Visual Connections, LLC v. United States

• Decision Date: 02 April 2015
• Docket Number: No. 15-158C,15-158C
• Parties: VISUAL CONNECTIONS, LLC, Protestor, v. UNITED STATES, Defendant, v. KNIGHT POINT SYSTEMS, LLC, Defendant-Intervenor.
• Court: U.S. Claims Court

VISUAL CONNECTIONS, LLC, Protestor, v. UNITED STATES, Defendant, v. KNIGHT POINT SYSTEMS, LLC, Defendant-Intervenor.

No. 15-158C

United States Court of Federal Claims

Redacted Version Issued for Publication: May 7, 2015¹

April 2, 2015

REDACTED OPINION

Post-Award Bid Protest; Jurisdiction; Failure to State a Claim; Waiver; Ambiguity.

Cyrus E. Phillips, IV, Albo & Oblon, L.L.P., Arlington, Virginia, for protestor.

Shari A. Rose, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, D.C., for defendant. With her were Benjamin C. Mizer, Acting Assistant Attorney General, Civil Division, and Robert E. Kirschman, Jr., Director, Commercial Litigation Branch.

Thomas O. Mason, Cooley, LLP, Washington, D.C., for intervenor.

OPINION

HORN, J.

FINDINGS OF FACT

Protestor, Visual Connections, LLC (Visual Connections), filed a post-award bid protest in the above captioned case on February 19, 2015, protesting the United States Department of Health and Human Services (HHS), Agency for Healthcare Research and Quality's (AHRQ) award of a task order to Knight Point Systems LLC (Knight Point).²

On June 26, 2014, AHRQ issued Request for Quote No. AHRQ-15-10003 (RFQ). The RFQ sought quotations from "service-disabled veteran-owned small businesses holding Federal Supply Schedule (FSS) 70 contracts with the General Services Administration (GSA)." The RFQ indicated that, "[t]he purpose of this task order is to maintain agency production systems as well as the architectural, engineering, configuration management, and hosting services needed to support those systems. The contractor shall provide support for application operations and maintenance, and testing and deployment of complex technologies into the existing IT environment." The period of performance was for a "Base Period of 12 months with four, 12 month option periods."

The "Quote Review Criteria and Evaluation" indicated that

[e]valuation of responses to the RFQ will consider both technical and cost factors. Both the technical response and business response will be evaluated based on the extent to which they follow the technical and business response instructions in section 7 [Quote Requirements] of this RFQ. The quote(s) representing the best value will be selected.

Regarding the technical response, the RFQ indicated that "[o]fferors will be evaluated on how well they address vendor capacity, expertise, and understanding of conformance issues with the stated accessibility requirements." For the evaluation of the technical response, the RFQ identified 100 points, with 40 points for "UNDERSTANDING THE PROJECT AND TECHNICAL APPROACH," 20 points for "CORPORATE AND PERSONNEL QUALIFICATIONS AND EXPERIENCE," and 40 points for "MANAGEMENT AND STAFFING PLAN." (all capitalization in original). Regarding price, the RFQ indicated that "[b]usiness responses will be evaluated for price reasonableness. An analysis will be conducted to determine whether the proposed effort is realistic for thework to be performed; reflect a clear understanding of the requirements; and consistent with the unique methods of performance described in the offeror's technical response. This analysis is intended to determine the degree to which the quote is fair and reasonable." The parties agree that the RFQ did not address the relative importance of the price and non-price factors.

In its complaint, Visual Connections indicates that the "Request for Quotations Number AHRQ-15-10003 was issued on June 26th, 2014, and Quotations were received on July 28th, 2014. The announced Evaluation Factors were not challenged before the date and time set for receipt of Quotations." Five offerors, including protestor and intervenor, submitted proposals. The Source Selection Determination indicated that "[t]he technical evaluation was conducted on August 5, 2014 by an internal review panel consisting of persons with background and experience in the field covered by this procurement. The quotes were reviewed and scored based upon the criteria listed in the RFQ." Protestor received an evaluated score of 81.25, and an evaluated price of $13,947,748.00 for the base year and the four option years. Intervenor received the highest evaluated score, 90.25, and had an evaluated price of $19,958,456.00 for the base year and the four option years.³

The Source Selection Determination also indicated that:

The solicitation stated that the award would be made to the offeror that presents the best value to the Government based on two factors: 1) Technical and 2) Price. Although the price quoted by Knight Point Systems is higher than all other offerors, except [redacted], their technical response was significantly superior to all other offerors. KPS' [Knight Point Systems] proposed cost outlined in their business response was reasonably under AHRQ's independent government cost estimate, which the government deemed fair and reasonable based off of current and historical data. Furthermore, their proposed labor mix and commitment to retain senior staff demonstrated their complete understanding of the project and the skill sets required to ensure IT service delivery for the four defined task areas. Personnel were the largest evaluation factor and KPS presented by far the highest caliber of personnel with all required skill sets and certifications. Additionally, the hours proposed and cost were in direct line with the government's estimate for the scope of work. Conversely, the four other Offeror's cost and technical responses demonstrated they did not possess an accurate or complete understanding of the project. In some instances either the cost or overall hours bid were not consistent or in line with government estimates, which were determined using significant historical data from previous contracts, for the scope of work defined in the SOW [Statement of Work]. The Knight Point Systems response is technically superior to all other offerors. Although their quote was offered at a higher total estimated price, the technical benefits of their response outweigh the technical deficiencies and risks presented by the other offerors despite their lower costs. It is determined that the response submitted by Knight Point Systems represents the best value to the Government. Based on the above, the Contracting Officer selects Knight Point Systems for award of this task order in the total amount of $27,458,456. The base period amount funded at time of award is $3,991,691.20.

The Task Order Officer's Award Recommendation Memo, included as an attachment to the Source Selection Determination, indicated that, regarding Visual Connections:

The Visual Connections (VC) Team proposed a team of incumbent contractors and staff that have knowledge of the applications, policies, procedures (SDLC, Rational, etc.) and toolset used to support the O&M requirements and activities. However, the VC Team failed to demonstrate a clear understanding of the strategic direction of AHRQ and needs for addressing current challenges faced in the current and future operational environment as related to Shared Services transition, Virtual Infrastructure and electronic processing. The VC Team's response to specific tasks were stated in terms of prior support accomplishments rather than providing an approach to performing or improving task performance as requested in the SOW. In terms of Application Development they discussed an approach to independently foster application development which is not the intention of this task. It is not a requirement to have the contractor seek application development opportunities. In terms of key personnel, VC exposes AHRQ to significant continuity risk by proposing a Lead Architect that is a Database Analyst without the appropriate level of experience or management ability to fulfill this role. They also failed to provide the skills mix required to support effective performance of the SOW Tasks.

Regarding Visual Connections, in its trade off analysis, the agency indicated:

After careful review, VC Team's cost proposal highlighted some challenges that would affect their ability to successfully perform the tasks outlined in the SOW. For instance, the Visual Connections Team proposed a staffing level of [redacted] FTE's [Full Time Equivalent] ([redacted] hrs.) at a cost of $[redacted] which is well below the [redacted] FTE's ([redacted] hrs.) historical billings and the government cost estimate of $[redacted]. The low staffing levels proposed by the VC Team present significant risk to AHRQ and directly affect the VC Team's ability to adequately perform the work outlined in the SOW and are considered unrealistic to support existing AHRQ applications. Additionally, the VC Team did not sufficiently address critical requirements outlined in the SOW related to managing and maintaining a storefront capability for Agency publications, administering AHRQ's SharePoint Server environment, and enhancing mobile applications. This is in stark contrast to how KPS accurately provided staffand a labor mix required to sustain O&M operations on a consistent and uninterrupted basis.

AHRQ awarded Task Order No. HHSA290201500001G to Knight Point on November 5, 2014. Subsequently, Visual Connections filed a protest with the United States Government Accountability Office (GAO). On February 13, 2015, the GAO denied the protest.⁴ Thereafter, on February 19, 2015, Visual Connections filed its protest in the United States Court of Federal Claims. Before this court, protestor claims:

This Civil Action is brought to obtain a Declaration that the United States Department of Health & Human Services, Agency for Healthcare Research and Quality's (AHRQ's) decision to award to Knight Point the labor-hour GSA Task Order Contract proposed by Request for Quotations Number AHRQ-15-10003 lacks a rational basis and is neither reasonable nor lawful because Request for Quotations Number AHRQ-15-10003 does not disclose, as required by 41 U.S.C. § 3306(c)(

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