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ICE Contract Unsuccessfully Challenged

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Metropolitan Interpreters and Translators, Inc (MIT) filed a bid protest in the Court of Federal Claims (COFC) to challenge an award of a contract that went to MVM, Inc. The contract was to provide translating services to the United States Immigration and Customs Enforcement agency (ICE). Cross-motions for judgment and motion to strike by the United States, representing ICE, was heard by COFC with the protest denied.

Translation Services Contract

MIT and MVM competed for a contract issued in 2017 by ICE for translation, transcription, and interpretation services. According to the performance work statement (PWS), the contractor was responsible for providing all personnel and necessary equipment, transportation, security clearance, and background investigation verification necessary to perform the job. The contract was to be awarded to the bidder that “conforms to the solicitation and represents the best overall value to the Government.” The evaluation factors which bidders were judged upon were technical approach, management approach, past performance and experience, and price.

MIT and MVM Evaluation

The agency’s evaluation found both MIT and MVM both strong candidates for the contract. A technical evaluation team report found neither of the two candidates posed any weaknesses, deficiencies, or risks. The technical evaluation report found either MVM or MIT would be able to perform the contract adequately. In the report, MIT was described as having “exceptional understanding of the Governments’ goals and objectives, as well as having “significant strengths within their proposal” that would benefit the Government if selected. MVM technical evaluation was nearly identical to MIT’s positive evaluation. The prices quoted by both contractors were within the guidelines proposed by the General Services Administration (GSA). Both were “fair and reasonable” and were discounted from the GSA Schedule rates. SSA also held that both MVM and MIT “proposed features that exceed the government’s requirements.” Though the contractors were well qualified and quoted similar offers, the government found it to be in the best interest to award the contract to MVM.

Bid Protest Review

According to 5 U.S.C. § 706(2)(A), when reviewing a bid protest, a court is required to set aside the agency action if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance of law.” This is determined in two steps. The court determines whether the agency’s action was arbitrary, capricious, or abuse of discretion. This occurs when there is no connection between the facts and the choice made. The second step is to determine whether the court’s error was prejudicial. To establish prejudice, MIT would need to show “there was a substantial chance it would have received the contract but for that error.”

MIT’s Arguments

MIT argued the agency should have rejected MVM’s quote. It stated that sections of MVM’s technical quote that are in smaller font size had no identifying label. MIT asserted that had MVM used 12-point font and complied with the instructions from the Request for Quotation (RFM), the quote would have exceeded the page limit of 35 pages. The United States argued that evaluators use their broad discretion to determine whether applicants meet the formatting requirements and did so accepting the quote.

MIT asserted its technical evaluation was unfairly evaluated. It insisted the SSA ignored that MIT’s translation service centers are located throughout the country exceeding the RFQ requirements. The COFC however noted the SSA did evaluate the Plaintiff’s ability to reduce costs from its multiple locations but disagreed that the potential reduction in costs was worth paying Plaintiff’s premium price.

MIT accused SSA or being arbitrary and capricious in nature. It argued that its network of locations was not given the same credit that MVM’s potential future locations were. The Court however stated the SSA noted the effect of multiple transcription centers on both proposals the same. The Court concluded that the record indicated both contractors were treated equally. MIT claimed the SSA’ technical approach evaluation was irrational for not assessing MVM’s ability to staff and provide all required services. It concluded its arguments by stating that ICE failed to “recognize the technical superiority of Metro’s ability.”

Holding

The US. Court of Federal Appeals stated that it does not review an agency’s award decision. It is prohibited from substituting its opinion for that of the agency. The Court also noted that a Plaintiff’s disagreement with an agency’s discretionary judgment does not make the award to a different party irrational. MIT made many other arguments why it was unfairly evaluated and why it disagreed with SSA’s analysis, but the Court held that that these arguments were insufficient to render the agency’s evaluation as arbitrary, capricious, or irrational.

The Court of Federal Claims held the Source Selection Authority’s (SSA) evaluation of the unsuccessful bidder’s management approach was not arbitrary and capricious, and ICE’s evaluation of the total price of proposals for translation services was permissible under Federal Acquisition Regulations.

It is not uncommon for companies that fail to acquire government contracts to challenge decisions made by government agencies. Many of these contracts that bidders apply for are worth millions of dollars that can sustain their business in the long run. If you intend to bid for a government contract or have concerns about a contract that was awarded to you, contact the attorneys at Whitcomb Selinsky PC at (866) 476-4558.

About the AuthorRaymundo Ribota

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