Pae Aviation and Technical Services, LLC v. United States ( 2021 )

In the United States Court of Federal Claims
No. 21-1469
Filed: October 7, 2021
Reissued: October 21, 2021 1
)
PAE AVIATION & TECHNICAL )
SERVICES, LLC, )
)
Plaintiff, )
)
v. )
)
THE UNITED STATES, )
)
Defendant, )
)
and )
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DYNCORP INTERNATIONAL, LLC, )
)
Defendant-Intervenor. )
)
)
OPINION AND ORDER
Robert Stephen Nichols, Nichols Liu, LLP, Washington, DC, for plaintiff.
Kelly Krystyniak, U.S. Department of Justice, Civil Division, Washington, DC, for defendant.
Scott Michael McCaleb, Wiley Rein, LLP, Washington, DC, for defendant-intervenor.
SMITH, Senior Judge
This action is before the Court on the parties’ Cross-Motions for Judgment on the
Administrative Record. Plaintiff, PAE Aviation and Technical Services LLC (“PAE”),
challenges the U.S. Customs and Border Protection (“CBP” or “Agency” or “Government”)
award decision under Request for Proposals, No. 70B02C18R00000063 (“RFP” or
“Solicitation”). See generally Complaint, ECF No. 1 [hereinafter Compl.]. Specifically, PAE
challenges the Agency’s evaluation of the following: (1) PAE’s proposal regarding its planned
labor efficiencies and its Cost Proposal, and (2) Dyncorp International, LLC’s (“Dyncorp”)
change in corporate ownership. Id. Additionally, plaintiff asserts that the Agency failed to
1 An unredacted version of this opinion was issued under seal on October 7, 2021. The
parties were given an opportunity to propose redactions, and those redactions are included
herein.
amend the Solicitation to reflect current operational requirements and failed to conduct a best
value determination. Id. at 21–22; 25–26. 2
In response, defendant contends that the Agency properly (1) assigned PAE a weakness
for its reduction in aircraft mechanic and aircraft mechanic supervisor labor, (2) rejected PAE’s
proposed escalation rates, (3) considered DynCorp’s ownership change, (4) conducted a best
value determination, and (5) determined its requirements without need for an amendment. See
generally Defendant’s Cross-Motion for Judgment on the Administrative Record, and
Opposition to Plaintiff’s Motion for Judgment on the Administrative Record, ECF No. 60
[hereinafter Def.’s CMJAR]. Similarly, defendant-intervenor argues that the Agency conducted
a proper evaluation and was not required to amend the Solicitation. Defendant-Intervenor’s
Cross-Motion for Judgment on the Administrative Record and Response to Plaintiff’s Motion for
Judgment on the Administrative Record, ECF No. 61 [hereinafter Def.-Int.’s CMJAR]. For the
reasons set forth below, the Court denies PAE’s Motion for Judgment on the Administrative
Record and grants defendant’s and defendant-intervenor’s Cross-Motions for Judgment on the
Administrative Record.
I. Background
The U.S. Customs and Border Protection is responsible for “protecting our Nation’s
borders in order to prevent terrorists and terrorist weapons from entering the U.S.; apprehending
individuals attempting to enter the U.S. illegally; and stemming the flow of drugs and other
contraband while facilitating the flow of legitimate trade and travel.” Administrative Record 123
[hereinafter AR]. To achieve this purpose, the Agency conducts aviation enforcement by
“utiliz[ing] a diverse fleet of fixed-wing and rotary-wing aircraft” for “interdiction, investigation,
domain awareness, and contingency operations and national taskings.” See AR 123. To keep the
aviation fleet operational, the Agency’s Air and Marine Operations “requires continuous aviation
maintenance and logistics support services at its various operating sites.” AR 123.
A. The Solicitation
On June 1, 2018, the Agency released its Solicitation to procure aircraft maintenance and
logistics support, through the Federal Business Opportunities website. AR 23. The Agency
sought to award the National Aviation Maintenance and Logistics Services (“NAMLS”) contract
to service 211 aircrafts at 34 locations classified as Aviation Operational Sites (“AOS”). AR 29;
AR 123. The Agency contemplated a period of performance of one base year and nine option
years with a three-month option extension, totaling over ten years of performance. See AR
1193–1214 (Amendment 12). Each year, the Solicitation provides for seven contract line items
(“CLINs”) with firm-fixed price, cost-plus incentive fee, and cost reimbursement CLINs. See
AR 1193–1214. The Solicitation instructed offerors that the Agency would select the proposal
that offers the best value to the Government using the trade-off process. AR 29.
2 Plaintiff has withdrawn Counts 1 and 4 of its Complaint. Plaintiff’s Motion for Judgment on
the Administrative Record, at 1 n.1. Count 7 has been dismissed. Id.; see generally Order on
Motion to Dismiss, ECF No. 56.
2
Offerors were required to submit two volumes: (1) Business Management Information:
Cost/Price (“Cost Price Proposal”) and (2) Technical/Technical Management (“Technical
Proposal”). AR 300. For the Cost Price Proposal, offerors were required to submit financial and
labor pricing information under Attachments 6A, 6B, 6C, and 8. AR 301–02 (Amendment 3).
Within Attachments 6A and 6B, the Agency provided a table for offerors to include detailed
labor information such as labor categories, labor hours, number of employees, and labor rates.
AR 1172 (Amendment 10); AR 1216–24 (Amendment 12). Offerors were required to
“determine the escalation factor(s) applicable to their estimate for each option[] period.” AR
1147 (Amendment 10). The Agency specifically noted that it will “evaluate proposed escalation
rates for reasonableness in comparison to industry contract escalation standards and the rationale
provided to support the proposed rates.” AR 1225 (Amendment 12). Importantly, the Agency
instructed offerors to explain “any proposed escalation rates that are below historical wage
escalation levels or any unique circumstances involving the proposed escalation rates.” AR
1225.
For the Technical Proposal, offerors were instructed to provide a “sufficiently specific,
detailed, and complete” proposal which would “demonstrate that the offeror has a thorough
understanding of the requirements set forth in the solicitation.” AR 303. In making the award,
the Agency would evaluate the following factors within the Technical Proposal: Factor 1
(Technical); Factor 2 (Safety); Factor 3 (Past Performance); and Factor 4 (Cost/Price).
AR 113–16. In terms of relative importance, Factors 1 through 3 were listed in order of their
importance with Factor 1 (Technical) being significantly more important than Factors 2 (Safety)
and 3 (Past Performance). AR 117. Factors 1 through 3 combined were significantly more
important than Factor 4 (Cost/Price). AR 117.
Each factor, except Factor 4 (Cost/Price), would be assessed for individual Significant
Strengths, Strengths, Significant Weaknesses, Weaknesses, and Risks. AR 115. Additionally,
these factors would be assessed a Risk Rating of Low, Medium, or High based on whether the
offeror’s proposal contained risk with “little or no potential,” some potential, or was “likely to
cause significant serious disruption of schedule, increase in cost, or degradation of performance.”
AR 115. Based on these identified strengths, weaknesses, and risks, the Agency would assign a
Consensus Rating of High Confidence, Confidence, or Low Confidence regarding the offeror’s
ability to perform the requirements of the Solicitation. AR 115–16.
Important to this protest is the evaluation of Factor 1 (Technical) and Factor 4
(Cost/Price). Within Factor 1 (Technical), the Agency evaluated two sub-factors: Subfactor 1
(Maintenance Capacity) and Subfactor 2 (Maintenance Capability Processes and Facilities). AR
113–14. Under Maintenance Capacity, the Agency instructed offerors to complete Attachment
8, a standardized workforce template, to provide a detailed workforce breakdown of Program
Management Office personnel and site maintenance personnel at each AOS location. AR 113.
As to Factor 4 (Cost/Price), the Agency instructed offerors that it would conduct a cost realism
analysis in accordance with Federal Acquisition Regulation (“FAR”) 15.404-1 to determine the
most probable cost for each offeror. AR 114–15.
3
B. Evaluation and Award
After the Agency received initial proposals and conducted discussions, it received final
proposal revisions (“FPRs”) by January 11, 2019. Compl. at 6. The Agency awarded to
DynCorp International, LLC (“DynCorp”) after which PAE and another offeror, Vertex,
challenged the award at the Government Accountability Office (“GAO”). Id.; see
B-417704.1-.2. On July 8, 2019, the Agency voluntarily took corrective action. Compl. at 7.
Plaintiff was not satisfied with the scope of the Agency’s corrective action, which lead to an
agency-level protest and eventually another GAO protest. See id.; see also B-417704.4. On
September 5, 2019, the Agency again took corrective action and allowed offerors to resubmit
their FPRs. Compl. at 7. On December 5, 2019, offerors submitted their FPRs. Id.
On May 15, 2020, the Agency awarded to PAE. Compl. at 8. On June 22, 2020,
DynCorp filed a protest at GAO. See B-417704.6. On July 10, 2020, the Agency took corrective
action. Compl. at 8. On July 22, 2020, the Technical Evaluation Team (“TET”) and the Cost
Evaluation Team (“CET”) re-evaluated the December 5th FPRs. AR 4. On August 5, 2020, the
TET provided labor hour adjustments to PAE’s proposed labor hours for option years three
through nine (“OY 3-9”). AR 4. On December 16, 2020, the Source Selection Authority
(“SSA”) was briefed on the evaluation findings. See generally AR 3323–60.
The evaluation ratings for PAE and DynCorp are the following:
Offeror Factor 1: Factor 2: Safety Factor 3: Factor 4: Most
Technical Past Performance Probable Cost
DynCorp High Confidence/ High Confidence/ High Confidence/ $1,393,488,097
Low Risk Low Risk Low Risk
PAE Confidence/ High Confidence/ High Confidence/ $1,357,585,550
Medium Risk Low Risk Low Risk
AR 3466. During this time, the Agency conducted a due diligence check of DynCorp and
learned that DynCorp had been acquired by Amentum Services, Inc (“Amentum”). AR 4. The
procurement team noted that DynCorp was still registered in the System for Award Management
(“SAM”) with the same Data Universal Numbering System (“DUNS”) number and Commercial
and Government Entity (“CAGE”) code, with the Federal Awardee Performance and Integrity
System (“FAPIIS”) reflecting DynCorp’s new immediate owner. AR 4. The Contracting
Officer (“CO”) stated that the awardee “is continuing operations as a separate entity” with “no
indication that this new ownership changes [DynCorp’s] corporate structure or will have any
impact on its ability to perform as proposed.” AR 4; see also AR 3516.
On January 22, 2021, the SSA determined DynCorp represented the best value to the
Government in the Source Selection Decision Document (“SSDD”). AR 3464. The SSA’s
determination was made based on a review of the Technical Evaluation Team Report (“TET
Report”); the Cost Evaluation Team Report (“CET Report”); the SSA Briefing on December 16,
4
2020; and the SSA’s individual assessment. AR 3464. On January 28, 2021, the Agency
notified PAE that DynCorp was the successful awardee. AR 3835.
C. Procedural History
On June 14, 2021, PAE filed its Complaint with this Court alleging that the Agency
committed the following errors: (1) improperly downgraded PAE’s proposal for planned labor
efficiencies; (2) improperly adjusted PAE’s cost proposal; (3) failed to find DynCorp’s proposal
deficient due to DynCorp’s change in corporate ownership; (4) failed to amend the Solicitation to
reflect changes; and (5) conducted an arbitrary and capricious best-value determination. See
Compl. at 21–22; 25–26.3
On June 28, 2021, defendant filed the Administrative Record. See AR, ECF No. 26. On
July 8, 2021, plaintiff filed a Motion to Supplement the Administrative Record. See Plaintiff’s
Motion to Supplement the Administrative Record, ECF No. 34. On August 2, 2021, defendant
and defendant-intervenor filed their respective responses to plaintiff’s Motion to Supplement the
Administrative Record. See Defendant’s Response in Opposition to Plaintiff’s Motion to
Supplement the Administrative Record and Conduct Discovery, ECF No. 47; see also
Defendant-Intervenor’s Opposition to Plaintiff’s Motion to Supplement the Administrative
Record, ECF No. 45. On August 6, 2021, plaintiff filed a Motion to Supplement the Court’s
Record. See Motion to Supplement the Record Before the Court, ECF No. 51.
On August 6, 2021, plaintiff filed their Motion for Judgment on the Administrative
Record. See generally Plaintiff’s Motion for Judgment on the Administrative Record, ECF No.
52 [hereinafter Pl.’s MJAR]. On August 12, 2021 the Court issued an Order denying plaintiff’s
Motion to Supplement the Administrative Record. See Order Denying Plaintiff’s Motion to
Supplement the Administrative Record, ECF. No. 57. On August 20, 2021, defendant and
defendant-intervenor filed their respective responses to Plaintiff’s Motion for Judgment on the
Administrative Record and their cross-motions. See generally Defendant’s Response in
Opposition to Plaintiff’s Motion for Judgment on the Administrative Record and Defendant’s
Cross-Motion for Judgment on the Administrative Record, ECF No. 60 [hereinafter Def.’s
CMJAR]; Defendant-Intervenor’s Response in Opposition to Plaintiff’s Motion for Judgment on
the Administrative Record and Cross-Motion for Judgment on the Administrative Record, ECF
No. 61 [hereinafter Def.-Int.’s CMJAR].
On August 26, 2021, plaintiff filed its Reply and Response to defendant’s and
defendant-intervenor’s Cross-Motions. See Plaintiff’s Response to Defendant’s and Defendant-
Intervenor’s Motions for Judgement on the Administrative Record, ECF No. 64 [hereinafter Pl.’s
Resp.]. On September 1, 2021, defendant and defendant-intervenor filed their respective
Replies. See generally Defendant’s Reply in Support of its Cross-Motion for Judgment Upon the
Administrative Record, ECF No. 66 [hereinafter Def.’s Reply]; Defendant-Intervenor’s Reply in
Support of its Cross-Motion for Judgment on the Administrative Record, ECF No. 65
[hereinafter Def.-Int.’s Reply].
3As stated in the previous footnote, plaintiff withdrew Counts 1 and 4 of their Complaint.
Plaintiff’s Motion for Judgment on the Administrative Record, at 1 n.1. Count 7 was dismissed.
Id.; see generally Order on Motion to Dismiss, ECF No. 56.
5
On September 8, 2021, the Court held oral argument. On September 14, 2021, the Court
issued an Order granting plaintiff’s Motion to Supplement the Court’s Record. See Order
Granting Plaintiff’s Motion to Supplement the Record, ECF No. 69. On September 15, 2021, the
Court issued a ruling on the parties’ cross-motions with judgment stayed pending issuance of the
Court’s written opinion. See September 15, 2021 Order, ECF No. 70. This is that Opinion. The
parties’ cross-motions are fully briefed and ripe for review.
II. Standard of Review
This Court’s jurisdictional grant is found primarily in the Tucker Act, which affords this
Court with jurisdiction over bid protest actions. 28 U.S.C. § 1491(b). This Court evaluates bid
protests under the Administrative Procedure Act’s (“APA”) standard of review for agency
actions. See 28 U.S.C. § 1491(b)(4); Bannum, Inc. v. United States, 404 F.3d 1346, 1351 (Fed.
Cir. 2005) (citing Impresa Construzioni Geom. Domenico Garufi v. United States, 238 F.3d
1324, 1332 (Fed. Cir. 2001)). Under APA standards, agency procurement actions may be set
aside only if they are “arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with the law.” 5 U.S.C. § 706 (incorporated in 28 U.S.C. § 1491(b)(4)).
In other words, “a bid protest 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. Under the rational basis ground, the Court
recognizes that “contracting officers are ‘entitled to exercise discretion upon a broad range of
issues confronting them’ in the procurement process.” Id. (quoting Latecoere Int'l, Inc. v. United
States Dep't of Navy, 19 F.3d 1342, 1356 (11th Cir. 1994)). Accordingly, the test for courts is
whether “the contracting agency provided a coherent and reasonable explanation of its exercise
of discretion” where the protester has a “heavy burden” to show that the award decision has no
rational basis. Impresa, 238 F.3d at 1332–33 (internal citations omitted). When a challenge is
brought on the second ground, the protestor must show that the alleged violation was “clear and
prejudicial.” Id. at 1333.
The Court will “interfere with the government procurement process ‘only in extremely
limited circumstances.’” EP Prods., Inc. v. United States, 63 Fed. Cl. 220, 223 (2005) (quoting
CACI, Inc.-Fed. v. United States, 719 F.2d 1567, 1581 (Fed. Cir. 1983)). “If the court finds a
reasonable basis for [an] agency’s action, the court should stay its hand even though it might, as
an original proposition, have reached a different conclusion as to the proper administration and
application of the procurement regulations.” Honeywell, Inc. v. United States, 870 F.2d 644, 648
(Fed. Cir. 1989). The court cannot substitute its judgment for that of an agency, even if
reasonable minds could reach differing conclusions. Bowman Transp., Inc. v. Ark.-Best Freight
Sys., Inc., 419 U.S. 281, 285–86 (1974).
Pursuant to Rule 52.1 of the Rules of the Court of Federal Claims (“RCFC”), a party may
file a motion for judgment on the administrative record to request that the Court assess whether
an administrative body, given all disputed and undisputed facts in the record, acted in
compliance with the legal standards governing the decision under review. See Supreme
Foodservice GmbH v. United States, 109 Fed. Cl. 369, 382 (2013) (citing Fort Carson Supp.
Servs. v. United States, 71 Fed. Cl. 571, 585 (2006)). On such a motion, the parties are limited to
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the administrative record, and the Court must make findings of fact as if it were conducting a
trial on a paper record. R. Ct. Fed. Cl. 52.1; Bannum, Inc., 404 F.3d at 1354. The Court will
then determine whether a party has met its burden of proof based on the evidence in the record.
Bannum, 404 F.3d at 1355.
III. Discussion
A. The Agency’s Evaluation under Factor 1
Plaintiff challenges the Agency’s award to DynCorp, arguing that the Agency improperly
evaluated PAE’s proposal regarding its planned labor efficiencies and its Cost Proposal;
improperly evaluated DynCorp’s change in corporate ownership; failed to amend the
Solicitation; and failed to conduct a best-value determination. See generally Pl.’s MJAR.
Defendant and defendant-intervenor respond that the Agency properly (1) assigned PAE a
weakness for its reduction in aircraft mechanic and aircraft mechanic supervisor labor, (2)
rejected PAE’s proposed escalation rates, (3) considered DynCorp’s ownership change, (4)
determined its requirements; and (5) conducted a best-value determination. See generally Def.’s
CMJAR; see also Def.-Int.’s CMJAR.
1. Assignment of Weakness for Labor Reduction
As described above, the standard under which this Court reviews bid protests is set forth
under the APA. 28 U.S.C. § 1491 (b)(4); see also Impresa, 238 F.3d at 1332. Under APA
standards, agency procurement actions may be set aside only if they are “arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with the law.” 5 U.S.C. § 706 (incorporated
in 28 U.S.C. § 1491(b)(4)). “An agency’s decision meets this standard when 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 [the decision] is so implausible that it could
not be ascribed to a difference in view or the product of agency expertise.’” Clarke Health Care
Prods. v. United States, 149 Fed. Cl. 440, 445 (2020) (citing Motor Vehicle Mfrs. Ass'n of U.S.,
Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)). As part of this determination,
the Court will “uphold a decision of less than ideal clarity if the agency’s path may reasonably be
discerned.” Motor Vehicle Mfrs., 463 U.S. at 43 (internal citations omitted).
Plaintiff argues that the Agency improperly evaluated PAE’s proposal when it assigned a
weakness for anticipated labor efficiencies in OY 3-9 for the Mechanic labor categories
(“LCATs”) full-time equivalent workers (“FTE”). Pl.’s MJAR at 7. Plaintiff argues that the
plain language of its proposal does not support the Agency’s assigned weakness and increased
Risk rating. See id. at 8–11. In response, defendant and defendant-intervenor argue that PAE
reduced labor for OY 3–9 without providing the Agency with information on how it would
achieve these efficiencies. See Def.’s CMJAR at 8–12; see also Def.-Int.’s CMJAR at 13–16.
After careful review of the record, the Court finds that the Agency provided a coherent
and reasonable explanation of its exercise of discretion for its evaluation of PAE’s proposed
labor efficiencies and its assignment of a weakness. PAE’s FPR addresses its labor efficiencies
in two different sections. See AR 1486–87; AR 1491. Within the first section, PAE states that it
has identified “a number of out-year efficiencies realized through the combination of applying
7
similar techniques and procedures employed elsewhere and technology implementation.” AR
1486. PAE states that it will apply lessons learned and best practices from the Continuous
Improvement (“CI”) Office to achieve efficiencies in labor aviation maintenance personnel and
maintenance supervisors, realized through “standardizing site layout, reorganizing work spaces,
pre-positioning common use tools, digitizing forms and records and maximizing support office
access (i.e. technical supply, tool room, GSE yard).” AR 1486.
Within the second section, PAE provides additional details on its staffing efficiencies,
stating in relevant part:
• PAE employs a robust [CI] Office headed by a Lean Six Sigma Black Belt
qualified PhD. The techniques, procedures and efficiencies realized on dozens of
programs across the PAE portfolio are brought to bear on the [Customs and
Border Protection] Program.
. ..
• Our experience as the incumbent indicates that we can realize efficiencies based
upon historical adjustments. Rather than apply efficiencies too aggressively and
thus create union labor relations issues such as work slow-downs, we chose the
following factors to increase our efficiency in the Base Year and all Option Years:
o Learning curve improvement of cycle times-work routines, e.g. as
employees perform and learn or a task become repetitive.
o Best practices/CI process implementation, e.g., improvements made at our
other aviation contracts generate improvements on the CBP program.
o Maximize cross-utilization were possible reduces redundancy in staff
requirements
o Value engineering changes/proposal makes it possible to implement and
save work fostered from new ideas, procedures, steps and/or routines
similar to a suggestion box.
o Warranty improvements for Line Replaceable Units (LRUs)/parts.
o PAE acknowledges Smart Aviation technology will be a part of this fleet
within the life of the new contract and has developed strategic partnerships
with aircraft OEMs and Smart technology firms including Microsoft and
Dell that enable PAE to achieve Predictive Maintenance (PdM)
capabilities improving maintenance efficiency and effectiveness. Smart
technology/PdM implementation will enable PAE to shift a large
percentage of unscheduled to scheduled maintenance reducing costs and
increasing mission capability at no risk (non-radiating technology, with no
security risks).
• The powerful combination of PAE’s robust CI program under the leadership of a
PhD; lessons learned from the successful execution of over $2B worth of diverse
programs; and the effective integration of technological advancements, will allow
us to gleen efficiencies in operations and realize significant cost savings over time
across the program.
AR 1491.
8
On review of these two sections within PAE’s FPR, the TET Report notes its concerns
with how PAE could realize its proposed efficiencies:
PAE’s description of gaining [Continuous Process Improvements (“CPI”)] efficiencies
through “standardizing site layout, reorganizing work spaces, pre-positioning common
use tools, digitizing forms and records, and maximizing support office access []” does not
explain how these changes will enable PAE to reduce its aircraft mechanics 19.52 FTEs
and 2.00 maintenance supervisors in the out years []. Nor does PAE explain how the
same volume of aircraft maintenance requirements (based on the same number of flight
hours, number of aircraft, and number of sites) will be accomplished with 19.52 fewer
aircraft mechanics and 2.00 fewer maintenance supervisors in Option Years 3-9.
AR 3299 (emphasis omitted); see also AR 8. The TET Report states that “PAE does not specify
where these techniques and procedures were employed and how they were able to reduce staffing
based on CPI efficiencies, specifically reducing aircraft mechanics at the levels proposed.” AR
3299. Simply put, the Agency’s TET Report shows that it evaluated PAE’s proposal regarding
these efficiencies, but it could not discern how PAE would reduce its workload and still meet the
requirements of the Solicitation with fewer aircraft mechanics and maintenance supervisors. See
AR 3299; see also AR 7–9.
Further, the TET Report shows that the Agency was not only concerned with how PAE
would achieve its proposed labor efficiencies but whether these efficiencies would introduce
problems with performance and safety. See AR 3299. The TET Report notes that with 211
aircraft across 34 locations, eliminating 19.52 aircraft mechanics and 2.00 maintenance
supervisors would “introduce performance, safety, and scheduling issues.” AR 3299. The TET
states that “the mission requirements and operational tempo . . . will be unable to be attained if
aircraft cannot be maintained in a timely manner (due to aircraft being grounded and/or delayed
while they await required maintenance).” AR 3299. Finally, the TET Report notes a “concern
over maintaining proper quality control of work stemming from fewer aircraft mechanics [],
which potentially introduces performance and safety errors.” AR 3299. Accordingly, the
Agency assigned a weakness to PAE’s proposal for performance and safety reasons. See AR
3299.
Given the record, the Court is unconvinced that the Agency committed an error in its
evaluation. Rather, the Agency provided a rational and coherent explanation of its decision to
assign a weakness to PAE’s proposal. The Agency evaluated PAE’s proposal and assigned it a
weakness due to various concerns over PAE’s reduced staffing approach. See AR 3298–99.
Specifically, the Agency assigned PAE’s proposal a weakness because it could not determine
how it would achieve its proposed efficiencies and whether those efficiencies would introduce
performance and safety issues. See AR 3298–99. The Court cannot substitute its judgment for
that of an agency, even if reasonable minds could reach differing conclusions. Bowman Transp.,
Inc., 419 U.S. at 285–86; Honeywell, Inc., 870 F.2d at 648 (where a court “finds a reasonable
basis for [an] agency’s action, the court should stay its hand even though it might, as an original
proposition, have reached a different conclusion as to the proper administration and application
of the procurement regulations.”). Thus, the Court finds nothing in the Administrative Record
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which would support finding the Agency’s assignment of a weakness as arbitrary or capricious,
an abuse of discretion or otherwise not in accordance with the law.
2. Clarification
FAR 15.306(a) defines clarifications as “limited exchanges” which give offerors “the
opportunity to clarify certain aspects of proposals” or to “resolve minor or clerical errors.”
Federal Acquisition Regulation 15.306(a). “Importantly, however, ‘[c]larifications are not to be
used to cure proposal deficiencies or material omissions, materially alter the technical or cost
elements of the proposal, or otherwise revise the proposal.’” ManTech Advanced Sys. Int’l v.
United States, 141 Fed. Cl. 493, 507 (2019) (citing Dell Fed’l Sys., L.P. v. United States, 906
F.3d 982, 998 (Fed. Cir. 2018)). In other words, clarifications “may not provide new
information or alter already provided information.” ManTech, 141 Fed. Cl. at 507 (citing Level 3
Commc’ns, LLC v. United States, 129 Fed. Cl. 487, 504-05 (2013)).
PAE argues that the Agency interpreted its labor efficiencies as an absolute intention to
reduce personnel in OY 3-9 versus a condition precedent to staffing reductions. See Pl.’s MJAR
at 11. According to PAE, the Agency’s interpretation was a misunderstanding that could have
been cleared up through clarifications. Id. at 15–16 (“[T]he misunderstanding that [the Agency]
suddenly seized on during re-evaluation could have been resolved by a simple question: did PAE
intend to permanently cut its maintenance personnel whether or not PAE achieved the
efficiencies it anticipated in its proposal?”). Defendant asserts that plaintiff’s proposal “did not
indicate that the proposed labor reductions were contingent in any manner” but instead affirmed
that the efficiencies would result in reductions to aviation maintenance personnel and
maintenance supervisors. Def.’s CMJAR at 10. Further, defendant argues that if the Agency
proceeded with clarifications on PAE’s intentions for reducing aircraft mechanic labor, it “would
have gone beyond what is permitted within the bounds of clarifications.” Id. at 15. Defendant-
intervenor argues much the same, stating that at a minimum plaintiff would “need to either
provide new language indicating its intended ‘condition,’ or provide additional justification and
rationale for the proposed staffing cuts.” Def.-Int.’s CMJAR at 20.
The Court agrees with defendants. Plaintiff’s proposal was fundamentally unclear. As
argued above, the TET Report supports that the technical team assigned PAE’s proposal with a
weakness due to PAE’s insufficient explanation of its labor reduction—a weakness which
presented questions of performance and safety. See AR 3298–99. Indeed, the record supports
that the Agency would have needed substantive conversations with plaintiff regarding its ability
to meet the Solicitation’s terms—regardless of whether the labor reductions for Mechanic
LCATS FTEs were conditional on plaintiff achieving certain efficiencies—and this would have
required a proposal revision. See AR 3298–99.
Further, the question which plaintiff argues the Agency should have asked—did PAE
intend to permanently cut its maintenance personnel whether or not PAE achieved the
efficiencies it anticipated in its proposal—would have at a minimum led to revisions of its cost
proposal. See Def.’s CMJAR at 15. In other words, PAE would have had to change its cost
proposal to reflect revisions to its labor if its efficiencies were not realized. See id. For example,
PAE would have had to revise portions of its final proposal revision—Appendix D (Schedule)
and Appendix E (Volume I: Business Management Information)—which would have gone
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beyond the scope of a clarification. See AR 1731; see also AR 2234. Accordingly, the record
shows that any question regarding the conditionality of PAE’s proposed labor reductions would
have resulted in revisions to its proposal. ManTech, 141 Fed. Cl. at 507 (stating that
“[c]larifications are not to be used to cure proposal deficiencies or material omissions, materially
alter the technical or cost elements of the proposal, or otherwise revise the proposal.”) (internal
citations omitted). Therefore, the Agency’s decision not to engage in clarifications was rational
and is supported by the record.
3. Assignment of Weakness and Adjusting the Most Probable Cost
Plaintiff next argues the Agency erred by “double counting” the technical weakness
assigned to plaintiff’s proposed mechanic-FTE reductions in OY 3-9. Compl. at 16; Pl.’s MJAR
at 13–15. Specifically, plaintiff argues that by upwardly adjusting plaintiff’s Most Probable Cost
(“MPC”) estimate to reflect the scenario in which the option-year staffing reductions do not
occur, the Agency essentially “erased” PAE’s technical weakness, yet still penalized PAE by
assigning a weakness. Pl.’s Resp. at 5. Plaintiff argues that the agency can only do this if it first
concludes that the offeror failed in some way to understand the requirements of the solicitation.
Pl.’s MJAR at 14 (citing Westech Int’l, Inc. v. United States, 79 Fed. Cl. 272, 298–99 (2007)). In
response, defendant and defendant-intervenor argue that the Agency’s MPC calculation and
technical evaluation are distinctly separate. See Def.’s CMJAR at 13–14; Def.-Int.’s CMJAR at
18–19. Defendant-intervenor argues that the “risks” associated with plaintiff’s staffing
reductions are “distinct” from the Agency’s cost adjustment and represent performance, quality,
and safety risks. See Def.-Int.’s CMJAR at 19; see also Def.-Int.’s Reply at 8. As such, these
perceived risks remain—even if PAE’s cost is adjusted to reflect a realistic cost estimate and a
scenario in which plaintiff’s proposed labor reductions do not occur. Def.-Int.’s Reply at 8.
The Court is unconvinced by plaintiff’s arguments. Plaintiff primarily relies on Westech
which is not applicable to the facts here. Pl.’s MJAR at 14 (citing Westech, 79 Fed. Cl. at
298–99). In Westech, the solicitation explicitly prescribed that the agency may reevaluate a
technical proposal following an MPC adjustment if based on an offeror’s misunderstanding of
the SOW requirements. See id. at 299 (holding that it was within the Agency’s discretion to
reevaluate technical proposals and downgrade an offeror’s technical score based on the Agency’s
belief that the offeror’s proposal “did not reflect a clear understanding of the [Statement of
Work] requirements.”). Unlike Westech, the Solicitation here does not state that the Agency will
reevaluate a technical proposal after upwardly adjusting an offeror’s MPC, nor does the Court
read Westech to require such a reevaluation of technical proposals in all solicitations. See
generally AR 29 (Solicitation); cf. Westech Int’l, 79 Fed. Cl. 298. Ultimately, the Agency had a
rational basis to conclude that plaintiff’s staffing reductions presented a medium risk to contract
completion during its technical review and adjusted PAE’s cost proposal to reflect a realistic cost
estimate during its cost evaluation. AR at 3299 (stating that the most likely cost scenario is one
in which plaintiff’s projected efficiencies and associated reductions are not realized.). Therefore,
the Agency acted neither arbitrary or capricious, abused its discretion or otherwise acted not in
accordance with the law.
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4. Unequal Treatment
Plaintiff also argues the Agency was unequal in its evaluation of its labor proposal in
comparison to DynCorp’s proposal under Factor 1. Pl.’s MJAR at 16–19. Plaintiff asserts that
because it “proposed far more [mechanic] labor hours” and “Mechanic LCAT FTEs” than
DynCorp, the Agency acted irrationally by assigning plaintiff’s labor proposal a weakness and
DynCorp’s proposal a strength. Compl. at 17; Pl.’s MJAR at 17. In response, defendant and
defendant-intervenor argue that plaintiff has not met the high standard to establish unequal
treatment, as “PAE’s and DynCorp’s respective evaluations are not ‘substantially
indistinguishable.’” Def.’s CMJAR at 17 (citing Office Design Group, 951 F.3d 1366, 1372
(Fed. Cir. 2020)); Def.-Int.’s CMJAR at 21. Defendant argues that the parties proposed different
strategies for staffing its aircraft mechanic positions and that these “substantive differences” are
material to plaintiff’s disparate treatment allegation. Def.’s Reply at 6 (emphasis in original).
It is axiomatic that “a contracting agency must treat all offerors equally, evaluating
proposals evenhandedly against common requirements and evaluation criteria.” Banknote Corp.
of Am. v. United States, 56 Fed. Cl. 377, 383 (2003) (internal citations omitted). To prevail on a
claim for unequal treatment, “a protestor must show that the agency unreasonably downgraded
its proposal for deficiencies that were ‘substantively indistinguishable’ or nearly identical from
those contained in other proposals,” or that “the agency inconsistently applied objective
solicitation requirements between it and other offerors, such as proposal page limits, formatting
requirements, or submission deadlines.” Office Design Grp., 951 F.3d at 1372; see also Taahut
v. United States, 849 F. App’x 260, 267 (Fed. Cir. 2021). A court must dismiss a claim if the
protester does not meet this standard because “[t]o allow otherwise would give a court free reign
[sic] to second-guess the agency’s discretionary determinations underlying its technical ratings.”
Office Design Grp., 951 F.3d at 1373.
Plaintiff fails to demonstrate that the Agency treated the proposals unequally. The crux
of plaintiff’s argument is that because plaintiff proposed more mechanic FTEs and labor hours
than DynCorp, the Agency cannot rationally assign plaintiff’s labor proposal with a weakness
while assigning DynCorp’s proposal a strength. Pl.’s Resp. at 6–7. But this argument
misconstrues the standard for an unequal treatment claim. Here, the parties’ approaches to
staffing mechanics are fundamentally different: DynCorp proposed to maintain a constant
number of mechanic FTEs over the life of the contract, while plaintiff proposed a staffing
reduction in OY 3-9, due to anticipated operational efficiencies. AR 3980–81; AR 1376-83; AR
3299. The Agency had a rational basis to conclude that plaintiff might be unsuccessful in
achieving the reductions in its staffing proposal without affecting operations, which could
jeopardize contract completion. See AR 3299. Although plaintiff proposes more mechanics than
defendant-intervenor in total, both offerors had substantively different approaches regarding
labor. As such, the Court declines to find fault in the Agency’s discretionary assignment of a
weakness to plaintiff’s proposal while assigning a strength to DynCorp’s proposal.
B. DynCorp’s Ownership Change
Plaintiff argues that the Agency had an obligation to meaningfully evaluate the impact of
DynCorp’s sale to Amentum. See Pl.’s MJAR at 21–27. Plaintiff asserts that DynCorp’s sale
was a “material change” to DynCorp’s proposal, impacting its cost and technical approach. See
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id. at 23–25. Defendant responds that the Agency considered DynCorp’s sale and rationally
determined that DynCorp’s performance will not be impacted. Def.’s CMJAR at 27.
Specifically, defendant asserts that the Agency examined DynCorp’s sale and “found that it had
no material impact on DynCorp’s proposal.” Id. at 28. Defendant-intervenor responded with
much the same, arguing that DynCorp’s change in ownership did not materially affect
DynCorp’s corporate identity or its proposed cost or technical approach. Def.-Int.’s CMJAR at
8–13.
The Court is unconvinced by plaintiff’s arguments. The record supports that the Agency
considered DynCorp’s change in ownership and found that the acquisition had no material
impact on DynCorp’s proposal. See AR 3516–17; see also AR 5605. The Agency
acknowledged DynCorp’s ownership change and documented that the contract specialist
“conducted a search of [] DynCorp’s DUNS and CAGE code in SAM.gov and FAPIIS systems.”
AR 3516. The Agency concluded that “[b]y all indications, DynCorp is continuing operations as
a separate entity and there is no indication that this new ownership changes DynCorp’s corporate
structure or will have any impact on its ability to perform as proposed.” AR 3516–17; cf.
NetCentrics Corp. v. United States, 145 Fed. Cl. 158, 169 (2019) (holding a material
misrepresentation occurred when the offeror misrepresented the availability of key personnel).
Plaintiff presents no credible evidence or argument to supports its assertion that
DynCorp’s ownership change had a material impact on DynCorp’s cost or technical approach in
such a way that DynCorp’s proposal contains a material misrepresentation. See generally Pl.’s
MJAR; but cf. NetCentrics, 145 Fed. Cl. at 169 (stating that a material representation requires
that the agency relied on a false statement to favorably evaluate the offeror’s proposal) (internal
citations omitted). Rather, the record supports that DynCorp remains intact with the same
resources reflected in its proposal. In other words, there is nothing in the record to support that
DynCorp submitted a proposal with false information or that which would require a revision to
its technical or cost approach. In that regard, this Court agrees with defendant and
defendant-intervenor and finds that the Agency acted rationally in its evaluation of DynCorp.
C. PAE’s Escalation Rates
Plaintiff argues that the Agency conducted an arbitrary and capricious cost-realism
analysis when it upwardly adjusted PAE’s cost proposal. Pl.’s MJAR at 27. Plaintiff contends
that the Agency improperly rejected its “unique cost escalation rates and replaced them with a
standard escalation rate not contained in the Solicitation.” Id. at 27–28. Defendant contends that
the Agency’s rejection of PAE’s escalation rates and its replacement with a government
estimated rate (i.e., the Global Insight rate 4) was rational as PAE did not follow the Solicitation
4 “The [Cost Evaluation Team] used Global Insight as a basis to determine whether the proposed
escalation rates are reasonable and realistic. Global Insight is the standard escalation tool that
[Defense Contract Audit Agency] uses in their audit findings. Global Insight is one of the
leaders in market and escalation data in the industry with almost 4,000 clients. DCAA provided
[the Agency] Global Insight escalation rate[s] for each option period using the Professional
Technical Services in the Aviation Maintenance & Support industry index (mid-point) for
[Cost-plus incentive fee] only with comparison to each offeror’s proposed escalation rates and
related escalation evaluations [].” Administrative Record 3374.
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or provide an adequate explanation for its proposed rates. See Def.’s CMJAR at 19–24.
Similarly, defendant-intervenor argue that the Agency had a rational basis for making probable
cost adjustments in the option years. Def.-Int.’s CMJAR at 22–27.
“[C]ontracting agencies enjoy wide latitude in conducting the cost realism analysis.”
Agile Def., Inc. v. United States, 959 F.3d 1379, 1385–86 (Fed. Cir. 2020) (citing Mission1st
Grp., Inc. v. United States, 144 Fed. Cl. 200, 211 (2019) (“It is well established that contracting
agencies have broad discretion regarding the nature and extent of a cost realism analysis, unless
the agency commits itself to a particular methodology in a solicitation.”). To successfully
challenge a cost realism analysis, a protestor must demonstrate “the absence of a rational basis
for the agency’s decision.” CSC Gov’t Sols. LLC v. United States, 129 Fed. Cl. 416, 429 (2016)
(internal citation omitted) (internal quotation omitted). When reviewing an agency’s cost
realism determination, “the Court defers to those agency conclusions that are rational and based
on reasoned judgment.” United Payors & United Providers Health Servs., Inc. v. United States,
55 Fed. Cl. 323, 329 (2003).
The Solicitation instructed offerors to provide a price for the base year and “apply the
escalation and/or de-escalation factor(s) proposed” for each Option Year. AR 1146 (Amendment
10). In other words, the Solicitation requested offerors to provide escalation rates to price out
their option years. See AR 1146–47. Importantly, the Solicitation instructed offerors that they
“shall have adequate supporting documentation to include the rationale of how the factor(s) was
determined as the factor(s) proposed will be evaluated.” AR 1146 (emphasis added). Offerors
were required to provide these escalation rates in the associated pricing attachments,
Attachments 6A, 6B, and 6C—“using Excel with all formulas intact” and to “propose[] their
escalation factors and provide rationale for the factor.” AR 1173–76. The Agency specifically
noted that it will “evaluate proposed escalation rates for reasonableness in comparison to
industry contract escalation standards and the rationale provided to support the proposed rates.”
AR 1225 (Amendment 12). The Agency instructed offerors to explain “any proposed escalation
rates that are below historical wage escalation levels or any unique circumstances involving the
proposed escalation rates.” AR 1225.
Plaintiff proposed escalation rates by location within the Statement of Work (“SOW”) for
each period of performance. AR 1487. On review, the CET found that the “escalation rates for
each year by site seemed random” and that PAE “did not provide adequate support and rationale
for their proposed escalation rates, because the narrative did not explain how the escalation rates
were calculated.” AR 3444. The CET could not determine if the proposed escalation rates were
“based on a practical approach.” AR 3444. Additionally, the CET Report states that the
evaluators noticed “significant” differences between PAE’s proposed escalation rates and the
Global Insight rate. AR 3444. As a result, the Agency adjusted PAE’s escalation rates upward
to the Global Insight rate for option years one through nine to reflect a “reasonable and realistic
escalation rate for each of the option periods.” AR 3444.
The Court finds that the Agency acted rationally when it adjusted PAE’s cost proposal.
PAE explained that its proposed escalation rates “allow[] for greater fidelity of proposed costs as
it incorporates salary escalation for exempt staffing, the impacts of outyear staffing efficiencies
at specific locations, and the application of PAE indirect rates and profit/fee.” AR 1519.
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However, PAE’s explanation shed little light on how plaintiff calculated its rates or why they
varied to such a degree—for example, an escalation rate of % for Option Year 2 and a
% for Option Year 3 at the Bellingham Air Branch, Washington location. AR
1789. Indeed, the Agency reviewed PAE’s submitted rates but could not determine the rationale
behind these varying rates or how they were calculated. See AR 3444. Further, the Agency
noted that PAE’s proposed rates were much lower than the government estimate rate from
Global Insight. AR 3444. As such, the CET recommended an adjustment to PAE’s proposed
escalation rates to reflect reasonable and realistic escalation rates. AR 3444. Given the record,
the Agency acted rationally and was neither arbitrary nor capricious in its determination to adjust
PAE’s cost proposal.
D. Amendment to the Solicitation
Plaintiff argues that the Solicitation no longer reflects the Agency’s needs because “the
level of effort on the incumbent [] contract in 2020 and 2021 do not reflect the level of effort
solicited under the 2018 RFP.” Pl.’s MJAR at 31–32. Plaintiff argues that the Agency “abuses
its discretion when it awards a contract with the intention of materially modifying it after award.”
Id. (citing MVM, Inc. v. United States, 46 Fed. Cl. 137 (2000)). In response, defendant argues
that this is a contract that is “almost exclusively cost-reimbursement” and that is because the
Agency cannot predict “when and where it will need to conduct missions requiring aircraft years
in advance.” Def.’s CMJAR at 24. Defendant argues that the Solicitation anticipated dramatic
surges, stating that “[t]he number of flying hours will vary by aircraft, location, and mission
requirement and may dramatically increase or decrease or surge in response to border protection
priorities.” Id. Similarly, defendant-intervenor argues that the Solicitation anticipated “annual,
mission-driven fluctuations to flights hours, and attendant/derivative maintenance needs, and it
specifically built in flexibility so that the Agency could adjust projected annual flight hours as
needed, depending on present mission requirements.” Def.-Int.’s CMJAR at 29.
The record supports defendant’s and defendant-intervenor’s position. The Solicitation
SOW specifically warns offerors that flying hours “may dramatically increase or decrease or
surge in response to border protection priorities.” AR 335. As such, the record supports that the
Agency expects that flying hours may have a dramatic increase, such as the increase noted by
PAE in the incumbent contract. See Pl.’s MJAR at 32 (stating that “in 2020, PAE’s performance
of the NAMLS bridge contract required total labor hours across all CLINs” which is a
“ % increase in labor hours compared to the scope anticipated in the RFP.”). Moreover, the
record supports that the Agency contemplated mission-driven fluctuations to flights hours
because it stated that it would “review the Aircraft Laydown and Flying Hours [] for each Option
Year and renegotiate the contract year, as needed, based on requirements accordingly.” AR
1146. Thus, the Agency did not abuse its discretion by not amending the Solicitation; rather, the
Agency acted rationally because the Agency’s underlying requirements did not change.
E. Best Value Determination
Plaintiff contends that the Agency departed from the terms of the Solicitation and law “by
downgrading PAE’s technical score based on an erroneous assessment of PAE’s proposed
efficiency-based reduction of Mechanic LCAT FTEs.” Pl.’s MJAR at 30–31. Plaintiff argues
that the Agency allowed DynCorp to “avoid disclosing” its change in ownership and “failed to
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meaningfully assess the impacts from that transaction on DynCorp’s proposal.” Id. at 31.
Finally, plaintiff argues that the Agency replaced PAE’s unique escalation rates with the
government-estimate rate “which resulted in a far larger upward adjustment to PAE’s MPC than
to DynCorp’s MPC.” Id. Given these errors, plaintiff argues that the Agency conducted an
arbitrary and capricious best value tradeoff determination. Id. Defendant argues that plaintiff
simply disagrees with the Agency’s award decision but has not established that the Agency
committed any error in the evaluation. See Def.’s CMJAR at 32–33. Defendant-intervenor
argues that the record provides a “reasonable, well-supported basis for the Agency’s source
selection decision” and that there were no errors with the cost and technical evaluations. Id. at
28.
Agencies have “substantial discretion to determine which proposal represents the best
value for the government.” E.W. Bliss Co. v. United States, 77 F.3d 445, 449 (Fed. Cir. 1996)
(internal citations omitted). In fact, contracts awarded on the basis of best value afford the
contracting officer with “even greater discretion than if the contract were to have been awarded
on the basis of cost alone.” Galen Med. Assocs., Inc. v. United States, 369 F.3d 1324, 1330 (Fed.
Cir. 2004). Agencies must “examine the relevant data and articulate a ‘satisfactory explanation
for its action including a rational connection between the facts found and the choice made.’”
Spectrum Comm., Inc. v. United States, 126 Fed. Cl. 778, 792 (2016) (internal citations omitted).
“[C]ourts have repeatedly observed, the greater the procurement official’s vested discretion, the
higher the threshold for finding the official's decision irrational or otherwise unlawful.”
PlanetSpace Inc. v. United States, 96 Fed. Cl. 119, 125 (2010) (internal citations omitted). Thus,
“[a]n agency’s contract award is [] least vulnerable to challenge when based upon a best value
determination.” Id. (internal citation omitted).
After a comprehensive review of the record, the Court finds the Agency’s award to be
reasonable. Plaintiff’s argument challenges the Agency’s evaluation of PAE’s technical and cost
proposal. However, the record does not support that the Agency committed any error in its
evaluation of PAE’s proposal. As argued above, the record demonstrates that the Agency
rationally considered the efficiencies proposed—the reduction of aircraft mechanic and aircraft
mechanic supervisor labor—but determined that PAE did not provide the Agency with adequate
explanation on how these efficiencies would be achieved and whether these efficiencies would
cause safety and performance issues. See AR 3299; see also AR 7–9. Further, the record shows
that the Agency considered DynCorp’s change in ownership and found that the acquisition had
no material impact on DynCorp’s proposal. See AR 3516–17; see also AR 5605. Finally, the
record supports that the Agency acted rationally when it adjusted PAE’s cost proposal. See AR
3444. Therefore, the Court finds the Agency’s documentation of its trade-off analysis
demonstrates a proper exercise of discretion within the terms of the Solicitation.
F. Injunctive Relief
This Court is generally loath to “disturb a best-value award so long as the agency
‘documents its final award decision and includes the rationale for any business judgments and
tradeoffs made.’” Afghan Am. Army Servs. Corp. v. United States, 90 Fed. Cl. 341, 360 (2009)
(quoting Blackwater Lodge & Training Ctr. v. United States, 86 Fed. Cl. 488, 514 (2009))
16
(internal citation omitted). So long as there exists a “rational connection between the facts found
and the choice made,” the Court will not set a procurement decision aside. Banknote Corp. of
Am., 56 Fed. Cl. at 390 (quoting Motor Vehicle Mfrs. Ass’n, 463 U.S. at 43). As the Court is not
persuaded by plaintiff’s contentions that the Agency conducted a flawed evaluation and award,
the Court does not believe that plaintiff was prejudiced by such alleged procurement flaws.
Finally, plaintiff alleges that it is entitled to permanent injunctive relief. Pl.’s MJAR at
34–35. When analyzing whether permanent injunction is proper, a court must analyze “whether,
as it must, the plaintiff has succeeded on the merits of the case.” PGBA, LLC v. United States,
389 F.3d 1219, 1229 (Fed. Cir. 2004). As plaintiff has not succeeded on the merits of its case,
the Court will not grant injunctive relief.
IV. Conclusion
For the reasons set forth above, plaintiff’s MOTION for Judgment on the Administrative
Record is hereby DENIED. Defendant’s and defendant-intervenor’s CROSS-MOTIONS for
Judgment on the Administrative Record are hereby GRANTED. The Clerk is directed to enter
judgment in favor of defendant and defendant-intervenor, consistent with this opinion.
IT IS SO ORDERED.
s/ Loren A. Smith
Loren A. Smith,
Senior Judge
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