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Protest challenging agency’s past performance and price evaluations is sustained in part. The protester alleged the agency botched the past performance evaluation by not adhering to a purported solicitation preference for projects performed by the prime contracting entity over individual members of a joint venture. The court found that the solicitation did not contain such a preference, and that the agency had reasonably considered experience form joint venture members. The protester also alleged that the agency failed to evaluate proposals for unbalanced pricing. The court found this persuasive, noting that the evaluation did not contain a single reference to balanced pricing, and that the protester had essentially been per se prejudiced by the agency’s failure to conduct a required price analysis.

The Navy posted an RFP seeking base operations support. Nine offerors submitted proposals. The Navy established a competitive range that included IAP World Services, Inc. and Vectrus-J&J Facilities Support, LLC (Vectrus-J&J). The Navy found that IAP’s proposals had a slight advantage under the RFP’s non-price factors. Nevertheless, the agency determined that these advantage did not justify IAP’s price premium. The Navy awarded the contract to Vectrus-J&J. IAP filed a protest with GAO, which was denied. IAP then filed a protest with the Court of Federal Claims.

IAP contended that the Navy erroneously assigned Vectrus-J&J a substantial confidence rating under the RFP’s past performance factor. Vectrus-J&J was a joint venture. IAP argued that for joint ventures, the RFP stated an express preference form experience by an offering joint venture entity rather than experience of the joint venture members. IAP claimed that the Navy ignored this preference and improperly found references from the Vectrus-J&J individual members relevant.

The court, however, found that IAP had misinterpreted the RFP. The RFP stated that experience from the joint venture entity “may be viewed more favorably than projects submitted” by individual joint member firms. The RFP did not say that projects performed by members “shall” be considered more favorably, only that they “may” be considered more favorable. Thus, contrary to IAP contentions, there was not a clear preference for experience from joint venture entities.

IAP contended that the Navy failed to recognize that Vectrus-J&J had not itself performed any of the projects it submitted. But it was clear that the Navy understood that Vectrus-J&J did not perform the past projects. Indeed, the Navy’s evaluation clearly stated that the performing entity was other than Vectrus-J&J.

IAP argued that because it had placed significant weight on the alleged preference for prime contractor experience over JV member experience, it had chosen not to submit its proposal as a joint venture. As a result, IAP argued, it had been prejudiced because had it proposed as a joint venture, it could have offered a lower price. The court found that IAP had made a business decision to not bid as a joint venture based on its misinterpretation of the RFP. It cannot now bind the government based on that misrepresentation.

IAP also argued that the Navy failed to consider that IAP’s projects demonstrated experience in a greater number of technical specifications than the projects submitted by  Vectrus-J&J. The court found that this argument misconstrued the RFP. The RFP stated that projects would be considered relevant if they met certain threshold criteria. Each of Vectrus-J&J’s projects met the criteria. Nothing in the RFP indicated that projects demonstrating more experience with technical specifications would be considered more favorably.

IAP next alleged that the Nay overstated the percentage of work Vectrus-J&J self-performed on past projects because it gave the company credit for work performed by one its members even though that member was in a joint venture with another entity. The court, however, noted that IAP had similarly proposed work from other joint ventures. A protester is not permitted to espouse one interpretation during the procurement and then argue during a protest that the interpretation is unreasonable. In any event, to the extent the Navy erred in considering the experience of other joints ventures. IAP had not been prejudiced by it. The Navy made the error for all proposal in a way that ultimately benefitted IAP.

Next, IAP alleged that the Navy failed to evaluate proposals for unbalanced pricing. The court found this argument more compelling. The FAR requires that all offers with priced line items shall be analyzed to determine if prices are unbalanced. Unbalanced pricing exists when despite an acceptable total evaluated price, the price of one more ore line items is significantly over or understated. The RFP provided that a proposal may be unacceptable if prices proposed were materially unbalanced.

Although the FAR and the RFP required the Navy to evaluated for unbalanced pricing, there was not a single mention of the word “balance” or “unbalanced” anywhere in the 15,000 page record. All that could be gleaned was that the government had performed a price reasonableness evaluation. But determining that the overall price is reasonable is a far cray from finding there is no unbalanced pricing.

The government argued that the Navy had looked at individual line items for each proposal and compared totals across all offerors. The court found, however, that the record did not support this assertion. Rather, it only shows that the agency documented an analysis of total prices.

The government further argued that even if it failed to analyze unbalanced pricing, it was a harmless error because IAP had failed to actually demonstrate any unbalanced pricing. But, citing COFC precedent, the court reasoned that the failure to perform a mandatory price analysis constitutes a significant error in the procurement process. In fact, without a proper price analysis in the record, the court had nothing to review and could not adequately determine if IAP had been prejudiced by the price evaluation.

Finally, IAP objected to the best value determination, arguing that the Navy failed to perform a comparative analysis of proposals and failed to look past adjectival ratings. The court, however, found that the Navy reasonably considered price and technical factors against each other, and that it did not simply rely on the adjectival ratings.

IAP is represented by Anuj Vohra, Abigail Stokes, Robert Sneckenberg, and Alexandra Barbee Garrett of Crowell & Moring. The intervenor, Vectrus-J&J, is represented by Adam K. Lasky, Bret C. Marfut, Steven J. Kmieciak, and Sara Rogers of Seyfarth Shaw LLP. The government is represented by Galina I. Fomenkova, Jeffrey Bossert Clark, Robert E. Kirschman, Jr., and Steven J. Gillingham of the Department of Justice as well as Sandra C. Simmons, Nicolle A. Vasquez, and Seth M. Eddy of Navy.