Post award protest is denied where the agency rightly refused to consider a performance audit that was conducted after the proposal deadline, properly evaluated the protester’s responses to adverse past performance issues and conducted a reasonable technical evaluation of proposals.
Walden Security protested the decision of United State Marshal Services to award contracts to provide Courthouse Security Officer at U.S. courts—specifically, the Third, Fourth, and Federal Circuits—to Paragon Systems Inc.
Walden contended that USMS’s past performance evaluation was unreasonable because the agency (1) failed to consider a recent performance audit of Walden that constituted “close at hand” information, (2) did not properly account for Walden’s responses to past performance issued identified during evaluation, and (3) did not give enough weight to one of Paragon’s contracts where the only had a Satisfactory performance rating. Walden also argued that USMS botched the technical evaluation of proposals by over-crediting Paragon’s technical proposal will simultaneously refusing to award Walden significant strengths for its technical approach. Both parties filed cross-motions for judgment on the administrative record.
When it bid on the contract to provide security the Third, Fourth and Federal Circuits, Walden was performing on other contracts with USMS to provide security at other courthouses. Walden believed that a recent performance audit for its work at these other courthouses was “close at hand” information that should have been considered as part of Walden’s past performance. And, the argument continued, had the audit been considered, Walden would have received higher past performance rating.
The court, however, disagreed. While acknowledging that an agency acts unreasonably when it fails to consider past performance information that is close at hand, the court found that Walden’s performance audit did not fall into the “close at hand” category. The RFP specified that in considering past performance, the agency could consider all information available at the time of evaluation. Walden’s audit covered a period well after the deadline for submitting proposals. Other offerors had not been allowed to submit comparable past performance information after the proposal deadline, so has the agency allowed Walden alone to submit its past performance audit, it would have unfairly prejudiced other offerors.
The court next considered Walden’s argument that the agency had failed to properly evaluate responses the company had submitted to refute past performance issues identified on some of its other USMS contracts. According to Walden, had its responses been properly evaluated, USMS would have recognized that the issues in the other contracts were due to “outlier data points” or problems that it had inherited from the previous contractor. But the court found that the agency’s methodology and data interpretation in evaluating Walden’s responses reasonable. Walden’s disagreement did not alter the rationality of the agency’s approach.
Walden also argued that the agency had erred in evaluating Paragon’s past performance by (1) not affording enough weight to Paragon’s performance on a Social Security contract, and (2) overlooking Paragon’s inexperience with courthouse security. But the court found that the USMS was fully aware of Paragon’s past performance on the Social Security contract and that nothing in the record indicated the agency had not factored the Social Security contract into the overall past performance rating. As to the lack of courthouse security experience, the court reasoned that the RFP did not require courthouse experience and that Paragon had other security experience with other federal agencies that qualified.
Finally, as to the Walden’s arguments concerning the agency’s technical evaluation, the court determined that all of Walden’s arguments amounted to nothing more than disagreement with the agency. The court granted USMS judgment on the administrative record and denied Walden’s requests for a permanent injunction and declaratory relief.
Walden is represented by Jonathan D Shaffer, Mary Pat Buckenmeyer, and Sean K. Griffin of Smith Pachter McWhorter, PLLC. The government is represented by Chad A. Readler, Robert E. Kirschman, Jr., Douglas K. Mickle, and A. Bondurant Eley of the U.S. Department of Justice. The Intervenor, Paragon Systems, is represented by Katherine S. Nucci and Scott F. Lane of Thompson Coburn, LLP.