Heritage of America, LLC v. United States

77 Fed. Cl. 66, 2007 U.S. Claims LEXIS 166, 2007 WL 1585008
CourtUnited States Court of Federal Claims
DecidedMay 16, 2007
DocketNo. 07-150 C
StatusPublished
Cited by43 cases

This text of 77 Fed. Cl. 66 (Heritage of America, LLC 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
Heritage of America, LLC v. United States, 77 Fed. Cl. 66, 2007 U.S. Claims LEXIS 166, 2007 WL 1585008 (uscfc 2007).

Opinion

OPINION AND ORDER

GEORGE W. MILLER, Judge.

This matter is before the Court on plaintiffs motion for judgment on the administrative record1 (“Pl.’s Mot.,” docket entry 8) filed March 8, 2007, defendant’s cross-motion for judgment on the administrative record (“Def.’s Cross-Mot.,” docket entry 36) filed April 12, 2007, defendant-intervenor Dynamic Systems Technology, Inc.’s (“Dynamic”) cross-motion for judgment on the administrative record (“Dynamic’s Cross-Mot.,” docket entry 33) filed April 12, 2007, and defendant intervenor Evolver, Inc.’s (“Evolver,” and together with Dynamic, “intervenors,” and together with Dynamic and the Government, “defendants”) cross-motion for judgment on the administrative record (“Evolver’s Cross-Mot.,” docket entry 34) filed April 12, 2007. Evolver also filed a motion for leave to submit extra-record evidence (docket entry 35) on April 12, 2007, to which no opposition has been filed. Plaintiff filed its consolidated reply (“Pl.’s Reply,” docket entry 38) on April 26, 2007. Defendant filed its reply (“Def.’s Reply,” docket entry 41), as did Evolver (“Evolver’s Reply,” docket entry 42) and Dynamic (“Dynamic’s Reply,” docket entry 43) on May 3, 2007. The Court held a hearing on the motion and cross-motions on May 7, 2007.

The Court ORDERS that Evolver’s motion for leave to submit extra-record evidence is GRANTED. Nonetheless, for the reasons set forth below, the Court grants plaintiffs motion for judgment on the administrative record and denies defendants’ cross-motions.

BACKGROUND

On June 26, 2006, the Contracting Center for Excellence, Army Contracting Agency (“CCE-ACA”) issued Solicitation No. W74V8H-06-R-0044 (“Solicitation”) for support services for the Army Continuing Education System (“ACES”). Administrative Record (“AR”) 2,1836. As part of the ACES program, contractors provide “non-personal educational support services to assist Government professionals in the delivery of adult education services” at over forty-five Army installations in the contiguous United States, as well as a number of sites outside of the continental United States. Id. The Solicitation stated that the support services would include (1) reception/administrative services, (2) counseling support services, (3) counseling services, (4) facilities administration services, (5) automation and technology support services, (6) test examiner services, (7) test proctor services, (8) test control officer for Army personnel testing services, (9) instruction services, (10) multi-use learning facility support services, and (11) educational programming services. Id.

On August 4, 2006, the CCE-ACA issued Amendment No. 0001, which replaced the original solicitation in its entirety. Id. at 1. On August 11, 2006, the CCE-ACA issued [69]*69Amendment No. 0002, which replaced data in sections B, L, and M. Id. at 373. On August 17, 2006, the CCE-ACA issued Amendment No. 0003, which, among other things, made changes to section M. Id. at 425.

The Solicitation provided that awards would be made to the offeror(s) whose proposals) presented the best value to the Government. In order to determine which offeror(s) presented the best value, the CCE-ACA stated that it would evaluate the each offeror’s technical capability, past performance, and cost/price. The Solicitation explained that “Technical Capability is significantly more important than Past Performance, and Past Performance is significantly more important than Cost/Price. Technical Capability and Past Performance when combined are significantly more important than Cost/Price.” Id. at 455. Where non-price factors were nearly the same, however, the Solicitation stated that best value could be represented by the lowest-priced offer. Id. at 456.

The Government anticipated awarding multiple Indefinite Delivery, Indefinite Quantity Labor Hours Contracts, each of which would be for one base year with four one-year option periods. Id. at 2. The contracts were to be awarded by region, with a maximum of two contracts awarded for each region. Id. at 367-68. In order to be considered for a region, an offeror was required to submit a proposal for at least “75% of the services required in the regions listed in Technical Exhibit 3.” Id. at 368, 417, 419, 422, 423. Offerors were to submit a pricing proposal that included proposed prices for the base year as well as for each of four option years. Id. at 362.

The Government received fifteen different proposals from thirteen offerors. Id. at 1720-24. Plaintiff received an “Excellent” rating on technical capability, the highest rating possible, as did intervenors. Id. at 1706, 1709, 1712. Plaintiff and intervenors each received a “Low Risk” rating, the best rating possible, on past performance. Id. at 1714,1717,1719. Plaintiff had the lowest bid of any offeror for the Northwest and the Southwest regions, id. at 1724, and in the Pacific region Serrato Corporation had the lowest bid, while plaintiff had the second-lowest bid. Id. at 1722-23. Ultimately, the CCE-ACA awarded Evolver the contracts for the Northwest and Pacific2 regions, and awarded Dynamic the contract for the Southwest region. Id. at 1732.

On September 22, 2006, the CCE-ACA informed plaintiff by email that it had not been awarded a contract, and also informed plaintiff of the winning offerors. Id. at 1735. That same day, plaintiff requested a post-award debriefing. Id. at 1737. Plaintiff received a written debriefing on October 10, 2006. Id. at 1739.

Plaintiff filed an agency protest on October 13, 2006. Id. at 1781. In its agency protest, plaintiff alleged five reasons its protest should be sustained: (1) it did not receive preferential evaluation points as a service-disabled veteran-owned small business; (2) in spite of the CCE-ACA’s assertion in the debriefing slides to the contrary, plaintiff did specify program managers and alternates in conformance with the Solicitation; (3) the CCE-ACA did not respond to its request for debriefing in a timely manner; (4) the debriefing did not fully respond to its request; and (5) inasmuch as it appeared equal to the awardees in all technical and other respects, plaintiff should have been awarded the contracts based on its having offered the lowest price. Id.

On October 17, 2006, plaintiff filed a protest at the Government Accountability Office (“GAO”), making essentially the same allegations. Id. at 1832. On November 16, 2006, the Army filed an agency report responding to plaintiffs allegations and stating that plaintiff was not awarded contracts in the Northwest, Southwest, and Pacific regions, and, in fact, was ineligible for award, because “it did not propose on at least 75% of the services in each region, as required in the Solicitation.” Id. at 1840-54.

[70]*70On November 21, 2006, plaintiff requested and the GAO granted plaintiff a one-day extension of the deadline by which its comments on the agency report were due, from November 27, 2006, to November 28, 2006. Id. at 1855. Plaintiff filed its comments on the agency report on November 28, 2006, in which it responded to the Army’s assertion that it had failed to bid on at least 75 percent of the services required in each region, explaining that it had bid on more than 75 percent of the estimated labor hours in each region. Id. at 1862-63.

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77 Fed. Cl. 66, 2007 U.S. Claims LEXIS 166, 2007 WL 1585008, Counsel Stack Legal Research, https://law.counselstack.com/opinion/heritage-of-america-llc-v-united-states-uscfc-2007.