Ffl Pro LLC v. United States, 124 Fed. Cl. 536

Background

The State Department’s Office of Antiterrorism Assistance (ATA) issued RFP SAQMMA14R0093 for overseas cybersecurity training (Jan 2014); evaluations used adjectival ratings across Technical Compliance, Corporate Experience, Past Performance, Status of Property Management, and Price, with nonprice factors combined > price.
VariQ was initially awarded; FFL Pro (incumbent) protested at GAO, prompting ATA corrective action that left most TET ratings intact but upgraded FFL Pro’s Past Performance and overall nonprice rating; GAO dismissed first protest as academic; subsequent GAO protest by FFL Pro was denied.
The ATA’s evaluation team rated VariQ Superior overall (including Exceptional Past Performance); FFL Pro’s proposal ultimately received Superior overall after reassessment, but VariQ’s lower price led the contracting officer to reaffirm award to VariQ in a best-value tradeoff.
FFL Pro filed suit in the Court of Federal Claims alleging multiple errors: improper Past Performance evaluation (including deviation from solicitation), unreasonable Corporate Experience and Technical Compliance ratings for VariQ, flawed best-value tradeoff, and seeking declaratory and injunctive relief.
The Court found the ATA’s Past Performance narrative for VariQ insufficiently reasoned and lacking consideration of the specific Past Performance criteria in the solicitation, rendering VariQ’s Past Performance and overall nonprice ratings and the contracting officer’s best-value decision arbitrary and capricious.
Remedy: Court set aside VariQ’s Past Performance and overall nonprice ratings, vacated the best-value determination, enjoined contract performance pending corrective action, and ordered the ATA to reassess Past Performance, re-rate overall nonprice, and perform a new best-value tradeoff.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether ATA properly evaluated VariQ’s Past Performance under the RFP	ATA deviated from RFP: failed to apply threshold "two of three" federal overseas cyber-training requirement and did not evaluate VariQ/subs against the residual criteria; thus award irrational	Solicitation allowed flexibility: offerors who lacked 3 qualifying examples could submit supplemental evidence; ATA had discretion to evaluate such evidence	Held: ATA may evaluate under the residual criteria, but its contemporaneous Past Performance analysis for VariQ was inadequate—failed to address solicitation’s specific Past Performance criteria—so the rating was arbitrary and capricious
Whether ATA reasonably evaluated VariQ’s Corporate Experience	VariQ’s assigned strengths were unrelated or inconsistent with solicitation (e.g., focused on non-required work, instructor resources unclear); weaknesses were overlooked	ATA reasonably assigned strengths based on VariQ’s demonstrated core competencies, international training experience, and identified program manager; no RFP requirement to name instructors	Held: ATA’s Corporate Experience ratings and strengths were reasonable and consistent with the solicitation
Whether ATA misevaluated VariQ’s Technical Compliance	VariQ proposed work beyond SOW and should have been penalized or assigned weaknesses (including overreliance on subcontractors)	VariQ’s proposal showed understanding of SOW; alleged overreach was either permissible or unsupported; evaluation consistent across offerors	Held: ATA’s Technical Compliance ratings were reasonable and consistent with the solicitation
Whether contracting officer’s best-value tradeoff was rational and whether injunctive relief is appropriate	FFL Pro: Best-value tradeoff irrational because it relied on defective Past Performance rating; FFL Pro prejudiced and likely would have prevailed absent error	Gov: Agency had broad discretion and committed no reversible error in tradeoff	Held: Because Past Performance rating was unsupported, the best-value decision lacked a rational basis; FFL Pro demonstrated prejudice; injunctive relief enjoining performance pending corrective action was granted

Key Cases Cited

Bannum, Inc. v. United States, 404 F.3d 1346 (Fed. Cir. 2005) (standard for review of agency factfinding in bid protests)
Impresa Construzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324 (Fed. Cir. 2001) (arbitrary and capricious review and agency discretion in procurements)
Advanced Data Concepts, Inc. v. United States, 216 F.3d 1054 (Fed. Cir. 2000) (deference to contracting officers; evaluation must show rational reasoning)
Banknote Corp. of Am. v. United States, 365 F.3d 1345 (Fed. Cir. 2004) (interpretation of solicitations and review standards)
Galen Med. Assocs., Inc. v. United States, 369 F.3d 1324 (Fed. Cir. 2004) (heightened deference in negotiated procurements/best-value determinations)
E.W. Bliss Co. v. United States, 77 F.3d 445 (Fed. Cir. 1996) (broad discretion in best-value decisions)
Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402 (1971) (scope of judicial review of administrative action)
SEC v. Chenery Corp., 332 U.S. 194 (1947) (agency must articulate contemporaneous, rational basis for decisions)