Filed: May 09, 2018
Latest Update: Mar. 03, 2020
Summary: In the United States Court of Federal Claims No. 16-775C (Filed: March 15, 2017) (Re-filed: May 9, 2018)1 ******************* TETRA TECH, INC., Post-Award Bid Protest; Technical Evaluation; Unstated Criteria. Plaintiff, v. THE UNITED STATES, Defendant, and EASTERN RESEARCH GROUP, INC., Defendant-Intervenor. ******************** Holly A. Roth, Washington, DC, with whom were Lawrence P. Block, Elizabeth G. Leavy, Molly Q. Campbell, and Sarah S. Wronsky, Washington, DC, for plaintiff. Kristin B. Mc
Summary: In the United States Court of Federal Claims No. 16-775C (Filed: March 15, 2017) (Re-filed: May 9, 2018)1 ******************* TETRA TECH, INC., Post-Award Bid Protest; Technical Evaluation; Unstated Criteria. Plaintiff, v. THE UNITED STATES, Defendant, and EASTERN RESEARCH GROUP, INC., Defendant-Intervenor. ******************** Holly A. Roth, Washington, DC, with whom were Lawrence P. Block, Elizabeth G. Leavy, Molly Q. Campbell, and Sarah S. Wronsky, Washington, DC, for plaintiff. Kristin B. McG..
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In the United States Court of Federal Claims
No. 16-775C
(Filed: March 15, 2017)
(Re-filed: May 9, 2018)1
*******************
TETRA TECH, INC.,
Post-Award Bid Protest;
Technical Evaluation; Unstated
Criteria.
Plaintiff,
v.
THE UNITED STATES,
Defendant,
and
EASTERN RESEARCH GROUP, INC.,
Defendant-Intervenor.
********************
Holly A. Roth, Washington, DC, with whom were Lawrence P. Block,
Elizabeth G. Leavy, Molly Q. Campbell, and Sarah S. Wronsky, Washington,
DC, for plaintiff.
Kristin B. McGrory, Trial Attorney, Commercial Litigation Branch,
Civil Division, Department of Justice, Washington, DC, for defendant, with
whom were Chad A. Readler, Acting Assistant Attorney General, Robert E.
Kirschman, Jr., Director, Douglas K. Mickle, Assistant Director. Maria S.
Kavouras, Office of General Counsel, United States Environmental Protection
1
This opinion was originally issued under seal. The parties offered joint
proposed redactions. We adopt the parties’ proposed redactions because we
find them to be appropriate. Those redactions are indicated herein with
brackets.
Agency, Cincinnati, Ohio, of counsel.
John G. Horan, Washington, DC, for intervenor.
OPINION
BRUGGINK, Judge.
This is a post-award protest of a solicitation for environmental
consulting support services to assist the United States Environmental
Protection Agency (“EPA”) with implementing the National Pollutant
Discharge Elimination System (“NPDES”) permit program and Clean Water
Act (“CWA”) regulations. Plaintiff, Tetra Tech, Inc., the incumbent contractor,
challenges the EPA’s award of the contract to intervenor, Eastern Research
Group, Inc. (“ERG”). EPA initially awarded the contract to ERG on June 24,
2016, finding that ERG’s proposal offered the best value. Tetra Tech filed the
present action on June 30, 2016.2
The parties filed cross-motions for judgment on the administrative
record in August of 2016. Before briefing was complete, the government filed
a notice of corrective action on September 1, 2016, stating its intention to
reconvene the technical evaluation panel (“TEP”) and have the source
selection official (“SSO”) re-evaluate the best value determination based on
the forthcoming revised consensus TEP report. After the corrective action,
EPA again awarded the contract to ERG, finding that its proposal offered the
best value to the government. Now pending are the parties’ cross-motions for
2
Plaintiff filed a separate bid protest on November 23, 2016. See Tetra Tech
v. United States, Fed. Cl. No. 16-1659. In that complaint, plaintiff challenges
EPA’s issuance of work assignment number 2-10, Long-term Stormwater and
Wastewater Planning Technical Assistance under a different contract held by
ERG. Specifically plaintiff alleges that EPA violated the Competition in
Contracting Act, 41 U.S.C. § 3301 (2012), when it issued the work
assignment. Plaintiff further alleges, in the separate action, that EPA violated
the voluntary stay in place in this case when it issued the work assignment. A
decision in Tetra Tech v. United States, Fed. Cl. No. 16-1659, is being issued
contemporaneously herewith.
2
judgment on the administrative record (“AR”)3 pursuant to Rule 52.1 of the
Rules of the Court of Federal Claims (“RCFC”). The motions are fully briefed,
and we heard oral argument on February 17, 2017. As we stated at the
conclusion of oral argument, because we find that EPA’s technical evaluation
of the proposal was reasonable and supported by the record, we deny
plaintiff’s motion for judgment on the administrative record and grant
defendant’s and intervenor’s cross-motions.
BACKGROUND
Request for Proposal No. SOL-CI-16-00012 (the “RFP” or the
“solicitation”) was released by EPA on March 16, 2016.4 The Performance
Work Statement (“PWS”) for the RFP provided that the solicitation’s purpose
was
to provide environment consulting support services to the
United States Environmental Protection Agency (EPA), Office
of Water (OW), Office of Wastewater Management (OWM),
Water Permits Division (WPD), in amending, developing, and
implementing National Pollutant Discharge Elimination System
3
On August 2, 2016, plaintiff filed a motion to supplement the AR and for
limited discovery. In an order entered on August 11, 2016, we granted in part
and denied in part plaintiff’s motion. Specifically, we directed the government
to produce all documents related to EPA’s evaluation of ERG’s Past
Performance and Corporate Experience as well as individual evaluation
worksheets produced by the technical evaluation panel. We also denied
plaintiff’s request for limited discovery. Defendant filed the supplemental
documents on August 12, 2016. Defendant later filed two motions for leave
to file additional documents responsive to our August 11, 2016 order, which
we granted. Then, on December 30, 2016, defendant filed a supplement to the
AR, including documents relevant to the corrective action and second award
decision. Defendant later filed a motion to amend the record to include six
cost advisory reports relevant to the cost realism and price reasonableness
analyses. Finally, on January 20, 2017, plaintiff moved to supplement the AR
with e-mail correspondence from January 13, 2017 between plaintiff’s and
defendant’s counsel. We denied plaintiff’s motion on January 24, 2017.
4
The RFP was issued in order to re-compete Contract EP-C-11-009, which
was held by Tetra Tech and set to expire prior to the start of the base
performance period proposed in the RFP on July 1, 2016.
3
(NPDES) permits and Clean Water Act (CWA) regulations.
Technical support is expected to include profession program
managers, engineers, scientists, information specialists,
statisticians, and administrative services with experience in
NPDES permitting and CWA regulations, as well as experience
and best practices to help make municipal wastewater treatment
facilities more efficient and sustainable.
AR 167. The RFP contemplated a base performance period from July 1, 2016
through June 30, 2017, and four 12-month option periods.
The offerors were instructed to submit proposals in two volumes: a cost
proposal and a technical proposal. The technical proposals were to be
evaluated based on the following criteria, listed in order of importance: (1)
Qualifications and Availability of Key Personnel; (2) Past Performance; (3)
Corporate Experience; (4) Program Management Plan; and (5) Quality
Management System. The EPA used the following adjectival ratings in its
evaluations of all technical criteria other than Past Performance:
Rating Description
Outstanding Proposal meets requirements and indicates an
exceptional approach and understanding of the
requirements. Strengths far outweigh any weaknesses.
Risk of unsuccessful performance is very low.
Good Proposal meets requirements and indicates a thorough
approach and understanding of the requirements.
Proposal contains strengths which outweigh any
weaknesses. Risk of unsuccessful performance is very
low.
Acceptable Proposal meets requirements and indicates an adequate
approach and understanding of the requirements.
Strengths and weaknesses do not outweigh one another
or will have little or no impact on contract
performance. Risk of unsuccessful performance is no
worse than moderate.
4
Marginal Proposal does not clearly meet requirements and has
not demonstrated an adequate approach and
understanding of the requirements. The proposal has
one or more weaknesses which are not outweighed by
strengths. Risk of unsuccessful performance is high.
Unacceptable Proposal does not meet requirements and contains one
or more deficiencies. Proposal is unacceptable for
purposes of an award.
AR 166. Past Performance was to be evaluated using the following adjectival
ratings:
Rating Description
Substantial Based on the offeror’s recent/relevant performance
Confidence record, the Government has a high expectation that the
offeror will successfully perform the required effort.
Satisfactory Based on the offeror’s recent/relevant performance
Confidence record, the Government has a reasonable expectation
that the offeror will successfully perform the required
effort.
Limited Based on the offeror’s recent/relevant performance
Confidence 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 No recent/relevant performance record is available or
Confidence the offeror’s performance record is so sparse that no
(Neutral) meaningful confidence assessment can be reasonably
assigned.
AR 166. After evaluating the proposals, the RFP promised that the government
would “make award to the responsible offeror(s) whose offer conforms to the
solicitation and is most advantageous to the Government cost or other factors
considered.” AR 163. The RFP further provided that “all evaluation factors
5
other than cost or price when combined are significantly more important than
cost or price.” Id.
For Qualifications and Availability of Key Personnel, the RFP provided
that the Agency would evaluate:
A. Demonstrated qualifications* and availability of the
proposed PL-4 Program Manager
1. Technical Qualifications* of the PL-4 Program
Manager with the type of technical requirements
covered by [the Performance Work Statement
(“PWS”)]
2. Managerial Qualifications* of the PL-4 Program
Manager with managing contracts of similar size,
type, and managerial scope to the PWS
B. Technical Qualifications* and availability of the PL-4
Quality Assurance (QA) manager with the type of
technical requirements covered by PWS
C. Technical Qualifications* and availability of the PL-4
Senior Engineer/Scientist(s) with the type of technical
requirements covered by the PWS (no more than two
Senior Engineer(s)/Scientists shall be evaluated)
*“Qualifications” includes education, expertise, and experience.
AR 164. For Past Performance, EPA was directed to evaluate whether the
offeror had
satisfactory or better performance on all, or at least five (5),
contracts and/or subcontracts completed during the past three
years (including all contracts and subcontracts currently in
progress), which are similar in technical scope and complexity,
size, and type to that which is anticipated in this solicitation.
Factors for consideration include quality of technical work
products and/or service, schedule, cost control, management,
regulatory compliance, and overall performance.
AR 164. If an offeror could not provide a full record of Past Performance, it
would receive a neutral rating for this category.
6
Corporate Experience would be evaluated through two subfactors:
Corporate Technical Experience and Corporate Management Experience. For
Corporate Technical experience, offerors were required to demonstrate
corporate technical experience fulfilling the technical
requirements of contracts of similar size (as measured by dollar
value and level-of-effort), contract type, and technical scope as
that specified in this solicitation. Experience shall be related to
the tasks included in the PWS and shall specifically include
experience in amending, developing, and implementing NPDES
permits and CWA regulations. In addition, the offeror shall
demonstrat[e] its level of experience dealing with outreach and
stakeholder engagement, environmental data collection, and
performing various related audits and inspections. The offeror
shall also demonstrate experience in preparing scientific
technical documents using sound environmental planning,
scientific and engineering principles.
Id. For Corporate Management Experience, offerors were required to
demonstrate
corporate experience in fulfilling the managerial requirements of
contracts of similar size (dollar amount), type (CPFF, multi task), and
technical complexity and scope to that specified in this solicitation.
This experience shall be related to the tasks included in the PWS and
shall specifically include experience in amending, developing, and
implementing NPDES permits and CWA regulations.
Id.
The RFP also provided that the Agency would “perform either cost
analysis or price analysis of the offeror’s cost/business proposal in accordance
with [Federal Acquisition Regulation (“FAR”)] parts 15 and 31” and “evaluate
proposals to determine contract cost or price realism.” AR 163. According to
the RFP, “[c]ost or price realism relates to an offeror’s demonstrating that the
proposed cost or price provides an adequate reflection of the offeror’s
understanding of the requirements of this solicitation, i.e., that the cost or price
is not unrealistically low or unreasonably high.”
Id.
The Initial Award Decision
7
Tetra Tech and ERG were the only two offerors. Both timely submitted
their cost and technical proposals in April 2016. Following receipt of the
proposals, the TEP was briefed, via memorandum, by the contracting officer,
Brad Heath (“CO Heath”), regarding the procedures for evaluating the
technical proposals. The memorandum notified the TEP members that they
were to “evaluate proposals solely on the evaluation criteria identified in
Section M and shall not compare one offer to another,” and that “each member
shall identify the strengths, deficiencies, significant weaknesses, and risks
associated with each proposal based upon the evaluation factors and be
prepared to discuss these with the rest of the TEP to determine a consensus
rating.” AR 2205.5 The memorandum further instructed that Past Performance
would be evaluated by CO Heath.
After each TEP member conducted an independent analysis of the
offerors’ proposals, the TEP members participated in a meeting to develop a
consensus rating. The TEP chair was instructed to compile all the strengths
and weaknesses noted by the individual TEP members in order to create a
document that would “serve as the basis for the discussion to be held during
the consensus meeting with the panel members.” AR 2218. The TEP chair
was further instructed to “ensure that the compiled documents for each offeror
are displayed electronically during the meeting for the panel members and can
be modified as the consensus meeting is conducted.” AR 2219. During this
meeting, the individual reports were considered and adjusted to meet a
consensus. CO Heath was responsible for overseeing the meeting to ensure
that the TEP members reviewed the technical proposals in accordance with the
evaluation factors expressed in the solicitation.
After the meeting, the TEP Chair developed a final consensus rating for
the TEP report. On April 28, 2016, the TEP Chair provided the consensus
report to CO Heath. The report contained the following ratings of the offerors’
proposals:
Criteria Title Tetra Tech ERG Rating
Rating
5
The TEP members individually evaluated the proposals and then met to develop a
consensus report. No individual evaluations were presented to the SSO.
8
I.A.1 Demonstrated qualifications Good Good
and availability of the proposed
PL-4 Program Manager
(Technical Qualifications)
I.A.2 Demonstrated Qualifications Outstanding Outstanding
and availability of the proposed
PL-4 Program Manager
(Managerial Qualifications)
I.B Technical Qualifications and Good Outstanding
availability of the PL-4 Quality
Assurance (QA) Manager with
the type of technical
requirements covered in the
PWS
I.C Technical Qualifications and Good Good
availability of the PL-4 Senior
Engineer/Scientist with the type
of technical requirements
covered by the PWS
II Past Performance Outstanding Good
III.A Corporate Technical Experience Outstanding Outstanding
III.B Corporate Management Outstanding Outstanding
Experience
IV.A Program Management Plan- Good Good
Performance Monitoring
IV.B Program Management Plan- Good Good
Organizational Structure
V.A Quality Management System- Acceptable Acceptable
Quality Management Plan
V.B Quality Management Plan- Acceptable Acceptable
Generic QAAP
AR 4766. The presence of a rating for the Past Performance of both offerors
was notable in that it was contrary to the solicitation, which required that the
9
Past Performance rating be determined by the contracting officer and provided
a different adjectival rating system specific to Past Performance.
Although not a member of the TEP, CO Heath later added his Past
Performance analysis to the consensus TEP report and gave both ERG and
Tetra Tech a Past Performance rating of “Satisfactory Confidence.” Because
this addition came after the TEP members signed off on the consensus report
on April 28, 2016, CO Heath decided to transpose those signatures to the final
version that included his Past Performance analysis.6 This action, in part, lead
to EPA’s decision to take corrective action, which is discussed below.
In May 2016, CO Heath developed Cost Advisory Reports for the two
offerors. This review consisted of “a math check of the proposal, a verification
that the [level-of-effort (“LOE”)] hours and Other Direct Costs (ODCs) were
proposed in accordance with RFP specified amounts and a verification of the
direct labor and indirect rates of the contractor and each subcontractor.” AR
2288. Next, the TEP Chairperson conducted a review of the offerors’ cost
proposals and declared that she was “comfortable with the realism of the
submitted [proposals] and the reasonableness of the costs.” AR 2306, 2308.
Following the TEP review, a cost realism analysis was conducted. This
analysis was performed by comparing the cost elements of the proposals with
the independent government cost estimate (“IGCE”) and through an
independent rate verification and analysis. CO Heath compared proposed
direct labor rates, indirect rates, ODCs, and fixed fee for the proposals of the
offerors and any subcontractors. Ultimately, the analysis found that both
proposals were “realistic for the work to be performed; reflect[ed] a clear
understanding of the requirements; and [were] consistent with each offeror’s
technical proposal.” AR 2353. Tetra Tech and ERG both proposed total costs
of slightly more than [ ], with ERG’s proposal being [ ]
than Tetra Tech’s. AR 2382.
On June 24, 2016, the SSO, Noelle Mills (“SSO Mills”), issued her
decision awarding the contract to ERG. The decision was made based on a best
6
CO Heath notified the TEP chair that he was taking this action, saying
everything in the final version of the TEP report was “basically the same with
some minor editing of the reports and I also included the Past Performance
sections so no further action is required on your part as I already have your
signatures of concurrence.” AR4398.
10
value analysis, taking into account the evaluated costs of the offer and the
technical evaluation factors set forth in the RFP. SSO Mills noted that she
considered the reports and information provided to her from the TEP, but “the
award decision represents [her] own independent judgment of an assessment
of the technical information, the cost or pricing data and other information
brought out in the offeror’s proposal.” AR 2384. SSO Mills specifically noted
ERG’s higher technical rating and its lower price and proposed fee rate.
Tetra Tech was notified of the award to ERG on June 24, 2016. It filed
its complaint in this court, on June 30, 2016, challenging the award decision.
Plaintiff filed its first motion for judgment on the administrative record on
August 2, 2016, and defendant and ERG filed their cross-motions on August
17, 2016. After further briefing and three supplementations to the AR,
defendant filed a notice of EPA’s intent to take corrective action on September
1, 2016. Defendant indicated that, during the corrective action, “the agency
may review any part of the evaluations and/or analyses as they see fit,” and
that “[o]nce the TEP has issued its final report, the EPA will then submit the
TEP report to the SSO to re-evaluate her best value determination.” Def.’s
Not. of Corrective Action.
Corrective Action And Second Award To ERG
As part of EPA’s corrective action, it assigned a different contracting
officer, Noelle Mills (“CO Mills”), and a different source selection official,
Sandra Licis (“SSO Licis”) to make the new award decision.7 CO Mills sent
a memorandum to the TEP members, informing them that the TEP must
reconvene to re-evaluate the technical proposals of both Tetra Tech and ERG
and issue a revised consensus report. Before they reconvened, CO Mills asked
the TEP members to review, among other documents, the solicitation, their
prior consensus ratings for Tetra Tech and ERG, and Tetra Tech’s second
amended complaint in this protest. For her part, CO Mills issued both a revised
cost realism and price reasonableness analysis and a revised Past Performance
evaluation that was included in the revised consensus TEP report. To assist
with her Past Performance evaluation, the TEP gave input to CO Mills relating
to the scope and complexity of the contracts identified in the proposals.
7
We note that, while new to these particular roles, CO Mills and SSO Licis both
played a part in the initial award decision. CO Mills gave the final approval, as
source selection official, for the June 24, 2016 source selection determination, and
SSO Licis provided CO Heath with review comments to assist in drafting the same.
AR 2385.
11
The corrective action yielded no change to the adjectival ratings
assigned by the TEP. When re-evaluated by CO Mills, ERG and Tetra Tech
both saw their Past Performance ratings increase from “Satisfactory
Confidence” to “Substantial Confidence.” Plaintiff alleges that EPA acted
irrationally while evaluating both ERG’s and Tetra Tech’s proposals with
respect to Key Personnel, Past Performance, and Corporate Experience.
Specifically, plaintiff argues that EPA arbitrarily and capriciously assigned
adjectival ratings that did not relate to the strengths and weaknesses identified
in both Tetra Tech’s and ERG’s proposals. Plaintiff further believes that EPA
applied unstated evaluation criteria while evaluating the PL-4 Program
Manager position, ignored the asserted fact that the Past Performance section
of ERG’s proposal did not meet the RFP’s technical requirements, and
otherwise relaxed the stated evaluation criteria to ERG’s benefit. We discuss
in more detail below the technical ratings that Tetra Tech now challenges and
the justification for those ratings provided in the TEP report.
Key Personnel Evaluation
The TEP’s consensus evaluation of Tetra Tech’s technical proposal
explains the ratings assigned to each subfactor. For Qualifications and
Availability of Key Personnel subfactor I.A.1, demonstrated qualifications and
availability of the proposed PL-4 Program Manager (Technical Qualifications),
the evaluation noted that Tetra Tech’s Program Manager, [ ], had “26
years of experience in delivering technical support, both as an employee of and
as a contractor for the EPA, spending more than 20 of those years providing
water quality and wastewater management support for the EPA.” AR 6513.
The TEP’s evaluation further pointed out [ ] “33 years of
experience developing, implementing, and managing water resources
protection programs” as well as his past projects and experience relevant to the
PWS for this solicitation. Id. It went on to identify [ ] strengths in
developing and implementing regulations, outreach and stakeholder
engagement, data collection and management, and developing scientific and
technical documents. The revised consensus evaluation also identified one
weakness: that “[t]he proposal does not demonstrate this individual’s technical
ability for innovation or integration with new ideas or critical issues.”
Id.
Overall, the evaluation found that
[t]he proposed program manager has notable management
experience relevant to this PWS. While not specifically
questioning his technical expertise, many of the projects
12
outlined in the proposal to demonstrate his technical expertise
really demonstrated the technical expertise of others. There is
also little there that demonstrates any real energy or innovation
about the NPDES program.
AR 6514. Tetra Tech was given a “Good” rating for the Technical
Qualifications subfactor. Plaintiff asks the court to focus on the criticism
directed to [ ] lack of demonstrated innovation, which it
characterizes as unfair because the desirability of “innovativeness” was not
called out in the solicitation as a requirement.
With regard to Qualifications and Availability of Key Personnel
subfactor I.A.2, demonstrated qualifications and availability of the proposed
PL-4 Program Manager (Managerial Qualifications), the consensus report
noted [ ] “notable amount of contract management experience with
contracts of similar size, type and managerial scope.” AR 6515. The evaluation
identified no weaknesses for this subfactor. Overall, the TEP found that
[t]his individual has experienced managing multiple contracts of
all sizes and scopes, of similar topics, and managing over 100
employees on diverse CWA topics in multiple locations. Under
his management, there is a history of high ratings. He
demonstrates management experience at multiple levels – PM,
DPM, WAM, and Team Leader. He has managed contracts with
multiple clients for diverse activities.
AR 6515-16. Tetra Tech was given an “Outstanding” rating for the Managerial
Qualifications subfactor.
Plaintiff challenges EPA’s evaluation of ERG’s comparable proposed
PL-4 Program Manager, [ ]. In its consensus evaluation of
[ ] under Qualifications and Availability of Key Personnel subfactor
I.A.1, demonstrated qualifications and availability of the proposed PL-4
Program Manager (Technical Qualifications), the agency concluded:
STRENGTHS: . . . [ ] has 28 years of experience
supporting OW in evaluating effective options for improving the
nation’s water quality and has extensive and direct experience
spanning nearly all PWS areas. Throughout her career, she has
supported OW regulatory development and implementation,
13
personally supporting more than 10 OW rulemaking programs
and more than 20 regulatory studies or petitions, including
technically challenging and controversial rulemakings such as
the CAFO effluent limitations guidelines (ELGs) and the recent
steam electric ELGs. She currently serves as Program Manager
for ERG’s technical support to OWM’s NPDES Vessel General
Permit Program. Through this work, she has demonstrated
first-hand experience addressing challenges facing OWM,
including petitions, lawsuits, and regulatory and technological
challenges. She understands the importance of creating legally
defensible regulations, based on sound engineering judgement.
[ ] has been instrumental in developing modern tools
to manage data and information, such as the ERG Comment
Coding and Response System, and the DMR Pollutant Loading
Tool, which manages thousands of records and provides an
interface for EPA and the public to systematically search and
review discharge monitoring report (DMR) data entered into the
Integrated Compliance Information System–National Pollutant
Discharge Elimination System (ICIS-NPDES).
[ ] has impressive skills in the areas of tool
development, data systems management, climate analysis, water
quality trading, and areas of sustainability such as energy and
water efficiency and LEED, that could definitely infuse the
NPDES program with some fresh and improved approaches.
...
WEAKNESSES: While [ ] has demonstrated expertise
in some NPDES program areas, she is lacking knowledge and
expertise in other program specific areas like CSO and pre-
treatment program development and implementation. There is
little demonstration of implementation of regulation programs,
i.e., seems to be involved in rule development and data systems
development, but not so much the delivery and improvement of
programs.
There is a mismatching of title of “Centralized wastewater
Treatment Performance for Nutrients,” with description of
POTWs (page 18). There are inconsistencies in incorrectly
14
naming projects (CWTs versus POTWs for nutrient sampling)
or not quite matching titles to projects, (“DMR [Pollutant]
Loading Tool”). In addition, “centralized wastewater treatment”
in the NPDES program are industrial facilities not POTWs.
These mistakes demonstrate a misunderstanding of some key
terms and a poor understanding of the program.
AR 6489. Overall, the TEP found that
[ ] is impressive in the areas of tool development, data
systems management, climate analysis, water quality trading,
and areas of sustainability such as energy and water efficiency
and LEED. These skills could potentially infuse the NPDES
program with new ideas and approaches that could enhance the
NPDES program. While [ ] has demonstrated
expertise in some NPDES program areas, she is lacking
knowledge and expertise in other program specific areas like
CSO and pre-treatment program development and
implementation. However, her strengths outweigh the cited
weaknesses in these areas.
AR 6490. ERG, like Tetra Tech, was given a “Good” rating for the Technical
Qualifications subfactor. Plaintiff calls the court’s attention to earlier versions
of the consensus TEP report in which [ ] is described as having
“[e]ssentially no relevant NPDES experience.” AR 2863. Plaintiff contends
that the agency’s final assessment of her weaknesses was purposefully diluted
between the earlier versions and the final revised consensus version of the TEP
report.
For [ ] Qualifications and Availability of Key Personnel
subfactor I.A.2, demonstrated qualifications and availability of the proposed
PL-4 Program Manager (Managerial Qualifications), the consensus report
identified “a notable amount of contract management experience with
contracts of similar size, type and managerial scope. She serves as ERG’s Vice
President and Program Manager.” AR 6491. The evaluation further identified
six specific instances of relevant contract management experience. It identified
no weaknesses within this subfactor. Overall, the evaluation found that
[ ] brings extensive managerial qualifications
managing contracts of similar size, type and managerial scope.
15
She is a highly qualified manager, providing EPA with flexible
and responsible leadership with multiple and sometimes
competing priorities. She has demonstrated the required
experience, dedication and corporate responsibility to achieve
the desired results from a managerial standpoint.
AR 6492. ERG was given an “Outstanding” rating for the Managerial
Qualifications subfactor.
Past Performance
Past Performance was evaluated by CO Mills. During the corrective
action period, the TEP gave input to CO Mills regarding the scope and
complexity of the contracts identified in Tetra Tech’s and ERG’s proposals.
For ERG, CO Mills evaluated five contracts using the Contractor Performance
Assessment Report (“CPAR”). These five cost-plus-fixed-fee (“CPFF”)
contracts ranged in value from $11,546,607 to $39,069,420. CO Mills also
used the CPAR database to evaluate two contracts from each [ ] and [
]—ERG’s two subcontractors that were expected to receive a subcontract in
excess of $5,000,000. [
].” AR
6497. Plaintiff contends that this is not fully consistent with the solicitation,
which requires the contracts to be “similar in technical scope and complexity,
size, and type to that which is anticipated in the solicitation.” AR 164.8
The contracts were judged based on five performance elements: quality,
schedule, cost control, management, and regulatory compliance. The revised
TEP consensus report combined the ratings of ERG, [ ] in the
following table, which shows the number of contracts that received a particular
score for each performance element:
8
We note that, at the beginning of the Past Performance section in the revised
consensus TEP report, CO Mills quoted the standard from the solicitation. AR 6496.
16
Performance Unsatisfactory Marginal Satisfactory Very Good Exceptional
Elements (1) (2) (3) (4) (5)
Quality [
Schedule
Cost Control
Management
Regulatory ]
Compliance
AR 6499. CO Mills did not find any weaknesses for ERG’s Past Performance.
Overall, ERG received a “Substantial Confidence” rating for Past
Performance.
For Tetra Tech, CO Mills evaluated seven contracts using CPAR.
These seven contracts included five CPFF contracts and two IDIQ contracts
with CPFF task orders and ranged in value from $8,911,751 to $107,800,000.
Like ERG’s contracts, Tetra Tech’s evaluated contracts were selected because
“[
].” AR 6521
The revised TEP consensus report combined Tetra Tech’s contracts in
the following table:
Performance [
Elements
Quality
Schedule
Cost Control
Management ]
17
Regulatory [ ]
Compliance
AR 6522. CO Mills did not find any weaknesses for Tetra Tech’s Past
Performance. Like ERG, Tetra Tech received a “Substantial Confidence”
rating for Past Performance.
Corporate Experience
Corporate Experience was broken down into two components:
Corporate Technical Experience and Corporate Management Experience. For
ERG’s Corporate Technical Experience, the TEP identified numerous
strengths and no weaknesses, finding that
The ERG proposal demonstrates access to firms that not only
provide high-quality technical support across the NPDES
program, including NPDES permit program development,
implementation, and oversight, but who can also support
Agency priorities, such as working toward a sustainable future
(e.g., in areas such a climate, energy, and water efficiency) and
working to make a visible difference in communities (e.g., green
infrastructure, environmental justice). ERG provides a
comprehensive understanding of the NPDES program mission
and program needs and unparalleled technical expertise to meet
those needs.
AR 6501. Overall, the TEP found that ERG’s proposal “is outstanding and
seems to provide some opportunities for the NPDES program to expand and/or
get a fresh perspective on some parts of the program.” AR 6504. ERG was
given an “Outstanding” rating for Corporate Technical Experience.
ERG was also given an “Outstanding” rating for Corporate
Management Experience. The revised consensus TEP report explained that
“ERG has managed multiple contracts of similar size, type, scope and
technical complexity, including amending, developing and implementing
NPDES permits and CWA regulations.” AR 6505. The report found one
weakness in ERG’s proposal: “[e]xperience in amending, developing, and
implementing NPDES permits, other than Vessel General Permit, is limited.”
Id. Overall, the TEP found that
18
The package demonstrates a wide variety of successfully
managed projects, well within the size, scope and complexity of
this PWS. It also suggests the possibility of bringing new
approaches to the program, e.g., better integrating climate
resilience into the program, providing better data management
systems, improving training, and/or developing more effective
tools to support the NPDES program.
Though the contracts are of similar size, scope and complexity,
there is limited corporate management experience with
amending, developing, and implementing traditional NPDES
permits, other than Vessel General Permit and MS4s. Most of
the rulemaking is on effluent guidelines and standards, though
it also includes Sufficiently Sensitive Methods. The ERG team
members complement each other and are very qualified.
AR 6505-06. ERG received a rating of “Outstanding” for both Corporate
Experience components.
With respect to Tetra Tech’s Corporate Technical Experience, the TEP
noted that its “demonstrated corporate technical experience includes an
extensive range of NPDES program development, implementation, and
rulemaking support.” AR 6524. Unlike ERG, the TEP identified one weakness
in Tetra Tech’s proposal for this component, stating that there was “a rather
poor demonstration that they are positioned (or even interested) in supporting
the program to meet the next generation of environmental challenges.” AR
6526. Nevertheless, the TEP gave Tetra Tech a rating of “Outstanding,”
concluding that Tetra Tech had “notable technical competencies across most
fundamental and existing areas of the NPDES program,” and that they were
“well-qualified to support the program to maintain the status quo.” AR 6526.
Tetra Tech was also given an “Outstanding” rating for Corporate
Management Experience. The TEP consensus report noted that “[s]ince 1979,
Tetra Tech has managed numerous large, level-of-effort (LOE), multitask
contracts for EPA’s Office of Water and other federal and local clients” and
that Tetra Tech’s proposal “demonstrates a clear ability to adequately manage
contracts of this size, type, and scope, as they’ve already been doing it.” AR
6527. However, the following weaknesses were identified:
[t]here seems to be minimal use of subcontractors or other
19
technical expertise, even in areas where Tetra Tech does not
have notable technical expertise. It appears that a lot of their
small business efforts are for high dollar, low return efforts like
e-NOI, rather than spreading these resources across small
businesses and/or seeking out fresh expertise for projects that
might benefit from it.
Id.
Tetra Tech and ERG were given identical ratings for the remaining
technical factors, except for I.B, Technical Qualifications and availability of
the PL-4 Quality Assurance (QA) Manager with the type of technical
requirements covered in the PWS. For this factor, ERG was given an
“Outstanding” rating, and Tetra Tech was given a “Good” rating. Tetra Tech
does not protest the TEP’s awarding ERG a higher rating for the PL-4 Quality
Assurance Manager position.
CO Mills issued a revised cost realism and price reasonableness
analysis on December 16, 2016. She determined that both ERG’s and Tetra
Tech’s proposed costs were realistic for the work to be performed and
reflected a clear understanding of the requirements. She further found the
proposed cost-plus-fixed-fee provided by each offeror to be fair and reasonable
to the government. On December 16, 2016, SSO Licis determined that an
award to ERG presented “the best value to the government based on the higher
technical ration of the Quality Assurance Manager and the lower, reasonable
and realistic costs of ERG’s proposal.” AR 6789. That same day, Tetra Tech
was notified that it was again unsuccessful.
DISCUSSION
The Tucker Act, as amended by the Administrative Dispute Resolution
Act, confers jurisdiction upon this court “to render judgment on an action by
an interested party objecting to a solicitation by a Federal agency for bids or
proposals for a proposed contract or to a proposed award or the award of a
contract or any alleged violation of statute or regulation in connection with a
procurement or a proposed procurement.” 28 U.S.C. § 1491(b)(1) (2012). An
“interested party” is “an actual or prospective bidder or offeror whose direct
economic interest would be affected by the award of the contract or by failure
to award the contract.” Am. Fed’n of Gov’t Emps. Local 1482 v. United States,
258 F.3d 1294, 1302 (Fed. Cir. 2001).
20
In exercising our bid protest jurisdiction, we adhere to the standards set
forth in section 706 of the Administrative Procedure Act (“APA”), which
means that we will vacate an agency’s decision only if it is “arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with the
law.” 5 U.S.C. § 706(2)(A) (2012). An agency’s action would be considered
“arbitrary and capricious if the agency has relied on factors which Congress
has not intended it to consider, entirely failed to consider an important aspect
of the problem, offered an explanation for its decision that runs counter to the
evidence before the agency, or is so implausible that it could not be ascribed
to a difference in view or the product of agency expertise.” Motor Vehicle
Mfrs. Ass’n of the U.S. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43
(1983). Thus, the agency’s action will be set aside if it lacks a rational basis or
if it involves a prejudicial violation of procedure. Impresa Construzioni Geom.
Domenico Garufi v. United States,
238 F.3d 1324, 1332 (Fed. Cir. 2001).
Because this contract was awarded based on “best value,” the agency has
greater discretion than if the contract were to be awarded on the basis of price
alone. Galen Med. Assocs., Inc. v. United States,
369 F.3d 1324, 1330 (Fed.
Cir. 2004) (citing E.W. Bliss Co. v United States,
77 F.3d 445, 449 (Fed. Cir.
1996)). “The greater the discretion granted to a contracting officer, the more
difficult it will be to prove the decision was arbitrary and capricious.”
Burroughs Corp. v. United States,
617 F.2d 590, 597 (Ct. Cl. 1980).
Accordingly, this court’s review should be “highly deferential” to the agency’s
determination. Femme Comp Inc. v. United States,
83 Fed. Cl. 704, 726 (2008)
(citing Advanced Data Concepts, Inc. v. United States,
216 F.3d 1054, 1058
(Fed. Cir. 2000)).
Plaintiff takes issue with EPA’s evaluations of both ERG’s and Tetra
Tech’s proposals with regard to Key Personnel, Past Performance, and
Corporate Experience. According to plaintiff, EPA’s evaluations of ERG’s and
Tetra Tech’s proposals were arbitrary and capricious because Tetra Tech’s
proposal objectively demonstrated superior technical qualifications for these
three factors, yet EPA evaluated ERG’s proposal as technically superior.
Plaintiff argues that EPA conducted an improper technical evaluation of both
offerors’ proposals by (1) arbitrarily assigning adjectival ratings to ERG and
Tetra Tech that did not correspond to the strengths and weaknesses identified
in the record; (2) applying unstated evaluation criteria for the PL-4 Program
Manager position; (3) relaxing the RFP’s stated evaluation criteria; (4)
ignoring that the Past Performance section of ERG’s proposal did not meet the
RFP’s technical requirements for Past Performance; (5) disregarding ERG’s
lack of Corporate Experience; and (6) unreasonably evaluating ERG for its
21
Corporate Management and Corporate Technical Experience. Plaintiff
contends that the agency’s arbitrary and capricious actions resulted in
prejudice to Tetra Tech because it had a substantial chance of receiving the
award but for the Agency’s flawed evaluation. Plaintiff requests that the court
enter a permanent injunction enjoining the EPA from proceeding with the
award to ERG.
I. Key Personnel
Regarding Key Personnel, plaintiff contends that ERG’s PL-4 Program
Manager was arbitrarily rated “Good” for her technical qualifications and
“Outstanding” for her managerial qualifications. First, Plaintiff argues that
EPA’s evaluation of the Program Manager position lacks a rational basis
because EPA applied unstated evaluation criteria, namely, whether the
offerors’ proposed Program Managers demonstrated an innovative approach.
Plaintiff notes that the word “innovation” is not included in the solicitation’s
evaluation criteria for the Program Manager position. Plaintiff contends that
use of “innovation” could not be inferred from the stated evaluation criteria
and that it was not subsumed within the stated criteria despite multiple
appearances of the phrase within the PWS. Plaintiff notes that four of the six
times that “innovation” appears in the PWS it is not in the context of requiring
the Program Manager to develop innovative approaches, but rather to compile
innovative work done by others for the OWM program’s benefit. Plaintiff
asserts that the remaining two mentions of “innovation” do not support a
reasonable inference that innovation was subsumed within the evaluation
criteria for the technical qualifications of the Program Manager, and that, if it
was, it should be limited to experience relevant to the specific PWS sections
in which “innovation” appears.
Plaintiff further believes that the TEP disparately evaluated the two
offerors’ proposals by giving [ ] credit for being innovative while
overlooking how Tetra Tech demonstrated [ ] ability to innovate in
its proposal. Building off its argument that use of innovation, if allowed,
should be limited, plaintiff asserts that [ ] lacked experience in the
sections of the PWS that expressly require innovation, undermining the TEP’s
use of the criteria to bolster her rating. Plaintiff contends that, unlike ERG, its
Program Manager not only has experience in the sections of the PWS relevant
to innovation but also that its proposal demonstrated [ ] ability to
innovate in those areas while discussing that experience. Specifically, Tetra
Tech’s proposal identifies numerous instances of [ ]
22
innovations—namely, his work as an author of Emerging Technologies for
Wastewater Treatment and In-Plant Wet Weather Management, his role as
project manager for the Water Environment Federation’s Green Infrastructure
Implementation Task Force involving a multi-year effort focusing on the
integration of innovative green infrastructure practices, his management role
in developing regulations to implement section 316(b) of the CWA, and his
participation in developing a new wastewater treatment grant program.
Plaintiff concludes that EPA improperly downgraded [ ] to a “Good”
rating for technical experience based on the unstated criteria and EPA’s
disregard for relevant information in Tetra Tech’s proposal.
Plaintiff further argues that EPA improperly relaxed the solicitation’s
evaluation criteria for the technical qualifications of ERG’s Program Manager.
Specifically, plaintiff asserts that ERG did not demonstrate that it had the
relevant experience and expertise to handle the technical and scientific
requirements of the PWS. Plaintiff also believes that the source selection
determination improperly ignores ERG’s weaknesses and contends—often
relying on notes from individual TEP members—that EPA took part in a
“pattern of whitewashing” throughout the drafting process that aimed to
minimize those weaknesses. Pl.’s Mot. for J. on the AR 23. Plaintiff also
points out that the revised TEP consensus report identified significant
weaknesses in [ ] technical qualifications, including that she
demonstrated “a misunderstanding of some key terms and a poor
understanding of the program.” AR 6490. According to plaintiff, these
weaknesses could not have reasonably resulted in a “Good” rating, which is to
be awarded to proposals that “indicate[] a thorough approach and
understanding of the requirements.” AR 166. Rather, plaintiff claims ERG’s
Program Manager deserved a score of “Marginal” for her technical
qualifications, meaning that the proposal “has not demonstrated an adequate
. . . understanding of the requirements.” Id. In addition, plaintiff argues that
[ ] should have been given a lower score for her managerial
qualifications based on her lack of experience managing contracts of a similar
size, type, and scope as the PWS.
In defendant’s cross-motion, it argues that plaintiff’s arguments
regarding the EPA’s evaluation of the offerors’ Program Managers amount to
nothing more than mere disagreements. Intervenor also argues that Tetra
Tech’s reliance on individual notes and earlier drafts of the consensus TEP
report is inappropriate because the prior evaluations were superseded by the
revised consensus TEP report and that initial individual ratings, in any event,
23
should be given little weight. Throughout their arguments, defendant and
intervenor rely heavily on the highly deferential standard this court applies
when reviewing decisions of procurement officials and argue that the record
demonstrates that the EPA’s decision was thoroughly considered and well-
supported.
Defendant contends that the “Good” rating given to Tetra Tech’s
Program Manager’s technical qualifications is supported by the record. To
begin with, defendant argues that consideration of innovation and integration
with new ideas was both expressly stated in the PWS and reasonably
considered given that innovation is inherently necessary to the work to be
performed. Thus, according to defendant, plaintiff has failed to show that EPA
used a significantly different basis than the stated factors when evaluating
Tetra Tech’s proposal, and therefore innovation was correctly evaluated by the
TEP. Defendant also believes that plaintiff’s highlighting of instances in its
proposal which show its capability for innovation merely constitute
disagreement with the TEP’s findings. Defendant points out that the TEP
ultimately found that many of the projects outlined in the proposal “really
demonstrated the technical expertise of others,” AR 6514, and that “the
proposal does not demonstrate this individual’s technical ability for innovation
or integration with new ideas.” AR 6513. These findings, defendant argues,
support EPA’s decision to give [ ] technical qualifications a “Good”
rating.
Defendant also argues that EPA reasonably assigned ERG’s Program
Manager a “Good” rating for her technical qualifications. According to
defendant, the decision was reasonably made and within the TEP’s discretion
of how weaknesses should be weighed and whether strengths outweigh any
weaknesses. Defendant argues that the TEP also properly found, by citing to
specific portions of the proposal, that [ ] had considerable education,
expertise, and experience related to the technical requirements of the PWS that
would warrant the rating given. Moreover, defendant stands by EPA’s decision
to give [ ] an “Outstanding” rating for her managerial qualifications.
Defendant argues that the solicitation left to the discretion of the TEP the
determination of whether an offerors’ prior contracts sufficiently covered the
technical requirements of the PWS. Defendant goes on to argue that the TEP
properly used this discretion in finding that the managerial experience offered
by [ ] was similar to the size, type, and managerial scope of the
contract contemplated by the PWS.
24
We begin with plaintiff’s contention that EPA arbitrarily evaluated
ERG’s Program Manager because it applied “innovation and integration with
new ideas” as an unstated evaluation criterion. Generally speaking, an agency
must evaluate an offeror’s proposal based on the criteria set out in the
solicitation. That said, we have also recognized that an agency still enjoys
“great discretion in determining the scope of an evaluation factor.” Forestry
Surveys and Data v. United States, 44 Fed. Cl. 493, 499 (1999). “Indeed, it is
well-settled that ‘a solicitation need not identify each element to be considered
by the agency during the course of the evaluation where such element is
intrinsic to the stated factors.’” Banknote Corp. of Am., Inc. v. United States,
56 Fed. Cl. 377, 387 (2003) (quoting Analytical & Research Tech., Inc. v.
United States,
39 Fed. Cl. 34, 45 (1997). Thus, “[w]hen weighing the merits
of a proposal under a specific evaluation factor, an agency ‘may consider all
matters that offerors would reasonably have believed to be within the scope of
the factor.’” Forestry Surveys and
Data, 56 Fed. Cl. at 497 (quoting John
Cibinic Jr. & Ralph C. Nash Jr., Formation of Government Contracts 830 (3rd
ed. 1998)).
We hold that EPA properly considered the proposed Program
Managers’ ability to innovate while conducting its evaluation. To begin with,
the solicitation directed the TEP to evaluate the Program Manager’s
demonstrated technical qualifications “with the type of technical requirements
covered by the PWS.” AR 164. The PWS makes no less than six references
to innovation. While plaintiff is correct that several of these references require
that the contractor compile examples of other’s innovative work for the benefit
of the OWM program rather than develop innovative approaches itself, these
instances still show EPA’s focus on innovation as an important consideration
within the PWS. Moreover, the PWS specifically calls for innovative solutions
and ideas from the eventual awardee. Specifically, section 3.3.15 of the PWS
provides that “[t]he contractor shall assess, analyze, and recommend
innovative and efficient solutions for permitting wet weather point sources,”
and section 3.5 provides that “[t]he contractor shall provide support and
technical assistance in the research and development of new, innovative
permitting tools and approaches.” AR 174, 178. Further, we hold that the
consideration of innovation should not be limited as plaintiff argues because
it is inherent to the scientific and technical nature of the work contemplated in
the solicitation. For example, as intervenor points out, supporting the issuance
of new regulations and developing new permits necessarily requires some
element of innovation. We find that a reasonable offeror should have known
25
that EPA would take into account a Program Manager’s capacity for
innovation for the type of work solicited.
We also find plaintiff’s disagreements with EPA’s rating of [
] technical qualifications as “Good” unavailing. The revised
consensus TEP report states that Tetra Tech’s proposal “does not demonstrate
[ ] technical ability for innovation or integration with new ideas
or critical issues.” AR 6513. The report then lists four sections of the PWS as
examples of areas to which its observation applies.9 In essence, plaintiff
responds to the report by pointing to portions of its proposal that it feels show
[ ] ability for innovation. Plaintiff’s arguments are a classic example
of a disagreement with an agency’s evaluation. We hold that plaintiff has not
shown that EPA was unreasonable in assigning [ ] a “Good” rating
for technical qualifications.
Similarly, we are not persuaded that [ ] receiving a “Good”
rating for her technical qualifications was irrational. Plaintiff urges that [
] does not have the requisite NPDES experience to receive such a score.
Plaintiff discusses at great length previous drafts of the revised consensus TEP
report and initial evaluations performed by individual TEP members that spoke
to [ ] limited experience in this area. While not irrelevant, these
earlier reports carry little weight in the face of the revised consensus TEP
report. See DM Petroleum Operations Co. v. United States, 115 Fed. Cl. 305,
314 (2104) (mentioning that “initial individual ratings of [source evaluation
board] members have ‘little bearing on [a] protest’ when the [source
evaluation board] reaches a consensus rating”) (quoting Tech Sys., Inc. v.
United States,
98 Fed. Cl. 228, 247-48 (2011)). Intervenor is correct that a
consensus evaluation process presumes that evaluators can and will change
their minds. In fact, the “TEP procedures” provided to the TEP members on
April 14, 2016, instruct the TEP chair to compile each member’s individual
analysis and ensure that the compiled documents are “displayed electronically
during the meeting for the panel members and can be modified as the
consensus meeting is conducted.” AR 2219. Without more, we reject
plaintiff’s bare assertion that the change in the TEP’s evaluations over time
constituted a whitewash in order to award the contract to ERG.
9
We note that one of the four sections, NPDES Permitting Support (PWS section
3.5), is a section that explicitly seeks the development of “new, innovative permitting
tools and approaches.” AR 178.
26
The revised consensus TEP report noted that [ ] was “lacking
knowledge and expertise in . . . program specific areas.” AR 6490. The TEP
went on to conclude, however, that “her strengths outweighed the cited
weaknesses in these areas.” AR 6490. Plaintiff simply disagrees with the
weight given to [ ] weaknesses by the TEP. Plaintiff has failed to
show that EPA’s evaluation of [ ] technical qualifications was
irrational. Accordingly, we will not set aside EPA’s evaluation.
II. Past Performance
Plaintiff argues that EPA’s past performance evaluation did not comply
with the solicitation because it gave ERG a rating of “Substantial Confidence”
without evaluating five contracts that were “similar in technical scope and
complexity, size, and type to that which is anticipated in this solicitation.” AR
164. In fact, according to plaintiff, none of the contracts identified by ERG in
its proposal were similar in size, type, scope, and complexity to the PWS.
Plaintiff believes that EPA is not owed deference with respect to its
determination of which contracts were appropriate to evaluate because the
contracts chosen “were so dissimilar that they could not reasonably or
rationally be considered as a relevant indicator of successful performance of
the PWS.” Pl.’s Resp. 19. In its motion, plaintiff included a four-page table
that explained the reasons it felt the past performance contracts were not
similar in technical scope and complexity, size and type to the solicitation.
Plaintiff insists that, given ERG’s lack of similar past performance, it should
have been given a score of “Unknown Confidence (Neutral)” rather than the
“Substantial Confidence” score that it received.
Defendant counters that EPA’s Past Performance rating of ERG was
reasonable and within EPA’s discretion. Again, defendant and intervenor cast
plaintiff’s arguments as mere disagreements with EPA’s conclusions and note
that the RFP left it to the discretion of the agency to determine whether the
offered contract references were similar to that contemplated by the RFP.
Intervenor further argues that Tetra Tech cannot show prejudice because its
proposal would also fall victim to the narrow view of “similar” that it
demands. For example, intervenor argues that plaintiff “never explains what
rule of interpretation would require EPA to reject an ERG contract[] worth $11
million as too dissimilar in size, but accept as similar Tetra Tech’s $15 million
reference.” Int.’s Reply 12.
27
Plaintiff’s primary objection with the “Substantial Confidence” rating
given to ERG relates to the contracts that the TEP selected to evaluate in its
revised consensus TEP report. As with other technical factors, “[e]valuation
of past performance is ‘within the discretion of the contracting agency and will
not be disturbed unless it is unreasonable or inconsistent with the terms of the
solicitation or applicable statutes or regulations.’” Fort Carson Support Servs.
v. United States, 71 Fed. Cl. 571 (2006) (quoting Consol. Eng’g Servs. v.
United States,
64 Fed. Cl. 617, 637 (2005)). We agree with defendant and
intervenor that CO Mills acted within her discretion in selecting the contracts
to be evaluated in order to determine Past Performance ratings for both
offerors. CO Mills provided an explanation for the selection of each of the
nine contracts evaluated for ERG. She also received input from the TEP
related to the TEP’s perspective on the scope and complexity of the contracts
identified in ERG’s proposal. Plaintiff asks us to substitute its narrow view of
which contracts are “similar in technical scope and complexity, size, and type
to that which is anticipated in [the] solicitation” for that of CO Mills (as
further informed by the TEP). AR 164. We refuse to do so. Plaintiff has failed
to show that CO Mills abused her discretion in selecting the contracts to be
evaluated or assigning ERG a Past Performance rating of “Substantial
Confidence.”
III. Corporate Experience
Plaintiff takes issue with ERG’s “Outstanding” rating for both
Corporate Technical Experience and Corporate Management Experience.
Specifically, for Corporate Technical Experience, plaintiff argues that the
revised TEP report failed to evaluate or even mention whether contracts
identified in ERG’s proposal were of “similar size (as measured by dollar
value and level-of-effort), contract type, and technical scope as that specified
in [the] solicitation.” AR 164. Plaintiff argues that had EPA done so, it would
not have been able to give ERG an “Outstanding” rating because the contracts
in its proposal were not reasonably similar. Along the same lines, for
Corporate Management Experience, plaintiff argues that EPA failed to
examine individually whether ERG’s proffered prior contracts were “of similar
size (dollar amount), type (CPFF, multi task), and technical complexity and
scope to that specified in [the] solicitation.” AR 164. Rather, plaintiff argues
that EPA simply copied and pasted from ERG’s proposal that it [
] Compare AR 6505
with AR 5122. Again, plaintiff believes that had EPA examined the individual
contracts, it would have found that the contracts were not sufficiently similar
28
and been unable to rate ERG’s Corporate Management Experience as
“Outstanding.”
Plaintiff further argues that it was unreasonably inconsistent for EPA
to give ERG an “Outstanding” rating for Corporate Management Experience,
while also finding that ERG’s one weakness was its limited management
experience with “amending, developing, and implementing NPDES permits,
other than Vessel General Permit.” AR 6505. Plaintiff argues that this is
especially significant because the TEP, while discussing Past Performance,
identified permitting activities as “the cornerstone of the PWS.” AR 6498.
Plaintiff asserts that EPA’s “Outstanding” rating was irrational because the one
identified weakness is such an important aspect of the contract contemplated
in the solicitation.
Defendant again argues that plaintiff’s concerns with respect to the
Corporate Experience ratings are nothing more than plaintiff’s disagreement
with EPA’s evaluation. Defendant asserts that, as with Past Performance, EPA
has discretion to determine what constituted a similar contract. Defendant
further argues that EPA considered ERG’s experience in “fulfilling the
technical requirements of contracts of a similar size, type and scope to that
contemplated by the solicitation because when discussing ERG’s experience
in relation to the PWS categories, the EPA cited to sections in ERG’s proposal
documenting ERG’s work on relevant contracts.” Def.’s Mot. for J. on the AR
46.
We hold that the TEP acted within its discretion when it selected
contracts to evaluate in order to judge both ERG’s and Tetra Tech’s Corporate
Technical and Managerial Experience. We will begin with the similar
arguments plaintiff makes for both Corporate Technical and Corporate
Management Experience—namely, that the TEP failed to properly examine
whether the contracts it was evaluating for these factors conformed to the
description of acceptable contract references from the solicitation. These
arguments, again, amount to nothing more than plaintiff’s disagreement with
EPA’s choice of relevant contract references. Moreover, for the TEP’s
evaluation of ERG’s Corporate Technical Experience, the TEP provided a
lengthy list of strengths, organized by PWS category, that ERG demonstrated.
The TEP ultimately concluded that ERG’s “overall package is outstanding and
seems to provide some opportunities for the NPDES program to expand and/or
get a fresh perspective on some parts of the program.” AR 6504. Plaintiff has
29
not shown the TEP’s evaluation of ERG’s Corporate Technical Experience to
be arbitrary and capricious or an abuse of its discretion.
Similarly, with respect to the contract references chosen by the TEP to
evaluate ERG’s Corporate Management Experience, we hold that EPA acted
within its discretion. Again, the solicitation left the determination of what
contracts were sufficiently similar to the EPA’s discretion. Plaintiff has not
shown that the TEP’s selection of contract references was irrational. In the
revised consensus TEP report, the TEP spoke generally when discussing both
ERG’s and Tetra Tech’s Corporate Management Experience. The TEP found
that ERG’s proposal demonstrated a “wide variety of successfully managed
projects, well within the size, scope and complexity of [the] PWS.” AR 6505-
06.
The TEP acknowledged weaknesses in both offeror’s proposals for this
category and rated both offeror’s Corporate Management Experience as
“Outstanding.” Plaintiff’s argument that the weakness the TEP identified for
ERG does not rationally comport with an “Outstanding” rating for this factor
is unavailing. As discussed above, agency’s have broad discretion to weigh
an offeror’s strengths and weaknesses as it sees fit. While reasonable minds
may differ as to ERG’s Corporate Management Experience rating, plaintiff has
failed to show that EPA acted irrationally. Thus we hold that the TEP’s
“Outstanding” rating for ERG’s Corporate Management Experience was
reasonable and supported by the record. Moreover, as intervenor argues,
plaintiff fails to show how it was prejudiced by the alleged relaxation of the
evaluation criteria because, if such a relaxation occurred, it benefitted along
with ERG.
We have considered plaintiff’s other arguments in support of its motion
for judgment on the administrative record and find them unavailing.
CONCLUSION
Plaintiff has failed to show success on the merits. Thus we need not
consider the other factors for injunctive relief. Accordingly, we deny plaintiff’s
motion for judgment on the administrative record and grant defendant’s and
intervenor’s cross-motions for judgment on the administrative record. The
Clerk’s office is directed to enter judgment for defendant. No costs.
30
s/ Eric G. Bruggink
ERIC G. BRUGGINK
Senior Judge
31
