In the United States Court of Federal Claims
BID PROTEST
)
HARMONIA HOLDINGS GROUP, LLC, )
)
Plaintiff, )
v. ) No. 21-836C
) (Filed Under Seal: March 19, 2021 |
THE UNITED STATES OF AMERICA, ) Reissued: April 5, 2021) ∗
)
Defendant. )
)
)
Jon D. Levin, W. Brad English, Emily J. Chancey, and Michael W. Rich, Maynard, Cooper &
Gale, P.C., Huntsville, AL, for Plaintiff.
Jimmy S. McBirney, Commercial Litigation Branch, Civil Division, U.S. Department of Justice,
Washington, DC, for Defendant, with whom were Misha Preheim, Assistant Director, Robert E.
Kirschman, Jr., Director, and Brian M. Boynton, Acting Assistant Attorney General. Tyler Ellis,
General Law & Research Division, Office of the General Counsel, U.S. Department of
Agriculture, Washington, DC, Of Counsel.
OPINION AND ORDER
KAPLAN, Chief Judge.
In this post-award bid protest, Harmonia Holdings Group, LLC (“Harmonia”), challenges
the decision of the United States Department of Agriculture (“USDA” or the “agency”) to award
Digital Management, LLC (“DMI”) a contract for operations and maintenance support services
and help desk support for certain IT systems. Harmonia contends that the award should be set
aside because the agency: 1) relied on criteria not contained in the Solicitation when it evaluated
and compared the past performance of Harmonia and DMI; 2) assigned Harmonia an unjustified
weakness for failing to provide assurances that personnel working for the incumbent contractor
(DMI) would agree to join a new Harmonia team; and 3) arbitrarily failed to assign Harmonia
strengths in recognition of certain technologies and processes contained in its proposal.
Harmonia also argues that the award should be set aside because the Source Selection Authority
failed to exercise independent judgment or adequately document the rationale of her trade-off
decision.
∗
This opinion was originally issued under seal and the parties were given the opportunity to
request redactions. The parties have not proposed any redactions. Therefore, the Court releases
the opinion in full.
Currently before the Court are the parties’ cross-motions for judgment on the
administrative record. Pl. Harmonia Holdings Grp., LLC’s Mot. for J. on the Admin. R. (“Pl.’s
MJAR”) at 1, ECF No. 21; Def.’s Resp. to Pl.’s Mot. for J. on the Admin. R. and Cross-Mot. for
J. on the Admin. R. at 1, ECF No. 22. For the reasons set forth below, Harmonia has failed to
establish that USDA’s decision was arbitrary, capricious, an abuse of discretion, or contrary to
law. Therefore, the government’s motion for judgment on the administrative record is granted,
and Harmonia’s motion is denied.
BACKGROUND
I. Market News
Market News is a service through which USDA’s Agricultural Marketing Service
(“AMS”) makes available current market information about more than 3,600 commodities at the
international, national, regional, and local levels. Admin. R. (“AR”) Tab 4 at 76. Its “core
mission . . . is to collect commodity price and volume data from a variety of open and
confidential sources, and then provide unbiased market reporting to the public.” AR Tab 1 at 4.
Market News Reports are disseminated free of charge via an internet web site,
newspapers, and radio, and are also available by email. Id. at 5. There are about 375 different
formatted reports that are issued through Market News on either a daily, weekly, monthly, or
annual basis. Id. In addition, users may obtain “a nearly unlimited number of customized
reports” from the Market News Portal. Id. Farmers, producers, and other agricultural businesses
use the information Market News supplies “to evaluate market conditions, identify trends, make
purchasing decisions, monitor price patterns, evaluate transportation equipment needs, and
accurately assess movement.” AR Tab 4 at 76.
USDA relies on two systems to gather and analyze the information Market News
disseminates. The first—the Livestock Mandatory Reporting System (“LMPRS”)—is a data-
collection and data-reporting system originally developed in 2001 in response to the Livestock
Mandatory Reporting Act of 1999, Pub. L. No. 106-78, 113 Stat. 1188 (1999) and then updated
after the passage of the Mandatory Price Reporting Act of 2010, Pub. L. No. 111-239, 124 Stat.
2501 (2010). Id. at 76–77. LMPRS electronically accepts data from the livestock and dairy
industries and archives, translates, and analyzes the data, then produces and stores aggregated
data and creates aggregated public reports. Id. at 76.
Market News also employs USDA’s Market Analysis and Reporting Services (“MARS”).
MARS is an information management system that collects, analyzes, reports, and disseminates
data related to all commodities and supply chain levels via the public website My Market News
(https://mymarketnews.ams.usda.gov/). Id. at 77.
II. The Solicitation
On April 14, 2020, AMS issued Solicitation No. 12639520Q0130 (the “Solicitation”). Id.
at 71. In it, the agency invited proposals for support service contracts to maintain the continued,
uninterrupted operations of the LMPRS and MARS by monitoring system performance,
providing help desk support, maintaining system documentation, providing information
2
technology support, and creating system enhancements. Id. at 76. The contract was a firm fixed
priced contract for one base year and four option years. Id.
The Solicitation advised that the LMPRS must “be operational and available” for as close
to 24 hours per day, 365 days per year, as possible. Id. at 131. To that end, it specified that the
government might assess financial penalties under the contract in the event of “any interruption
of service with a root cause within the LMPRS applications that lasts more than thirty minutes
between 7:00AM and 8:00PM eastern time.” Id. at 78. A similar penalty could be imposed under
the contract for service interruptions with their root cause in the MARS application that last more
than sixty minutes during the same thirteen-hour period. Id.
The Solicitation provided that the agency would evaluate offers using a best-value
tradeoff based on consideration of four factors: 1) technical capability; 2) relevant experience; 3)
past performance; and 4) price. Id. at 134. It further stated that “Technical Capability, Relevant
Experience, and Past Performance are significantly more important than price.” Id. The
Solicitation advised that the agency would make its best-value determination “by comparing the
value of the differences in the technical factors for competing offers, based on their strengths,
weaknesses, and risks, with differences in their price to the Government” and that, “[i]n making
this comparison, the Government is more concerned with obtaining superior technical and
management capabilities than with making an award on lowest overall cost to the Government.”
Id. at 136.
III. Evaluation and Award Decision
A. The Proposals, Requests for Clarification, and Final Proposal Revisions
The agency received a total of nine proposals in response to the Solicitation. AR Tab 19
at 862. Harmonia submitted its proposal on June 4, 2020. AR Tab 10a at 442. The agency
eliminated one of the nine proposals at the outset and evaluated the remaining eight. AR Tab 19
at 862.
USDA commenced evaluation of the proposals in July. On July 14, 2020, the Technical
Evaluation Panel (“TEP”), in consultation with the AMS Contracting Officer (“CO”) serving as
the Source Selection Authority (“SSA”), decided to perform a “down selection” and not give
further consideration to six of the offerors, leaving only Harmonia and DMI in the competition.
Id. at 862, 867–68.
On September 16, 2020, USDA requested clarification of Harmonia’s cost proposal. AR
Tab 11 at 518–20. Among other things, USDA expressed concerns about the fact that Harmonia
had proposed to use only 7.1 full time equivalents on the contract, including only five employees
working full-time, which was less than the staffing of technical support for LMPRS and MARS
under USDA’s existing contract with DMI. See id. at 519–20. Harmonia responded to USDA’s
request by letter of September 25, 2020, explaining its rationale regarding staffing. AR Tab 12 at
521–24.
On October 23, 2020, USDA requested that Harmonia and DMI submit final proposal
revisions by October 30, 2020. AR Tabs 13 & 14. DMI and Harmonia did so on October 29 and
30, 2020, respectively. AR Tabs 15 & 16.
3
B. The Evaluations
Over the next few months after the submission of final proposal revisions, the TEP and
the SSA met several times as the TEP prepared and revised its evaluation of the final proposals.
AR Tab 19 at 862–63. On January 14, 2021, the TEP provided its final Technical Evaluation
Report (the “Report”) to the SSA. AR Tab 18 at 838–60. The Report summarized the “strengths”
and “weaknesses/risks” of the proposals with respect to each of the four factors set forth in the
Solicitation. Id. at 841–53. 1 It also assigned scores to each proposal as to the non-price factors
based on the sets of criteria contained in the Technical Evaluation Plan.
Under the Technical Capability factor, the Report recorded that Harmonia’s proposal had
been assigned a strength because it was “[e]xcellent overall,” and had “little or no material
weaknesses.” AR Tab 18 at 850. As relevant to this case, the TEP identified one weakness/risk
under the Technical Capability factor, namely, that Harmonia provided “no assurances that
‘incumbents’ w[ould] join [the] new Harmonia team.” Id. The TEP explained that the lack of
assurances created a risk that “historical ten years of knowledge w[ould] be lost.” Id.
Under the Relevant Experience factor, the TEP again found Harmonia’s proposal
“[e]xcellent overall,” and noted no weaknesses/risks. Id. Similarly, under the Past Performance
factor, the TEP observed that Harmonia’s “[p]roposal [wa]s well-put together, comprehensive,
and the key personnel are well-qualified, with relevant experience that lists large contracts with
USDA and other federal entities.” Id.
Nonetheless, and also as relevant to this case, the TEP identified a weakness with respect
to one of the criteria the agency used to evaluate offerors’ past performance, namely, Criterion
P5. That criterion concerned whether the past performance example demonstrated that the
contractor was “familiar” or “had experience with AMS Market News strategic and business
objective[s] along with an understanding [of] data collection and reporting requirements.” AR
Tab 18 at 856. The weakness assigned was based on “the lack [of] depth of” Harmonia’s
“Market News business experience.” Id. The TEP observed that “[e]ach Market News program
has unique business rules and reporting requirements,” and that the incumbent, i.e., DMI, “has
over ten years of understanding those details” whereas Harmonia “ha[d] none.” Id.
The TEP acknowledged a strength in Harmonia’s cost proposal, noting that it was
“extremely competitive” and that initial costs were the lowest among all proposals. Id. It also
identified a weakness based on the TEP’s “concerns in the staffing plan on the original
submission.” Id. Although the final proposal revision addressed “some” of those concerns,
according to the TEP Report, “the Release Manager still [was] low on hours and [therefore was]
a concern/risk.” Id.
1
Under the Technical Evaluation Plan, “[a] strength is defined as an aspect of the proposal that
increases the likelihood of successful contract performance.” AR Tab 3 at 15. “A weakness is
defined as a flaw in the proposal that increases the risk of unsuccessful contract performance.”
Id. at 16.
4
The TEP assigned a number of strengths to DMI’s proposal as to all four factors. Id. at
842–45. No weaknesses/risks were identified for any of the three non-price factors. Id.
The Report includes a score sheet reflecting the assignment of points under each of the
non-price factors. Id. at 854–56. The point scores were based on the adjectival ratings each TEP
member assigned when evaluating the series of criteria established for each non-price factor. AR
Tab 19 at 866.
Under the Technical Capability factor and the Relevant Experience factor, an Excellent
rating assigned to one of the criteria was scored as 4 points, a Good rating 3 points, an
Acceptable rating 2 points, a Marginal rating 1 point, and an Unacceptable rating 0 points. AR
Tab 19 at 866. For Past Performance, the TEP evaluators examined each of the five criteria and
assigned adjectival ratings of either Substantial Confidence (4 points), Satisfactory Confidence
(3 points), Limited Confidence (2 points), or No Confidence (1 point). AR Tab 17a at 720; AR
Tab 19 at 866. The agency then compiled the aggregate score of all five TEP evaluators into a
final score for each of the three non-price factors, totaled the scores for all factors, and used that
total score to rank the offerors. See AR Tab 19 at 866.
As reflected in the table below, under the Technical Capability factor, DMI had a total
score of 128, and Harmonia 127. AR Tab 18 at 858. Under Relevant Experience, the aggregated
TEP score for DMI was 111, and for Harmonia was 114. Id. For Past Performance, the
aggregated score for DMI was 93, and for Harmonia was 83. Id. DMI had a total numerical score
of 332, and Harmonia’s was 324. Id.
Criteria Digital Management Harmonia
Technical Capability Rating
T1 20 20
T2 17 16
T3 18 18
T4 18 18
T5 17 20
T6 19 18
T7 19 17
Factor Total 128 127
Relevant Experience Ratings
E1 18 19
E2 20 19
E3 18 20
E4 18 19
E5 18 19
E6 19 18
Factor Total 111 114
Past Performance Ratings
P1 18 19
P2 17 18
P3 18 18
5
P4 20 19
P5 20 9
Factor Total 93 83
Overall Total 332 324
Rank 1 2
Id.
The evaluators noted the wide gap between the scores of DMI (which was ranked at 1)
and Harmonia (ranked at 2) as compared to the third-ranked proposal (which was more than 60
points below Harmonia’s rating). Id. The TEP found both Harmonia and DMI’s proposals “of
high quality with no significant defects.” Id. The final cost of DMI’s proposal was $5,616,297.10
and the final cost of Harmonia’s proposal was $5,001,446.74. Id. at 859.
The TEP recommended that USDA award the contract to DMI. Id. at 859. It reasoned
that Harmonia’s “lack of any proven and established Market News experience was an enormous
risk factor for the TEP,” especially “given its two congressional mandates and its potential large
economic impact at a national level for pricing market commodities.” Id. at 859. The TEP
observed that “[i]t is imperative that these systems be online, operational, and available for the
public to access and share in price discovery, market transparency and fair market pricing
economics.” Id.
Further, the TEP explained, it viewed the proposed labor hours for the Release Manager
in Harmonia’s staffing plan as “inadequate to cover the known [operations and maintenance]
duties of the MARS system.” Id. “The MARS system,” the TEP noted, “continues to grow,”
making the projected staffing estimate for a part-time Release Manager “a negative risk factor.”
Id.
Addressing best value, the TEP noted that “retaining the crucial skillsets & historical
knowledge of the DMI team was worth the modest premium in cost over the five years of the
new contract.” Id. DMI, it emphasized, had “existing historical knowledge of Market News” and
a “proven track record of delivery with AMS Market News.” Id. The TEP concluded that “to
replace that historical knowledge would be extremely difficult, time consuming, disruptive, and
have substantial long-term cost impacts to AMS far beyond the modest premium paid in DMI’s
cost proposal.” Id.
C. The Source Selection Authority’s Best Value Determination
The TEP forwarded its findings and recommendation to the SSA. AR Tab 19 at 867, 885.
The SSA ultimately concluded that DMI’s proposal was “the best value to the Government”
based on DMI’s strengths including: its past decade of experience developing, maintaining, and
improving LMPRS and MARS, its current plans for maintaining and improving both systems,
and its institutional knowledge and experienced staff. Id. at 882–85. “DMI’s proposal,” she
found, “provided a complete plan” that demonstrated to the SSA “that DMI would pose a very
low to limited amount of risk to this contract proposal.” Id. at 885. She concluded DMI’s price
was fair and reasonable. Id.
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Although Harmonia had “experience with USDA,” the SSA observed, it did not have
experience with AMS or Market News. Id. DMI, on the other hand, proposed using the “same
key personnel,” who would not have a “learning curve to overcome,” unlike Harmonia’s
personnel who would have “to become familiar with the LMPRS and MARS environment and
functionality.” Id. Additionally, DMI’s proposal was the highest technically ranked and posed
less risk to the government than Harmonia’s because of its decade of institutional knowledge,
key personnel, and “established development environments for LMPRS and MARS.” Id. Despite
the fact that “Harmonia’s proposal was very good and [its] price was approximately 11% lower
than DMI’s,” the SSA stated that, in her view, DMI’s proposal provided the best value to the
government. Id.
On January 20, 2021, USDA awarded the contract to DMI. AR Tab 20 at 886.
IV. This Action
Harmonia brought suit in this Court on February 1, 2021. ECF No. 1. On the same day,
Harmonia filed a motion for a preliminary injunction. ECF No. 3. The Court established an
expedited briefing schedule on the parties’ cross-motions for judgment on the administrative
record and denied Harmonia’s motion for a preliminary injunction as moot. ECF No. 17. The
government filed the Administrative Record on February 19, 2021. ECF No. 19. Harmonia filed
an amended complaint on February 26, ECF No. 20, as well as its motion for judgment on the
administrative record (“MJAR”), ECF No. 21. The government filed its cross-MJAR and
response to Harmonia’s MJAR on March 5. ECF No. 22. Harmonia filed its response to the
government’s MJAR and reply in support of its own MJAR on March 11. ECF No. 23. The
government filed its reply on March 16. ECF No. 24.
The Court heard oral argument on the cross-MJARS on March 18.
DISCUSSION
I. Subject-Matter Jurisdiction
The Court of Federal Claims has jurisdiction over bid protests in accordance with the
Tucker Act, 28 U.S.C. § 1491(b)(1). Specifically, the Court has the authority “to render
judgment on an action by an interested party objecting to a solicitation by a Federal agency for
bids or proposals for a proposed contract or to a proposed award or the award of a contract or
any alleged violation of statute or regulation in connection with a procurement or a proposed
procurement.” 28 U.S.C. § 1491(b)(1); see also Sys. Application & Techs., Inc. v. United States,
691 F.3d 1374, 1380–81 (Fed. Cir. 2012) (observing that § 1491(b)(1) “grants jurisdiction over
objections to a solicitation, objections to a proposed award, objections to an award, and
objections related to a statutory or regulatory violation so long as these objections are in
connection with a procurement or proposed procurement”).
To possess standing to bring a bid protest under § 1491(b)(1), a plaintiff must be an
“interested party,” i.e., “an actual or prospective bidder” who possesses a “direct economic
interest” in the procurement. CliniComp Int’l, Inc. v. United States, 904 F.3d 1353, 1358 (Fed.
Cir. 2018) (quoting Digitalis Educ. Sols., Inc. v. United States, 664 F.3d 1380, 1384 (Fed. Cir.
2012)); see also Orion Tech., Inc. v. United States, 704 F.3d 1344, 1348 (Fed. Cir. 2013). “In a
7
post-award bid protest, the relevant inquiry is whether the bidder had a ‘substantial chance’ of
winning the award. Eskridge & Assocs. v. United States, 955 F.3d 1339, 1345 (Fed. Cir. 2020)
(quoting Statistica, Inc. v. Christopher, 102 F.3d 1577, 1582 (Fed. Cir. 1996)). The protestor
must establish “not only some significant error in the procurement process, but also that there
was a substantial chance it would have received the contract award but for that error.” Id.
Harmonia’s proposal had a lower price than DMI’s. Its score on the three non-price
factors was just below DMI’s. But for what Harmonia alleges was the agency’s impermissible
reliance upon an unstated solicitation criterion, Harmonia’s score on the three non-price factors
would have been higher than DMI’s. Because Harmonia would have had a substantial chance of
receiving the award but for the errors it alleges the agency committed, Harmonia has standing to
bring this protest.
II. Motions for Judgment on the Administrative Record
Parties may move for judgment on the administrative record pursuant to Rule 52.1 of the
Rules of the Court of Federal Claims (“RCFC”). Pursuant to RCFC 52.1, the Court reviews an
agency’s procurement decision based on the administrative record. See Bannum, Inc. v. United
States, 404 F.3d 1346, 1353–54 (Fed. Cir. 2005). The court makes “factual findings under RCFC
[52.1] from the record evidence as if it were conducting a trial on the record.” Id. at 1357. Thus,
“resolution of a motion respecting the administrative record is akin to an expedited trial on the
paper record, and the Court must make fact findings where necessary.” Baird v. United States, 77
Fed. Cl. 114, 116 (2007). The Court’s inquiry is “whether, given all the disputed and undisputed
facts, a party has met its burden of proof based on the evidence in the record.” A&D Fire Prot.,
Inc. v. United States, 72 Fed. Cl. 126, 131 (2006). Unlike a summary judgment proceeding,
genuine issues of material fact will not foreclose judgment on the administrative record.
Bannum, 404 F.3d at 1356.
III. Scope of Review of Procurement Decisions
The Court reviews challenges to procurement decisions under the same standards used to
evaluate agency actions under the Administrative Procedure Act, 5 U.S.C. § 706 (“APA”). See
28 U.S.C. § 1491(b)(4) (stating that “[i]n any action under this subsection, the courts shall
review the agency’s decision pursuant to the standards set forth in section 706 of title 5”). Thus,
to successfully challenge an agency’s procurement decision, a plaintiff must show that the
agency’s decision was “arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law.” 5 U.S.C. § 706(2)(A); see also Bannum, 404 F.3d at 1351.
“[P]rocurement decisions are subject to a ‘highly deferential rational basis review.’”
Safeguard Base Operations, LLC v. United States, No. 2019-2261, 2021 WL 821472, at *11
(Fed. Cir. Mar. 4, 2021) (quoting PAI Corp. v. United States, 614 F.3d 1347, 1351 (Fed. Cir.
2010)). The standard “requires a reviewing court to sustain an agency action evincing rational
reasoning and consideration of relevant factors.” Advanced Data Concepts, Inc. v. United States,
216 F.3d 1054, 1058 (Fed. Cir. 2000) (citing Bowman Transp., Inc. v. Arkansas-Best Freight
Sys., Inc., 419 U.S. 281, 285 (1974)). As a result, where an agency’s action has a reasonable
basis, the Court cannot substitute its judgment for that of the agency. See Honeywell, Inc. v.
United States, 870 F.2d 644, 648 (Fed. Cir. 1989) (holding that as long as there is “a reasonable
basis for the agency’s action, the court should stay its hand even though it might, as an original
8
proposition, have reached a different conclusion”) (quoting M. Steinthal & Co. v. Seamans, 455
F.2d 1289, 1301 (D.C. Cir. 1971)).
IV. Merits
A. Harmonia’s Argument that the Agency Used Criteria Not Stated in the
Solicitation When it Evaluated Harmonia’s Past Performance
Harmonia challenges the methodology the agency used to evaluate and score its past
performance. It claims that one of the five criteria the agency employed under the Past
Performance factor was not contained in the Solicitation. The criterion challenged—P5—
evaluates the offeror’s “[f]amiliar[ity] with or experience with AMS Market News strategic and
business objectives along with [its] understanding [of] data collection and reporting
requirements.” AR Tab 18 at 856.
All five TEP evaluators gave DMI a “Substantial Confidence” rating for Criterion P5,
resulting in a combined score for that criterion of 20 points. Id. Harmonia, on the other hand,
received four “Neutral” ratings for Criterion P5 and one rating of “Limited Confidence,” for a
total score of 9. Id. In addition, the agency assigned a weakness/risk to Harmonia’s proposal
under the Past Performance factor based on a “[l]ack of Market News USDA experience.” AR
Tab 19 at 876. It is undisputed that had the agency not used Criterion P5 when it evaluated
Harmonia’s past performance, Harmonia’s total score for the non-price evaluation factors would
have been 315 and DMI’s 312.
It is well established that an agency is required to evaluate proposals based only on the
criteria stated in a solicitation. Summit Techs., LLC v. United States, 151 Fed. Cl. 171, 180–81
(2020) (citing Banknote Corp. of America v. United States, 56 Fed. Cl. 377, 386 (2003), aff’d,
365 F.3d 1345 (Fed. Cir. 2004)). “This requirement is firmly rooted in the Competition in
Contracting Act (CICA), which indicates that an agency shall evaluate competitive proposals and
assess their qualities based solely on the factors and subfactors specified in the solicitation.”
NEQ, LLC v. United States, 88 Fed. Cl. 38, 47–48 (2009) (citing 48 10 U.S.C. §§ 2305(a)(2)(A),
2305(a)(3)(A); 48 C.F.R. § 15.305(a)).
Nonetheless, it is equally well settled that the solicitation “need not identify criteria
intrinsic to the stated evaluation factors, and agencies retain great discretion in determining the
scope of a given evaluation factor.” Summit Techs., 151 Fed. Cl. at 180 (quoting PlanetSpace,
Inc. v. United States, 92 Fed. Cl. 520, 536 (2010)). Therefore, to prevail on an argument that the
agency impermissibly employed an unstated evaluation criterion, a protester must show, at a
minimum, that the agency “used a significantly different basis in evaluating the proposals than
was disclosed.” Wellpoint Military Care Corp. v. United States, 144 Fed. Cl. 392, 404 (2019),
aff’d, 953 F.3d 1373 (Fed. Cir. 2020) (citing Academy Facilities Mgmt. v. United States, 87 Fed.
Cl. 441, 470 (2009)).
Harmonia has not met this standard. Consideration of an offeror’s familiarity or
experience with “AMS Market News strategic and business objectives,” as well as the offeror’s
“understanding [of its] data collection and reporting requirements” is intrinsic to the explicit Past
Performance criteria set forth in the Solicitation. AR Tab 18 at 856. The Solicitation states that
“[p]ast performance will be evaluated for contracts performed by the Offeror consistent with the
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size, scope, and complexity of the [Performance Work Statement (“PWS”)].” AR Tab 4 at 135. It
further states that “[p]ast performance on contracts that are more technically relevant to the PWS
requirements and similar in size, scope, and complexity will receive greater consideration than
performance on contracts that are less relevant.” Id. at 136. Under this explicit standard, the
credit awarded for a past performance example increases on the basis of its similarity to the PWS
contained in the Solicitation. Harmonia could not be surprised that—in assessing performance
risk—the agency would give added weight to a past performance example for which an offeror
was involved in performing essentially the same work as the work set forth in the PWS. In short,
the basis for evaluating the proposal cannot reasonably be characterized as “significantly
different” from the criteria the agency disclosed in the Solicitation. Wellpoint, 144 Fed. Cl. at
404.
In its reply, Harmonia emphasizes that the Solicitation is a commercial items
procurement and that the “MARS and LMPRS systems were designed to use commercial
software.” Pl. Harmonia Holdings Grp., LLC’s Reply in Supp. of its MJAR (“Pl.’s Reply”) at 1–
2, ECF No. 23 (citing to AR Tab 4 at 76–77). It further notes that the Relevant Experience factor
required offerors to demonstrate that they had experience with the off-the-shelf software and
databases USDA employs. Id. at 2 (citing AR Tab 4 at 132). In addition, Harmonia observes, the
agency had “provided offerors with a detailed system and process overview and design
document.” Id. (citing AR Tab 4a at 140–178, 179–208). It asserts that “[t]o read the past
performance section to include AMS-specific experience would circumvent the purpose of
providing such extensive information—to maximize competition.” Id.
The Court does not find these observations persuasive or relevant to the question before
it. The allegedly unstated criterion Harmonia challenges was used to evaluate Harmonia’s past
performance, not its relevant experience. In addition, the Court does not understand why
Harmonia finds it anomalous that the agency would favor an offeror that not only had experience
with the off-the-shelf software used in the MARS and LMPRS systems, but also a record of solid
performance servicing them for the particular uses to which they were put in Market News. As
the record reveals, the agency considered Harmonia’s “lack of any proven and established
Market News experience” an “enormous risk factor” in light of the applicable congressional
mandates and Market News’s impact on pricing market commodities. AR 859. For this reason
and those set forth above, the Court finds unavailing Harmonia’s claim that the award decision
must be set aside because it was based on an unstated evaluation criterion.
B. Harmonia’s Challenge to the Agency’s Assignment of a Weakness Because it
Did not Provide Sufficient Assurances that Incumbent Employees Would
Join its Team
Harmonia challenges the agency’s decision to assign its proposal a weakness/risk under
the Technical Capability factor because Harmonia failed to provide “assurances” that incumbent
employees, including those in key personnel positions, would join a new Harmonia team. AR
Tab 18 at 875. The agency identified this failure as a weakness because it created a risk of the
loss of ten years of institutional knowledge servicing the Market News systems. Id.; Pl.’s MJAR
at 14 (quoting id.).
Harmonia contends that “it isn’t true that Harmonia provided no assurances that it would
be able to hire incumbent personnel.” Pl.’s MJAR at 14. But in the Court’s view, the agency’s
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assessment is based on a reasonable reading of the proposal. In it, Harmonia states that based on
its understanding of the work to be performed and competitive salary information it had
“developed targeted staffing that ensures that [its] pricing is well-aligned for incumbent capture.”
AR Tab 16b at 635. At the same time, Harmonia explained that “[t]o mitigate the risk of
incumbents not joining, [it had] identified candidates for each position, several of whom already
have current USDA badges/clearance.” Id.
The proposal also explained that Harmonia understood “that a transition is a stressful
period for incumbent resources because they are forced to consider different employment,” and
that to alleviate the stress, Harmonia would hold “happy hours” and “meet-and-greets” with its
executive leadership. Id. It represented that it would “provide a detailed introduction to
Harmonia, including [its] benefits, processes, and corporate culture,” and that it would “answer
any questions the incumbent resources might have and work collaboratively with the outgoing
contractor to facilitate a respectful and seamless transition of resources.” Id. Harmonia’s stated
goal was to “establish a complete team as soon as possible” and to ensure “knowledge transfer”
by “shadowing . . . incumbent resources who will not be joining [its] team, joint artifact reviews,
question and answer sessions, etc.” Id.
While Harmonia is of the view that its proposal provided adequate assurances that
incumbent employees would stay on if Harmonia were awarded the contract, the agency
reasonably believed otherwise. In fact, the proposal reveals that Harmonia itself thought it
necessary to mitigate the risk that they would not stay by identifying other candidates for the
positions, including some who were already cleared for access to the worksite. Harmonia also
proposed to mitigate the risk by holding events to persuade incumbent employees not to seek
alternative employment, which it noted they are “forced to consider” during what Harmonia
characterizes as the “stressful period” of transition. Id.
In its reply, Harmonia argues for the first time that the Solicitation did not identify
“incumbent capture” as an evaluation criterion, and that incumbent capture is in any event
irrelevant to “a commercial items procurement for operations and maintenance using commercial
software on a commercial system.” Pl.’s Reply at 3. But Harmonia cannot reasonably feign
surprise at the agency’s evaluation of the extent to which incumbent employees were likely to
stay on in the event that it landed the contract, where the proposal itself contained measures
intended to mitigate the risk of their departure. And the Court finds unpersuasive Harmonia’s
suggestion that it was unreasonable for the agency to be concerned about keeping incumbents on
simply because the contract involved servicing commercial software.
In short, the agency’s decision to assess a weakness based on Harmonia’s failure to
supply sufficient assurances of continuity in personnel in its proposal was not unreasonable.
Further, the argument that doing so resulted in the application of an unstated evaluation criterion
cannot be squared with Harmonia’s proposal itself which reflects an understanding that such
continuity was relevant to the agency’s evaluation of its technical capability. Harmonia’s
challenge based on this assignment of a weakness lacks merit.
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C. Harmonia’s Argument that it Was Unreasonable for the Agency to Not
Assign Strengths to Harmonia’s Proposal
Harmonia also argues that it was arbitrary and unreasonable for the agency to not assign
its proposal eight additional strengths under the Technical Capability factor because it included
several technologies and processes that Harmonia asserts represent “the bleeding edge of
software development.” Pl.’s MJAR at 15. This argument is not persuasive.
Judgments on the relative merits of a technical proposal, including the assignment of
strengths and weaknesses, lie particularly within the discretion of the procuring agency. See
E.W. Bliss Co. v. United States, 77 F.3d 445, 449 (Fed. Cir. 1996) (holding that protests
concerning “the minutiae of the procurement process in such matters as technical ratings . . .
involve discretionary determinations of procurement officials that a court will not second guess”)
(citations omitted). Judicial review of such assessments is very narrow because the “evaluations
of proposals for their technical quality involve the specialized expertise of an agency’s
subject-matter experts.” RX Joint Venture, LLC v. United States, 145 Fed. Cl. 207, 213 (2019).
The Court must afford an agency great deference in its review of the agency’s technical
evaluations “because of the highly specialized, detailed, and discretionary analyses” conducted
by agency officials. CSC Gov’t Sols., LLC v. United States, 129 Fed. Cl. 416, 434 (2016)
(citations omitted); see also Tech. Innovation All. LLC v. United States, 149 Fed. Cl. 105, 129
(2020) (“The Court’s scope of review is particularly narrow when it comes to agency judgments
regarding the technical merits of particular proposals.”); Benchmade Knife Co. v. United States,
79 Fed. Cl. 731, 740 (2007) (holding that “[a]gencies are entitled to considerable discretion and
deference in matters requiring exercise of technical judgment”).
Further, the Court notes that the agency assigned Harmonia’s proposal a strength under
the Technical Capability factor on the grounds that it was “[e]xcellent overall,” and another
because it was a “high quality proposal with little or no material weaknesses.” AR Tab 18 at 850.
Thus, so far as the Court can tell, there is no reason to believe that the agency did not give
consideration to the allegedly “bleeding edge” innovations in Harmonia’s proposal, even if it did
not choose to identify each such innovation as a separate strength of the proposal. Pl.’s MJAR at
15. Harmonia’s contention that its proposal should have been assigned additional strengths is
therefore without merit.
D. Harmonia’s Argument that the SSA Failed to Exercise Her Independent
Judgement or Document Her Rationale in Making the Best-Value Tradeoff
Finally, Harmonia alleges that the SSA did not exercise independent judgment in
conducting her best-value tradeoff analysis and that she did not provide adequate documentation
of her reasoning. These contentions are also meritless.
First, Harmonia observes that “[d]espite noting her ‘concerns’ with the [TEP’s]
evaluation of Digital Management’s proposal, and reducing those ratings, [the SSA] gave Digital
Management the exact same score the [TEP] did.” Pl.’s MJAR at 18. This argument falls flat
because it is premised on a misreading of the record. In her Best Value Determination, the SSA
observed that when she met with the TEP in July of 2020, she had “a concern regarding the DMI
proposal and ratings by the TEP.” AR Tab 19 at 867. Specifically, she had initially rated DMI
lower than had the TEP in “some areas” because of language (presumably in DMI’s proposal)
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stating that DMI would “continue to” take certain actions. Id. As she explained in her Best Value
Determination, she was “not familiar with . . . DMI’s current processes, [and she] didn’t know
what [DMI] meant by ‘DMI will continue to.’” Id. That question was answered to her
satisfaction during a meeting she held with the TEP on July 14, 2020. Id. As she explains, during
that meeting, the TEP members advised her of their familiarity with DMI’s work on LMPRS and
MARS and their confidence in the ratings they provided. Id.
In short, the SSA’s expression of “concern” that she referenced in the Best Value
Determination is not inconsistent with her decision not to lower DMI’s scores. Id. Nor does it
show some lack of independent judgment on her part. Instead, it reveals the opposite, i.e., that
the SSA conducted her own independent evaluation of the proposal, that she asked the TEP to
provide her with clarification of DMI’s proposal, and that, upon receiving such clarification she
was satisfied that no reduction in the scores was warranted.
The Court notes that at oral argument counsel advanced for the first time a somewhat
different but similarly unpersuasive attack on the sufficiency of the SSA’s decision. He
contended that the tables of strengths and weaknesses included in the SSA’s decision reflect
fewer strengths for DMI than the tables contained in the TEP Report. He argued that the SSA’s
decision is unreasonable because she did not explain why she assigned DMI fewer strengths or
why, given that she had done so, she did not also downgrade DMI’s overall score. Oral Arg. at
15:35–16:03.
The Court rejects the basic premise of this argument, which is that the SSA assigned
fewer strengths to DMI’s proposal than the TEP did or that she found invalid any of the strengths
that the TEP identified. To be sure, the tables in the two reports do not track each other because
the SSA’s table does not contain an enumeration of each strength that the TEP set forth in its
tables under the Relevant Experience and Past Performance factors. Compare AR Tab 18 at 842–
45 (TEP Report), with AR Tab 19 868–70 (SSA’s Best Value Determination). Instead, under the
“strengths” column, the SSA’s table contains a summary characterization of DMI’s relevant
experience as “[e]xcellent overall.” AR Tab 19 at 870. It also notes that most of the ratings
assigned by the TEP members under the Past Performance factor were either “satisfactory” or
“substantial confidence.” Id. The Court does not read the difference in format as reflecting any
substantive disagreement with the TEP’s assessment of the strengths of DMI’s proposal,
especially because the decision document elsewhere includes a lengthy narrative describing
strengths of DMI’s proposal that do not appear in her table. Id. at 882–85.
Further, even if the number or types of strengths that the SSA identified were not
identical to those the TEP identified, that would not necessarily require DMI’s proposal to
receive a lower score. The scores were determined on the basis of the adjectival ratings the TEP
members gave to DMI’s proposal under the Technical Evaluation Plan. See AR Tab 3 at 23.
There is no provision in the Solicitation or the Plan that makes the adjectival ratings dependent
on the number of strengths or weaknesses assigned to a proposal. The new argument counsel
raised at oral argument therefore lacks merit.
Finally, Harmonia contends that the SSA’s tradeoff decision was not adequately
documented. It argues that she “merely parroted back a list of strengths, then concluded those
strengths were worth the premium.” Pl.’s MJAR at 19. It complains that the SSA did not discuss
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any of Harmonia’s technical strengths nor what it was about DMI’s technical strengths that made
them superior to Harmonia’s. Id. at 18.
This argument is based on another mischaracterization of the SSA’s decision. To be sure,
as described above, her decision incorporates tables summarizing the strengths and weaknesses
of all of the proposals that the TEP evaluated. And it does contain several pages enumerating
DMI’s strengths, but no similar discussion of Harmonia’s. Nonetheless, it is clear that both the
TEP and the SSA did more than “parrot back” DMI’s strengths. Pl.’s MJAR at 18 (citations
omitted). It is also clear that the SSA took the strengths of Harmonia’s proposal into
consideration even if she did not enumerate them in the narrative. In fact, the SSA explicitly
recognized the “overall” excellence of Harmonia’s technical capability and relevant experience.
AR Tab 19 at 875. Moreover, Harmonia’s final technical rating was only slightly lower than
DMI’s. Id. at 880.
The SSA acknowledged, in fact, that “Harmonia’s proposal was very good and their price
was approximately 11% lower than DMI’s.” Id. at 885. Nonetheless, she explained, DMI’s
proposal presented the best value to the government, not because of the number of strengths it
had been assigned, but because of DMI’s “institutional knowledge,” incumbent “key personnel,”
“established development environments for LMPRS and MARS,” and “established knowledge
and experience” with the National Information Technical Center, where the MARS and LMPRS
were currently hosted. Id. Harmonia, on the other hand, had no Market News experience and
would have to overcome a “learning curve to become familiar with the LMPRS and MARS
environment and functionality.” Id. It is for these reasons, documented in her decision, that the
SSA reasonably concluded that DMI’s proposal represented the best value to the government.
CONCLUSION
On the basis of the foregoing, Harmonia’s motion for judgment on the administrative
record is DENIED. ECF No. 21. The government’s motion is GRANTED. ECF No. 22. The
Clerk is directed to enter judgment accordingly. Each side shall bear its own costs.
IT IS SO ORDERED.
s/ Elaine D. Kaplan
ELAINE D. KAPLAN
Chief Judge
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