In the United States Court of Federal Claints
NO. l5-l495 C
(Filed UNDER SEAL February 26, 2016)
Reissued March 8, 2016‘
PRECISI()N ASSET )
MANAGEMENT C()RP., )
Plaintiff, ) Post-Award Bid Protest; Subject
v. ) l\/Iatter Jurisdiction; Standing;
) Economic Interest; Substantial Chance.
THE UNITED STATES,
Defendant,
KM MINEMIER &
ASSOCIATION., LLC,
intervenor
\./\_/\_/£\}\./
Sharon A. Roach, Benton Potter & Murdocl<, P.C., Falls Church, VA for
plaintiff. Jam`ne S. Bentorz, Kathy C. Pozter, John M. Murdoc/c and Rosanne E.
Slafiej, of counsel.
Marz‘z`n M. Tonilz`nsorz, Commercial Litigation Branch, Civil Division, United
States Department of Justice, Washington, DC, with whom appeared Berzjamz`n C.
Mz'zer, Principal Deputy Assistant Attorney General, Roberz.‘ E. Kirschman, Jr.,
Director and Deborah A. Bynum, Assistant Director, for defendant
Kazhryn V. F/ooa’, Pilierol\/lazza, PLLC, Washington, DC for defendant-
intervenor, KM Minemier & Associates, LLC. Pamela J. Mazza, Patrz`ck T.
Roz‘hm)e/l, and Jczcqzze/irze K. Unger, of counsel.
OPINION
Precision Asset Management Corporatiori ("plaintiff’ or "Precision") filed the
instant post-award bid protest on Deceinl:)er l(), 2()15. See Doc. l. in the complaint,
plaintiff alleges that the Departinent of Housing and Urban Development ("HUD")
failed to fairly evaluate its proposal to manage certain property for the government,
and asks that the court direct HUD to reconsider its submission See z`a’. at 2-3.
l Reissued with redactions pursuant to defendant’s status report, doc. 37, providing notice of all
parties’ agreed proposed redactions, filed l\/larch 4, 20l6.
I. BACKGR()UND AND RELEVANT FACTS
The Federal Housing Authority ("FHA"), which is part of HUD, "administers
the single-family mortgage insurance program." See Doc. 27 at ll. When a
homeowner defaults on an FHA-insured loan, many times, HUD ultimately acquires
title to the property. See z`a’. HUD outsources the management of these properties,
contracting with various outfits for asset management services. Asset management
includes services related to the marketing and sales of the properties HUD has
acquired. See z'd.
A. The Solicitati0n
On July 25, 2014, HUD issued Solicitation No. DU204SA-l3-R-()OO5 (the
"solicitation"), requesting proposals for asset management services in twelve
geographic areas. See AR at 44. The area at issue in this action, Area 5A, involves
property in the states of North and South Carolina. See AR at 4031.2 Once the
government received the requested proposals, the evaluation process involved two
steps. First, HUD determined whether each proposal was technically acceptable, on
a pass/fail basis. See AR at 4()45.
Those proposals that were deemed technically acceptable, were then
evaluated with the goal of determining which was the best value to HUD. See z`a’.
This analysis considered past performance and price, assigning approximately the
same relative importance to each. See z`d. In order to determine the strength of a
bidder’s past performance, the technical evaluation panel ("TEP") analyzed the
recency, relevancy, and quality of that performance, along with the panel’s
confidence in the bidder’s ability to perform under the contract. See AR at 4048,
4052.
The TEP assigned each proposal one of five adjectival ratings for confidence
and quality of past performance: eXcellent/liigh confidence, good/significant
confidence, fair/some confidence, no confidence, and neutral/unknown confidence
See i`a’. in coming to these determinations, the TEP was to evaluate the three most
recent, relevant references provided by the bidder. See AR at 4038.
2 Because HUD amended the solicitation subsequent to its initial request for proposals, appropriate
references are made to the terms ofthe amended document
2
B. Plziintif`f’s Proposal
Plaintiff submitted its initial proposal for all twelve geographic areas on
Septernber 2014. See AR at 1224 For Area SA, the only area at issue in this
protest, plaintiff was to XXXXXXXXXXXXXXXXXXXXXXXXXXXXX, and
the proposed cost was XXXXXXXXXXXXXX}~IXXX. See AR at 1224, 1483
Plaiiitiff’s proposal also included XXXXX contract references on which HUD was
to inal33,l7l,9l2.89
Netitral/Unl)(1).
Under this section, a plaintiff must demonstrate that it is an "interested party,"
in order to establish this court’s jurisdiction. As the Federal Circuit has held, the
"interested party" requirement in the Tucker Act "imposes more stringent standing
requirements than Article 111." Weeks Marine, Inc. v. United Stczles, 575 F.3d 1352,
1359 (Fed. Cir. 2009). Though the term "interested party" is not defined by the
statute, courts have construed it to require that a protestor "establish that it ‘(1) is an
actual or prospective bidder and (2) possess[es] the requisite direct economic
interest." See z`d. (citing Rex Serv. Corp. v. Unz`tea’ States, 448 F.3d 1305, 1308 (Fed.
cir. 2006)).
The record clearly demonstrates that plaintiff is an actual bidder, but the
government maintains that plaintiff does not have the requisite economic interest to
pursue its claim. See Doc. 27 at 29. 1n order to demonstrate sufficient economic
interest to support standing, plaintiff "must show that there was a ‘substantial
chance’ it would have received the contract award but for the alleged error in the
procurement process." Info. Tech. & Applz'catz`ons Corp. v. U)'zz'tea.’ Stazes, 316 F.3d
1312, 1319 (Fed. Cir. 2003) (citing Alfa Lava/ Sepczrarz'on, [nc. v. Um'ted Smtes, 175
F.3d 1365, 1367 (Fed. Cir. 1999)).3
The court, then, is left to the task of determining whether plaintiff has
demonstrated that it would have a substantial chance of receiving the Area 5A award,
but for the various alleged errors in HUD’S evaluation process. Plaintiff argues that
it has met this burden because had the TEP not made the alleged errors, plaintiffs
proposal would have received a higher rating than the "Neutral/Unknown
Confidence" rating that the TEP ultimately assigned, and l\/linemier’s proposal
3 The court notes that although it was not entirely clear from the initial briefing that plaintiffagreed
that this standard governs the dispute, counsel for plaintiff acknowledged at oral argument that the
"substantial chance" standard does indeed apply.
6
would have received a lower rating than "Good/Significant Confidence." See Doc.
24 at 27. See also Doc. 3l at 33-35. ln other words, it is plaintiffs position that a
higher performance/confidence rating for it, and a lower rating for Minemier, would
have given plaintiff a substantial chance of receiving the award, irrespective of the
price attached to its proposal. See Doc. 3l at 35 (arguing that the relatively small
"differential between Precision’s price and another offeror’s price is not a barrier to
award in a best value procurement").
The government counters that even the highest possible rating,
"Excellent/Higli Confidence," would not have given plaintiff a substantial chance of
receiving the award because its price was too high.
The simple, unavoidable fact is that even if [Minernier] had received a
worse confidence rating, and Precision had received a better confidence
rating, there was an o]j"eror whose past/present performance evaluation
Precision has not challenged that received the highest possible
conj?a’ence rating ana’ whose price was over X ).CXXXX less
than Precision ’si
See Doc. 27 at 3l. (emphasis in original) (footnote omitted). The offeror to which
the government refers in this passage is XXXXXXXXXXXXXXXXXX, as
represented in the chart above.
Notably, the substantial chance requirement does not mean that plaintiff must
prove it was next in line for the award but for the government’s errors. See Scz'. &
Mg)nt. Res., [nc. v. Unz`tea' States, ll7 Fed. Cl. 54, 62 (2014); see also Data Gen.
Corp. v. Johnson, 78 F.3d 1556, 1562 (Fed. Cir. 1996) ("To establish prejudice, a
protester is not required to show that but for the alleged error, the protester would
have been awarded the contract."). Demonstrating prejudice does require, however,
that the plaintiff show more than a bare possibility of receiving the award. See
Bannunv, lnc. v. Unitea’ States, 404 F.3d 1346, 1358 (Fed. Cir. 2005) (affirining the
trial court’s determination that the plaintiff had not demonstrated a substantial
chance of award when its "arguinent rest[ed] on mere numerical possibility, not
evidence").
ln information Technologie.s‘, for example, the Federal Circuit found that the
plaintiff had established a "substantial chance" of receiving the contract at issue
because the record supported the conclusion that had the alleged errors been cured,
"[t]here is no question . . . its proposal would have been improved and its chances of
securing the contract increased." ]nfo. Tech., 316 F.3d at l3l9.
7
Here, plainitif`t` lias failed to present ev~'irlence that its chances of securing the
contract \votilcl have increased, even given the cliaiiges it believes would result if the
evaluations’ alleged errors were cured. Assume that the TEP assigned plaintiff the
liighest confidence rating. Assume, further, that l\/lirieniier’s confidence rating was
downgraded A revised chart of the competitive range tvould appear as follows
Company Total Value of Coxli`ldence Rating
Contract
f Netitral/'Uiil<:no\vii Confidence
Mineniier & $33,171,912.89 Fair/Some Conf`ldence
Associates. LLC
Netltral/Uiil