Ranger Am. of P.R., Inc. v. United States

Decision Date14 May 2021
Docket NumberNo. 21-935C,21-935C
PartiesRANGER AMERICAN OF PUERTO RICO, INC., Protestor, v. UNITED STATES, Defendant, v. AGMA SECURITY SERVICE, INC., Defendant-Intervenor.
CourtU.S. Claims Court

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

No. 21-935C

United States Court of Federal Claims

Redacted Version Issued for Publication: May 21, 20211
May 14, 2021


SEALED OPINION

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

Bryan M. Byrd, Department of Justice, Washington, DC, Trial Attorney, Commercial Litigation Branch, Civil Division, Department of Justice, Washington, DC, for defendant. With him were Kara M. Westercamp, Trial Attorney, Elizabeth M. Hosford, Assistant 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.

Alan M. Grayson, Windermere, FL for intervenor.

Page 2

OPINION

HORN, J.

In the above-captioned, pre-award bid protest, protestor Ranger American of Puerto Rico, Inc. (Ranger American of Puerto Rico) challenged the decision of the Federal Emergency Management Agency (FEMA) to set aside Solicitation No. 70FBR221R00000007 (the Solicitation) as a small business set-aside. The Solicitation explained "[t]his requirement is 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)." (capitalization in original). This Opinion memorialized the oral decision issued by the court given the urgency represented by FEMA. The decision denied protestor's motion for judgment on the Administrative Record, as well as protestor's request for injunctive relief, and granted defendant's and intervenor's motions for judgment on the Administrative Record.

FINDINGS OF FACT

The above captioned bid protest is the latest in a series of four protests involving FEMA, AGMA Security Service, Inc. (AGMA), and Ranger American of Puerto Rico, regarding contracted Protective Service Officers and Patrolled Services in Puerto Rico, first at the United States Government Accountability Office (GAO), and now the third in the series of protests, steps and missteps by the agency at the United States Court of Federal Claims regarding a FEMA contract for armed security services in Puerto Rico. The facts and procedural history are set out in the court's December 29, 2020 Opinion in Case No. 20-926C, and the court's March 5, 2021 Opinion in Case No. 21-740C, which are incorporated into this Opinion. Key relevant facts in the continuing saga of FEMA's attempts to award a contract over the course of three calendar years 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.

FEMA conducted market research for the 2019 RFP, including whether the 2019 RFP should be set aside for small business offerors or should be unrestricted. FEMA's Small Business Review Form noted that "[t]he Contractor shall be able to provide 600+ guards to cover locations in all municipalities of the U.S. Territory of Puerto Rico. The contractor must perform duties/tasks necessary to provide Protective Security Officers (PSOs) for physical security services throughout the entire island of Puerto Rico." The Small Business Review Form also indicated that the estimated dollar value of the base period was $[redacted], and the total estimated value including the five option periods

Page 3

was $[redacted]. The Small Business Review Form checked the box to issue the 2019 RFP as an unrestricted RFP and indicated "[n]o reasonable expectation that offers will be obtained from at least two 8(a), HubZone small, Service Disabled Veteran Owned Small, Economically Disadvantaged Women-Owned Small Business, Women-Owned Small Business, or general Small Business concerns offering the products of different small business concerns." Additionally, the Market Research Report supported the decision to issue the 2019 RFP as an unrestricted RFP, explaining that "[t]here are various providers in the island of Puerto Rico, but only few have experience with the Federal Government with the required capabilities to respond to large staffing. Small business [sic] cannot handle staffing requirement," and "[b]ased on our research only two companies have the capabilities to respond to our request since the requirement is for 600+ Armed Guards making it only achievable by medium/large businesses."

The 2019 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 and sought a maximum of 590,400 annual labor hours of armed security guard services. The 2019 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 2019 RFP included a "Local Area Documentation Requirement" which required any offeror to represent "that it does reside or primarily do [sic] business 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 2019 RFP, and per the requirements of the 2019 RFP, AGMA and Ranger American of Puerto Rico both indicated "the offeror represents that it does reside or primarily do [sic] business in the set-aside area." AGMA and Ranger American of Puerto Rico both submitted supporting documentation to that effect 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

Page 4

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 to AGMA. 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. The four charts provided:

Summary of Technical Ratings
Table 1
RATING CHART
Offeror:
Factor 1
Factor 2
Factor 3
Factor 4
Overall Factor
Rating
Offeror 1:
[redacted]
Unsatisfactory
Unsatisfactory
Unsatisfactory
Neutral
Unsatisfactory
Offeror 2: Agma
Security Service
Inc.
Good
Satisfactory
Satisfactory
Neutral
Satisfactory
#3 Offeror 3:
[redacted]
Unsatisfactory
Unsatisfactory
Unsatisfactory
Neutral
Unsatisfactory
Offeror 4:
[redacted]
Unsatisfactory
Unsatisfactory
Marginal
Neutral
Unsatisfactory
Offeror 5:
[redacted]
Unsatisfactory
Unsatisfactory
Unsatisfactory
Satisfactory
Unsatisfactory
Offeror 6:
Ranger American
Good
Good
Good
Good
Good
Offeror 8:
[redacted]
Marginal
Satisfactory
Satisfactory
Satisfactory
Satisfactory
Offeror 9:
[redacted] [2]
Marginal
Marginal
Marginal
Satisfactory
Marginal

Page 5

Table 2

EMPIRICAL VALUES RATING CHART
Offeror:
Factor 1
Factor 2
Factor 3
Factor 4
Total
Empirical
Value
Converted Empirical
Value to Overall
Rating
#1
1
1
1
0
3
Unsatisfactory
#2 [AGMA]
4
3
3
0
10
Satisfactory
#3
1
1
1
0
3
Unsatisfactory
#4
1
1
1
0
3
Unsatisfactory
#5
1
1
1
2
5
Unsatisfactory
#6 [Ranger]
4
4
4
4
16
Good
#8[redacted]
1
3
3
2
9
Satisfactory
#9[redacted]
1
1
1
2
5
Marginal

Table 3

RATING CHART BREAKDOWN
Factors 1 -
3
Numerical
Rating
Factor 4
Numerical
Rating
Superior
5
Good
4
Superior
3
Satisfactory
3
Satisfactory
2
Marginal
1
Unsatisfactory
1
Unsatisfactory
1
Neutral
0

Table 4

OVERALL RATING
RANGE
Overall Rating
Rating
Range
Superior
18
Good
14 to 17
Satisfactory
10 to 13
Marginal
6 to 10
Unsatisfactory
3 to 5

(all capitalization and emphasis for all charts in original; brackets added). Although the 2019 RFP makes no mention of an "empirical values ratings" system, the contracting officer included the empirical values ratings chart in the initial Award Decision Memorandum and changed the rating chart, as shown in Table 1, into the empirical values

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ratings, the rating chart breakdown, and the overall rating range, as indicated in Tables 2, 3, and 4.

The initial Award Decision Memorandum concluded:

AGMAs overall rating is Satisfactory on both technical and
...

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