Dyncorp International, LLC v. United States ( 2021 )

Case: 20-2041 Document: 99 Page: 1 Filed: 08/25/2021
United States Court of Appeals
for the Federal Circuit
______________________
DYNCORP INTERNATIONAL, LLC,
Plaintiff-Appellant
v.
UNITED STATES, KELLOGG BROWN & ROOT
SERVICES, INC., VECTRUS SYSTEMS
CORPORATION, FLUOR INTERCONTINENTAL,
INC., PAE-PARSONS GLOBAL LOGISTICS
SERVICES, LLC,
Defendants-Appellees
______________________
2020-2041
______________________
Appeal from the United States Court of Federal Claims
in No. 1:19-cv-01133-LAS, Senior Judge Loren A. Smith.
______________________
Decided: August 25, 2021
______________________
AARON MARTIN PANNER, Kellogg, Huber, Hansen,
Todd, Evans & Figel, PLLC, Washington, DC, for plaintiff-
appellant. Also represented by COLLIN WHITE.
WILLIAM PORTER RAYEL, Commercial Litigation
Branch, Civil Division, United States Department of Jus-
tice, Washington, DC, argued for defendant-appellee
United States. Defendant-appellee United States also rep-
resented by SARAH ELAINE HARRINGTON, ROBERT EDWARD
Case: 20-2041 Document: 99 Page: 2 Filed: 08/25/2021
2 DYNCORP INTERNATIONAL, LLC v. US
KIRSCHMAN, JR., PATRICIA M. MCCARTHY; DANA J. CHASE,
SCOTT NICHOLAS FLESCH, GREGORY T. O’MALLEY, Contract
and Fiscal Law Division, United States Army Legal
Service Agency, Fort Belvoir, VA.
SETH LOCKE, Perkins Coie, LLP, Washington, DC, for
defendant-appellee Kellogg Brown & Root Services, Inc.
Also represented by LEE PAUL CURTIS, BRENNA DUNCAN,
JULIA M. FOX; DAN L. BAGATELL, Hanover, NH.
DEANNE MAYNARD, Morrison & Foerster LLP, Wash-
ington, DC, for defendant-appellee Vectrus Systems Corpo-
ration. Also represented by SETH W. LLOYD, KEVIN P.
MULLEN, MICHAEL QIAN, JAMES A. TUCKER.
ANDREW E. SHIPLEY, Wilmer Cutler Pickering Hale and
Dorr LLP, Washington, DC, for defendant-appellee Fluor
Intercontinental, Inc. Also represented by PHILIP EDWARD
BESHARA.
ANUJ VOHRA, Crowell & Moring, LLP, Washington, DC,
for defendant-appellee PAE-Parsons Global Logistics Ser-
vices, LLC. Also represented by CHRISTIAN CURRAN,
ZACHARY H. SCHROEDER.
______________________
Before PROST, SCHALL, and O’MALLEY, Circuit Judges.
PROST, Circuit Judge.
This bid-protest case arises from a peculiar procure-
ment mechanism. Contracting officers often must discuss
deficiencies and significant weaknesses in proposals with
offerors before proposals are final. And so when an offeror
proposes a price that is unreasonably high (so as to pre-
clude an award), the government must discuss that unrea-
sonableness with the offeror, potentially giving it a chance
to revise its proposal to fix what may have went wrong. If
the price is too high yet not unreasonable, the government
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DYNCORP INTERNATIONAL, LLC v. US 3
need not discuss it and the offeror need not get another try.
The upshot is that an offeror whose initial proposal is un-
reasonably priced may fare better than one whose isn’t.
Here, six firms vied for spots to perform logistics work
for the Army across the globe. DynCorp lost. Its prices
were higher than its competitors’; its proposed technical
approach was worse. After balancing four proposal-evalu-
ation factors, none of which DynCorp was best on, the
Army went with other offerors.
Now DynCorp argues that the price it gave the Army
was so high as to be unreasonable—and that the Army
should have concluded as much and given it the oppor-
tunity to revise its proposed approach. DynCorp takes is-
sue with the Army’s price-reasonableness analysis, which
it says skirted regulatory requirements and was irrational
besides.
The Court of Federal Claims dismissed DynCorp’s bid
protest, finding no error in the Army’s analysis. As we ex-
plain below, we agree. Accordingly, we affirm.
BACKGROUND
I. THE SOLICITATION
This case involves the fifth iteration of the Army’s Lo-
gistics Civil Augmentation Program—i.e., “LOGCAP V”—
a procurement for logistics support services. Appellant,
DynCorp International, LLC (“DynCorp”), was an unsuc-
cessful offeror. Four of the appellees—Kellogg, Brown
& Root Services, Inc. (“KBR”), Vectrus Systems Corpora-
tion (“Vectrus”), Fluor Intercontinental, Inc. (“Fluor”), and
PAE-Parsons Global Logistics Services, LLC (“P2GLS”)—
were successful.
By way of background, in November 2017 the Army is-
sued the LOGCAP V solicitation under Request for Pro-
posal No. W52P1J-16-R-0001. DynCorp Int’l LLC v. United
States, 148 Fed. Cl. 568, 572 (2020) (“DynCorp I”).
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4 DYNCORP INTERNATIONAL, LLC v. US
Generally, LOGCAP is a procurement program for civilian
logistics support services to the United States Army and
related Department of Defense components throughout the
world. In this iteration, the Army was to award four to six
indefinite-delivery, indefinite-quantity (“IDIQ”) con-
tracts—each covering services among six geographic com-
mands, plus Afghanistan. 1 Concurrent with the IDIQ
awards, the Army was also to award seven sets of task or-
ders—one set for each command and another for Afghani-
stan. Id. The services are broad: for instance, “supply
operations, transportation services, engineering services,
base camp services, and other logistics and sustainment
support services,” including “minor construction[,] food ser-
vices[,] laundry[,] morale, welfare, and recreation ser-
vices[,] billeting[, and] facility management.”
J.A. 1130447.
Under the solicitation, proposals were to be evaluated
as a best-value tradeoff between four factors: (1) “tech-
nical/management,” (2) “past performance,” (3) “small
business participation,” and (4) “cost/price.” DynCorp I,
148 Fed. Cl. at 572 (capitalization normalized); see also
J.A. 1002511, 1002624. For the first three factors, each
proposal was to be assigned a qualitative adjectival rat-
ing—“good,” “acceptable,” or the like. See DynCorp I,
148 Fed. Cl. at 572–73. The technical/management factor
1 That is, Northern Command (“NORTHCOM”),
Southern Command (“SOUTHCOM”), European Com-
mand (“EUCOM”), African Command (“AFRICOM”), Cen-
tral Command (“CENTCOM”), and Pacific Command
(“PACOM”). DynCorp I, 148 Fed. Cl. at 572. The IDIQ
contracts were divided into three so-called Operational Pri-
ority Groupings (EUCOM/PACOM,
CENTCOM/NORTHCOM/AFRICOM/SOUTHCOM, and
Afghanistan). Id. For short, the commands and Afghani-
stan are referred to here as “regions.”
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DYNCORP INTERNATIONAL, LLC v. US 5
was the most important, and cost/price the least. Id.
at 572; J.A. 1002624.
The technical/management factor evaluation criteria
reflected the complexity and scope of the procurement, as
well as the latitude given to individual offerors to choose
their own technical approaches to fulfilling the Army’s lo-
gistical needs. The Army was to evaluate, for example, “of-
ferors’ regional capabilities, management approach, key
initiatives, and labor staffing models.” DynCorp I, 148 Fed.
Cl. at 573 (capitalization normalized); J.A. 1002626–27.
The solicitation also detailed how cost and price would
be evaluated—both for realism and reasonableness. See
J.A. 1002629–30. “Cost realism” asks if a cost estimate is
too low; “price reasonableness” asks if a proposed price is
too high. Agile Def., Inc. v. United States, 959 F.3d 1379,
1384 (Fed. Cir. 2020); see also FAR 15.404-1(d)(1). 2 As rel-
evant here, the solicitation encompassed cost-plus-fixed-
fee and firm-fixed-price portions. See DynCorp I, 148 Fed.
Cl. at 573. To be considered, an offeror’s total proposed cost
(for the cost-plus-fixed-fee portion) and total proposed price
(for the firm-fixed-priced portion) had to separately be
found reasonable. Id. at 573, 579; J.A. 1002629–30. Un-
reasonableness for any region would render the offeror in-
eligible for award in that region, notwithstanding the
strength of any other factor. J.A. 1002630.
This appeal specifically concerns price reasonableness
for the firm-fixed-price portion. To that end, the solicita-
tion provided that price reasonableness would be evaluated
“using price analysis techniques” in accordance with
FAR 15.404-1(b). See J.A. 1002629–30.
2 The Federal Acquisition Regulation (“FAR”) is cod-
ified in chapter 1 of title 48 of the Code of Federal Regula-
tions. The section numbering is coextensive: for example,
FAR 15.404 is codified at 48 C.F.R. § 15.404.
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6 DYNCORP INTERNATIONAL, LLC v. US
II. THE PROPOSALS
Six offerors submitted proposals. DynCorp I, 148 Fed.
Cl. at 573. All six participated in multiple rounds of dis-
cussions and proposal revisions over the course of a year.
Id. During these discussions, the Army issued more than
one hundred evaluation notices to DynCorp alone, of which
thirty-nine related to cost or price in general. Id. All were
satisfactorily resolved.
The contracting officer noted that DynCorp had pro-
vided the most expensive proposals in five regions but
opted not to discuss the total-price issue with DynCorp. Id.
Namely, the contracting officer determined that there was
“no basis to state that DynCorp’s prices are too high,” be-
cause its proposed hours and labor types were acceptable
from a technical perspective, and there were no issues with
its proposed direct and indirect rates. J.A. 1124864.
On the technical/management factor, DynCorp’s pro-
posals all were rated merely “good” or “acceptable.” Dyn-
Corp I, 148 Fed. Cl. at 573. Its labor staffing model was
“feasible” and seemed “consistent, scalable, and adjusta-
ble,” even if “generic and simplistic.” Id. But DynCorp’s
proposal also “failed to mitigate risks with transparency,
affordability, and predictability.” Id. at 573–74.
In February 2019, the Army issued a memorandum for
each region comparing the offerors’ total cost-plus-fixed-fee
amounts to each other and total firm-fixed-prices to each
other. It determined (1) that there was adequate price com-
petition in each region and (2) that the lowest-priced offer
was reasonable. DynCorp I, 148 Fed. Cl. at 581. And in
April 2019, it awarded four IDIQ contracts, along with re-
lated task orders. 3 Id. at 573. DynCorp won none of them.
3 KBR received EUCOM, NORTHCOM, and Afghan-
istan; Vectrus received PACOM and CENTCOM; Fluor
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DYNCORP INTERNATIONAL, LLC v. US 7
III. THE AFTERMATH
A. The First Round at the Court of Federal Claims
In August 2019, DynCorp brought a bid protest in the
Court of Federal Claims challenging the awards under the
Administrative Procedure Act (“APA”). See generally Dyn-
Corp I, 148 Fed. Cl. 568. That action followed the denial of
an earlier bid protest that it had filed with the Government
Accountability Office. Id. at 574.
DynCorp’s protest made a bevy of allegations. See id.
at 575. After briefing, the parties cross-moved for judg-
ment on the administrative record. The Court of Federal
Claims later rejected most of DynCorp’s challenges—all
but one. 4 DynCorp had accused the Army of erring in its
price-reasonableness analysis. Id. at 579. At first, the
Army had evaluated price reasonableness for only some of-
fers—the lowest-priced and winning ones. See id. at 581.
In its view, that was all it needed to do to ensure that the
contract could be awarded at a fair and reasonable price.
But the solicitation required the Army to evaluate price
reasonableness for all offers. Id. at 579, 581. This mat-
tered: an unreasonably high price would be a “deficiency”
or “significant weakness” that the Army would be required
to discuss with the offeror. Id. at 582 (citing WorldTrav-
elService v. United States, 49 Fed. Cl. 431, 439 (2001)); see
FAR 15.306(d)(3).
Reasoning that this failure seriously hampered Dyn-
Corp’s chances to win and made it impossible to tell
whether the Army had otherwise gone astray in its price-
reasonableness analysis, the court found both error and
prejudice. DynCorp I, 148 Fed. Cl. at 582, 585. It explained
received AFRICOM; and P2GLS received SOUTHCOM.
DynCorp I, 148 Fed. Cl. at 573.
4 The other challenges are not at issue in this appeal.
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8 DYNCORP INTERNATIONAL, LLC v. US
as much to the parties from the bench at argument. See
J.A. 1862–65.
B. The Army’s Corrective Action on Remand
Before receiving a judgment and written opinion on the
above problems, the Army changed course. In advance of
the Court of Federal Claims’ written opinion discussing its
findings above, it became clear to the Army that its failure
to evaluate all the proposals for reasonableness was prob-
lematic. See DynCorp I, 148 Fed. Cl. at 585. So, the Army
told the trial court in December 2019 that it intended to
take corrective action on that front. Id. The court stayed
and remanded the case to allow the Army to do so. Id.
at 586.
On remand, the Army sought additional data from the
offerors to justify the reasonableness of their firm-fixed
prices. See J.A. 670–1689, 1753885, 1755618, 1755715,
1755844, 1755951, 1772629. It reviewed this information
along with that in the original proposals.
Each proposal differed in its technical approach. Ac-
cordingly, the Army looked at each element of each ap-
proach, evaluated whether it was technically reasonable,
analyzed whether the price was reasonable for that ele-
ment, and then determined whether the price was reason-
able overall. See J.A. 670–1689. In all, the Army
generated seventy-eight memoranda spanning over a thou-
sand pages and detailing its price-reasonableness analysis
for each offer in each region. See J.A. 669–1689. All six
offerors, it concluded, had proposed reasonable (if different)
technical approaches with reasonable (if different) prices.
Accordingly, the Army declined to reopen discussions,
maintained its prior award choices, and in February 2020
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DYNCORP INTERNATIONAL, LLC v. US 9
notified the trial court of the results of its corrective action.
DynCorp I, 148 Fed. Cl. at 586; J.A. 665–69. 5
C. The Second Round at the Court of Federal Claims
Back at the Court of Federal Claims, DynCorp re-
mained dissatisfied, continuing to insist that its offer must
have been unreasonable and that the Army’s price-reason-
ableness analysis was erroneous. To that end, it argued
that the Army had violated the FAR in its choice of price-
analysis techniques and had irrationally concluded that all
the prices were reasonable despite their spanning a wide
range. See DynCorp Int’l LLC v. United States,
No. 19-1133, 2020 U.S. Claims LEXIS 959, at *5–6
(Fed. Cl. May 21, 2020) (“DynCorp II”).
The Court of Federal Claims disagreed, concluding that
the Army had complied with the FAR and the solicitation,
which did not restrict the Army’s discretion in the way
DynCorp said it did. Id. at *8. The court observed that
DynCorp simply “disagree[d] with the manner in which the
[Army] conducted its price reasonableness evaluations.”
Id. at *5–6. With the corrective action considered, the court
reasoned, DynCorp had identified nothing to justify
5 The corrective action here was relevant to other bid
protests concerning the LOGCAP V solicitation. See, e.g.,
Fluor Intercontinental, Inc. v. United States, 147 Fed. Cl.
309, 333–36 (2020); AECOM Mgmt. Servs., Inc. v. United
States, 147 Fed. Cl. 285, 294 (2020); PAE-Parsons Glob. Lo-
gistics Servs., LLC v. United States, 147 Fed. Cl. 294,
308–09 (2020). And in those cases, the trial court rejected
in detail various other challenges to the Army’s price-rea-
sonableness analysis. See, e.g., Fluor, 147 Fed. Cl. at 338
(concluding that corrective action “adequately evaluated
price reasonableness in accordance with both the [s]olicita-
tion and the FAR”); AECOM, 147 Fed. Cl. at 293–94.
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10 DYNCORP INTERNATIONAL, LLC v. US
overturning the award. Accordingly, it dismissed the case.
Id. at *11–12.
DynCorp now appeals. We have jurisdiction under
28 U.S.C. § 1295(a)(3).
DISCUSSION
I
A bid protest has two steps. First, the trial court de-
termines whether the government acted irrationally or
contrary to law in evaluating the proposals and awarding
the contract. Bannum, Inc. v. United States, 404 F.3d 1346,
1351 (Fed. Cir. 2005). Second, if the government erred, the
trial court then determines whether that error prejudiced
the protester. Id.Here the Court of Federal Claims discerned no error
and therefore granted judgment on the administrative rec-
ord. On appeal of that judgment, we review legal conclu-
sions de novo and underlying determinations of fact for
clear error. Id. at 1351, 1354.
The Court of Federal Claims had jurisdiction over Dyn-
Corp’s bid protest of the awards under 28 U.S.C. § 1491.
The Court of Federal Claims reviews the agency’s decision
under the judicial-review standards of the APA. 28 U.S.C.
§ 1491(b)(4). An APA challenge requires showing that the
agency action in question is “arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with
law.” 5 U.S.C. § 706(2)(A); Impresa Construzioni Geom.
Domenico Garufi v. United States, 238 F.3d 1324, 1332 n.5
(Fed. Cir. 2001). Accordingly, “[a] bid award may be set
aside” if (1) “the procurement official’s decision lacked a ra-
tional basis” or (2) “the procurement procedure involved a
violation of regulation or procedure.” WellPoint Mil. Care
Corp. v. United States, 953 F.3d 1373, 1377 (Fed. Cir. 2020)
(quoting Impresa, 238 F.3d at 1332). The APA also re-
quires that “due account shall be taken of the rule of prej-
udicial error.” 5 U.S.C. § 706. So, “[t]o prevail in a bid
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DYNCORP INTERNATIONAL, LLC v. US 11
protest, a protestor must show a significant, prejudicial er-
ror in the procurement process.” WellPoint, 953 F.3d
at 1377 (quoting Alfa Laval Separation, Inc. v. United
States, 175 F.3d 1365, 1367 (Fed. Cir. 1999)); see also Ban-
num, 404 F.3d at 1351. 6
What DynCorp challenges here is the way in which the
Army concluded that its proposed prices were reasonable.
Unreasonably high-priced proposals were ineligible for
award under the solicitation. DynCorp’s overall argument
is that if the Army had labeled its proposed price unreason-
able, then that would have been a “deficiency” or “signifi-
cant weakness” of its proposal. See DynCorp I, 148 Fed. Cl.
at 578. A relevant provision of the FAR requires contract-
ing officers to discuss “deficiencies” and “significant weak-
nesses” with offerors. See FAR 15.306(d)(3) (“At a
minimum, the contracting officer must . . . indicate to, or
discuss with, each offeror still being considered for award,
deficiencies[ and] significant weaknesses . . . to which the
offeror has not yet had an opportunity to respond. . . . How-
ever, the contracting officer is not required to discuss every
area where the proposal could be improved. The scope and
extent of discussions are a matter of contracting officer
judgment.”); DynCorp I, 148 Fed. Cl. at 577. The
6 The APA does not provide an exception to the prej-
udicial-error rule for arbitrary and capricious action. See
Glenn Def. Marine (Asia), PTE Ltd. v. United States,
720 F.3d 901, 907, 911–12 (Fed. Cir. 2013); see also Car-
stens v. Nuclear Regul. Comm’n, 742 F.2d 1546, 1558
(D.C. Cir. 1984) (noting that the “onus is squarely upon” a
party alleging error under the APA “to establish preju-
dice”); Jicarilla Apache Nation v. U.S. Dep’t of the Interior,
613 F.3d 1112, 1121 (D.C. Cir. 2010) (“Courts reviewing
agency action under section 706(2)(A)’s ‘arbitrary and ca-
pricious’ standard must take due account of the rule of prej-
udicial error.” (cleaned up)).
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12 DYNCORP INTERNATIONAL, LLC v. US
discussion prompted by that price-unreasonableness deter-
mination, DynCorp contends, would have given it the op-
portunity to revise its technical approach to reach a lower
price (perhaps incidentally bolstering its performance on
the technical factor too), improving its competitive odds.
DynCorp argues that the Army went astray in two
ways. First, we consider DynCorp’s argument that the
Army violated part 15 of the FAR in its price-reasonable-
ness analysis by bypassing two “preferred” price-analysis
techniques without meeting certain conditions. DynCorp
argues that if the Army had used the “preferred” price-
analysis techniques, it would likely have concluded that
DynCorp’s proposed price was unreasonable. Second, we
address whether the Army’s price-reasonableness conclu-
sion was arbitrary and capricious in view of the price dis-
parity among offers. DynCorp contends that the Army
failed to account for that price disparity—and that if it had,
the unreasonableness of its price would have been appar-
ent. Overall, DynCorp insists that but for either error, it
would have had a substantial chance of an award: the
Army would have had to tell it that its prices were unrea-
sonably high, and DynCorp could have revised its approach
to reach a lower price.
II
DynCorp’s first argument is that that the Army vio-
lated FAR 15.404-1 by using certain price-analysis tech-
niques without making certain predicate determinations. 7
7 An IDIQ contract such as this is not always subject
to FAR 15.404-1. See DynCorp I, 148 Fed. Cl. at 579 n.4.
The reason that FAR 15.404-1 applies here is that the
Army itself elected to employ it as a procurement-evalua-
tion method. Id. That is, the solicitation provided that the
government would “evaluate price reasonableness for the
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DYNCORP INTERNATIONAL, LLC v. US 13
In its view, had the contracting officer instead used certain
other techniques (i.e., ones that DynCorp argues are re-
quired by the FAR), its prices would have likely been
deemed unreasonable. As the argument goes, that unrea-
sonableness finding would prompt discussions, the oppor-
tunity to improve its proposal, and a better chance at an
award.
Contracting officers must procure services “at fair and
reasonable prices.” FAR 15.402(a). To that end,
FAR 15.404-1 identifies various price-analysis techniques
and provides that the “objective of proposal analysis is to
ensure that the final agreed-to price is fair and reasona-
ble.” FAR 15.404-1(a). And “[t]he complexity and circum-
stances of each acquisition should determine the level of
detail of the analysis required.” FAR 15.404-1(a)(1).
Given the differences among procurements and the
judgment involved, the government “may use various price
analysis techniques and procedures to ensure a fair and
reasonable price.” See FAR 15.404-1(b)(2). The FAR ex-
plains that “examples” of these techniques “include, but are
not limited to,” a seven-item list. See FAR 15.404-
1(b)(2)(i)–(vii). The first two on that list are comparison of
proposed prices to each other and to historical prices.
FAR 15.404-1(b)(i), (ii). The list continues: “parametric es-
timating methods/application of rough yardsticks,” “[c]om-
parison with competitive published price lists, published
market prices of commodities, [or] similar indexes,” “[c]om-
parison . . . with independent [g]overnment cost esti-
mates,” and “[c]omparison . . . with prices obtained through
market research.” FAR 15.404(b)(iii)–(vi). The last-listed
technique is “[a]nalysis of data other than certified cost or
fixed priced effort [in accordance with] FAR 15.404-1(b).”
Id. at 579 (alteration in original); see also J.A. 1002629.
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14 DYNCORP INTERNATIONAL, LLC v. US
pricing data . . . provided by the offeror.” FAR 15.404-
1(b)(vii).
Among these, the FAR suggests a starting point:
The first two techniques at 15.404-1(b)(2) are the
preferred techniques. However, if the contracting
officer determines that information on competitive
proposed prices or previous contract prices is not
available or is insufficient to determine that the
price is fair and reasonable, the contracting officer
may use any of the remaining techniques as appro-
priate to the circumstances applicable to the acqui-
sition.
FAR 15.404-1(b)(3).
The Army did not use the first two techniques and did
not make a documented determination that such infor-
mation was unavailable or insufficient. The question in
this case is whether it was required to.
DynCorp insists that any but the “preferred” tech-
niques are strictly forbidden unless there is first a “deter-
mination” that competitive or historical price information
is unavailable or insufficient. Appellees, the successful
awardees, argue that FAR 15.404-1(b)(3) provides guid-
ance, not a rule, and that a contracting officer has discre-
tion to determine which price-analysis technique to use as
appropriate. The government agrees. So did the Court of
Federal Claims. See DynCorp II, 2020 U.S. Claims LEXIS
959, at *8–10; see also, e.g., Ala. Aircraft Indus., Inc.-Bir-
mingham v. United States, 83 Fed. Cl. 666, 696 (2008),
rev’d on other grounds, 586 F.3d 1372 (Fed. Cir. 2009); Sur-
vival Sys. USA, Inc. v. United States, 102 Fed. Cl. 255, 269
(2011).
A
In our view, FAR 15.404-1(b)(3) does not conditionally
prohibit a contracting officer from using any particular
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DYNCORP INTERNATIONAL, LLC v. US 15
price-analysis technique. Rather, FAR 15.404-1 leaves the
choice of price-analysis technique to a contracting officer’s
reasonable judgment in the context of an individual pro-
curement.
1
As an initial matter, we reiterate that “contracting of-
ficers are entitled to exercise discretion upon a broad range
of issues confronting them in the procurement process.”
Impresa, 238 F.3d at 1332 (cleaned up). “Contracting offic-
ers are given broad discretion in their evaluation of bids,”
and when a decision within the scope of that discretion “is
reasonable[,] a court may not substitute its judgment for
that of the agency.” R & W Flammann GmbH v. United
States, 339 F.3d 1320, 1322 (Fed. Cir. 2003). Naturally, an
agency has no discretion to disregard binding regulations.
E.g., 5 U.S.C. § 706(2). But proposal price-reasonableness
analysis otherwise sits comfortably amid this discretionary
background.
In Agile Defense, this court considered discretion in
cost-realism analysis—a facet of proposal evaluation simi-
lar to price-reasonableness and also based in
FAR 15.404-1. And there we endorsed the Court of Federal
Claims’ view that “contracting agencies enjoy wide latitude
in conducting the cost realism analysis.” Agile Def.,
959 F.3d at 1385–86 (cautioning against “unduly circum-
scrib[ing] a contracting officer’s discretion and ham-
string[ing] a contracting agency’s efforts”).
These principles extend to price reasonableness too.
Indeed, the Court of Federal Claims has observed as much.
See infra section II.A.4. After all, the point of a price-rea-
sonableness analysis is to protect the public from paying a
price that is too high for what is being procured. See Agile
Def., 959 F.3d at 1384. And what exactly is “reasonable” is
a judgment based on the specifics of the government’s
needs.
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16 DYNCORP INTERNATIONAL, LLC v. US
2
Against this backdrop, we consider the interpretive
question before us. We agree with the Court of Federal
Claims: FAR 15.404-1(b)(2) and (3) are permissive, not pro-
hibitive.
The FAR states that the government “may use various
price analysis techniques and procedures to ensure a fair
and reasonable price.” FAR 15.404-1(b)(2) (emphasis
added); see FAR 2.101 (“May denotes the permissive.”). It
explains that the listed techniques are nonlimiting “exam-
ples.” FAR 15.404-1(b)(2). Further, the provision states
that the first two techniques are simply “preferred.”
FAR 15.404-1(b)(3). “Preferred” expresses here a sugges-
tion, not a strict hierarchy. In this context, “preferred” does
not mean “required” but instead “encouraged.” See also,
e.g., Webster’s Third New International Dictionary (1961)
(defining “prefer” as “like better : value more highly”). It is
more “should” than “shall.” See AT&T v. United States,
307 F.3d 1374, 1379–80 (Fed. Cir. 2002) (interpreting reg-
ulations as a “caution,” “not a prohibition,” where text pro-
vided that a preferred type of contract conditionally
“should be considered”); Qwest Corp. v. FCC, 258 F.3d
1191, 1200 (10th Cir. 2001) (explaining that “should” con-
veys “recommended course of action” but does not imply ob-
ligation of “shall”).
DynCorp points to what it views as limiting prohibitory
language: namely, that “if the contracting officer deter-
mines that information on competitive proposed prices or
previous contract prices is not available or is insufficient to
determine that the price is fair and reasonable, the con-
tracting officer may use any of the remaining techniques as
appropriate.” FAR 15.404-1(b)(3). Here we do not read “if”
to mean “only if.” And at any rate (assuming that the in-
formation is “available”), the “if” clause at most asks for a
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DYNCORP INTERNATIONAL, LLC v. US 17
determination that the preferred technique is “insufficient
to determine that the price is fair and reasonable.” 8
The nature of this supposed “determination” confirms
our view. “Insufficient” in this context is a judgment call.
The yardstick by which sufficiency is measured here is not
some specific rule, formula, calculation, or detailed fact-
finding. Rather, it is the reasonable-discretion-informed
appropriateness of the technique under the circumstances.
In exercising her fact-specific judgment to select a price-
analysis technique, a contracting officer will reasonably
view some to be suitable and some not—in a manner that
may be implicit. FAR 15.404-1(b)(3) imposes no further re-
quirement than that. The “if” provision, accordingly, oper-
ates not to cabin a contracting officer’s discretion but to
give the preference whatever weight is due under the cir-
cumstances of a particular procurement. Of course, a con-
tracting officer’s price analysis must be rational: the choice
is committed to discretion, not whim. See 5 U.S.C. § 706.
But the plain language of the provision itself is not prohib-
itive and does not conditionally restrict a contracting of-
ficer’s discretion.
3
We turn next to the FAR as a whole. See Antonin
Scalia & Bryan A. Garner, Reading Law 167 (2012) (“The
8 As the government observes, the text refers to the
technique being “insufficient to determine that the price is
fair and reasonable,” not “whether the price is fair and rea-
sonable” or “that the price is unreasonable.” See United
States Br. 35–38. The government’s argument is that even
if FAR 15.404-1(b)(3) were limiting, it would only be limit-
ing if the contracting officer could declare an offeror’s price
to be reasonable using the preferred techniques, preventing
the government in that instance from using the other tech-
niques to instead find the price unreasonable.
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18 DYNCORP INTERNATIONAL, LLC v. US
text must be construed as a whole. . . . Context is a primary
determinant of meaning. A legal instrument typically con-
tains many interrelated parts that make up the whole.”).
FAR 15.404-1(b)(3) is part of a larger set of related rules—
the Federal Acquisition Regulation. And the broader text
of the FAR confirms that this language isn’t prohibitive.
To this end, it’s useful to look at the language that the
FAR uses where it does prohibit or condition certain ac-
tions. For instance: “no person may.” See, e.g., FAR 2.101
(“[T]he words ‘no person may . . .’ mean that no person is
required, authorized, or permitted to do the act de-
scribed.”). Or “shall not.” See, e.g., FAR 6.302-1(b) (“This
authority shall be used, if appropriate, in preference to the
authority in 6.302-7; it shall not be used when any of the
other circumstances is applicable.”).
It’s also revealing to look at the language the FAR uses
when requiring action. For one: “shall.” See, e.g.,
FAR 2.101 (“Shall denotes the imperative.”);
FAR 15.404-1(a)(2) (“Price analysis shall be used when cer-
tified cost or pricing data are not required . . . .” (emphasis
added)); FAR 15.404-4(b)(1)(i) (“[The government] [s]hall
use a structured approach for determining the profit or fee
objective in those acquisitions that require cost analysis
. . . .” (emphasis added)). Or “must.” See, e.g., FAR 2.101
(“Must (see ‘shall’).”). Similarly, the FAR at various points
within a single provision uses both “shall” (a command)
and “should” or “may” (a preference or permission). See,
e.g., FAR 15.404-1(a); cf. Huston v. United States, 956 F.2d
259, 262 (Fed. Cir. 1992) (“When, within the same statute,
Congress uses both ‘shall’ and ‘may,’ it is differentiating be-
tween mandatory and discretionary tasks.”).
What’s more, FAR 15.404-1(b) lacks a documentation
requirement. Generally, “[c]ontracting officers are not ob-
ligated by the APA to provide written explanations for their
actions.” Impresa, 238 F.3d at 1337. And elsewhere the
FAR details where documentation of a determination is
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DYNCORP INTERNATIONAL, LLC v. US 19
required. See, e.g., FAR 15.304(c)(3)(iii) (“Past perfor-
mance need not be evaluated if the contracting officer doc-
uments the reason past performance is not an appropriate
evaluation factor for the acquisition.”); FAR 15.208(e) (“The
contracting officer must document the contract file when
oral withdrawals are made.”); FAR 15.407-1(d) (“The con-
tracting officer shall prepare a memorandum documenting
both the determination and any corrective action taken as
a result.”); see also Vectrus Br. 32–33 & n.8 (collecting ex-
amples). Such a requirement is absent here.
Indeed, elsewhere the FAR uses far stronger language
for the exact formulation that DynCorp argues here: a de-
fault rule prohibiting departure absent satisfying certain
conditions. For example, the FAR instructs in source se-
lections that past performance “shall be evaluated” as a
factor, but “need not be evaluated if the contracting officer
documents the reason past performance is not an appropri-
ate evaluation factor for the acquisition.”
FAR 15.304(c)(3)(i), (iii).
Accordingly, the FAR drafters’ use of “preferred” and
“may” here—without an express documentation require-
ment and against a discretionary proposal-evaluation
backdrop—is consistent with the choice of technique being
committed to a contracting officer’s discretion.
4
Finally, we observe that other tribunals to encounter
FAR 15.404-1 have viewed it the same way we do. Indeed,
DynCorp has not identified any decision holding that
FAR 15.404-1(b)(3) restricts agency discretion in the way it
suggests. The Court of Federal Claims in Survival Sys-
tems, USA v. United States, in contrast, explained that
FAR 15.404-1 simply “provides guidance” in a way that
nonetheless “permits the agency broad discretion.”
102 Fed. Cl. at 267. Specifically, FAR 15.404-1(b)(2) “per-
mits the government discretion in its choice of method to
determine price reasonableness.” Id. at 269. And in
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20 DYNCORP INTERNATIONAL, LLC v. US
Overstreet Electric Co. v. United States, the court noted
that the regulation “indicates that the [g]overnment has
discretion in choosing which of several acceptable price
analysis methods to employ.” 47 Fed. Cl. 728, 733 n.8
(2000). So too in Alabama Aircraft Industries. 83 Fed. Cl.
at 696 (“[The] FAR lacks an explicit directive to contracting
agencies mandating the use of any particular analytical
tool in evaluating the reasonableness and realism of an of-
feror’s price.”). And the Court of Federal Claims in this
case agreed too. DynCorp II, 2020 U.S. Claims LEXIS 959,
at *8–10. Though these views are not binding, they are
consistent with ours.
B
In the alternative, even if the language of
FAR 15.404-1(b)(3) were read to require a specific determi-
nation that the two “preferred” techniques were inade-
quate, in our view the contracting officer made that
determination. Although it was not documented, it is clear
from the record and was within the scope of the contracting
officer’s discretion. Accordingly, the record is “sufficient to
permit meaningful judicial review,” see Palantir USG, Inc.
v. United States, 904 F.3d 980, 994 (Fed. Cir. 2018), and
“the agency’s decisional path is reasonably discernible,” see
Wheatland Tube Co. v. United States, 161 F.3d 1365,
1369–70 (Fed. Cir. 1998).
1
FAR 15.404-1(b)(3) is not particularly demanding. It
explains that “if the contracting officer determines that in-
formation on competitive proposed prices or previous con-
tract prices is not available or is insufficient to determine
that the price is fair and reasonable, the contracting officer
may use any of the remaining techniques as appropriate to
the circumstances applicable to the acquisition.”
FAR 15.404-1(b)(3) (emphasis added).
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DYNCORP INTERNATIONAL, LLC v. US 21
As an initial matter, DynCorp argues that the suppos-
edly required “determination” concerns whether the under-
lying information is “insufficient” to compare prices. See
Appellant’s Br. 35–36. And it contends that the infor-
mation cannot be “insufficient” to compare prices here, as
the record is full of competitive pricing information. See
Appellant’s Br. 36. The Army used this information pre-
protest to determine that the lowest-priced offers were rea-
sonable. Accordingly, the argument goes, the Army could
have compared proposals and therefore could not have de-
termined the underlying information to be insufficient to
do so. This misses the point. “Insufficient” in this context
means insufficient for determining price reasonableness
overall. See FAR 15.404-1(b)(3). And that insufficiency is
a value-laden consideration: for some procurements, an
overall price comparison between proposals or a historical
comparison might make sense; for some, it might not.
Therefore, the question becomes whether it is discernible
from the record that the Army itself viewed competitive or
historical price comparisons to be insufficient to assess rea-
sonableness.
2
DynCorp argues that the record does not reflect the
Army having determined that the two preferred price-anal-
ysis techniques were insufficient. We disagree.
In February 2019, while proposals were being evalu-
ated the first time around, the Army issued a memoran-
dum for each region separately comparing the cost-plus-
fixed-fee portions to each other and the firm-fixed-price
portions to each other. J.A. 1069866–94. The Army found
adequate price competition in each region and that the low-
est-priced offers were reasonable. J.A. 1069866–94. But it
noted at the time that it might need further information to
evaluate the other, higher-priced offers. See, e.g.,
J.A. 1069877; see also J.A. 1755951 (noting that it “re-
served the right to request this information if needed to
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22 DYNCORP INTERNATIONAL, LLC v. US
assess reasonableness of the proposed prices”). And in-
deed, when later analyzing all prices in December 2019,
the Army did request further cost and pricing data from
offerors and chose to analyze “data other than certified cost
and pricing data”—i.e., data falling under FAR 15.404-
1(b)(2)(vii), a non-preferred technique. See J.A. 1753885,
1755618, 1755715, 1755844, 1755951, 1772629. In doing
so, it wrote that this other information was “needed to as-
sess reasonableness.” J.A. 1753885, 1755618, 1755715,
1755844, 1755951, 1772629.
The decisional basis is clear. This was a complicated
procurement in which each offeror proposed a different
technical approach. Upon receiving that information, the
agency documented its analysis at great length, specifically
invoking FAR 15.404-1(b)(2)(vii). Accordingly, it is clear
from the record that the contracting officer, in its discre-
tion, viewed the “preferred” techniques to be insufficient to
assess reasonableness.
III
DynCorp’s second argument is that the Army’s pro-
curement decisions here were arbitrary and capricious for
purportedly failing to address what DynCorp views as a
fundamental problem: “dramatic disparities that sepa-
rate[d] the prices of the offerors.” Appellant’s Br. 36–37.
DynCorp argues that the Army failed to “examine the rel-
evant data and articulate a satisfactory explanation for its
action including a ‘rational connection between the facts
found and the choice made.’” Appellant’s Br. 37 (quoting
Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co.,
463 U.S. 29, 43 (1983)).
DynCorp accuses the Army of a “critical logical gap”—
namely, a supposed failure to “square its conclusion that
all offerors’ prices were reasonable with the known price
disparities.” Reply Br. 13. DynCorp’s view is that it is an
“obvious problem” that all the proposed prices could be rea-
sonable despite wide variation among them. Appellant’s
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DYNCORP INTERNATIONAL, LLC v. US 23
Br. 29. And it insists that the Army “cannot coherently ex-
plain” how that can be. Id. at 4. As for the consequences
of this alleged error, DynCorp insists that the consequence
of accounting for that price disparity would likely have
been a finding that DynCorp’s prices were unreasonable.
From that finding, DynCorp says, would stem discussions
and an opportunity to revise its proposal.
Appellees, for their part, suggest that “competing offe-
rors’ prices in a best value procurement always vary”—a
“banal fact” that means that, inevitably, “some proposals
are more expensive than others.” E.g., Fluor Br. 37. There
is simply no “fundamental problem” to address, they say.
And they suggest that the disparities in price here all fol-
low from differences in proposals’ technical approaches
(differences all reasonable, all unchallenged, and all con-
sidered in the Army’s analysis).
Review in bid protests under the arbitrary-and-capri-
cious standard is “highly deferential.” Glenn Def., 720 F.3d
at 907 (quoting Advanced Data Concepts, Inc. v. United
States, 216 F.3d 1054, 1058 (Fed. Cir. 2000)). Under it, we
must “sustain an agency action evincing rational reasoning
and consideration of relevant factors.” Advanced Data
Concepts, 216 F.3d at 1058 (citing Bowman Transp., Inc.
v. Ark.-Best Freight Sys., Inc., 419 U.S. 281, 285 (1974)).
And an “explicit explanation is not necessary . . . where the
agency’s decisional path is reasonably discernible.” Wheat-
land Tube, 161 F.3d at 1369–70.
The Army did not ignore the price differences. Indeed,
it acknowledged that DynCorp had “the highest total pro-
posed price when compared [with] the total proposed prices
of the other offerors.” See J.A. 1124863–67 (memorandum
discussing DynCorp’s total proposed prices). But it ac-
counted for the differences—for instance, by noting differ-
ential labor hours and rates among offerors. Id.; see also,
e.g., KBR Br. 38–39 (noting that the Army “reviewed the
unique aspects of each offeror’s firm-fixed-price [portions]
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24 DYNCORP INTERNATIONAL, LLC v. US
and assessed related differences in pricing” (discussing
J.A. 796–850, 975–1028, 1130–80, 1304–53, 1473–530,
1650–86)). In some areas DynCorp proposed using more
hours and higher labor rates—including, for example, a
higher proportion of more-expensive expatriate hours. See
J.A. 1124863–64. DynCorp’s technical choices were Dyn-
Corp’s prerogative. And DynCorp points to nothing specific
in its pricing that was unreasonable given those choices.
Overall, the Army determined that each offeror’s price
was reasonable for its chosen technical approach. E.g.,
J.A. 975–83 (examining reasonableness of pricing for
AFRICOM task order firm-fixed-price portion for DynCorp,
taking into account direct labor, various direct costs, direct
labor overhead, global-solutions overhead, administrative
costs, and proposed profit, etc.); id. at 983 (concluding that
the “proposed price . . . for the [firm-fixed-price] portion of
the AFRICOM effort is reasonable for DynCorp’s proposed
approach”). It also determined that each offeror’s technical
approach was appropriate, and DynCorp does not chal-
lenge those findings. At bottom, DynCorp’s challenge
amounts to an argument that the technical approach it
chose was unreasonable, but it fails to identify any error in
the Army’s view that its proposed technical approach was
acceptable. The different (but reasonable) prices resulted
from different (but reasonable) technical approaches.
There was therefore no problematic aspect of the price dis-
parity to address, and therefore no “important aspect of the
problem” left unconsidered. Cf. Motor Vehicle Mfrs. Ass’n,
463 U.S. at 43. To the extent that DynCorp challenges the
contracting officer’s choice of particular price-analysis
techniques as arbitrary or capricious, we are not convinced.
DynCorp also complains that the Army irrationally did
not explain why it didn’t employ a simple proposal-to-pro-
posal price comparison. But we don’t see why it must (or
even should) have. As we explained above, the regulations
didn’t require that. And the context is clear: This was a
sweeping procurement to establish an involved logistics
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DYNCORP INTERNATIONAL, LLC v. US 25
support program in various operational theaters around
the globe, with complex technical requirements and sub-
stantial latitude afforded to the offerors to figure out how
they would accomplish them. Naturally, prices would vary.
And the Army had discretion to view a crude price-tag com-
parison as insufficient and instead to pick from among
other price-analysis techniques as appropriate to the spe-
cifics. See, e.g., J.A. 983 (picking FAR 15.404-1(b)(2)(vii)).
In the end, the Army explained its analysis in detail in a
way that permits meaningful review on the merits. Dyn-
Corp alleges no errors in that price analysis other than its
favored technique not having been used. And that doesn’t
clear the high hurdle to declaring the Army’s approach un-
tethered to rationality.
Finally, DynCorp insists that the Army’s price-reason-
ableness analysis on remand was merely an impermissible
post hoc rationalization. It’s true that an agency cannot
rely on a new rationale for an old decision. See, e.g., Citi-
zens to Pres. Overton Park v. Volpe, 401 U.S. 402, 419
(1971). But that isn’t what the Army did. Rather, on re-
mand it made new determinations about price reasonable-
ness—ones that the Court of Federal Claims had concluded
it hadn’t made before. It declined to revisit the overall
award, but in the context of this remand, the only basis for
doing so would have been the unreasonableness of one of
the offerors’ prices.
Accordingly, based on the record and the agency’s dis-
cretion in this area, we are not persuaded that the Army’s
procurement was arbitrary or capricious.
CONCLUSION
We have considered DynCorp’s remaining arguments
but find them unpersuasive. DynCorp’s proposed price was
high. But it was not unreasonably high for the technical
approach it proposed. In so finding, the government did
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26 DYNCORP INTERNATIONAL, LLC v. US
not violate FAR part 15 and did not act irrationally. We
therefore affirm.
AFFIRMED