AGMA Sec. Serv., Inc. v. United States

• Decision Date: 04 March 2021
• Docket Number: No. 21-740C,21-740C
• Parties: AGMA SECURITY SERVICE, INC., Protestor, v. UNITED STATES, Defendant, v. RANGER AMERICAN OF PUERTO RICO, Defendant-Intervenor.
• Court: U.S. Claims Court

AGMA SECURITY SERVICE, INC., Protestor, v. UNITED STATES, Defendant, v. RANGER AMERICAN OF PUERTO RICO, Defendant-Intervenor.

No. 21-740C

United States Court of Federal Claims

Reissued: March 16, 2021¹

March 4, 2021

Alan M. Grayson, Windermere, FL for protestor.

Kara M. Westercamp, Department of Justice, Washington, DC, Trial Attorney, Commercial Litigation Branch, Civil Division, Department of Justice, Washington, DC, for defendant. With her were Elizabeth M. Hosford, Assistant Director, Commercial Litigation Branch, Robert E. Kirschman, Jr., Director, Commercial Litigation Branch, and Brian Boynton, Acting Assistant Attorney General, Civil Division. Of counsel was Matthew Lane, Office of Chief Counsel, Procurement and Fiscal Legal Division, Federal Emergency Management Agency.

Jonathan D. Shaffer, Smith Pachter McWhorter PLC, Tysons Corner, VA for intervenor. With him was Todd M. Garland, Smith Pachter McWhorter PLC, Tysons Corner, VA.

OPINION

HORN, J.

In the above-captioned, post-award bid protest, protestor AGMA Security Service, Inc. (AGMA) challenges the decision of the Federal Emergency Management Agency (FEMA) to award a sole source bridge contract to intervenor Ranger American of Puerto Rico arguing that the "award of the Sole-Source Contract commits seven separate statutory violations," as well as "violation of the corresponding provisions in the Federal Acquisition Regulation."

FINDINGS OF FACT

The above captioned bid protest is the latest in a series of protests before both the United States Court of Federal Claims and the United States Government Accountability Office (GAO) regarding armed security services for FEMA in Puerto Rico. The facts and procedural history are set out in the court's December 29, 2020 Opinion in Case No. 20-926C, which is incorporated into this Opinion. Key relevant facts are restated below.

On November 19, 2019, FEMA issued Request for Proposal No. 70FBR220R00000002 (RFP) for "contracted Protective Service Officers (PSO) and Patrolled Services to safeguard federal employees, visitors and property at both temporary and fixed facilities during disaster and emergency declarations for DR-4339 (all counties and municipalities within the Commonwealth of Puerto Rico)." Ranger American of Puerto Rico was the incumbent contractor for the predecessor contract which provided "the same armed security services for FEMA in Puerto Rico."

The RFP indicated that "[t]he Government intends to award a Labor Hour type contracts [sic] resulting from this solicitation to the responsible offerors whose offers, conforming to the solicitation, are most advantageous to the Government, price and other factors considered. Award will be made to the responsive, responsible contractor who provides the best-valued solution to the Government." The period of performance was a one year base period, and then a one-year option period. The RFP explained:

The acquisition and source selection are being conducted in accordance with the procedures of Federal Acquisition Regulation (FAR) Parts 12 and 15. The acquisition will be conducted using Best Value as the evaluation methodology. Proposals will be evaluated and rated but not ranked using the non-price factors listed below. A rating of "Unacceptable" in any of the below technical factors will render the entire proposal technically unacceptable and, therefore, not eligible for award.

1. Work Plan

2. Project Management Plan

3. Quality Control Plan

4. Past Performance

5. Price[.]

Additionally, the RFP included a "Local Area Documentation Requirement" which required any offeror to represent that it does or does not "reside or primarily do business [sic] in the set-aside area." Protestor AGMA and intervenor Ranger American of Puerto Rico were among nine offerors which submitted timely proposals to FEMA in response to the RFP, and per the requirements of the RFP, AGMA and Ranger American of Puerto Rico both indicated "the offeror represents that it does reside or primarily do business in the set-aside area." AGMA and Ranger American of Puerto Rico both submitted supporting documentation with their proposals.

After the Source Selection Evaluation Board (SSEB) completed the evaluation of the proposals, on March 3, 2020, the contracting officer issued an initial Award Decision Memorandum, which summarized the background of the procurement and the evaluations of the SSEB, and included a technical evaluation, price evaluation, a best value analysis and finally an award decision. The initial Award Decision Memorandum included four charts for a summary of the technical ratings: a rating chart, an empirical values rating chart, a ratings chart breakdown, and the overall rating range.² The initial Award Decision Memorandum concluded:

AGMAs overall rating is Satisfactory on both technical and past performance. Although Ranger received a rating of Good. [sic] Contracting Officer determined that there was no rational that substantiates paying a higher price to Ranger when the same services could be provided from AGMA. . . . AGMA's proposal offers the best overall value to the Government and price is determined to be fair and reasonable.

On March 13, 2020, FEMA made the award to AGMA, and notified Ranger American of Puerto Rico of the same. Ten days later on March 23, 2020, Ranger American of Puerto Rico filed a protest at the GAO. In response to Ranger American of Puerto Rico's GAO protest, on April 13, 2020, FEMA notified GAO that the agency intended to take corrective action, and on April 15, 2020, GAO issued a decision which stated, in part: "We dismiss the protest based on the corrective action taken by the agency."

On June 15, 2020, the contracting officer issued a Revised Award Decision Memorandum, albeit without seeking revised proposals. In the Revised Award Decision Memorandum, the contracting officer indicated that

The Solicitation stated that technical factors would be more important than price. Offeror 6 (Ranger) had a 50% higher technical score than AGMA and only a 20% higher price. Ranger had a higher rating with regard to theProject Management Plan, Quality Control Plan, and Past Performance. While Offeror 2's (AGMA) proposal was perfectly adequate, Offeror 6's (Ranger) was significantly better.

For the award decision, the contracting officer concluded:

Based on the integrated assessment of all proposals in accordance with the specified evaluation factors, it is hereby recommended that the award be made to Ranger under contract No. 70FBR220C00000019. Ranger's proposal is significantly stronger and offers the best-valued solution to the Government, and the price is determined to be fair and reasonable.

On June 15, 2020, the same day the contracting officer issued the Revised Award Decision Memorandum, the contracting officer made the award to Ranger American of Puerto Rico. On June 23, 2020, FEMA terminated for convenience AGMA's previously awarded contract, after which the contracting officer awarded the contract to Ranger American of Puerto Rico.

On July 29, 2020, AGMA filed a bid protest complaint in this court, as well as a motion for injunctive relief. AGMA first argued that "FEMA improperly accepted Ranger's certification as a local firm, and FEMA should have rejected Ranger's proposal on this basis" in violation of the Stafford Act. Additionally, protestor argued, "FEMA improperly reevaluated the Ranger and AGMA proposals, and decided to terminate the AGMA Contract and make award to Ranger." Therefore, protestor contended that FEMA's award to Ranger American of Puerto Rico "was arbitrary, capricious, an abuse of discretion, contrary to law and without the procedures required by law."

On December 29, 2020, the court issued a decision. See generally AGMA Sec. Serv., Inc. v. United States, No. 20-926C, 2020 WL 8182122 (Fed. Cl. Dec. 29, 2020). The court first determined that "Ranger American of Puerto Rico's representations were sufficient to meet the requirements of the Stafford Act and FEMA acted reasonably to rely on those representations." Id. at *22. Next the court addressed AGMA's contention that FEMA improperly re-evaluated Ranger American of Puerto Rico's and AGMA's proposals. Although trying to understand the agency's actions, the court nevertheless determined:

Given the paucity of information in the initial Award Decision Memorandum or in the Revised Award Decision Memorandum regarding the numerical ratings assigned to Ranger American of Puerto Rico and AGMA, and how the numerical ratings were applied, compared to the adjectival ratings, the court is not able to conclude that FEMA used a different basis to re-evaluate the proposals after the corrective action than was used prior to the GAO dismissal, notwithstanding the award to Ranger American of Puerto Rico instead of to AGMA. The court finds no clear explanation in the record for how the numerical ratings, and then the adjectival ratings, were assigned tothe offerors. Additionally, the court is unable to decern the basis on which the agency used the same ratings to make an award to Ranger American of Puerto Rico instead of to AGMA in the Revised Award Decision Memorandum after making an award to AGMA in the initial Award Decision Memorandum.

Id. at *35. Regarding FEMA's evaluations after the corrective action, the court determined

at no point, after the corrective action was undertaken did the contracting officer explain why the corrective action and the revised evaluations were occurring, why revisions of proposals were not required by agency, why particular evaluation revisions were undertaken by the agency, or what was wrong with the previous evaluation. Taken as a whole, the actions taken by the contracting officer after the corrective action are considered by the court to be arbitrary and capricious.

Id. at *36. Therefore, the court granted protestor's motion for injunctive relief. In the court's decision, however, the court noted: "Given the season, and not to cause an untoward disruption of service in...