The transitive principle of inequality is an intuitive mathematical and logical precept. It holds that if A is greater than B, and B is greater than C, then A is greater than C. The agency in this case used the principle to make its best value determination. The protester argued it was improper to use a mathematical principal for what is essentially a subjective, qualitative assessment. The court didn’t agree, reasoning that for proposals to have meaning, they must be based on some objective criteria. Thus, so long as the agency applied the principle reasonably, it was fine for the agency to use a mathematical principle in determining best value.
Stratera Fulcrum Technologies, LLC v United States, COFC No. 21-1770
Background
The U.S. Patent and Trademark office issued an RFP seeking information technology services. The RFP contemplated award of multiple IDIQ contracts.
After evaluating 24 proposals, the agency moved on to a best value determination. Instead of comparing proposals head-to-head, the agency used the transitive property of inequality to compare proposals. Under that method, the agency assumes that if Offeror A is superior to Offer B, and Offer B is superior to Offer C, then Offer A is superior to Offer C. Thus, under the method the agency only ends up comparing proposals to a benchmark and not to each other.
Using the transitive principle of inequality, the agency selected five offerors for award. Stratera Fulcrum Technologies, which had not been selected, filed a protest with the Court of Federal Claims.
Legal Analysis
- Agency Properly Made Five Awards – Stratera complained that the agency had pre-determined that it would make only five awards even though the solicitation had stated the number of awardees was not predetermined. The court rejected this argument, noting that while there was no predetermined set of awards the solicitation had set five awards as a target. It was reasonable for the agency to structure its approach to follow the goal set in the solicitation.
- Agency Appropriately Used the Transitive Principle of Inequality – Stratera argued that it was improper for the agency to use the mathematical principle of transitive inequality to compare subjective proposals. Stratera used a fruit metaphor, reasoning that just because someone prefers apples to oranges and oranges to bananas does not mean they prefer apples to bananas. The court did not accept the metaphor, reasoning that one’s preference for fruit is inherently subjective. For the evaluation of proposals in a government solicitation, one has to assume some objective criteria. The court further noted that the transitive principle is not prohibited by statute or the FAR, and GAO has approved of its use in procurements. Given the flexibility the FAR affords to agencies in conducting evaluations, the court declined to find use of the transitive principle improper.
- Evaluation Was Reasonable – Stratera objected to weaknesses assessed to its proposal and alleged the agency disparately evaluated proposals, but the court found that its arguments amounted to disagreement with the agency’s evaluation conclusions.
Stratera is represented by Meghan F. Leemon, Jonathan T. Williams, and Eric A. Valle, Intervenor Halvik Corp. is represented by Alexander J. Brittan, Mary Pat Buckenmeyer, and A. Jonathan Brittan, Jr. Intervenor, Steampunk, Inc. is represented by David S. Black, Gregory R. Hallmark, Amy L. Fuentes, Kelsey M. Hayes, and Hillary J. Freund.. Intervenor, RVIA Solutions, Inc. is represented by Elizabeth N. Jochum, Tjasse L. Fritz, Samrath Barot, and Patrick Collins. Intervenor Booz Allen Hamilton is represented by Gary J. Campbell and Lidiya Kurin. The government is represented by John M. McAdams III, Elinor J. Kim, Brian M. Boynton, Patricia M. McCarthy, and Lisa L. Donahue of the Department of Justice as well as Nicholas Oettinger and Andrew Squire of the U.S. Patent and Trademark Office.
