Evaluations/Discussions

In Samsara, Inc., a successful post-award protest, the court held that although the agency was not required to level the playing field by ignoring  a capability obtained by the awardee on a prior contract and properly downgraded the protester's proposal for failing to address one required area in the solicitation, the agency improperly used an unstated evaluation criterion to downgrade the protester's proposal for lacking a capability at award that it was not required to have until 180 days after award. 

In Aegis-KK/GardaWorld Federal Africa, a Joint Venture, a partially successful post-award protest, the court held that: (i) the agency's evaluation of the awardee's pricing was not objectionable because the solicitation did not require the level of granularity in pricing proposals alleged by the protester; (ii) although the solicitation did not require that a joint venture offeror have been in existence for a year, joint venture partners  existing under the same corporate umbrella did not satisfy the solicitation requirement that the partners have experience working together with one another for a year; (iii) letters from proposed key personnel expressing their interest in the contract and referring to their "agreement" with the awardee did not satisfy the solicitation requirement that offerors provide the actual employment agreements with  key personnel, and the agency failed to explain why it waived this requirement for the awardee, which requires the court to remand the matter to the agency for further explanation; (iv) the agency had a rational basis for accepting the awardee's explanation that it would meet the solicitation's licensing requirements within six months and the steps it would undertake to do so, especially given the nine-month period between the submission of offers and award; and (v) to the extent the awardee failed to provide sufficient information required by the solicitation concerning affiliates and officers, the failure was not prejudicial to the protester.  

In ASRC Federal Technology Solutions, LLC, an unsuccessful post-award protest, the court denied challenges to multiple aspects of the evaluation, holding: (i) where the solicitation explicitly informed offerors to base staffing levels on current requirements rather than historical levels, the agency's assignment of a weakness to the plaintiff's proposal in this area would not be second-guessed where the plaintiff's proposal was based on historical levels; (ii) there were rational bases for the assignment of a weakness to the protester's management proposal based on a perceived inconsistency between its proposed key personnel and that proposed approach; (iii) the agency rationally concluded the protester's proposal lacked sufficient information regarding its proposed labor categories to perform the work; and (iv) there was a rational basis for the agency's assignment of a strength to the awardee's organizational structure. 

In Health Net Federal Services, LLC, an unsuccessful post-award protest following corrective action, the protester attacked the evaluation of the awardee's proposed small business participation in multiple ways, but the court held that: (i) the agency's evaluation of the awardee's revised subcontracting plan, including goals and participation by proposed subcontractors, had a rational basis; (ii) the awardee's revised proposal did not include material misrepresentations as to its planned subcontract participation and commitments; (iii) during discussions, the agency adequately investigated various aspects of the awardee's proposal concerning its small business participation; (iv) the solicitation's subcontracting percentage was a goal rather than a requirement; and (v) there were rational bases for the agency's past performance evaluation related to small business participation and the agency's responsibility determination related to the awardee. 

In Ekagra Partners, LLC, et al., which involved unsuccessful post-award, consolidated protests of awards in each of two tracks in a solicitation for the award of multiple BPAs, the court held, inter alia, that: (i) the agency (a) had properly determined from looking at available information in public databases that certain proposed subcontractors were not small businesses under the only NAICS code assigned to the small-business-set-aside solicitation and (b) had not, thereby, conducted a "size determination" within the jurisdiction of the SBA; (ii) the agency correctly determined that it was not free to rely solely on the offerors' proposed small businesses' self-certification as small businesses under allegedly similar NAICS codes because the definition (scope) of a particular NAICS code is different from the size standard under that code; (iii) under Blue & Gold Fleet, the plaintiffs waived their argument that the solicitation was unclear as to how the NAICS code requirement would be verified by failing to protest until after award; (iv) the agency did not engage in disparate treatment by not reducing one awardee's self-score for using a large business subcontractor because awardee had properly scored it as a large business (while the protester had incorrectly scored it as a small business); (v) the agency had a rational basis for using the Federal Procurement Data System to verify whether an offeror's past performance references met the minimum required dollar value; (vi) even if the agency made mistakes in evaluating some of these references, only one failure was required and, therefore, the plaintiffs were not prejudiced by any mistakes; (vii) one of the plaintiffs lacked standing to complain that one awardee should have been declared ineligible because that plaintiff did not show it would have had a substantial chance of award had that ineligibility determination been made; (viii) the agency had a rational basis for finding a protester did not follow the solicitation requirement to propose labor categories "appropriate" for the required tasks; (ix) in most of the numerous cases alleged by the protesters, the agency did not apply unstated evaluation criteria and where there were errors, they were not prejudicial because there were other valid reasons the protesters were found ineligible for award; and (x) the agency's explanations for its findings of ineligibility were either adequate in the circumstances or, in the cases where they were not adequate, were non-prejudicial because there were other adequate reasons for finding the proposals ineligible for award. 

In Thalle Constr. Co., an unsuccessful post-award protest, the court held that: (i) the alleged inadequacy of a commitment letter from the awardee's proposed subcontractor was irrelevant because, in its revised offer, the awardee proposed to self-perform the work; and (ii) the awardee's revised proposal included the correct duration for its construction schedule. The court, however, found that the agency had not followed "best practices" in its imprecise description of its evaluations in both these areas, which had given the protester grist for its arguments and had made the court's job of assessing their validity more difficult. 

In L3Harris Technologies, Inc., an unsuccessful scattershot post-award protest, the court held, inter alia, that: (i) the agency properly evaluated the awardee's proposal in accordance with the stated evaluation criteria rather than the proposal preparation instructions; (ii) the plaintiff misinterpreted an evaluation criterion that applied to one subfactor as if it should be the standard for them all; (iii) the agency assigned a weakness to the awardee's proposal under the correct subfactor rather than the one espoused by the plaintiff; (iv) there was a rational basis for the weakness (rather than deficiency) assigned to one aspect of the awardee's proposal; (v) the allegation that the agency should have assigned multiple weaknesses, rather than a single weakness, to the awardee's proposal was mere quibbling with the agency's judgment, to which court owed deference; (vi) there was a rational basis for the agency's cost realism analysis, including the spare parts cost analysis;  (vii) there was a reasonable basis for the agency's evaluation of the awardee's costs associated with exercising options; (viii) the agency did not treat proposals unequally because the sections of the competing proposals in question were  not substantially identical; (ix)  the agency's evaluation was adequately documented; and (x) the plaintiff failed to allege the necessary hard facts demonstrating any agency impropriety in handling a possible issue of conflict of interest or unfair advantage. 

In SSI Claimsnet, LLC, and Availity, LLC, which involved unsuccessful consolidated post-award protests, the court denied the protesters' motions to supplement the administrative record with the results of evaluations from a similar, but separate, procurement that allegedly would have shown evaluation results inconsistent with the challenged evaluation in the current protests  and then held that: (i) under the agency's reasonable interpretation of the protester's less that perfectly clear proposal on this point, the evaluators' finding that the protester's proposed approach was "infeasible" had a rational basis; (ii) the agency treated one aspect of the protester's proposal unequally with a substantially indistinguishable aspect of the awardee's proposal but there was no prejudice because correcting that error would not have overcome the other technical advantages of the awardee's proposal; (iii) the agency's price reasonableness analysis had a rational basis, as did its finding that the protester's price was "unreasonable," making it ineligible for award, especially given that the protester's price was more than a standard deviation higher than the average; (iv) the agency's conclusion that the protester's pricing was unbalanced had a rational basis and was consistent with all applicable regs; and (v) the agency was not required to consider each of the awardee's CLINs separately in evaluating whether its pricing was unbalanced. 

In Eagle Hill Consulting, LLC, an unsuccessful post-award protest, the court held, inter alia, that: (i) an erroneous spreadsheet initially filed by the Government in the administrative record was not the spreadsheet actually provided to offerors, and thus was not the basis for a protest; (ii) the solicitation was not ambiguous concerning the method the agency would use to conduct the price analysis; (iii) the solicitation contained a patent ambiguity concerning the information the offerors were to include on the pricing worksheet, which the protester failed to timely challenge under the Blue & Gold Fleet standard;  (iv) the solicitation did not require the awardee to provide a "crosswalk" between the labor categories in its offer and those in its GSA schedule contract, and the agency did review the two sets of information, which was all that was required; and (v) there was an adequate explanation in the record for the agency's evaluation of Corporate Experience, which court would not second-guess. 

In L3Harris Technologies, Inc., an unsuccessful scattershot post-award protest, the court held, inter alia, that: (i) the agency properly evaluated the awardee's proposal in accordance with the stated evaluation criteria rather than the proposal preparation instructions; (ii) the plaintiff misinterpreted an evaluation criterion that applied to one subfactor as if it should be the standard for them all; (iii) the agency assigned a weakness to the awardee's proposal under the correct subfactor rather than the one espoused by the plaintiff; (iv) there was a rational basis for the weakness (rather than deficiency) assigned to one aspect of the awardee's proposal; (v) the allegation that the agency should have assigned multiple weaknesses, rather than a single weakness, to the awardee's proposal was mere quibbling with the agency's judgment, to which court owed deference; (vi) there was a rational basis for the agency's cost realism analysis, including the spare parts cost analysis;  (vii) there was a reasonable basis for the agency's evaluation of the awardee's costs associated with exercising options; (viii) the agency did not treat proposals unequally because the sections of the competing proposals in question were  not substantially identical; (ix)  the agency's evaluation was adequately documented; and (x) the plaintiff failed to allege the necessary hard facts demonstrating any agency impropriety in handling a possible issue of conflict of interest or unfair advantage. 

In Anders Constr., Inc., a successful protest leading to a permanent injunction, the court held that there was no rational basis for any of the five reasons advanced by the agency to justify finding the plaintiff's proposal technically unacceptable following corrective action after finding it acceptable originally, e.g., (i) the protester's alleged failure to provide a "sample" completion report with its offer when the solicitation only required a completion report during contract performance, (ii) the protester's alleged failure to label certain documents submitted with its proposal in a certain way when the solicitation did not require them to be labeled, and (iii) the protester's alleged failure to provide a diver's certificate for a proposed employee when its proposal unambiguously labeled that individual as a Supervisor, rather than a diver. The court also held that it lacked jurisdiction over the protester's alternative claim under the Declaratory Judgment Act.  

In Trumble Constr., Inc., an unsuccessful post-award protest, the court held, inter alia, that: (i) under the key management evaluation factor, the evaluators reasonably assigned deficiencies to the protester's proposal for failing to demonstrate adequate experience of its proposed managers after the agency had communicated those deficiencies to the protester and had given it a chance to revise its proposal, and the agency was under no obligation to discuss the deficiencies with the protester further after it failed to adequately address the deficiencies in its revised proposal; (ii) similarly, the agency reasonably assigned a deficiency to the protester for failing to list its proposed subcontractors, as required by the solicitation, even after being given a second chance to do so following discussions; (iii) the agency reasonably assigned the protester a weakness for having only a vague schedule;  (iv) the agency had a rational basis in the record for amending the solicitation to extend the performance period; and (v) the agency rationally evaluated the awardee's price as fair and reasonable and was not required to compare it to the protester's lower price because the protester's proposal was unawardable and, therefore, the agency had no basis to determine that the protester's price was fair and reasonable.

In Safal Partners LLC, an unsuccessful post-award protest, the court held that, although the protest was timely under Blue & Gold Fleet and stated a sufficiently plausible claim to survive a 12(b)(6) motion to dismiss, the agency did not mislead the protester by allegedly changing the definition of "strength" from the list of strengths provided to the protester in an initial debriefing to the strengths found by the agency after a subsequent evaluation because "strength" was never a defined term in any version of the solicitation and the information regarding strengths initially provided to the protester was too nebulous to have a definition inferred from it. 

In HealthRev, LLC, an unsuccessful post-award protest, the court held that: (i) the agency properly evaluated the offer by a mentor-protégé joint venture under 13 C.F.R. § 125.8(e) by evaluating each member's strengths and weaknesses in order to determine the capability of the joint venture as a whole ("in the aggregate"); and (ii) the agency did not evaluate proposals disparately or apply unstated evaluation criteria.  

In PMCG CollaborateUp JV LLC, the court held that the Contracting Officer had erred in concluding a JV was ineligible for award based on the preliminary suspension of one of its members without investigating further when the firm had challenged the suspension and it was lifted before any task order awards were made.  

In AccelGov, LLC, an unsuccessful post-award protest, the court held that: (i) in a procurement conducted under FAR Part 8.4, the agency was not required to hold FAR Part 15 discussions before determining proposals were unacceptable, especially where the solicitation clearly stated the agency intended to award without discussions; (ii) the agency's evaluation of the protester's technical proposal was reasonable and would not be second-guessed by the court; and (iii) the protester had waived its right to object to the solicitation's personnel experience requirement by waiting until after proposals were submitted. Concerning the second holding, the court noted:

This Court routinely holds that contracting officers enjoy "broad discretion with respect to evaluation of technical proposals," and the Court typically does not “second-guess the technical ratings that the source selection committee gave to each offeror.” [citations omitted] However, unsuccessful offerors repeatedly ignore this. To again emphasize this important point, agencies exercise broad discretion when determining the scope of an evaluation factor. [Emphasis added] 

Sole Source/Small Business/Restricted Competitions

In Federal Performance Management Solutions, LLC, an unsuccessful protest, the court upheld the OHA's decision that a mentor-protégé JV was not small for the procurement in question because its bid was submitted years after the JV's two-year limit for submitting offers had expired pursuant to 13 C.F.R.  121.103(h). 

In Clean Team Janitorial Service, Inc., an unsuccessful protest by the incumbent contractor against the award of a follow-on set-aside 8(a) contract, the court held that: (i) although the plaintiff's reporting of alleged PIA violations was timely (because informal statements to its on-site janitorial staff would not be immediately imputed to the business owners),  the agency's two independent investigations finding no merit to the allegations were "more than sufficient"; (ii) even after correcting for admitted ministerial errors, the value of procurement fell below the amount that would require competition among eligible 8(a) firms; and (iii) regardless of its status at the beginning of this process, the awardee was an 8(a) certified joint venture by the time of the latest award to it after series of corrective actions undertaken by the agency in response to earlier protests. 

Responsiveness/Late Bids

Corrective Action/Stay Pending Protest