Inspace 21 LLC v. United States ( 2016 )

In the United States Court of Federal Claims
No. 15-364C
(Filed under seal August 4, 2016)
(Reissued September 7, 2016)†
* * * * * * * * * * * * * * * * * *
*
*
INSPACE 21 LLC , * Post-award bid protest; U.S. Air Force
* launch and test ranges; laches; labor
* hour reductions; potential increased
Plaintiff, * workload; potential labor unrest;
* consideration of minority evaluation
v. * opinions; Technical Risk factor;
* cursory source selection decision; no
THE UNITED STATES, * material change in requirements;
* satisfactory explanation articulated;
Defendant, * solicitation provisions followed; SSA’s
* reliance on others’ analyses, 48 C.F.R.
and * § 15.308.
*
RANGE GENERATION NEXT *
LLC, *
*
*
Defendant-intervenor. *
*
*
* * * * * * * * * * * * * * * * * *
Marcia G. Madsen, Mayer Brown LLP, of Washington, D.C., with whom were
David F. Dowd, Cameron S. Hamrick, and Luke Levasseur, all of Washington, D.C.,
for plaintiff.
James P. Connor, Commercial Litigation Branch, Civil Division, Department
of Justice, with whom were Benjamin C. Mizer, Principal Deputy Assistant
† The parties were given the opportunity to request redactions, and only intervenor
did so. Most of the requests were found to be unwarranted. Order (Sept. 6, 2016).
The redacted information has been replaced in this manner: “[XXXX].” The opinion
is reissued for publication with several minor, non-substantive corrections.
Attorney General, Robert E. Kirschman, Jr., Director, and Franklin E. White, Jr.,
Assistant Director, all of Washington, D.C., for defendant.
Mark D. Colley, Arnold & Porter LLP, of Washington, D.C., for defendant-
intervenor. Kara L. Daniels, Lauren J. Schlanger, and Elizabeth T.M. Fitzpatrick,
all of Washington, D.C., of counsel.
OPINION AND ORDER
WOLSKI, Judge.
In this post-award bid protest, plaintiff InSpace 21 LLC (InSpace) challenges
the United States Department of the Air Force’s award of a Launch and Test Range
System Integrated Support Contract for Operations, Maintenance & Sustainment
(LISC OMS) to defendant-intervenor Range Generation Next (RGNext). Plaintiff
argues that the Air Force arbitrarily evaluated the level of risk posed by RGNext’s
technical proposal --- particularly in the Air Force’s treatment of minority opinions
of evaluation team members and its assessment of the labor approach and hours
proposed by RGNext. Plaintiff has moved for judgment on the administrative
record, requesting a permanent injunction and bid preparation and proposal costs.
The government and defendant-intervenor have both cross-moved for judgment on
the administrative record, arguing that the evaluation of RGNext’s proposal was
thoroughly and properly performed. For the reasons that follow, the cross-motions
of defendant and intervenor are GRANTED, and plaintiff ’s motion is DENIED.
I. BACKGROUND
A. The Solicitation
The Air Force issued Solicitation No. FA88-11-13-R-001 (RFP or Solicitation),
to consolidate three existing legacy contracts into a single LISC OMS contract for
fiscal years 2015 through 2024. Admin. R. (AR), Tab 101a at 29013; Tab 101 at
27888; Tab 92b at 27320; Tab 101f at 33054. Previously, separate contracts
provided for operations and maintenance of the Air Force’s two launch facilities ---
the Eastern Range, run from Patrick Air Force Base and launching from Cape
Canaveral Air Force Station in Florida; and the Western Range, located at
California’s Vandenberg Air Force Base. AR, Tab 101 at 27888; Tab 101a at 29020–
24. A third support contract sustained the instrumentation for the two ranges. See
AR, Tab 101 at 27888. The ranges are used to launch military, National
Aeronautical Space Administration, and commercial satellites into space, and as
test ranges for rockets, missiles, and missile defense. Id.
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Plaintiff InSpace is a joint venture between PAE Applied Technologies LLC
(PAE)1 and Honeywell Technology Solutions Inc., and intervenor RGNext is a joint
venture between Raytheon Technical Services (Raytheon) and General Dynamics
Information Technology. AR, Tab 57 at 14323; Tab 58 at 16127; Tab 77.1 at 21732;
Tab 101 at 27894–95. Raytheon and PAE were among the incumbent contractors
supporting the Eastern Range. See AR, Tab 57a at 14336–37; Tab 58a at 16131; see
also, e.g., AR, Tab 101 at 28158–62, 28165–66, 28170, 28172, 28174–76, 28178–87,
28565–68, 28571, 28573, 28577, 28582–88, 28590, 28593, 28595–97, 28599.
The Solicitation contained a lengthy Performance Work Statement (PWS)
detailing the tasks to be performed under the contract. AR, Tab 101a at 29009–
29292. The description of these tasks consumed 170 pages, id. at 29025–194, and
was organized as follows: Objectives were assigned two-digit paragraph numbers,
such as “3.1.” See id. at 29066. The next level addressed tasks, expressed in full
sentences and assigned a three-digit paragraph number. See id. at 29067 (“3.1.1.
The contractor shall perform program planning to meet user requirements.”).
Below the task level were more detailed subtasks, with paragraph numbers
extending to four or five digits. See id. (detailing 3.1.1.1 and 3.1.1.1.1).
A Work Breakdown Structure (WBS) was also employed in the Solicitation.
AR, Tab 101a at 29293–300. In the WBS, the Air Force took the third-level tasks
from the PWS and reorganized them under paragraphs corresponding to work for
the LISC overall, the Eastern Range, the Western Range, “Sustainment,” and
“Other Support,” totaling 109 separate tasks. Id. at 29295, 29297–300. The WBS
supplied the framework to be used by each offeror in providing its Basis of Estimate
(BOE), the staffing levels and skill mix to perform each requirement. Id. at 32991.
Offerors were required to identify this workload at the three-digit task level, but
were free to express workloads according to the more detailed four- or five-digit
levels, which would be included in their Contractor Work Breakdown Structures
(CWBS). Id. at 32993–94.
The Solicitation provided for four evaluation factors, two of which, Technical
Capability and Past Performance, were to be rated on a pass/fail basis for
acceptability. AR, Tab 101a at 33023. Offerors with acceptable proposals under
those two factors would compete for the best value award, which would be based on
a tradeoff between the other two factors, Technical Risk and Price. Id. Both
technical factors were to be evaluated under three subfactors: Operations;
Maintenance and Sustainment; and Program Management and Systems
Engineering. Id. The third subfactor was to be less important than the first two.
Id.
1PAE Applied Technologies was formerly known as CSC Applied Technologies
Division, LLC. See AR, Tab 57a at 14336; Tab 77.1 at 21732.
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Technical Risk would be rated as low, moderate, or high. Id. The evaluation
was to consider “potential for disruption of schedule, increased costs, degradation of
performance, the need for increased Government oversight, or the likelihood of
unsuccessful contract performance.” AR, Tab 101a at 33030. A risk rating would be
“[b]ased on the identification of, absence of, or combination of weaknesses or
significant weaknesses,” although the finding of a significant weakness “will not
necessarily generate a ‘high’ risk rating.” Id. The presence of a high risk rating for
any Technical Risk subfactor would make a proposal ineligible for award. Id. at
33020. In the best value tradeoff determination, Price was to be “slightly more
important” than Technical Risk. Id. at 33023.
Offerors were instructed to submit their proposals in five volumes. AR, Tab
101a at 32972–73. Volume I was to consist of an Executive Summary, no longer
than ten pages, and a “Master Table of Content and Cross-Reference Matrix” of
unlimited length (and designated as Volume IA). Id. at 32973. Volume II,
addressing Technical Capability, was to be the basis for the evaluations of both
technical factors. See id. at 32979. The main volume was to be limited to 150 pages
(not counting certain tables), and was to address each of the three technical
subfactors. Id. at 32973, 32979–90. The first of eight attachments, designated
“TC1,” would contain the BOEs for each required third-level task, including
supporting rationales for, and schedules of, staffing levels and skill mixes. Id. at
32991. The rationales were to include summaries of the tasks performed under
each element, explanations of labor hour changes from one period of performance to
the next, and the methodology used to estimate the hours proposed. Id. at 32993.
In the instructions, the Air Force provided “baseline” labor hour figures “for
informational purposes only,” based on the three legacy contracts. Id. at 32986.
These totaled 3,120,600 hours for performing one year of the work falling under ten
PWS objectives. See id. at 32986–88. The second attachment to the Technical
Capability volume was to contain the Contractor Work Breakdown Structure. AR,
Tab 101a at 32973.2 Volumes III and IV were to cover the other two factors (Past
Performance and Price, respectively), and Volume V was for “Contract
Documentation.” Id. at 32973, 32999–3016.
B. Evaluation of Proposals and Award of Contract
1. The Approach to Source Selection
Under the Source Selection Plan, a large source selection team was
assembled. See AR, Tab 106 at 34052–53. The ultimate award decision was to be
made by the Source Selection Authority (SSA), id. at 34038, assisted by two SSA
2 There were six other attachments, TC3 through TC8, which are not relevant to
the protest. See AR, Tab 101a at 32973.
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Advisors and a Source Selection Advisory Council (SSAC) made up of a chairman,
four members, and eight advisors, id. at 34052–53. The evaluation of proposals was
to be performed by a Source Selection Evaluation Board (SSEB), which had a
chairman served by seven advisors and three factor chiefs. Id. at 34053.3 Each of
the three technical subfactors had an assigned chief, who collectively oversaw the
work of six evaluators and eleven advisors. Id.4 The Past Performance Factor Chief
was to be served by an evaluator, and an evaluator, two advisors, and three senior
advisors were to work for the Price Factor Chief. Id. An additional nine people
were to have roles in the source selection, bringing the total number involved in the
procurement up to fifty-nine. Id. at 34052–53. After the SSEB’s evaluation of Final
Proposal Revisions, the SSAC was to review the evaluations and proposals and
prepare a Comparative Analysis Report for the SSA’s use in making the source
selection decision. Id. at 34038–39.
For each technical subfactor criterion and subcriterion identified in the
instructions to offerors and the evaluation factors, see AR, Tab 101a at 32979–90,
33024–29, an evaluator (or subfactor chief) was assigned to draft the SSEB’s
assessment of the relevant portion of each proposal, AR, Tab 106 at 34054–55. At
least two other members of the SSEB team --- usually SSEB advisors, occasionally
evaluators or a subfactor chief --- would also review those portions and provide
written comments, using the Electronic Source Selection (ESS) Tool. AR, Tab 101
at 27902; Tab 106 at 34047, 34054–55. The Source Selection Plan provided for the
creation and consideration of minority opinions whenever there was “significant
disagreement among the SSEB members regarding the evaluation results that
should be presented to the SSAC and the SSA.” AR, Tab 106 at 34040.
Thus, when an advisor disagreed with the consensus assessment drafted by
an evaluator, the advisor could write a minority opinion using the ESS Tool. AR,
Tab 101 at 27902–03, 27905, 27913. Both would be reviewed by the relevant
subfactor chief, who was charged with the responsibility of preserving comments.
AR, Tab 106 at 34041. After discussions with the evaluation team, the subfactor
chief would decide on the assessment, with the opposing opinion reported as a
minority opinion to the factor chief. AR, Tab 101 at 27913. The same process would
then be followed by the factor chief, with the resulting assessment and minority
opinion reviewed by the SSEB Chair, who determined the SSEB’s position. Id.
This position, and any minority opinion, would then be reviewed by a Multi-
functional Independent Review Team and then by the SSAC, before being reported
to the SSA. Id. Minority opinions could be generated at any stage of review ---
initial evaluations, discussions, or final proposal revision. See id. at 27913–18. As a
3The same person served as chief for both technical factors, and was also the
Operations subfactor chief. AR, Tab 106 at 34053.
4 Two of these advisors (Lee Bridges and Rich Lamb) also served as SSEB advisors.
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consequence of this procedure, each assessment received at least five layers of
review.
2. Evaluations & Minority Opinions
In addition to InSpace and RGNext, two other joint ventures submitted
proposals: CoRE, a joint venture made up of InDyne, Lockheed Martin, and URS
Corp.; and IBL, a joint venture consisting of ITT Exelis, BAE Systems, and L3
Communications. AR, Tab 101 at 27894. Taking into consideration the 170 pages
of tasks contained in the PWS, see AR, Tab 101a at 29025–194, and the ten separate
periods of performance, it is no surprise that the proposals were long even by
federal procurement standards. The initial proposal of InSpace totaled about 1,785
pages, AR, Tabs 57a–57e at 14324–6108, mostly contained in Volume II and its
attachments (1,039 pages), AR, Tab 57b at 14442–5480.5 The RGNext proposal was
longer than 1,500 pages, with 827 of them dedicated to the two technical factors.
AR, Tab 58 at 16129–7640.
After the SSEB evaluated the initial proposals, it briefed the SSAC and the
SSA in February 2014. AR, Tabs 66 & 67. Each of the four proposals was
considered “unawardable” at that time because of an unacceptable rating for at
least one technical capability subfactor and a high risk rating for at least one
technical risk sub-factor. See AR, Tab 67 at 18389; Tab 101a at 33020; Tab 110 at
34160. The InSpace proposal was found to have 18 weaknesses, 9 significant
weaknesses, and 17 respects in which it “does not clearly meet” the minimum
requirements of the Solicitation (DNCMs). AR, Tab 67 at 18389. The proposal from
RGNext was assigned 28 weaknesses, 21 significant weaknesses, and 25 DNCMs.
Id. The CoRE proposal was found to have 49 weaknesses, 12 significant
weaknesses, and 28 DNCMs; and IBL’s had 28 weaknesses, 24 significant
weaknesses, and 35 DNCMs. Id.
Based on the initial evaluations, the SSA established a competitive range
containing all four offerors and authorized the contracting officer to enter
discussions with each. AR, Tab 101 at 27913. Following the Source Selection Plan,
AR, Tab 106 at 34045–46, Evaluation Notices (ENs) were issued to the offerors
based on their weaknesses, significant weaknesses, DNCMs, and other documented
concerns, AR, Tab 101 at 27914; see AR Tab 68 (InSpace draft ENs); AR, Tab 69
(RGNext draft ENs). The Air Force met separately with representatives of each
offeror, and received written responses addressing the ENs, which ultimately
resulted in all concerns regarding the technical factors being resolved. AR, Tab 101
at 27919–22.
5 Nearly 250 pages were taken up by the Master Table of Contents, an index, and a
recurring acronym list.
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The RGNext ENs corresponding to technical factor issues totaled 42, with
another 6 ENs addressing price and 3 dealing with other concerns. See id. at 27921.
The RGNext responses, AR, Tab 78, resolved all but one of the ENs it had received.
See AR, Tab 86.7–86.58.6 Discussions involved a considerable back-and-forth
between the Air Force and offerors to satisfy the former’s concerns, with some ENs
requiring several responses before they were resolved. See, e.g., AR, Tabs 78.5,
78.73, 78.132 (RGNext responses to EN 4); AR, Tab 86.10 (notice closing EN 4).
The Air Force received final proposal revisions from all offerors in September
2014. See AR, Tab 94 (InSpace); AR, Tab 95 (RGNext). The SSEB’s Proposal
Analysis Report (PAR) was signed by the SSEB Chair on October 30, 2014, and
submitted for the SSA’s consideration. AR, Tab 101 at 28751. The PAR was 864
pages in length, and contained detailed analysis under all four factors. See id. at
27888–8751. The longest portions of the report concerned the third technical
subfactor, Program Management and Systems Engineering, which totaled 661
pages for the four offerors. See id. at 27952–8106 (CoRE), 28148–324 (InSpace),
28365–517 (IBL), 28554–729 (RGNext). All four proposals were found to have the
same low Technical Risk rating. Id. at 27923–24, 27934, 27950–51, 28106, 28117,
28127, 28147, 28324, 28334, 28346, 28364, 28517, 28527, 28539, 28553, 28729.
The SSAC reviewed the PAR, “unanimously accept[ed] the evaluation
results,” and issued its Comparative Analysis Report (CAR). AR, Tab 104 at 34024.
This report noted that all four offerors’ proposals were rated Acceptable for
Technical Capability and Past Performance, and Low Risk for Technical Risk. Id.
at 34026. The SSAC recommended awarding the contract to RGNext based on its
total evaluated price of $102,130,178, compared to InSpace’s price of $115,502,052.
Id. at 34026–27. On November 5, 2014, the SSEB briefed the SSA on its final
evaluation results, see AR, Tab 107 at 34066–139, and the SSAC briefed the SSA on
its CAR and award recommendation, see AR, Tab 108 at 34142–49. The next day,
the SSA issued his Source Selection Decision Document, directing that the contract
be awarded to RGNext. AR, Tab 110 at 34161–62.
During the course of the source selection process, three minority opinions
concerning RGNext’s Technical Risk evaluation were lodged and considered. The
first, by an SSEB evaluator, was generated during discussions. AR, Tab 91.37 at
26962–66; AR, Tab 101 at 28741–45. The second, by an SSEB advisor, was raised
during the evaluation of final proposals. AR, Tab 103.39 at 33706–08; Tab 103.41
at 33812–13; Tab 101 at 28747–48. The third, by an SSAC advisor, was written in
6 The one unresolved EN, number 53, concerned typographical errors referring to
the number of pages contained in certain attachments. AR, Tab 101 at 27921–22;
AR, Tab 86.56 at 25741. These were corrected in RGNext’s Final Proposal Revision.
See AR, Tab 95f at 27781–82.
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agreement with the second opinion, after the SSAC reviewed the SSEB’s final
evaluation. AR, Tab 104 at 34026; Tab 108a at 34151–52; Tab 118 at 34178.
The minority opinion by SSEB evaluator Capt. Kara Jarvis, approved by
Program Management and Systems Engineering subfactor chief Robert Aguilar, see
AR, Tab 91.37 at 26958, 26963, 26967, concerned the evaluation criterion from
paragraph 5.2.3.2 of Section M of the Solicitation, id. at 26958. This criterion
considered whether an offeror’s “[m]anagement approach is consistent with FAR
52.222-41, FAR 52.222-46, and all applicable Collective Bargaining Agreements
(CBAs) and successfully manages both union and non-union labor over the life of
the contract,” AR, Tab 101a at 33027. Captain Jarvis believed that RGNext’s
proposal to cross-utilize some employees, and employ others on a part-time basis,
did not clearly identify the functions to be performed and whether the personnel
involved would be union members. AR, Tab 101 at 28741–43. She based a
significant weakness on the risks that the proposed approach could result in labor
disputes; that part-time employees could be difficult to recruit or retain; and that
cross-utilized or part-time employees would not be as proficient as employees who
used instruments on a daily basis. Id. at 28744–45.
The SSEB Chair disagreed with the assessment, concluding there was “no
reason” to expect a labor dispute or “to believe both full-time and part-time
employees can’t be certified” as qualified to perform tasks, and finding that part-
time employees were “not a significant portion” of the proposed workforce. Id. at
28745–47. The SSA agreed with the SSEB position, believing any potential labor
unrest could be mitigated by using only unionized, full-time employees at a
manageable increase in costs. Id. at 28747. He rejected concerns about part-time
employees, noting that the Solicitation did not require offerors to describe how the
proficiency of workers would be achieved. Id.
The minority opinion by SSEB advisor Steve Daly addressed Program
Management and Systems Engineering evaluation criterion 5.2.3.3.a. See AR, Tab
103.39 at 33706–07. This criterion determined whether BOEs “contain sufficient
staffing levels with an appropriate skill mix to successfully execute the PWS
requirements.” AR, Tab 101a at 33027. The advisor found that, for the PWS tasks
he reviewed, RGNext proposed “a ‘minimally’ sufficient staff with an appropriate
skill mix to conduct” these tasks, but nevertheless concluded that “the Offeror’s
overall staffing level is very low, and they are likely to not be able to meet PWS
requirements,” warranting a significant weakness. AR, Tab 101 at 28747. While
recognizing that the proposed “reduction of the current staffing levels by more than
a third” was “an allowable level,” he was concerned there was a “lack of any margin
to compensate for unplanned manning deficiencies across the contract.” Id. at
28748.
The SSEB Chair responded to the minority opinion, explaining that the
evaluator, the Factor Chief, and he found RGNext’s staffing levels to be low risk
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because not one of the eleven SSEB advisors who reviewed the proposal, including
Mr. Daly, identified any tasks (out of 111 assessed) that were not sufficiently
staffed. Id. at 28749. Since the BOEs had no weaknesses at the task level, the
SSEB Chair believed it was “illogical to conclude” that the tasks could total to an
overall level that was deficient. Id. He also noted that RGNext’s proposed “38%
reduction compared to the existing three-contract baseline” was “not a viable
discriminator according to the RFP,” as the baseline was provided for informational
purposes and was not a required level. Id.
The purpose of Mr. Daly’s minority opinion was to raise the overall staffing
level concern to the attention of the Space Wing leadership responsible for launches
who were members of the SSAC. AR, Tab 101 at 28748. While no SSAC members
agreed with his opinion, AR, Tab 103.39 at 33708; Tab 104 at 34024, 34026 n.1; Tab
108 at 34146, it received the concurrence of an SSAC advisor --- Brigadier General
Nina M. Armagno, the Commander of the 45th Space Wing and Eastern Range
director, AR, Tab 108a at 34151–52. General Armagno issued her own dissenting
opinion, objecting to the contract award to RGNext due to the risk from its
“significantly lower level of proposed labor hours when compared to the other
offerors.” Id. at 34151. She also expressed concern that the RFP “significantly
underestimated” the number of launches per year, which “compounded” any
“underestimation of hours” by RGNext, resulting in a significant weakness. Id. at
34152.
During his briefing, the SSA asked General Armagno if she believed the RFP
should be amended to address her concerns, and she replied in the negative. AR,
Tab 118 at 34178; see also AR, Tab 104 at 34026 n.1. The SSAC concurred with the
majority opinion concerning staffing levels, finding the minority concerns “areas
beyond the requirements stated in Sections L and M of the RFP.” AR, Tab 104 at
34026 n.1. The SSA also rejected the minority opinions and “fully supported” the
SSEB’s majority evaluation. AR, Tab 118 at 34178; Tab 110 at 34161; Tab 103.39
at 33708.
C. GAO Protest and Contract Performance
InSpace filed a protest with the Government Accountability Office (GAO) on
November 24, 2014, challenging the Air Force’s evaluation of RGNext’s technical
risk. AR, Tab 124. A day later, the president of Honeywell Technology Solutions
Inc. (HTSI) --- the minority member of InSpace --- wrote to the GAO stating that his
company had “not agreed to authorize the filing of this protest in the name of
InSpace21.” AR, Tab 125 at 34905. According to HTSI’s interpretation of a
provision of the InSpace operating agreement, a unanimous vote of plaintiff ’s
management board was required to authorize the filing of a bid protest. Id. at
34905–06. Since the two HTSI members of the five-person board dissented, HTSI
argued that InSpace had chosen not to protest the award, and that majority
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member PAE on its own lacked interested party status to bring a protest. Id. at
34906. The GAO dismissed the protest on December 8, 2014, on the ground that
InSpace failed to demonstrate it was an interested party in light of the internal
dispute concerning the authority to file the protest. AR, Tab 127 at 34999–5000;
InSpace 21 LLC, B-410852, et al., 2014 CPD ¶ 363, 2014 WL 7004856 (Comp. Gen.
Dec. 8, 2014). InSpace moved for reconsideration ten days later. AR, Tab 128. On
January 23, 2015, a court of the commonwealth of Virginia found that the majority
vote of plaintiff ’s managing board was sufficient to authorize the filing of the
protest, but the GAO nevertheless denied reconsideration on April 3, 2015. AR, Tab
132.
In the meantime, with the Competition in Contracting Act stay of
performance lifted once the GAO protest was dismissed, see 31 U.S.C.
§ 3553(d)(3)(A)(i), RGNext began performing the 90-day transition period, see AR,
Tab 101a at 29015. The transition was completed two days after reconsideration
was denied, on April 5, 2015. App. to Def.’s Cross-Mot. J. Admin. R. and Resp. to
Pl.’s Mot. J. Admin. R. at 10.
D. The Protest in this Court
InSpace filed its protest in our court on April 10, 2015, challenging the award
of the contract to RGNext. Compl. Plaintiff ’s initial complaint contained eight
separate counts. Count I contended that the agency “unreasonably disregarded” the
minority opinions concerning the riskiness of RGNext’s proposal. Compl. ¶¶ 42–43.
The second count argued that the Air Force did not follow the Solicitation criteria
for identifying proposal risks. Id. ¶¶ 45–46. Count III challenged the evaluation of
RGNext’s proposed staffing levels and labor rates and argued that the Air Force
failed to consider the associated risks to performance, including the potential for
increased costs or union work stoppages. Id. ¶¶ 48–59. The fourth count alleged
that the agency provided only a “cursory” look at the Technical Risk factor, ignored
the risk posed by a shortened first period of performance, and arbitrarily awarded
all contractors a low risk rating. Id. ¶¶ 61–65. Count V alleged that the agency
provided RGNext with an unfair advantage by directing InSpace to increase its
staffing levels but not RGNext. Id. ¶¶ 67–69. In the sixth count, plaintiff alleged
the Air Force improperly failed to perform cost realism analysis of cost-based rates.
Id. ¶¶ 71–73. Count VII argued that RGNext “materially underbid the effort” by
failing to propose adequate staffing to accomplish certain transition tasks, and
should have received a higher risk rating as a result. Compl. ¶¶ 75–79. The eighth
count asserted that the Source Selection Decision Document was unreasonably
brief. Id. ¶¶ 81–86. Plaintiff sought a permanent injunction requiring a
resolicitation or, in the alternative, an award of proposal preparation costs. Compl.
at 35.
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On May 1, 2015, the government filed the Administrative Record for this
protest. This consisted of 132 tabs of material, several of which contained scores of
separate documents. All told, more than 900 documents, totaling 35,057 pages,
were included in the record. Pre-solicitation materials made up only about one-
quarter of this material, see AR, Tabs 1–51, and the Solicitation and its attachments
totaled 4,285 pages, AR, Tab 101a. The evaluation of RGNext’s proposal included
assessments and comments by the SSEB totaling 1,296 pages regarding the initial
proposal, AR, Tab 71 at 20346–1641; 388 pages regarding discussions, AR, Tab 91
at 26814–7201; and 470 pages concerning the final proposal revision, AR, Tab 103
at 33552–4022, in addition to more than 200 pages of the PAR, AR, Tab 101 at
28527–738, 28741–49, and more than 400 pages concerning EN responses, AR, Tab
90 at 26391–813.
Eleven days after the Administrative Record was filed, plaintiff filed an
amended complaint. While the facts alleged for background purposes were
unchanged but for the addition of Administrative Record references, see Compl.
¶¶ 1–40; Am. Compl. ¶¶ 1–40, the eight counts were revised, revamped, and even
replaced. Count I was fleshed out with considerable detail concerning the minority
opinions which plaintiff believes were not reasonably considered. See Am. Compl.
¶¶ 44–53, 55–57. The second count focused on the concern expressed in one of the
minority reports, and alleged that the evaluation improperly failed to take into
account an increase in estimated launches from one of the ranges (which plaintiff
characterizes as the “actual workload”). Id. ¶¶ 59–61. Count III contended that the
Air Force should have analyzed the riskiness of RGNext’s proposed reduction in
total labor hours relative to staffing under the incumbent contracts. Id. ¶¶ 63–65.
The fourth count argued that the Air Force misunderstood the extent of RGNext’s
reliance on part-time workers, and failed to consider the risks associated with that
approach. Id. ¶¶ 67–70. Count V contained the allegations that were Count II in
the initial complaint, concerning the Solicitation’s risk criteria. See id. ¶¶ 72–73.
In the sixth count, plaintiff repeated the alleged union work stoppage risk from the
previous third count, and added several specific criticisms of the evaluation of the
labor hours proposed by the awardee to perform various PWS requirements. Id.
¶¶ 75–88. Count VII is an abbreviated version of the allegations from the prior
Count IV. See Am. Compl. ¶¶ 90–91. The eighth count is identical to that from the
initial complaint, except for one reference to the Administrative Record. See id.
¶¶ 93–98. Plaintiff again sought a permanent injunction requiring a resolicitation,
but changed its request for proposal preparation costs from an alternative remedy
to an additional one. See Am. Compl. at 38.
Plaintiff then moved for judgment on the administrative record, followed by
cross-motions for judgment filed by the government and intervenor. Plaintiff ’s
briefing and argument tracked the issues in the amended complaint, except that
Counts V and VII --- concerning the Solicitation’s definition of risk, and whether
risk was qualitatively considered --- became more generalized, cross-cutting
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concerns. See Pl.’s Mot. J. Admin. R. (Pl.’s Mot.) at 19–20; Pl.’s Resp. & Reply to
Def.’s and Intervenor’s Cross-Mots. J. Admin. R. (Pl.’s Reply) at 2–4. InSpace
argued that the Air Force arbitrarily disregarded the three minority opinions. Pl.’s
Mot. at 20–24; Pl.’s Reply at 1–2, 4–7. Plaintiff faulted defendant for not accounting
for potential increases in workload, Pl.’s Mot. at 24–25; Pl.’s Reply at 7–12; for not
considering the riskiness of RGNext’s proposed reduction in overall staffing levels,
Pl.’s Mot. at 25–26, 29; Pl.’s Reply at 21–22; and for failing to comprehend the
extent of RGNext’s proposed reliance on part-time labor, Pl.’s Mot. at 27–28; Pl.’s
Reply at 12–21. InSpace argued that the Air Force failed to take into account large
differences between the numbers of hours it proposed to perform various tasks and
those proposed by RGNext, Pl.’s Mot. at 31–33; Pl.’s Reply at 22–25; and failed to
adequately explain why the hours proposed by intervenor were sufficient, Pl.’s Mot.
at 33–35. Finally, plaintiff maintained that the decision of the SSA was
unreasonable in its brevity and its reliance upon the SSEB’s risk ratings. Id. at 35–
36.
The government responded, arguing in its cross-motion that the minority
opinions were thoroughly considered by the other participants in the source
selection. Def.’s Cross-Mot. J. Admin. R. and Resp. to Pl.’s Mot. J. Admin. R. (Def.’s
Br.) at 22–24; Def.’s Reply in Support Cross-Mot. J. Admin R. (Def.’s Reply) at 3–7.
Defendant contended that it would have been improper for the Air Force to evaluate
the proposals based on criteria that were not included in the Solicitation, including
possible workload changes. Def.’s Br. at 24–25. Defendant noted the overall
workload would fluctuate depending on the number of launches planned at a given
time, and offerors were required to submit plans based on an estimated workload.
Id. The government defended the Air Force’s assessment of the risk posed by
RGNext’s staffing level, id. at 26–31; explained in detail the evaluation of
intervenor’s proposed use of part-time and cross-utilized labor, id. at 31–41; Def.’s
Reply at 12–16; rejected other criticism as mere second-guessing of the evaluator’s
judgment, Def.’s Br. at 41–42; Def.’s Reply at 16–18; and argued that the SSA
reasonably relied on the analyses of the SSEB, Def.’s Br. at 42.
In its cross-motion, RGNext defended the Air Force’s treatment of the
minority opinions, Def.-Int. [RGNext]’s Cross-Mot. J. Admin. R. and Resp. to Pl.’s
Mot. J. Admin. R. (Int.’s Br.) at 12–33; see also Def.-Int. [RGNext]’s Reply Br. in
Support Cross-Mot J. Admin. R. (Int.’s Reply) at 4–5; argued that the Solicitation
workload requirements were properly used in evaluating the risk posed by its
overall staffing levels, Int.’s Br. at 33–37; contended that its proposed use of part-
time labor was reasonably evaluated, id. at 37–38; Int.’s Reply at 10–16; argued
that plaintiff ’s proposed labor hours were irrelevant, Int.’s Br. at 39–41; and
defended the SSEB’s evaluation of its proposed labor effort and the SSA’s reliance
upon that evaluation, id. at 41–48; Int.’s Reply at 17–18. Intervenor also argued
that the doctrine of laches bars plaintiff ’s action. Int.’s Br. at 8–12; Int.’s Reply at
2–4. Because InSpace did not file its bid protest in our court in December 2014,
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after the GAO dismissal and before intervenor began performance, but waited until
after intervenor completed the 90-day transition period, RGNext argued that
circumstances have changed dramatically. Int.’s Br. at 10–11. According to
intervenor, that status quo is no longer, and any injunctive relief would be to its
competitive prejudice, as well as the government’s economic prejudice. Id. at 11–12.
RGNext concluded that dismissal is warranted.
In its reply, InSpace contended that the change in estimated launches to be
performed was a material change in requirements that necessitated an amendment
of the Solicitation. Pl.’s Reply at 9–11 (citing, inter alia, 48 C.F.R. § 15.206(a)).
Plaintiff also argued against the application of laches, contending that its
reconsideration request in the GAO and its state court lawsuit could not properly be
equated with sitting on its rights. Id. at 25–28. The government, in its reply brief,
argued that InSpace’s argument that the RFP should have been amended was
waived, that the change in the estimate of launches was immaterial, and that use of
the larger estimate would not have made a competitive difference. Def.’s Reply at
7–12. Intervenor made similar arguments in its reply, see Int.’s Reply at 7–10, and
reiterated its contention that plaintiff ’s delay in seeking injunctive relief in this
court justifies dismissal of the action, id. at 2–4.
A lengthy hearing was held on the motions, at which all three parties
participated. This opinion issues after a careful review of the arguments made at
the hearing and in the briefs and the authorities cited, as well as a thorough
consideration of the pertinent documents in the administrative record.
II. DISCUSSION
A. Legal Standards
1. Judgment on the Administrative Record in a Bid Protest
Bid protests are heard by this court under the Tucker Act, as amended by the
Administrative Dispute Resolution Act of 1996 (ADRA), Pub.L. No. 104–320,
§ 12(a)–(b), 110 Stat. 3870, 3874. The relevant provision requires our court to follow
Administrative Procedure Act (APA) standards of review in bid protests. 28 U.S.C.
§ 1491(b)(4). Those standards, incorporated by reference, provide that a:
reviewing court shall . . . (2) hold unlawful and set aside agency action,
findings, and conclusions found to be -- [¶] (A) arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with law; [¶] (B)
contrary to constitutional right, power, privilege, or immunity; [¶] (C) in
excess of statutory jurisdiction, authority, or limitations, or short of
statutory right; [¶] (D) without observance of procedure required by law;
[¶] (E) unsupported by substantial evidence in a case subject to sections
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556 and 557 of this title or otherwise reviewed on the record of an agency
hearing provided by statute; or [¶] (F) unwarranted by the facts to the
extent that the facts are subject to trial de novo by the reviewing court.
In making the foregoing determinations, the court shall review the
whole record or those parts of it cited by a party, and due account shall
be taken of the rule of prejudicial error.
5 U.S.C. § 706 (2012).
Based on an apparent misreading of the legislative history, see Gulf Grp., Inc.
v. United States, 61 Fed. Cl. 338, 350 n.25 (2004), the Supreme Court had
determined, before the 1996 enactment of the ADRA, that the de novo review
standard of 5 U.S.C. § 706(2)(F) does not usually apply in review of informal agency
decisions --- decisions, that is, such as procurement awards, see Citizens to Pres.
Overton Park, Inc. v. Volpe (Overton Park), 401 U.S. 402, 415 (1971). Instead,
courts in those cases are supposed to apply the standard of 5 U.S.C. §706(2)(A):
whether the agency’s acts were “arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law.” See Overton Park, 401 U.S. at 416 (citation
omitted); see also Advanced Data Concepts, Inc. v. United States, 216 F.3d 1054,
1057 (Fed. Cir. 2000) (applying 5 U.S.C. § 706(2)(A)). But see Impresa Construzioni
Geom. Domenico Garufi v. United States (Domenico Garufi), 238 F.3d 1324, 1332
n.5 (Fed. Cir. 2001) (also citing 5 U.S.C. § 706(2)(D) as applicable in bid protests).
The “focal point for judicial review” is usually “the administrative record already in
existence,” Camp v. Pitts, 411 U.S. 138, 142 (1973), even when the matter under
review was not the product of a formal hearing, see Fla. Power & Light Co. v.
Lorion, 470 U.S. 729, 744 (1985); Axiom Res. Mgmt., Inc. v. United States, 564 F.3d
1374, 1379 (Fed. Cir. 2009).
A motion for judgment on the administrative record under Rule 52.1 of the
Rules of the United States Court of Federal Claims (RCFC) differs from motions for
summary judgment under RCFC 56, as the existence of genuine issues of material
fact does not preclude judgment on the administrative record. See Bannum, Inc. v.
United States, 404 F.3d 1346, 1355–57 (Fed. Cir. 2005); Fort Carson Supp. Servs. v.
United States, 71 Fed. Cl. 571, 585 (2006). Rather, a motion for judgment on the
administrative record examines whether the administrative body, given all the
disputed and undisputed facts appearing in the record, acted in a manner that
complied with the legal standards governing the decision under review. See Fort
Carson, 71 Fed. Cl. at 585; Greene v. United States, 65 Fed. Cl. 375, 382 (2005);
Arch Chems., Inc. v. United States, 64 Fed. Cl. 380, 388 (2005). Factual findings are
based on the evidence in the record, “as if [the court] were conducting a trial on the
record.” Bannum, 404 F.3d at 1357; see also Carahsoft Tech. Corp. v. United States,
86 Fed. Cl. 325, 337 (2009); Gulf Grp., 61 Fed. Cl. at 350.
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Under the “arbitrary and capricious” standard, the court considers “whether
the decision was based on a consideration of the relevant factors and whether there
has been a clear error of judgment” by the agency. Overton Park, 401 U.S. at 416.
Although “searching and careful, the ultimate standard of review is a narrow one.
The court is not empowered to substitute its judgment for that of the agency.” Id.
The court will instead look to see if an agency has “examine[d] the relevant data
and articulate[d] a satisfactory explanation for its action,” Motor Vehicle Mfrs. Ass’n
v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983), and “may not supply a
reasoned basis for the agency’s action that the agency itself has not given,” Bowman
Transp., Inc. v. Ark.-Best Freight Sys., Inc., 419 U.S. 281, 285–86 (1974). The court
must determine whether “the procurement official’s decision lacked a rational
basis.” Domenico Garufi, 238 F.3d at 1332 (adopting APA standards the D.C.
Circuit developed); see also Delta Data Sys. Corp. v. Webster, 744 F.2d 197, 204
(D.C. Cir. 1984). A second ground for setting aside a procurement decision is when
the protester can show that “the procurement procedure involved a violation of
regulation or procedure.” Domenico Garufi, 238 F.3d at 1332. This showing must
be of a “clear and prejudicial violation of applicable statutes or regulations.” Id. at
1333 (quoting Kentron Haw., Ltd. v. Warner, 480 F.2d 1166, 1169 (D.C. Cir. 1973)).
Under the first rational basis ground, the applicable test is “whether ‘the
contracting agency provided a coherent and reasonable explanation of its exercise of
discretion.’” Domenico Garufi, 238 F.3d at 1333 (quoting Latecoere Int’l, Inc. v.
United States Dep’t of Navy, 19 F.3d 1342, 1356 (11th Cir. 1994)). This entails
determining whether the agency “‘entirely failed to consider an important aspect of
the problem, offered an explanation for its decision that runs counter to the
evidence before the agency,’” or made a decision that was “‘so implausible that it
could not be ascribed to a difference in view or the product of agency expertise.’”
Ala. Aircraft Indus., Inc.-Birmingham v. United States, 586 F.3d 1372, 1375 (Fed.
Cir. 2009) (quoting Motor Vehicle Mfrs. Ass’n, 463 U.S. at 43).
Because of the deference courts give to discretionary procurement decisions,
“the ‘disappointed bidder bears a heavy burden of showing that the [procurement]
decision had no rational basis.’” Domenico Garufi, 238 F.3d at 1333 (quoting
Saratoga Dev. Corp. v. United States, 21 F.3d 445, 456 (D.C. Cir. 1994)). The
protester must demonstrate, by a preponderance of the evidence, the absence of any
rational basis for the agency decision. See Overstreet Elec. Co. v. United States, 59
Fed. Cl. 99, 117 (2003); Info. Tech. & Appl’ns Corp. v. United States, 51 Fed. Cl. 340,
346 (2001) (citing GraphicData, LLC v. United States, 37 Fed. Cl. 771, 779 (1997)),
aff’d, 316 F.3d 1312 (Fed. Cir. 2003). If arbitrary action is found as a matter of law,
the court will then decide the factual question of whether the action was prejudicial
to the bid protester. See Bannum, 404 F.3d at 1351–54.
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2. Injunctive Relief
In a bid protest, the court has the power to issue a permanent injunction
pursuant to 28 U.S.C. § 1491(b)(2). In determining whether to grant a motion for a
permanent injunction, the court applies a four-factored standard, under which a
plaintiff must show: (a) that it has actually succeeded on the merits; (b) that it will
suffer irreparable harm if the procurement is not enjoined; (c) that the harm it will
suffer, if the procurement action is not enjoined, will outweigh the harm to the
government and third parties; and (d) that granting injunctive relief serves the
public interest. Centech Grp., Inc. v. United States, 554 F.3d 1029, 1037 (Fed. Cir.
2009); PGBA, LLC v. United States, 389 F.3d 1219, 1228–29 (Fed. Cir. 2004); MORI
Assocs., Inc. v. United States, 102 Fed. Cl. 503, 551–53 (2011). None of the four
factors, standing alone, is dispositive; thus, “the weakness of the showing regarding
one factor may be overborne by the strength of the others.” FMC Corp. v. United
States, 3 F.3d 424, 427 (Fed. Cir. 1993); AshBritt, Inc. v. United States, 87 Fed. Cl.
344, 378 (2009). Conversely, the lack of an “adequate showing with regard to any
one factor may be sufficient, given the weight or lack of it assigned the other
factors,” to deny the injunction. Chrysler Motors Corp. v. Auto Body Panels of Ohio,
Inc., 908 F.2d 951, 953 (Fed. Cir. 1990). A lack of success on the merits, however,
precludes the possibility of an injunction. See Amoco Prod’n Co. v. Vill. of Gambell,
480 U.S. 531, 546 n.12 (1987) (explaining that a permanent injunction requires
“actual success” on the merits); Tech Sys., Inc. v. United States, 98 Fed. Cl. 228, 268
(2011); Gulf Grp., 61 Fed. Cl. at 364.
B. The Doctrine of Laches Does Not Bar the Protest
Laches is a discretionary, equitable remedy that may bar a plaintiff ’s claim if
two conditions have been satisfied: (1) the plaintiff has unreasonably delayed
bringing a lawsuit to remedy an alleged wrong; and (2) by delaying, the plaintiff has
prejudiced the defendant, in the form of either economic or “defense prejudice.” See
JANA, Inc. v. United States, 936 F.2d 1265, 1269–70 (Fed. Cir. 1991); Cornetta v.
United States, 851 F.2d 1372, 1377–78 (Fed. Cir. 1988) (en banc); Reilly v. United
States 104 Fed. Cl. 69, 78 (2012); Heritage of Am., LLC v. United States, 77 Fed. Cl.
66, 73 (2007).
RGNext argues that the two conditions for applying laches are present in this
case. It contends that the four months that elapsed, from the December 8, 2104
dismissal of InSpace’s GAO protest to the April 10, 2015 filing of the complaint in
this case, were unreasonable. Int.’s Br. at 10. And it maintains that this delay,
during which the 90-day transition period work was performed under the awarded
contract, has resulted in two forms of prejudice --- economic prejudice to the
government, which might suffer “termination costs and duplicative transition
costs,” id. at 11; and “competitive prejudice” to RGNext, now that its “competitive,
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proprietary processes and approaches” have been implemented and thus revealed,
id. at 12.
The Court does not find that laches applies in these circumstances. First,
plaintiff did not unreasonably delay filing its complaint in our court. InSpace’s
situation is not comparable to the plaintiff ’s in Reilly, where the four months
between GAO denial and the filing of a protest in our court were spent “passively
waiting” while an “inter-agency dispute” proceeded. Reilly, 104 Fed. Cl. at 80.
Here, by contrast, InSpace moved for the GAO’s reconsideration within ten days,
AR, Tab 128 at 35001, and filed its lawsuit one week after reconsideration was
denied.7 It is not unreasonable for a protester to seek reconsideration of a dismissal
by the GAO, and any delay to accommodate the GAO is far from “unexcused.” See
Heritage of Am., 77 Fed. Cl. at 73 (finding no unreasonable delay when plaintiff
filed a bid protest within thirty days of the GAO’s reconsideration denial).
Second, intervenor has not identified the sort of prejudice that the laches
doctrine was designed to address. No “defense prejudice,” such as the loss of
evidence or dimming of memories, see Cornetta, 851 F.2d at 1378, is involved.
Rather, intervenor contends that it will be at a competitive disadvantage should a
resolicitation occur, as by performing the contract its proprietary approach is open
to other offerors for emulation. Int.’s Br. at 12. But this is an issue to be considered
when determining if injunctive relief is warranted, under the balancing of harm
factor, see Elmendorf Support Servs. JV v. United States, 105 Fed. Cl. 203, 212
(2012), and in any event would be no obstacle to the award of proposal preparation
costs. And the economic prejudice that RGNext identifies is not its own potential
loss, but the costs to the government of paying for a second transition and for
terminating the RGNext contract --- the latter of which would actually be received
by RGNext. As the government is not attempting to assert a laches defense, its
costs are beside the point. Cf. Res Rei Dev., Inc. v. United States, 126 Fed. Cl. 535,
549–50 (2016) (holding that harms suffered by non-parties have no bearing on the
merits of a protest). For its part, the government asserts that these costs,
exacerbated by InSpace’s decision to seek GAO reconsideration instead of a
preliminary injunction in our court, are relevant to the balancing of harms factor in
the injunctive relief calculus. See Def.’s Br. at 49–50. Having failed to demonstrate
unreasonable delay and prejudice of the economic or defense variety, RGNext’s
request that the case be dismissed under the doctrine of laches is DENIED.8
7 Moreover, the GAO protest was filed by InSpace a week after it received its
debriefing from the Air Force, see AR, Tab 122 at 34226; Tab 124 at 34270,
compared to the nearly four-month delay in Reilly, 104 Fed. Cl. at 79.
8 Moreover, although the undersigned has on occasion entertained the laches
defense, see, e.g., Abernethy v. United States, 108 Fed. Cl. 183, 190 (2012), the Court
has serious doubts that it can properly be applied in a case governed by the statute
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C. The Agency’s Evaluation and Award Decision Was Rational
1. The Air Force Reasonably Considered the Minority Opinions
Plaintiff argues that the manner in which the Air Force treated the three
minority opinions issued by source selection team members was arbitrary. Pl.’s Br.
at 20–24. In addition to disputing the reasoning contained in and factual bases for
the SSA’s and the SSEB Chair’s discussion of these opinions, InSpace contends that
the opinions were “arbitrarily disregarded.” Id. at 21. This latter contention rests
on the GAO’s decision in Northrop Grumman Info. Tech., Inc. (NGIT), B-400134.10,
2009 CPD ¶ 167, 2009 WL 2620070 (Comp. Gen. Aug. 18, 2009). But the Court is
not persuaded that the evaluation process at issue in this case resembles the one
under review in NGIT.
In NGIT, a solicitation instructed that staffing information would be used to
evaluate all subfactors of a technical factor, and the evaluation criterion for a
particular subfactor specifically included the demonstrated reduction in personnel.
2009 WL 2620070 at *3–4. Despite this, the comments of an evaluator of that
subfactor concerning staffing efficiencies “were discarded during the consensus
process as being not relevant since they addressed evaluation of proposal elements
outside of the” particular subfactor. Id. at *6. The GAO noted that “the agency
concede[d] it did not look at the evaluator’s negative comments.” Id. at *7. As we
will see below, all of the minority opinions were considered and addressed by
procurement officials, even if they were found to concern matters beyond the scope
of the requirements. Far from being “discarded,” two of them were included in the
Proposal Analysis Report, AR, Tab 101 at 28741–45, 28747–48, and the third,
generated after the report was written, was addressed in an addendum to the
report, AR, Tab 118 at 34178.
a. The evaluator’s opinion on part-time staffing.
The minority opinion by Capt. Jarvis addressed the evaluation criterion
which considers whether a proposed management approach “successfully manages
both union and non-union labor over the life of the contract.” See AR, Tab 101a at
33027. She believed that RGNext’s proposal “lack[ed] enough detail for the
Government to determine the risk of the proposed approach” of using part-time and
cross-utilized labor. AR, Tab 101 at 28741. She was not certain which tasks were
to be performed by these employees, and was concerned that they might operate
of limitations found in 28 U.S.C. § 2501 --- which the Supreme Court has held
cannot be extended by equitable considerations, see John R. Sand & Gravel Co. v.
United States, 552 U.S. 130, 134, 136–39 (2008).
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range instrumentation, potentially causing delays or mission failure if a union
rejected the approach or if the employees were not adequately trained. Id. at 28742.
To place these concerns in context, three ENs were issued to RGNext
concerning the proposed use of part-time and cross-utilized employees. See AR, Tab
69 at 19133, 19149, 19235–36 (draft ENs). The first, EN 11, noted that the
proposed use of part-time workers needed changes to a collective bargaining
agreement, and stated that it was “not clear” how many of the “[XXXX] critical
employees and [XXXX] remaining employees” would be part-time. AR, Tab 86.17 at
25650. The Air Force was “concerned that if the number of part-time personnel is
significant,” RGNext was “likely to experience mid-term and long-term employee
retention issues.” Id. RGNext responded, explaining that none of the [XXXX]
employees designated as critical were part-time; that the use of part-time
employees “represents less than 4% of the total workforce”; and that the relevant
union issued a letter of intent “stating their receptiveness to the approach.” AR,
Tab 78.12 at 23018. The approach was further explained as an efficient means to
retain institutional knowledge and provide flexibility. Id.
The other two evaluation notices concerned the transition plan criterion
5.2.3.9.d, requiring “staffing levels sufficient to successfully execute the entire PWS
within 90 days from transition start.” See AR, Tab 101a at 33028. One, EN 40,
questioned whether the part-time workforce would be “a significant portion” or
would be “applied to critical tasks.” AR, Tab 93a.1 at 27522. The other, EN 41,
questioned if RGNext raised its part-time approach with all relevant unions and
was concerned that if part-time employees were “a significant portion” of the total,
unions might be hesitant to agree, resulting in potential delays or labor disruptions.
Id. at 27524. In response to EN 40, RGNext reiterated that part-time employees
were “less than 4% of the total workforce” and were none of the [XXXX] critical
staff. AR, Tab 78.41. It explained:
Full-time employees will lead all critical tasks. Most critical tasks will
be completed exclusively by full-time employees. Some critical tasks
may be augmented by part-time employees as individual contributors.
Also, well in advance of every launch, we will [XXXX]; further
eliminating uncertainty as to whether RGNext has the necessary
manpower to achieve successful contract performance.
Id. The Air Force found that this response satisfied its concern, as “less than 4%” of
the workforce was “an insignificant portion,” and it appreciated the “additional
detail” regarding the performance of critical tasks. AR, Tab 93a.1 at 27521. The
response to EN 41 explained that only the one union which provided the letter of
intent required its agreement to be modified to allow for part-time employees, and
that “RGNext has only proposed using part time workers who are represented” by
that union, and by one other which has already agreed to the use of part-time staff.
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AR, Tab 78.42 at 23108. This information satisfied the Air Force. AR, Tab 93a.1 at
27523.
Getting back to EN 11, the Air Force also found that RGNext’s response to
that notice resolved its concern, as “less than 4% of [RGNext’s] total workforce” was
found to be “an insignificant portion.” AR, Tab 90.11 at 26497; Tab 93a.1 at 27451.
One SSEB advisor, Lee Bridges, was not satisfied with the response and wanted to
issue a follow-up, however, believing that retention issues still needed to be
addressed and concerned that the critical tasks in which part-time employees would
assist were not specified. AR, Tab 90.11 at 26505–07. Captain Jarvis agreed with
this suggestion. Id. at 26507. Another concern surfaced regarding the proficiency
of part-time employees. Id. at 26501. The other advisor reviewing proposals under
criterion 5.2.3.2 believed that the union risk issue was resolved, and that
proficiency concerns did not come under that criterion. Id. at 26500–01. The Air
Force ultimately determined that the particular issues were not embraced by the
RFP and would require an amendment if pursued. Id. at 26500.
The concerns expressed by Advisor Bridges, see AR, Tab 90.11 at 26503–04,
became the basis for the minority opinion issued by Capt. Jarvis, AR, Tab 91.37 at
26962–66. The subfactor chief approved of this opinion, expressing a concern that
part-time workers might lack the proficiency to hold critical positions, and
questioning the attractiveness of part-time work. Id. at 26967. The factor chief
rejected this opinion. Id. at 26966–67. She found that RGNext adequately
addressed concerns regarding the use of part-time employees to support launch
operations. Id. at 26966. The factor chief also pointed out that none of the [XXXX]
critical positions would be held by part-time employees, found that RGNext’s
approach to training and certification of employees adequately addressed any
satisfied proficiency issues, and was satisfied with RGNext’s relations with the
relevant union. Id. at 26967.
The minority opinion was included in the PAR, along with the response of
the SSEB Chair and the decision of the SSA. AR, Tab 101 at 28741–47. The
evaluator did not think the work to be performed by cross-utilized or part-time
employees was clearly explained, and was worried about a potential labor dispute.
AR, Tab 101 at 28741–42. She would have posed to RGNext several questions
concerning how cross-utilized and part-time employees would be used, what
additional mitigation strategies would be employed in the face of union
intransigence, and how the retention and proficiency of part-time workers would be
maintained. Id. at 28742–44.
The SSEB Chair considered this opinion, and disagreed with it. He explained
that the SSEB was satisfied with RGNext’s response to the EN, as no critical
positions would be held by part-time employees; no part-time employees would lead
critical tasks; an insignificant 4% of the total workforce was to be part-time; the
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part-time workforce was to be trained and certified; and the matter was discussed
with the one union whose agreement was necessary to implement the part-time
approach. Id. at 28745. He found there was “no reason to believe” that RGNext’s
proposed bridge contract with the relevant union would be rejected. Id. at 28746.
And while recognizing that the Solicitation did not require offerors to provide a
“plan to achieve and ensure proficiency,” the SSEB found that there was “no reason
to believe both full-time and part-time employees can’t be certified” to operate
launch systems. Id.
The SSA approved the SSEB position. AR, Tab 101 at 28747. He believed
that the concern over labor unrest did not warrant a weakness or worse, as the
efficiency resulting from cross-utilization would only increase target cost by 1.1%,
which was “well within the contract ceiling price.” Id. He also concurred that the
Solicitation did not require offerors to address their plans for worker proficiency,
and would not amend the RFP to add such a requirement “because there is no clear
standard for ensuring proficiency.” Id.
Given this record, the Court is not persuaded that the evaluator’s minority
opinion was ignored by the Air Force. Plaintiff argues that the SSEB’s
determination that a plan to maintain proficiency was not required by the
Solicitation resulted in the Air Force not considering how the use of part-time
employees would affect launch capability. Pl.’s Br. at 14. But the Air Force did
consider this, and just disagreed with the minority view. The factor chief found
RGNext’s approach to training and certification sufficient for all employees, AR,
Tab 91.37 at 26967, and the SSEB Chair found “no reason to believe” that all
employees could not be certified under intervenor’s approach, AR, Tab 101 at 28746.
InSpace contends that the Air Force’s refusal to find a risk associated with
the use of part-time employees was based on a failure to appreciate the extent to
which RGNext planned to use such employees. See Pl.’s Br. at 16–19. They focus
on the SSEB Chair’s statement that only “5.2 FTEs” were “attributed to [RGNext’s]
skilled augmented workforce part-time efficiency,” from which he calculated that
there would be “no more than 11” part-time employees. See AR, Tab 101 at 28745;
Pl.’s Br. at 13, 21–22. But even if the SSEB Chair was confusing the positions to be
saved as part-time employees were further implemented with the number of people
who would hold part-time positions at the outset, the Court does not find this error
to be material to the Air Force’s decision. The SSEB Chair also accurately stated
that the intervenor was proposing less than 4% of its workforce to be part-time, and
also determined that union resistance to the proposal was unlikely. AR, Tab 101 at
28745–46. InSpace also cites the SSA’s use of a cost estimate of 1.1% to measure
the impact of a decision to not cross-utilize employees. Pl.’s Br. at 22. While this
estimate was apparently limited to cross-utilized employees, see AR, Tab 91.39 at
26975, and thus did not include any increased costs if part-time employees were
also not used, the Court does not find this fatal to the Air Force’s decision. Plaintiff
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has failed to demonstrate whether any cost savings due to the use of part-time
employees were built into the RGNext baseline for performing the contract, and
given that the labor efforts were expressed in hours, not individuals, see, e.g., AR,
Tab 58b.4, it is reasonable to conclude that the costs would be the same if performed
by full-time rather than part-time employees.
Upon being informed that no critical positions would be held be, nor critical
tasks led by, part-time employees, and that no more than 4% of the work was
proposed to be performed by them, the Air Force did not believe there was any
enhanced risk due to the RGNext approach to staffing. AR, Tab 101 at 28745. It
found no reason to believe that there would be union difficulties and no reason to
think that part-time and cross-utilized employees would be less proficient than
others. Id. at 28745–46. This is not an arbitrary decision, but rather a judgment
with which some members of the source selection team, as well as InSpace,
disagree.9
b. The SSEB advisor’s opinion on total staffing levels.
Mister Daly, one of eleven source selection team members who reviewed
portions of offers to see if particular tasks were sufficiently staffed under criterion
5.2.3.3.a of the Program Management and Systems Engineering subfactor, see AR,
Tab 107 at 34081, agreed with the SSEB’s Technical Capability determination ---
that RGNext’s proposal clearly met the Solicitation requirements, AR, Tab 103.39
at 33706; Tab 101 at 28747. He did not identify any weaknesses relating to the
individual tasks he reviewed, finding the staffing sufficient and appropriately
skilled. AR, Tab 101 at 28747. He contended that a significant weakness should
nonetheless be assigned, because RGNext’s total staffing levels were less than two-
thirds the level of labor performing under the predecessor contracts. Id. at 28748.
He was of the opinion that this significant weakness was “likely to cause
degradation of performance,” id. at 28747, which would presumably result in a risk
rating of High, see AR, Tab 101a at 33030.
The Court finds that the Air Force reasonably rejected this minority opinion.
The SSEB Chair explained that the Solicitation did not require that offerors meet
some minimum, overall staffing level. AR, Tab 101 at 28749. Instead, the hours
and skill mix proposed to accomplish each PWS task were scrutinized, and
RGNext’s BOEs were not found to have any weaknesses or significant weaknesses.
9 The Court notes it might well have been arbitrary had the Air Force found
RGNext’s proposal to be risky due to the proposed cross-utilization of employees, as
the other three offerors proposed cross-utilization and were not subject to such
criticism. See AR, Tab 66 at 17675 (CoRE), 17677 (InSpace), 17679 (IBL); Tab 101
at 27896–97, 27934, 27949–50, 27954, 27956, 28100, 28104 (CoRE), 27898, 28122,
28127, 28153, 28258 (InSpace), 27900, 28361, (IBL).
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See AR, Tab 101 at 28527–729. If, under criteria 5.2.3.a, there are found “sufficient
staffing levels with an appropriate skill mix to successfully execute the PWS
requirements,” AR, Tab 101a at 33027, when each requirement is viewed in
isolation, it is hardly unreasonable to conclude that the aggregate amount of
staffing must also be sufficient and appropriate --- staffing levels are not proposed
for their own sake, but to perform the requirements. Contrary to plaintiff ’s
argument, Pl.’s Br. at 23, it was appropriate for the SSEB Chair to find “illogical”
the notion that the whole is less than the sum of the parts, AR, Tab 101 at 28749.
The Solicitation did not require offerors to explain why they proposed fewer
hours than were used to perform the incumbent contracts. Instead, they were given
the aggregate one-year “labor hour baseline[s]” only “for informational purposes,”
and were to provide their own “manpower levels and skill mixes.” AR, Tab 101a at
32986. While offerors were required to explain any changes in staffing from one
period of performance to the next, see id. at 32993, the Solicitation did not require
such an explanation for differing staffing levels relative to the predecessor
contracts. And since only aggregate baseline hours were provided, see id. at 32986–
88, an offeror would not be in a position to know what many of the previous levels
were for each task.10 All each could do was to demonstrate that the levels proposed
were sufficient to perform each task --- which RGNext was found to do. Thus, the
SSEB properly found that the percentage “reduction compared to the existing three-
contract baseline” was “not a viable discriminator according to the RFP.” AR, Tab
101 at 28749. The minority and majority views were presented to the SSA, see AR,
Tab 107 at 34131–32, and he agreed with the majority opinion, AR, Tab 110 at
34161; Tab 118 at 34178. The Court finds that Air Force “articulate[d] a
satisfactory explanation for its” disagreement with the views of this individual
SSEB advisor. Motor Vehicle Mfrs. Ass’n, 463 U.S. at 43.
c. The SSAC advisor’s opinion on total staffing levels.
After receiving the SSEB briefing, an SSAC advisor agreed with Mr. Daly’s
minority opinion, and issued one of her own. AR, Tab 108a at 34151–52. She
echoed the concern that the 38% reduction in staffing from prior levels presented
“significant risk,” id. at 34151, and was also of the opinion that the Solicitation
“significantly underestimated” space launch workload --- based on Fall 2014
projections that there would be 20 launches from the Eastern Range in 2015 and 26
10 Moreover, a reduction in staffing levels from the predecessor contracts was not
viewed by the Air Force as some anomaly to be explained, but was instead one of
the benefits of the consolidation. See AR, Tab 38 at 4045 (noting expected “cost
savings resulting from more efficient processes and manpower utilization”), 4046
(identifying cost savings from “the elimination of duplicative or redundant
activities, functions, or organizations”).
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in 2016, id. at 34152. She did not, however, want the Solicitation to be amended to
reflect these concerns. AR, Tab 103.39 at 33708; Tab 104 at 34026 n.1.
Her views were considered by the SSAC, which accepted the majority
assessment of risk and believed the minority opinion was based on matters beyond
the Solicitation requirements. AR, Tab 104 at 34026 n.1. The opinion was
presented to the SSA, who also found it “considered areas beyond the requirements”
and “fully supported and approved the SSEB majority assessment.” AR, Tab 118 at
34178. As was discussed above, the Solicitation did not state that the evaluation of
proposals would have anything to do with overall staffing levels proposed, let alone
a comparison of these to the effort under the incumbent contracts. And concerning
the workload estimates, the Solicitation required offerors to assume 12–18 launches
from the Eastern Range and 10–14 from the Western Range. AR, Tab 101a at
29226. The Air Force could not assess proposals based on an offeror’s ability to staff
20 or 26 launches from the Eastern Range in a given year, when a maximum of 18
launches was required. See Alfa Laval Separation, Inc. v. United States, 175 F.3d
1365, 1367–68 (Fed. Cir. 1999); L-3 Commc’ns EOTech, Inc. v. United States, 83
Fed. Cl. 643, 653 (2008); 10 U.S.C. § 2305(b)(1); 48 C.F.R. § 15.305(a). Thus, the Air
Force rationally selected the majority opinion over this minority view.
The plaintiff argues that the SSAC advisor’s minority opinion identified a
material change in requirements, which would have necessitated a solicitation
amendment under 48 C.F.R. § 15.206(a). Pl.’s Reply at 9–11. The Court is not
persuaded that the potential for two or eight additional launches is material, when
the total number of estimated launches that offerors were to staff was thirty-two.
Plaintiff relies on GAO decisions in which the changes were far greater. For
instance, in one case an agency’s need for one category of items dropped by 85
percent, Symetrics Indus., Inc., B-274246.3, et al., 97-2 CPD ¶ 59, 1997 WL 529581,
at *4 (Comp. Gen. Aug. 20, 1997); and in another, the number of units per shipment
to be obtained was reduced by about two-thirds, CGI Fed. Inc., B-410330.2, 2014
CPD ¶ 366, 2014 WL 7185393, at *7–8 (Comp. Gen. Dec. 10, 2014). By contrast, the
25 percent increase in potential launches is of a far smaller magnitude. Although
the Court concludes that it would not have been proper to assess offerors’ ability to
staff 34 or 40 launches with the labor hours proposed, when the Solicitation
assumed a maximum of 32 launches, the difference was not a material change.
Moreover, plaintiff has failed to demonstrate that the labor efforts proposed would
not have been scalable, such that the 6 to 25 percent potential increase in launches
could have altered the risk evaluation.
2. The Air Force Properly Based Its Risk Assessment on the Solicitation
Requirements
InSpace contends that it was unreasonable for the Air Force to fail to take
into consideration the increased estimate of Eastern Range launches that was
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mentioned in the SSAC advisor’s minority opinion. Pl.’s Br. at 24–25. It also
faulted the government for not considering the overall level of staffing proposed by
RGNext. Id. at 25–26. But as we have just seen, Section II.C.1.b–c, supra, the
Solicitation required offerors to assume between 12 and 18 launches from the
Eastern Range, and contained no requirements or criteria that compared aggregate
staffing levels to the levels under the three previous contracts. The Air Force’s risk
assessment was not arbitrary, but properly followed the Solicitation provisions. See
10 U.S.C. § 2305(b)(1); 48 C.F.R. § 15.305(a).
Plaintiff argues that it is a fact that the launch estimates were “significantly
underestimated,” based on the SSAC advisor’s minority opinion. Pl.’s Br. at 24.
But that minority opinion itself rested on a factual mistake, as the author thought
“[t]he PWS estimated approximately 15 launches per year for the enterprise,” AR,
Tab 108a at 34152, when the estimate was actually as many as 32 launches from
the two ranges, AR, Tab 101a at 29226.11 In any event, as explained above, the
change in estimates was not material, and thus the Air Force was required to
evaluate proposals as promised in the Solicitation.
Concerning overall staffing levels, plaintiff seems to be arguing that an
offeror which proposes the deepest reduction in staff levels must receive a higher
risk rating. The Court is not aware of any precedents for such a proposition, which
would undermine the normal incentives (and expected benefits) of competition. See
Arch Chems., 64 Fed. Cl. at 400. As the Air Force has determined that there are no
weaknesses in the staffing levels and skill mixes proposed for each individual task,
it is not arbitrary to conclude that the staffing proposed by RGNext is low risk,
regardless of how it compares to the staffing levels of prior contractors.
3. The Evaluation of RGNext’s Proposed Use of Part-Time Labor Was Not
Arbitrary
InSpace contends that the Air Force misevaluated RGNext’s proposed use of
part-time labor, by failing to understand the extent to which intervenor relied upon
the part-time labor force, and failing to question the attractiveness of part-time
11 One flaw in InSpace’s argument is its treatment of the SSAC advisor’s opinion as
constituting facts with which the Air Force decision must be reconciled, rather than
an opinion that itself ran contrary to the factual record. In addition to the mistaken
belief concerning the total number of launches estimated in the PWS, the author
mistakenly thought that RGNext “does not have recent space launch range
experience,” AR, Tab 108a at 34151; but see AR, Tab 58a at 16131. The author also
conceded she did “not fully understand” the proposed use of part-time employees.
AR, Tab 108a at 34151. Perhaps these errors and uncertainty are why she did not
believe that the risk posed by RGNext’s proposal was great enough to justify
amending the Solicitation.
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positions. Pl.’s Br. at 27–28. But as explained above, Section II.C.1.a, supra, the
Air Force properly based its determination on RGNext’s part-time workforce being
less than 4% of the total, among other findings. And whether [XXXX] employees
would find part-time positions to be attractive is a matter of opinion which this
Court cannot second-guess. E.W. Bliss Co. v. United States, 77 F.3d 445, 449 (Fed.
Cir. 1996). The Air Force’s risk assessment regarding RGNext’s proposed use of
part-time employees was not arbitrary.
4. The Risk Assessment of RGNext’s Proposed Labor Hours Was Reasonable
It has long been established that “the minutiae of the procurement process in
such matters as technical ratings . . . involve discretionary determinations of
procurement officials that a court will not second guess.” E.W. Bliss Co. v. United
States, 77 F.3d 445, 449 (Fed. Cir. 1996). This does not preclude a court from
“verifying that objective elements contained in the agency’s analysis, such as the
description of the offeror’s narrative, correspond to the evidence in the record . . .
and checking to see if subjective judgments are reached elsewhere in the analysis
that contradict the evaluators’ conclusions . . . making the decision too
‘implausible.’” USfalcon, Inc. v. United States, 92 Fed. Cl. 436, 462 (2010) (internal
citations omitted). But instead of identifying objective inaccuracies or subjective
inconsistencies, InSpace’s remaining arguments concerning the assessment of the
awardee’s proposed labor hours focus on the minutiae.
Plaintiff first argues that RGNext proposed “substantially lower” hours than
plaintiff itself did, in total as well as in eighteen different areas of tasks. Pl.’s Br. at
29, 31–33; see also Pl.’s Reply at 23–25. InSpace calls this a “material discrepancy.”
Pl.’s Br. at 31. But no authority is provided to support the notion that plaintiff ’s
proposed hours should be the standard for evaluating the proposals of other
offerors. InSpace asserts that it was irrational for the Air Force to find its proposal
and intervenor’s to both deserve a low risk rating, when RGNext proposed fewer
hours to perform tasks that constituent parts of both parties had previously
performed at the Eastern Range. Pl.’s Br. at 32–33; Pl.’s Reply at 23–24. But while
it might be subjectively inconsistent for identical proposal approaches to be rated
differently, the same cannot be said of different approaches rated equally. The
differences in proposed staffing between InSpace and RGNext provides no basis for
finding the Air Force evaluation to be arbitrary.
The rest of InSpace’s criticism of the Air Force risk assessment focuses
squarely on the minutiae. It complains that “in certain instances” the Air Force,
after describing intervenor’s proposed staffing for a task, merely stated this was
“sufficient.” Pl.’s Br. at 33. But when an agency is not finding fault with a
particular approach to a task, or noting its superior quality, the Court cannot see
how the agency should be required to explain its finding --- that the approach is
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merely adequate --- in any detail.12 No statute or regulation requires such a
process, which would impose high transactions costs on the government with little
added benefit --- particularly for procurements like this one, covering more than 100
separate tasks. See AR, Tab 101a at 29293–300. The PAR amply documents that
intervenor’s proposal was scrutinized for each required task, and that no problems
were found. See AR, Tab 101 at 28527–729. InSpace similarly faults the Air Force
for employing “boilerplate generalizations” in finding staffing sufficient, such as the
latter’s “professional experience” or “current practices at the Ranges.” Pl.’s Br. at
34–35. But again, it is not arbitrary for an agency to not provide detailed
explanations of the reasons an approach is adequate, unless this subjective
judgment can be shown to be inconsistently reached.
Plaintiff also notes particular judgments of the Air Force that it questions,
such as tasks for which the evaluators find one FTE to be adequate despite stating
that “multiple FTE” were expected, see Pl.’s Br. at 34 (citing AR, Tab 101 at 28570),
or where the Air Force determined that understaffing of a sub-task could be covered
by the resources available at the task level, id. at 35 (citing AR, Tab 101 at 28608).
Not only is this the sort of minutiae that a court may not second-guess, see E.W.
Bliss, 77 F.3d at 449; Tech. Sys., 98 Fed. Cl. at 257–58, but even were a few errors of
this sort identified, they would hardly constitute a ground for finding arbitrary the
Air Force’s 203 page determination that more than 100 tasks proposed to be
performed by more than 1000 staff constituted an approach with “little potential to
cause disruption of schedule, increased cost or degradation of performance,” AR,
Tab 101 at 28729. The risk assessment of RGNext has not been shown to have been
unreasonable.
5. The Source Selection Decision Was Not Arbitrary
InSpace’s final argument is that the SSA’s decision was unreasonable,
because it rested on the allegedly flawed risk assessment of the SSEB, and did not
contain any details concerning the proposals other than their identical ratings and
their evaluated prices. Pl.’s Br. at 35–36; see AR, Tab 110 at 34159–62. As we have
seen, the Air Force’s assessment of risk was not arbitrary. Plaintiff ’s complaint is
that the Technical Risk factor, which was supposed to be traded-off against the
slightly more important Total Evaluated Price, see AR, Tab 101a at 33023, ended up
being a non-factor due to all offerors receiving the low risk rating. But instead of
being a hallmark of superficiality, this was a vindication of the process followed by
the Air Force --- as the extended discussions over the problems identified in ENs
12Plaintiff relies on a case in which the agency error was not the failure to explain
why an approach was adequate, but rather why nearly identical approaches merited
one offeror a “Good” rating but another merely “Satisfactory.” See Lab. Corp. of
America Holdings v. United States, 116 Fed. Cl. 643, 652–53 (2014).
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resulted in the government’s confidence that each proposal presented low risk. See,
e.g., AR, Tab 69; Tab 78; Tab 86.
Under the circumstances, there is nothing improper about the SSA’s cursory
decision. He is entitled to rely on the analyses of others. 48 C.F.R. § 15.308. In this
procurement, that analysis was in the form of a Proposal Analysis Report that was
864 pages in length, AR, Tab 101 at 27888–8751, containing detailed discussion of
each PWS task as addressed in each proposal. He also received the views of the
SSAC, in the Comparative Analysis Report, AR, Tab 104 at 34023–27, and a
briefing, AR, Tab 108. And the SSA had the benefit of a detailed briefing from the
SSEB. AR, Tab 107. He was not required to reinvent the wheel, either in
evaluating proposals or making a comparative assessment. See Computer Scis.
Corp. v. United States, 51 Fed. Cl. 297, 320 (2002). The decision document indicates
that the SSA “examined each proposal and its evaluation,” and he made the
uncontroversial decision to award the contract to the lowest-priced offeror, all other
considerations being equal. AR, Tab 110 at 34161–62. This decision is certainly
reasonable. See Tech. Sys., 98 Fed. Cl. at 265.
III. CONCLUSION
For the foregoing reasons, the Court finds that the Air Force’s decision to
award the LISC OMS contract to RGNext was not arbitrary and capricious, but
rather had a rational basis. Plaintiff ’s motion for judgment on the administrative
record is DENIED. Defendant and intervenor’s cross-motions for judgment on the
administrative record are GRANTED. The Clerk of Court is directed to enter
judgment accordingly.
IT IS SO ORDERED.
s/ Victor J. Wolski
VICTOR J. WOLSKI
Judge
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