Raytheon Company v. United States , 809 F.3d 590 ( 2015 )

United States Court of Appeals
for the Federal Circuit
______________________
RAYTHEON COMPANY,
Plaintiff-Appellant
v.
UNITED STATES, LOCKHEED MARTIN
CORPORATION, NORTHROP GRUMMAN
SYSTEMS CORPORATION,
Defendants-Appellees
______________________
2015-5086
______________________
Appeal from the United States Court of Federal
Claims in No. 1:15-cv-00077-MMS, Judge Margaret M.
Sweeney.
______________________
Decided: October 23, 2015
______________________
MARK COLLEY, Arnold & Porter LLP, Washington,
DC, argued for appellant. Also represented by KARA L.
DANIELS, NICOLE B. NEUMAN, PAUL E. POMPEO.
STEVEN MICHAEL MAGER, Commercial Litigation
Branch, Civil Division, United States Department of
Justice, Washington, DC, argued for appellee United
States. Also represented by ALEXANDER V. SVERDLOV,
KIRK T. MANHARDT, ROBERT E. KIRSCHMAN, JR., BENJAMIN
2 RAYTHEON COMPANY v. US
C. MIZER; MARK E. ALLEN, ADAM N. OLSEN, United States
Air Force, Joint Base Andrews, MD.
MARCIA MADSEN, Mayer Brown LLP, Washington,
DC, argued for appellee Lockheed Martin Corporation.
Also represented by DAVID F. DOWD, LUKE P. LEVASSEUR.
RICHARD A. SAUBER, Robbins, Russell, Englert, Or-
seck, Untereiner & Sauber LLP, Washington, DC, argued
for appellee Northrop Grumman Systems Corporation.
Also represented by DENEEN J. MELANDER, PETER B.
SIEGAL, JENNIFER S. WINDOM.
______________________
Before NEWMAN, DYK, and TARANTO, Circuit Judges.
TARANTO, Circuit Judge.
The United States awarded a procurement contract to
one of three bidders. A General Accountability Office
review process, launched by the losing bidders’ protests,
then led the government to conclude, among other things,
that it had given the bidders disparate information on an
important subject, thereby violating a regulation that
governs the bidding process. When the government
reopened the bidding, the initial winning bidder protested
the government’s reopening decision. The Court of Fed-
eral Claims denied the protest. Raytheon Co. v. United
States, 121 Fed. Cl. 135 (2015) (public version of opinion).
We affirm, concluding that the reopening decision was
proper based on the disparate-information violation. We
need not and do not address a second basis for the gov-
ernment’s decision to reassess its original award.
BACKGROUND
The United States Air Force solicited bids from pri-
vate companies to supply the complex mix of equipment
and services the government was seeking to acquire in
order to build a new radar system. Raytheon, 121 Fed. Cl.
RAYTHEON COMPANY v. US 3
at 138. The procurement process had several stages.
Raytheon Company, Northrop Grumman Systems Corpo-
ration, and Lockheed Martin Corporation cleared early-
stage hurdles, allowing them to proceed to the next stage.
Id. at 140; J.A. 290. The Air Force issued to the three
companies (and only them) a solicitation for proposals for
Engineering and Manufacturing Development. Raytheon,
121 Fed. Cl. at 140; J.A. 336–513.
Each bidder, in supporting the price it offered, had to
provide detailed estimates of the costs it would incur in
performing the contract. J.A. 362–75. More specifically,
the bidders all had to “identify and support their proposed
cost reductions,” Raytheon, 121 Fed. Cl. at 140, i.e., their
means of lowering the price they would charge to the Air
Force under this contract while still performing all work
needed to get the job done. See id. at 163; J.A. 369–74.
The Air Force made clear from the start, and repeatedly,
that it would scrutinize each bidder’s estimates, including
any cost-reduction means (or “affordability initiative”), to
try to ensure that it did not choose a supplier whose price
was unrealistic: an unrealistic price could indicate that
the firm did not understand what was needed to do the
job and could end up delaying completion or raising the
cost of the radar system. Raytheon, 121 Fed. Cl. at 141,
143 (Air Force notice to Raytheon and Northrop: “It is
imperative the Offeror substantiate and the Government
fully understand any claimed initiative which the Offeror
desires to incorporate into its proposed cost/price.”); J.A.
362, 394, 398–99, 1209, 1214, 1228, 50839–40.
Raytheon, Northrop, and Lockheed submitted bids.
Raytheon, 121 Fed. Cl. at 142. The Air Force thereafter
sent Evaluation Notices to Raytheon and Northrop that
addressed one means of reducing the costs that had to be
built into the price for the radar-system contract—
namely, treatment of certain costs as independent re-
search and development (IR & D) costs. That classifica-
tion addresses research conducted by a contractor but not
4 RAYTHEON COMPANY v. US
specifically for a particular government project. See 48
C.F.R. §§ 31.205-18, 9904.420. Although such work is
contract-independent, its fruits can actually help the
contractor deliver the goods and services promised in a
particular contract. When that is so, the cost of work
implicitly needed for a particular contract, which other-
wise might have to be built into the price for that con-
tract, may instead be treated as an IR & D cost, in which
case the contractor may recover it through other means
(such as, where allowed, by allocation across a wide range
of government or private contracts). 48 C.F.R. § 31.205-
18. The result is a “cost reduction” for the particular
contract without compromising the contractor’s ability to
fulfill its promises in that contract.
In this case, the Air Force, citing a Federal Acquisi-
tion Regulation (FAR) provision, stated in its initial
notices to Raytheon and Northrop on the subject: “In
accordance with (IAW) FAR 31.205-18 and 10 USC 2320
[sic], any cost claimed or considered to be IR & D or a
capital investment shall not be allowable as indirect
charges for work implicitly required for performance
(necessary to perform the contract) or explicitly required
to be done by the terms of the contract.” J.A. 1210, 1215,
quoted in Raytheon, 121 Fed. Cl. at 143. “In other words,”
as the Court of Federal Claims said, “the contractors
would not be permitted to use IR & D costs to reduce their
costs of performing the . . . contract if those costs were
implicitly or explicitly required for contract performance.”
Raytheon, 121 Fed. Cl. at 163–64 (emphasis added).
In response, Northrop did not take issue with the
agency’s statement precluding treatment of the cost of
“implicitly required” work as an IR & D cost. See id. at
143. The Court of Federal Claims found that Northrop
“raised no objections to the Air Force’s statements regard-
RAYTHEON COMPANY v. US 5
ing the allowability of IR & D costs.” Id. at 165. 1 Raythe-
on, in contrast, did object. Raytheon told the agency that
its statement was contrary to ATK Thiokol, Inc. v. United
States, 598 F.3d 1329, 1334–35 (Fed. Cir. 2010), which,
Raytheon said, “held that research and development costs
are allowable as IR & D costs unless specifically required
by the contract.” J.A. 1218, quoted in Raytheon, 121 Fed.
Cl. at 143.
What occurred thereafter is undisputed in the re-
spects relevant to our decision. The Air Force changed its
view: “the Air Force’s understanding changed to conform
1 That finding refers to Northrop’s response to one
of the Evaluation Notices, but it is true more generally.
The Court of Federal Claims also stated that “[d]uring
the first round of discussions, Northrop unambiguously
disclaimed any reliance on IR & D cost reductions in
response to one [Evaluation Notice].” Id. We read that
statement as finding only that Northrop at the time was
not relying on IR & D cost reductions, not that Northrop
disclaimed the possibility of relying on IR & D cost reduc-
tions if the Air Force permitted. The broader reading
would be unsupported. Earlier in the Court of Federal
Claims’ opinion, where details are given, the only perti-
nent specific finding about Northrop’s responses to the Air
Force quotes Northrop as saying simply that “ ‘[t]he
execution of this contract does not require . . . IR & D
funding,’ ” id. at 142 (emphasis added), which does not
make any disclaimers about whether Northrop would use
IR & D funding if permitted. And in its complaint in this
case, Raytheon acknowledged that “the GAO attorney
[who gave the prediction of the GAO’s view that led the
Air Force to reopen the award to Raytheon] said that
Northrop had not disclaimed any possibility of relying on
future IR&D in the event the Agency took a different
view.” J.A. 72.
6 RAYTHEON COMPANY v. US
to Raytheon’s interpretation; the [Evaluation Notices]
that the Air Force had sent to Raytheon and Northrop no
longer reflected its position on the allowability of IR & D
costs related to implicit contract requirements.” Raythe-
on, 121 Fed. Cl. at 147; id. at 164; J.A. 1837–39. The Air
Force communicated its new view to Raytheon, in sub-
stance if not in words, by accepting Raytheon’s treatment
of certain costs as IR & D costs. In contrast, the Air Force
never communicated its new view to Northrop—whose
last communication on the subject from the government
therefore remained the earlier, contrary view. “Thus, as
far as Northrop was aware, the Air Force would not
accept IR & D cost reductions for work implicitly required
for contract performance.” Raytheon, 121 Fed. Cl. at 164;
see id. at 165, 166.
When the bidders later submitted their final pro-
posals, Raytheon “proposed IR & D cost reductions” of a
certain amount, id. at 167, whereas Northrop did not
“propos[e] IR & D cost reductions in line with the IR & D
cost reductions proposed by Raytheon,” id. at 146. The
Air Force judged all three bidders to be in technical
compliance, rated them the same on “all three technical
subfactors,” and found “that all of the proposed costs and
prices were reasonable and realistic.” Id. at 145. Raythe-
on had offered “the lowest total price” in the initial round
of proposals, id. at 142, and in the final proposals, Ray-
theon received “the lowest Best Value Assessment,” id. at
145 (brackets deleted), a figure dependent on the final
proposed prices, id. at 141. See also id. at 167 (noting
“differential in proposed prices” between Northrop and at
least Raytheon). On that basis, the Air Force awarded
the contract to Raytheon. Id. at 145.
Northrop and Lockheed filed a series of protests with
the Government Accountability Office under 31 U.S.C.
§ 3551 et seq. See Raytheon, 121 Fed. Cl. at 145–46. In
one of the protests, Northrop challenged the Air Force’s
RAYTHEON COMPANY v. US 7
communications about treating certain costs as IR & D
costs. Id. at 146. The Air Force defended its conduct. Id.
After a hearing before the GAO, “the GAO attorney
assigned to the protests invited counsel for the parties to
participate in an alternative dispute resolution outcome
prediction conference,” at which the attorney would
inform the parties how she was drafting a written deci-
sion for the GAO, though there had not yet been a deci-
sion. Id. at 148. In the conference held on January 15,
2015, the GAO attorney advised that, if the case proceed-
ed to a final decision, it was “highly likely” that the GAO
would sustain the protests “on only two grounds.” Id.
One of the grounds concerned IR & D costs: “the Air
Force’s discussions with Northrop [on that subject] were
misleading and unequal.” Id. at 149. The GAO attorney
“recommended that the Air Force . . . reopen cost/price
discussions with all three contractors to explain its cur-
rent view of the allowability of IR & D costs[ ] and permit
the submission of new final proposal revisions.” Id.
The next day, in response to the GAO’s prediction, the
Air Force wrote a letter to the GAO, with copies to the
parties, saying that it had “decided to take corrective
action.” J.A. 2239, quoted in Raytheon, 121 Fed. Cl. at
149. In particular, it stated that it “intend[ed] to reopen
discussions with all offerors to clarify the allowability of
Independent Research and Development (IR & D) as it
relates to the cost/price evaluation.” Id.
Raytheon filed a protest in the Court of Federal
Claims under 28 U.S.C. § 1491(b) to challenge the Air
Force’s decision to take corrective action. Raytheon, 121
Fed. Cl. at 149. Following § 1491(b)(4)’s directive to apply
the standards set forth in the Administrative Procedure
Act, the court considered whether the Air Force’s decision
to take corrective action “lacked a rational basis or in-
volved a violation of regulation or procedure.” Raytheon,
121 Fed. Cl. at 150. Under those standards, the court
8 RAYTHEON COMPANY v. US
sustained the Air Force’s decision, and rejected Raythe-
on’s challenge, on the administrative record. Id. at 167–
68.
In particular, the court made the findings recited
above regarding the Air Force’s disparate communication
of its views about treating certain costs as IR & D costs.
Among other things, it held that, by advising Raytheon
but not Northrop “that it would accept IR & D cost reduc-
tions notwithstanding the language of its [Evaluation
Notices,] the Air Force engaged in unequal discussions
with the contractors.” Id. at 165. Quoting a regulatory
command in the FAR that bars an acquiring agency from
engaging in “conduct that . . . [f]avors one offeror over
another,” 48 C.F.R. § 15.306(e)(1), the court explained
that “[d]iscussions are unequal when a procuring agency
favors ‘one offeror over another.’ ” Raytheon, 121 Fed. Cl.
at 164. Accordingly, the court held, the GAO attorney’s
conclusion to that effect “was rational, and the Air Force’s
reliance on her conclusion in deciding to take corrective
action was also rational.” Id. at 165.
The court went on to reject Raytheon’s argument that
Northrop had not shown that the Air Force’s conduct
prejudiced Northrop. The court ruled that “the GAO
attorney . . . implicitly concluded that Northrop had
established that it was prejudiced by the Air Force’s
misleading and unequal discussions,” i.e., that “Northrop
had a substantial chance of receiving the contract in the
absence of the Air Force’s misleading and unequal discus-
sions.” Id. at 167. The court held that conclusion to be
rational, noting Northrop’s size as a government contrac-
tor, the Air Force’s equal technical ratings of the bidders,
the difference in the final proposed prices of Raytheon and
Northrop, Raytheon’s proposed IR & D cost reductions,
and, therefore, Northrop’s financial means to propose IR
& D cost reductions of its own that could overcome the
“differential in proposed prices.” Id.
RAYTHEON COMPANY v. US 9
Raytheon appeals. We have jurisdiction under 28
U.S.C. § 1295(a)(3). We now affirm.
DISCUSSION
A
Raytheon accepts that, for us to uphold the Air Force
decision to reopen the bidding process, it is sufficient for
us to conclude that the grounds relied on by the Air
Force—here, the grounds informally set out by the GAO
attorney in predicting the GAO’s likely ruling on the
protests of the initial award to Raytheon—rationally
justified the reopening under governing law. See Raythe-
on Opening Br. 51. We agree that such a conclusion
suffices under the standards of the Administrative Proce-
dure Act, which are incorporated by the bid-protest provi-
sion under which this case was brought. 28 U.S.C.
§ 1491(b)(4); see Banknote Corp. of America v. United
States, 365 F.3d 1345, 1350 (Fed. Cir. 2004) (following 5
U.S.C. § 706(2)(A) for bid-protest cases). Moreover, we
have upheld agency corrective actions taken on the basis
of formal GAO determinations where the GAO determina-
tions were rational. Honeywell, Inc. v. United States, 870
F.2d 644, 647 (Fed. Cir. 1989); Turner Construction Co. v.
United States, 645 F.3d 1377, 1383 (Fed. Cir. 2011).
Although this case involves a GAO outcome prediction,
rather than a GAO decision, Raytheon accepts, and we
agree, that rationality of the GAO outcome prediction
should suffice. In stating what grounds are sufficient to
uphold the bid reopening, we do not and need not say
what grounds are necessary.
We conclude that the Air Force’s unequal communica-
tions regarding IR & D accounting, one of the GAO attor-
ney’s grounds, provide a rational basis for the reopening.
In 10 U.S.C. § 2305(f)(1), Congress provided that “[i]f, in
connection with a protest, the head of an agency deter-
mines that [an] . . . award does not comply with the
requirements of law or regulation, the head of the agen-
10 RAYTHEON COMPANY v. US
cy . . . may take any action set out in” 31 U.S.C.
§ 3554(b)(1)(A)–(F), and it is not disputed that the permit-
ted actions include reopening of the bidding process here.
See also 4 C.F.R. § 21.8 (GAO authority to recommend
corrective actions, including where an “award does not
comply with statute or regulation”); 48 C.F.R.
§ 33.102(b)(1) (similar for agency decision on protest).
We conclude, agreeing with the GAO attorney, Air Force,
and Court of Federal Claims, that the Air Force violated a
regulation by its disparate communications regarding the
treatment of costs as IR & D costs, a matter of potentially
great importance to the bidder’s final bidding decisions.
That violation provides a rational basis for reopening.
Under 48 C.F.R. § 15.306(e)(1), “[g]overnment person-
nel involved in the acquisition shall not engage in conduct
that—(1) Favors one offeror over another.” That regula-
tion, in its common-sense meaning in the context of
competitive bidding, requires that the agency avoid giving
materially disparate information to bidders on matters
that could easily affect their decisions about important
aspects of the final competing offers that the agency will
be comparing. See, e.g., AshBritt, Inc. v. United States, 87
Fed. Cl. 344, 368–69 (2009); Metcalf Construction Co. v.
United States, 53 Fed. Cl. 617, 625, 633–35 (2002); Dynacs
Engineering Co. v. United States, 48 Fed. Cl. 124, 133–34
(2000). The Air Force violated that requirement in com-
municating an important position on cost accounting to
Raytheon and Northrop, changing that position, then
telling Raytheon but not Northrop of the change. Specifi-
cally, the Air Force made clear to Raytheon that it could
broadly use IR & D accounting—a matter of clear poten-
tial importance to the bottom-line prices of the final
bids—and did not give the same information to Northrop,
leaving Northrop but not Raytheon to rely on the contrary
position the Air Force had earlier stated to the two bid-
ders. That disparity in information favored Raytheon
over Northrop, in violation of the regulation.
RAYTHEON COMPANY v. US 11
We also conclude that it was proper for the Court of
Federal Claims to infer that the GAO attorney implicitly
found that the violation was prejudicial. Raytheon, 121
Fed. Cl. at 167. In many contexts, officials are presumed
to be following the law governing their actions. See, e.g.,
United States v. Chem. Found., Inc., 272 U.S. 1, 14–15
(1926) (“The presumption of regularity supports the
official acts of public officers, and, in the absence of clear
evidence to the contrary, courts presume that they have
properly discharged their official duties.”); Nat’l Archives
& Records Admin. v. Favish, 541 U.S. 157, 174 (2004);
PowerOasis, Inc. v. T-Mobile USA, Inc., 522 F.3d 1299,
1304 (Fed. Cir. 2008) (agency is “presumed to have
properly done its job”). Here, in the absence of a written
decision from the GAO—an absence inherent in the
outcome-prediction situation presented—it is proper to
presume that the GAO attorney was relying on the legal
standards the GAO would have applied in deciding the
protest, which include consideration of prejudice, 4 C.F.R.
§ 21.8(b), under the “substantial chance” standard appli-
cable in bid protests in court, In re Lockheed Martin
Integrated Systems, Inc., B-408134.3, B-408134.5, 2013
CPD ¶ 169, 2013 WL 3830053, at *5 (Comp. Gen. July 3,
2013) (“Competitive prejudice is an essential element of a
viable protest; where the protester fails to demonstrate
that, but for the agency’s actions, it would have had a
substantial chance of receiving the award, there is no
basis for finding prejudice, and our Office will not sustain
the protest.”). And that presumption finds confirmation
in this case because notes from the outcome-prediction
conference refer to the GAO attorney’s remarks about
prejudice in discussing at least one of the protests at
issue. J.A. 2213, 2215.
On the merits of the prejudice issue, we agree with
the Court of Federal Claims’ determination that there
was a sufficient factual basis for the GAO attorney, and
hence the Air Force, to find a “substantial chance” that
12 RAYTHEON COMPANY v. US
Northrop would have received the award. Raytheon, 121
Fed. Cl. at 167. That standard does not require a finding
that a losing bidder “would have received the contract.”
Id.; see Bannum, Inc. v. United States, 404 F.3d 1346,
1358 (Fed. Cir. 2005). On this issue, which is a question
of fact, Advanced Data Concepts, Inc. v. United States, 216
F.3d 1054, 1057 (Fed. Cir. 2000), the implicit finding by
the GAO attorney, and hence the Air Force, was properly
reviewed deferentially by the Court of Federal Claims in
its ruling on the administrative record. We have recited
the public evidence in support of the prejudice finding,
focused on what Northrop could have done to shrink the
“differential in proposed prices” in the final offers had it
known what Raytheon knew about the Air Force’s change
of position regarding treatment of costs as IR & D costs.
Raytheon, 121 Fed. Cl. at 167. Confidential portions of
the record bolster the public basis for finding prejudice.
We conclude that the Court of Federal Claims properly
upheld the implied finding of prejudice from the dispar-
ate-information violation.
B
Raytheon’s challenges do not undermine the foregoing
rationale for upholding the Air Force’s reopening of the
bidding based on the disparity between what the Air
Force told Raytheon and what it told Northrop about the
permissibility of treating certain costs as IR & D costs.
1. Raytheon contends that Northrop waived its chal-
lenge on this ground by failing to complain to the Air
Force before the award was made. Raytheon Br. 49–50.
That contention relies on decisions establishing a general
rule that a losing bidder waives a post-award challenge to
the terms of a solicitation if it does not object to the terms
before the bidding process closes. See Bannum, Inc. v.
United States, 779 F.3d 1376, 1380 (Fed. Cir. 2015);
COMINT Systems Corp. v. United States, 700 F.3d 1377,
1381–82 (Fed. Cir. 2012); Blue & Gold Fleet, L.P. v.
RAYTHEON COMPANY v. US 13
United States, 492 F.3d 1308, 1315 (Fed. Cir. 2007);
Statistica, Inc. v. Christopher, 102 F.3d 1577, 1582 (Fed.
Cir. 1996). But that principle does not apply to the dis-
parate-information violation here.
The disparate-information violation was not an error
in the solicitation. It occurred during the Air Force’s post-
solicitation process of discussion and evaluation, and
Northrop had no reason to know before the award was
made that the Air Force had changed its mind about IR &
D costs and had told Raytheon but not Northrop of the
change. See Raytheon, 121 Fed. Cl. at 166. This kind of
violation has not been, and cannot sensibly be, subject to
a requirement of objection before the bidding closes. See
Bannum, 779 F.3d at 1381 (“at least as a general matter,
a bidder cannot be expected to challenge an agency’s
evaluation of bids, in contrast to the terms of solicitation,
until the evaluation occurs”); COMINT, 700 F.3d at 1383
n.6 (not applying waiver principle to challenge to agency
action during evaluation process that challenger did not
learn of until the award).
2. Raytheon also argues that, under this court’s deci-
sion in ATK Thiokol, the Air Force’s position expressly set
forth in its initial IR & D announcement was so clearly
inconsistent with the FAR regulation cited in that an-
nouncement that this court must attribute to all bidders,
including Northrop, knowledge of the correct understand-
ing of IR & D treatment as a matter of law. Raytheon
relies on attribution-of-knowledge reasoning in cases from
other contexts, cases that resolve non-regulatory, non-
protest issues distinct from the issues presented here. See
Raytheon, 121 Fed. Cl. at 166 (noting cases that involve
claims for rescission or reformation of contracts). Raythe-
on seeks to extend the attribution idea to this context. It
contends that all bidders (hence Northrop) must be
deemed to have had the same information as Raytheon (so
that there was no unequal information) as a matter of
law. Raytheon Br. 36–49. This contention is independent
14 RAYTHEON COMPANY v. US
of the circumstances of any particular bidder in the pro-
cess.
The premise of Raytheon’s argument is that the Air
Force’s initial view was clearly inconsistent with the cited
FAR provision—an inconsistency that the Air Force did
not initially perceive and that Northrop questions. But
we need not rule on the soundness of that premise. Even
without so ruling, we reject extension of the attribution-
of-knowledge idea to cover the situation before us.
The Air Force communicated disparate information to
Raytheon and Northrop about its position regarding
treatment of certain costs as IR & D costs. That disparity
cannot be dismissed as a matter of law unless we can say
that the information about the Air Force’s position simply
could not have mattered in the bidding process (on the
assumption that Raytheon is right about ATK Thiokol).
Raytheon’s argument seeks to deny the facially evident
regulatory violation based on disparate information by
establishing that the particular information at issue—
regarding the Air Force’s position on IR & D costs—so
clearly could not matter to bidders that it must be disre-
garded. We do not think that Raytheon has carried its
burden of justifying that conclusion.
3. Raytheon argues that Northrop in particular was
not prejudiced by remaining in the dark about the Air
Force’s revised view on the treatment of certain costs as
IR & D costs. At bottom, Raytheon argues that Northrop
would not have taken significant advantage of the new
permissive approach to IR & D costs if it had known of the
Air Force’s change of position before submitting its final
bid. Raytheon Br. 50–60. Raytheon’s argument presents
a record-specific question. The question is what Northrop
might have done in its final offer had it been told of the
new Air Force position. We think that the GAO attorney
and the Air Force had sufficient reason to find prejudice
RAYTHEON COMPANY v. US 15
under a substantial-chance standard, as the Court of
Federal Claims held and as discussed above.
At least in these circumstances, and perhaps more
generally, there also is no basis for invoking a regulation
that permits the government to “tailor” its discussions to
particular bidders, 48 C.F.R. § 15.306(d)(1), to somehow
negate or excuse the unequal-information violation.
Accordingly, we hold that the government committed no
error in reopening the bidding based on that violation.
C
The Air Force offered a second reason for reassessing
its award to Raytheon—based, like the first, on the
statements of the GAO attorney about a likely GAO
ruling on the protests of that award. In particular, Ray-
theon had made changes to the technology it was offering
after the Air Force had conducted a technology assess-
ment in an earlier round of the development process. The
Air Force, following the GAO attorney, concluded that, in
its final review leading to the award, it had not followed
solicitation requirements for ensuring substantiation of
the “technology readiness” of the altered “critical technol-
ogy element” and therefore had to reassess Raytheon’s
proposal. Raytheon, 121 Fed. Cl. at 148–49.
The Court of Federal Claims upheld that Air Force
determination. Id. at 160–63. But we need not address
the issue. Raytheon has not offered, and we do not see,
any reason that this technology-reassessment issue
should be decided once we have concluded that the Air
Force properly reopened the bidding process because of
the unequal-information violation.
CONCLUSION
We affirm the judgment of the Court of Federal
Claims denying Raytheon’s protest.
No costs.
16 RAYTHEON COMPANY v. US
AFFIRMED