Protest challenging agency’s evaluation of key personnel and price is sustained. The protester alleged the awardee’s key personnel lacked experience required by the solicitation. The government argued that the protester had misinterpreted the type of experience required. The court sided the with the protester, finding that the government’s interpretation of the required experience rendered the solicitation ambiguous. The protester also contended that the government did not perform a price realism required by the solicitation. Again, the court agreed with the protester, finding that with respect to the price realism evaluation, the record was a mess and did not indicate the agency had meaningfully considered whether the awardee’s price was realistic.
The General Services Administration, on behalf of the Department of Defense, issued an RFQ seeking travel management services for the Army. Three vendors, including CW Government Travel, Inc. (CWT) and BCD Travel USA, LLC, submitted quotations. Following a protest and corrective action, GSA awarded the contract to BCD. CWT filed a GAO protest challenging the award, but that protest was denied. CWT then filed suit in the Court of Federal Claims.
CWT argued that BCD’s key personnel lacked required experience. The RFQ stated that key personnel had to have a certain number of years of “U.S. Government travel experience.” CWT contended that BCD’s personnel did not have the requisite years of U.S. Government travel experience.
The government contended that CWT was interpreting the phrase U.S. Government travel experience too narrowly, as limited only to experience booking travel for government personnel. Instead, GSA argued, the phrase also included experience booking travel for aerospace and defense contractors travelling at the government’s expense.
The court, however, found the government’s interpretation of the phrase unreasonable. The contract to be awarded was for travel by U.S. government personnel—i.e., uniformed and civilian personnel in the Army. It did not contemplate the travel services for Army contractors. Because the RFQ contemplated travel services for government personnel, it was obvious that such experience is the very type of experience GSA sought. That is why the RFQ differentiated between governmental travel experience and commercial travel experiences.
Also, only GSA contractors listed in Multiple Award Schedule for Travel were permitted to submit quotations. This limitation restricted bidding to, at most, four companies. It would be illogical for GSA to limit the procurement to holders of the multiple award contract, but then allow the resulting contract to be staffed with key personnel that lacked experience managing government travel.
Additionally, the court reasoned, the term “government travel” was used throughout as referring to travel by government employees, not to contractors.
Moreover, the court opined, it if were to accept GSA interpretation of U.S. Government travel experience, it would make the term ambiguous. Under GSA’s interpretation, it was unclear what type of experience would count as U.S. Government travel experience. Did id include only defense contractors? Did it have to include cost reimbursable government travel?
The government argued that CWT’s interpretation of U.S. Government travel was unduly restrictive because very few contractors, other than CWT, would qualify if CWT’s interpretation were correct. But the court noted that it was not CWT’s interpretation that made the RFQ restrictive; rather, GSA itself made the RFQ restrictive by limiting it to companies on the Mulitiple Award Schedule for travel services. If GSA did not want to restrict competition, it should have amended the RFQ.
The court concluded that contrary to GSA’s tortured rationale, a reasonably intelligent person acquainted with the RFQ would not think that U.S. government travel experience included government contractor travel experience. GSA disregarded the terms of the RFQ in making award to BCD.
The court further found hat CWT had been prejudiced by GSA’s error. If GSA had properly evaluated BCD’s key personnel, the company would have received a deficiency that would have precluded it from receiving the contract. CWT would have been substantially more likely to receive the award.
Next, CWT argued that GSA failed to conduct a price realism analysis required by the RFQ. While GAO argued in the previous GAO protest that it was not required to evaluate price realism, it now contended in the COFC protest that it had conducted a price realism evaluation.
The court reviewed the price evaluation report and GSA’s pre-negotiation price memorandum, but the court found no evidence that price realism analysis had been meaningfully conducted. GSA attempted to argue that its clarifications with BCD evinced a price realism analysis. GSA had raised issues with BCD’s price during clarification. But BCD’s response to those question simply quoted sections of its own quote. The court refused to find that this was evidence of price realism evaluation, reasoning that it would be the very definition of arbitrary and capricious for an agency to conclude that the reasoning an offeror has already provided in their quote before clarifications can suffice for a meaningful price realism evaluation. While the record indicated that GSA engaged in exchanges with BCD, it was entirely devoid of antying that resembled a realism analysis.
Having poured over the administrative record, the court concluded that there was no evidence of a meaningful price realism analysis. Instead, the court stated that it was left with a “strange mess of the government’s own making.”
CWT also objected to the sufficiency of GSA’s analysis of unbalanced pricing. The government argued that it had analyzed BCD’s proposal for unbalanced pricing and found that there was no risk the government will pay high prices.
The court again sided with CWT. The FAR prescribes a two-part unbalanced pricing analysis whereby the agency considers both the risk of paying unreasonably high prices and the risk of unsuccessful performance. The court found that GSA had analyzed some CLINs for risk, but the record was devoid on an overall analysis of unbalanced pricing. While the government provided post-award justifications for its price analysis, the court reasoned that post hoc arguments are not an acceptable substitute for the pre-award analysis required by the FAR.
The court further determined that CWT had been prejudiced by the flawed price analysis. While CWT had a higher price than BCD, the court reasoned that the price differential between BCD and CTW could change with a proper price analysis.
CWT also alleged that the GSA botched the past performance analysis and disparately evaluated proposals. The court did not find either of these argument persuasive. It found that GSA evaluated past performance in accordance with the RFQ’s terms. Also, the court noted that to show disparate treatment, CWT had to demonstrate that the agency gave it a lower rating for having a similar deficiency as BCD. Here, however, CWT’s argument did not concern a similar deficiency but rather the way the agency treated the offerors under two different evaluation factors.
The court concluded that CWT had satisfied the factors for injunctive relief. The court enjoined award to BCD.
CWT is represented by Lars E. Anderson, Sally A. Hostetler, Charlotte R. Rosen, and James P. Miller of Odin, Feldman & Pittleman. The intervenor, BCD, is represented by Timothy A. Furin of Apple & Furin, LLP. The government is represented by Robert C. Bigler, Martin F. Hockey, Jr., and Brian M. Boynton of the Department of Justice as well as Jeremiah M. Strack of the Gener
