In assessing “confidence increasers” to the awardee, the agency lifted language from the awardee’s proposal. The protester said this copying indicated an unreasonable evaluation. The COFC disagreed. Nothing prevents an agency from using proposal language in an evaluation.
Harmonia Holdings Group, LLC v. United States, COFC No. 23-680
- Staffing Estimate – In responding to offeror questions, the agency estimated the contract would require 7 FTEs. But the agency also stated offerors could deviate from the estimate. The protester claimed it had been unreasonably penalized for proposing 5 FTEs. The protester contended the agency had effectively made 7 FTEs a requirement. The court rejected the protester’s argument. The agency hadn’t penalized the protester for proposing 5 FTEs. Rather, the agency penalized the protester for not explaining the deviation.
- Quality Assurance Specialist – The protester contended the agency unreasonably downgraded the protester’s proposal for not proposing a quality assurance specialist. The court agreed with the protester. Nevertheless, the court found that in light of the entire evaluation, this was a minor error that did not prejudice the protester.
- Unstated Criteria – The protester argued the agency unreasonably downgraded its proposal because the protester didn’t currently employ all key personnel. The protester said the agency applied unstated criteria because the solicitation had not specified that key personnel had to be employed. The court found the agency reasonably considered the ability to obtain key personnel as encompassed by the stated key personnel criteria.
- Copying of Awardee’s Proposal Language – The protester complained that in assessing the awardee “confidence increasers,” the agency had simply copied language from the awardee’s proposal. The court was unconcerned. The protester had not cited authority that prohibits an agency from copying language from a quotation.
- Price Realism – The protester asserted the solicitation did not call for a price realism evaluation, so the agency erred in performing one. The court noted that while the solicitation did not use the words “price realism,” it stated the price evaluation would consider whether the proposed price “reflect[ed] a clear understanding of the requirement.” This language is identical to the FAR provision on price realism. The solicitation thus implicitly required a price realism analysis.
The protester is represented by Jon D. Levin, W. Brad English, Emily J. Chancey, Joshua B. Duvall, and Nicholas P. Greer of Maynard Nexsen. The awardee is represented by Eric A. Valle, Jonathan T. Williams, Katherine B. Burrows, Jacqueline K. Unger, and Dozier L. Gardner, Jr. of PilieroMazza PLLC. The government is represented by Christopher L. Harlow, Douglas K. Mickle, Patricia M. McCarthy, and Brian M. Boynton of the Department of Justice as well as Jean Wuff of the Federal Motor Carrier Safety Administration.
–Case summary by Craig LaChance, Senior Editor
