IN THE UNITED STATES COURT OF FEDERAL CLAIMS BID PROTEST

Transcription

1 Case 1:15-cv SGB Document 27-2 Filed 11/17/15 Page 1 of 32 IN THE UNITED STATES COURT OF FEDERAL CLAIMS BID PROTEST Number C Judge Susan G. Braden OCTO CONSULTING GROUP, INC., Plaintiff, v. THE UNITED STATES, Defendant, and BOOZ ALLEN HAMILTON INC., Defendant-Intervenor. PLAINTIFF S BRIEF IN SUPPORT OF RESPONSE TO CROSS-MOTIONS FOR JUDGMENT ON THE ADMINISTRATIVE RECORD AND REPLY TO RESPONSE TO MOTION FOR JUDGMENT ON THE ADMINISTRATIVE RECORD Cyrus E. Phillips IV, Attorney of record for Plaintiff, Octo Consulting Group, Inc. REDACTED VERSION

2 Case 1:15-cv SGB Document 27-2 Filed 11/17/15 Page 2 of 32 TABLE OF CONTENTS TABLE OF AUTHORITIES ii-iii STATEMENT OF THE CASE ARGUMENT I. THE AGENCY S FAILURE TO EVALUATE QUOTERS README TEXT FILES AS PUBLICLY-ANNOUNCED IS A PER SE VIOLATION OF PROCUREMENT LAW AND IS ARBITRARY, CAPRICIOUS, AND UNREASONABLE II. POST HOC RATIONALIZATIONS MUST BE ABJURED III. A PERMANENT INJUNCTION IS WARRANTED CONCLUSION CERTIFICATE OF SERVICE i -

3 Case 1:15-cv SGB Document 27-2 Filed 11/17/15 Page 3 of 32 TABLE OF AUTHORITIES STATUTES 5 U.S.C. 706(2)(A) , 26 5 U.S.C. 706(2)(D) , U.S.C. 1491(b)(4) , 26 REGULATIONS Federal Acquisition Regulation , Blanket Purchase Agreements (BPAs), 48 C.F.R. Ch.1 ( Edition) Federal Acquisition Regulation (a)(3)(i), Blanket Purchase Agreements (BPAs) Establishment, 48 C.F.R. Ch.1 ( Edition) Federal Acquisition Regulation (b)(2), Blanket Purchase Agreements (BPAs) Competitive Procedures, 48 C.F.R. Ch.1 ( Edition) Federal Acquisition Regulation (b)(2)(iii), Blanket Purchase Agreements (BPAs) Competitive Procedures, 48 C.F.R. Ch.1 ( Edition) Federal Acquisition Regulation (b)(2)(vi), Blanket Purchase Agreements (BPAs) Competitive Procedures, 48 C.F.R. Ch.1 ( Edition) , 20, 21, 26 - ii -

4 Case 1:15-cv SGB Document 27-2 Filed 11/17/15 Page 4 of 32 CASES Caddell Construction Co. v. United States, 111 Fed. Cl. 49 (2013) Impresa Construzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324 (Fed. Cir. 2001) Overstreet Electric Co. v. United States, 47 Fed. Cl. 728 (2000) PGBA, LLC v. United States, 389 F.3d 1219 (Fed. Cir. 2004) Parcel 49C Limited Partnership v. United States, 31 F.3d 1147 (Fed. Cir. 1994) Red River Holdings, LLC v. United States, 87 Fed. Cl. 768 (2009) Reilly s Wholesale Produce v. United States, 73 Fed. Cl. 705 (2006) SKF USA, Inc. v. United States, 254 F.3d 1022 (Fed. Cir. 2001) Terex Corp. v. United States, 104 Fed. Cl. 525 (2012) USfalcon, Inc. v. United States, 92 Fed. Cl. 436 (2010) iii -

5 Case 1:15-cv SGB Document 27-2 Filed 11/17/15 Page 5 of 32 PLAINTIFF S BRIEF IN SUPPORT OF PLAINTIFF S RESPONSE TO CROSS-MOTIONS FOR JUDGMENT ON THE ADMINISTRATIVE RECORD AND REPLY TO RESPONSE TO MOTION FOR JUDGMENT ON THE ADMINISTRATIVE RECORD STATEMENT OF THE CASE THE PUBLICLY-ANNOUNCED PASS/FAIL REVIEW/EVALUATION OF ALL CRITERIA. The terms of Request for Quotations (RFQ) Number 4QTFHS confirm the Agency s Pass/Fail compliance review/technical evaluation of all listed criteria: 1.2 Quote Submission: Quotes will only be accepted via GSA ebuy in accordance with the instructions set forth in this RFQ. Quotes submitted must comply with all instructions and requirements set forth in the RFQ. Quoters shall complete the Agile Delivery Services RFQ Compliance Review Checklist Google form in its entirety before the RFQ Closing Date. Compliance Review will be a pass/fail factor and a quote failing to complete the Google form in its entirety or comply with the RFQ will be deemed failing to assent to material terms of the solicitation and will be eliminated from consideration. The quoter shall submit the following documents:.... C. Technical Approach: Quoters shall conform to the requirements outlined in Section 24 A Non-Price Factors, Factor 1: Technical Approach. (The proposed offer which includes the prototypes shall be preserved without modification at least 30 calendar days after award)

6 Case 1:15-cv SGB Document 27-2 Filed 11/17/15 Page 6 of Compliance Review The quoter shall complete the following fields on the Agile Delivery Services RFQ Compliance Review Checklist Google form submitted..... M. Pool Three Full Stack (comprised of design and development) Submitted a working design and development prototype using datasets from and used Application Programming Interface (API) to a publicly-accessible version control repository (e.g. GitHub, BitBucket) that supports git. (Note: Posting a repository in a different version control system will not be accepted) N. Pool Three Full Stack (comprised of design and development) Provide a URL [Uniform Resource Locator] to the working design and development prototype.... Q. Submitted Attachment E Approach Criteria Evidence As part of the technical approach submission the quoters shall comply with the following for all pools:.... D. The quoter shall completely fill out Attachment E (spreadsheet), Approach Criteria Evidence, included in the RFQ for each pool (e.g., Pool One Design) that it is quoting on, respectively thereby providing evidence that the pool-specific criteria have been completely met

7 Case 1:15-cv SGB Document 27-2 Filed 11/17/15 Page 7 of 32 Attachment E was a listing of specific criteria, and each Quoter s README text file was, on a Pass/Fail basis, to evidence compliance with all. As an example, one of the criteria required that each Quoter s README text file demonstrate the Quoter had deploy[ed] their software in a container (i.e., used operating-system level virtualization). Counter-Statement of Facts, Number 1. Section 24.0 of RFQ Number 4QTFHS set out specific criteria, elsewhere also listed in Attachment E, including limiting the word count of each Quoter s README text file for Pool Three (Design and Development) to 1,500 words: A. NON-PRICE FACTORS: Factor 1: Technical Approach: Quoters are required to submit a working prototype for each Pool it s submitting a quote for Pool One Design, Pool Two Development, and/or Pool Three Full Stack which consists of both design and development, using the openfda ( dataset and Application Programming Interface (API) which demonstrates its agile delivery capabilities. The quoter s proposed mix of labor categories and level of effort for its working prototype, as reflected in Attachment C, shall be evaluated to assess the quoter s understanding and capability to supply Agile Delivery Services. The submission of the working prototype serves as a sample task that GSA believes is representative of the type of task orders that may be issued against the BPAs. Demonstration of their agile capabilities shall consist of the following:.... Pool Three Full Stack: - 3 -

8 Case 1:15-cv SGB Document 27-2 Filed 11/17/15 Page 8 of 32 Description: Write a brief description, no greater than 1500 words, of the approach used to create the working prototype and place this description in the README.md file located in the root directory of your repository. Pool Three: the Full Stack Pool: In addition to the Description, above, the quoter must demonstrate that they followed the U.S. Digital Services Playbook [ cio.gov/, last visited September 11 th, 2015] by providing evidence in the repository. The README.md file should also make reference to the following for Pool Three Full Stack: a. assigned one leader and gave that person authority and responsibility and held that person accountable for the quality of the prototype submitted. b. assembled a multidisciplinary and collaborative team that includes at a minimum five of the labor categories limited to the Design Pool, Development Pool categories to the full stack (i.e., Design and Development) as quoted in Attachment C. The quoter s proposed mix of labor categories and level of effort for its working prototype, as reflected in Attachment C, shall be evaluated to assess the quoter s understanding and capability to supply agile delivery services. c. Understand what people need, by including people in the prototype development and design process d. Used at least three human-centered design techniques or tools e. Created or used a design style guide and/or a pattern library f. Performed usability tests with people g. used an iterative approach, where feedback informed subsequent work or versions of the prototype h. created a prototype that works on multiple devices, and presents a responsive design i. used at least five modern and open-source technologies, regardless of architectural layer (frontend, backend, etc.) j. deployed the prototype on an Infrastructure as a Service (Iaas) or Platform as Service (Paas) provider, and indicated which provider they used. k. wrote unit tests for their code - 4 -

9 Case 1:15-cv SGB Document 27-2 Filed 11/17/15 Page 9 of 32 l. setup or used a continuous integration system to automate the running of tests and continuously deployed their code to their IaaS or PaaS provider. m. setup or used configuration management n. setup or used continuous monitoring o. deploy their software in a container (i.e., utilized operating-system-level virtualization) p. provided sufficient documentation to install and run their prototype on another machine q. prototype and underlying platforms used to create and run the prototype are openly licensed and free of charge Counter-Statement of Facts, Number 2. THE UNDISCLOSED EVALUATION FACTOR. The Agency proceeded with an undisclosed Evaluation Factor: rather than a Pass/Fail review/evaluation of all listed criteria, there would be set out in Attachment E. The 1,500-word count limitation was also a criterion. This admonition was ignored. Counter-Statement of Facts, Number 3. These. These forms provided: - 5 -

10 Case 1:15-cv SGB Document 27-2 Filed 11/17/15 Page 10 of

11 Case 1:15-cv SGB Document 27-2 Filed 11/17/15 Page 11 of 32 Counter-Statement of Facts, Number 4. The Agency s evaluation team found that Offerors had submitted Quotations meeting criteria set out in RFQ Number 4QTFHS These Quotations they rated as Exceptional. But - 7 -

12 Case 1:15-cv SGB Document 27-2 Filed 11/17/15 Page 12 of 32 not all met all criteria set out in RFQ Number 4QTFHS150004, this the requirement which was publicly-announced. Counter-Statement of Facts, Number 5. Among the lowest-priced Quotations rated as Exceptional, the Agency s evaluation team recognized. The Agency s evaluation team decided that. The Agency s evaluation team decided that. Counter-Statement of Facts, Number 6. The Agency s evaluation team decided that NCI Information Systems, Incorporated s (NCI s) README. Counter-Statement of Facts, Number 7. The Agency s evaluation team decided that TrueTandem LLC s (TrueTandem s) README text file. Counter-Statement of Facts, Number

13 Case 1:15-cv SGB Document 27-2 Filed 11/17/15 Page 13 of 32 Among the lowest-priced Quotations rated as Exceptional, the Agency s evaluation team missed other instances in which README text files did not evidence within compliance with all the specific criteria set out in Attachment E, specific criteria then repeated in Section 24.0 of RFQ Number 4QTFHS150004: Acumen a. Quoters were to assign one leader, give that person authority and responsibility, and hold that person accountable for the quality of the prototype. Acumen named three people, not one person, responsible for the prototype. b. Quoters were to use an iterative approach, where feedback informed subsequent work or versions of the prototype. Acumen s README text file mentions the use of Scrum, iterative agile software development, Wikipedia, The Free Encyclopedia, Scrum_(software_development), last visited October 12 th, 2015, but otherwise says nothing about requirements churn and iterative delivery. c. Acumen s README text file did not say that Acumen, as required, deployed its software prototype in a container (i.e., used operating-system level virtualization)

14 Case 1:15-cv SGB Document 27-2 Filed 11/17/15 Page 14 of 32 NCI a. NCI s README text file did not demonstrate, as required, that NCI included people in the prototype development and design process. b. NCI s README text file did not demonstrate, as required, that NCI used at least three human-centered design techniques or tools. c. NCI s README text file did not demonstrate, as required, that NCI created or used a design style guide and/or a pattern library. d. NCI s README text file did not demonstrate, as required, that NCI performed usability tests with people. PriceWaterhouseCoopers, LLP (PWC) PWC submitted two, not one as required, README text files. These files were not duplicates they contained different text one was titled README-approach.md and the other was titled README.md

15 Case 1:15-cv SGB Document 27-2 Filed 11/17/15 Page 15 of 32 TrueTandem a. TrueTandem s README text file did not demonstrate, as required, that TrueTandem included people in the prototype development and design process. b. TrueTandem s README text file did not demonstrate, as required, that TrueTandem used at least three human-centered design techniques or tools. c. TrueTandem s README text file did not demonstrate, as required, that TrueTandem created or used a design style guide and/or a pattern library. d. TrueTandem s README text file did not demonstrate, as required, that TrueTandem set up or used continuous monitoring. e. TrueTandem s README text file did not say that TrueTandem, as required, deployed its software prototype in a container (i.e., used operating-system level virtualization). Counter-Statement of Facts, Number 9. Octo Consulting s Quotation was rated by the Agency s evaluation team. The Agency s evaluation team concluded that Octo Consulting s Quotation set out in RFQ Number 4QTFHS150004, this the requirement publicly-announced. Counter-Statement of Facts, Number

16 Case 1:15-cv SGB Document 27-2 Filed 11/17/15 Page 16 of 32 THE PUBLISHED QUESTIONS AND ANSWERS. The Agency published Questions and Answers which confirmed that a Pass/Fail review/evaluation would be conducted for compliance with all criteria set out in RFQ Number 4QTFHS These Questions and Answers were provided to Offerors before the date set for submission of Quotations: 19. Question: RFP, README.MD File - If Attachment E requires evidence of achieving each criteria, how is the README file different in that Attachment E will also illustrate the quoter s approach? Answer: The Attachment E should point to evidence for each of the criteria that is listed in the README file. You can provide a reference to the repository or URL that takes you to the evidence that s in the README file Question: Is attachment E intended as a method of submitting references that provide evidence that a quoter demonstrated they followed the U.S. Digital Services Playbook? Answer: Attachment E is intended for the Offeror to submit evidence to the criteria listed in Section 24.0 Factor 1: Technical Approach Question: What type of responses should be provided to demonstrate approach criteria is being met? Is this a Yes/No, a reference to an artifact in the repository or something else? Criteria - assigned one leader, gave that person authority and responsibility and held that person accountable for the quality of the prototype submitted. Evidence #1 {required}

17 Case 1:15-cv SGB Document 27-2 Filed 11/17/15 Page 17 of 32 Answer: Evidence of each criteria must be included in the git repository and referenced in the README.md file. Counter-Statement of Facts, Number 11. THE AWARDS. The Agency s Contracting Officer concluded, of RFQ Number 4QTFHS150004, that only of Quotations received had failed the Pass/Fail Compliance Review. of these failed Quotations. Counter-Statement of Facts, Number 12. Of the remaining Quotations, were rated Exceptional, were rated Acceptable, and were rated Non-Acceptable. Quotations rated Exceptional for Technical Approach were then reviewed for mapping of quoted labor categories with each Quoter s published labor category descriptions for the support services offered in each

18 Case 1:15-cv SGB Document 27-2 Filed 11/17/15 Page 18 of 32 Quoter s GSA Information Technology Schedule 70 Multiple-Award Contract. Initially, Quoters did not meet this requirement; one of these Quoters later established that it met the mapping and an additional Award was made to this Quoter. Counter-Statement of Facts, Number 13. Price alone was the deciding factor among the Quotations rated Exceptional for Technical Approach, the Contracting Officer having effectively abandoned the Pass/Fail Compliance Review announced by the terms of RFQ Number 4QTFHS and in its place adopting an unannounced qualitative evaluation of the Offerors README text files which counted only the number of criteria attained and there reported. Prices spanning from the lowest evaluated Price for a Quotation rated Exceptional for Technical Approach through $49, produced sixteen Blanket Purchase Agreements (BPAs), and this number the Contracting Officer decided. Counter-Statement of Facts, Number 14. The Contracting Officer considered a :

19 Case 1:15-cv SGB Document 27-2 Filed 11/17/15 Page 19 of 32 Counter-Statement of Facts, Number 15. Acumen, NCI, PWC, and TrueTandem were among the sixteen original Awardees. The Contracting Officer ignored these Quoters README text files non-compliances with the publiclyannounced Pass/Fail review/evaluation of all listed criteria. Acumen s Quotation was. The Contracting Officer abandoned the announced Pass/Fail re

20 Case 1:15-cv SGB Document 27-2 Filed 11/17/15 Page 20 of 32 view/evaluation and ignored Federal Acquisition Regulation (FAR) (b)(2)(vi) which required that the Agency shall ensure all quotes received are fairly considered and award is made in accordance with the basis for selection in the RFQ. Counter-Statement of Facts, Number 16. Octo Consulting s sample task was Priced at. Counter-Statement of Facts Number 17. ARGUMENT I. This Agency s Failure To Evaluate Quoters README Text Files As Publicly-Announced Is a Per Se Violation Of Procurement Law And Is Arbitrary, Capricious, And Unreasonable. Here there are two instances where the Agency departed from its plans for rating the Quotations the first departure was from the publicly-announced Pass/Fail review/evaluation of all listed criteria, this confirmed in the published Questions and Answers released before the date for submission of Quotations, and the second departure was from an. These departures have different consequences. Octo Consulting gains nothing by the Agency s departure from its internal determination:

21 Case 1:15-cv SGB Document 27-2 Filed 11/17/15 Page 21 of 32 As the ratings used in the technical evaluation of each offeror s proposal, and their definitions, were provided in the SSEP rather than the Solicitation, a consideration of the relevance of a source selection plan to our Court s review is in order. As the government notes, see Def. s Br. at 33-34, our Court has acknowledged the long-standing rule of the GAO that source selection plans generally do not give outside parties any rights. Man- Tech Telecomms. & Info. Sys. Corp. v. United States, 49 Fed. Cl. 57, 67 (2001). The rule traces back to a decision in which the GAO analogized such plans to directives and other internal agency regulations, and found that failure to comply with such an internal instruction was no basis for questioning the validity of [an] award since an internal agency guideline does not have the force and effect of law. Robert E. Derecktor of R.I., Inc., 84-1 CPD 140, 1984 WL 43785, at *4 (Comp. Gen. Feb. 2, 1984). Thus, unlike the treatment of a statute, the prejudicial violation of a source selection plan is not, per se, a ground for a protest. Since the agency is free to change or waive its internal policies, under the GAO approach agencies are permitted to deviate from their stated evaluation plans so long as the agency s evaluation is reasonable. Textron Marine Sys., 91-2 CPD 162, 1991 U.S. Comp. Gen. LEXIS 967, at *9 n.3 (Comp. Gen. Aug. 19, 1991).... USfalcon, Inc. v. United States, 92 Fed. Cl. 436, 452 (2010). Not the same for the departure from the publicly-announced Pass/Fail review/evaluation of all listed criteria, this confirmed in the published Questions and Answers: As the court in Ashbritt, Inc. v. United States explained in enjoining an agency award for failure to follow the terms of the Solicitation: It is a fundamental tenet of procurement law that proposals must be evaluated in accordance with the terms of the solicitation. FAR (a) provides that, [a]n agency shall evaluate competitive proposals and then assess their relative

22 Case 1:15-cv SGB Document 27-2 Filed 11/17/15 Page 22 of 32 qualities solely on the factors and subfactors specified in the solicitation. See also Hunt Bldg. Co. v. United States, 61 Fed. Cl. 243, 273 (2004) ( The agency s failure to follow its own selection process embodied in the Solicitation is... a prejudicial violation of a procurement procedure established for the benefit of offerors. ); Banknote, 56 Fed. Cl. at 386 ( It is hornbook law that agencies must evaluate proposals and make awards based on the criteria stated in the solicitation. ); ITT Fed. Servs. Corp. v. United States, 45 Fed. Cl. 174, 194 (1999) (citations omitted) ( [A] contract award may not be upheld when the [source selection authority] improperly departs from [the] stated evaluation criteria in a solicitation. ). No C, 87 Fed. Cl. 344, 2009 U.S. Claims LEXIS 227, 2009 WL , at *27 (Fed. Cl. June 15, 2009). The court in L-3 Communications Eotech, Inc. v. United States, 83 Fed. Cl. 643, 653 (2008) similarly explained: Technical evaluations should be consistent with the factors, subfactors and procedures outlined in the solicitation. See FAR (a), 48 C.F.R (a) (2007) ( An agency shall evaluate competitive proposals and then assess their relative qualities solely on the factors and subfactors specified in the solicitation. ); see also Dubinsky v. United States, 43 Fed. Cl. 243, 267 n.56 (1999) (noting that FAR (a) does not grant contracting officers carte blanche to notify offerors of one rating system in the RFP and to then apply a different system during the evaluation of proposals ) (citations omitted); Kilgore Corp., B , B , B , 93-2 CPD 220, 1993 U.S. Comp. Gen. LEXIS 932 (Comp. Gen. Oct. 13, 1993) ( While procuring agencies have broad discretion in determining the evaluation plan they will use, they do not have the discretion to announce in the solicitation that one plan will be used and then follow another in the actual evaluation. ) (citation omitted); Arltec Hotel Group, B , 84-1 CPD 381, 1984 U.S. Comp. Gen. LEXIS 1334, 1984 WL (Comp. Gen

23 Case 1:15-cv SGB Document 27-2 Filed 11/17/15 Page 23 of 32 Apr. 4, 1984) ( Consequently, it is improper for an agency to depart in any material way from the evaluation plan described in the solicitation without informing the offerors and giving them an opportunity to structure their proposals with the new evaluation scheme in mind. ) (citation omitted). When the evaluation of proposals materially deviates from the evaluation scheme described in the solicitation, the agency s failure to follow the described plan may constitute evidence of arbitrary and capricious decision-making. See Dubinsky, 43 Fed. Cl. at 267 n.56 (noting that [s]uch action is arbitrary and capricious and provides grounds for granting a protest if it prejudices unsuccessful offerors ). Minor irregularities alone, however, will not invalidate a procurement that is reasonable and otherwise not contrary to law. See Grumman Data [Sys. Corp. v. Dalton, 88 F.3d 990, 1000 (Fed. Cir. 1996)] ( De minimis errors are those that are so insignificant when considered against the solicitation as a whole that they can safely be ignored and the main purposes of the contemplated contract will not be affected if they are. (quoting Andersen Consulting v. United States, 959 F.2d 929, 935 (Fed. Cir. 1992)). Red River Holdings, LLC v. United States, 87 Fed. Cl. 768, (2009). The first of these departures was material because four Offerors, Acumen, NCI, PWC, and TrueTandem, would not have been among the sixteen original Awardees. This first departure prejudiced Octo Consulting whose priced sample task would,

24 Case 1:15-cv SGB Document 27-2 Filed 11/17/15 Page 24 of 32 Defendant s Cross-Motion to Dismiss, at page 21, ECF Document Number 22 *SEALED*, page 30 of 60, filed November 4 th, RFQ Number 4QTFHS was conducted under the authority of FAR , Blanket Purchase Agreements (BPAs). RFQ Number 4QTFHS was solicited to establish Multiple- Award BPAs. FAR (a)(3)(i). RFQ Number 4QTFHS was for support services requiring a Statement of Work. FAR (b)(2). FAR (b)(2)(iii) required that the Agency must provide Evaluation Criteria to Multiple-Award Schedule Contractors from whom support services were solicited. FAR (b)(2)(vi) required that the Agency shall ensure all quotes received are fairly considered and award is made in accordance with the basis for selection in the RFQ. (Emphasis added). When the Contracting Officer abandoned the Pass/Fail review/evaluation announced in RFQ Number 4QTFHS and confirmed by the published Questions and Answers, and then in its place adopted an unannounced qualitative evaluation of the Offerors README text files which counted only the number of criteria attained and there reported, the Agency and its Contracting Officer violated FAR (b)(2)(vi). This clear and prejudicial violation of FAR (b)(2)(vi), a procurement Regulation, was likewise a clear and prejudicial violation of 28 U.S.C

25 Case 1:15-cv SGB Document 27-2 Filed 11/17/15 Page 25 of (b)(4) and 5 U.S.C. 706(2)(A), (D). Impresa Construzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324, (Fed. Cir. 2001). II. Post Hoc Rationalizations Must Be Abjured. Defendant s outside counsel unabashedly asserts that his client Agency, which clearly and prejudicially violated FAR (b)(2)(vi), is entitled to benefit from the uncertainty rectifying these unlawful acts will create: Plaintiff erroneously argues that it had a substantial chance of winning an award but for the alleged errors in the procurement process. Pl. MJAR Plaintiff s standing argument rests on its claim that four of the 17 awardees -- Acumen Solutions, Inc. (Acumen), NCI Information Systems, Inc. (NCI), PricewaterhouseCoopers Public Sector, LLP (PWC), and TrueTandem LLC (TrueTandem) -- should have been eliminated as required by the terms of the RFQ. Pl. MJAR 16. As discussed below, plaintiff s premise is severely flawed. The critical error in plaintiff s standing argument is that, even assuming that those four quoters were eliminated, plaintiff makes the unsupported assumption that additional awards would have been made to replace the four eliminated quotes and that plaintiff would have been among the additional awardees. But GSA did not indicate the exact number of BPAs that would be established and did not even approximate the number to be 17. Instead, GSA indicated that the approximate number of awardees would be 10 and that GSA reserved the right in its sole discretion to establish a fewer or greater number and to not issue a BPA. AR Tab 13A at ; AR Tab 13A at 963. Although GSA ultimately exercised its discretion and awarded 17, GSA was not required to do so,

26 Case 1:15-cv SGB Document 27-2 Filed 11/17/15 Page 26 of 32 In addition, plaintiff price among the quotes that, plaintiff s quote 74 at This is so because plaintiff ranked in terms of. As plaintiff was ranked only. AR Tab Defendant s Cross-Motion to Dismiss, at pages 27 through 28, ECF Document Number 22 *SEAL- ED*, pages 36 through 37 of 60, filed November 4 th, These post hoc rationalizations of counsel must be abjured: In the second situation, in which the agency seeks to defend its decision on grounds not previously articulated by the agency, the obligation of the reviewing court is also wellsettled. In this classic Chenery situation, see Sec. & Exch. Comm n v. Chenery Corp., 332 U.S. 194, 196, 91 L. Ed. 1995, 67 S. Ct (1947), we generally decline to consider the agency s new justification for the agency action, and we again affirm or reverse, with or without a remand, although there are exceptions to the Chenery rule. See Koyo Seiko Co. v. United States, 95 F.3d 1094, (Fed. Cir. 1996). The Burlington Truck Lines decision, which the Court of International Trade cited as a basis for rejecting Commerce s changed position here, is an example of the Chenery situation. See Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, , 9 L. Ed. 2d 207, 83 S. Ct. 239 (1962). In Burlington Truck Lines, the Interstate Commerce Commission had failed to make any findings regarding its choice between two different remedies, and it had failed to articulate any rational connection between the facts found and the choice made Id. at 168. Although counsel sought to justify the agency s choice by arguing that the alternative remedy urged by the opposing party on appeal would have been ineffective, the Supreme Court rejected this argument because courts may not accept appellate counsel s post hoc rationalizations for agency action. Id. (emphasis in original). The Supreme Court ordered that the Commission s action be vacated and ordered a remand to the Commission

27 Case 1:15-cv SGB Document 27-2 Filed 11/17/15 Page 27 of 32 SKF USA, Inc. v. United States, 254 F.3d 1022, 1028 (Fed. Cir. 2001) (emphasis added). See also Terex Corp. v. United States, 104 Fed. Cl. 525, 534 n.7 (2012) ( it is true that little weight is generally accorded to judgments prepared in the heat of the adversarial process, see, e.g., Boeing Sikorsky Aircraft Support, B et al., 97-2 Comp. Gen. Proc. Dec. 91 (Comp. Gen. Sept. 29, 1997),.... ) Likewise, this Case binding precedent requires that these unlawful Awards be vacated. III. A Permanent Injunction Is Warranted. We ll begin with a tenet of this Court s Procurement Protest jurisprudence: Agency procurement actions should be set aside when they are arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, or without observance of procedure required by law. 5 U.S.C. 706(2)(A), (2)(D) (2006); see also Orion Tech., Inc. v. United States, 704 F.3d 1344, 1347 (Fed. Cir. 2013); COMINT Sys. Corp. v. United States, 700 F.3d 1377, 1381 (Fed. Cir. 2012); Savantage Fin. Servs. Inc., v. United States, 595 F.3d 1282, (Fed. Cir. 2010); Weeks Marine, Inc. v. United States, 575 F.3d 1352, 1358 (Fed. Cir. 2009); Axiom Res. Mgmt., Inc. v. United States, 564 F.3d 1374, 1381 (Fed. Cir. 2009) (noting arbitrary and capricious standard set forth in 5 U.S.C. 706(2)(A), and reaffirming the analysis of Impresa Construzioni Geom. Domenico Garufi v. United States, 238 F.3d at 1332); Blue & Gold Fleet, L.P. v. United States, 492 F.3d at 1312 ( [T]he inquiry is whether the [government s] procurement decision was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. (quoting 5 U.S.C. 706(2)(A) (2000))); Bannum, Inc. v. United States, 404 F.3d at 1351; Contracting, Consulting, Eng g LLC v. United States, 104 Fed. Cl. 334, 340 (2012). In a bid protest case,

28 Case 1:15-cv SGB Document 27-2 Filed 11/17/15 Page 28 of 32 the agency s award must be upheld unless it is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. Turner Constr. Co. v. United States, 645 F.3d 1377, 1383 (Fed. Cir.) (quoting PAI Corp. v. United States, 614 F.3d 1347, 1351 (Fed. Cir. 2010)), reh g and reh g en banc denied (Fed. Cir. 2011); see also PlanetSpace, Inc. v. United States, 92 Fed. Cl. 520, (2010) ( Stated another way, a plaintiff must show that the agency s decision either lacked a rational basis or was contrary to law. (citing Weeks Marine, Inc. v. United States, 575 F.3d at 1358)). Caddell Construction Co. v. United States, 111 Fed. Cl. 49, (2013). These things are clear: (1) before this dispute commenced, the Agency s evaluation team rated the Quotations from Acumen, NCI, and TrueTandem, concluding team rated the Quotation from Octo Consulting, concluding that ; (2) before this dispute commenced, the Agency s evaluation, this the requirement publicly-announced; (3) the Agency and its Contracting Officer applied an undisclosed and unannounced Evaluation Factor, a qualitative evaluation of the Offerors README text files which counted only the number of criteria attained and there reported; (4) Octo Consulting s priced sample task would, had these three Awardees been eliminated by ratings given by the Agency s evaluation team, no longer have been separated from the pool of remaining Awardees and (5) Offerors unlawfully eliminated from the Competition conducted

29 Case 1:15-cv SGB Document 27-2 Filed 11/17/15 Page 29 of 32 under RFQ Number 4QTFHS have suffered irreparable economic harm, this dramatically illustrated by the efforts here expended by one of those Awardees, Booz Allen Hamilton Inc. (Booz Allen), to preserve the Award it has received, an Award, unfortunately for Booz Allen, which has resulted from the unlawful actions of the Agency and its Contracting Officer. There is a four-part test for a permanent injunction, requiring consideration of: (1) whether, as it must, the plaintiff has succeeded on the merits of the case; (2) whether the plaintiff will suffer irreparable harm if the court withholds injunctive relief; (3) whether the balance of hardships to the respective parties favors the grant of injunctive relief; and (4) whether it is in the public interest to grant injunctive relief. PGBA, LLC v. United States, 389 F.3d 1219, (Fed. Cir. 2004). These four factors are to be considered collectively, not individually, and given this obvious and material violation of the Federal Acquisition Regulation, our focus must be on the latter three equitable factors. As for the first of the three equitable factors, loss of business opportunity, here loss of the ability to compete over the next five years for Agile software design and development requirements, and an unfair procurement process, are sufficient. Overstreet Electric Co. v. United States, 47 Fed. Cl. 728, 744 (2000). When these Awards are vacated, the Agency will suffer nothing other than a delay coupled with many wasted efforts on a failed Competition, both consequences of its own devising;

30 Case 1:15-cv SGB Document 27-2 Filed 11/17/15 Page 30 of 32 this is insufficient. Reilly s Wholesale Produce v. United States, 73 Fed. Cl. 705, (2006). The last of the three equitable factors, the public interest, is resolved by the paramount importance of preserving the integrity of the procurement system, particularly as to innovative Acquisitions such as this one. Parcel 49C Limited Partnership v. United States, 31 F.3d 1147, 1153 (Fed. Cir. 1994). CONCLUSION For all of the reasons set forth in the foregoing Brief in Support of Plaintiff s Response to Cross- Motions for Judgment on the Administrative Record, Plaintiff Octo Consulting respectfully requests that the Court enter Judgment for Plaintiff Octo Consulting on this corrected and supplemented Administrative Record, RCFC 52.1(c)(2), together with: 1. a Declaration that the Quotations of Acumen, NCI, PWC, and TrueTandem do not conform to material terms of RFQ Number 4QTFHS150004; and 2. a Declaration that the Agency and its Contracting Officer are in clear and prejudicial violation of FAR (b)(2)(vi), 28 U.S.C. 1491(b)(4), and 5 U.S.C. 706(2)(A), (D); and 3. a Permanent Injunction compelling the Agency to vacate the BPAs awarded under RFQ Number 4QTFHS150004; and

31 Case 1:15-cv SGB Document 27-2 Filed 11/17/15 Page 31 of such further and other relief as the Court may deem just and proper. Respectfully submitted, /s/ Cyrus E. Phillips IV Cyrus E. Phillips IV Virginia State Bar Number November 12 th, 2015 ALBO & OBLON, L.L.P. Courthouse Plaza 2200 Clarendon Boulevard, Suite 1201 Arlington, Virginia Telephone: (757) Facsimile: (703) Mobile: (703) Electronic Mail: Attorney of record for Plaintiff, Octo Consulting Group, Incorporated

32 Case 1:15-cv SGB Document 27-2 Filed 11/17/15 Page 32 of 32 CERTIFICATE OF SERVICE I hereby certify, under penalty of perjury, that on Thursday, November 12 th, 2015 a true and complete copy of this Plaintiff s Brief in Support of Response to Cross-Motions for Judgment on the Administrative Record was filed electronically via the Court s Electronic Case Filing System, through which notice of this filing will be sent to: Zachary J. Sullivan, Esq. Electronic Mail: Zachary.J.Sullivan@usdoj.gov Attorney of record for Defendant, United States General Services Administration, Federal Acquisition Service, Integrated Technology Service, National IT Commodity Program. Jonathan D. Shaffer, Esq. Electronic Mail: jshaffer@smithpachter.com Attorney of record for Defendant-Intervenor, Booz Allen Hamilton Inc. /s/ Cyrus E. Phillips IV Cyrus E. Phillips IV