Eagle Technologies, Inc. v. United States ( 2023 )

IN THE UNITED STATES COURT OF FEDERAL CLAIMS
___________________________________
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EAGLE TECHNOLOGIES, INC., )
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Plaintiff, ) No. 22-738
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v. ) Filed: December 29, 2022
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THE UNITED STATES, ) Re-issued: January 13, 2023 *
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Defendant, )
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and )
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DYNANET CORPORATION, )
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Defendant- )
Intervenor. )
___________________________________ )
OPINION AND ORDER
Plaintiff, Eagle Technologies, Inc. (“Eagle”), filed this post-award bid protest challenging
the Department of Interior, Interior Business Center, Acquisition Services Directorate’s (“DOI”)
decision to award a task order to Defendant-Intervenor, Dynanet Corporation (“Dynanet”), under
a blanket purchase agreement for information technology support services. Eagle contends that
the DOI’s award was arbitrary and capricious because (a) the DOI failed to consider Eagle’s
demonstrated prior experience in conformance with the terms of the solicitation, and (b) the DOI
did not evaluate the parties’ quotes on an equal basis. Eagle requests that the Court enjoin
*
The Court issued this opinion under seal on December 29, 2022, and directed the parties
to file any proposed redactions by January 9, 2023. The opinion issued today incorporates the
proposed redactions filed by Dynanet. Upon review, the Court finds that the material identified
warrants protection from public disclosure, as provided in the applicable Protective Order (ECF
No. 12). Redacted material is represented by bracketed ellipses “[. . .].”
performance of the task order award and remand to the DOI for further proceedings in accordance
with the Court’s judgment.
Before the Court are Eagle’s Motion for Leave to File an Amended Complaint and the
parties’ Cross-Motions for Judgment on the Administrative Record. For the reasons discussed
below, the Court DENIES Eagle’s request to amend the Complaint, DENIES Eagle’s Motion for
Judgment, and GRANTS the Government and Dynanet’s Cross-Motions.
I. BACKGROUND
A. The Solicitation
This protest relates to a solicitation for information technology support services to be
provided to the Department of Health and Human Services, Office of the Inspector General, Office
of Information Technology (“HHS/OIG/OIT”). HHS/OIG/OIT provides for the development of
new, mission-critical applications as well as the continued operation and maintenance of an
existing suite of over 30 applications. Admin. R. 1, ECF No. 17 (hereinafter “AR”). 1 The
Government determined that establishing multiple award Blanket Purchase Agreements (“BPAs”)
under the General Services Administration (“GSA”) Multiple Award Schedule (“MAS”) was the
best way to satisfy the agency’s need for re-occurring development and platform support services.
AR 2. Specifically, through the same solicitation, the DOI anticipated awarding three BPAs and
awarding BPA Order 1 to one of the BPA awardees. AR 1. BPA Order 1 was a continuation of
work performed by incumbent Digital Management, LLC (“DMI”) with Eagle as a subcontractor.
AR 953. As part of an interagency agreement, the DOI performed the acquisition services on
behalf of HHS/OIG/OIT. AR 1.
1
For ease of reference, citations to the administrative record refer to the bates-labeled page
numbers rather than the ECF page numbers.
2
On April 12, 2021, the DOI issued Request for Quotations No. 140D0421Q0158 (“RFQ”)
to 11 small businesses in accordance with Federal Acquisition Regulation (“FAR”) 8.4. AR 5, 23.
The DOI amended the RFQ on April 19, 2021, in response to questions submitted as part of a pre-
quotation conference and the official RFQ Q&A period. AR 124. The RFQ included as
attachments the BPA Performance Work Statement (“PWS”) and the BPA Order 1 Statement of
Work (“SOW”). AR 77–97, 111–23.
Per the solicitation, the DOI would conduct the award process in two phases with BPA
Order 1 “competed and evaluated concurrently with the multiple award BPAs.” AR 127. In the
“Quotation Content / Submission Requirements” section (Section 6), the DOI gave an overview
of the two-phase submissions. AR 128. Quoters would first submit Phase I responses (i.e.,
Volume I), which had to include, among other things, information about the quoters’ demonstrated
prior experience (Factor 1). AR 129. After evaluating prior experience, the DOI would issue
advisory notifications to all quoters indicating the Government’s recommendation to proceed or
not to proceed to Phase II. AR 131. Those quoters that were rated most highly would be advised
to submit their Phase II responses (i.e., Volumes II and III) for evaluation in accordance with the
RFQ procedures. Id. Phase II submissions would address technical capability/understanding,
management approach, and price (Factors 2–4). AR 132. Section 6 of the RFQ noted in a short
addendum on page five that “the Government’s evaluation of Phase I / Factor 1, the most important
factor, will be considered alongside the evaluation of Phase II when the Government makes its
source selection decision.” AR 131 (“Phase I / Factor 1 will be more important than Phase II
evaluation factors.”).
In the “Evaluation” section of the RFQ (Section 7), the DOI listed the evaluation factors in
descending order of importance:
3
Phase Evaluation Factor
I Factor 1: Demonstrated Prior Experience
II Factor 2: Technical Capability and Understanding
II Factor 3: Management Approach
II Factor 4: Price
AR 135. Under each of these factors, the RFQ listed several subject matter areas (i.e., subfactors)
that specifically defined the evaluation criteria. AR 135–37. The DOI anticipated conducting a
comparative analysis at each phase. AR 135 The Contracting Officer (“CO”) would utilize a best-
value trade-off methodology where non-price factors when combined were significantly more
important than price. Id. The DOI would evaluate Factor 1 “in order to assess whether [the
quoter’s demonstrated prior experience] will lead to successful performance of the work required
in the BPA PWS.” Id. For Factors 2 and 3, the DOI would evaluate whether the quoter’s technical
capability/understanding and management approach “will lead to successful performance of the
work required in the BPA PWS and BPA Order 1 SOW.” AR 136; see AR 137. At the conclusion
of the evaluation stage, the DOI would award the three BPAs and BPA Order 1. AR 135.
B. The Evaluation and Awards
The DOI received eight compliant quotes at the close of Phase I on April 23, 2021. AR
615. On May 19, 2021, the Technical Evaluation Committee (“TEC”) completed the evaluation
of Phase I submissions based on Factor 1, Demonstrated Prior Experience. AR 320–59, 615. The
evaluation report provided an analysis for each quoter based on the five Factor 1 subfactors, and a
summary of the quoter’s risk to the Government and probability of successful performance. AR
320–59. Eagle, Dynanet, and two other quoters received the highest summary evaluation of “low
risk to the Government with a high probability of successful performance.” AR 326; see AR 333,
336, 340. The TEC performed a comparative analysis for Factor 1 and recommended that the four
quoters with the highest summary evaluation proceed to Phase II. AR 358.
4
On June 6, 2021, the four quoters submitted their Phase II responses. AR 615. The TEC
completed the evaluation of Phase II on July 9, 2021. Id. The Phase II TEC report included the
Factor 1 evaluations from Phase I. AR 559–611. For Factors 2 and 3, the TEC report identified
“positive noteworthy observations” and “negative noteworthy observations” and concluded with
an assessment of risk and probability of successful performance. Id.
For Dynanet’s Factor 2 evaluation, the TEC identified 18 positive noteworthy observations
and zero negative noteworthy observations, concluding that Dynanet “presents a low risk to the
Government with a high probability of successful performance.” AR 576; see AR 571–76. For
the same factor, the TEC identified four positive noteworthy observations and three negative
noteworthy observations for Eagle, concluding that Eagle “presents a moderate risk to the
Government with a moderate probability of successful performance.” AR 585; see AR 583–85.
For Dynanet’s Factor 3 evaluation, the TEC identified four positive noteworthy observations and
one negative noteworthy observation, concluding that Dynanet “presents a low risk to the
Government with a high probability of successful performance.” AR 579; see AR 577–79.
Addressing Dynanet’s negative noteworthy observation, the TEC noted that, “[a]lthough they do
not have diverse skills within the personnel, they have clearly done the work before and they have
shown that they have worked with similar stacks before.” AR 579. For Factor 3, the TEC
identified two positive noteworthy observations and zero negative noteworthy observations for
Eagle, concluding that Eagle “presents a moderate risk to the Government with a moderate
probability of successful performance.” AR 587; see AR 586–87.
The Phase II TEC report also contained a comparative analysis of Factors 2 and 3 for each
of the four Phase II quoters. AR 598–609. The TEC found Dynanet to be the strongest quote in
four of the six Factor 2 subfactors and tied with a third quoter (Easy Dynamics) on the other two
5
subfactors. AR 598–605. Of the five total subfactors under Factor 3, Dynanet had the strongest
quote on the first subfactor; tied with Easy Dynamics as strongest quote on the second subfactor;
and tied with both Eagle and Easy Dynamics as strongest quote on the third subfactor. AR 605–
08. On the other hand, Eagle had the strongest quote on subfactor four, and Easy Dynamics had
the strongest quote on the remaining subfactor. AR 608–09. Consequently, the TEC
recommended that the three BPA awards go to Dynanet, Eagle, and Easy Dynamics. AR 610.
For BPA Order 1, the TEC found Dynanet’s quote superior to the quotes of Eagle and Easy
Dynamics. Id. Among the three BPA awardees, Dynanet’s price was between Eagle’s price (the
lowest of the three) and Easy Dynamic’s price (the highest of the three). Id. Specifically,
Dynanet’s price was about five percent higher than Eagle’s. AR 637; see AR 955. Because
Dynanet’s quote was superior but higher priced than Eagle’s quote, the TEC conducted a trade-off
analysis. AR 610–11. The TEC concluded that Dynanet’s “higher price is considered justified by
all the substantial technical benefits found in their quote and the TEC’s increased confidence in
successful performance.” AR 611. The CO independently determined that the TEC’s
recommendations were correct. AR 638. On August 26, 2021, the DOI awarded the three BPAs
to Eagle, Dynanet, and Easy Dynamics and awarded Dynanet with BPA Order 1. AR 612–13,
639.
C. Procedural Background
1. Initial Post-Award Protest at the GAO
On September 7, 2021, Eagle filed a protest with the Government Accountability Office
(“GAO”), arguing that the DOI failed to disqualify Dynanet based on an Organizational Conflict
of Interest (“OCI”). AR 788–790. Eagle further argued that the DOI’s evaluation was incorrect
and that its best-value analysis was at odds with the solicitation and lacked a reasonable basis. AR
6
801–02. On September 22, 2021, the GAO dismissed Eagle’s evaluation challenge for failure to
establish an adequate basis for protest. AR 812. The challenges based on best-value and OCI
remained. Id. On October 4, 2021, the DOI informed the GAO that it would take corrective action
by conducting a further OCI analysis and making a new best-value trade-off decision based on the
existing evaluation record. AR 814–15. Over Eagle’s objections, the GAO dismissed the protest
as academic on October 8, 2021. AR 822.
The CO then conducted an OCI investigation and concluded that Dynanet did not have an
OCI that would prohibit it from receiving the award. AR 955. The CO also performed a new best-
value determination using the existing evaluation record and concluded that Dynanet presented the
highest technically evaluated quote with the lowest assessed risk and highest probability of
successful performance. Id. Again noting the difference in price, the CO determined that the five
percent price premium associated with Dynanet’s quote was worth the higher probability of
successful performance. AR 955–56. Accordingly, on March 7, 2022, the DOI notified Eagle that
it again awarded BPA Order 1 to Dynanet. AR 1011.
2. Post-Corrective Action Protest at the GAO
On March 14, 2022, Eagle filed a second protest challenging the BPA Order 1 award. AR
1013. In addition to challenging the DOI’s OCI decision, it alleged similar challenges to the DOI’s
evaluation of quotes and best-value decision as it raised in the initial protest. AR 1025, 1031–32.
Regarding best-value, Eagle argued that the DOI’s decision was flawed partly because Dynanet
had far less experience with HHS/OIG/OIT than Eagle and its partner, DMI. AR 1034.
In response, the DOI sought dismissal of the protest for failure to establish an adequate
factual and legal basis. AR 1120. Addressing Eagle’s argument about Dynanet’s experience, the
DOI explained that “[t]he BPA Order 1 factors fall under Technical Capability and Understanding
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and Management Approach [Factors 2 and 3]—Prior Demonstrated Experience [Factor 1] is
excluded.” AR 1128. Eagle disagreed, arguing that the DOI misstated the solicitation when it
erroneously claimed that Eagle’s years of work with HHS/OIG/OIT could not have affected the
Phase II technical evaluation. AR 1153–55.
On April 15, 2022, the GAO requested via minute entry that the DOI provide support for
its contention that demonstrated prior experience was excluded from the BPA Order 1 evaluation.
AR 1375. The DOI responded the same day by submitting two pages from Section 7, Evaluation,
of the original RFQ, arguing that “[n]o [task] order evaluation considerations fall under the
Demonstrated Prior Experience factor.” AR 1375; see AR 1369–70. Eagle requested permission
to reply to the DOI’s purported misreading of the solicitation, claiming that the solicitation
required the DOI to evaluate Factor 1, Demonstrated Prior Experience, in awarding BPA Order 1.
AR 1182–88, 1375. On April 18, 2022, Eagle filed a request for summary decision reiterating the
Factor 1 arguments stated in its request for leave to file a reply. AR 1190–94.
On April 19, 2022, the GAO notified the parties of its intent to dismiss the OCI and
evaluation challenges for failure to state a valid basis for protest. AR 1195. The GAO directed
the DOI to prepare an Agency report on the remaining best-value grounds. Id. A week later, the
DOI filed an Agency report restating its reading of the BPA Order 1 evaluation factors. AR 1211–
14. It argued that, per the plain language of Section 7, the DOI would evaluate Factor 1 to assess
a quoter’s likelihood of successful performance of the BPA PWS, while Factors 2 and 3 were
intended to assess performance of the BPA PWS and the BPA Order 1 SOW. AR 1212. In its
comments to the Agency report, Eagle argued that the DOI’s interpretation was unreasonable and
contrary to the solicitation. AR 1299. In the alternative, Eagle claimed the solicitation contained
a latent ambiguity regarding the factors that would be considered in the best-value trade-off
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analysis. AR 1309–10. Eagle also added a supplemental protest ground, claiming that the DOI
evaluated quoters in an unequal manner. AR 1312. Specifically, Eagle argued that the DOI
disregarded Eagle’s demonstrated prior experience but considered the same for Dynanet in
mitigating a risk identified in its Phase II submission. AR 1314. The DOI responded with a
declaration from the TEC Chairperson to clarify that the DOI did not use Dynanet’s organizational
experience, but rather the experience of the proposed key personnel, in assessing Dynanet’s
Management Approach under Factor 3. AR 1339–40; see AR 1341.
On June 22, 2022, the GAO issued a final decision. AR 1358. As relevant here, the GAO
found the DOI’s explanation of the ambiguous reference to prior work in Dynanet’s Phase II
evaluation reasonable. AR 1364–65. Because Eagle did not show that the DOI considered
Dynanet’s demonstrated prior experience in awarding BPA Order 1, it failed to establish that the
DOI treated Eagle and Dynanet disparately. AR 1365. Regarding Eagle’s best-value arguments,
the GAO found that the solicitation did not “preclude the possibility that prior experience was to
be considered for the task award order.” AR 1367. According to the GAO, the language in the
RFQ advising quoters that Factor 1 “‘will be considered[]’ together with the phase [II] factors”
could reasonably be interpreted as including prior experience in the task order evaluation. Id. The
GAO concluded that, because the solicitation language was inconsistent in how the DOI would
consider the various factors for BPA Order 1, the ambiguity was patent; therefore, Eagle should
have presented its challenge prior to the solicitation’s closing date. Id. And even if it were to
conclude that the ambiguity was latent, the GAO held that Eagle failed to timely file the challenge.
Id. Consequently, the GAO found the best-value challenge to be without merit, and it denied in
part and dismissed in part Eagle’s post-corrective action protest. AR 1368.
3. The Present Protest
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On July 1, 2022, Eagle filed its two-count complaint in this Court. See Pl.’s Compl., ECF
No. 1. The Complaint alleges that the DOI failed to follow the terms for the RFQ by not
considering Eagle’s prior experience (Factor 1) in its evaluation for the BPA Order 1 award, and
that the DOI afforded Dynanet disparate and preferential treatment by favorably considering
Dynanet’s prior experience in awarding it with the task order. Id. ¶¶ 40, 45. On August 22, 2022,
Eagle filed a Motion for Judgment on the Administrative Record. See Pl.’s Mot. for J. on Admin.
R., ECF No. 24-1. On September 21, 2022, the Government and Dynanet filed Cross-Motions for
Judgment on the Administrative Record. See Gov’t.’s Cross-Mot. for J. on Admin. R., ECF No.
26; Def.-Intervenor’s Cross-Mot. for J. on Admin. R., ECF No. 25-1. The parties’ arguments
largely mirror those raised in the second GAO protest. The motions are now fully briefed. See
Pl.’s Reply, ECF No. 28; Gov’t.’s Reply, ECF No. 29; Def.-Intervenor’s Reply, ECF No. 30. The
Court held oral argument on October 21, 2022.
During the oral argument, Eagle’s counsel informed the Court that Eagle intended to move
for leave to amend the Complaint. See Oral Arg. Tr. at 45:15–45:21, ECF No. 35. Eagle filed
such motion on October 24, 2022. See Pl.’s Mot. for Leave to File an Am. Compl., ECF No. 31.
In its motion, Eagle argues that Dynanet’s mapping of labor categories did not meet the RFQ
requirements and that Dynanet’s mis-mapping affects the remedies in this case. Id. at 5, 15, 23.
On November 4, 2022, the Government and Dynanet filed responses, arguing (among other things)
that Eagle unduly delayed its filing and that its proposed amendment would be futile. See Gov’t.’s
Resp. to Pl.’s Mot. for Leave to File an Am. Compl. at 8, 10, ECF No. 32; Def.-Intervenor’s Resp.
to Pl.’s Mot. for Leave to File an Am. Compl. at 2, 3, ECF No. 33. Plaintiff’s motion is now fully
briefed and ripe for decision. See Pl.’s Reply, ECF No. 38.
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II. LEGAL STANDARDS
A. Motions for Leave to File an Amended Complaint
Rule 15(a)(2) of the Rules of United States Court of Federal Claims (“RCFC”) provides
that a party may amend its complaint outside the 21-day period “with the opposing party’s written
consent or the court’s leave,” which “[t]he court should freely give when justice so requires.” The
decision to grant or deny leave to amend is “within the discretion of the trial court.” Mitsui Foods,
Inc. v. United States, 867 F.2d 1401, 1403 (Fed. Cir. 1989). Factors that may justify denial of a
motion for leave to amend include “undue delay, bad faith or dilatory motive on the part of the
movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice
to the opposing party by virtue of allowance of the amendment, futility of amendment, etc.” A &
D Auto Sales, Inc. v. United States, 748 F.3d 1142, 1158 (Fed. Cir. 2014) (quoting Foman v. Davis,
371 U.S. 178, 182 (1962)). “The existence of any one of these criteria is sufficient to deny a
motion to amend, the theory being that the amendment would not be necessary to serve the interests
of justice under such circumstances.” Christofferson v. United States, 77 Fed. Cl. 361, 363 (2007)
(quoting Spalding & Son, Inc. v. United States, 22 Cl. Ct. 678, 680 (1991)).
B. Motions for Judgment on the Administrative Record
RCFC 52.1(c) governs motions for judgment on the administrative record. Such motions
are “properly understood as . . . an expedited trial on the record.” Bannum, Inc. v. United States,
404 F.3d 1346, 1356 (Fed. Cir. 2005). In contrast to the standard for summary judgment, “the
standard for judgment on the administrative record is narrower” and involves determining, “given
all the disputed and undisputed facts in the administrative record, whether the plaintiff has met the
11
burden of proof to show that the [challenged action or] decision was not in accordance with the
law.” Martinez v. United States, 77 Fed. Cl. 318, 324 (2007) (citing Bannum, 404 F.3d at 1357).
Therefore, a genuine issue of disputed fact does not prevent the Court from granting a motion for
judgment on the administrative record. See Bannum, 404 F.3d at 1357.
C. Bid Protest Standard of Review
The Tucker Act, as amended by the Administrative Dispute Resolution Act of 1996,
provides the Court of Federal Claims with “jurisdiction to render judgment on an action by an
interested party objecting to . . . the award of a contract or any alleged violation of statute or
regulation in connection with a procurement . . . .” 28 U.S.C. § 1491(b)(1). In such actions, the
Court “review[s] the agency’s decision pursuant to the standards set forth in section 706” of the
Administrative Procedure Act. 28 U.S.C. § 1491(b)(4); see Banknote Corp. of Am., Inc. v. United
States, 365 F.3d 1345, 1350 (Fed. Cir. 2004). Accordingly, the Court examines whether an
agency’s action was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance
with law.” 5 U.S.C. § 706(2)(A); see Impresa Construzioni Geom. Domenico Garufi v. United
States, 238 F.3d 1324, 1332 n.5 (Fed. Cir. 2001). Under such review, an “award may be set aside
if either: (1) the procurement official’s decision lacked a rational basis; or (2) the procurement
procedure involved a violation of regulation or procedure.” Impresa, 238 F.3d at 1332. To prevail
in a bid protest, “a protestor must show a significant, prejudicial error in the procurement process.”
WellPoint Mil. Care Corp. v. United States, 953 F.3d 1373, 1377 (Fed. Cir. 2020) (quoting Alfa
Laval Separation, Inc. v. United States, 175 F.3d 1365, 1367 (Fed. Cir. 1999)). A protestor
establishes prejudice by showing “that there was a substantial chance it would have received the
contract award but for that error.” Alfa Laval, 175 F.3d at 1367 (quoting Statistica, Inc. v.
Christopher, 102 F.3d 1577, 1582 (Fed. Cir. 1996)).
12
In reviewing an agency’s procurement decisions, the Court does not substitute its judgment
for that of the agency. See Redland Genstar, Inc. v. United States, 39 Fed. Cl. 220, 231 (1997);
Cincom Sys., Inc. v. United States, 37 Fed. Cl. 663, 672 (1997); see also M.W. Kellogg Co. v.
United States, 10 Cl. Ct. 17, 23 (1986) (holding that “deference must be afforded to an agency’s
. . . procurement decisions if they have a rational basis and do not violate applicable law or
regulations.”). The disappointed bidder “bears a heavy burden,” and the CO is “entitled to exercise
discretion upon a broad range of issues . . . .” Impresa, 238 F.3d at 1332–33 (citations and quotes
omitted). This burden “is not met by reliance on [the] pleadings alone, or by conclusory allegations
and generalities.” Bromley Contracting Co. v. United States, 15 Cl. Ct. 100, 105 (1988); see
Campbell v. United States, 2 Cl. Ct. 247, 249 (1983). A procurement decision is rational if “the
contracting agency provided a coherent and reasonable explanation of its exercise of discretion.”
Impresa, 238 F.3d at 1333. “[T]hat explanation need not be extensive.” Bannum, Inc. v. United
States, 91 Fed. Cl. 160, 172 (2009) (citing Camp v. Pitts, 411 U.S. 138, 142–43 (1973)).
In a protest, the Court applies de novo review to any questions of law. NVT Techs., Inc. v.
United States, 370 F.3d 1153, 1159 (Fed. Cir. 2004). The interpretation of a solicitation or of
procurement regulations present such questions. See id.; United States v. Boeing Co., 802 F.2d
1390, 1393 (Fed. Cir. 1986). Regardless of whether the decision on review is that of the
contracting officer or of the GAO, the Court of Federal Claims does not afford deference on
questions of law. See VS2, LLC v. United States, 155 Fed. Cl. 738, 767 (2021); CBY Design
Builders v. United States, 105 Fed. Cl. 303, 340 (2012) (holding that the degree of deference
applied under the arbitrary-and-capricious standard does not change depending on whether the
court is reviewing the agency-level decision or the GAO’s decision in a subsequent protest, and
“[n]o ‘special’ amount of deference, covering questions of law as well as the ultimate decision
13
being reviewed, can be gleaned from the . . . Federal Circuit precedents . . . .”)); see also E.W.
Bliss Co. v. United States, 33 Fed. Cl. 123, 135 (1995), aff’d, 77 F.3d 445 (Fed. Cir. 1996). Nor
is the Court bound by GAO decisions, although such decisions are nonetheless considered
“instructive” in the context of bid protests. Centech Grp., Inc. v. United States, 554 F.3d 1029,
1038 n.4 (Fed. Cir. 2009).
III. DISCUSSION
Eagle fails to meet its burden on either of the asserted grounds of its protest. First, the
Court finds that the plain language of the RFQ did not require the DOI to consider Factor 1 in
awarding the task order. The RFQ stated that Factor 1 would be evaluated to assess the successful
performance of only the work required in the BPA PWS—as distinct from Factors 2 and 3, which
would be evaluated to assess both the work required in the BPA PWS and the BPA Order 1 SOW.
Second, the Court finds that Eagle does not state a valid disparate evaluation challenge against the
DOI. The Government’s explanation for what experience was considered under Factor 3 is rational
and supported by the administrative record, and it demonstrates that the DOI did not treat the
parties unequally. Because Eagle does not meet its burden of proving that the DOI acted arbitrarily
and capriciously in awarding the task order, Eagle is not entitled to judgment on the administrative
record.
A. Eagle’s Motion for Leave to File an Amended Complaint Is Unduly Delayed,
And the Proposed Amendment Would Be Futile.
As a preliminary matter, the Court must resolve Eagle’s post-argument request to amend
the Complaint. In its motion for leave, Eagle argues that Dynanet mis-mapped the labor categories
in its quote by proposing workers without the skills or qualifications required by the Government.
ECF No. 31 at 5. Eagle contends that the alleged deficiency was not apparent earlier because
Dynanet’s GSA MAS contract was not included in the administrative record, and Eagle was only
14
able to locate and assess the contract posted on the GSA website by tracing a reference to it in
Dynanet’s proposal. Id. at 5 n.1. According to Eagle, Dynanet’s mis-mapping shows that it posed
a higher performance risk than Eagle and artificially lowered Dynanet’s price. Id. at 21–22.
The Government and Dynanet argue that Eagle unduly delayed filing its proposed amended
complaint, which it could have filed once the administrative record was filed on July 15, 2022.
ECF No. 32 at 8–10; ECF No. 33 at 2–3. They further argue that Eagle’s proposed amendment
would be futile because Dynanet’s mapping (and the DOI’s price evaluation based in part on that
mapping) was consistent with the requirements of the RFQ and because Eagle’s quote showed it
interpreted the RFQ’s mapping requirements in the same manner as Dynanet. ECF No. 32 at 10,
24–25; ECF No. 33 at 3–4.
The Court agrees with the Government and Dynanet. First, Eagle’s motion is unduly
delayed, having been filed over three months after Eagle filed suit and the Government filed the
administrative record, two months after Eagle moved for judgment on the administrative record,
and days after the Court heard oral argument on the parties’ cross-motions. Because the bid protest
process is “designed to resolve disputes as quickly as possible, even relatively short delays may
be unreasonable.” Sonoran Tech. and Pro. Servs., LLC v. United States, 133 Fed. Cl. 401, 404
(2017). Indeed, in Sonoran, the court denied a motion to amend that was filed only six weeks after
the protest was initiated and before dispositive briefing was complete. Id.Nor has Eagle justified its delay in seeking to amend its complaint. See id. (“The ‘party
seeking to amend its complaint after significant delays bears the burden of justifying the delay.’”
(quoting Cupey Bajo Nursing Home, Inc. v. United States, 36 Fed. Cl. 122, 132 (1996)); Te-Moak
Bands of W. Shoshone Indians of Nev. v. United States, 948 F.2d 1258, 1263 (Fed. Cir. 1991)
(holding that with the passage of time “a point is reached when the party seeking to amend must
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justify that request by more than invocation of the concept of the rule’s liberality”). Eagle explains
that the reason for the delay is that Dynanet’s GSA MAS contract was not included in the
administrative record. ECF No. 31 at 5 n.1; ECF No. 38 at 8. However, that fact should have been
known to Eagle in July 2022 when the Government lodged the record in this case. At that point,
Eagle could have requested that the administrative record be completed or supplemented with
Dynanet’s GSA MAS. Or, Eagle could have argued that its absence from the record demonstrated
a deficiency in Dynanet’s quote or in the DOI’s evaluation. Or, since the contract is publicly
available, Eagle could have traced the reference in the administrative record to the GSA website
to discover the information that underlies the allegations it now seeks to assert. Eagle’s motion
simply does not explain why it did not conduct that due diligence (or pursue a different avenue to
raise the issue) at an earlier stage of the case.
Additionally, Eagle’s proposed amendment would be futile because it would not survive a
dispositive motion. Kemin Foods, L.C. v. Pigmentos Vegetales Del Centro S.A. de C.V., 464 F.3d
1339, 1355 (Fed. Cir. 2006). Specifically, Eagle has failed to show that Dynanet did not follow
the solicitation requirements for mapping labor categories. The RFQ required quoters to identify
their proposed labor categories based on their GSA schedules and “map back [the labor categories]
to the BPA job descriptions and minimum qualifications” stated in the relevant attachment to the
RFQ. AR 134. It further stated that “[f]or each labor category, ensure that there is a one-to-one
correlation between the labor category names provided in the RFQ and the GSA labor category
names provided within the quote.” Id. The RFQ, however, did not require that the proposed labor
categories in the GSA schedule have at least the same minimum characteristics as the RFQ labor
categories in order to be properly correlated. Indeed, case law demonstrates that when evaluating
the sufficiency of labor category mapping, differences in job titles or qualifications are not
16
dispositive. Rather, the standard requires that the GSA schedule labor categories need only be
“consistent with the function” of the RFQ labor categories. See HomeSource Real Est. Servs., Inc.
v. United States, 94 Fed. Cl. 466, 486 (2010) (“The government need only determine that the
function of the job category listed in the Solicitation is sufficiently close to the service offered in
the vendor’s FSS contract.”); Data Mgmt. Servs. Joint Venture v. United States, 78 Fed. Cl. 366,
377 (2007) (“[A]lthough plaintiff is correct in pointing out that the stated function of ALON’s
Senior Requirements Analyst does not specifically mention the task of risk management, it is
certainly plausible that a requirements analyst would be in a position to manage the risks related
to the development of the ERA program.”).
Moreover, the RFQ did not require the DOI to assess how closely each quoter’s proposed
labor categories correlated to the RFQ’s labor categories based on qualifications and experience.
The RFQ’s mapping requirement pertained to the Phase II Volume III submission, focused solely
on price, which was separate from the technical considerations (such as proposed staffing)
addressed in Phase II Volume II. Pursuant to the RFQ, the price evaluation was based on
“accuracy, completeness, discounts offered, and reasonableness.” AR 137. This make sense, as
“mapping is primarily a devise for assigning maximum prices.” Data Mgmt. Servs., 78 Fed. Cl. at
379. As such, “there is a great deal of self-certification in the ‘mapping’ process.” Id. Indeed, the
thrust of Eagle’s new claim—that Dynanet’s labor category mapping proposed to use personnel
without the requisite experience and expertise—is simply incorrect. See ECF No. 31 at 19.
Because the procurement was accomplished by way of an RFQ, Dynanet’s proposal was an
acceptance of the Government’s offer and a commitment to perform using personnel who meet the
requirements of the RFQ’s labor categories. Whether Dynanet ultimately provides the required
staffing would be a matter of contract administration. See Data Mgmt. Servs., 78 Fed. Cl. at 379.
17
Accordingly, Eagle’s motion for leave to file an amended complaint is denied because it is
unduly delayed and the proposed amendment would be futile.
B. The DOI Was Not Required to Consider Factor 1 in Awarding BPA Order 1.
Turning to the claims pled in the Complaint, Eagle argues that the DOI did not evaluate
proposals in a manner consistent with the RFQ’s evaluation criteria. ECF No. 24-1 at 32–36.
Specifically, Eagle contends that the DOI misread the RFQ by not considering Factor 1,
Demonstrated Prior Experience, in awarding BPA Order 1. Id. at 32. According to Eagle, the
DOI’s interpretation rested entirely on the fact that the RFQ did not state any order evaluation
considerations under Factor 1, in contrast to Factors 2 and 3 which expressly referred to certain
considerations “For BPA Order 1.” Id. at 18, 34. Eagle alleges that this reading ignores the
addendum on page five of the RFQ, stating that “Phase I / Factor 1, the most important factor, will
be considered alongside the evaluation of Phase II when the Government makes its source
selection decision.” Id. at 34. Eagle asserts that nothing in the RFQ expressly stated that Phase I
was irrelevant to the award of BPA Order 1. Id.
The Government and Dynanet disagree, arguing that the RFQ did not require the DOI to
consider Factor 1 in awarding BPA Order 1. ECF No. 26 at 28–34; ECF No. 25-1 at 17–19. The
Government contends that the analysis begins and ends with Section 7 of the RFQ, which identified
the evaluation factors. ECF No. 26 at 30. The Government highlights that the language in Section
7 notified quoters that Factor 2, Technical Capability and Understanding, and Factor 3,
Management Approach, together with Price, would be evaluated for BPA Order 1. Id. at 32. The
Government contends that, contrary to Eagle’s arguments, the DOI’s interpretation is appropriately
based on the express language in Section 7, and not merely “silence” regarding Factor 1. Id. at
32–33.
18
Eagle’s first claim involves the interpretation of the terms of the RFQ, and as such presents
a question of law. Banknote Corp. of Am., 365 F.3d at 1353. The principles governing contract
interpretation apply with equal force where the Court is tasked with interpreting a solicitation. Id.
at 1353 n.4 (citing Grumman Data Sys. Corp. v. Dalton, 88 F.3d 990, 997–98 (Fed Cir. 1996)).
Thus, the Court must begin with the text of the RFQ. Id. at 1353; see Coast Fed. Bank, FSB v.
United States, 323 F.3d 1035, 1038 (Fed. Cir. 2003) (citing Foley Co. v. United States, 11 F.3d
1032, 1034 (Fed. Cir. 1993)). If the RFQ’s “provisions are clear and unambiguous, they must be
given their plain and ordinary meaning.” McAbee Constr., Inc. v. United States, 97 F.3d 1431,
1435 (Fed. Cir. 1996) (quoting Alaska Lumber & Pulp Co. v. Madigan, 2 F.3d 389, 392 (Fed. Cir.
1993)). If the Court finds that “specific and general terms in [the RFQ] are in conflict, those which
relate to a particular matter control over the more general language.” Info. Scis. Corp. v. United
States, 80 Fed. Cl. 759, 792 (2008) (quoting Hills Materials Co. v. Rice, 982 F.2d 514, 517 (Fed.
Cir. 1992)). Ultimately, the Court is guided by the principle that an “interpretation that gives
meaning to all parts of the [solicitation] is to be preferred over one that leaves a portion of the
[solicitation] useless, inexplicable, void, or superfluous.” NVT Techs., 370 F.3d at 1159.
In this case, the plain language of the RFQ did not require the DOI to consider Factor 1 in
awarding BPA Order 1. A quoter need only turn to Section 7 of the RFQ, titled “Evaluation,” to
determine how the DOI intended to assess each evaluation factor and for what purpose. AR 135–
37. The relevant language is excerpted below.
Volume I, Section 6: Factor 1 – Demonstrated Prior Experience (Phase I)
The Government will evaluate the Quoter’s Demonstrated Prior Experience in
order to assess whether it will lead to successful performance of the work required
in the BPA PWS . . . .
19
Volume II, Section 3: Factor 2 – Technical Capability and Understanding
(Phase II)
The Government will evaluate the Quoter’s Technical Capability and
Understanding in order to assess whether it will lead to successful performance of
the work required in the BPA PWS and BPA Order 1 SOW . . . .
Volume II, Section 3: Factor 3 – Management Approach (Phase II)
The Government will evaluate the Quoter’s Management Approach in order to
assess whether it will lead to successful performance of the work required in the
BPA PWS and BPA Order 1 SOW . . . .
AR 135–37 (emphasis added). Thus, according to the RFQ, a quoter’s prior experience (Factor 1)
would be assessed to determine whether the quoter could successfully perform the work required
in the BPA PWS, whereas a quoter’s technical capability and understanding (Factor 2) and
management approach (Factor 3) would be assessed with respect to not only the work required in
the BPA PWS but also the BPA Order 1 SOW. Additionally, certain subfactors of Factors 2 and
3 expressly denoted criteria to be evaluated “For BPA Order 1.” AR 136, 137. Similar task
order-specific criteria were noticeably absent in Factor 1. AR 135–36. That the RFQ expressly
distinguished the purpose of the evaluation of Factor 1 (i.e., awarding the BPAs) from the purpose
of the evaluation of Factors 2 and 3 (i.e., awarding the BPAs and BPA Order 1) is, in the Court’s
opinion, dispositive of the issue. In short, to give effect to the plain language of Section 7—so
that no part of the RFQ is rendered “useless, inexplicable, void, or superfluous,” NVT Techs., 370
F.3d at 1159—the Court must recognize those differences. Cf. AM General, LLC v. United States,
115 Fed. Cl. 653, 671 (2014) (applying negative implication cannon to interpret solicitation in bid
protest).
Eagle’s attempts to demonstrate a reasonable alternative interpretation are unpersuasive.
First, Eagle argues that the Government’s interpretation ignores other language in the RFQ that
purportedly advised quoters that the DOI would consider prior experience in making the final
20
award decision and, indeed, it would be the most important evaluation factor. ECF No. 24-1 at
11. Specifically, Eagle quotes the addendum on page five of the RFQ, which stated that Phase I /
Factor 1 “will be considered alongside the evaluation of Phase II when the Government makes its
source selection decision.” Id. (quoting AR 131). But considering one factor “alongside” of—
i.e., contemporaneous with—the evaluation of other factors did not mean that the DOI would apply
the same criteria to all factors or assess all factors for the same purpose. Nor can the quoted
statement from the addendum be read in isolation. NVT Techs., 370 F.3d at 1159 (citing McAbee
Constr., Inc. v. United States, 97 F.3d 1431, 1434–35 (Fed. Cir.1996) (holding that proper
interpretation requires reading the solicitation as a whole to harmonize and give meaning to all its
parts). Indeed, when viewed in the context of the RFQ in its entirety, the addendum is consistent
with the DOI’s plan to conduct the evaluation for the award of the BPAs and BPA Order 1 at the
same time. AR 127 (“BPA Order 1 will be competed and evaluated concurrently with the multiple
award BPAs.”). It is likewise consistent with the RFQ’s ranking of evaluation factors, which listed
prior experience as the most important factor. AR 135. Indeed, in Phase I, prior experience was
the only factor and, absent a positive evaluation on that factor, quoters would be advised that they
were unlikely to be viable competitors. AR 131. And even if the general statement relied on by
Eagle, which was included as a note at the end of the RFQ’s description of the Phase I submission
content, could be construed as conflicting with the evaluation criteria set forth in Section 7, the
specific provisions in the latter section describing how the DOI would conduct its evaluation are
controlling. 2 See Info. Scis. Corp., 80 Fed. Cl. at 792.
2
The GAO gave more credence to Eagle’s interpretation, finding the RFQ to be
“inconsistent in its explanation of how the agency would consider the various factors for award of
the task order.” AR 1367. For the reasons explained above, the Court respectfully disagrees. And
because the issue raises a question of law, the Court is not bound by and does not owe deference
to the GAO’s holding. See VS2, 155 Fed. Cl. at 767.
21
Eagle also relies on various items of extrinsic evidence to support its contention that the
DOI advised quoters that demonstrated prior experience would be considered in awarding BPA
Order 1. See ECF No. 24-1 at 21–29. Eagle, however, cannot create an ambiguity through
extrinsic evidence where none exists in the plain language of the RFQ. See Shell Oil Co. v. United
States, 751 F.3d 1282, 1295 (Fed. Cir. 2014). Nor has it demonstrated that any of the extra-record
documents it cites were incorporated by reference into the RFQ. See Northrop Grumman Info.
Tech. v. United States, 535 F.3d 1339, 1344 (Fed. Cir. 2008).
Finally, Eagle argues that one reference to the BPA PWS in the five subfactors to be
considered under Factor 1 should not drive the interpretation of the RFQ as a whole. ECF No. 24-
1 at 37–38. According to Eagle, the work described under Factor 1 fell within the scope of work
to be performed under BPA Order 1, and thus the RFQ “built an obvious bridge” between Factor
1 and BPA Order 1. Id. at 39; see id. at 37–38; see also ECF No. 28 at 11 (arguing that “the task
order ‘nests’ within the BPA”). This contention fails for two reasons. First, it ignores that the first
sentence of each evaluation factor sets forth what the DOI would assess based on the entire factor,
as opposed to language in a particular subject area or subfactor. Second, that Eagle believes it
would have been rational to evaluate prior experience in awarding BPA Order 1 is immaterial.
The Court’s task is only to interpret the RFQ to determine what the DOI advised quoters it would
do. Based on the plain language, the Court concludes that the RFQ did not require the DOI to
evaluate Factor 1 in assessing a quoter’s successful performance of the BPA Order 1 SOW. On
that point, there is no ambiguity.
Even if there were an ambiguity, however, it would be a patent ambiguity that Eagle was
required to raise prior to award. Whether a solicitation provision was ambiguous is a question of
law for the Court, as is the question of whether an ambiguity was patent or latent. NVT Techs.,
22
370 F.3d at 1159. A patent ambiguity is present where there are facially inconsistent provisions
that would “place a reasonable contractor on notice and prompt the contractor to rectify the
inconsistency by inquiring of the appropriate parties.” Per Aarsleff A/S v. United States, 829 F.3d
1303, 1312 (Fed. Cir. 2016) (quoting Stratos Mobile Networks USA, LLC v. United States, 213
F.3d 1375, 1381 (Fed. Cir. 2000)). A latent ambiguity is hidden or concealed, not apparent on the
face of the document, could not be discovered by “reasonable and customary care and is not so
patent and glaring as to impose an affirmative duty on plaintiff to seek clarification.” Id. (quoting
Analytical & Rsch. Tech., Inc. v. United States, 39 Fed. Cl. 34, 46 (1997)). “[A] party who has the
opportunity to object to the terms of a government solicitation containing a patent error and fails
to do so prior to the close of the bidding process waives its ability to raise the same objection
subsequently in a bid protest in the Court of Federal Claims.” Blue & Gold Fleet, L.P. v. United
States, 492 F.3d 1308, 1313 (Fed. Cir. 2007).
Here, assuming the parties’ interpretations of the RFQ are both reasonable such that a true
ambiguity exists, it was not hidden or concealed. If, as Eagle argues, the addendum on page five
of the RFQ could reasonably be construed as advising quoters that all four factors would be
considered in awarding both the BPAs and BPA Order 1, then the evaluation criteria set forth in
Section 7 contained an obvious inconsistency in its description of the Factor 1 evaluation criteria.
Namely, the very first sentence describing the Factor 1 evaluation referred only to the BPA PWS,
in noticeable contradiction to the first sentences of the Factors 2 and 3 evaluations. One would
expect that a quoter who similarly interpreted the statement on page five would, as a matter of
reasonable and customary care, read the evaluation criteria in Section 7 and inquire why, unlike
the other factors, the DOI did not plan to evaluate Factor 1 in relation to the BPA Order 1 SOW.
23
Eagle contends that a patent ambiguity cannot be predicated on the mere “silence” in
Section 7, as it is “not an express statement that would be ‘glaring’ or ‘obvious.’” ECF No. 24-1
at 37. The precedent does not support Eagle’s characterization of the standard. That a reference
to the BPA Order 1 SOW was omitted from Factor 1, despite being expressly included in Factors
2 and 3, was glaring and obvious. If it was in fact a defect in the terms of the RFQ, it would be
best described as “an omission, inconsistency, or discrepancy” and, in any case, was a patent
ambiguity. Inserso Corp. v. United States, 961 F.3d 1343, 1349 (Fed. Cir. 2020). Because Eagle
did not seek clarification about the DOI’s use of the Factor 1 evaluation prior to the close of the
bidding process, Eagle has waived its right to raise an objection now.
Accordingly, Eagle has failed to demonstrate that the DOI’s interpretation of the RFQ was
arbitrary and capricious. 3
C. Eagle Does Not State a Valid Disparate Evaluation Challenge.
Eagle also argues that the DOI treated Dynanet and Eagle unequally by considering Factor
1 for Dynanet, but not for Eagle, in awarding BPA Order 1. ECF No. 24-1 at 35–36. As proof of
disparate treatment, Eagle points to a statement in the Phase II TEC report, which noted that “[o]ut
of all three technical factors” the only factor presenting some risk for Dynanet was a lack of diverse
experience in personnel. Id. at 26 (quoting AR 610) (emphasis omitted). The TEC found this risk
“was mitigated because Dynanet was able to demonstrate through other areas of their quote that
they have done this type of work before.” Id. (emphasis omitted). Eagle argues that the “they” in
this statement shows “the TEC was actually looking to Dynanet’s prior experience.” Id. at 28(emphasis omitted); see id. at 43. According to Eagle, the unequal treatment harmed Eagle
because, had it also considered Eagle’s prior experience for purposes of awarding BPA Order 1,
3
In light of the Court’s ruling, it is not necessary to address Eagle’s arguments that it was
prejudiced by the DOI’s interpretation.
24
the DOI would have recognized that Eagle did not suffer from the same lack of experience as
Dynanet. Id. at 35–36.
In response, the Government and Dynanet argue that the DOI did not treat the parties
unequally. ECF No. 26 at 51–55; ECF No. 25-1 at 20–22. The Government explains that the prior
experience considered for Dynanet in awarding BPA Order 1 was that of Dynanet’s key personnel,
as part of Factor 3’s criteria, and not of Dynanet as an organization, per Factor 1. ECF No. 26 at
54. In particular, the Government notes that the experience referred to was based on the resumes
of Dynanet’s key personnel, which were included in Dynanet’s quote. Id. And, as explained in
the declaration of the TEC Chairperson submitted in the GAO protest, the pronoun “they” was not
identifying Dynanet as an organization but referred to Dynanet’s key personnel. Id.To prevail on a claim of disparate evaluation, a protestor must show that the agency
unreasonably downgraded its proposal for deficiencies that were “substantively indistinguishable”
from or “nearly identical” to those contained in other proposals. Office Design Grp. v. United
States, 951 F.3d 1366, 1372 (Fed. Cir. 2020) (citing Enhanced Veterans Sols., Inc. v. United States,
131 Fed. Cl. 565, 588 (2017)); Red River Comput. Co. v. United States, 120 Fed. Cl. 227, 238
(2015). A protestor also may prevail by showing the agency inconsistently applied objective
solicitation requirements among it and the other offerors. Sci. Applications Int’l Corp. v. United
States, 108 Fed. Cl. 235, 272 (2012) (citing BayFirst Sols., LLC v. United States, 102 Fed. Cl. 677,
691 (2012)). If a protestor does not meet this threshold showing, then the court should dismiss the
claim, otherwise it “would give a court free reign to second-guess the agency’s discretionary
determinations underlying its technical ratings.” Office Design Grp., 951 F.3d at 1373.
Here, Eagle has not demonstrated that the DOI considered Factor 1 for Dynanet in
awarding BPA Order 1. Eagle’s claim revolves around two sentences in the Phase II TEC report
25
and subsequent award summary discussing the risk “related to the lack of diverse experience
reflected in the submitted resumes.” AR 610; see AR 636–37. But that experience directly refers
to Subfactor 5 of Factor 3, Management Approach, which addressed the degree to which a quoter’s
proposed staffing (both quantity and skill mix) aligns with its technical approach. AR 578–79; see
AR 608–09. Dynanet’s negative noteworthy observation for this subfactor referred to its “key
personnel’s experience,” AR 579, not the prior experience of the organization evaluated under
Factor 1.
Nor does the pronoun “they” in the following sentence show that the TEC used prior
organizational experience to mitigate the risk posed by Dynanet’s proposed staffing. The TEC
report’s summary of that subfactor stated, “Although they do not have diverse skills within the
personnel, they have clearly done the work before and they have shown that they have worked
with similar stacks before.” Id. The TEC’s recommendation included a clearer version of this
statement. It stated, “Dynanet was able to demonstrate through other areas of their quote that they
have done this type of work before.” AR 610; see AR 637. The TEC Chairperson explained, in a
declaration signed under penalty of perjury, that the TEC’s comments were addressed to the
experience of the individuals Dynanet proposed as key personnel. AR 1341–42. The Chairperson
asserted that Dynanet’s negative noteworthy observation was mitigated because the key “personnel
demonstrated an acceptable skillset with regard to legacy applications . . . .” AR 1342. The
resumes of Dynanet’s key personnel, submitted as part of Dynanet’s quote, support this
explanation. AR 399–406 (describing experience including “[. . .],” “[. . .],” and “[. . .].”).
Contrary to Eagle’s arguments, that the sentences at issue in the TEC report (and
subsequent award summary) also included the phrase “all three technical factors” does not conflict
with the DOI’s explanation. AR 610 (“Out of all three technical factors, the only element of
26
Dynanet’s quote that introduced some risk was related to the lack of diverse experience reflected
in the submitted resumes.”); see AR 636–37. This statement does not alone indicate that the DOI
considered Factor 1 in awarding the task order, and Eagle has pointed to nothing else in the TEC
report or award summary from which the Court could reasonably infer otherwise. Rather, the
reference indicates exactly what it says: Dynanet had only one negative noteworthy observation
for any technical evaluation factor, which is supported by the administrative record. As for the
task order, the award summary succinctly explained why Dynanet beat out the other BPA awardees
to receive BPA Order 1: it “provided the strongest technically-evaluated quote with the lowest
assessed risk and highest probability of successful performance.” 4 AR 636; see AR 610.
Because Eagle has failed to show that the DOI inconsistently considered Factor 1 in
awarding the task order, Eagle cannot prevail on its disparate evaluation claim.
D. No Injunctive Relief Is Warranted Because Eagle Fails on the Merits.
A party seeking permanent injunctive relief must show that: (1) it “has succeeded on the
merits of the case;” (2) it “will suffer irreparable harm if the court withholds injunctive relief;” (3)
“the balance of hardships to the respective parties favors the grant of injunctive relief;” and (4) “it
is in the public interest to grant injunctive relief.” PGBA, LLC v. United States, 389 F.3d 1219,
1228–29 (Fed. Cir. 2004). Because Eagle has not succeeded on the merits of its protest, no
injunctive relief is warranted in this case. See Mitchco Int’l, Inc. v. United States, 26 F.4th 1373,
4
The decision went on to note that Dynanet’s quote was comparatively stronger than the
other quotes on Factor 2, “which was the most important factor in Phase [II].” AR 636. Contrary
to Eagle’s argument, this statement is not at odds with the RFQ. See ECF No. 24-1 at 22. Indeed,
consistent the Court’s analysis above, the quoted statement is accurate as it relates to BPA Order
1 specifically because the RFQ did not contemplate Factor 1 being considered for the task order
award. See AR 135 (listing evaluation factors in descending order of importance and by evaluation
phase); AR 135–37 (identifying the evaluation criteria and the purpose for evaluating each factor).
27
1384 n.7 (Fed. Cir. 2022); ANHAM FZCO v. United States, 149 Fed. Cl. 427, 439 (2020) (quoting
Dell Fed. Sys., L.P. v. United States, 906 F.3d 982, 999 (Fed. Cir. 2018)).
IV. CONCLUSION
For the reasons set forth above, Eagle’s Motion for Leave to File an Amended Complaint
(ECF No. 31) is DENIED, Eagle’s Motion for Judgment on the Administrative Record (ECF No.
24) is DENIED, the Government’s Cross-Motion (ECF No. 26) is GRANTED, and Dynanet’s
Cross-Motion (ECF No. 25) is GRANTED. The Clerk is directed to enter judgment accordingly.
This opinion and order will be unsealed in its entirety after January 12, 2023, unless the
parties submit by no later than January 9, 2023, an objection specifically identifying the
protected information subject to redaction. Any objecting party must submit a proposed redacted
version of the decision and provide the reason(s) supporting the party’s request for redaction.
SO ORDERED.
Dated: December 29, 2022 /s/ Kathryn C. Davis
KATHRYN C. DAVIS
Judge
28