Board of Regents of the Nevada System of Higher Education v. United States
132 Fed. Cl. 435
| Fed. Cl. | 2017Background
- DOE issued Solicitation DE-SOL-0006230 (July 2015) for management of ORISE; award was cost-plus-fee with a five-year base and up to five one-year options. Two proposals were received: Desert Research Institute (DRI, via Board of Regents) and incumbent Oak Ridge Associated Universities (ORAU).
- Solicitation evaluated proposals on two factors: Capabilities & Approach (technical) and Cost; Capabilities & Approach had seven topic areas organized into two tiers; agency intended to award without discussions and limited Volume II to 70 pages.
- SEB (Source Evaluation Board) rated ORAU superior on the three critical first-tier criteria (Strategic Vision; Leadership, Management & Direction; Program Implementation); DRI received multiple weaknesses (including missing commitment letters and missing cost workbook “Estimate Assumptions.xlsx”).
- SSO (Source Selection Official) agreed with SEB, found DRI’s costs unrealistic/unverifiable and concluded ORAU provided the better value despite slightly higher probable cost; contract awarded to ORAU.
- DRI filed a post-award protest alleging unstated evaluation criteria, failure to seek clarification for omitted cost workbook, failure to disclose incumbent staffing/compensation data, several alleged erroneous or disparate evaluation findings, and improper SSO involvement.
- The Court reviewed the administrative record and held the award decision was not arbitrary or capricious; defendant’s and intervenor’s cross-motions for judgment on the record were granted and DRI’s motion denied.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Failure to disclose adjectival definitions / unstated evaluation criteria | DRI: Solicitation did not define adjectival ratings or explain how ratings were assigned; evaluation thus arbitrary | DOE: No regulation required prior disclosure of rating definitions; complaints about solicitation terms waived when not raised pre-deadline | Court: Waived where appropriate; no rule required disclosure; evaluation rational and not arbitrary |
| Omitted cost workbook; failure to seek clarification or reject proposal | DRI: Missing "Estimate Assumptions.xlsx" was clerical and DOE should have requested clarification (or rejected earlier) | DOE: Omission was material (not mere clerical error); seeking clarification permissive; even if clarified, award outcome would not change (no prejudice) | Court: Omission was material; DOE permissibly declined to treat it as clerical; no prejudice because SSO performed tradeoff using DRI’s proposed cost and found ORAU superior |
| Failure to disclose incumbent labor mix/compensation and use of Ten-Year Site Plan | DRI: Withheld incumbent staffing/benefits data impaired DRI’s cost staffing and labor-mix method; Ten-Year Plan numbers misled | DOE: Contractor records may be withheld; questions answered consistent with FAR; Blue & Gold Fleet bars untimely challenges to solicitation terms not raised before proposal deadline | Court: Claims waived under Blue & Gold Fleet; Ten-Year Site Plan was not incorporated or misrepresented; no disparate treatment shown |
| Specific technical evaluation criticisms (commitment letters; REAC/TS move; key personnel qualifications; peer-review knowledge; ORAU part-time workforce; incumbent property advantage) | DRI: SEB/SSO made unsupported, inconsistent, or subjective adverse findings | DOE: Evaluations supported by record; many criticisms reflect mere disagreement with agency technical judgment | Court: Evaluations adequately explained and within agency discretion; DRI’s complaints amount to disagreement, not arbitrariness |
Key Cases Cited
- Blue & Gold Fleet, L.P. v. United States, 492 F.3d 1308 (Fed. Cir. 2007) (challenges to solicitation terms must be raised before the proposal deadline or are waived)
- Overton Park v. Volpe, 401 U.S. 402 (U.S. 1971) (arbitrary-and-capricious standard and review focus on administrative record)
- Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (U.S. 1983) (agency must provide a rational explanation and address relevant factors)
- Bannum, Inc. v. United States, 404 F.3d 1346 (Fed. Cir. 2005) (scope and nature of judgment on the administrative record in bid protests)
- E.W. Bliss Co. v. United States, 77 F.3d 445 (Fed. Cir. 1996) (courts will not second-guess reasonable technical judgments of procuring agencies)