In the United States Court of Federal Claims
No. 21-1702
(Filed: April 15, 2022)
(Re-Filed: May 4, 2022)1
**********************
RCH PARTNERS, LLC,
Plaintiff, Bid protest; post-award bid
protest; best value
determination; highest
v. technically rated proposal
THE UNITED STATES, with a fair and reasonable
Defendant, price; transitive property of
inequality; unequal treatment
and
HALVIK INC.,
Intervenor,
and
STEAMPUNK, INC.,
Intervenor,
and
RIVA SOLUTIONS, INC.,
Intervenor,
and
BOOZ ALLEN HAMILTON INC.
Intervenor.
**********************
Jon D. Levin, Huntsville, AL, for plaintiff, RCH Partners, LLC, with
whom were W. Brad English, Emily J. Chancey, Joshua B. Duvall, and
Nicholas P. Greer.
1 This opinion was originally issued under seal in order to afford the parties
an opportunity to propose redactions of the protected material. We have
redacted information necessary to safeguard the competitive process.
Redactions are indicated by brackets.
1
John M. McAdams III and Elinor J. Kim, Trial Attorneys, United
States Department of Justice, Civil Division, with whom were Brian M.
Boynton, Principal Deputy Assistant Attorney General, Patricia M.
McCarthy, Director, and Lisa L. Donahue, Assistant Director, for defendant.
Nicholas Oettinger and Andrew Squire, United States Patent & Trademark
Office, of counsel.
Alexander J. Brittin, Washington, DC, for intervenor, Halvik Corp.,
with whom were Mary Pat Buckenmeyer and A. Jonathan Brittin, Jr., of
counsel.
David S. Black, Tysons, VA, for intervenor, Steampunk, Inc., with
whom were Gregory R. Hallmark, Amy L. Fuentes, Kelsey M. Hayes, and
Hillary J. Freund, of counsel.
Elizabeth N. Jochum, Washington, DC, for intervenor, RIVA
Solutions, Inc., with whom were Tjasse L. Fritz, Samarth Barot, and Patrick
Collins, of counsel.
Gary J. Campbell, Washington, DC, for intervenor, Booz Allen
Hamilton Inc., with whom was Lidiya Kurin, of counsel.
OPINION
This is a post-award bid protest of the United States Patent and
Trademark Office’s (“USPTO” or “agency”) decision to award an indefinite-
delivery, indefinite-quantity contract for IT services to five companies: one
non-intervening company, Science Applications International Corporation
(“SAIC”), and four intervening companies, Halvik Corp. (“Halvik”); Booz
Allen Hamilton Inc. (“BAH”); RIVA Solutions, Inc. (“RIVA”); and
Steampunk, Inc. (“Steampunk”). Plaintiff, RCH Partners, LLC (“RCH” or
“protestor”), complains that the agency’s evaluation of Halvik’s past
performance was irrational, its best value determination was unlawful and
irrational, its evaluation of RCH’s technical approach was unequal to other
offerors, and its evaluation of RCH’s program management and staffing
approach was arbitrary and unequal to other offerors. After a remand, the
matter is now fully briefed on cross-motions for judgment on the
administrative record (“MJARs”), and oral argument was held on March 14,
2022. Because the agency’s actions were reasonable, we deny the protest.
Due to the related protests also filed in this procurement, the court’s opinion
2
in Stratera Fulcrum Technologies, LLC v. United States, 21-1770C,
addresses many of the claims made here. The parties may look to that
opinion for our reasoning and applicable legal standards. If the relevant
facts differ or the protestor presented unique arguments, they are addressed
below.
BACKGROUND
The following ratings were assigned to the protestor and awardees:
Pl.’s Mot. at 12.
DISCUSSION
I. The Agency’s Best Value Determination was Reasonable
RCH argues that USPTO’s award decision was arbitrary and unlawful
for two reasons. First, it argues that the agency did not meaningfully
consider price because it only required prices be fair and reasonable.
Second, it argues that the agency’s use of the transitive property of inequality
was irrational and that selecting [*****] as the control offeror was arbitrary.2
It contends that if the agency had compared proposals directly, such as
Steampunk and RCH, it could have found that RCH was better than
Steampunk, an awardee, and awarded a contract to RCH.
2 RCH does present a new argument, contending that by selecting [*****],
the agency placed an outsized importance on technical approach, where
[*****] did better than Steampunk and Halvik, over past performance &
program management and staffing approach, where Halvik and Steampunk
were better than [*****]. This argument has no merit, however, because as
the RFP explained, technical approach is more important than past
performance & program management and staffing, making it reasonable to
select [*****] as an offeror. As we concluded in Stratera, the agency’s
method of selecting possible control offerors was reasonable.
3
RCH’s argument that price was not meaningfully considered is
substantively similar to the arguments addressed in Stratera. RCH waived
the right to raise this issue during this protest, as it was clear how price would
be considered in the solicitation.
RCH’s argument that the use of the transitive property of inequality
was unreasonable is also addressed in Stratera. The transitive property
approach is not barred by any statute or the FAR, and the agency performed
its analysis reasonably when comparing [*****] to other offerors. Through
an in-depth comparison, the agency found RCH’s proposal to be worse than
[*****]. It also found [*****] to be worse than Steampunk’s. It was
reasonable, therefore, to conclude that Steampunk presented a better offer
than RCH. We will not interfere with the agency’s decision.3
II. The Agency Did Not Unequally Evaluate RCH’s Proposal
a. Technical Approach
RCH argues that [*****] received two strengths under its technical
approach that it should have received as well.4 First, it argues that [*****]
received a strength for “[*****],” while RCH put the same concept in its
proposal but did not receive a strength. Pl.’s Mot. at 28. Second, RCH
contends that [*****] received a strength for incorporating [*****] to collect
user data in its proposal, but RCH did not receive a strength despite
incorporating the same concept.
The government argues that [*****] proposals are distinguishable.
First, [*****] use of [*****] principles contains greater details and more
features, such as [*****]. Def.’s Mot. at 16 (quoting AR 2611). Second,
RCH’s proposal did not include [*****] and its approach to collecting data
was different from [*****]. We agree with the government; RCH’s
3 RCH also makes one last argument, claiming that the SSA simply used her
“rubber stamp” to adopt the evaluation team’s “faulty analysis.” Pl.’s Mot.
at 25. RCH does not elaborate on this argument. As stated, we do not find
the evaluation team’s analysis to be faulty, and our review of the record
shows that the SSA considered all relevant materials in her analysis.
4 RCH did assert other strengths it should have received based on other
offerors’ received strengths, but it withdrew its arguments in its reply brief.
4
arguments are merely disagreements with the assigned strengths.
As stated in Stratera, the standard for this argument is that the
proposals must be substantively indistinguishable or nearly identical. 5
[*****] use of [*****] principles contains greater detail than RCH’s. While
RCH contends it would also use [*****] during its process, its citation to its
proposal speaks in generalities, such as how RCH would “follow a
progressive refinement process” or “utilize a plethora of techniques to
develop technical solutions.” Pl.’s Reply at 8 (citing AR 2025). [*****]
specifically described how it would [*****] in its proposal, illustrated how
they would be used, and the specific steps entailed in their use. See AR
2611. The proposals are distinguishable, and we will not usurp the agency’s
discretion to assign strengths.
[*****] is also distinguishable from RCH’s in multiple respects. For
example, as the government points out, the portion of RCH’s proposal that
discusses the use of user data does not reference usability testing, let alone
go into detail on how it would implement and use [*****]. See AR 2044.
[*****] received its strength for its [*****], as RCH itself said, and its
proposal went into detail about how it would be implemented and used. AR
Tab 29, 01v16, D29; Pl.’s Mot. at 30. The proposals are distinguishable,
and we will not interfere with the agency’s decision.
b. Program Management and Staffing Approach
RCH then argues that the agency irrationally evaluated its program
management and staffing approach in two ways. It argues that the agency
improperly bundled its strengths when it did not do so for other offerors,
leading to RCH receiving fewer strengths. Second, it contends that [*****]
received a strength for an aspect of its proposal, while RCH did not despite
it having a similar proposal. The government maintains that it evaluated the
proposals properly. We agree with the government.
RCH argues that the agency improperly bundled aspects of its
5 RCH argues that the substantively indistinguishable standard only applies
to deficiencies, not strengths. RCH is mistaken; the standard is also used
for strengths. See Tech. Innovation Alliance LLC v. United States, 149 Fed.
Cl. 105, 132–33 (2020) (applying the “substantively indistinguishable” test
for a strength).
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proposal when awarding it a strength under its program management and
staffing approach when the agency did not do so for other offerors. 6
Specifically, RCH asserts that because the agency found RCH’s Orientation
Team to be part of a strength under one RFP section, it should have given
RCH strengths for other RFP sections where the Orientation Team applies.
It points to Halvik’s proposal which received multiple strengths under
different RFP sections for its Agile Resource and Recruiting Center
(“ARRC”).
The government responds that it properly assigned strengths to the
parties. It argues that under the factor for which RCH received a strength,
the Orientation Team was merely part of that one strength and its other
proposal components did not warrant strengths. It further argues that Halvik
was properly awarded its strengths, as its AARC had “widespread
applicability” and would accomplish “multiple tasks.” Def.’s Mot. at 19
(citing AR Tab 27, 08F4, Cells G20–22). We see no reason to disagree with
the government.
An agency has broad discretion in how it evaluates proposals and
assigns strengths. RCH wrongly contends that simply because an aspect of
its proposal was part of a strength in one RFP section, that necessitates the
proposal receiving a strength for every RFP section in which that aspect
appears. Whether an agency considers one element of a proposal to merit
strengths under different sections of an RFP is a matter of discretion for the
agency. The agency considered that Halvik’s AARC did, while it did not
think the same of RCH’s Orientation Team. RCH does not argue that its
proposal is substantively indistinguishable from Halvik’s or that Halvik did
not deserve those strengths; it only repeats the characteristics of its
Orientation Team that corresponded with other sections of the RFP that it
contends should have received strengths. Such arguments are mere
disagreements with the agency’s analysis.
Second, RCH also contends that [*****] received a strength that RCH
should have received as well. Specifically, RCH argues that [*****]
received a strength for its Program Management Office (“PMO”) that
included a [*****] with subject-matter experts, which RCH proposed as
well. The government responds that the proposals do differ, as [*****]
specified that it would have [*****]. Def.’s Mot. at 21–22. We agree with
6 RCH raised additional arguments in its MJAR but waived them in its reply
brief.
6
the government.
The proposals are not substantively indistinguishable in this respect.
As stated by the government, RCH only referred to having experts generally,
while [*****] specified that it would have an expert [*****]. [*****] also
specified how it would utilize those experts when task orders for [*****]
were awarded. [*****] proposal was not substantively indistinguishable
from RCH’s, and it was fully within the agency’s discretion to award [*****]
a strength.
III. RCH Was Not Prejudiced by the Agency’s Evaluation of
Halvik’s Past Performance
RCH’s unique arguments concerning the evaluation of Halvik’s past
performance, and its other arguments which are similar to those made in
Stratera, are largely irrelevant for the same reasons addressed in Stratera.
RCH was not prejudiced by the agency’s evaluation of Halvik, as [*****]
was still ahead of RCH for award.
CONCLUSION
Because the agency acted reasonably in its analysis, RCH’s MJAR is
denied and the government’s and intervenors’ cross-MJARs are granted. The
Clerk of the Court is directed to enter judgment for the defendant and dismiss
the case. No costs.
s/Eric G. Bruggink
Eric G. Bruggink
Senior Judge
7