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e5c7d73b-9353-4647-b8c4-d39b6a55d991 | .R. § 125.8, the Polaris Solicitations violate 13 C.F.R. §§ 127.506 and 125.18. See SHS MJAR at 27; VCH MJAR at 27. These regulations address SBA requirements for WOSB and SDVOSB offerors, respectively. See 13 C.F.R. § 127.506; 13 C.F.R. § 125.18 (2022). However, in their MJARs, both parties’ arguments focus primarily on the Polaris Solicitations’ alleged violation of 13 C.F.R. § 125 | Sh_Synergy,_LLC_2023-04-28.txt |
c759cd50-ff3b-4d11-8114-6614fb92a3a1 | .8, the regulation governing mentor-protégé JV offerors. See generally SHS MJAR at 26–34; VCH MJAR at 26– 34; Pl. Reply at 13–22; Cross-MJAR at 38–51; Def. Reply at 14–23. Accordingly, this Court will likewise focus its discussion on Section 125.8 and other regulations governing mentor-protégé JV offerors | Sh_Synergy,_LLC_2023-04-28.txt |
b4b2025c-50bc-44bc-a8db-f3db04c552c5 | . However, to the extent there is overlap between the regulations governing mentor- protégé JVs and the regulations governing WOSB and SDVOSB JVs, the Court’s holdings on the former apply with equal force to the latter. Further, both parties’ MJAR briefs cite 13 C.F.R. § 125.18 as the relevant SBA regulation governing SDVOSB offerors for purposes of this protest. See, e.g | Sh_Synergy,_LLC_2023-04-28.txt |
f3d90ed0-093d-4324-ac7e-078ad567220c | ., SHS MJAR at 27; VCH MJAR at 27; Cross-MJAR at 39; see also 13 C.F.R. § 125.18 (2022). However, effective January 1, 2023, 33 prescribes specific rules applicable to mentor-protégé JV offerors. See generally SHS MJAR at 26–34; VCH MJAR at 26–34; Pl. Reply at 13–22; 13 C.F.R. § 125.8. Section 125 | Sh_Synergy,_LLC_2023-04-28.txt |
8bd9e0ef-2dbd-4305-b3e7-b8f97bb1cf05 | .8(e) reads as follows: When evaluating the capabilities, past performance, experience, business systems and certifications of an entity submitting an offer for a contract set aside or reserved for small business as a joint venture established pursuant to this section, a procuring activity must consider work done and qualifications held individually by each partner to the joint venture as well as | Sh_Synergy,_LLC_2023-04-28.txt |
120d2843-3106-4386-b2cc-c77871aa6797 | any work done by the joint venture itself previously | Sh_Synergy,_LLC_2023-04-28.txt |
60ed6ba0-870a-421a-bfc8-713656a1b7c3 | . A procuring activity may not require the protégé firm20 to individually meet the same evaluation or responsibility criteria as that required of other offerors generally. The partners to the joint venture in the aggregate must demonstrate the past performance, experience, business systems and certifications necessary to perform the contract. 13 C.F.R. § 125.8(e) | Sh_Synergy,_LLC_2023-04-28.txt |
aa7944c9-86f9-43f4-8f23-21324a6c9564 | .21 all SBA regulations pertaining to SDVOSBs were moved to 13 C.F.R. § 128.400, et seq. See 13 C.F.R. § 128.400–408. The language previously incorporated in 13 C.F.R. § 125.18(b)(5), which is the provision specifically addressed in the parties’ briefs, was moved to 13 C.F.R. § 128.402(f). Compare 13 C.F.R. § 125.18(b)(5) (2022), with 13 C.F.R. § 128.402(f) | Sh_Synergy,_LLC_2023-04-28.txt |
4b953354-fa05-4c9e-9d9d-0c2d00677d74 | . Because the Polaris Solicitations were issued and this protest was filed in 2022, prior to the regulatory change, this Court will reference 13 C.F.R. § 125.18 throughout this Memorandum. 20 The term “protégé firm” appears only once in Section 125.8. See 13 C.F.R. § 125.8(e). However, the term is used extensively throughout 13 C.F.R. § 125 | Sh_Synergy,_LLC_2023-04-28.txt |
dd44107f-235d-4ef3-9f42-da7ca87535ca | .9, which governs the Mentor- Protégé Program, to describe the protégé member of a mentor-protégé JV. See 13 C.F.R. § 125.9. For example, Section 125.9(c) discusses the requirements to qualify as a “protégé firm” and obtain a mentor through the Mentor-Protégé Program. 13 C.F.R. § 125.9(c). Likewise, Section 125.9(d)(3)(iii) states that if a “protégé firm no longer qualifies as a small business . | Sh_Synergy,_LLC_2023-04-28.txt |
aa51b758-54cc-40bf-b822-ed42e6a5fb20 | . . any joint venture between the protégé and its mentor will no longer be able to seek additional contracts or subcontracts as a small business.” 13 C.F.R. § 125.9(d)(3)(iii) (emphasis added). Finally, Section 125 | Sh_Synergy,_LLC_2023-04-28.txt |
d36ef0e8-aa8b-4d4b-85b2-1bb21cf93eac | .9(h)(1)(iii), which outlines consequences for when a mentor fails to provide the required assistance to its protégé, draws a clear distinction between the protégé firm and the joint venture entity: “Where a protégé firm is able to independently complete performance of any such contract, SBA may recommend to the procuring agency to authorize a substitution of the protégé firm for the joint venture | Sh_Synergy,_LLC_2023-04-28.txt |
361e4a56-cfd9-4ea9-a479-74ca13d2346d | .” 13 C.F.R. § 125.9(h)(1)(iii). These provisions, among others, clarify that the term “protégé firm,” as used in Section 125.8(e), references the protégé member of the mentor- protégé JV, rather than the JV itself. 21 See 13 C.F.R. § 127 | Sh_Synergy,_LLC_2023-04-28.txt |
1fa22fa9-7965-4934-8a12-fde28d420bcd | .506(f) (“When evaluating the capabilities, past performance, experience, business systems, and certifications of an entity submitting an offer for an EDWOSB or WOSB contract as a joint venture established pursuant to this section, a procuring activity must consider work done and qualifications held individually by each partner to the joint venture as well as any 34 Plaintiffs assert certain | Sh_Synergy,_LLC_2023-04-28.txt |
a7ae306b-8119-4556-8406-19e4cf6f8627 | requirements contained in the Polaris Solicitations violate Section 125 | Sh_Synergy,_LLC_2023-04-28.txt |
89851e8c-edee-4478-ba75-1c696026a998 | .8(e)’s limitation that “[a] procuring activity may not require the protégé firm to individually meet the same evaluation or responsibility criteria as that required of other offerors generally.” 13 C.F.R. § 125.8(e) | Sh_Synergy,_LLC_2023-04-28.txt |
14f8d69a-4293-471e-bada-9a1f07053f58 | . First, Plaintiffs criticize the Solicitations’ requirement that for mentor-protégé JV offerors, “a minimum of one Primary Relevant Experience Project or Emerging Technology Relevant Experience Project must be from the Protégé or the offering Mentor-Protégé Joint Venture.” SHS MJAR at 28 (citing the Solicitations); VCH MJAR at 28 (same); see AR at 1088, 2127, 2619 | Sh_Synergy,_LLC_2023-04-28.txt |
d42db124-f3d8-4715-a2d0-10c879ddc619 | .22 Plaintiffs do not dispute that under 13 C.F.R. § 125.8(e), the agency must require the protégé to submit a Relevant Experience Project for consideration. See Pl. Reply at 16 (“[T]he question of whether or not the Agency should consider or require a Relevant Experience project from a protégé (or the protégé by virtue of its joint venture) is not in dispute | Sh_Synergy,_LLC_2023-04-28.txt |
fce2110d-579f-4f58-a373-d65deb0dda29 | .”) (emphasis in work done by the joint venture itself previously. A procuring activity may not require the EDWOSB or WOSB small business concern to individually meet the same evaluation or responsibility criteria as that required of other offerors generally | Sh_Synergy,_LLC_2023-04-28.txt |
92a04601-ad65-4887-9fd3-3daf4a49a0ee | . The partners to the joint venture in the aggregate must demonstrate the past performance, experience, business systems, and certifications necessary to perform the contract.”); 13 C.F.R. § 125 | Sh_Synergy,_LLC_2023-04-28.txt |
581454d0-b4a9-4f9e-9413-b199ec9267f7 | .18(b)(5) (2022) (“When evaluating the capabilities, past performance, experience, business systems, and certifications of an entity submitting an offer for an SDVO contract as a joint venture established pursuant to this section, a procuring activity must consider work done and qualifications held individually by each partner to the joint venture as well as any work done by the joint venture | Sh_Synergy,_LLC_2023-04-28.txt |
0b917f76-120a-4509-b02c-57679d724b52 | itself previously | Sh_Synergy,_LLC_2023-04-28.txt |
5f08ebcb-d348-4d9c-9ea4-4ce8f134ee5a | . A procuring activity may not require the SDVO SBC to individually meet the same evaluation or responsibility criteria as that required of other offerors generally. The partners to the joint venture in the aggregate must demonstrate the past performance, experience, business systems, and certifications necessary to perform the contract.”) | Sh_Synergy,_LLC_2023-04-28.txt |
eabcd939-f2b1-4f41-8df7-900aa253655f | . 22 In addition to the requirement placed on mentor-protégé JVs, the WOSB and SDVOSB Solicitations include the additional requirement that, for JVs involving WOSB or SDVOSB members, at least one Primary Relevant Experience Project or Emerging Technology Relevant Experience Project must be from a WOSB or SDVOSB member of the JV, respectively, or from the offering JV itself. See AR at 2127, 2619 | Sh_Synergy,_LLC_2023-04-28.txt |
f14feea9-f97f-42cf-8c92-48fcdf452ed4 | . These Solicitations also include the requirement that for any WOSB or SDVOSB offerors, including small business teaming arrangements, “[a] minimum of one Primary Relevant Experience Project or Emerging Technology Relevant Experience Project must be from” a WOSB or SDVOSB, respectively. AR at 2132, 2624. 35 original) | Sh_Synergy,_LLC_2023-04-28.txt |
af98e5c3-489f-4edb-82f5-b92a797e4eba | . Instead, Plaintiffs assert the Solicitations impose a heightened23 evaluation criterion on protégé firms relative to offerors generally by “allow[ing] prime/subcontractor teams to obtain all Relevant Experience projects from subcontractors, while protégé firms and their joint ventures must produce one of their own projects independent of any subcontractors they propose | Sh_Synergy,_LLC_2023-04-28.txt |
03595bee-f911-4ab9-b56d-8521b667bfa7 | .” SHS MJAR at 28–30; VCH MJAR at 28–30 (same). Second, Plaintiffs argue that the Solicitations further violate SBA regulations by assessing a protégé’s Relevant Experience Project using the same evaluation criteria and points scale as projects submitted by offerors generally. See SHS MJAR at 30–31; VCH MJAR at 30–31. Defendant disagrees with both of Plaintiffs’ assertions | Sh_Synergy,_LLC_2023-04-28.txt |
7f80569c-fe61-4d67-b495-3f5562938633 | . See generally Cross-MJAR at 38– 51; Def. Reply at 14–23. According to Defendant, the Solicitations “do not require proteges to meet the same criteria as other offerors” because a protégé (or its associated mentor-protégé JV) is only required to individually provide one Relevant Experience Project, whereas “an offeror must demonstrate at least three Primary Relevant Experience projects | Sh_Synergy,_LLC_2023-04-28.txt |
b311d27c-69ca-492a-b558-2523003662f4 | .” Cross-MJAR at 38 (emphasis in original). Defendant also argues that Plaintiffs’ assertions fail to perceive “the critical distinctions between a joint venture offeror, an individual member of that joint venture (such as a protégé), and a prime contractor offeror working with a subcontractor.” Cross-MJAR at 40 (emphasis in original); see id | Sh_Synergy,_LLC_2023-04-28.txt |
9add27af-170d-457e-8428-bb6ad30d984a | . at 46 (noting Plaintiffs “incorrectly equate the status of a protégé with that of the joint venture offeror (within which the protégé sits in a mentor-protégé relationship)”). Because the Solicitations require either the protégé or the mentor-protégé JV to 23 Both parties agree that the phrase “the same evaluation or responsibility criteria,” as used in Section 125 | Sh_Synergy,_LLC_2023-04-28.txt |
742927b7-09a2-4bcf-955c-1a9d89ba8d6d | .8(e), likewise prohibits imposing heightened, or more arduous, evaluation and responsibility criteria on protégé firms. See, e.g., SHS MJAR at 29 (“[T]he Agency is prohibited from holding protégés to the same or heightened evaluation requirement.”) (emphasis in original); VCH MJAR at 29 (same); Oral Arg. Tr | Sh_Synergy,_LLC_2023-04-28.txt |
99d2773d-4b5e-4bf4-9f70-efd74eec0a9f | . at 72:5–12 (Court: “[W]ould you agree that it would not be okay to impose a heightened requirement on the protégés?” Defendant’s Counsel: “[I]f that were the case here, then, right, we’d be violating 125.8(e).”) | Sh_Synergy,_LLC_2023-04-28.txt |
f717a3c7-fb80-424a-a7ba-03152007f62b | . 36 submit an individually completed Relevant Experience Project, Defendant contends that GSA has not imposed any requirement on the “protégé firm” individually that would violate Section 125.8(e). Cross-MJAR at 41 | Sh_Synergy,_LLC_2023-04-28.txt |
19115c21-049c-4670-851e-db9bb2620a5a | . Further, Defendant emphasizes that the points scale included within the Solicitations measures the offeror’s overall performance and does not individually assess the protégé firm in a manner that would violate Section 125.8(e). Id. at 46–48. For the reasons stated below, this Court disagrees with Plaintiffs’ assertion that the Polaris Solicitations violate 13 C.F.R. § 125 | Sh_Synergy,_LLC_2023-04-28.txt |
bb799503-a872-43bc-a63a-805385fe8d98 | .8(e) by requiring (1) the protégé firm or the mentor-protégé JV to submit an individually performed Relevant Experience Project, and (2) by allowing prime contractor offerors to submit projects performed by first-tier subcontractors to satisfy the Solicitations’ Relevant Experience Requirement. However, this Court agrees with Plaintiffs that the Polaris Solicitations violate Section 125 | Sh_Synergy,_LLC_2023-04-28.txt |
da6660d6-d08b-4523-a3a5-7985d470df03 | .8(e) by applying the same evaluation criteria both to projects submitted by protégés and to those projects submitted by offerors generally. A. GSA Did Not Violate SBA Regulations by (1) Requiring the Protégé or Mentor-Protégé JV to Submit an Individually Performed Relevant Experience Project, or (2) Allowing Prime Contractors to Rely on Projects Performed by First-Tier Subcontractors | Sh_Synergy,_LLC_2023-04-28.txt |
cdf4c8a6-0245-49ee-9c36-505f440491dc | . Plaintiffs claim the Polaris Solicitations’ requirements for evaluating Relevant Experience Projects creates a disparity between offerors that hinders protégé firms and violates 13 C.F.R. § 125.8(e) | Sh_Synergy,_LLC_2023-04-28.txt |
1924a9b5-c776-4187-a5b6-89c1668c7edb | . As noted, the Polaris Solicitations state: “For offers from SBA Mentor-Protégé joint ventures, a minimum of one Primary Relevant Experience Project or Emerging Technology Relevant Experience Project must be from the Protégé or the offering Mentor-Protégé Joint Venture. No more than three Primary Relevant Experience Projects may be provided by the Mentor.” AR at 1088, 2127, 2619 | Sh_Synergy,_LLC_2023-04-28.txt |
07b26fda-23ac-44c2-8e22-fcd1f521e302 | . However, the Solicitations do not contain an analogous provision requiring prime contractor offerors to submit individually performed projects. See generally AR at 1021–1144, 2060–2184, 2550–2674. Instead, the Solicitations permit prime 37 contractors to submit projects entirely performed by the first-tier subcontractors listed on the proposal | Sh_Synergy,_LLC_2023-04-28.txt |
8e3a0d43-cfc9-4bc0-a327-43b25d2191e2 | . See AR at 1090, 2129, 2620 (stating that, generally, “Relevant Experience Projects may be from the Offeror or any proposed subcontractor”) | Sh_Synergy,_LLC_2023-04-28.txt |
81ff2bbd-93a2-4591-9f4d-4da567418d2d | . According to Plaintiffs, requiring the protégé or the mentor-protégé JV to submit an individually performed project, without placing the same requirement on prime contractor offerors, arbitrarily limits the field of projects available for submission by protégé firms. SHS MJAR at 28–30; VCH MJAR at 28–30 (same). This, Plaintiffs contend, violates Section 125 | Sh_Synergy,_LLC_2023-04-28.txt |
a7b46e6e-f059-4e93-85ff-93a62adbd446 | .8(e) because it purportedly subjects protégés to heightened evaluation criteria as compared to offerors generally and makes it harder for mentor-protégé JVs to compete against more experienced firms with larger portfolios of past work. SHS MJAR at 28– 30; VCH MJAR at 28–30 (same). As noted, this Court applies the same interpretive rules to analyze both statutes and federal regulations | Sh_Synergy,_LLC_2023-04-28.txt |
a6771ec9-8ef9-43ea-b5be-fa1a9cb067e7 | . See Boeing, 983 F.3d at 1327 (citing Mass. Mut. Life Ins. Co., 782 F.3d at 1365); see also supra Discussion Section I. It is a “fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme.” Nielson v. Shinseki, 607 F.3d 802, 807 (Fed. Cir. 2010) (quoting FDA v. Brown & Williamson Tobacco Corp | Sh_Synergy,_LLC_2023-04-28.txt |
5254698e-e4b1-4d66-b578-bdac2cc2d64a | ., 529 U.S. 120, 133, (2000)); see Obsidian Sols. Grp., LLC v. United States, 54 F.4th 1371, 1374 (Fed. Cir. 2022) (quoting King v. Burwell, 576 U.S. 473, 486 (2015)) (“We do not look at the text in a vacuum, but rather, we must consider the words ‘in their context and with a view to their place in the overall statutory scheme.’”). Therefore, this Court may not construe Section 125 | Sh_Synergy,_LLC_2023-04-28.txt |
9f56e525-732e-4da8-9e60-1bf274e42294 | .8(e) in isolation and must instead interpret the provision as part of a “symmetrical and coherent regulatory scheme . . . fit[ting], if possible, all parts into [a] harmonious whole.” Nielson, 607 F.3d at 807 (quoting Brown & Williamson Tobacco Corp., 529 U.S. at 133) (internal quotation marks omitted) | Sh_Synergy,_LLC_2023-04-28.txt |
3c1e9c60-0054-431a-a5e6-07d56d5b4e33 | . 38 In arguing the Polaris Solicitations create an illegal disparity between offerors based on the type of project each offeror may submit for evaluation, Plaintiffs ignore the broader regulatory regime governing small business procurements. By SBA regulation, agencies “evaluating the capabilities, past performance, experience, business systems and certifications of . . | Sh_Synergy,_LLC_2023-04-28.txt |
12b76e23-d2e0-4fbc-9e48-4aff9697029d | . a joint venture [offeror] . . . must consider work done and qualifications held individually by each partner to the joint venture.” 13 C.F.R. § 125.8(e); 15 U.S.C | Sh_Synergy,_LLC_2023-04-28.txt |
65ce364d-25d2-4371-bd0c-e6cdbcc32c81 | . § 644 (federal statute requiring agencies, “[w]hen evaluating an offer of a joint venture of small business concerns” for certain multiple award contracts, to “consider the capabilities and past performance of each member of the joint venture as the capabilities and past performance of the joint venture”) | Sh_Synergy,_LLC_2023-04-28.txt |
35b99a96-51b2-47ba-a7d0-9b90bd086a23 | .24 As Plaintiffs acknowledge, the requirement to individually assess the capabilities of JV members applies equally to mentor-protégé JVs. Oral Arg. Tr. at 27:23–28:1 (Plaintiffs’ Counsel: “There’s no question that the protégé has to submit its own experience. . . . We’ve never disputed that that is the case.”) | Sh_Synergy,_LLC_2023-04-28.txt |
19c10d26-68ba-41c4-b52a-40cc257c0d7c | . Thus, both parties agree requiring a protégé firm to submit an individually performed project complies with Section 125.8(e). See, e.g., id.; Cross-MJAR at 42–44 | Sh_Synergy,_LLC_2023-04-28.txt |
283dfac9-1a6d-41ef-88e2-9dda2a19784f | . Plaintiffs’ true concern, therefore, lies in the fact that the Polaris Solicitations allow prime contractor offerors to rely on subcontractor projects, giving prime contractors greater flexibility in the projects they may submit for evaluation. Yet, Plaintiffs’ position fails to acknowledge that another SBA Regulation, 13 C.F.R. § 125.2, mandates such flexibility for prime contractors | Sh_Synergy,_LLC_2023-04-28.txt |
515c9261-8570-4d26-b858-32f7931641a7 | . Section 125.2, which governs the Polaris Solicitations as small business set-aside procurements, 24 The GAO has affirmed that SBA regulations require agencies to evaluate the capabilities and experience of the individual members of a JV offeror, including mentor-protégé JVs. See, e.g., AttainX, Inc., B-421216, B-421216.2, 2023 WL 1860802, at *7 (Comp. Gen. Jan | Sh_Synergy,_LLC_2023-04-28.txt |
df59a348-e2b5-42bd-b2b7-ad1b3dd0c79a | . 23, 2023) (“SBA regulations require the agency to evaluate each joint venture member individually when the joint venture itself does not demonstrate it has the required experience; the agency does not have license to ignore SBA regulations in its evaluation.”). Though not binding on this Court, the GAO’s decision is persuasive authority | Sh_Synergy,_LLC_2023-04-28.txt |
7d21c091-f986-4dc7-8093-aa417a0c16f3 | . 39 lists a “procuring agency’s responsibilities when providing contracting assistance to small businesses.” 13 C.F.R. § 125.2. Specifically, Section 125 | Sh_Synergy,_LLC_2023-04-28.txt |
e2e6e14e-4dd0-4103-82dd-de4bea5be0b9 | .2(g) addresses how a procuring agency should treat projects completed by the first-tier subcontractors listed on an offeror’s proposal, stating: When an offer of a small business prime contractor includes a proposed team of small business subcontractors and specifically identifies the first-tier subcontractor(s) in the proposal, the head of the agency must consider the capabilities, past | Sh_Synergy,_LLC_2023-04-28.txt |
eeb0109f-4184-42d5-920f-63570ca925ea | performance, and experience of each first tier subcontractor that is part of the team as the capabilities, past performance, and experience of the small business prime contractor if the capabilities, past performance, and experience of the small business prime does not independently demonstrate capabilities and past performance necessary for award | Sh_Synergy,_LLC_2023-04-28.txt |
e6eca931-e1cd-4c3b-8c47-066151ff98e8 | . 13 C.F.R. § 125.2(g).25 Said differently, if a prime contractor lacks the experience necessary for award, this provision requires the procuring agency to treat the experiences of first-tier subcontractors as if they belonged to the prime contractor. See Oral Arg. Tr | Sh_Synergy,_LLC_2023-04-28.txt |
21fa4f43-8c5c-4955-b0d0-f028b70ee8e4 | . at 67:24–68:1 (Defendant’s Counsel: “GSA is obligated to consider and to take into account the first-tier subcontractor’s experience under SBA regulations.”). Thus, the SBA’s regulatory regime mandates the precise disparity that underlies Plaintiffs’ concerns: Section 125.8(e) requires the agency to evaluate the individual performance of a mentor-protégé JV’s protégé member, and Section 125 | Sh_Synergy,_LLC_2023-04-28.txt |
0760cf88-5d36-4fd1-a030-74687aeb085a | .2(g) requires that the agency allow prime contractors to submit projects completely performed by subcontractors. See 13 C.F.R. §§ 125.8(e), 125.2(g). In navigating Sections 125.8(e) and 125 | Sh_Synergy,_LLC_2023-04-28.txt |
d3c8067c-762d-41cd-af3a-9ccb182564b7 | .2(g), respectively, GSA drafted the Polaris Solicitations to (1) require protégé firms to submit one Relevant Experience Project for consideration, and (2) allow prime contractors to rely 25 In their MJAR briefs, Plaintiffs originally argued that the Polaris Solicitations violated Section 125 | Sh_Synergy,_LLC_2023-04-28.txt |
a497a867-deee-41ba-9bb9-932046ac075e | .2(g) by preventing mentor-protégé JVs from using subcontractor projects to fulfill all Relevant Experience Project requirements. See SHS MJAR at 32–34; VCH MJAR at 32–34; Pl. Reply at 21–22. However, at Oral Argument, Plaintiffs’ counsel agreed with Defendant that Section 125.2(g) does not apply to mentor-protégé JVs. See Oral Arg. Tr. at 33:13–19 (“[W]e do not believe that 125.2 applies to the | Sh_Synergy,_LLC_2023-04-28.txt |
62b38fc3-e8d3-4104-9bc3-00259523513d | . . . mentor-protégé joint venture . . . [, and] 13 CFR 125.8(e) is the rule that applies to mentor-protégé joint ventures.”). 40 solely on Relevant Experience Projects completed by their first-tier subcontractors | Sh_Synergy,_LLC_2023-04-28.txt |
6f12444f-95cf-4f78-888d-5218e67f82c2 | . Any resulting disparity in the nature of the projects available for submission by different offerors does not reflect an arbitrary decision by the agency to disadvantage mentor-protégé JV offerors, but instead reflects a reasonable attempt to comply with the complex regulatory regime governing the procurement | Sh_Synergy,_LLC_2023-04-28.txt |
134d726f-eb57-4624-8af1-4a34840133b7 | . Plaintiffs, therefore, are incorrect to assert that this aspect of the Polaris Solicitations violates Section 125.8(e). B. The Polaris Solicitations Violate Section 125.8(e) by Applying the Same Evaluation Criteria to Assess Relevant Experience Projects Submitted by Protégé Firms and by Offerors Generally | Sh_Synergy,_LLC_2023-04-28.txt |
512c94f1-b289-4e95-ad6e-4fde3db1f2cd | . Plaintiffs next assert that by applying the same evaluation criteria for Relevant Experience to the projects submitted by all offerors, including protégé firms, the Polaris Solicitations violate the requirement in 13 C.F.R. § 125 | Sh_Synergy,_LLC_2023-04-28.txt |
eb978e8d-fcdd-41ac-8eea-1bc3efe92bdc | .8(e) that “[a] procuring activity may not require the protégé firm to individually meet the same evaluation or responsibility criteria as that required of other offerors generally.” 13 C.F.R. § 125.8(e); see SHS MJAR at 30–31; VCH MJAR at 30–31 | Sh_Synergy,_LLC_2023-04-28.txt |
38ddba17-a2f6-49f6-947f-9f46af1f9bc5 | .26 To reiterate, under the Polaris Solicitations, GSA will award IDIQ contracts to the highest technically rated qualifying proposals based on how well the proposals score on the Solicitations’ standardized points system. See AR at 1112–13, 2152–53, 2643–44. The same standardized point system is applicable to all offerors under the current Solicitations | Sh_Synergy,_LLC_2023-04-28.txt |
fb37b1eb-d7bf-4314-ac60-43491132d65a | . Offerors are awarded points based on how well their proposals comply with the Solicitations’ four primary “evaluation factors”: (1) Relevant Experience; (2) Past Performance; (3) Systems, Certifications, and Clearances; and (4) Risk Assessment. See AR at 1112–18, 2152–58, 2643–49 | Sh_Synergy,_LLC_2023-04-28.txt |
a6dd1579-dbd8-486b-9736-3375021755aa | . Underneath each evaluation factor, the Solicitations list additional sub-factors that the proposals must meet to earn maximum points. 26 See supra note 23 (noting the parties agree that “the same evaluation or responsibility criteria,” as used in Section 125.8(e), prohibits agencies from imposing heightened, or more onerous, criteria on protégé firms). 41 See AR at 1112–18, 2152–58, 2643–49 | Sh_Synergy,_LLC_2023-04-28.txt |
87cecf88-e9a9-4619-8fd2-d2e0ac0ebf47 | . For example, offerors can earn additional points for Relevant Experience by submitting (1) projects with high contract values; (2) projects completed for various government customers; (3) cost-reimbursement projects; (4) task order awards on multiple-award contracts; (5) projects outside the contiguous United States; (6) projects related to cybersecurity experience; (7) projects demonstrating a | Sh_Synergy,_LLC_2023-04-28.txt |
85462e13-f2e9-45a3-a1a7-519697fe4512 | breadth of technological experiences; and (8) projects that demonstrate breadth of experience in emerging technology | Sh_Synergy,_LLC_2023-04-28.txt |
b8a67fdf-861a-4cef-8d26-a07eee43c26b | . See AR at 1112–18, 2152–58, 2643–49. Each of these sub-factors appears as an entry on the Solicitations’ scoring tables, and GSA awards points based on the degree to which each submitted project satisfies each sub-factor. See AR at 1112–18, 2152–58, 2643–49. Offerors are then sorted into and out of the IDIQ pools based on their verified scores for all evaluation factors | Sh_Synergy,_LLC_2023-04-28.txt |
f31f13b9-a917-412a-a9a1-b064161dcd00 | . AR at 1113–14, 2153–54, 2644–45. The parties disagree on whether the Polaris Solicitations as designed subject protégé firms to the same evaluation criteria for Relevant Experience as offerors generally, in contravention of Section 125.8(e) | Sh_Synergy,_LLC_2023-04-28.txt |
595a3b88-d51f-4bef-ac5b-f9d7ad099708 | . Plaintiffs answer this question in the affirmative, on the basis that GSA intends to use the same evaluation factors and points table to evaluate all projects, including those submitted individually by the protégé firm. See SHS MJAR at 30–31; VCH MJAR at 30–31 | Sh_Synergy,_LLC_2023-04-28.txt |
78c6cab0-56cf-43d3-b279-a939055acd8b | . Plaintiffs express particular concern over the sub-factor applicable to Primary Relevant Experience Projects that provides offerors additional points based on a project’s contract value. See SHS MJAR at 30–31; VCH MJAR at 30–31. According to Plaintiffs, this provision violates Section 125 | Sh_Synergy,_LLC_2023-04-28.txt |
0f644efe-c4c8-4868-957a-f026df781c1a | .8(e) because both protégé firms and offerors generally must submit projects with the same contract value, specifically $10 million, to receive maximum points for the project. See SHS MJAR at 30–31; VCH MJAR at 30–31 | Sh_Synergy,_LLC_2023-04-28.txt |
cd87a353-7a95-4931-988a-09915a0cff9e | . In contrast, Defendant argues the Polaris Solicitations do not require protégé firms to meet the same evaluation criteria as offerors generally because the 42 protégé firm must only submit one Relevant Experience Project, either Primary or Emerging Technology, whereas offerors generally must submit at least three Primary Relevant Experience Projects. Cross-MJAR at 38 | Sh_Synergy,_LLC_2023-04-28.txt |
32fd691e-01ec-43e2-ba56-088a57b39b7e | . For the reasons stated below, this Court agrees with Plaintiffs and holds that the Polaris Solicitations violate Section 125.8(e) by applying the same evaluation criteria to all Relevant Experience Projects, regardless of whether the project is submitted by a protégé firm or by offerors generally. The plain language of 13 C.F.R. § 125 | Sh_Synergy,_LLC_2023-04-28.txt |
5326e0ac-36f9-47b6-ade9-f95f9ef455b5 | .8(e) requires agencies to measure the individual capabilities of protégé members of mentor-protégé JVs using alternative evaluation criteria relative to offerors generally. See 13 C.F.R. § 125.8(e). Section 125.8 details the general requirements a JV must satisfy “to submit an offer for a procurement or sale set aside or reserved for small business.” 13 C.F.R. § 125.8. Section 125 | Sh_Synergy,_LLC_2023-04-28.txt |
cdc7243a-1dec-414a-a41c-6cf71732642a | .8(e) governs the way an agency must “evaluat[e] the capabilities, past performance, experience, business systems and certifications” of a joint venture offeror on a small business procurement. 13 C.F.R. § 125.8(e) | Sh_Synergy,_LLC_2023-04-28.txt |
a8e1625f-ca58-4e81-9691-b6f3ad051764 | . The regulation begins by requiring agencies to evaluate not only the capabilities and experience of the JV offeror itself, but also the “work done and qualifications held individually by each partner to the joint venture.” Id. The second sentence of Section 125 | Sh_Synergy,_LLC_2023-04-28.txt |
d16f7337-fae5-4ce3-8384-0995bd2e3f39 | .8(e) further elaborates that in individually evaluating each JV member, the agency “may not require the protégé firm to individually meet the same evaluation or responsibility criteria as that required of other offerors generally.” Id. Thus, the second sentence of Section 125 | Sh_Synergy,_LLC_2023-04-28.txt |
dfb64d66-7037-4bb1-8cfd-1d5a84b95074 | .8(e) informs agencies how to comply with the requirements detailed in the Section’s first sentence: in measuring the protégé firm’s individual capabilities and experience, the agency must assess the protégé firm using different evaluation criteria than the criteria applied to other 43 offerors generally.27 See Obsidian Sols. Grp., 54 F.4th at 1374 (quoting King, 576 U.S | Sh_Synergy,_LLC_2023-04-28.txt |
d99c620f-2e23-4208-8ef8-f5c392717109 | . at 486) (urging courts to avoid interpreting text “in a vacuum” and to instead “consider the words ‘in their context’”). Section 125.8(e) concludes by stating as long as “the joint venture in the aggregate . . . demonstrate[s] the past performance, experience, business systems and certifications necessary to perform the contract,” the JV offeror is eligible for award. 13 C.F.R. § 125.8(e) | Sh_Synergy,_LLC_2023-04-28.txt |
7898d72a-e64e-47a9-9074-9237d075fc00 | . To determine the precise agency conduct prohibited by Section 125.8(e)’s second sentence, this Court must first interpret the plain meaning of “evaluation criteria.” Boeing, 983 F.3d at 1326 (“In construing a statute or regulation, we begin by reviewing its language to ascertain its plain meaning.”) (quoting Am. Airlines, Inc. v. United States, 551 F.3d 1294, 1299 (Fed. Cir. 2008)) | Sh_Synergy,_LLC_2023-04-28.txt |
ae799da2-0336-4567-8d52-5d4b32aa474f | . SBA regulations do not expressly define “evaluation criteria,” so this Court once again consults the dictionary to determine the plain meaning of the term. See Mass. Mut. Life Ins. Co., 782 F.3d at 1367 (quoting Am. Express, 262 F.3d at 1381 n.5). “Criteria” is the plural form of “criterion,” which is defined as “a standard on which a judgment or decision may be based | Sh_Synergy,_LLC_2023-04-28.txt |
102186c6-59b7-4ba0-ad89-5062a6745b43 | .” Criterion, Merriam-Webster’s Collegiate Dictionary (11th ed. 2003). The term “evaluation” is used as an adjective to modify “criteria” and clarifies precisely which type of criteria the SBA intended to address in drafting Section 125.8(e): criteria used for evaluation | Sh_Synergy,_LLC_2023-04-28.txt |
7e7e2b51-8568-46a4-b84f-1827a4b3ef1b | . To “evaluate” something means “to determine or fix the value of; to determine the significance, worth, or condition of usu[ally] by careful appraisal and study.” Evaluate, Merriam-Webster’s Collegiate Dictionary (11th ed. 2003); 27 Such a reading is consistent with how Defendant has described the application of Section 125.8(e). See Cross-MJAR at 40–41 (“SBA’s regulations, specifically at § 125 | Sh_Synergy,_LLC_2023-04-28.txt |
0ef7b577-c9ae-4a19-9d3e-c08e309d5c72 | .8(e), provide that, when evaluating the experience ‘of an entity submitting an offer for a contract set aside or reserved for small business as a joint venture,’ the procuring agency must consider the work and qualifications of each partner to the joint venture. 13 C.F.R. § 125.8(e) | Sh_Synergy,_LLC_2023-04-28.txt |
47ccc3de-35bd-4d87-bfb1-acfbb5703de0 | . And in that context, a procuring agency ‘may not require the protégé firm to individually meet the same evaluation or responsibility criteria as that required of other offerors generally.’ Id. Thus, the regulation’s prohibition bars the protégé individually from being required to meet the same evaluation as other offerors.”) (emphases in original) | Sh_Synergy,_LLC_2023-04-28.txt |
40287992-46ac-4cd0-af33-8b32ee9b3618 | . 44 see Evaluation, Merriam-Webster Dictionary, https://www.merriam- webster.com/dictionary/evaluation (last visited Mar. 30, 2023) (“[T]he act or result of evaluating; . . . [a] determination of the value, nature, character, or quality of something or someone.”). Thus, by its plain meaning, “evaluation criteria” as used in the second sentence of Section 125 | Sh_Synergy,_LLC_2023-04-28.txt |
912db72d-1eb4-4ba2-a5ca-91be3de68de8 | .8(e) addresses the standards with which an agency intends to “determine or fix the value . . . [,] significance, worth, or condition” of a protégé firm’s “capabilities, past performance, experience, business systems and certifications.” Evaluate, Merriam-Webster’s Collegiate Dictionary (11th ed. 2003); 13 C.F.R. § 125.8(e) | Sh_Synergy,_LLC_2023-04-28.txt |
8feee3d8-c03a-4d60-aa41-7bc3214da55e | . Based on this understanding of “evaluation criteria,” the Polaris Solicitations violate Section 125.8(e). To comply with Section 125.8(e)’s requirement that agencies assess the individual capabilities of each JV member, the Solicitations require protégé firms to submit one individually performed Relevant Experience Project for evaluation. See AR at 1088, 2127, 2619; 13 C.F.R. § 125.8(e) | Sh_Synergy,_LLC_2023-04-28.txt |
41828646-67f8-436b-87e7-b6bc08930312 | . The Polaris Solicitations indicate that “[t]he Government will evaluate proposals in accordance with the instructions and evaluation criteria set forth in Sections L and M of this solicitation.” AR at 1085, 2124, 2614 (emphasis added) | Sh_Synergy,_LLC_2023-04-28.txt |
9177c685-ad91-46e5-afee-af1e6acafc03 | . Section L lists the four scored evaluation factors each proposal must satisfy (Relevant Experience; Past Performance; Systems, Certifications, and Clearances; and Risk Assessment) and defines various sub-factors offerors may demonstrate to earn maximum points for each primary evaluation factor (e.g | Sh_Synergy,_LLC_2023-04-28.txt |
a8c950db-b94e-4d8c-b0b0-ea4f725f9473 | ., contract value, breadth of relevant experience, experience with multiple government customers, etc.). AR at 1083–1111, 2122–51, 2613–42. Section M reiterates the “evaluation factors for award,” describes the Polaris Solicitations’ evaluation procedures, and includes a scoring table that allocates points to each evaluation factor and sub-factor introduced in Section L | Sh_Synergy,_LLC_2023-04-28.txt |
0bbb9aaf-b9d1-4fd7-8664-d52e3bab1241 | . AR at 1112–19, 2152–59, 2643– 45 50.28 However, the Solicitations do not incorporate distinct evaluation criteria that offerors and GSA should use to evaluate the protégé firm’s individual project | Sh_Synergy,_LLC_2023-04-28.txt |
01350fb6-23a6-4fa1-a7e2-eff28e67de04 | . Instead, in evaluating and awarding points for the protégé’s Relevant Experience Project, GSA intends to use the same evaluation criteria, or the same evaluation sub-factors and scoring table, to assess every project submitted for consideration, including that of the protégé. This is precisely the circumstance that Section 125.8(e) precludes | Sh_Synergy,_LLC_2023-04-28.txt |
c9e731dc-e2f6-4dbe-a4c2-3d645d6e92c5 | .29 28 The terms “evaluation factor” and “evaluation subfactor” appear frequently throughout federal procurement statutes, SBA regulations, and the FAR to describe the criteria used to evaluate procurements. See, e.g., 41 U.S.C | Sh_Synergy,_LLC_2023-04-28.txt |
8cbde082-ca03-4711-97dd-03c9a36bea3b | . § 3306(c)(1) (titled “Evaluation factors,” and stating “[i]n prescribing the evaluation factors to be included in each solicitation for competitive proposals, an executive agency shall . . | Sh_Synergy,_LLC_2023-04-28.txt |
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