Preferred Systems Solutions, Inc. v. United States
110 Fed. Cl. 48
Fed. Cl.2013Background
- This bid protest concerns PSS challenging a USTRANSCOM award to CWS for call center services under RFQ issued April 30, 2012.
- RFQ established three non-price evaluation factors: Mission Capability (Technical Approach and Staffing), Past Performance, and Price; price was to be evaluated for reasonableness and realism.
- SSET and SSA conducted the evaluation; PSS alleged weaknesses in PSS’s Mission Capability and CWS’s Staffing, plus price realism concerns with CWS.
- Award to CWS was made August 17, 2012; GAO denied PSS’s protest on November 30, 2012.
- PSS filed suit December 6, 2012; court denied motions to dismiss on standing grounds and denied PSS’s summary judgment on the administrative record, but granted the government and CWS cross-motions for judgment on the record.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether PSS has standing to protest the award | PSS argues substantial chance of award despite fourth of five rank | GOV and CWS contend lack of substantial chance defeats standing | PSS has standing; within the zone of active consideration |
| Whether the agency properly evaluated PSS’s Mission Capability | PSS asserts uncredited strengths and arbitrary assessment | Agency reasonably evaluated and included relevant strengths | Agency evaluation not arbitrary or irrational |
| Whether the agency properly evaluated CWS’s Mission Capability | PSS claims CWS’s Staffing strength unsupported | Evidence shows CWS had plan and staffing capability | Evaluation supported by record evidence; not arbitrary |
| Whether price realism analysis for CWS was proper | Discounted CWS price risk of infeasibility was not adequately addressed | SSA considered escalation, labor data, and reasonableness of discount | Price realism analysis upheld; discount deemed fair and reasonable |
| Whether the agency’s best-value decision was lawful | Trade-off favored higher Past Performance ratings unjustifiably | Non-price factors outweighed price and proper trade-off supported | Best-value decision reasonable; judgment for government and CWS |
Key Cases Cited
- Data Gen. Corp. v. Johnson, 78 F.3d 1556 (Fed. Cir. 1996) (protester needs substantial chance of award, not necessarily but-for award)
- IBM v. United States, 892 F.2d 1006 (Fed. Cir. 1989) (seventh-ranked bidder lacked standing in sealed-bid case; distinguishable)
- Alfa Laval Separation, Inc. v. United States, 175 F.3d 1365 (Fed. Cir. 1999) (substantial chance of award satisfies standing; zone of active consideration)
- Allied Tech. Group, Inc. v. United States, 649 F.3d 1320 (Fed. Cir. 2011) (standing when protest would have been within the zone of active consideration)
- Info. Tech. & Applications Corp. v. United States, 316 F.3d 1312 (Fed. Cir. 2003) (substantial chance of award required; not insubstantial)