NEQ, LLC v. United States

88 Fed. Cl. 38, 2009 WL 2430658
United States Court of Federal Claims·Decided August 10, 2009·No. No. 09-125C·Published·Cited by 48 cases

Opinion

OPINION

ALLEGRA, Judge.

This post-award bid protest is before the court on the parties’ cross-motions for judgment on the administrative record. Plaintiff, NEQ, LLC, contends that in awarding a contract for emergency and rapid response services (ERRS), the Environmental Protection Agency (EPA) relied upon an unstated evaluation factor and otherwise acted in an arbitrary and capricious fashion. After careful consideration of the briefs and other materials filed by the parties, the oral argument, and for the reasons discussed below, the court DENIES plaintiffs motion for judgment on the administrative record and instead GRANTS defendant’s and defendant-intervenor’s cross-motions.

[41]*41I. Background

On September 27, 2007, the EPA issued request for proposal PR-R5-07-10015, contemplating the award of an indefinite-delivery/indefinite-quantity, time and materials ERRS contract. The contract was to have a three-year base period, with two potential option terms of two years each, for a maximum contract period of seven years. The estimated value of the contract was approximately $105 million. The RFP required the award to be made to the offeror proposing the best value to the government in accordance with the stated evaluation criteria.

The purpose of the contract, according to the Statement of Work (SOW), was “to provide fast responsive environmental cleanup services for hazardous substances/wastes/contaminants/ materials and petroleum products/oil for Region 5 (Illinois, Indiana, Ohio, Michigan, Wisconsin, and Minnesota).” “[Environmental cleanup response to natural disasters and terrorist activities,” the SOW advised, might also be required under the contract. The SOW contemplated three categories of response action, expressed with decreasing levels of urgency: (a) “emergency,” which required immediate response; (b) “time-critical,” which required a response within six months of notification; and (c) “non-time critical,” which required a response greater than six months after notification. In each instance, the contractor, in response to a task order for services, was to provide personnel and equipment for multiple tasks, including, “emergency response, sampling, monitoring, site stabilization, controlling spilled material, waste treatment, restoration, removal actions, transportation and disposal.”

The SOW contained detailed requirements and performance standards for response services. It emphasized the need for quick emergency response times to nine large metropolitan areas located within Region 5, specifying—

For emergency response actions requiring immediate mobilization to the site, the contractor will be required to be en route within two (2) hours and arrive at the site no later than four (4) hours for the metropolitan areas listed below.
1. Chicago
2. Detroit
3. Minneapolis
4. Cleveland
5. East St. Louis
6. Cincinnati
7. Milwaukee
8. Indianapolis
9. Columbus

“For non-metropolitan areas,” the SOW further indicated, “the contractor will be required to be en route within (2) two hours and arrive at the site no later than (6) six hours.” The contractor was afforded eight hours to reach the Upper Peninsula of Michigan and Northern Minnesota.

The RFP listed four factors, each with several “significant” subfactors, that would guide the agency’s evaluation, with respective point values assigned, as follows:

Factor 1. Corporate (40 Points)

Subfactor a. Technical Management (10 points)
Subfactor b. Business Management (10 points)
Subfaetor c. Personnel (10 points) Subfaetor d. Contract Management Ability (10 points)

Factor 2. Response Capabilities (30 Points)

Subfaetor a. Response Experience (10 points)
Subfactor b. Response Network (20 points)

Factor 3. Technical Ability (30 Points)

Subfactor a. Pop Quiz (5 points)
Subfactor b. Time Critical Scenario (15 points)
Subfactor c. Emergency Response Scenario (10 points)

Factor 4. Past Performance (10 points)

Regarding the relative weight of these factors, section M stated that “[f]or this solicitation, all evaluation factors other than cost or price when combined are more important than cost or price.”

The RFP again reflected the importance of prompt response times in describing Factor [42]*422, “Response Capabilities,” requiring that “[t]he offeror shall demonstrate with a chart and map how and where response personnel, equipment and regional network of response personnel will be available, whether provided by the contractor or any subcontractor.” The offeror was also obliged to “demonstrate how response time limits required in the SOW will be met” and to include in its technical proposal “a location chart delineating the total number of personnel by locations, available for the contract.”

Section M provided for a technical evaluation panel (TEP) to evaluate the various factors, using the following scale:

Rating Rating Criteria__

5 The response to the factor is superior in most features._

4 The response to the factor is good with some superior features. Information provided is generally clear, and the approach is acceptable with the possibility of more than adequate performance._

3 The response to the factor is adequate. Overall, it meets the specifications and requirements, such that the TEP believes that the offeror could perform to meet the Government’s minimum requirements_

2 Information related to the factor is incomplete, unclear, or indicates an inadequate approach to, or understanding of the factor. The TEP believes that there is question as to whether the offeror would be able to perform satisfactorily.

1 The factor is addressed, but contains deficiencies and/or weaknesses that can be corrected only by major or significant changes to relevant portions of the proposal, or the factor is addressed so minimally or vaguely that there are widespread information gaps. In addition, because of the deficiencies, weaknesses, and/or information gaps, serious concerns exist on the part of the Technical Advisory _Panel (TEP) about the offeror’s ability to perform the required work._

0 The factor is not addressed or is totally deficient and without merit.

These ratings were to be converted to point scores using a sliding scale set forth in the RFP (e.g., a TEP rating of 5 would lead to an award of 100 percent of the available points, 4 would lead to an award of 80 percent of the available points, 3 would lead to an award of 60 percent of the available points, etc.).

On October 29, 2007, EPA received three timely proposals from the following offerors: NEQ, a joint venture between NEIE, Inc. and Environmental Quality Management, Inc.

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NEQ, LLC v. United States, 88 Fed. Cl. 38, 2009 WL 2430658 (uscfc 2009).

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