Offeror Not Entitled to Strengths for Merely Complying with Solicitation Terms; System Studies & Simulation, Inc. and L3 Doss Aviation, Inc. v. United States, COFC Nos. 20-575C and 20-609C


Protests objecting to agency’s evaluation of proposals are denied. A protester argued that it should have received a strengths for its performance under the incumbent contract. The court disagreed, finding that offerors are not entitled to extra credit for incumbency. One of the protesters also asserted that its technical approach should have received additional strengths. The court, however, found that the protester’s proposal merely complied with, but did not exceed, the solicitation’s requirements. One of the protesters argued that the agency disparately evaluated proposals under the past performance factor. But the court found that the offerors’ past performance records were not substantively indistinguishable. The court determined that the agency erred in assigning the awardee a strength for its billing practices, but this error had not prejudiced the protesters.

The Army issued a solicitation seeking advanced helicopter flight training support. Seven offerors submitted proposals. The Army established a competitive range that included System Studies and Simulation, Inc. (S3), L3 Doss Aviation, Inc., and CAE USA, Inc. S3 and L3 had each served as incumbents on prior flight training contracts. The Army awarded the contract to CAE.

S3 filed suit with the Court of Federal Claims, challenging the award. The court sustained the protest, finding that the Army failed to conduct a proper best value tradeoff. Following a revaluation after the protest, the Army again awarded the contract to CAE. The Army found that CAE’s staffing approach offered several unique strengths, and that these strengths warranted CAE’s higher price.

S3 and L3 both filed protests with the COFC challenging the award to CAE. The court consolidated the protests. All the parties moved for judgment on the administrative record.

L3 contended that it should have received an additional strength for its incumbency. The court rejected this argument, reasoning that courts do not assign “extra credit” for incumbency when, as here, the solicitation does not require it, and the agency itself declined to do so.

L3 further alleged that it deserved strengths for other aspects of its technical approach. But the court found that some of these aspects of L3’s proposal simply met basic solicitation requirements and did not exceed them. L3’s description of it capabilities may have been slightly more detailed than the procedure outlined in the solicitation, but it didn’t promise to do more than comply with the solicitation.

L3 asserted that it should have been assigned a strength for its safety history. But safety history was not a stated evaluation criterion. The government cannot rely upon undisclosed criteria in evaluating proposals.

S3 contended that the Army erred in assigned CAE for its billing approach. The Army found that CAE’s approach would result in significant savings. The court agreed with S3, finding that there was no evidence that CAE’s approach would actually result in savings. Nevertheless, the court found that neither S3 nor L3 had ben prejudiced by the error. The SSA had not discussed this strength in the best value analysis. It was not clear how eliminating the strength for CAE would have given S3 or L3 a substantial chance at receiving award.

S3 asserted that CAE should not have received a strength for proposing to use flight instructors instead of flight engineers for training on a certain type of aircraft. In response to questions from offerors, the Army had stated that it was not requiring offerors to use flight instructors on the CH-74 aircraft. Because flight instructors were not required for this aircraft, S3 argued that CAE should not have received a strength for proposing flight instructors for the CH-74.

The court found the strength was unobjectionable. The Army’s answers to offerors’ questions indicated that it was not requiring flight instructors for the CH-74 aircraft, but offerors were not prohibited from proposing flight instructors. Offerors, the court reasoned, cannot expect agencies to exhaustively describe the potential ways they might earn a strength by exceeding the solicitation’s requirements.

L3 argued that the Army disparately evaluated offers under the past performance factor. It complained that the Army unreasonably downgraded its incumbent contract reference due to scheduling issues, but it did not downgrade CAE for fight accidents on one of its prior efforts.

The court did not believe the Army had unequally evaluated proposals. To establish disparate treatment, a protester must demonstrate that the agency downgraded proposals for deficiencies that were substantively indistinguishable from those in other proposals. Here, the Army reasonably determined that staffing shortages in L3’s prior contract were distinct from the accidents on CAE’s prior contract. What’s more, the court found that the Army had thoroughly investigated the issues and determined that the accidents were not entirely CAE’s fault and did not impact its past performance record.

L3 also argued that the Good rating it received under the small business participation factor should have been an Outstanding rating because it had a history of exceeding small business participation goals on past contract. The court noted that to the extent the agency erred in not considering L3’s history of small business participation, it was not clear how the company had been prejudiced by the error. CAE’s prior contract actually showed higher rates of small business participation than L3’s, and it also only received a Good rating under the small business participation factor.

Finally, both S3 and L3 objected to the best value tradeoff. L3 alleged that the SSA did not properly weigh CAE’s higher price. S3 asserted the SSA improperly emphasized CAE’s strengths under the staffing factor. The court rejected these arguments, finding that SSA set forth the relative advantages and disadvantages of each proposal under each factor. The SSA noted CAE’s strengths and specifically described the advantages the agency stood to gain from them. While the SSA did not specifically quantify how CAE’s strengths made up for its price premium, agencies need not assign a value to the worth of technical benefits.

S3 is represented by Walter B. English. L3 is represented by Kevin P. Mullen. The intervenor, CAE, is represented by Alexander B. Ginsberg. The government is represented by Evan Wisser of the Department of Justice.

COFC System Studies Opinion