Sigmatech, Inc. v. United States ( 2019 )

In the United States Court of Federal Claims
No. 18-1425C
Filed: November 30, 2018
Redacted Version Issued for Publication: January 2, 20191
* * * * * * * * * * * * * * * * * ** *
SIGMATECH, INC., *
*
Protestor, *
*
v. * Post-Award Bid Protest; Cross-
UNITED STATES, * Motions for Judgment on the
* Administrative Record; Disparate
Defendant, * Treatment; Best-Value Trade-Off;
* Organizational Conflict of Interest.
v. *
DIGIFLIGHT, INC., *
*
Defendant-Intervenor. *
* * * * * * * * * * * * * * * * * ** *
Jon D. Levin, Maynard, Cooper & Gale, P.C., Huntsville, AL, for protestor. Of
counsel were J. Andrew Watson, W. Brad English, and Katherine E. McGuire,
Maynard, Cooper & Gale, P.C., Huntsville, AL.
Joseph E. Ashman, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, Washington, D.C., for defendant. With him were
Patricia M. McCarthy, Assistant Director, Commercial Litigation Branch, Robert E.
Kirschman, Jr., Director, Commercial Litigation Branch, and Joseph H. Hunt, Assistant
1 This Opinion was issued under seal on November 30, 2018. The parties were asked to
propose redactions prior to public release of the Opinion. Defendant proposed redactions
related “to the content and evaluation of the proposal submitted by Systems &
Simulations, Inc.,” which was not a party in the above-captioned bid protest. Protestor
stated that protestor “concurs with the Government’s proposed redactions” and “proposes
no additional redactions.” Defendant-intervenor requested that the court redact “specific
tools and features” offered in defendant-intervenor’s quotation.
This Opinion is issued with some of the redactions that the parties proposed in response
to the court’s request. Words which are redacted are reflected with the notation:
“[redacted].”
Attorney General. Of counsel was Lieutenant Colonel Robert B. Nelson, Judge
Advocate, United States Army Legal Services Agency, Fort Belvoir, VA.
Christopher L. Lockwood, Wilmer & Lee, P.A., Huntsville, AL, for defendant-
intervenor. Of counsel were Jerome S. Gabig and Richard J.R. Raleigh, Jr., Wilmer &
Lee, P.A., Huntsville, AL.
OPINION
HORN, J.
On September 21, 2017, the Department of the Army, Army Contracting
Command – Redstone (the Army), issued Task Order Request for Quotation No. 2015P-
06 (the TORFQ), which is the solicitation at issue in the above-captioned bid protest. On
May 22, 2018, the Army awarded a task order, which became Contract No. W31P4Q-18-
A-0035 (the DigiFlight Task Order), under the TORFQ to DigiFlight, Inc. (DigiFlight), the
defendant-intervenor in the above-captioned bid protest. On September 18, 2018,
protestor, Sigmatech, Inc. (Sigmatech), filed a bid protest complaint in this court
challenging the Army’s award under the TORFQ to DigiFlight as being irrational, arbitrary
and capricious, an abuse of discretion, and otherwise not in accordance with law.
FINDINGS OF FACT
The parties have stipulated that the Sigmatech is the “incumbent contractor on the
task order the TORFQ seeks to replace.” According to Sigmatech’s motion for judgment
on the administrative record, on July 10, 2017, the Army initially issued the TORFQ “as a
small business ‘reserve.’” DigiFlight submitted a quotation in response to the July 10,
2017 TORFQ that Sigmatech asserts was issued as a “small business ‘reserve.’”
Sigmatech states that “Sigmatech protested the Agency’s decision to ‘reserve’ the
TORFQ” at the United States Government Accountability Office (GAO), and that the Army
subsequently took corrective action in response to Sigmatech’s bid protest at the GAO.
On September 21, 2017, the Army reissued the TORFQ, which was “competitively
solicited for award in accordance with the EXPRESS Blanket Purchase Agreements
(BPAs).” The parties have stipulated that the “AMCOM [Aviation and Missile Command]
EXPRESS program utilizes General Services Administration Federal Supply Schedule
contractors to acquire advisory and assistance services.” (capitalization in original). The
parties have stipulated that the resultant task order awarded under the TORFQ is to
consist of a one-year base period of performance and four one-year option periods of
performance. The Army’s Independent Government Cost Estimate anticipated the total
value of the resultant task order awarded under the TORFQ to be $88,358,911.64.2
The TORFQ’s performance work statement stated:
2 As discussed below, the Army’s Best Value and Fair and Reasonable Determination
indicated that the Army’s Independent Government Cost Estimate estimated the total
value of the resultant task order awarded under the TORFQ to be $92,730,115.53.
2
1.1 The Security Assistance Management Directorate (SAMD) has a
requirement for programmatic support to meet contractual obligations for
the procurement, delivery and sustainment of weapon systems entered into
via the Foreign Military Sales (FMS) process between the United States
Government (USG) and numerous foreign governments. The objective of
this Performance Work Statement (PWS) is to provide support for
implementation and sustainment of current program actions and future
programs.
1.2 The contractor shall provide programmatic services for independent
evaluation, assessments and analysis. The contractor shall provide
programmatic support necessary to monitor, coordinate and integrate FMS
[Foreign Military Sales] programs for our foreign allies. The contractor shall
supply the necessary personnel labor and travel, facilities and materials to
fulfill this objective except as identified in Paragraph 5.0., Government
Furnished Property (GFP).
Section 2.1.1 of the performance work statement stated that:
2.1.1.1 The contractor shall perform financial analyses, verification of FMS
monies and provide input and recommendations utilizing automated
databases and systems. (PS1)
2.1.1.2 The contractor shall track case funding consisting of country level,
case level, line level and requisition level data using databases. (PS1)
2.1.1.3 The contractor shall develop and utilize an automated system for
FMS financial data collection. This system should access multiple FMS
databases and work towards an output that standardizes FMS financial
status data reporting. (PS1)
In section 2.1.2 of the performance work statement, the performance work statement
required that the “contractor shall collect data such as repair status, repair cost, and repair
capability from Corpus Christi Army Depot (CCAD) and Letterkenny Army Depot (LEAD),
Security Assistance Management Information System and other databases in order to
update requisition and document status reports and to provide recommendations on
repair requirements.”
Under section 2.1.3, the TORFQ stated:
2.1.3.1 The contractor shall provide recommendations regarding financial
database programs for particular systems and in the establishment of future
databases for the budgetary support of the FMS cases. (PS1)
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2.1.3.2 The contractor shall provide maintenance of these financial
databases for all FMS requirements in order to provide status/information
as input to required reports. (PS1)
Section 2.2.2 of the performance work statement addressed “INPUTS BY OTHER
CONTRACTORS AND USG [United States government] AGENCIES.” (capitalization in
original). Under section 2.2.2, the “contractor shall perform cost estimating and analysis
of data prepared and furnished by other contractors and USG agencies” and “provide
analysis of the life cycle cost requirements for FMS programs.”
The TORFQ stated that award would be made on a best value basis based upon
evaluation of three criteria, which the TORFQ identified as being the Technical Expertise
factor, Risk Mitigation and Management factor, and Price factor. The TORFQ stated that
the Army would engage in a “tradeoff process.” The TORFQ defined best value as
meaning “the expected outcome of the acquisition that, in the Government’s estimation,
provides the greatest overall benefit in response to the requirement (FAR [Federal
Acquisition Regulation] 2.101).” The TORFQ stated that “‘[t]radeoff’ means that the
Government may accept other than the lowest priced quotation, where the decision is
consistent with the evaluation criteria and the Government reasonably determines that
the perceived benefits of a higher priced quotation warrant the additional price.” The
TORFQ also stated that the Technical Expertise factor and the Risk Mitigation and
Management factor were of equal importance, and that the Technical Expertise factor
and the Risk Mitigation and Management each were more important than the Price factor.
The Price factor was “not expected to be the controlling criterion in the selection, but its
importance will increase as the differences between the evaluation results for the other
criteria decrease.” According to the TORFQ, “‘Offeror’ means the entity or entities
submitting the quotation and is comprised of the Blanket Purchase Agreement (BPA)
Team Leader (Prime) or Direct Awardee, as well as BPA Team Members and
Subcontractors.”
The Army indicated in the TORFQ that the Army would evaluate the Technical
Expertise factor “based on how well the quotation demonstrates a clear understanding of
the requirements and deliverables, and on the Offeror’s expressed ability to successfully
perform.” The TORFQ stated that the Army would “assess the Offeror’s understanding of
the requirements and the technical methodology” and whether a quotation “thoroughly
demonstrates the Offeror’s understanding of the services to be delivered in order to meet
the requirements of the PWS and the Offeror’s ability to perform those services.”
According to the TORFQ, “a quotation may also establish its expertise in other ways such
as, but not limited to, combinations of stated capabilities and explanations of how
seemingly unrelated experiences have provided sufficient preparation to perform the
PWS requirements.” The TORFQ stated that the Army would assign the following ratings
to an offeror’s Technical Expertise factor:
Technical Expertise Ratings
Rating Description
4
Outstanding Quotation meets requirements and indicates an exceptional level
of expertise and an understanding of the requirements. Strengths
far outweigh any weaknesses. Risk of unsuccessful performance
is very low.
Good Quotation meets requirements and indicates a thorough level of
expertise and an understanding of the requirements. Strengths
outweigh any weaknesses. Risk of unsuccessful performance is
low.
Acceptable Quotation meets requirements and indicates an adequate level of
expertise and an understanding of the requirements. Strengths
and Weaknesses are offsetting or will have little or no impact on
contract performance. Risk of unsuccessful performance is
moderate.
Unacceptable Quotation does not meet requirements and contains one or more
deficiencies. If this criterion is rated as Unacceptable, additional
factors will not be evaluated and the quotation is not eligible for
award.
(emphasis and capitalization in original).
The TORFQ stated that the Army would evaluate the Risk Mitigation and
Management factor based on how well an offeror would mitigate and manage the
following three risks: “1. The ability to obtain and retain qualified personnel. 2. The ability
to bring together the right team to perform the PWS requirements. 3. The ability to
effectively manage the project.” The TORFQ stated:
The quotation’s description of Risk Mitigation and Management shall also
include any significant anticipated technical or management risks that the
Offeror believes may be encountered in performing the required work and
shall provide an effective plan for overcoming them.
The quotation shall identify any possible adverse impacts to existing
programs/projects and include an approach that ensures the successful
performance of the PWS while avoiding or mitigating such impacts on the
other programs/projects.
The TORFQ indicated that the Army would evaluate the Risk Mitigation and Management
factor “to assess completeness, feasibility, and how well it addresses the details of the
PWS” and would assign one of the following rating:
Risk Mitigation and Management Ratings
Rating Description
Outstanding Quotation meets requirements and indicates an exceptional Risk
Mitigation and Management approach. Strengths far outweigh any
weaknesses. Risk of unsuccessful performance is very low.
5
Good Quotation meets requirements and indicates a thorough Risk
Mitigation and Management approach. Strengths outweigh any
weaknesses. Risk of unsuccessful performance is low.
Acceptable Quotation meets requirements and indicates an adequate Risk
Mitigation and Management approach. Strengths and
weaknesses are offsetting or will have little or no impact on
contract performance. Risk of unsuccessful performance is
moderate.
Unacceptable Quotation does not meet requirements and contains one or more
deficiencies. If this criterion is rated as Unacceptable, additional
factors will not be evaluated and the quotation is not eligible for
award.
(emphasis and capitalization in original).
Regarding the third factor, the Price factor, the TORFQ stated that the Army would
use price analysis to determine the overall price reasonableness of a quotation. The
TORFQ defined reasonableness as “a fair and reasonable price; i.e., a price that a
prudent businessperson would pay for an item or service under competitive market
conditions, given a reasonable knowledge of the marketplace.”
The TORFQ also defined the terms strength, weakness, and deficiency. The
TORFQ stated that a strength was defined “as an aspect of an offeror’s quote that has
merit or exceeds specified performance capability requirements in a way that will be
advantageous to the Government during contract performance.” The TORFQ defined a
weakness “as any flaw in the quote that increases the risk of unsuccessful contract
performance,” and a deficiency as “any material failure of a quote to meet a Government
requirement or a combination of significant weaknesses in a quote that increases the risk
of unsuccessful contract performance to an unacceptable level.”
On October 2, 2017, the Army issued an amendment to the TORFQ, which
corrected typos in the TORFQ. On October 23, 2017, Sigmatech, DigiFlight, and Systems
& Simulations, Inc. (S3) submitted quotations in response to the TORFQ. In Sigmatech’s
quotation, Sigmatech stated that:
Our team is to provide expert labor; be knowledgeable of Security
Assistance (SA) and Foreign Military Sales (FMS) execution IAW [in
accordance with] US laws and USG regulations, policies and guides;
recognize the overarching mission, role, structure, and priorities of the
SAMD; and deliver capability to enable accomplishment of SAMD mission
effectively and efficiently.
Sigmatech’s quotation indicated that “Team Sigmatech” consisted of Sigmatech, Applied
Technologies Group, and PROJECTXYZ.
6
Sigmatech stated that “Repair & Return (R&R) programs are a key component of
security assistance programs and continue long after delivery of the major systems to
support sustainment.” Sigmatech asserted that “Team Sigmatech brings proven
methodologies to data collection, repair status, repair cost, and repair capability,
coordinating with depots and ensuring accurate database information.” According to
Sigmatech, “[o]ur ability to perform is further demonstrated through Sigmatech’s
coordination with USASAC [United States Army Security Assistance Command]-NC, the
SAMD R&R [Repair and Return] Office, and CCAD to manage the Royal Saudi Land
Forces Aviation Command (RSLFAC) Apache R&R program.”
In section 2.1.3 of Sigmatech’s quotation, which is titled “Update & Maintenance
of Databases,” Sigmatech asserted:
We recommend and support the development of SAMD-unique financial
databases, which monitor and report on implemented FMS case line
budgets and expenditure. Sigmatech assists in the development and
maintenance of FAST [Financial Analysis Support Tool] financials, which is
a compilation of financial reports drawn from GFEBS [General Fund
Enterprise Business System], PBAS [Program Budget Accounting System],
SOMARDS [Standard Operation & Maintenance Army Research &
Development System], and DIFS [Defense Integrated Financial System]
financial databases. During case execution, periodic financial analysis
provides performance and cost control monitoring and measurement, to
include variance and trend analyses. We currently support SAMD in
improving efficiencies throughout the FMS financial and accounting
processes by developing and implementing an enterprise portal (the COP
[Common Operating Picture]) to file and store FMS accounting data, reports
and case close-out files. We support the migration of legacy SA systems to
[redacted], a DoD [Department of Defense] system which will be common
across MILDEPs [military departments] (2.1.3.1). [redacted] will replace the
Army legacy systems for logistics and financial processes, such as CISIL
[Centralized Integrated System for International Logistics] and PBAS.
Sigmatech has provided SME [subject matter expert] support to the
development of this system, to include analysis of interfaces with the Army-
wide GFEBS accounting system.
(emphasis in original). Sigmatech stated that, “[u]nder the USASAC programmatic TO
[task order], we helped develop the [redacted]. [redacted] will provide the FMS customer
with a common and standard system for management of their FMS cases.”
In Sigmatech’s quotation, Sigmatech also stated “[w]e generate funding profiles
for customer baseline hardware and services requirements, O&S [operations and
support], maintenance concepts, associated support items, and CSPs [concurrent spare
parts]. We compare LOA [Letter of Agreement] data, current contracts, and Army stock
prices for consistency, reasonableness and fairness.” Sigmatech asserted:
7
In compliance with the primary financial management references, our team
performs FMS program analyses and cost estimating from pre-LOR [Letter
of Request], LOR, case development and execution through case closure
to identify program, financial, acquisition, and logistical requirements. This
ensures accurate information for financial reports and reviews. Sigmatech
demonstrated this expertise in the analysis of financial data in preparation
of an Indonesian Apache amendment that identified $7M of unused
transportation funding. These savings were reprogrammed to support other
case requirements. Sigmatech further demonstrates an ability to execute
this requirement through amendment of the largest RSLFAC [Royal Saudi
Land Forces Aviation Command] Apache FMS case (SR-B-WAL).
Sigmatech coordinated with the technical POCs [point of contacts], budget
personnel, and case managers to define and request funding for specific
FMS requirements to be included in the amendment.
(emphasis in original). Sigmatech’s proposed price, if all option periods of performance
were exercised, was $61,454,297.78.
In DigiFlight’s quotation, DigiFlight stated that “Team DigiFlight comprises over 35
years of International Program / FMS case experience and current support to 84 FMS
Partners and five international organizations.” DigiFlight indicated that “Team DigiFlight”
is comprised of “[redacted] SB [small business] Team Member: [redacted] SB
Subcontractors: [redacted] and [redacted] CAS, Inc. (hereafter, referred to as KBRwyle),
[redacted].” According to DigiFlight’s quotation, with the “fivefold increase in AMCOM
FMS cases over the past decade, an automated FMS financial data collection and
standardized reporting system, such as [redacted], is essential to the collection of data to
support budgetary processes for management of the $53.2B in undelivered value for over
1,000 SAMD-managed FMS cases.” DigiFlight stated:
Team DigiFlight uses [redacted] to collect financial transactions
(commitments, obligations, and disbursements), automate financial
analysis, generate standardized SAMD financial reports, and provide inputs
and recommendations based on the analysis and reports. Our Team
developed [redacted], maintains the underlying code, and
recommends [redacted] for future SAMD Division and Branch support.
As shown in Figure 2.1, we maintain and update [redacted] standardized
FMS financial reports by accessing access and extract financial data from
[redacted]. [redacted]-generated standardized reports provide automated
comparisons of source data to quickly identify anomalies, verify [redacted]
funding sources, and generate case funding and budget execution reports.
Our Team’s [redacted] analysts facilitate case funding tracking and report
at the country, case, line, and requisition levels. We collect, process, and
report [redacted] data to enhance financial case status.
(emphasis in original). DigiFlight alleged that “Team-developed [redacted] automatically
retrieves and merges critical FMS financial records from legacy databases, improves
8
accuracy and efficiency, and [redacted].” (emphasis in original). DigiFlight also stated that
“[o]ur approach is to continue to use our Team expertise, coupled with [redacted] data
collection methodology, to refine R&R processes and automatically collect WebRoR data
to track repair status, costs, and capabilities from CCAD, LEAD, and OEMs [original
equipment manufacturers]/industry.” According to DigiFlight’s quotation, DigiFlight’s
approach “is to manage thousands of assets through database systems that maintain
accountability by tracking and monitoring R&R assets from FMS Partner requests for
repair through return-of-country assets.”
Regarding its cost estimating and analysis process, DigiFlight stated that “[o]ur
Team develops FMS case-specific databases that identify the purpose of funding; key
milestones; PWD, MIPR [military intradepartmental purchase request], and JONO [job
order number] issuance; monthly fund allocations; and expenditures supporting FMS
budget and pricing.” DigiFlight stated that “Team DigiFlight uses our Team’s [redacted]
cost estimating analysts to conduct line-by-line reviews of LOR data provided by PMs
[program managers], OEMs, and USG agencies. We provide thorough analyses of life
cycle costs and recommendations during reviews with SAMD, FMS Partners, and prime
contractors.” DigiFlight proposed a total price of $63,001,142.24 if all option periods of
performance were exercised.
In S3’s quotation, S3 asserted that S3 was [redacted]. (emphasis and capitalization
in original). S3 proposed a price of [redacted] if all option periods of performance were
exercised.
The parties have stipulated that the Army completed its evaluation of the
quotations submitted by Sigmatech, DigiFlight, and S3 on January 24, 2018.3 The Army
completed a document titled “Evaluation Worksheet” for each of the quotations of
Sigmatech, DigiFlight, and S3, which evaluated the Technical Expertise and Risk
Mitigation and Management factors for each vendor’s quotation.4 In the Evaluation
Worksheet analyzing DigiFlight’s quotation, the Army determined that DigiFlight’s
Technical Expertise was outstanding. The Army found that DigiFlight’s technical approach
warranted five strengths, which were assigned under sections 2.1.1 and 2.1.3,5 2.1.2,
2.2.2, 2.3, and 2.4 of DigiFlight’s quotation, zero weaknesses, and zero deficiencies.
Under the strength assigned to sections 2.1.1 and 2.1.3, the Army stated:
3As discussed below, on June 4, 2018, Sigmatech filed a post-award bid protest at the
GAO challenging the Army’s award to DigiFlight under the TORFQ, and the Army issued
a Stop Work Order to DigiFlight on June 5, 2018.
4The Army’s Evaluation Worksheets were not signed, but the Army’s Best Value and Fair
and Reasonable Determination indicates that the Evaluation Worksheets were completed
by Jennifer Kaufman, Michele Crook, and John Philips. The Army’s Best Value and Fair
and Reasonable Determination does not provide the job titles of Jennifer Kaufman,
Michele Crook, and John Philips.
5The Army assigned DigiFlight a single strength for DigiFlight’s technical approach under
sections 2.1.1 and 2.1.3 of DigiFlight’s quotation.
9
The Offeror’s proposal details its response to the Task Order Request for
Quotation (TORFQ) and the USG Performance Work Statement’s
requirements for financial databases, analysis, tracking and use, as well as
the updates and maintenance of those databases. The Offeror has
developed [redacted]. The Offeror demonstrates superior understanding of
multiple SAMD databases necessary to support its proprietary [redacted]
system that provides an exceptional level of financial support by maintaining
and updating [redacted] standardized reports to aid in quickly identifying
anomalies and for case managers to use in managing and executing
Foreign Military Sales (FMS) case lines. The [redacted] system also
[redacted]. The Offeror utilizes legacy systems for reporting, maintaining the
underlying code for [redacted], and providing recommendations and plans
for future growth of the [redacted] system to support SAMD’s evolving
needs.
The Offeror’s specialized knowledge and experience in both legacy and
current data systems will be advantageous to SAMD in managing case line
and contract financials. The use of the legacy systems and the innovative
development of the [redacted] system will enable the Offeror to provide
critical recommendations to SAMD for future growth and exceptional
support for program resource control. The Offeror’s development and
maintenance of its innovative [redacted] system will also benefit SAMD by
exporting data from multiple SAMD financial databases and will provide a
consistent standardized report. The Offeror’s unique skillset with [redacted]
and legacy systems will increase mission efficiency of financial
management by reducing the time to pull reports from multiple systems,
simplifying data utilization, and providing automated financial solutions to
the FMS case managers.
Under the strength assigned to section 2.1.2 of DigiFlight’s quotation, the Army
stated:
The Offeror has provided extensive support to R&R programs for over three
decades. The Offeror has developed and will provide the [redacted]. The
Offeror also plans to combine the existing expertise with the [redacted] data
collection methodology to refine the R&R process to automatically collect
Web Repair of Repairable (WebRoR) data for better tracking from Corpus
Christi Army Depot (CCAD), Letterkenny Army Depot (LEAD), and industry.
The Offeror’s R&R experience will benefit SAMD by utilizing its innovative
[redacted] in conjunction with the WebRoR system to track and assist in the
management of repair requirements, requisition documentation, contract
information, and other major commands data to generate R&R reports. The
system along with the Offeror’s cited very extensive experience with the
10
SAMD R&R process will benefit SAMD by increasing the amount of data
and status information collected from CCAD, LEAD, and industry.
Regarding DigiFlight’s strength under section 2.2.2 of DigiFlight’s quotation, the
Army stated that DigiFlight demonstrated a “unique ability to perform cost analysis by
utilizing their [redacted] cost estimation analysts, which are personnel trained and certified
using cost analysis methods.” The Army stated that Team DigiFlight employees already
were trained in using [redacted] and asserted that such training “will improve the quality
of detailed cost assessments to SAMD.” As to DigiFlight’s strength under section 2.3, the
Army stated that DigiFlight utilizes [redacted] and that DigiFlight’s “scheduling tools will
benefit SAMD by having readily available access to [redacted] for the development,
maintenance, evaluation, and presentation of an IMS [Integrated Master Schedules] for
each FMS case.” Under the strength assigned to section 2.4 of DigiFlight’s quotation, the
Army noted that DigiFlight developed the [redacted], which is a [redacted]. The Army
asserted that the [redacted] “provides an exceptional management system for post-
meeting tracking.”
Under a section of the Evaluation Worksheet titled “RATIONALE FOR OVERALL
RATING (TECHINICAL EXPERTISE),” the Army stated that DigiFlight’s “superlative
understanding” of and ability to perform the tasks in the performance work statement
warranted a rating of outstanding under the Technical Expertise factor. (capitalization in
original). According to the Army, DigiFlight successfully addressed all of the Army’s
requirements in the performance work statement and demonstrated a capability to exceed
the requirements in the performance work statement “by providing existing proprietary
systems that support financial, R&R, scheduling, and programmatic tracking in support of
SAMD operations.”
Under the Risk Mitigation and Management factor, the Army assigned DigiFlight
three strengths, zero weaknesses, and zero deficiencies. The Army assigned DigiFlight
a strength under section 3.1 of DigiFlight’s quotation because of DigiFlight’s “exceptional
ability to have no loss of mission effectiveness, no loss of a documented knowledge base,
and no need of government funds to train new employees.” The Army assigned DigiFlight
a strength under section 3.2 because of DigiFlight’s ability to “bring together the right team
to perform the PWS requirements.” Under section 3.4, the Army assigned DigiFlight a
strength because DigiFlight “demonstrates a firm ability to staff OCONUS Field Office
Positions.”
The Army also provided comments on sections 2.3 and 3.4 of DigiFlight’s
quotation. Under section 2.3, the Army stated that DigiFlight had developed and is
currently maintaining an [redacted], and that DigiFlight’s experience with the [redacted]
reduces risk for the Security Assistance Management Directorate. Under section 3.4, the
Army asserted that DigiFlight “has experience anticipating and addressing challenges and
uses its extensive expertise to quickly and proactively handle various inherent
organization dynamics.” The Army assigned DigiFlight’s quotation a rating of outstanding
under the Risk Mitigation and Management factor. The Army stated that DigiFlight
“demonstrated an exceptional Risk Mitigation and Management approach and proven
11
ability to effectively manage the project and anticipated technical risk” and that the “[r]isk
of unsuccessful performance is very low.”
In the Army’s Evaluation Worksheet analyzing Sigmatech’s quotation, the Army
assigned Sigmatech one strength under the Technical Expertise factor, which was under
section 2.4 of the performance work statement. The Army assigned Sigmatech a strength
under section 2.4 because Sigmatech demonstrated that it could successfully host
meetings “at its local facility,” which the Army asserted “reduces the logistics required for
visitor access, ensuring adequate meeting space and media support equipment.” The
Army also provided four “[c]omments” on Sigmatech’s technical approach. The Army’s
comments included that, under section 2.1.1 of Sigmatech’s quotation, Sigmatech’s
“experience with various Foreign Military Sales (FMS) financial systems is useful to
SAMD in performing financial analysis and providing input and recommendations.” Under
section 2.1.1.3, the Army commented that Sigmatech’s quotation “cites experience with
the SAMD Saudi PATRIOT Program,” which the Army stated “is valuable to
understanding the importance of organization and financial tracking,” but “does not
support the PWS requirement of developing an automated database that provides
standardized reports from multiple systems.” Under section 2.1.2, the Army stated that
DigiFlight’s “experience with Repair and Return (R&R) will assist SAMD in the analysis of
the R&R process and will provide recommendations to expedite and streamline the return
of items to the FMS customer.” Under section 2.1.3 of the TORFQ, the Army commented
that Sigmatech “demonstrates experience in aiding in the development of a case
management system however; details on how it will perform these tasks in support of
SAMD are not provided.” The Army assigned Sigmatech’s quotation a rating of good
under the Technical Expertise factor because Sigmatech “addressed all of the PWS
paragraph requirements, stating it will meet all requirements and discussed how it plans
to meet requirements by providing examples of relevant experience associated with each
PWS paragraph.”
Under the Risk Mitigation and Management factor, the Army assigned Sigmatech’s
quotation three strengths, which were assigned to sections 3.2, 3.2,6 and 3.4. Under
section 3.2, Sigmatech received a strength for Sigmatech’s “ability to bring together the
right team to perform the PWS requirements.” The Army also assigned Sigmatech a
strength for its “ability to obtain and retain qualified personnel” and noted that Sigmatech
“maintains an exceptional 92% average retention rate.” Under section 3.4, the Army
assigned Sigmatech a strength for its ability to effectively manage “the project” because
Sigmatech “utilizes multiple processes and tools to minimize performance risk by
accurately tracking contract data and requirements.” The Army did not assign Sigmatech
any weaknesses or deficiencies or list any comments for Sigmatech’s Risk Mitigation and
Management factor. The Army rated Sigmatech’s Risk Mitigation and Management factor
as outstanding. According to the Army, Sigmatech “demonstrated a [sic] exceptional Risk
Mitigation and Management approach and proven ability to effectively manage the project
and anticipated technical risk.”
6The Army’s Evaluation Worksheet assigned two separate strengths to section 3.2 for
Sigmatech’s quotation.
12
The Army assigned [redacted] and a rating of [redacted] to S3’s Technical
Expertise factor and [redacted] and a rating of [redacted] to S3’s Risk Mitigation and
Management factor. The Army did not assign [redacted] to S3’s quotation.
On May 22, 2018, Army contracting officers Ashantas Cornelius and Sonya
Anderson issued the Army’s Best Value and Fair and Reasonable Determination. The
Best Value and Fair and Reasonable Determination provided “a summary of the
evaluations for the non-price factors,” which noted the strengths, weaknesses,
deficiencies, and ratings assigned to each vendor’s quotation under the Technical
Expertise and Risk Mitigation and Management factors. The Army’s Best Value and Fair
and Reasonable Determination also provided the following “summary comparison of the
Independent Government Cost Estimate (IGE) and the Offeror’s proposed prices:”
Offeror DigiFlight Sigmatech S3 IGE
Base Effort $59,928.57 $26,034.41 [redacted] $26,376.18
Option 1 $12,273,922.83 $12,184,307.52 [redacted] $16,725,207.35
Option 2 $12,429,121.33 $12,248,669.31 [redacted] $17,614,215.65
Option 3 $12,586,626.43 $12,294,440.10 [redacted] $18,527,784.27
Option 4 $12,746,460.43 $12,328,644.55 [redacted] $19,466,895.64
Option 5 $12,905,082.65 $12,372,201.89 [redacted] $20,369,636.44
Total $63,001,142.24 $61,454,297.78 [redacted] $92,730,115.53
According to the Best Value and Fair and Reasonable Determination, “[a]ll three offerors
quoted prices that were less than the IGE. DigiFlight’s total price is $63,001,142.24 which
is 32% lower than the IGE value of $92,730,115.53. Sigmatech’s total price is
$61,454,297.78 which is 34% lower than the IGE. S3’s price is [redacted] which is
[redacted] lower than the IGE.” The Best Value and Fair and Reasonable Determination
states that the “Contracting Officer has reviewed the pricing received in response to this
solicitation to determine price reasonableness. In accordance with FAR Subpart 15.404-
1(b)(2)(i) price analysis is considered substantiated based on this acquisition having
adequate price competition.”
In a section of the Best Value and Fair and Reasonable Determination titled “Best
Value Discussion,” the Army provided the following summary of the Army’s evaluation of
the vendors’ quotations:
Offeror DigiFlight Sigmatech S3
Technical Outstanding Good [redacted]
Expertise
Risk Mitigation & Outstanding Outstanding [redacted]
Management
Total Price $63,001,142.24 $61,454,297.78 [redacted]
13
(emphasis in original). The Army noted that DigiFlight received five strengths, no
weaknesses, and no deficiencies under its Technical Expertise factor and three strengths,
no weaknesses, and no deficiencies under its Risk Mitigation and Management factor,
which produces a total of eight strengths. The Army stated that Sigmatech received one
strength, no weaknesses, and no deficiencies under its Technical Expertise factor and
three strengths, no weaknesses, and no deficiencies under its Risk Mitigation and
Management factor, which produces a total of four strengths. Regarding S3’s quotation,
the Army stated that S3 received [redacted] under its Technical Expertise factor and
[redacted] under its Risk Mitigation and Management factor, which produces a total of
[redacted] strengths.
The Army’s Best Value and Fair and Reasonable Determination stated that all
vendors demonstrated a capability to perform the Army’s requirement, but asserted:
DigiFlight, however, provided quotations with superior responses describing
their capability to accomplish the PWS requirements and how they plan to
meet requirements through examples of relevant experience associated
with each PWS paragraph. They thoroughly described how they will
manage the project and addressed anticipated risks. DigiFlight can provide
the required support, with very low risk of unsuccessful performance.
In further analyzing the best value amongst all three Offerors based on
Technical Expertise, the strengths and weaknesses of each Offeror were
considered. DigiFlight exhibited numerous strengths; providing relevant
experiences and demonstrating exceptional understanding of the technical
requirements. DigiFlight had no weaknesses identified in the Technical
Expertise factor. DigiFlight demonstrated exceptional capability, experience
and understanding to successfully perform the requirements of the PWS
with virtually no risk to the Government. DigiFlight demonstrated
exceptional understanding in the use of current and legacy data systems.
DigiFlight developed and implemented numerous systems and databases
such as [redacted]. The implementation of these programs will significantly
aid in collecting, processing and refining, analyzing and tracking data. The
use of such innovative databases/systems will effectively redefine data
collection and processing.
The Army further stated that:
In regards to the Risk Mitigation and Management, DigiFlight and
Sigmatech both received the rating “Outstanding” indicating an exceptional
approach. Both demonstrated a thorough approach to Risk Mitigation and
Management. Both demonstrated proven techniques in their abilities to
obtain and retain qualified personnel, ability to bring together the right team
to perform PWS requirements and the ability to effectively manage the
project; thus providing continuous support and risk mitigation through the
performance of the PWS requirements.
14
(capitalization in original). Regarding the vendors’ proposed prices, the Army asserted:
Based upon a price comparison of the Offerors, all three Offerors total
quoted prices are lower than the Independent Government Estimate (IGE).
DigiFlight’s total quoted price of $63,001,142.24 is 2% higher than
Sigmatech’s total quoted price of $61,454, 297.78 and [redacted] lower than
S3’s quoted price of [redacted]. Sigmatech’s total quoted price of
$61,454,297.78 is [redacted] lower than S3’s quoted price of [redacted].
Due to its ratings of “Outstanding” for Technical Expertise and Risk
Mitigation and Management and the 2% price premium between it and
Sigmatech, DigiFlight’s proposal offers the best value to the Government.
The rationale for award is based on a rating of Outstanding in the area of
Technical Expertise, Outstanding in the area of Risk Mitigation and
Management, and fair and reasonable pricing all combined. DigiFlight
clearly stated the requirements and how they would perform the
requirements for both Technical Expertise and Risk Mitigation and
Management. This was demonstrated by specific examples for both
Technical Expertise and Risk Mitigation and Management.
(capitalization in original).
In a subsequent section in the Best Value and Fair and Reasonable Determination
titled “Trade-Off Discussion,” the Army noted that, under the evaluation criteria set forth
in the TORFQ, the Technical Expertise factor and the Risk Mitigation and Management
factor were of equal importance, and each factor was of greater importance than the Price
factor. (capitalization in original). The Army stated:
DigiFlight demonstrated a far superior approach in both Technical Expertise
and Risk Mitigation and Management. DigiFlight received the highest
ratings in the two most important criteria (Technical and Risk Mitigation and
Management), and only presented a slight disadvantage over Sigmatech in
the least important criteria of Price. DigiFlight’s significant strengths
exceeds specified performance capability requirements in a way that will be
advantageous to the Government during contract performance.
Consequently, DigiFlight’s strengths in Technical Expertise and Risk
Mitigation and Management support the Government’s payment of a higher
price premium and will provide the Government the best value.
The Army concluded that, “[b]ased on the review of the evaluations, the Contracting
Officer determines that DigiFlight provides the best value with all ratings and price
considered.”
On May 22, 2018, the Army sent a memorandum with a subject of “Explanation of
Basis of Award Decision, TORFQ: 2015P-6” to Sigmatech, which explained the Army’s
15
evaluation of Sigmatech’s quotation and stated that DigiFlight was the awardee under the
TORFQ. (capitalization in original). The Army asserted in the May 22, 2018 memorandum
that DigiFlight’s quotation provided the best value to the government. Also on May 22,
2018, the Army awarded the DigiFlight Task Order under the TORFQ to DigiFlight.
On June 4, 2018, Sigmatech filed a post-award bid protest at the GAO challenging
the Army’s award to DigiFlight under the TORFQ. In its post-award protest at the GAO,
Sigmatech argued that the Army “unreasonably downgraded Sigmatech’s Technical
Expertise rating by identifying strengths as ‘comments,’” “unreasonably downgraded
Sigmatech’s quotation under the Technical Expertise factor,” and unreasonably evaluated
DigiFlight’s quotation. Sigmatech also argued that the Army’s source decision document
was unreasonable. On June 5, 2018, the Army issued a Stop Work Order to DigiFlight.
On July 16, 2018, Sigmatech filed a supplemental bid protest at the GAO. In its
supplemental bid protest, Sigmatech asserted that the Army assigned strengths to
DigiFlight “but not to Sigmatech for the same or virtually identical features,” the Army
failed to consider an organizational conflict of interest (OCI), the Army improperly
emphasized the experience of DigiFlight’s subcontractors, the Army improperly relied on
“unexplained technology in differentiating Sigmatech and DigiFlight,” and that the “source
selection authority failed to properly document the source selection decision.” Regarding
the alleged organizational conflict of interest, the parties have stipulated that Sigmatech
alleged at the GAO that an employee, Eileen Whaley, “of DigiFlight’s subcontractor on
the task order, KBRWyle,[7] was a former agency employee who, in that capacity, was
involved with the programmatic requirements of the TORFQ, thereby allegedly placing
her in a position to provide DigiFlight competitively useful non-public information about
the Army’s needs under the TORFQ.”
On July 27, 2018, contracting officer Ashantas Cornelius issued a Determination
and Findings regarding the alleged OCI involving Eileen Whaley, in which Ms. Cornelius
concluded that an OCI did not exist. Regarding Eileen Whaley’s employment at the
Security Assistance Management Directorate, Ashantas Cornelius stated:
Ms. Eileen Whaley served as Deputy Director of the Security Assistance
Management Directorate (SAMD) from August 2013 to June 2017. In her
capacity as the Supervisory International Program Management Specialist,
Ms. Eileen Whaley oversaw Security Assistance Program matters under the
cognizance of the command. She participated equally with the Director in
directing, managing, and coordinating the total activities of the organization,
consisting of professional, technical, and support personnel through
subordinate supervisors. As such, her duties included reviewing directives,
7 In DigiFlight’s quotation, DigiFlight identifies “CAS, Inc. (hereafter, referred to as
KBRwyle)” as a subcontractor on Team DigiFlight. Other documents in the administrative
record refer to KBRWyle as “KBRWyle/CAS, Inc.” The parties have referred to
KBRWyle/CAS, Inc. as KBRWyle, and the court refers to KBRWyle/CAS, Inc. as
KBRWyle.
16
planning documents, and program and policy statements received from
high authority and interpreting and evaluating to determine merits of new
concepts of long plans proposed in the various fields of security assistance
management in their operation staff aspects.
(capitalization in original; internal references omitted). According to Ashantas Cornelius:
In response to questions asked of the Contracting Officer’s Representative
(COR) on the current task order, the COR explained that Ms. Eileen Whaley
served as the Deputy Director of SAMD during the initiation and submission
of the Contracts Requirement Packet (CRP) for the task order whose award
is being protested. Due to her position and level of management, Ms.
Whaley was not involved in the development or completion of the
documents. Due to her position, it has been confirmed that Ms. Whaley only
provided signatory authority in the approval of two Limited Sources
Justifications (LSJs) to allow non-competitive extension of the previous task
order while the protests of the new task order are resolved. Ms. Whaley
confirms via her declaration, that she did not discuss nor have any
knowledge of or involvement with the current acquisition process. The CRP
documents were completed by Ms. Susan Tier [sic] (COR)[8] with the
assistance of Jimmy D. Jones, Jr. (Chief of Business Management Office)
and Mr. Alex T. Lamar (Technical Monitor). The documents required for the
Contract Requirements Packet (CRP) are approved independently and
require signatures based upon the type of document requiring approval. Ms.
Whaley did not sign any of the documents for the current procurement.
Upon completion of individual documents, submission was made to the
respective Contract Specialist and/or Officer.
(capitalization in original; internal references and footnote omitted). In a footnote,
Ashantas Cornelius stated that the Contract Requirement Packet consisted of multiple
documents used in the TORFQ, including the performance work statement, task order
data requirements, Independent Government Cost Estimate, and evaluation criteria.
In the July 27, 2018 Determination and Findings, Ashantas Cornelius also stated
that Larry Jess, the Vice President for DigiFlight’s Huntsville operations, stated in a
declaration that “he was directly responsible for the quotation development effort and
exclusively interfaced with all of DigiFlight teammates,” including KBRWyle, when
preparing DigiFlight’s quotation. Ashantas Cornelius asserted that:
According to his declaration, Mr. Jess had no interaction with Ms. Whaley,
nor did she serve as representative for CAS [KBRWyle] in supporting the
quotation preparation. As shown by his declaration, Mr. Jess was not aware
that Ms. Eileen Whaley was a CAS employee until the filing of the
8In the November 1, 2018 declaration signed by Susan Teir and a September 25, 2018
email message sent by Susan Teir, Ms. Teir spells her name as “Teir,” rather than “Tier.”
17
supplemental protest. Moreover, CAS has confirmed, that Ms. Eileen
Whaley was hired on August 14, 2017. This is four days after the due date
for initial responses to the TORFQ, which were due on August 10, 2017.
Quotations were received as stated above; however, a protest was
received. Upon receipt of the protest, the Government did not take any
action regarding the quotations submitted in response to TORFQ 2015P-6
in August 2017. Due to the receipt of the protest and proposed corrective
action, the TORFQ was subsequently re-issued on September 21, 2017 as
full open and competition (which was a change from the previous TORFQ,
which was issued as a Small Business Reserve). DigiFlight submitted
quotes in response to both TORFQs. The Contracting Officer compared the
two quotations, finding minimal differences in the two quotations.
(capitalization in original; internal references omitted). Ashantas Cornelius concluded that
she had
found no evidence that Ms. Whaley had any involvement in the
development of the TORFQ PWS, or that she had access to or received
any competitively useful, proprietary, or source selection information
relating to the Programmatic Services Support TORFQ, or that she had any
involvement in the procurement process or any influence on the source
selection decision. Thus, there is no evidence that DigiFlight gained unequal
access to any non-public information which would give the company an
unfair competitive advantage about the Programmatic Support Services
procurement as a result of Ms. Whaley’s tenure as the Deputy Director of
SAMD or as a KBRWyle/CAS employee.
On September 11, 2018, the GAO denied in part and dismissed in part
Sigmatech’s bid protest at the GAO. See Sigmatech, Inc., B-415028.3 et al., 2018 WL
5110874, at *1 (Comp. Gen. Sept. 11, 2018). The GAO determined that there was “no
merit to the protester’s challenges to the agency’s evaluation of Sigmatech’s quotation”
and dismissed Sigmatech’s allegation of unequal treatment as untimely. Id. at *3. The
GAO rejected Sigmatech’s argument that the Army unreasonably evaluated DigiFlight’s
experience because the GAO found “no basis to conclude that the agency’s assignment
of strengths to the awardee’s quotation based on the experience of its proposed
subcontractors was inconsistent with the terms of the solicitation or otherwise
unreasonable.” Id. at *6. The GAO also found that Sigmatech’s allegation of an OCI
involving Eileen Whaley lacked merit because, “[w]here, as here, the contracting officer
investigates a potential unfair competitive advantage and reasonably concludes that no
such advantage exists, we will defer to the agency’s judgment.” Id. at *9 (citation omitted).
The GAO denied the remainder of Sigmatech’s claims. See id. at *11.
18
On September 18, 2018, Sigmatech filed its complaint in the above-captioned bid
protest.9 In its complaint, Sigmatech argued that the Army arbitrarily and capriciously
evaluated Sigmatech’s quotation, that the Army engaged in disparate treatment, and that
the Army’s source selection decision was unequal, arbitrary and capricious, an abuse of
discretion, or otherwise not in accordance with law. Sigmatech argued that the Army
“failed to adequately consider the former Acting Director’s [Eileen Whaley’s] access to
information and setting of requirements, who is now a KBRWyle employee working on
the LPTO Task Order, was a conflict of interest.” During a discussion of the alleged
conflict of interest involving Eileen Whaley at the November 13, 2018 oral argument,
counsel of record for protestor stated “I will formally withdraw it.” Counsel of record for
protestor stated “I will fully admit, having reviewed the briefs, that I do not believe the
Eileen Whaley argument is particularly strong” and counsel officially withdrew protestor’s
claim involving Eileen Whaley.
In Sigmatech’s complaint, Sigmatech also asserted, for the first time, that the Army
failed to consider “the DigiFlight team’s organizational conflicts of interest” involving
KBRWyle’s position as the prime contractor on a task order “under the Defense System
Technical Area Task (‘DS TAT’) contract for Patriot Technical Support at the ‘Lower Tier
Project Office System Engineering Directorate.’” (capitalization in original). According to
Sigmatech:
KBRWyle (and therefore, DigiFlight) has an organizational conflict of
interest—that is, as the subcontractor to DigiFlight under the RFQ and as
the contractor under the DS TAT task order, KBRWyle would have to
monitor and evaluate its own work under the DS TAT task order an
impermissible impaired objectivity OCI.
Sigmatech’s complaint requests a declaration that the Army’s evaluation of quotations
and award under the TORFQ was irrational, arbitrary, and capricious, an abuse of
discretion, and contrary to law, a permanent injunction, other relief deemed appropriate
by the court, and that the court “[r]equire the Agency to perform a new evaluation and
make a new award decision.”
On September 19, 2018, DigiFlight filed an unopposed motion to intervene in the
above-captioned bid protest, which the court granted. Also on September 19, 2018, the
court held a hearing with the parties in the above-captioned bid protest. During the
September 19, 2018 hearing, counsel of record for defendant indicated that the Army
voluntarily agreed to stay performance of DigiFlight’s award under the TORFQ until
December 14, 2018. Defendant indicated that an Army contracting officer was
investigating and evaluating Sigmatech’s new OCI claim involving KBRWyle’s
performance under the Defense System Technical Area Task task order.
9 In a footnote in the complaint, Sigmatech states that “Sigmatech is not pursuing all of
the grounds it raised before the GAO.”
19
On October 1, 2018, defendant filed the administrative record in the above-
captioned bid protest. On October 3, 2018, defendant filed a notice of the Army’s
Determination and Findings, which was dated October 2, 2018, signed by contracting
officer Ashantas Cornelius, and addressed Sigmatech’s allegation that
DigiFlight, Inc. entered into a teaming/subcontractor agreement with
KBRWyle/CAS Inc. (KBRWyle), creating impaired objectivity in which
KBRWyle, in performing the EXPESS Task Order, would provide oversight
and/or approval over its own work performance and deliverables performed
under other task orders awarded through the Defense Technical
Information Center (DTIC) Defense Systems Technical Area Task (DS-
TAT) program.
In the October 2, 2018 Determination and Findings, Ashantas Cornelius “concluded that
no OCI exists.” Ms. Cornelius states that the Lower Tier Project Office is the “Office of
Record for the ACAT-1A PATRIOT Air & Missile Defense Weapon System,” and that the
“LTPO [Lower Tier Project Office] provides requirements based upon ‘production
contracts’, providing foreign military customers with a weapon system/end product.”
(capitalization in original). Ms. Cornelius asserts:
The Lower Tier Project Office is part of the Program Executive Office (PEO)
Missiles and Space. This office is not a part of AMCOM. SAMD is an
Aviation and Missile Command (AMCOM) organization. SAMD has
divisions that are co-located with the respective Missile and Space Program
Executive Office (PEO)/Aviation Program Executive Office (PEO) Weapon
Systems Program Offices. However, each organization performs duties and
responsibilities specific to that organization’s mission. The two
organizations function independently of each other and have no
organizational relationship with each other. With different command
teams/structures, SAMD does not provide management oversight to LTPO
or vice versa.
LTPO and AMCOM SAMD require technical support services in order to
successfully perform their missions. In response to this need, both
organizations acquired technical supports [sic] services through the use of
the DTIC Defense Systems Technical Area Task (DS-TAT) Indefinite
Delivery Indefinite Quantity (IDIQ) contracts managed by Defense
Technical Information Center (DTIC) personnel located at Ft. Belvoir, VA. A
task order for technical support at LTPO (FA807517F1374) was awarded
on May 20, 2017 and a task order for technical support at SAMD
(FA807517F1389) was awarded on September 28, 2017. Both task orders
were awarded to Wyle Laboratories, Inc., a part of KBRWyle/CAS, Inc.,
located in Huntsville, Alabama.
(internal references omitted).
20
According to Ashantas Cornelius’s statements in the October 2, 2018
Determination and Findings, “[t]hese contracts are similar in the type of ‘technical support’
they provide to LTPO and SAMD. However; the support is based upon individual mission
requirements of each organization.” Ashantas Cornelius further states:
The primary purpose of Task Order FA 807517F1374 in support of the
LTPO mission is to study, analyze, provide, advice [sic], research, and
develop deliverables to advance defense-related scientific and technical
information (STI) through the application of knowledge and resources in
achieving the requiring activity’s mission requirements. The objective is to
provide the Government the necessary multi-discipline support to execute
the extremely challenging effort of managing the PATROIT weapon system.
The primary purpose of Task Order FA 807517F1389 in support of the
AMCOM SAMD mission is to study, analyze, advise, research and develop
deliverables to advance FMS-related scientific and technical Information
(STI). Some of the key objectives are Program Management, STI
Relevance Assessment and Gap Analysis, Systems Engineering Support;
Forensic and Reliability Analysis, Strategic Planning, Integrated Logistics
Support; and Foreign Military Sales Support. These task orders are
separate entities and function independently of each other in support of two
different commands with varying missions.
(capitalization in original; internal references omitted).
Regarding the task order awarded to DigiFlight under the TORFQ, Ashantas
Cornelius asserts:
[T]he task order provides programmatic services to AMCOM SAMD.
Programmatic services entails [sic] support in monitoring, assessing,
coordinating, analyzing and integrating component programs/activities,
including briefings/ presentations and agendas for the total life cycle
systems. This program is in response to the SAMD’s mission and supports
only the SAMD Foreign Military Sales (FMS) functions. The EXPRESS task
order functions is [sic] the same manner as the DTIC task order. The
Contracting Officer appoints a COR, who has been trained and performs
duties in accordance with the FAR and other applicable regulations.
Similarly, each EXPRESS task order is allocated a Program Manager
and/or a task order lead whose primary duty and responsibility is to manage/
provide oversight in support of his/her specific task order.
(internal references omitted). In the October 2, 2018 Determination and Findings,
Ashantas Cornelius concludes that:
As the Contracting Officer responsible for the acquisition of the
Programmatic Support Services Task Order Request for Quote and
subsequent award, I have thoroughly reviewed the tasks to be performed
21
under the EXPRESS task order and the tasks KBRwyle performs under
the DS-TAT task orders for both LTPO and SAMD, and have found no
evidence of impaired objectivity with KBRWyle/CAS, Inc. in performance
of their duties supporting the EXPRESS Task Order and the DTIC Task
Orders. KBRwyle working on the EXPRESS task order will not be
monitoring or evaluating the work of KBRwyle employees on the DTIC task
orders. As stated above, oversight of contractor personnel and
performance is done by the Government, through Contracting Officer
Representative and Program Managers, and not by other contractors.
Furthermore, the work performed under the EXPRESS task order is
different from the work performed under the DTIC task orders, involving
different categories of services, with the EXPRESS task order providing
program support services and the DTIC task orders focused on scientific
and technical tasks.
Furthermore, additional last-minute information was provided by
Sigmatech regarding KBRWyle performing other DS TAT task Orders.
These tasks orders provide support to various Program Management
Offices (PMOs) to include Cargo Helicopter, Unmanned Aircraft Systems,
Fixed Wing and Future Vertical Lift. Additionally, information has been
provided indicating that DigiFlight is a subcontractor on several of
KBRWyle’s task orders. While Sigmatech has not provided sufficient
information to fully investigate these last-minute additions to its impaired
objectivity OCI allegations, because these DS TAT task orders are all
managed in the manner as previously stated, sufficient government
oversight is provided to successfully eliminating [sic] any possibility of
impaired objectivity.
Protestor has not amended its complaint in the above-captioned bid protest to include an
allegation that there is an organizational conflict of interest as a result of DigiFlight’s role
as a “subcontractor on several of KBRWyle’s task orders.”
On October 19, 2018, Sigmatech filed a motion for judgment on the administrative
record. In the October 19, 2018 motion, Sigmatech argues that the Army’s evaluation of
Sigmatech’s quotation and DigiFlight’s quotation, as well as the Army’s source selection
decision, was irrational, arbitrary, capricious, an abuse of discretion, and not in
accordance to law. Sigmatech asserts in its motion for judgment on the administrative
record that the Army failed to consider Eileen Whaley’s “access to information and her
involvement in setting the requirements for the TORFQ.” Sigmatech also contends that
the Army’s “evaluation of KBRWyle’s impaired objectivity OCI resulting from its work on
related task orders was arbitrary, capricious, and contrary to law.” Sigmatech also
provided a “concrete (hypothetical) example of KBRWyle’s conflicting roles” in an attempt
to support Sigmatech’s allegation of an impaired objectivity OCI.
Sigmatech attached to its October 19, 2018 motion for judgment on the
administrative record an October 15, 2018 declaration signed by Philip Roman, who
22
states that he is the “Vice President of Security, Cooperation/Security Assistance of
Sigmatech, Inc.,” and that the October 15, 2018 declaration is offered “in support of
Sigmatech’s Motion to Supplement the Agency Record.” On October 22, 2018, the court
issued an Order stating that defendant had not filed a motion to supplement the
administrative record as described in the October 15, 2018 declaration signed by Philip
Roman. On October 23, 2018, Sigmatech filed a motion to supplement the administrative
record with the October 15, 2018 declaration signed by Philip Roman. In the October 23,
2018 motion, Sigmatech argues that supplementation of the administrative record is
appropriate because, without the declaration signed by Philip Roman, the court “cannot
determine whether the Agency ignored salient information without understanding where
contractor-employees are placed and whether the Agency oversees those employees;
the scope of the Agency’s oversight; and how the Agency integrates FMS into its program
management.”
On November 2, 2018, defendant and defendant-intervenor both filed responses
to Sigmatech’s motion for judgment on the administrative record and cross-motions for
judgment on the administrative record. In defendant’s cross-motion for judgment on the
administrative record, defendant argues that the administrative record establishes that
the Army’s evaluators treated all offerors equally and that the Army’s best value
determination was rational. Defendant also argues that the Army’s award to DigiFlight
“does not create any OCI.” In defendant-intervenor’s cross-motion for judgment on the
administrative record, defendant-intervenor asserts that Sigmatech has failed to establish
that the Army’s evaluation was unequal and has failed to establish that the source
selection decision was improper. Defendant-intervenor contends that Sigmatech failed to
establish “an OCI arising from KBRwyle’s hiring of Eileen Whaley” or that award to
DigiFlight created an “impaired objectivity OCI.”
Also on November 2, 2018, defendant submitted a motion to supplement the
administrative record with a November 1, 2018 declaration signed by Susan Teir, who
states that she served as the contracting officer’s representative on the Sigmatech’s
incumbent task order. Defendant argues that the November 1, 2018 declaration signed
by Susan Teir “is necessary to fill a gap in the administrative record regarding Sigmatech’s
allegation that the agency’s award decision created an impaired objectivity organizational
conflict of interest (OCI) because the awardee’s subcontractor, KBRWyle, would,
allegedly, be placed in a position to review its work on other contracts with the agency.”
Defendant asserts that Sigmatech’s “hypothetical significantly mischaracterizes
KBRWyle’s performance of the task order with the Lower Tier Project Office Patriot Missile
program management office,” and that, “[i]n her declaration, Ms. Tier [sic] responds to
Sigmatech’s hypothetical scenario involving KBRWyle and explains why it is factually
incorrect.”
On November 6, 2018, defendant and defendant-intervenor filed responses to
Sigmatech’s October 23, 2018 motion to supplement the administrative record, both of
which asserted that the court should not supplement the administrative record with the
additional documents proffered by Sigmatech.
23
On November 9, 2018, Sigmatech filed a reply in support of its motion for judgment
on the administrative record and response to defendant and defendant-intervenor’s cross-
motions.10 In Sigmatech’s November 9, 2018 filing, Sigmatech argued that this court
should deny defendant’s November 2, 2018 motion to supplement the administrative
record. Also on November 9, 2018, Sigmatech filed a reply in support of Sigmatech’s
October 23, 2018 motion for supplementation to the administrative record. On November
13, 2018, the court heard oral argument in the above-captioned bid protest.
DISCUSSION
Rule 52.1(c)(1) (2018) of the Rules of the United States Court of Federal Claims
(RCFC) governs motions for judgment on the administrative record. The court’s inquiry is
directed to “‘whether, given all the disputed and undisputed facts, a party has met its
burden of proof based on the evidence in the record.’” Mgmt. & Training Corp. v. United
States, 115 Fed. Cl. 26, 40 (2014) (quoting A & D Fire Prot., Inc. v. United States, 72 Fed.
Cl. 126, 131 (2006) (citing Bannum, Inc. v. United States, 404 F.3d 1346, 1356-57 (Fed.
Cir. 2005))); see also Centerra Grp., LLC v. United States, 138 Fed. Cl. 407, 412 (2018)
(citing Bannum, Inc. v. United States, 404 F.3d at 1356-57); Informatics Applications Grp.,
Inc. v. United States, 132 Fed. Cl. 519, 524 (2017) (citation omitted); Strategic Bus. Sols.,
Inc. v. United States, 129 Fed. Cl. 621, 627 (2016), aff’d, 711 F. App’x 651 (Fed. Cir.
2018); Rotech Healthcare Inc. v. United States, 118 Fed. Cl. 408, 413 (2014); Eco Tour
Adventures, Inc. v. United States, 114 Fed. Cl. 6, 21 (2013); DMS All-Star Joint Venture
v. United States, 90 Fed. Cl. 653, 661 (2010). Pursuant to RCFC 52.1, in a bid protest,
the court reviews the agency’s procurement decision to determine whether it is supported
by the administrative record. See CW Gov’t Travel, Inc. v. United States, 110 Fed. Cl.
462, 481 (2013); see also CR/ZWS LLC v. United States, 138 Fed. Cl. 212, 223 (2018)
(citing Bannum, Inc. v. United States, 404 F.3d at 1353-54).
The Administrative Dispute Resolution Act of 1996 (ADRA), Pub. L. No. 104-320,
§§ 12(a), 12(b), 110 Stat. 3870, 3874 (1996) (codified at 28 U.S.C. § 1491(b)(1)–(4)
(2012)), amended the Tucker Act to establish a statutory basis for bid protests in the
United States Court of Federal Claims. See Impresa Construzioni Geom. Domenico
Garufi v. United States, 238 F.3d 1324, 1330-32 (Fed. Cir. 2001); see also Sys.
Application & Techs., Inc. v. United States, 691 F.3d 1374, 1380 (Fed. Cir. 2012)
(explaining that the Tucker Act expressly waives sovereign immunity for claims against
the United States in bid protests). The statute provides that protests of agency
procurement decisions are to be reviewed under APA standards, making applicable the
standards outlined in Scanwell Labs., Inc. v. Shaffer, 424 F.2d 859 (D.C. Cir. 1970), and
the line of cases following that decision. See, e.g., Per Aarsleff A/S v. United States, 829
F.3d 1303, 1309 (Fed. Cir. 2016) (“Protests of agency procurement decisions are
reviewed under the standards set forth in the Administrative Procedure Act (‘APA’), see
10 During the September 20, 2018 hearing, defendant indicated that defendant did not
intend to file a reply in support of its cross-motion for judgment on the administrative
record and subsequently did not file a reply. Intervenor, likewise, declined to file a reply
in support of its cross-motion for judgment on the administrative record.
24
28 U.S.C. § 1491(b)(4) (citing 5 U.S.C. § 706), ‘by which an agency’s decision is to be
set aside only if it is arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law[.]’” (quoting NVT Techs., Inc. v. United States, 370 F.3d 1153, 1159
(Fed. Cir. 2004)) (citing PAI Corp. v. United States, 614 F.3d 1347, 1351 (Fed. Cir.
2010))); Impresa Construzioni Geom. Domenico Garufi v. United States, 238 F.3d at
1332; Res. Conservation Grp., LLC v. United States, 597 F.3d 1238, 1242 (Fed. Cir.
2010) (“Following passage of the APA in 1946, the District of Columbia Circuit in Scanwell
Labs., Inc. v. Shaffer, 424 F.2d 859 (D.C. Cir. 1970), held that challenges to awards of
government contracts were reviewable in federal district courts pursuant to the judicial
review provisions of the APA.”); Galen Med. Assocs., Inc. v. United States, 369 F.3d 1324,
1329 (Fed. Cir. 2004) (citing Scanwell Labs., Inc. v. Shaffer, 424 F.2d at 864, 868, for its
“reasoning that suits challenging the award process are in the public interest and
disappointed bidders are the parties with an incentive to enforce the law”); Banknote
Corp. of Am., Inc. v. United States, 365 F.3d 1345, 1351 (Fed. Cir. 2004) (“Under the
APA standard as applied in the Scanwell line of cases, and now in ADRA cases, ‘a bid
award may be set aside if either (1) the procurement official’s decision lacked a rational
basis; or (2) the procurement procedure involved a violation of regulation or procedure.’”
(quoting Impresa Construzioni Geom. Domenico Garufi v. United States, 238 F.3d at
1332)); Info. Tech. & Applications Corp. v. United States, 316 F.3d at 1319.
When discussing the appropriate standard of review for bid protest cases, the
United States Court of Appeals for the Federal Circuit addressed subsections (2)(A) and
(2)(D) of 5 U.S.C. § 706, see Impresa Construzioni Geom. Domenico Garufi v. United
States, 238 F.3d at 1332 n.5, but focused its attention primarily on subsection (2)(A). See
Croman Corp. v. United States, 724 F.3d 1357, 1363 (Fed. Cir.) (“‘[T]he proper standard
to be applied [to the merits of] bid protest cases is provided by 5 U.S.C. § 706(2)(A)
[(2006)]: a reviewing court shall set aside the agency action if it is “arbitrary, capricious,
an abuse of discretion, or otherwise not in accordance with law.”’” (alterations in original)
(quoting Banknote Corp. of Am. v. United States, 365 F.3d at 1350-51 (citing Advanced
Data Concepts, Inc. v. United States, 216 F.3d 1054, 1057-58 (Fed. Cir.), reh’g denied
(Fed. Cir. 2000)))), reh’g and reh’g en banc denied (Fed. Cir. 2013). The statute says that
agency procurement actions should be set aside when they are “arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with law,” or “without observance of
procedure required by law.” 5 U.S.C. § 706(2)(A), (D) (2012);11 see also Tinton Falls
11 The language of 5 U.S.C. § 706 provides in full:
To the extent necessary to decision and when presented, the reviewing
court shall decide all relevant questions of law, interpret constitutional and
statutory provisions, and determine the meaning or applicability of the terms
of an agency action. The reviewing court shall—
(1) compel agency action unlawfully withheld or unreasonably delayed;
and
25
Lodging Realty, LLC v. United States, 800 F.3d 1353, 1358 (Fed. Cir. 2015); Orion Tech.,
Inc. v. United States, 704 F.3d 1344, 1347 (Fed. Cir. 2013); COMINT Sys. Corp. v. United
States, 700 F.3d 1377, 1381 (Fed. Cir. 2012) (“We evaluate agency actions according to
the standards set forth in the Administrative Procedure Act; namely, for whether they are
‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.’”
(quoting 5 U.S.C. § 706(2)(A); and Bannum, Inc. v. United States, 404 F.3d at 1351));
Savantage Fin. Servs. Inc., v. United States, 595 F.3d 1282, 1285-86 (Fed. Cir. 2010);
Weeks Marine, Inc. v. United States, 575 F.3d 1352, 1358 (Fed. Cir. 2009); Axiom Res.
Mgmt., Inc. v. United States, 564 F.3d 1374, 1381 (Fed. Cir. 2009) (noting arbitrary and
capricious standard set forth in 5 U.S.C. § 706(2)(A), and reaffirming the analysis of
Impresa Construzioni Geom. Domenico Garufi v. United States, 238 F.3d at 1332); Blue
& Gold Fleet, L.P. v. United States, 492 F.3d 1308, 1312 (Fed. Cir. 2007) (“‘[T]he inquiry
is whether the [government]’s procurement decision was “arbitrary, capricious, an abuse
of discretion, or otherwise not in accordance with law.”’” (quoting Bannum, Inc. v. United
States, 404 F.3d at 1351 (quoting 5 U.S.C. § 706(2)(A) (2000)))); NVT Techs., Inc. v.
United States, 370 F.3d at 1159 (“Bid protest actions are subject to the standard of review
established under section 706 of title 5 of the Administrative Procedure Act (‘APA’), 28
U.S.C. § 1491(b)(4) (2000), by which an agency’s decision is to be set aside only if it is
‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,’ 5
U.S.C. § 706(2)(A) (2000).” (internal citations omitted)); Info. Tech. & Applications Corp.
(2) hold unlawful and set aside agency action, findings, and conclusions
found to be—
(A) arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law;
(B) contrary to constitutional right, power, privilege, or immunity;
(C) in excess of statutory jurisdiction, authority, or limitations, or short
of statutory right;
(D) without observance of procedure required by law;
(E) unsupported by substantial evidence in a case subject to sections
556 and 557 of this title or otherwise reviewed on the record of
an agency hearing provided by statute; or
(F) unwarranted by the facts to the extent that the facts are subject
to trial de novo by the reviewing court.
In making the foregoing determinations, the court shall review the whole
record or those parts of it cited by a party, and due account shall be taken
of the rule of prejudicial error.
5 U.S.C. § 706.
26
v. United States, 316 F.3d at 1319 (“Consequently, our inquiry is whether the Air Force’s
procurement decision was ‘arbitrary, capricious, an abuse of discretion, or otherwise not
in accordance with law.’ 5 U.S.C. § 706(2)(A) (2000).”); Synergy Sols., Inc. v. United
States, 133 Fed. Cl. 716, 734 (2017) (citing Banknote Corp. of Am. v. United States, 365
F.3d at 1350); Eco Tour Adventures, Inc. v. United States, 114 Fed. Cl. at 22; Contracting,
Consulting, Eng’g LLC v. United States, 104 Fed. Cl. 334, 340 (2012). “In a bid protest
case, the agency’s award must be upheld unless it is ‘arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law.’” Turner Constr. Co. v. United States,
645 F.3d 1377, 1383 (Fed. Cir.) (quoting PAI Corp. v. United States, 614 F.3d at 1351),
reh’g en banc denied (Fed. Cir. 2011); see also Tinton Falls Lodging Realty, LLC v. United
States, 800 F.3d at 1358 (“In applying this [arbitrary and capricious] standard to bid
protests, our task is to determine whether the procurement official’s decision lacked a
rational basis or the procurement procedure involved a violation of a regulation or
procedure.” (citing Savantage Fin. Servs., Inc. v. United States, 595 F.3d at 1285-86));
Glenn Def. Marine (ASIA), PTE Ltd. v. United States, 720 F.3d 901, 907 (Fed. Cir.), reh’g
en banc denied (Fed. Cir. 2013); Nat’l Gov’t Servs., Inc. v. United States, 137 Fed. Cl.
715, 735 (2018) (quoting Centech Grp., Inc. v. United States, 554 F.3d 1029, 1037 (Fed.
Cir. 2009)); McVey Co., Inc. v. United States, 111 Fed. Cl. 387, 402 (2013) (“The first step
is to demonstrate error, that is, to show that the agency acted in an arbitrary and
capricious manner, without a rational basis or contrary to law.”); PlanetSpace, Inc. v.
United States, 92 Fed. Cl. 520, 531-32 (“Stated another way, a plaintiff must show that
the agency’s decision either lacked a rational basis or was contrary to law.” (citing Weeks
Marine, Inc. v. United States, 575 F.3d at 1358)), subsequent determination, 96 Fed. Cl.
119 (2010).
The United States Supreme Court has identified sample grounds which can
constitute arbitrary or capricious agency action:
[W]e will not vacate an agency’s decision unless it “has relied on factors
which Congress has not intended it to consider, entirely failed to consider
an important aspect of the problem, offered an explanation for its decision
that runs counter to the evidence before the agency, or is so implausible
that it could not be ascribed to a difference in view or the product of agency
expertise.”
Nat’l Ass’n of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 658 (2007) (quoting
Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)); see
also F.C.C. v. Fox Television Stations, Inc., 556 U.S. 502, 552 (2009); Tinton Falls
Lodging Realty, LLC v. United States, 800 F.3d at 1358; Ala. Aircraft Indus., Inc.-
Birmingham v. United States, 586 F.3d 1372, 1375 (Fed. Cir. 2009), reh’g and reh’g en
banc denied (Fed. Cir. 2010); In re Sang Su Lee, 277 F.3d 1338, 1342 (Fed. Cir. 2002)
(“[T]he agency tribunal must present a full and reasoned explanation of its decision. . . .
The reviewing court is thus enabled to perform meaningful review . . . .”); Textron, Inc. v.
United States, 74 Fed. Cl. 277, 285-86 (2006), appeal dismissed sub nom. Textron, Inc.
v. Ocean Technical Servs., Inc., 223 F. App’x 974 (Fed. Cir. 2007). The United States
Supreme Court also has cautioned, however, that “courts are not free to impose upon
27
agencies specific procedural requirements that have no basis in the APA.” Pension
Benefit Guar. Corp. v. LTV Corp., 496 U.S. 633, 654 (1990).
Under an arbitrary or capricious standard, the reviewing court should not substitute
its judgment for that of the agency, but should review the basis for the agency decision to
determine if it was legally permissible, reasonable, and supported by the facts. See Motor
Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. at 43 (“The scope of
review under the ‘arbitrary and capricious’ standard is narrow and a court is not to
substitute its judgment for that of the agency.”); see also Dell Fed. Sys., L.P. v. United
States, 906 F.3d 982, 990 (Fed. Cir. 2018); Turner Constr. Co., Inc. v. United States, 645
F.3d at 1383; R & W Flammann GmbH v. United States, 339 F.3d 1320, 1322 (Fed. Cir.
2003) (citing Ray v. Lehman, 55 F.3d 606, 608 (Fed. Cir.), cert. denied, 516 U.S. 916
(1995)); Synergy Sols., Inc. v. United States, 133 Fed. Cl. at 735 (citing Impresa
Construzioni Geom. Domenico Garufi v. United States, 238 F.3d at 1332-33). “‘“If the
court finds a reasonable basis for the agency’s action, the court should stay its hand even
though it might, as an original proposition, have reached a different conclusion as to the
proper administration and application of the procurement regulations.”’” Weeks Marine,
Inc. v. United States, 575 F.3d at 1371 (quoting Honeywell, Inc. v. United States, 870
F.2d 644, 648 (Fed. Cir. 1989) (quoting M. Steinthal & Co. v. Seamans, 455 F.2d 1289,
1301 (D.C. Cir. 1971))); Limco Airepair, Inc. v. United States, 130 Fed. Cl. 544, 550 (2017)
(citation omitted); Jordan Pond Co., LLC v. United States, 115 Fed. Cl. 623, 631 (2014);
Davis Boat Works, Inc. v. United States, 111 Fed. Cl. 342, 349 (2013); Norsat Int’l
[America], Inc. v. United States, 111 Fed. Cl. 483, 493 (2013); HP Enter. Servs., LLC v.
United States, 104 Fed. Cl. 230, 238 (2012); Vanguard Recovery Assistance v. United
States, 101 Fed. Cl. 765, 780 (2011).
Stated otherwise by the United States Supreme Court:
Section 706(2)(A) requires a finding that the actual choice made was not
“arbitrary, capricious, an abuse of discretion, or otherwise not in accordance
with law.” To make this finding the court must consider whether the decision
was based on a consideration of the relevant factors and whether there has
been a clear error of judgment. Although this inquiry into the facts is to be
searching and careful, the ultimate standard of review is a narrow one. The
court is not empowered to substitute its judgment for that of the agency.
Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971) (internal citations
omitted), abrogated on other grounds by Califano v. Sanders, 430 U.S. 99 (1977); see
also U.S. Postal Serv. v. Gregory, 534 U.S. 1, 6-7 (2001); Bowman Transp., Inc. v.
Arkansas-Best Freight Sys., Inc., 419 U.S. 281, 285 (1974), reh’g denied, 420 U.S. 956
(1975); Co-Steel Raritan, Inc. v. Int’l Trade Comm’n, 357 F.3d 1294, 1309 (Fed. Cir. 2004)
(In discussing the “arbitrary, capricious, and abuse of discretion, or otherwise not in
accordance with the law” standard, the Federal Circuit stated: “the ultimate standard of
review is a narrow one. The court is not empowered to substitute its judgment for that of
the agency.”); In re Sang Su Lee, 277 F.3d at 1342; Advanced Data Concepts, Inc. v.
United States, 216 F.3d at 1058 (“The arbitrary and capricious standard applicable here
28
is highly deferential. This standard requires a reviewing court to sustain an agency action
evincing rational reasoning and consideration of relevant factors.” (citing Bowman
Transp., Inc. v. Arkansas-Best Freight Sys., Inc., 419 U.S. at 285)); Lockheed Missiles &
Space Co. v. Bentsen, 4 F.3d 955, 959 (Fed. Cir. 1993); By Light Prof’l IT Servs., Inc. v.
United States, 131 Fed. Cl. 358, 366 (2017); BCPeabody Constr. Servs., Inc. v. United
States, 112 Fed. Cl. 502, 508 (2013) (“The court ‘is not empowered to substitute its
judgment for that of the agency,’ and it must uphold an agency’s decision against a
challenge if the ‘contracting agency provided a coherent and reasonable explanation of
its exercise of discretion.’” (internal citations omitted) (quoting Keeton Corrs., Inc. v.
United States, 59 Fed. Cl. 753, 755, recons. denied, 60 Fed. Cl. 251 (2004); and Axiom
Res. Mgmt., Inc. v. United States, 564 F.3d at 1381)), appeal dismissed, 559 F. App’x
1033 (Fed. Cir. 2014); Supreme Foodservice GmbH v. United States, 109 Fed. Cl. at 382;
Alamo Travel Grp., LP v. United States, 108 Fed. Cl. 224, 231 (2012); ManTech
Telecomms. & Info. Sys. Corp. v. United States, 49 Fed. Cl. 57, 63 (2001), aff’d, 30 F.
App’x 995 (Fed. Cir. 2002).
According to the United States Court of Appeals for the Federal Circuit:
Effective contracting demands broad discretion. Burroughs Corp. v. United
States, 223 Ct. Cl. 53, 617 F.2d 590, 598 (1980); Sperry Flight Sys. Div. v.
United States, 548 F.2d 915, 921, 212 Ct. Cl. 329 (1977); see NKF Eng’g,
Inc. v. United States, 805 F.2d 372, 377 (Fed. Cir. 1986); Tidewater
Management Servs., Inc. v. United States, 573 F.2d 65, 73, 216 Ct. Cl. 69
(1978); RADVA Corp. v. United States, 17 Cl. Ct. 812, 819 (1989), aff’d, 914
F.2d 271 (Fed. Cir. 1990). Accordingly, agencies “are entrusted with a good
deal of discretion in determining which bid is the most advantageous to the
Government.” Tidewater Management Servs., 573 F.2d at 73, 216 Ct. Cl.
69.
Lockheed Missiles & Space Co. v. Bentsen, 4 F.3d at 958-59; see also Res-Care, Inc. v.
United States, 735 F.3d 1384, 1390 (Fed. Cir.) (“DOL [Department of Labor], as a federal
procurement entity, has ‘broad discretion to determine what particular method of
procurement will be in the best interests of the United States in a particular situation.’”
(quoting Tyler Constr. Grp. v. United States, 570 F.3d 1329, 1334 (Fed. Cir. 2009))), reh’g
en banc denied (Fed. Cir. 2014); Grumman Data Sys. Corp. v. Dalton, 88 F.3d 990, 995
(Fed. Cir. 1996); Geo-Med, LLC v. United States, 126 Fed. Cl. 440, 449 (2016); Cybertech
Grp., Inc. v. United States, 48 Fed. Cl. 638, 646 (2001) (“The court recognizes that the
agency possesses wide discretion in the application of procurement regulations.”);
Furthermore, according to the United States Court of Appeals for the Federal Circuit:
Contracting officers “are entitled to exercise discretion upon a broad range
of issues confronting them in the procurement process.” Impresa
Construzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324,
1332 (Fed. Cir. 2001) (internal quotation marks omitted). Accordingly,
procurement decisions are subject to a “highly deferential rational basis
review.” CHE Consulting, Inc. v. United States, 552 F.3d 1351, 1354 (Fed.
29
Cir. 2008) (internal quotation marks omitted).
PAI Corp. v. United States, 614 F.3d at 1351; see also AgustaWestland N. Am., Inc. v.
United States, 880 F.3d 1326, 1332 (Fed. Cir. 2018) (“Where, as here, a bid protester
challenges the procurement official’s decision as lacking a rational basis, we must
determine whether ‘the contracting agency provided a coherent and reasonable
explanation of its exercise of discretion,’ recognizing that ‘contracting officers are entitled
to exercise discretion upon a broad range of issues confronting them in the procurement
process.’” (quoting Impresa Construzioni Geom. Domenico Garufi v. United States, 238
F.3d at 1332-33 (internal quotation marks and citation omitted))); Weeks Marine, Inc. v.
United States, 575 F.3d at 1368-69 (“We have stated that procurement decisions ‘invoke
[ ] “highly deferential” rational basis review.’ Under that standard, we sustain an agency
action ‘evincing rational reasoning and consideration of relevant factors.’” (alteration in
original) (quoting CHE Consulting, Inc. v. United States, 552 F.3d at 1354 (quoting
Advanced Data Concepts, Inc. v. United States, 216 F.3d at 1058))).
A disappointed bidder has the burden of demonstrating the arbitrary and capricious
nature of the agency decision by a preponderance of the evidence. See Tinton Fall
Lodging Realty, LLC v. United Sates, 800 F.3d at 1364; see also Grumman Data Sys.
Corp. v. Dalton, 88 F.3d at 995-96; Enhanced Veterans Sols., Inc. v. United States, 131
Fed. Cl. 565, 578 (2017); Davis Boat Works, Inc. v. United States, 111 Fed. Cl. at 349;
Contracting, Consulting, Eng’g LLC v. United States, 104 Fed. Cl. at 340. The Federal
Circuit has indicated that “[t]his court will not overturn a contracting officer’s determination
unless it is arbitrary, capricious, or otherwise contrary to law. To demonstrate that such a
determination is arbitrary or capricious, a protester must identify ‘hard facts’; a mere
inference or suspicion . . . is not enough.” PAI Corp. v. United States, 614 F.3d at 1352
(citing John C. Grimberg Co. v. United States, 185 F.3d 1297, 1300 (Fed. Cir. 1999)); see
also Turner Constr. Co., Inc. v. United States, 645 F.3d at 1387; Sierra Nevada Corp. v.
United States, 107 Fed. Cl. 735, 759 (2012); Filtration Dev. Co., LLC v. United States, 60
Fed. Cl. 371, 380 (2004).
A bid protest proceeds in two steps. First . . . the trial court determines
whether the government acted without rational basis or contrary to law when
evaluating the bids and awarding the contract. Second . . . if the trial court
finds that the government’s conduct fails the APA review under 5 U.S.C.
§ 706(2)(A), then it proceeds to determine, as a factual matter, if the bid
protester was prejudiced by that conduct.
Bannum, Inc. v. United States, 404 F.3d at 1351; T Square Logistics Servs. Corp. v.
United States, Fed. Cl. 550, 555 (2017); FirstLine Transp. Sec., Inc. v. United States, 119
Fed. Cl. 116, 126 (2014), appeal dismissed (Fed. Cir. 2015); Eco Tour Adventures, Inc.
v. United States, 114 Fed. Cl. at 22; Archura LLC v. United States, 112 Fed. Cl. at 496.
To prevail in a bid protest case, the protestor not only must show that the government’s
actions were arbitrary, capricious, or otherwise not in accordance with the law, but the
protestor also must show that it was prejudiced by the government’s actions. See 5 U.S.C.
§ 706 (“[D]ue account shall be taken of the rule of prejudicial error.”); see also Glenn Def.
30
Marine (ASIA), PTE Ltd. v. United States, 720 F.3d at 907 (“In a bid protest case, the
inquiry is whether the agency’s action was arbitrary, capricious, an abuse of discretion,
or otherwise not in accordance with law and, if so, whether the error is prejudicial.”); IT
Enter. Sols. JV, LLC v. United States, 132 Fed. Cl. 158, 173 (2017) (citing Bannum v.
United States, 404 F.3d at 1357-58); Linc Gov’t Servs., LLC v. United States, 96 Fed. Cl.
672, 694-96 (2010). In describing the prejudice requirement, the Federal Circuit also has
held that:
To prevail in a bid protest, a protester must show a significant, prejudicial
error in the procurement process. See Statistica, Inc. v. Christopher, 102
F.3d 1577, 1581 (Fed. Cir. 1996); Data Gen. Corp. v. Johnson, 78 F.3d
1556, 1562 (Fed. Cir. 1996). “To establish prejudice, a protester is not
required to show that but for the alleged error, the protester would have
been awarded the contract.” Data General, 78 F.3d at 1562 (citation
omitted). Rather, the protester must show “that there was a substantial
chance it would have received the contract award but for that error.”
Statistica, 102 F.3d at 1582; see CACI, Inc.-Fed. v. United States, 719 F.2d
1567, 1574-75 (Fed. Cir. 1983) (to establish competitive prejudice, protester
must demonstrate that but for the alleged error, “‘there was a substantial
chance that [it] would receive an award--that it was within the zone of active
consideration.’” (citation omitted)).
Alfa Laval Separation, Inc. v. United States, 175 F.3d 1365, 1367 (Fed. Cir.), reh’g denied
(Fed. Cir. 1999); see also Glenn Def. Marine (ASIA), PTE Ltd. v. United States, 720 F.3d
at 912; Allied Tech. Grp., Inc. v. United States, 649 F.3d 1320, 1326 (Fed. Cir.), reh’g en
banc denied (Fed. Cir. 2011); Info. Tech. & Applications Corp. v. United States, 316 F.3d
at 1319; Impresa Construzioni Geom. Domenico Garufi v. United States, 238 F.3d at
1332-33; OMV Med., Inc. v. United States, 219 F.3d 1337, 1342 (Fed. Cir. 2000);
Advanced Data Concepts, Inc. v. United States, 216 F.3d at 1057; Stratos Mobile
Networks USA, LLC v. United States, 213 F.3d 1375, 1380 (Fed. Cir. 2000).
In Data General Corp. v. Johnson, the United States Court of Appeals for the
Federal Circuit wrote:
We think that the appropriate standard is that, to establish prejudice, a
protester must show that, had it not been for the alleged error in the
procurement process, there was a reasonable likelihood that the protester
would have been awarded the contract . . . . The standard reflects a
reasonable balance between the importance of (1) averting unwarranted
interruptions of and interferences with the procurement process and (2)
ensuring that protesters who have been adversely affected by allegedly
significant error in the procurement process have a forum available to vent
their grievances. This is a refinement and clarification of the “substantial
chance” language of CACI, Inc.-Fed. [v. United States], 719 F.2d at 1574.
31
Data Gen. Corp. v. Johnson, 78 F.3d 1556, 1562 (Fed. Cir.), reh’g denied, en banc
suggestion declined (Fed. Cir. 1996); see also Glenn Def. Marine (ASIA), PTE Ltd. v.
United States, 720 F.3d at 912; Bannum, Inc. v. United States, 404 F.3d at 1353, 1358
(“The trial court was required to determine whether these errors in the procurement
process significantly prejudiced Bannum . . . . To establish ‘significant prejudice’ Bannum
must show that there was a ‘substantial chance’ it would have received the contract award
but for the [government’s] errors” in the bid process. (citing Info. Tech. & Applications
Corp. v. United States, 316 F.3d at 1319; Alfa Laval Separation, Inc. v. United States,
175 F.3d at 1367; Statistica, Inc. v. Christopher, 102 F.3d at 1581; and Data Gen. Corp.
v. Johnson, 78 F.3d at 1562); see also Todd Constr., L.P. v. United States, 656 F.3d
1306, 1315 (Fed. Cir. 2011); Advanced Data Concepts, Inc. v. United States, 216 F.3d at
1057 (using a “reasonable likelihood” rule); Stratos Mobile Networks USA, LLC v. United
States, 213 F.3d at 1380 (using a “substantial chance” test); Am. Corr. Healthcare, Inc.
v. United States, 137 Fed. Cl. 395, 410 (2018) (using a “substantial chance” test); Vintage
Autoworks, Inc. v. United States, 132 Fed. Cl. 143, 149 (2017) (using a “substantial
chance” test); Active Network, LLC v. United States, 130 Fed. Cl. 421, 427 (2017) (using
a “substantial chance” test); Archura LLC v. United States, 112 Fed. Cl. at 496 (using a
“substantial chance” test); Info. Scis. Corp. v. United States, 73 Fed. Cl. 70, 96 (2006)
(using a “substantial chance” test), recons. in part, 75 Fed. Cl. 406 (2007).
In the above-captioned bid protest, Sigmatech argues that the Army “assigned
strengths to Digiflight for experience, expertise or proposed solutions that were (at best)
equal to those contained in Sigmatech’s quotation. Yet despite having an (at least)
equivalent - - and much more thoroughly detailed - - quotation, Sigmatech received only
‘comments.’” Sigmatech argues that the Army unreasonably and unequally evaluated
Sigmatech’s and DigiFlight’s proposed performance of SAMD Repair and Return and cost
analyses, as well as Sigmatech’s and DigiFlight’s understanding of financial databases.
Regarding SAMD Repair and Return, Sigmatech asserts that the Army awarded
DigiFlight a strength based on DigiFlight’s “substantial experience with R&R,” but the
Army “merely ‘commented’ on Sigmatech’s experience, and noted that it would be of
value to SAMD.” Sigmatech contends that “Sigmatech spent almost two full pages
describing its extensive experience with R&R.”
Sigmatech argues that the Army awarded DigiFlight a strength based on
DigiFlight’s [redacted] certified cost estimation analysts, notwithstanding that “Digiflight’s
quotation provides no insight into what [redacted] is, or why it is important.” Sigmatech
asserts “Sigmatech showed deep expertise with cost analyses,” but only received a
comment for its experience with cost analyses. Sigmatech contends that the Army
“completely ignored a host of other relevant information in Sigmatech’s quotation,
including: 1) the depth of Sigmatech’s expertise with specific financial systems; 2) its use
of best practices; 3) its understanding of the laws and regulations that apply to that
financial management; and 4) its experience with [redacted].”
Sigmatech also contends that the Army awarded DigiFlight a strength “for its
‘superior understanding’ of multiple financial databases to support its proprietary
[redacted] tool.” According to Sigmatech, the Army “completely overlooked that
32
Sigmatech also uses [redacted] and also has a deep understanding of the Agency’s
financial management needs.” (emphasis in original; internal references omitted).
Sigmatech asserts that Sigmatech’s quotation “included a graph describing how it had
developed [redacted] and, consistent with the DoD’s policy, it [redacted] would replace
legacy systems,” but Sigmatech “received no credit for its extensive [redacted] experience
and merely a passing comment regarding its development experience with [redacted].”
Sigmatech argues that “[i]t was patently unreasonable for the Agency to heap credit on
Digiflight’s experience with [redacted] development, while completely ignoring
Sigmatech’s development experience with [redacted].” Sigmatech argues that the Army’s
evaluation of SAMD Repair and Return, cost analyses, and understanding of financial
databases prejudiced Sigmatech because “[e]ach of these strengths it assigned Digiflight,
individually and combined, caused the Agency to conclude that Digiflight established
superior technical expertise.”
In defendant’s cross-motion for judgment on the administrative record, defendant
argues that “the Army’s evaluations were fair and equal, not disparate, with strengths
appropriately awarded to aspects of the offerors’ proposals which had merit or exceeded
the PWS requirements in a way that will be advantageous to the Army.” Defendant asserts
that “Sigmatech’s assertion of unequal treatment amounts to no more than a mere
disagreement with the evaluators.” According to defendant, the evaluators appropriately
determined that the DigiFlight’s detailed explanation of its experience and approach with
Repair and Return programs met the definition of a strength and that Sigmatech’s
proposal “merely recounted in less than two pages its experience with SAMD R&R in an
unremarkable way.” Defendant asserts that, although both Sigmatech and DigiFlight
described their approaches to cost analysis “in a way which generally met this
requirement, DigiFlight once again went beyond merely meeting the requirement by
offering employees who were trained and certified in using [redacted] for cost analysis.”
Defendant also contends that the Army’s decision to award DigiFlight a strength for its
use of [redacted] was rational because DigiFlight’s “unique skillset with [redacted] and
familiarity with other systems, in the evaluators’ determination, would increase the
efficiency of financial management of FMS cases and was worthy of a strength.”
In defendant-intervenor’s cross-motion for judgment on the administrative record,
defendant-intervenor argued that Sigmatech has failed to establish an unequal evaluation
of Sigmatech’s and DigiFlight’s Technical Expertise factor because “the truth is that
Sigmatech’s quotation lacked information and was not equal to DigiFlight’s quotation.”
Defendant-intervenor contends that protestor has failed to establish prejudice because,
“[e]ven assuming for the sake of argument that Sigmatech could prevail on one or more
of the three instances for which it claims it should have received an additional strength,
Sigmatech still could not reach the five strengths assigned to DigiFlight.”
The Federal Acquisition Regulation (FAR) requires that contracting officers
“[e]nsure that contractors receive impartial, fair, and equitable treatment.” See FAR
§ 1.602-2(b) (2018). “[I]t is beyond peradventure that a contracting agency must treat all
offerors equally, evaluating proposals evenhandedly against common requirements and
evaluation criteria.” Banknote Corp. of Am. v. United States, 56 Fed. Cl. 377, 383 (2003)
33
(citing Seattle Sec. Servs., Inc. v. United States, 45 Fed. Cl. 560, 569 (2000)); see also
Active Network, LLC v. United States, 130 Fed. Cl. at 429 (quoting CW Gov’t Travel, Inc.
v. United States, 110 Fed. Cl. at 490); Chenega Mgmt., LLC. v. United States, 96 Fed.
Cl. 556, 585 (2010) (“[U]nequal treatment claims are the ‘quintessential example of
conduct which lacks a rational basis.’” (emphasis in original) (quoting Hunt Building Co.,
Ltd. v. United States, 61 Fed. Cl. 243, 273 (2004))). “Indeed, ‘an agency action is arbitrary
when the agency offered insufficient reasons for treating similar situations differently.’”
Afghan Am. Army Servs. Corp. v. United States, 106 Fed. Cl. 714, 729 (quoting
Transactive Corp. v. United States, 91 F.3d 232, 237 (D.C. Cir. 1996)), as supplemented,
106 Fed. Cl. 751 (2012); see also Redland Genstar, Inc. v. United States, 39 Fed. Cl.
220, 234 (1997) (quoting Transactive Corp. v. United States, 91 F.3d at 237). “Equal
treatment, however, does not require that all proposals be treated the same.” Chenega
Mgmt., LLC. v. United States, 96 Fed. Cl. at 585 (citing FAR § 1.102-2(c)(3)); see also
FAR § 1.102-2(c)(3) (2018) (“All contractors and prospective contractors shall be treated
fairly and impartially but need not be treated the same.”); Ernst & Young, LLP v. United
States, 136 Fed. Cl. 475, 515 (2018) (quoting FAR § 1.102-2(c)(3)). “[O]fferors who are
not similarly situated may be treated differently.” A-T Sols., Inc. v. United States, 122 Fed.
Cl. 170, 183 (2015) (citing NCL Logistics Co. v. United States, 109 Fed. Cl. 596, 626
(2013)); see also Lockheed Martin Corp. v. United States, 124 Fed. Cl. 709, 722 (2016)
(“To the extent proposals differ, the government may rationally take different action
regarding different proposals.”).
In the above-captioned bid protest, Sigmatech’s allegations of unequal treatment
focus on the strengths the Army assigned under the Technical Expertise factor to sections
2.1.2, 2.2.2, 2.1.1 and 2.1.312 of DigiFlight’s quotation, which corresponded to sections
2.1.2, 2.2.2., and 2.1.1 and 2.1.3 of the performance work statement attached to the
TORFQ. Sigmatech argues that, “[w]hile Sigmatech’s proposal described many of these
strengths, it did not receive the same credit.” Section 2.1.2 of the performance work
statement is titled “REQUISITION AND DOCUMENT STATUS” and states that the
“contractor shall collect data such as repair status, repair cost, and repair capability from
Corpus Christi Army Depot (CCAD) and Letterkenny Army Depot (LEAD), Security
Assistance Management Information System and other databases in order to update
requisition and document status reports and to provide recommendations on repair
requirements.” (capitalization in original).
In section 2.1.2 of Sigmatech’s quotation, Sigmatech stated that “Sigmatech
assists SAMD in managing the Saudi Arabia PAC-3 R&R for Electronic Control Unit kits
at LEAD by reviewing R&R Track Sheets to verify funding is not overcommitted and items
are repaired in a timely manner.” Sigmatech also stated that “[w]e utilize Web Repair of
Repairables (WebRoR - DoD’s Repair of Repairables Management System for FMS
customers) within the Security Cooperation Information Portal (SCIP) to track repair cost,
status, and capability of different repair entities.” Sigmatech described how Sigmatech
“optimize[d] component repair,” “update[d] requisition/document status,” and “utilize[d]
12As noted above, the Army assigned a single strength to section 2.1.1 and to section
2.1.3 of DigiFlight’s quotation.
34
WebRoR database to pull current information on R&R assets, along with gathering
tracking numbers from the SCIP database.”
In the Army’s Evaluation Worksheet addressing Sigmatech’s quotation, the Army
stated that Sigmatech’s quotation met all of the technical requirements in the performance
work statement. The Army did not assign a strength, which the TORFQ defined “as an
aspect of an offeror’s quote that has merit or exceeds specified performance capability
requirements in a way that will be advantageous to the Government during contract
performance,” to section 2.1.2 of Sigmatech’s quotation. The Army, however, provided a
comment referencing section 2.1.2 of Sigmatech’s quotation and stating that Sigmatech’s
“experience with Repair and Return (R&R) will assist SAMD in the analysis of the R&R
process and will provide recommendations to expedite and streamline the return of items
to the FMS customer.” Although Sigmatech asserts that Sigmatech should have received
a strength for its “substantial experience with R&R,” Sigmatech has not demonstrated
why it was irrational for the Army not to assign Sigmatech a strength for Sigmatech’s
experience with Repair and Return programs. In its quotation, Sigmatech did indicate that
it previously had provided Repair and Return support, but Sigmatech has not
demonstrated that Sigmatech’s previous support of Repair and Return programs
exceeded the requirements in the section 2.1.2 of the performance work statement in a
manner to warrant a strength. Moreover, the Army’s evaluators have broad discretion
when exercising technical judgment, “and consequently the court will interject its own
assessment only ‘in the absence of truly irrational conduct on the part of the agency.’”
See Vanguard Recovery Assistance v. United States, 101 Fed. Cl. 765, 783 (2011)
(quoting FirstLine Transp. Sec., Inc. v. United States, 100 Fed. Cl. 359, 397 (2011)). The
Army acknowledged Sigmatech’s experience with Repair and Return programs, which
the Army noted would assist the Army with the Repair and Return process, but Sigmatech
has not pointed to any material indicating that Sigmatech’s Repair and Return experience
exceeded the requirement in the performance work statement that a vendor collect repair
data and provide recommendations on repair requirements to such an extent as to render
the Army’s decision not to award Sigmatech a strength irrational.
The Army, however, assigned a strength to section 2.1.2 of DigiFlight’s quotation
and stated that:
The Offeror has provided extensive support to R&R programs for over three
decades. The Offeror has developed and will provide the SAMD [redacted].
The Offeror also plans to combine the existing expertise with the [redacted]
data collection methodology to refine the R&R process to automatically
collect Web Repair of Repairable (WebRoR) data for better tracking from
Corpus Christi Army Depot (CCAD), Letterkenny Army Depot (LEAD), and
industry.
The Offeror’s R&R experience will benefit SAMD by utilizing its innovative
SAMD [redacted] in conjunction with the WebRoR system to track and
assist in the management of repair requirements, requisition
documentation, contract information, and other major commands data to
35
generate R&R reports. The system along with the Offeror’s cited very
extensive experience with the SAMD R&R process will benefit SAMD by
increasing the amount of data and status information collected from CCAD,
LEAD, and industry.
Contrary to protestor’s argument at the oral argument that the Army “fail[ed] to describe
how a blanket statement [by DigiFlight] without any context, we have 30 years of
experience, is somehow a creation of a strength,” the Army’s decision to award DigiFlight
a strength under section 2.1.2 only was based in part on Team DigiFlight’s three decades
of Repair and Return experience.
In section 2.1.2 of DigiFlight’s quotation, DigiFlight had noted that “Team DigiFlight
has supported multiple country R&R programs for over three decades. We developed the
SAMD [redacted] to assist in managing UAE, Egypt, Saudi Arabia, and Kuwait FMS
cases.” DigiFlight stated in its quotation that:
Our approach is to continue to use our Team expertise, coupled with
[redacted] data collection methodology, to refine R&R processes and
automatically collect WebRoR data to track repair status, costs, and
capabilities from CCAD, LEAD, and OEMs/industry. In coordination with
USASAC, we streamline country notification processes and automate repair
recommendation, depot notification, and acceptance processes prior to
industry solicitation.
DigiFlight also stated that its “approach is to manage thousands of assets through
database systems that maintain accountability by tracking and monitoring R&R assets
from FMS Partner requests for repair through return-of-country assets.”
Section 2.1.2 of the performance work statement required that the contractor
collect data from Corpus Christi Army Depot and Letterkenny Army Depot in order to
update requisition reports and provide recommendations on repair requirements. The
Army identified Team DigiFlight’s development and provision of the SAMD [redacted] as
a benefit to the Army and noted that DigiFlight would be combining its experience with
[redacted], which is an [redacted] developed by Team DigiFlight, [redacted]. The Army
also indicated that Team DigiFlight’s experience with the SAMD [redacted], which Team
DigiFlight developed, will increase the amount of data and information received from
Corpus Christi Army Depot and Letterkenny Army Depot. The Army articulated a rational
basis for determining that section 2.1.2 of DigiFlight’s quotation exceeded the
requirements of the performance work statement and warranted assignment of a strength
because the Army determined that DigiFlight’s performance would refine the SAMD
Repair and Return process and increase the amount of Repair and Return data received.
Although disparate treatment claims “can succeed when protesters demonstrate
inconsistencies in subjective judgments,” see Enhanced Veterans Sols., Inc. v. United
States, 131 Fed. Cl. 565, 588 (2017), Sigmatech has asserted that it should have received
a strength because “Sigmatech demonstrated equal (at least) R&R experience” as
DigiFlight. Sigmatech overlooks the other benefits the Army identified in DigiFlight’s
36
quotation, such as DigiFlight’s ability to improve the Army’s Repair and Return program,
and does not identify information indicating that the Army improperly treated Sigmatech’s
quotation and DigiFlight’s quotation differently.
At the November 13, 2018 oral argument, counsel of record for protestor argued
that, in DigiFlight’s quotation, DigiFlight did not state that “Digiflight did not intend or
promise to use the [redacted]. It [DigiFlight] merely said that it [DigiFlight] had developed
it.” In DigiFlight’s quotation, DigiFlight divided its quotation into two parts, which were
labeled “Understanding” and “Methodology,” for each section in the performance work
statement. (emphasis and capitalization in original). Under the “Methodology” section of
DigiFlight’s quotation addressing section 2.1.2 of the performance work statement,
DigiFlight stated that “[w]e developed the [redacted],” and that “[o]ur tools track and assist
in the management of repair requirements, requisition documentation, contract
information, other major commands data, and to generate key R&R reports.” (emphasis
and capitalization in original). Because the statement that Team DigiFlight had developed
the SAMD [redacted] was in a section discussing DigiFlight’s proposed methodology for
performance of section 2.1.2 and in response to a requirement in section 2.1.2 addressing
the collection of repair data, the court finds that it was reasonable for the Army to conclude
that DigiFlight would use the SAMD [redacted] if awarded a task order under the TORFQ.
Regarding the single strength assigned to sections 2.1.1 and 2.1.3 of DigiFlight’s
quotation, Sigmatech asserts that the Army awarded DigiFlight a strength because of
DigiFlight’s use and understanding of [redacted], but overlooked Sigmatech’s use and
understanding of [redacted] and development of the [redacted], which is referred to by
the parties as [redacted]. Section 2.1.1 of the performance work statement stated that the
vendor shall “perform financial analyses, verification of FMS monies and provide input
and recommendations utilizing automated databases and systems,” “track case funding
consisting of country level, case level, line level and requisition level data using
databases,” and “develop and utilize an automated system for FMS financial data
collection. This system should access multiple FMS databases and work towards an
output that standardizes FMS financial status data reporting.” Section 2.1.3 required that
a vendor “provide recommendations regarding financial database programs for particular
systems and in the establishment of future databases for the budgetary support of the
FMS cases” and “provide maintenance of these financial databases for all FMS
requirements in order to provide status/information as input to required reports.”
In Sigmatech’s quotation, Sigmatech stated that Sigmatech employs FMS financial
analysts “with decades of relevant experience in supporting the diverse needs of ASAE
[Army Security Assistance Enterprise].” Under section 2.1.3, Sigmatech asserted:
We recommend and support the development of SAMD-unique financial
databases, which monitor and report on implemented FMS case line
budgets and expenditure. Sigmatech assists in the development and
maintenance of FAST financials, which is a compilation of financial reports
drawn from GFEBS, PBAS, SOMARDS, and DIFS financial databases.
37
Sigmatech’s quotation also addressed Sigmatech’s assistance with the development of
the [redacted], as Sigmatech stated:
We support the migration of legacy SA systems to [redacted], a DoD system
which will be common across MILDEPs (2.1.3.1). [redacted] will replace the
Army legacy systems for logistics and financial processes, such as CISIL
and PBAS. Sigmatech has provided SME support to the development of
this system, to include analysis of interfaces with the Army-wide GFEBS
accounting system. . . . [redacted] will provide the FMS customer with a
common and standard system for management of their FMS cases.
(emphasis in original).
In the Army’s Evaluation Worksheet, the Army indicated that Sigmatech’s
quotation met the performance requirements under sections 2.1.1 and 2.1.3 of the
TORFQ. The Army commented that, under section 2.1.1, Sigmatech’s “experience with
various Foreign Military Sales (FMS) financial systems is useful to SAMD in performing
financial analysis and providing input and recommendations.” Also under section 2.1.1,
the Army stated that, while Sigmatech’s “experience on the Saudi PATRIOT program is
valuable to understanding the importance of organization and financial tracking, it does
not support the PWS requirement of developing an automated database that provides
standardized reports from multiple systems.” Under section 2.1.3, the Army commented
that Sigmatech “cites experience under another organization’s task order in aiding in the
development [sic] the [redacted]. The offeror states this system will aid in case
management for the FMS customers and will also support SAMD Case Managers.” The
Army asserted that Sigmatech “demonstrates experience in aiding in the development of
a case management system however; details on how it will perform these tasks in support
of SAMD are not provided.”
Indeed, in section 2.1.3 of Sigmatech’s quotation, Sigmatech primarily focused on
the benefits the [redacted] eventually would bring to the Department of Defense when
implemented. Sigmatech did not indicate in its quotation when the [redacted] was
scheduled to be implemented and noted multiple times that the [redacted] still was being
developed. At the November 13, 2018 oral argument, counsel of record for protestor
noted that the date on which the Security Enterprise Solution is anticipated to be
implemented is “not in the record,” but asserted that “[m]y understanding is that it will be
in the next five years, but I don’t see anything in the record that describes that.” Counsel
of record for defendant stated that “some day down the road we may have this system
[redacted], maybe within the -- maybe within the life span of this contract, maybe not. As
-- it’s not beyond the pale to believe that a large software system being developed might
be delayed.” In the Army’s Evaluation Worksheet of Sigmatech’s quotation, the Army
indicated that Sigmatech’s generalized, broad statements about the future benefits of the
[redacted] did not explicitly address how Sigmatech would address the Army’s current
needs under section 2.1.3 of the performance work statement. The Army did not ignore
Sigmatech’s aid in developing the [redacted], but provided a comment in the Evaluation
Worksheet that Sigmatech had experience in assisting with the development of a case
38
management system and that Sigmatech had indicated that the [redacted] will aid in case
management for FMS customers. Sigmatech’s disagreement with the Army’s decision to
comment on the Sigmatech’s assistance with the development of the [redacted], but not
to award a strength for such assistance, is not sufficient to support Sigmatech’s claim that
the Army irrationally evaluated Sigmatech’s quotation. See Centerra Grp., LLC v. United
States, 135 Fed. Cl. 587, 604 (2017) (“Disagreements with a procuring agency’s
evaluation, ‘no matter how vigorous, fall far short of meeting the heavy burden of
demonstrating that the findings in question were the product of an irrational process and
hence were arbitrary and capricious.’” (quoting Banknote Corp. of Am. v. United States,
56 Fed. Cl. at 384)); see also Kvichak Marine Indus., Inc. v. United States, 118 Fed. Cl.
385, 391 (2014) (“Disagreement with the agency’s decision is not enough for Kvichak
[protestor] to prevail.” (citations omitted)).
In DigiFlight’s quotation, DigiFlight had stated:
Team DigiFlight uses [redacted] to collect financial transactions
(commitments, obligations, and disbursements), automate financial
analysis, generate standardized SAMD financial reports, and provide inputs
and recommendations based on the analysis and reports. Our Team
developed [redacted], maintains the underlying code, and
recommends [redacted] for future SAMD Division and Branch support.
As shown in Figure 2.1, we maintain and update [redacted] standardized
FMS financial reports by accessing access and extract financial data from
[redacted]. [redacted]-generated standardized reports provide automated
comparisons of source data to quickly identify anomalies, verify [redacted]
funding sources, and generate case funding and budget execution reports.
Our Team’s [redacted] analysts facilitate case funding tracking and report
at the country, case, line, and requisition levels. We collect, process, and
report [redacted] and [redacted] data to enhance financial case status
(emphasis in original). DigiFlight asserted that, with “the fivefold increase in AMCOM FMS
cases over the past decade, an automated FMS financial data collection and
standardized reporting system, such as [redacted], is essential to the collection of data to
support budgetary processes for management of the $53.2B in undelivered value for over
1,000 SAMD-managed FMS cases.” According to DigiFlight, “Team-developed
[redacted] automatically retrieves and merges critical FMS financial records from legacy
databases, improves accuracy and efficiency, and [redacted].” (emphasis in original).
DigiFlight further asserted that “[o]ur [redacted] growth plan is used to provide
recommendations to SAMD regarding database programs for specific systems and to
establish future Team-developed automated solutions. Our programming team maintains
these tools to meet SAMD future requirements.”
Regarding section 2.1.1 and 2.1.3 of DigiFlight’s quotation, in the Evaluation
Worksheet of DigiFlight’s quotation, the Army awarded DigiFlight a strength and stated
that:
39
The Offeror’s proposal details its response to the Task Order Request for
Quotation (TORFQ) and the USG Performance Work Statement’s
requirements for financial databases, analysis, tracking and use, as well as
the updates and maintenance of those databases. The Offeror has
developed a financial reporting system called [redacted], which accesses
the pertinent SAMD financial systems to include [redacted]. The Offeror
demonstrates superior understanding of multiple SAMD databases
necessary to support its proprietary [redacted] system that provides an
exceptional level of financial support by maintaining and updating [redacted]
standardized reports to aid in quickly identifying anomalies and for case
managers to use in managing and executing Foreign Military Sales (FMS)
case lines. The [redacted] system also collects, processes, and reports data
from [redacted]. The Offeror utilizes legacy systems for reporting,
maintaining the underlying code for [redacted], and providing
recommendations and plans for future growth of the [redacted] system to
support SAMD’s evolving needs.
The Offeror’s specialized knowledge and experience in both legacy and
current data systems will be advantageous to SAMD in managing case line
and contract financials. The use of the legacy systems and the innovative
development of the [redacted] system will enable the Offeror to provide
critical recommendations to SAMD for future growth and exceptional
support for program resource control. The Offeror’s development and
maintenance of its innovative [redacted] system will also benefit SAMD by
exporting data from multiple SAMD financial databases and will provide a
consistent standardized report. The Offeror’s unique skillset with [redacted]
and legacy systems will increase mission efficiency of financial
management by reducing the time to pull reports from multiple systems,
simplifying data utilization, and providing automated financial solutions to
the FMS case managers.
Consistent with the Army’s rationale for awarding DigiFlight’s quotation a strength,
DigiFlight’s quotation discussed, at length, that DigiFlight had developed and maintained
the underlying code for [redacted] and explained that [redacted] automatically retrieved
existing FMS records from legacy databases, a requirement listed in section 2.1.1 of the
performance work statement. The Army identified DigiFlight’s experience with [redacted]
and legacy systems as providing DigiFlight with the ability to increase the efficiency of
collecting financial data, which the Army stated would be beneficial to the Army by
reducing the amount of time spent retrieving financial data. By maintaining the underlying
code to [redacted], the Army also stated that DigiFlight would be able to further develop
[redacted] to support “SAMD’s evolving needs,” which appears to relate to the
requirement in section 2.1.3 of the performance work statement that a vendor provide
recommendations regarding the “establishment of future databases for the budgetary
support of the FMS cases.” The Army’s conclusion appears to be supported by
DigiFlight’s quotation, as DigiFlight’s “[redacted] plan” is to provide to the Security
Assistance Management Directorate recommendations “regarding database programs
40
for specific systems and to establish future Team-developed automated solutions.”
According to the Army’s Evaluation Worksheet, DigiFlight’s experience with legacy
systems and [redacted] also is advantageous to the Army because it permits DigiFlight to
support “future growth and exceptional support for program resource control,” which
appears to be supported by DigiFlight’s statement that its resource management
approach “provides a low-cost, time saving, and automated data collection
methodology coupled with analytical processes to track country, case, and line
execution; facilitates auditability and traceability; and provides total program resource
control.” (emphasis in original).
Although Sigmatech did state in its proposal that Sigmatech “[redacted],”
Sigmatech only mentioned [redacted] once, and Sigmatech did not elaborate on the
benefits Sigmatech’s use [redacted] would bring to the Security Assistance Management
Directorate in a manner remotely similar to DigiFlight’s description. DigiFlight explained
and emphasized, at length, the benefits DigiFlight’s use of [redacted] provided to the
Security Assistance Management Directorate and how DigiFlight could further alter
[redacted] to meet the developing needs of the Security Assistance Management
Directorate. Sigmatech did not assert that it maintained the underlying code for [redacted]
or that Sigmatech had the ability to develop [redacted] to meet the needs of the Security
Assistance Management Directorate. Sigmatech’s discussion of [redacted] and
DigiFlight’s discussion of [redacted] differed in detail and in substance, and the Army
articulated a basis for assigning a strength to sections 2.1.1 and 2.1.3 of DigiFlight’s
quotation. As such, the Army did not engage in disparate treatment when awarding a
strength to sections 2.1.1 and 2.1.3 of DigiFlight’s quotation. Moreover, the Army’s
evaluators had discretion when assigning strengths to quotations received by the Army,
and the strength assigned to sections 2.1.1 and 2.1.3 of DigiFlight’s quotation was rational
and supported by the administrative record.
Regarding the strength the Army assigned to section 2.2.2 of DigiFlight’s quotation,
section 2.2.2 of the performance work statement stated that the vendor shall “perform
cost estimating and analysis of data prepared and furnished by other contractors and
USG agencies” and “provide analysis of the life cycle cost requirements for FMS
programs.” In section 2.2.2 of DigiFlight’s quotation, DigiFlight had stated that “Team
DigiFlight uses our Team’s [redacted] cost estimating analysts to conduct line-by-line
reviews of LOR data provided by PMs, OEMs, and USG agencies. We provide thorough
analyses of life cycle costs and recommendations during reviews with SAMD, FMS
Partners, and prime contractors.” In the Army’s Evaluation Worksheet discussing
DigiFlight’s quotation, the Army assigned a strength to section 2.2.2 of DigiFlight’s
quotation and stated:
The Offeror demonstrates the unique ability to perform cost analysis by
utilizing their [redacted] cost estimation analysts, which are personnel
trained and certified using cost analysis methods. This training, already
provided to the Offeror’s existing workforce, will improve the quality of
detailed cost assessments to SAMD.
41
The Army’s Evaluation Worksheet of DigiFlight’s quotation indicates the Army
determined that training in the use of [redacted] was a desirable quality for a vendor to
possess because, under section 2.2.2 of the performance work statement, vendors were
required to perform cost estimating and analysis. The Army’s evaluators explained that
the Army believed that DigiFlight’s pre-existing training in [redacted] would improve the
quality of cost assessments provided to the Security Assistance Management Directorate.
Although the Army’s discussion of how training in [redacted] will improve the quality of
cost assessments is not of ideal clarity, the Army has articulated a rational reason to
award DigiFlight a strength, as training in [redacted] appears to support the Army’s
requirement of cost estimating and analysis of cost data, as well as the Army’s conclusion
that certification and training in the use of [redacted] will improve the quality of cost
assessments. See Info. Scis. Corp. v. United States, 73 Fed. Cl. 70, 108 (2006), recons.
granted in part on other grounds, 75 Fed. Cl. 406 (2007). Moreover, the “assignment of
technical ratings is a matter that is within the broad discretion of the procuring agency,
and this court will not intrude into that area in the absence of truly irrational conduct on
the part of the agency.” See FirstLine Transp. Sec., Inc. v. United States, 100 Fed. Cl. at
397; see also Kiewit Infrastructure W. Co. v. United States, 137 Fed. Cl. 689, 706 (2018)
(“The court will not second-guess the Corps’ technical judgment.”). Sigmatech has not
demonstrated why it was irrational for the Army to conclude that training in [redacted] did
not exceed the requirement of cost estimating and analysis of cost data in section 2.2.2
of the performance work statement.
As noted by Sigmatech, the Army did not assign a strength to section 2.2.2 of
Sigmatech’s quotation, although the Army determined that Sigmatech’s quotation met the
requirements of the performance work statement. In Sigmatech’s quotation, Sigmatech
did discuss its technical ability to perform cost analyses. Although Sigmatech argues that
Sigmatech “devoted almost a full page describing its approach to the lifecycle cost
requirement, including the disciplines it uses and how those disciplines relate to SAMD’s
mission,” Sigmatech’s disagreement with the Army’s judgment, without more, is not
sufficient to overcome the Army’s judgment when assigning strengths. See FFL Pro LLC
v. United States, 124 Fed. Cl. 536, 558 (2015) (stating that a protestor had “not met its
heavy burden of establishing” that the agency’s evaluation was unreasonable when the
protestor’s “contentions amount to nothing more than disagreements with the strengths
assigned” by the agency). Sigmatech’s quotation and DigiFlight’s quotation differed, as
Sigmatech did not indicate that its staff were trained or certified in [redacted]. Sigmatech
has not demonstrated why the Army engaged in disparate treatment when assigning a
strength to section 2.2.2 of DigiFlight’s quotation based on training that Sigmatech did not
discuss in its quotation. See Enhanced Veterans Sols., Inc. v. United States, 131 Fed.
Cl. at 588 (“When a court is not convinced that the aspects of the proposals brought to its
attention are indistinguishable for purposes of the evaluation, then the exercise instead
crosses the line and involves the second guessing of ‘minutiae’ which we are not allowed
to undertake, see E.W. Bliss Co. [v. United States], 77 F.3d [445,] 449 [(Fed. Cir. 1996)].”).
In evaluating the vendors’ quotations, the Army is entitled to a presumption of
regularity, as “[t]here is a ‘strong presumption that government officials act correctly,
honestly, and in good faith when considering bids.’” McVey Co., Inc. v. United States, 111
42
Fed. Cl. at 403-04 (quoting Savantage Fin. Servs., Inc. v. United States, 86 Fed. Cl. 700,
703 (2009), aff’d, 595 F.3d 1282 (Fed. Cir. 2010)); see also Pyramid Real Estate Servs.,
LLC v. United States, 95 Fed. Cl. 125, 134 (2010) (citation omitted). Sigmatech has not
shown that the Army’s evaluators acted improperly or otherwise acted not in accordance
with the law when evaluating Sigmatech’s quotation or DigiFlight’s quotation. Sigmatech,
therefore, has failed to show that the Army engaged in any disparate treatment when
evaluating DigiFlight’s quotation and Sigmatech’s quotation or that the Army acted
irrationally by failing to award strengths to Sigmatech’s quotation as suggested by
Sigmatech.13
Sigmatech also asserts that the Army’s Best Value and Fair and Reasonable
Determination was flawed. Sigmatech states that Sigmatech and DigiFlight both received
a rating of outstanding under the Risk Mitigation and Management factor and that
Sigmatech proposed a lower price. Sigmatech asserts that the Army made award to
DigiFlight based on a “perceived distinction between the offerors’ expertise under the
Technical Expertise Factor,” and that the Army “was wrong to do so.” Sigmatech argues
that the Army “improperly attributed Digiflight with development credit for [redacted],” but
that “Digiflight did not develop [redacted], nor did it claim to have done so.” Sigmatech
argues that, “[s]imilarly, Digiflight failed to explain how it would use both the [redacted]
and the [redacted] system.” According to Sigmatech, “just as problematic, was the
Agency’s unequal evaluation of proposals,” which Sigmatech asserts “zeroed-in on the
[redacted] system as the key technological discriminator,” but “never accounted for
Sigmatech’s use of the [redacted] system.” Sigmatech also contends that:
Sigmatech’s proposal demonstrated its participation in the development of
[redacted] - - the program that will replace [redacted]. But that participation
was not mentioned at all in the contemporaneous evaluation record, and
certainly was not the basis of a strength as was Digiflight’s participation in
the development of other tools. That is impermissible.
(internal references and citation omitted).
Defendant contends that the Army’s source selection decision was rational and
that Sigmatech’s argument to the contrary “is no more than a continuation of its unequal
treatment arguments addressed above.” Defendant argues that the Army’s source
selection decision was “comprehensively discusses” “[o]ver 27 pages,” and that “it is
difficult to conceive of how the contracting officer could have provided more of an
explanation or documentation of the award decision rationale.” Defendant contends:
Sigmatech does identify one minor error in the best value determination. In
the summary of the evaluation findings contained in the best value
13 The GAO also rejected Sigmatech’s claim that the Army unreasonably evaluated
Sigmatech’s quotation and concluded that Sigmatech’s “disagreement with the agency’s
judgment does not provide a basis to sustain the protest.” See Sigmatech, Inc., 2018 WL
5110874, at *4 (citation omitted).
43
discussion, [redacted] was inadvertently listed as one of the tools developed
by Team DigiFlight. However, the summary also omitted what the
evaluators noted as a strength in DigiFlight’s proposal related to [redacted]:
offering of cost analysts trained and certified in the [redacted] system. All
the strengths assigned to each offeror were listed correctly at the beginning
of the SSD [source selection decision], but due to a scrivener’s error, when
DigiFlight’s strengths were summarized for the best value discussion,
DigiFlight’s strength related to [redacted] was noted incorrectly.
This minor error did not materially impact the result of the best value
determination in any way, because it did not involve adding an extra
strength to DigiFlight or taking one away from Sigmatech. Rather, this minor
error merely mischaracterized in the summary a strength correctly recorded
for the particular PWS requirement and recognized earlier in the evaluation
document.
(internal references omitted).
In defendant-intervenor’s cross-motion for judgment on the administrative record,
defendant-intervenor likewise asserts that the Army’s source selection was rational and
supported by the administrative record. According to defendant-intervenor, “[b]ecause
Sigmatech’s evaluation claims fail, so does its objection to the Source Selection
Decision.”
The parties in the above-captioned bid protest have stipulated that the “TORFQ
was issued pursuant to the Army’s AMCOM EXPRESS Blanket Purchase Agreements
and the procurement procedures of Federal Acquisition Regulation (FAR) 8.405-3(c).”
(capitalization in original). The TORFQ stated that the procurement was being conducted
under FAR Subpart 8.4, and that award “will be based on the quotation representing the
best value, using the evaluation procedures outlined below.” Under FAR § 8.405-3(c)
(2018), when an order placed against a multiple-award blanket purchase agreement14 will
exceed the simplified acquisition threshold, such as the procurement under the TORFQ,
the agency placing the order shall:
(1) Provide an RFQ to all BPA holders offering the required supplies or
services under the multiple-award BPAs, to include a description of the
supplies to be delivered or the services to be performed and the basis upon
which the selection will be made;
(2) Afford all BPA holders responding to the RFQ an opportunity to submit
a quote; and
14 The Army’s Best Value and Fair and Reasonable Determination states that the
“EXPRESS Program BPAs are multiple-award task order type contract vehicles with
provisions for time (labor hours at a fixed rate) and material, travel, and other direct costs
(ODCs) on a cost reimbursement basis.” (capitalization in original).
44
(3) Fairly consider all responses received and make award in accordance
with the selection procedures.
FAR § 8.405-3(c)(iii)(A). The agency “shall document evidence of compliance with these
procedures and the basis for the award decision.” FAR § 8.405(c)(iii)(B).
When determining which quotation offers the best value to the government in a
procurement utilizing the FSS, “[p]rocurement officials have substantial discretion.” See
Allied Tech. Grp., Inc. v. United States, 94 Fed. Cl. at 49 (citing Blackwater Lodge &
Training Ctr., Inc. v. United States, 86 Fed. Cl. 488, 514 (2009)); see also Idea Int’l, Inc.
v. United States, 74 Fed. Cl. 129, 140 (2006) (analyzing a protest challenging an award
under the FSS and stating that “[t]he Court is mindful that the agency’s evaluation and
award decision in a best value procurement is an area of wide agency discretion”
(citations omitted)). When reviewing an agency’s “FAR Part 8 tradeoff analysis, the Court
will analyze the CO’s tradeoff decision to determine whether it is reasonable and within
the agency’s discretion.” Distributed Sols., Inc. v. United States, 106 Fed. Cl. 1, 24 (2012)
(citing Allied Tech. Grp., Inc. v. United States, 94 Fed. Cl. at 50), aff’d, 500 F. App’x 955
(Fed. Cir. 2013). When a contracting officer reasonably exercises independent judgment
and makes a business decision justifying the award, the court will not overturn the
contracting officer’s determination “merely because Allied [the protestor] disagrees with
the agency’s analysis.” See Allied Tech. Grp., Inc. v. United States, 94 Fed. Cl. at 50
(citing E.W. Bliss Co. v. United States, 77 F.3d at 449); see also Holloway & Co., PLLC
v. United States, 87 Fed. Cl. 381, 396 (2009) (determining that an agency’s best value
trade-off determination in a procurement utilizing the FSS was reasonable when the
agency “offered a ‘“coherent and reasonable explanation of its exercise of discretion”’”
(quoting Centech Grp., Inc. v. United States, 554 F.3d at 1037 (quoting Impresa
Construzioni Geom. Domenico Garufi v. United States, 238 F.3d at 1332-33))).
In the above-captioned bid protest, the Army noted in its Best Value and Fair and
Reasonable Determination that the Technical Expertise factor and the Risk Mitigation and
Management factor were of equal weight, and that each factor was more important than
the Price factor, which the Army stated was not expected to be the “controlling criterion”
under the TORFQ. The Best Value and Fair and Reasonable Determination discussed
the ratings, strengths, weaknesses, and deficiencies assigned by the Army’s evaluators
and provided the following chart summarizing the evaluators’ conclusions:
Offeror DigiFlight Sigmatech S3
Technical Outstanding Good [redacted]
Expertise
Risk Mitigation & Outstanding Outstanding [redacted]
Management
Total Price $63,001,142.24 $61,454,297.78 [redacted]
45
The Army noted that all offerors demonstrated a capability to successfully perform the
requirements in the TORFQ.
Under the Risk Mitigation and Management factor, in the Best Value and Fair and
Reasonable Determination, the Army stated:
DigiFlight and Sigmatech both received the rating “Outstanding” indicating
an exceptional approach. Both demonstrated a thorough approach to Risk
Mitigation and Management. Both demonstrated proven techniques in their
abilities to obtain and retain qualified personnel, ability to bring together the
right team to perform PWS requirements and the ability to effectively
manage the project; thus providing continuous support and risk mitigation
through the performance of the PWS requirements.
The Army had assigned three strengths to the Risk Mitigation and Management factor in
both DigiFlight’s quotation and Sigmatech’s quotation.
The Army’s Best Value and Fair and Reasonable Determination noted that, under
the Technical Expertise factor, DigiFlight was the only vendor who received a rating of
outstanding, as Sigmatech [redacted] received ratings of good under the Technical
Expertise factor. According to the Army, DigiFlight’s quotation provided “superior
responses describing their capability to accomplish the PWS requirements and how they
plan to meet requirements through examples of relevant experience associated with each
PWS paragraph.” The Army stated that DigiFlight demonstrated “exceptional capability”
and presented “virtually no risk to the Government.” Indeed, DigiFlight received five
strengths under the Technical Expertise factor, as compared to Sigmatech [redacted],
who the Army noted had each received one strength under the Technical Expertise factor.
The Army identified other benefits DigiFlight’s proposed performance would provide to
the Army, including:
DigiFlight demonstrated exceptional understanding in the use of current and
legacy data systems. DigiFlight developed and implemented numerous
systems and databases such as [redacted]. The implementation of these
programs will significantly aid in collecting, processing and refining,
analyzing and tracking data. The use of such innovative databases/systems
will effectively redefine data collection and processing.
The Army’s Best Value and Fair and Reasonable Determination, therefore, identified
multiple benefits associated with DigiFlight’s quotation under the Technical Expertise
factor.
Regarding the Price factor, the Army stated:
Based upon a price comparison of the Offerors, all three Offerors total
quoted prices are lower than the Independent Government Estimate (IGE).
DigiFlight’s total quoted price of $63,001,142.24 is 2% higher than
46
Sigmatech’s total quoted price of $61,454, 297.78 and [redacted] lower than
S3’s quoted price of [redacted]. Sigmatech’s total quoted price of
$61,454,297.78 is 6% lower than S3’s quoted price of [redacted].
(capitalization in original). The Army’s discussion of price accurately approximated the
differences in the vendors’ proposed prices, as DigiFlight’s proposed price,
$63,001,142.24, is approximately 2.517 percent higher than Sigmatech’s proposed price
of $61,454,297.78. DigiFlight’s proposed price, $63,001,142.24, is approximately
[redacted] percent lower than S3’s proposed price of [redacted].
The Army concluded in the Best Value and Fair and Reasonable Determination
that, “[d]ue to its ratings of ‘Outstanding’ for Technical Expertise and Risk Mitigation and
Management and the 2% price premium between it and Sigmatech, DigiFlight’s proposal
offers the best value to the Government.” In a section of the Best Value and Fair and
Reasonable Determination titled “Trade-Off Discussion,” the Army stated:
The Government considered DigiFlight’s strengths in the critical
requirements for both its Technical Expertise and Risk Mitigation and
Management. There were no weaknesses in either of these categories.
DigiFlight demonstrated the capability and experience to successfully
perform the requirements of the PWS with virtually no risk to the
Government. Consistent with the evaluation criteria, Technical Expertise
and Risk Mitigation and Management are of greater importance than Price.
DigiFlight demonstrated a far superior approach in both Technical Expertise
and Risk Mitigation and Management. DigiFlight received the highest
ratings in the two most important criteria (Technical and Risk Mitigation and
Management), and only presented a slight disadvantage over Sigmatech in
the least important criteria of Price. DigiFlight’s significant strengths
exceeds specified performance capability requirements in a way that will be
advantageous to the Government during contract performance.
Consequently, DigiFlight’s strengths in Technical Expertise and Risk
Mitigation and Management support the Government’s payment of a higher
price premium and will provide the Government the best value.
(capitalization in original).
Although DigiFlight and Sigmatech both received ratings of outstanding under the
Risk Mitigation and Management factor, under the Technical Expertise factor, DigiFlight
received a rating of outstanding, which, under the terms of the TORFQ, indicates an
“exceptional level of expertise” and that strengths “far outweigh any weaknesses.”
Sigmatech only received a rating of good under the Technical Expertise factor, which,
according to the TORFQ, indicates that Sigmatech had a “thorough level of expertise,”
and that Sigmatech’s strengths “outweigh any weaknesses.” Moreover, under the
Technical Expertise factor, DigiFlight received five strengths, while Sigmatech only
received one strength. Under the terms of the TORFQ, the Technical Expertise factor and
the Risk Mitigation factor were of equal value, which indicates that DigiFlight’s quotation’s
47
higher rated Technical Expertise factor and equally rated Risk Mitigation factor was of
more value to the Army than Sigmatech’s quotation under those two factors. In addition
to noting that DigiFlight’s quotation had received a higher rating under the Technical
Expertise factor, the Army also identified multiple benefits in DigiFlight’s quotation under
the Technical Expertise factor, as discussed above. The Army’s Best Value and Fair and
Reasonable Determination indicates that the Army determined that DigiFlight’s proposed
performance justified paying an approximately two percent price premium to DigiFlight in
order to obtain DigiFlight’s “far superior approach in both Technical Expertise and Risk
Mitigation and Management” at only a “slight disadvantage” in price. The Army’s best
value trade-off decision appears to have been made in accordance with the evaluation
criteria in the TORFQ, which stated that the Risk Mitigation and Management factor and
the Technical Expertise factor both were of greater importance than price. The Army
documented its business judgments when choosing to pay a premium of approximately
only two percent in exchange for a quotation the Army believed to have the strongest
technical approach, as well as a risk mitigation and management approach that also
received the highest adjectival rating under the TORFQ, which indicates that the Army
rationally exercised its discretion when conducting a best value trade-off under FAR
§ 8.405-3(c). See Allied Tech. Grp., Inc. v. United States, 94 Fed. Cl. at 50 (citing E.W.
Bliss Co. v. United States, 77 F.3d at 449); see also Holloway & Co., PLLC v. United
States, 87 Fed. Cl. at 396.
Regarding Sigmatech’s argument that the Army “improperly attributed Digiflight
with development credit for [redacted],” in the Army’s Best Value and Fair and
Reasonable Determination, the Army stated that “DigiFlight developed and implemented
numerous systems and databases” and provided a list that included the “[redacted] and
incorporating the use of [redacted].” In DigiFlight’s quotation, DigiFlight had stated that
“Team DigiFlight uses our Team’s [redacted] cost estimating analysts,” but did not discuss
the development of [redacted]. Although the Army appears to have inadvertently included
[redacted] in a list of systems developed and to be utilized by DigiFlight, award to
DigiFlight does not appear to have been premised on the Army’s incorrect statement that
DigiFlight developed [redacted]. Prior to stating that DigiFlight had developed [redacted],
in the Army’s Best Value and Fair and Reasonable Determination, the Army correctly
noted that the Army had awarded DigiFlight a strength based on DigiFlight’s use of
[redacted], not because DigiFlight had developed [redacted]. The Army also correctly
identified the five strengths DigiFlight received under the Technical Expertise factor and
the ratings assigned to DigiFlight’s quotation, and the one minor misstatement in the
Army’s Best Value and Fair and Reasonable Determination does not override the Army’s
determination that the use of [redacted] was a strength in DigiFlight’s quotation or the
Army’s sufficiently documented decision that DigiFlight’s quotation offered the best value
to the Army.
Regarding Sigmatech’s argument that the Army’s Best Value and Fair and
Reasonable Determination was flawed because “Digiflight failed to explain how it would
use both the [redacted] and the [redacted],” in its quotation, DigiFlight stated that “[w]e
developed the SAMD [redacted] to assist in managing UAE, Egypt, Saudi Arabia, and
Kuwait FMS cases. Our tools track and assist in the management of repair requirements,
48
requisition documentation, contract information, other major commands data, and to
generate key R&R reports.” DigiFlight also stated:
Team-developed [redacted] tool includes [redacted] and is available at
no additional development cost to SAMD. [redacted] facilitates retrieval
of products to respond rapidly to partner questions and can be used to
develop inputs for issue papers, briefings, program booklets, FMS
documentation, handbooks, and training courses IAW the CDRL [contract
data requirements list].
(emphasis in original). DigiFlight asserted that “[redacted] and [redacted] automate and
integrate program management and multiple simultaneous users; provide enhanced risk
identification and resolution; and delivers in-country and regional support to COCOMs
and FMS Partners.” (emphasis in original). DigiFlight’s quotation indicated that DigiFlight
uses both the [redacted] and the [redacted] and described the purpose of both the
[redacted] and the [redacted]. Sigmatech’s argument that DigiFlight “failed to explain” how
DigiFlight would use the [redacted] and the [redacted], therefore, is factually incorrect and
unsupported by the administrative record.
Sigmatech’s argument that the Army’s best value determination was flawed
because the Army improperly credited DigiFlight’s use of [redacted] but did not “account[]”
for Sigmatech’s use of [redacted] and assistance with the development of the [redacted]
is repetitive of Sigmatech’s unavailing disparate treatment claim discussed above and
also fails. As discussed above, the Army rationally awarded DigiFlight a strength based
on Team DigiFlight’s development and use of [redacted], as well as Team DigiFlight’s
retention of the underlying code for [redacted], which the Army stated could be modified
to meet the future needs of the Security Assistance Management Directorate. It was
rational for the Army to not award a strength to Sigmatech based on Sigmatech’s one-
line statement that Sigmatech “assists in the development and maintenance of [redacted]
financials” because Sigmatech did not fully discuss its use of [redacted], the benefits of
[redacted], or indicate that Sigmatech maintained the underlying code for [redacted] with
the ability to modify [redacted] to meet the Army’s future needs. The Army also noted that
Sigmatech’s development of the [redacted], a system that is still being developed,
“demonstrates experience in aiding in the development of a case management system,”
but rationally determined that Sigmatech did not provide “details on how it will perform
these tasks in support of SAMD.” The Army’s Best Value and Fair and Reasonable
Determination was not flawed because it stated that DigiFlight developed and utilized
[redacted], which was a strength rationally awarded to Team DigiFlight’s quotation.
Sigmatech, therefore, has failed to demonstrate that the Army’s best value trade-off
decision was flawed.
In Sigmatech’s complaint in the above-captioned bid protest, Sigmatech further
asserts that
KBRWyle (and therefore, DigiFlight) has an organizational conflict of
interest—that is, as the subcontractor to DigiFlight under the RFQ and as
49
the contractor under the DS TAT task order, KBRWyle would have to
monitor and evaluate its own work under the DS TAT task order an
impermissible impaired objectivity OCI.
In Sigmatech’s motion for judgment on the administrative record, Sigmatech argues that
the Army’s evaluation “of KBRWyle’s impaired objectivity OCI resulting from its work on
related task orders was arbitrary, capricious, and contrary to law.” According to
Sigmatech, “if DigiFlight is awarded the TORFQ, KBRWyle will be overseeing and
providing the inputs for its own work, resulting in a gross violation of the impaired
objectivity OCI rules.” Sigmatech states:
It is true that DS TAT is managed by Defense Technical Information Center
on behalf of the Program Executive Office – Missiles and Space Defense,
and the current TORFQ will be issued and managed by SAMD. But that
distinction does not resolve the interaction and consequential impaired
objectivity OCI carried by KBRWyle’s dual role.
Sigmatech argues:
Here is a concrete (hypothetical) example of KBRWyle’s conflicting roles:
the Kuwaiti government discovers that a piece of equipment on its Patriot
missiles, such as an igniter, does not work properly. The LTPO Patriot
Missile program management office, populated and supported by
KBRWyle, would conduct an engineering study to understand the problem.
That office might determine that the igniter is incompatible with a generator
being used. The LTPO Patriot Division would then coordinate with SAMD,
populated and supported by KBRWyle, to procure the appropriate igniter.
SAMD would analyze the contractual requirements and identify funding.
SAMD and LTPO Patriot Division, both populated and supported by
KBRWyle, would then brief both Kuwaiti and Agency personnel at a
program or contract management review. LTPO and SAMD, again via
KBRWyle, would work together to identify a selling source and SAMD would
purchase the igniter. SAMD and LTPO, both utilizing KBRWyle personnel,
would then work together to deliver and field the igniter to the Kuwaitis. This
is merely one of hundreds of interactions between the 71 contractor
employees currently assigned to SAMD and the countless KBRWyle
employees spread throughout program offices on half a dozen contracts
under the DS TAT task orders.
Sigmatech further contends that the Army cannot “argue that the level of OCI is
not substantial because of the distinct organizational structures” because “the entire right
side of the LTPO Patriot Division organizational chart involves providing Patriot missile
support to foreign countries.” According to Sigmatech:
SAMD’s own organizational chart shows that it has no day-to-day
employees overseeing the actions of contractor-employees in several
50
offices, including: the LTPO Foreign Liaison Offices; the LTPO Saudi/UAE
Branch; the LTPO OCONUS Kuwait Field Office; the Apache Egypt Front
Office; the Aviation Utility Systems Division for the United Arab Emirates;
and the Cargo helicopter branch for the United Kingdom. No Agency
employee oversees the daily interactions of these individuals, all of whom
are currently Sigmatech personnel. No amount of government supervision
can account for contractor personnel sitting alone and unsupervised.
(emphasis in original; internal references omitted). Sigmatech asserts that the Army
cannot solely rely on government oversight to remedy an impaired objectivity OCI.
In defendant’s cross-motion for judgment on the administrative record, defendant
argues that “KBRwyle will never be in a situation where it will be overseeing or evaluating
the work of other KBRwyle contract employees performing under other task orders.”
According to defendant, contracting officer Ashantas Cornelius determined that, “contrary
to Sigmatech’s representations, KBRWyle’s task orders with the Army are distinct from
each other, are performed for separate agency offices under Government supervision,
and primarily consist of providing information to Government decision-makers.”
Defendant contends that Sigmatech’s hypothetical is “an inaccurate representation of
how the task orders operate” because the
fatal flaw in the scenario sketched out by Sigmatech, [sic] is that it does not
accurately reflect how LTPO and SAMD would address the situation
presented. In reality, the original equipment manufacturer (OEM) and its
suppliers are used for cases when PATRIOT components are not operating
correctly in FMS systems. The OEM and its suppliers conduct engineering
studies to understand any performance issues and provide solutions to the
Government for approval. Once these findings are presented to the
Government, the support contractor – i.e., KBRWyle – may be involved with
providing independent assessment and recommendations as inputs to the
Government to make their decisions. KBRWyle is not an OEM, nor does it
have a contractual role with any OEM suppliers for the PATRIOT Air and
Missile Defense System. The situation described in Sigmatech’s
hypothetical is simply not a possibility.
(internal references omitted; emphasis in original). Defendant also argues that
Sigmatech’s hypothetical “shows how KBRwyle’s performance of the various task orders
could work together to benefit the agency,” and that “[t]here simply are no competing
‘push-pull’ interests presented in the hypothetical.” (emphasis in original).
Defendant-intervenor asserts that Sigmatech has failed to establish an impaired
objectivity OCI and that Sigmatech’s “rambling hypothetical” is “unsupported by any
citations to the record and ultimately establishes no OCI and no more than a mere
possibility that KBRwyle employees might be called upon to ‘work together’ under
different task orders supporting SAMD and LTPO.” Defendant-intervenor argues that the
Army need not rely on a government oversight defense, as Sigmatech alleges, because
51
the contracting officer did not rely on a government oversight defense, but, rather, found
that no impaired objectivity OCI existed, regardless of government oversight. Defendant-
intervenor also argues that Sigmatech’s “alleged OCI involves matters of contract
administration that are beyond the jurisdiction of this Court.”15 Defendant-intervenor
contends that DigiFlight has not yet determined which portions of the contract awarded
under the TORFQ KBRWyle will perform and that, “[i]f, during contract administration, the
Contracting Officer and/or DigiFlight perceive that KBRwyle ‘will be in a position to
oversee, evaluate, test and influence’ work performed by KBRwyle for LTPO, any
perceived OCI can be avoided by DigiFlight not allocating that particular work to
KBRwyle.” According to defendant-intervenor, “[i]n essence, what Sigmatech is protesting
is contingent on future events that may never happen. Accordingly, the OCI allegations
concerning other task orders are not ripe and therefore not justiciable.” In Sigmatech’s
November 9, 2018 response and reply, Sigmatech did not address defendant-intervenor’s
argument that Sigmatech’s impaired objectivity OCI involved concerns related to contract
administration.16
The statute at 28 U.S.C. § 1491(b)(1) “confers exclusive jurisdiction upon the Court
of Federal Claims over bid protests against the government.” Distributed Sols., Inc. v.
United States, 539 F.3d 1340, 1344 (Fed. Cir. 2008). Matters involving questions of
contract administration, however, are not within this court’s bid protest jurisdiction under
28 U.S.C. § 1491(b)(1). See Kellogg Brown & Root Servs., Inc. v. United States, 117 Fed.
Cl. 764, 770 (2014); see also Coast Prof’l, Inc. v. United States, 136 Fed. Cl. 467, 474
(2018) (“Entitlement to a certain number of accounts based on a contract is not in the
Court’s bid protest purview, and instead is a contract administration matter under the
Contracts Disputes Act, 41 U.S.C. §§ 7101-09.”). A Judge of the United States Court of
Federal Claims has stated:
When a party objects to a decision by a federal agency that was made
because that party was a government contractor, and not because the party
was an offeror for a contract to be awarded, then the matter is properly
viewed as seeking “relief arising under or relating to the contract” held by
the party, 48 C.F.R. § 2.101, rather than presenting a circumstance in which
the party’s “direct economic interest would be affected by the award of the
contract or by failure to award the contract,” 31 U.S.C. § 3551(2).
Itility, LLC v. United States, 124 Fed. Cl. 452, 458 (2015).
“Under FAR § 9.504(a), a CO [contracting officer] must ‘[i]dentify and evaluate
potential organizational conflicts of interest as early in the acquisition process as possible’
and ‘[a]void, neutralize, or mitigate significant potential conflicts before contract award.”
Turner Constr. Co. v. United States, 645 F.3d at 1386 (emphasis and alterations in
15In defendant’s motion for judgment on the administrative record, defendant did not
argue that this court lacks jurisdiction over Sigmatech’s impaired objectivity OCI.
16As discussed above, at the November 13, 2018 oral argument, counsel of record for
protestor withdrew protestor’s OCI claim involving Eileen Whaley.
52
original) (quoting FAR § 9.504(a)); see also FAR § 9.504(a) (2018). “‘A significant
potential conflict of interest is one which provides the bidding party a substantial and unfair
competitive advantage during the procurement process on information or data not
necessarily available to other bidders.’” Turner Constr. Co. v. United States, 645 F.3d at
1386 (quoting PAI Corp. v. United States, 614 F.3d at 1352); see also ViON Corp. v.
United States, 122 Fed. Cl. 559, 579 (2015) (quoting Turner Constr. Co. v. United States,
645 F.3d at 1386). “However, the FAR recognizes that the identification of OCIs and the
evaluation of mitigation proposals are fact-specific inquiries that require the exercise of
considerable discretion.” Axiom Res. Mgmt., Inc. v. United States, 564 F.3d at 1381-82
(citing FAR § 9.505); see also Monterey Consultants, Inc. v. United States, 120 Fed. Cl.
567, 572 (2015). Therefore, “[t]he CO has considerable discretion in determining whether
a conflict is significant.” Turner Constr. Co. v. United States, 645 F.3d at 1386 (citing PAI
Corp. v. United States, 614 F.3d at 1352); see also Parcel 49C Ltd. P’ship v. United
States, 130 Fed. Cl. 109, 123 (2016) (citing PAI Corp. v. United States, 614 F.3d at 1352).
Further, the identification of an OCI “must be based on ‘hard facts; a mere inference or
suspicion of an actual or apparent conflict is not enough.’” Turner Constr. Co. v. United
States, 645 F.3d at 1387 (quoting PAI Corp. v. United States, 614 F.3d at 1352); see also
Loch Harbour Grp., Inc. v. United States, 128 Fed. Cl. 294, 302 (2016) (“But, to prove an
OCI, LHG [protestor] must identify hard facts to support this claim. A mere inference or
suspicion of an actual or apparent conflict is not enough.” (citing PAI Corp. v. United
States, 614 F.3d at 1352)); Macaulay-Brown, Inc. v. United States, 125 Fed. Cl. 591, 602
(2016) (quoting Turner Constr. Co. v. United States, 645 F.3d at 1387).
Although defendant-intervenor DigiFlight asserts that, “because DigiFlight’s
proposal does not identify the work that will be subcontracted to KBRwyle, the earliest
that the Contracting Officer can comply with her duties under FAR § 9.504(a)(1) is during
the administration of the task order,” the administrative record indicates that the Army
was able to identify work KBRWyle will perform under the DigiFlight Task Order and
evaluate Sigmatech’s impaired objectivity OCI claim. Contracting officer Ashantas
Cornelius was able to review the relevant tasks orders and conclude that KBRWyle’s
performance under the DigiFlight Task Order will not include evaluating KBRWyle’s
performance under other task orders awarded by the Lower Tier Project Office and the
Security Assistance Management Directorate.
In the Army’s October 2, 2018 Determination and Findings analyzing Sigmatech’s
impaired objectivity OCI, contracting officer Ashantas Cornelius stated that
it has not been determined by the prime contractor (DigiFlight) which
specific tasks that KBRWyle/CAS will perform. DigiFlight, the Government
and KBRWyle/ CAS, Inc. will review and determine the best use of labor
categories in of the AMCOM SAMD programmatic support mission. Upon
review and approval, KBRWyle will be assigned specific labor tasks in
accordance with the BPA and applicable clauses.
(internal references omitted). Ashantas Cornelius, however, also stated that she “found
no evidence of impaired objectivity with KBRWyle/CAS, Inc. in performance of their duties
53
supporting the EXPRESS Task Order and the DTIC Task Orders. KBRwyle working on
the EXPRESS task order will not be monitoring or evaluating the work of KBRwyle
employees on the DTIC task orders.” In the November 1, 2018 declaration signed by
contracting officer’s representative Susan Teir, which was submitted to the court, Susan
Teir identified work to be performed by KBRWyle under the DigiFlight Task Order
awarded under the TORFQ. In the November 1, 2018 declaration signed by contracting
officer’s representative Susan Teir, Susan Teir stated that:
In support of the SAMD Programmatic Contract, under the EXPRESS task
order being protested, KBRwyle will provide programmatic services or
independent evaluation, assessments and support for SAMD efforts.
Similarly to their support of LTPO under the DS TAT task orders, KBRwyle
provides independent technical expertise, assistance and provides
inputs/recommendations for the Government’s consideration.
Moreover, in the September 25, 2018 email message sent by Susan Teir, Susan Teir was
able to sufficiently identify the work to be performed by KBRWyle under the DigiFlight
Task Order to reach a conclusion as to whether KBRWyle will be evaluating its own work
under other task orders. In the September 25, 2018 email message sent by Susan Teir,
she also stated that, under the DigiFlight Task Order awarded under the TORFQ,
KBRWyle will not be evaluating KBRWyle’s work under another task order issued by the
Security Assistance Management Directorate.
Moreover, the TORFQ required vendors and subcontractors to submit an
Organizational Conflict of Interest Certification. In its quotation in response to the TORFQ,
Sigmatech submitted an Organizational Conflicts of Interest Certificate signed by an
employee of KBRWyle. In KBRWyle’s Organizational Conflict of Interest Certificate,
KBRWyle marked a box on the certificate indicating that “my firm does not presently have
any organizational conflict of interest which would diminish its capacity to give impartial,
technically sound and objective assistance and advice or would result in a biased work
product or may result in an unfair competitive advantage.” Although “labor categories”
may not yet have been assigned to KBRWyle under the DigiFlight Task Order, the FAR
required that an Army contracting officer “[i]dentify and evaluate potential organizational
conflicts of interest as early in the acquisition process as possible.” See FAR § 9.504. The
administrative record in the above-captioned bid protest permits the court to review
Ashantas Cornelius’ determination as to whether Sigmatech has identified an impaired
objectivity OCI regarding KBRWyle’s performance under the DigiFlight Task Order, which
is connected to the Army’s procurement of a task order for programmatic support services
under the TORFQ. The court, therefore, has jurisdiction over Sigmatech’s impaired
objectivity OCI.
An “impaired objectivity” OCI “occurs when a government contractor has conflicting
obligations under different government contracts, that compromises the contractor’s
ability to render impartial judgment.” See Axiom Res. Mgmt., Inc. v. United States, 78
Fed. Cl. at 592 n.17 (citing FAR § 9.505-3; and Aetna Gov’t Health Plans, Inc., B-254397
et al., 1995 WL 449806, at *8-9 (Comp. Gen. July 27, 1995)); see also L-3 Commc’ns
54
Corp. v. United States, 99 Fed. Cl. 283, 297 (2011) (“The impaired objectivity OCI occurs
‘where a firm’s work under one contract might require it to evaluate itself under another
contract.’” (quoting Turner Constr. Co. v. United States, 94 Fed. Cl. 561, 569 (2010), aff’d,
645 F.3d 1377 (Fed. Cir. 2011))). A Judge of the United States Court of Federal Claims
has stated that the “primary concern” of an impaired objectivity OCI is that “a firm might
not be able to render ‘impartial advice.’” Turner Constr. Co. v. United States, 94 Fed. Cl.
at 569 (quoting Aetna Gov’t Health Plans, Inc., 1995 WL 449806, at *8); see also A-P-T
Research, Inc., B-413731.2, 2017 WL 1462127, at *9 (Comp. Gen. Apr. 3, 2017) (stating
that an impaired objectivity OCI “principally concerns the contractor’s ability to perform its
contractual obligations free of improper bias”). “In order to show an ‘impaired objectivity’
OCI, there must be hard facts showing that ‘a government contractor’s “work under one
government contract could entail its evaluating itself, either through an assessment of
performance under another contract or an evaluation of proposals.”’” Aegis Techs. Grp.,
Inc. v. United States, 128 Fed. Cl. 561, 575 (2016) (quoting Ala. Aircraft Indus., Inc.-
Birmingham v. United States, 83 Fed. Cl. 666, 687 (2008) (quoting Aetna Gov’t Health
Plans, Inc., 1995 WL 449806, at *9), rev’d on other grounds, 586 F.3d 1372 (Fed. Cir.
2009)).
In the above-captioned bid protest, in the Army’s October 2, 2018 Determination
and Findings, contracting officer Ashantas Cornelius states that Sigmatech alleges that
DigiFlight has an impaired objectivity OCI as a result of its subcontracting agreement with
KBRWyle under the DigiFlight Task Order awarded under the TORFQ. Ashantas
Cornelius states that Sigmatech argues that, under the DigiFlight Task Order, KBRWyle
“would provide oversight and/or approval over its own work performance and deliverables
performed under other task orders awarded through the Defense Technical Information
Center (DTIC) Defense Systems Technical Area Task (DS-TAT) program.”17
In the Army’s October 2, 2018 Determination and Findings, Ashantas Cornelius
discussed the award of two task orders to KBRWyle for “technical support” by the Lower
Tier Project Office and the Security Assistance Management Directorate, respectively,
under the “Defense Technical Information Center (DTIC) Defense Systems Technical
Area Task (DS-TAT) program.”18 According to Ashantas Cornelius, the Lower Tier Project
Office is the “Project Office of Record” for the “PATRIOT weapon system. Lower Tier
Project Office is multi-disciplined with responsibility for budgeting, contracting system
engineering, software engineering, quality assurance, tests and evaluation, production
and logistics/whole life support of the PATRIOT weapon system.” Ashantas Cornelius
states that, “[s]ummarily, LTPO provides requirements based upon ‘production contracts’,
17 As noted above, the task orders awarded under the “Defense Technical Information
Center (DTIC) Defense Systems Technical Area Task (DS-TAT) program” were awarded
to “Wyle Laboratories, Inc., a part of KBRWyle/CAS, Inc., located in Huntsville, Alabama.”
18The Security Assistance Management Directorate also awarded the task order under
the TORFQ to DigiFlight. As stated above, the Security Assistance Management
Directorate issued the TORFQ under the Aviation and Missile Command EXPRESS
program.
55
providing foreign military customers with a weapon system/end product.” Ashantas
Cornelius states that the Lower Tier Project Office is part of the Program Executive Office
Missiles and Space.
In the Army’s October 2, 2018 Determination and Findings, Ashantas Cornelius
asserts that the Security Assistance Management Directorate
manages the sale of AMCOM managed aviation and missile systems;
validation/verification, production, interoperability, transfer and sustainment
to our allied nations. Simply stated, AMCOM SAMD provides management
support services based upon “services contracts”, providing foreign military
customers with services; effectively assisting in the management of foreign
military sales cases and the sustainment of weapons systems.
Ashantas Cornelius states that the Security Assistance Management Directorate is part
of the Aviation and Missile Command, which “is not a part of” the Program Executive
Office Missiles and Space, in which the Lower Tier Project Office is located.
Ashantas Cornelius, however, states that the Security Assistance Management
Directorate has “divisions that are co-located with the respective Missile and Space
Program Executive Office (PEO)/Aviation Program Executive Office (PEO) Weapon
Systems Program Offices. However, each organization performs duties and
responsibilities specific to that organization’s mission.” (internal references omitted). In
support of her statement regarding “co-located” divisions, Ashantas Cornelius cites a
September 25, 2018 email message from contracting officer’s representative Susan Teir,
in which Ms. Teir states that “SAMD and LTPO are two totally separate entities with
different commanders/command teams,” but that “‘[m]ost’ of the SAMD Divisions are co‐
located with their respective Missiles and Space PEO/Aviation PEO Weapon Systems
Program Offices,” including a Security Assistance Management Directorate “PATRIOT
Division.” According to the September 25, 2018 email message from Susan Teir:
SAMD does not provide oversight management to LTPO nor does LTPO
provide oversight management to SAMD. SAMD has a PATRIOT Division
co‐located at the LTPO 106 Wynn Drive location that consists of SAMD
employees and SAMD contractors only. SAMD PATRIOT Division
employees work Letters of Agreement (LOA) for our foreign allies who are
purchasing and sustaining the PATRIOT Missile System for their particular
country. Our SAMD PATRIOT Division does not perform work to support
the U.S. Government LTPO Mission.
The Security Assistance Management Directorate and the Lower Tier Project Office,
therefore, appear to be two separate entities, but appear to have certain divisions located
within the same buildings.
According to the Army’s October 2, 2018 Determination and Findings, both the
Lower Tier Project Office and Security Assistance Management Directorate had a
56
requirement for “technical support services.” Ashantas Cornelius states that “both
organizations acquired technical supports [sic] services through the use of the DTIC
Defense Systems Technical Area Task (DS-TAT) Indefinite Delivery Indefinite Quantity
(IDIQ) contracts managed by Defense Technical Information Center (DTIC) personnel
located at Ft. Belvoir, VA.” Specifically, on May 20, 2017, KBRWyle was awarded a task
order, which was Delivery No. FA807517F1374 (the 1374 LTPO Task Order). The 1374
LTPO Task Order stated that the primary purpose of the 1374 LTPO Task Order is to
study, analyze, provide advice, research, and develop deliverables to
advance/DS [defense systems] related scientific and technical information
(STI) through the application of knowledge and resources in achieving the
requiring activity’s mission requirements defined herein.
The objective of this TAT [Technical Area Task] is to provide the
Government the necessary multi-disciplined support to execute the
extremely challenging effort of managing the PATRIOT weapon system.
The scope of this TAT will ensure the Government is provided with the
technical assistance needed to assist the Government in performing the role
of overall weapon system acquisition management.
On September 28, 2017, the Security Assistance Management Directorate had
awarded KBRWyle a task order, which was Delivery No. FA807517F1389 (the 1389
SAMD Task Order). The 1389 SAMD Task Order indicated that the primary purpose of
the 1389 SAMD Task Order is to
study, analyze, advise, research, and develop deliverables to advance FMS
DS related Scientific and Technical Information (STI) through the
application of knowledge and resources in achieving the Requiring Activity’s
mission requirements defined above.
The objective of this DS TAT PWS is to obtain improved reliability,
interoperability, and reduced cost of ownership for all AMCOM managed
aviation and missile FMS programs. To achieve this objective the contractor
shall provide services to perform and document RMQSI [reliability,
maintainability, quality, supportability, and interoperability] analyses and
strategies in addition to logistics, testing, systems engineering, program
management, and life cycle/cost analyses to refine and improve FMS
sustainability.
(capitalization in original). In the Army’s October 2, 2018 Determination and Findings,
Ashantas Cornelius states that the 1374 LTPO Task Order and the 1389 SAMD Task
Order were issued by separate entities and “function independently of each other in
support of two different commands with varying missions.”
Ashantas Cornelius states in the Army’s October 2, 2018 Determination and
Findings that:
57
The DTIC IDIQ contract has a Contracting Officer Representative (COR)
appointed by the DTIC Contracting Officer. This COR provides government
oversight of the IDIQ and is located at the DTIC Center in Ft. Belvoir, VA.
In order to provide proper government oversight and ensure contractor
performance, the individual task orders are managed by the respective
requiring organizations/activities. As a result, the DTIC Contracting Officer
appoints primary and alternate Contracting Representatives (CORs) co-
located with the contractors.
(internal references omitted). Ashantas Cornelius also states that “each task order is
allocated a Program Manager; whose primary duty and responsibility is to manage his/her
specific program (task order).” (internal references omitted).
Regarding the DigiFlight Task Order the Security Assistance Management
Directorate awarded under the TORFQ, Ashantas Cornelius states that the DigiFlight
Task Order requires DigiFlight to provide “programmatic services to AMCOM SAMD.”
Ashantas Cornelius asserts that “[p]rogrammatic services entails [sic] support in
monitoring, assessing, coordinating, analyzing and integrating component
programs/activities, including briefings/ presentations and agendas for the total life cycle
systems. This program is in response to the SAMD’s mission and supports only the SAMD
Foreign Military Sales (FMS) functions.” (internal references omitted). Ashantas Cornelius
states that a contracting officer’s representative will oversee the DigiFlight Task Order,
and that the DigiFlight Task Order “is allocated a Program Manager and/or a task order
lead whose primary duty and responsibility is to manage/ provide oversight in support of
his/her specific task order.”
Regarding the differences between the 1389 SAMD Task Order and the DigiFlight
Task Order awarded by the Security Assistance Management Directorate, Ashantas
Cornelius states:
The DTIC task order [1389 SAMD Task Order] and the EXPRESS task
order [DigiFlight Task Order] provide direct support to the AMCOM SAMD
office independently and for separate categories of service. The task order
awarded by the DTIC IDIQ provides technical support while the EXPRESS
task order provides programmatic support. Government oversight is
provided by the COR(s). The CORs are appointed in writing by the
cognizant Contracting Officer. Oversight of all SAMD contracts/task orders
are provided by their respective CORS and company program managers.
At no time are contractors allowed to provide oversight of other contractor’s
personnel or performance. Based upon FAR Part 7.5 (Inherently
Governmental Functions) and due to the nature of the services, contractors
do not provide oversight to other contractor’s work. Regarding KBRWyle’s
performance in support of the EXPRESS task order, it has not been
determined by the prime contractor (DigiFlight) which specific tasks that
KBRWyle/CAS will perform. DigiFlight, the Government and
58
KBRWyle/CAS, Inc. will review and determine the best use of labor
categories in of the AMCOM SAMD programmatic support mission. Upon
review and approval, KBRWyle will be assigned specific labor tasks in
accordance with the BPA and applicable clauses.
Ashantas Cornelius states:
I have thoroughly reviewed the tasks to be performed under the EXPRESS
task order and the tasks KBRwyle performs under the DS-TAT task orders
for both LTPO and SAMD, and have found no evidence of impaired
objectivity with KBRWyle/CAS, Inc. in performance of their duties
supporting the EXPRESS Task Order and the DTIC Task Orders.
Ashantas Cornelius asserts that “KBRwyle working on the EXPRESS task order will not
be monitoring or evaluating the work of KBRwyle employees on the DTIC task orders,”
and that the “work performed under the EXPRESS task order is different from the work
performed under the DTIC task orders, involving different categories of services, with the
EXPRESS task order providing program support services and the DTIC task orders
focused on scientific and technical tasks.”
The Army’s October 2, 2018 Determination and Findings reflect that the 1374
LTPO Task Order and the 1389 SAMD Task Order require KBRWyle to analyze and
provide Scientific and Technical Information to the Lower Tier Project Office and the
Security Assistance Management Directorate, respectively. The 1374 LPTO Task Order
indicates that KBRWyle will be providing the Scientific and Technical Information in
support of the Lower Tier Project Office’s management of the “PATRIOT weapon system.”
Section 1.1 of the performance work statement of the TORFQ states that the vendor will
be providing programmatic support to assist the Security Assistance Management
Directorate with its “contractual obligations for the procurement, delivery and sustainment
of weapon systems entered into via the Foreign Military Sales (FMS) process between
the United States Government (USG) and numerous foreign governments.” Ashantas
Cornelius noted that the Lower Tier Project Office and the Security Assistance
Management Directorate are two separate entities with different chains of command and
with different purposes. The Lower Tier Project Office does not provide oversight of the
Security Assistance Management Directorate’s work, nor does the Security Assistance
Management Directorate provide oversight of the Lower Tier Project Office’s work.
Ashantas Cornelius indicates that certain divisions within the Lower Tier Project Office
and Security Assistance Management Directorate are co-located within the same offices,
but having divisions co-located does not indicate that KBRWyle will be placed in a position
to improperly evaluate its own performance or in a position that comprises KBRWyle’s
ability to provide impartial advice to the government under the 1374 Task Order or the
DigiFlight Task Order.
59
Regarding the 1389 SAMD Task Order and the DigiFlight Task Order, under the
1389 SAMD Task Order, KBRWyle will be providing the Scientific and Technical
Information in support of the Security Assistance Management Directorate’s FMS efforts.
Under the 1389 SAMD Task Order, KBRWyle will be providing to the Security Assistance
Management Directorate
detailed quantitative research and analyses addressing system
engineering, maintenance/fault detection/isolation and resolution practices,
failure modes, root cause analysis, safety/risk analysis,
logistics/sustainment management planning and analysis, technical
publications, training, and Reliability, Availability and Maintainability (RAM)
testing and analyses. The goal of these support functions is the increase in
AMCOM FMS weapons systems availability, reduced cost of ownership and
reduced maintenance support requirements.
The performance work statement of the TORFQ indicates that, under the DigiFlight Task
Order, DigiFlight and its subcontractors will be providing “programmatic services for
independent evaluation, assessments and analysis” of “FMS programs for our foreign
allies.” Under the 1389 SAMD Task Order, KBRWyle will be providing Scientific and
Technical Information to provide “improved reliability, interoperability, and reduced cost
of ownership for all AMCOM managed aviation and missile FMS programs.” Under the
DigiFlight Task Order, DigiFlight and its team of subcontractors will be providing
programmatic support “for implementation and sustainment of current program actions
and future programs.” The purpose and objectives of the 1389 SAMD Task Order and the
DigiFlight Task Order do not conflict, as both require the provision of support for the
Security Assistance Management Directorate’s FMS program, albeit in different ways and
with different types of information. As noted by Ashantas Cornelius, the 1389 SAMD Task
Order and the DigiFlight Task Order operate “independently and for separate categories
of service.” Protestor has not demonstrated how KBRWyle’s provision of Scientific and
Technical Information to reduce the cost of aviation and missile systems in the FMS
program will impair Team DigiFlight’s ability to provide programmatic support of current
and future FMS programs. Protestor also has not identified any requirement in the 1374
LTPO Task Order or the 1389 SAMD Task Order requiring KBRWyle to evaluate or
monitor KBRWyle’s provision of programmatic support to the Security Assistance
Management Directorate.
Moreover, contracting officer Ashantas Cornelius stated that the task orders
awarded by the Lower Tier Project Office and the Security Management Assistance
Directorate are managed by the respective agencies, not by other contractors. Each task
order is assigned a government contracting officer’s representative, as well as a
government program manager, to manage and evaluate performance under the task
order. In the October 2, 2018 Determination and Findings, Ashantas Cornelius indicated
that contractors do not monitor or approve other contractor’s work “[b]ased upon FAR
Part 7.5 (Inherently Governmental Functions) and due to the nature of the services.”
(capitalization in original). The November 1, 2018 declaration signed by Susan Teir
supports Ashantas Cornelius conclusion that, under the DigiFlight Task Order, KBRWyle
60
will not be monitoring KBRWyle’s performance under other task orders, as Susan Teir
states that “KBRwyle provides independent assessments and inputs to the government
to support their decisions. KBRwyle is not the decision maker for government approval of
studies or procurements.” Final approval of government procurements, therefore,
remains with government employees.
In the October 2, 2018 Determination and Findings, Ashantas Cornelius also
states:
Furthermore, additional last-minute information was provided by Sigmatech
regarding KBRWyle performing other DS TAT task Orders. These tasks
orders provide support to various Program Management Offices (PMOs) to
include Cargo Helicopter, Unmanned Aircraft Systems, Fixed Wing and
Future Vertical Lift. Additionally, information has been provided indicating
that DigiFlight is a subcontractor on several of KBRWyle’s task orders.
While Sigmatech has not provided sufficient information to fully investigate
these last-minute additions to its impaired objectivity OCI allegations,
because these DS TAT task orders are all managed in the manner as
previously stated, sufficient government oversight is provided to
successfully eliminating [sic] any possibility of impaired objectivity.
Under the May 4, 2017 task order awarded to KBRWyle, KBRWyle will provide Scientific
and Technical Information, research, and analysis “to develop recommendations to the
CH PMO [Cargo Helicopter Project Management Office], FW [Fixed Wing Project Office]
and its international partners (through Foreign Military Sales (FMS) or Memorandum of
Understanding (MOU)) to increase availability, improve reliability, and reduce the support
costs for their assigned systems.” Under the June 21, 2016 task order awarded to
KBRWyle, KBRWyle is to provide Scientific and Technical Information, research, and
analysis to the Fixed Wing Project Office “to develop recommendations to enhance the
Government units’ airborne intelligence operations.” Under the December 29, 2017 task
order awarded to KBRWyle, KBRWyle will be providing to the Unmanned Aircraft
Systems Project Office Scientific and Technical Information to “enable the PEO Aviation
Program Managers (PMs) to increase availability, improve reliability, and reduce the
support costs of UAS [unmanned aircraft system] programs. Specific consideration shall
be focused on airworthiness; data interoperability and Information Assurance; hardware
interchangeability; testing and evaluation; maintenance management; data analyses;
obsolescence management; and systems engineering practices.”
The May 4, 2017, June 21, 2016, and the December 29, 2017 task orders do not
indicate that KBRWyle will be evaluating or monitoring KBRWyle’s performance under
the DigiFlight Task Order, in which DigiFlight and its team of subcontractors will be
providing programmatic support in order to implement and sustain the Security
Assistance Management Directorate’s “current program actions and future programs.”
Nor does it appear that, under the DigiFlight Task Order, KBRWyle will be evaluating the
provision of Scientific and Technical Information under the May 4, 2017 task order
61
awarded to KBRWyle, the June 21, 2016 task order awarded to KBRWyle, or the
December 29, 2017 task order awarded to KBRWyle. Ashantas Cornelius indicated that
the May 4, 2017 task order, the June 21, 2016 task order, and the December 29, 2017
task order all awarded to KBRWyle “are all managed in the manner as previously stated”
and indicated that three tasks orders do not require oversight or evaluation of the
programmatic support services that will be provided under the DigiFlight Task Order. The
provision of Scientific and Technical Information to improve the availability and cost of
weapon systems does not appear to conflict with the provision of programmatic support
services under the DigiFlight task order.
Sigmatech identified sections 2.2.2.1 and 2.4.6 of the performance work statement
attached to the TORFQ as two examples of when Team DigiFlight would be evaluating
work of other contractors under other task orders. Section 2.2.2.1 of the performance
work statement states that “[t]he contractor shall perform cost estimating and analysis of
data prepared and furnished by other contractors and USG agencies.” Although KBRWyle
may be analyzing data furnished by other contractors, Sigmatech does not provide “hard
facts” demonstrating that KBRWyle would be “evaluating itself, either through an
assessment of performance under another contract or an evaluation of proposals.” See
Aegis Techs. Grp., Inc. v. United States, 128 Fed. Cl. at 575 (internal quotation marks
and citations omitted). Nor does analyzing data furnished by other contractors indicate
that KBRWyle “might not be able to render ‘impartial advice,’” which is the “primary
concern” of an impaired objectivity OCI. See Turner Constr. Co. v. United States, 94 Fed.
Cl. at 569. Sigmatech has not sufficiently supported its assertion that KBRWyle will have
“the opportunity to review its own decision-making and benefit itself at the Agency’s
expense” because, at most, under the DigiFlight Task Order, Team DigiFlight will be
evaluating data provided by government agencies and government contractors. The
administrative record does not indicate that KBRWyle employees will be inputting data
for KBRWyle employees to analyze and review in a manner that would benefit KBRWyle
at the expense of the Army. Section 2.4.6 states:
The contractor shall provide all levels of weapon system integration support.
The contractor shall provide advice and recommendations on the
component subsystems and how the subsystems function together as a
whole, to include preliminary design review PDR; critical design review
(CDR);milestone [sic] and program reviews; program strategy develop; and
program execution management. The contractor shall provide advice and
recommendations on interoperability of weapons systems to interface with
other products or systems.
Sigmatech has not demonstrated why Team DigiFlight will be unable to provide impartial
advice on the interoperability of weapon systems and subsystems due to KBRWyle’s
provision of Scientific and Technical Information to the Army in order to provide “improved
reliability, interoperability, and reduced cost of ownership for all AMCOM managed
aviation and missile FMS programs,” as KBRWyle is doing under the 1389 SAMD Task
Order. The purposes of the task orders simply do not conflict or entail evaluating the
performance of other contractors.
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At the November 13, 2018 oral argument, counsel of record for protestor argued
that the Army did not consider sufficient information when determining whether there was
an impaired objectivity OCI. Ashantas Cornelius reviewed statements from the
contracting officer’s representative, alternate contracting representatives, and DigiFlight,
as well as the organizational charts of the Lower Tier Project Office and the Security
Assistance Management Directorate. Ashantas Cornelius compared and analyzed the
requirements in the 1374 LTPO Task Order, the 1389 SAMD Task Order, and the
DigiFlight Task Order, as well as the requirements in the May 4, 2017 task order, the June
21, 2016 task order, and the December 29, 2017 task order, all awarded to KBRWyle.
Although protestor argues that Ashantas Cornelius did not consider “[w]hether Agency
personnel sit in those offices” where KBRWyle employees are located or “[h]ow much
oversight a handful of Agency personnel seated in different offices than the bulk of
contractor-personnel perform are able to exercise,” Ashantas Cornelius noted that the
Lower Tier Project Office and the Security Assistance Management Directorate have
divisions that are co-located, and that the Security Assistance Management Directorate
and certain Program Executive Offices are co-located. Moreover, Ashantas Cornelius
determined that contractors would not be evaluating other contractors’ work and that a
program manager is assigned to oversee each task order. In the September 25, 2018
email message from contracting officer’s representative Susan Teir to Ashantas
Cornelius, Susan Teir stated that “[c]ontractors sitting together may work under differing
contracts, but none of them oversees or manages someone working underneath a
different contract. Sigmatech, DigiFlight (and subs/team members) and KBR Wyle (and
subs) contractors are not allowed to oversee anyone not working under their particular
contract.”
As the contracting officer assigned to investigate Sigmatech’s impaired objectivity
OCI, Ashantas Cornelius had considerable discretion when determining the extent of her
OCI investigation and when determining whether a potential or actual OCI existed. See
PAI Corp. v. United States, 614 F.3d at 1352-53 (“[T]he FAR provides a contracting officer
with considerable discretion to conduct fact-specific inquiries of acquisition proposals to
identify potential conflicts and to develop a mitigation plan in the event that a significant
potential conflict exists.” (citations omitted)). As noted above, “the FAR recognizes that
the identification of OCIs and the evaluation of mitigation proposals are fact-specific
inquiries that require the exercise of considerable discretion.” Axiom Res. Mgmt., Inc. v.
United States, 564 F.3d at 1382; see also IBM Corp. v. United States, 119 Fed. Cl. 145,
161 (2014) (stating that a contracting officer has discretion when evaluating an OCI and
determining the scope of an OCI inquiry). The record before the court indicates that
Ashantas Cornelius thoroughly investigated Sigmatech’s impaired objectivity OCI and
rationally concluded that no impaired objectivity OCI existed.
Moreover, both parties have moved to supplement the administrative record with
materials related to Sigmatech’s allegation of an impaired objectivity OCI. Protestor
moved to supplement the administrative record with an October 15, 2018 declaration
signed by Phillip Roman, an employee of Sigmatech, attached to which are “Sigmatech’s
Performance Work Statement and Deliverables List, which described Sigmatech’s
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deliverables and the level of oversight anticipated by the Task Order,” a “current,
accurate, and complete list of Sigmatech employees assigned to the Task Order and their
duty locations,” a “SAMD organizational matrix that demonstrates where Sigmatech’s
contractor-employees are located and to whom they report, if anybody,” and an “article
written by Major General James H. Pillsbury that, describes the Agency’s view of the
interaction between program management offices and SAMD’s FMS duties.”19 Sigmatech
asserts that, based on the administrative record before the court, the “Court cannot
determine whether the Agency ignored salient information without understanding where
contractor-employees are placed and whether the Agency oversees those employees;
the scope of the Agency’s oversight; and how the Agency integrates FMS into its program
management.” Sigmatech argues that the contracting officer determined that “sufficient
government oversight existed to mitigate an organizational conflict of interest,” and that
“Sigmatech had no basis for knowing the Contracting Officer’s defense at any time before
the Department of Justice released the Contracting Officer’s findings.”
Defendant argues that the court should deny protestor’s motion to supplement the
administrative record because protestor had an opportunity to submit information to the
contracting officer prior to the Army’s issuance of its October 2, 2018 Determination and
Findings, but failed to submit the documents that are attached to the October 15, 2018
declaration signed by Phillip Roman.20 Defendant-intervenor asserts that, “[b]eyond
Sigmatech’s failure to provide the information to the Contracting Officer, Mr. Roman’s
declaration does not support the existence of an OCI. Therefore, consideration of Mr.
Roman’s declaration is not necessary for effective judicial review.” Defendant-intervenor
19The article written Major General Pillsbury is from a March-April 2005 edition of a
publication titled Army Logistician.
20 Defendant states:
Prior to the contracting officer issuing the [sic] (D&F), counsel for defendant
contacted counsel for Sigmatech and DigiFlight on September 24, 2018,
and requested that the parties provide any information related to the
impaired OCI issue that they wished the contracting officer to consider by
September 28, 2018. On October 1, 2018, counsel for defendant advised
the parties that the contracting officer was close to issuing the D&F, and
reminded them that they should provide any information concerning the OCI
allegation that they wished the contracting officer to review. Sigmatech
identified several task orders that it believed DigiFlight’s subcontractor was
performing for the Army, but did not provide nor identify any of the
information with which it now seeks to supplement the record despite that
information – i.e., a Sigmatech performance work statement, Sigmatech
employee list, an Army organizational matrix listing Sigmatech employees,
and an article by an agency official – unquestionably being within its
possession or else ability to obtain.
(internal references omitted; emphasis in original).
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contends that, “[c]ontrary to Sigmatech’s argument, the Contracting Officer’s
determination does not rely on a ‘government oversight’ defense. The Contracting
Officer’s investigation adequately explains that there is no actual or potential OCI,
irrespective of the amount of government oversight.”
Although review under the Administrative Procedure Act (APA) is to be applied to
an agency’s decision based on the record the agency presents to the court, the court may
supplement the administrative record when omission of the supplemental material
precludes effective judicial review. See AgustaWestland N. Am., Inc. v. United States,
880 F.3d at 1331-32; see also Axiom Res. Mgmt., Inc. v. United States, 564 F.3d at 1380.
In the above-captioned bid protest, the Army concluded in the October 2, 2018
Determination and Findings that KBRWyle’s “performance of the DTIC DS-TAT task
orders does not create an impaired objectivity organizational conflict of interest that would
impact its ability to provide impartial advice to the Government or otherwise jeopardize
contractor performance.” The court does not need “Sigmatech’s Performance Work
Statement and Deliverables List” or a “complete list of Sigmatech employees assigned to
the Task Order and their duty location” to determine whether KBRWyle will be placed in
a position of compromised impartiality as a result of being a subcontractor on the
DigiFlight Task Order. The “SAMD organizational matrix” offered by Sigmatech is dated
March 14, 2018 and appears to be an outdated version of the Security Assistance
Management Directorate organizational chart dated September 21, 2018,21 which is cited
in the Army’s October 2, 2018 Determination and Findings and included in the
administrative record. The 2005 article from the Army Logistician does not discuss
KBRWyle’s current obligations under the 1374 LTPO Task Order, the 1389 SAMD Task
Order, or the DigiFlight Task Order, but discusses more generally “the LCMC [life-cycle
management command] initiative and what it means for logisticians in the field.”
(emphasis in original). The court, therefore, does not need protestor’s proposed additional
materials to analyze protestor’s impaired objectivity OCI and denies protestor’s motion to
supplement the administrative record. The court, however, notes that protestor’s proffered
materials do not support protestor’s argument of an impaired objectivity OCI.
Additionally, in response to protestor’s hypothetical involving a foreign government
determining that a piece of equipment on a particular missile system, “such as an igniter,
does not work properly,” defendant submitted a November 1, 2018 declaration signed by
Susan Teir, who states that she has been a contracting officer’s representative with the
Security Assistance Management Directorate for almost twenty years. Susan Teir states
that the “purpose of this declaration is to describe the errors in that [Sigmatech’s]
‘hypothetical example’ which make it useless to demonstrate how the contractor operates
under the task orders.” In defendant’s motion to supplement the administrative record,
defendant argues that the November 1, 2018 declaration signed by Susan Teir is
“necessary for effective judicial review of a protest ground brought by Sigmatech” and to
“fill a gap in the administrative record” regarding Sigmatech’s impaired objectivity OCI
21In the “SAMD organizational matrix” offered by Sigmatech, Sigmatech highlighted the
names of Sigmatech employees by placing the names of the Sigmatech employees on
the “SAMD organizational matrix” in a red font.
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allegation. According to defendant, Sigmatech’s hypothetical is factually inaccurate and
was not presented “to the contracting officer before she made her determination that no
OCI existed, so there was no opportunity to enter evidence rebutting the hypothetical into
the record at that time.” At the November 13, 2018 oral argument, counsel of record for
defendant argued that Sigmatech’s statement in its motion for judgment on the
administrative record that KBRWyle would conduct an engineering study was factually
inaccurate and that “[t]he COR states in her declaration that, no, that’s what the original
equipment manufacturer would be doing.” Sigmatech, however, argues that the court
should not supplement the administrative record with the November 1, 2018 declaration
signed by Susan Teir because the “plain text of Ms. Tier’s [sic] declaration demonstrates
that it is a post hoc attempt to add information to the record and may not therefore serve
as a supplement to the record.” (emphasis in original).
Based on the record before the court, Sigmatech first raised its hypothetical
situation involving a defective igniter in its October 19, 2018 motion for judgment on the
administrative record, seventeen days after the Army issued the October 2, 2018
Determination and Findings. The originally filed administrative record22 does not include
the Army’s position on the accuracy of protestor’s hypothetical involving the acquisition
of a defective igniter on a particular missile system or how the Army would address such
a situation. In the November 1, 2018 declaration signed by Susan Teir, Ms. Teir asserts
that:
In a situation like the one described in the [Sigmatech] hypothetical, the
original equipment manufacturer (“OEM”) and its suppliers are used for
cases when PATRIOT components are not operating correctly in Foreign
Military Sales (FMS) systems. The OEM and its suppliers conduct
engineering studies to understand any performance issues and provide
solutions to the government for approval. Once these findings are presented
to the government, the government support contractor (KBRwyle, here)
may be involved with providing independent assessments and
recommendations as inputs to the government to make their decisions.
KBRwyle is not an Original Equipment Manufacturer (OEM), nor does it
have a contractual role with any of the OEM suppliers for the PATRIOT Air
and Missile Defense System.
Ms. Teir further asserts that “KBRwyle is not the decision maker for government approval
of studies or procurements” and that the “situation described in Sigmatech’s ‘hypothetical
22 Defendant filed the administrative record in the above-captioned bid protest on October
1, 2018. On October 3, 2018, defendant filed an amendment to the administrative record,
which included certain documents relied on by Ashantas Cornelius when issuing the
October 2, 2018 Determination and Findings involving the impaired objectivity OCI
allegation. On October 19, 2018, defendant filed a second amendment to the
administrative record, which included three documents defendant stated “should have
been included in the administrative record of the OCI investigation when that record was
filed on October 3, 2018.”
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example’ is not a possibility.” In order to analyze protestor’s “concrete (hypothetical)
example of KBRWyle’s conflicting roles,” the court supplements the administrative record
with the November 1, 2018 declaration signed by Susan Teir. See AgustaWestland N.
Am., Inc. v. United States, 880 F.3d at 1331-32; see also Axiom Res. Mgmt., Inc. v. United
States, 564 F.3d at 1380.
Sigmatech has not supported its hypothetical with any citation to any material in
the administrative record or provided any reason as to doubt the validity of the statements
in the November 1, 2018 declaration signed by Susan Teir. The November 1, 2018
declaration signed by Susan Teir indicates that the original equipment manufacturer, not
KBRWyle, would conduct an engineering study to determine why the igniter in
Sigmatech’s hypothetical was dysfunctional, and that KBRWyle does not provide
approval of government studies or procurements. Based on the record before the court,
Sigmatech’s hypothetical appears to be factually flawed and does not demonstrate that
Ashantas Cornelius irrationally found that there was no impaired objectivity OCI in the
Army’s October 2, 2018 Determination and Findings.
CONCLUSION
The court DENIES protestor’s October 23, 2018 motion to supplement the
administrative record. The court GRANTS defendant’s November 2, 2018 motion to
supplement the administrative record. The court DENIES protestor’s October 19, 2018
motion for judgment on the administrative record. The court GRANTS defendant’s cross-
motion for judgment on the administrative record and defendant-intervenor’s cross-
motion for judgment on the administrative record. The Clerk of the Court shall enter
JUDGMENT consistent with this Opinion.
IT IS SO ORDERED.
s/Marian Blank Horn
MARIAN BLANK HORN
Judge
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