Bid protest; FDIC Acquisition Policy Manual ¶ 3.210(e) (price evaluation); FDIC Acquisition Procedures, Guidance, and Information, 3.206(a)(2) (required price analysis in best value procurements); 3.210(c)(2) (price realism); 3.214 (documentation of source selection); 5 U.S.C. § 706(2)(A) (review under the Administrative Procedure Act); 28 U.S.C. § 1491(b)(4) (review of bid protests).
MEMORANDUM OPINION AND ORDER
I. RELEVANT FACTUAL BACKGROUND. 1
A. The Solicitation.
On July 2, 2012, the Federal Deposit Insurance Corporation (“FDIC”) issued Solicitation No. RECVR-12-R-0088 (“Solicitation”). AR Tab 5 at 28-150. The purpose of the Solicitation was to provide business operations support services for the FDIC’s Division of Resolutions and Receiverships. AR Tab 5 at 37. To provide those services, the Solicitation required that a core group of contract workers be available in six functional areas — cash management, financial processing, general accounting, tax, securities accounting, and global functions — plus the capability to expand the number of workers quickly in the event of an increased workload. AR Tab 5 at 37, 40. Staffing levels could be as low as ten workers and as high as 131. AR Tab 5 at 31, 42. The period of performance was to run from the signing of the contract through December 31, 2014, but the FDIC had the option to extend the performance period for four additional one-year periods. AR Tab 5 at 38.
The Solicitation required each offeror to propose a single hourly pay rate for six pay grades: project manager, team lead, senior professional, professional, technician, and administration. AR Tab 5 at 31-32. Although there were only those six pay grades, the Solicitation required a workforce able to deliver services in seventeen specializations. *271 AR Tab 5 at 39. Offerors were required to “demonstrate that proposed key personnel possess the necessary experience and qualifications.” AR Tab 5 at 143.
The Agency was required to award the contract based on best value, considering three elements, in descending order of importance: Mission Capability, Past Performance, and Price. AR Tab 5 at 146. Although Price was listed third in order of importance, “[t]he degree of importance of price as a factor ... could increase depending upon how equally matched the competing proposals are for the other factors evaluated. When competing proposals are judged to be equal upon evaluation of the other factors considered in the best value analysis, total price and other price factors would become the most significant factor.” AR Tab 5 at 146. The price proposals were to be “evaluated with respect to completeness, reasonableness, and realism.” AR Tab 5 at 149. Under realism, the Solicitation stated, “Labor rates that do not reflect a reasonable compensation for the skill required in a labor category will be considered unrealistic.” AR Tab 5 at 150.
B. The Proposals.
Eight offerors, including Cohen Financial Services, Inc. (“Cohen” or “Plaintiff’) and defendant-intervenor Mir Mitchell & Company, LLP (“MMC” or “Intervenor”), submitted proposals in response to the Solicitation. AR Tab 9 at 812. The two proposals at issue here are those of Cohen and MMC.
Cohen submitted a timely proposal. AR Tab 7 at 153-612 (undated proposal); AR Tab 9 at 812 (FDIC abstract showing Cohen’s submission was on time). The members of the FDIC’s Technical Evaluation Panel (“Panel”) rated Cohen’s proposal as follows:
[[Image here]]
* The evaluation form contained a line labeled “CONSENSUS” but no line labeled “Total,” so that the format of the evaluations was not consistent. For example, [redaet-edj’s Mission Capability subtotals added up to [redacted]; she listed [redacted] on the “CONSENSUS” line. As to Oral Presentation, [redacted] wrote [redacted] on the CONSENSUS line, but noted and circled her total of [redacted] elsewhere on the page. [redacted] wrote [redacted] on the CONSENSUS line and also “MY SCORE [redacted]” elsewhere on the sheet; [redacted]’s total was [redacted], on the CONSENSUS line.
AR Tab 11 at 838-94.
On July 31, 2012, MMC also timely submitted a proposal. AR Tab 8 at 613-811 (proposal); AR Tab 9 at 812 (FDIC abstract showing MMC’s submission was on time). The Panel rated MMC’s proposal as follows:
*272 [[Image here]]
* Again, the evaluation form contained a line labeled “CONSENSUS,” but no line labeled “Total,” so that the format of evaluations was not consistent. For Oral Presentation, [redacted] listed [redacted], presumably his total; [redacted] listed [redacted] on the CONSENSUS line, but circled her total, [redacted], elsewhere on the page, [redacted] listed [redacted] on the CONSENSUS line.
AR Tab 12 at 895-958.
After the Panel members completed individual ratings, they held a “meeting and determined a consensus rating for each Offer- or’s technical proposal.” AR 27 at 1411. Those consensus ratings and the initial prices were as follows:
[[Image here]]
AR 27 at 1412.
Then, the Contracting Officer (“CO”) determined that the proposals of MMC, Cohen, [redacted] were within the competitive range and held discussions with each of those offer-ors. AR Tab 27 at 1419.
On September 4, 2012, the FDIC sent MMC and Cohen requests for best and final offers (“BAFO”). AR Tab 13 at 959-60; AR Tab 14 at 961-62. The letter to MMC listed the following areas “that may benefit from improvement”: [redacted] AR Tab 14 at 962. On September 5, 2012, Cohen sent the FDIC an email requesting clarification. AR Tab 16 at 966. On September 6, 2012, the FDIC responded that it “Need[ed] more information re: [redacted]” AR Tab 17 at 968.
On September 11, 2012, MMC submitted its BAFO. AR Tab 18 at 971-1053. Cohen also submitted its BAFO. AR Tab 19 at 1054-1330 (undated). On September 13, 2012, Cohen and MMC were invited to make oral presentations. AR Tab 20 at 1331; AR Tab 21 at 1332.
On October 10, 2012, the Panel issued a report, concluding that MMC represented “the overall Best Value for the FDIC” and recommending that the contract be awarded to MMC. AR Tab 27 at 1408-23. The Panel summarized the selection data as follows:
*273 [[Image here]]
AR 27 at 1422.
The Panel further explained that “the three competing proposals were determined to be generally equal when comparing actual Mission Capability scores when combined for the Technical Evaluation and the Oral Presentation as well as the Past Performance factors.” AR Tab 27 at 1423. “[T]he types of services being offered by these companies did not warrant the higher costs proposed by [Cohen] or by [redacted].” AR Tab 27 at 1423.
On November 8, 2012, the FDIC finalized its Selection Recommendation Report and approved awarding the Receivership Basic Ordering Agreement for Business Operations Support Services to MMC. AR Tab 31 at 1443. On November 28, 2012, the FDIC awarded MMC a contract, effective January I,2013. AR Tab 32 at 1447.
On December 7,2012, the CO responded to Cohen’s request for a debriefing with a letter stating, “[redacted]” AR Tab 41 at 1782. On December 12, 2012, Cohen filed a protest with the FDIC. AR Tab 34 at 1560-1769. On December 13, 2012, Cohen submitted a correction to its December 12, 2012 protest. AR Tab 35 at 1770. Cohen based its protest on the FDIC’s failure to notify it of “any deficiencies in its proposal relating to price.” AR Tab 34 at 1561. On December 27, 2012, the FDIC denied Cohen’s protest, because at the time it held discussions with the offerors, the FDIC was concerned only about whether the prices were within the competitive range — and Cohen’s price was within that range. AR Tab 37 at 1774-77.
II. PROCEDURAL HISTORY.
On January 15, 2013, Cohen filed a post-award bid protest Complaint (“Compl.”) in file United States Court of Federal Claims, alleging that the FDIC violated section 3.210(c)(2) of its Acquisition Procedures, Guidance, and Information (“PGI”) and the terms of the Solicitation by failing to perform a reasonable price realism analysis of MMC’s proposal. Compl. ¶¶ 93-101. The January 15, 2013 Complaint also alleges that the FDIC improperly relied on MMC’s misrepresentations about the key personnel that MMC intended to hire. Compl. ¶¶ 102-113.
On the same day, Cohen also filed a Motion For Temporary Restraining Order And Preliminary Injunction, a Motion For Leave To File Under Seal, and a Motion For A Protective Order. On January 16, 2013, the court held a telephone conference to consider Cohen’s motions. Pursuant to that telephone conference, on January 17, 2013, Cohen’s Motion For A Protective Order was granted, and the FDIC voluntarily issued a stop work order of up to ninety days, pending resolution of this case. AR Tab 39 at 1779. On January 18, 2013, the FDIC modified its contract with Cohen to rescind the January 31, 2013 Termination for Convenience to set a new expiration date on April 13, 2013. AR Tab 40 at 1781.
On January 18, 2013, MMC filed an Unopposed Motion To Intervene, that the court granted on January 22, 2013.
On January 25, 2013, the Government filed an Unopposed Motion For Leave To File The Administrative Record On DVD, that the court granted on the same day.
On February 4, 2013, the Government filed a Motion For Leave To Correct The Administrative Record (“2/4/13 Gov’t Mot. Supp.”). 2 *274 On February 5, 2013, Cohen requested a status conference regarding the Administrative Record. On February 6, 2013, the court granted Cohen’s Motion and held a telephone status conference. On February 13, 2013, the Government filed a Second Motion For Leave To Correct The Administrative Record (“2/13/13 Gov’t Mot. Supp.”). 3
On February 8, 2013, Cohen filed a Motion For Judgment On The Administrative Record (“Pl.Mot.JAR”) and a First Amended Complaint (“Am.Compl.”) that alleged that the FDIC: failed to perform and document price realism analysis, as required by its regulations and the Solicitation; acted arbitrarily and capriciously in its erroneous evaluation of MMC’s mission capability; and violated its regulations by relaxing the minimum requirements set forth in the Solicitation. On February 22, 2013, the Government filed a Cross-Motion For Judgment Upon The Administrative Record And Response (“Gov’t Mot. JAR”). On the same day, MMC filed a Cross Motion For Judgment On The Administrative Record (“Int. MotJAR”). On March 5, 2013, Cohen filed a Reply (“Pl.Reply”). On March 15, 2013, the Government filed a Reply (“Gov’t Reply”) and MMC filed a Reply (“Int.Reply”).
III. DISCUSSION.
A. Jurisdiction.
The February 8, 2013 post-award bid protest First Amended Complaint alleges that the November 28, 2012 award to MMC violated FDIC Acquisition Policy Manual (“APM”) ¶ 3.210(c) and PGI §§ 3.210(c)(2), 3.214(a)(2), because the FDIC failed to evaluate price realism and document that analysis in a written report. Am. Compl. ¶¶ 117-24. The February 8, 2013 Amended Complaint also alleges that the FDIC acted without a rational basis when it failed to downgrade MMC’s proposal that relied on unqualified and geographically unavailable personnel. Am. Compl. ¶¶ 125-34. The February 8, 2013 Amended Complaint further alleges that in awarding MMC a contract, despite the presence of three unqualified members on MMC’s proposed management team, the FDIC improperly relaxed the Solicitation’s requirements. Am. Compl. ¶¶ 135-39. The February 8, 2013 Amended Complaint also seeks a permanent injunction requiring the FDIC to set aside the November 28, 2012 award of a business operations support contract to MMC. Am. Compl. at 27.
Pursuant to 28 U.S.C. § 1491(b)(1) (2006), the United States Court of Federal Claims has jurisdiction
to render judgment on an action by an interested party objecting to a solicitation by a Federal agency for bids or proposals for a proposed contract or to a proposed award or the award of a contract or any alleged violation of statute or regulation in connection with a procurement or a proposed procurement.
28 U.S.C. § 1491(b)(1) (2006).
Accordingly, 28 U.S.C. § 1491(b)(1) authorizes the court to adjudicate the claims alleged in the February 8, 2013 Amended Complaint.
B. Standing.
As a threshold matter, a plaintiff contesting the award of a federal contract must establish that it is an “interested party” to have standing under 28 U.S.C. § 1491(b)(1).
See Myers Investigative & Sec. Servs., Inc. v. United States,
Cohen was one of the three offerors that met the best value requirements of the Solicitation and was selected to make an oral presentation. AR Tab 31 at 1441. In addition, Cohen received the highest technical evaluation of the three offerors asked to submit oral presentations, and Cohen’s price was lower than that of the other unsuccessful offeror. AR Tab 31 at 1441. Therefore, Cohen is an “interested party.”
A second standing requirement that the protestor must satisfy is that the alleged errors in the procurement were prejudicial.
See Labatt Food Serv., Inc. v. United States,
If, as Cohen asserts, a proper price realism analysis and fidelity to the Solicitation’s personnel qualification requirements would have led the FDIC to reject MMC’s proposal, Cohen would have had a substantial chance of securing the contract. AR Tab 31 at 1441 (showing that Cohen received the highest evaluation of the three offerors asked to submit oral presentations, plus a lower price than the other unsuccessful offeror). Therefore, the court has determined that Cohen has standing to contest the award of the contract at issue in this case.
C. Standard Of Review.
Pursuant to the Tucker Act, 28 U.S.C. § 1491, as amended by the Administrative Dispute Resolution Act, Pub.L. No. 104-320 § 12,110 Stat. 3870, 3874 (Oct. 19, 1996), the United States Court of Federal Claims is required to review challenges to an agency decision, pursuant to the standards set forth in the Administrative Procedure Act (“APA”). 28 U.S.C. § 1491(b)(4) (“In any action under this subsection, the courts shall review the agency’s decision pursuant to the standards set forth in section 706 of title 5.”);
see also
5 U.S.C. § 706(2)(A) (2006) (The reviewing court shall “hold unlawful and set aside agency action, findings, and conclusions found to be ... arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”);
Banknote Corp. of Am., Inc. v. United States,
The United States Court of Appeals for the Federal Circuit has held that a bid award may be set aside if “the procurement procedure involved a violation of regulation or procedure.”
Weeks Marine, Inc. v. United States,
If an award decision is challenged as arbitrary, capricious or lacking a rational basis, the trial court “must sustain an agency action unless the action does not evince rational reasoning and consideration of relevant factors.”
Savantage Fin. Servs. v. United States,
Moreover, the court may set aside a procurement “only in extremely limited circumstances.”
United States v. John C. Grimberg Co., Inc.,
The existence of a material issue of fact, however, does not prohibit the court from granting a motion for judgment on the administrative record, nor is the court required to conduct an evidentiary proceeding.
See Bannum v. United States,
D. Issues Raised By Plaintiffs Motion For Judgment On The Administrative Record.
1. Whether The Agency’s Evaluation Of Defendant-Intervenor’s Mission Capability Was Based On Critical And Objective Errors.
a. The Experience And Qualifications Of Key Personnel.
i. The Plaintiffs Argument.
Cohen asserts that the FDIC made a critical and objective error in awarding MMC a strength based on a finding that the “Experience and backgrounds” of the proposed MMC management team mirrors “industry experience required in the [Statement of Work].” Pl. Mot. JAR at 33 (quoting AR Tab 27 at 1412). Cohen argues that the Solicitation listed position-specific qualifications for key personnel and that three of the [redacted] members of MMC’s proposed management team failed to meet those minimum requirements. PI. Mot. JAR at 33. The [redacted] Lead lacked the minimum five years’ experience working with [redacted] in a financial processing or accounting operations environment, AR Tab 18 at 1044, both [redacted] Leads lacked the required [redacted], AR Tab 18 at 1046, 1049. Had the FDIC properly evaluated the qualifications of MMC’s management team and the location of MMC’s staff, MMC would have received “a much lower Mission Capability score, and likely found MMC’s proposal deficient for proposing unqualified personnel.” Pl. Mot. JAR at 33-34. As a result, Cohen would have had a substantially increased advantage in the most important technical factor and would have received the contract award as the best value offeror. Pl. Mot. JAR at 33-34.
ii. The Government’s Response.
The Government responds that the Solicitation “did not require offerors to propose key personnel for a ‘position.’ ” Gov’t Mot. *277 JAR at 34. Offerors were required “to submit resumes to demonstrate only that the key personnel had expertise in ‘each of the six functional areas’ described in the [Solicitation.]” Gov’t Mot. JAR at 34 (quoting AR Tab 5 at 141). The Solicitation allowed offer-ors to identify “key personnel with ‘similar experience’ to that called for in the [Solicitation].” Gov’t Mot. JAR at 34 (quoting AR Tab 5 at 141). The Government concedes that personnel who do not meet the requirements for a position listed in the Solicitation “cannot be assigned to that position[.]” Gov’t Mot. JAR at 35 (citing AR Tab 5 at 71). But the Government argues that the Solicitation’s requirements for including personnel in a proposal are less stringent. Gov’t Mot. JAR at 34. In fact, Cohen’s proposal listed key personnel who “did not meet the minimum requirements for the position that Cohen identified they would fill.” Gov’t Mot. JAR at 35 (citing AR Tab 19 at 1203, 1212 (showing that [redacted] of Cohen’s proposed [redacted] did not have the required [redacted] experience); AR Tab 19 at 1206-07 (demonstrating that Cohen’s proposed [redacted] did not have the required education, but the FDIC waived that requirement on 10/11/2011); AR Tab 19 at 1221 (demonstrating that Cohen’s proposed [redacted] lacked the required [redacted] experience in banking or related industry); AR Tab 19 at 1236-37 (showing that Cohen’s proposed [redacted] did not have the required experience)),
iii. The Intervenor-Defendant’s Response.
MMC responds that Cohen “fundamentally misconstrue[s]” the Solicitation’s personnel qualification requirements. Int. Mot. JAR at 22. “[T]he Solicitation did not require proposed key personnel to meet specific requirements, in general, nor did the Solicitation require key personnel to meet the specific ‘[redacted]’ qualifications in the [redacted] or [redacted] functional areas.” Int. Mot. JAR at 22. MMC’s “proposed key personnel had sufficient depth of experience that was similar to the [Statement of Work’s] functional areas, and therefore the strength that evaluators assigned was consistent with the Solicitation’s instructions and evaluation scheme.” Int. Mot. JAR at 22. Therefore, Cohen cannot establish “prejudice sufficient to sustain its protest or justify injunctive relief,” because “as many as [redacted] of [Cohen’s] proposed key personnel [redacted] did not meet the labor category desci’iptions outlined in the [Statement of Work.]” Int. Mot. JAR at 22-23.
iv. The Court’s Resolution.
Interpretation of the Solicitation is a question of law and it “must be considered as a whole and interpreted so as to harmonize and give reasonable meaning to all of its parts.”
NVT Techs., Inc. v. United States,
This interpretation is consistent with the doctrine that “the language of a contract must be given that meaning that would be derived from the contract by a reasonably intelligent person acquainted with the contemporaneous circumstances.”
Metric Constructors, Inc. v. Nat’l Aeronautics & Space Admin.,
For these reasons, the court has determined that the FDIC did not make a critical and objective error or act in an arbitrary or capricious manner in concluding that the “[experience and backgrounds of the proposed [MMC] management team mirrors industry experience required in the [Statement of Work].”
b. The Location And Qualifications of Intervenor-Defendant’s Staff.
i. The Plaintiffs Argument.
The FDIC credited MMC with [redacted] Mission Capability strengths. Cohen argues that the Administrative Record contradicts two of those findings: (1) MMC had a “[p]ooI of [redacted] professional staff in core areas ... available to meet staffing needs in Dallas and D [.]C [.],” and (2) the “[e]xperience and backgrounds of the proposed management team mirrors industry experience required in the [Solicitation’s Statement of Work].” Pl. Mot. JAR at 31 (quoting AR Tab 27 at 1412 (Panel Report) (emphasis added in brief) and citing AR Tab 31 at 1434 (Selection Recommendation Report using the same language to describe MMC’s Mission Capability strengths)). In fact, MMC’s proposal claimed only a “core base of over [redacted] professionals working on client assignments throughout the United States [.]” Pl. Mot. JAR at 32 (quoting AR Tab 18 at 998, 1010 (MMC’s BAFO) (emphasis added in brief)). Nothing in MMC’s proposal, however, indicates that those [redacted] professionals are available in Dallas and Washington, D.C. PI. Mot. JAR at 32. Furthermore, nothing in MMC’s proposal supports the FDIC’s finding that MMC’s self-described “core base” of professionals perform work in what the Agency described as “core areas” of the Solicitation. Pl. Mot. JAR at 32.
ii. The Government’s Response.
The Government responds that the FDIC’s evaluations of MMC’s mission capability are discretionary and supported by the record. Gov’t Mot. JAR at 29. Contrary to Cohen’s assertion, the Panel report concluded only that MMC’s [redacted] professionals were “available to meet staffing needs in Dallas
*279
and D[.]C[.],” not that they were concentrated in those areas. Gov’t Mot. JAR at 30. The Panel was under no misapprehension about the location of MMC’s employees. Gov’t Mot. JAR at 31 (quoting Panel evaluation sheets stating that “> [redacted] [of them were] in D[.]C[.] — [redacted] in Dallas” (AR Tab 12 at 910), “located both D[.]C[.], Dallas — [redacted]” (AR Tab 12 at 924), and “Local Co. w/ [redacted] employees in Dallas” (AR Tab 12 at 927)).
4
Furthermore, the Government asserts that the court should not delve into the minutiae of the procurement process and substitute its judgment for the agency’s regarding the proposals’ relative merits.
See Beta Analytics Int’l, Inc. v. United States,
iii. The Intervenor-Defendant’s Response.
MMC asserts that “neither MMC’s proposal nor the assigned strength states that ‘each and every one’ of the [redacted] professionals described in MMC’s proposal is currently located in either Dallas or Washington, D[.]C[.] or working in ‘core areas’ of the [Solicitation].” Int. Mot. JAR at 18-19. MMC’s proposal stated, instead, that MMC “ ‘currently employs over [redacted] personnel in the Washington, D.C. area’ and, during the previous 18 months, had ‘employed over [redacted] personnel in the Dallas, Texas metropolitan area.’” Int. Mot. JAR at 19 (quoting AR Tab 18.1 at 977). In addition, MMC’s proposal stated that MMC deployed more than [redacted] Dallas residents on FDIC contracts during the recent financial crisis. Int. Mot. JAR at 19 (citing AR Tab 18.1 at 977). The Panel’s worksheets establish that the panel understood the location of MMC’s employees. Int. Mot. JAR at 20 (quoting Panel evaluation sheets stating that “> [redacted] [of MMC’s employees were] in D[.]C[.] — [redacted] in Dallas” (AR Tab 12 at 910); “over [redacted] in Dallas now known to be qualified and available — [redacted]” (AR Tab 12 at 912); “[redacted] in D[.]C[.] ... [redacted] Dallas residents deployed ... [redacted] employed in Dallas” (AR Tab 12 at 922); “Local co. w/ [redacted] employees in Dallas. PM travel to/from D[.]C[.] ... Management plan includes [redacted] in D[.]C[.]” (AR Tab 12 at 927); “[redacted] in Dallas area” (AR Tab 12 at 944); “[redacted] employees on staff ... [redacted] @ FDIC— Dallas (# [redacted] total)” (AR Tab 12 at 947); and “[redacted] @ FDIC ... [redacted] Dallas” (AR Tab 12 at 953)). Finally, nothing in the record supports Cohen’s claim that every one of the [redacted] personnel MMC referenced “provides sophisticated financial and accounting services that are at the core of the [Solicitation].” Int. Mot. JAR at 21. Therefore, the FDIC’s evaluation of MMC’s proposal “reasonably reflected the benefits of MMC’s nationwide hiring capabilities and its existing presence in the Dallas and Washington, D[.]C[.] areas[.]” Int. Mot. JAR at 22.
iv. The Court’s Resolution.
The agency in a bid protest must provide “a coherent and reasonable explanation of its exercise of discretion!.]”
Centech Grp.,
2. Whether The Agency Improperly Relaxed Minimum Solicitation Requirements By Accepting Intervenor-De-fendant’s Offer.
a.The Plaintiffs Argument.
Cohen asserts that an agency must either enforce the minimum standards established in the Solicitation or amend the Solicitation and notify all offerors of the amendment. Pl. Mot. JAR at 34 (citing
Alfa Laval Separation, Inc. v. United States,
b.The Government’s Response.
The Government responds that Cohen again mischaraeterizes the Solicitation as setting “minimum requirements” for key personnel. Gov’t Mot. JAR at 36-37. There was no requirement in the Solicitation to identify in the proposal the staff who would fill particular positions or “that proposed key personnel met the minimum qualification requirements for any particular Functional Specialty position.” Gov’t Mot. JAR at 37. “[T]he FDIC simply evaluated the key personnel resumes to ensure that the functional areas were covered by the collective expertise of the proposed key personnel.” Gov’t Mot. JAR at 38. Because the Solicitation did not require that the proposed key personnel meet any minimum qualifications, the court cannot mandate such a requirement. Gov’t Mot. JAR at 38 (citing Ala.
Aircraft Indus. v. United States,
c.The Defendant-Intervenor’s Response.
MMC contends that “the Solicitation gave complete discretion to the offeror to self-identify key personnel and did not require key personnel be assigned to particular labor categories or functional specialties.” Int. Mot. JAR at 26-27 (citing AR Tab 10 at 813 (“Key personnel are not associated with a *281 particular labor category.”)). The FDIC did not relax its minimum requirements, because no minimum requirements existed. Int. Mot. JAR at 26-28. Second, although Cohen argues that three MMC key personnel did not meet the requirements to be [redacted] the Solicitation did not require a [redacted] for the [redacted] and [redacted], the two areas in which those three key personnel were proposed. Int. Mot. JAR at 26, 28-31 (citing AR Tab 5 at 32 (chart showing that the Solicitation required [redacted] in [redacted] under the baseline staffing model, but not in [redacted] or in [redacted]); AR Tab 19.1 at 1236, 1239, 1245, 1284, 1287, 1290 (resumes showing that Cohen’s proposal listed [redacted], not [redacted], in the [redacted] and [redacted] functional areas)). Furthermore, even if MMC’s key personnel did not satisfy the Solicitation’s requirements, Cohen was not prejudiced, because “[redacted] of [Cohen’s] proposed key personnel did not meet the experience or qualification standards for the labor category and functional specialty for which they were proposed.” Int. Mot. JAR at 32-34 (citing AR Tab 19.1 at 1206 (establishing that the [redacted] did not have a requisite college degree); AR Tab 19.1 at 1203 (showing that the [redacted] did not have the required experience); AR Tab 19.1 at 1212 (showing that the [redacted] did not have the required experience); AR Tab 19.1 at 1221 (showing that the [redacted] did not have the required experience); AR Tab 19.1 at 1236 (showing that the [redacted] did not have the required experience); AR Tab 19.1 at 1255 (establishing that the [redacted] lacked the required experience); AR Tab 19.1 at 1258 (establishing that [redacted] the lacked the required experience); AR Tab 19.1 at 1276 (showing that the [redacted] did not have the required experience)). Despite these deficiencies in Cohen’s proposed workforce, the FDIC credited Cohen with a strength for management team experience and background, the same strength awarded MMC. Int. Mot. JAR at 34 (citing AR Tab 27 at 1413).
d. The Court’s Resolution.
Cohen’s assertion that the FDIC relaxed the requirements in the Solicitation misinterprets the Solicitation’s requirements. As the court explained above, the Solicitation required that an offeror’s proposed key personnel have “similar experience” to the position-specific experience requirements listed in the Solicitation. Therefore, the FDIC did not relax the Solicitation’s requirements, when it determined that MMC’s key personnel had “similar experience,” satisfying the Solicitation’s terms. For these reason, the court has determined that the FDIC did not relax the minimum requirements in the Solicitation and did not act in an arbitrary and capricious manner in awarding MMC a strength for management team experience and background.
3. Whether The Agency Failed To Perform And Document A Price Realism Analysis As Required By The Solicitation And The Agency’s Acquisition Regulations.
a. The Plaintiffs Argument.
Next, Cohen asserts that the FDIC failed to conduct the price realism analysis required by the Solicitation and FDIC regulations, or, in the alternative, failed to document that analysis. PI. Mot. JAR at 23-30. PGI procedural standards are binding in FDIC procurements. Pl. Mot. JAR at 24 n. 5 (citing
Office Depot, Inc. v. United States,
Other documents evidence, not only the FDIC’s complete failure to conduct price realism analysis but that the FDIC misconstrued what a price realism analysis requires. Pl. Mot. JAR at 27-28. For example, the Selection Recommendation Report, “like the [Panel] Report, contains only a conelusory, boilerplate statement that pricing was evaluated for reasonableness and realism.” Pl. Mot. JAR at 27 (citing AR Tab 31 at 1433). A Best Value Analysis contains two charts listing ratings and prices, but no analysis. Pl. Mot. JAR at 27 (citing AR Tab 30 at 1429-30). Although the Selection Recommendation Report did mention realism, it conflated the concepts of realism and reasonableness. Pl. Mot. JAR at 27-28 (quoting the Report’s finding that [redacted] BAFO price “was unreasonable based on the work being performed and unrealistic compared to other labor hour price submissions” (AR Tab 31 at 1440)). “The FDIC’s use of the term ‘realism’ ... shows that the agency fundamentally misunderstood the nature of a realism analysis, and believed that both ‘reasonableness’ and ‘realism’ refer to an assessment of whether offerors’ prices are too high.” Pl. Mot. JAR at 28. As a result, “[t]he FDIC simply never considered or evaluated whether offerors’ prices were too low.” Pl. Mot. JAR at 28.
Moreover, the FDIC’s complete failure to document any price realism analysis violates the APM and the PGI. Pl. Mot. JAR at 29 (citing APM ¶ 3.210(c) (stating that the Panel “is responsible for determining price realism and documenting its analysis in either the [Panel] Report or a written memorandum to the Contracting Officer”) and PGI § 3.214(a)(2) (same)). Specifically, the FDIC was required to “articulate a satisfactory explanation for its action including a rational connection between the facts found and the choice made.” Pl. Mot. JAR at 29 (quoting
Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co.,
In addition, the FDIC’s failure to conduct price realism analysis prejudiced Cohen, because “there is ample evidence that a rational evaluation of realism would have concluded that MMC’s prices are in fact unrealistic.” Pl. Reply at 16. MMC’s total price was [redacted] percent of the FDIC’s estimate, and the FDIC’s regulations specifically require the Panel to question an offeror if its price was far below the agency’s estimate. Pl. Reply at 16-17 (citing Gov’t Mot. JAR at 22-23 (conceding the [redacted] percent figure); PGI § 3.210(c)(2) (“If an offeror’s total proposed price ... falls far short of the Program Office estimate for the requirement, the offeror’s understanding of what is required must be questioned.”)). Similarly, a price realism analysis would have evidenced that MMC’s labor rates were unrealistically low. Pl. Reply at 17. If the FDIC had performed a price realism analysis, as required, it is likely that the FDIC would have eliminated MMC from the competition and selected Cohen, which was next in line for award. Pl. Reply at 17.
b. The Government’s Response.
The Government responds that both the Panel Report and the Selection Recommendation Report evidence that the FDIC performed price realism analysis. Gov’t Mot. JAR at 14. Specifically, the Panel Report states that each proposal “was initially evaluated with respect to ... realism.” Gov’t Mot. JAR at 14 (quoting AR Tab 27 at 1419). Furthermore,
The overall analysis of the pricing proposals was conducted by the Senior Contract Specialist, and a summary spreadsheet was provided to the [Panel] to compare the proposed pricing of the Offerors and confirm proposed pricing covered the initial period and all option periods, in accordance with the price schedule. Additionally, the [Panel] reviewed the more detailed price schedules in the proposals to ensure that all mandatory labor categories were addressed as required by the [Solicitation].
Gov’t Mot. JAR at 14-15 (quoting AR Tab 27 at 1419).
The Selection Recommendation Report states that the Panel was presented with the “pricing per labor hour category for each Offeror ... along with a calculation of total pricing for the period of performance. Pricing was evaluated on the basis of the realism and reasonableness of the labor hour rates in relation to the proposed work.” Gov’t Mot. JAR at 15 (quoting AR Tab 31 at 1433).
Although the Government concedes that the pricing evaluation sections of the Panel’s evaluation forms were left blank, this is not
prima facie
evidence that a price realism analysis did not occur. Gov’t Mot. JAR at 15. Instead, it shows that the pricing information was not available at the time the Panel members completed the forms. Gov’t Mot. JAR at 15. Moreover, the court should apply a “presumption of regularity” and find that the FDIC conducted a proper price realism analysis. Gov’t Mot. JAR at 16 (citing
Sickels v. Shinseki,
In addition, the FDIC had broad discretion in conducting its price realism analysis, because neither the Solicitation nor the PGI set forth detailed criteria to be considered. Gov’t Mot. JAR at 16.
6
In light of that FDIC discretion, the court should limit its review to ensuring that the FDIC considered
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available information and made no irrational assumptions or miscalculations. Gov’t Mot. JAR at 17 (citing
Ala. Aircraft Indus,
In addition, the Government argues that MMC’s prices were realistic, because they were [redacted] % of the prices proposed by three other offerors. Gov’t Mot. JAR at 19 (citing AR Tab 27 at 1419). MMC’s hourly rates were not the [redacted] for any labor category, and they were the [redacted] in only two of the six categories. Gov’t Mot. JAR at 19-20. In addition, comparing MMC’s labor rates with those in General Services Administration schedules demonstrates that MMC’s rates were realistic. Gov’t Mot. JAR at 21-22 (citing AR Tab 18.2 at 1053 (MMC’s rates); AR Tab 29 at 1425-28 (GSA schedules)). Athough the Administrative Record does not contain any document evidencing that the Panel made these comparisons, the court should infer that the FDIC considered the GSA schedules, because they are in the Administrative Record. Gov’t Mot. JAR at 22 (citing
Acrow Corp. of Am. v. United States,
In addition, the Government contests Cohen’s assertion that MMC’s price was unrealistic, because it was “[redacted] % of the FDIC’s own estimate.” Gov’t Mot. JAR at 22. Whether a price “falls far short” of an agency’s estimate is within the agency’s discretion. Gov’t Mot. JAR at 22-23 (quoting PGI § 3.210(c) (“If an offeror’s total proposed price ... falls far short of the Program Office estimate for the requirement, the offeror’s understanding of what is required must be questioned.”)). Here, seven of the eight offerors proposed prices below the FDIC’s estimate, and several offerors’ prices were only slightly higher than MMC’s. Gov’t Mot. JAR at 23.
Cohen also errs when it asserts that the FDIC’s evaluation of [redacted]’ proposal evidenced a failure to understand that price realism analysis does not refer to an evaluation of whether a price is too high. Gov’t Mot. JAR at 24. Under FDIC regulations, the purpose of a price realism analysis is to flag prices that are either too high or too low. Gov’t Mot. JAR at 24 (citing PGI § 3.210(e)(2) (stating that a proposal’s realism should be questioned “[i]f an offeror’s total proposed price either greatly exceeds or falls far short of the Program Office estimate”)).
The Government further contends that the FDIC’s price realism analysis is sufficiently documented in the Administrative Record. Gov’t Mot. JAR at 24-27; Int. Reply at 5-6 (citing: the Panel Report’s statement that such an analysis was performed (AR Tab 27 at 1419-20), the Source Selection Recommendation’s statement that [redacted]’ price was
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unrealistic (AR Tab 31 at 1440), the Source Selection Recommendation’s statement that “[p]ricing was evaluated on the basis of the realism and reasonableness of the labor hour rates in relation to the proposed work” (AR Tab 31 at 1433), and the Source Selection Recommendation’s statement that MMC “offers fair and reasonable competitive labor rates” (AR Tab 31 at 1446)). This should satisfy the court, because the Administrative Record need only be sufficient for the “agency’s path [to] reasonably be discerned.” Gov’t Mot. JAR at 24-25 (quoting
State Farm,
Finally, even if the FDIC failed to perform or document a price realism analysis, Cohen cannot show that it was prejudiced by this failure. Gov’t Mot. JAR at 27-29 (citing
Data Gen. Corp. v. Johnson,
c. The Defendant-Intervenor’s Response.
MMC responds that the FDIC determined that MMC’s proposal “is technically strong, has exceptional past performance, and offers fair and reasonable competitive labor rates.” Int. Mot. JAR at 7 (quoting AR Tab 31 at 1446 (Selection Recommendation Report) (emphasis added)). Athough the FDIC was required to perform a price realism analysis, MMC asserts, that analysis did not need to be as rigorous as Cohen contends. Int. Mot. JAR at 8 (citing
OMV Med., Inc. v. United States,
In addition to making many of the arguments made by the Government, MMC explained that it was able to offer lower labor rates by using “[redacted].” Int. Mot. JAR at 13. MMC’s labor rates [redacted], while Cohen’s labor rates [redacted]. Int. Mot. JAR at 13 & n. 5 (explaining that the different [redacted] ). Here, the FDIC compared MMC’s rates with four companies’ General Services Administration Financial and Business Solutions schedule contract rates and MMC’s labor rates aligned with three of those companies’ rates. Int. Mot. JAR at 14-15 & n. 7. Furthermore, MMC’s more than twenty years of experience, including experience with the FDIC during the recent financial crisis, evidence that “MMC knows the market and what it takes to staff contracts, like this one.” Int. Mot. JAR at 15-16.
Finally, MMC contends that the FDIC’s [redacted] price estimate was a budgetary cap, and, therefore, realistic prices need not have been at or near that level. Int. Mot. JAR at 16 (citing AR Tab 1 at 1 (requesting authorization to spend “up to [redacted] for contractor compensation”), 9 (defining “the anticipated maximum funding projection under the contract”); AR Tab 4 at 14 (describing [redacted] as the “funding ceiling”)). The [redacted] estimate also was based on a [redacted]. Int. Mot. JAR at 17 (citing AR Tab 1 at 8 (“[redacted]”); AR Tab 5 at 33 (“[redacted]”)). “[T]hese factors undermine[ ] [Cohen’s] undue reliance on the [agency’s] budgetary estimate as evidence that MMC’s proposed prices were so unrealistically low that they should have caused the [Panel] to question MMC’s understanding of the requirements or adjust MMC’s Mission Capability rating.” Int. Mot. JAR at 17.
d. The Court’s Resolution.
The FDIC’s acquisition regulations require the Panel to “determin[e] price realism and document [ ] its analysis in either the [Panel] Report or a written memorandum to the [CO].” APM ¶ 3.210(c) (emphasis added). The Administrative Record contains no written memorandum to the CO, and in the fifteen-page Panel Report the documentation of price realism analysis consists of a single paragraph stating only that such analysis was performed, together with a chart showing each offeror’s overall proposed price:
The pricing proposal of each Offeror was initially evaluated with respect to completeness, reasonableness, and realism. The overall analysis of the pricing proposals was conducted by the Senior Contract Specialist, and a summary spreadsheet was provided to the [Panel] to compare the proposed pricing of the Offerors and confirm proposed pricing covered the initial period and all option periods, in accordance with the price schedule. Additionally, the [Panel] reviewed the more detailed price schedules in the proposals to ensure that all mandatory labor categories were addressed as required by the [Solicitation]. The proposed pricing was as follows:
[[Image here]]
AR Tab 27 at 1419.
Therefore, the Panel Report evidences that the Panel
conducted
a price realism analysis, but it failed to provide that analysis, or even the conclusions thereof, in violation of APM ¶ 3.210(c) and PGI § 3.214(a). APM ¶ 3.210(e) (requiring that the Panel Report document the FDIC’s price realism analysis);
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PGI § 3.214(a) (same). Without a description of the facts analyzed, and the reasoning that connects the facts with the conclusions, the court is not in a position to determine whether an agency exercised its discretion in a non-arbitrary manner.
See Banknote,
It is a well settled principle of administrative law that a federal agency must “articulate a satisfactory explanation for its action including a rational connection between the facts found and the choice made.”
State Farm,
“To establish prejudice [a bid protest plaintiff must] show that there was a ‘substantial chance’ it would have received the contract award but for the [agency’s] errors in the bid process.”
Bannum,
E. A Preliminary Injunction Is Warranted.
The February 8, 2013 Amended Complaint requests that the court “[g]rant Cohen ... permanent injunctive relief requiring the FDIC to set aside the award of the [business operations support] contract to MMC.” Am. Compl. at 27. Although Cohen’s February 8, 2013 Motion For Judgment On The Administrative Record seeks a permanent injunction (Pl. Mot. JAR at 2), the court considers a preliminary injunction more appropriate to the circumstances in this ease. See 28 U.S.C. § 1491(b)(2) (authorizing the court to “award any relief that the court considers proper, including ... injunctive relief’).
In considering whether to issue a preliminary injunction the court is required to weigh four factors: “(1) immediate and irreparable injury to the movant; (2) the movant’s likelihood of success on the merits; (3) the public interest; and (4) the balance of hardship on all the parties.”
U.S. Ass’n of Imp. of Textiles & Apparel v. United States,
As to the first factor, the Administrative Record evidences no documentation of price realism analysis of the proposals submitted by MMC and Cohen. Without injunctive relief, Cohen will suffer immediate and irreparable harm by losing the opportunity to be awarded the business operations support Contract at issue.
See Line Gov’t Servs. v. United States,
As to the second factor, a likelihood of success on the merits, Cohen has established that, without more thorough documentation than has been submitted in the Administrative Record, it will succeed on its claim that the FDIC violated APM ¶ 3.210(c) and PGI §§ 3.210(c) and 3.214(a) and the award of the contract to MMC was arbitrary and capricious.
As to the third factor, the Government and MMC argue that an injunction would be contrary to the public’s interest in minimizing the procurement costs. Int. Reply at 19; Gov’t Mot. JAR at 40. It is well established that a “protest case cannot be efficiently processed until production of the administrative record” is provided. RCFC App. C ¶ 23;
see also Google, Inc. v. United States,
As to the fourth factor, the balance of hardships, the Agency can extend the Cohen and Quantum contracts until a new business operations support contract can be awarded. Therefore, the hardship that a preliminary injunction will impose on the FDIC is minimal. Any necessary expense is wholly attributable to the FDIC’s unexplained failure to conduct and document a price realism analysis. For this reason, the court has determined that the balance of the hardships favors granting an injunction.
IV. CONCLUSION.
For these reasons, it is hereby ordered that:
This procurement is remanded to the Agency “for additional investigation or explanation” regarding price realism analysis with respect to Solicitation No. RECVR-12-R0088.
See Fla. Power & Light Co. v. Lorion,
As set forth in RCFC 52.2(b)(1)(B), the remand will expire in six months, during which time the preliminary injunction will be in effect. The Government will report to the court every ninety days on the status of the remand proceedings. See RCFC 52.2(b)(1)(D).
IT IS SO ORDERED.
Notes
. The relevant facts were derived from the January 25, 2013 Administrative Record, as supplemented on February 4 and 13, 2013 ("AR Tab 1-69 at 1-2922”).
. The Government’s February 4, 2013 Motion requested to supplement the Administrative Record with: technical and price proposals from offerors, other than Cohen and MMC; the FDIC evaluations and Panel evaluation sheets; post-BAFO Panel evaluations of all proposals; the FDIC’s communications with offerors; past performance questionnaires for Cohen and MMC; three pages omitted from the evaluation worksheets in the Administrative Record; and more legible copies of pages already in the Administrative Record. MMC objected to the inclusion of: the technical proposals of offerors other than MMC and Cohen; material pertaining to the *274 FDIC's evaluation of those proposals; and past performance questionnaires for Cohen and MMC. 2/4/13 Gov’t Mot. Supp. at 1-3 & n. 2. Since all of the documents at issue fall within the list of Administrative Record "core documents relevant to a protest case," the court has determined that it must grant the Government’s February 4, 2013 Motion. See RCFC App. C ¶ 22.
. The Government’s February 13, 2013 Motion requested to supplement the Administrative Record with emails pertaining to the procurement that were exchanged between the CO and potential offerors. 2/13/13 Gov’t Mot. Supp. at 2. Again, since these emails are "core documents relevant to a protest case,” the court has determined it must grant the Government’s February 13, 2013 Motion. RCFC App. C ¶ 22(i).
. The Government’s brief quotes the first sheet as stating "[redacted] in Dallas” and the second sheet as stating ”D[.]C[.] & Dallas” instead of "D[.]C[J, Dallas.” Gov't Mot. JAR at 31. The court assumes that the discrepancies likely are due to the barely legible reproduction of the handwritten evaluation sheets in the administrative record. ARTab 12.
. The PGI states:
The [Panel] evaluates price proposals to determine whether the proposed price for the work is realistic. A realistic price is one that reflects a clear understanding of the requirement and is consistent with the offeror's technical proposal. The elements of a price proposal can provide insight into an offeror's understanding of the requirement. If an offeror’s total proposed price either greatly exceeds or falls far short of the Program Office estimate for the requirement, the offeror’s understanding of what is required must be questioned. The [Panel] review and determination includes the appropriateness of:
• The number and qualifications of personnel to be assigned to the various aspects of the proposed work;
• Proposed labor rates or proposed material fees; and
• The price, amount, and necessity of travel.
PGI § 3.210(c).
. Cohen incorrectly challenges this finding as a misapplication of the concept of price realism, but under the FDIC’s regulations prices can be determined to be unrealistically high or unrealistically low. PI. Mot. JAR at 27-28; PGI § 3.210(c)(2) (triggering questioning of a proposal's realism "[i]f an offeror's total proposed price either greatly exceeds or falls far short of the Program Office estimate”).
. The Administrative Record contains no evaluation of MMC’s price as a percentage of the FDIC’s estimate. Likewise, there is reason to doubt the accuracy of the [redacted] percent figure that Cohen calculated by subtracting the fourth-quarter 2012 prices from MMC’s proposal and then expressing the result as a percentage of the FDIC’s estimate. Pl. Mot. JAR at 16 (using $[redacted] as MMC's "2013-18 Total” and citing AR Tab 18 at 1053 (MMC’s $11,496,293 price, including $[redacted] for the fourth quarter of 2012)); see also AR Tab 1 at 8-9 (stating that the FDIC estimate used calendar years 2013-2018, whereas the actual contract was to run from the fourth quarter of 2012 through the end of the third quarter of 2018). Cohen also did not account for other differences between the assumptions used to calculate the FDIC’s estimate and those used by MMC. As MMC noted, its price was based on [redacted], and the FDIC’s estimate was based on [redacted]. Compare AR Tab 18 at 1053 (stating that MMC’s price calculation was based on [redacted]), with AR Tab 1 at 8 (stating that the FDIC's estimate was based on [redacted]). Also, the FDIC estimate and the offerors' proposals were based on different staffing level assumptions. Compare AR Tab 1 at 8 (stating that the FDIC’s estimate for each year was based on the average staff levels for that year and the previous year), with AR Tab 18 at 1053 (MMC using the staffing levels for each year, with no averaging). As a result, MMC’s and Cohen's 2014 total costs were based on staffing levels of zero "Professionals,” whereas the FDIC's estimate included [redacted] in 2014 pay for “Professionals.” Compare AR Tab 18 at 1053 (MMC proposal), and AR Tab 19 at 1302 (Cohen’s proposal), with AR Tab 1 at 8 (FDIC estimate). The differences in methodology between the FDIC’s estimate and the offerors’ proposals explains why it would be erroneous for the court to "infer” a price realism analysis from this Administrative Record.
. This Order was issued on March 27, 2013 at 3:45 p.m. (EDT).