Protest alleging agency improperly considered awardee’s incumbency is denied. The court reasoned that consideration of the awardee’s incumbency was almost unavoidable. The solicitation required the agency to evaluate the experience of key personnel and offerors’ understanding of the requirements. The agency could not just disregard the awardee’s incumbent experience in making these assessments and was not required to neutralize the awardee’s incumbent advantage.
Background
The Military Sealift Command (MSC) issued a solicitation for the operation and maintenance of ships. MSC received six proposals, including one from the incumbent, Patriot Contract Services, LLC. After evaluating proposals, MSC awarded the contract to Patriot.
An unsuccessful offeror, Crowley Government Services, filed a protest with the Court of Federal Claims, alleging, in various ways, that MSC had improperly credited Patriot for its incumbency.
Legal Analysis
- Agency Didn’t Apply Unstated Criteria in Considering Incumbency – Crowley contended the agency applied unstated criteria when it considered Patriot’s incumbency as part of the evaluation. The court disagreed. The solicitation expressly allowed MSC to consider the experience of key personnel and an offeror’s understanding of the requirements. In light of this, MSC was well within its discretion in considering the work Patriot had performed under the incumbent contract. Indeed, considering Patriot’s incumbency was virtually unavoidable. While an agency cannot tip the scales in favor of an incumbent, it may weigh the advantages offered by the incumbent.
- Agency Did Not Err Assigning Based on Patriot’s Incumbency – Crowely objected to several strengths assessed to Patriot alleging they were unearned and solely based on Patriot’s incumbency. The court rejected all of Crowely’s arguments. An incumbent’s proposal will naturally rely on experience and resources derived from performance of the incumbent contract. An agency is not required to neutralize the competitive advantage of incumbent contractors.
- Agency Didn’t Disregard Benefits of Crowley’s Proposal – Crowley argued MSC ignored or downplayed multiple benefits of its technical proposal. The court, however, declined Crowely’s invitation to second guess MSC’s evaluation.
- Agency Didn’t Need to Consider CPAR Narratives – Crowley complained that MSC unreasonably evaluated past performance by not considering CPAR narratives for context. Agencies have considerable discretion in selecting the method to evaluate past performance. Neither the FAR nor the solicitation required MSC to consider CPAR narratives.
- Agency Didn’t Ignore Awardee’s Negative Past Performance – Crowely contended MSC failed to consider negative past performance information regarding Patriot’s incumbent contract. The court found that MSC actually considered Patriot’s negative past performance information and sufficiently weighed it against positive information
- Agency Reasonably Found One of Crowley’s Past Contract Relevant – MSC considered a contract Crowely had not submitted as a past performance reference. Crowley alleged the agency should not have considered that contract because it wasn’t relevant. The court found that the contract had a similar mission and similar terms and conditions. The agency did not err in considering it.
- Agency Appropriately Declined to Consider One of Crowley’s Submitted References – Crowely argued that MCS ignored one of its directly relevant past performance references. The court, however, didn’t find this problematic. The reference was from a commercial contract. Thus, MSC could not obtain CPAR information to verify the quality of performance. What’s more, the commercial reference did not complete a questionnaire. There was not much for the agency to evaluate.
Crowely is represented by James Y. Boland and Christopher Griesedieck of Venable, LLP. The intervenor, Patriot, is represented by Craig S. King, Richard J. Webber, and Travis L. Mullaney of Arent Fox LLP. The government is represented by William James Grimaldi of the Department of Justice as well as by Robert D. Young and Johanna Crawford of the Military Sealift Command.
