Hyperion, Inc. v. United States

92 Fed. Cl. 114, 2010 U.S. Claims LEXIS 104, 2010 WL 1634055
CourtUnited States Court of Federal Claims
DecidedApril 16, 2010
DocketNo. 09-758C
StatusPublished
Cited by8 cases

This text of 92 Fed. Cl. 114 (Hyperion, 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
Hyperion, Inc. v. United States, 92 Fed. Cl. 114, 2010 U.S. Claims LEXIS 104, 2010 WL 1634055 (uscfc 2010).

Opinion

OPINION

BRUGGINK, Judge.

This action is brought pursuant to the court’s bid protest jurisdiction. Plaintiff, Hyperion, Incorporated (“Hyperion”), an unsuccessful offeror in Solicitation HHM402-09-R-0050 (“RFP” or “Solicitation”), alleges that the United States, acting through the Defense Intelligence Agency (“DIA” or “agency”), has acted arbitrarily, capriciously, and in violation of law in excluding Hyperion from its competitive range determination (“CRD”) of October 7, 2009.

Currently pending are cross-motions for judgment on the administrative record regarding plaintiffs request for permanent in-[116]*116junetive relief. Oral argument was held December 4, 2009. By agreement of the parties, the matter was stayed pending resolution of two other protests involving the same procurement. We are issuing an opinion in that related matter, consolidated as ManTech, Inc. v. United States, 09-804C, contemporaneously. Our disposition of the claims in ManTech resolves many of Hyperion’s claims so the analysis there will not be repeated in full here. In addition, we rely on the background set out there for most of the facts here, as well as the generally applicable law. For the reasons set out below, we deny plaintiffs motion for judgment on the administrative record and grant defendant’s motion.2

BACKGROUND

On May 26, 2009, the agency issued the Solutions for the Information Technology Enterprises (“SITE”) Solicitation in which it seeks to establish acquisition parameters for delivering information technology (“IT”) services and capabilities to the intelligence community.3 The agency will award to about four large businesses and four small businesses an indefinite delivery/indefinite quantity (“IDIQ”) contract. Administrative Record (“AR”) 1286. The proposals for the large and small businesses are reviewed separately. The eight winning bidders will be able to compete on a task order basis over the course of a base year and four one-year options. The ceiling amount for the SITE program is $6,600,000,000; the floor is $50,000. The Solicitation provides for a CRD under Federal Acquisition Regulation (“FAR”) part 15.306(c)(1) in order to limit the number of potential bidders with which the Contracting Officer would have to negotiate.

On October 7, 2009, the Source Selection Authority (“SSA”), based on the rankings and recommendations compiled by the Source Selection Advisory Council (“SSAC”), submitted a CRD consisting of six small and six large businesses. He explained his decision regarding the small businesses as follows:

The SSA decision to select 6 proposals and to exclude [ ....] and all other Small Business proposals from the competitive range with a rating of red (unacceptable) in the most important evaluation factor, Technical Management, is because even when considering any with more favorable cost, no better cost scores could overcome these lower acceptable Tech/Mgt score and thus the overall value to the Government was lower and at a natural break for all proposals outside of the top 6 proposals.

AR 12907.

Hyperion, a qualified small business teaming with six other small businesses for its proposal, was not one of the six selected. Hyperion received a debriefing from the DIA on October 26, 2009, in which it learned that its proposal was given, inter alia, an “Unacceptable (Red)” rating in the Technical/Management Factor and an “Acceptable (Green)” rating in the Past Performance factor. Hyperion’s overall proposal ranked L ] out of the eighteen small business offerors. Hyperion filed this protest on November 6, 2009.

DISCUSSION

We have jurisdiction pursuant to the Tucker Act, 28 U.S.C. § 1491(b) (2009). And we find that the plaintiff has standing to invoke this jurisdiction by virtue of its direct economic interests.

Hyperion asserts that DIA acted arbitrarily, unreasonably, and in violation of law in three ways. First, the DIA, in making its CRD, did not make a coordinated, comprehensive evaluation of the proposals or a full assessment of Hyperion’s ability to perform the work the Solicitation requires. Second, DIA’s evaluation and subsequent scoring of the Technical/Management Volume was unreasonable. Third, the Technical/Management rating of “unacceptable” was irrational and arbitrary.

[117]*1171. The Competitive Range Decision

Plaintiff contends that its unacceptable Technical/Management rating cannot be reconciled with its adequate Past Performance rating. The narrative description accompanying its Technical/Management rating provides, in part, that the “proposal is highly inadequate; the offeror cannot meet performance requirements.” AR 524. Plaintiffs Past Performance rating, on the other hand, includes the following narrative: “minimum doubt exists, based on the Offeror’s performance record, that the Offeror can successfully perform the proposed effort.” AR 525. A similar argument was made and rejected in ManTech. We concluded there that such assessments are not inconsistent because the Past Performance evaluators had a fundamentally different task than did the Technical/Management evaluators.

Past performance “is a measure of the degree to which an Offeror has kept its previous contractual promises and thus satisfied its customers, to include management of teaming arrangements for large businesses.” AR 518. The evaluators were to make the following assessments after contacting the clients serviced by the bidders’ previous contracts: whether previous contracting efforts indicate the scheduling standards were achieved without affecting cost or performance; whether the quality of services provided was professional and at the level expected by the customer; whether the offeror’s team can effectively manage large contracts similar in scope, complexity and size; and whether the offeror demonstrated satisfactory previous teaming arrangements and positive business relationships. AR 518.

The Technieal/Management evaluators, on the other hand, were required to ensure that the offeror had the “depth and breadth [of] experience and expertise” to “meet the requirements for each of the functional areas.” AR 514, 517. The evaluators were probing for detail on particular experience relevant to the Statement of Objectives. For instance, one of nine standards required the offeror to demonstrate “an understanding of the applicable information systems’ technical standards required to enable information sharing, integration, and interoperability by using best practices and align the evolving architecture with overarching federal, IC and DOD architecture guidance.” AR 518. Another required of-ferors to provide “an understanding of the U.S. and allied forces’ logistics support system and proposes an integrated solution that allows efficient and rapid distribution of assets between DOD and its strategic partners, especially during times of national crisis.” AR 517.

Hyperion satisfied customers on related types of work in the past; it was unable to demonstrate to the Technical/Management evaluators that its experience was in the precise areas covered by the Statement of Objectives. These findings are not at odds.

2. Hyperion’s Weaknesses within the Technical/Management Factor

The Solicitation lays out five elements and nine standards for the Technical/Management Factor.

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92 Fed. Cl. 114, 2010 U.S. Claims LEXIS 104, 2010 WL 1634055, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hyperion-inc-v-united-states-uscfc-2010.