ULTRA ELECTRONICS OCEAN SYSTEMS INC. v. United States
1:18-cv-00678
| Fed. Cl. | Sep 7, 2018Background
- The Navy solicited proposals for the ADC MK 5 torpedo countermeasure; the RFP required technical proposals to "describe how they will meet" the Prime Item Performance Specification (PIPS) characteristics (including launch trajectory in PIPS §§5.4.8.5 and 5.4.9).
- PIPS §5.4.8.5 required the contractor to demonstrate the device meets "specified launch trajectories" and permitted use of preset PIPS §5.4.9 characteristics to avoid additional modeling; deviations required submission of trajectory predictions for Navy UVLDS validation (at contractor expense).
- Ultra (a prior ADC MK 5 developer) proposed a device deviating from PIPS §5.4.9; its 2017 technical proposal asserted it would perform UVLDS post-award and submitted launch photographs during discussions but provided no substantive modeling or predictive data pre-award.
- The SSEB rated Ultra’s technical proposal "unacceptable," identifying a launch-trajectory deficiency and requesting test data/analysis and modeling-tool descriptions during discussions; Ultra’s responses (photos and statements of intent) were deemed insufficient.
- The SSAC recommended closing discussions and excluding Ultra from the competitive range as the launch-trajectory deficiency remained an unacceptable risk; the contracting officer and SSA concurred and Ultra was excluded.
- Ultra protested, arguing the solicitation did not require pre-award trajectory data, the Navy failed to warn that omission would be grounds for exclusion, the term "specified launch trajectories" was ambiguous, and the Navy failed to reconcile an earlier (2009) procurement rating that had rated Ultra’s prior bid "outstanding." The Court denied Ultra’s protest.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Navy applied an unstated pre-award requirement for trajectory predictions or data | Ultra: RFP required only post-award demonstration; no pre-award trajectory data was required | Gov: Section L required offerors to "describe how they will meet" PIPS; thus offerors had to explain pre-award approach and provide substantiation sufficient for pre-award evaluation | Held: Navy reasonably required pre-award description/substantiation of approach; Ultra failed to describe or provide substantive data, so evaluation was not arbitrary |
| Whether Navy failed to notify offerors that failing to provide trajectory substantiation would make a proposal unawardable | Ultra: Navy did not give notice that omission would be grounds for rejection or predominant factor | Gov: RFP warned that complete responses to PIPS were required, technical factors were most important, and an "unacceptable" technical rating renders a proposal unawardable; Navy also engaged in discussions and identified deficiencies | Held: RFP and discussions provided adequate notice; Ultra was not sandbagged |
| Whether the phrase "specified launch trajectories" is impermissibly vague | Ultra: Phrase is vague; Navy should have supplied detailed time-based spatial data pre-award | Gov: Phrase reasonably aligns with PIPS context and trajectory-prediction obligations; any ambiguity was apparent and not timely raised | Held: Even if ambiguous, Ultra waived challenge by not raising it pre-award; argument fails |
| Whether Navy acted arbitrarily by not reconciling a different rating Ultra received in a prior (2009) procurement | Ultra: Prior procurement rated Ultra "outstanding" for a similar approach; Navy should explain departure | Gov: Contracting officers’ judgments in separate procurements need not conform; procurements stand alone and different evaluation criteria/weighting can apply | Held: Agency not required to reconcile separate procurement outcomes; solicitations and proposals were not materially identical; no APA-style explanation required |
Key Cases Cited
- Axiom Res. Mgmt., Inc. v. United States, 564 F.3d 1374 (Fed. Cir. 2009) (administrative-record review principle and limits on supplementation)
- Bannum, Inc. v. United States, 404 F.3d 1346 (Fed. Cir. 2005) (RCFC 52.1 review of procurement decisions using administrative record)
- Impresa Construzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324 (Fed. Cir. 2001) (deference to contracting officer discretion in procurements)
- Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (U.S. 1983) (agency action must contain reasoned explanation under arbitrary-and-capricious standard)
- Blue & Gold Fleet, L.P. v. United States, 492 F.3d 1308 (Fed. Cir. 2007) (pre-award challenge waiver rule for solicitation ambiguities)
- Weeks Marine, Inc. v. United States, 575 F.3d 1352 (Fed. Cir. 2009) (standing in bid protests requires competitive injury)