In Science and Technology Corp., an unsuccessful post-award protest, the court upheld an award because the plaintiff had failed to provide required information in multiple sections of its proposal. Specifically, the court held: (i) there were rational bases for the agency's upward adjustment of the plaintiff's proposed costs in the cost realism analysis because the plaintiff failed to provide sufficient information to support them; (ii) the court would not accept the plaintiff's current explanations for its costs because they had not been included in its proposal; (iii) the agency was not required to hold discussions concerning the missing information where the solicitation clearly stated the agency did not intend to hold discussions and the solicitation clearly required the explanatory data the plaintiff failed to provide; (iv) the agency was not required to seek clarifications to allow the plaintiff an opportunity to cure deficiencies in its proposal; (v) there was a rational basis for the agency's evaluation of the plaintiff's proposal for Mission Suitability because, inter alia, the plaintiff's proposal lacked a clear explanation of how it would perform the contract requirements in this area; and (vi) there was a rational basis for the differing Past Performance evaluations of the plaintiff's and the awardee's proposals because the plaintiff had failed to provide relevant explanatory information in its proposal. Subsequently, the court of Federal Claims denied the plaintiff's request for a stay of the court's decision pending the plaintiff's appeal to the CAFC, finding, inter alia, that the plaintiff was unlikely to prevail on the merits of its argument that the agency should have decided to conduct discussions in this Part 15 procurement.

Evaluations/Discussions

In In DecisionPoint Corp., an unsuccessful post-award protest of the award in a SDVOSB set-aside  procurement that permitted teaming with large business subcontractors, the court held that: (i) the respective functions of the awardee's team members were clearly stated and were in line with the solicitation's requirements, including the requirement that offerors demonstrate that they would "successfully integrate and coordinate all [contract] activities" under the contract, especially where the SDVOSB/prime contractor would fill all management positions, would comply with the limitations on subcontracting requirement by incurring more than 50% of the labor costs, and certified in its proposal that it agreed with all terms, conditions, and provisions in the solicitation, including the small business qualifications; (ii) the agency gave a rational explanation for its adjectival rating of the awardee's  past work experience as "somewhat relevant" under the Past Performance evaluation, especially where the plaintiff conceded its own calculations of what the awardee's relevancy rating should be were wrong; and (iii) the agency followed the solicitation's requirement by evaluating the  past performance of the awardee's team members as a whole, rather than separately, as suggested by the plaintiff. 

In RELI Group, Inc., an unsuccessful post-award protest against a task order award in response to an RFQ for medical auditing services, the court held that the agency was not required to conduct discussions with all offerors because (a) this was a FAR Subpart 8.4 procurement, (b) the solicitation specifically disclaimed the use of FAR Part 15 procedures, and (c) the RFQ specifically contemplated discussions with "at most" two offerors. In these circumstances, the decision not to hold discussions with the plaintiff did not violate "fundamental fairness" because the award was made on the basis of the evaluation of initial proposals, and discussions were used only to confirm the initial evaluation.  

In Orion Government Services, LLC, an unsuccessful post-award protest, the court held that: (i) the agency's evaluation of price reasonableness by comparing offerors' prices to the IGE and to one another complied with the FAR and was unobjectionable; and (ii) the Agency Record was sufficient to establish that the agency also evaluated offers for unbalanced pricing, even though the record did not include the details of that evaluation. 

In AcmeSolv, Inc., an unsuccessful post-award protest, the court held that, viewed as a whole, the agency's Past Performance evaluation was not merely quantitative (which the plaintiff alleged violated the solicitation), but was qualitative as well, and the  plaintiff undermined its allegation by offering its own quantitative analysis to argue that its past performance should have been evaluated more highly. The court also held that the plaintiff failed to show prejudice because, even accepting the evaluation it claimed its past performance deserved, it was only equal to the awardee in the Past Performance and Technical evaluations, while its price was significantly higher than the awardee's.  

In Blue Water Thinking, LLC, an unsuccessful post-award protest, the court held that: (i) given the Contracting Officer's thorough (90+ page) trade-off analysis and the extended length of the procurement, her timing in conducting a prior OCI investigation and in seeking an OCI waiver and her prior reference to the eventual awardee as the "apparent awardee" did not amount to "pre-selecting" the eventual winner and, therefore, were not objectionable; (ii) the solicitation required only that unbalanced pricing be considered, and did not require a price realism analysis; (iii) there was an adequate basis in the record for the Contracting Officer's decision to accept the technical evaluation panel's rating of the awardee's proposal as "outstanding" in the third evaluation, when she had downgraded that rating to "good" in the second evaluation; and (iv) the competing proposals were not sufficiently identical to support the protester's claim of disparate treatment in the evaluation of technical capability.  

In Thales USA, Inc., an unsuccessful post-award protest in a solicitation for a firm fixed-price contract to replace the Air Force’s legacy tactical air navigation systems with a new man-portable system, the Court of Federal Claims held, inter alia, that: (i) the D&F underlying the solicitation clearly stated the agency would not evaluate past performance, and past performance was not an evaluation criterion, so the protester's post-award complaint in this area was waived (Blue & Gold Fleet); (ii)  the agency was not required to assign a weakness to the awardee in an evaluation factor that the solicitation clearly stated would be evaluated only as Acceptable or Unacceptable; (iii) the agency did not evaluate offerors unequally because the offers were not substantially identical in the areas complained of by the plaintiff; and (iv) the agency's price realism analysis was consistent with the solicitation's evaluation scheme and utilized acceptable methods of analysis.

In System Studies & Simulation, Inc., et al., which involved unsuccessful consolidated post-award protests in an acquisition of helicopter training support services, the court held that: (i) pursuant to the CAFC's decision in Oak Grove Technologies, the plaintiffs had waived their right to object to the agency's failure to conduct discussions as allegedly required by DFARS § 215.306(c), 10 U.S.C. § 3303(a)(2), or FAR § 15.306(a)(3) because the solicitation had made it clear that the agency did not intend to do so; and (ii) various weaknesses and deficiencies assigned to the plaintiffs' proposals had a rational basis and complied with the solicitation's evaluation scheme or were not prejudicial. 

In GovWave, LLC, et al., the court dismissed a large group of consolidated preaward protests against the elimination of the plaintiffs in a preliminary stage of the evaluation process for failure to comply with one of what the solicitation repeatedly labeled as "Strict Compliance Requirements" (a statement on adverse past performance,  a complete price model, and a complete equipment list) because the solicitation clearly and repeatedly (ad nauseum, actually) warned that any such failures would result in disqualification from further consideration. 

In Warrior Focused Solutions, LLC, an unsuccessful post-award protest, the court held that: (i) under Blue & Gold Fleet, the plaintiff had waived its objection to the agency's failure to conduct discussions because it had not timely protested the unequivocal statement in the solicitation that there would not be any discussions; (ii) there were rational bases for assigning weaknesses in each of many areas challenged by the plaintiff in the evaluation of Mission Capability; (iii) there was a rational basis for rating the plaintiff's Small Business Participation plan as Good rather than Outstanding because the rating was based on a holistic evaluation rather than focusing only on an allegedly  unenforceable teaming agreement, and according to the agency's evaluator who identified discrepancies in its proposal, clarification concerning some clerical errors among them should be sought only if  the Government decided to enter discussions; and (iv) the Cost Realism analysis was unobjectionable because, inter alia,  lacking any documentation, such as rate agreements or historical rates, to justify the newly formed JV's proposed overhead and G&A rates, the agency was justified in performing the cost realism analysis of the plaintiff by comparing its proposed rates to those of the two other offerors, which is an acceptable method under FAR § 15.404-1(c)(iii).  

In Culmen Int'l, LLC, an unsuccessful post-award protest in a solicitation for threat reduction logistics services, the court held that the agency did not err: (i) in assigning the awardee a technical rating of "Outstanding" even though cost realism analysis had determined its proposed prices were too low because the solicitation required the cost and technical evaluations to be made separately; (ii) in evaluating the awardee's Past Performance because, contrary to the plaintiff/incumbent's allegation, the solicitation did not require each individual past performance reference to demonstrate experience in every aspect of the PWS; (iii) in assigning the plaintiff a weakness for failing to address replenishment requirements (and the agency did not evaluate the competitors unequally in this area because the awardee proposed a different approach than the plaintiff); and (iv) in adjusting the plaintiff's proposed travel costs upward during the price realism analysis because the plaintiff failed to include sufficient details of its travel plans for effective evaluation and substantiation of the validity of those proposed travel costs (especially given the significant variance between the plaintiff's proposed travel costs and the IGCE). The court also held that the agency took appropriate steps to investigate the plaintiff's claims of bias in an evaluation board member, removing one board member from the evaluation for the appearance of possible bias and retaining another member as a nonvoting member of the board. 

In DevTech Systems, Inc., an unsuccessful, scattershot, post-award protest in a solicitation for a task order for technical professional staffing, the court held, inter alia, that the agency reasonably found that the awardee's proposal complied with the material requirements of the solicitation in all the areas challenged by the plaintiff, e.g.: (i) the awardee's reference to another section of its proposal in describing its approach to the Optional Tasks complied with the solicitation's instructions to be concise and to avoid repetition; (ii) the agency's evaluation of the awardee's pricing had a rational basis, especially where, pursuant to Blue & Gold Fleet, the plaintiff had waived its objection involving any patent inconsistency between the quantity of Optional Tasks listed in the Tasks Section versus the Payment Schedule of the solicitation; (iii) the awardee's proposal did not reserve a right to re-price the Optional Tasks at a later date, but merely recognized that they would be better defined after contract award;  (iv) there was a rational basis for the agency's determination that the awardee's proposal concerning one task was a weakness, rather than a more serious deficiency, especially where the task in question was an immaterial requirement, and the plaintiff was not prejudiced by the agency's evaluation because the plaintiff's proposal contained the same weakness as the awardee's; (v) similarly, the  agency rationally concluded that awardee's proposed project manager met the solicitation's qualification requirements, and, in any event, the plaintiff was not prejudiced because its own proposed project manager had the same type qualifications; and (vi) the awardee appropriately mapped its proposed positions to categories in its underlying MAS price list, and in any event, the plaintiff was not prejudiced because its own proposal contained the same infirmity as it alleged in the plaintiff's.  The court also held that the plaintiff could not establish prejudice from the agency's alleged failure to evaluate professional compensation in connection with FAR § 52.222-46, and in any event, the plaintiff had waived that objection under Blue & Gold Fleet because the omission of that provision in the solicitation was a patent error. The court also held that the agency had not been required to conduct discussions and did not do so; and, even if the agency had undertaken discussions, it would not have been obligated to inform the plaintiff that its price was too high.

In 22nd Technologies, Inc., a successful post-award protest against the evaluation of the plaintiff's proposal, the court held that: (i) in concluding that the plaintiff had failed address one item under the Management evaluation factor, the agency's evaluators "simply . . . missed" the proposal's clear and properly placed discussion of that issue; and (ii) in evaluating the Staffing factor, the agency ascribed a weakness to the plaintiff's proposal language that was similar to that of other offerors whose proposals the agency had not faulted.

In Red Cedar Harmonia, LLC, et al., which involved unsuccessful consolidated protests concerning a solicitation under FAR § 8.405-3 seeking quotations for a single-award blanket purchase agreement ("BPA") for on-premises and cloud infrastructure support services, the court: (i) rejected the protesters' allegations that the Past Performance evaluators should have treated one of the awardee's references  (an IDIQ contract) as a series of delivery orders since only some orders were placed within the solicitation's five-year recency window; and (ii) held that the protesters lacked standing to assert that only the part of the contract within the recency window should be counted because the protesters, themselves, submitted contracts only partially within the window and the agency had evaluated those contracts as a whole. The court also held that although the protesters were correct that, in conducting the price evaluation, it might have been wise for the agency to have done more than simply recognize that the awardee's significantly lower price was due to its stratagem of mapping less qualified workers to BPA roles, the agency was not required to do so either by FAR § 8.405-3(b)(2)(vi) or the solicitation because neither of them required a price realism analysis.  

In Gemini Tech Services, LLC, a successful post-award protest of a task order award for logistics support services, the court held that by establishing the competitive range and opening discussions with all six offerors absent any analysis in the record of how or why the offerors were considered "the most highly rated" against the technical acceptability factor, the agency violated FAR § 15.306(c)(1). 

In Professional Analysis, Inc., an unsuccessful post-award protest which involved interpreting a solicitation, the court held that: (i) where the solicitation expressly provided that minimum proposal requirements were identified by the word "shall," a proposal instruction merely requesting a certification was not a mandatory requirement; (ii) there was a rational basis for the agency's conclusion that the awardee's proposal contained only assumptions and  reservations (which it adequately explained) but no exceptions to any material solicitation terms; (iii) there was nothing improper about a statement in the awardee's proposal amounting to a reservation of the right to seek a price adjustment, where the awardee did not state it had a right to receive such an adjustment; and (iv) by omitting any argument concerning alleged prejudice in its motion for judgment  on the administrative record, the plaintiff waived all such arguments, and, therefore, had not established prejudice. 

In Telesto Group, LLC an unsuccessful protest of the prototype phase of the Enterprise Business System-Convergence Program initiated under the Army’s “other transaction” (OT) authority pursuant to 10 U.S.C. § 4022 to develop a solution to consolidate five Army business systems and improve their efficiency, the court held that this OT program became one in connection with a proposed procurement (over which the court has Tucker Act jurisdiction pursuant to 1491(b)(1)) when the Army completed the prototyping process and determined both that the process was successful and that the Army would acquire the successful prototype through a follow-on production contract. Having established jurisdiction, the court: (i) denied the protester's claim that the Army had violated 10 U.S.C. § 4022(d)(1)(A) (which allows a DoD component to use an OT when "[t]here is at least one nontraditional defense contractor [NDC] or nonprofit research institution participating to a significant extent in the prototype project" [emphasis added]) because there was a rational basis for the agency's conclusion that, in the aggregate, numerous of the awardee's NDC subs would contribute significantly to the project; and (ii) denied the  plaintiff's challenge to agency's amendment lowering the  standards in an evaluation criteria for one stage of the OT because (a) the principles of Blue & Gold Fleet should extend to OTs, and the plaintiff failed to challenge the amendments when they occurred, and (b) the amendments lowered the standards for both competitors and, thus, treated the competitors equally, which meant the plaintiff could not show prejudice.

In Kropp Holdings, Inc., a successful post-award protest, the court was faced with a situation where (over a significant period of time during corrective actions) the agency repeatedly gave the awardee unwarranted chances to correct deficiencies in its proposal. The court held, inter alia, that: (i) the agency improperly accepted the awardee's untimely proposal; (ii) the agency conducted misleading discussions with the protester and treated the competing proposals unequally; and (iii) the agency irrationally attributed the awardee's corporate experience and past performance to a completely walled-off division created by the awardee to compete for the contract and relied on those flawed attributions in awarding the contract.  

In Red River Science & Technology, LLC, an unsuccessful preaward protest, the court of Federal Claims held, inter alia, that: (i) even if another offeror's GAO protest were untimely, the agency was not precluded from declining to assert that defense and instead could choose to take corrective action by opening discussions based on that protester's allegations in order to improve the procurement; and (ii) even though the solicitation provided that "tak[ing] exception" to a  rate-capping process "will render the Offeror’s proposal unacceptable" and that the proposal "will not be further considered for award," the agency was not precluded from including such an unacceptable proposal when it decided to open discussions; and (iii)  where the agency already had determined the plaintiff's indirect rates were sufficiently supported, conducting discussions only with other offerors  whose proposals needed further support did not amount to unequal discussions.

In Assured Consulting Solutions, LLC, an unsuccessful post-award protest involving a solicitation to establish a Blanket Purchase Agreement with a qualified small business to provide a range of IT capabilities, including cybersecurity and technical IT consultation, the court held that: (i) during a remand to permit the Government to recalculate its pricing analysis to eliminate prior errors in that analysis, the Government was not required to (and, appropriately did not) permit offerors to update their prices because that would have allowed a revision of pricing after having seen a competitor's pricing; (ii) the pricing re-evaluation corrected the errors in original analysis but did not change the competitors' relative price standing (which favored the awardee); and (iii) especially under the relaxed evaluation standards applicable to a FAR Part 8.4 solicitation and the broad discretion afforded an agency's evaluators, the protester's challenges to the agency's technical evaluation amounted to subjective disagreements, and the bases for that evaluation were rationally supported in the record.  

In Advanced Technology Systems Co., a partially successful post-award protest involving a solicitation to provide Egypt with a  maritime surveillance system via a foreign military sale, the court held that: (i) the protester was correct in asserting that the definition of a neutral past performance rating in the solicitation as neither favorable nor unfavorable applied to the evaluation of an individual offer and did not require the agency to consider a neutral rating equal to a satisfactory rating when comparing multiple offers in the best value trade-off analysis; (ii) the agency's system for evaluating the relevance of past performance references and the agency's actual explanation for its evaluation of those references were both indecipherable; and (iii) the agency engaged in an unequal evaluation by crediting one offeror with two satisfactory past performance references when it and its sub both worked the same contract but not doing so for the plaintiff in the same situation. The court also held there were rationale bases for four other aspects of the evaluation with which the protester disagreed. The court found that national security concerns outweighed the protester's request for an injunction, and, therefore, the court remanded the case to the agency to provide clearer explanations (if it could) to address the areas of concern highlighted by the court in its decision.

In Golden IT, LLC, an unsuccessful post-award protest, after a detailed analysis of the standards of review under the APA in various sorts of protests, the court held that: (i) the Government reasonably determined that there was a rational basis for the agency's conclusion that the protester's proposed key personnel lacked required qualifications, and the agency's determination was adequately explained in the administrative record; and (ii) in any event, the protester had not demonstrated prejudice because: "This the Court thus finds, as a  matter of unrefuted fact, that [plaintiff's key personnel's] experience is fatally lacking, just as the [agency] found (notwithstanding that its stated rationale is not as fulsome as it could have been). Simply put, [plaintiff] proposes no calculation of [plaintiff's key personnel's] IT experience to counter the [agency's] or intervenors’ calculations" that the experience was lacking.

In  ITegrity, Inc., an unsuccessful post-award protest by the incumbent, the court held that in accordance with the solicitation's Past Performance evaluation scheme, the agency (a) properly considered the two (of three) plaintiff's references the agency found relevant, (b) did not penalize the plaintiff for the reference found irrelevant, (c) evaluated the two relevant references as a whole, including subcontracts, and (d) was not required to limit its evaluation to the single most relevant reference submitted by the plaintiff (its incumbent contract), especially where the current solicitation exceeded the prior contract in scope and complexity. The court found that, in any event, the plaintiff was not prejudiced by the Past Performance evaluation adjectival rating because the best value trade-off specifically found the awardee's Past Performance submission to be superior, and the plaintiff's lower price was evaluated (as the solicitation required) as significantly less important than Past Performance:

In reviewing an evaluation of past performance information in a negotiated procurement, "the greatest deference possible is given to the agency – what our Court has called a 'triple whammy of deference.'" Gulf Group Inc. v. United States, 61 Fed. Cl. 338, 351 (2004) (quoting Overstreet Elec. Co. v. United States, 59 Fed. Cl 99, 117 (2003))