Vsolvit, LLC. v. United States ( 2023 )

IN THE UNITED STATES COURT OF FEDERAL CLAIMS
___________________________________
)
VSOLVIT, LLC, )
)
Plaintiff, )
)
v. ) No. 22-1913
)
THE UNITED STATES, ) Filed: May 25, 2023
)
Defendant, ) Re-issued: June 7, 2023 *
)
and )
)
DELOITTE CONSULTING LLP, )
)
Defendant- )
Intervenor. )
___________________________________ )
OPINION AND ORDER
Plaintiff VSolvit, LLC, filed this post-award bid protest challenging the United States
Department of Agriculture’s (“USDA” or “Agency”) decision to award a fixed-firm-price Call
Order Contract to Defendant-Intervenor Deloitte Consulting LLP under a blanket purchase
agreement (“BPA”) for Agile Salesforce Portal Development and Support Services. VSolvit
contends that the USDA’s award was arbitrary and irrational because (a) the USDA failed to
consider VSolvit’s subcontractors when evaluating Experience and Past Performance; (b) the
USDA improperly assigned VSolvit weaknesses under the Technical evaluation that are
contradicted by VSolvit’s proposal; and (c) the USDA improperly conducted a price realism
*
The Court issued this opinion under seal on May 25, 2023, and directed the parties to file
any proposed redactions by June 1, 2023. To date, the parties did not propose any redactions.
Therefore, the Court reissues the opinion publicly in full.
analysis, which was prohibited under the Request for Quotation (“RFQ” or “Solicitation”). 1
VSolvit requests that the Court set aside the USDA’s decision, enjoin performance of the award
based on the current evaluation, and require the USDA to reevaluate proposals and make a
reasonable award decision.
Before the Court are the parties’ Cross-Motions for Judgment on the Administrative
Record. For the reasons discussed below, the Court DENIES VSolvit’s Motion for Judgment and
GRANTS the Government’s and Deloitte’s Cross-Motions.
I. BACKGROUND
A. The Solicitation
The USDA, through its Rural Utilities Service, offers programs that provide financial
assistance via guaranteed loans, direct loans, and grant assistance to help support businesses and
infrastructure in rural areas. Admin R. 197, ECF No. 33-1 (hereinafter “AR”). 2 On July 20, 2022,
the Agency issued a RFQ pursuant to subpart 8.4 of the Federal Acquisition Regulations (“FAR”)
to the four companies holding the Agency’s Salesforce Portal Development and Support Services
BPA. AR 188, 246, 1356. Through this procurement, the USDA sought to acquire information
technology services to enhance its existing legacy systems to provide a common loan intake,
notification, and award process to scale across program areas. AR 197. The awarded contract
would be for a 12-month base period with three, one-year options. AR 200. Initial proposals were
due on August 15, 2022. AR 188.
1
VSolvit also argued that the Agency was required to consider subcontractor experience
and past performance on the same level as the prime contractor pursuant to Small Business
Administration regulation, 13 C.F.R. § 125.2(g). VSolvit has since withdrawn its protest
arguments based on that regulation. Pl.’s Withdrawal of Objection at 1, ECF No. 36.
2
For ease of reference, citations to the administrative record refer to the bates-labeled page
numbers rather than the ECF page numbers.
2
Per the RFQ, the Agency would award the contract based on a best value basis, considering
three evaluation factors: (1) Technical; (2) Past Performance; and (3) Price. AR 248–52. All the
factors would be considered equal. AR 247. The Technical factor consisted of the following
subfactors: Experience, Technical Approach, Qualifications, and Quality Control. AR 249–51.
Under the Experience subfactor, offerors were to provide up to five relevant and recent past
contracts, which the Agency would evaluate “to determine how closely [the offeror’s provided
experience] matches the [Performance Work Statement (“PWS”)] requirements in scope and size.”
AR 249. “Recent” was defined as performed “within the last 3 years.” AR 249. The Experience
subfactor further required that for each of the contracts listed, the offeror was to provide a brief
description and identify the period of performance, contract value, “the amount your company has
invoiced to date,” and a client contact to verify the experience listed. AR 249 (emphasis added).
The remaining subfactors—Technical Approach, Qualifications, and Quality Control—also
included language (e.g., “Offeror’s,” “your company,” or “your quote”) indicating that the
requested description and details provided should be that of the offeror. AR 250.
Under the Past Performance factor, the RFQ advised offerors that the Agency would base
its evaluation on the same contracts identified for the Experience subfactor. AR 251. It
specifically instructed that no additional information should be submitted because the USDA “will
call and/or email [the] references listed in the Experience technical section . . . to inquire regarding
performance on those contracts.” AR 251. If the references failed to respond, the evaluation rating
would result in an unknown confidence level rating. AR 251. The RFQ stated that the Agency
would also evaluate past performance based on information in the Contractor Performance
Assessment Reporting System (“CPARS”). AR 251. As relevant to VSolvit’s key protest ground,
the past performance instructions also stated the following: “Relevant and recent past performance
3
of the offeror’s team; Relevant performance means projects of similar scope and in similar or
greater magnitude as described in the PWS. Recent means within the last five years.” AR 251
(emphasis added).
Under the Price factor, the RFQ indicated that the Agency would perform a price analysis
to ensure the offeror’s price was fair and reasonable by performing one or more of the following:
comparison of proposed prices received in response to the RFQ, comparison of proposed prices
with the Independent Government Cost Estimate (“IGCE”), comparison of proposed prices with
available historical information, and/or comparison with market survey results. AR 251–52. The
Solicitation explained that price would be “evaluated to determine if it reflects the [Contract Line
Item Numbers (“CLIN”)] structure and if an adequate deliverable pricing schedule is provided.”
AR 252 (emphasis in original). With respect to the latter determination, the evaluation would
focus on whether the deliverable pricing schedule “is reasonably related to the PWS deliverables
and not front-loaded . . . .” AR 252 (emphasis in original).
The RFQ included a Rating System Chart, ranging from supreme confidence to no
confidence, that the Agency would use to assess its level of confidence for each evaluation factor:
4
AR 253. With respect to only the Past Performance factor, an offeror with no recent or relevant
performance record could receive a rating of “Unknown Confidence.” AR 253. To be eligible to
receive an award, an offeror’s quote had to be “deemed to provide at least a satisfactory confidence
level or above” for each factor. AR 248. The selection criteria also specified that the USDA would
award the contract to the offeror “whose Quote, conforming to the [S]olicitation, is fair and
reasonable, and has been determined to be most advantageous to the Government . . . .” AR 248.
The RFQ reserved the Agency’s “right to accept other than the lowest priced offer.” AR 248.
On August 4, 2022, the Agency issued Amendment 0001, consisting of its responses to
vendor questions, which was incorporated into the RFQ. AR 659–62, 1358, 1940. Notably, in
response to Question 6, requesting clarity as to the difference between the definitions of “recent”
as described in the Experience subfactor versus in the Past Performance factor, the Agency
responded as follows:
 Pg 62 – Recent is defined for Experience (What your company did). Here
recent is 3 years as IT changes rapidly and more than 3 years ago may not
reflect current industry needs . . . .
 Pg 64 – Recent is defined for past performance. (How your company
performed doing what it did). Here recent is 5 years as conduct of a
company is not relevant to what it did in terms of the job, but how it did
(performed on that job). Conduct is not tied to industry changes . . . .
AR. 661. On August 24 and 25, 2022, the Agency issued Amendments 0002 and 0003,
respectively, to provide clarity on pricing. AR 663–70, 1358.
B. The Evaluation and Award
On the deadline of August 15, 2022, VSolvit and Deloitte, two of the four eligible BPA
holders, submitted proposals. AR 188, 671, 750, 1356. The USDA received no other bids. AR
1357. On August 25, 2022, VSolvit and Deloitte submitted revised price proposals in response to
Amendments 0002 and 0003. AR 1228, 1256.
5
Between August 15 and 29, 2022, VSolvit and the Agency corresponded regarding the
evaluation of the Experience subfactor. AR 842–92. The Contracting Officer (“CO”), Christy L.
Glass, emailed VSolvit to clarify whether VSolvit was the prime or subcontractor on the specific
work experiences submitted. AR 844–45, 876–77, 886–87, 892–93. VSolvit clarified that its
proposed subcontractors exclusively performed the work in four of the five prior contracts
identified; and thus, only one experience in VSolvit’s proposal represented its own work. AR
752–56, 844, 876, 886, 892. The CO responded that work performed by a proposed subcontractor
on a prior contract “cannot stand in the place of Experience for the Offeror” and that because “the
BPA was solely awarded to VSolvit unfortunately the only Experience listings we can fully
evaluate . . . will be the tasks/work that VSolvit itself did and not the intended subcontractors
(ASRC, DT Pro & MK Partners).” AR 843–44 (emphases in original). In response, VSolvit
requested clarification regarding the Technical factor, arguing that (a) the Solicitation did not
prohibit the inclusion of subcontractor experience; (b) the Solicitation allowed for the
consideration of recent and relevant past performance of the “offeror’s team,” which would include
subcontractors; and (c) FAR 15.305(a)(2)(iii) requires the consideration of subcontractor’s past
performance. AR 849–50. The CO replied, explaining that (a) the Solicitation sought the offeror’s
experience, not that of its subcontractors; (b) the term “offeror’s team” meant “a unit of employees
that work directly for the Offeror, not the Offeror’s subcontractors” and that if VSolvit required
clarification then questions should have been addressed before the closing of the RFQ question
period; and (c) the acquisition was being conducted under FAR subpart 8.4, not FAR part 15, such
that the Agency was not required to consider subcontractor past performance. AR 842.
On August 22, 2022, VSolvit emailed the USDA senior procurement executive, Tiffany
Taylor, raising concerns with the CO’s interpretation of the Solicitation and noting that the
6
Agency’s “methodology of considering ‘prime experience only’ would likely result in an
evaluation of ‘unknown confidence’ on prior experience . . . for VSolvit.” AR 856; see AR 854–
56. On August 29, 2022, Ms. Taylor responded, agreeing with the CO’s determination that the
RFQ did not require the Agency to consider a subcontractor’s experience. AR 852–83. That same
day VSolvit replied, thanking Ms. Taylor for the response, indicating that while it was
disappointing VSolvit “look[ed] forward to participating across other opportunities[,]” and
recommending that the Agency adopt a small business-friendly policy of considering
subcontractor experience as opposed to only prime contractor experience. AR 853. VSolvit did
not request to revise or resubmit the technical portion of its quote in light of the Agency’s
interpretation.
On September 1, 2022, the CO issued the award decision and sent VSolvit a notice of
non-selection. AR 1375, 1894. The Agency’s final evaluation of quotations was as follows:
Bidder Overall Factor 1: Factor 2: Factor 3:
Technical Past Performance Price
Deloitte High Confidence High Confidence High Confidence $9,807,406.42
VSolvit Low Confidence Low Confidence Satisfactory Confidence $6,883,422.30
AR 1364.
After highlighting several items that decreased confidence in VSolvit’s ability to manage
the type of project contemplated by the RFQ, the Technical Evaluation Team (“TET”) determined
that because VSolvit’s quote did not meet the threshold of having at least a satisfactory confidence
rating in the Technical factor, it “[did] not meet the minimum threshold of being a vender qualified
to perform this acquisition work.” AR 1291; see AR 1289–91. The TET concluded that Deloitte’s
quote, on the other hand, offered a high confidence level in both Technical – Factor 1, Past
Performance – Factor 2, and overall. AR 1291. As such, it deemed Deloitte to be likely “the most
7
successful at completing the PWS requirements.” AR 1291. The CO agreed with the TET’s
assessment, finding that VSolvit’s “technical quote did not meet or exceed the Satisfactory
Confidence level required as per the evaluation criteria,” was lacking details in several areas or
nonresponsive to the Solicitation in several key points, and “did not demonstrate a fair pricing as
key elements were not priced.” AR 1374. The CO accepted the TET’s assessment that VSolvit
mostly relied on subcontractors’ experience in its quote and thus was deficient in several PWS
requirements. AR 1360. As well, the CO’s analysis adopted the following four weaknesses,
unrelated to subcontractors, that VSolvit challenges:
• “Section 1.2.1 demonstrates understanding, but not an approach[.]” AR 1362.
• “GridBuddy has already been replaced. Remaining work is for the Operations
Team[.]” AR 1362.
• “One risk is to ‘Bring Vlocity current prior to beginning analysis[]’ [] but this is an
[Operations & Maintenance (“O&M”)] responsibility for which their subcontractor
is already under contract to complete.” AR 1362.
• “VSolvit’s quoted Quality Control is generic and doesn’t address specific
requirements identified under each of the tasks in the PWS . . . . Quality Control is
only really talked about in relation to completing major milestones or modules, not
talked about on the level of user stories, epics, etc. or quality control at a sprint or
iteration level. This is concerning because quality could become a bottleneck at
milestones instead of a regular part of the process . . . .” AR 1363.
The CO concluded that an award to VSolvit would place the USDA at risk and would likely
result in unsuccessful performance. AR 1374. In contrast, she found that Deloitte’s quote offered
high confidence in each factor and “was highly acceptable/responsive to the [S]olicitation in all
8
key points.” AR 1374. Accordingly, the CO determined that Deloitte’s quote represented the best
value to the Government. AR 1375.
C. Procedural Background
1. Protest at the GAO
On September 12, 2022, VSolvit filed a protest with the Government Accountability Office
(“GAO”). AR 1933. It claimed, in relevant part, that the Agency erred by failing to consider
VSolvit’s subcontractors’ experience. AR 1943. The GAO dismissed this aspect of the protest as
untimely. It held that VSolvit’s August 22 email to Ms. Taylor met the standard of an agency-
level protest; and thus, VSolvit was required to file a protest at the GAO within 10 days of Ms.
Taylor’s August 29 reply declining to modify or interpret the Solicitation to require evaluation of
subcontractor experience. AR 3749–50.
2. The Present Protest
On December 28, 2022, VSolvit filed its Complaint in this Court. See Pl.’s Compl., ECF
No. 1. On January 31, 2023, VSolvit filed a Motion for Judgment on the Administrative Record.
See Pl.’s Mot. for J. on Admin. R., ECF No. 27. On February 21, 2023, the Government and
Deloitte filed Cross-Motions for Judgment on the Administrative Record. See Def.’s Cross-Mot.
for J. on Admin. R., ECF No. 32; Def.-Intervenor’s Cross-Mot. for J. on Admin. R., ECF No. 30.
The Government later filed a corrected Cross-Motion for Judgment on the Administrative Record.
See Def.’s Corrected Cross-Mot. for J. on Admin. R., ECF No. 40. The motions are now fully
briefed. See Pl.’s Reply, ECF No. 35; Def.’s Reply, ECF No. 42; Def.-Intervenor’s Reply, ECF
No. 41. The Court held oral argument on April 6, 2023.
9
II. LEGAL STANDARDS
A. Motions for Judgment on the Administrative Record
Rule 52.1(c) of the Rules of the United States Court of Federal Claims (“RCFC”) governs
motions for judgment on the administrative record. Such motions are “properly understood as . .
. an expedited trial on the record.” Bannum, Inc. v. United States, 404 F.3d 1346, 1356 (Fed. Cir.
2005). In contrast to the standard for summary judgment, “the standard for judgment on the
administrative record is narrower” and involves determining, “given all the disputed and
undisputed facts in the administrative record, whether the plaintiff has met the burden of proof to
show that the [challenged action or] decision was not in accordance with the law.” Martinez v.
United States, 77 Fed. Cl. 318, 324 (2007) (citing Bannum, 404 F.3d at 1357). Therefore, a
genuine issue of disputed fact does not prevent the Court from granting a motion for judgment on
the administrative record. See Bannum, 404 F.3d at 1357.
B. Bid Protest Standard of Review
The Tucker Act, as amended by the Administrative Dispute Resolution Act of 1996,
provides the Court of Federal Claims with “jurisdiction to render judgment on an action by an
interested party objecting to . . . the award of a contract or any alleged violation of statute or
regulation in connection with a procurement . . . .” 28 U.S.C. § 1491(b)(1). In such actions, the
Court “review[s] the agency’s decision pursuant to the standards set forth in section 706” of the
Administrative Procedure Act. 28 U.S.C. § 1491(b)(4); see Banknote Corp. of Am., Inc. v. United
States, 365 F.3d 1345, 1350 (Fed. Cir. 2004). Accordingly, the Court examines whether an
agency’s action was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance
with law.” 5 U.S.C. § 706(2)(A); see Impresa Construzioni Geom. Domenico Garufi v. United
States, 238 F.3d 1324, 1332 n.5 (Fed. Cir. 2001). Under such review, an “award may be set aside
10
if either: (1) the procurement official’s decision lacked a rational basis; or (2) the procurement
procedure involved a violation of regulation or procedure.” Impresa, 238 F.3d at 1332. To prevail
in a bid protest, “a protestor must show a significant, prejudicial error in the procurement process.”
WellPoint Mil. Care Corp. v. United States, 953 F.3d 1373, 1377 (Fed. Cir. 2020) (quoting Alfa
Laval Separation, Inc. v. United States, 175 F.3d 1365, 1367 (Fed. Cir. 1999)). A protestor
establishes prejudice by showing “that there was a substantial chance it would have received the
contract award but for that error.” Alfa Laval, 175 F.3d at 1367 (quoting Statistica, Inc. v.
Christopher, 102 F.3d 1577, 1582 (Fed. Cir. 1996)).
In reviewing an agency’s procurement decisions, the Court does not substitute its judgment
for that of the agency. See Redland Genstar, Inc. v. United States, 39 Fed. Cl. 220, 231 (1997);
Cincom Sys., Inc. v. United States, 37 Fed. Cl. 663, 672 (1997); see also M.W. Kellogg Co. v.
United States, 10 Cl. Ct. 17, 23 (1986) (holding that “deference must be afforded to an agency’s
. . . procurement decisions if they have a rational basis and do not violate applicable law or
regulations.”). The disappointed bidder “bears a heavy burden,” and the CO is “entitled to exercise
discretion upon a broad range of issues . . . .” Impresa, 238 F.3d at 1332–33 (citations and quotes
omitted). This burden “is not met by reliance on [the] pleadings alone, or by conclusory allegations
and generalities.” Bromley Contracting Co. v. United States, 15 Cl. Ct. 100, 105 (1988); see
Campbell v. United States, 2 Cl. Ct. 247, 249 (1983). A procurement decision is rational if “the
contracting agency provided a coherent and reasonable explanation of its exercise of discretion.”
Impresa, 238 F.3d at 1333. “[T]hat explanation need not be extensive.” Bannum, Inc. v. United
States, 91 Fed. Cl. 160, 172 (2009) (citing Camp v. Pitts, 411 U.S. 138, 142–43 (1973)).
In a protest, the Court applies de novo review to any questions of law. NVT Techs., Inc. v.
United States, 370 F.3d 1153, 1159 (Fed. Cir. 2004). The interpretation of a solicitation or of
11
procurement regulations present such questions. See id.; United States v. Boeing Co., 802 F.2d
1390, 1393 (Fed. Cir. 1986). Regardless of whether the decision on review is of the contracting
officer or of the GAO, the Court of Federal Claims does not afford deference on questions of law.
See VS2, LLC v. United States, 155 Fed. Cl. 738, 767 (2021).
C. Standing in a Bid Protest
To demonstrate standing in a bid protest, the plaintiff is required to establish that it is an
interested party, meaning it “is an actual or prospective bidder[ ] and . . . possesses the requisite
direct economic interest.” Rex Serv. Corp. v. United States, 448 F.3d 1305, 1307 (Fed. Cir. 2006).
To show a “direct economic interest,” the plaintiff must show that it was prejudiced by the
Government’s alleged errors by proving it had a “substantial chance” of receiving the contract.
Myers Investigative and Sec. Servs., Inc. v. United States, 275 F.3d 1366, 1370 (Fed. Cir. 2002).
Stated another way, a plaintiff has standing to pursue a bid protest if it demonstrates that “but for
the error[s]” challenged in the protest it “would have had a substantial chance of securing” the
contract at issue. Labatt Food Serv., Inc. v. United States, 577 F.3d 1375, 1378 (Fed. Cir. 2009);
see Alfa Laval, 175 F.3d at 1367.
The Federal Circuit recently held that § 1491(b)(1)’s interested party requirement presents
a question of statutory standing that does not implicate this Court’s subject-matter jurisdiction.
CACI, Inc.-Federal v. United States, No. 22-1488, 2023 WL 3327090, at *4 (Fed. Cir. May 10,
2023). 3 According to CACI, the Court may thus choose—but is not required—to make an initial,
“preliminary determination (‘substantial chance’) with respect to the plaintiff’s chances of
securing the contract” before addressing the merits. Id. at *5. As the Circuit further observed, the
3
The Federal Circuit has not yet issued the mandate in CACI. The Court nonetheless
acknowledges the change in precedent on this issue.
12
statutory standing issue and the merits issue may be overlapping, especially where the plaintiff’s
protest challenges the contracting officer’s evaluation of its own bid. Id. (citing COMINT Sys.
Corp. v. United States, 700 F.3d 1377, 1383 (Fed. Cir. 2012) (noting that propriety of ratings
assigned to the protestor’s proposal were determinative of both standing and the merits)).
III. DISCUSSION
A. VSolvit Has Standing to Bring This Bid Protest.
The Government and Deloitte briefly argue that VSolvit does not have standing to
challenge the interpretation of the Solicitation because it does not have a “substantial chance” of
receiving the contract. They contend that if the Court grants VSolvit’s requested relief—i.e.,
amendment of the solicitation and the opportunity to submit revised proposals—VSolvit
admittedly lacks the requisite prior experience without consideration of subcontractor experience.
See ECF No. 40 at 29–30; ECF No. 30 at 34–36.
When considering prejudice as part of a threshold standing inquiry in a bid protest, even in
the context of dispositive motions, the Court accepts the protestor’s well-pleaded allegations of
error in the procurement process to be true. See, e.g., Info. Tech. & Applications Corp. v. United
States, 316 F.3d 1312, 1319 (Fed. Cir. 2003) (finding the protestor had standing assuming it
succeeded on all its protest grounds); Am. Relocation Connections, LLC v. United States, 789 F.
App’x 221, 227–28 (Fed. Cir. 2019). Applying that standard, courts appear to evaluate the
allegations of error as a whole when determining whether the protestor has satisfied the standing
requirement. See Beta Analytics Int’l, Inc. v. United States, 67 Fed. Cl. 384, 396 (2005) (analyzing
standing based on the protestor’s “various challenges” to the procuring agency’s evaluation and
ratings); see Linc Gov’t Servs., LLC v. United States, 96 Fed. Cl. 672, 696 (2010), abrogated on
other grounds by Safeguard Base Operations, LLC v. United States, 989 F.3d 1326 (Fed. Cir.
13
2021) (standing inquiry looks at “the combined impact of all agency decisions alleged to be
unlawful” (emphasis in original)).
The Government’s and Deloitte’s arguments conflate the prejudice analysis relevant to a
standing inquiry with the prejudice element relevant to the merits of the protest. See Am.
Relocation Connections, 789 F. App’x at 226 (“For standing, we presume the party bringing a bid
protest will succeed on the merits of its claim and ask whether it has alleged an injury (or prejudice)
caused by the procuring agency’s actions. . . . [If] a party has standing, we [evaluate] the merits . .
. and . . . whether it . . . was prejudiced[.]”). Indeed, this case presents a scenario where the standing
issue and the merits issue are overlapping. See CACI, 2023 WL 3327090, at *5. As relevant to
the preliminary standing inquiry, the Court finds that VSolvit has shown it would have had a
substantial chance of receiving the contract but for all the alleged agency errors. Taking as true
that the RFQ unambiguously required the USDA to evaluate VSolvit’s proposal by considering
subcontractor experience, then the appropriate relief is to set aside the award and require a
reevaluation pursuant to the Solicitation’s terms. ECF No. 27 at 22; see Info. Tech., 316 F.3d at
1319. In that case, the CO could have rated VSolvit as at least “Satisfactory Confidence” under
Technical – Factor 1 because crediting its subcontractors’ experience would have significantly
reduced the number of assigned weaknesses to VSolvit. See AR 752–56, 1361–63. With only one
other offeror in the zone of consideration, which had a substantially higher price quote, VSolvit
would have had a “substantial chance” of receiving the contract, especially if the Court also accepts
as true that the USDA improperly performed a price realism analysis. Myers Investigative & Sec.
14
Servs., 275 F.3d at 1370; see AR 2665, 2677. Accordingly, VSolvit has sufficiently demonstrated
that it has standing to pursue this bid protest. 4
B. The RFQ Did Not Require the USDA to Consider Subcontractor Experience in
Evaluating the Quotes.
VSolvit argues that the USDA’s evaluation of its proposal under the Experience subfactor
and Past Performance factor was contrary to the express, unambiguous terms of the RFQ, and that
a proper evaluation of VSolvit’s experience (to include its subcontractor’s experience) would have
resulted in higher ratings for Factors 1 and 2. ECF No. 27 at 21; ECF No. 35 at 9–10. VSolvit’s
protest ground rests almost entirely on its interpretation of the term “offeror’s team” referred to
once in the RFQ’s Past Performance evaluation criteria—a hefty burden for any single term to
carry. AR 251; ECF No. 27 at 22; ECF No. 35 at 8.
Principally, VSolvit argues that the RFQ’s reference to “offeror’s team” in Past
Performance must “encompass[] more than the offeror itself because the RFQ would have just said
offeror if that were indeed the case.” ECF No. 27 at 22. It emphasizes that “team” is a term of art
in government procurements and is commonly understood under FAR 9.601 to include “contractor
team arrangements” composed of prime contractors and subcontractors. Id.; 48 C.F.R. § 9.601(defining an arrangement in which “(1) Two or more companies form a partnership or joint venture
to act as a potential prime contractor; or (2) A potential prime contractor agrees with one or more
other companies to have them act as its subcontractors under a specified Government contract or
acquisition program.”). VSolvit argues that the only reasonable interpretation of “offeror’s team”
would thus include an offeror and its proposed subcontractors. ECF No. 35 at 8; Oral Arg. Tr. at
12:13–19, ECF No. 46. Working backwards from the Past Performance factor, VSolvit argues
4
The Court’s conclusion would be the same regardless of whether the issue is analyzed as
a jurisdictional or statutory standing question.
15
that the Experience subfactor likewise contemplated evaluation of prior contracts performed by
both VSolvit and its proposed subcontractors, even though the Experience evaluation criteria did
not refer to subcontractors or “team” at all. In the alternative, to the extent an ambiguity existed
in the RFQ, VSolvit contends it was latent and should be construed against the USDA. ECF No.
27 at 24–25; ECF No. 35 at 11–12.
The Government and Deloitte disagree, arguing that neither the FAR nor the RFQ required
the USDA to consider an offeror’s subcontractors when evaluating Experience or Past
Performance. ECF No. 40 at 28; ECF No. 30 at 12; ECF No. 41 at 6; ECF No. 42 at 6–7. Both
parties highlight that there are no provisions in the RFQ that referred to subcontractors, let alone
required the evaluation of subcontractors. ECF No. 42 at 6; see ECF No. 30 at 13. Moreover, the
Government points out that the Solicitation used the word “team” in various ways, undermining
VSolvit’s contention that “team” has only one reasonable interpretation. ECF No. 42 at 6; see,
e.g., AR 209 (“scrum teams”), AR 218 (“Quality Management Team”), AR 222 (“contractor
team”), AR 533 (Team in the Agile Sense—i.e., “a small group of people assigned to the same
project or effort”). Deloitte asserts that the broader phrase at issue—“Relevant and recent Past
Performance of the offeror’s team”—in the section describing the Past Performance factor must
be considered in the context of the Solicitation as a whole, and necessarily must be read in light of
the Experience subfactor, which limited the past performance evaluation to the offeror’s prior
contracts. AR 251; ECF No. 30 at 13–14. Deloitte argues that this interpretation is reinforced by
Question and Answer 6 (“Q&A 6”), which clearly explained that the evaluation of the Experience
subfactor and Past Performance factor would consider what “your company did”—i.e., the offeror,
not its subcontractors—and how well “your company performed.” AR 661; ECF No. 30 at 14.
16
In the alternative, the Government and Deloitte argue that, at best, VSolvit has identified a
patent ambiguity apparent on the face of the RFQ, which VSolvit should have raised prior to the
close of bidding or award. ECF No. 30 at 15, 19–22; ECF No. 40 at 23; ECF No. 42 at 5–7; see
Blue & Gold Fleet, L.P. v. United States, 492 F.3d 1308, 1313 (Fed. Cir. 2007); see also COMINT
Sys., 700 F.3d at 1382 (extending Blue & Gold to all pre-award situations).
1. VSolvit Has Not Shown That the Term “Offeror’s Team” Viewed in the Context
of the Whole Solicitation Unambiguously Included Proposed Subcontractors.
VSolvit’s primary claim involves an interpretation of RFQ terms, and as such presents a
question of law. Banknote Corp. of Am., 365 F.3d at 1353. The principles governing contract
interpretation apply with equal force when the Court is tasked with interpreting a solicitation. Id.
at 1353 n.4 (citing Grumman Data Sys. Corp. v. Dalton, 88 F.3d 990, 997–98 (Fed Cir. 1996)).
Thus, the Court must begin with the text of the RFQ. Id. at 1353; see Coast Fed. Bank, FSB v.
United States, 323 F.3d 1035, 1038 (Fed. Cir. 2003) (citing Foley Co. v. United States, 11 F.3d
1032, 1034 (Fed. Cir. 1993)). If the RFQ’s “provisions are clear and unambiguous, they must be
given their plain and ordinary meaning.” McAbee Constr., Inc. v. United States, 97 F.3d 1431,
1435 (Fed. Cir. 1996) (quoting Ala. Lumber & Pulp Co. v. Madigan, 2 F.3d 389, 392 (Fed. Cir.
1993)). A mere “disagreement as to the meaning of a contract term does not of itself render the
term ambiguous.” C. Sanchez & Son, Inc. v. United States, 6 F.3d 1539, 1544 (Fed. Cir. 1993).
A court should find a term ambiguous only “[i]f more than one meaning is reasonably consistent
with the contract language.” Grumman Data Sys., 88 F.3d at 997; see Per Aarsleff A/S v. United
States, 829 F.3d 1303, 1309 (Fed. Cir. 2016) (“The solicitation is ambiguous only if its language
is susceptible to more than one reasonable interpretation.” (quoting Banknote Corp. of Am., 365
F.3d at 1353)).
17
In determining the meaning of its terms, the RFQ must be construed as a whole and “in a
manner that gives meaning to all of its provisions and makes sense.” McAbee Constr., 97 F.3d at1435 (citing Hughes Commc’ns Galaxy, Inc. v. United States, 998 F.2d 953, 958 (Fed. Cir. 1993)).
If the Court finds that “specific and general terms in [the RFQ] are in conflict, those which relate
to a particular matter control over the more general language.” Info. Scis. Corp. v. United States,
80 Fed. Cl. 759, 792 (2008) (quoting Hills Materials Co. v. Rice, 982 F.2d 514, 517 (Fed. Cir.
1992)). Ultimately, the Court is guided by the principle that an “interpretation that gives meaning
to all parts of the [solicitation] is to be preferred over one that leaves a portion of the [solicitation]
useless, inexplicable, void, or superfluous.” NVT Techs., 370 F.3d at 1159.
When viewed in total isolation, VSolvit’s understanding of the word “team” is arguably a
reasonable one. A “team” is characterized not necessarily by the particular status of its individual
members (e.g., who directly employs them) but rather by their collaborative efforts to achieve a
common goal. Nothing in the RFQ prohibited offerors from using subcontractors to perform the
tasks set forth in the PWS. Thus the term “offeror’s team,” devoid of any further context, could
rationally be read to include subcontractors because that is consistent with the plain and ordinary
(and rather broad) meaning of the word “team.” AR 251. As VSolvit highlights, even FAR
9.601(2)’s definition of a “contractor team arrangement” specifically contemplates prime
contractors teaming up with subcontractors to perform government contracts.
But consistent with the CO’s explanation, a “team” can also arguably consist of the offeror
and its direct employees. See AR 842. Two reasonable interpretations typically suggest that a
term is ambiguous. See Per Aaasleff, 829 F.3d at 1309. However, after careful consideration, the
Court finds that VSolvit’s interpretation of “team” ignores the context of the RFQ as a whole and
does not make sense of all its provisions. See McAbee Constr., 97 F.3d at 1435. In short, the term
18
“offeror’s team” cannot be read in isolation. NVT Techs., 370 F.3d at 1159. Viewing the term in
its proper context, only the Government’s and Deloitte’s interpretation of “offeror’s team” as
referring to the offeror (and those employees working directly for the offeror) is consistent with
the framework of the evaluation as a whole, the requirements of the Experience subfactor, and the
description of the Experience subfactor and Past Performance factor.
First, evaluating the structure and organization of the Past Performance – Factor 2 section
at issue, the relevant term “offeror’s team” was mentioned only once within an incomplete phrase
(“Relevant and recent Past Performance of the offeror’s team;”) that introduced the definitions of
“relevant” and “recent” performance under the Past Performance evaluation criteria. AR 251. For
clarity, Past Performance – Factor 2 is excerpted in full below.
AR 251. Notably, Q&A 6 directly addressed what is “recent” for the Experience subfactor versus
the Past Performance factor, by explaining that Experience related to “[w]hat your company did”
while Past Performance related to “[h]ow your company performed doing what it did[.]” AR 661
19
(emphases added). As explained further below, the term “your company” in the Q&A plainly
referred to the offeror, not its proposed subcontractors. Because the Q&A response was
incorporated as Amendment 0001 to the Solicitation prior to the close of bidding, it is part of the
Solicitation. See Per Aarsleff, 829 F.3d at 1311 (“[A]nswers [to bidder’s questions], when
circulated to all [bidders] as an attachment to an amendment signed by the contracting officer,
constitute an amendment of the solicitation.” (quoting BayFirst Sols., LLC v. United States, 102
Fed. Cl. 677, 689 n.15 (2012))).
VSolvit’s attempt to limit the relevance of Q&A 6 to the meaning of “recency,” not the
pertinent question of whether “an offeror’s team” includes its subcontractors, is unpersuasive.
ECF No. 35 at 10. Because the phrase containing “offeror’s team” introduced the explanation of
what “relevant” and “recent” mean under Past Performance – Factor 2, the terms were directly
linked by the language’s placement and structure. See AR 251 (“Relevant and recent Past
Performance of the offeror’s team; Relevant performance means . . . . Recent means . . . .”
(emphases added)); see McAbee Constr., 97 F.3d at 1435. The Government’s clarification in Q&A
6 thus fully supports the interpretation that “offeror’s team” is synonymous with “your company,”
which both refer to the offeror itself. 5
Second, contrary to VSolvit’s argument, the Experience subfactor helps inform the
meaning of “offeror’s team” in the Past Performance factor, not the other way around. Past
5
That the Agency intended to specifically evaluate the offeror’s past performance is also
demonstrated by the RFQ’s rating system, which had a category only relevant to the Past
Performance factor. AR 253. Specifically, a rating of “Unknown Confidence” would be assigned
if “the offeror’s performance is so sparse that no meaningful confidence assessment rating can be
reasonably assigned[.]” AR 253 (emphasis added). Consistent with the rating system, the Past
Performance evaluation criteria elaborated that if an offeror lacked relevant past performance
history, it may receive “No Rating.” AR 251.
20
Performance – Factor 2 expressly stated that the offeror should submit no additional information
for the evaluation because the Agency would contact the references listed in the Experience
subfactor to inquire regarding performance on those prior contracts. AR 251. Other than what
was already submitted under the Experience subfactor, the RFQ also explained that the
Government would review information in the CPARS to evaluate “an Offeror’s past
performance.” 6 AR 251. The RFQ thus confirmed that the Past Performance factor was expressly
limited by the Experience subfactor.
To be sure, the RFQ’s Experience subfactor was not drafted as clearly as it could have been
because the evaluation criteria did not specify at the outset (as the other subfactors of the Technical
factor did) that the information submitted should be that of the offeror only, considering it directed
the submission of “five relevant and recent past contracts” and stated that an “offeror’s provided
experience will be evaluated.” AR 249 (emphasis added). However, inartful drafting does not
automatically render a solicitation ambiguous. See CW Gov’t Travel, Inc. v. United States, 99 Fed.
Cl. 333, 674 (2011). And the subfactor did explicitly state that for each contract submitted, the
proposal should include the “amount your company has invoiced to date[.]” AR 249. This
requisite element for each submitted experience necessarily meant that only prior contracts under
which the offeror performed work were relevant to the Experience evaluation, since “your
company” was consistently and plainly used throughout the RFQ and in the Q&A 6 to refer to the
offeror’s company. AR 249–50, 661. The invoice requirement would be rendered illogical if
VSolvit could substitute amounts invoiced to its proposed subcontractors, rather than VSolvit as
an independent entity. Alternatively, VSolvit’s interpretation would create a direct conflict in the
6
In Q&A 9, the USDA explained that to perform the CPARS review it would “pull all
CPAR reports based on the quoter’s DUNs/UEI.” AR 662 (emphasis added).
21
RFQ’s language because VSolvit could not strictly comply with the invoice requirement if the
Experience and Past Performance evaluations included contracts performed exclusively by its
subcontractors. Where specific and general terms are in conflict, those that relate to the specific
provision—here, the provision defining the information to be—should control. See Info. Scis.
Corp, 80 Fed. Cl. at 792. Because the Court’s task is to interpret the RFQ in a way that makes
sense of all its parts without rendering any part nonsensical, inexplicable, or superfluous, it must
reject VSolvit’s strained interpretation. See McAbee Constr., 97 F.3d at 1435.
Finally, the RFQ repeatedly used language referring to the “offeror,” “your company,” or
“your quote,” providing contextual support for the conclusion that “offeror’s team” also referred
to the offeror’s company (and those employed with the company) as opposed to its subcontractors.
AR 249–51; see AR 250 (“Offeror’s narrative will be evaluated . . . Your quote should convey the
story about how the work will be successfully completed and . . . how your company will mitigate
possible unforeseen challenges . . . Offeror’s capabilities, background, and relevant information .
. . Offeror’s Key Personnel . . . Offeror’s brief plan . . . .” (emphases added)). By contrast, the
RFQ never referred to an offeror’s proposed subcontractors, and it employed the term “team” in a
variety of different ways. Looking at the Solicitation as a whole, there is simply no basis to
conclude that the lone reference to “offeror’s team” was reasonably meant to expand the Agency’s
Experience and/or Past Performance evaluations to subcontractors where the balance of the RFQ
was focused solely on the offeror.
VSolvit argues that the Government’s and Deloitte’s interpretation renders the word
“team” in “offeror’s team” superfluous since it could have easily been omitted. ECF No. 35 at 9.
The Court disagrees. While the term “team” could aptly describe several possible groupings of
individuals or entities, one such group is the employees that work directly for the offeror, as is the
22
case here, meaning the term is not per se superfluous since it provides some additional detail. In
the context of describing an evaluation focused on “[h]ow your company performed doing what it
did,” AR 661, the Court cannot agree that including a reference to the employees of the company
who performed the work served no useful purpose.
Based on the foregoing, the Court concludes that under the only reasonable interpretation
of “offeror’s team” the USDA was not required to evaluate VSolvit’s proposed subcontractors
pursuant to the Experience or Past Performance evaluation criteria.
2. VSolvit Has Not Shown, In the Alternative, That the RFQ Was Latently
Ambiguous.
Even if VSolvit had demonstrated that there was an ambiguity in the RFQ, however, it
would be a patent—not latent—ambiguity that VSolvit was required to raise prior to award. Just
as whether a solicitation provision was ambiguous is a question of law for the Court, so is the
question of whether an ambiguity was patent or latent. NVT Techs., 370 F.3d at 1159 (setting forth
a two-part analysis: (1) “whether the solicitation supports only one reading or supports more than
one reading and is ambiguous,” and (2) “whether the ambiguity was patent”). A patent ambiguity
is present where there are facially inconsistent provisions that would “place a reasonable contractor
on notice and prompt the contractor to rectify the inconsistency by inquiring of the appropriate
parties.” Per Aarsleff, 829 F.3d at 1312 (quoting Stratos Mobile Networks USA, LLC v. United
States, 213 F.3d 1375, 1381 (Fed. Cir. 2000)); see NVT Techs., 370 F.3d at 1162 (“If the ambiguity
is patent, it triggers a duty to inquire. A patent ambiguity is one that is “‘obvious, gross, [or]
glaring, so that plaintiff contractor had a duty to inquire about it at the start.’” (quoting H & M
Moving, Inc. v. United States, 204 Ct. Cl. 696 (1974))). A latent ambiguity is hidden or concealed,
not apparent on the face of the document, could not be discovered by “reasonable and customary
care[,] and is not so patent and glaring as to impose an affirmative duty on plaintiff to seek
23
clarification.” Id. (quoting Analytical & Rsch. Tech., Inc. v. United States, 39 Fed. Cl. 34, 46
(1997)). “[A] party who has the opportunity to object to the terms of a government solicitation
containing a patent error and fails to do so prior to the close of the bidding process waives its
ability to raise the same objection subsequently in a bid protest in the Court of Federal Claims.”
Blue & Gold, 492 F.3d at 1313; see COMINT Sys., 700 F.3d at 1382.
Here, assuming the parties’ interpretations of the RFQ are both reasonable such that a true
ambiguity exists, it was not hidden or concealed. If, as VSolvit argues, “offeror’s team” in Past
Performance – Factor 2 could reasonably be construed to include subcontractors, the only place
VSolvit could submit its subcontractors’ experience in lieu of its own would be under the
Experience subfactor of Technical – Factor 1, since no additional information could be submitted
for Factor 2 itself. ECF No. 35 at 12–13. One would expect that a quoter who so broadly
interpreted the word “team” would, as a matter of reasonable and customary care, read the
evaluation criteria of Technical – Factor 1, its subparts, the Rating Systems Chart, as well as the
clarification in Amendment 0001 and inquire why the USDA specified on several occasions that
information submitted should be that of the offeror or “your company” and why the Experience
subfactor did not request information as to the “offeror’s team.”
VSolvit highlights that the language in the Experience subfactor did not expressly specify
that the five experiences submitted must be that of the offeror. And since it “[did] not direct who
must submit, just what must be submitted,” VSolvit argues that the Solicitation did not present a
glaring conflict that would constitute a patent ambiguity. 7 ECF No. 35 at 13. Notably, VSolvit
7
VSolvit further contends that the Agency did evaluate its subcontractors, which it “would
not have done had it believed ‘team’ meant just the offeror.” ECF No. 35 at 13. This contention
is expressly belied by the record. See e.g., AR 1360 (noting that VSolvit heavily relied on
subcontractor experience but that “the reviewers only considered the experience of the offeror”).
24
ignores the specific requirement within the Experience subfactor that the offeror submit the
“[a]mount your company has invoiced to date” for each contract identified. AR 251 (emphasis
added). As explained above, if “offeror’s team” included subcontractors, and thus subcontractor
experience was relevant under the Experience subfactor, the invoice requirement was glaringly
and obviously illogical or conflicting. At the very least, Q&A 6 in Amendment 0001, adopted
prior to the close of bidding, certainly raised an affirmative duty to inquire because the Agency
clarified that the Experience subfactor and Past Performance factor would be evaluated based on
the distinct experience of “your company”—i.e., the offeror. AR 661. As such, accepting
VSolvit’s reading of the term “offeror’s team,” the RFQ would be best described as containing “an
omission, inconsistency, or discrepancy” and, thus, a patent ambiguity. Inserso Corp. v. United
States, 961 F.3d 1343, 1349 (Fed. Cir. 2020).
3. Even Assuming the RFQ Was Ambiguous, VSolvit Cannot Demonstrate Prejudice.
Accepting arguendo that VSolvit has shown the term “offeror’s team” is either patently or
latently ambiguous, it cannot be afforded the relief it seeks because it cannot show that the
ambiguity prejudiced it. 8 Alfa Laval, 175 F.3d at 1367 (explaining that prejudice is established by
showing there was a substantial chance the protester would have received the contract award but
for the agency’s error); see Data Gen. Corp. v. Johnson, 78 F.3d 1556, 1562 (Fed. Cir. 1996)
(“[T]o prevail in a protest[,] the protester must show not only a significant error in the procurement
process, but also that the error prejudiced it.”).
Here, if the Court remanded the matter for the Agency to clarify the meaning of “offeror’s
team,” VSolvit would be entitled to submit another proposal including only its own experience as
8
For this reason, the Court need not address the parties’ dispute as to whether VSolvit
preserved its argument by submitting an agency-level protest prior to award. ECF No. 27 at 18;
ECF No. 35 at 9–10; see ECF No. 30 at 18–19, ECF No. 41 at 14.
25
opposed to that of its proposed contractors. ECF No. 46 at 18:8–19:16, 33:6–18, 44:3–19; see e.g.,
ARxIUM, Inc. v. United States, 136 Fed. Cl. 188, 210 (2018) (granting protest and ordering the
agency to clarify a latently ambiguous term to clearly state the requirement and provide offerors
an opportunity to submit revised quotations). However, the record establishes that VSolvit does
not have the necessary experience on its own; and therefore, VSolvit is unable to demonstrate
prejudice. See Data Gen., 78 F.3d at 1562. In its current proposal, only one of the five submitted
experiences was that of VSolvit. AR 752–56. In an email to Ms. Taylor, VSolvit admitted that
the USDA’s current evaluation methodology “of considering ‘prime experience only’ would likely
result in an evaluation of ‘unknown confidence’ on prior experience for small business offerors
such as VSolvit.” AR 856. And after Ms. Taylor affirmed that the Agency’s evaluation
methodology did not consider subcontractor experience, VSolvit expressed disappointment,
encouraged the Agency to modify its policy to permit subcontractor experience so small businesses
could participate, and noted an intention to participate in other opportunities—implying that
VSolvit recognized it would not be able to revise its proposal with additional experience of its
own. AR 856. As the Government highlights, that inference is supported by the fact that, after it
learned that subcontractor experience would not be considered, VSolvit did not seek to amend its
quote. ECF No. 40 at 29. Furthermore, in the GAO protest, VSolvit expressly conceded that its
“experience alone [did] not meet all the Solicitation requirements.” AR 1951.
As such, based on the record before it, the Court concludes that without VSolvit’s proposed
subcontractors’ experience, it cannot improve its low confidence rating under Technical – Factor
26
1. 9 Therefore, even if there were an ambiguity in the RFQ, VSolvit cannot demonstrate prejudice
because it remains ineligible for, and thus does not have a substantial chance of winning, the award.
C. VSolvit Fails to Show that the CO Irrationally Assigned Weaknesses to VSolvit
Under the Technical Factor.
Other than weaknesses assigned based on its lack of sufficient experience, VSolvit argues
that the CO irrationally assigned four weaknesses to VSolvit under Technical – Factor 1. 10 The
Court concludes that all four weaknesses were rationally assigned.
1. The CO Rationally Assigned VSolvit a Weakness Because Section 1.2.1 of Their
Quote Demonstrated an Understanding, But Not an Approach.
The CO concluded that VSolvit’s technical proposal for providing Development,
Modernization, and Enhancement (“DME”) support services (Section 1.2.1) “demonstrates
understanding, but not an approach[.]” AR 1362. VSolvit argues that the CO’s failure to recognize
its approach is arbitrary and capricious, noting that it described how it would update the Agency’s
existing system and ensure the task was completed, provided specifics of key system updates, and
demonstrated its knowledge and experience in carrying out the described processes. ECF No. 27
9
At oral argument, when asked whether VSolvit would be able to submit more information
of its own with regard to experience and past performance, counsel indicated that VSolvit has
“experience with this work” and “their own independent ability to perform.” ECF No. 46 at 19:17–
20:8. From this response, it is not clear that VSolvit could identify additional contracts for the
Experience subfactor. And considering VSolvit’s representations to the contrary in the
administrative record before the Court, counsel’s response does not “rise above a ‘bare possibility’
that a new proposal would improve [VSolvit’s] Factor 1 rating, let alone lead to a substantial
chance of award.” Coastal Env’t Grp., Inc. v. United States, No. 22-868C, 2023 WL 1794581, at
*10 (Fed. Cl. Jan. 19, 2023).
10
VSolvit challenged several assigned weaknesses on the basis that the CO did not properly
consider its proposed subcontractors’ experience, including lack of experience in Salesforce;
eNotary; Development of Map, Mapping Tools, and Searchable Map Databases; Secure and
Scalable Application Programming Interfaces using Mulesoft; Creating, Modifying, and Hosting
ArcGIS Rest Services and APIs; and GIS Integration. ECF No. 35 at 17–22. Because the Court
finds that the Agency was not required to consider subcontractor experience, no further review of
these weaknesses is necessary.
27
at 30; AR 757. The Government and Deloitte argue that the CO’s assignment of this weakness
was rational because a plain reading of Section 1.2.1 of VSolvit’s proposal demonstrates its
understanding, knowledge, and experience but does not provide a clear approach explaining how
it will perform the PWS requirements. ECF No. 40 at 33–34; ECF No. 30 at 37.
Based on a review of VSolvit’s quote, the CO’s assessment was rational. Specifically,
VSolvit’s proposal outlined what the USDA aimed to achieve in the procurement (e.g., update the
ReConnect online application, allow Telecom Program’s Public Notice Filing and Responses,
etc.), demonstrating an understanding of the required tasks, and it repeatedly discussed VSolvit’s
knowledge and related experience to demonstrate it was well positioned for the work. But VSolvit
failed to provide details about how it would perform the work. AR 757–59. As such, it was not
irrational for the CO to conclude based on a plain reading of its proposal that VSolvit failed to
provide an approach. Where the CO has provided a clear, rational basis supporting her decision,
mere disagreement with the Agency’s evaluation is not sufficient to establish that the evaluation
was unreasonable or that the process was arbitrary or capricious. See Bannum, 91 Fed. Cl. at 171,
176.
2. The CO Rationally Assigned VSolvit a Weakness for its Discussion of GridBuddy.
The CO agreed with the TET’s assessment that VSolvit’s discussion of GridBuddy
decreased confidence in its proposal. AR 1362. Specifically, the CO noted that GridBuddy had
already been replaced and that the remaining work was for the operations team, not the awardee
in this procurement. AR 1362. VSolvit argues that it “received a weakness merely for mentioning
that it had ‘detailed knowledge of the overall GridBuddy implementation and how to address
replacing it with Lightening Component approaches and are prepared to remove it [once approved]
on the application intake window.’” ECF No. 35 at 24 (quoting AR 758). Since VSolvit did not
28
propose GridBuddy as a solution and since the RFQ did not state the Agency would evaluate its
use (or non-use) of GridBuddy, VSolvit claims the CO’s evaluation applied an unstated evaluation
criteria. ECF No. 27 at 30–31. The Government and Deloitte argue VSolvit appeared to not
appreciate that GridBuddy had already been replaced, and thus knowledge and planning to replace
it was irrelevant to the PWS and demonstrated a lack of understanding of the RFQ requirements.
ECF No. 40 at 34; ECF No. 42 at 17; ECF No. 30 at 38–39; ECF No. 41 at 18.
The Court finds that the CO rationally determined that the GridBuddy aspect of VSolvit’s
technical quote decreased confidence in its proposal because it sought to replace a system that had
already been replaced. Fundamentally, that is not an irrational conclusion. If, as VSolvit contends,
it intended only to demonstrate its knowledge and experience, then it should have clearly
communicated that fact, because a plain reading of the relevant segment proposes to “remove”
GridBuddy, which had already been replaced. See AR 758; Wis. Physicians Serv. Ins. Corp. v.
United States, 151 Fed. Cl. 22, 35 (2020) (“[I]t is the offeror’s responsibility to provide technical
evaluators with a well-written proposal. . . . [T]he CO [was] under no obligation to discern what
[the offeror] ‘intended to communicate[.]’” (quoting KSC Boss All., LLC v. United States, 142 Fed.
Cl. 368, 385 (2019))).
3. The CO Rationally Assigned VSolvit a Weakness for its Discussion of Vlocity.
In a similar vein, the CO noted that VSolvit proposed to “bring Vlocity current prior to
beginning analysis” of Vlocity applications, since it was “several major upgrades behind in the RD
Force environment,” even though such update was an O&M responsibility for which one of
VSolvit’s proposed subcontractors was under contract to perform. AR 760, 1362. VSolvit argues
that the Solicitation required offerors to provide an analysis of Vlocity applications to determine
the potential impact on a successful Review Module implementation, and that the weakness is
29
misguided and taken out of context because VSolvit proposed to bring Vlocity current only to
address a potential risk. ECF No. 27 at 31; ECF No. 35 at 25; see AR 210. VSolvit also raises a
disparate treatment claim, arguing that Deloitte also addressed Vlocity by stating it “will update
the environmental questionaries [(“EQ”)], which currently leverage [V]locity” but that the Agency
did not comment on or assign a similar weakness to Deloitte. AR 681; see ECF No. 27 at 32; ECF
No. 35 at 25.
In response, the Government and Deloitte argue that the RFQ did not require offerors to
update or bring Vlocity current because, as the CO correctly noted, that task was assigned under
an incumbent contract as an O&M responsibility. ECF No. 40 at 34; ECF No. 30 at 41; see AR
1362, 1372. Moreover, they argue that the Agency did not treat VSolvit disparately because the
TET assigned a weakness to Deloitte regarding Vlocity, albeit for a different reason (providing
inaccurate information), and because Deloitte did not propose to bring Vlocity current but rather
indicated that it would update EQs, which is a different task. ECF No. 40 at 35; ECF No. 30 at
41–42; AR 1214.
Yet again, VSolvit received the weakness because its proposal demonstrated a lack of
understanding of the RFQ. It was not irrational for the CO to have lower confidence in VSolvit
for proposing to update an application as part of its technical approach to perform the PWS
requirements, where the proposed task was beyond the scope of the PWS and already part of the
incumbent contract as an O&M responsibility of VSolvit’s own subcontractor. If VSolvit intended
to convey that it would address any potential risks by simply ensuring that Vlocity was up to date,
it should have clearly communicated as much, instead of stating that it would “[b]ring Vlocity
current prior to beginning analysis.” AR 760; see Wis. Physicians Serv., 151 Fed. Cl. at 35. As
written, the CO rationally concluded that VSolvit misunderstood the RFQ. Moreover, VSolvit
30
cannot succeed on a disparate evaluation challenge because Deloitte’s and VSolvit’s approaches
with respect to Vlocity are not “substantively indistinguishable,” since VSolvit proposed bringing
Vlocity current while Deloitte proposed to update EQs. See Office Design Grp. v. United States,
951 F.3d 1366, 1372 (Fed. Cir. 2020) (explaining that to prevail on a claim of disparate evaluation,
“a protestor must show that the agency unreasonably downgraded its proposal for deficiencies that
were ‘substantively indistinguishable’ or nearly identical from those contained in other
proposals”).
4. The CO Rationally Assigned VSolvit a Weakness for its Generic Quality Control.
VSolvit next challenges the weakness assigned to its quality control discussion. Relevant
here, the CO explained:
VSolvit’s quoted Quality Control [(“QC”)] is generic and doesn’t address specific
requirements identified under each of the tasks in the PWS. The QC checkpoints
seem only relevant for waterfall projects (“Analysis phase”, “design phase”, “build
phase). The PWS requested agile development, which is based on recurring
iterations of Analysis/Design/Build/Test. Also, Agile uses a Jira backlog, not a
Requirements Traceability Matrix [(“RTM”)]. Quality Control is only really talked
about in relation to completing major milestones or modules, not talked about on
the level of user stories, epics, etc. or quality control at a sprint or iteration level.
This is concerning because quality could become a bottleneck at milestones instead
of a regular part of the process. Peer reviews appear to be a random inspection
rather than a key process and does not state what percentage of code is randomly
inspected.
AR 1363. VSolvit argues that the Agency’s finding was factually incorrect because it provided a
robust response regarding quality control. For example, VSolvit explained that its “agile quality
practices apply to every team,” that each team was applying an agile framework at all times and,
to ensure accountability “at the team, program, and solution level,” was “report[ing] weekly and
monthly in our status reports,” AR 775; that it would work with Product Owners (“PO”) “to
capture, decompose, clarify, and qualify Features, Epics, and User Stories establishing a rich
product backlog” for Program Increment (“PI”) planning and execution as well as roadmap
31
activities, AR 758; and that peer reviews would be random and planned, AR 775. ECF No. 27 at
32–34; ECF No. 35 at 26–27. The Government and Deloitte contend that the Agency’s assessment
of VSolvit’s quality control was reasonable and supported by the record. ECF No. 40 at 35–36;
ECF No. 30 at 42. Specifically, they contend VSolvit’s approach to quality control was
inconsistent with Agile methodology and relied instead on waterfall methodology, which was
directly contrary to the Solicitation requirements. ECF No. 40 at 36; ECF No. 42 at 18; ECF No.
30 at 43; ECF No. 41 at 19.
Based on a review of VSolvit’s quality control section, and the specific quality control
checkpoints outlined in Table 4 (“Quality Control Checkpoints”), the CO rationally found that
VSolvit’s quality control was generic, its checkpoints seemed relevant to waterfall projects
methodology as opposed to the requested agile methodology, 11 its quality control was only
discussed in relation to major milestones as opposed to at a sprint or iteration level that could
possibly lead to bottlenecks, and that peer reviews did not appear to be a key process. While
aspects of VSolvit’s quality control plan arguably addressed Agile methodologies, it was not
irrational for the Agency’s evaluation to conclude that the quality control checkpoints (Table 4)
were not based on Agile methodology and appeared instead appropriate for waterfall projects. AR
775–76, 1363. The Solicitation specifically required the offeror to use the latest Scaled Agile
Framework principles to plan and execute program-wide value delivery for the Agency, AR 209,
and to use Agile methodologies to prepare user stories that align with functional requirements, AR
11
The Agency included with the Solicitation its System Development Lifecycle (“SDLC”)
Process Guide, which explained the difference between Agile and waterfall methodologies. AR
526–75. Many activities for Agile and waterfall projects are similar; however, under waterfall
methods, “design,” “develop,” and “test” stages are conducted separately rather than repeatedly
within iterative sprints, as under Agile. AR 534, 555; see AR 532, 538–39, 554. Also, the Guide
explained that RTM is used in waterfall projects while a release backlog is used in Agile
methodology. AR 536, 556–57.
32
218. The Solicitation also required that “[t]he output from Requirement Analysis shall be stored
and maintained with User Story in Jira.” AR 220.
Nevertheless, Table 4, as the weakness accurately captured, only discussed major
milestones as opposed to the sprint or iteration level goals expected in Agile methodology. AR
776, 1363. While VSolvit generally stated it would use Agile methodology at all levels and at all
times, its specific checkpoints were inconsistent with those statements. Additionally, in Table 4,
VSolvit stated that a key output of requirements review is RTM, AR 776, which is indicative of
waterfall methodology (not Agile methodology) and was contrary to the express requirement that
the output from the requirement analysis be stored and maintained with user story in Jira, AR 220.
In any case, absent erroneous findings or reasoning that would indicate that the assigned weakness
was the result of irrational decision-making, the Court will not nit-pick the “minutiae of the
procurement process.” See Mitchco Int’l, Inc. v. United States, 26 F.4th 1373, 1384 (Fed. Cir.
2022) (quoting E.W. Bliss, 77 F.3d at 449). Based on the foregoing and given the high degree of
discretion afforded to the Agency, the Court declines to second-guess the Agency’s technical
evaluation, and concludes that the CO rationally assigned a weakness to VSolvit under the quality
control subfactor. See Redland, 39 Fed. Cl. at 231 (explaining that under the arbitrary and
capricious standard, the court should not substitute its judgment for that of the agency).
* * *
In sum, VSolvit has not demonstrated that any challenged weakness was irrationally
assigned and that it should have received a higher rating under Technical – Factor 1. With its low
confidence rating intact, VSolvit remains ineligible for award.
33
D. The USDA Did Not Conduct an Improper Price Realism Analysis.
Since VSolvit is ineligible for award based on its low confidence rating under the Technical
factor, the Court need not address the remaining price realism claim because even if the Agency’s
price evaluation was improper it would not constitute a prejudicial error. See Alfa Laval, 175 F.3d
at 1367. Nevertheless, for the sake of completeness, the Court will briefly address the challenge.
VSolvit argues that the Agency arbitrarily and irrationally evaluated price by conducting a
price realism analysis that was prohibited under the RFQ. ECF No. 27 at 35; ECF No. 35 at 27.
VSolvit points to the following language in the CO’s evaluation to allege that the Agency
conducted an improper price realism analysis:
Comparing the IGCE above to the quoted price, it is noted that Deloitte’s quote
total is apx 7% lower than the IGCE, which is a reasonable variance. However,
VSolvit’s quoted price is apx 37% lower than the IGCE, which reflects a lack of
understanding of the labor[,] effort[,] and time required by the type of work in this
acquisition.
. . . [T]he RFQ did not specifically state that a [p]rice [r]ealism analysis would be
conducted; [t]herefore, a [p]rice [r]ealism analysis will not be conducted.
. . . VSolvit’s quoted price also could reflect [p]rice [r]easonableness as it is not
higher than the IGCE; however, VSolvit’s quoted price is missing key elements of
areas that should have been priced out separately in the Pricing Delivery Schedule,
such as Demos . . . .
VSolvit was missing key elements in its pricing schedule could account for the
extremely low price (apx 37% lower than ICGE), which demonstrates that
performance of the contract would be at risk if VSolvit was awarded this acquisition
effort. Coupled with Low Confidence rating on its Technical evaluation, it becomes
obvious that VSolvit is underestimating the level of work involved in the acquisition
effort due to its inexperience in acquisitions of this scope and size.
AR 1366 (emphases added); see ECF No. 27 at 36. VSolvit contends the two statements
emphasized above prove that the Agency conducted a price realism analysis. ECF No. 27 at 36–
37; ECF No. 35 at 28–29. The Court disagrees and finds that the Agency evaluated price consistent
with the express terms of the RFQ (permitting comparison of quotes to the IGCE) and
34
appropriately evaluated risk to the Government in its best-value award determination in light of
the key elements missing in VSolvit’s pricing schedule.
“[A] price realism analysis ‘examines the performance risk of proposals in a fixed-price
contract procurement, with particular attention to the risk of low-priced proposals[.]’” KWR
Constr., Inc. v. United States, 124 Fed. Cl. 345, 356 (2015). “[I]t involves analysis for prices that
are too low.” Newimar S.A. v. United States, 160 Fed. Cl. 97, 137 (2022). Generally, “it is
improper for an agency to conduct a price realism analysis in a fixed-price procurement when the
solicitation does not expressly or implicitly require a price realism analysis because such an
analysis would employ unstated evaluation criteria.” Navarro Rsch. & Eng’g, Inc. v. United
States, 151 Fed. Cl. 184, 196 (2020) (quoting UnitedHealth Mil. & Veterans Servs., LLC v. United
States, 132 Fed. Cl. 529, 561 (2017)). However, a review of risk as part of a best-value tradeoff
decision does not necessarily amount to an unlawful cost or price realism analysis. See Kiewit
Infrastructure W. Co. v. United States, 137 Fed. Cl. 689, 698 (2018) (“The court agrees with the
government and FDS that the review of cost risks as part of the best-value tradeoff decision was
not an unlawful cost realism analysis or otherwise unlawful.”).
Here, the RFQ stated that the USDA would employ techniques to ensure “a fair and
reasonable price,” e.g., “comparison of proposed prices received in response to RFQ” and
“comparison of proposed prices with the IGCE.” AR 251–52. The pricing would be evaluated to
determine if it reflected the CLIN structure and if an adequate deliverable pricing schedule was
provided, and the deliverable pricing schedule would be evaluated to determine if it was reasonably
related to the PWS schedule. AR 252. The selection criteria also noted that the Government
reserved the right to accept other than the lowest priced offer. AR 248. As VSolvit correctly
notes, the RFQ did not state that the Agency would review proposals for price realism, and in fact,
35
the CO specifically disclaimed conducting a price realism analysis. ECF No. 27 at 36; see AR
1366 (“[T]he RFQ did not specifically state that a [p]rice [r]ealism analysis would be conducted;
therefore, a [p]rice [r]ealism analysis will not be conducted.”).
The CO’s price evaluation did precisely what the RFQ expressly stated; it employed
techniques such as a comparison of the proposed prices with the IGCE to evaluate whether
VSolvit’s price was fair and reasonable. As such, the comparison of VSolvit’s proposed prices to
the IGCE as being approximately 37 percent lower than the ICGE was entirely permissible under
the terms of the RFQ. Next, in evaluating whether VSolvit provided an adequate deliverable
pricing schedule and whether it was reasonably related to the PWS deliverables, the CO noted that
VSolvit’s pricing schedule was missing key elements, such as allotments for demos and details
regarding the quantities and frequencies for the testing of code, code delivery, and test scripts. AR
1366; see AR 1367 (The “deliverable pricing schedules are missing vital supporting/detailed
information”). A review of the deliverables outlined in the RFQ, AR 232–33, 252, compared to
Deloitte’s deliverable pricing schedule, AR 1245–53, and VSolvit’s pricing charts, AR 1267–81,
supports the CO’s conclusion that key elements such as quantities, frequencies, and other details
were missing. As such, it flows logically (and is not irrational) that the CO found VSolvit’s quote
demonstrated a lack of understanding as to the labor effort and time involved and that performance
would be at risk if VSolvit was awarded the call order. AR 1366. Ultimately, the CO concluded
that VSolvit’s “pricing quote did not demonstrate fair pricing as key elements were not priced.”
AR 1374. This did not amount to an unlawful price realism analysis; rather, it was in line with the
terms of the Solicitation. Moreover, since the CO was making a best-value award determination,
she was permitted to evaluate performance risk to the Government without such considerations
amounting to an unlawful price realism analysis, as VSolvit concedes. See ECF No. 35 at 30.
36
E. No Injunctive Relief Is Warranted Because VSolvit Fails on the Merits.
A party seeking permanent injunctive relief must show that: (1) it “has succeeded on the
merits of the case;” (2) it “will suffer irreparable harm if the court withholds injunctive relief;” (3)
“the balance of hardships to the respective parties favors the grant of injunctive relief;” and (4) “it
is in the public interest to grant injunctive relief.” PGBA, LLC v. United States, 389 F.3d 1219,
1228–29 (Fed. Cir. 2004). Because VSolvit has not succeeded on the merits of its protest, no
injunctive relief is warranted in this case. See Mitchco Int’l, 26 F.4th at 1384 n.7; ANHAM FZCO
v. United States, 149 Fed. Cl. 427, 439 (2020) (quoting Dell Fed. Sys., L.P. v. United States, 906
F.3d 982, 999 (Fed. Cir. 2018)).
IV. CONCLUSION
For the reasons set forth above, VSolvit’s Motion for Judgment on the Administrative
Record (ECF No. 27) is DENIED, Deloitte’s Cross-Motion (ECF No. 30) is GRANTED, and the
Government’s Corrected Cross-Motion (ECF No. 40) is GRANTED. Also, the Government’s
First Cross-Motion (ECF No. 32) is deemed MOOT. The Clerk is directed to enter judgment
accordingly.
This opinion and order will be unsealed in its entirety after June 5, 2023, unless the parties
submit by no later than June 1, 2023, an objection specifically identifying the protected
information subject to redaction. Any objecting party must submit a proposed redacted version of
the decision and provide the reason(s) supporting the party’s request for redaction.
SO ORDERED.
Dated: May 25, 2023 /s/ Kathryn C. Davis
KATHRYN C. DAVIS
Judge
37