Protest alleging that (1) awardee failed to comply with solicitation’s formatting requirements, and (2) the agency mis-evaluated proposals under the non-price and price factors is denied. The solicitation required offerors to use 12 pt. font for the narrative portions of their proposal but allowed smaller fonts for things like graphs or illustrations. The protester alleged the awardee had improperly used small font for things—like text boxes—that were not graphs or illustrations. The court found, however, that the solicitation did not strictly limit the use of small font to graphs, charts, and illustrations; small font in text boxes was fine. As to the protester’s objections to the agency’s evaluation, the court found that the vast majority of the protester’s arguments amounted to mere disagreement with the agency. The fact that the agency did not find a benefit in every detail of the protester’s proposal did not mean the evaluation was flawed.
Immigration and Customs Enforcement issued a solicitation seeking translation services. The services had been provided by a number of contractors, but the solicitation consolidated services for efficiency. After receiving proposals, ICE narrowed the competition down to two contractors who had both been providing translation services to the agency: Metropolitan Interpreters and Translators, Inc. (Metro) and MVM, Inc. Metro and MVM both received the highest possible ratings under the solicitation’s non-price factors. MVM’s price, however, was slightly lower than Metro’s. ICE awarded the contract to MVM.
Metro filed a protest with COFC, alleging that MVM failed to follow solicitation requirements and challenging ICE’s evaluation under the technical, management, past performance, and price factors. MVM intervened in the protest, and the parties moved for judgment on the administrative record.
Before considering the merits of Metro’s protest, the court first addressed Metro’s request to supplement the administrative record. Metro wanted to add (1) the declaration of a consultant who had estimated Metro’s and MVM’s total costs, and (2) a table that summarized alleged inconsistencies in ICE’s technical evaluation.
The court denied the motion. The court opined that it had no need for the consultant’s independent calculations to determine if the agency acted arbitrarily. Moreover, the court did not find Metro’s summary of ICE’s alleged inconsistencies helpful. Metro claimed that the summary was required because the administrative record was so voluminous. But the court reasoned that if Metro needed additional space to address all the issues in its protest, it should have requested leave to exceed the page limits set by court for its motion.
As to the merits of the protest, Metro first argued that MVM’s quote violated the solicitation’s page limit requirement by excessively using smaller font for non-narrative text—e.g., graphs, illustrations, and tables. The solicitation required offerors to used 12 pt. Times New Roman font. Metro contended that 39 percent of MVM’s solicitation was in 9 pt. Arial Narrow or smaller. What’s more, Metro argued, many instances of this smaller font were not contained in graphs or illustrations but rather interspersed text boxes containing narrative language.
The court did not find Metro’s font argument compelling. The solicitation expressly allowed smaller fonts for “graphs, illustrations, tables, etc.” The use of the “etc.” on this list meant that the font restrictions were flexible and that offerors could use smaller font for things other than graphs, illustrations, and tables.
Metro next argued that ICE misevaluated its proposal under the solicitation’s technical approach factor. Metro asserted that ICE had ignored the benefits of the company’s multiple service centers located throughout the country. But the court found that ICE did not ignore the purported benefit; rather, the agency simply did not find multiple service centers that beneficial. Translation and transcription services could be performed anywhere and simply emailed to the agency. Multiple service centers were unnecessary.
Metro also alleged that ICE’s evaluation of the service centers was unfair. Specifically, it contended, the SSA refused to credit Metro for its multiple service centers but considered MVM’s potential future locations to be a strength. But the court noted that the portion of the record Metro cited for this argument was the technical evaluation report, not the SSA decision. While the technical evaluation may have considered MVM’s future locations a strength, for its part, the SSA found that neither offeror’s multiple locations was that beneficial. Thus, the SSA ultimately did not treat the offerors differently.
Metro further argued that the evaluation under the technical approach was flawed because ICE did not assess MVM’s ability to staff and provide all the required services. The court found however, that while the technical team and the SSA did not parrot back the exact language from the RFQ, the administrative record showed that the agency in fact determined that MVM had the ability to provide all the services required. Metro may have strenuously disagreed with this assessment, but that did not make the award to MVM irrational.
Aside from the technical approach, Metro objected to ICE’s evaluation under the solicitation’s management approach. Metro argued that ICE did not sufficiently appreciate how its management approach would result in cost savings. But the court found that Metro’s argument did not articulate what the agency should have done differently with respect to these purported savings. The SSA had simply found that these savings were too speculative to impact the award decision. Metro may have disagreed with this, but that disagreement did not make the award arbitrary.
Metro contended that the management approach evaluation was flawed because ICE minimized the strengths of Metro pre-cleared employees. But the record showed that the SSA acknowledged the value of Metro’s workforce. The fact that the SSA did not treat every detail of Metro’s proposal in the most advantageous manner did not justify the court’s intervention.
Metro also claimed that ICE’s past performance evaluation was irrational. Metro reasoned that MVM had received a Marginal rating on past contract for Business Relations and Utilization of Small Business. But business relations and small business use were not relevant to ICE’s current requirements. MVM’s past performance reference did demonstrate successful performance under the factors relevant to the procurement. The court could not find that the past performance ratings lacked a rational basis.
Finally, Metro objected to ICE’s price evaluation. The solicitation stated that prices would be evaluated under FAR 8-405-2(d), which requires an agency to determine whether an offeror’s total price is reasonable. Offerors were required to propose rates for three different tiers of languages. ICE evaluated total price by only considering two language tiers; it evaluated the reasonableness of the third tier separately. Metro claimed that under FAR 8.405-2(d), ICE had to include the third tier in calculating total price, if it had included the third tier in the total evaluated price, it would have realized that MVM’s proposed rates were higher than Metro’s.
But the court found that Metro’s argument depended on a fallacy—namely, that the requirement to determine total price reasonableness under FAR 8.405-2(d) was at odds with ICE’s decision to only consider two tiers of languages when evaluating total price. FAR 8.405-2(d) vests the agency with authority to determine whether the total price is reasonable; it does not dictate how total price is calculated. As promised, ICE conducted a reasonableness analysis for the three language tiers. This did not mean that ICE had to combine all three tiers to actually calculate total evaluated price for award purposes.
Metro is represented by Holly A .Roth. The intervenor, MVM, is represented by Meghan F. Leemon. The government is represented by Veronica N. Onyema, Joseph H. Hunt, Robert E. Kirschman, Jr., and Douglas K. Mickle of the U.S. Department of Justice as well as Douglas J. Becker of U.S. Immigration and Customs Enforcement.
