Software Engineering Services, Corp. v. United States

85 Fed. Cl. 547, 2009 U.S. Claims LEXIS 25, 2009 WL 320667
CourtUnited States Court of Federal Claims
DecidedFebruary 3, 2009
DocketNo. 08-795C
StatusPublished
Cited by21 cases

This text of 85 Fed. Cl. 547 (Software Engineering Services, Corp. 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
Software Engineering Services, Corp. v. United States, 85 Fed. Cl. 547, 2009 U.S. Claims LEXIS 25, 2009 WL 320667 (uscfc 2009).

Opinion

OPINION AND ORDER

WHEELER, Judge.

This post-award bid protest arises from the United States Air Force’s second procurement of advisory and assistance services (“A & AS”) for the United States Strategic Command (“USSTRATCOM” or the “Command”), known as USSTRATCOM systems and mission support (“USAMS”) II. Plaintiff Systems Engineering Services, Corporation (“SES”), is a small, disadvantaged, veteran-owned business located in Bellevue, Nebraska that has been performing federal contracts since its inception in 1991. SES filed this protest on November 5, 2008, challenging the Air Force’s award of six indefinite delivery/indefinite quantity (“IDIQ”) contracts for USAMS II. SES voluntarily dismissed a Government Accountability Office (“GAO”) protest of the same procurement before commencing this action. Three of the awardees, Booz Allen Hamilton, Inc. (“BAH”), ITT Corporation, Advance Engineering & Sciences Division (“ITT”), and CSSS.Net, have intervened on Defendant’s side.

SES challenges the Air Force’s technical evaluation of its proposal, where the evaluators gave SES three “unacceptable” ratings, effectively eliminating SES from the competition. SES alleges that the Air Force failed to consider significant portions of its technical proposal, and essentially ignored SES’s successful performance on the USAMS I contract. Defendant voluntarily stayed performance of the six USAMS II contracts pending the Court’s ruling in this protest, and submitted the Administrative Record on November 14, 2008. Defendant filed a motion for judgment on the Administrative Record pursuant to Rule 52.1 of the Court of Federal Claims (“RCFC”) on December 3, 2008, and Plaintiff filed a response and cross-motion for judgment on the Administrative Record on December 17, 2008. Defendant and BAH filed reply briefs on December 23, 2008. On that same day, Defendant also filed a motion to strike three affidavits included in Plaintiffs response and cross-motion. Plaintiff filed a motion to supplement the Administrative Record on January 7, 2009, and Defendant replied one day later. The Court heard oral argument on the pending motions on January 9, 2009. At the conclusion of the oral argument, the Court authorized the Air Force to proceed with the performance of the six awarded contracts, due to their importance to the national defense. Hr’g Tr. 66, Jan. 9, 2009.

For the reasons stated below, the Court finds that SES’s protest is without merit. While SES raises multiple protest grounds, its challenge to the Air Force’s evaluation generally amounts to mere disagreement with the agency’s reasonable technical determinations. Where rational technical assessments are involved, the Court will not substitute its own judgment for that of the Air Force. See E.W. Bliss Co. v. United States, 77 F.3d 445, 449 (Fed.Cir.1996) (“[TJeehnical ratings ... involve discretionary determinations of procurement officials that a court will [549]*549not second guess.”) (citation omitted). SES also relies upon its suceessfid performance of its US AMS I contract, but the Air Force was required to consider only the contents of SES’s proposal. See Int’l Res. Recovery, Inc. v. United States, 60 Fed.Cl. 1, 6 (2004) (“[I]t is well established that all offerors, including incumbents, are expected to demonstrate their capabilities in their proposals.”) (citation omitted). Furthermore, the Court declines to supplement the Administrative Record with the affidavits of John Alspaugh and Roberts Watts because they had no bearing on the agency’s award decision. See Rust Constructors Inc. v. United States, 49 Fed.Cl. 490, 496-97 (2001). However, because the affidavit of Jim Bridges alleges bias, it contains information that would be omitted from the record unless the Court allowed its inclusion. Accordingly, the Court will permit this affidavit as a supplement to the Administrative Record. See Int’l Res. Recovery, Inc. v. United States, 59 Fed.Cl. 537, 542 (2004).

In summary, Defendant’s motion for judgment on the Administrative Record is GRANTED, and SES’s cross-motion for judgment on the Administrative Record is DENIED. Defendant’s motion to strike Plaintiff’s affidavits is GRANTED IN PART and DENIED IN PART, and Plaintiffs motion to supplement the Administrative Record is GRANTED IN PART and DENIED IN PART.

Background

USSTRATCOM, based at Offutt Air Force Base, Nebraska, protects the United States from many global threats, including nuclear attack. Administrative Record (“AR”) 418. It serves as a unified command under the Department of Defense (“DOD”) and its missions include: space operations; information operations; integrated missile defense; global command and control; intelligence, surveillance and reconnaissance; global strike; and strategic deterrence. Id. USSTRATCOM is also the lead command for integration and synchronization of DOD-wide efforts in combating weapons of mass destruction. Id. To fulfill its missions, the Command engages private contractors to provide A & AS in the form of support technical studies, system engineering, and technical analyses. AR 2.

A. The Solicitation

The Air Force issued RFP No. FA460007-R-0005 (the “Solicitation” or “RFP”) on February 15, 2008, seeking offers for A & AS for the Command. AR 394. Referred to as USAMS II because it is the seeond such acquisition by the Air Force, the procurement has an expected value of $900 million over a five-year period. See AR 2, 5. The Solicitation contemplated the award of six IDIQ contracts using a simplified, best-value, source selection under Federal Acquisition Regulation (“FAR”) Subpart 15.3. AR 506. Each contract would have a one-year base period with the potential for four one-year option periods. AR 2.

Section L of the Solicitation, containing the proposal preparation instructions, cautioned offerors to comply strictly with the proposal requirements. AR 494. Each offeror was to “assume that the Government has no prior knowledge of the Contractor’s capabilities and experience, and will base its evaluation on the information presented in its proposal.” AR 494-95.

Section L instructed offerors to provide proposals in four separate volumes: Volume I, Price; Volume II, Mission Capability; Volume III, Past Performance; and Volume IV, Contract Documentation. AR 495-96. The RFP required each volume to be written on a stand-alone basis and warned offerors that information not contained in a designated volume would be assumed omitted from the entire proposal:

To the greatest extent possible, each volume shall be written on a stand-alone basis so that its contents may be evaluated with minimal cross-referencing to other volumes of the proposal. Cross-referencing within a proposal volume is permitted where its use would conserve space without impairing clarity. The Offeror shall provide a cross-reference matrix indicating the corresponding proposal paragraph in that section and/or volume which addresses the referenced item. Information required for proposal evaluation that is not found in its [550]*550designated volume will be assumed omitted from the proposal.

AR 497.

With regard to the contents of Volume II, Mission Capability, offerors were to describe how they intended to perform tasks in the Performance Work Statement (“PWS”) and, if desired, could cite to directly-related current or past performance:

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85 Fed. Cl. 547, 2009 U.S. Claims LEXIS 25, 2009 WL 320667, Counsel Stack Legal Research, https://law.counselstack.com/opinion/software-engineering-services-corp-v-united-states-uscfc-2009.