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Protest challenging agency’s corrective action is sustained. The agency first awarded the contract to the protester. Following a protest, however, the agency took corrective action to allegedly reevaluate proposals and make a new award. The agency selected a different offeror after the corrective action. Despite taking corrective action to reevaluate, the agency did not (1) reevaluate proposals, (2) change evaluation scores, (3) distinguish the previous award from the new award, or (4) explain why it now found the awardee’s proposal significantly better than the protester’s. Basically, the agency appeared to have just made a new award. To make matters worse, the procurement actually contained several glaring evaluation errors that the agency could have addressed with a proper corrective action.

FEMA issued a solicitation seeking Protective Service Officers to safeguard federal employees and property during disaster and emergency declarations in Puerto Rico. Nine offerors, including Agma Security Service Inc. and Ranger American of Puerto Rico, submitted offers. Ranger submitted a higher rated proposal while Agma had a lower price. FEMA selected Agma for award, reasoning there was no reason to pay Ranger’s higher price.

Ranger filed a protest with GAO, challenging the award to Agma. Ranger alleged that FEMA failed to conduct a proper best value tradeoff. In response to the protest, FEMA took corrective action to reevaluate proposals and make a new award decision. Following the corrective action, FEMA made award to Ranger, finding that its “significantly better” proposal, justified its higher price. Agma filed a protest with the Court of Federal Claims challenging the award to Agma.

Under the Stafford Disaster Relief and Emergency Act, when federal funds expended on disaster or emergency clearance, preference shall be given to those firms residing or doing business in the affected area. This preference is implemented in a FAR provision, which was included in the solicitation. That provision required offerors to represent whether they resided or did business in Puerto Rico.

Agma argued in its protest that Ranger had mispresented its status as a business residing in Puerto Rico. Instead, Agma argued, Ranger appeared to reside in and perform disaster relief contracts in the Virgin Islands.

The court, however, found that Agma was conflating two different companies, a Ranger entity domiciled in Puerto Rico and a different entity domiciled in the Virgin Islands. Here, the FAR simply required that the “offeror” make a representation as to domicile. In this case, the offeror was the Ranger entity domiciled in Puerto Rico. Nothing in the Stafford Act requires or permits an agency to consider a company’s affiliates in other locales. The residency of a Ranger affiliate in the Virgin Islands was irrelevant to whether the offeror in this case—i.e., Ranger Puerto Rico—conducted business in Puerto Rico

Agma contended that FEMA should not have accepted Ranger’s representations as to itseligibility to perform as a local business, but rather should have conducted its own independent assessment of where the company resided. But the court found that an independent assessment was not required by the FAR, which only requires offerors to make a representation as to their local status.

In addition to the Stafford Act issue, Agma challenged FEMA’s corrective action, contended that the agency had improperly reevaluated proposals and made a new award to Ranger. The court found this argument compelling.

As noted, after the initial award to Agma, Ranger filed a GAO protest asserting numerous evaluation errors. FEMA took corrective action to purportedly reevaluate proposals. But FEMA actually did not end up reevaluating proposals. The agency made no real changes to the evaluation and it did not seek revised proposals from offerors. The only change the agency made to the evaluation was to lower Ranger’s past performance rating.

At no point in the reevaluation did not contracting officer explain why the corrective action had been taken after the GAO protest. Despite detailed accusations by Ranger regarding the evaluation of Agma, Agma’s evaluation remained unchanged from the previous evaluation. The contracting officer made no effort to distinguish the new award decision from the original; indeed, there was not mention of the initial award decision in the new analysis. There was no explanation as to why FEMA had now determined that Ranger’s proposal was “significantly better” than Agma’s.

To make matters worse, there were glaring errors in the procurement that should have been addressed in the corrective action. For instance, FEMA had assigned a numerical rating to each adjectival rating. Thus, an adjectival rating of Superior received a numerical rating of 5, a Good rating received a 4, and a Satisfactory rating a 3. But a Marginal rating and an Unsatisfactory rating both received 1, indicating that they were somehow the same.

Additionally, under the past performance factor, FEMA assigned a numerical rating of 1 to Unsatisfactory past performance but a rating of 0 where the offeror did not have a past performance record. Consequently, an offeror with an Unsatisfactory past performance record could receive a higher rating than an offeror with a Neutral past performance rating.

The court opined that these errors in the procurement threw the decision to not question the initial evaluation into sharp relief. The agency had a chance to address the incoherencies in the evaluation but just let them ride.

The court found that Agma had been prejudiced by the errors in the corrective action. Given that Agma had been selected once for award and the evaluation had not meaningfully changed, there was a substantial chance of Agma received award. The court entered an injunction preventing continuance of the contract with Ranger.

Agma is represented by Alan M. Grayson. The intervenor, Ranger, is represented by Jonathan D. Shaffer and Todd M. Garland of Smith Pachter McWhorter PLC. The government is represented by Kara M. Westercamp, Elizabeth M. Hosford, Robert E. Kirschman, Jr. and Jeffrey Bossert Clark of the Department of Justice as well as Matthew Lane of the Federal Emergency Management Agency.