Synaptek, Inc. v. United States ( 2019 )

In the United States Court of Federal Claims
No. 18-1566C
(Filed: December 11, 2018)
(Re-Filed: February 5, 2019) 1
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SYNAPTEK, INC.,
Plaintiff,
Bid protest; post-award bid
v. protest; FAR 15.308 (2018);
FAR 9.105-2(a)(1) (2018);
THE UNITED STATES,
best value determination;
Defendant, price reasonableness;
responsibility determination.
and
OPEN SAN CONSULTING, LLC,
Intervenor.
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Jerry A. Miles, Rockville, MD, for plaintiff, with whom was Christine
Funk.
Reta Emma Bezak, Trial Attorney, United States Department of
Justice, Civil Division, Commercial Litigation Branch, Washington, DC,
with whom were Joseph H. Hunt, Assistant Attorney General, Robert E.
Kirschman, Jr., Director, Deborah A. Bynum, Assistant Director, for
defendant. Theresa S. Keenan, Department of the Navy, NAVSUP FLC
Norfolk, assistant counsel.
1
This opinion was originally issued under seal to permit the parties an
opportunity to propose redactions on or before February 4, 2019. The
government and intervenor proposed redactions on February 4, mooting
intervenor’s December 31, 2018 motion to redact. Plaintiff did not file
proposed redactions. We thus adopt defendant’s and intervenor’s agreed-
upon redactions.
Matthew Moriarty, Lawrence, KS, for intervenor. Matthew T.
Schoonover, Steven J. Koprince, and Haley E. Claxton, of counsel.
OPINION
BRUGGINK, Judge.
This is a post-award bid protest by Synaptek, Inc. (“Synaptek”), of an
award by the United States Department of the Navy, NAVSUP Fleet
Logistics Center (“the Navy”), of a contract for information technology
(“IT”) support services for the National Defense University (“NDU”) to
Open SAN Consulting, LLC (“OSC”).
The parties filed cross-motions for judgment on the administrative
record. The matter is fully briefed, and we held oral argument on December
6, 2018. Because the Navy properly documented its award and its analysis
was reasonable, we grant defendant’s and intervenor’s motions for judgment
on the administrative record and deny plaintiff’s motion.
BACKGROUND
The Navy issued a small business set-aside solicitation to procure IT
services for the NDU, intending to award a single, firm fixed price, indefinite
delivery, indefinite quantity type contract to the responsible offeror who
represented the best value to the government. The Navy planned to award a
contract without discussions and reserved the right to award the contract to
an offeror who was not the lowest priced offeror.
The Source Selection Evaluation Board (“SSEB”) would consider the
following factors, listed in descending order of importance: Management
Approach, Performance Approach, and Past Performance. Management
Approach and Performance Approach were rated Unacceptable, Marginal,
Acceptable, Good, or Outstanding. Past Performance was rated No
Confidence, Limited Confidence, Neutral Confidence (or Unknown
Confidence), Satisfactory Confidence, or Substantial Confidence. To be
eligible for award, an offeror had to be rated at least Acceptable overall. The
Source Selection Authority (“SSA”) would evaluate price for
reasonableness.
2
The Navy received twelve proposals. The SSEB determined that four
offerors were eligible for award, listed from first to last place: Synaptek,
OSC, [ ], and [ ]. The SSEB rated Synaptek Outstanding and
rated OSC Good. [ ]
OSC was rated Outstanding on Management Approach, Good on
Performance Approach, and Unknown Confidence on Past Performance. On
Management Approach, the SSEB determined that OSC provided “multiple
strengths, and risk of unsuccessful performance is low.” Administrative
Record (“AR”) 522. For Task 5.1 Program Management, the SSEB assigned
OSC a strength based on OSC’s “management program managed by a long
term Project Manager and [ ].” Id. It also assigned
OSC strengths for Task 5.1 for its “holistic 11 area project management
methodology,” “a proprietary [
],” and “program management
methodology.” Id. The SSEB assigned strengths to OSC for the rest of the
Management Approach tasks but noted that OSC’s proposal only marginally
addressed anticipated risks. Overall, the SSEB found that OSC presented a
“well-constructed, logical and efficient strategy” for its Management
Approach and its multiple strengths outweighed the single risk. AR 525.
On Performance Approach, the SSEB determined that OSC presented
a “thorough approach to Program Management, Cyber Security and
Transition.” AR 528. OSC’s weakness was Task 5.6 Technology Planning
and Modernization, where the SSEB determined that OSC “does not provide
specifics on how the offeror will embark on the evaluation and identification
of the needs of the organization.” AR 526-27. The SSEB nevertheless
determined that OSC “did illustrate an understanding and of approaches to
modernization in other areas of the document . . . and this is considered
adequate.” AR 527. The SSEB also noted that OSC did not address certain
memorandums to record under Cyber Security. The SSEB found that due to
OSC’s “empowered management style,” “appropriately addressed” Cyber
Security, and “strong transition plan,” OSC had demonstrated “a well-
constructed, effective approach.” AR 528.
OSC presented three references for Past Performance; each was
“Somewhat Relevant.” AR 531. The SSEB nevertheless ranked OSC
“Unknown Confidence (Neutral)” because OSC’s “performance record is so
sparse that no meaningful confidence assessment rating can be reasonably
assigned.” AR 532. Although it had performed in a DoD environment,
3
because OSC had not performed in a DoD educational environment, OSC
did not demonstrate similar complexity. The SSEB noted that OSC’s
references “indicated a customer focused management that met or exceeded
timelines, and provided forward facing staff which exceeded quality
metrics.” AR 533.
The SSEB rated Synaptek Outstanding on both Management
Approach and Performance Approach and rated it Substantial Confidence on
Past Performance. Regarding Management Approach, the SSEB determined
that Synaptek’s proposal was exceptional, noting, however, that its approach
to managing its subcontractor performance and its assessment of risks in
undertaking this project were thorough rather than exceptional. Synaptek’s
Management Approach, overall, “contained multiple strengths which lend
toward low risk effective performance.” AR 537.
Regarding Performance Approach, the SSEB found that Synaptek’s
approach was exceptional except for Cyber Security Support, which was
thorough. Synaptek’s Transition-In Plan was exceptional in part because
GDIT, the incumbent, is a proposed subcontractor for Synaptek.
Synaptek offered three references, one of which was “Very Relevant”
while the other two were “Somewhat Relevant.” AR 542. Its first reference
indicated that it was a subcontractor on the incumbent contract and therefore
it had similar experience. Overall, the SSEB had a “high expectation that
Synaptek will successfully perform the required effort.” AR 543.
In its summary, the SSEB wrote that both OSC and Synaptek received
Outstanding for the most important factor, Management Approach. “[T]he
Synaptek approach [is] slightly superior as there were no weakness[es] in the
Synaptek Management Approach while the OSC Edge approach contained a
significant weakness in risk component.” AR 545. Likewise, Synaptek was
rated higher than OSC on Performance Approach, because it did not have
any weaknesses compared to OSC’s Technology and Modernization
weakness. Finally, although both “received strong feedback, touting high
quality service[] levels and a strong customer focus,” Synaptek was rated
Substantial Confidence whereas OSC was rated Unknown Confidence. AR
546.
Before heading into the SSA’s price evaluation and best value
determination, Synaptek and OSC held first and second place, respectively,
with [ ] and [ ] the final two acceptable offerors. The price
4
proposals of all offers ranged from a low of $35,185,276 to a high of
$79,912,424. The range of acceptable offers included the following price
proposals:
Price Non-
Non-Price
Offeror Total above Price
Rating
Low Ranking
[ ] [ ] [ ] LOW 4
OSC Good $44,290,359 [ ] 2
[ ] [ ] [ ] [ ] 3
Synaptek Outstanding $62,009,284 [ ] 1
AR 567.
The total difference between Synaptek and OSC is $17,718,925.
For the SSA’s price analysis, offerors provided fully burdened labor
hour rates for 32 labor categories, 75% of which were performed in DC, 20%
performed in Norfolk, Virginia, and 5% performed at the contractor site for
the five-year ordering period. The price competition was in accordance with
Federal Acquisition Regulation (“FAR”) 15.404-1(b)(2)(i) (2018) and the
SSA deemed that section satisfied because two or more responsible offerors,
competing independently, submitted price offers. The SSA compared the
total proposed price of the offerors. She then used a comparative analysis to
determine which proposal represented the best value, considering the “[n]on-
price proposal more important than the offeror’s price proposal.” AR 566.
The SSA concluded that OSC, “as the offer ranked second from a non-price
standpoint and although slightly higher than the lowest price [ ] offer[,] . . .
is determined to represent the best value to the Government, price and other
factors considered.” AR 567.
The SSA began by explaining that “[p]otential contributors to the
price delta” between the eligible offerors’ prices include “the fact that direct
labor rates and indirect cost pools are individual to each company . . . .” AR
568. Additionally, because each of the labor categories in the solicitation
5
permitted equivalency offsets for education and experience, the solicitation
allowed for “a good deal of flexibility in the development of resource pools
to satisfy the requirement and thereby contributes to the price delta among
the offerors.” Id. The SSA determined OSC’s price to be fair and reasonable
in comparison to the other prices.
Next, the SSA compared OSC’s price to “prices being paid for similar
services under the predecessor Task Order.” Id. For “Change Manager” and
“Cyber Security Specialist,” OSC’s price was [ ] and [ ] higher than
the historical data. For all other labor categories, OSC’s price was lower,
ranging from [ ] to [ ] for an average of [ ] lower than the
historical data. The SSA explained that the difference was at least in part
attributable to the use of “published GSA Alliant rates” when actual rates
were not available. The SSA found that OSC’s rates compared favorably to
the prior contract.
The SSA also compared OSC’s price to prices obtained through data
from the Bureau of Labor Statistics and an industry survey. She compared
not only OSC’s price to that metric but also [ ]’s lower price. The SSA
found that OSC’s rate was favorable and that its lower price may be
attributable to the use of the Bureau’s hourly mean wage rate, from which
there could be variance above or below.
Finally, the SSA compared OSC’s price to the Independent
Government Estimate (“IGE”). The IGE was $74,158,350, primarily
calculated using the median GSA Alliant rates, which are drawn from more
than fifty companies. The GSA Alliant rates contain “a wide range of labor
category pricing, which results in varying pricing [from] the offerors.” AR
573. Because the GSA Alliant rates were higher than even the incumbent’s
published rates and had used a slightly higher than market escalation rate, the
SSA discounted the helpfulness of the IGE. She assumed that “the
environment of the instant acquisition maximized competitive behavior
techniques relative to preparation of proposals.” Id. She acknowledged that
OSC was lower than the comparative prices but concluded that its price was
reasonable.
After this comparison, the SSA conducted the best value
determination. She began by acknowledging that OSC was ranked second to
Synaptek on the technical factors. The SSA compared OSC’s and Synaptek’s
performance on the individual factors. For Management Approach, the most
6
important factor, she noted that Synaptek demonstrated no weaknesses
whereas OSC demonstrated one weakness for failure to specifically identify
risks and mitigation techniques. She wrote that “Synaptek was slightly
superior to OSC,” even though both offerors were rated Outstanding. AR
575. For Performance Approach, the SSA reviewed both offers and
concluded that Synaptek “is considered superior to” OSC even though both
offerors presented multiple strengths. Id. Synaptek provided a better
Technology and Modernization plan than OSC, but the SSA noted that OSC
“appropriately addressed” each area of Cyber Security. Id. Finally, on Past
Performance, Synaptek was also the technically superior offeror, “[d]ue to
the strong feedback on the very relevant reference” to the incumbent
contract. Id. OSC did not provide a very relevant reference even though
OSC’s experience “demonstrated similar scope and magnitude when viewed
in the aggregate.” Id. The SSA found that OSC’s primary weakness was lack
of experience in a DoD educational environment, despite its experience in
other DoD environments.
The SSA concluded that Synaptek is “the technically superior
proposal when compared to OSC Edge based on its slightly superior
Management Approach and its superior Performance Approach and Past
Performance.” AR 576. The SSA noted, “However, Synaptek’s price is
40.1% higher than the OSC Edge proposed price.” Id. She explained why
Synaptek’s premium was not the best value to the government:
Although the Synaptek Management Approach was
determined to be slightly superior in the area of risk
identification[,] the OSC Edge Management Approach was
nonetheless considered Outstanding, offering a well-
constructed, efficient strategy for performance. The
Performance Approach of Synaptek was considered
Outstanding, with multiple strengths; the OSC Edge was
considered Good, with multiple strengths which offset a
weakness in the Technology and [M]odernization area. The
Past Performance of Synaptek was rated Substantial
Confidence, providing the incumbent reference for which
above satisfactory performance was supported. OSC Edge
provided references which were considered somewhat relevant
in the aggregate; however, the references met the scope and
magnitude of the requirement but lacked one component of the
7
complexity of the educational environment. Strong feedback
was received on the references. Despite a rating of Unknown
Confidence (Neutral) in Past Performance, it is noted the rating
stems from the lack of one component of complexity, but
otherwise meets the requirements. This, along with the strong
feedback [that] was obtained from the references, limits the
risk associated with the Neutral rating. OSC Edge received the
highest rating for the most important factor, a Good rating for
the second most important factor, and the strong feedback in
Past Performance. Therefore, the non-price superiority of the
offer submitted by Synaptek does not warrant a price premium
of 40.1% (or $17,718,925).
Id.
The SSA then compared OSC’s offer to the two Acceptable offerors.
The SSA determined that “OSC Edge’s proposal is superior to [
] based on OSC Edge’s multiple strengths . . . .” Id. “Both offerors received
a rating of Unknown Confidence in Past Performance, primarily due to the
lack of the complexity component of performance in an educational
environment, thereby rendering the ratings approximately equal.” Id. She
concluded, “As [ ] was ranked below OSC from a non-price
standpoint, with the OSC considered superior to [ ] in two of the
three evaluation factors, and priced 20.9% higher than OSC, award to
[ ] would not be the best value to the Government.” Id.
Likewise, OSC was ranked technically superior on Management
Approach and Performance Approach compared to [ ]. The SSA found
that “[a]lthough OSC Edge is priced 2.68% higher than [ ], the strengths
in the OSC Edge non-price proposal, particularly in the areas of Cyber
Security, management of personnel qualifications and transition support the
nominal price difference between OSC Edge and [ ].” AR 577.
The SSA concluded that OSC’s performance risk is low:
While the Technical Evaluation labeled OSC Edge’s
Past Performance a rating of Unknown/Neutral, indicating a
performance record that is so sparse that no meaningful
confidence assessment rating can be reasonably assigned, the
SSA reviewed the underlying details of the technical
evaluation and references OSC Edge provided and considers
8
OSC Edge’s Past Performance to be more appropriately rated
Satisfactory Confidence, indicating the Government has a
reasonable expectation that the offeror will successfully
perform the required effort.
Id.
The SSA concluded that OSC could overcome its lack of work in a
DoD educational environment since it had performed in “multiple DoD
environments . . . giving the SSA a reasonable expectation that OSC Edge
would be able to adapt to the educational environment and perform
satisfactorily. Furthermore, OSC Edge performance met or exceeded all
quality metrics under the references.” AR 577-78. The SSA wrote that OSC
had been determined responsible and that its price was fair and reasonable.
After consideration of the non-price and price factors, the SSA recommended
award to OSC.
The Navy identified OSC as the apparent awardee on November 22,
2017. Synaptek filed a size protest on November 14, which the SBA denied.
Synaptek next filed a protest at the agency on December 13 while
simultaneously appealing the SBA’s denial of its size protest. The Navy
dismissed the agency protest as premature on January 3, 2018. The SBA
OHA denied Synaptek’s appeal.
The Navy awarded the contract to OSC on January 5, issuing a bridge
contract to the incumbent, GDIT, through February 28 to allow time for
transition to OSC. Synaptek and Envistacom [
] filed GAO protests on January 15 and 16, 2018. GAO dismissed
these protests as premature, because the Navy had not yet given debriefings.
The Navy delivered debrief letters on January 31 and both offerors
filed GAO protests on February 5. GAO dismissed a portion of Synaptek’s
protest but directed the Navy to respond to certain allegations.
On February 28, 2018, the Navy issued another bridge action to GDIT
for performance through July 31. On March 1, the Navy notified GAO that
it intended to take corrective action regarding the Envistacom and Synaptek
protests. GAO dismissed the protests on March 8.
For corrective action, the Navy determined that Envistacom’s
allegations warranted reevaluation by the SSEB of Envistacom’s proposal.
The SSA reviewed Synaptek’s allegations and determined that SSEB
9
reevaluation of Synaptek’s and OSC’s proposal was not necessary, but the
SSA did choose to consider Synaptek’s allegations in detail in her second
source selection decision. Ultimately, the SSEB’s reevaluation of
Envistacom did not change the Navy’s determination of offerors eligible for
award. After review of Synaptek’s protest allegations, the SSA agreed that
two positive aspects of OSC’s evaluation should be changed, but that those
two changes did not alter OSC non-price factor ratings or its overall rating.
In the second source selection decision, the SSA repeated the
summary of each proposal before returning to the price analysis. The SSA
added two price comparison components in the source selection decision.
First, the SSA compared “the average fully burdened rate of the bridge
action” to “the average proposed fully burdened rate of the instant
acquisition.” AR 656. She divided “the estimated price by the labor hours for
both the existing contract and the proposed acquisition.” Id. She found that
OSC’s “average fully burdened rate for the instant acquisition is [ ] . . .
which is [ ] lower than the existing bridge rates,” [ ]. Id. The SSA
reasoned that, due to factors such as GDIT’s [ ] pass through rate,
equivalency offsets, and a competitive environment, OSC’s price was
reasonable. Id.
The SSA also added a direct comparison of OSC and Synaptek.
OSC’s price “is less than, or within a [ ] delta of the proposed Synaptek
price for approx. [ ] of the proposed labor categories. In addition, there is
a[ ] delta between the proposed OSC Edge price and the Synaptek price
for the Operations Manager labor category.” Id. The SSA explained that the
current solicitation reduced the Operations Manager requirements and this
reduction contributed to the price difference. The SSA noted that the
equivalency offsets permitted “a good deal of flexibility in the development
of resource pools to satisfy the requirement and thereby contributes to the
price delta among the offerors.” Id. The SSA wrote that the Navy anticipated
offers to create a variety of structures for their labor category proposals. The
SSA again acknowledged that OSC price was lower than Synaptek’s but
found OSC’s price fair and reasonable.
Finally, the SSA reviewed Synaptek’s allegations regarding OSC’s
deficiencies. The SSA adjusted OSC’s rating in two respects. First, the SSA
reviewed the SSEB’s evaluation of OSC’s Management Approach. Synaptek
alleged that OSC impermissibly had failed to indicate a permanent Program
10
Manager and that OSC’s transitional, independent consultant Program
Manager created operational risk.
The SSA found that the solicitation included a Program Manager
labor category, but that OSC was not required to appoint a permanent
representative at the outset. OSC should have identified that program
manager as a consultant, but the SSA did not find OSC’s failure to disclose
material. The SSA removed OSC’s assigned strength for a long-term Project
Manager. Since OSC had at least three other named strengths under
Management Approach and because the [
] went beyond the solicitation’s requirements, the SSA determined
that the removal of one strength did not warrant downgrading OSC from
Outstanding for Management Approach.
Second, Synaptek alleged that OSC’s Past Performance was
overrated, because “[t]he SSEB determined that OSC Edge demonstrated
similar scope and magnitude when viewed in the aggregate but not similar
complexity.” AR 662. The SSA reviewed OSC’s references and agreed with
Synaptek that the original assessment was incorrect. OSC proposed to
perform 56.5% of the work and only one of its references listed OSC as the
prime contractor performing the work. That contract involved one of the task
areas implicated by the solicitation and was [ ] of the magnitude of the
solicitation. Therefore, OSC’s references were not of similar scope,
magnitude, or complexity. The quality of the performance and reviews
provided were satisfactory, however. The SSA found that the adjustment to
how OSC’s references were viewed in the aggregate did not change the
Unknown Confidence rating. The SSA “acknowledge[d] that OSC’s Past
Performance does create some risk and this is reflected in the best value trade
off section below.” AR 662.
The SSA did not make changes based on Synaptek’s remaining
allegations. Synaptek argued that OSC’s proposal to [
] created staffing risk. The SSA disagreed, noting that the [
] was permissible and in fact contributed to the strength of
OSC’s plan.
Synaptek also alleged that OSC would not be able to hire or retain
personnel with the required cyber security qualifications. The SSA reviewed
OSC’s proposal and the SSEB’s evaluation and found that OSC had not
departed from the solicitation and that its Staff Management Database
11
appeared capable of ensuring qualified staff. The SSA noted that, if OSC
failed to retain qualified staff, it would be a contract administration issue.
Synaptek also critiqued OSC’s ability to comply with the
subcontracting limitation. The SSA’s review satisfied her that OSC had
proposed its subcontractors properly, explained their role in OSC’s
performance, and proposed appropriate monitoring to ensure compliance
with the subcontracting limitation. The SSA noted that actual noncompliance
during performance was a contract administration issue.
Finally, Synaptek alleged that OSC’s Performance Approach was
overrated. The SSA found this allegation to be vague, but nevertheless
reviewed the SSEB’s evaluation and determined that an adjustment was not
warranted.
In the SSA’s new best value determination, OSC was in second place,
even after considering “the noted changes to the evaluation made by the SSA
through the corrective action.” AR 664. The SSA incorporated the changes
to OSC’s strengths into the best value analysis and determined, once again,
that Synaptek was “slightly superior” to OSC on Management Approach,
“superior” on Performance Approach, and “far superior” on Past
Performance. AR 665-66. The SSA’s conclusion relied on the comparisons
between Synaptek and OSC:
Synaptek is considered to be the technically superior
proposal when compared to OSC Edge based on its slightly
superior Management Approach and its superior Performance
Approach and far superior Past Performance. However,
Synaptek’s price is 40.1 % higher than the OSC Edge proposed
price. Although the Synaptek Management Approach was
determined to be slightly superior in the area of risk
identification; the OSC Edge Management Approach was
nonetheless considered Outstanding, offering a well-
constructed, efficient strategy for performance. The
Performance Approach of Synaptek was considered
Outstanding, with multiple strengths; the OSC Edge was
considered Good, with multiple strengths which offset a
weakness in the Technology and modernization area. The Past
Performance of Synaptek was rated Substantial Confidence,
providing the incumbent reference for which above
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outstanding performance was supported. OSC Edge was rated
Unknown Confidence (Neutral) in Past Performance, primarily
based on the lack of similar references by OSC Edge as the
prime contractor. Despite Synaptek’s proposal being
technically superior to OSC Edge, it is determined that the non-
price superiority of the offer submitted by Synaptek does not
warrant a price premium of 40.1 % (or $17,718,925). The
Government acknowledges that OSC Edge provides an
increased risk of performance when compared to Synaptek,
largely as a result of the Past Performance factor, and that the
solicitation stated that the non-price proposal is more important
than the offeror’s price proposal, however, the price premium
to Synaptek is too significant. OSC Edge received the highest
rating for the most important factor, a Good rating for the
second most important factor, and an Unknown/Neutral rating
for Past Performance indicating that OSC Edge has the ability
to perform albeit with a moderate risk of performance.
AR 666.
The SSA also compared OSC to [ ] and to [ ] again,
reaching the conclusion that OSC remained the superior offeror. The SSA
increased OSC’s level of performance risk to “moderate,” but recommended
award to OSC. AR 668.
After the Navy awarded the contract to OSC, Synaptek protested once
again at GAO. GAO ultimately denied the protest, finding that the Navy
reasonably determined that OSC would adhere to the subcontracting
limitation and that the Navy’s best value tradeoff was reasonable.
Synaptek filed its complaint in this court on November 9, 2018.
DISCUSSION
Synaptek advances three arguments: that the Navy turned the best
value determination into an award to the lowest price technically acceptable
offeror; that the Navy’s evaluation of OSC’s technical proposal was
unreasonable; and that the Navy’s responsibility determination lacked a
13
rational basis and was not documented properly. 2 Our review of the Navy’s
decision considers whether it was “arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law. . . .” 5 U.S.C. § 706
(2018); 28 U.S.C. §1491(b)(4) (2018).
The present solicitation sought the best value for the government from
among the eligible proposals. “‘Best value’ means the expected outcome of
an acquisition that, in the Government’s estimation, provides the greatest
overall benefit in response to the requirement.” FAR 2.101. The government
may use a best value tradeoff analysis “when it may be in the best interest of
the Government to consider award to other than the lowest priced offeror or
other than the highest technically rated offeror.” FAR 15.101-1(a). When
making the best value determination, the SSA must use her “independent
judgment” to decide “based on a comparative assessment of proposals
against all source selection criteria in the solicitation.” FAR 15.308. The SSA
must document her decision, including “the rationale for any business
judgments and tradeoffs made or relied on by the SSA, including benefits
associated with additional costs. Although the rationale for the selection
decision must be documented, that documentation need not quantify the
tradeoffs that led to the decision.” Id.
A plaintiff seeking to disturb the SSA’s best value determination bears
a significant burden, because the SSA has a high degree of discretion in
determining which proposal offers the best value to the government. Galen
Med. Assocs., Inc. v. United States, 369 F.3d 1324, 1330 (Fed. Cir. 2004);
E.W. Bliss Co. v. United States, 77 F.3d 445, 449 (Fed. Cir. 1996).
I. The SSA’s Price Analysis and Best Value Determination
Before turning to the SSA’s best value determination, we note that the
common thread running through Synaptek’s arguments is that OSC’s price
2
Synaptek’s argument on its motion for judgment on the administrative
record omitted certain arguments raised in its complaint: (1) the Navy
unreasonably rated OSC’s price proposal because OSC’s price proposal is
unrealistically low; (2) the Navy unreasonably determined that OSC is able
to comply with the limitation on subcontracting rule; (3) the Navy
unreasonably failed to conduct corrective action; and (4) GAO’s summary
dismissal prejudiced Synaptek. As if still advanced, we have considered
those arguments, and we find that none of these arguments warrant granting
Synaptek’s motion.
14
proposal is too low to realistically guarantee that the Navy will reap the
benefits promised in OSC’s proposal. Synaptek does not contend that the
price analysis itself violated the FAR but rather that it was irrational to
believe OSC’s price is reasonable. The SSA here was required to review the
prices for reasonableness, not realism, and we must be careful not to conflate
the standards. See AR 24. The SSA considered the reasonableness of OSC’s
price in comparison to the other offerors, Synaptek’s price, the prior contract,
the bridge contract, the IGE, and market data. It is true that OSC’s price was
lower than each of these data points, but the SSA did not ignore that fact.
Instead, the SSA explained why she believed OSC’s price was lower than
each of the comparison prices. Given that the SSA gave logical reasons why
OSC’s price could be lower than the others and explained why certain data
points did not provide an accurate comparison, we see no reason to determine
that her analysis was irrational.
Turning to the best value analysis, Synaptek argues that the Navy
prioritized price over the technical factors in its best value tradeoff, violating
the terms of the solicitation by swapping a best value tradeoff for a lowest
price technically acceptable analysis. We disagree. The best indicator that the
SSA performed a best value analysis is the fact that the SSA recommended
OSC, not [ ], for award. [ ] had the lowest price proposal and was rated
Acceptable. OSC, on the other hand, was more expensive than [ ], rated
Good rather than Acceptable, and was technically superior to both [ ] and
[ ].
Furthermore, price was a factor, even though it was less important
than the technical factors. The best value analysis must take price into
account when it is an evaluation factor and the SSA is required to document
the “benefits associated with additional costs.” FAR 15.308. Here, the SSA
properly considered whether Synaptek’s plan warranted $17 million in
additional costs when compared to a “Good” proposal from an offeror whose
primary disadvantage was not having operated in the NDU educational
environment. The SSA’s determination that OSC offered the best value to
the Navy is an example of the government’s flexibility “to consider award to
other than the lowest priced offeror,” [ ], “or other than the highest
technically rated offeror,” Synaptek. FAR 15.101-1(a).
Synaptek also contends that the SSA’s source selection decision was
conclusory, drawing comparisons to First Line Transp. Sec., Inc. v. United
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States, 100 Fed. Cl. 359, 382-84 (2011) and Femme Comp Inc. v. United
States, 83 Fed. Cl. 704, 757-770 (2008).
In First Line, “[o]n a short form attached to the SSEB
recommendation, the SSA stated that ‘[a]fter consideration of the
information provided to me by the technical and price evaluation members
and after accomplishing an independent review and assessment of the
technical and price consensus reports, I hereby determine that AKAL
Security is the best value offer solution by utilizing the trade-off method.’”
100 Fed. Cl. at 383. Unlike a single form with no explanation, the SSA here
explained her thought process. Particularly in the post-corrective action
source selection decision, the SSA’s decision reflects a judgment that at
points diverges from or corrects the SSEB’s recommendations and that
compares OSC not only to the technically superior offer but also to the other
two eligible proposals.
Moreover, unlike the SSA in Femme Comp Inc. who adopted a flawed
SSEB technical evaluation and minimized or conflated the difference
between offerors, here in both the original and the post-corrective action
source selection decision, the SSA repeatedly acknowledged Synaptek’s
technical superiority, which ranged from “slightly” to “far more” superior
than OSC. See 83 Fed. Cl. at 757-770. The SSA directly compared the two
offerors on each technical factor. She weighed the increased risk attributable
to OSC but found that when the technical superiority of Synaptek was
coupled with its 40.1% price premium, the Navy was prepared to bear the
additional moderate risk associated with OSC’s offer that had multiple
strengths, few weaknesses, and the preferable price. Synaptek believes the
SSA should have “quantif[ied] the tradeoffs” that led to choosing OSC,
which is detail that the FAR expressly states the SSA is not required to
include. FAR 15.308. We agree that the SSA could have made a more
detailed analysis, but the SSA’s decision is properly documented.
II. Technical Proposal
Regarding the technical proposal, Synaptek makes a variety of
arguments that OSC was overrated on the first two factors and that the Navy
ignored risks that it should have considered in OSC’s technical proposal.
First, Synaptek argues that the Navy did not consider the risk that OSC would
not be ability to execute its proposal. The SSA did consider OSC’s ability to
execute its approach, however. See AR 659-62. In the corrective action, the
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SSA reviewed OSC’s proposal for all the weaknesses that Synaptek alleged
and found that the materials OSC provided indicated that it could perform
successfully, albeit with some risk. Synaptek’s doubts notwithstanding, the
SSA considered Synaptek’s allegations.
Synaptek also argues that OSC’s failure to propose a full-time
Program Manager should have resulted in an assigned weakness. We
disagree.
The solicitation required the contractor to “provide a Program
Manager (PM) as a primary point of contact who shall provide management,
direction, administration, quality control, and leadership of the execution of
any TO.” AR 47. The program manager would “serve as the Government’s
major point-of-contact,” “provide overall leadership and guidance for all
contractor personnel,” and be “ultimately responsible for the quality and
efficiency” of performance. AR 68. Additionally, “[t]he PM shall have
organizational authority to execute the requirements. The PM shall assign
tasking to contractor personnel, supervise on-going technical efforts, and
manage overall task order performance.” AR 68. The solicitation does not
require a single, permanent program manager for the duration of the contract.
OSC named a Program Manager, [ ], AR 260, thus meeting
the Program Manager requirement. Synaptek seizes on the word “on-going,”
but OSC does not suggest that its Program Manager will not continually
supervise technical efforts.
The SSA considered the fact that OSC may present risk due to
replacing Mr. [ ] after the transitional period. She also accounted for
OSC’s proposal of a [ ] that was not required by the
solicitation. Synaptek’s disagreement with the SSA’s reasonable assessment
that OSC’s Program Manager approach will be effective is insufficient to
demonstrate the decision was arbitrary and capricious or irrational.
Synaptek also argued that the Navy overrated OSC’s Performance
Approach. Synaptek does not actually challenge the content of OSC’s
proposal, however. Instead, it casts aspersions on OSC’s finances, citing
materials that were not before the Navy at the time of the SSEB’s or the
SSA’s evaluation and that we decline to consider. Synaptek does not connect
the dots as to why the Navy should have abandoned the written proposals
and sought additional information when the solicitation expressly provided
that the Navy would not hold discussions.
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Synaptek’s related argument that OSC’s Performance Approach is
overrated because its employees will not have the required certifications is
without support in the record. OSC’s proposal spelled out its process for
maintaining certified employees, explained its subcontractors’ roles, and
warranted that its employees would be properly credentialed. Synaptek may
disagree, but without more its allegations are insufficient to disturb the
Navy’s award.
The last component of Synaptek’s argument that OSC’s Performance
Approach should not have been rated “Good,” is that the Navy ignored the
serious risk that OSC will pay its employees at below-market rates. This
argument is another iteration of Synaptek’s disbelief that an offeror at a price
point significantly lower than its own could perform the requirements of the
contract. Synaptek merely presents an alternative way to view the IGE and
market cost data, which that the SSA viewed differently. But Synaptek does
not meaningfully challenge the SSA’s explanations for how OSC’s price
reasonably could differ from the comparison prices.
OSC made representations in its proposal, on which the SSA was
entitled to rely, and among those statements was an explanation of how it
offered competitive employment packages that include more than the base
salary. In any event, OSC was in the middle of the range of prices for offerors
overall and slightly lower than the middle of prices from eligible offerors.
The SSA’s adoption of the Good rating for Performance Approach was not
unreasonable.
III. Responsibility Determination
Finally, Synaptek argues that the Navy did not properly document its
responsibility determination and, in any event, could not have determined
rationally that OSC is a responsible offeror. “The contracting officer’s
signing of a contract constitutes a determination that the prospective
contractor is responsible with respect to that contract.” FAR 9.105-2(a)(1)
(2018). Contracting officers “are ‘generally given wide discretion’ in making
responsibility determinations and in determining the amount of information
that is required to make a responsibility determination.” Impresa
Construzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324, 1335
(Fed. Cir. 2001) (quoting John C. Grimberg Co. v. United States, 185 F.3d
1297, 1303 (Fed. Cir. 1999)). The court will afford the agency’s
determination of responsibility the presumption of regularity until the
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protestor rebuts the determination with evidence that demonstrates that the
determination was arbitrary and capricious. Id.
The contracting officer signed the award of the contract to OSC. AR
780. Moreover, the contracting officer included a checklist responsibility
determination in her Contract Review Board Presentation after corrective
action. AR 628. Synaptek has not demonstrated that the agency ignored
relevant information that was before it or pointed to information that the
Navy should have sought out that would have disqualified OSC. We will not
disturb the Navy’s exercise of discretion in determining OSC a responsible
offeror.
CONCLUSION
In sum, because the Navy properly awarded the contract to OSC, we
grant defendant’s and intervenor’s motions for judgment on the
administrative record and deny plaintiff’s motion. The Clerk is directed to
enter judgment for defendant. No costs.
s/Eric G. Bruggink
ERIC G. BRUGGINK
Senior Judge
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