If You Allege the Agency Misinterpreted the Solicitation, Make Sure Your Alternative Interpretation Does Not Eliminate Your Own Proposal

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The protester argued that the awardee’s proposed key personnel did not meet the solicitation’s experience requirements. Specifically, the protester argued that proposed program and project managers needed specific experience in IT program or project management, which the awardees’ personnel lacked. The COFC was not persuaded. In denying the protest, the court found that the protester’s interpretation of the experience requirement conflicted with the plain language of the solicitation. Indeed, if the protester’s interpretation were correct, its own proposed program manager would not have been qualified.

Ascendant Services, LLC v. United States, COFC No.22-72C

Background

The Army issued a soliciaton seeking information technology and cybersecurity support. After reviewing twenty four proposals, the Army selected Caelum Research Corporation for award. Ascendant Services, an unsuccessful offeror, filed a protest with the Court of Federal Claims.

Legal Analysis

Experience of Key Personnel

Ascendant alleged that Caelum should have been found unacceptable for failing to propose key personnel with the required education and experience. The solicitation stated that key personnel had to have a certain number of years of “relevant education/experience . . . in an IT discipline related to the assigned program area.” The solicitation then gave several examples of relevant disciplines. Ascendant interpreted this language as requiring that the key program manager have experience in “IT project management”. Likewise, Ascendant contended, the key project managers needed experience in “IT project management”. Ascendant reasoned that Caelum’s key personnel lacked the required IT program/project management.

The court rejected this interpretation. As an initial matter, the court noted that this argument was not so much an argument as a blanket assertion. Rather, than analyzing the language of the contract, Ascendant had simply asserted that its interpretation was correct. Additionally, Ascendant’s interpretation ignored the phrase “related to” in the relevant sentence. The solicitation only required experience in an IT discipline “related to” a program area. It did not require specific IT program or project management.

Morevier, the court noted the solicitation referred to “relevant education/experience.” But Ascendant only applied its interpretation to the “experience” prong, not to education. But these terms were joined by a slash and clearly had to be modified together. If the Ascendant was correct, then the requirement for IT program and project management had to apply to education too. But if it applied to education, then Ascendant’s own proposed program manager would not have the requisite qualifications.

Disparate Evaluation

Ascendant raised additional objections to the evaluation. The court noted that absent the key personnel argument, Ascendant was unlikely to establish prejudice from these alleged evaluation errors. Nevertheless, the court went through Ascendant’s arguments.

Ascendent alleged various instances of disparate treatment where the Army assessed weaknesses to Ascendant that it did not assess to Caelum, or it assessed strengths to Caelum that should have also been assessed to Ascendant. In each of these instances, however, the court found that the Ascendant’s and Caelum’s approach were not substantively indistinguishable, so there was no unequal evaluation.

Past Performance

Ascendant argued that the Army had not given enough consideration to a cure notice received by one of Caelum’s subcontractors while evaluating past performance. The court rejected the argument. Ascendant conceded it was not clear an error had occurred, noting only that the cure notice could have impacted Caelum’s past performance, not that it actually would have had an impact. In any event, the record demonstrated the Army had in fact considered the cure notice and resolved the issue to its satisfaction.

Ascendant is represented by W. Brad English, Jon D. Levin, Emily J. Chancey, Joshua B. Duvall and Nicholas P. Greer of Maynard Cooper Gale, P.C. The intervenor, Caelum, is represented by Beth V. MacMahon of ReavesColey, PLLC. The government is represented by Ioana Cristei, Franklin E. White, Jr., Patricia M. McCarthy, and Brian M. Boynton of the Department of Justice, as well as Captain Timothy M. McLister of the Army

COFC - Ascendent Services