Advanced Data Concepts, Inc. v. United States

43 Cont. Cas. Fed. 77,453, 43 Fed. Cl. 410, 1999 U.S. Claims LEXIS 75, 1999 WL 221677
CourtUnited States Court of Federal Claims
DecidedApril 14, 1999
DocketNo. 98-495C
StatusPublished
Cited by50 cases

This text of 43 Cont. Cas. Fed. 77,453 (Advanced Data Concepts, Inc. v. United States) is published on Counsel Stack Legal Research, covering United States Court of Federal Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Advanced Data Concepts, Inc. v. United States, 43 Cont. Cas. Fed. 77,453, 43 Fed. Cl. 410, 1999 U.S. Claims LEXIS 75, 1999 WL 221677 (uscfc 1999).

Opinion

Opinion and Order1

WEINSTEIN, Judge.

This post-award bid protest case, brought pursuant to the court’s recently expanded jurisdiction under 28 U.S.C. § 1491(b)(1) (1994 & Supp.1998), section 12 of the Administrative Dispute Resolution Act of 1996 (ADRA), Pub.L. No. 104-320, 110 Stat. 3870, 3874-75, is before the court on cross-motions for summary judgment on the administrative record.

On June 11, 1998, plaintiff moved for a preliminary injunction. During a June 17, 1998, hearing, the parties indicated that they had negotiated an agreement whereby: (1) plaintiff withdrew its application for preliminary injunction; (2) defendant, at its discretion, would begin performance under the protested contract; and (3) plaintiff had the option (if the court sustained the protest) to compete in any re-solicitation of the contract.

On June 11, 1998, plaintiff filed a motion for entry of a protective order, which the court granted on June 12,1998. On June 18, 1998, the court adopted the protective order proposed by plaintiff.

Upon reviewing the administrative record [413]*413(AR)2 and the parties’ briefs,3 the court concludes that plaintiffs claims4 do not merit relief. Accordingly, for the reasons discussed below, plaintiffs motion for summary judgment is denied and defendant’s motion for summary judgment is granted.5

Facts

The relevant facts set forth below, which are taken from the AR, are not in dispute.

DOE issued Solicitation No. DE-RP01-97NN50008 on April 1, 1997. The procurement was to be a negotiated, not a sealed bid, procurement. AR at 81. The solicitation sought proposals for the on-site delivery of specialized technical, analytical, and administrative support services at DOE’s Office of Declassification in Germantown, MD. AR at 5. DOE’s Office of Declassification manages procedures for identifying classified information and certain unclassified, but sensitive, information within DOE’s jurisdiction. The office supports the federal government’s nonproliferation objectives by shaping classification policies to inhibit the spread of nuclear technology. AR at 13.

The solicitation identified the contract period as two years, with three one-year options. AR at 5-9. It required the contractor to provide support services, totaling 62,000 direct productive labor hours (DPLH) per year, under ten different labor categories. AR at 119. Direct productive labor hours were defined as “actual work hours exclusive of vacation, holiday, sick leave, and other absences.” AR at 37. Of the ten labor categories, four were designated as “key personnel”: project manager, senior policy analyst, senior technical analyst, and senior training specialist. AR at 27. The solicitation required the contractor to provide the names and resumes of these “key personnel.” AR at 88.

The relative weights for technical criteria were as follows:

Criterion Weight in Points

(1) personnel qualifications and availability (333, or 33.3% of the total)

(a) availability of personnel 133

(b) key personnel qualifications 200-

(2) technical approach (317, or 31.7% of the total)

(a) technical approach 200

(b) understanding of statement of work 117

(3) past performance (250, or 25% of the total)

(a) quality 50

[414]*414(b) cost control 50

(c) timeliness of performance 50

(d) business relations 50

(e) customer satisfaction 50

(4) organization and management capabilities (100, or 10% of the total)

(a) management planning and control 50

(b) organization structure 25

(c) corporate resources 25

Total 1000 points

AR at 159.

The solicitation stated that the “[a]ward will be made to th[e] responsible offéror(s), whose offer(s), conforming to th[e] RFP is (are) considered most advantageous to the Government.” AR at 108. In determining advantage, the “technical proposal [was] of greater importance than the cost proposal.” AR at 108. The solicitation required a determination of whether the best technical proposal was worth the cost differential. AR at 108.

The third criterion of the solicitation called for the evaluation of bidders’ past performance. It required the use of a specific form (a “Contractor Performance Report”) to collect past performance information. AR at 87, 122-23. The solicitation also stated that “if an offeror’s client is unwilling to provide to the Government requested information in support of the Government’s past performance evaluation, that experience will be given a neutral rating.” AR at 90. The solicitation did not define a “neutral” rating.

The solicitation contained the clause at Federal Acquisition Regulation (FAR)6 § 52.215-16, which required, inter alia, DOE to conduct discussions with all offerors “whose proposals have been determined to be within the competitive range.” AR at 81. Discussions were to be held after the competitive range determination. The final award was to be based on bidders’ best and final offers (BAFOs). AR at 81.

DOE received four proposals. Plaintiffs was submitted on April 30, 1997. AR at 1550. Its oral presentation took place on June 17, 1997. AR at 1567-1686. DOE’s technical evaluators scored the initial proposals on June 23, 1997. AR at 116. The technical evaluators noted, inter alia, the following weaknesses in plaintiffs proposal: (1) “Appeared to be oriented to a large project management approach as opposed to integrated day-to-day support;” (2) “Continual confusion of classification with security. ‘Ensure limited access to CNWDI [Critical Nuclear Weapon Design Information]’ as a stated and emphasized objective — which is not a classification matter;” and (3) “Fails to understand the difference between Critical Information and Technology (CRIT) and restricted data under NISPOM.” AR at 182-85. No competitive range determination was made.

On July 31, 1997, without conducting discussions, DOE awarded the contract to Dyn-Meridian. AR at 195. On August 12, 1997, at plaintiffs request, DOE debriefed plaintiff. DOE informed plaintiff that its proposed “key personnel qualifications” were rated as poor because, inter alia, the personnel lacked nuclear weapons design, development, or testing experience. AR at 197-213.

Plaintiff filed a protest with the General Accounting Office (GAO) on August 15, 1997, arguing primarily that DOE unlawfully awarded the contract without holding discussions, as required by the solicitation. AR at 2012-23. In response, DOE rescinded the award and reopened the procurement. DOE agreed to determine a competitive range of offerors, to open discussions on -written questions, and to receive and evaluate BAFOs upon conclusion of the discussions. AR at [415]*4152361. On September 16, 1997, the GAO dismissed plaintiffs protest as moot because DOE had taken adequate corrective action. AR at 2371.

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43 Cont. Cas. Fed. 77,453, 43 Fed. Cl. 410, 1999 U.S. Claims LEXIS 75, 1999 WL 221677, Counsel Stack Legal Research, https://law.counselstack.com/opinion/advanced-data-concepts-inc-v-united-states-uscfc-1999.