Mercom, Incorporated v. United States
131 Fed. Cl. 32
| Fed. Cl. | 2017Background
- Navy issued RFP N65236-13-R-0016 for multiple IDIQ COTS command-and-control equipment, software, licenses, and maintenance; awards were multiple IDIQ contracts (five-year period).
- Evaluation used a best-value tradeoff across factors: (A) reseller/OEM relationships, (B) technical capability (B1 systems/equipment; B2 technical support services), (C) past performance, (D) small business participation, and (E) price; non-price factors outranked price and an Unacceptable rating on any non-price factor made a proposal ineligible.
- Mercom (incumbent) submitted ten contract references to satisfy sub-factor B2 (technical support services), but the SSEB found the references used conditional/hypothetical language and lacked specific descriptions of work actually performed.
- SSEB found two significant weaknesses under B2 (no documented instances of maintenance/repair or configuration/integration work performed), rated B2 Unacceptable, then rated factor B and the overall proposal Unacceptable; SSA declined to award Mercom a contract.
- GAO denied Mercom’s protest, and Mercom filed here. The Court reviewed cross-motions on the administrative record and held for the government.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Navy unreasonably rated Mercom Unacceptable on sub-factor B2 | Mercom: its contract references described actual performance and showed required depth/breadth | Gov: references were vague/conditional, described possible work (technical approach), not specific past performance | Court: Held rating reasonable — references lacked the specific evidence required by the RFP |
| Whether IDIQ status justified conditional language and satisfied RFP's past-performance requirement | Mercom: IDIQs explain why language was conditional; still shows actual performed work | Gov: IDIQs do not excuse failure to state what was actually performed; burden on offeror to show specific work | Court: Held IDIQ status did not excuse nondiscrete descriptions; Mercom failed its burden |
| Whether an Unacceptable sub‑factor rating could be rolled up to make entire factor/proposal Unacceptable contrary to the RFP | Mercom: RFP said factors (not sub-factors) trigger rejection; B1 (Good) should outweigh B2 | Gov: RFP allows rejection where proposal fails requirements; an Unacceptable at sub-factor level can render factor B Unacceptable if requirements unmet | Court: Held Navy’s roll-up consistent with RFP; rejection permissible when a non-price requirement not met |
| Whether agency’s best-value determination was unreasonable given alleged evaluation errors | Mercom: prior errors infected best-value decision | Gov: No material evaluation error; best-value determination followed reasoned process | Court: Held best-value decision need not be addressed separately because evaluation was reasonable; denied relief |
Key Cases Cited
- Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (agency must articulate rational connection between facts and decision)
- Burlington Truck Lines v. United States, 371 U.S. 156 (administrative decisions must be reasonably explained)
- Alabama Aircraft Indus., Inc.-Birmingham v. United States, 586 F.3d 1372 (arbitrary-and-capricious review: agency fails if it ignores important aspects or offers implausible explanations)
- Bannum, Inc. v. United States, 404 F.3d 1346 (bid-protest proceedings review on paper record; deference to agency technical evaluations)
- Systems Application & Techs., Inc. v. United States, 691 F.3d 1374 (Tucker Act jurisdiction and standards for bid protest review)
- Advanced Data Concepts, Inc. v. United States, 216 F.3d 1054 (court gives great deference to procurement officials’ technical judgments)