
labor rates contained in the proposals (Pl. Mot. JAR at 23 (citing AR Tab 5 at 150)), but “the
only reference to realism in the [Panel] Report is a boilerplate statement that an unidentified
Contract Specialist reviewed offerors’ prices ‘with respect to completeness, reasonableness, and
realism’” (Pl. Mot. JAR at 25 (quoting AR Tab 27 at 1419)). Instead of discussing the price
realism elements required by PGI § 3.210(c)(2), the Panel Report included only a vague
description of the methodology, using a “‘summary’ spreadsheet to ‘compare’ offerors’ total
prices,” and “[t]he only ‘summary sheets’ in the Administrative Record are tables showing each
offeror’s total price.” Pl. Mot. JAR at 25 & n.6; Pl. Reply at 5. Therefore, instead of evaluating
whether the proposals’ labor rates provided “reasonable compensation for the skill required in a
labor category,” as the Solicitation required, the Panel appears simply to have reviewed the labor
rates solely “to ensure that all mandatory labor categories were addressed as required by the
[Solicitation].” Pl. Mot. JAR at 26 (quoting AR Tab 5 at 150 and AR Tab 27 at 1419); Pl. Reply
at 5. “Nowhere does [the Panel Report] analyze the offerors’ total prices, let alone their labor
rates[,] . . . evaluate whether the offerors’ total prices and labor rates reflect an understanding of
requirements, or introduce performance risk[, or] . . . examine . . . whether offerors’ labor rates
reflected ‘reasonable compensation for the skill required in a labor category.’” Pl. Reply at 5
(quoting AR Tab 5 at 150 (Solicitation) (emphasis omitted)). Furthermore, although the Panel’s
individual worksheets contained a section for evaluating price realism, all of the Panel members

16

left that section blank. Pl. Mot. JAR at 26 (citing AR Tab 12 at 907, 921, 939 (worksheet price
realism pages for MMC’s proposal)). Although the Government argues that the worksheet
sections were blank, because Panel members did not yet have the offerors’ pricing information
(Gov’t Mot. JAR at 8), that does not explain the absence of any worksheets evidencing that Panel
members ever performed the required analysis. Pl. Reply at 6 n.3.
Other documents evidence, not only the FDIC’s complete failure to conduct price realism
analysis but that the FDIC misconstrued what a price realism analysis requires. Pl. Mot. JAR at
27-28. For example, the Selection Recommendation Report, “like the [Panel] Report, contains
only a conclusory, boilerplate statement that pricing was evaluated for reasonableness and
realism.” Pl. Mot. JAR at 27 (citing AR Tab 31 at 1433). A Best Value Analysis contains two
charts listing ratings and prices, but no analysis. Pl. Mot. JAR at 27 (citing AR Tab 30 at 142930). Although the Selection Recommendation Report did mention realism, it conflated the
concepts of realism and reasonableness. Pl. Mot. JAR at 27-28 (quoting the Report’s finding that
BAFO price “was unreasonable based on the work being performed and unrealistic
compared to other labor hour price submissions” (AR Tab 31 at 1440)). “The FDIC’s use of the
term ‘realism’ . . . shows that the agency fundamentally misunderstood the nature of a realism
analysis, and believed that both ‘reasonableness’ and ‘realism’ refer to an assessment of whether
offerors’ prices are too high.” Pl. Mot. JAR at 28. As a result, “[t]he FDIC simply never
considered or evaluated whether offerors’ prices were too low.” Pl. Mot. JAR at 28.
Moreover, the FDIC’s complete failure to document any price realism analysis violates
the APM and the PGI. Pl. Mot. JAR at 29 (citing APM ¶ 3.210(c) (stating that the Panel “is
responsible for determining price realism and documenting its analysis in either the [Panel]
Report or a written memorandum to the Contracting Officer”) and PGI § 3.214(a)(2) (same)).
Specifically, the FDIC was required to “articulate a satisfactory explanation for its action
including a rational connection between the facts found and the choice made.” Pl. Mot. JAR at
29 (quoting Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S.
29, 43 (1983) (internal quotation marks omitted)). The Government cannot remedy the FDIC’s
failure by speculating about the price realism analysis the FDIC might have done. Pl. Reply at 9
(citing State Farm, 463 U.S. at 43 (“The reviewing court should not attempt itself to make up for
[evaluation] deficiencies: ‘We may not supply a reasoned basis for the agency’s action that the
agency itself has not given.’” (quoting SEC v. Chenery Corp., 332 U.S. 194, 196 (1947))).
Furthermore, the mere presence of General Services Administration labor rates in the
Administrative Record does not evidence that the FDIC used those rates to analyze price realism.
Pl. Reply at 12-13 & n.5 (noting that the rates were given the electronic filename “Price
Reasonableness GSA Comps”).
In addition, the FDIC’s failure to conduct price realism analysis prejudiced Cohen,
because “there is ample evidence that a rational evaluation of realism would have concluded that
MMC’s prices are in fact unrealistic.” Pl. Reply at 16. MMC’s total price was
percent
of the FDIC’s estimate, and the FDIC’s regulations specifically require the Panel to question an
offeror if its price was far below the agency’s estimate. Pl. Reply at 16-17 (citing Gov’t Mot.
JAR at 22-23 (conceding the
percent figure); PGI § 3.210(c)(2) (“If an offeror’s total
proposed price . . . falls far short of the Program Office estimate for the requirement, the
offeror’s understanding of what is required must be questioned.”)). Similarly, a price realism

17

analysis would have evidenced that MMC’s labor rates were unrealistically low. Pl. Reply at 17.
If the FDIC had performed a price realism analysis, as required, it is likely that the FDIC would
have eliminated MMC from the competition and selected Cohen, which was next in line for
award. Pl. Reply at 17.
b.

The Government’s Response.

The Government responds that both the Panel Report and the Selection Recommendation
Report evidence that the FDIC performed price realism analysis. Gov’t Mot. JAR at 14.
Specifically, the Panel Report states that each proposal “was initially evaluated with respect
to . . . realism.” Gov’t Mot. JAR at 14 (quoting AR Tab 27 at 1419). Furthermore,
The overall analysis of the pricing proposals was conducted by the Senior
Contract Specialist, and a summary spreadsheet was provided to the [Panel] to
compare the proposed pricing of the Offerors and confirm proposed pricing
covered the initial period and all option periods, in accordance with the price
schedule. Additionally, the [Panel] reviewed the more detailed price schedules in
the proposals to ensure that all mandatory labor categories were addressed as
required by the [Solicitation].
Gov’t Mot. JAR at 14-15 (quoting AR Tab 27 at 1419).
The Selection Recommendation Report states that the Panel was presented with the
“pricing per labor hour category for each Offeror . . . along with a calculation of total pricing for
the period of performance. Pricing was evaluated on the basis of the realism and reasonableness
of the labor hour rates in relation to the proposed work.” Gov’t Mot. JAR at 15 (quoting AR Tab
31 at 1433).
Although the Government concedes that the pricing evaluation sections of the Panel’s
evaluation forms were left blank, this is not prima facie evidence that a price realism analysis did
not occur. Gov’t Mot. JAR at 15. Instead, it shows that the pricing information was not
available at the time the Panel members completed the forms. Gov’t Mot. JAR at 15. Moreover,
the court should apply a “presumption of regularity” and find that the FDIC conducted a proper
price realism analysis. Gov’t Mot. JAR at 16 (citing Sickels v. Shinseki, 643 F.3d 1362, 1366
(Fed. Cir. 2011) (“[I]n the absence of clear evidence to the contrary, the court will presume that
public officers have properly discharged their official duties.”)).
In addition, the FDIC had broad discretion in conducting its price realism analysis,
because neither the Solicitation nor the PGI set forth detailed criteria to be considered. Gov’t
Mot. JAR at 16.6 In light of that FDIC discretion, the court should limit its review to ensuring
6

The PGI states:

The [Panel] evaluates price proposals to determine whether the proposed price for
the work is realistic. A realistic price is one that reflects a clear understanding of
the requirement and is consistent with the offeror’s technical proposal. The
elements of a price proposal can provide insight into an offeror’s understanding of
18

that the FDIC considered available information and made no irrational assumptions or
miscalculations. Gov’t Mot. JAR at 17 (citing Ala. Aircraft Indus, 586 F.3d at 1375-76 (“The
trial court’s duty was to determine whether the agency’s price-realism analysis was consistent
with the evaluation criteria set forth in the [Solicitation.]”)). In this case, the FDIC reasonably
exercised its discretion, considered the available information, and made no irrational
assumptions or miscalculations. Gov’t Mot. JAR at 18. The FDIC considered both the overall
estimated prices and the proposed labor rates. Gov’t Mot. JAR (citing AR Tab 27 at 1419 (Panel
Report overall price table); AR Tab 30 at 1429 (best value analysis worksheet); AR Tab 31 at
1433 (Selection Recommendation Report description of the price realism analysis
methodology)). Moreover, not only did the Selection Recommendation Report reflect that the
Panel evaluated the reasonableness of the labor hour rates, it also provided an example of that
analysis. Gov’t Mot. JAR at 19 (citing AR Tab 31 at 1440 (explaining that
’ pricing was
“unreasonable based upon the work being performed and unrealistic compared to other labor
hour submissions”); AR Tab 27 at 1423 (stating that the Panel “determined the types of services
being offered by [Cohen and
] did not warrant the higher costs proposed”)).
In addition, the Government argues that MMC’s prices were realistic, because they were
% of the prices proposed by three other offerors. Gov’t Mot. JAR at 19 (citing AR Tab
27 at 1419). MMC’s hourly rates were not the
for any labor category, and they were the
in only two of the six categories. Gov’t Mot. JAR at 19-20. In addition, comparing
MMC’s labor rates with those in General Services Administration schedules demonstrates that
MMC’s rates were realistic. Gov’t Mot. JAR at 21-22 (citing AR Tab 18.2 at 1053 (MMC’s
rates); AR Tab 29 at 1425-28 (GSA schedules)). Although the Administrative Record does not
contain any document evidencing that the Panel made these comparisons, the court should infer
that the FDIC considered the GSA schedules, because they are in the Administrative Record.
Gov’t Mot. JAR at 22 (citing Acrow Corp. of Am. v. United States, 97 Fed. Cl. 161, 178 (2011)
(“The court makes the modest inference that, if the contracting officer included an article in her
file . . . the contracting officer reviewed these documents.”); Blue Lake Forest Prods., Inc. v.
United States, 75 Fed. Cl. 779, 793 (2007) (“[T]he Administrative Record filed by the agency . . .
suggests that the agency considered the document to be necessary for the Court’s resolution of
the action, presumably[,] because the document informed the agency’s own decisionmaking.”)).

the requirement. If an offeror’s total proposed price either greatly exceeds or falls
far short of the Program Office estimate for the requirement, the offeror’s
understanding of what is required must be questioned. The [Panel] review and
determination includes the appropriateness of:
•

The number and qualifications of personnel to be assigned to the various
aspects of the proposed work;

•

Proposed labor rates or proposed material fees; and

•

The price, amount, and necessity of travel.

PGI § 3.210(c).

19

In addition, the Government contests Cohen’s assertion that MMC’s price was
unrealistic, because it was “
% of the FDIC’s own estimate.” Gov’t Mot. JAR at 22.
Whether a price “falls far short” of an agency’s estimate is within the agency’s discretion. Gov’t
Mot. JAR at 22-23 (quoting PGI § 3.210(c) (“If an offeror’s total proposed price . . . falls far
short of the Program Office estimate for the requirement, the offeror’s understanding of what is
required must be questioned.”)). Here, seven of the eight offerors proposed prices below the
FDIC’s estimate, and several offerors’ prices were only slightly higher than MMC’s. Gov’t Mot.
JAR at 23.
Cohen also errs when it asserts that the FDIC’s evaluation of
’ proposal evidenced
a failure to understand that price realism analysis does not refer to an evaluation of whether a
price is too high. Gov’t Mot. JAR at 24. Under FDIC regulations, the purpose of a price realism
analysis is to flag prices that are either too high or too low. Gov’t Mot. JAR at 24 (citing PGI §
3.210(c)(2) (stating that a proposal’s realism should be questioned “[i]f an offeror’s total
proposed price either greatly exceeds or falls far short of the Program Office estimate”)).
The Government further contends that the FDIC’s price realism analysis is sufficiently
documented in the Administrative Record. Gov’t Mot. JAR at 24-27; Int. Reply at 5-6 (citing:
the Panel Report’s statement that such an analysis was performed (AR Tab 27 at 1419-20), the
Source Selection Recommendation’s statement that
’ price was unrealistic (AR Tab 31 at
1440), the Source Selection Recommendation’s statement that “[p]ricing was evaluated on the
basis of the realism and reasonableness of the labor hour rates in relation to the proposed work”
(AR Tab 31 at 1433), and the Source Selection Recommendation’s statement that MMC “offers
fair and reasonable competitive labor rates” (AR Tab 31 at 1446)). This should satisfy the court,
because the Administrative Record need only be sufficient for the “agency’s path [to] reasonably
be discerned.” Gov’t Mot. JAR at 24-25 (quoting State Farm, 463 U.S. at 43); Gov’t Reply at 3
(quoting Nucor Corp. v. United States, 414 F.3d 1331, 1341 (Fed. Cir. 2005) (“[J]udicial review
of an agency’s findings does not demand expansive discussion or rigid adherence to a specific
formula.”)). Therefore, there is sufficient evidence for judicial review under the Administrative
Procedure Act. Gov’t Mot. JAR at 25 (citing Impreza Construzioni Geom. Domenico Garufi v.
United States, 238 F.3d 1324, 1337-38 (Fed. Cir. 2001) (holding that the Administrative
Procedure Act does not require contracting officers to provide written explanations of their
actions); APM ¶ 3.210(c) (stating that the Panel “is responsible for determining price realism and
documenting its analysis in either the [Panel] Report or a written memorandum to the
Contracting Officer”)). Furthermore, lengthy documentation was not necessary here, because the
pricing was straightforward, i.e., the price equaled the labor category rate multiplied by the
number of hours the Solicitation required for each labor category. Gov’t Mot. JAR at 26; Gov’t
Reply at 4.
Finally, even if the FDIC failed to perform or document a price realism analysis, Cohen
cannot show that it was prejudiced by this failure. Gov’t Mot. JAR at 27-29 (citing Data Gen.
Corp. v. Johnson, 78 F.3d 1556, 1562 (Fed. Cir. 1996) (requiring a showing of prejudice, and
holding that “to establish prejudice, a protester must show that, had it not been for the alleged
error in the procurement process, there was a reasonable likelihood that the protester would have
been awarded the contract”). Even if MMC’s prices fell far short of the FDIC’s price estimate,
that alone would not have rendered MMC’s prices unrealistic. Gov’t Mot. JAR at 27 (citing PGI

20

§ 3.210(c) (stating that a price that falls far short of an agency’s estimate triggers an inquiry of
whether the offeror had an “understanding of what is required”)). The FDIC’s evaluation of
MMC’s Mission Capability demonstrates “that MMC fully understood the [Solicitation’s]
requirements and the FDIC had no reason to think that MMC would not perform adequately.”
Gov’t Mot. JAR at 28 (citing AR Tab 27 at 1412-13 (Panel Report technical evaluation results
for MMC)). Therefore, “there is nothing in the record to suggest that the outcome of the
procurement would have been any different, even if the FDIC considered MMC’s pricing to fall
‘far short’ of the FDIC’s internal estimate.” Gov’t Mot. JAR at 29.
c.

The Defendant-Intervenor’s Response.

MMC responds that the FDIC determined that MMC’s proposal “is technically strong,
has exceptional past performance, and offers fair and reasonable competitive labor rates.” Int.
Mot. JAR at 7 (quoting AR Tab 31 at 1446 (Selection Recommendation Report) (emphasis
added)). Although the FDIC was required to perform a price realism analysis, MMC asserts, that
analysis did not need to be as rigorous as Cohen contends. Int. Mot. JAR at 8 (citing OMV Med.,
Inc. v. United States, 219 F.3d 1337, 1344 (Fed. Cir. 2000) (holding that price realism analysis
need not “be performed with impeccable rigor,” and “any assessment of the rationality of [the
agency’s] calculations must take into account the limited amount of information available”)).
Cohen “did not offer any meaningful evidence that MMC’s proposed prices are unrealistically
low, that the work cannot be performed at the prices MMC proposed, that MMC lacked
understanding of the requirements, or that MMC poses a heightened risk of performance.” Int.
Mot. JAR at 12. Cohen’s assertion that MMC’s proposed price was
percent of the
Agency estimate is not prima facie evidence that MMC’s price was unrealistic. Int. Mot. JAR at
16 (citing CTA Inc. v. United States, 44 Fed. Cl. 684, 693-94 (1999) (determining that a proposed
labor rate that was fifty-three percent lower than the incumbent contract rate was not
unrealistic)).
In addition to making many of the arguments made by the Government, MMC explained
that it was able to offer lower labor rates by using “
.” Int. Mot. JAR at 13. MMC’s labor
rates
, while Cohen’s labor rates
. Int. Mot. JAR at 13 & n.5 (explaining that the
different
). Here, the FDIC compared MMC’s rates with four companies’ General
Services Administration Financial and Business Solutions schedule contract rates and MMC’s
labor rates aligned with three of those companies’ rates. Int. Mot. JAR at 14-15 & n.7.
Furthermore, MMC’s more than twenty years of experience, including experience with the FDIC
during the recent financial crisis, evidence that “MMC knows the market and what it takes to
staff contracts, like this one.” Int. Mot. JAR at 15-16.
Finally, MMC contends that the FDIC’s
price estimate was a budgetary cap, and,
therefore, realistic prices need not have been at or near that level. Int. Mot. JAR at 16 (citing AR
Tab 1 at 1 (requesting authorization to spend “up to
for contractor compensation”), 9
(defining “the anticipated maximum funding projection under the contract”); AR Tab 4 at 14
(describing
as the “funding ceiling”)). The
estimate also was based on a
.
Int. Mot. JAR at 17 (citing AR Tab 1 at 8 (“
”); AR Tab 5 at 33 (“
”)). “[T]hese
factors undermine[] [Cohen’s] undue reliance on the [agency’s] budgetary estimate as evidence
that MMC’s proposed prices were so unrealistically low that they should have caused the [Panel]

21

to question MMC’s understanding of the requirements or adjust MMC’s Mission Capability
rating.” Int. Mot. JAR at 17.
d.

The Court’s Resolution.

The FDIC’s acquisition regulations require the Panel to “determin[e] price realism and
document[] its analysis in either the [Panel] Report or a written memorandum to the [CO].”
APM ¶ 3.210(c) (emphasis added).
The Administrative Record contains no written
memorandum to the CO, and in the fifteen-page Panel Report the documentation of price realism
analysis consists of a single paragraph stating only that such analysis was performed, together
with a chart showing each offeror’s overall proposed price:
The pricing proposal of each Offeror was initially evaluated with respect to
completeness, reasonableness, and realism. The overall analysis of the pricing
proposals was conducted by the Senior Contract Specialist, and a summary
spreadsheet was provided to the [Panel] to compare the proposed pricing of the
Offerors and confirm proposed pricing covered the initial period and all option
periods, in accordance with the price schedule. Additionally, the [Panel]
reviewed the more detailed price schedules in the proposals to ensure that all
mandatory labor categories were addressed as required by the [Solicitation]. The
proposed pricing was as follows:
Mir Mitchell & Company, LLP
Martin W. Cohen & Company

$11,496,293
$
$
$
$
$
$
$

.

AR Tab 27 at 1419.
Therefore, the Panel Report evidences that the Panel conducted a price realism analysis,
but it failed to provide that analysis, or even the conclusions thereof, in violation of APM ¶
3.210(c) and PGI § 3.214(a). APM ¶ 3.210(c) (requiring that the Panel Report document the
FDIC’s price realism analysis); PGI § 3.214(a) (same). Without a description of the facts
analyzed, and the reasoning that connects the facts with the conclusions, the court is not in a
position to determine whether an agency exercised its discretion in a non-arbitrary manner. See
Banknote, 365 F.3d at 1357-58 (affirming a trial court determination that best value analysis
documentation requirements were met, because “the contracting officer described why he
believed that [three offerors] represented the strongest best value selections, while [two others]
did not, and explained the relative strengths and weaknesses of the offerors in the evaluation
categories underlying the technical rankings”).

22

It is a well settled principle of administrative law that a federal agency must “articulate a
satisfactory explanation for its action including a rational connection between the facts found and
the choice made.” State Farm, 463 U.S. at 43 (internal quotation marks omitted). Although the
court “may not supply a reasoned basis for the agency’s action that the agency itself has not
given,” the court may “uphold a decision of less than ideal clarity if the agency’s path may
reasonably be discerned.” Id. In this case, the Government and MMC conducted the price
realism analysis in their briefs and asked the court simply to infer that the FDIC made similar use
of the data in the Administrative Record. Gov’t Mot. JAR at 21-22 (citing AR Tab 18.2 at 1053
(MMC’s rates); AR Tab 29 at 1425-28 (GSA schedules)); Int. Mot. JAR at 12-17 (analyzing the
labor rates in every proposal and the GSA schedules). Argument, however, is not an acceptable
substitute for compliance. For example, the Administrative Record is silent about whether, how,
and why the FDIC compared various labor categories in the Solicitation with the labor categories
in the GSA schedules, and the court notes that, in fact, the Government and MMC do not agree
about which categories are equivalent. Compare Int. Mot. JAR at 14, with Gov’t Mot. JAR at
21. The briefs of the Government and MMC include a price realism analysis that compares
MMC’s labor rates to those of
, one of the contractors whose rates are in the GSA
schedules. Gov’t Mot. JAR at 21; Int. Mot. JAR at 14. But the Government and MMC disagree
about how seven of the twelve
labor categories align with the labor categories in the
Solicitation. See AR Tab 29 at 1427 (showing the
rates by labor category); Gov’t Mot.
JAR at 21; Int. Mot. JAR at 14. Specifically, MMC considers a
“Junior Financial
Analyst” comparable to the Solicitation’s “Senior Professional,” but the Government considers
the Solicitation’s “Professional” labor category a better match. Int. Mot. JAR at 14; Gov’t Mot.
JAR at 21. Confronted with differing post hoc analyses of data in the Administrative Record, the
court cannot determine whether the FDIC’s analysis matched the Government’s, MMC’s, or
neither. In short, the FDIC’s decisionmaking path cannot “reasonably be discerned.” See State
Farm, 463 U.S. at 43. The Government’s citations to Acrow and Blue Lake Forest are
unavailing, because in those cases the court inferred only that an agency reviewed and used
documents in the Administrative Record, whereas in this case, the Government and the
Intervenor ask the court to infer the content of the analysis that was conducted based on the
existence of certain documents in the Administrative Record. The Administrative Record
documents the result of price realism analysis with respect to only one proposal—
’ (AR
Tab 31 at 1440 (Selection Recommendation Report describing it as “unrealistic compared to
other labor hour price submissions”)), but there is no document in the Administrative Record that
supports this conclusion.7 The Government and MMC quote the FDIC’s conclusion that MMC’s
proposal “offers fair and reasonable competitive labor rates” (AR Tab 31 at 1446), but that
quotation does not establish the realism of MMC’s prices, let alone document or analyze their
realism. Compare PGI § 3.210(c)(1) (defining price reasonableness as competitiveness in
comparison with the prices submitted by other offerors, the prices charged for similar goods or
services, the Agency’s price estimate, or the prices required by law), with PGI § 3.210(c)(2)
(defining price realism as an assessment of whether the price “reflects a clear understanding of
7

Cohen incorrectly challenges this finding as a misapplication of the concept of price
realism, but under the FDIC’s regulations prices can be determined to be unrealistically high or
unrealistically low. Pl. Mot. JAR at 27-28; PGI § 3.210(c)(2) (triggering questioning of a
proposal’s realism “[i]f an offeror’s total proposed price either greatly exceeds or falls far short
of the Program Office estimate”).

23

the requirement and is consistent with the offeror’s technical proposal”). For these reasons, the
court has determined that the FDIC’s failure to evidence that a price realism analysis was
conducted is not rational.
“To establish prejudice [a bid protest plaintiff must] show that there was a ‘substantial
chance’ it would have received the contract award but for the [agency’s] errors in the bid
process.” Bannum, 404 F.3d at 1358. Cohen interprets the record as evidencing that MMC’s
proposed price was
percent of the FDIC’s estimate of the maximum amount it would
need to spend on the contract, and the Government does not challenge that assertion. Compare
Pl. Reply at 16-17 with Gov’t Mot. JAR at 22-23. 8 Although MMC cites to CTA for the
proposition that a bid more than forty percent below the Government’s estimate can still be
realistic, the CTA court reached that determination only after quoting a detailed price realism
analysis in the Administrative Record, an analysis that is missing in this case. See CTA, 44 Fed.
Cl. at 693-94 (noting the agency’s comparisons of various proposed rates and concluding that a
“larger labor pool” resulted in “a dramatic reduction in pricing”). For these reasons, the court
has determined that there is a substantial chance that documented price realism analysis would
have led the FDIC to award the contract to Cohen.
E.

A Preliminary Injunction Is Warranted.

The February 8, 2013 Amended Complaint requests that the court “[g]rant Cohen . . .
permanent injunctive relief requiring the FDIC to set aside the award of the [business operations
support] contract to MMC.” Am. Compl. at 27. Although Cohen’s February 8, 2013 Motion For
8

The Administrative Record contains no evaluation of MMC’s price as a percentage of
the FDIC’s estimate. Likewise, there is reason to doubt the accuracy of the
percent
figure that Cohen calculated by subtracting the fourth-quarter 2012 prices from MMC’s proposal
and then expressing the result as a percentage of the FDIC’s estimate. Pl. Mot. JAR at 16 (using
$
as MMC’s “2013-18 Total” and citing AR Tab 18 at 1053 (MMC’s $11,496,293 price,
including $
for the fourth quarter of 2012)); see also AR Tab 1 at 8-9 (stating that the
FDIC estimate used calendar years 2013-2018, whereas the actual contract was to run from the
fourth quarter of 2012 through the end of the third quarter of 2018). Cohen also did not account
for other differences between the assumptions used to calculate the FDIC’s estimate and those
used by MMC. As MMC noted, its price was based on
, and the FDIC’s estimate was
based on
. Compare AR Tab 18 at 1053 (stating that MMC’s price calculation was based
on
), with AR Tab 1 at 8 (stating that the FDIC’s estimate was based on
). Also,
the FDIC estimate and the offerors’ proposals were based on different staffing level assumptions.
Compare AR Tab 1 at 8 (stating that the FDIC’s estimate for each year was based on the average
staff levels for that year and the previous year), with AR Tab 18 at 1053 (MMC using the
staffing levels for each year, with no averaging). As a result, MMC’s and Cohen’s 2014 total
costs were based on staffing levels of zero “Professionals,” whereas the FDIC’s estimate
included
in 2014 pay for “Professionals.” Compare AR Tab 18 at 1053 (MMC
proposal), and AR Tab 19 at 1302 (Cohen’s proposal), with AR Tab 1 at 8 (FDIC estimate). The
differences in methodology between the FDIC’s estimate and the offerors’ proposals explains
why it would be erroneous for the court to “infer” a price realism analysis from this
Administrative Record.

24

Judgment On The Administrative Record seeks a permanent injunction (Pl. Mot. JAR at 2), the
court considers a preliminary injunction more appropriate to the circumstances in this case. See
28 U.S.C. § 1491(b)(2) (authorizing the court to “award any relief that the court considers
proper, including . . . injunctive relief”).
In considering whether to issue a preliminary injunction the court is required to weigh
four factors: “(1) immediate and irreparable injury to the movant; (2) the movant’s likelihood of
success on the merits; (3) the public interest; and (4) the balance of hardship on all the parties.”
U.S. Ass’n of Imp. of Textiles & Apparel v. United States, 413 F.3d 1344, 1346 (Fed. Cir. 2005).
“No one factor, taken individually, is necessarily dispositive . . . . [T]he weakness of the showing
regarding one factor may be overborne by the strength of the others.” FMC Corp. v. United
States, 3 F.3d 424, 427 (Fed. Cir. 1993).
As to the first factor, the Administrative Record evidences no documentation of price
realism analysis of the proposals submitted by MMC and Cohen. Without injunctive relief,
Cohen will suffer immediate and irreparable harm by losing the opportunity to be awarded the
business operations support Contract at issue. See Linc Gov’t Servs. v. United States, No. 12522, 2012 WL 6869632 (Fed. Cl. Dec. 28, 2012) (issuing a preliminary injunction after finding
documentation in the Administrative Record was insufficient for the court to review a bid
protest). Therefore, the first factor weighs in favor of an injunction.
As to the second factor, a likelihood of success on the merits, Cohen has established that,
without more thorough documentation than has been submitted in the Administrative Record, it
will succeed on its claim that the FDIC violated APM ¶ 3.210(c) and PGI §§ 3.210(c) and
3.214(a) and the award of the contract to MMC was arbitrary and capricious.
As to the third factor, the Government and MMC argue that an injunction would be
contrary to the public’s interest in minimizing the procurement costs. Int. Reply at 19; Gov’t
Mot. JAR at 40. It is well established that a “protest case cannot be efficiently processed until
production of the administrative record” is provided. RCFC App. C ¶ 23; see also Google,
Inc. v. United States, 95 Fed. Cl. 661, 679 (2011) (stating that “the Administrative Record should
include all relevant documents” relating to the procurement process at issue); see also PGBA,
LLC v. United States, 57 Fed. Cl. 655, 663 (2003) (“Clearly the public interest in honest, open,
and fair competition in the procurement process is compromised whenever an agency abuses its
discretion in evaluating a contractor’s bid.”). Therefore, the court has determined that the public
interest is served by a preliminary injunction in this case.
As to the fourth factor, the balance of hardships, the Agency can extend the Cohen and
Quantum contracts until a new business operations support contract can be awarded. Therefore,
the hardship that a preliminary injunction will impose on the FDIC is minimal. Any necessary
expense is wholly attributable to the FDIC’s unexplained failure to conduct and document a price
realism analysis. For this reason, the court has determined that the balance of the hardships
favors granting an injunction.
IV.

CONCLUSION.

25

For these reasons, it is hereby ordered that:
This procurement is remanded to the Agency “for additional investigation or
explanation” regarding price realism analysis with respect to Solicitation No. RECVR-12-R0088. See Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 744 (1985) (“If the record before the
agency does not support the agency action, if the agency has not considered all relevant factors,
or if the reviewing court simply cannot evaluate the challenged agency action on the basis of the
record before it, the proper course, except in rare circumstances, is to remand to the agency for
additional investigation or explanation.”). The FDIC and its officers, agents, servants,
employees, and representatives are preliminarily enjoined from proceeding with or awarding
contracts for business operations support services for the FDIC Division of Resolutions and
Receiverships, pursuant to Solicitation No. RECVR-12-R-0088 or any related procurement,
solicitation, task order, or activity. See RCFC 65(a). 9
As set forth in RCFC 52.2(b)(1)(B), the remand will expire in six months, during which
time the preliminary injunction will be in effect. The Government will report to the court every
ninety days on the status of the remand proceedings. See RCFC 52.2(b)(1)(D).

IT IS SO ORDERED.
s/ Susan G. Braden
SUSAN G. BRADEN
Judge

9

This Order was issued on March 27, 2013 at 3:45 p.m. (EDT).

26