Update: Federal Claims Court denies protest of $325M DHS CBP Cargo Systems Applications Support task

Updated February 4, 2020 

“This pre- and post-award bid protest comes before the Court on the parties’ Cross-Motions for Judgment on the Administrative Record. Plaintiff, Harmonia Holdings Group, LLC (“Harmonia”), challenges the evaluation of offerors and the award decision made by the United States Customs and Border Protection (“CBP” or “Agency”) for application development and operations and maintenance support services under Solicitation No. HSBP1018CSPD, Request for Quote 1317188 (hereinafter “Solicitation” or “RFQ”). Specifically, plaintiff challenges the Agency’s decision to prohibit offerors from modifying certain portions of their proposals in response to Amendments 9 and 10 to the Solicitation. Plaintiff’s Harmonia Holding Group, LLC’s Motion for Judgment on the Administrative Record and Brief in Support Thereof (hereinafter “Pl.’s MJAR”). Plaintiff also challenges the task order award to defendant-intervenor, Dev Technology Group, Inc. (“Dev Tech”). See generally id. In response, defendant contends plaintiff is not an “interested party” and therefore lacks the requisite standing to bring suit, that the Agency properly exercised its discretion in denying offerors the ability to amend their proposals, and that plaintiff “failed to demonstrate that the [award] decision was irrational or the result of prejudicial violations of law.” Defendant’s Motion to Dismiss and, in the Alternative, Cross-Motion for Judgment upon the Administrative Record and Response to Plaintiff’s Motion for Judgment on the Administrative Record (hereinafter “Def.’s CMJAR”) at 1. For the reasons set forth below, the Court denies plaintiff’s Motion for Judgment on the Administrative Record and grants defendant and defendant-intervenor’s Cross-Motions for Judgment on the Administrative Record. Additionally, the Court denies defendant’s Motion to Dismiss.” 

“Background A. The Solicitation On July 12, 2018, CBP issued the Solicitation, requesting quotes for development and operations and maintenance support services for its Cargo Systems Program Directorate (“CSPD”) to develop and support cargo systems applications under the General Services Administration’s (“GSA”) Federal Supply Schedule (“FSS”). Administrative Record (hereinafter “AR”) 2981. The CSPD “is responsible for managing the Automated Commercial Environment (ACE), which is a commercial trade processing system” that “helps reduce the Nation’s vulnerability to changing threats without diminishing economic security, by providing threat awareness, prevention, and protection for the homeland.” Id. CBP indicated its intent to issue a single time and materials task order award with a one-year base period, four (4) one-year option periods, and a six-month option to extend services. AR 235, 270, 1576. Offerors were to be evaluated in two phases. AR 235. Only GSA Information Technology (“IT”) Schedule 70 SIN 132 51-IT small business contractors were eligible to participate in Phase I, which involved Oral Presentations. Id. The Agency would then evaluate Phase I offerors on a best value basis and assign each offeror an overall adjectival quality rating. AR 235, 280. Offerors with a “high likelihood of being selected therefore encouraged to participate in the acquisition of Phase II RFQ.” Id. Though all Phase I respondents were permitted to participate in Phase II, the Agency encouraged offerors that received a rating of “some confidence” or “low confidence” not to participate in Phase II. 2 AR 235, 280, 2985–86. Offerors that participated in Phase II were subsequently evaluated on a best value basis according to the following five factors: (1) Technical Excellence; (2) Management Approach; (3) Quality Assurance; (4) Past Performance; and (5) Price. AR 281–85. Prior to Amendments 9 and 10, Factors 1, 2, and 3 each included three sub-factors, some of which related to one of the Tasks outlined in the Statement of Work (“SOW”). AR 281–84. Under the prescribed best value tradeoff, Factor 1 is “more significantly important than Factors 2, 3, and 4; Factors 2 and 3 are of equal importance and significantly more important than Factor 4,” and the “non-Price Factors, when combined are significantly more important than the Price Factor (Factor 5).” AR 286. The Agency was to award the task order “to the Offeror whose proposal has been determined [to] represent the best value to the Government…” 

“Evaluation of Proposals and Task Order Award The Solicitation notified offerors that, “if an Offeror receives a high[-]risk rating, regardless of technical ratings or price, that Offeror may not be considered for award.” AR 286. Evaluation Board Members and Advisors were also explicitly notified of this limitation in their Evaluation Team Training presentation for this procurement. AR 30. Though the Solicitation did not define high-risk, each of the Consensus Technical Evaluation Panel reports defined it as a risk “[l]ikely to cause significant serious disruption of schedule; increase in cost, or degradation of performance even with special Contractor emphasis.” See, e.g., AR 2936. A “medium risk” is a risk that “[c]an potentially cause some disruption of schedule, increase in cost, or degradation of performance. However, special Contractor emphasis will probably be able to overcome difficulties.” Id. The Consensus Technical Evaluation Panel reports also defined five adjectival ratings applicable to Factors 1, 2, and 3. See AR 2935–36. Of relevance, an offeror would receive a “Marginal” rating if their proposal “demonstrates a shallow understanding of the requirements and an approach that only marginally meets performance or capability standards necessary for minimal but acceptable contract performance….” 

“Discussion In its Motion for Judgment on the Administrative Record, plaintiff claims the Agency “arbitrarily and irrationally refused to allow proposal amendments following Amendments 9 and 10” to the Solicitation, an argument plaintiff previously raised in an agency-level, pre-award protest. See Pl.’s MJAR at 9–10. With respect to its post-award protest grounds, plaintiff alleges the Agency acted in an arbitrary and capricious manner by doing the following: (1) irrationally evaluating Harmonia’s proposal by employing unstated evaluated evaluation criteria and consequently evaluating offerors unequally; (2) improperly assigning Harmonia’s proposal negative and “high risk” ratings under Factors 2 and 3; and (3) performing an irrational tradeoff decision. See generally Pl.’s MJAR at 12–24. In its Motion to Dismiss and Response, defendant contends that plaintiff is not an “interested party” and therefore lacks the requisite standing to bring suit. Def.’s CMJAR at 1. In the alternative, defendant claims that the Agency properly exercised its discretion in making an award decision, and that plaintiff “failed to demonstrate that the decision was irrational or the result of prejudicial violations of law…” 

“Conclusion For the reasons set forth above, defendant’s MOTION to Dismiss pursuant to RCFC 12(b)(1) and plaintiff’s MOTION for Judgment on the Administrative Record are hereby DENIED. Defendant and defendant-intervenor’s CROSS-MOTIONS for Judgment on the Administrative Record are hereby GRANTED. The Clerk is directed to enter judgment in favor of defendant and defendant-intervenor, consistent with this opinion.” 

Read the full 19-page decision here.  

G2X TAKE: This latest challenge, a Court of Federal Claims protest by Harmonia Holdings challenging the award of this 5 ½-year task to Dev Technology Group to provide application development and O&M support services to the Department of Homeland Security’s US Customs and Border Protection Cargo Systems Program Directorate, has been denied. 

More details on the prior protests and the Stop Work order are included below. 

Details of the award to Dev Technology are available here 


Updated July 8, 2019

UPDATE: After a series of protests were filed this Spring challenging the award of this 5 ½ year task to provide application development and O&M support services to the Department of Homeland Security’s US Customs and Border Protection Cargo Systems Program Directorate, G2X has learned that a 9 month nearly $50M contract was awarded to Dev Technology in late May. 

No further explanation was provided, but this would be a typical course of action for an agency when corrective action is being taken and they need to buy some time.  More will be shared here as it is made available. 

More details on the Protests and the Stop Work order are included below.

Details of the award to Dev Technology are available here


Updated May 17, 2019

G2X TAKE: Two of the aforementioned protests understood to be related to this 5 ½ year task to provide application development and O&M support services to the Department of Homeland Security’s US Customs and Border Protection Cargo Systems Program Directorate have been dismissed.

No details are available as to the grounds for the protests by Excella Consulting or NikSoft Systems, nor the reasons for the dismissals, but they will be shared here as they are made available.

As we have noted on numerous occasions, a ‘dismissal’ by GAO does not necessarily mean the issue is resolved and often times only indicates the contracting authority/agency has agreed to proactively take some corrective action to address a deficiency identified as part of the protest process. More information will be provided here as it is made available. 

More details on the Protests and the Stop Work order are included below.


Posted May 10, 2019

G2X TAKE: In light of  the news from DHS of “2 protests GAO and Court of Federal Claims”, there was a Stop Work Order issued on this recently awarded 5 ½ year task to provide application development and O&M support services to the Department of Homeland Security’s US Customs and Border Protection Cargo Systems Program Directorate. 

Details as to the grounds for the protests have not been released at this time, but with this much on the line and 12 bidders vying for this task, it will not come as a surprise that a few firms are not content with the result. More details will be shared here as they are made available. 

Take Bytes 

  • Details of the award to Dev Technology are available here
  • Two Protests were filed with GAO recently related to United States Customs and Border Protection Solicitation Number: HSBP1018CSPD. The protests were put forth by Excella and NikSoft Systems Corporation. A due date for a decision on both is mid-August.  
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