Protester Was Inherently Disadvantaged by the Awardee’s Incumbent Status. COFC Said That Was Fine.

The protester argued the agency improperly gave strengths to the awardee’s proposal merely because the awardee was the incumbent contractor. COFC didn’t see a problem, finding that incumbency was relevant to the solicitation.

CAN Softtech, Inc. v. United States, COFC No. 24-670

• Improper Incumbency Factor – The awardee’s proposal stated its “personnel and experience” would allow it to successfully perform. The protester argued the agency’s evaluation of such statements was improperly based on incumbency rather than merit. COFC ruled considering incumbency was not improper, and if it were, the protester had not shown it was prejudicial. The strength for personnel and experience was one of four strengths for the awardee while the protester’s proposal only received one strength.
• FTE Reductions and RFQ – The protester alleged the awardee’s presentation of a full-time employee (FTE) reduction was intentionally misleading and violated the RFQ’s requirements. The awardee presented a description of its planned FTE reduction in its Price Volume but not its Non-Price Volume. The protester argued this violated the RFQ’s consistency requirement. COFC noted that the RFQ did not require the information to appear in a particular volume. Furthermore, the RFQ’s consistency requirement did not require the volumes to contain identical information; they just had to be consistent.
• Ambiguous Level of Effort – The protester claimed the agency violated the FAR and the RFQ by failing to address the awardee’s proposed FTE and its reduction. Although the court found merit to the argument, it concluded the protester did not show “significant prejudice.” There was no guarantee that an agency review of the proposed FTE and its reduction would have caused the awardee’s proposal to be marked down.
• Technical Factors – The Protester further claimed that the agency’s report was inconsistent and challenged specific technical evaluations. COFC disagreed. The court noted that an agency’s technical evaluation is “inherently a judgmental process requiring deference.” The court refused to conduct it own technical evaluations.

The protester was represented by Roger V. Abbott of Miles & Stockbridge P.C.. The agency was represented by Laura Offenbacher Aradi of DOJ. The Intervenor was represented by Robert Guy Hanseman of Sebaly Shilito & Dyer.

— Case summary by Joshua Lim, Assistant Editor