Protester Failed to Show Hard Facts Supporting OCI Allegations; COFC No. 18-1425C, Sigmatech Inc. v. United States and DigiFlight Inc.

Protest challenging the agency’s technical evaluation and best value tradeoff decision is denied, where the differences in the evaluation were based on qualitative differences in the proposals, not disparate treatment. The court also rejected the protester’s allegations of a conflict of interest on the part of the awardee’s subcontractor, finding that the protester had failed to present hard facts supporting its allegations or rebutting the findings of the contracting officer.

Sigmatech Inc. challenged the Army’s award of a contract for advisory and assistance services to DigiFlight Inc.

The Army awarded the contract to DigiFlight on a best value basis, concluding that the awardee’s technical superiority merited a 2 percent price premium over Sigmatech’s quotation. While DigiFlight’s quotation was slightly higher priced than the protester’s, it was significantly below the IGCE. Sigmatech challenged the award with GAO, which denied the protest of the technical evaluation and found the agency had reasonably investigated an alleged OCI on the part of the awardee. Sigmatech then filed in the Court of Federal Claims, making the same arguments.

In its complaint, Sigmatech argued that the Army unreasonably evaluated Sigmatech’s quotation, that the Army engaged in disparate treatment, and that the Army’s source selection decision was arbitrary.

Specifically, Sigmatech argued the Army assigned strengths to Digiflight for experience, expertise, or proposed solutions that were equal to those contained in Sigmatech’s quotation, while making only ‘comments’ on Sigmatech’s proposal regarding these features.

Sigmatech also argued that the Army unreasonably and unequally evaluated Sigmatech’s and DigiFlight’s proposed performance of SAMD Repair and Return and cost analyses, as well as Sigmatech’s and DigiFlight’s understanding of financial databases. Regarding SAMD Repair and Return, Sigmatech complained that the Army awarded DigiFlight a strength based on DigiFlight’s “substantial experience with R&R,” but merely ‘commented’ on Sigmatech’s experience, and noted that it would be of value.

Sigmatech also argued that the Army awarded DigiFlight a strength based on DigiFlight’s certified cost estimation analysts, even though DigiFlight’s quotation provided no supporting information. According to Sigmatech, its quotation showed deep expertise with cost analyses, but only received a comment for its experience with cost analyses.

The protester also complained that the Army ignored: 1) the depth of Sigmatech’s expertise with specific financial systems; 2) its use of best practices; 3) its understanding of the laws and regulations that apply to that financial management; and 4) other relevant experience. While the Army awarded DigiFlight a strength for its “superior understanding” of multiple financial databases to support its proprietary tool, the protester argued its quotation was not credited for similar features.

In response, the agency argued the protester merely disagreed with the evaluator’s conclusions. The agency found that the protester’s quotation did not provide the same level of detail supporting its experience and assertions, and that the protester did not go above and beyond the requirements and therefore did not warrant particular strengths.

The court agreed, finding that the protester failed to show how its quotation exceeded—rather than merely met—the requirements. The court found that the assignment of various strengths was not based on disparate treatment, but on objective, qualitative differences in the quotations.

The complaint also alleged for the first time that the Army failed to consider the DigiFlight team’s organizational conflicts of interest involving subcontractor KBRWyle’s position as the prime contractor on a task order under the Defense System Technical Area Task contract for Patriot Technical Support. According to Sigmatech, as the subcontractor to DigiFlight under the RFQ and as the contractor under the DS TAT task order, KBRWyle would have to monitor and evaluate its own work under the DS TAT task order.

The CO investigated the OCI allegations and found no conflict. The CO explained that while KBRWyle was providing similar services, the contracts at issue were awarded by different offices and the services were based on their individual requirements. The CO reviewed the services provided by KBRWyle under each contract and found no evidence of impaired objectivity. Under the contract at issue, KBRWyle would not monitor the work of its employees on the other task order. The CO also noted that oversight was provided by government employees, not contractors.

Sigmatech argued the investigation was unreasonable. The protester acknowledged that the task orders performed by KBRWyle were on behalf of different offices, but argued that distinction did not resolve the interaction and consequential impaired objectivity OCI carried by KBRWyle’s dual role. As a hypothetical example, the protester suggested scenarios under which KBRWyle employees would have a role in overseeing work by other KBRWyle employees in other offices. In response, the CO argued that the protester’s examples did not accurately reflect how the individual offices would address performance issues and simply would not occur. In fact, the CO argued that the protester’s hypothetical scenarios instead showed how KBRwyle’s performance of the various task orders could work together to benefit the agency.

The court found the investigation reasonable and well-supported by declarations from the CO and others government employees involved in overseeing KBRWyle’s work on the other task order. The court found that Sigmatech alleged no hard facts demonstrating that KBRWyle would be in a position to evaluate its own work or proposals for future work. The protester also failed to support its hypothetical scenarios with citations to any material in the record or provide reason to doubt the CO’s declarations. While the protester asserted that KBRWyle would analyze data furnished by other contractors, this did not show that the contractor would not be able to render impartial advice.

Sigmatech Inc. is represented by Jon D. Levin, J. Andrew Watson, W. Brad English, and Katherine E. McGuire of Maynard, Cooper & Gale, P.C. The government is represented by Joseph E. Ashman, Trial Attorney, Commercial Litigation Branch, Civil Division, Department of Justice, with whom were Patricia M. McCarthy, Assistant Director, Commercial Litigation Branch, Robert E. Kirschman, Jr., Director, Commercial Litigation Branch, and Joseph H. Hunt, Assistant Attorney General. Of counsel was Lieutenant Colonel Robert B. Nelson, Judge Advocate, United States Army Legal Services Agency. DigiFlight is represented by Christopher L. Lockwood, Jerome S. Gabig, and Richard J.R. Raleigh, Jr. of Wilmer & Lee, P.A.