Agile-Bot II, LLC v. United States

• Decision Date: 04 September 2021
• Docket Number: 21-1529C
• Parties: AGILE-BOT II, LLC, Protestor, v. UNITED STATES, Defendant, v. SECURIGENCE, LLC, Defendant-Intervenor.
• Court: U.S. Claims Court

AGILE-BOT II, LLC, Protestor,
v.
UNITED STATES, Defendant,
v.
SECURIGENCE, LLC, Defendant-Intervenor.

No. 21-1529C

United States Court of Federal Claims

September 4, 2021

Redacted Version Issued for Publication: September 30, 2021 ^[1]

Paul A. Debolt, Venable, LLP, Washington, DC for protestor. With him were Spencer Williams, Lindsay Reed, and Taylor Hillman, Venable, LLP, Washington, DC.

Bryan M. Byrd, Department of Justice, Washington, DC, Trial Attorney, Commercial Litigation Branch, Civil Division, for defendant. With him were Douglas K. Mickle, Assistant Director, Commercial Litigation Branch, Martin F. Hockey, Jr., Acting Director, Commercial Litigation Branch, and Brian M. Boynton, Acting Assistant Attorney General, Civil Division. Christinalynn E. McCoy and Geraldine Chanel, of counsel.

David S. Black, Holland & Knight LLP, Tysons, VA for intervenor. With him were Greg Hallmark and Amy Fuentes, Holland & Knight LLP, Tysons, VA.

OPINION

MARIAN BLANK HORN JUDGE

In the above-captioned post-award bid protest, protestor Agile Bot II, LLC (ABII) challenges the decision of the Defense Advanced Research Projects Agency (DARPA) to award a contract to intervenor, SecuriGence, LLC (SecuriGence), arguing that the award was "arbitrary and capricious." Given the urgency identified by the agency for resolution of this protest, this Opinion memorializes the oral decision issued by the court on August 30, 2021, which granted defendant's and intervenor's cross-motions for judgment on the amended Administrative Record and denied protestor's motion for judgment on the amended Administrative Record, which was effective immediately at the time of the oral decision.

FINDINGS OF FACT

On March 23, 2020, DARPA issued Request for Quotations No. HR001120Q0002 (the RFQ) as a total small business set-aside, ^[2] seeking proposals for "entire range of IT services, support, engineering, and infrastructure necessary to implement the DARPA IT operational, mission, and research objectives." The RFQ contemplated the issuance of a task order on a hybrid fixed-price award fee, time-and-material, and labor-hour basis, with a one-year base period and eight one-year options.

The RFQ explained: "The Government intends to award one (1) standalone task order to the Quoter determined to be the best value to the Government. The best value determination will be made using a trade-off analysis of all Phase I and II evaluation factors in accordance with methodology specified in this solicitation." For Phase I, the RFQ stated:

Factor 1 - Essential Capabilities Experience

The Quoter will be evaluated on their past experience working in an unclassified Gov-Cloud environment. The Quoter will be evaluated on their past experience working in a classified multi-level security environment. The Quoter will be evaluated on their DoD-approved multi-level security vendor solution and its rationale for why it is relevant. Providing a solution with which the Quoter has experience will be rated higher. Past experience will only be considered as acceptable (recent and relevant) if it has been performed since January 1, 2015, and includes minimums of 2000 users and 300 remote sites across multiple systems. If a Quoter's stated experience is based all or in part on their subcontractor's experience, the Quoter will be evaluated on their description of the subcontractor's intended role performing this work under the resultant contract in the performance confidence assessment rating

(emphasis in original). The RFQ continued: "For Phase I, there is one evaluation factor, and no subfactors, stated or unstated. The Government evaluators, however, may use their professional judgment and experience in rating quotations for Phase I." Factor 1 was evaluated on the following ratings: Substantial Confidence, Satisfactory Confidence, Neutral Confidence, Limited Confidence, and No Confidence. For the Phase II Evaluation Criteria, the RFQ indicated:

The Government will use the following evaluation factors to evaluate quotations:

Factor 1: Essential Capabilities Experience

Factor 2: Technical Approach

Factor 3: Management Approach

Factor 4: Key Personnel

Factor 5: Past Performance

Factor 6: Supply Chain Risk Mitigation Plan

Factor 7: Price/Cost (Reasonableness/Realism)

Factor 1 is the most important evaluation factor and is more important than combined Factors 2-6. Factors 2-6 are listed in descending order of importance. Non-price/cost Factors 1-6 combined are significantly more important than price/cost Factor 7. The importance of price/cost Factor 7, however will increase as non-price/cost Factors 1-6 of quotations become closer in merit. For Phase II, there are no subfactors, stated or unstated. The Government evaluators however, may use their professional judgement and experience in rating quotations for Phase II. Quoters' Phase I Evaluation Factor 1 rating will be included in the overall Phase II trade-off evaluation

For "Factor 2: Technical Approach," the RFQ explained that "[q]uoters will be evaluated on how well their technical approaches will fulfill all of the requirements of all requirements of the exemplar PWS sections/subsections demonstrating the ability to successfully perform all contract requirements," and for "Factor 3: Management Approach," the RFQ stated "[t]he Quoter will be evaluated on how well their management approach demonstrates their ability to successfully manage all requirements of the task order." Regarding "Factor 4: Key Personnel," the RFQ indicated that a quoter will be "evaluated on how well the Key Personnel demonstrate appropriate qualifications, education, and experience for the work they will be accomplishing. Relevant DARPA or related Government IT experience will be rated higher. Current employment with the prime contractor or quoted subcontractor or letter of intent will be rated higher." For "Factor 6: Supply Chain Risk Mitigation Plan," the RFQ indicated: "The Quoter will be evaluated on how well their plan mitigates supply chain risk for the Government," and "Based on its evaluation, the Government will assign each Quoter a rating of High Confidence, Medium Confidence, or Low Confidence for each Factor 2, 3, 4, and 6 as outlined in the table below:"

CONFIDENCE RATING	DESCRIPTION
High Confidence	The Government has high confidence that the Quoter understands the requirement, proposes a sound approach, and will be successful in performing the task order.
Medium Confidence	The Government has some confidence that the Quoter understands the requirement, proposes a sound approach, and will be successful in performing the task order.
Low Confidence	The Government has low confidence that the Quoter understands the requirement, proposes a sound approach, and will be successful in performing the task order

For Factor 5: Past Performance," the RFQ stated, "[q]uoters will be evaluated on their probability of meeting all of the solicitation requirements, including the PWS [Performance Work Statement]. The past performance evaluation will consider each Quoter's demonstrated recent and relevant record of performance in supplying services that meet the task order's requirements." Like Factor 1, past performance evaluations utilized the confidence assessment ratings of Substantial Confidence, Satisfactory Confidence, Neutral Confidence, Limited Confidence, and No Confidence.

For "Factor 7: Price/Cost," the RFQ explained:

No adjectival ratings will be utilized for evaluating price. Price analysis will include a determination of whether the quoted price is fair and reasonable using the proposal analysis techniques at FAR 15.404-1 in accordance with DoD Class Deviation 2014-O0011. Comparison of proposed prices is expected to satisfy the requirement to perform a price analysis since competition normally establishes price reasonableness (FAR 15.404-1(a)(2)(i)). However, the Government may use various price analysis techniques described in FAR 15.404-1 to evaluate whether the proposed price is fair and reasonable. ODC/Travel CLIN prices provided by the Government, Labor award fee pool totals required to be 3% of quoted Labor fixed price totals, and Surge CLIN prices required to be 3% of quoted Labor fixed price totals will only be evaluated as part of the total evaluated price. Quoted maximum on-site and off-site Labor Hour (LH) rates for all personnel descriptions will be evaluated for reasonableness.

Cost realism will be limited to the Fixed Price portion of the quotation and analyzed to evaluate whether the proposed cost elements are realistic for the work to be performed, reflect a clear understanding of the requirements, and are consistent with the unique methods of performance described in the Quoter's technical quotation. If a Quoter fails to provide adequate information to support a cost realism analysis, their quotation may be found unrealistic and unawardable. Negative consequences may result from a Quoter proposing a cost that is too low, including a High Risk performance risk rating or elimination of quotation. The results of the cost realism analysis will be used to determine a performance risk of Low, Medium, or High as outlined in the table below:

PERFORMANCE RISK RATING	DESCRIPTION
Low Risk	Negligible potential to cause degradation of performance or issues with retention and recruitment of personnel.
Medium Risk	Some potential to cause degradation of performance or issues with retention and recruitment of personnel.
High Risk	Likely to cause degradation of performance or issues with retention and recruitment of personnel.

Regarding discussions, the RFQ specifically indicated that

[t]he Government reserves the

...