Croman Corp. v. United States , 724 F.3d 1357 ( 2013 )

United States Court of Appeals
for the Federal Circuit
______________________
CROMAN CORPORATION,
Plaintiff-Appellant,
v.
UNITED STATES,
Defendant-Appellee,
AND
MOUNTAIN WEST HELICOPTERS, LLC,
Defendant,
AND
SILLER HELICOPTERS,
Defendant-Appellee,
AND
COLUMBIA HELICOPTERS,
Defendant-Appellee.
______________________
2012-5138
______________________
Appeal from the United States Court of Federal
Claims in No. 12-CV-0075, Judge George W. Miller.
______________________
Decided: July 31, 2013
______________________
2 CROMAN CORPORATION v. US
ALAN I. SALTMAN, Smith, Currie & Hancock LLP, of
Washington, DC, argued for plaintiff-appellant.
SCOTT D. AUSTIN, Assistant Director, Commercial Lit-
igation Branch, Civil Division, United States Department
of Justice, of Washington, DC, argued for defendant-
appellee, United States. With him on the brief were
STUART F. DELERY, Deputy Principal Assistant Attorney
General, JEANNE E. DAVIDSON, Director, and RUSSELL J.
UPTON, Trial Attorney. Of counsel on the brief was ELIN
M. DUGAN, Senior Counsel, Office of the General Counsel,
General Law and Research Division, United States De-
partment of Agriculture, of Washington, DC.
______________________
Before MOORE, BRYSON, and WALLACH, Circuit Judges.
WALLACH, Circuit Judge.
In this Government contracts case, Croman Corpora-
tion (“Croman”) filed a complaint at the United States
Court of Federal Claims (“Claims Court”) against the
United States alleging that the U.S. Forest Service’s
(“Forest Service”) evaluations of proposals in response to
a solicitation for helicopter services did not have rational
bases and were contrary to law. Croman subsequently
filed a motion for judgment on the administrative record,
which the Claims Court denied. Conversely, the Claims
Court granted the Government’s and Defendant-Appellee
Siller Helicopters, Inc.’s 1 (“Siller”) cross-motions for
judgment on the administrative record. Croman Corp. v.
United States, 106 Fed. Cl. 198, 203 (2012). Because the
Forest Service’s decisions had rational bases, the Claims
Court’s decision is affirmed.
1 Defendant-Appellees Columbia Helicopters and
Siller waived oral argument and conceded their time to
the Government.
CROMAN CORPORATION v. US 3
BACKGROUND
A. The 2011 Solicitation
On January 14, 2011, the Forest Service solicited pro-
posals for thirty-four (34) line items under Solicitation No.
AG–024B–S–11–9001 (“2011 Solicitation”). The 2011
Solicitation called for a negotiated procurement process
pursuant to, in part, Federal Acquisition Regulation Part
15. Each line item sought heavy or medium exclusive use
helicopters for large fire support, tailored for a specific
host base that met the performance specifications for
operation at that base. The 2011 Solicitation presented
two sets of performance specifications, one applicable to
contract line item numbers (“CLIN”) 1–15, and one appli-
cable to CLINs 16–34. CLINs 1–15 sought helicopters
with, at a minimum, heavy-lift capabilities (“Type I
helicopters”). CLINs 16–34 sought helicopters with, at a
minimum, medium-lift capabilities (“Type II helicopters”).
The 2011 Solicitation informed offerors that the
“[a]ward of helicopters for make and model will be based
on best value. The performance requirements are a
minimum and the helicopter will be evaluated for overall
best value considering price and other factors. The Gov-
ernment will determine best value.” J.A. 20028. Offerors
were also informed that the awards would “be made to
those offerors whose proposals are technically acceptable
and whose technical/price relationships are the most
advantageous to the Government.” J.A. 20264. The 2011
Solicitation provided that “the critical factor in making
any price/technical trade-off is not the spread between the
technical scores, but, rather, the significance of that
difference.” Id. The solicitation further provided:
The significance of the spread of scores will be de-
termined on the basis of what the difference might
mean in terms of performance and what it would
cost the Government to take advantage of it.
Award may not necessarily be made for technical
capabilities that would appear to exceed those
4 CROMAN CORPORATION v. US
needed for successful performance of the work.
The Government reserves the right to make
price/technical trade-offs that are in the best in-
terest and advantageous to the Government. The
Government may reject any or all offers if such ac-
tion is determined to be in the best interest of the
Government.
Id.On October 4, 2011, the Forest Service received in-
formation concerning the anticipated cost of funding the
solicited thirty-four (34) CLINs based upon the proposals
received in response to the 2011 Solicitation. Due to
budget concerns and based on previous analysis, the
Forest Service re-evaluated the need for the equipment
and services solicited and determined the optimum num-
ber of helicopters to be thirty (30). As a result, it was
recommended that only thirty (30) of the thirty-four (34)
CLINs of the 2011 Solicitation be awarded.
The Technical Evaluation Team (“TET”) thus elimi-
nated CLINs 21, 22, 27, and 34 from the evaluation
process. The TET provided the following rationale for its
decision in a TET Consensus Report:
Due to budget constraints and the desire by
the National Office to evaluate Water Scooper air-
craft in FY 12, a diminution to the total amount of
line items from Thirty-four (34) to Thirty (30) line
items was incorporated into the TET’s consensus
recommendation . . . . [A] minimum of thirty (30)
helicopters with a cap of thirty four (34) was de-
termined to be the most efficient and cost effective
to contract as Exclusive Use . . . . Line items 21,
22, 27 & 34 were identified for reduction due to
staffing issues and the aircraft locations.
J.A. 20304. The cancelled CLINs 21, 22, 27, and 34 would
have solicited Type I or Type II helicopters for host bases
in California and Oregon. Following the cancellation of
CROMAN CORPORATION v. US 5
these four CLINs, the Forest Service considered forty-
seven (47) aircraft for the award of thirty (30) contracts.
B. The Technical Evaluation Process
The technical factors listed in the 2011 Solicitation
were (1) mandatory documentation, (2) aircraft perfor-
mance, (3) safety/risk management (“safety/risk”), (4) past
performance, and (5) organizational experience. The 2011
Solicitation emphasized that these non-price factors
“when combined, [were] significantly more important than
price in the award decision.” J.A. 20264 (emphasis in
original). The following language in the 2011 Solicitation
explained how the Forest Service would evaluate tech-
nical proposals:
Mandatory Documentation is a pass/fail factor.
The Government will first determine whether a
proposal has met the Mandatory Documentation
requirements. If it has not, it will be eliminated
from further consideration. If the Mandatory Doc-
umentation requirements are satisfied, the Gov-
ernment will next determine whether Aircraft
Performance is acceptable (pass) or unacceptable
(fail). Proposals that pass will next receive quali-
tative evaluations for Aircraft Performance and
for each of the remaining three technical evalua-
tion factors.
J.A. 20262.
C. The Price Evaluation Process
To determine the total price, “the Government would
add (1) the price for the base year, (2) the prices for the
option periods, and (3) the flight rate multiplied by the
estimated flight hours.” Croman Corp., 106 Fed. Cl. at
204. The 2011 Solicitation also stated that the price
proposals would be evaluated “to determine reasonable-
ness and to determine the demonstrated understanding of
the level of effort needed to successfully perform the
service.” J.A. 20257. The price proposals would also be
6 CROMAN CORPORATION v. US
evaluated using a “Best Value” formula set forth in the
2011 solicitation. It was further provided that “[t]he ‘Best
Value’ formula computes the amount it would cost to
transport a pound of product for the specific helicopter
being offered” and would “be used to make trade-off
determinations to measure aircraft efficiencies of make
and models of helicopters offered.” J.A. 20257.
D. The Optimization Model
In making award recommendations to the Contracting
Officer (“CO”), the TET considered the results of a com-
puterized optimization model (“OM”), which generated
recommendations upon considering factors related to the
technical and price evaluation process. The Forest Ser-
vice has explained that the OM assists the agency in its
evaluation by providing a mathematical solution that
recommends a set of awards based upon the importance
the agency assigns to the evaluation factors the Forest
Service is using in a given procurement. To run the OM,
the Forest Service enters all relevant bid data, including
prices, into the database, and programs the OM to incor-
porate the percentage weights assigned to each technical
evaluation factor, reflecting the relative importance of
each selection criterion. The OM thus provides a recom-
mendation that is tailored to the objectives of the pro-
curement for which it is being employed. Accordingly, it
is purported that the OM offers an “overall objective of
determining, for each line item, the overall best value to
the Government.” J.A. 20541. The Forest Service further
explained that the OM was developed to review and
evaluate more efficiently, what previously had required
the TET significant time and effort to conduct manually.
E. The Forest Service’s Original December 16, 2011
Award and GAO Protests
Eighteen small businesses, including Croman, sub-
mitted proposals in response to the 2011 Solicitation. In
May 2011, discussions were held with the offerors and by
June 2011, the discussions, including technical negotia-
CROMAN CORPORATION v. US 7
tions, were concluded. Croman was not recommended for
an award. Successful and unsuccessful offerors were
notified on December 16, 2011.
Between December 29, 2011, and January 9, 2012,
three unsuccessful offerors, including Croman, Arctic Air
Service (“Arctic”), and Swanson Group Aviation (“Swan-
son”) filed bid protests with the Government Accountabil-
ity Office (“GAO”), challenging the awards of CLINs 16–
34, including the Forest Service’s decision to cancel CLINs
21, 22, 27, or 34. On January 27, 2012, GAO dismissed
Croman’s protest in its entirety. GAO, however, declined
to dismiss Arctic’s and Swanson’s protests. Relevant to
this case, Croman’s protest pertained to its helicopters
proposed for CLINs 16 to 34. Hence, as to CLINs 16 to 34
and to the extent relevant here, Siller, Defendant Appel-
lee Columbia Helicopters, Inc. (“Columbia”), Firehawk
Helicopters, Inc. (“Firehawk”) and HeliQwest Interna-
tional were awarded contracts.
F. The Forest Service’s Corrective Action and the
Corrective Action Award
On January 30, 2012, the Forest Service notified the
GAO, Swanson, and Arctic that it intended to take correc-
tive action in response to the Arctic and Swanson pro-
tests. Specifically, “the Forest Service agreed to re-
evaluate three of the five technical evaluation factors” in
the 2011 Solicitation: “safety/risk, past performance, and
organizational experience.” Croman Corp., 106 Fed. Cl. at
209. “Because the awards for CLINs 1 to 15 had not been
protested, the reevaluations pertained only to CLINs 16
to 34.” Id. On February 2, 2012, in response to the Forest
Service’s intent to take corrective action, GAO dismissed
as moot the Arctic and Swanson protests.
The Forest Service implemented the corrective action
it had proposed to GAO, and consequently, re-evaluated
the offers in reference to the criteria set forth in the 2011
Solicitation. In particular, the Forest Service made best
value determinations with respect to the fifteen (15)
8 CROMAN CORPORATION v. US
CLINs at issue for which thirty-two (32) helicopters were
proposed by sixteen (16) offerors. As it did prior to the
corrective action, the OM provided recommended awards
for all 15 CLINs based on technical and price evaluations.
The Forest Service entered in the OM database all rele-
vant bid data for each aircraft. In addition, the OM was
programmed to incorporate the percentage weights it had
assigned to each technical evaluation factor and to price,
reflecting the relative importance of all of the evaluation
criteria.
The OM results from the corrective action were then
subject to review by the TET. The TET Chair explained
the process as follows:
On each of the previous OM summaries we have
performed an abundance of confirmation checks to
ensure the program is optimizing the inputs and
providing the overall “Best Value” to the agency.
This OM for Large Fire Support has been no dif-
ferent in fact we have re-checked the inputs and
outputs to ensure the program is working as ex-
pected and reconfirmed its application as being a
valid tool.
J.A. 20535. Following the re-evaluation, the TET deter-
mined that no changes were needed and that “the recom-
mendations should be awarded, as modeled, without
necessitating any human element changes.” Id. The TET
conveyed this determination to the CO in a TET Re-
evaluation Report. The CO separately reviewed the OM
results “to assure that the recommendations comply with
the solicitation requirements.” J.A. 20494. He concurred
with the TET award recommendations and submitted
them to the Source Selection Authority (“SSA”), together
with seven attachments that “provide[d] the basis to
understand how the award selections were determined for
each line item.” J.A. 20493. The SSA agreed with the
TET’s and CO’s award recommendations and, in the
Source Selection Certificate, stated: “I have reviewed the
model’s results and confirm that they represent best value
CROMAN CORPORATION v. US 9
and prioritized aircraft performance over price, while still
taking price into account.” J.A. 20734.
G. Croman’s Bid Protest at the Claims Court
Croman filed its bid protest on February 2, 2012, a
few days after the Forest Service issued its notice of
proposed corrective action. Croman challenged the
awards of CLINs 16–33 including those that were award-
ed to Siller, Columbia, and Firehawk after the corrective
action. Croman also challenged the cancellation of CLINs
21, 22, 27, and 34. On April 27, 2012, after the Forest
Service completed its corrective action in which Croman
was not awarded any CLIN, Croman filed its motion for
judgment upon the administrative record. In its motion,
Croman argued, among other things, that the Forest
Service’s award decisions were based on determinations
that were irrational or contrary to law. In addition,
Croman contended “that many of the errors allegedly
committed by the Forest Service in the initial evaluations
and initial best-value tradeoff determinations were re-
peated during the corrective action.” Croman Corp., 106
Fed. Cl. at 212.
On May 14, 2012, three months after Croman filed its
bid protest, the Forest Service issued Solicitation No. AG–
024B–S–12–9025 (“2012 Solicitation”), which solicited one
to four helicopters for large fire support, all to be located
at the Boise National Forest host base in Idaho. On May
18, 2012, Croman filed a supplemental brief with the
Claims Court, alleging that the 2012 Solicitation seeks
the same equipment and services that were the subject of
the cancelled CLINs 21, 22, 27, and 34 of the 2011 Solici-
tation. Croman therefore sought the Forest Service to be
enjoined from procuring helicopters similar to those
cancelled in the 2011 Solicitation. Nevertheless, Croman
submitted a proposal in response to the 2012 solicitation,
but it received notice in June 2012 that it did not receive
an award.
10 CROMAN CORPORATION v. US
On August 17, 2012, the Claims Court denied
Croman’s motion, and granted the Government’s and
Siller’s cross-motions for judgment upon the administra-
tive record. The Claims Court found that the Forest
Service’s determinations were rational and that Croman
did not suffer prejudice even if the Forest Service’s deter-
minations were made in error. Croman appeals. This
court has jurisdiction under 28 U.S.C. § 1295(a)(3).
DISCUSSION
Croman raises the following issues: (1) whether the
Forest Service had a reasonable basis to cancel CLINs 21,
22, 27, and 34 of the 2011 Solicitation; (2) whether the
Claims Court erred in its determination that the Forest
Service performed a proper tradeoff analysis; and (3)
whether the Claims Court erred in its conclusion that
Croman was not prejudiced by any purported error in the
Forest Service’s tradeoff analysis. We address these
issues seriatim.
We review the grant or denial of a judgment on the
administrative record without deference. Orion Tech., Inc.
v. United States, 704 F.3d 1344, 1347 (Fed. Cir. 2013).
“[T]he proper standard to be applied [to the merits of] bid
protest cases is provided by 5 U.S.C. § 706(2)(A) [(2006)]:
a reviewing court shall set aside the agency action if it is
‘arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law.’” Banknote Corp. of Am. v.
United States, 365 F.3d 1345, 1350–51 (Fed. Cir. 2004)
(citing Advanced Data Concepts, Inc. v. United States, 216
F.3d 1054, 1057–58 (Fed. Cir. 2000)).
Under this standard, a procurement decision may be
set aside if it lacked a rational basis or if the agency’s
decision-making process involved a clear and prejudicial
violation of statute, regulation, or procedure. Emery
Worldwide Airlines, Inc. v. United States, 264 F.3d 1071,
1085–86 (Fed. Cir. 2001). “The arbitrary and capricious
standard applicable [in bid protests] is highly deferential,”
Advanced Data Concepts, 216 F.3d at 1058, and “contract-
CROMAN CORPORATION v. US 11
ing officers have a great deal of discretion in making
contract award decisions, particularly when, as here, the
contract is to be awarded to the bidder or bidders that will
provide the agency with the best value.” Banknote Corp.,
365 F.3d at 1355.
A. The Forest Service Had a Rational Basis to Cancel
CLINs 21, 22, 27, and 34
Croman challenges the Claims Court’s determination
that the Forest Service’s decision to partially cancel the
2011 Solicitation was reasonable. The Claims Court
rejected Croman’s argument that the Forest Service
improperly cancelled the four CLINs, finding that “the
agency had a rational basis for its action, notwithstanding
[Croman’s] arguments that simply amount to a mere
disagreement with the wisdom of the agency’s decision.”
Croman Corp., 106 Fed. Cl. at 221. The Claims Court
explained that the four CLINs “were cancelled due to,
among other reasons, budget constraints.” Id. It was
further held that, “[t]o the extent [Croman] contends that
the reasons for the cancellation were pretextual,
[Croman] has not met its burden of providing clear and
convincing evidence to demonstrate such.” Id. (internal
citations omitted).
The essence of Croman’s argument is that the Forest
Service, in fact, had sufficient funds for the cancelled
CLINs, and that the cancellation therefore was pretextu-
al, rendering the Forest Service’s decision improper.
Croman finds support in the fact that the Forest Service
issued the 2012 Solicitation for exactly the same services
cancelled in the 2011 Solicitation. According to Croman,
the fact that the same services were solicited within a
matter of months and the fact that “the Agency received
no supplemental appropriation” between October 2011
and May 2012 show that funds were actually available for
the four (4) cancelled CLINs at issue. Croman argues the
stated reasoning for cancellation therefore was irrational.
12 CROMAN CORPORATION v. US
The Forest Service determined that it was necessary
to eliminate four (4) out of thirty-four (34) CLINs from the
2011 Solicitation due to budget constraints and a poten-
tial need to evaluate a different aircraft the following
fiscal year. Croman recognizes that this reasoning, if
true, suffices as a basis to modify any solicitation.
Croman however argues the Forest Service’s alleged
budgetary concerns were nonexistent. Thus, the grava-
men of Croman’s contention is that the Forest Service
failed to act in good faith by misrepresenting the reason-
ing underlying the partial cancellation of the 2011 Solici-
tation.
The presumption that government officials act in good
faith is enshrined in our jurisprudence. Am-Pro Protective
Agency, Inc. v. United States, 281 F.3d 1234, 1239 (Fed.
Cir. 2002). Government officials are presumed to “act
‘conscientiously in the discharge of their duties.’” Kalvar
Corp., Inc. v. United States, 543 F.2d 1298, 1301 (Ct. Cl.
1976) (quoting Librach v. United States, 147 Ct. Cl. 605,
612 (1959)). Courts have always been “loath to find to the
contrary,” and to induce a court to abandon the presump-
tion of good faith dealing, “requires ‘well-nigh irrefragable
proof.’” Id. at 1301–02 (quoting Knotts v. United States,
128 Ct. Cl. 489, 492 (1954)). Thus, Croman must offer
clear and convincing evidence that the Forest Service did
not act in good faith in order to prevail on this issue. Am-
Pro Protective Agency, 281 F.3d at 1239–40.
Here, the record simply does not support a showing
that the Government cancelled CLINs 21, 22, 27 and 34 of
the 2011 Solicitation in bad faith. Croman’s speculations
that there actually were no budgetary concerns are not
enough to overcome the presumption that the Govern-
ment acted in good faith. Accordingly, Croman has failed
to meet its burden to show that the decision to cancel
CLINs 21, 22, 27 and 34 of the 2011 Solicitation was in
bad faith.
Similarly, there was nothing improper about the For-
est Service’s decision to issue the 2012 Solicitation con-
CROMAN CORPORATION v. US 13
sisting of similar helicopters and services. Indeed,
Croman does not challenge the 2012 Solicitation, but
rather, contends the Forest Service should have reinstat-
ed the cancelled CLINs instead of issuing a new solicita-
tion, which would have required the Forest Service to
consider Croman’s proposals anew. According to Croman,
the Forest Service’s decision to re-solicit was arbitrary
and capricious.
In reviewing the Forest Service’s exercise of discre-
tion, this court has articulated relevant factors as general
guidelines in determining whether the Forest Service’s
actions were arbitrary, capricious, or an abuse of its
discretion. Prineville Sawmill Co., Inc. v. United States,
859 F.2d 905, 911 (Fed. Cir. 1988). “‘[R]elevant factors
include: subjective bad faith on the part of the officials;
the absence of a reasonable basis for the administrative
decision; the amount of discretion entrusted to the pro-
curement officials by applicable statutes and regulations;
and proven violation of pertinent statutes or regulations.’”
Id. (quoting Keco Indus., Inc. v. United States, 492 F.2d
1200, 1203–04 (Ct. Cl. 1974). These factors support
upholding the Forest Service’s cancellation and re-
solicitation. As discussed above, Croman has failed to
show that the partial cancellation of the 2011 Solicitation
was in bad faith or lacking in rational basis. Given the
level of discretion the Forest Service has to make deci-
sions responsive to its actual needs, this court finds
nothing arbitrary or capricious in the decision to cancel
and re-solicit certain portions of the 2011 Solicitation.
Thus, Croman’s contentions related to CLINs 21, 22, 27,
and 34 of the 2011 Solicitation fail in their entirety.
B. The Forest Service Conducted a Proper Tradeoff
Analysis and as a Result, Its Award Decision Was
Reasonable
Federal Acquisitions Regulation 15.308 states “[t]he
source selection decision shall be documented, and the
documentation shall include the rationale for any busi-
ness judgments and tradeoffs made or relied on by the
14 CROMAN CORPORATION v. US
SSA, including benefits associated with additional costs.”
48 C.F.R. § 15.308. Arguing that the Forest Service did
not comply with this regulation and therefore erred in its
tradeoff analysis, Croman contends that “the record
contains no declarations or the like by the SSA as to the
relative strengths he found in any proposal(s) let alone
whether these relative strengths were worth paying
hundreds of thousands or even millions more to obtain.”
Appellant’s Br. 36. Rather than bare comparisons of point
scores, Croman avers that a tradeoff decision must be
made on the basis of the relative strengths, weaknesses,
and risks associated with competing proposals. The
record however demonstrates that a proper tradeoff
analysis was conducted.
In the Source Selection Certification, the SSA con-
firmed that the award recommendations by the TET
reflected the “best overall value to the Government,
considering that our intent was to emphasize technical
superiority (especially payload capacity) over low price.”
J.A. 20734. The certification further explained that the
SSA had reviewed both the award recommendations and
“attachments 1 through 7” in reaching his decision. Id. In
particular, Attachments 4 and 7 include information that
fully satisfies the requirements of FAR 15.308.
For example, Attachment 4, entitled “All Aircraft Op-
timization Model (OM) Data,” includes a spreadsheet of
OM evaluation results of all relevant criteria for each
aircraft by CLIN. The results present a side-by-side
comparison of each offer, and therefore, the strengths and
weaknesses of each proposal as reflected in the ratings
assigned by TET members. Hence, the attributes of each
helicopter offered compared to all other helicopters pro-
posed are easy to compare in Attachment 4.
In addition, Attachment 7, entitled “Tradeoff Analysis
Comparing OM Assignments for line items 16–34 between
weighted solution and 3 single objective optima,” J.A.
20731, illustrates with actual tradeoffs, displaying vari-
ous optional sets of award decisions. Specifically, At-
CROMAN CORPORATION v. US 15
tachment 7 presents a comparison of each offer for each
CLIN, illustrating the effect of trading some degree of
technical superiority for a lower price, or any other
tradeoff among two price factors (“Total Low Cost” and
“Total Low Price Per Pound”) and a technical factor
(“Total Low Adjectival”). Id. Regarding Attachment 7, the
Forest Service explained:
The best we can do to demonstrate the
tradeoffs at individual line items that were con-
sidered by the OM is to compare the set of as-
signments from the weighted OM solution to
single objective solutions: the lowest adjectival
score, the lowest total cost and the lowest price
per pound. Attachment 7 provides a comparison
between the weighted OM solution for line items
16–34 and the OM assignments when 100 percent
of the weight is applied to each of the three single
objectives.
J.A. 20545.
Nevertheless, Croman argues that Attachments 4 and
7 do not set forth specific strengths or weaknesses of the
offerors’ proposals. The main thrust of Croman’s conten-
tion against the Forest Service’s tradeoff analysis is that
the analysis was not sufficiently detailed. Croman argues
that the analysis produced by the OM did not conduct the
detailed tradeoff analysis, which according to Croman,
requires “dig[ging] deep and determin[ing] whether the
relative strengths and weakness of the competing pro-
posals are such that it is worth paying a higher price.”
Appellant’s Br. 37. Croman contends that the “record
contains no declarations or the like by the SSA as to the
relative strengths he found in any proposal(s)” leading
only to “bare” comparisons of point scores. Id. at 36, 38.
Hence, according to Croman, “[p]roper SSA statements . .
. would read something like this:”
For Contract Line item __, after a review of the
proposals and an assessment of the strengths and
16 CROMAN CORPORATION v. US
weaknesses and the proposed cost thereof, I con-
clude that due to [e.g., Company X’s stellar record
of past performance, etc.] that the difference in
technical merit between Company X’s proposal
and the others submitted is significant [and] that
this difference in technical merit will in all likeli-
hood result in substantially better contract per-
formance and is worth the Agency’s making an
award to X at its slightly higher proposed [price].
Appellant’s Br. 39.
However, SSA documentation, including Attachments
4 and 7, conveyed as much information, if not more, than
Croman’s proposed statement. 2 In addition, regarding the
use of the OM, the OM provided a mathematical solution
that recommended awards for all fifteen (15) CLINs based
upon the importance the Forest Service assigned to the
technical evaluation. The Forest Service entered in the
OM database all relevant bid data for each aircraft,
including the following: (1) the aircraft tail number and
whether the aircraft uses a bucket or tank; (2) aircraft
weight; (3) equipment weight; (4) the offeror’s numerical
score resulting from the technical evaluation; (5) fuel and
pilot weights; and (6) proposed prices (with which the OM
calculated both total contract cost and Price per Pound).
Hence, the OM takes into consideration and its analysis
provides for the type of detail that is warranted in these
2 Croman’s reliance on Serco Inc. v. United States,
81 Fed. Cl. 463 (2008), is unpersuasive, and in any case,
that decision is not binding upon this court. Serco is
directed to the proposition that conclusory statements
that fail to reveal the agency’s tradeoff calculus deprive
courts of any basis upon which to review the award deci-
sions runs afoul of the FAR. Id. at 497. This case is
inapposite because, as discussed, the SSA based its deci-
sions on sufficient documentation, e.g., Attachments 4 and
7.
CROMAN CORPORATION v. US 17
cases. Accordingly, the Forest Service’s decision not to
award Croman a contract had a rational basis. 3
CONCLUSION
For the foregoing reasons, the Claims Court deci-
sion is affirmed. The Forest Service’s decisions were
rationally based and not contrary to law.
AFFIRMED
3 We need not address the issue of prejudice which
the Claims Court relied upon in its decision. We affirm
because the Forest Service’s decision had a rational basis.
Orion Tech., 704 F.3d at 1350 (“An appellate court can
affirm a decision of the trial court upon any ground sup-
ported by the record.”).