Filed: Mar. 13, 2020
Latest Update: Mar. 13, 2020
Summary: In the United States Court of Federal Claims No. 19-1608C (Filed: March 13, 2020)* *Opinion Originally Filed Under Seal March 9, 2020 ) DEFENSE BASE SERVICES, INC., ) Post-Award Bid Protest; Past ) Performance Evaluation; Price Plaintiff, ) Reasonableness; Best Value Tradeoff v. ) Analysis ) THE UNITED STATES, ) ) Defendant, ) ) and, ) ) ASRC COMMUNICATIONS, LTD., ) ) Defendant-Intervenor. ) ) Douglas L. Patin, Washington, DC, for plaintiff. Patrick R. Quigley, Lisa A. Markman, Sarah S. Osborne,
Summary: In the United States Court of Federal Claims No. 19-1608C (Filed: March 13, 2020)* *Opinion Originally Filed Under Seal March 9, 2020 ) DEFENSE BASE SERVICES, INC., ) Post-Award Bid Protest; Past ) Performance Evaluation; Price Plaintiff, ) Reasonableness; Best Value Tradeoff v. ) Analysis ) THE UNITED STATES, ) ) Defendant, ) ) and, ) ) ASRC COMMUNICATIONS, LTD., ) ) Defendant-Intervenor. ) ) Douglas L. Patin, Washington, DC, for plaintiff. Patrick R. Quigley, Lisa A. Markman, Sarah S. Osborne, ..
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In the United States Court of Federal Claims
No. 19-1608C
(Filed: March 13, 2020)*
*Opinion Originally Filed Under Seal March 9, 2020
)
DEFENSE BASE SERVICES, INC., ) Post-Award Bid Protest; Past
) Performance Evaluation; Price
Plaintiff, ) Reasonableness; Best Value Tradeoff
v. ) Analysis
)
THE UNITED STATES, )
)
Defendant, )
)
and, )
)
ASRC COMMUNICATIONS, LTD., )
)
Defendant-Intervenor. )
)
Douglas L. Patin, Washington, DC, for plaintiff. Patrick R. Quigley, Lisa A. Markman,
Sarah S. Osborne, Washington, DC, of counsel.
Russell J. Upton, Civil Division, United States Department of Justice, Washington, DC,
with whom were Joseph H. Hunt, Assistant Attorney General, Robert E. Kirschman, Jr.,
Director, Douglas K. Mickle, Assistant Director, for defendant. Colby L. Sullins, Air
Force Commercial Litigation Field Support Center, Joint Base Andrews, MD, of counsel.
Kevin P. Mullen, Washington, DC, for defendant-intervenor. Caitlin A. Crujido,
Washington, DC, of counsel.
OPINION
FIRESTONE, Senior Judge.
In this post-award bid protest, filed on October 15, 2019, Defense Base Services,
Inc. (“Defense Base” or “DBSI”) challenges the United States Department of the Air
Force’s (“Air Force” or “Agency”) May 8, 2019 award of the Installation Support
Services in Geographically Separated Locations Contract (“ISS2 Contract”) to ASRC
Communications, Ltd. (“ASRCC”).1 The awardee, ASRCC, has been performing this
one-year phase-in contract with ten separate option periods, together with a one-year
phase-out contract, since August 27, 2019. ASRCC intervened without objection on
October 17, 2019. DBSI claims that the Air Force’s decision to award the ISS2 Contract
to ASRCC was arbitrary, capricious, an abuse of discretion or otherwise not in
accordance with law. Pending before the court are the parties’ cross-motions for
judgment on the administrative record. (ECF Nos. 29, 33, 34). In brief, DBSI is
challenging (1) the Air Force’s decision to give ASRCC a Satisfactory Confidence Past
Performance Rating, (2) the Air Force’s evaluation of ASRCC’s price reasonableness,
and (3) the Air Force’s best value determination.2
For the reasons that follow, the court finds that the Air Force’s award decision
conformed to the terms of the solicitation and that the Air Force’s evaluation of DBSI’s
and ASRCC’s proposals and best value decision were not arbitrary, capricious, or an
1
DBSI filed a seven count complaint but has stated in its briefing and at oral argument that it is
no longer pursuing Counts IV, V, or VI. Specifically, DBSI is no longer challenging ASRCC’s
proposed depreciation method for its vehicles (Count V) or the alleged technical risk associated
with ASRCC’s proposed vehicle approach (Count VI). Pl.’s Mot. for J. on the Admin. R. (“Pl.’s
MJAR”) at 17 n.6 (ECF No. 29). In addition, at oral argument, DBSI stated that it is no longer
protesting whether the Air Force improperly gave additional value to ASRCC’s proposal
attributable to the acquisition of new vehicles (Count IV). Oral Arg. 11:21:17-11:21:23.
2
The issues before the court are virtually identical to the claims that DBSI made and lost before
the Government Accountability Office (“GAO”) in its August 19, 2019 denial of DBSI’s protest.
See Def. Base Servs. Inc., B-416874.3, B-416874.4, 2019 WL 4220893 (Comp. Gen. Aug. 19,
2019). As set forth in the Factual Background section below, this matter had been before the
GAO on two prior occasions.
2
abuse of discretion. Thus, the government’s and ASRCC’s motions for judgment on the
administrative record are GRANTED and DBSI’s motion for judgment on the
administrative record is DENIED.
I. FACTUAL BACKGROUND
A. Program Background and Overview
The Air Force’s 766th Specialized Contracting Squadron (“766 SCONS”)
provides contracting support for the Pacific Air Forces (“PACAF”) installation support
services (“ISS”) requirements. This includes services at these remote locations: (1)
Eareckson Air Station (“EAS”), Shemya, AK, approximately 1,500 miles from
Anchorage, AK; (2) Wake Island Airfield (“WI”), Wake Island, U.S. Territory, on a
Pacific atoll two-thirds of the way from Hawaii to Guam; and (3) King Salmon Airport
(“KS”), King Salmon, AK, approximately 239 miles southwest of Anchorage. AR Tabs
1a at 2; 72c.16 at 10608-09.
Request for Proposal No. FA5215-17-R-9002, “Installation Support Services 2 –
Geographically Separated Locations” (“ISS2-GSL” or “Solicitation”), called for
proposals to provide “[o]perations and maintenance (O&M) of installation infrastructure,
utilities, services and airfields capable of receiving emergency aircraft diverts within 30
minutes notice” and for “[s]upport [for] tenant units and inter-service support
agreements” at EAS, WI, and KS. AR Tab 72c.16 at 10608-9. The Solicitation indicated
that all three locations are accessible and resupplied by air and sea only. Id. It further
explained that due to extremely harsh arctic weather conditions throughout much of the
year, sea barge access/resupply is only possible at EAS and KS between the months of
3
May and September. Id. The logistical exigencies are such that the Solicitation required
planning for movement of vehicles, equipment, and materials only once per year to the
Alaskan locations.
Id. at 10650. It “recommended Contractor employees be in good
health and physically and mentally qualified to withstand the rigors of remoteness.”
Id.
B. Solicitation and Award
1. Procurement Description
The Air Force issued the Solicitation on June 1, 2017, under Federal Acquisition
Regulations (“FAR”) Part 15. AR Tab 72c.16 at 10415; see also AR Tab 61 at 6429. The
Solicitation sought offers for the requested services at a firm-fixed price. AR Tab 72c.16
at 10415-92. The Solicitation contemplated a one-year phase-in period, a one-year phase-
out period, and ten separately-priced, one-year option periods. Id. at 10415-92, 11752.
The Air Force estimated the contract value to be $402 million over the expected 12-year
life of the contract.
Id. at 10415-92; Tab 102 at 25902. The acquisition was a total small
business set-aside. Tab 72c.16 at 10509. The Solicitation called for the contractor to
provide “facilities, utilities, airfield, vehicles, equipment, appliances, roads, grounds,
communication systems, equipment, computers, networks, billeting, food, medical,
environmental services, quality control, supply, logistics, fire protection, aircraft
refueling, deicing, and cargo and passenger handling.”
Id. at 10609. It further stated that
the contractor would provide “all management, supervision, personnel, training, general
purpose vehicles, special purpose vehicles, equipment, tools, materials, and other items
and services necessary to fulfill” the requirements.
Id.
2. Evaluation Provisions
4
Because the Air Force conducted the acquisition under FAR Part 15, the
Solicitation included Section M on the Evaluation Criteria. AR Tab 72c.16 at 10532;
10546, 11764-69 (Attachment 17). Section M set forth the Air Force’s evaluation criteria
and the basis for award. Id. at 11764-69. Subsection M-1, “Basis for Contract Award,”
stated that “competing offerors’ combined past performance information, technical
‘acceptability’ and technical risk would be evaluated on a basis approximately equal to
price.” AR Tab 72c.16 at 11764. All technically acceptable offers would be treated
“equally except for their technical risk, prices[,] and performance records.”
Id. The
Solicitation further stated:
The government reserves the right to award a contract to other than
the lowest Total Evaluated Price (TEP). In that event, the Source
Selection Authority will make an integrated assessment best value
award decision using the Technical Risk Rating, TEP [Total
Evaluated Price], and the Past Performance Confidence Rating.
Id. at 11764, 11769.
Each of the four evaluation factors: Technical Acceptability (id. at 11764-65);
Technical Risk (id. at 11765-66); Price (id. at 11766-68); and Past Performance (id. at
11768-69) were each described in the Solicitation. Technical Acceptability was to be
evaluated on an acceptable/unacceptable basis, where an “Acceptable” proposal was one
that “meets the requirements of the [S]olicitation.” Id. at 11764. Technical Risk was an
“[a]ssessment of technical risk, which is manifested by the identification of weakness(es),
considers potential for disruption of schedule, degradation of performance, the need for
increased Government oversight, and/or the likelihood of unsuccessful contract
performance.”
Id. at 11765. The “Technical Risk Ratings” were as follows:
5
Table 2. Technical Risk Ratings
Rating Description
Low Proposal may contain weakness(es) which have little potential
to cause disruption of schedule or degradation of performance.
Normal contractor effort and normal Government monitoring
will likely be able to overcome any difficulties.
Moderate Proposal contains a significant weakness or combination of
weaknesses which may potentially cause disruption of
schedule or degradation of performance. Special contractor
emphasis and close Government monitoring will likely be able
to overcome difficulties.
High Proposal contains a significant weakness or combination of
weaknesses which is likely to cause significant disruption of
schedule or degradation of performance. Is unlikely to
overcome any difficulties, even with special contractor
emphasis and close Government monitoring.
Unacceptable Proposal contains a material failure or combination of
significant weaknesses that increases the risk of unsuccessful
performance to an unacceptable level.
AR Tab 72c.16 at 11766.
For the Price Evaluation Factor, the Solicitation provided that the Air Force would
“rank all offers by TEP [Total Evaluated Price],” and determine reasonableness by
“using one or more of the price analysis techniques defined in FAR 15.404.” Id. at
11767.3 The price evaluation would “document the completeness, price reasonableness,
3
FAR 15.404-1 covers proposal analysis techniques and provides in relevant part that the
“Government may use various price analysis techniques and procedures to ensure a fair and
reasonable price.” FAR 15.404-1(b)(1). It further includes examples of these techniques such as
comparing proposed prices received in response to the solicitation, comparing prices to historical
prices paid, competitive published lists, published market prices, independent Government cost
estimates, and market research.
Id. at 15-404-1(b)(2).
6
price realism, and balance” of the offerors’ price proposals. Id.4 Regarding the
documentation of price reasonableness, Section M provided that (1) “[a]dequate price
competition in accordance with FAR 15.305 and 15.404-1 is anticipated to determine
price reasonableness” and “[p]rice analysis will be used to evaluate the reasonableness of
each Offeror’s TEP to satisfy the requirement mandated by FAR 15.305(a)(1),” (2)
“[p]rice reasonableness will be determined based on an evaluation of each Offeror’s TEP
using any of the techniques and procedures per FAR 15.404-1(b)(2),” and (3) a
“determination of an unreasonably high TEP may be grounds for eliminating a proposal
from the competition.” Id. at 11767.5
Regarding the Past Performance Factor, the Solicitation provided that the Air
Force would evaluate “recent and relevant performance information on all offerors.” Id.
at 11768. “Recent past performance information” was defined to include “contracts
performed and/or being performed for any customer within the last three (3) years prior
to the issuance date of the [S]olicitation,” and “relevant contracts performance effort
involved similar scope, magnitude of effort, and complexities to that required by th[e
S]olicitation.”
Id. The Solicitation specified that “[p]ast performance regarding
predecessor companies of the offeror and/or subcontractors . . . will not be rated as highly
4
“Total Evaluated Price” (TEP) was “the combined total prices for the Phase In, Option Year[s]
1-10[,] and Phase Out, plus the price for ten (10) six (6) month extensions (one (1) for each
Option Year) . . . to represent the estimated market requirements (Retention Plan) to retain
qualified personnel during contract performance,” but not Not-to-Exceed CLINs.
Id. at 11766.
5
The Air Force would also perform price realism analysis, and “[a]n unrealistically low price
determination may be grounds for eliminating a proposal from the competition.”
Id. at 11767.
The Solicitation specifically cautioned against submitting an unbalanced offer.
Id.
7
as past performance information for the principal offeror.”
Id. The “Past Performance
Relevancy Ratings” were as follows:
Table 3. Past Performance Relevancy Ratings
Rating Description
Very Present/past performance involved essentially the same scope and
Relevant magnitude of effort and complexities as the effort this [S]olicitation
requires.
Relevant Present/past performance effort involved similar scope and magnitude
of effort and complexities this [S]olicitation requires.
Somewhat Present/past performance effort involved some of the scope and
Relevant magnitude of effort and complexities this [S]olicitation requires.
Not Relevant Present/past performance effort involved little or none of the scope
and magnitude of effort and complexities this [S]olicitation requires.
Id. (emphasis in original).
The performance quality of the work of each recent past performance identified by
an offeror was to be reviewed to determine the overall “degree of confidence the
Government has in the offeror’s ability to meet the [S]olicitation requirements based on
the offeror’s demonstrated record of performance.” Id. at 11768. Overall performance
confidence assessments ratings were identified in the Solicitation to include: “Substantial
Confidence,” “Satisfactory Confidence,” “Neutral Confidence,” “Limited Confidence,”
or “No Confidence.”
Id. Offerors with no recent past or present performance history, or
whose performance record was so limited that no confidence assessment rating could be
reasonably assigned, would receive the rating “Neutral Confidence,” meaning “the
offeror is treated neither favorably nor unfavorably.”
Id. at 11768-69. The Air Force
reserved the right to “give greater consideration to [past performance] information on
8
those contracts deemed most relevant to the effort,” id. at 11769. The “Past Performance
Confidence Assessment Ratings” were defined in the Solicitation as follows:
TABLE 4. Past Performance Confidence Assessment Ratings
Rating Description
SUBSTANTIAL Based on the offeror’s recent/relevant performance record, the
CONFIDENCE government has a high expectation that the offeror will
successfully perform the required effort.
SATISFACTORY Based on the offeror’s recent/relevant performance record, the
CONFIDENCE government has a reasonable expectation that the offeror will
successfully perform the required effort.
NEUTRAL No recent/relevant performance is available or the offeror’s
CONFIDENCE performance record is so sparse that no meaningful confidence
assessment rating can be reasonably assigned. The offeror may
not be evaluated favorably or unfavorably on the factor of past
performance.
LIMITED Based on the offeror’s recent/relevant performance record, the
CONFIDENCE government has a low expectation that the offeror will
successfully perform the required effort.
NO Based on the offeror’s recent/relevant performance record, the
CONFIDENCE government has no expectation that the offeror will successfully
perform the required effort.
Id. at 17769 (emphasis in original). The Air Force reserved the right to award a contract
with or without discussions.
Id.
3. Procurement History
The original Solicitation was posted online on June 1, 2017. AR Tab 72c.16 at
10415. The Air Force received a timely proposal in response to the Solicitation from only
two offerors: DBSI and ASRCC. AR Tabs 12; 13; 61 at 6430, 6435. Both were included
in the competitive range and both received numerous Evaluation Notices (“ENs”) to
9
address weaknesses or obtain clarifying information in their proposals. AR Tabs 19; 24-
25; 29a; 61 at 6435-55, 6466-502. The Air Force received DBSI’s final proposal,
originally dated February 15, 2018, and ASRCC’s final proposal on March 30, 2018. AR
Tabs 26-27; 61 at 6435, 6466.
4. First and second evaluations, source selections, protests, and
corrective action
Prior to the third award decision that is now before the court, the Air Force had
previously awarded the ISS2 Contract to ASRCC twice, DBSI protested these two
awards at the GAO, and the Air Force agreed to take corrective action. AR Tab 33 at
5237 (first award selection); AR Tab 40 (DBSI’s first protest); AR Tab 43 (first notice of
corrective action); AR Tab 48 at 6301-02 (second award selection); AR Tab 53 (DBSI’s
second protest); AR Tab 57 (second notice of corrective action).
Of significance here, in each of DBSI’s protests, DBSI took issue with the award
decision where “five evaluation criteria were improperly added to the [Source Selection
Advisory Council (“SSAC”)] technical analysis” in the first evaluation by Colonel
Lemon, the SSAC Competitive Analysis Report (“SSAC CAR”) Chair. AR Tab 40 at
5381; see AR Tab 53 at 6355-56. These five evaluation criteria DBSI claimed were
improperly considered were (1) ability to provide combat ready forces, (2) tyranny of
distance, (3) supply chain risk, (4) affordability cap, and (5) a comparison of wage rates
proposed for one of the contract sites. See AR Tab 53 at 6355.
In response to the first protest, the Air force agreed to “perform a new best value
determination and make a new award decision in accordance with the terms of the
10
[S]olicitation.” AR Tab 43. After the second protest, the Air Force stated that it would
“assess whether its evaluations of the proposals were performed in accordance with the
[S]olicitation, perform a new best value determination, and make a new award decision
according to the terms of the [S]olicitation.” AR Tab 57. For the Air Force’s second
round of voluntary corrective action, there was a newly-appointed SSAC Chair, Colonel
Paul S. Cornwell, USAF. AR Tab 101 at 25897.
5. Final proposal evaluations, source selection, third award, and
debriefing
After the Air Force completed this second round of voluntary corrective action, a
revised Source Selection Evaluation Board (“SSEB”) Final Report was prepared. This
SSEB Final Report was signed by Captain Dotson as the SSEB Chair and by the new
contracting officer, PCO Thomas Williams. AR Tab 61 at 6504. The new SSEB
documented its evaluation of both offerors’ technical acceptability; technical risk; prices
for completeness, reasonableness, price realism, and unbalanced pricing; and past
performance. AR Tab 61 at 6444-46 (ASRCC’s technical risk), 6456-66 (ASRCC’s
pricing and past performance), 6475-78 (DBSI’s technical risk), 6488-94 (DBSI’s
pricing). The offerors’ final proposal ratings were as follows:
ASRCC Final Evaluation DBSI Final Evaluation
Summary Summary
Technical Acceptability ACCEPTABLE ACCEPTABLE
Rating
Technical Risk Factor LOW LOW
Past Performance SATISFACTORY NEUTRAL
Confidence Assessment
11
Total Proposed Price $432,408,959.99 $395,916,040.69
Total Evaluated Price $634,956,398.63 $582,120,550.65
Id. at 6503.
Of significance to this protest is the SSEB’s evaluation of ASRCC’s past
performance references. The Air Force evaluated ASRCC’s past performance references
from [. . .]. AR Tab 61 at 6464. [. . . .] were determined to be “somewhat relevant,” and [.
. .] was evaluated as “not relevant.” Id. In reaching its conclusions regarding [. . .] the
SSEB stated:
The work performed by ASRCC for the [. . .] contract in the areas of airfield
operations, safety, quality assurance, emergency response, facility management,
key personnel oversight and training, and project management are similar in scope
to those required for the ISS2 requirement. The complexity of the scope of work
performed resembles some of the same qualities as the ISS2 requirement but lacks
in the areas of logistical coordination because the location of performance is in [. .
.] and accessible by maintained roadways. . . . The annualized amount of the
contract is $50M compared to $33M for the ISS2 requirement and is essentially
the same magnitude. . . .
The work performed by [. . .]6 for [. . .] in the areas of program oversight, human
resource related management tasks, personnel training, and labor relations related
support reflects some of the scope of work required for the ISS2 requirement. The
complexity of the scope of work performed is similar to the ISS2 requirement
because [. . .] encompasses several geographically separated sites across the State
of [. . .] and requires a higher level of logistical coordination to deliver the services
needed supporting programmatic oversight for this requirement. . . . The
annualized amount of the contract is $49M compared to $33M for the ISS2
requirement and is essentially the same magnitude. . . .
The work performed by [. . .]7 [. . .] for the [. . .] in the areas of communications
and electronics, development of safety and security programs, and development
and oversight of weather related and warning notification programs and systems,
6
[. . .] is a joint venture partner in ASRCC’s proposal. See AR Tab 61 at 6464.
7
[ . . .] is a subcontractor in ASRCC’s proposal. See AR Tab 61 at 6464.
12
have some of the scope of work required for the ISS2 requirement. The
complexity of the scope of work has some resemblance to the ISS2 requirement as
it occurs on one geographically separated location, an island approximately two
miles of the coast of [. . .], accessible only by a ferry that runs at scheduled
intervals throughout the day. . . . The annualized amount of the contract is $27M
compared to $33M for the ISS2 requirement and is similar in magnitude.
Id. at 6464-65.
In addition, the SSEB’s review of ASRCC’s price reasonableness is relevant to
this protest. First, SSEB compared DBSI’s and ASRCC’s annual TEPs and the total TEP.
Id. at 6461. Based on this comparison, the SSEB stated that “ASRCC’s TEP reflected in
the Table above is found to be reasonable based upon the presence of adequate price
competition.”
Id. Next, the SSEB stated:
In determining that adequate price competition existed and the resulting TEP was
reasonable the price evaluators did not rely upon the mere existence of two
proposals, rather the evaluators further analyzed each offeror’s [proposed prices],
reviewing proposed labor, material and vehicle and equipment pricing, reviewing
the price realism analysis . . ., comparing the competitors proposals to each other
and the offerors’ overall prices for indications of whether the proposed prices and
the resulting TEPs were reasonable.
Id. at 6462. Regarding the vehicle pricing, the SSEB stated that “[s]ubstantially different
approaches were taken when proposing contractor provided vehicles and equipment.”
Id.
The SSEB recounted the differences between the offerors’ proposed vehicle costs and
how much of those costs were attributable to the first year of performance.
Id. The SSEB
stated that “[a]lthough the impact of offerors’ amortization of vehicle and equipment
purchases across option year pricing differs, the Government did not find this unusual
given their differing approaches to initial provisioning of vehicles and equipment, and it
did not result in either resulting TEP being found unreasonable.”
Id. Finally, the SSEB
stated that it “found nothing in the pricing of subsequent option year prices which would
13
contradict [the SSEB’s] assessment of price reasonableness described above.” Id.
The SSEB concluded:
In summary, based on the analysis above, . . . the Government has determined that
ASRCC’s TEP is reasonable based upon the presence of adequate price
competition as evidenced by two offerors competing independently, both
providing technically acceptable offers able to satisfy the Government’s
requirement and our comparative analysis of the prices as described above.
Id.
A revised SSAC CAR was prepared following the SSEB Evaluation Report by the
newly-appointed SSAC Chairperson. AR Tab 101 at 25897; see also AR Tab 4 at 59.
Noting that ASRCC had three past performance records that were “somewhat relevant” to
the ISS2 Contract and had received ratings on those contract ranging from “satisfactory”
to “excellent,” and that ASRCC’s past performance at [. . .] had a similar scope and
complexity in terms of areas covered, the SSAC Chair determined that “ASRCC’s past
performance record was stronger than DBSI’s.” AR Tab 101 at 25896-97. The SSAC
Chair further determined that this provided a benefit and increased the likelihood of
successful contract performance, which he believed was “well worth the 9.08 percent
price over the DBSI proposal.”
Id. at 25897.
These final reports were provided to the Source Selection Authority (“SSA”),
Major General Russell L. Mack, and the SSA issued a new Source Selection Decision
Document (“SSDD”) again awarding the contract to ASRCC on May 8, 2019. AR Tab 62
at 7446-47. In the SSDD, the SSA considered the SSEB’s evaluation results, as well as
the award recommendation from the new SSAC CAR Chair, and, noting that the
Solicitation stated that an “offeror’s Past Performance Confidence Assessment Rating,
14
technical ‘acceptability’ and technical risk rating will be evaluated on a basis
approximately equal to price,” and that the Air Force had reserved the right to award a
contract to “other than the lowest priced offeror,” the SSA independently determined to
make the award to ASRCC. Id. at 7446 (emphasis added). The SSDD discussed in detail
the Air Force’s process for evaluating the two proposals under the stated evaluation
criteria, then provided a comparative analysis of the proposals.
Id. at 7432-7445.
Specifically, the SSDD concluded:
Both offerors provided proposals that are technically acceptable and
conform to the evaluation criteria in the [S]olicitation. Both offerors
received a low technical risk rating, however the offerors have
differing Past Performance Confidence Assessment Ratings.
Reviewing the performance records of the two offerors presented by
the SSEB, DBSI was found to have no relevant past performance
and therefore received a neutral [P]ast [P]erformance confidence
rating, which I view neither favorably nor unfavorably. ASRCC
however had several recent past performances which were found to
be somewhat relevant to the current ISS2-GSL requirement and
which had quality of performance ranging from satisfactory to
excellent. For example, the [. . .] contract was found to have
essentially the same magnitude as the current ISS2-GSL
requirement, and to have similar scope of performance and some of
the complexity of the ISS2-GSL requirement. Here ASRCC was
found to have a known record of satisfactory performance similar in
scope to that required by the current ISS2-GSL requirement,
covering areas such as airfield operations, safety, quality assurance,
emergency response, facility management, key personnel oversight,
training, and project management. . . .
I find that ASRCC’s satisfactory Past Performance Confidence
Assessment Rating combined with its technically acceptable
approach and low technical risk rating, provides a benefit to the
Government and provides reasonable confidence of successful
performance. Therefore I believe ASRCC’s proposal is worth the
9.08% price premium over the DBSI technically acceptable, low
technical risk, and neutral Past Performance Confidence Assessment
rated proposal.
15
Id. at 7446-47. The SSA further concluded in the SSDD: “In summary, based on my
integrated assessment of all proposals in accordance with the evaluation criteria set forth
in RFP FA5215-17-R-9002 for the ISS2-GSL, it is my decision that the proposal
submitted by ASRCC represents the best overall value to the Government. I direct
contract award to ASRCC.”
Id. The Air Force provided notice of the new award decision
along with a written debriefing to DBSI on May 16, 2019. AR Tab 64. DBSI submitted
extended debriefing questions, and the Air Force provided responses on May 22, 2019.
AR Tabs 64-65.
C. DBSI’s GAO and Court of Federal Claims Protests of the Air Force’s
Third Award
On May 24, 2019, DBSI filed its third protest with the GAO, once again
contesting the Air Force’s decision to award the ISS2 Contract to ASRCC. AR Tab 66.
Following motions practice, the GAO denied DBSI’s protest on August 19, 2019. AR
Tab 85a (Def. Base Servs., Inc., B-416874.3, B-416874.4, 2019 WL 4220893(Aug. 19,
2018)).
The GAO dismissed DBSI’s technical risk challenge as well as its challenge to the
Air Force’s price reasonableness analysis. Regarding price reasonableness, the GAO
explained that because, under the terms of the Solicitation, “price reasonableness was to
be evaluated based on total evaluated price [TEP], and not individual price elements,”
AR Tab 85a at 24343 n.4 (citing RFP, Section J, Attach. 17, at 4 (AR Tab at 72c.16 at
11767)), the Air Force did not err in failing to evaluate individual price elements.
Respecting DBSI’s remaining allegations, the GAO concluded that, aside from DBSI’s
16
two “most significant challenges” – to the Air Force’s evaluation of ASRCC’s proposal
for balanced pricing and to the weight assigned by the Air Force to offerors’ past
performance and price in the tradeoff decision, both addressed below – none of DBSI’s
other allegations provided a basis to sustain its protest. AR Tab 85a at 24340-41.
Regarding the Air Force’s price evaluation, the GAO found that the Air Force had
conducted a detailed analysis of the offerors’ proposals for unbalanced pricing as
required by the Solicitation and that the SSA had sufficiently considered this analysis and
the offerors’ disparate approaches in making his decision. AR Tab 85a at 24342-43.
Regarding the Air Force’s best-value tradeoff, the GAO found that the Air Force was not
required to identify “countervailing risks” in assessing an offeror’s past performance; that
it properly relied upon past performance as a discriminator where proposals were only
evaluated for technical acceptability and both proposals had received “low risk” ratings;
and that the tradeoff decision adequately documented the SSA’s rationale for accepting
the price premium for ASRCC’s proposal over DBSI’s. AR Tab 85a at 24344-47.
Following the GAO’s decision denying DBSI’s GAO protest, the stay of
performance mandated by the Competition In Contracting Act, 31 U.S.C. § 3553(d)(3),
was lifted by operation of law. ASRCC commenced contract performance shortly
thereafter upon receiving its August 27, 2019 notice to proceed. On October 15, 2019,
nearly two months after GAO denied DBSI’s GAO protest, DBSI filed its complaint in
this Court. See Compl. (ECF No. 1).
II. PROCEDURAL HISTORY
17
DBSI filed its action in this court on October 15, 2019. Id. The parties thereafter
filed cross-motions for judgment on the administrative record. Pl.’s Mot. for J. on the
Admin. R. (“Pl.’s MJAR”) (ECF No. 29); Def.’s Cross-Mot. for J. on the Admin. R.
(“Def.’s MJAR”) (ECF No. 34); ASRCC’s Cross-Mot. for J. on the Admin. R.
(“ASRCC’s MJAR”) (ECF No. 33). Briefing was completed on January 27, 2020. Oral
argument was held on February 26, 2020.
III. LEGAL STANDARDS
This court exercises jurisdiction over a post-award bid protest under 28 U.S.C.
§ 1491(b). In a bid protest, the court applies the standards set forth in 5 U.S.C. § 706, and
may set aside an award only if the agency’s action was “arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law.” Palladian Partners, Inc. v. United
States¸783 F.3d 1243, 1252 (Fed. Cir. 2015) (quoting Savantage Fin. Servs. v. United
States, 595 F.3d 1282, 1285 (Fed. Cir. 2010)).
The arbitrary and capricious standard is “highly deferential” and the “protestor
bears the burden of proving that a significant error marred the procurement in question.”
Glenn Def. Marine (Asia), PTE Ltd. v. United States, 720 F.3d 901, 907 (Fed. Cir. 2013)
(internal quotation marks and citation omitted). “The scope of review under the ‘arbitrary
and capricious’ standard is narrow and a court is not to substitute its judgment for that of
the agency. Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co.,
463 U.S. 29, 43
(1983); see also Ceres Envtl. Servs. v. United States,
97 Fed. Cl. 277, 308 (2011). This
court must sustain an agency action unless the action does not “evince[] rational
reasoning and consideration of relevant factors.” Advanced Data Concepts, Inc. v. United
18
States, 216 F.3d 1054, 1058 (Fed. Cir. 2000). An offeror’s disagreement with the
agency’s judgment, without more, is insufficient to establish that the agency acted
unreasonably. Metro. Interpreters and Translators, Inc. v. United States,
145 Fed. Cl.
495, 509 (2019); see also Software Eng’g Servs., Corp. v. United States,
85 Fed. Cl. 547,
555 (2009) (“Offerors carry the burden of presenting an adequately written proposal, and
an offeror’s mere disagreement with the agency’s judgment concerning the adequacy of
the proposal is not sufficient to establish the agency acted unreasonably.” (internal
quotation marks and citation omitted)).
IV. DISCUSSION
DBSI challenges the Air Force’s determination that ASRCC’s past performance
merited a Satisfactory Confidence rating and that ASRCC’s proposed price was
reasonable. DBSI also challenges the Air Force’s trade-off determination and its
conclusion that ASRCC’s proposed final price, which is 9.08% higher than DBSI’s,
offered the Air Force the best value. Each objection will be addressed in turn.
A. The Air Force’s Evaluation of ASRCC’s Past Performance Was Not
Arbitrary, Capricious, or an Abuse of Discretion
As discussed above, the Air Force determined that ASRCC’s past performance
record included three “somewhat relevant references” and merited a Satisfactory
Confidence rating based on ASRCC’s performance of those contracts. The references the
Air Force relied upon were [. . .]. DBSI argues that ASRCC’s three past performance
references lacked the required relevance to support a satisfactory past performance rating.
Pl.’s Reply at 15 (ECF No. 35). Specifically, DBSI argues that the performance
19
references were irrationally determined to be “somewhat relevant” under the terms of the
Solicitation because ASRCC’s references were not geographically similar to the locations
at issue in this procurement “in terms of the logistical, resource, and environmental
complexity of supporting the sites” or did not encompass work relevant to the scope of
this procurement. Id. at 16, 18.
The government and ASRCC respond that the Air Force’s Satisfactory rating for
ASRCC’s past performance and the Air Force’s evaluation of ASRCC’s three references
were both reasonable. Def.’s Reply at 8-10 (ECF No. 40); ASRCC’s Reply at 7-8 (ECF
No. 39). The government and ASRCC further argue that the Air Force’s evaluation of
the complexity and scope of ASRCC’s references were consistent with the requirements
in the Solicitation, and that DBSI’s disagreement with the evaluation is not grounds for
relief. Def.’s Reply at 9-10; ASRCC’s Reply at 8-9. Finally, the government argues that a
“somewhat relevant” rating only requires that the reference involve “some of the scope
and magnitude of effort and complexities” of the ISS2, and that, therefore, DBSI’s
argument regarding ASRCC’s past performance references improperly imposes the
standard of a “relevant” rating, which required the references to involve “similar scope
and magnitude of effort and complexities” of the ISS2. See Oral Arg. 10:45:12-10:47:26
and AR Tab 72 at 11767.
The FAR entrusts to an agency’s discretion the determination of what does or does
not constitute relevant past performance. Linc Gov’t Servs., LLC v. United States, 96
Fed. Cl. 672, 718 (2010) (citing PlanetSpace v. United States,
92 Fed. Cl. 520, 539
(2010)); FAR 15.305(a)(2)(ii) (the “source selection authority shall determine the
20
relevance of similar past performance information”). When the court considers a bid
protest challenge to an agency’s past performance evaluation, “the greatest deference
possible is given to the agency.” Westech Int’l, Inc. v. United States, 79 Fed. Cl. 272, 293
(2007). Court review of past performance evaluations is “limited to determining whether
the evaluation was reasonable, consistent with the stated evaluation criteria and complied
with relevant statutory and regulatory requirements.”
Id. at 294; see Glenn Def.
Marine,
720 F.3d at 909-11 (emphasizing that courts afford agencies broad deference in
determining past performance ratings provided that the agency considers the record in its
entirety). Indeed, the “determination of relevance [of past performance] is owed
deference as it is among ‘the minutiae of the procurement process,’ which this court ‘will
not second guess.’” Glenn Def.
Marine, 720 F.3d at 910 (quoting E.W. Bliss Co. v.
United States,
77 F.3d 445, 449 (Fed. Cir. 1996)).
Applying these standards, the Air Force’s review of ASRCC’s past performance
record must be upheld. The Solicitation stated that past performance would be rated by
considering whether the past performance “involved similar scope, magnitude of effort,
and complexities to that required by th[e] [S]olicitation.” AR Tab 72c.16 at 11768. As
noted above, the Solicitation provided the following table regarding the past performance
relevancy ratings:
Table 3. Past Performance Relevancy Ratings
Rating Rating Definition
Very Present/past performance involved essentially the same scope and
Relevant magnitude of effort and complexities as the effort this [S]olicitation
requires.
21
Relevant Present/past performance effort involved similar scope and magnitude
of effort and complexities this [S]olicitation requires.
Somewhat Present/past performance effort involved some of the scope and
Relevant magnitude of effort and complexities this [S]olicitiation requires.
Not Relevant Present/past performance effort involved little or none of the scope
and magnitude of effort and complexities this [S]olicitation requires.
Id.
Once the Air Force determined relevancy, it was next required to assign a past
performance rating based on the references provided by the offeror. These ratings, as also
described above, were “Substantial Confidence,” “Satisfactory Confidence,” “Neutral
Confidence,” “Limited Confidence,” and “No Confidence.”
Id.
The Air Force evaluated ASRCC’s past performance and references from [. . .].
Regarding the [. . .] reference, the SSEB Report states:
The work performed by ASRCC for the [. . .] contract in the areas of airfield
operations, safety, quality assurance, emergency response, facility management,
key personnel oversight and training, and project management are similar in scope
to those required for the ISS2 requirement. The complexity of the scope of work
performed resembles some of the same qualities as the ISS2 requirement but lacks
in the areas of logistical coordination because the location of performance is in [. .
.] and accessible by maintained roadways. . . . The annualized amount of the
contract is $50M compared to $33M for the ISS2 requirement and is essentially
the same magnitude.
AR Tab 61 at 6464-65. Regarding the [. . .] reference, the SSEB Report states:
The work performed by [. . .] in the areas of program oversight, human resource
related management tasks, personnel training, and labor relations related support
reflects some of the scope of work required for the ISS2 requirement. The
complexity of the scope of work performed is similar to the ISS2 requirement
because [. . .] encompasses several geographically separated sites across the State
of [. . .] and requires a higher level of logistical coordination to deliver the services
needed supporting programmatic oversight for this requirement . . . The
22
annualized amount of the contract is $49M compared to $33M for the ISS2
requirement and is essentially the same magnitude.
Id. at 6465. With respect to the [. . .] reference, the SSEB Report provides:
The work performed by [. . .] for the [. . .] in the areas of communications and
electronics, development of safety and security programs, and development and
oversight of weather related and warning notification programs and systems, have
some of the scope of work required for the ISS2 requirement. The complexity of
the scope of work has some resemblance to the ISS2 requirement as it occurs on
one geographically separated location, an island approximately two miles of the
coast of [. . .], accessible only by a ferry that runs at scheduled intervals
throughout the day . . . The annualized amount of the contract is $27M compared
to $33M for the ISS2 requirement and is similar in magnitude.
Id. Based on these findings the SSA stated:
ASRCC . . . had several recent past performances which were found to be
somewhat relevant to the current ISS2-GSL requirement and which had quality of
performance ranging from satisfactory to excellent. For example, the [. . .]
contract was found to have essentially the same magnitude as the current ISS2-
GSL requirement, and to have similar scope of performance and some of the
complexity of the ISS2-GSL requirement. Here ASRCC was found to have a
known record of satisfactory performance similar in scope to that required by the
current ISS2-GSL requirement, covering areas such as airfield operations, safety,
quality assurance, emergency response, facility management, key personnel
oversight, training, and project management.
AR Tab 62 at 7446-47.
At the core of DBSI’s challenge regarding the Air Force’s past performance
determination is the Air Force’s conclusion that ASRCC’s past performance references
had “some of the scope and magnitude of effort and complexities this [S]olicitation
requires” to warrant a “Somewhat Relevant” performance rating. See Pl.’s Reply at 15.
Specifically, DBSI argues that it was an abuse of discretion to conclude that the [. . .] and
[. . .] references had some of the same complexity as the ISS2 requirement and that the [.
. .] and [. . .] references had some of the same scope as the ISS2 Contract. Pl.’s Reply at
23
16-18. Regarding complexity, DBSI argues that the ISS2 is substantially more complex
because of its geographic location in comparison to the [. . .] and [. . .] references. Id. at
16. Regarding scope, DBSI argues that the [. . .] reference was unrelated to airfields and
the type of work conducted for [. . .] was unrelated to the work to be done in the ISS2.
Id.
at 18.
While DBSI may disagree with the Air Force’s conclusion that ASRCC’s past
performance was “somewhat relevant,” the record supports the Air Force’s past
performance decision. The Air Force clearly documented why it found ASRCC’s past
performance references somewhat similar in complexity and scope. For example,
regarding [. . .] (which DBSI alleges was not adequately complex) the Air Force
determined that the “complexity . . .resembles some of the same qualities as the ISS2
requirement” but noted that “[r]esources . . . are more easily transported compared to
ISS2 locations” and that [. . .] was in a “moderate climate whereas the ISS2 performance
locations are in an austere environment with extreme temperature fluctuations.” AR
6464-65. The Air Force’s determination that [. . .] was somewhat relevant is supported
and reasonable.
Similarly, the court finds the SSEB’s determination that the [. . .] contract
contained “some” of the same scope as the ISS2 because of the program oversight and
human resource related management tasks was reasonable given the ISS2 requirement to
“provide all management, supervision, training. . . and other items and services necessary
to fulfill the PWS requirements.” See AR Tab 61 at 6465; AR Tab 5 at 265. Finally,
regarding the [. . .] reference, the court finds that Air Force did not irrationally conclude
24
that it had some of the complexity and scope of the ISS2 because [. . .] involved work in
areas of communications, electronics, safety and security programs, and had some
similarities in geographical complexity. See AR Tab 61 at 6465.
In view of the foregoing, the court finds that the Air Force rationally considered
ASRCC’s past performance references and provided reasonable support for its
conclusions that ASRCC was entitled to a Satisfactory Confidence past performance
rating. See AR Tab 61 at 6464-66; AR Tab 62 at 7446-47; see also AM Gen., LLC v.
United States, 115 Fed. Cl. 653, 701 (2014) (holding that exhaustive detail is not required
in the SSA’s decision, “provided the SSA has considered the relevant factors, and the
rationale for the SSA’s decision can be discerned from the decisional documents”). For
these reasons, the court finds that DBSI failed to establish that the Air Force’s past
performance rating based on the contracts ASRCC provided was arbitrary, capricious, or
an abuse of discretion.
B. The Air Force’s Price Reasonableness Analysis Was Consistent with
the Solicitation
DBSI next argues that the award decision to ASRCC was legally flawed because
the Air Force’s price reasonableness evaluation of ASRCC’s proposal was inconsistent
with the terms of the Solicitation. DBSI contends that the Air Force was required under
the terms of the Solicitation to evaluate the reasonableness of the individual price
elements in ASRCC’s proposal, especially for vehicle and equipment prices, and failed to
do so. Pl.’s Reply at 22-24.
25
The government and ASRCC contend that the Air Force complied with the terms
of the Solicitation and performed a proper evaluation of ASRCC’s prices. Def.’s Reply at
12-13; ASRCC’s Reply at 12. Specifically, the government argues that the Air Force
reasonably concluded that it did not need to examine individual price elements at the
level DBSI contends because there was adequate price competition at the total price level
and the Air Force reasonably concluded that the proposed TEP was reasonable. Id. at 12.
In determining whether there was adequate price competition at the TEP level, the
government argues the Air Force rationally examined whether there were any anomalies
at the price element level and, finding none, the Air Force properly relied on price
competition at the TEP level.
Id. ASRCC adds that Air Force reasonably relied on
techniques permitted by the Solicitation in considering whether there were any price
element anomalies. ASRCC’s Reply at 12.
The court begins by looking at the language in the Solicitation regarding the price
evaluation. The Solicitation required the Air Force to “rank all offers by TEP” and
determine reasonableness of the proposed TEPs. AR Tab 72.c at 11767. Regarding price
reasonableness of the TEPs, the Solicitation stated (1) “[a]dequate price competition in
accordance with FAR 15.305 and 15.404-1 is anticipated to determine price
reasonableness,” (2) “[p]rice analysis will be used to evaluate the reasonableness of each
Offeror’s TEP to satisfy the requirement mandated by FAR 15.305(a)(1),”8 (3) “[p]rice
8
FAR 15.305(a)(1) provides “[n]ormally, competition establishes price reasonableness.
Therefore, when contracting on a firm-fixed-price or fixed-price with economic price adjustment
basis, comparison of the proposed prices will usually satisfy the requirement to perform a price
analysis, and a cost analysis need not be performed. In limited situations, a cost analysis may be
26
reasonableness will be determined based on an evaluation of each Offeror’s TEP using
any of the techniques and procedures per FAR 15.404-1(b)(2),”9 and (4) a “determination
of an unreasonably high TEP may be grounds for eliminating a proposal from the
competition.” AR Tab 72.c at 11767.
It is clear from its terms that the Solicitation contemplated only a determination of
whether the TEP was reasonable. Nowhere does the Solicitation require the Air Force to
examine each price element. Adequate price competition exists where there are two or
more responsible offerors, where a solicitation provides that award will be made to the
offeror with the best value, and where “[t]here is no finding that the price of the
otherwise successful offeror is unreasonable.” FAR 15.403-1(c)(1)(i). The Solicitation
authorized the Air Force to either (1) compare TEPs to each other to determine whether
there was adequate price competition as permitted by FAR 15.305(a)(1) and FAR 15.404-
1(b)(2)(i) or (2) consider the reasonableness of the TEP using other procedures permitted
by FAR 15.404-1(b)(2), such as price comparison.
Here, the Air Force evaluated the ASRCC’s TEP for reasonableness by comparing
the TEP and looking at whether there was adequate price competition. Consistent with
appropriate to establish reasonableness of the otherwise successful offeror’s price (see 15.403-
1(c)(1)(i)(C)).” FAR 15.403-1(c)(1)(i)(C) provides that adequate price competition exists where
there are two or more responsible offerors, the agency will award the contract to the offeror with
the best value, and where “[t]here is no finding that the price of the otherwise successful offeror
is unreasonable.”
9
FAR 15.404-1(b)(2)(i) indicates that a comparison of “proposed prices received in response to
the solicitation” for “adequate price competition” is one way to establish “a fair and reasonable
price.” Among other techniques, FAR 15.404-1(b)(2) also permits comparing “the proposed
prices to historical prices paid,” “independent Government cost estimates,” and “prices obtained
through market research.”
27
the Solicitation, the SSEB includes a table comparing the offerors’ TEPs and concludes
that there was “the presence of adequate price competition.” AR Tab 61 at 6461. The Air
Force then compared ASRCC’s price with DBSI’s price to conclude that ASRCC’s TEP
was reasonable. AR Tab 61 at 6462 (concluding that “ASRCC’s TEP is reasonable based
upon the presence of adequate price competition as evidenced by two offerors competing
independently, both providing technically acceptable offers able to satisfy the
Government’s requirement and our comparative analysis of the prices . . . .”). In coming
to this conclusion, the SSEB stated:
In determining that adequate price competition existed and the resulting TEP was
reasonable the government did not rely upon the mere existence of two proposals;
rather, we further analyzed each offeror’s RFP . . ., reviewing proposed labor,
material and vehicle pricing, reviewing the price realism analysis . . . , comparing
the competitors’ proposals to each other and the offerors’ overall prices for
indications of whether the proposed prices and the resulting TEPs were
reasonable.
Id. at 6492 (emphasis added).
In view of the foregoing, DBSI’s assertion that the Air Force needed to look at
ASRCC’s individual price elements in greater depth – in particular, ASRCC’s proposed
material and vehicle pricing – is not supported. Contrary to DBSI’s contention, the
Solicitation did not require the Air Force to specifically evaluate the reasonableness of
each individual price elements. DBSI does not point to any language in the Solicitation to
show otherwise. See Greenland Contractors I/S v. United States, 131 Fed. Cl. 216, 227-
28 (2017) (rejecting insistence on CLIN-level price reasonableness evaluation where
solicitation made clear TEP was to be reviewed for reasonableness). The record shows
that the Air Force evaluated reasonableness by considering whether there was adequate
28
price competition on the TEP level as contemplated by the Solicitation and permitted by
FAR 15.305(a)(1) and FAR 15.404-1(b)(2)(i). The record further shows that the Air
Force also considered whether there were any anomalies in individual price elements to
determine if there was another reason to find an offeror’s TEP unreasonable. In doing
this, the Air Force considered price competition as well as market research as applied to
the price elements to evaluate the reasonableness of the TEP. AR Tab 61 at 6462; AR
Tab 101 at 25890. The court thus concludes that the Air Force price reasonableness
analysis was not arbitrary, capricious, or inconsistent with the Solicitation.
C. The Air Force’s Best Value Tradeoff Analysis Was Reasonable
DBSI next argues that the Air Force’s best value tradeoff analysis is not supported.
DBSI contends that the Air Force failed to justify, consistent with the terms of the
Solicitation, why ASRCC’s TEP, which was 9.08% higher than DBSI’s TEP, presented
the best value to the Air Force and was worth the price premium. As discussed above, the
Air Force justified its best value decision based on ASRCC’s past performance rating.
DBSI concedes that the Air Force was permitted, under the terms of the Solicitation and
the FAR, to treat ASRCC’s Satisfactory Confidence rating more positively than a Neutral
Confidence rating. Oral Arg. 11:51:00-11:51:29; see also id. 11:40:29-11:40:38.
However, DBSI argues that the Air Force failed to document why ASRCC’s past
performance rating justified the price premium as required by FAR 15.101-1(c). Oral
Arg. 11:43:00-11:43:50. DBSI also argues that to the extent the Air Force did document
its justification, the record shows that the Air Force implicitly considered risk-related
factors not identified in the Solicitation. Oral Arg. 11:51:29-11:52:54. Finally, DBSI
29
argues even if the Air Force’s rationale was documented adequately and was based on
proper evaluation criteria, the Air Force’s tradeoff analysis was nonetheless arbitrary,
capricious, and not in accordance with law because where, as here, all non-price factors
besides past performance were equal between ASRCC and DBSI, the Air Force afforded
ASRCC’s past performance too much value. DBSI Reply at 2.
1. The Air Force’s best value tradeoff decision was adequately
documented.
DBSI first argues that the Air Force failed to document its best value decision
properly. DBSI Reply at 2. DBSI contends that the Air Force failed to explain why
ASRCC’s Satisfactory Confidence rating was worth the 9.08% price premium, id. at 4,
and that the SSA’s statements were conclusory and lacked the necessary substantive
content to be reasonable, relying on Serco Inc. v. United States,
81 Fed. Cl. 463, 496
(2008), Pl.’s Reply at 5-6. In Serco, this court held that an agency failed to properly
document a best value tradeoff decision because it “did not explain whether the relatively
minor differences in technical scores evidence a true technical superiority” or why “a
technical-ranking advantage of a mere one-tenth of a point” justified “a huge [$3.6
million] premium in a procurement in which the lowest-priced award went for
$21,059,803.” 81 Fed. Cl. at 498.
The government and ASRCC respond that the Air Force’s best value tradeoff
decision sufficiently explained why the Air Force determined that ASRCC’s non-price
evaluation factors merited paying a 9.08% price premium and thus DBSI’s reliance on
Serco is misplaced. Specifically, the government and ASRCC argue that the SSA’s final
30
decision was sufficiently documented because it (1) incorporated the last SSEB
Evaluation Report and SSAC CAR and the Award Recommendation and (2) explained
that the combination of all of ASRCC’s nonprice factors (past performance and technical)
warranted paying a 9.08% price premium. Def.’s Reply at 13-14; ASRCC’s Reply at 11-
12. The government and ASRCC further contend that Serco in fact supports the
sufficiency of documentation here because the court in Serco found that the agency was
not required to assign exact dollar values to the technical benefits. Def.’s Reply at 5-6;
ASRCC’s Reply at 14.
The best value tradeoff process is described in FAR 15.101-1 as follows:
(1) All evaluation factors and significant subfactors that will affect contract award
and their relative importance shall be clearly stated in the solicitation; and
(2) The solicitation shall state whether all evaluation factors other than cost or
price, when combined, are significantly more important than, approximately
equal to, or significantly less important than cost or price.
FAR 15.101-1(b).
The FAR further states that tradeoffs are permitted “among cost or price and non-
cost factors” but that where the “perceived benefits of the higher priced proposal shall
merit the additional cost, . . . the rationale for the tradeoffs must be documented.” FAR
15.101-1(c). To be documented properly, “[t]he source selection . . . documentation shall
include the rationale for any business judgments and tradeoffs made or relied on by the
SSA, including benefits associated with additional costs.” FAR 15.308. While “the
rationale for the selection decision must be documented, that documentation need not
quantify the tradeoffs that led to the decision.” Id.
31
It is not disputed that in documenting the best value determination, the agency
must “do more than simply parrot back the strengths and weakness of the competing
proposals.”
Serco, 81 Fed. Cl. at 497. “Conclusory statements, devoid of any substantive
content, have been held to fall short of this requirement.”
Id. In addition, “as the
magnitude [of the price differential] increases, the relative benefits yielded by the higher-
priced offer must also increase.”
Id. Finally, “FAR 15.308 permits the SSA to ‘use
reports and analyses prepared by others,’ but also requires that the SSA to document ‘the
rationale for any business judgments and tradeoffs made or relied on by the SSA.’”
FirstLine Transp. Sec., Inc. v. United States,
100 Fed. Cl. 359, 383 (2011) (quoting FAR
15.308).
Here, discussing the best value tradeoff determination, the Solicitation stated:
The government reserves the right to award a contract to other than the lowest
Total Evaluated Price (TEP). In that event, the Source Selection Authority will
make an integrated assessment best value award decision using the Technical
Risk Rating, TEP, and the Past Performance Confidence Rating.
AR Tab 72c at 11764, 11769 (emphasis added). It further stated that “competing offerors’
combined past performance information, technical ‘acceptability,’ and technical risk
would be evaluated on a basis approximately equal to price.” Id. at 11764 (emphasis
added). All technically acceptable offers would be treated “equally except for their
technical risk, prices[,] and performance records.”
Id.
To repeat, prior to the best value tradeoff determination, the final proposal ratings
were as follows:
ASRCC Final Evaluation DBSI Final Evaluation
32
Summary Summary
Technical Acceptability ACCEPTABLE ACCEPTABLE
Rating
Technical Risk Factor LOW LOW
Past Performance SATISFACTORY NEUTRAL
Total Proposed Price $432,408,959.99 $395,916,040.69
Confidence Assessment
Total Evaluated Price $634,956,398.63 $582,120,550.65
AR Tab 61 at 6503; see AR TAB 62 at 7446 (SSA was “satisfied with the SSEB’s
thoroughness and agree[d] with the conclusions reached as well as the evaluation
ratings”).
With this information and the record, the SSA made his own “integrated
assessment of the two proposals.” AR Tab 62 at 7446. The SSA determined “that
ASRCC’s combined non-price factors, which includes their past performance record,
warrants the additional cost proposed by ASRCC.” The SSA acknowledged that “[b]oth
offerors provided proposals that are technically acceptable and conform to the evaluation
criteria in the [S]olicitiation” and both “received a low technical risk rating.” Id. The SSA
then considered the “differing Past Performance Confidence Assessment Ratings.” As
discussed above, the SSA stated that “DBSI was found to have no relevant past
performance” and viewed the Neutral rating “neither favorably nor unfavorably.”
Id.
However, the SSA pointed to ASRCC’s “several recent past performances which were
found to be somewhat relevant to the current ISS2-GSL requirement and which had
quality of performance ranging from satisfactory to excellent.”
Id. at 7446-47. The SSA
33
also provided an example of the past performance, explaining that the “[. . .] contract was
found to have essentially the same magnitude as the current ISS2-GSL requirement, and
to have similar scope of performance and some of the complexity of the ISS2-GSL
requirement.” Id. at 7447. Thus, “ASRCC was found to have a known record of
satisfactory performance similar in scope to that required by the current ISS2-GSL
requirement, covering areas such as airfield operations, safety, quality assurance,
emergency response, facility management, key personnel oversight, training, and project
management.”
Id.
In comparing the two offerors’ prices, the SSA stated that both “submitted fair and
reasonable price proposals” but that “ASRCC’s [TEP] was found to be 9.08%
($52,835,848.01) higher than that proposed by DBSI.”
Id. The SSA concluded that
“ASRCC’s satisfactory Past Performance Confidence Assessment Rating combined with
its technically acceptable approach and low technical risk rating, provides a benefit to the
Government and provides reasonable confidence of successful performance.”
Id. The
SSA therefore concluded that “ASRCC’s proposal is worth the 9.08% price premium
over the DBSI technically acceptable, low technical risk, and neutral Past Performance
Confidence Assessment rated proposal.”
Id. It was for these reasons that the SSA found
that ASRCC’s proposal “represents the best overall value to the Government.”
Id.
In view of the foregoing, DBSI’s contention that the SSA’s best value tradeoff
decision was not properly documented fails. See Pl.’s Reply at 5-6. The court agrees with
the government and ASRCC that the record reflects sufficient documentation of the
SSA’s decision. See Def.’s Reply at 13-14; ASRCC’s Reply at 11-12. Even though the
34
SSA’s “Summary Determination” was less than two pages. the SSA incorporated the
review and evaluation results from the SSEB and SSAC and further consulted with “the
SSAC, SSEB, and other advisors” to make his own integrated assessment. Def.’s Reply
at 13-14 (quoting AR Tab 62 at 7446). In addition, as the government argues, “while
ASRCC’s past performance rating was a discriminator in the SSA’s tradeoff decision, it
was the combination of all of ASRCC’s non-price factors that warranted the 9%
premium.” Id. at 14 (citing AR Tab 62 at 7446-47). Thus, the court considers the Air
Force’s evaluation of non-price factors as part of the documentation of the tradeoff
decision.
The court also agrees with the government and ASRCC that this case is
distinguishable from Serco for two reasons. First, the Serco court found that the agency’s
technical calculations in that case suffered “from false precision,” which made the
technical evaluation itself likely “arbitrary, capricious and contrary to law.” 81 Fed. Cl. at
465. In that circumstance, the importance of the tradeoff analysis in Serco became more
significant and needed greater explanation.
Second, in Serco, the agency decided that it was willing to pay a 17% premium for
“a technical-ranking advantage of a mere one-tenth of a point.” 81 Fed. Cl. at 498. The
Serco court determined that the decision to pay a 17% premium was not sufficiently
documented because the agency (1) “failed to indicate whether the government would
receive benefits commensurate with the price premium it proposed to pay,” and (2)
offered little in the way of explanation as to whether the technical difference impacted
contract performance or agency needs.
Id.
35
Here, in contrast, the Air Force expressly determined that the confidence inspired
by ASRCC’s past performance warranted the 9.08% premium. The SSA considered the
specific performance references and singled out the [. . .] contract as particularly relevant
to the current ISS2-GSL requirement. AR Tab 62 at 7446-47. The SSA considered that
ASRCC had a known record of performing specific requirements such as “airfield
operations, safety, quality assurance, emergency response, facility management, key
personnel oversight, training, and project management,” which were relevant to the ISS2-
GSL.
Id. at 7447. In short, unlike in Serco, the value of ASRCC’s past performance and
the confidence it gave to the Air Force was adequately explained.10
For these reasons, DBSI has not carried its burden in establishing that the price
premium in the best value tradeoff decision was not properly documented.
2. The Air Force’s best value tradeoff determination did not rely
on unstated evaluation criteria.
DBSI next argues that two statements in the SSAC’s third award recommendation
amount to unstated evaluation criteria. First, the SSAC CAR stated that “the missions
supported by these [geographically separated locations] are important to the government
and essential to national defense.” DBSI argues that this implicitly shows that the tradeoff
was based at least in part on the ability to provide combat-credible military forces, which
10
DBSI also cites Si-Nor, Inc., B-282064, B282064.2, 1999 WL 3321096 (Comp. Gen. May 25,
1999). Pl.’s Reply at 8. However, in Si-Nor, the agency included “no documentation, evidence,
or explanation of the benefits that the agency associated with the [awardees] past performance
rating,”
id. Here, as discussed above, the Air Force identified which elements of ARSCC’s
Satisfactory Confidence rating the agency took to be a benefit.
36
was not an evaluation criteria. Oral Arg. 11:32:20-11:37:40 (citing AR Tab 101 25896-
97). Second, the SSAC CAR stated that “these remote locations do not have ready access
to a skilled workforce or a supply chain with a robust inventory and there is very limited
reachback for logistics and personnel.” Id. (citing AR Tab 101 25896-97). DBSI argues
that this statement shows that the SSA considered factors that in the prior decisions were
found improper including the “tyranny of distance” and “limited supply chains.”
Id. The
government and ASRCC respond that DBSI has not pointed to any evidence that the
SSA’s third award decision relied on evaluation criteria not set forth in the Solicitation.
Def.’s Reply at 2; ASRCC’s Reply at 4.
Agencies must evaluate proposals and make awards based on the criteria stated in
the solicitation. Framaco Int’l, Inc. v. United States, 119 Fed. Cl. 311, 337 (2014).
However, agencies may consider elements that, while not explicitly stated in the
solicitation, are “intrinsic to the stated factors.” Coastal Int’l Sec., Inc. v. United States,
93 Fed. Cl. 502, 531 (2010) (quoting Banknote
Corp., 56 Fed. Cl. at 387). Courts give
agencies “great discretion” in determining the scope of a given evaluation factor.
PlanetSpace, Inc. v. United States,
92 Fed. Cl. 520, 536 (2010) (quoting NEQ, LLC v.
United States,
88 Fed. Cl. 38, 48 (2009)). “[F]or a plaintiff to succeed on a claim of
undisclosed evaluation criteria, it must show that the procuring agency used a
‘significantly different basis in evaluating the proposals than was disclosed’ in the
solicitation.”
PlanetSpace, 92 Fed. Cl. at 536-37 (quoting
NEQ, 88 Fed. Cl. at 48).
In this case, the Solicitation provided a background section discussing the three
locations for the requested work under the contract and advised offerors about the
37
Solicitation’s performance requirements. AR Tab 5 at 264-65. This section included
substantial details which made clear that the locations are remote and difficult to supply.
Id. For example, the Solicitation stated that at one of the sites “[a]ccess to the island is
restricted,” the station “is accessible and resupplied by air and sea only,” and considers
the “rigors of remoteness.” AR Tab 5 at 264. These descriptions provide the backdrop to
the Air Force’s evaluation of proposals and highlight the difficulty of the work to be
performed, including the importance of past performance. The purpose of evaluating past
performance as set forth in the Solicitation was to “assess the degree of confidence the
Government has in the offeror’s ability to meet the [S]olicitation requirements based on
the offeror’s demonstrated record of performance.” AR Tab 5 at 1424.
Given the above, the SSAC’s consideration of the Past Performance Confidence
assessment in the context of “these remote locations” with “limited reachback for
logistics and personnel” is not irrational nor inconsistent with the terms of the
Solicitation. The statements in the SSAC CAR that DBSI cites either reiterate the terms
of the Solicitation or are intrinsic to the Solicitation’s evaluation factors. The fact that the
Air Force considered the value of ASRCC’s offer in the context of the locations and
environment for performance was consistent with requirements in the Solicitation, and
thus not unstated evaluation criteria. The court agrees with the government and ASRCC
that DBSI has not established that the third award decision relied on unstated evaluation
criteria.
3. The Air Force’s best value tradeoff determination properly
weighed non-price factors equally with price.
38
DBSI finally argues that the Air Force unlawfully gave equal or greater value to
past performance than price in the best value tradeoff. According to DBSI, “past
performance was one of three equally-weighted non-price evaluation factors that,
combined, were as important as the price factor. In other words . . . the Past Performance
factor by itself was worth one-third of one-half of the total evaluation criteria,” or 16.7%.
Pl.’s MJAR at 18. While DBSI concedes that the Solicitation does not contain a
mechanical breakdown of non-price factors, DBSI argues that because there is no
breakdown of the non-price factors, they must be treated as equal in value. Pl.’s Reply at
3 (citing Structural Assocs., Inc./Comfort Sys. USA (Syracuse) JV v. United States, 89
Fed. Cl. 735, 746 n.7 (2009) (“[T]he case law is clear that, where a solicitation fails to
identify the relative importance of evaluation subfactors, the subfactors must all be
accorded equal weight”)).11
The court agrees with the government and ASRCC, see ASRCC’s Reply at 2;
Def.’s Reply at 5,12 that the Solicitation, by its terms, did not assign percentages or
weights to be applied for each of the non-price factors individually. Rather, the
11
To the extent that DBSI challenges language from the SSA decision which stated “competing
offerors’ combined past performance information was evaluated on a basis approximately equal
to price,” see Pl.’s Reply at 3 (citing AR Tab 62 at 7445), the court agrees with the government
that DBSI has pointed to a typographical error taken out of context, see Def.’s Reply at 4-5 n.1.
The statement is in the section describing only the past performance ratings and not the best
value tradeoff decision. Moreover, the SSA’s best value tradeoff analysis, which is where the
SSA applied the terms of the Solicitation to compare the proposals, properly weighs the non-
price factors together against price. See AR Tab 62 at 7446.
12
Although the government argues that DBSI waived any challenges to the terms of the
Solicitation, see Def.’s Reply at 6, DBSI’s arguments are properly construed as challenges to the
application of the terms of the Solicitation.
39
Solicitation required the non-price factors to be “evaluated on a basis approximately
equal to price.” AR Tab 72c at 11764 (emphasis added). This Solicitation provision is
consistent with the FAR, which also does not require an agency to assign percentages or
weights to each factor. See FAR 15.101-1(b)(2) (“The solicitation shall state whether all
evaluation factors other than cost or price, when combined, are significantly more
important than, approximately equal to, or significantly less important than cost or price.”
(emphasis added)).
Moreover, the SSA’s best value tradeoff decision under the terms of the
Solicitation was reasonable. The SSA “determine[d] that ASRCC’s combined non-price
factors, which includes their past performance record, warrant[ed] the additional cost
proposed by ASRCC.” AR Tab 62 at 7446. This court has consistently held that
“[p]rocurement officials have substantial discretion to determine which proposal
represents the best value for the government” so long as the procurement officials
provide a “reasonable justification.” Plasan N. Am., Inc. v. United States, 109 Fed. Cl.
561, 577 (2013). The Air Force satisfied the terms of the Solicitation and DBSI has not
provided the court with a basis for finding the decision was arbitrary, capricious or an
abuse of discretion on the grounds alleged.13
CONCLUSION
13
DBSI’s reliance on Structural Associates is without merit. In that case, the parties were
concerned with the relative weight to be given various subfactors in determining a Performance
Capability rating. The case did not concern the weight to be given individual non-price factors in
a best value tradeoff analysis where the Solicitation explained how the evaluation was to be
performed. See 89 Fed. Cl. at 746-47.
40
For the foregoing reasons, DBSI’s motion for judgment on the administrative
record is DENIED, and the government’s and ASRCC’s motions for judgment on the
administrative record are GRANTED.14 No costs. The Clerk is directed to enter
judgment accordingly.
IT IS SO ORDERED.
s/Nancy B. Firestone
NANCY B. FIRESTONE
Senior Judge
14
Having concluded that DBSI’s arguments on the merits fail, the court has no occasion to
consider DBSI’s request for injunctive relief.
41
