Protest objecting to the evaluation of proposals is denied. The protester alleged the agency applied unstated criteria in evaluating past performance. The court found the criterion the agency applied was intrinsic to the contract; in fact, it was directly relevant to the type of work contemplated by the solicitation. The protester challenged a weakness it received for lacking assurances of incumbent capture. But the court determined that the agency was reasonably concerned about the protester’s ability to retain incumbent staff. The protester asserted it should have received a strength for being on the “bleeding edge of software development,” but the court found that this argument was simply disagreement with the agency’s evaluation conclusions.
The U.S. Department of Agriculture (USDA) maintains the Market News Service, which provides current market information about commodities. The USDA issued a solicitation seeking a contractor to maintain the systems that gather and analyze information for the Market News database.
Nine offerors submitted proposals. After evaluating response, USDA determined that the best value decision came down two companies: Harmonia Holdings Group and the incumbent, Digital Management, LLC (DMI). USDA awarded the contract to DMI, finding that the company had the highest ranked proposal and, given its institutional knowledge, posed less risk to the government. Harmonia filed a protest with the Court of Federal Claims.
Harmonia alleged USDA applied unstated criteria in evaluating past performance. Specifically, it claimed that one of the criteria—familiarity with Market News and understanding of data collection and reporting requirements—was not contained in the solicitation.
The court noted that a solicitation need not identify criteria intrinsic to the stated evaluation factors. To prove unstated criteria, a protester must show that the agency used significantly different criteria in evaluating proposals than was disclosed.
Here, Harmonia had not met the standard. Consideration of an offeror’s familiarity with the Market News service as well as the offeror’s understanding of data collection requirement was intrinsic to the solicitation. Indeed, that kind of understanding goes to the purpose of the solicitation. The court opined that Harmonia could not be surprised that the USDA would give added weight to past performance for which an offeror was performing the same work as set forth in the PWS.
Harmonia also challenged a weakness it received for failing to provide assurances that incumbent personnel would join the Harmonia team. Harmonia maintained that it had provided such assurances. It’s proposal stated that it had a staffing plan designed to capture incumbent employees. Harmonia acknowledged that transition to a new employer could be stressful, so it proposed to hold happy-hours and meet-and-greets with incumbent staff to provide a detailed introduction to its corporate culture.
But the court believed that USDA had reasonably determined that Harmonia’s approach did not provide assurance of incumbent capture. Indeed, the court noted, the fact that Harmonia had proposed to have events revealed for staff that the company itself recognized the risk that some incumbent staff would leave.
Harmonia argued that the solicitation did not identify incumbent capture as an evaluation criterion. The court dismissed this argument reasoning that Harmonia could not feign surprise at the incumbent capture criterion when its own proposal contained measures to capture incumbent personnel.
Harmonia argued that it should have received a strength for being on “the bleeding edge of software development.” As far as the court could tell, there was no reason to believe that the agency did not give consideration to Harmonia’s “bleeding edge” innovations even if did not assign a strength. The court saw no reason to question the agency’s judgment.
Harmonia alleged that the SSA did not exercise independent judgment in making the best value tradeoff. Harmonia noted that the SSA had concerns with the ratings assigned by the evaluators to DMI but went ahead and gave DMI the exact same ratings.
The court did not believe this showed a lack of independent judgment. To the contrary, it actually revealed that the SSA acted independently. She had a concern about the evaluation, asked the evaluators to clarify the concern, and upon receiving the clarification was satisfied that reduction in ratings was not warranted.
Finally, Harmonia argued that the SSA had not sufficiently documented the award decision. The court was unconvinced, noting that SSA took the relative strengths of each offeror’s proposal into consideration and explained why DMI’s proposal represented the best value.
Harmonia is represented by Jon D. Levin, W. Brad English, Emily J. Chancey, and Michael W. Rich of Maynard, Cooper & Gale, P.C. The government is represented by Jimmy S. McBirney, Misha Preheim, Robert E. Kirschman, Jr., and Brian M. Boynton of the Department of Justice as well as Tyler Ellis of the Department of Agriculture.
