Xpo Logistics Worldwide Government Services, LLC v. United States
134 Fed. Cl. 783
Fed. Cl.2017Background
- USTRANSCOM issued an IDIQ solicitation (DFTS) for transportation coordination services; initial award to GENCO was protested and GAO sustained Crowley’s protest, prompting corrective action and reopening.
- After discussions and revised proposals, USTRANSCOM awarded to Crowley; GAO and later the Court (in XPO I) found GAO’s recommendation to reevaluate Crowley’s past performance reasonable and ordered corrective action.
- During corrective action, the agency’s Past Performance Evaluation Team (PPET) reanalyzed dozens of past references for both XPO and Crowley, applying a strict assessment of scope, complexity, and "magnitude" (value/year and monthly shipments).
- PPET rated most of Crowley’s references Not Relevant and assigned Crowley an Unknown Confidence rating; it rated only XPO’s DTCI reference Relevant and downgraded XPO from Substantial to Satisfactory Confidence.
- The SSAC and SSA conducted an integrated best-value tradeoff. Despite XPO’s higher past-performance rating, the SSA awarded the contract to Crowley based on Crowley’s substantially lower Total Evaluated Price (~8.4% or ~$625M lower) and acceptable corporate experience.
- XPO sued, alleging (inter alia) misleading/unequal discussions, arbitrary past-performance reevaluation and downgrade, improper handling of unbalanced pricing, and an irrational best-value tradeoff. Court denied XPO’s motion to supplement the record, found jurisdiction, and granted judgment for the government and Crowley.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1. Misleading or unequal discussions | XPO says agency told it during earlier rounds its past performance supported Substantial Confidence, then without discussions downgraded it—misleading and unequal because Crowley previously received ENs and revision opportunities | Agency: XPO knew corrective-action approach and no discussions would occur; prior communications were accurate at the time; both offerors were treated equally during corrective action | Waiver and merit: XPO waived timely challenge; alternatively, no misleading/unequal discussions—motions denied for XPO, granted for govt/Crowley |
| 2. Past-performance reevaluation (DTCI and other references) | XPO contends agency used inconsistent/misapplied magnitude metrics (didn’t use freight-under-management consistently) and improperly downgraded DTCI from Very Relevant to Relevant | Agency: relied on offeror-provided values and solicitation criteria; distinctions in complexity (time-definite delivery, three-tier pricing, Canada/Alaska, on‑ramp) justified ratings; magnitude not dispositive | Agency acted within discretion; downgrade reasonable; XPO not prejudiced—XPO’s challenges denied |
| 3. Consideration of Not-Relevant past-performance in tradeoff | XPO argues SSA relied on Crowley’s "numerous smaller transportation services" (declared Not Relevant) improperly in best-value analysis | Agency: Corporate Experience is a separate evaluation factor from Past Performance; solicitation permitted considering corporate experience in tradeoff | Permitted: SSA could weigh Crowley’s corporate experience despite those efforts being Not Relevant for past-performance scoring—claim denied |
| 4. Unbalanced pricing and price consideration in tradeoff (repeat claim) | XPO renews prior arguments that agency ignored unbalanced pricing and relied only on TEP improperly | Agency: previously litigated and rejected; evaluation of price and unbalanced pricing conformed to FAR and prior decision | Claim precluded by res judicata (XPO I); merits previously rejected—denied |
Key Cases Cited
- Axiom Res. Mgmt., Inc. v. United States, 564 F.3d 1374 (Fed. Cir. 2009) (administrative‑record doctrine—review limited to agency record)
- Bannum, Inc. v. United States, 404 F.3d 1346 (Fed. Cir. 2005) (RCFC 52.1 review; trial on the administrative record)
- Blue & Gold Fleet, LP v. United States, 492 F.3d 1308 (Fed. Cir. 2007) (timely challenge and waiver rule for procurement objections)
- Impresa Construzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324 (Fed. Cir. 2001) (court’s role is to ensure agency provided coherent, reasonable explanation)
- Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (U.S. 1983) (agency must examine relevant data and articulate satisfactory explanation)
- Weeks Marine, Inc. v. United States, 575 F.3d 1352 (Fed. Cir. 2009) (standing in post‑award protest requires showing a substantial chance of award absent error)
- Bowman Transp., Inc. v. Ark.-Best Freight Sys., Inc., 419 U.S. 281 (U.S. 1974) (deference to agency's reasonable evaluations)