Accelgov, LLC. v. United States ( 2023 )

IN THE UNITED STATES COURT OF FEDERAL CLAIMS
____________________________________
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ACCELGOV, LLC, )
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Plaintiff, )
)
v. ) No. 22-1433
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THE UNITED STATES, ) Filed: January 31, 2023
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Defendant, ) Re-issued: February 17, 2023*
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and )
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TECHNICAL AND MANAGEMENT )
RESOURCES, INC., )
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Defendant-Intervenor. )
____________________________________ )
OPINION AND ORDER
Plaintiff, AccelGov, LLC, filed this post-award bid protest challenging the General
Services Administration’s (“GSA”) decision to award a task order to Defendant-Intervenor,
Technical and Management Resources, Inc. (“TMR”), to provide information technology services
to the Defense Commissary Agency (“DeCA”). AccelGov contends that GSA’s award was
*
The Court issued this opinion under seal on January 31, 2023, and directed the parties to
file any proposed redactions by February 8, 2023. AccelGov proposed redactions, to which TMR
has no objections, and the Government proposed a more limited set of redactions fully
encompassed by AccelGov’s proposal. Upon review, the Court concludes that some of
AccelGov’s proposed redactions are overbroad, as more limited redactions will suffice to protect
the competitive process. Thus, the Court has rejected proposed redactions to the extent they seek
to protect information that was stated in a high level of generality or qualitatively, constituted
attorney argument, or was revealed in other parts of the opinion not marked for redaction.
Additionally, balancing the need to protect competition-sensitive information with the
presumption of access to judicial records, the Court has rejected proposed redactions of
information that is necessary to understand the Court’s analysis. Accordingly, this opinion adopts
a subset of AccelGov’s proposed redactions and all of the Government’s proposed redactions.
Redacted material in charts is blacked out, and redacted material in the body of the opinion is
represented by bracketed ellipses “[. . .].” The Court also has corrected some typographical errors.
arbitrary and capricious because the agency irrationally evaluated AccelGov’s
technical/management approach. It also argues that TMR’s quote contained material
misrepresentations regarding TMR’s past experience. AccelGov requests that the Court enjoin
performance of the task order award, disqualify TMR from consideration, and require GSA to
perform another evaluation and issue a new award decision.
Before the Court are the parties’ Cross-Motions for Judgment on the Administrative
Record and the Government’s Motion to Supplement the Administrative Record. For the reasons
discussed below, the Court DENIES AccelGov’s Motion for Judgment, GRANTS the
Government’s and TMR’s Cross-Motions, and DENIES the Government’s Motion to Supplement
the Administrative Record.
I. BACKGROUND
A. The Solicitation
GSA issued Request for Quote No. 47QFHA22Q0005 (“RFQ”) on July 12, 2022, seeking
proposals for the award of a task order for information technology support to be provided to DeCA.
Admin. R. 519–20, ECF No. 25-1 (hereinafter “AR”).1 Headquartered in Fort Lee, Virginia,
DeCA manages and operates over 236 grocery stores worldwide with approximately 16,000
employees. AR 191. To support DeCA’s operational and information technology objectives, the
task order at issue required the contractor to provide “a wide range of services including personnel
to support database administration, system administration and operation, system integration,
software deployment, technical/customer support, configuration management, security, system
tuning, hardware lifecycle management, help desk operations and ticketing application
administration.” AR 576.
1
For ease of reference, citations to the administrative record refer to the bates-labeled page
numbers rather than the ECF page numbers.
2
Per the RFQ, GSA would use four factors to evaluate quotes. These factors, in descending
order of importance, were as follows: Factor 1 – Technical/Management Approach; Factor 2 –
Past Experience; Factor 3 – Socio-Economic status; and Factor 4 – Price. AR 536–37. GSA would
evaluate offerors under Factor 1 based on “their demonstrated understanding of the task order
requirements, the adequacy of the proposed solution/approach, the quality and completeness of
their technical solutions to these objectives, and the overall qualifications and skill mix of the
contractor workforce proposed to address these task order objectives.” AR 539. Upon such
evaluation, GSA would ascribe to each offeror a rating under Factor 1 using the following scheme:
Rating Description
Proposal meets requirements and has the following
characteristics:
Outstanding – has multiple strengths and strengths far outweigh
any weaknesses, and Risk of unsuccessful performance is
low.
Proposal meets requirements and has the following
characteristics:
Good
– strength(s) outweigh any weakness(es), and Risk
of unsuccessful performance is low.
Proposal meets requirements and has the following
characteristics:
Acceptable – weaknesses do not outweigh strengths; or has no
weaknesses and no strengths, and Risk of unsuccessful
performance is no greater than moderate.
Proposal has any of the following characteristics:
– uncertainty whether it meets requirements,
Marginal
– weaknesses outweigh strengths, Risk of
unsuccessful performance is high.
Unacceptable Proposal does not meet requirements.
AR 541.
To evaluate offerors under Factor 2, GSA would “consider[] the extent of the offeror’s past
experience in carrying out similar work” to determine “the offeror’s ability to complete a project
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with similar scope, size, and duration with minimal risk.” AR 538. The RFQ allowed offerors to
submit up to three past experience references and required offerors to identify whether they were
the prime contractor or a subcontractor for each project. AR 532–33. The RFQ advised that GSA
may give prime level experience greater consideration than subcontract level experience. AR 533.
It also noted that it would consider the offeror’s organizational experience for purposes of
evaluating past experience but would not consider the offeror’s personnel experience as part of the
offeror’s organizational experience. Id. Upon such evaluation, GSA would ascribe a rating under
Factor 2 to each offeror of either “Very Relevant,” “Relevant,” “Somewhat Relevant,” or “Not
Relevant.” AR 540.
Under Factor 3, GSA would rate each offeror as either “Outstanding,” “Good,” or
“Acceptable” based on the offeror’s socio-economic status. AR 539, 541. And under Factor 4,
GSA would “consider the level of effort, mix of labor, and whether the total price quoted is
reasonable,” but it would not score the offeror’s price quote. AR 540.
GSA was to award the task order to the offeror that provided the “Best Value” to the
Government, “price and other factors considered.” AR 541. The best value determination would
reflect a “subjective assessment” by GSA “of the quoted solution that provides the optimal results
to the Government.” AR 542. The RFQ warned that if an offeror received a rating of less than
“Acceptable” under any factor, it may not be reviewed any further under the best value
determination. AR 538. Because the RFQ would be conducted in accordance with Part 8.4 of the
Federal Acquisition Regulations, GSA disclaimed any obligation to determine a competitive range,
conduct discussions, or accept revised quotes. AR 542. However, once GSA determined the best-
suited offeror, it “reserve[d] the right to communicate with only that Contractor to address any
remaining issues, if necessary, and finalize a [task order] with that Contractor.” Id.
4
B. The Evaluation and Award
GSA received 11 quotes in response to the RFQ, including quotes from AccelGov and
TMR. AR 927–1032, 2041–2153. A Technical Evaluation Board (“TEB”) evaluated the quotes
against the criteria outlined in the RFQ and assigned ratings to each offeror for the first three non-
price factors. AR 2559–60; see AR 2218–2535. The TEB supported its ratings by describing the
strengths and weaknesses related to each factor. AR 2560. The Contracting Officer (“CO”) then
conducted an independent best value determination and selected TMR to receive the task order.
AR 2541. While the CO’s analysis relied heavily on the TEB’s review, he independently evaluated
the quotes and diverged from the TEB’s conclusions when he disagreed. Compare AR 2574 (CO
rated AccelGov as “Relevant” under Factor 2), with AR 2273 (TEB rated AccelGov “Somewhat
Relevant” under Factor 2).
The CO gave AccelGov a “Marginal” rating for its technical/management approach (Factor
1), a “Relevant” rating for prior experience (Factor 2), and an “Outstanding” rating for socio-
economic status (Factor 3). AR 2570. Under Factor 1, the TEB found eight weaknesses associated
with AccelGov’s proposed approach and no strengths. AR 2276–79. The CO’s analysis adopted
the following four weaknesses from the TEB report:
• “ACCELGOV, LLC’s submission did not address all aspects of the PWS
[Performance Work Statement], only parroting the PWS without clearly
articulating their approach or how they will accomplish the PWS
requirements.” AR 2571.
• “They did not provide a complete Phase-In Plan as they simply stated that they
will utilize incumbent personnel to perform all tasks identified. [ACCELGOV]
failed to realize that the Field Service Plan and Cyber security are not presently
included in the current contract, and therefore these tasks do not have
‘incumbent’ personnel, therefore their Phase-In plan is not acceptable.” Id.
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• “[ACCELGOV’s] Key Personnel plan did not fully meet the Government’s
need of having certified personnel available to perform on Day 1 of the period
of performance.” Id.
• “ACCELGOV[’s] [f]ield services approach did not fully capture the field
service requirements outlined in the PWS, as the PWS requires a dedicated
Field Service team, traveling for task C.5.1 (Approx. 10% CONUS/OCONUS
per year) traveling for task C.5.2 (approx 10% CONUS/OCONUS per year) and
travel for task C.5.4 (approx 70% CONUS/10% OCONUS per year) as detailed
in question 11 of the Q&A. ACCELGOV’s approach of employing a field
service team deploying to [. . .] or in response to [. . .] did not adequately
demonstrate there will be a dedicated traveling team for the duration of the
contract to provide Field Services On-Site support for Tasks C.5.4.3. (a)
through (b) IAW the PWS.” Id.
Like the TEB, the CO did not note any strengths for AccelGov’s Factor 1 proposal. Id.
The CO rated each quote as follows:
AR 2665. After rating each quote, the CO conducted a comparative analysis of the top three quotes
submitted by TMR, [. . .], and [. . .] (“[. . .]”), respectively, and concluded that TMR provided the
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best value to the Government. AR 2678. Because the other responsive quotes received a
“Marginal” rating or lower under Factor 1, the CO did not consider them in his comparative
analysis, as he found the risk of unsuccessful performance was high. Id. Consistent with the CO’s
best value determination, GSA awarded the task order to TMR for a dollar value of approximately
$43 million. AR 2682.
C. The Prior Contract and the Parties’ Joint Ventures
As the RFQ explained, the task order at issue “represents a continuation of system life cycle
support services for DeCA’s Data Center and Enterprise Service Desk environments.” AR 576.
Since April 2019, DeCA contracted with Advanced Alliant Solutions Team (“AAST”) for IT
services for a dollar value of approximately $27 million (“Incumbent Contract”). AR 2542. The
scope of work contemplated under the RFQ, however, was broader than the prior task order. For
example, the new task order requires onsite field service and cyber security support that the
Incumbent Contract did not include. AR 629, 2051, 2090, 2571; see AR 577. This required a
dedicated workforce not previously called for under the Incumbent Contract and an increased
travel budget. Id.; see Pl.’s Resp. to Def.’s Mot. to Suppl. the AR at 1, ECF No. 41. Accordingly,
the independent government estimate for the task order was much higher at roughly $44 million.
AR 227.
AAST is a joint venture between TMR and 22nd Century Technologies, Inc. (“22nd
Century”). AR 2542. TMR is the managing partner of the joint venture. AR 2049; Def.-
Intervenor’s Resp. to Interrogs. at 1–2, ECF No. 48. While TMR technically acted as the prime
contractor and 22nd Century acted as the subcontractor on the Incumbent Contract, 22nd Century
served as the “lead.” ECF No. 48 at 2. This meant that while TMR managed both the joint venture
and the Incumbent Contract, 22nd Century provided most of the personnel, as well as performed
and managed most of the billable work, either directly or through its subcontractor, [. . .]. Ex. 1 to
7
Pl.’s Am. Compl., Decl. of Satvinder Singh at 3, ECF No. 26-1; see ECF No. 48 at 3–4; Attach.
C. to TMR’s Resp. to Interrogs. at 1–3, ECF No. 48-3. 22nd Century also “served as the
government customer’s primary point of contact.” ECF No. 26-1 at 3. For its part, TMR provided
some full-time employees to perform billable work. ECF No. 48 at 2–3; ECF No. 48-3 at 4–5. It
also provided non-billable support, including oversight activities, dedicated personnel who
regularly met with DeCA as points of contact, filling staffing requirements, invoicing, travel
requests, and other administrative functions. ECF No. 48 at 3–4. Of the almost $27 million earned
on the Incumbent Contract, TMR’s revenue amounted to about $2 million. AR 2542; ECF No. 48
at 4.
In its quote for the task order at issue here, TMR listed the Incumbent Contract as one of
three examples of its past experience. AR 2049. While TMR disclosed that it was the managing
partner of AAST (the incumbent) and “work[ed] closely with 22nd Century and [. . .]” on the
Incumbent Contract, it represented that it “managed [the] contract” and did not disclose that 22nd
Century served as the lead, nor did it provide information on the breakdown of the work among
the entities working on the contract. Id. TMR generally described the work of all entities working
on the Incumbent Contract as being completed by “AAST/TMR,” the “Team,” or “AAST/TMR’s
Team.”2 See, e.g., id.
As it happens, 22nd Century is also a member of AccelGov, which is an unpopulated joint
venture between 22nd Century, Agovx, and [. . .]. AR 931–32. Accordingly, AccelGov also listed
2
TMR used similar descriptions in its second past experience example, which related to a
contract between AAST and the Naval Air Warfare Center Aircraft Division (“NAWCAD”). AR
2053. Like the Incumbent Contract, there was a similar arrangement and breakdown of work
between TMR and 22nd Century. ECF No. 48 at 4–7. 22nd Century served as the “lead” on the
NAWCAD contract, providing most of the personnel and billable work. ECF No. 26-1 at 3; ECF
No. 48 at 6. Of the over $33 million earned on the NAWCAD Contract, TMR’s revenue amounted
to about $1 million. AR 2053; ECF No. 48 at 6.
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the Incumbent Contract as past experience in its quote. AR 934. It similarly referred to the work
on the contract as provided by AccelGov’s “team,” see, e.g., id., acting through 22nd Century and
[. . .] (as subcontractor), AR 931.
D. Procedural History
On October 3, 2022, AccelGov filed its bid protest in this Court. See Pl.’s Compl., ECF
No. 1. On November 7, 2022, it filed its Amended Complaint and a Motion for Judgment on the
Administrative Record. Am. Compl., ECF No. 26; Pl.’s Mot. for J. on AR, ECF No. 27. AccelGov
alleges that: (1) GSA conducted an arbitrary and irrational evaluation under Factor 1; (2) GSA
evaluated offers unequally under Factor 1; (3) GSA conducted an arbitrary and irrational
evaluation under Factor 2; (4) TMR made material misrepresentations in its quote; and (5) GSA
made an arbitrary and irrational best value determination. ECF No. 26 ¶¶ 47, 76, 86, 90, 96, 112,
115. AccelGov asks the Court to permanently enjoin performance of the task order under the
current award, disqualify TMR from consideration on account of its material misrepresentations,
and require GSA to perform a new evaluation in accordance with the RFQ. Id. at 35 (“Prayer for
Relief”). AccelGov subsequently abandoned its challenge to GSA’s Factor 2 evaluation. Pl.’s
Reply & Resp. to Cross-Mots. at 34, ECF No. 40.
On November 30, 2022, the Government and TMR filed Cross-Motions for Judgment on
the Administrative Record. ECF No. 36; Def.-Intervenor’s Cross-Mot. for J. on AR, ECF No. 32.
The Government and TMR argue that GSA reasonably and equally evaluated AccelGov’s and
TMR’s quotes, made a rational decision to award the task order to TMR based on its best value
determination, and that TMR made no material misrepresentations in its quote. See generally ECF
No. 36; ECF No. 32. Additionally, the Government argues that—even if TMR did make material
misrepresentations—AccelGov was not prejudiced because it cannot show that its “Marginal”
Factor 1 rating was arbitrary and capricious and thus that it was improperly excluded from further
9
consideration. ECF No. 36 at 58–59. As such, AccelGov does not have standing to raise its
material misrepresentation claim. Id.
In addition to dispositive motions, AccelGov and the Government each filed motions
seeking to supplement the Administrative Record. AccelGov moved for permission to serve four
interrogatories related to TMR’s alleged material misrepresentations. Pl.’s Mot. to Conduct Disc.
and Suppl. AR at 3, ECF No. 28. AccelGov argued that, because the evidence necessary to
establish TMR’s material misrepresentations could be found only outside of the Administrative
Record, it was entitled to limited discovery and supplementation. Id. at 1–2. The Government
and TMR opposed the motion, disputing that the statements AccelGov identified in TMR’s quote
could support a material misrepresentation claim and arguing that discovery would not assist the
Court in its review. Def.’s Resp. to Pl.’s Mot. to Conduct Disc. & Suppl. AR, ECF No. 34; Def.-
Intervenor’s Resp. to Pl.’s Mot. to Conduct Disc. & Suppl. AR, ECF No. 33.
On December 14, 2022, the Court granted AccelGov’s motion, concluding that it had made
a plausible, non-speculative misrepresentation claim that warranted review of extra-record
evidence. Order Granting Pl.’s Mot. to Conduct Disc. at 5, ECF No. 39 at 7. Noting the early
stage of the case and reserving all merits-related questions for a later date, the Court ordered TMR
to respond to AccelGov’s four interrogatories seeking facts about TMR’s involvement in the
incumbent and NAWCAD contracts. Id. The Court also supplemented the Administrative Record
with four documents AccelGov submitted related to TMR’s work on these prior contracts. Id. On
December 28, 2022, TMR filed its responses to AccelGov’s interrogatories. ECF No. 48.
The Government also filed a Motion to Supplement the Administrative Record, which
seeks to include materials related to the Incumbent Contract. Def.’s Mot. to Suppl. AR, ECF No.
35. Although it claims that the award decision is “self-evidently rational on the basis of the
administrative record,” the Government argues that the Court cannot fully evaluate AccelGov’s
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arguments, which rely heavily on its work under the Incumbent Contract, without materials
necessary to understand the differences between it and the task order at issue. Id. at 1 AccelGov
opposes the motion, arguing supplementation is not necessary for effective judicial review. ECF
No. 41. AccelGov “readily acknowledge[s] that there are differences between the incumbent
contract and the current one” and argues that extra-record evidence is not necessary to resolve an
undisputed issue. Id. The Government’s motion is currently pending and ripe for decision.
II. LEGAL STANDARDS
A. 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
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.
B. 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
11
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)).
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.”
12
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)).
C. Standing in a Bid Protest
The Court has jurisdiction to hear a bid protest only if the protestor has the requisite
standing. Weeks Marine, Inc. v. United States, 575 F.3d 1352, 1359 (Fed. Cir. 2009) (citing 28
U.S.C. § 1491(b)(1)). To demonstrate standing, the plaintiff is required to establish that it is an
interested party, meaning it “is an actual or prospective bidder[ ] and . . . possesses the requisite
direct economic interest.” Rex Serv. Corp. v. United States, 448 F.3d 1305, 1307 (Fed. Cir. 2006).
To show a “direct economic interest,” the plaintiff must show that it was prejudiced by the
Government’s alleged errors by proving it had a “substantial chance” of receiving the contract.
Myers Investigative and Sec. Servs., Inc. v. United States, 275 F.3d 1366, 1370 (Fed. Cir. 2002).
Stated another way, a plaintiff has standing to pursue a bid protest if it demonstrates that “but for
the error[s]” challenged in the protest it “would have had a substantial chance of securing” the
contract at issue. Labatt Food Serv., Inc. v. United States, 577 F.3d 1375, 1378 (Fed. Cir. 2009);
see Alfa Laval, 175 F.3d at 1367.
D. Supplementation of the Administrative Record
It is well settled that in a bid protest case “the focal point for judicial review should be the
administrative record already in existence, not some new record made initially in the reviewing
court.” Axiom Res. Mgmt., Inc. v. United States, 564 F.3d 1374, 1379 (Fed. Cir. 2009) (quoting
Camp, 411 U.S. at 142). Therefore, “the parties’ ability to supplement the administrative record
is limited.” Id. Indeed, according to Federal Circuit precedent, courts should allow
supplementation in record review cases only when “the omission of extra-record evidence
precludes effective judicial review.” Id. at 1380 (quoting Murakami v. United States, 46 Fed. Cl.
731, 735 (2000), aff’d, 398 F.3d 1342 (Fed. Cir. 2005)). Supplementation or discovery is not
13
permissible “merely because the proponent of such measures believes that it will ‘improve the
court’s “understanding” of a case.’” Connected Glob. Sols., LLC v. United States, 159 Fed. Cl.
801, 805 (2022) (quoting NEQ, LLC v. United States, 86 Fed. Cl. 592, 593 (2009)).
III. DISCUSSION
A. AccelGov Has Standing to Bring This Bid Protest.
The parties do not dispute that AccelGov has standing to pursue its Factor 1 evaluation
claim. Tr. of Oral Arg. (“Tr.”) at 85:11–18; 104:24–105:2, ECF No. 51. Instead, the Government
argues that AccelGov does not have standing to bring its material misrepresentation claim. ECF
No. 36 at 58–59.3 It contends that, even if TMR were disqualified from receiving the task order
because of any material misrepresentations, AccelGov would not have a substantial chance of
receiving the award. ECF No. 36 at 58. That is because, according to the Government, AccelGov’s
“Marginal” Factor 1 rating was rational and, as required by the RFQ, took AccelGov out of the
zone of consideration. Id. Thus, the Government argues AccelGov cannot demonstrate prejudice
and accordingly lacks standing to challenge the procurement on that ground. Id. at 58–59.
Whether a protestor has standing in a bid protest is a threshold inquiry that must be
addressed before reaching the merits of the claims. Info. Tech. & Applications Corp. v. United
States, 316 F.3d 1312, 1319 (Fed. Cir. 2003); see Warth v. Seldin, 422 U.S. 490, 517–18 (1975).
Even in the context of dispositive motions, the standing analysis requires the Court to accept the
protestor’s well-pleaded allegations of error in the procurement process to be true. See, e.g., Info.
Tech., 316 F.3d at 1319 (finding the protestor had standing assuming it succeeded on all its protest
grounds); Am. Relocation Connections, LLC v. United States, 789 F. App’x 221, 227–28 (Fed. Cir.
3
Although the Government argued in its briefing that AccelGov lacked standing to bring
any of its claims, see ECF No. 36 at 17–19, it clarified its position at oral argument and contended
that AccelGov only lacked standing to bring claims beyond those attacking its “Marginal” Factor
1 rating. See Tr. at 54:22–55:5.
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2019). Although typically “standing is not dispensed in gross” and “a plaintiff must demonstrate
standing for each claim he seeks to press,” Davis v. Federal Election Comm’n, 554 U.S. 724, 734,
(2008), the Government has not cited any cases requiring that a protestor show that each allegation
of procurement error in a bid protest was on its own prejudicial. Indeed, in protests, courts appear
to evaluate the allegations of error as a whole when determining whether the protestor has satisfied
the standing requirement. See Beta Analytics Int’l, Inc. v. United States, 67 Fed. Cl. 384, 396
(2005) (analyzing standing based on the protestor’s “various challenges” to the procuring agency’s
evaluation and ratings); see Linc Gov’t Servs., LLC v. United States, 96 Fed. Cl. 672, 696 (2010),
abrogated on other grounds by Safeguard Base Operations, LLC v. United States, 989 F.3d 1326(Fed. Cir. 2021) (standing inquiry looks at “the combined impact of all agency decisions alleged
to be unlawful” (emphasis in original)).
Accordingly, the Court will not conduct a bifurcated, piecemeal standing analysis, as the
Government suggests. Rather, the Court finds that AccelGov has shown it would have had a
substantial chance of receiving the task order but for all alleged agency errors. Taking as true that
GSA irrationally assigned AccelGov each of its weaknesses and unreasonably failed to credit
AccelGov with the numerous strengths that other offerors received, the CO could have rated
AccelGov as at least “Acceptable” under Factor 1. AR 541 (“Acceptable” requires that the quote’s
“weaknesses do not outweigh strengths”). Assuming that TMR’s quote included material
misrepresentations, as AccelGov argues, TMR should have been excluded from consideration. In
those circumstances, AccelGov would have been considered in the CO’s comparative analysis
alongside [. . .] and [. . .]. AR 2678; see AR 538. With only two other offerors in the zone of
consideration, one of which had lower Factor 2 and 3 ratings and both of which had substantially
higher price quotes, AccelGov would have had a “substantial chance” of receiving the task order.
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Myers Investigative & Sec. Servs., 275 F.3d at 1370; see AR 2665, 2677. Accordingly, AccelGov
has demonstrated that is has standing to pursue this bid protest.
B. With One Exception, AccelGov Fails to Show that the CO Irrationally Assigned
Weaknesses to AccelGov Under the Factor 1 Evaluation.
AccelGov argues that GSA’s evaluation of its quote was arbitrary and capricious because
the CO irrationally found four weaknesses in AccelGov’s Factor 1 proposal.4 ECF No. 27 at 19–
20, 22–26. The Government and TMR disagree. ECF No. 36 at 11; ECF No. 32 at 8. The Court
addresses each weakness in turn.
1. The CO Rationally Assigned AccelGov a Weakness for Failing to Address All
Aspects of the PWS.
The CO concluded that AccelGov’s quote “did not address all aspects of the PWS, only
parroting the PWS without clearly articulating their approach or how they will accomplish the
PWS requirements.” AR 2571. AccelGov argues this weakness was irrational as AccelGov
followed the format of the RFQ in its quote to describe its experience under each task and how it
would address each requirement. ECF No. 27 at 19. The Government and TMR argue that the
CO’s assignment of this weakness was rational as AccelGov ignored certain requirements and
simply repeated the RFQ for other requirements without describing its methods for achieving the
objectives. ECF No. 36 at 20–22; ECF No. 32 at 10–11. In its Reply, AccelGov additionally
argues that the CO inadequately documented the basis for the weakness and that TMR’s quote
4
In its opening brief, AccelGov challenged each of the eight weaknesses identified by the
TEB in its Factor 1 evaluation. ECF No. 27 at 19–26. In its Reply, AccelGov accepted the
Government’s argument that only the four weaknesses adopted by the CO could be arguably
prejudicial to AccelGov, as those were the weaknesses that formed the basis of the CO’s award
decision. ECF No. 36 at 18–19 (citing WellPoint Mil. Care, 953 F.3d at 1373); ECF No. 40 at 11.
Since both parties agree on this point, the Court need not address the weaknesses that the CO did
not adopt from the TEB report.
16
suffered from the same deficiencies (even though it did not similarly receive this weakness). ECF
No. 40 at 15–16.
Based on a review of AccelGov’s quote, the CO was correct that AccelGov merely copied
and pasted certain PWS requirements without explaining how it would meet the objectives. As
one of numerous examples, PWS Task 1, Subtask 1.1(b) required the contractor to “[p]rovide
technical and functional activities required for full integration of all physical server, virtual server,
and SAN environments.” AR 579. AccelGov addressed this task by merely stating it would
manage “technical and functional activities required for full integration of all physical server,
virtual server, and SAN environments.” AR 950. This was insufficient under the RFQ, which
specifically advised that Factor 1 would consider each offeror’s “technical approach” to evaluate
whether it “understands the specific requirements of the PWS.” AR 538; see AR 539 (explaining
that offerors would also be evaluated on “the adequacy of the proposed solution/approach” and the
“completeness of their technical solutions”). The RFQ made clear that offerors could not simply
state they were willing to perform the PWS requirement; they were required to “show they are
capable of performing the work described in the PWS.” AR 534. It was not irrational for the CO
to conclude that such copy-and-paste responses by AccelGov did not demonstrate an adequate
technical approach or provide assurance that it understood the PWS requirements.
AccelGov also failed to address certain tasks altogether. To name a few examples, PWS
Task 5, Subtask 5.1(k) required the contractor to “[m]anage the Asset Manager linkages between
agency assets to include software licenses, leases, warranty, and support contracts.” AR 598. An
explanation of how AccelGov would achieve this task was absent from the section of AccleGov’s
quote related to Task 5, Subtask 5.1. AR 961–62. PWS Task 2, Subtask 2.2(d) required the
contractor to “[m]aintain the agency’s secure gateway appliances and/or applications.” AR 586.
AccelGov failed to address this task in the section of its quote related to Task 2, Subtask 2.2. AR
17
954–55. It was not irrational for the CO to conclude that failures such as these to address certain
PWS tasks did not provide assurance that AccelGov understood the PWS requirements or provided
an adequate and complete solution to these objectives.
AccelGov’s arguments in response are unpersuasive. It argues that it followed the same
“formula” used in the PWS to organize its descriptions of how it would perform each PWS task.
ECF No. 27 at 19. Following a similar organizational structure as the PWS, however, is not
sufficient to demonstrate AccelGov’s understanding of the PWS tasks, nor does it suffice to correct
the inadequacies recognized by the CO. AccelGov likewise points to other areas of its quote where
it allegedly addressed two PWS requirements that were missing from the sections specifically
related to the requirement. But courts have frequently recognized that a procuring agency is not
expected to hunt for potentially responsive information that is not included or not adequately
presented in the relevant section of an offeror’s proposal. See, e.g., ST Net, Inc. v. United States,
112 Fed. Cl. 99, 110 (2013).
Moreover, AccelGov’s improper documentation and unequal evaluation arguments
regarding this weakness were raised for the first time in its Reply. Arguments not raised in an
opening brief are waived. SmithKline Beecham Corp. v. Apotex Corp., 439 F.3d 1312, 1319 (Fed.
Cir. 2006). This includes arguments raised in a combined response and reply brief, if the
arguments are not in response to arguments raised in the cross-motion. See Newimar S.A. v. United
States, 160 Fed. Cl. 97, 124 (2022); Chenega Mgmt., LLC. v. United States, 96 Fed. Cl. 556, 572
n.25 (2010). AccelGov’s newly raised arguments could have been raised in its opening brief and
go beyond merely responding to arguments in the Government’s or Intervenor’s Cross-Motions.
Accordingly, the Court will not now consider them.
18
2. The CO’s Finding that AccelGov Failed to Provide a Complete Phase-In Plan was
Irrational.
The CO found that AccelGov “did not provide a complete Phase-In Plan as they simply
stated that they will utilize incumbent personnel to perform all tasks identified.” AR 2571. In the
CO’s estimation, AccelGov “failed to realize that the Field Service Plan and Cyber security are
not presently included in the current contract, and therefore these tasks do not have ‘incumbent’
personnel.” Id. AccelGov argues that the CO’s stated bases are demonstrably wrong because
AccelGov’s quote addressed the field service plan and cyber security tasks and explained that it
would hire personnel to fill new positions not required under the Incumbent Contract. ECF No.
27 at 22–23. The Government and TMR respond that AccelGov’s quote did not sufficiently detail
its approach to the new tasks and to new hiring so as to instill confidence in its Phase-In Plan. ECF
No. 36 at 27–29; ECF No. 32 at 15–16.
On this point, AccelGov is correct. AccelGov included deliverables for the field service
plan and cyber security (Tasks 4 and 7) in its Work Breakdown Structure, AR 969; it dedicated a
section of its proposal to describing how it would address field service support, AR 973; and it
listed personnel who were able to perform the cyber security task, id. Accordingly, it was irrational
for the CO to conclude that AccelGov “failed to realize” these tasks were unique to the new task
order. 5 AR 2571.
AccelGov also demonstrated its awareness of the need for new personnel and advised that
it would hire employees to fill new tasks. Specifically, AccelGov stated in its quote that, “[. . .].”
AR 970. It also stated, “[. . .].” AR 968. Moreover, AccelGov’s staffing plan included the same
5
AccelGov also argues that it should not have received this weakness because its Work
Breakdown Structure included the same deliverables as TMR’s, but TMR did not receive a
corresponding weakness. ECF No. 27 at 32. Because the Court concludes that this weakness lacks
a rational basis, it need not also decide whether GSA treated AccelGov and TMR unequally.
19
number of personnel as TMR’s plan with respect to field service support and cyber security (Tasks
4 and 7). Compare AR 971, with AR 2087. Therefore, it was irrational for the CO to conclude
that AccelGov intended to use only incumbent personnel to perform the task order. AR 2571.
The Government and TMR argue that even though AccelGov may have mentioned the new
tasks and the need for new personnel, its descriptions of how it would achieve those tasks and hire
new employees were vague and undetailed. ECF No. 36 at 26–29; ECF No. 32 at 14–16. Thus,
they argue, it was not irrational for the CO to ascribe AccelGov a weakness for failing to properly
address these requirements. ECF No. 36 at 27–29; ECF No. 32 at 15–16. But that was not the
basis for the weakness as provided in the award decision. Rather, the CO gave AccelGov this
weakness because he believed AccelGov “failed to realize” the need to address new tasks and hire
new personnel. AR 2571. That reasoning finds no support in the record. Thus, the CO’s
assignment of this weakness lacked a rational basis.
3. The CO Rationally Assigned AccelGov a Weakness for Failing to Have Properly
Certified Key Personnel.
The CO concluded that AccelGov’s “Key Personnel plan did not fully meet the
Government’s need of having certified personnel available to perform on Day 1 of the period of
performance.” AR 2571. In its Reply, AccelGov accepted the Government’s methodology under
Attachment 9 of the RFQ for determining personnel certification requirements and conceded that,
under that methodology, certain AccelGov key personnel did not have the required certifications.
ECF No. 40 at 22; see ECF No. 36 at 34–35.
AccelGov now argues that, even if AccelGov’s personnel were not properly certified,
TMR’s quote suffered from the same defect; thus, this weakness was arbitrary and irrational
because the CO treated AccelGov’s and TMR’s quotes unequally. ECF No. 40 at 23. Even
assuming AccelGov’s argument was not waived for being raised initially on reply, see SmithKline
20
Beecham Corp., 439 F.3d at 1319, it would fail nevertheless. The TEB originally assigned TMR
a weakness to its Proposed Project Management Structure/Staffing Plan for failing to list all the
necessary personnel certifications under Attachment 9. AR 2426. The RFQ, however, permitted
GSA to communicate with TMR (as the apparent successful offeror) to address any concerns with
its quote. AR 542. Before the CO conducted his comparative analysis, GSA reached out to TMR
to get clarification regarding certifications, and TMR confirmed to GSA’s satisfaction that its
personnel would comply with the Attachment 9 requirements. AR 2503–10. Accordingly, the CO
concluded that TMR had resolved this weakness. AR 2650, 2664.
Especially in light of AccelGov’s acknowledgement that not all its personnel had the
required certifications under the controlling version of Attachment 9, the CO did not act
irrationally in assigning AccelGov a weakness for its key personnel proposal.
4. The CO Rationally Assigned AccelGov a Weakness for Failing to Adequately
Address the Required Field Service Requirements.
The CO found that AccelGov’s “Field services approach did not fully capture [certain]
field service requirements outline[d] in the PWS.” AR 2571 (citing tasks C.5.1, C.5.2, and C.5.4).
He also concluded that AccelGov’s approach “did not adequately demonstrate there will be a
dedicated traveling team . . . to provide Field Services On-Site support for Tasks C.5.4.3 (a)
through (b).” Id. (noting AccelGov’s approach of deploying the field service team for [. . .] and to
respond to [. . .]). AccelGov argues that the CO’s determination was irrational because (1)
AccelGov’s field services proposal did not limit on-site support only to these two circumstances,
and (2) nothing in the RFQ or Q&As foreclosed the need for on-site support following [. . .]. ECF
No. 27 at 26. The Government and TMR argue that AccelGov misconstrues the basis of this
weakness, which was that AccelGov failed to describe an approach for meeting the new field
service requirements that were not found in the Incumbent Contract. ECF No. 36 at 37 (explaining
21
that C.5.4.3(a) and (b) are new to the solicitation and not included in the prior contract); ECF No.
32 at 21.
The Government and TMR are correct that AccelGov did not receive this weakness simply
because it proposed field service support to respond to [. . .] and [. . .]. Although the CO’s
explanation may have emphasized these two phrases from AccelGov’s proposal, the CO’s broader
concern was AccelGov’s failure to address the full breadth of the field service requirements. AR
2571. The CO specifically pointed to PWS Task 4, Subtasks 4.3(a) and 4.3(b), which required
“on-site service desk support,” “OS/application/equipment support, . . . support for Lifecycle
replacements, software upgrades, equipment inventories, resolving any unfinished incidents/work
orders, warranty support and conducting quality assurance/customer surveys”—tasks largely
unaddressed in AccelGov’s quote. Compare AR 595, with AR 973. Aside from stating an
incomplete list of the on-site support that would be required, AccelGov’s approach referred only
to the work “Field Support provides” to respond to [. . .], presumably using the present tense to
refer to work on the Incumbent Contract. AR 973. Field service support through dedicated field
service personnel was, however, a new requirement. AR 629 (Q&As 69, 73). Accordingly, it was
not irrational for the CO to assign a weakness to AccelGov for failing to adequately address its
approach for meeting all the PWS field service support requirements.6
C. With One Exception, AccelGov Fails to Show That GSA Treated It Unequally
Regarding Certain Strengths Assigned to Other Offerors.
AccelGov also argues that the CO evaluated its quote unequally compared to other offerors.
ECF No. 27 at 27–32. Specifically, AccelGov argues that it should have received several strengths
6
In its Reply, AccelGov additionally argues that TMR proposed a smaller field service
support team than AccelGov but did not receive a weakness from the CO; thus, neither offeror
should have received a weakness. ECF No. 40 at 23–24. Even if this belated argument was not
waived, see SmithKline Beecham Corp., 439 F.3d at 1319, it is unpersuasive since the basis of
AccelGov’s weakness was unrelated to the size of its proposed team.
22
that other offerors received because AccelGov proposed the same or similar approaches under
Factor 1. Id. at 27–31. It likewise argues that it should not have received certain weaknesses
because TMR’s quote suffered from the same alleged deficiencies but did not receive such
weaknesses. Id. at 31–32.
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). The same “substantially indistinguishable” or “nearly identical” standard applies when a
protestor alleges an agency unequally assessed strengths and weaknesses in offerors’ proposals.
Ascendant Servs., LLC v. United States, 160 Fed. Cl. 275, 290–91 (2022). A protestor also may
prevail by showing the agency inconsistently applied objective solicitation requirements to 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 (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 1372.
With one exception, AccelGov fails to make the necessary showing because the aspects of
the proposals identified in its quote are not substantively identical to those contained in TMR’s
and other offerors’ quotes.
23
1. TMR’s and AccelGov’s Proposed Test Environments Are Not Substantively
Indistinguishable.
The TEB gave TMR a strength for its proposed “test environment . . . maintained for [. .
.].” AR 2522. AccelGov argues it should have received this strength because it also proposed a
test environment. ECF No. 27 at 27–28 (quoting AR 956). AccelGov’s proposed test environment
is not substantively indistinguishable from TMR’s. TMR stated its test environment would be
“maintained for [. . .].” AR 2071. TMR included this explanation in the section of its quote
addressing Task 4—Enterprise Service Desk Support, AR 2071, which “includes all support,
maintenance and security compliance of the hardware and software within the desktop common
operating environment,” AR 591. The TEB concluded that the use of TMR’s test environment in
response to Task 4 gave it “high confidence” TMR would “introduce new software/applications
into DeCA’s computing environment without causing any disruptions to operations.” AR 2522.
While AccelGov also proposed a test environment, its environment was in response to Task
3—Database Management Support, not Task 4, and would involve “[. . .],” not [. . .]. AR 956.
AccelGov’s test environment was thus proposed in response to a different task than TMR’s and
involved upgrades of different technology. Accordingly, AccelGov and TMR’s test environments
are not substantively indistinguishable, and GSA did not unequally evaluate their quotes in this
respect.
2. TMR’s and AccelGov’s Proposed Hotlines Are Not Substantively
Indistinguishable.
The TEB awarded TMR a strength for its proposed “SD [Service Desk] Hot Line” that
would allow TMR to “respond[] promptly to CG [Command Group] needs.” AR 2522. In the
TEB’s assessment, TMR’s hotline “reduces the risk . . . of having significant delays in providing
direct support to DeCA’s executive leadership and designated personnel.” Id. AccelGov argues
it should have received this strength because it also proposed a [. . .] hotline as part of its VIP
24
support approach. ECF No. 27 at 28 (citing AR 959). AccelGov’s hotline, however, would [. . .],
AR 959, whereas TMR’s hotline would [. . .], AR 2071. It was not unreasonable for the TEB to
conclude that a [. . .] would have a higher probability of reducing delays in providing VIP support.
Office Design Grp., 951 F.3d at 1372. TMR’s and AccelGov’s proposed hotlines are therefore not
substantively indistinguishable, and GSA did not unequally evaluate their quotes by failing to
assign AccelGov a strength in this respect.
3. AccelGov’s Proposal to Have Key Personnel Ready to Perform on Day 1 Is Not
Substantively Indistinguishable from TMR’s and [. . .]’s Proposals to Do the Same.
The TEB credited both TMR and [. . .] with a strength for demonstrating the ability to have
key personnel available on Day 1 of contract performance. AR 2349, 2523. The TEB explained
that it assigned this strength to TMR because TMR stated in its quote that “[a]ll Phase-In Personnel
will be onsite at DeCA Headquarters the first day after Award.” AR 2523. This gave the TEB
“high confidence in [TMR’s] ability to seamlessly transition operations.” Id. It explained that it
assigned the strength to [. . .] because, as part of its detailed Phase-In Plan, [. . .] “demonstrated
the ability to have key personnel available on day 1.” AR 2349. AccelGov argues it should have
received this strength because its quote stated that all incumbent employees would be transitioned
on Day 1 and that AccelGov’s key personnel would likewise be ready to start on Day 1. ECF No.
27 at 28 (citing AR 970, 973).
Although all three offerors stated that key personnel would be available on Day 1, their
key personnel proposals themselves were not substantively indistinguishable. Unlike TMR and [.
. .], both of which received strengths for their key personnel plans, AccelGov received weaknesses
for failing to demonstrate that AccelGov’s key personnel had the necessary security clearance
status and met the RFQ’s certification requirements. Compare AR 2350, 2525, with AR 2278.
The CO likewise noted a weakness in AccelGov’s proposed key personnel. AR 2571. It was,
25
therefore, not irrational for the CO to withhold a strength from AccelGov in this respect where he
had determined (rationally so) that AccelGov’s quote “did not fully meet the Government’s need
of having certified personnel available to perform on Day 1.” Id. (emphasis added); see supra §
III.B.3. And in the same vein, the agency did not treat TMR and [. . .] more favorably by giving
them a strength where their key personnel plan did not suffer from the same weakness.7 AR 2350,
2524–25.
AccelGov argues that this reasoning was not expressly set forth in the TEB report or the
CO’s decision, and “[t]he Agency cannot rely on unwritten reasons for its analysis.” ECF No. 40
at 26 (citing AshBritt, Inc. v. United States, 87 Fed. Cl. 344, 370, op. clarified, 87 Fed. Cl. 654(2009)). First, both the TEB and CO explained that a weakness was assigned to AccelGov for
proposing key personnel who lacked the required certifications to perform under the task order.
AR 2278, 2571. And the CO specifically explained that such weakness made him conclude that
AccelGov would not have “certified [key] personnel” available on Day 1. AR 2571. The agency’s
decisional path is thus readily discernible. Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm
Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). Second, AccelGov has not pointed to any requirement
in the RFQ (or other source of authority) that required the CO to explain in writing why a quote
did not receive a certain strength that another offeror’s quote did. It would be inappropriate for
the Court to penalize the CO for, in essence, failing to prove a negative in his award decision,
especially where he was not under any obligation to do so.
7
As explained above, the CO found that TMR had sufficiently resolved any concerns
about personnel certifications. AR 2650, 2664.
26
4. TMR’s, [. . .]’s, and AccelGov’s Integrated Master Schedules Are Not
Substantively Indistinguishable.
The TEB ascribed TMR a strength for providing a “very thorough/detailed Integrated
Master Schedule providing the government with all Phase-In activities in advance which sets
expectations throughout the 30-day Phase-In period.” AR 2523. The TEB likewise gave [. . .] a
strength for providing a “comprehensive Phase-In Integrated Master Schedule detailing activities
to be completed with their respective timelines.” AR 2349. AccelGov argues it should have
received the same strength because it also proposed a detailed integrated master schedule. ECF
No. 27 at 28–29 (citing AR 969). As the Government correctly notes, however, TMR’s schedule
proposed [. . .], which AccelGov’s did not, and it explained [. . .]. Compare AR 2081, with AR
969; see ECF No. 36 at 44–45. [. . .]’s schedule also included [. . .] that AccelGov’s did not.
Compare AR 1419–20, with AR 969; see ECF No. 36 at 51. Thus, TMR’s, [. . .]’s, and AccelGov’s
integrated master schedules are not substantively indistinguishable, and GSA did not unequally
evaluate their quotes by failing to assign AccelGov a strength in this respect.
5. TMR’s and AccelGov’s Communication Strategies are Not Substantively
Indistinguishable.
The TEB awarded TMR a strength because “TMR’s PM [Program Manager], Project
Manager, and TLs [Task Leads] will communicate in an open environment (i.e., transparency)
through e-mails, in-person, meetings, and calls.” AR 2524, see AR 2085. According to the TEB,
this gave “the government high confidence in [TMR’s] ability to provide consistent
communication throughout the tenure of the contract.” AR 2524. AccelGov argues it should have
received the same strength because it also proposed to communicate “in an open environment with
e-mails and calls.” ECF No. 27 at 29 (quoting AR 970). The descriptions of AccelGov’s and
TMR’s management communication strategies are admittedly similar in some respects. TMR,
however, provided more detail about who would participate in communication activities and
27
proposed additional communication methods. For example, while AccelGov referred generally to
“Team AccelGov,” AR 970, TMR specified that its Program Manager, Project Manager, and Task
Leads would all maintain open communication, AR 2085. TMR also proposed [. . .], in addition
to the [. . .] that both TMR and AccelGov proposed. Id.; AR 970. That those details increased the
TEB’s confidence in TMR’s ability to communicate was a judgment call that was well within its
discretion and not unreasonable. Office Design Grp., 951 F.3d at 1372. Accordingly, TMR’s and
AccelGov’s communication strategies are not substantively indistinguishable, and GSA did not
unequally evaluate their quotes by failing to assign AccelGov a strength in this respect.
6. TMR’s and AccelGov’s Staffing Charts Are Not Substantively Indistinguishable.
The TEB ascribed TMR a strength because its “Notional Team Management Structure
Organization Staffing Chart outlines a detailed Staffing Plan for all major areas required by the
PWS.” AR 2524. This gave the TEB confidence that TMR “has a firm understanding of DeCA’s
requirements” and the “ability to interpret DeCA’s needs and implement staffing/personnel
accordingly.” Id. AccelGov argues it should have received the same strength because it also
included a detailed staffing chart in its proposal. ECF No. 27 at 29–30 (citing AR 971). Unlike
AccelGov’s chart, however, TMR [. . .], it provided details as to [. . .], and it demonstrated [. . .].”
Compare AR 2087, with AR 971. Accordingly, TMR’s and AccelGov’s staffing charts are not
substantively indistinguishable, and GSA did not unequally evaluate their quotes by failing to
assign AccelGov a strength in this respect.
7. TMR’s and AccelGov’s Key Personnel Proposals Are Not Substantively
Indistinguishable.
The TEB gave TMR a strength because it believed “TMR’s proposed key personnel have
current security certifications, and successful background checks and are prepared to support this
contract from day one.” AR 2525. In the TEB’s opinion, this lowered the risk of TMR “not having
28
qualified personnel available to perform the requirements” of the RFQ. Id. AccelGov argues that
because its quote represented that “[a]ll of our proposal Key Personnel have satisfactory IT
sensitivity background investigation[s] and [are] ready to start from day 1,” it should have received
the same strength. ECF No. 27 at 30 (quoting AR 973); see ECF No. 40 at 31 (quoting AR 972)
(stating that AccelGov would use “cleared” incumbent personnel). TMR, however, revealed
through its key personnel’s resumes that each individual had secret level security clearance, which
was an RFQ requirement. AR 2094–2119; see AR 621–22. The resumes of AccelGov’s key
personnel did not indicate whether they had security clearances and, if so, at what level. AR 974–
1004. Moreover, simply stating that the key personnel had satisfactory background investigations
was not sufficient, as such is not equivalent to obtaining a security clearance. Because TMR’s
quote assured GSA through its key personnel resumes that its personnel had the required security
clearance, while AccelGov’s did not, TMR’s and AccelGov’s key personnel proposals are not
substantively indistinguishable. Thus, GSA did not unequally evaluate their quotes by failing to
assign AccelGov a strength in this respect.
8. [. . .]’s and AccelGov’s Proposals to Assume Full Responsibility for PWS Tasks
by Day 30 Are Substantively Indistinguishable.
The TEB credited [. . .] with a strength because “Team [. . .] assumes full responsibility for
the PWS tasks by the 30th day of the Period of Performance.” AR 2349. AccelGov argues it
should have received the same strength because, consistent with the RFQ’s requirement, AccelGov
proposed to conduct a transition readiness review where it would “provide a final check before
assuming full contract responsibility” on Day 30. ECF No. 27 at 30 (quoting AR 969). The
Government points to no substantive difference between these proposals and instead argues that
AccelGov does not have standing to bring this unequal treatment claim. ECF No. 36 at 50. As
29
explained above, AccelGov has demonstrated standing to bring all claims raised in this protest.
See supra § III.A.
TMR argues that it was irrational for GSA to award any offeror, including [. . .], a strength
merely for meeting a RFQ requirement. ECF No. 32 at 27. While it is possible this strength would
hold little weight in the CO’s ultimate determination on account of it being a basic RFQ
requirement, that does not alter GSA’s responsibility to treat offerors equally. See Office Design
Grp., 951 F.3d at 1372. Thus, if [. . .] received this strength, so too should have AccelGov, so long
as [. . .]’s and AccelGov’s proposals were substantively indistinguishable. Id. As neither the
Government nor TMR points to any difference between [. . .]’s and AccelGov’s proposals to
assume full responsibility for the PWS tasks by Day 30, the Court concludes that GSA irrationally
failed to assign AccelGov a strength for its substantively indistinguishable proposal.
9. [. . .]’s and AccelGov’s Field Service Support Plans Are Not Substantively
Indistinguishable.
The TEB awarded [. . .] a strength because it believed [. . .] would “provide a dedicated
Field Service Team of [. . .] technicians to [. . .].” AR 2390. The TEB noted that [. . .]’s proposal
assured GSA that it “understands Field Services is an entirely separate mission that requires
experienced technicians who have the ability to travel to identified sites to perform” various tasks.
Id. AccelGov argues that since it also proposed a team of field support technicians, it should have
received the same strength. ECF No. 27 at 31 (citing AR 973). However, unlike AccelGov, [. .
.] specified that its technicians would be [. . .] technicians and stated its technicians would perform
additional tasks unmentioned by AccelGov, such as [. . .]. Compare AR 1759, with AR 973.
Accordingly, [. . .]’s and AccelGov’s field service support plans are not substantively
indistinguishable, and GSA did not unequally evaluate their quotes by failing to assign AccelGov
a strength in this respect.
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10. AccelGov Was Not Treated Unequally from TMR for Receiving a Weakness for
Its Cloud Migration Plan.
The TEB assigned AccelGov a weakness for failing to provide adequate detail regarding
its cloud migration plan. AR 2276. AccelGov notes that TMR’s quote did not address cloud
migration at all, but TMR did not receive a corresponding weakness from the TEB. ECF No. 27
at 31. There is no dispute, however, that the CO did not adopt this weakness in his award decision.
ECF No. 32 at 30; ECF No. 40 at 11; see AR 2571. Accordingly, this weakness did not prejudice
AccelGov and thus cannot form the basis of a disparate treatment claim. ECF No. 40 at 11; see
WellPoint Mil. Care, 953 F.3d at 1380.
D. AccelGov Cannot Demonstrate It Was Prejudiced by GSA’s Factor 1 Evaluation or
Any Material Misrepresentations.
To prevail in a bid protest, the protestor must establish “a significant, prejudicial error in
the procurement process” by demonstrating that but for the Government’s errors it would have had
a “substantial chance” of receiving the contract. Alfa Laval, 175 F.3d at 1367 (quoting Statistica,
102 F.3d at 1581–82). AccelGov has established that GSA erred by arbitrarily and capriciously
assigning it a weakness for its Phase-In Plan and failing to assign it a strength for assuming
responsibility for all PWS tasks by Day 30. If GSA had not made these errors, however, AccelGov
still would have received three weaknesses and only one strength under Factor 1. Thus, AccelGov
still would have received a “Marginal” Factor 1 rating and would not have been considered in the
CO’s comparative analysis. AR 541, 2678.
This would be so even if TMR were disqualified from receiving the task order on account
of the material misrepresentations alleged by AccelGov. As AccelGov concedes, had TMR been
disqualified, the CO would have selected [. . .] or [. . .] for the task order award, as they each earned
acceptable ratings or higher for the non-price factors. Tr. at 19:5–19:12; see also AR 2678.
Therefore, because AccelGov cannot demonstrate it would have been prejudiced by TMR’s
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alleged material misrepresentations, the Court need not examine the validity of this contention.
See Linc Gov’t Servs., 96 Fed. Cl. at 707 (holding that it was not necessary to address protestor’s
final alleged errors that could not collectively demonstrate prejudice).
Because AccelGov cannot show that—but for the two errors it demonstrated in GSA’s
evaluation—it would have had a substantial chance of receiving the task order, its protest must
fail.
E. No Injunctive Relief Is Warranted Because AccelGov 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 AccelGov 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,
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)).
F. Supplementation of the Administrative Record with Materials Related to the
Incumbent Contract Is Not Necessary for Effective Judicial Review.
In addition to moving for judgment on the administrative record, the Government moved
to supplement the Administrative Record with documents related to the Incumbent Contract, which
it claims are necessary for “full judicial review” of AccelGov’s arguments. ECF No. 35 at 2.
According to the Government, the materials demonstrate that the task order at issue substantively
differs from the Incumbent Contract in significant ways. Specifically, the RFQ included additional
tasks and subtasks, required more full-time employees, had an increased travel budget, and
contemplated substantially more on-site IT support. Id. at 3. The fact that the two task orders are
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not identical is, however, reflected in the Administrative Record. AR 2051, 2090, 2571; see AR
577. It also is undisputed. ECF No. 27 at 23; ECF No. 41 at 1. Delving into the intricacies of the
Incumbent Contract, as compared to the RFQ, is simply unnecessary to make the Government’s
point and for the Court to conduct meaningful judicial review of the CO’s award decision based
on the record that was before him. Nor will the Court risk having the extra-record materials
transform the arbitrary-and-capricious review applicable to this bid protest “into effectively de
novo review.” Parcel 49C Ltd. P’ship v. United States, 130 Fed. Cl. 109, 121 (2016) (quoting
Axiom, 564 F.3d at 1380) (internal quotation marks omitted). Accordingly, the Government’s
supplementation request is denied.
IV. CONCLUSION
For the reasons set forth above, the Court DENIES AccelGov’s Motion for Judgment on
the Administrative Record (ECF No. 27), GRANTS the Government’s Cross-Motion for
Judgment on the Administrative Record (ECF No. 36), GRANTS TMR’s Cross-Motion for
Judgment on the Administrative Record (ECF No. 32), and DENIES the Government’s Motion to
Supplement the Administrative Record (ECF No. 35). The Clerk is directed to enter judgment
accordingly.
This opinion and order will be unsealed in its entirety after February 10, 2023, unless the
parties submit by no later than February 8, 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: January 31, 2023 /s/ Kathryn C. Davis
KATHRYN C. DAVIS
Judge
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