SUPPLYCORE INC. v. USA

Filing 41

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

In the United States Court of Federal Claims
No. 17-427C
(Filed: June 16, 2017)1
(Re-filed: June 28, 2017)
********************
SUPPLYCORE INC.,
Plaintiff,
v.

THE UNITED STATES,

Post-award bid protest; Past
performance; Unstated evaluation
criteria; Inadequate discussions;
Best value tradeoff.

Defendant,
and
S&K AEROSPACE, LLC,
Intervenor.

********************
William E. Hughes, Milwaukee, WI, with whom was Emily A.
Constantine, for plaintiff.
Daniel B. Volk, United States Department of Justice, Civil Division,
Washington, DC, with whom were Chad A. Readler, Acting Assistant
Attorney General, Robert E. Kirschman, Jr., Director, Douglas K. Mickle,
Assistant Director, for defendant. Michael G. McCormack, Air Force Legal
Operations Agency, of counsel.

1

This opinion was originally issued under seal to afford the parties an
opportunity to propose redaction of protected information. The parties have
not proposed any redactions. The opinion thus appears as in the original.

Michelle E. Litteken, Washington, DC, with whom were Pamela J.
Mazza, Megan C. Connor, Jacqueline K. Unger, for intervenor.
OPINION
This is a post-award bid protest by SupplyCore Inc. challenging the Air
Force’s award of a services contract for supply logistics, maintenance, and
other analytical or technical services in support of the Air Force’s Parts and
Repair Ordering System (“PROS”). The awardee, S&K Aerospace, LLC
(“S&K”), intervened. The parties have filed cross-motions for judgment on
the administrative record, which are fully briefed. Oral argument was held on
June 7, 2017. As announced at the conclusion of oral argument, because the
Air Force was not arbitrary or capricious in its award decision, the protest is
denied.
BACKGROUND
I. The Solicitation
The Air Force Security Assistance and Cooperation Directorate
(“agency”) issued Request for Proposals No. FA8630-14.5-5030 (the
“solicitation” or “RFP”) on April 20, 2015, for the Air Force’s next iteration
of the PROS support contract, known as “PROS V.” The PROS V contractor
will provide critical support services for the Air Force’s system for foreign
military buyers to acquire “non-standard and hard-to-support parts and related
repairs” for previously purchased military equipment. Administrative Record
(“AR”) at 2. The contract has a government estimated value of $4.2 billion.
The solicitation was for an indefinite-delivery/indefinite-quantity of
services with a five-year base period, five option years, and a five-year
closeout period. The solicitation promised a best value determination based
on three factors: Technical Capability, Past Performance, and Price.
Technical Capability was rated on an acceptable/unacceptable basis while Past
Performance was rated adjectively and the total price was evaluated for
reasonableness and “balanced pricing.” AR at 322-23. Past performance and
price were weighted equally; thus, as among technically acceptable offerors,
the Air Force performed a trade off analysis between those two factors to
evaluate which bidder offered the best value to the government. The
evaluation and award process was a negotiated procurement under Federal
Acquisition Regulation (“FAR”) part 15.
2

The Technical Capability factor was subdivided into three subfactors:
Process Performance, Performance Management, and Small Business
participation. An offeror needed to be rated “acceptable” for each technical
subfactor in order to be considered for award. AR at 319. The solicitation
provided offerors with various “Measures of Merit” for each subfactor that
related to elements of the RFP’s Performance Work Statement (“PWS”).
Offerors were required to show they would meet these measures in order to be
rated as acceptable. See AR at 319-20 (Process Performance); 320-22
(Program Management); 322 (Small Business Participation). There were 21
Measures of Merit in total across all three subfactors.
Past performance was evaluated for the Air Force’s level of confidence
in an offeror’s “ability to meet requirements based on a demonstrated record
of performance.” AR at 323. Offerors were instructed to submit a maximum
of three past contracts for themselves and up to three past contracts per
subcontractor that would be performing at least 10 percent of the work. The
following overall adjectival ratings were the possible results:
Rating

Description

Substantial
Confidence

Based on the Offeror’s recent/relevant performance
record, the Government has a high expectation that
the Offeror will successfully perform the required
effort.

Satisfactory
Confidence

Based on the Offeror’s recent/relevant performance
record, the Government has an expectation that the
Offeror will successfully perform the required effort.

Limited
Confidence

Based on the Offeror’s recent/relevant performance
record, the Government has a low expectation that
the Offeror will successfully perform the required
effort.

No Confidence

Based on the Offeror’s recent/relevant performance
record, the Government has no expectation that the
Offeror will successfully perform the required effort.

Unknown
Confidence
(Neutral)

No recent/relevant performance record is available
or the Offeror’s performance record is so sparse that
no meaningful confidence assessment rating can be
reasonably assigned.
3

AR at 323. As part of the evaluation, the Air Force considered both the
recency, relevance, and quality of performance for each of the submitted past
performance references (contracts). Submitted contracts or subcontracts had
to have been performed within the past five years to be considered recent.
Each contract meeting the recency requirement was then evaluated for
its relevance to the contract being solicited. Past performance contracts were
considered either very relevant, relevant, somewhat relevant, or not relevant,
depending on the agency’s view of how similar the cited contracts were in
“scope and magnitude of effort and complexities” as compared to the contract
at issue. AR at 324. As part of that determination, the solicitation informed
offerors that the Air Force would “conduct an in-depth evaluation of recent
performance information obtained to determine how closely the products
provided/services performed under those contracts relate to the Technical
Subfactors (Section M Paragraphs 2.1.1-2.1.3).” Id. The Air Force thus
assigned three relevance ratings per past performance contract–one for each
technical subfactor.
The Performance Quality Assessment focused on “performance relevant
to the technical subfactors” and the solicitation warned that “all aspects of
performance that related to this acquisition may be considered.” AR at 325.
Recent and relevant contracts were given adjectival descriptions for
performance quality as well:
Quality Assessment
Rating
Exceptional (E)

Description
During the contract period, contractor
performance is meeting (or met) all contract
requirements and consistently exceeding (or
exceeded) many. Very few, if any, minor
problems encountered. Contractor took
immediate and effective corrective action.

4

Very Good (VG)

During the contract period, contractor is
meeting (or met) all contract requirements and
consistently exceeding (or exceeded) some.
Some minor problems encountered. Contractor
took timely corrective action.

Satisfactory (S)

During the contract period, contractor
performance is meeting (or met) all contract
requirements. For any problems encountered,
contractor rook effective corrective action.

Marginal (M)

During the contract period, contractor
performance is not meeting (or did not meet)
some contract requirements. For problems
encountered, corrective action appeared only
marginally effective, not effective, or not fully
implemented. Customer involvement was
required.

Unsatisfactory (U)

During the contract period, contractor
performance is failing (or fail[ed]) to meet most
contract requirements. Serious problems
encountered. Corrective actions were either
ineffective or non-existent. Extensive Customer
oversight and involvement was required.

Not Applicable (N)

Unable to provide a rating. Contract did not
include performance for this aspect. Do not
know.

AR at 326. As with the relevance determination, each past performance
reference was rated three times for performance quality–one for each technical
subfactor. The relevance and performance quality ratings then were combined
by the Air Force to come up with an overall confidence assessment rating, as
mentioned above.
II. The Evaluation And Award
Four offerors submitted proposals. None were initially rated as eligible
for award, but all were included in the competitive range. The Air Force then
opened discussions with each offeror. After three rounds of discussions and
5

proposal revisions, three of the offerors–including plaintiff and
intervenor–were rated as technically acceptable and considered for award.
Plaintiff was rated as technically acceptable with a total evaluated price
of $4,007,180,003 and a Past Performance rating of satisfactory confidence.
Intervenor was rated as technically acceptable with a total evaluated price of
$4,010,130,466 and a Past Performance rating of substantial confidence. A
third offeror was technically acceptable with a $4,010,605,422 total price and
a satisfactory confidence rating for Past Performance. All three offerors’
prices were found to be reasonable and balanced.
The Source Selection Evaluation Board (“SSEB”) generated a
comprehensive narrative summary, the Proposal Analysis Report (“PAR”), AR
at 1164-214, which contained a summary of the procurement, the evaluation
criteria, the proposals, and the SSEB’s evaluation of them. That information
was then put in slide format and presented by the SSEB Chair and the
Contracting Officer (“CO”) to the Source Selection Authority (“SSA”), AR at
1216-1292. A cost comparison was also prepared, which broke out the fixed
costs from the contractor-supplied costs. AR at 1293. The Source Selection
Advisory Council also prepared a shorter summary of the SSEB’s evaluation
and presented it to the SSA. The results, as recorded in these documents, were
as follows.2
A. SupplyCore
Plaintiff submitted three past performance contracts for itself and three
for its one large subcontractor. All six were rated as relevant or better. For the
first technical subfactor, Process Performance, SupplyCore was found to have
two very relevant references, both of which were rated as satisfactory for
performance quality. The four other contracts were rated as relevant and the
performance quality ratings ranged from “very good” to “not applicable.”
SupplyCore had no adverse ratings for this subfactor.

2

All three final offerors were found technically acceptable overall and for all
three technical subfactors (Process Performance, Program Management, and
Small Business Participation). Because that factor was effectively a pass/fail
test, we will limit further discussion to the discriminating factors of Past
Performance and Price.
6

For the second technical subfactor, Program Management, plaintiff was
rated as having one very relevant contract with a satisfactory performance
rating and four relevant contracts with satisfactory performance quality ratings.
The sixth contract was rated as relevant but was not rated for performance
quality. No marginal or unsatisfactory performance was reported.
For the Small Business Participation subfactor, plaintiff did not have
any past performance contracts that met the requirements of the PROS V
contract.
The SSEB’s past performance evaluators assigned an overall
performance confidence rating of satisfactory to plaintiff for the Past
Performance factor. This was explained in the PAR as a result of the SSEB’s
finding that SupplyCore had met all of the relevant requirements in each of its
six past performance references but had exceeded requirements in only one
contract for one technical subfactor. The one requirement that the SSEB found
SupplyCore to have exceeded was with respect to packing and shipping of
items internationally. Not having had any references relevant to the small
business subfactor, this subfactor neither negatively nor positively affected
Supplycore’s overall Past Performance rating.
Plaintiff’s final evaluated price was $4,007,180,003 which represented
only $35,000,003 of contractor controlled costs and a fixed cost of
$3,972,180,000. SupplyCore was the lowest offeror.
B. S&K
Intervenor submitted six relevant contracts for past performance
assessment, three for itself, including the incumbent PROS IV contract, and
three for two subcontractors. The past performance evaluators also found one
additional relevant previous contract effort and rated it as well. For the Process
Performance subfactor, five submitted contracts were found by the agency to
be very relevant. Two of those contracts had performance quality ratings of
very good and the other three were rated as satisfactory. The past performance
evaluators found that intervenor or its subcontractors had exceeded
performance requirements in four areas: 1) “Soliciting bids, proposals, and
quotes from vendors[,] 2) Dealing with international customers, 3) Handling
of classified and/ or hazmat items, and 4) Shipment and packing of items for
international shipment.” AR 1202. The SSEB found no adverse ratings for
this subfactor.
7

The evaluation of the second technical subfactor, Program
Management, resulted in a finding that two contracts were very relevant with
satisfactory performance quality ratings. The other five contracts ranged from
relevant with exceptional performance to not relevant and not performance
rated. Two requirements were found to have been exceeded: 1) Contract startup and 2) Quality assurance. No adverse ratings were reported.
For Small Business Participation, one contract was found to be relevant
with very good performance quality. S&K “exceeded the requirements for
small business.” AR 1202.
The overall Past Performance confidence rating assigned by the SSEB
was one of Substantial Confidence due to S&K having exceeded seven total
requirements across all three subfactors. All other requirements were met
across all of the relevant past performance references. The SSEB thus found
that S&K’s past performance proposal gave the Air Force a “high expectation
that the offeror will successfully perform the required effort.” AR at 1209.
Intervenor’s final total evaluated price was $4,010,103,446. Of which,
$37,923,446 was controlled by the contractor and $3,972,180,000 was fixed
by the government. Intervenor was thus the second lowest price. Comparing
only contractor-controlled costs, it was roughly three million dollars or 8.35
percent higher than SupplyCore. See AR at 1293.
C. The Award
The Source Selection Decision Document records that the SSA
consulted the SSAC, SSEB, agency counsel, and the Acquisition Center of
Excellence before making his final decision. AR at 1306. He also noted that
he chaired several SSAC and SSEB meetings earlier during the evaluation
process.
Because the highest rated offer for past performance was not also the
lowest priced, the SSA performed a trade off analysis to determine whether the
price premium of S&K’s proposal was worth the increased confidence in
successful performance (substantial versus satisfactory). His final conclusion
was that the $3 million dollar premium was worth paying over the life of a 15
year contract for an increased assurance of successful performance. He noted
that the price difference was only 0.073% when compared using the total
contract price (contractor-controlled plus government-supplied prices).
8

The Source Selection Decision Document recited the contract
requirements that the offerors had exceeded in their past performance efforts.
The difference between S&K’s seven exceeded
requirements and
SupplyCore’s one exceeded requirement was noted. He agreed with the
SSEB’s adjectival ratings and did not disturb any of them. The document also
reflects that the SSAC recommended award to S&K. The decision to award
to intervenor was dated October 13, 2016.
On November 2, 2016, plaintiff was informed that S&K was awarded
the contract. Plaintiff timely requested a debriefing, and the Air Force gave
one on November 8, 2016, wherein SupplyCore was presented with all of its
ratings. Plaintiff was also presented with S&K’s total price and adjectival
ratings for the factors and subfactors.
Consistent with the SSA’s
determination, SupplyCore was informed that the agency had deemed the
higher Past Performance confidence rating to be worth the small, 0.073%,
price difference. See AR at 1361-64.
III. Procedural History
On November 14, 2016, plaintiff filed a protest at the Government
Accountability Office (“GAO”). SupplyCore alleged that its past performance
had been evaluated unreasonably, that the agency had failed to give proper
weight to plaintiff’s low price, and that the best value tradeoff was thus
irrational. SupplyCore supplemented its protest a month later to add an
allegation that the Air Force had applied undisclosed evaluation criteria and
an allegation that S&K’s past performance was rated too high.
GAO denied the protest on February 2, 2017, finding that the allegation
of unstated evaluation criteria was without merit because the agency’s
reference to technical subfactors as part of the past performance evaluation in
the solicitation was sufficient to put offerors on notice of the agency’s interest
in the Measures of Merit as they related to offeror’s past performance
contracts. AR at 2261-62; SupplyCore, Inc., B-411648.2 et al., 2017 CPD ¶
72 (Comp. Gen. Feb. 21, 2017). As to plaintiff’s disagreements with its and
S&K’s specific past performance ratings, GAO found the agency’s evaluations
to have been reasonable and explained. As to the argument that price was not
properly considered, GAO found the trade off between price and past
performance to have been well within the zone of discretion afforded to
agency officials.
Plaintiff filed the present suit on March 24, 2017, and S&K intervened
9

on March 30, 2017. Plaintiff also filed a motion for a preliminary injunction
to preserve the status quo. Based on the agreement of the parties, that motion
was denied as moot on March 31, 2017. Defendant filed the Administrative
Record on April 7, 2017. The parties have since filed cross-motions for
judgment on the administrative record, and the case is thus ready for
disposition. Plaintiff presents much the same arguments in its complaint and
motion as it did at GAO. We will consider them each in turn.
DISCUSSION
We have jurisdiction over challenges brought by interested parties to
actions taken by federal agencies in connection with a procurement or
proposed procurement, both pre and post award. See 28 U.S.C. § 1491(b)(1)
(2012). The issue of standing, whether plaintiff is an interested party, is not
at issue. It clearly has a direct economic interest in the matter and would have
a “substantial chance of award” but for the alleged mistakes in the
procurement process. See Info. Tech. & Applications Corp. v. United States,
316 F.3d 1312, 1319 (Fed. Cir. 2003).
In order to successfully challenge the agency’s award decision, the
protester must establish that the agency’s decision was arbitrary, capricious,
an abuse of discretion, or otherwise not accordance with the law. This
standard is borrowed from the Administrative Procedures Act (“APA”), 5
U.S.C. § 706(2)(A) (2012). See 28 U.S.C. § 1491(b)(4) (adopting the APA’s
arbitrary and capricious standard of review). This is a deferential standard,
which means that the agency need only have a rational basis for its decisions
and not have otherwise violated any applicable law or regulation during the
procurement process. Weeks Marine, Inc. v. United States, 575 F.3d 1352,
1358 (Fed. Cir. 2009). As we frequently explain, absent some clear
irrationality or legal violation, the court will not set aside the agency’s
determinations because doing so would be a substitution of our judgment for
that of the agency decision makers. Redland Genstar, Inc. v. United States, 39
Fed. Cl. 220 (1997).
I. Unstated Evaluation Criteria
Plaintiff relies primarily on its first argument, which is that the Air
Force’s application of the Measures of Merit to its past performance evaluation
was not disclosed to offerors ahead of time. Had it been, plaintiff avers that
it could have tailored its proposal to show how its past performance efforts met
10

those metrics.
Defendant and intervenor counter that the agency put plaintiff on notice
of its interest in the relationship between the technical Measures of Merit and
offerors’ past performance several times in the solicitation. They cite to
subsections 2.3.2.2 and 2.3.2.3 of Section M of the solicitation, Evaluation
Factors for Award, wherein the agency notified offerors that it would be
comparing their past performance efforts with the technical subfactors. Given
that the solicitation’s promise to use the Measure of Merit to assess whether
offerors met the technical subfactor requirements, defendant and intervenor
argue that the reference to the technical subfactors in the Past Performance
evaluation section of the RFP was a sufficient disclosure of the relevance of
the Measures of Merit to Past Performance.
We agree. Section 2.3.2.2 states that, in evaluating the relevancy of
past performance contracts, the agency would “conduct an in-depth evaluation
of [past performance information] to determine how closely . . . the services
performed under those contracts related to the Technical Subfactors (Section
M Paragraphs 2.1.1-2.1.3).” AR at 324. Sections 2.1.1, 2.1.2, and 2.1.3 are
the evaluation criteria for each technical subfactor. Each section contains the
Measures of Merit relevant to that subfactor. The specific citation to those
sections draws a direct link between the Measures of Merit and the Past
Performance relevancy evaluation.
Similarly, section 2.3.2.3, Performance Quality Assessment, states that
this evaluation “will focus on performance relevant to the technical
subfactors.” AR at 325. As we stated above, the solicitation discloses in each
technical subfactors’ section the Measures of Merit related to that subfactor.
When these two successive references are read together, other than specifically
invoking the Measures of Merit by name, the Past Performance evaluation
section of the solicitation could hardly be clearer. The relevance of the
technical subfactors’ Measures of Merit to the agency’s evaluation of past
performance was disclosed in the evaluation.3 Plaintiff has not argued how or

3

Intervenor in fact organized the narrative portions of its Past Performance
volume by each technical subfactor and included descriptions of its
performance relative to the Measures of Merit for each subfactor. E.g. AR at
1514-1524 (portions of S&K’s narrative description of its performance of the
(continued...)
11

why this was otherwise irrational.
II. Inadequate Discussions
Plaintiff next argues that the Air Force ought to have disclosed to
plaintiff during discussions that the agency was applying the Measures of
Merit to the past performance evaluation. Plaintiff cites FAR part 15.306(d),
which requires that agencies tailor discussions to “each offeror’s proposal” and
must “indicate to, or discuss with, each offeror still being considered for
award, deficiencies, significant weaknesses, and adverse past performance
information to which the offeror has not yet had an opportunity to respond.”
48 C.F.R. § 15.306(d) (2016). The argument is that disclosure of plaintiff’s
failure to address the Measures of Merit would have given it a chance to
improve its proposal. Not having done so was misleading to plaintiff, it
argues.
The agency had no need to disclose its use of the Measures of Merit
during discussions because, as held above, it had done so already explicitly in
the solicitation. Further, plaintiff’s failure to specifically address them in its
Past Performance volume was not held against it as a weakness or deficiency.
Its contract references were found to be relevant or better and its performance
quality ratings were satisfactory. In fact, though it did not address them each
specifically in its Past Performance submission, the agency still found
SupplyCore to have exceeded requirements for one Measure of Merit. The Air
Force found no adverse past performance for SupplyCore. The agency thus did
not fail to disclose a material weakness or deficiency in contravention of the
FAR nor did it otherwise act irrationally in not addressing the format of
plaintiff’s past performance information (not addressing each Measure of
Merit specifically).
III. S&K’s Past Performance Ratings
Plaintiff challenges both the overall confidence rating assigned to
S&K’s Past Performance proposal and six of the seven individual requirements
that the Air Force found that S&K had exceeded. The Air Force considered
the technical subfactor’s Measures of Merit as they related to the past

3

(...continued)
PROS IV contract).
12

performance contracts and, where applicable, assessed whether the offeror met
or exceeded contract requirements in these areas. The general argument that
S&K was rated too high overall for Past Performance largely hinges on the
particular arguments that it was overrated by the agency in the particular areas
that the Air Force found intervenor to have exceeded contract requirements.
We thus consider each in turn.
A. Soliciting Bids, Proposals, and Quotes from Vendors
The Air Force found that one of intervenor’s subcontractors had
exceeded contract requirements in the area of soliciting bids, proposals, and
quotes from vendors, which relates to a Measure of Merit under the Process
Performance technical subfactor. See AR at 319. The previous contract effort
cited as exceeding requirements in this area was an Aircraft Structural
Components Prime Vender Contract performed by Parts and Repair Technical
Services, Inc. (“PARTS”), one of S&K’s proposed subcontractors.
The Performance Quality Consensus Worksheet states that the agency
point of contact (“POC”) for the Aircraft parts contract informed the past
performance evaluators that PARTS had exceeded “all expectations and
requirement[s for] soliciting quotes from multiple vendors. The document
continues with detail regarding how PARTS exceeded requirements.
Plaintiff challenges this conclusion, arguing that the Air Force failed to
actually find any particular requirements of the past performance contract to
have been exceeded and had instead relied only on the general positive
impression given by the POC for that prior contract. Without a specific
finding of what requirement in that prior contract had been exceeded, the Air
Force’s determination that S&K exceeded this Measure of Merit was arbitrary,
says plaintiff.
As intervenor points out in its response brief, plaintiff’s allegations are
without merit. The record contains several emails exchanged between the past
performance evaluators and the POC for the aircraft parts contract in which the
Air Force twice sought clarification whether specific contract requirements
had been exceeded. Although explaining how the particularities of that
contract made it difficult to have exceeded specific requirements, the POC was
clear that PARTS had in fact done just that in four particular areas. See AR at
1798 (Nov. 2015 email). The evaluation sheet cites this particular email
exchange as providing the basis for the Air Force’s conclusion that PARTS
13

had exceeded requirements. This was plainly reasonable.
B. Dealing with International Customers
The Air Force found that S&K exceeded requirements for the Measure
of Merit relating to communication with international customers (AR at 320)
on the PROS IV incumbent contract. AR at 1647. The Air Force cited the
2016 Contractor Performance Assessment Report (“CPAR”) in which it was
reported that intervenor had implemented a process to improve information
flow from contractor to foreign purchasers, “providing estimated lead times in
price approval messages.” Id. This, the agency found, helped foreign
purchasers improve supply chain decision making. The past performance
worksheet also reported that intervenor, at customer request, had increased its
customer support by providing “periodic reports on requisition status” and by
coordinating “a short-notice customer visit to a vendor conducting timesensitive repairs in support of tactical cargo aircraft.” Id.
Plaintiff finds fault with this evaluation, again arguing that this is
insufficient to show how S&K had exceeded any particular contract
requirement. Plaintiff argues that this is instead a reflection of favoritism for
an incumbent. It also speculates that S&K may have been forced to come up
with this new process because it was failing to meet requirements.
The CPAR cited in the worksheet specifically details that intervenor
exceeded the PROS IV contract’s timeliness requirement for responding to
customer inquiries. See AR at 1812. It is also no stretch of logic to infer that
the agency’s recitation of S&K’s innovations with regard to communication
with foreign customers and its coordination of visits from customers to
vendors are indications that S&K went above and beyond contract
requirements to provide a level of service unanticipated by PROS IV
solicitation and contract. The record provides ample support for the Air
Force’s finding that intervenor exceeded requirements in this area of its past
performance.
C. Handling of Classified and/ or HAZMAT Items
Next on SupplyCore’s list of challenged ratings is the Air Force’s
assessment that S&K exceeded contract requirements related to two Measures
of Merit, both part of the Process Performance technical subfactor and both
relating to handling, packing, and shipping of classified or hazardous materials
14

(Measures of Merit 2 and 11, AR at 319-20). The Air Force found that
intervenor had exceeded these requirements in performance of a third party
logistics contract (“TPL”) wherein the Saudi air force was the ultimate end
user of the parts and repairs sourced by S&K under the contract. See AR at
1686. The past performance worksheet for this contract reflects that the “most
positive aspect of [S&K’s] performance [was] maintaining the ability to to
control classified parts for the customer to include packing and shipping parts
for the customer.” AR at 1641. The CPAR for that contract recorded that
such classified parts repaired under the contract were returned faster than
required. S&K returned repaired parts at an average of 246 day turn around
time. AR at 1687. The CPAR states that the TPL contract allowed between
80-1300 days for such service, but required a 276 day standard.
Plaintiff challenges both the application of these standards as relating
to the particular Measures of Merit and whether, even if relevant, any
requirement was exceeded. Plaintiff argues that these Measures of Merit relate
to the contractor’s compliance with security and classification regulations and
have nothing to do with the speed of filling orders. Even if turnaround time
is relevant, plaintiff argues that, because the TPL contract allowed between 801300 days for part repair and return, intervernor cannot have exceeded this
requirement with a 246 day average.4
We cannot go so far. As intervenor explained, citing the 2014 TPL
contract CPAR, the130 plus parts involved in that contract effort were all
classified or involved classified testing or technical information. See AR at
1686. A reasonable metric for assessing contractor performance related to the
special security requirements imposed by the handling of classified materials
is whether the contractor was able to timely fill orders while complying with
these regulator requirements. This is plainly related to the Measures of Merit
cited by the Air Force in its past performance evaluation of S&K.3
4

Plaintiff asserts, without citation, that the 279 day “standard” cited in the
CPAR for return time was not a contract requirement.
3

Also relevant, of course, would be if S&K had failed to follow some
applicable regulatory rule in its handling of classified material during the TPL
contract performance. Presumably the Air Force would have found that very
relevant to its inquiry. We cannot say, however, that the timeliness of S&K’s
handling of classified materials is not relevant to the rating for handling
(continued...)
15

As the past performance worksheet detailed, intervenor exceeded the
TPL contract’s standard turnaround time. We cannot say that this was
irrational nor has intervenor shown how the TPL contract’s “standard”
turnaround time was not a requirement that was exceeded.
D. International Shipping and Packing
The Air Force found that intervenor exceeded contract requirements for
the International Shipping and Handling Measure of Merit for two contracts,
the TPL contract and the PROS IV contract. For the TPL contract, the past
performance worksheet indicates that the questionaire sent to the TPL POC
indicated that S&K exceeded requirements for international shipping. AR at
1641. The Air Force followed up by email, asking for specific information
regarding what requirement had been exceeded. AR at 1917-19. The
worksheet reflects that S&K exceeded an international shipment tracking
requirement by “.6%.” Id.; see also id. at 1820 (email response detailing what
requirement S&K had exceeded). As to the PROS IV contract, the past
performance worksheet records that intervenor exceeded the 90% accuracy
requirement for estimated shipping dates by maintaining a 92% accuracy rate.
AR at 1647. The CPAR for that contract reflects the same. AR at 1813.
Plaintiff challenges these assessments as not relating to specific contract
requirements and therefore inapposite to the question of whether S&K
exceeded any contract requirements that might relate to a Measure of Merit.
Plaintiff, again, provides its own speculation that intervenor may have
exceeded some requirement at some point during these contract performance
periods, but argues that this falls short of showing that S&K exceeded
performance for the entire contract performance.
Unsupported speculation notwithstanding, the record reveals that
agency POCs for the two cited contract efforts identified contract-specific
requirements that were exceeded by S&K. Our inquiry stops there. There is
no indication in the record that the POCs were confused about the question
presented to them, which was whether intervenor had exceeded a contract
requirement relating to the international shipping. The record reflects two

3

(...continued)
classified material. Such an inquiry is well within the zone of reasonableness
afforded to agency evaluators.
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specific contract requirements that were reported as having been exceeded for
the duration of those efforts. Plaintiff provides no basis to question either of
those facts.
E. Contract Start-Up
The Air Force also found that intervenor’s efforts on the TPL contract
exceeded requirements for the Contract Start-Up Measure of Merit, which
relates to the second technical subfactor, Program Management. The
worksheet for the TPL contract states that S&K exceeded requirements by
“providing proprietary information such as pricing and sources to the new
contractor.”4 AR at 1642. This information came to light after specific inquiry
from the past performance evaluators regarding whether any specific
requirements had been exceeded. The answer was that S&K was not required
to have provided the proprietary information that it did, but having done so, it
sped up and made the transition to the new contract from the old more
efficient.
Plaintiff challenges this, as it has with all the others findings, as not the
product of any actual contract requirement to have been exceeded. It
characterizes S&K’s performance in this regard as “gratuitous” but not
exemplary of exceeding any requirements. We disagree.
Although the Air Force’s finding in this regard does not relate to a
numeric metric expressed as a percentage or measure of time like several of
the other requirements that plaintiff unsuccessfully challenges, we are in no
position to second guess the government in this regard. Plaintiff is not wrong
in characterizing the provision of something not required under the subject
contract as a gratuity, but that alone provides no basis to question the agency’s
finding that S&K having done so exceeded what was required for contract
start-up under the TPL contract. It is certainly not irrational for the agency to

4

The new contractor referenced here is not the contractor performing the TPL
effort but rather a Saudi company supporting the end user, the Saudi Royal Air
Force. Intervenor was the incumbent contractor on the prior TPL effort, but
the company on the Saudi end was new at the time of the new TPL contract.
The American agency administering the TPL contract found intervenor’s
assistance to the new Saudi company to have smoothed the TPL contract start
up and found that this exceeded contract requirements.
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have characterized it that way.
F. Quality Assurance
Finally, plaintiff challenges the agency’s assessment that intervenor
exceeded Quality Assurance standards for two prior contracts. Quality
Assurance is the fourth Measure of Merit under the Program Management
technical subfactor.
The Air Force found that S&K exceeded quality assurance requirements
for a Multinational Repair and Return (“MRR”) contract administered by the
Air Force. The past performance worksheet states that the questionnaire
returned from the MRR contract POC stated that S&K had decreased repair
time and controlled repair costs despite the “increasing obsolescence” of the
F-15 fighter jet while maintaining a very low defect rate of “.01 %.” AR 1633.
The questionnaire also reflected that S&K was “ISO certified” and that this
exceeded a requirement. Id. at 1634. The past performance evaluators
followed up, however, by asking for details regarding whether specific
contract requirements had been exceeded in this regard. The POC clarified
that the MRR contract required only ISO compliance, not certification. Thus,
certification exceeded the requirement. See AR at 1827 (question), 1829
(answer). He also stated that the quality control of S&K was “always
exceptional with regard to the quality of repaired items, but [was] extremely
impressive during the last 3 years of the contract when there was not a single
validated [failure].” AR at 1829.
The Air Force also found that S&K’s subcontractor, PARTS, exceeded
contract requirements relating to quality assurance with regard to the Aircraft
components prime vendor contract, another contract administered by the Air
Force. The POC for that contract reported that the contractor had to find new
sources for obsolete items on multiple occasions and frequently get
government approval for first article items. See AR at 1635. The past
performance evaluators followed up with questions regarding the contract
requirements relevant to those facts. The POC explained that PARTS had
exceeded clause H-906 of that contract by not going over the allowance for
first article failure. Although the POC did not state what the precise limit was,
he stated that PARTS had experienced only one failure during the life of the
contract.
Plaintiff challenges both of these findings as arbitrary because they are
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not, in SupplyCore’s view, sufficiently supported by the record to show actual
performance requirements exceeded for the entire duration of the contract.
This disagreement with the evaluators is once again reflective of
SupplyCore’s view of the evaluation documents but not the agency’s. Plaintiff
has not, however, established with citation to the record why the agency’s view
is not reasonable.
As to the TPL contract, the past performance worksheet records that it
required a 99% defect-free rate for facilitated repairs. The worksheet also
states that S&K experienced no defects over the life of the contract. AR at
1642. This exceeds a requirement relating to the Quality Assurance Measure
of Merit. Further, ISO certification is not equivalent to ISO compliance. The
agency explained this difference in an affidavit provided to GAO, the essence
of which is that compliance is a self-certification but that actual certification
is performed by a third-party confirming that S&K met ISO standards. See AR
at 2212-15. It is not arbitrary to say that third-party certification of meeting a
standard exceeds the requirement to self-certify compliance.
Likewise, the Air Force’s inquiry regarding the aircraft component
prime vendor contract is sufficient support for its assessment that PARTS
exceeded that contract’s quality assurance requirement relating to first item
testing and failure rate. The POC stated the contract clause with particularity
and stated that the contractor had exceeded its requirements by only allowing
one first item failure during the life of the contract. We cannot agree with
plaintiff that any of this was unreasonable or unsupported by the record.
Having rejected plaintiff’s challenges to the Air Force’s evaluation of
intervenor as having exceeded contract requirements in six areas relating to
seven Measures of Merit, we find no basis on which to disturb the overall
rating for Past Performance assigned to S&K. There is one remaining
argument made by intervenor in this regard that we need consider, however.
G. Overall Quality Ratings
Plaintiff also argues that the Air Force was irrational in its Quality of
Performance ratings for one technical subfactor for each of two contracts
submitted by S&K that were rated as Exceptional. Plaintiff maintains that they
should have been rated Very Good instead because intervenor only established
that it exceeded “some” requirements not “many” requirements. See AR at
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326 (Quality Assessment adjectival rating definitions). For these two
contracts, plaintiff points out that intervenor was only rated as having
exceeded requirements in two areas, which, in its view, is far short of having
exceeded “many” requirements. It also points out that, for other subfactors,
exceeding only two requirements merited only a Very Good rating.
The government cites the CO’s Supplemental Statement of Facts
submitted to GAO in which the CO explained the agency’s methodology in
this regard. The CO stated that the agency “defined ‘some’ as one or more and
many to be greater than 49% of relevant requirements.” AR 2196. A review
of the past performance evaluation as a whole reveals that the 49 percent of
“relevant requirements” was an assessment of how many of the Measures of
Merit were related to a particular contract reference, not all of the measures.
As an example, if only four measures were relevant to a particular past
performance contract, and the contractor exceeded requirements for two of
them, it exceeded over 49 percent of the relevant measures and was found to
have exceeded “many” requirements. E.g. AR at 1641-42 (assessment of the
Program Management subfactor for the TPL contract). But, when, as with the
measures relevant to the Process Performance subfactor, an offeror exceeded
only two of five relevant requirements, it received a Very Good rating because
it exceeded one or more requirements but not over 49 percent of them. E.g. id.
at 1640-41 (assessment of the Process Performance subfactor for the TPL
contract). We find this methodology to be reasonable and find that the agency
applied it equally to all offerors. It thus provides no basis to upset S&K’s past
performance ratings.
IV. SupplyCore’s Past Performance Ratings
Plaintiff also disputes its own overall Past Performance rating and many
of the ratings for particular contracts. We need not delve into these allegations
in any detail. We have reviewed them all and find them to be disagreements
with the agency’s decision making but not reflective or arbitrary or capricious
conduct.5

5

We also note that, for the contracts that plaintiff cites as worthy of having
been rated higher, it does not provide actual contract requirements relating to
Measures of Merit relevant to those contracts that were exceeded, the very
thing for which it attempted to discredit the agency’s evaluation of intervenor.
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V. The Price Difference and Tradeoff Decision
Lastly, plaintiff challenges the Air Force’s consideration of its low price
as unreasonable in two ways. First, it asserts that the agency unreasonably
viewed the difference in price between it and intervenor as a percentage of the
contract price as a whole rather than a percentage of only the contractorcontrolled prices. Second, plaintiff argues that the tradeoff decision as a whole
was tainted by an irrational past performance evaluation and by an insufficient
weighting of plaintiff’s price advantage.
Plaintiff’s citation to its difference in price expressed as a percentage
of only contractor-controlled is unavailing. Although that is not irrelevant, the
agency was plainly aware of it and was not operating under any
misconceptions with regard to price. Although the vast majority of the cost of
the contract was fixed by the government, the agency considered the
approximately $3 million savings, which it expressed as a 0.73% of the total
cost, as insufficient to outweigh the additional confidence provided by S&K’s
proposal. Whether the price difference is expressed as 0.73% or 8.35%, as
plaintiff urges that it should have been, the fact remains that the agency
understood the difference in absolute dollars between the two proposals. The
Air Force chose the more expensive of the two because it viewed that proposal
as more likely to succeed in contract performance based on the past
performance evaluation. It also specifically noted that the price difference was
particularly small when considered over the life of a 15-year contract. This
was not irrational or contrary to law.
CONCLUSION
Because plaintiff has not identified any irrationality or other illegality
in the Air Force’s solicitation, evaluation, or award of the PROS V contract,
its protest must be denied. We need not consider whether an injunction is
merited because plaintiff has not succeeded on the merits. Accordingly,
plaintiff’s motion for judgment on the administrative record is denied.
Defendant’s and intervenor’s cross-motions for judgment are granted. The
Clerk of Court is directed to enter judgment for defendant. No costs.

s/Eric G. Bruggink
Eric G. Bruggink
Senior Judge
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