Post-award bid protest is denied where the protester could not prove that nearly a dozen weaknesses and one significant weakness assigned to its proposal lacked a rational basis.
Post-award bid protest is denied where the protester could not prove that nearly a dozen weaknesses and one significant weakness assigned to its proposal lacked a rational basis.
Pinnacle Solutions Inc. protested the decision of the National Aeronautics and Space Administration to award a contract for aircraft logistics, integration, configuration, and engineering services to Yulista Tactical Services LLC.
In a suit before the U.S. Court of Federal Claims, Pinnacle argued that NASA arbitrarily assigned weaknesses to Pinnacle’s proposal while ignoring strengths, evaluated past performance using outdated information, improperly abandoned a weakness identified in Yulista’s proposal, and unequally evaluated proposals. As part of its complaint, Pinnacle sought injunctive relief, asking the court to set aside the award to Yulista and to include Pinnacle’s proposal in the competitive range. Pinnacle, the government, and Yulista, which intervened, all moved for judgment on the administrative record. In addition, Pinnacle moved to strike declarations offered by the government to supplement the record.
The court first addressed Pinnacle’s motion to strike three declarations proffered by the government. Two of the declarations were intended to show that Pinnacle would not suffer irreparable harm if the court denied injunctive relief. The third, from the contracting officer, addressed the evaluation process. The court found that the declarations concerning irreparable harm did not relate to the award decision—the substantive issue in the case—and thus were permissible. But the third declaration directly addressed the award decision. The court found there was already a sufficient record concerning the award decision, and the third declaration did not correct mistakes or fill gaps. Accordingly, the court granted Pinnacle’s motion to strike with respect to the third declaration.
Before addressing the merits of Pinnacle’s arguments, the court observed that it was virtually impossible for Pinnacle to demonstrate competitive prejudice, a necessary condition of a successful bid protest. The court noted Pinnacle’s score under the most important mission suitability factor was 318 points lower than Yulista’s. To establish that it had a substantial chance of receiving award, Pinnacle needed to run the table, proving that every single one of its assigned weaknesses was improper.
The court quickly rejected several of Pinnacle’s argument concerning the weaknesses assigned to its management approach. Pinnacle contended that it had wrongly been assigned weaknesses for ensuring adherence to a work schedule, the failure to identify physically demanding positions, proposed fringe benefits, inadequate compensation, cost of living adjustments, a missing labor relations plan, and inadequate executive staffing. In each case, the court found that the weakness was reasonable. Pinnacle either omitted required information from its proposal, failed to adequately explain aspects of its proposal, neglected to address NASA’s stated concerns about the proposal, or waived any argument it had about the assigned weakness.
But the court found that Pinnacle’s challenges to two other management approach weaknesses were at least marginally more compelling. First, Pinnacle complained about a weakness it received for cost of living adjustments for its subcontractor’s employees. NASA had found that statements made about the adjustments in the proposal were inconsistent, seemingly saying that cost of living adjustments would and would not be made. The court agreed that statements in Pinnacle’s proposal concerning the adjustments were somewhat confusing and thus the weaknesses did not lack a rational basis. Second, Pinnacle objected to the significant weakness it received due to a lack of clarity in it labor relations plan. The court noted that Pinnacle’s arguments were persuasive, but even if this significant weakness had been assigned in error, the company could still not—given the other weaknesses—establish prejudice.
In addition to contesting the weaknesses assigned to its management approach, Pinnacle contended that its management proposal should have been awarded strengths for its overall approach, staffing, and phase-in element. The court noted, however, that many of the weaknesses the agency had identified in Pinnacle’s proposal precluded the awarding of strengths on the overall approach and staffing. As to the phase-in, the court found there was nothing special about Pinnacle’s phase-in proposal—which offered after-hour town halls with employees to ensure a smooth transition—that merited a strength.
The court next turned to Pinnacle’s objections to the agency’s evaluation of its technical approach. Pinnacle complained about weaknesses it had received for contract management and a non-labor resource estimate. As to contract management, the court found the weakness was reasonable because Pinnacle had misclassified work. With respect to the non-labor resource estimate, the court determined that Pinnacle had made no effort to address agency concerns about the estimate and thus the weakness it received on this criteria was justified.
Pinnacle also challenged a weakness assigned to its safety and health approach. NASA had identified concerns about Pinnacle’s safety plan before the final evaluation. But the court found Pinnacle had made no attempt to address those concerns, and therefore the assigned weakness was reasonable.
Aside from the weaknesses assigned to its management and technical approach, Pinnacle challenged NASA’s evaluation of past performance, contending the agency ignored updated CPARS scores Pinnacle had received on other contracts. The court, however, found NASA had considered these updated scores. The agency deemed some of the scores irrelevant. As to those scores that were relevant, the court simply found that they supported Pinnacle’s “moderate confidence” rating on past performance.
The court also found, contrary to Pinnacle’s contentions, no evidence that NASA had improperly abandoned a weakness it had assigned to Yulista. NASA had evaluated the offerors’ proposals twice. After an initial evaluation and award to Yulista, Pinnacle had successfully protested the award with GAO. Following the first protest, NASA re-evaluated and again made award to Yulista. Pinnacle complained that during the second evaluation, the agency dropped a weakness it had assigned to Yulista in the initial evaluation for a failure to address whether workers would receive credit for seniority. But the court agreed with NASA that the agency had erred in assigning the weakness the first time around; Yulista had actually addressed this issue in its proposal. Accordingly, the agency had not erred in abandoning this weakness.
Lastly, the court was unpersuaded by Pinnacle’s disparate treatment argument. Pinnacle contended that its management plan shared many of the strengths that NASA identified in Yulista’s plan and thus Pinnacle lower rating on the management plan was irrational. The court, however, noted that Yulista’s plan contained additional strengths that were lacking in Pinnacle’s, which negated any allegations about unequal treatment.
The court concluded by noting that Pinnacle had not prevailed on the merits on any of its claims and thus was not entitled to injunctive relief. The court denied Pinnacle’s motion for judgment on the administrative record, granted the government’s and Yulista’s cross motions, and dismissed Pinnacle’s complaint.
Pinnacle is represented by Aron C. Beezley, Lisa A. Markman, and Sarah S. Osborne of Bradly Arant Boult Cummings. The government is represented by Jeffrey D. Klingman, Elizabeth M. Hosford, Robert E. Kirschman, Jr., and Chad A. Readler of the U.S. Department of Justice as well as Karen M. Reilley of NASA. The intervenor, Yulista, is represented by S. Lane Tucker of Stoel Rives LLP.