Constellation W., Inc. v. United States, 15-876C

• Decision Date: 15 December 2015
• Docket Number: No. 15-876C,No. 15-923C,15-876C,15-923C
• Parties: CONSTELLATION WEST, INC. and SEV1TECH, INC., Protestors, v. UNITED STATES, Defendant.
• Court: U.S. Claims Court

CONSTELLATION WEST, INC. and SEV1TECH, INC., Protestors,
v.
UNITED STATES, Defendant.

No. 15-876C
No. 15-923C

United States Court of Federal Claims

Redacted Version Issued for Publication: March 25, 2016¹
December 15, 2015

REDACTED OPINION

Post-Award Bid Protest; Motion for Judgment on the Administrative Record; Unstated Criteria; Waiver of Informalities and Minor Irregularities; FAR 52.215-1(f)(3); Clarifications; FAR 15.306(a)(2); Unequal Treatment.

Ralph C. Thomas III, Barton Baker Thomas & Tolle, LLP, McLean, Virginia for protestor Constellation West, Inc.

Shlomo D. Katz, Brown Rudnick, LLP, Washington DC for protestor Sev1Tech, Inc. Of counsel was Aidan Delgado, Brown Rudnick, LLP, Washington, DC.

Eric J. Singley and James R. Sweet, Trial Attorneys, Commercial Litigation Branch, Department of Justice, Washington, DC for defendant. With them were Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Civil Division, Robert E. Kirschman, Jr., Director, Commercial Litigation Branch, and Douglas K. Mickle, Assistant Director, Commercial Litigation Branch, Department of Justice, Washington, D.C. Of Counsel were William P. Rayel, Senior Trial Counsel, Commercial Litigation Branch, Department of Justice, Washington, D.C. and Gregory A. Moritz, Assistant General Counsel, Defense Intelligence Agency.

OPINION

HORN, J.

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FINDINGS OF FACT

The two above captioned cases are post-award bid protests arising from the same solicitation issued by the Defense Intelligence Agency (DIA). Protestor Constellation West, Inc. (Constellation West), in case number 15-876C, is a Nebraska corporation headquartered in Bellevue, Nebraska, that provides Information Technology (IT) support and solutions. Protestor Sev1Tech, Inc. (Sev1Tech), in case number 15-923C, is a Virginia corporation headquartered in Woodbridge, Virginia, that also provides IT support and solutions. DIA received seventy-five proposals for the solicitation, twenty-six for the full and open track and forty-nine for the small business track, including proposals from Constellation West and Sev1Tech. On July 15, 2015, the Source Selection Authority (SSA) stated in his Source Selection Decision Document that DIA had determined twenty-five offerors to the small business track represented the "best overall value" to the government based on the analysis and recommendations of the Source Selection Advisory Council (SSAC), which were attached to the Source Selection Decision Document, and that contract awards should, therefore, be made to those offerors. The twenty-five offerors did not include Constellation West or Sev1Tech. On July 17, 2015, DIA issued award notices to the twenty-five successful offerors. All twenty-five of the awardees subsequently signed contracts with DIA. Of the twenty-four disappointed offerors to the small business track, six filed protests in this court, all assigned to the undersigned. After a hearing and after the administrative record was filed, four of these protests, in case numbers 15-832C, 15-877C, 15-916C, and 15-922C, were voluntarily dismissed by the protestors, leaving only the two above captioned protests.

The Solicitation

The solicitation at issue, number HHM402-14-R-0002, allowed offerors the opportunity to join DIA's Enhanced Solutions for the Information Technology Enterprise (E-SITE) contract vehicle. According to the solicitation, the E-SITE contract is intended to "establish the acquisition framework for delivering the full scope of information technology services and capabilities to support the DIA, the Combatant Commands (CCMDs), the Military Services intelligence needs, and partner agency worldwide missions across the Intelligence Community (IC)." The E-SITE contract is intended to do so by creating a "contract vehicle that provides participating organizations with comprehensive Information Technology (IT) technical support services leveraging a mix of large and small business primes and subcontractors to satisfy the participating organizations' mission requirements." Specifically, the solicitation created an Indefinite Delivery/Indefinite Quantity (ID/IQ) contract vehicle that will allow E-SITE awardee contractors to propose solutions for task orders issued by the participating agencies. Task orders will be competed among E-SITE contractors, although some task orders may be set-aside for small businesses. The E-SITE contract is intended to replace DIA's current Solutions for the Information Enterprise (SITE) contract. The ID/IQ contract's ordering period consists of one base year and four one year options. The maximum amount that may be awarded to any E-SITE contractor is $6,000,000,000.00, and the minimum guaranteed amount is $500.00.

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The original E-SITE solicitation was issued on March 18, 2014 and the final amended version of the solicitation on May 6, 2014. Awards under the solicitation were to be made to those offerors whose proposals were determined by DIA to represent the best value to the federal government. The solicitation created two separate "Evaluation Tracks" for awards: full and open awards and awards reserved for small business in accordance with Federal Acquisition Regulations (FAR) 19.502-4(a) (2015). Both protestors were evaluated under the small business track. Offerors who submitted proposals under the small business track were evaluated based on price and three non-price factors: Past Performance; Management/Technical; and Security/Supply Chain Risk Management. Offerors who submitted proposals under the full and open track were evaluated under these same factors, as well as an additional Small Business Participation Factor. The non-price factors included sub-factors that represented specific characteristics of the solicitation's objectives. The ratings on which proposals would ultimately be evaluated, however, were to be assigned at the factor level only. Price was to be evaluated for completeness and reasonableness in accordance with FAR 15.404-1 (2015). The Security/Supply Chain Risk Management Factor was to be evaluated on a pass/fail basis and was not to be considered in the best-value analysis. The other non-price factors (Past Performance and Management/Technical), when combined, were to be significantly more important than price in determining which proposals represented the best value. Both the Past Performance and Management/Technical Factors were to be assigned an overall adjectival/color rating.

The evaluation of individual areas within these Factors included the determination of significant strengths, strengths, weaknesses, significant weaknesses, and areas that meet the standard. A "Strength" was defined in the solicitation as "an aspect of an offeror's proposal that has merit or exceeds specified performance or capability requirements in a way that will be advantageous to the Government during contract performance." A "Significant Strength" was defined as "an aspect of an offeror's proposal that has appreciable merit or appreciably exceeds specified performance or capability requirements in a way that will be appreciably advantageous to the Government during contract performance." A "Weakness" was defined as "a flaw in the proposal that increases the risk of unsuccessful contract performance." A "Significant Weakness" was defined as "a flaw [in the proposal] that appreciably increases the risk of unsuccessful contract performance." "Meets the Standard" was defined as "an aspect of the proposal which does not constitute a strength, weakness, or deficiency." Each volume of the proposal, Past Performance, Management/Technical, Security/Supply Chain Risk Management, and Price, was required to "be written on a stand-alone basis, so that its contents can be evaluated with no cross-referencing to other volumes." The solicitation further stated that "[i]nformation required for proposal evaluation that is not found in its designated volume may result in unfavorable proposal evaluation."

The Past Performance Factor evaluated offerors' performance as either a prime contractor or a subcontractor on complex IT-related efforts, which were completed within the last three years or on-going at the time of the solicitation. An overall adjectival/color rating was assigned for Past Performance based on the following rating table:

Color
Rating
Description

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Blue	Substantial; Confidence	Based on the offeror's recent/relevant performance; record, the Government has a high expectation that the; offeror will successfully perform the required effort.
Purple	Satisfactory; Confidence	Based on the offeror's recent/relevant performance; record, the Government has a reasonable expectation; that the offeror will successfully perform the required; effort.
Green	Limited; Confidence	Based on the offeror's recent/relevant performance; record, the Government has a low expectation that the; offeror will successfully perform the required effort.
Red	No; Confidence	Based on the offeror's recent/relevant performance; record, the Government has no expectation that the; offeror will be able to successfully perform the required; effort.
White	Unknown; Confidence; (Neutral)	No recent/relevant performance record is available or the; offeror's performance record is so sparse that no; meaningful confidence assessment rating can be; reasonably assigned.

(emphasis in original).

For the Management/Technical Factor, offerors were to be assigned an overall adjectival/color rating based on two sub-factors, listed in descending order of importance: (1) Management Experience and Expertise (Section M-3.2.1 of the solicitation) and (2) Technical Experience and Expertise mapped to functional areas in the Statement of Work (SOW) (Section M-3.2.2 of the solicitation). For the Management Experience and Expertise Sub-factor, offerors were to provide "evidence of, and the Government will evaluate, the depth and breadth of their team's experience and details of their team's expertise on similar on-going and completed...