HARMONIA HOLDINGS GROUP, LLC v. USA

Filing 43

REPORTED OPINION. Signed by Judge Mary Ellen Coster Williams. (cc) Copy to parties.

In the United States Court of Federal Claims
No. 17-86C
(Bid Protest)
(Filed: May 23, 2017)1
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HARMONIA HOLDINGS GROUP, LLC,
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Plaintiff,
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v.
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THE UNITED STATES,
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Defendant,
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and
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JAVA PRODUCTIONS, INC.,
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Intervenor.
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Pre-award Bid Protest; 28 U.S.C.
§ 1491(b); Standing; Corrective
Action; Amended Request for
Quotations;
Key
Personnel
Qualifications; Price Realism;
Favoritism; Bad Faith.

Kathryn V. Flood, Antonio R. Franco, Michelle E. Litteken, and Julia Di Vito,
PilieroMazza PLLC, 888 17th Street NW, 11th Floor, Washington, D.C. 20006, for Plaintiff.
Alison Schilling Vicks, U.S. Department of Justice, Civil Division, P.O. Box 480, Ben
Franklin Station, Washington, D.C., 20044, for Defendant.
William Alexander Wozniak, Williams Mullen, PC, 8300 Greensboro Drive, Suite 1100,
McLean, VA 22102, for Intervenor.

1

The Court issued this Opinion and Order under seal on May 2, 2017, and directed the
parties to file any proposed redactions by May 11, 2017. The parties could not fully agree on
redactions, and the Court denied some of Plaintiff’s proposed redactions. On May 15, 2017, the
Court issued under seal a proposed redacted Opinion and informed the parties that the Court would
issue a public version of its Opinion after May 22, 2017. The Court publishes this Opinion
correcting errata and indicating redactions by asterisks “[***].”

_________________________________________________________
OPINION AND ORDER
_________________________________________________________
WILLIAMS, Judge.
In this preaward bid protest, Plaintiff Harmonia Holdings Group, LLC (“HHG”) challenges
the Department of the Interior’s (“DOI”) corrective action in issuing an amended Request for
Quotations (“RFQ”) following Plaintiff’s initial GAO protest. Plaintiff alleges that DOI’s
revisions to the RFQ - - adding heightened requirements for key personnel, explicitly providing
for a price realism analysis, further detailing database modernization planning requirements, and
soliciting a Quality Control Plan instead of a Quality Assurance Surveillance Plan - - do not reflect
the agency’s needs and favor the incumbent Java Productions, Inc. (“JPI”). Because DOI’s
amendment of the RFQ reasonably reflected the Government’s needs, the protest is denied.
Findings of Fact2
In this procurement, the Small Business Administration’s (“SBA”) Office of Disaster
Assistance (“ODA”) sought maintenance and service for reporting systems for the Disaster Credit
Management System (“DCMS”). AR 8, 506. DCMS is a “mission critical system” ODA uses to
process, disburse, and modify disaster home and business loans to rebuild property damaged by
“qualifying disaster events.” AR 19. ODA’s DCMS “handles custom report requests initiated by
the U.S. Congress, the White House, and other stakeholders within SBA and the federal
government regarding disaster loan processing operations.” AR 506.
The Original Request for Quotations
On June 24, 2016, DOI’s Interior Business Center, Acquisition Services Directorate issued
RFQ No. D16PS00280 on behalf of SBA. AR 19. The RFQ anticipated award of a firm fixed
price task order. AR 19. The acquisition, a 100% set aside for HUBZone businesses, was to be
conducted utilizing FAR Part 8.4, and the task order was to be awarded under GSA Schedule 703
Special Item Number 132-51.4 The Independent Government Estimate (“IGE”) for the task order
was $3,743,853.92 for the base and four option years. AR 11.

2

The findings of fact are derived from the Administrative Record.

Schedule 70 is a multiple award schedule under GSA’s Federal Supply Schedule program
that lists vendors providing IT products and services to the Government.
3

4

A Special Item Number (SIN) covers a group of generically similar (but not identical)
supplies or services that are intended to serve the same general purpose or function. 48 C.F.R. §
8.401 (2014). SIN 132-51, titled Information Technology Professional Services, includes
resources and facilities management, database planning and design, systems analysis and design,
2

According to the RFQ’s Statement of Work, the objective of the acquisition was to
“identify reporting needs, develop, create, modify, test, and deliver all reports in support of ODA
on the DCMS system and sub-systems.” Section 2 of the RFQ, the Scope of Work, required the
contractor to prepare a Task Order Management Plan, and a Performance Work Statement and
Quality Assurance Surveillance Plan. AR 20-21, 25. The Scope of Work also provided that the
contractor would participate in DCMS modernization planning – “assuming the role of subject
matter expert for current and future DCMS database design and reporting requirements.” AR 22.
Section 3 of the RFQ, General Task Order Terms and Conditions, identified three labor
categories as key personnel – Senior Computer Systems Analyst, Senior Application Engineer and
Software Systems Engineer. AR 29-30. Section 3.10 stated that key personnel would be “[c]ertain
skilled experienced professional and technical personnel” that were “essential for accomplishing
the work to be performed.” AR 29. No substitutions could be made for “accepted key personnel
except for sudden illness or death, or termination of employment.” AR 29.
After issuing the RFQ, the agency received a number of questions from vendors. See AR
710-11. One vendor asked “[i]n [section] 3.12, for key personnel, what are the required
qualifications for the 3 key personnel?” AR 713. The agency responded stating “Qualifications
of key personnel are expected to support the experience requested in Section 2.2.5 – Technical
Skill sets.” AR 713. Section 2.2.5 stated that “[t]he contractor shall provide staff experienced
with SQL, Crystal Reports, Microsoft Office Suite, Visual Basic 6, XI R2, SMPT, FTP, ASP.net
programming languages.” AR 21. The RFQ did not specify the requisite education or years of
experience for key personnel. The Government’s responses to vendors’ questions were later
incorporated into the RFQ through a modification. AR 52.
The RFQ provided that proposals were to contain a technical submission and a price
submittal. AR 31-32. Contractors were to provide a technical quote that addressed:
(a) Understanding, Planning and Technical Approach
(b) Qualifications and Commitment of Personnel
(c) Past Performance
AR 31.
For “Understanding, Planning and Technical Approach,” the RFQ provided that the
following evaluation criteria would be utilized to determine whether an offeror was technically
acceptable:


Understanding of the scope and subject matter



Quality and effectiveness of the approach to carry out the Statement of Work

network services, programming, conversion and implementation support, network services project
management, and data/records management.
3



Quality and effectiveness of the approach to produce logical, useful
information, including all required technical documents, manuscripts, and
publications



Awareness of potential problems and demonstrated ability to resolve them



A demonstrated working relationship with any subcontractor established at the
time of quote submission

AR 34.
For “Qualifications and Commitments of Personnel” the following evaluation criteria were
to be utilized:


Identify key technical individuals and fully describe the relevant qualifications
and tasks which you will assign to each individual.



Indicate any positions necessary for contract performance that are not presently
filled and the anticipated date of assignment or new hire.



Fully describe other project and time commitments for all key personnel during
the study.

AR 35.
The RFQ provided that contractors’ price quotes had to “include a breakout to identify the
price for the different tasks in the statement of work.” Specifically, contractors were instructed to
provide:
the labor categories and labor mix appropriate for their proposed solution to meet
the requirements of this effort, a description of the skills and experience per task,
and the fixed price hourly rate(s) proposed, and any other proposed associated
costs, for calculating the quoted price for this effort. The price submission must
have a total estimate for each of the contract years and the entire period of
performance, inclusive of the option years. Your price portion must clearly identify
your basis of estimate for the entire period of performance for this effort.
AR 32.
The RFQ informed offerors that price quotes would be evaluated separately from technical
quotes and the Government would “evaluate the quoted prices for reasonableness by utilizing price
analysis techniques.” AR 35. The RFQ reiterated that each offeror was expected “to quote a
reasonable price” and that evaluators would “consider whether the cost/price adequately reflect[ed]
an understanding of the project” and was “consistent with the technical proposed solution.” AR
35.
Finally, the RFQ noted how the Government would assess potential price risk:

4

[e]ach price quote will be assessed to identify potential risk. Price risk refers to any
aspect of a contractor[’]s quote which could have significant negative cost/price
consequences for the Government. Where risk is assessed it may be described in
qualitative terms or used as a best-value discriminator.
AR 35.
Each offeror needed a minimum “Acceptable” rating in all factors and subfactors to be
considered for award. AR 34. According to the RFQ, the Government would utilize a trade-off
analysis and make award on a best value basis. AR 34. The Government’s stated goal was to
obtain “the highest technical quality considered necessary to achieve the project objectives, with
a realistic and reasonable price.” AR 34. In the event that submissions were evaluated as
technically equal in quality, price would become a “major consideration in selecting the successful
offeror.” AR 34.
Technical and Price Evaluation
Six contractors, including HHG and JPI, timely submitted quotations. AR 435. The
evaluators used the following adjectival rating scale to evaluate the proposals:
Excellent

Very Low Risk

Very Good

Low Risk

Satisfactory

Moderate Risk

Poor

High Risk

Unacceptable

Unacceptable Risk

The evaluators determined that four offerors – [***], did not provide letters of commitment
from their key personnel. AR 395, 409, 416, 430. The Government also determined that four
offerors – [***] did not “map” their key personnel to GSA labor categories, causing the
Government to question whether these offerors proposed key personnel with sufficient experience.
AR 398, 412, 426, 433.
The highly discounted labor rates of three offerors - - [***] - - prompted Government
uncertainty as to whether these offerors could provide sufficiently qualified personnel. AR 398,
412 (“The discounted pricing is low it doesn’t ensure that we will get the necessary experienced
level of contractor needed for the job.”); AR 426 (“The rate for the Software System engineer is
much lower than expected. It is uncertain to what level skill set the software engineer will
provide.”). Specifically, evaluators had concerns about an apparent inconsistency between [***]
technical proposal and its price quote and noted in the price evaluation that [***] provided “[n]o
explanation of labor categories with experience/skill detail. Labor categories bid do not match the

5

technical skill set required by SOW. Labor categories appear significantly junior to the Key
Personnel provided in the technical quote.” AR 398.
The technical evaluators rated offerors’ technical proposals as follows:

Vendor

Understanding,
Planning and
Technical
Approach

HHG
JPI
[***]
[***]
[***]
[***]

Satisfactory
Excellent
Very Good
Poor
Unacceptable
Poor

Management
and
Technical
Approach
and
Personnel
Qualifications
Very Good
Excellent
Very Good
Unacceptable
Unacceptable
Poor

Past
Performance

Overall
Technical
Rating

Very Good
Excellent
Excellent
Poor
Unacceptable
Poor

Very Good
Excellent
Very Good
Poor
Unacceptable
Poor

AR 392, 399, 406, 413, 420, 427.
The evaluators made the following determinations regarding offerors’ price quotations:
Vendor

Total Pricing

Integrated Assessment

HHG

$ [***]

Poor

JPI

$ 3,400,900.00

Excellent

[***]

$ [***]

Poor

[***]

$ [***]

Unacceptable

[***]

$ [***]5

Unacceptable

[***]

$ [***]

Unacceptable

AR 398, 405, 412, 419, 426, 433, 442. Based on these evaluations, three offerors – [***] were
deemed to be in the competitive range. AR 441.
5

[***] proposed a price of $[***] for the base year and the same price for each option year.
AR 288. In its award decision, the Government erroneously did not add [***] price proposal for
the base year and each option year, instead showing a price of $[***] for the base year, each of the
option years, and the total. AR 442.
6

Award
On August 1, 2016, DOI selected JPI for award. AR 434. The award decision clarified
that the agency was not utilizing a performance-based contracting approach and noted that JPI was
the “only offeror to receive an ‘Excellent’ rating in all non-price factors.” AR 441. The decision
continued that, although JPI’s quote was [***] and $[***] higher than HHG’s, it [***] the
Independent Government Estimate. AR 443. Regarding HHG’s discounted rates, the award
decision stated: “although the Government seeks to obtain discounts, the rates quoted must
demonstrate to the Government that the Offeror understands the knowledge, skills and abilities
required for the effort. [HHG’s] rates appear to be discounted to the point where it would be
questionable if the Offeror would obtain personnel with the requisite experience.” AR 443.
Notification of Award and Debriefing
On September 15, 2016, Contracting Officer Tonya Lovelace notified HHG that DOI had
determined that award to JPI was in the best interest of the Government. AR 476. On September
29, 2016, CO Lovelace provided HHG a brief explanation as to why HHG had not been selected
for award, as required by FAR Part 8. AR 483, 485. CO Lovelace stated that HHG had received
an overall technical rating of “Very Good” and that its quote “demonstrated a good overall
understanding of the scope of the Statement of Work and proposed well defined ways to address
the scope requirements.” AR 485. CO Lovelace provided the following list of weaknesses in
HHG’s quote that “significantly impacted” DOI’s award decision:


The modernization requirements were addressed as an upgrade and not a
transition to a different database



Penalties/cost adjustments were not highlighted



A deliverable schedule was not provided



An understanding of potential problems with report generation, self-service
reporting or migration was not described or demonstrated



Resumes and additional letters of intent were not included for key personnel



Labor category descriptions, to include experience and skill level details, were
missing for the proposed Software/IS Specialist II and Software/IS Specialist
III, respectively, which did not allow the Government to discern if the proposed
senior level labor categories would pose a risk to performance



Although this is a firm fixed price task order, the significantly discounted rates
posed significant risk to the completion of the requirements of this task order.

AR 485.
Initial Protests and Corrective Action
On September 26, 2016, HHG filed a bid protest with the Government Accountability
Office (“GAO”), challenging DOI’s award of the task order to JPI, and on October 7, 2016, HHG
supplemented its GAO protest. AR 486, 516-35. HHG alleged that although DOI downgraded
7

HHG’s proposal because the “modernization requirements were addressed as an upgrade and not
a transition to a different database,” the RFQ contained no requirement that offerors propose a plan
for transition to a different database. AR 520-21. Additionally, HHG complained that it had
received a weakness for omissions that were not required in the RFQ - - failing to highlight
penalties/cost adjustments and to provide a “deliverable schedule.” AR 521-22. Finally, HHG
claimed that DOI 1) overlooked relevant information in HHG’s proposal regarding key personnel
and labor categories, 2) improperly conducted a price realism analysis, 3) “Treated JPI’s Proposal
as the Standard for Technical Acceptability” rather than evaluating proposals based on the RFQ,
and 4) made an unreasonable best value determination - - failing to justify a [***]% price premium
for JPI’s proposal. AR 525-29.
DOI’s Head Contracting Authority issued a partial override of GAO’s automatic stay,
permitting partial performance to continue under JPI’s task order No. D16PD00878. AR 512.
SBA’s Response to HHG’s GAO Protest
In response to HHG’s protest, SBA conceded that it assigned weaknesses to HHG for
failing to include items not required in the RFQ - - penalties/cost adjustments or a deliverable
schedule - - and that HHG had provided the required information for its key personnel. AR 53637. Although it had concerns about key personnel, SBA determined that it could only hold HHG
to the minimum requirements of the labor categories that HHG mapped to the key personnel in the
RFQ. AR 538-39. SBA rejected HHG’s challenge to a price realism analysis and reiterated that
HHG’s price proposal was “poor” and posed significant risk to the government. AR 541.
DOI informed GAO that it would take the following corrective action:


Amend the solicitation to detail the agency’s minimum needs and ensure that
supplemental proposals are more uniformly responsive to those needs;



Invite supplemental technical and cost proposals from HHG, JPI, and any other
offeror(s) that had a reasonable chance of award;



Review all proposals according to the requirements set forth in the amended
solicitation;



Make a new best value determination.

AR 543.
HHG’s Objection to the Proposed Corrective Action
On October 25, 2016, HHG filed an objection with GAO to the agency’s decision to amend
the RFQ, asserting that the proposed corrective action was “merely an attempt to change the
evaluation criteria and retroactively justify its flawed evaluation,” given that the original RFQ
already set forth the Agency’s minimum needs. AR 552.

8

GAO’s Dismissal of HHG’s Protest
On November 7, 2016, in light of DOI’s decision to take corrective action, GAO dismissed
HHG’s protest as academic, and concluded that HHG’s objection to the forthcoming amendments
to the RFQ was premature and speculative. AR 556-57.
The Amended RFQ
On December 15, 2016, DOI issued an amended RFQ, containing the following changes:


The requirement for a “Quality Assurance Surveillance Plan” was replaced with a “Quality
Control Plan.” Compare AR 20-21 with AR 612-13.



DCMS Modernization Planning – The original RFQ simply stated that the contractor
“shall participate in DCMS Modernization Planning,” while the amended RFQ amplified
this requirement and set forth details on the scope of DCMS modernization activities
including the contractor’s role and responsibilities. Compare AR 22 with AR 614.



Key Personnel Definition – The original RFQ contained no requirement for contractors to
cross reference their GSA Schedule IT-70 labor categories with those in the RFQ and did
not require contractors to submit signed letters of commitment. See AR 29-30. The
amended RFQ requires that “contractor[s] shall cross reference their GSA Schedule IT-70
labor categories with those listed in section 3.12 and provide skill set, education and
experience descriptions and complete resumes for all proposed key personnel.[6] The
contractor shall submit signed letters of commitment for all key personnel.” AR 622.



Key Personnel Designation – The original RFQ did not contain specific education,
experience, or skills required for each key personnel section, providing only the job title
and the number of personnel required. AR 30. The amended RFQ added the following
education, experience, and skill requirements:

Title
Senior Computer Systems Analyst

Education, Experience, and Skill #
Set
Min BA/BS. Min. 10 years’ 1
experience using SQL, Crystal
Reports, Microsoft Office Suite,
Visual Basic, XI R2, SMPT, FTP,
and ASP.net programming languages

A cross-reference or “crosswalk” is the analysis of whether the labor categories proposed
by each offeror are substantially equivalent to labor categories in the solicitation. See Femme
Comp Inc. v. United States, 83 Fed. Cl. 704, 743 (2008).
6

9

Senior Application Engineer

Min BA/BS. Min. 10 years’ 1
experience using SQL, Crystal
Reports, Microsoft Office Suite,
Visual Basic, XI R2, SMPT, FTP,
and ASP.net programming languages

Software Systems Engineer

Min BA/BS. Min. 6 years’ 1
experience using SQL, Crystal
Reports, Microsoft Office Suite,
Visual Basic, XI R2, SMPT, FTP,
and ASP.net programming languages

AR 622.


Technical Quote and Price –The original RFQ did not explicitly provide for a price
realism analysis but noted that the Government’s objective was “to obtain the highest
technical quality considered necessary to achieve the project objectives, with a realistic
and reasonable price.” AR 34. The Amended RFQ provides that “[a] price realism
analysis may be conducted to determine whether prices are so low that it reflects a lack
of technical understanding” and that “[p]roposals may be rejected for offering
unrealistically low prices.” AR 623, 628.



Understanding, Planning and Technical Approach – The amended RFQ provides
that contractors will be evaluated on the “[a]dequacy of the proposed labor categories
and level of effort,” while the original RFQ included no such evaluation factor.
Compare AR 34 with AR 627.



Qualifications and Commitments of Personnel – The amended RFQ provides that
offerors will be evaluated on whether they “[p]rovide signed letters of commitment for
proposed key personnel” and that “[g]reater years of experience will merit a higher
evaluation rating.” AR 627. The original RFQ did not contain such evaluation criteria.
See AR 35.

HHG’s Second GAO Protest
The deadline for submission of revised proposals was extended to January 19, 2017, and
on January 10, 2017, HHG filed a second GAO protest challenging the corrective action, i.e., the
amendments to the RFQ. AR 658. On January 17, 2017, HHG withdrew its GAO protest and
filed this action the next day.
Discussion
Plaintiff alleges that DOI’s corrective action was infirm in two respects: 1) amending the
RFQ rather than simply reevaluating proposals against the original RFQ and 2) favoring JPI by
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adding heightened requirements for key personnel, permitting the agency to conduct a price
realism analysis, further detailing contractor responsibilities for database modernization planning
and replacing the requirement for a Quality Assurance Surveillance Plan with a Quality Control
Plan. Pl.’s Mot. 18-25.
Defendant seeks dismissal on standing grounds or alternatively contends that this
reprocurement is rational and does not favor JPI.
Jurisdiction
This Court has jurisdiction over bid protest actions pursuant to 28 U.S.C. § 1491(b) (2012)
(“[Court of Federal Claims] . . . shall have 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.”). The Court’s bid protest
jurisdiction includes protests of an agency’s corrective action. See Sys. Application & Techs., Inc.
v. United States, 691 F.3d 1374, 1381 (Fed. Cir. 2012).
Standing
Defendant contends that Plaintiff lacks standing. “[S]tanding is a threshold jurisdictional
issue.” Myers Investigative & Sec. Servs., Inc. v. United States, 275 F.3d 1366, 1369 (Fed. Cir.
2002). In a bid protest action, a plaintiff must meet the standing requirements of Article III of the
United States Constitution as well as the Tucker Act. Weeks Marine, Inc. v. United States, 575
F.3d 1352, 1359 (Fed. Cir. 2009). The Tucker Act imposes “more stringent standing requirements
than Article III.” Id. To have standing to bring a bid protest action, a plaintiff must be an
“interested party” within the meaning of § 1491(b)(1). See Rex Serv. Corp. v. United States, 448
F.3d 1305, 1307 (Fed. Cir. 2006). To qualify as an interested party, a plaintiff must satisfy a twopart test: 1) be an actual or prospective bidder and 2) have a direct economic interest in the
procurement. See id.
Because Plaintiff was a qualified offeror in the competitive range under the original RFQ
and filed a protest challenging the amended RFQ prior to the close of bidding, Plaintiff qualifies
as a prospective offeror. CGI Fed., Inc. v. United States, 779 F.3d 1346, 1349 (Fed. Cir. 2015).
In a preaward protest, to satisfy the requirement for direct economic interest, a protestor must
allege a “non-trivial competitive injury which can be redressed by judicial relief.” Id. at 1351
(internal citation and quotation marks omitted). In claiming that the agency’s “introduction” of a
price realism analysis and the heightened experience requirements for key personnel do not reflect
the agency’s needs, but instead are designed to favor another bidder, Plaintiff has alleged a nontrivial competitive injury. Weeks Marine, 575 F.3d at 1362; see Prof’l Serv. Indus., Inc. v. United
States, 129 Fed. Cl. 190, 201 (2016).
Standard of Review
The Court evaluates bid protests under the Administrative Procedure Act’s standard of
review. Bannum, Inc. v. United States, 404 F.3d 1346, 1351 (Fed. Cir. 2005) (citing Impresa
Construzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324, 1332 (Fed. Cir. 2001)).
Under this standard, the Court will not set aside an agency’s procurement decision, unless the
agency abused its discretion or acted arbitrarily, capriciously, or otherwise not in accordance with
11

law. 5 U.S.C. § 706(2)(A) (2012); Adams & Assocs., Inc. v. United States, 741 F.3d 102, 105-06
(Fed. Cir. 2014); Ala. Aircraft Indus., Inc. - Birmingham v. United States, 586 F.3d 1372, 1375
(Fed. Cir. 2009). The Court will “uphold a decision of less than ideal clarity if the agency’s path
may reasonably be discerned.” Bowman Transp., Inc. v. Ark.-Best Freight Sys., Inc., 419 U.S.
281, 286 (1974). If the Court finds that the agency’s actions were contrary to law or regulation,
the plaintiff must also show that the violation was prejudicial in order to obtain relief. Bannum,
404 F.3d at 1351; Caddell Constr. Co. v. United States, 125 Fed. Cl. 31, 51 (2016).
Under Rule 52.1 of the Rules of the Court of Federal Claims, the parties are limited to the
AR, and the Court makes findings of fact as if it were conducting a trial on a paper record. See
Bannum, 404 F.3d at 1354. In the examination of the AR, the Court must determine whether a
protester has met its burden of proof based on the evidence in the record. Id. at 1355 (internal
citations omitted).
The Scope of DOI’s Corrective Action
“[T]he Court has long recognized that contracting officers have ‘broad discretion to take
corrective action where the agency determines that such action is necessary to ensure fair and
impartial competition.’” SOS Int’l LLC v. United States, 127 Fed. Cl. 576, 585 (2016) (quoting
Amazon Web Servs., Inc. v. United States, 113 Fed. Cl. 102, 115 (2013)). “The contracting agency
does not have to ‘admit an error’ prior to its decision to pursue corrective action.” Wildflower
Int’l, Ltd. v. United States, 105 Fed. Cl. 362, 386 (2012) (quoting ManTech Telecomms. & Info.
Sys. Corp. v. United States, 49 Fed. Cl. 57, 72 (2001)). “[I]n considering the propriety of an
agency’s corrective action, the court must consider whether the agency’s decision was ‘reasonable
under the circumstances.’” WHR Grp., Inc. v. United States, 115 Fed. Cl. 386, 395-96 (2014)
(quoting Sheridan Corp. v. United States, 95 Fed. Cl. 141, 151 (2010)). The agency’s “reason for
the corrective action must be supported by the evidence in the record.” Sheridan, 95 Fed. Cl. at
151. An agency cannot meet this bar unless it examined the relevant data and articulated a coherent
and reasonable explanation for its decision. WHR Grp., Inc., 115 Fed. Cl. at 396 (citing Motor
Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S 29, 43 (1983)).
Here, the parties agree that corrective action was warranted but dispute the scope of proper
corrective action. Defendant asserts that the agency’s issuance of an amended RFQ that reflects
the agency’s needs was appropriate. Plaintiff contends that because DOI took corrective action to
remedy errors in the evaluation, not errors in the terms of the RFQ, amendment of the RFQ rather
than a reevaluation of existing offers, went too far and was not “rationally related to the defect to
be corrected.” Pl.’s Mot. 18, 21. Preventing an agency from correcting errors just because they
were not pointed out by a protestor, would unduly hamstring an agency and detrimentally affect
the procurement process. To force an agency to make an award under a solicitation it deems
flawed would make no sense and perpetuate error.
In any event, in the instant case, the evaluation errors the protest identified were not as
divorced from errors in the original RFQ as Plaintiff suggests. Rather, the evaluation problems
that surfaced in the protest - - in particular the exceptionally low pricing - - brought to light
deficiencies in the RFQ in areas where the agency had understated, or ambiguously stated, its
needs. In reviewing the allegations in Plaintiff’s initial GAO protest, the agency became aware
that the original RFQ did not contain the criteria necessary to obtain sufficiently experienced key
personnel.
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In the price evaluation, the evaluators noted that in Plaintiff’s proposal the Senior
Computer Systems Analyst was given a GSA crosswalk Labor Category of [***], which is not the
senior level labor category and has a minimum of only [***] years of experience. The evaluators
concluded that this lack of seniority posed a significant risk to the Government due to the
experience needed to perform the Statement of Work. AR 398. The evaluators also had concerns
about [***] price, noting that that the pricing was so low as to cause concern that the agency would
not receive the level of experience necessary for the job, and the minimum qualifications proposed
in the labor categories did not meet the Statement of Work’s needs for key personnel. AR 412.
Additionally, the evaluators noted that [***] Senior Computer Systems Analyst did not have the
required experience, which posed “significant risk to the government” and the rate for its Software
System Engineer was much lower than expected, raising questions about the skill level of the
software engineer. AR 423, 426. Based on these concerns the evaluators assigned these offerors
weaknesses and rated their price proposals as either poor or unacceptable. AR 398, 412, 422, 426.
In reviewing the allegations in HHG’s initial protest, the agency recognized that it could
not hold HHG (and other offerors) to more stringent experience requirements than were set forth
in the original RFQ. AR 538-39. The original RFQ did not include any minimum education or
experience requirements for key personnel or require offerors to cross-reference their GSA
Schedule IT-70 labor categories with the designated key personnel. See AR 30. For each key
personnel position, the agency added the requirement of a Bachelor of Arts or a Bachelor of
Science degree. In addition, for the Senior Computer Systems Analyst position and the Senior
Application Engineer positions, the agency set a minimum of 10 years of experience working with
specified software programs and for the Software Systems Engineer, a minimum of six years of
experience with these programs. AR 589. The agency also directed offerors to “cross reference
their GSA Schedule IT-70 labor categories with those listed in section 3.12 [Key Personnel]” and
“submit signed letters of commitment for all proposed key personnel.” AR 622.
Upon realizing that its RFQ failed to specify the requisite education and experience, the
agency acted reasonably in amending the solicitation. In a procurement where the Government’s
stated objective was to “obtain the highest technical quality” for the agency’s “highly
unpredictable” workload, which required contractor “flexibility to meet changing capacity needs”
in the event of a “disaster activity surge,” it was reasonable for the agency to amend the solicitation
to ensure that it could obtain key personnel with sufficient education and experience for successful
task order performance.
The Price Realism Requirement
Plaintiff contends that the agency’s “introduction” of a price realism methodology in the
amended solicitation was irrational, that the AR does not support a need to add a price realism
analysis, and that the only reason to add this requirement was to “penalize offerors that proposed
a lower price.” Pl.’s Mot. 24. In fixed-price procurements such as this, the agency ordinarily does
not consider the “realism” of offerors’ proposed prices, because the contractor bears the risk of
underpricing its offer. See Ceres Envtl. Servs., Inc. v. United States, 97 Fed. Cl. 277, 303 (2011)
(citing Fulcra Worldwide, LLC v. United States, 97 Fed. Cl. 523 (2011); see also Afghan Am.
Army Servs. Corp. v. United States, 90 Fed. Cl. 341, 356 (2009). However, even in a fixed-price
procurement, it is within an agency’s discretion to provide for a price realism analysis “to measure
an offeror’s understanding of the solicitation requirements, or to avoid the risk of poor performance
from a contractor who is forced to provide goods at little or no profit.” Ceres, 97 Fed. Cl. at 303.
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Here, proposed low pricing on the part of three offerors gave the agency sound reason to
both question their ability to perform and to clarify that price realism might be evaluated. During
the technical evaluation, evaluators became concerned that Plaintiff had not proposed sufficiently
experienced personnel to meet the demands of the project because its proposed pricing and labor
categories were “not in line with the [Independent Government Estimate].” AR 398. Plaintiff’s
price quote was substantially below the IGE - - $[***], [***]% [***] of $[***]. Additionally,
evaluators noted that [***] discounted pricing was low and did not “ensure we will get the
necessary experienced level of contractor needed for the job,” and that [***] price quotation for
the Software Engineer was “much lower than expected,” making it uncertain what level skill the
software engineer would provide. AR 412, 426; see Rotech Healthcare, Inc. v. United States, 121
Fed. Cl. 387, 403 (2015) (“A ‘price realism’ analysis may be called for if a bidder’s price appears
to be ‘so low that performance of the contract will be threatened.’” (quoting DMS All-Star Joint
Venture v. United States, 90 Fed. Cl. 653, 657 n.5 (2010))).
The original RFQ had adequately put offerors on notice that their prices should be realistic
as well as reasonable when it informed offerors that the agency sought to obtain services with a
“realistic and reasonable price” and that, in evaluating price quotes, it would consider whether the
quote reflected “an understanding of the project.” AR 34-35; see also AR 34 (providing that
understanding the scope of the subject matter was an express technical evaluation factor).
Nonetheless, given Plaintiff’s GAO protest that the RFQ did not give offerors adequate notice, it
was reasonable for the agency to amend the RFQ to more explicitly state that the agency might
conduct a price realism analysis.
Other RFQ Amendments
Plaintiff’s remaining two quibbles with the amendments to the RFQ can be summarily
denied. First, Plaintiff contends that the amended RFQ’s replacement of a Quality Assurance
Surveillance Plan (“QASP”) with a Quality Control Plan (“QCP”), does not reflect the agency’s
requirements. However, replacing the QASP (which required a plan for measuring performance
against standards) with a QCP, resolved an ambiguity as to whether this was a performance-based
acquisition requiring a deliverable schedule and penalties/cost adjustments. See AR 20-21; 48
C.F.R. § 37.601 (2006) (providing that performance-based contracts for services shall include
“[m]easurable performance standards (i.e., in terms of quality, timeliness, quantity, etc.) and the
method of assessing contractor performance against performance standards”).
Second, Plaintiff contends that the agency’s decision to amend the DCMS Modernization
and Planning Requirement was unreasonable because the amendment simply reflected JPI’s
original proposal. The original RFQ required the contractor to “participate in DCMS
modernization planning, assuming the role of subject matter expert for current and future DCMS
database design and reporting requirements.” AR 22. The amended RFQ clarified that the
contractor’s modernization planning responsibilities did not include “the development of a new
database” or the “migration of data from the legacy to the modernized database” and added a list
of specified modernization planning activities. AR 614; see AR 561. Such clarification was within
the agency’s discretion.

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Plaintiff Has Not Established Favoritism or Bias
Finally, Plaintiff argues that “[b]ecause revising the RFQ was not necessary to remedy
DOI’s evaluation defects, it is clear that DOI revised several of the original RFQ requirements to
tailor this evaluation in favor of DOI’s prior awardee, JPI.” Pl.’s Mot. 22. Plaintiff further asserts
that DOI intended to “‘hardwire’ this award for JPI.” Id. While Plaintiff does not explicitly allege
bias or bad faith, Plaintiff in essence claims that, in taking corrective action, the agency intended
to direct the award to JPI. The record contains no support for this serious allegation which is
tantamount to charging the agency with bad faith.
A protestor can show an agency acted in bad faith if its allegations are supported by “almost
irrefragable” proof. Galen Med. Assocs., Inc. v. United States, 369 F.3d 1324, 1330 (Fed. Cir.
2004) (quoting Info. Tech. Applications Corp. v. United States, 316 F.3d 1312, 1323 n.2 (Fed. Cir.
2003)). “Almost irrefragable proof” amounts to “clear and convincing evidence” of some “specific
intent to injure” the protestor. Id. (internal citations and quotation marks omitted). In claiming
favoritism, Plaintiff contends that, because the original RFQ reflected the agency’s needs, the
amendments to the RFQ cannot reflect the agency’s needs, but rather serve to “shore up its decision
to award the contract to JPI.” Pl.’s Mot. 11. From this convoluted and speculative construct,
Plaintiff concludes that “[i]t is clear that JPI’s proposal dictated the needs of the Agency.” Id. at
27. Plaintiff’s arguments of favoritism are insinuations that JPI was given a competitive advantage
under the amended RFQ because its original proposal appeared to be responsive to the revised
terms of the amended solicitation. Plaintiff failed to demonstrate via “clear and convincing
evidence” that the agency acted in bad faith either to tailor a new award to JPI, or injure Plaintiff.
Conclusion
Defendant’s motion to dismiss for lack of standing is DENIED.
Plaintiff’s motion for judgment on the AR is DENIED.
Defendant’s cross-motion for judgment on the AR is GRANTED.
Intervenor’s cross-motion for judgment on the AR is GRANTED.

s/Mary Ellen Coster Williams
MARY ELLEN COSTER WILLIAMS
Judge

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