Protest challenging agency’s evaluation is denied. The protester alleged the agency erred in assessing its proposal a weakness for anticipated labor efficiencies. The court found that weakness was reasonable because the protester had not explained how process improvements would result in labor efficiencies. The protester alleged the agency should have sought clarifications concerning the proposed efficiencies. But the court determined that clarifications were not warranted because resolving the labor issue would have required proposal revisions. The protester asserted the agency disparately evaluated its staffing approach, but the court found the protester’s approach was not substantively indistinguishable from the awardee’s. The protester contended the agency failed to consider the impact of a corporate transaction on the awardee. The court found that the agency had considered the transaction and rationally concluded it would not impact the awardee.
U.S. Customs and Border Protection (CBP) posted a solicitation seeking aircraft maintenance and logistics support. After reviewing proposals, CBP awarded the contract to DynCorp International, LLC. An unsuccessful offeror, PAE Aviation & Technical Services, LLC, filed a GAO protest. In response to the protest, CBP took corrective action to reevaluate. Following a reevaluation, CBP again awarded the contract to DynCorp. PAE filed a protest with the Court of Federal Claims.
PAE argued that CBP improperly assessed its proposal a weakness for anticipated labor efficiencies. PAE had stated in its proposal that through a combination of process improvements and technology implementation, it was able to reduce the number aircraft maintenance personnel for the contract.
CBP assessed a weakness because it did not believe that PAE had adequately explained how the process improvements and technology would allow for staff reductions. CBP noted that PAE had had not specified what techniques or processes it would employ nor how they would reduce the number of mechanics required. The agency did not see how PAE could reduce staff and still meet the solicitation requirements.
The court sided with CBP, finding that that agency had provided a coherent explanation for assigning the weakness. The court declined to substitute its judgement for that of the agency, even it could have reasonably reached a different conclusion.
PAE contended the agency had erred in interpreting its proposed labor efficiencies as an absolute intention instead of a condition precedent to staffing reductions. PAE believed that this had been a misunderstanding that the CBP could have cleared up with clarifications
The court disagreed, reasoning that PAE’s proposal was fundamentally unclear. The agency would have needed to have substantive conversations with PAE about its ability to meet the solicitation’s requirement. Regardless of whether the labor reductions were conditional, PAE would have had to revise its proposal. Mere clarifications would not have resolved the issue.
PAE further contended that CBP effectively double-counted the weakness it had received for the labor reductions. Not only did CBP assign a weakness to PAE’s proposal, it then upwardly adjusted the company’s most probable cost to reflect a scenario were the proposed staffing reductions did not occur. PAE argued that CBP should have either assigned the weakness of upwardly adjusted its costs. Doing both amounted to a double penalty for one flaw.
The court was unconvinced. The agency had a rational basis to conclude that the reduced staffing presented a risk to contract completion during the technical review. The agency also had grounds to adjust PAE’s cost proposal to reflect a more realistic cost. The agency had not abused its discretion.
PAE alleged that CBP disparately evaluated proposals because it assigned PAE a weakness for the number of mechanics but assigned DynCorp a strength even though DynCorp proposed fewer mechanics. But the court noted that to demonstrate disparate treatment, a protester must show that its proposal was substantively indistinguishable from the awardee’s. In this case, PAE’s and DynCorp’s’ staffing approaches were distinguishable. DynCorp had proposed to maintain a constant number of mechanics over the life of the contract. PAE proposed a staff reduction during the option years.
PAE argued that CBP had failed to properly consider the effect or a corporate transaction. Before it received the award, DynCorp had been acquired by another company, Amentum Services, Inc. PAE contended that this acquisition was a material change that impacted DynCorp’s price and technical approach.
The court noted that CBP had considered DynCorp’s change in ownership and reasonably that it did not affect DynCorp’s proposal. DynCorp remained intact with the same resources reflected in its proposal. PAE had not presented evidence to show that the transaction had impacted DynCorp’s ability to perform.
PAE asserted that CBP conducted an arbitrary cost realism analysis when it adjusted the company’s escalation rates. The court opined that the solicitation had instructed offerors to provide adequate supporting documentation for their escalation rates. Here, CBP had reasonably found that PAE’s proposal lacked adequate support and did not explain how the rates were calculated.
PAE argued that the CBP should have amended the solicitation because it no longer reflected the agency’s needs. PAE noted that the level of effort of on the incumbent contract in 2020 and 2021 did not reflect the same level of effort solicited under a previous 2018 solicitation. The court, however, did not see this a change in the agency’s needs. In fact, the solicitation had anticipated a change in effort, instructing offerors that the number of flying hours may dramatically increase or decrease during a surge.
PAE is represented by Robert Stephen Nichols of Nichols Liu, LLP. The intervenor, DynCorp is represented by Scott Michael McCaleb of Wiley Rein, LLP. The government is represented by Kelly Krystyniak of the Department of Justice.
