P o s t

- A w a r d B i d P r o t e s t ; Technical Evaluation ; Unstated

Criteria. 

# In the United S tates Cou r t of Federal Claims

No. 16-775C (Filed: March 15, 2017) ( Re-f iled: May 9, 2018) 1

* * * * * * * * * * * * * * * * * * *

TETRA TECH, INC.,

Plaintiff

,

v.

THE UNITED STATES,

Defendant

,

and

EASTERN RESEARCH GROUP, INC.,

Defendant-Intervenor.

* * * * * * * * * * * * * * * * * * * * Holly A

. R oth

, W ashington, DC, with whom were Lawrence P. Block

, Elizabeth G

. Leavy

, Molly Q. Campbell

, and Sarah S. W ronsky

, W ashington, DC, f or plaintif f

.

Kristin B. McGrory

, Trial Attorney

, Com m ercial Litigati o n B ranch,

C i v i l Division, D epartm ent of Justice, W ashington, DC, f or def endant, with

whom wer e C

h a d A

. Readler

, Acting Assistant Attorney General, Robert E.

Kirschm a n, J r ., Director, Douglas K. Mickle

, Assistant Director. Maria S.

Kavoura s , O f

f ice o f General Counsel, United States Environm e n tal P rotection

1 T his opinion was originall y i s sued under seal. The parties of f ered joint proposed r edactions. W e a dopt the p arties’ propo s ed redactions because we f i n d t h e m to be appropriate. Those r edactions are indicated herein with

brackets.Agency , Cincinnati, Ohio, of counsel.

John G. Horan , W ashington, DC, f or intervenor.

OPINION

BRUGGINK, Judge

.

This is a post-award protest of a solicitation f or envi r o n m e n tal consulting support services to assist the U n i t e d States Environm ental

Protection Agency (“EPA”) wit h i m p lem e nting the National Pollutant Discharge Elim ination Sy stem (“NPDES”) perm it program and Clean W a ter
Act (“CW A”) regu l a

t i o n s

. P l a i n t i ff, T e t

r a T ech, Inc., the i ncum

bent contractor, challenges the E PA’s award of the contract to intervenor, Eastern Research Group, Inc. (“ERG”). E PA initially awarded the contract t o ERG on June 24, 2016, f inding t hat ERG’s proposal of f ered the best value. Tetra Tech f iled the present action on June 30, 2016. 2

T h e p arties f

i led cross-m otions f

or j udgm e n t o n the adm i nistrat i v e record in August o f 2016. Bef ore brief ing was com

plete, the g overnm ent f

i led

a notice of c orrective a c t i o n on Septem ber 1, 2016, s tating its intention to

reconvene the t echnical evaluation panel (“TEP”) and ha v e the source selection of

f icial (“SSO”) re-evaluate the best val u e d eterm ination b ased on

t h e f o r t h com ing r evised consensus TEP report. Af ter the c orrective action,

EPA again awarded the contract to ERG, f inding that its proposal of f ered the

best value to the governm ent. Now p ending are the parties’ cross-m otions f or

2 Plaintif f f iled a separate bid protest on Novem ber 23, 2016. S

ee Tetra Tech

v. United States

, Fed. Cl. No. 16-1659. In that com p laint, plaintif

f challenges

EPA’s issuance of work assignm ent num ber 2-10, Long-term Storm water and

W a stewater P lanning Technical Assistance under a dif f erent c ontract held by

ERG. Specif

ically plaintif

f a l l e g es that EPA violated the Com petition in Contracting Act, 4 1 U.S.C. § 3301 ( 2012), when it issued the work assignm ent. Plaintif

f f urther alleges, in the separate action, t hat EPA violated

the voluntary stay in p lace in this case when i t issued the work assignm ent. A

decision in Tetra Tech v. United States

, Fed. Cl. No. 16-1659, is being i ssued

contem poraneously

herewith.

2judgm ent on the adm inistrat i ve record (“AR”) 3 p ursuant to Rule 52.1 of the

Rules of the Court of Federal Claim s (“RCFC”). The m otions are f ully brief ed,

a n d w e heard oral argum ent on February 17, 2017. As we stated a t t h e conclusion of o ral a rgum e nt, because we f ind that EPA’s t echnical evaluation

of the proposal was reasonable a n d s u p p o r ted by t he r ecord, we deny plaintif f ’s m otion f

or j udgm ent on the adm inistrative record and grant
def endant’s and intervenor’s cross-m o tions.

B ACKGROUND

Request f

or P roposal No. SOL-CI-16-00012 ( the “RFP” or the

“solicit a t i o n ” ) was released by EPA o n M arch 16, 2 016. 4 The Perf orm ance W o rk S tatem ent (“PW S”) f or the RFP provided that t he solicitation’s purpose

was

to provide e nvironm ent c o n s u l ting support services to the

United States E nvironm ental P rotection Agency (EPA), Of f ice

of W a ter (OW ), Of

f ice of W aste w a t er M anagem ent (OW M),

W ater Perm i t s Division (W PD), i n a m ending, developing, and

im plem enting National Pollutant Discharge Elim ination S y stem

3 O n A u g ust 2, 2016, p laintif f f iled a m otion to supplem ent the AR and f or lim ited discovery

. In an order entered on August 11, 2016, we granted in part
and denied in part plaintif

f ’s m otion. Specif

ically

, w e directed the governm ent

to produce all docum ents related to EPA’s evaluati o n o f E R G ’s Past

Perf orm ance and Corporate Experien c e a s w ell a s individual evaluation

worksheets produced by t h e technical evaluation panel. W e also denied plaintif f ’s request f

o r l i m ited discovery

. Def endant f iled the supplem ental

docum ents on August 12, 2016. Def endant later f

iled t wo m o tions f

o r leave

to f ile additional docum ents responsive to our August 11, 2016 o rder, which

we granted. Then, on Decem ber 30, 2016, def

e ndant f iled a supplem ent to the AR, including docum ents relevant t o the corrective action and second award

decision. Def

endant later f

iled a m otion to a m end the recor d t o i n c lude six

cost advisory reports r elevant t o the c o st realism a n d price reasonableness analy ses. Finally

, on J a nuary 20, 2017, p laintif f m o ved to supplem ent the AR

with e-m ail corresponden c e f rom January 13, 2017 between plaintif f ’s and

def endant’s counsel. W e denied plaintif f ’s m otion on January

24, 2017.

4 The RFP w a s i s s u ed in o rder to re-com p ete Contract E P-C-11-009, which

w a s held by T etra Tech and s et to expire prior to t he start of the b a s e perf orm ance period proposed in the RFP on July 1, 2016.

3(NPDES) perm i t s a nd Clean W ater A ct (CW A) regulations.

Technical s u

pport i s exp e c t ed to i nclude prof ession program

m a nagers, engineers, scientists, inf orm ation spec i a l ists, statisticians, and adm inistra t i v e services with experience in

NPDES perm itting and CW A regulations, a s well as experience

and best practices to help m ake m unicipal wastewater t reatm ent
f acilities m ore ef

f icient and sustainable.

AR 167. The RFP contem plated a base perf

orm ance period f

rom July 1, 2016 through June 30, 2017, and f our 12-m o nth option periods.

The of f erors were instructed to subm it proposals in t wo volum es: a cost proposal and a t echnical proposal

. T h e t echnical proposals were to be

evaluated based on the f

ollowing c r i t eria, listed in order of im p ortance: (1) Qualif i cations and A vailability of Key Personnel; (2) Past Perf orm ance; (3) Corporate E xperience; (4 ) P rogram M anagem ent Plan; and (5) Quality Managem ent Sy stem

. T h e EPA us e d the f ollowing a djectival ratings i n its

evaluations of

all technical criteria other than Past Perf orm ance:

Rating Description

Outstanding Proposal m eets requirem ents and indicates an

exceptional approach and understanding of the requirem ents. Strengths f ar outweigh any

weaknesses.

Risk of unsuccessf

ul perf orm ance is very

low.

Good Proposal m eets requirem ents and indicates a thorough

approach and understanding of the requirem ents. Proposal contains strengths which outweigh any

weaknesses. Risk of

unsuccessf

ul perf orm ance is very

low.

Acceptable Proposal m eets requirem ents and indicates an adequate

approach and understanding of the requirem ents. Strengths and weaknesses do not outweigh one another

or will have little or no im pact on contract perf orm ance. Risk of

unsuccessf

ul perf orm ance is no

worse than m o derate.

4Marginal Proposal does not clearly m eet requirem ents and has

not dem onstrated an adequate approach and understanding of the requirem ents. The proposal has

one or m ore weaknesses which are not outweighed by strengths. Risk of

unsuccessf

ul perf orm a nce is high.

Unacceptable Proposal does not m eet requirem ents and contains one

or m ore def

iciencies. Proposal is unacceptable f or purposes of

an award.

AR 166. Past Perf

orm ance was to be evaluated using the f ollowing a djectival ratings:

Rating Description

Substantial

Conf idence Based on the of f eror’s recent/relevant perf orm ance record, the Governm ent has a high expectation that the

of f eror will successf

ully perf orm the required ef

f ort.

Satisf actory
Conf idence Based on the of f eror’s recent/relevant perf orm ance record, the Governm ent has a reasonable expectation

that the of

f eror will successf

ully perf orm the required

ef f o rt.

Lim ited

Conf idence Based on the of f eror’s recent/relevant perf orm ance record, the Governm ent has a low expectation that the

of f eror will successf

ully perf orm the required ef

f ort.

No Conf idence Based on the of f eror’s recent/relevant perf orm ance record, the Governm ent has no expectation that the

of f eror will successf

ully perf orm the required ef

f ort.

Unknown

Conf idence (Neutral) No recent/relevant perf orm a nce record is available or

the of f eror’s perf

orm ance record is so sparse that no

m eaningf ul conf idence assessm e nt can be reasonably assigned.

AR 16 6

. Af

ter e valuating the proposals, the RFP prom ised that the governm ent
would “m ake a ward to t he responsible of f e ror(s) whose of

f er conf orm s to the

solicitation and is m ost advantageous to t he Governm e n t cost or other f actors
considered.” AR 163. The RFP f urt h e r p r ovided that “all evaluation f actors

5other than cost or p r ice when com bined are s ignif

icantly m ore im

portant t han cost or price.” Id.

For Qualif

ications and Ava i l a

b i lity of Key Personnel, the RFP provided that the Agency

would evaluate:

A. Dem o nstrated qualif i cations* and availability of the proposed PL-4 Program

Manager

1. Technical Qualif

i cations* o f the PL-4 Program Manager with the ty

pe of technical requirem ents

co v ered by [ the Perf

orm ance W ork Statem ent (“PW S”)]

2. Managerial Q ualif ications* of

the PL-4 Program Manager with m anaging contracts of sim ilar s ize,
ty pe, and m anagerial scope to the PW S

B. Technical Qualif

ications* a nd availability of the PL-4 Quality Assurance ( Q A ) ma n ager with the ty pe of technical requirem ents covered by PW S

C. Technical Qualif

ications* and availability of the PL-4

Senior Enginee r / Scientist(s) with the ty pe of technical requirem e n t s covered by the PW S ( no m ore than t wo Senior Engineer(s)/Scientists shall be evaluated)

*“Qualif ications” i n c l u d e s e d

u c a t i o n , e xpertise, and e xperience.

AR 1 64. For Past Perf

orm ance, EPA was directed to e valuate whether the

of f eror had

satisf actory or b etter perf

orm ance on all, or a t l east f ive (5),

co n t r acts a nd/or subcontracts com pleted during the past three

y ears ( including all contracts and subcont r a cts c urrently in progress), w hich are sim ilar in t echnical scope and c om plexity

, size, and ty

pe to t h a t which i s anticipated i n this solicitation.

Factors f or consideration include quality of tech n i c a l work products and/o r service, schedule, cost control, m anagem ent, regulatory

com pliance, and overall perf

orm a nce.

AR 164

. If an of

f eror could not provide a f ull record of Past Perf

o rm ance, it would receive a neutral rating f or this category

.

6Corporate Experience would b e evaluated through t wo subf actors: Corporate T e chnical Experience and C orporate Managem ent Experience. For Corporate Technical experience, of f erors were required to dem onstrate

corporate technical experience f u lf illing the tec h nical requirem ents of contracts of sim ilar size (as m easured by dollar

value and level-of

-ef f ort), contract ty

pe, and technical scope as that specif

i ed i n this solicitation. E xperience shall be related to
the tasks included in t he PW S a nd shall specif ically include experience in a m e nding, developing, an d i m plem enting NPDES

perm i ts and CW A regulations. I n addition, the of f eror s h a ll

dem onstrat[ e] its level of experience d ealing with outreach and

stakeholder enga g e m ent, environm ental data collection, and perf orm ing various related audit s and inspections. The of f eror shall also dem onstrate experience in preparing s cientif ic

technical docum ents using s o u n d environm ental planning,

scientif ic and engineering principles.

Id. For Corp o r a t e M anagem ent E xperience, of f erors were r equired to
dem onstrate

c o r p o rate experience i n f ulf illing the m anagerial requirem ents of

contracts of s im ilar size (dollar am ount), t y pe (CPFF, m

ulti task), and

technical com

plexity and scope to that specif ied i n this solicitation.

This experience shall be related to the tasks inclu d e d i n the PW S and

shall specif

ically i nclude experience i n am ending, developing, and

im p lem enting NPDES perm its and CW A regulations.

Id.

Th e R F P a l s o provided that the Agency w ould “perf orm either cost analy sis or price analy sis of the of f eror’s c ost/business proposal in a ccordance

with [ Federal Acquisition Regulation (“FAR”)] parts 15 and 31” and “evaluate proposals t o determ ine contract cost or price realism .” AR 163. According to
the RFP, “[ c]ost or p rice realism relates to an of f e r or’s dem o nstrating that the proposed cost o r price provides an adequate ref l e c t i o n o f the of

f eror’s understanding of t he r equirem ents of this solicitation, i.e., that the cost or price is not unrealistically

low or unreasonably

high.” Id.

The Initial Award Decision

7Tetra Tech and ERG were the only two of f e rors. B oth tim ely subm itted

their cost a nd technical proposals in A pril 2016. Followi n g r e c e i pt of the proposals, t he TEP was brief ed, via m em orandum

, by the contracting of f icer,

Brad H e a t h (“CO Heath”), regarding the p rocedures f o r evaluating the

te c h n i c a l proposals. The m em orandum notif ied t he TEP m em

bers that they

were to “evaluate proposals solely on the eva l u a t i on criteria identif ied in

Section M a nd shall not com pare one of

f e r t o another,” a nd that “each m em ber

shall id e ntif

y the strengths, def

iciencies, signif

icant weaknesses, and risks

associated with e ach pro p o s a l b ased upon the evaluation f actors and be prepared to discuss these with t h e r e st of the TEP to determ ine a consensus rating.” AR 2 205. 5 The m em orandum f urther instructed that Past Perf orm ance would be evaluated by

CO Heath.

Af t er each TEP m em

ber conducted an independent analy sis of the

of f erors’ proposals, the TEP m em b ers participated in a m e eting to develop a consensus rating. The TEP chair was instructed to com pile all the strengths

and weaknesses n o t e d by the individual TEP m em b ers in order t o create a docum ent t hat would “serve as t h e basis f o r the discussion to be h eld during

the consensus m eeting with the panel m em b ers

. ” AR 2218. The TEP chair

was f urther instructed to “ensure that the com p iled docum ents f

or e ach of f eror

are display ed electronically during the m eeting f or the panel m em

bers and can be m odif ied as t he consensus m eeting i s c o n d u cted.” AR 2219. During this

m eeting, the individual reports were considered and adjusted to m e e t a

co n s e n s u s

. CO Heath was responsible f or overseeing t he m eeting to ensure that the TEP m em

bers r eviewed the t echnical proposals i n accordance with the

evaluation f

a ctors expressed in the solicitation.

Af t er the m eeting, the TEP Chair developed a f inal consensus r ating f

or the TEP report. On April 28, 2016, the TEP Chair provided th e c onsensus report t o CO Heath. The report contained t he f ollowing ratings of the of

f erors’ proposals:

Criteria Title Tetra Tech Rating ERG Rating

5 The TEP members individually evaluated the proposals and then met to d evelop a consensus report. No individual evaluations were presented to the SSO.

8I.A.1 Dem o nstrated qualif ications and availability

of the proposed PL-4 Program

Manager (Technical Qualif

ications) Good Good

I.A.2 Dem o nstrated Qualif ications and availability

of the proposed PL-4 Program

Manager (Managerial Qualif

ications) Outstanding Outstanding

I.B Technical Qualif ications and availability

of the PL-4 Quality Assurance (QA) Manager with the ty pe of technical requirem ents covered in the

PW S Good Outstanding

I.C Technical Qualif ications and availability

of the PL-4 Senior Engineer/Scientist with the ty pe of technical requirem ents covered by

the PW S Good Good

II Past Perf

orm ance Outstanding Good

III.A Corporate Technical Experience Outstanding Outstanding

III.B Corporate Managem ent

Experience Outstanding Outstanding

IV.A Program Managem ent PlanPerf orm ance Monitoring Good Good

IV.B Program Managem ent PlanOrganizational Structure Good Good

V.A Quality

Managem ent Sy stem

Quality Managem ent Plan Acceptable Acceptable

V.B Quality

Managem ent PlanGeneric QAAP Acceptable Acceptable

AR 4766. The presence of a rating f or the Past Perf

orm ance of

both of f erors

was notable in that it was contrary to the solicitation, which required that the

9Past Perf orm ance rating be determ ined by the contracting of f icer and provided

a dif f erent adjectival rating sy stem specif ic to Past Perf

o rm ance.

Although not a m em

ber of the TEP, C O Heath later added his Past

Perf orm ance an a ly sis to the consensus TEP report and g ave b oth ERG and

Tetra Tech a Past Perf

orm ance rating of “Satisf a ctory Conf

idence.” Because

this addition cam e af

ter the TEP m e m

bers s igned of

f o n the c o nsensus report

on April 2 8

, 2 016, CO Heath decided to transpose those signatures to the f i nal

version that included his P ast Perf orm ance a naly sis. 6 This action, in part, lead to EPA’s decision to take corrective action, which is discussed below.

In May 2016, CO Heath developed Cost Advisory Reports f or the t wo of f erors. This review consisted of “a m ath check of the proposal, a verif i cation

that the [ level-of

-ef f ort (“LOE”)] h ours and Other Direct Costs (ODCs) were proposed in a ccordance w ith RFP specif ied am ounts and a verif

ication o f the

direct labor and indirect rates of the c ontractor and eac h s u b c ontractor.” AR

2288. Next, the TEP Chairperson conducted a review o f t h e o f f e rors’ cost proposals and d eclared that she wa s “ c o m f ortable with t he r ealism of the

subm itted [ proposals] and the reasonableness of the costs.” AR 2306, 2308.

Following the TEP review, a cost r ealism a naly sis w as c onducted. This analy sis was perf

o rm ed b y com

paring the cost elem e nts o f the proposals with

th e independent governm ent c ost estim ate (“IGCE”) and through an independent rate verif

i cation and analy sis. CO Heath com pared prop o s ed

direct labor rates, indirect r ates, ODCs, a nd f ixed f e e f or t he proposals of the

of f erors a nd any subcontractors. Ultim ately

, the analy sis f o u n d that both proposals w ere “realistic f or the w ork to be p erf

orm e d; ref

lect[ ed] a clear understanding of t he requirem ents; a n d [ were] consistent with each of f eror’s

technical proposal.” AR 2353. Tetra Tech and ERG b oth proposed total costs
of slightly m ore than [ ]

, w i t h ERG’s proposal being [ ]

than Tetra Tech’s. AR 2382.

On June 24, 2016, the SSO, Noelle Mills (“S S O M i lls”), issued her

decision a warding the contract to ERG. The decision was m ade based on a best

6 CO Heath notif

ied the T E P c h a i r that he was taking this a ction, say ing

every thing in t he f

inal version of the TEP report was “basically the sam e with

som e m inor editing of the reports an d I a l s o included the Past Perf orm ance sections so no f

urther a ction is required on y our part as I a l r e a d y h a v e y o ur signatures of

concurrence.” AR4398.

10value a n a ly sis, taking into account t he e valuated c osts of the of f e r and the

techn i c a l e v aluation f

actors set f

orth in the RFP. SSO Mills noted that s he

considered the reports and inf orm ation provided to h er f rom the TEP, but “the

award decision r epresents [ her] own independent j udgm ent of an assessm ent
of the technical i nf

orm ation, the cost or pricing data and o th e r i n f orm ation brought out in the of

f e ror’s proposal.” A R 2384. SSO Mills specif ically noted ERG’s higher technical rating and its lower price and proposed f e e rate.

Tetra Tech was notif

ied of t he award to E RG on June 24, 2016. It f i led

its com plaint in this c ourt, on June 30, 2016, challenging the award d ecision.

Plaintif f f iled its f irst m otion f

o r judgm ent on the adm inistrative record on August 2, 2016, and def

endant and ERG f

iled their cross-m otions o n A ugust 17, 2016. Af

ter f urther b rief

ing and three supplem entations t o t h e AR,

def endant f iled a notice of EPA’s intent to take corrective action on Septem ber 1, 2016. Def

endant indicated that, during the corrective action, “the agency

m ay review any part of the eva l u a t i o n s and/or analy ses as they see f i t,” and

that “[ o]nce the TEP h a s issued its f inal report, the EPA will then subm i t the

TEP report t o t h e S S O t o re-evaluate her best value determ ination.” Def .’s

Not. of Corrective Action.

Corrective Action And Second Award To ERG

As part of EPA’s corrective action, it a ssigned a dif f erent contracting

of f icer, Noelle Mills (“CO M i l l s ” )

, and a d if f erent source selection of

f icial,

Sandra Licis (“SSO Licis”) to m ake the new award decision. 7 CO Mills sent

a m em orandum to the TEP m em bers, inf orm ing t hem that the T EP m ust

reconvene to re-evaluate the technical proposals of both Tetra Tech and ERG

and issue a revised consensus r e port. Bef o re they reconvened, CO Mills asked

the TEP m em

bers to review, am ong other docum e nts, the solicitation, their prior consensus ratings f or Tetra Tech a nd ERG, and Tetra Tec h ’ s second

am ended com

plaint in this protest. For her part, CO Mills issued both a r evised

cost realism and price reasonableness analy sis and a revised Past Perf orm ance

ev a l u ation that was included in the revised consensus TEP report. T o assist

with her Past Perf

orm ance evaluation, the TEP g ave input t o C O Mills relating to the scope and com

plexity of the contracts identif

ied in the proposals.

7 W e note that, while new t o t h e s e particular roles, CO Mills and SSO L icis both play ed a part in the initial award decision. CO Mills g ave the final ap p r o v a l

, as

source selection official, for the J une 2 4, 2016 source selection determination, a nd

SSO L icis provided CO H eath with review c omments to assist in d rafting the same. AR 2385.

11The c orrective action y ielded no change to the adjectival r atings

assigned by the TEP. W hen re-evaluated by CO Mills, ERG and Tetra Tech

both s aw their Past Perf orm ance r atings increase f r o m “ Satisf

actory
Conf idence” t o “Substantial Conf idence.” Plaintif

f alleges th a t EPA acted irrationally while evaluat i n g both ERG’s and Tetra Tech’s p roposals with
respect to Key Personnel, Past Per f o r m ance, and C orporate Experience. Specif i cally

, plaintif

f a rgues that EPA arbitrarily and capr i c i o u s l y assigned adjectival ratings that did not relate to the strengths and weaknesses identif ied

in both Tetra Tech’s and ERG’s proposals. Plaintif f f urther believes that EPA applied unstated evaluat i on criteria while evaluating t he PL-4 Program Manager position, ignored the asserted f act t hat t he P ast Perf

orm ance section

of ERG’s proposal did not m eet the RFP’s technical requirem ents, and

otherwise relaxed the stated evaluation criteria t o ERG’s benef i t. W e d iscuss

in m o re detail below the t echnical ratings that T etra Tech now challenges and the justif ication f or those ratings provided in the TEP report.

Key Personnel Evaluation

The T E P ’ s consensus evaluation of T etra Tech’s technical proposal explains the ratings assigned to each subf actor. For Qual i f

i c a t i ons and Availability of Key Personn e l s u b fa c t o r I

. A.1, d em onstrated qualif ications and

a v a i l a b i l i t y o f t h e p r o posed PL-4 Program Manager ( Tec h n i c a l Q u a l i fi c a t i o n s )

, the evalu a t i o n n o t e d that T etra Tech’s P rogram M anager, [ ], had “26

y ears of experience in delivering technical support, both as an e m ploy ee of and

as a contractor f

or the E PA, spending m ore than 2 0 o f those y e ars p roviding

water q uality and wastewater m anagem ent s u p p o r t f or the E PA.” AR 6513.

The T EP’s evalu a t i o n f

u r t h e r p o i n t e d o u t [ ] “33 y ears of experience developing, im plem enting, and m anaging wa t e r resources protection program s ” as well as his past p rojects and e xperience relevant to the

PW S f or t his solicitation. Id. It went on to identif y [ ] s t r e ngths in developing and im

plem e nting regulations, outre a c h a nd stakeholder

engagem ent, data collection and m a n agem ent, a nd developing scientif ic and

t e c h n ical docum ents. The revised consensus evaluation also identif i ed on e weakness: that “[ t]he proposal does not dem onstrate this i ndividual’s technical ability f or innovation o r i n t e g ration with new i deas or critical issues.” Id

. Overall, the evaluation f

o und that

[ t]he propos e d program m anager has notable m anagem ent

e x perience relevant to this P W S. W hile not s pecif i cally questioning his technical expertise, m any o f the projects

12outlined in t he proposal to dem onstrate his technical expertise really dem onst r a ted the technical expertise of others. There is

also little there that dem onstrates any real energy or i nnovation about the NPDES program

.

AR 6514. Tetra T ech was given a “ Good ” r a t i n g f or the Technical Qualif i cations s u b f

actor. Plaintif

f a sks the court to f

ocus on the criticism

di r e c t e d t o [ ] lack of dem o nstrated innovation, which it

characterizes a s unf

air because the desira b i l i t y of “innovativeness” was not called out in the solicitation as a requirem ent.

W ith regard t o Qualif

ications and Availability of K ey Personnel

subf actor I.A.2, dem onstrated qualif ications and a vailability o f the proposed

PL-4 Program M anager (Managerial Qualif ication s )

, t he consensus report
noted [ ] “notable a m ount of c o n tract m anagem ent experience with

contracts of s im ilar size, ty p e and m anagerial s cope.” AR 6515. The evaluation

identif ied no weaknesses f

or this subf

actor. Overall, the TEP f

ound that

[ t]his individual has experienced m anaging m ul t i p l e c o n t

r acts of

all sizes a nd scopes, of sim ilar topics, and m anaging ov e r 1 00

em ploy ees on diverse CW A topics i n m ultiple locations. U nder

h i s m anagem ent, there is a h istory of high ratings. He

dem onstrates m a nagem ent experience at m ultiple levels – PM,
DPM, W AM, a nd Team Leader. He h as m anaged contracts with

m u ltiple clients f

o r diverse activities.

AR 6515-16. Tetra Tech was given an “ Outstanding” rating f o r the Managerial Qualif i cations subf

actor.

Plaintif f challenges EPA’s evaluation of ERG’s com parable proposed PL-4 Program

Manager, [ ]. In its consensus evaluation of [ ] u n der Q ualif

ications and Availabil i t y o f K e y P e r sonnel subf actor I.A.1, dem o n s t r a t ed qualif ications and availability of the proposed PL-4 Program Manager (Technical Qualif ications), the agency concluded:

ST R E N G T H S :

. . . [ ] has 28 y ears of experience supporting OW in eval u a

t i n g e f f e ctive options f

or im proving the

nati o n ’ s water quality and has extensive and direct experience spanning nearly all PW S areas. Throughout her career, she h as supported OW regula t o r y developm ent and im plem entation,

13personally supporting mo re than 1 0 O W rulem aking p rogram s and m ore than 20 regulat o r y s t u dies or petitions, including technically challenging a n d controversial rulem akings such as the CAFO ef

f l uent lim itations guidelines (ELGs) and the recent

steam electric E LGs. She currently serves as Program Manager

f or E RG’s technical support to OW M’s NPDES Vessel General

Perm it Program

. Through this w o r k

, s he has dem onstrated

f irst-hand experience addressing c h allenges f acing OW M, including petitions, lawsuit s , and regulatory and technological challenges. She understands t he i m p ortance of

creating legally

def e nsible regulations, based on sound engineering j udgem ent. [ ] has b een instrum ental in developing m odern tools

to m anage data and inf

orm ati o n , s u ch as the ERG Com m ent Coding and Response Sy stem

, and t he DMR Pollutant Loading

T o o l

, which m anages thousands of records and p rovides a n interf ace f or EPA a nd the public to sy st e ma t i c a l ly search and

review discharge m onitoring report (DMR) data entered into the Integrated Com

p liance Inf

orm ation Sy stem

–National Pollutant Discharge Elim ination Sy stem (ICIS-NPDES).

[ ] h as im pressive skills in t he a r eas of tool developm ent, da t a s y stem s m a n agem ent, clim ate analy s is, water quality trading, and areas of sustainability such as ene r g y a nd

water e f f i c i e n c y and LEED, that could def i nitely inf

use the NPDES program with som e f resh and im

proved approaches.

. . .

W EAKNESSES: W hile [ ] h as dem o nstrated expertise

in som e N PDES program areas, s h e i s lacking k nowledge and expertise i n other program s pecif i c areas like CSO and pretreatm ent pr o g ram developm ent and im plem entation. There is

little dem onstration of im plem entation of r egulation p rogram s , i.e., seem s to be involved in rule developm ent a nd data sy stem s developm ent, but not so m uch t he delivery and i m

provem ent of

program s.

There is a m ism atching of t i t l e of “Centralized w astewater

Treatm ent Perf

orm ance f

or Nutrients,” wi t h description of

P O T W s (page 1 8 ). There are inconsistencies in incorrec t l y

14nam ing projects (CW Ts v e r s us POTW s f or n utrient sam

pling)

or n ot quite m atching ti t l e s t o projects, (“DMR [ Pollutant] Loading T ool”). I n a d d ition, “ c entralized wastewater treatm ent”

in the NPDES p r ogram are industrial f a cilities not POTW s

. These m istakes dem onstrate a m isunderstanding of som e key

term s and a poor understanding of the program

.

AR 6489. Overall, the TEP f ound that

[ ] is im

p r e s sive in the areas of tool developm ent, data

sy s t e m s m anagem ent, clim ate analy sis, water quality trading,

and areas o f sustainability s uch a s energy and water ef f iciency

and LEED. These sk i l l s could potentially inf use the NPDES

program with new ideas and approaches t hat could enhance the

NPDES program

. W hile [ ] h a s dem onstrated
expert i s e i n som e NPDES program areas, she is lacking knowledge and expertise in other p rogram specif ic a reas l ike

C S O a n d p r e

- t r e a t m e n t p r o g r a m d e v e l o p m e n t a n d

im plem entation. However, her s trengths outweigh the cited

weaknesses in these areas.

AR 6490. E RG, like Tetra Tech, was given a “Good” rating f or the Technical Qualif i cations subf

actor. Plaintif

f calls the court’s attention to earlier versions

o f the consensus TEP report in which [ ] is d escribed a s ha v i n g “[ e]ssentially no relevant N PDES experience.” A R 2863. Plaintif f contends

that the agency ’s f

inal assessm ent of her weaknesses was purposef ully diluted

between the e arlier v ersions and the f inal revised consensus v ersion of the TEP
report.

For [ ] Qualif ications and Availability of K e y P e r s onnel

subf actor I.A.2, dem onstrated qualif ications and a vailability o f the proposed

PL-4 Program M anager (Managerial Qualif i c a t ions), t he consensus report
ide n t i f ied “a notable am ount of contract m anagem ent experience with

contracts of sim ilar size, ty p e and m a n agerial s cope. She s e rves as ERG’s Vice

President and Program Manager.” AR 6491. The evaluation f urther identif

ied

si x s p e c i fi c i n s t a

n c es of relevant contract m anagem ent experience. It identif ied

no weaknesses within this subf actor. Overall, the evaluation f ound that

[ ] b rin g s extensive m anagerial qualif i cations

m a naging c ontracts of sim ilar size, t y pe and m anagerial scope.

15She is a highly qualif ied m a nager, providing EPA w ith f l exible

and responsible leadership with mu l tiple and som etim es

com peting pri o r i t i es. She has dem onstrated the required experience, dedication and corporate responsibility to achieve

the desired results f

rom a m a nagerial standpoint.

AR 6492. ERG was given a n “Out s t a n ding” rating f or the Managerial Qualif i cations subf

actor.

Past Perf orm ance

Past P erf orm ance was evaluated by CO Mills. During t he corrective

action period, the T EP gave input t o C O M i lls regarding the scope and

com plexity of the contracts identif ied i n T e tra Tech’s and ERG’s proposals.

For ERG, CO Mills evaluated f ive contracts u sing the Contractor Perf orm ance Assessm ent Report (“CPAR”). These f ive c ost-plus-f

ixed-f ee ( “CPFF”)

contracts ranged in value f rom $11,546,607 t o $39, 0 6 9

, 4 20. CO Mills also

used the CPAR database to evaluate t w o c ontracts f rom each [ ] and [ ]—ERG’s two subcontractors that were expected to receive a subcontract in

excess of $5,000,000. [

].” AR

6497. Plaintif

f c ontends that this i s n o t f ully consistent with the solicitation,

which requires the contracts to be “sim ilar in technical scope and c om plexity

, size, and ty

pe to that which is anticipated in the solicitation.” AR 164. 8

The contracts were judged based on f ive p e r fo r m a n c e e lem ents: quality

, schedule, cost control, m anagem ent, and regulatory com p liance. The r evised

TEP consensus report com bined the ratings o f ERG, [ ] in the

f ollowing table, w hich shows the num ber of contracts that received a particular

score f or each perf

o rm ance elem ent:

8 W e note that, at the beg inning of the Past Performance secti o n i n t h e revised

consensus TEP report, CO Mills quoted the standard from the solicitation. AR 6496.

16Perf

orm ance Elem ents Unsatisf

actory (1) M arginal

( 2 ) Satisf

actory (3) Very

Good (4) E xceptional

(5)

Quality [

S chedule

C ost Control

Managem ent

Regulatory

Com pliance ]

AR 6499. CO M ills did not f ind any weaknesses f

or ERG’s Past Perf

orm ance. O v e r all, ERG received a “Substantial C onf idence” rating f

or Pa s t
Perf orm ance.

For Tetra Tech, CO Mills evaluated seven contracts u s i n g CPAR.

These seven contracts i ncluded f ive CPFF c o n t r a c t s a nd two I DIQ contracts
with CPFF task orders a nd ranged in v alue f rom $8,911,751 to $107,800,000.

Like ERG’s c ontracts, Tetra Tech’s evaluated contracts were selected because “[

].” AR 6521

The revised T E P c onsensus r eport com bined Tetra Tech’s contracts in

the f o llowing table:

Perf orm ance Elem ents [

Quality

S chedule

C ost Control

Managem ent ]

17Regulatory

Com pliance [ ]

AR 6522. C O Mills d i d n o t f ind any weaknesses f

or Tetra T ech’s Past

Perf orm ance. Like E R G

, Tetra Tech received a “Substantial C onf idence” rating f or Past Perf

o rm ance.

Corporate Experience

Corporate E xperience was broken d own i n t o two com ponents: Corporate Technical Experience and Corporate Managem ent E xperience. For

ERG’s Corporate Technical Exper i e nce, the TEP identif ied num erous strengths and no weaknesses, f inding that

The ERG proposal dem onstrates access to f irm s that no t only provide high-quality technical support across th e N PDES

program , including NPD E S perm it program d evelopm ent,
im plem entation, a nd oversight

, b u t w ho c an also support Agency priorities, such as working toward a sustainable f uture (e.g., in areas such a clim ate, e nergy , and water ef f iciency ) and working to m ake a visible dif f e rence in com m

unities (e.g., green inf rastructure, enviro n m ental justice). ERG provides a

com prehensive understanding of the N P DES program m ission

and program n eeds and unparalleled technical expertise to m eet
those needs.

AR 6501. Overall, the TEP f ound that E R G ’ s p roposal “is outstanding and

seem s to provide som e opportunities f or t he NPDES program to expand and/or
get a f r e s h p e r s p e ctive o n som e parts of the p rogram .” AR 6504. ERG was given an “Outstanding” rating f or Corporate Technical Experience.

ERG was also g iven a n “Outstanding” rating f or Corporate Managem ent Experience. The revised c onsensus TEP r eport explained t hat

“ERG has m a naged m

ultiple contracts of sim ilar size, t y p e , s c ope and

technical com

plexity

, inclu d ing am ending, developing and i m plem e nting

NPDES perm its a nd CW A regulations.” AR 6 505. The r e p o rt f ound one weakness i n ERG’s proposal: “[ e]xperience in am ending, d e v e l o p ing, and

im p lem enting NPDES perm its, other t han Vessel General Perm it, is lim i ted.”

Id. Overall, the TEP f

ound that

18The package dem onstrates a wide v a r iety of successf ully

m a naged projects, well w ithin the size, s cope and com plexity of

this PW S

. It a l s o suggests the possibility of b ringing new approaches to the program , e

. g ., better integrating clim ate
resilience into the program , provid i n g better d ata m anagem ent

sy stem s , im

proving training, and/or developing m ore ef f ective tools to support the NPDES program

.

Though the contracts are of sim ilar size, s cope and c om plexity

, there is lim ited corporate m anage me n t experience with

am ending, developing, and im plem e nting traditi o nal NPDES

perm i t s , o t h e r than Vessel General Perm it and MS4s. Most of

the rulem aking is on ef

f luent g uidelines and standards, though

it also i ncludes S uf

f iciently Sensitive Methods. The ERG t eam

m e m b ers com plem e nt each other and are very qualif ied.

AR 6 505-06. ERG received a r a t i n g of “Outstanding” f o r both Corporate Experience com

ponents.

W ith respect to T etra Tech’s Corporate Technical Experience, the TEP

noted that its “dem onstrated corporate techn i c a l e x p erience includes an

e x t e n sive range of NPDES p rogram d evelopm ent, im plem entation, and

rulem aking support.” AR 6524. Unlike ERG, the TEP identif ied one weakness

in T e t ra Tech’s proposal f or this com

ponent, stating that t here was “a rather

poor dem onstration that t hey are positioned (or even i nterested) in s u pporting

the program t o m eet the next generation o f environ m e ntal challenges.” AR

6526. Nevertheless, the TEP ga v e T e t r a Tech a rating of “Outstanding,” concluding that Tetra Tech had “notable t echnical c o m petencies across m ost
f u n d a me n tal and existing areas o f the NPDES program ,” and that they were “well-qualif

ied to support the program to m aintain the status q uo.” AR 6526.

Tetra Tech w as also given a n “ O utstanding” rating f o r Corporate Managem ent Experience. The T EP c onsensus report n oted that “[ s]ince 1979,

Tetr a T ech h a s m anaged num erous large, level-of -ef f o rt (LOE), m

ultitask

contracts f

or EPA’s Of

f ice o f W ater and other f

ederal a nd local clients” and

that T etra T ech’s proposal “dem onstrates a clear ability to adequately m anage

contracts of this size, ty

pe, and scope, as they ’ v e already b een doing it.” AR 6527. However, the f

ollowing weaknesses were identif i ed:

[ t]here seem s to be m inim a l use of subcontractors o r o ther

19technical e xpertise, even in a r eas w h ere T e t r a T ech d oes not
have n o table t echnical expertise. It appears t h a t a lot of their

sm all business ef

f o r ts are f or high dollar, low r eturn ef f o rts l ike e-NOI, rather t han spreading t hese resources a cross s m all

businesses and/or se e k i n g out f resh expertise f

or projects t hat

m i ght benef

i t f rom it.

Id.

Tetra T ech and ERG were g i ven identical ratings f or the rem a ining

technical f

actors, except f

or I.B, Technical Qualif

ications and

availability

of

the P L-4 Quality Assurance (QA) Manager w ith t he ty pe of technical requirem ents covered in the PW S

. For t h i s f actor, E RG w as given an “Outstanding” rating, and Tetra Tech was given a “Good” rating. Tetra Tech

does not protest the TEP’s awarding ERG a h igher rating f or the PL-4 Quality Assurance Manager position.

C O Mills issued a revised cost realism and price reasonablene s s

a n a l y s i s on D ecem

b er 16, 2016. She d eterm ined that both ERG’s and Tetra

Tech’s proposed costs were reali s t i c f o r the work t o be perf

o rm ed and

ref lected a clear understanding o f the requirem ents. She f urther f ound the proposed cost-plus-f

ixed

- fe e p r o v i d e d b y e a c h of f eror to be f

air and r easonable

to the g o v e r n m ent. On Decem ber 16, 2016, SSO Licis d eterm i ned that an award to ERG presented “the best value to the governm ent based on the higher

technical ration of the Q uality Assurance Manager and the lower, r easonable

and realistic costs of ERG’s proposal.” AR 6789. That sam e d ay , Tetra Tech

was notif ied that it was again unsuccessf ul.

DISCUSSION

The Tucker Act, as a m ended by the Adm inistrative D i spute Resolution Act, conf ers jurisdiction upon this court “to r ender judgm e nt on an action by

an interes t e d p arty objecting to a solicitation b y a Federal agency f or b ids or proposals f

or a proposed contract o r to a proposed awa r d o r t h e a w ard of a contract or any a lleged violation of statute or regulation in connection with a

procurem ent or a proposed procurem ent.” 2 8 U.S.C. § 1491(b)(1) (2012). An

“interested party ” is “an actual o r prospective bidder or of

f eror whose direct

econom ic interest would be af f ected by the award of the contract or by f ailure

to award the c ontract.” A m. Fed’n of Gov’t Emps. L ocal 1482 v. United States

, 258 F.3d 1294, 1302 (Fed. Cir. 2001).

20In exercising our bid protest jurisdiction, we adhere to the s tandards s et

f orth in section 706 of th e A d mi n i strative P rocedure Act (“APA”), which

m eans that we will vacate an agency ’s decision only if it i s “ a r b itrary

, capricious, an abuse of discretion, o r o t h e r w i s e not in accordance w ith the

law.” 5 U.S.C. § 706(2)(A) (2012). An agency ’s action would be considered “arbitrary a nd capricious if the agenc y h as relied on f actors which Congress

has not intended it t o consider, entirely f ailed to consider an im

portant a spect
of t he problem

, of

f ered an explanation f

or its decision that r

uns counter to the

evidence bef

ore the a gency , or is so im plausible that it could not be ascribed

to a d if f erence i n v i e w o r the product of agency expertise.” Motor Vehicle Mfrs. Ass’n of the U.S. v. State Farm Mut. Auto. Ins. Co.

, 463 U.S. 29

, 4 3 (1983). Thus, the a gency ’s action will be s et aside if it lacks a rational basis or if it involves a prejudicial violation of procedure. Impresa Construzioni Geom.

Domenico Garufi v. United States

, 2 38 F.3d 1324, 1332 (Fed. Cir. 2001).

Because this c ontract was awarded based on “best value,” t h e a g e n c y h as greater discretion than if the contract were t o be awarded on t he basis of price

alone. Galen Med. Assocs., Inc. v. U nited S tates

, 3 69 F.3d 1324, 1330 (Fed.

Cir. 2 004) (citing E.W

. Bliss Co. v United States

, 77 F.3d 445, 449 (Fed. Cir. 1996)). “The greater the discretion granted to a contracting of f icer, the m ore dif f icult it will b e t o p rove the d ecision was arbitrary and c apricious.” Burrough s C o r

p. v. United States

, 617 F.2d 590, 5 97 (Ct. Cl. 1980). Accordingly

, this court’s review s hould be “highly def e rential” to the agency ’s

determ ination. Femme Comp Inc. v. U nited States

, 83 Fed. Cl. 704, 726 (2008) (citing Advanced Data Concepts, I n c

. v. United States

, 216 F.3d 1054, 1058 (Fed. Cir. 2000)).

Plaintif f takes issue with EPA’s evaluations o f both ERG’s a nd Tetra

Tech’s proposals with r egard to Key Personnel, Past Perf orm ance, and Corporate Experien c e

. A c c o r d i n g t o p l a i n t i f f

, EPA’s evaluations of ERG’s and

Tetra Tech’s proposals were arbitrary and c apricious becau s e T e t ra T ech’s proposal objectively

dem onstrated superior t echnical qualif ications f or these

three f actors, y et E PA e va l u ated ERG’s proposal as technically superior.

Plaintif f argues that EPA conducted a n im proper technical evaluation of both

of f erors’ proposals by

(1) arbitrarily

assigning adjectival ratings to ERG and

Tetra Tech that d i d not correspond to the strengths and weaknesses identif ied

i n t h e r ecord; (2) apply ing unstated evaluation criteria f o r the PL-4 Progra m Manag e r position; (3) relaxing the RFP’s stated evaluation criteria; (4) ignoring that the Past Perf orm ance section of ERG’s proposal did not m eet the

RFP’s technical requirem ents f or Past Perf

o r ma nce; (5) disregarding E RG’s

lack of Corporate E xperi e nce; and (6) unreasonably evaluating ERG f or its

21Corporate M anagem e n t and Corporate Technical Experience. Plaintif f

contends t hat the agency ’s arbitrary and capricious actions r esulted in prejudice to Tetra T ech because it h a d a substantial chance o f receiving the

award but f

or the Agency ’s f

lawed e valuation. Plaintif f requests that the court

enter a p erm anent i njunction enjoining t he EPA f r om pro c e e d i ng with the

award to ERG.

I. Key Personnel

Regarding Key Personnel, plaintif f contends that ERG’s PL-4 Program Manager was arbitrarily rated “Good ” f o r h er technical qualif

ications and

“Outstan d i ng” f

or her m anagerial qualif

ications. First, Plaintif

f argues t hat

EPA’s evaluati o n o f the Program Manager position lacks a rational basis

because EPA a

pplied unstated evaluation criteria, nam ely

, whether the

of f erors’ proposed Program Managers dem onstrated an innovative approach.

Plaintif f notes that the word “innovation” is not included in the solicitation’s

evaluation criteria f

or the Pro g ram Manager position. Plaintif f contends t hat

use o f “ i nnovation” could not be inf erred f r om the stated e valuation criteria

and that it w as n o t s u b sum ed within the stated criteria despite m ultiple

appearances of the phrase w ithin the PW S. P laintif f notes that f

our o f the six

tim es that “innovation” appears i n the PW S it is not in the c ontext of requiring

the Program Manager to develop innovative approaches, but rather to com p ile

innovative w ork d one b y ot h e r s f o r the OW M program ’s benef it. Plaintif

f

asserts th a t t h e rem aining two m entions of “innovation” do not support a reasonable inf

erence that innovation was s ubsum ed within th e evaluation

criteria f or the technical qualif

ications of the Program Manager, and that, if it

was, it should

be lim ited to experience relevant to the specif ic PW S sections in which “innovation” appears.

P l a i n t i f f f urther believes that the TEP d isparately evaluated the t wo of f erors’ proposals by giving [ ] c r e d i t f o r being innovative while overlooking how T etra Tech dem onstrated [ ] ability to innovate in

i t s p roposal. Building of f its argum ent that use of innovation, if a l lowe d

,

s h o u l d b e lim ited, plaintif f asserts that [ ] lacked experience i n t h e sections of the PW S that expressly require innovation, underm ining t he T EP’s

use of t he criteria to bolster her rating. Plaintif f c o ntends that, unlike ERG, its Program Manager not only has experience in the sections of the PW S relevant

to innovation but al s o that its proposal dem onstrated [ ] ability to
innovate in those areas while discussing that e xperience. Specif i cally

, Tetra

Te c h ’ s p r o p o s a l i dentif i es num erous instances of [ ]

22innovations—nam ely

, his work as an author of Em erging Technologies f or
W a ste w a ter Treatm ent and In-Plant W e t W e a ther M anagem ent, his r ole as project m anager f

o r the W ater Environm ent Federation’s Green Inf r astructure

I m plem entation Task Force involving a m u lti-y ear ef

f ort f ocusing on t h e integration of innovative green inf rastructure practices, his m anagem ent role

in d eveloping regulations to im plem ent section 316(b ) o f t he CW A, a nd his participation in develop i n g a n ew wastewater t reatm ent g rant program

. Plaintif f concludes t hat EPA im

properly downgraded [ ] t o a “ Good” rating f or technical experience ba s e d on the u nstated criteria and EPA’s disregard f

or relevant inf

orm ation in Tetra Tech’s proposal.

Plaintif f f urther argues that

EPA im properly relaxed the solicitation’s

evaluation criteri a fo r t

he technical qualif

ications of ERG’s Program M anager. Specif i cally

, plaintif

f a sserts that ERG did not d em onstrate that it had t h e relevant e x p e r i ence and expertise to handle the technical and s cientif ic

r e quirem ents o f t he PW S. Plaintif f also believes that the source select i o n determ ination im

p roperly ignores ERG’s w eaknes s e s and contends—of ten rely ing on notes f

rom individual TEP m e mb e r s

— t h a t EPA took part in a

“ p a t t e r n of whitewashing” throughout the draf ting process that aim e d to

m inim ize those weaknesses. Pl.’s Mot. f or J. on the AR 23. Plaintif f also points out that the revised TEP consensus re p ort identif ied signif

icant

w e aknesses in [ ] technical qualif icatio n s , i n c l u d i n g t h a t s h e dem onstrated “a m isunderst a n d i n g of som e key term s and a poor understanding of the program .” AR 6490. According to plaintif f

, t h e s e weaknesses could not have reasonably resulted i n a “Good” rating, which is to
be a w a r d e d to proposals that “indicate[ ] a thorough approach and understanding o f the requirem ents.” AR 166. Rather, plaintif f claim s E RG’s

Pr o g r a m M a n ager deserved a score o f “Marginal” f or her technical qualif ications, m eaning that the proposal “has not d em onstrated an adequate

. . . understanding of the requirem ents.” Id

. In a ddition, plaintif f a rgues t hat [ ] should h ave been given a lower score f o r h er m anagerial qualif ications based o n her lack of experience m anaging contracts of a sim i lar size, ty p e , and scope as the PW S.

In def endant’s cross-m otion, it argues that plaintif f ’s argum ents regarding the E P A’s evaluation of the of f erors’ Program Managers am o unt to nothing m o re than m ere disagreem e n t s

. Intervenor also a rgues that Tetra

Tech’s reliance on i ndividual notes an d e a r l ier draf ts of the consensus TEP
report is inappropriate because the prior evaluations were superseded by the

revised consensus TEP report and that initial individual r atings, in any e vent,

23should be given li t t l e w eight. Throughout their argum ents, def e ndant and

intervenor rely heavily on the highly def erential standard this court applies

when reviewing decisions of procurem ent of

f icials and argue that the record

dem onstrates t hat the EPA’s decision was t h o r o ughly considered and wellsupported.

Def endant contends that the “Good” rati n g g i ven to T etra T ech’s Program Manager’ s t e c h nical qualif ications is supported by the record. T o begin with, def

endant argues that consideration of innovation and integration

with new ideas w as b o th expressly stated in the P WS and reasonably

considered given that innovation is inherently necessary to the w ork t o be perf orm ed. Thus, according to def endant, plaintif

f has f a iled to show that EPA

used a signif

icantly d i f

f e r e n t basis than the stated f actors w hen evaluating

Tetra Tech’s proposal, and theref ore i nnovation was correctly evaluated by the

T E P. Def

e ndant also b elieves that p laintif f ’s highlighting of instances in i t s proposal which show its capability f or i n n o v a t ion m erely c onstitute disagreem ent with the TEP’s f indings. Def

endant points out that the TEP

ultim ately f

ound that m any o f t h e p r o j ects outlined in the proposal “really

d e mo n s t r ated the technical expertise of o thers,” AR 6514, a nd that “the proposal does not dem onstrate this i n d ividual’s technical a bility f or i nnovation

or i ntegration wit h n e w ideas.” A R 6513. These f indings, def

endant argues, support EPA’s d ecision t o g i v e [ ] technical qualif ications a “ Good” rating.

De f

endant also argues t hat EPA reasonably assigned ERG’s Program Manager a “Good” rating f or her technical q ualif

i cations. According to
def endant, the decision was reasonably m ade and within the TEP’s discretion

of how weaknesses s h o u ld be weighed a nd w hether s trengths outweigh any weaknesses. Def

endant argues that the TEP also properly f ound, by citing to specif i c p o r t i o n s of the proposal, that [ ] had considerable education, expertise, a nd experience related to the technical requirem ents of the PW S t hat

would warrant the rati n g g i v e n

. Moreover, d ef endant stands by EPA’s decision

t o give [ ] a n “Outstanding” rating f o r her m anagerial qualif ication s

. Def endant argues t hat the solicitation lef t t o the d i scretion of the TEP the

determ ination of whether an of f erors’ prior contracts suf

f iciently covered the

technical r e quirem ents of t he PW S. D ef endant g oes on t o argue that the TEP properly u sed t his discretion in f inding that the m anagerial experience of f e red by [ ] was sim ilar to the size, ty pe, a n d m anagerial s cope of the

contract contem

plated by the PW S.

24W e b egin with plaintif f ’s contention t hat EPA arbitrarily eva l u a t e d

ERG’s Program Manager because it applied “ innovation and i ntegration with

new ideas” as an unstated evaluation criterion. Generally speaking, an agency

m ust evaluate an of

f e ror’s proposal based on t he criteria set o ut in the

solicitation. That s aid, we have also recognized that an agency still enjoy s “great discretion in determ ining the scope of a n evaluation f

actor. ” Forestry Surveys and Data v. U

nited States

, 44 Fed. C l. 493, 499 ( 1999). “ Indeed, it is

well-settled that ‘a solicitation need not identif y each elem ent to be considered by the agency d

uring the course of t he evaluation where s uch elem e nt is

intrinsic to t he stated f

actors.’” Banknote Corp. of Am., Inc. v. United States

, 56 Fed. C l. 377, 387 ( 2003) (quotin g A n a l ytical & Research Tech., Inc. v. United States

, 39 Fed. Cl. 34, 45 (1997). Thus, “[ w ]hen weighing the m e rits

of a proposal under a specif ic evaluation f

actor, an agency ‘ m ay consider all

m atters that of

f erors w ould reasonably have believed to be within t he scope of

the f actor.’” Forestry Surveys and D a t a , 5 6 F e d

. Cl. at 497 (quoting John

Cibinic Jr. & Ralph C. N ash Jr., Form ation of Governm ent Contracts 830 (3rd ed. 1998)).

W e h old that EPA properly cons i d e red the p roposed Program Managers’ ability to innovate while conducting its evaluation. To b egin w ith,

the soli c i t a tion directed the TEP to evaluate the Program M anager’s

dem onstrated technical qualif ications “with the ty

pe of technical requirem ents
covered by the P WS

. ” A R 164. The PW S m akes no less than six r ef erences

to i nnovation. W hile plaintif f is correct t hat several of t hese ref erences require

that the contractor com

pile exam p les of other’s innovative work f or the benef

it

of the OW M program rather than develop innovative approaches itself

, these

instances still show EPA’s f ocus o n innovation as an im p ortant consideration

within the PW S

. Moreover, the PW S specif ically calls f

or i nnovati v e s o l utions

and ideas f

rom the eventual awardee. Specif ically

, section 3 .3.15 of the PW S provides t h a t “ [ t]he contractor shall assess, analy ze, a nd recom m end

innovative and ef

f icient solutions f

or perm itting wet weather point sources,”

and s ection 3.5 provid e s t hat “[ t]he contractor shall provide support and

technical assistan c e in t he research and developm ent of n ew, innovative

perm itting tools and approaches.” AR 174, 178. Further, we h o l d t hat the

consideration of

innovation should not be lim i ted as plaintif

f argues because

it is inherent to the s cientif i c and technical nature of the work contem p lated in

the solicitation. For exam ple, as i ntervenor points out, supporting the issuance

of new regulations a n d d e v eloping new perm its necessarily requires som e elem e nt of

innovation. W e f

ind that a reasonable of

f eror should have k

nown

25that EPA would t ake into account a Program M a n a ger’s capacity f or innovation f

o r the ty pe of work solicited.

W e also f ind plaintif

f ’s disagreem ents with EPA’s rating of [ ] technical qualif

ications as “Good” u nava i l i n g

. The r evised

consensus TEP report states that Tetra Tech’s proposal “does not dem onstrate [ ] technical ability f or i nnovation o r integration with new ideas

or critical i ssues.” AR 6513. The r eport then lists f our s ections of the PW S as

e x am ples of areas to which its observation applies. 9 In essence, plaintif f responds to t he r eport by pointing to portions of its proposal that it f eels show [ ] ability f

or innovation. Plaintif

f ’s argum ents are a classic exam ple

of a disagreem ent with an a gency ’s e valuation. W e hold that plaintif f has not
shown that EPA was unreasonable in assigning [ ] a “Good” rating

f or technical qualif

ications.

Sim ilarly

, we are not persuaded that [ ] receiving a “ Good”

r a t ing f or her technical qualif

ications was irrational. Plaintif f urges that [ ] does not have the requisite NPDES experience to receive such a score. Plaintif f discusses at great l ength previous draf ts of the revised consensus TEP
report and i nitial evaluations p e r fo r m e d b y individual T EP m em bers that spoke

t o [ ] l im i ted experience in this area. W hile n ot irrelevant, th e s e earlier reports carry little weigh t i n t h e f a ce of the revised consensus TEP
report. See DM Petroleum Operations C o. v. United States

, 115 Fed. Cl. 305,

314 ( 2 1 0 4 ) (m entioning that “initial individual ratings of [ source evaluation board] m em

bers have ‘little bearing on [ a] protest ’ w h e n t h e [ source

e valuation board] reaches a consensus rating”) (quoting Tech Sys., I n c

. v

. Un i ted States

, 98 Fed. Cl. 228, 247-48 (2011)). Intervenor is correct that a

consensus evaluation p r o c e s s presum es t hat evaluators can and will change

the i r mi n d s

. In f

act, the “TEP procedures” provided to the TEP m em bers on April 14, 2016, instruct the TEP chair t o com p ile each m em

b e r ’ s individual analy sis and ensure that the com piled docum e nts are “display e d electronically during th e me e t i n g f

or the panel m em

b ers and c an b e m odif

i ed as the

consensus m e eting is c o n d u cted.” A R 2219. W i thout m ore, we reject plaintif f ’s bare a ssertion that the change in the TEP’s evaluations over tim e constituted a whitewash in order to award the contract to ERG.

9 W e note that o ne of the f o u r sections, NPDES Permitting Support (PW S section 3.5), is a section that e x plicitly seeks the development of “new, innovative permitting tools and approaches.” AR 178.

26The revised consen s u s T E P r e p o r t noted that [ ] was “lacking

knowledge and expertise in

. . . p rogram specif i c areas.” A R 6490. The TEP

went on to c o n clude, however, that “her strengths o utweighed t he cited

weaknesses in these areas.” AR 6490. Plain t i f f s i m p ly disagrees with the weight given to [ ] weaknesses by the TEP. Plain t i f f h as f ailed to
show that E PA’s evaluation of [ ] t echnica l q u a l i f i c a t i o n s was irrational. Accordingly , we will not set aside EPA’s evaluation.

II. Past Perf

o rm ance

Plaintif f argues that EPA’s past perf orm ance evaluation did not com ply

with the solicitation because it gave ERG a rating of “Substantial C onf idence”

without evaluating f

i ve contracts that were “sim i lar in t echnic a l s c o p e and

com plexity

, size, and ty

pe to that which is anticipated in this solicitation.” AR

164. In f act, according to plaintif

f

, none of the contracts i dentif ied b y E RG in

its proposal were sim ilar in size, ty pe, s co p e , a n d c om

plexity to the PW S.

Plaintif f believes that EPA is not o wed def erence w ith respect t o its

determ ination of which c ontracts were appropriate to ev a l u ate because the

contracts chosen “were so dissim ilar that they could not r e asonably or rationally be considered as a relevant indicator of successf ul perf orm ance of

the P W S.” Pl.’s Resp. 19. In its m otion, plaintif f included a f

our-page table

t h a t explained the reasons it f elt the past perf

o rm ance c ontracts were n o t
sim ilar in t echnical scope an d com plexity

, size and t y

pe to the solicitation.

Plaintif f insists t hat, given ERG’s lack of s im ilar past p erf orm ance, it should have been given a score of “Unknown Conf

idence (Neutral)” rather than the

“Substantial Conf

idence” score that it received.

De f endant counters that EPA’s Past Perf o rm ance r ating o f ERG was reasonable and within EPA’s discretion. Again, def endant and intervenor cast plaintif f ’s argum ents as m ere disagreem ents with EPA’s conclusions and n ote
that the RFP lef

t it to the discretion o f t he agency t o d e t e r mi n e whether the

of f ered contract ref

er e nces were sim ilar to that c o ntem plated by the R FP.

I n t e rvenor f

u rther a rgues t hat Tetra Tech cannot show prejudice because i t s proposal would a lso f

all victim to the n arrow view of “ s im ilar” that it

dem ands. For exam

ple, intervenor argues t hat p laintif f “ never e x plains what

rule of interpretation would require E PA to reject an ERG contract[ ] worth $ 11

m illion as too dissim ilar i n size, but accept as sim ilar Tetra Tech’s $15 m illion

ref erence.” Int.’s Reply

12.

27Plaintif f ’s prim ary objection with the “Substantial Conf idence” rating given to ERG r e l ates t o t he contracts that the TEP selected to evaluate in its

revised consensus TEP report. A s with other technical f actors, “ [ e ]valuation

of past p erf

orm ance i s ‘within the discretion of the contracting agency and will

not be disturbed unless it is unreasonable or inconsistent with the term s of the

solicitation or applicable statutes or regulations.’” F ort C arson S upport S ervs.

v. U nited States

, 71 Fed. Cl. 571 ( 2 0 06) (quoting Consol. Eng’g Servs. v. United States

, 6 4 F e d

. Cl. 617, 637 (2005)). W e agree with def endant and

intervenor that C O Mills acted within her discretion in selecting the contracts

to be evaluated i n order to determ ine Past Perf orm ance ratings f

or both

of f erors. CO Mills provided an e x p l a n a t i o n f or the selection of each of the

nine contracts evaluated f or E RG. She also received input f rom the TEP

related to the T EP’s p erspective on the scope and com plexity of the contracts
identif ied in ERG’s proposal. Plaintif f asks u s t o substitute its narrow view of

which contracts are “sim i lar in technical scope a nd c om plexity

, size, and ty

pe

to that which is a nticipat e d i n [ t h e ] s olicitation” f or that of CO Mills (as

f urther i nf orm ed by the TEP). AR 164. W e ref use to do so. Plaintif

f h as f ailed

to show that CO Mills abused her discretion in selecti n g t h e contracts to be

evaluated or assigning ERG a P a s t P e r f orm ance rating of “Substantial

Conf idence.”

III. Corporate Experience

Plaintif f takes issu e w i t h ERG’s “Outstanding” rating f or both Corporate Technical Experience and Corporate Manage me n t Experience. Sp e c i f i c a lly

, f or Corporate Technical Experience, plaintif f argues that the

revised TEP r eport f

ailed to ev a l u ate o r e ven m ention whether contracts
identif ied i n ERG’s p r o p o s al were of “sim ilar size (as m easured by dollar

value and level-of

-ef f ort), c ontract ty

pe, and technical scope as that specif ied

in [ the] solicitation.” AR 164. Plaintif f argues t hat had EPA done so, it w ould

not have been able to g i ve ERG an “Outstanding” rating because the contracts
in its proposal were not reasona b l y s i m i l a r. Along the sam e lines, f or Corporate Managem ent E xperience, p laintif f argues that E P A f

a iled to

exam ine individually whether E RG’s prof f ered prior c o n t

r a c t s w e r e “ o f s i m i l a

r size (dollar am ount), ty

pe (C P F F

, m

u lti t ask), and technical c om plexity and

scope to t hat specif

ied in [ the] solicitation.” AR 164. Rather, plaintif f argues that EPA sim

ply copied and pasted f

rom ERG’s proposal that it [

] C o mpare AR 6505

with A R 5 122. Again, p laintif f believes that had EPA exam ined the individual

contracts, it would have f ound that t he contracts were not suf f i ciently sim i lar

28an d been unable to rate ERG’s Corporate M anagem ent E x perience as

“Outstanding.”

Plaintif f f urther argues t h a t i t was unreasonably inconsistent f o r EPA

to give ERG an “ Outstanding” rating f or Corporate Managem ent Experience,

while also f

inding that ERG’s o ne w e akness was its lim ited m anagem ent experience with “am ending, developing, and im plem enting NPDES perm its,

other than Vessel Gener a l P e r mi t

. ” AR 6505. Plaintif f argues t hat this is especially signif

icant because the TEP, while discussing Past Perf orm ance, identif ied p erm itting activities as “the cornerstone of the PW S.” AR 6498.

Pl a i n t i f f a s s e r t s t h a t EPA’s “Outstanding” rating was irrational because the one identif ied weakness is such an im p ortant aspect of the contract contem plated

in the solicitation.

Def endant again argues t hat p laintif f ’s concerns with respect t o the Corporate Experience ratings are nothing m ore than plaintif f ’s disagreem ent
with E PA’s evaluation. Def endant asserts that, as with Past Perf orm ance, EPA

has di s c r e t i o n to determ ine what constituted a sim i lar contract. Def endant

f urther argues t hat EPA considered ERG’s experience in “f ulf illing the

technical requirem ents of contra c t s o f a sim ilar size, ty pe and scope to t hat

contem plated by the solicitation because when discussing ERG’s experience

in relation to the PW S categories, the EPA cited to sections in ERG’s proposal

docum enting ERG’s work on relevant contracts.” Def .’s Mot. f or J

. on the AR

46.

W e hold that the TEP acted within its discretion when it se l e c t ed

contracts to evaluate in order to judge b oth E RG’s a nd Tetra Tech’s Corporate

Technical and Managerial Exp e r i ence. W e will begin with the sim i lar

argum ents plaintif

f ma k e s f

or both Corporate Technical a nd Corporate

Man a gem e nt E xperience—nam ely

, t hat the TEP f ailed to properly exam ine

whether the contracts it was evaluating f o r t h e s e f actors conf

orm ed to the description o f accepta b l e contract r ef erences f rom t he s olicitation. These

argum ents, again, am ount to n othing m ore than p laintif f ’ s disagreem ent with

EPA’s choice of relevant contract ref erences. M oreover, f

or the T EP’s

evalua t i o n of ERG’s Corporate Technical Experience, the TEP provided a lengthy list of strengths, organized by PW S category

, that ERG d em onstrated.

The TEP ultim ately concluded that ERG’s “overall p ackage is outstanding and

seem s to provide som e opportunities f or the N PDES program to expand and/or
get a f resh perspective on s om e parts of the program .” A R 6504. P laintif f h as

29not shown the TEP’s e valuation o f ERG’s C orporate Technical Experience to

be arbitrary

and capricious or an abuse of its discretion.

Sim ilarly

, with respect t o the contract ref erences chosen by the TEP to
evaluate ERG’s Corporate Managem ent Experience, we hold t hat EPA acted

within its discretion. A gain, the solicitation l ef t the d e t e r m ination o f what

contracts were s uf

f iciently si m i lar to the EPA’s discretion. Plaintif f has not
shown that the T EP’s selection of c ontract ref erences was irrational. In the

revised consensus TEP report, the TEP spoke generally when discussing both

ERG’s and Tetra Tech’s Corporate Managem ent E xperience. T he TEP f ound

th a t E RG’s p roposal dem o nstrated a “wide v ariety of s uccessf ully m anaged projects, well within the s ize, s cope and com plexity o f [ t he] PW S.” AR 6505-

06.

The TEP acknowledged weaknesses in both of f eror’s proposals f

or this
category and rated both of f eror’s Corporate Managem ent Experience as “Outstanding.” Plaintif

f ’ s argum ent that the weakness the T EP identif ied f or ERG does not rationally com port with an “Outstanding” rating f or t his f actor
is u na v a iling. As discussed above, agency ’ s have broad discretion to weigh

an of f eror’s strengths and weaknesses as it sees f it. W hile reasonable m inds

m ay dif f er as to ERG’s Corporate Managem ent Experience rat i n g , p l aintif f h as f ailed to show that EPA acted irrationally

. T h u s w e h old t hat the T EP’s

“ Outstanding” rating f

or ERG’s Corporate M anagem ent E xperience w a s reasonable and supported by the record. Moreover, as i ntervenor argues, plaintif f f ails to show how it was prejudiced by the alleged relaxation of the

evaluation criteria b ecause, if such a relaxation occurred, it b enef itted along

with ERG.

W e have considered plaintif f ’s other argum ents in support of its m otion

f or judgm e n t o n t he adm inistrative record a nd f ind them unavailing.

CONCLUSION

Plaintif f has f a iled to show success o n the m erits. Thus we need not
consider the o t

h e r fa c t o r s fo r i njunctive r elief

. Accordingly

, we deny plaintif f ’s

mo t i on f or judgm ent on the adm inistrative record and grant def endant ’ s a n d

intervenor’s cross-m o tions f or judgm ent on the a d m inistrativ e r e c o r d. The

Clerk’s of

f ice is directed to enter judgm ent f or def e ndant. No costs.

30s/ Eric G. Bruggink

ERIC G. BRUGGINK Senior Judge

31