Zafer Taahut, Insaat Ve Ticaret A.s. v. United States, Warbud Ske Joint Venture

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
ZAFER TAAHUT, INSAAT VE TICARET A.S.,
Plaintiff-Appellant
v.
UNITED STATES, WARBUD SKE JOINT VENTURE,
Defendants-Appellees
______________________
2020-1726
______________________
Appeal from the United States Court of Federal Claims
in No. 1:20-cv-00041-VJW, Senior Judge Victor J. Wolski.
______________________
Decided: March 11, 2021
______________________
SAM G DANSKI, Gdanski & Gdanski LLP, Teaneck, NJ,
for plaintiff-appellant.
STEVEN M ICHAEL M AGER, Commercial Litigation
Branch, Civil Division, United States Department of Jus-
tice, Washington, DC, for defendant-appellee United
States. Also represented by JEFFREY B. CLARK , R OBERT
EDWARD K IRSCHMAN , JR., D OUGLAS K. M ICKLE; H ERBERT
JAMES A LDRIDGE, II, Europe District, United States Army
Corps of Engineers, APO, AE; M EGAN J AYE TOOMAN , El
Paso, TX.
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ZAFER TAAHUT, INSAAT VE TICAR v. US 2
WILLIAM FRANCIS SAVARINO , Cordatis LLP, Arlington,
VA, for defendant-appellee Warbud SKE Joint Venture.
Also represented by JOSHUA SCHNELL.
______________________
Before LOURIE, O’M ALLEY, and REYNA, Circuit Judges.
O’M ALLEY, Circuit Judge.
This case is about a bid protest. Zafer Taahut, Insaat
Ve Ticaret A.S. (“Zafer”) appeals from an order of the
United States Court of Federal Claims (“Claims Court”)
granting judgment on the administrative record in favor of
the government and Warbud SKE Joint Venture (“War-
bud”). Because Zafer fails to establish that the award of
the contract to Warbud was arbitrary, capricious, an abuse
of discretion, or otherwise not in accordance with law, we
affirm the Claims Court’s judgment.
I. BACKGROUND
A. Factual Background
In February 2019, the United States Army Corp of En-
gineers (“Army Corps” or “agency”) sought proposals for a
firm-fixed price contract for construction of facilities at the
North Atlantic Treaty Organization’s (“NATO”) Long-Term
Equipment Storage and Maintenance Complex at Powidz
Air Base, Poland. The Solicitation provided “Instructions
to Proposers,” which set forth the requirements for the
preparation and submission of proposals. Proposals were
to be submitted in two volumes: Volume I and Volume II.
Volume I included four technical factors: past performance,
management plan, technical approach narrative and
schedule, and national competitive bidding requirements
(“NCB requirements”). Volume II included price and vari-
ous administrative requirements. The instructions also re-
quired that, for proposals submitted as Joint Ventures,
“the experience, past performance, and management
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ZAFER TAAHUT, INSAAT VE TICAR v. US 3
approach of each of the Joint Venture Partners can be sub-
mitted for the Joint Venture Entity” and “[t]he experience
for each Joint Venture Partner will be considered the expe-
rience of the Joint Venture entity.” J.A. 16328.
The Solicitation provided that the Army Corps would
use the “Best Value Tradeoff Process for Source Selection”
in accordance with Federal Acquisition Regulation (“FAR”)
15.101-1. J.A. 16342. That process “permits tradeoffs
among cost or price and non-cost factors” and results in a
contract award to the “offeror who demonstrates the best
value to the Government, considering all non-price (tech-
nical) and price factors.” J.A. 16172, 16342. Consistent
with FAR 15.304(e), the combined non-price factors were
treated as equal in importance to price. J.A. 16342.
As to the evaluation approach, the Solicitation pro-
vided that past performance would be rated as one factor
based on up to five past projects submitted by the offeror.
To determine the overall past performance rating, the
agency would evaluate the recency and relevance of the
projects, looking for similarities to the Solicitation in the
scope and magnitude of effort and complexities of the pro-
ject. The agency would then evaluate the “quality” of per-
formance. Based on these elements, an offeror would
receive an overall confidence assessment rating.
The Solicitation defined “recent” projects as those
which had been completed within six years of the Solicita-
tion issue date or projects that were currently being per-
formed and at least 50% complete. Projects completed
more than six years prior to the issue date could still be
considered, but might be deemed less relevant. The Solici-
tation indicated that relevant projects are those that had
the following qualities:
(i) Projects that involve sourcing and managing la-
bor on large projects in remote locations.
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ZAFER TAAHUT, INSAAT VE TICAR v. US 4
(ii) Projects located within Poland and/or the Euro-
pean Union (EU).
(iii) Projects with a construction cost of
$100,000,000–$250,000,000.
(iv) Projects consisting of experience with new con-
struction to include major building systems (archi-
tectural, electrical, mechanical, structural and
civil).
(v) Projects demonstrating that the offeror’s team
members . . . have previously worked together are
considered more relevant, especially where the
roles were similar to those that are proposed for
this work.
(vi) Project[s] demonstrating the procurement of
materials, supplies and equipment similar in mag-
nitude, scope, complexity and timelines to the work
required under this solicitation.
(vii) Projects for the U.S. military, U.S. Depart-
ment of Defense or the military or Ministry of De-
fense of a NATO member nation, or projects for or
funded by NATO.
J.A. 16344.
Each project submitted for past performance received
an adjectival relevancy rating, ranging from Not Relevant
to Very Relevant. A project involving “essentially the same
scope and magnitude of effort and complexities” as re-
quired by the Solicitation received a rating of Very Rele-
vant. J.A. 16343. A past project with a “similar scope and
magnitude” to the Solicitation received a rating of Rele-
vant. Id. Past projects involving “some” or “little or none”
of the scope and magnitude of the Solicitation received rat-
ings of Somewhat Relevant and Not Relevant, respectively.
J.A. 16344.
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ZAFER TAAHUT, INSAAT VE TICAR v. US 5
The agency then evaluated the “quality” of the offeror’s
past performance to assign an overall confidence assess-
ment rating. In doing so, the agency considered the quality
of the offeror’s performance, schedule/timeliness of perfor-
mance, customer satisfaction, management personnel/la-
bor, cost/financial management, safety/security, and other
general considerations. Each offeror was then assigned an
adjectival rating for past performance. In relevant part, a
rating of Substantial Confidence indicated that “the Gov-
ernment has a high expectation that the offeror will suc-
cessfully perform the required effort.” Gov’t Br. 10. A
rating of Satisfactory Confidence, on the other hand, indi-
cated that the government only had a “reasonable expecta-
tion” of the offeror’s successful performance based on past
performance. Id.
The Solicitation was amended several times. Relevant
to this appeal, the Solicitation was amended to specify that
offerors were required to submit their proposals by Au-
gust 7, 2019. J.A. 22781. Shortly before that deadline,
however, Warbud and another bidder notified the contract
specialist that they were having difficulties uploading doc-
uments to the site. Given these issues, the contracting of-
ficer determined that it was in the best interest of the
government to extend the proposal due date by one day.
The contract specialist posted notification of the amend-
ment before the initial deadline lapsed on August 7, and
sent a follow-up email to all interested offerors. Due to
technical difficulties with the system, however, the amend-
ment was not posted until after the deadline.
The source selection evaluation board (“SSEB”) re-
ceived six proposals by the final due date of August 8, 2019.
Each of the three voting members of the SSEB, all Army
Corps personnel with technical skills relevant to the Solic-
itation, completed an independent review of each proposal
and then a consensus meeting was held. At the meeting,
the members of the SSEB reached a consensus rating for
each factor of each proposal. The contracting officer
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ZAFER TAAHUT, INSAAT VE TICAR v. US 6
conducted price analysis of all the submitted proposals, in-
cluding comparison of the proposed prices received in re-
sponse to the Solicitation and comparison of prices with the
independent government estimate. 48 C.F.R. § 15.401-
1(b)(2).
Initially, Zafer was given consensus ratings of Satisfac-
tory Confidence for past performance, Good for manage-
ment plan and technical approach and schedule, and
Acceptable for NCB requirements. Warbud was given con-
sensus ratings of Satisfactory Confidence for past perfor-
mance, Unacceptable for management plan, Outstanding
for technical approach and schedule, and Acceptable for
NCB requirements. Id. Based on these findings from the
SSEB and the price analysis, the contracting officer de-
cided to open discussions.
In accordance with FAR 15.306(c), the agency made a
competitive range determination, and determined that all
six offerors were within the competitive range. All six of-
ferors were therefore provided the opportunity to submit
revised proposals for the SSEB to evaluate. Based on those
revised proposals, Zafer’s ratings were unchanged. War-
bud received the same ratings as before, with the exception
of a new rating of Outstanding for management plan. The
contracting officer also conducted a price analysis of the re-
vised prices. Zafer’s final proposed price was slightly lower
than that of Warbud.
The source selection advisory council (“SSAC”), com-
prised of senior leaders within Army Corps’ Europe Dis-
trict, reviewed the SSEB reports and price negotiation
memorandum, along with the proposals submitted. The
SSAC issued a report, signed October 8, 2019, finding that
Warbud’s proposal offered advantages over the other offe-
rors in past performance, management plan, and technical
approach and schedule. The SSAC considered it valuable
to pay a reasonable price premium for a “superior technical
proposal that reduces risk of both project cost and time
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ZAFER TAAHUT, INSAAT VE TICAR v. US 7
growth,” and therefore recommended an award to Warbud.
J.A. 22145.
In its analysis, the SSAC compared Warbud to other
offerors, and compared Zafer to another offeror with simi-
lar non-price factor ratings. After analyzing the proposals,
the SSAC found that Zafer offered a slight technical ad-
vantage over the other similarly rated offeror, but at a
higher price. Accordingly, the SSAC concluded that Zafer’s
proposal did not offer a technical advantage “significant
enough to warrant paying a price premium” over the other
offeror. As a result, the SSAC eliminated Zafer from con-
sideration. J.A. 22143.
The SSA reviewed the findings of the SSEB and SSAC
to ensure that they followed the evaluation criteria and
that the ratings were consistently applied. The SSA agreed
with the final ratings for Zafer and Warbud. It also con-
ducted an independent review and best value analysis
based on the SSEB’s findings, and concluded that Warbud’s
proposal offered the best value to the government. Accord-
ingly, on November 14, 2019, the Army Corps awarded the
contract to Warbud.
B. Procedural History
On November 27, 2019, Zafer filed a protest with the
Government Accountability Office (“GAO”), challenging
the agency’s technical evaluation ratings and its best value
determination. Zafer withdrew its GAO protest on Janu-
ary 6, 2020.
On January 14, 2020, Zafer filed a protest with the
Claims Court. Two days later, the Claims Court granted
the government’s motion for a voluntary remand to allow
the Army Corps to reconsider and further document its
award decision. At the conclusion of the remand, the SSA
issued a new source-selection decision reaffirming its deci-
sion that Warbud’s proposal represented the best value to
the government.
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The parties cross-moved for judgment on the adminis-
trative record, and the Claims Court held oral argument on
March 30, 2020. The following day, the Claims Court is-
sued its opinion from the bench and entered judgment in
favor of the government and Warbud. Warbud has been
performing the contract since the court’s March 30, 2020
decision.
Zafer timely appealed to this court. We have jurisdic-
tion under 28 U.S.C. § 1295(a)(3).
II. D ISCUSSION
We review the grant of a motion for judgment on the
administrative record in a bid protest action de novo.
Glenn Def. Marine (Asia), Pte. Ltd. v. United States, 720
F.3d 901, 907 (Fed. Cir. 2013). In a bid protest case, the
inquiry is whether the agency’s actions were “arbitrary, ca-
pricious, an abuse of discretion, or otherwise not in accord-
ance with law, and if so whether the error is prejudicial.”
Id. “The court’s task is to determine whether ‘(1) the pro-
curement official’s decision lacked a rational basis; or (2)
the procurement procedure involved a violation of regula-
tion or procedure.’” Savantage Fin. Servs. v. United States,
595 F.3d 1282, 1285–86 (Fed. Cir. 2010) (quoting Weeks
Marine, Inc. v. United States, 575 F.3d 1352, 1358 (Fed.
Cir. 2009)).
Contracting officers “are entitled to exercise discretion
upon a broad range of issues confronting them in the pro-
curement process.” Impresa Construzioni Geom. Domenico
Garufi v. United States, 238 F.3d 1324, 1332 (Fed. Cir.
2001) (internal quotation marks and citation omitted). The
protestor bears the burden of demonstrating that an
agency’s action was unreasonable. Grumman Data Sys.
Corp. v. Dalton, 88 F.3d 990, 1000 (Fed. Cir. 1996). We
have held that “[d]e minimis errors in the procurement pro-
cess do not justify relief.” Glenn Def. Marine, 720 F.3d at
907.
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ZAFER TAAHUT, INSAAT VE TICAR v. US 9
On appeal, Zafer raises two challenges to the Claims
Court’s decision. First, it argues that Warbud’s proposal
was late and therefore should have been rejected. Second,
Zafer submits that the agency engaged in unequal treat-
ment of offerors when it assessed past performance. We
address each argument in turn.
A. Deadline Extension
As to the first issue, although Zafer alleges that War-
bud’s proposal was late, the Claims Court correctly con-
cluded that the Army Corps reasonably extended the
deadline by one day to ensure that all interested offerors
were able to submit their proposals. Zafer argues, as it did
before the Claims Court, that the Army Corps extended the
deadline for the receipt of proposals after the deadline had
already passed. After careful review of the record, how-
ever, the Claims Court found that the agency properly ex-
tended the deadline prior to the expiration of the time for
proposal. We find no error in the court’s analysis.
Although the Army Corps posted notification of the ex-
tended deadline and emailed notification to all offerors
prior to the expiration of the original deadline, system er-
rors caused the amendment to be posted to the site shortly
after the deadline had passed. But, because the contract-
ing officer made the decision and communicated it to all
offerors prior to the deadline, the Claims Court found that
the delay in posting the actual amendment did not affect
the validity of the one-day extension. J.A. 13. We agree
with the Claims Court that the contracting officer made the
decision to extend the deadline in a timely manner and that
doing so was within his discretion. See Impresa, 238 F.3d
at 1332 (recognizing that “contracting officers are ‘entitled
to exercise discretion upon a broad range of issues confront-
ing them’ in the procurement process” (quoting Latecoere
Int’l, Inc. v. United States Dep’t of Navy, 19 F.3d 1342, 1356
(11th Cir. 1994)).
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Zafer claims that the record contains no evidence that
there were problems uploading documents to the site. But
the contracting officer explained in his declaration that
more than one offeror reported difficulty in attempting to
upload their proposals. Indeed, the Army Corp itself expe-
rienced problems in attempting to upload documents.
Given these issues, the contracting officer explained that
the Army Corps decided to extend the submission deadline
to allow all interested offerors the opportunity to submit.
Therefore, despite Zafer’s suggestion to the contrary, the
record supports the Claims Court’s finding that there were
technical difficulties supporting the Army Corps’ exten-
sion. As such, we find no error in the Claims Court’s deter-
mination that, given the “technical problems with the
government’s FBO site and not problems that were owing
to any delinquencies or deficiencies on the part of the offe-
rors, the contracting officer reasonably decided before the
deadline to extend the deadline.” J.A. 12.
Zafer implies that the Army Corps acted in bad faith in
extending the proposal deadline for the benefit of a single
offeror: Warbud. As the Claims Court found, however,
nothing in the record “supports the argument that there
was any impermissible motive or favoritism or anything
improper in the extension of the deadline.” J.A. 11. Nor
was there any evidence of “improper motivation on the part
of the contracting officer.” J.A. 13. As the contracting of-
ficer explained in his declaration, he “did not think that it
was fair, or, in the best interest of the Government, to ex-
clude potentially qualified offerors from the opportunity to
submit a proposal because of technical difficulties with a
Government system.” J.A. 22782. And, the evidence was
that more than one offeror complained of difficulties sub-
mitting the proposal. As the Claims Court found, the deci-
sion to extend the deadline was fair, reasonable, and made
in a timely manner.
We find no error in the Claims Court’s determination
that the Army Corps properly extended the proposal
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ZAFER TAAHUT, INSAAT VE TICAR v. US 11
deadline by one day. Because Warbud’s proposal was up-
loaded prior to expiration of the extended deadline, it was
timely filed.
B. Past Performance Evaluation
As to Zafer’s second argument on appeal—that the
agency unreasonably evaluated past performance—the
Claims Court found that the SSA reasonably rated Zafer’s
past-performance proposal as Satisfactory Confidence, ra-
ther than Substantial Confidence. The Solicitation di-
rected offerors to submit up to five past-performance
projects for evaluation. Under the evaluation criteria, the
SSA considered the recency, relevancy, and quality of each
offeror’s past projects. After evaluating Zafer’s past-perfor-
mance proposal, the SSA gave Zafer a Satisfactory Confi-
dence rating because the government had a “reasonable
expectation” of successful performance, rather than the
“high expectation” of successful performance required for a
Substantial Confidence rating. J.A. 22745.
“It is well-established that contracting officers have a
great deal of discretion in making contract award deci-
sions, particularly when, as here, the contract is to be
awarded to the bidder or bidders that will provide the
agency with the best value.” Banknote Corp. of Am. v.
United States, 365 F.3d 1345, 1355 (Fed. Cir. 2004) (cita-
tions omitted). We have recognized that evaluation of past
performance is a matter within the discretion of the con-
tracting agency and that the “agency’s reasonable interpre-
tation of the facts is entitled to considerable deference.”
Glenn Def. Marine, 720 F.3d at 910.
On appeal, Zafer argues that the Army Corps “applied
different ratings to bids which were not only substantively
similar, but which were actually identical.” Appellant’s Br.
11. According to Zafer, the agency erred when it: (1) deter-
mined that Zafer’s past-performance projects 1 and 2 were
“Relevant” instead of “Very Relevant;” (2) treated “Zafer’s
project in Bagram Afghanistan as not being remote,” while
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ZAFER TAAHUT, INSAAT VE TICAR v. US 12
crediting another offeror for having a project in the same
locality; and (3) evaluated different joint venture struc-
tures differently. Id. at 14–22. As explained below, Zafer’s
arguments are without merit.
First, the Claims Court examined the record and con-
cluded that the SSA reasonably assessed Zafer’s projects 1
and 2. Although Zafer continues to argue on appeal that
the SSA should have found these projects “Very Relevant,”
the SSA’s “determination of relevance is owed deference as
it is among ‘the minutiae of the procurement process,’
which this court ‘will not second guess.’” Glenn Def. Ma-
rine, 720 F.3d at 911 (quoting E.W. Bliss Co. v. United
States, 77 F.3d 445, 449 (Fed. Cir. 1996)). We decline to
second-guess or otherwise disturb the SSA’s reasonable
and discretionary relevance determination.
Second, to prevail on an unequal treatment claim, a
“protestor must show that the agency unreasonably down-
graded its proposal for deficiencies that were ‘substantively
indistinguishable’ or nearly identical from those contained
in other proposals.” Office Design Grp. v. United States,
951 F.3d 1366, 1373 (Fed. Cir. 2020) (citations omitted).
Zafer argues that the SSA “negatively rated” project 5—
which related to work Zafer performed at Bagram Air Base
in Afghanistan—for not being “remote,” but gave credit to
another offeror for a Bagram project. Appellant’s Br. 17.
But the Claims Court found that the SSA did not nega-
tively rate Zafer project 5 solely on remoteness grounds.
J.A. 16–19. Nor did the SSA credit the other offeror merely
for having a project in the same “remote” locality. Id. Zafer
oversimplifies the applicable past performance criteria,
which focused on the substantive nature of the project in
addition to its location. Specifically, the Solicitation indi-
cated that, in assessing past performance, relevant projects
include those that “involve sourcing and managing labor on
large projects in remote locations.” J.A. 16344. The SSA
found that project 5 was “somewhat relevant” in that it met
four of the seven criteria for relevancy. J.A. 22743. But
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ZAFER TAAHUT, INSAAT VE TICAR v. US 13
project 5 did not involve “sourcing and managing labor on
large projects,” regardless of how remote the location may
have been. See id. The fact that another offeror’s Bagram
project satisfied this criteria does not indicate disparate
treatment. Instead, as the Claims Court concluded, it
means that these two projects were substantively distin-
guishable. J.A. 17–18 (citing Office Design Grp., 951 F.3d
at 1373).
Finally, the Claims Court found that the SSA reasona-
bly evaluated the past performance of the joint venture of-
ferors. As noted, the Solicitation provided that “the
experience, past performance, and management approach
of each of the Joint Venture Partners can be submitted for
the Joint Venture Entity.” J.A. 16328. In addition, “[t]he
experience of each Joint Venture Partner will be considered
the experience of the Joint Venture entity.” Id. Given this
language, the Claims Court concluded that the SSA rea-
sonably rated Warbud’s past performance, including past
projects that were joint ventures. J.A. 19–22.
On appeal, Zafer repeats its argument that the SSA
“cannot use other joint venture projects consisting of only
one of the joint venture bidders.” Appellant’s Br. 20. But
nothing in the Solicitation restricted the SSA from consid-
ering these types of joint venture projects. Rather, as the
Claims Court held, the Army Corps evaluated the joint
venture offerors consistent with the evaluation criteria.
J.A. 20. And, although Zafer argues that the Army Corps
“applied a double standard” when rating the Warbud joint
venture compared to others, the Claims Court considered
these arguments and expressly found that the other offers
were distinguishable. J.A. 21. We find no error in that
determination.
III. CONCLUSION
We have considered Zafer’s remaining arguments and
find them unpersuasive. Accordingly, we affirm the Claim
Court’s judgment in favor of the government and Warbud.
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AFFIRMED
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