Ian, Evan & Alexander Corp. v. United States

• Decision Date: 23 February 2018
• Docket Number: No. 18-1C,18-1C
• Parties: IAN, EVAN & ALEXANDER CORPORATION, Protestor, v. UNITED STATES, Defendant, v. XCELERATE SOLUTIONS, Defendant-Intervenor.
• Court: U.S. Claims Court

IAN, EVAN & ALEXANDER CORPORATION, Protestor, v. UNITED STATES, Defendant, v. XCELERATE SOLUTIONS, Defendant-Intervenor.

No. 18-1C

United States Court of Federal Claims

Redacted Version Issued for Publication: March 19, 2018¹

February 23, 2018

REDACTED OPINION

Bid Protest; Request for Injunctive Relief; Cross-Motions for Judgment on the Administrative Record; Motion to Dismiss; Competition in Contracting Act; Out-of-Scope Modification

John R. Prairie, Wiley Rein LLP, Washington, D.C., for protestor. Of counsel were Brian G. Walsh, Kendra P. Norwood, and Cara L. Lasley, Wiley Rein LLP, Washington, D.C.

Douglas T. Hoffman, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, D.C., for defendant. With him were Franklin E. White, Jr., Assistant Director, Commercial Litigation Branch, Robert E. Kirschman, Jr., Director, Commercial Litigation Branch, and Chad A, Readler, Acting Assistant Attorney General, Civil Division, Department of Justice.

Michelle E. Litteken, PilieroMazza PLLC, Washington, D.C., for defendant-intervenor. Of counsel were Jonathan T. Williams, Samuel Finnerty, Meghan F. Leemon, PilieroMazza PLLC, Washington, D.C.

OPINION

HORN, J.

In the above-captioned bid protest, protestor Ian, Evan & Alexander Corporation (IEA) asserts that the Defense Security Services (DSS) violated the Competition in Contracting Act (CICA) when the DSS issued an allegedly out-of-scope modification to a contract it held with Celerity Government Solutions LLC, doing business as Xcelerate Solutions (Xcelerate Solutions).

FINDINGS OF FACT

On October 28, 2013, the Department of Defense (DoD) Washington Headquarter Services (WHS), a separate organization within the DoD, had awarded IEA Contract No. HQ0034-14-A-0004, which, according to the parties' Joint Stipulation of Facts, was one of five awards made under "a small business set-aside blanket purchase agreement ('BPA') known as Technical, Analytical Administrative and Security ('TAAS')." The BPA between the WHS and IEA had an ordering period of October 28, 2013 through August 14, 2018. The BPA stated that IEA "shall provide a variety of professional, technical, analytical and administrative services to assist the Office of the Under Secretary of Defense (Intelligence) (OUSD(I)) in the areas of world-wide counterintelligence, security, intelligence, surveillance and reconnaissance (ISR) missions." The "principal user of the BPAs" was OUSD(I), although "other customers supported by Washington Headquarters Services, Acquisition Directorate may use the BPA with the consent of the Contracting Officer." As discussed below, IEA was awarded a task order that expired on January 22, 2018 under its BPA with the WHS.

The parties state in their Joint Stipulation of Facts that, following the September 2013 shooting at the Washington Navy Yard, the Secretary of Defense directed concurrent internal and independent reviews of the DoD's programs, policies, and procedures regarding the granting and renewing of security clearances for DoD personnel and contractor personnel. In March 2014, based on the findings and recommendations of the DoD's internal and independent reviews, the Secretary of Defense identified "four key recommendations," one of which was to implement Continuous Evaluation (CE) of personnel with access to DoD facilities or classified information. Additionally, DoD Instruction No. 5200.02, which was also issued in March 2014, states that "[a]ll personnel in national security positions shall be subject to continuous evaluation." See Dep't of Def. Instruction, No. 5200.02, at 11 (Mar. 21, 2014). In their Joint Stipulation of Facts, the parties state:

Continuous evaluation, or CE, is a vetting process to review the background of an individual who has been determined to be eligible for access to classified information or to hold a sensitive position at any time during the period of eligibility. CE is intended to fill the gap that exists between periodic reinvestigations in which issues relevant to an individual's continued eligibility for a security clearance may go unreported or unknown. For example, while the Federal Investigative Standards have allowed forperiodic reinvestigations to be conducted at any time following the completion of the previous investigation or reinvestigation, agencies have not been required to conduct them more frequently than every five years, at most, depending on the clearance level and investigative standards in effect. Like periodic reinvestigations, the purpose of CE is to assist agencies in evaluating an individual's continued eligibility for access to classified information.

CE involves automated record checks conducted on a more frequent basis, whereas periodic reinvestigations are conducted less frequently and may include, among other things, subject and reference interviews. The types of records checked as part of CE are the same as those checked for other personnel security purposes. Security-relevant information discovered in the course of CE is to be investigated and adjudicated under the existing standards.

In October 2014, the DoD initiated a CE pilot program that was to be conducted in a phased approach, with the number of individuals enrolled in the DoD's CE pilot program to increase over time. Initially, the DoD's CE pilot program included approximately [redacted] military, civilian, and contractor security clearance holders. DoD expanded the number of security clearance holders enrolled in the CE pilot program to approximately [redacted] in December 2015, approximately [redacted] in December 2016, and approximately [redacted] in September 2017.

On September 22, 2015, WHS awarded IEA Order No. 08 under Contract No. HQ-0034-14-A-0004 (IEA's Task Order), which was titled "DoD Continuous Evaluation Validation Cell." IEA's Task Order was a firm-fixed-price task order and had a total value of approximately $16.8 million.² IEA's Task Order had an initial period of performance from September 23, 2015 to September 22, 2016, and contained four one-year option periods. Under IEA's Task Order, IEA was to

[o]btain a knowledge-based analytic capability to validate alerts generated by the DoD Continuous Evaluation (CE) Program. The validation cell will use supporting systems to receive and determine the CE results meet established reporting criteria before forwarding adjudicatively-relevant and actionable information to the DoD Consolidated Adjudication Facility (DoD CAF) and DoD Component security officials, as appropriate.

IEA's Task Order's performance work statement stated that the DoD "is evolving its CE program as directed by the Secretary of Defense's February 21, 2014 memorandum," and that IEA "shall provide the personnel necessary to support the accurate and timely validation CE flags as the program scales." IEA's Task Order's performance work statement also provided that IEA's "[e]fforts included, but are notlimited to, developing processes and procedures, assessing and validating flags generated by the DoD CE capability, developing business rules, drafting research reports, collecting metrics, and developing future CE requirements."

Additionally, Section C-2 of IEA's Task Order, titled "PERFORMANCE REQUIREMENTS (TASKS)," listed the following "Performance Objectives and Performance Elements" for IEA's Task Order:

• Receive, evaluate, and disseminate flags from the DoD CE capability in accordance with DoD established policy, guidelines, and procedures.

• Assess and validate CE flags using available data sources to attribute the information to a specific subject and determine if the information is relevant and actionable, in accordance with DoD established guidelines and procedures.

• Disseminate CE results and related correspondence to personnel security specialists, CI, insider threat (InT), and/or law enforcement (LE) personnel, as applicable, and within DoD established guidelines.

• Develop tracking tools, matrices, and templates to efficiently analyze data and produce metrics which identify trends, referral status, and business rules efficiency.

• Support the DoD CE Program as required, including policy development, comment adjudication, formal coordination, and resource assessments. Provide logistical, data gathering, and presentation support to meet OUSD(I) and DoD CE Program requirements. Continually monitor and review CE processes and procedures to inform the government where efficiencies can be realized.

• Provide feedback to the DoD CE Program regarding the relevance and validity of the business rules for flags. Policies, procedures and strategies will be planned and integrated into the CE program as needed. Support the development and delivery of CE-related reports, briefings, and training as needed.

• Assist with the agenda setting and facilitation of the DoD Personnel Security IT Governance Board, DoD CE Functional Working Group, and other CE-related forums as required.

• Provide administrative support as necessary, to include planning meetings, tracking action items, and preparing read-ahead briefing material, meeting minutes, formal correspondence packages, activity reports, senior leadership reports, and travel/training/personnel documents.

• Complete online mandatory training modules, as identified by the COR [Contracting Officer Representative], prior to rendering any alert dispositions.

(capitalization in original). According to IEA's motion for judgment on the Administrative Record in the above-captioned bid protest, a "DoD CE Automated System" would automatically flag records and send those records to IEA. IEA alleges that it would evaluate and validate the records flagged by the DoD CE Automated System. IEA states that it would then send the validated flagged records to the "PSMO-I [Personnel Security Management Office for Industry] contractor," who would assign the validated flagged records a "risk priority."

IEA's Task Order estimated that IEA would need to provide twelve full-time...