Elevated Technologies, Inc. v. United States ( 2022 )

IN THE UNITED STATES COURT OF FEDERAL CLAIMS
____________________________________
)
ELEVATED TECHNOLOGIES, INC., )
)
Plaintiff, )
)
v. ) No. 22-0004C
)
THE UNITED STATES, ) Filed: May 6, 2022
)
Defendant, ) Reissued: June 3, 2022 1
)
and )
)
GREENEFFICIENT, INC., )
)
Defendant-Intervenor. )
____________________________________ )
OPINION AND ORDER
Plaintiff Elevated Technologies, Inc. (“Elevated”) filed this post-award bid protest,
challenging the Department of Veterans Affairs’ (“VA”) decision to award an elevator
maintenance contract to Defendant-Intervenor GreenEfficient, Inc. (“GreenEfficient”). Elevated
contends that the VA acted arbitrarily and capriciously in issuing the award because (a)
GreenEfficient should have been disqualified for submitting a defective quote or not selected
because of its past performance and lack of experience, and (b) Elevated should not have been
disqualified for submitting a deficient company license. Elevated seeks a permanent injunction to
cancel the award and an order directing the VA to correct its errors either through a reevaluation
of quotes or by reconducting the procurement.
Before the Court are the parties’ Cross-Motions for Judgment on the Administrative
1
The Court issued this opinion under seal on May 6, 2022, and directed the parties to file
any proposed redactions by May 17, 2022. The opinion issued today incorporates the proposed
redactions received. Redacted material is represented by bracketed ellipses “[. . .].”
Record. The Government also simultaneously filed a Motion to Dismiss for failure to state a claim
upon which relief may be granted. For the reasons discussed below, the Court finds that dismissal
is not warranted and that Elevated is entitled to judgment on the record because the VA should
have disqualified GreenEfficient for improperly submitting multiple quotes in response to the
RFQ.
I. BACKGROUND
A. The Solicitation
On August 31, 2021, the VA issued Request for Quotation No. 36C25621Q1431 (“RFQ”)
for a contractor to perform all “preventative maintenance, repair, renovation, and inspection of
elevators services” at the Michael E. DeBakey VA Medical Center in Houston, Texas. Admin. R.
354, ECF No. 14-1 (hereafter “AR”). 2 Under the terms of the RFQ, the awardee would provide
personnel, equipment, and other resources necessary to operate 49 elevators for a base period of
one year with four one-year options exercisable at the VA’s discretion. AR 318, 354. The
awardee’s duties would include systematic equipment examination, which required cleaning,
lubricating, adjusting, repairing, tensioning, replacing defective parts, and providing emergency
services. AR 356–57. The RFQ required that the awardee install real-time monitoring software
for each of the 49 units. AR 314, 357.
The RFQ also required that certain key personnel perform the services of the contract. AR
364, 367–68. First, the RFQ required a Contract Manager “who shall be responsible for the
performance of the work” and have “full authority to act on all contract matters relating to the
daily operation of the contract.” AR 364; see AR 367. Second, the RFQ required certified Elevator
2
For ease of reference, citations to the Administrative Record refer to the bates-labeled
page numbers rather than the ECF page numbers.
2
Mechanics/Technicians who had completed an apprenticeship program and passed the requisite
Mechanic/Technician Examination to perform the physical maintenance on the units. AR 364,
367. The specific qualifications of these key personnel were described as follows:
The Contract Manager have [sic] a minimum of 5 years of technical experience
managing maintenance and repair of elevator equipment identical or similar to the
vertical transportation equipment, within the past 10 years. The references for the
5 years of technical experience shall include the names, addresses, and telephone
numbers of specific companies and personnel to contact. The Contract Manager
shall be a licensed elevator mechanic from a state with a licensed elevator mechanic
requirement/program within the within the United States of America. . . .
The Elevator Technicians provided must complete an Apprenticeship program and
passed [sic] the Mechanic/Technician Examination approved and certified by the
U.S. Department of Labor. Any apprentices working under this contract must be
actively pursuing certification and working under the supervision of a certified
elevator technician. The Elevator Technician shall be a licensed elevator mechanic
from a state with a licensed elevator mechanic requirement/program within the
United Stated of America.
AR 367–68. The selection, assignment, and management of employees working under the contract
was the exclusive responsibility of the awardee. AR 365. The VA specifically instructed
contractors to submit a copy of the license and resume demonstrating the required technical
experience of the Contract Manager “with their quote.” AR 409.
Along with the key personnel, the contractor itself was required to be “a licensed elevator
mechanic from a state with a licensed elevator mechanic requirement within the United States of
America,” as well as insured and otherwise qualified to perform the requisite services in the state
of Texas. AR 364; see AR 408 (“The contractor shall be a licensed elevator mechanic from a state
with a licensed elevator mechanic requirement/program within the United States of America.”).
Contractors also needed at least five years’ technical experience (within the last 10 years)
successfully providing equivalent elevator maintenance and repair services. Id. The RFQ
instructed contractors to submit a company-level license evidencing their authority to work on
3
elevators in Texas “by the solicitation due date with their quote.” AR 408.
The RFQ further mandated that all contractors “strictly comply” with the quote preparation
instructions outlined in the solicitation “[i]n order to be considered.” AR 407. It noted that
“[f]ailure to furnish quotes that comply with the instructions . . . [by the] due date for submissions
may result in elimination from consideration of award.” Id. Contractors who submitted quotes
“with deviations, price assumptions, or exceptions not in compliance with the solicitation [would]
be determined to be nonresponsive.” Id. The RFQ also limited contractors to only one quote,
mandating that a contractor’s submission of “more than one quote” would result in all quotes being
rejected and the company being deemed “nonresponsive.” Id.
The VA provided that, following evaluation, it would award the contract to the contractor
“whose quotation conforming to the solicitation will be the most advantageous to the Government,
price and other factors considered.” AR 414. The VA planned to review quotes using the
“minimally burdensome” evaluation process outlined in Federal Acquisition Regulation (“FAR”)
§ 13.106-2(b)(3) using three evaluation factors: (1) technical; (2) past performance; and (3) price.
Id. The VA defined “technical” as the extent to which the bidder can meet or exceed the contract
requirements based on the information requested in the RFQ instructions. Id. The VA defined
“past performance” as the contractor’s likelihood of success in fulfilling the contract requirements
as indicated by its past performance history. AR 415. On price, the VA would evaluate the total
of all line-item prices including all options. Id. The VA specifically advised contractors that it
was “not requesting or accepting alternate quotations.” AR 414.
After issuing the RFQ, the VA responded to several questions by prospective contractors.
AR 314. The VA incorporated its responses to these questions into the RFQ by issuing
Amendment 0001. AR 312. In response to questions about the licensing requirement for Contract
4
Managers and Elevator Technicians, the VA stated that companies could provide proof of
International Union of Elevator Constructors (“IUEC”) membership in lieu of a state-issued
elevator mechanics’ license because “IUEC is the standard for the industry.” AR 316. In response
to a question about the qualifications of the Contract Manager, the VA stated that one of the on-site
mechanics could fill this role as long as he or she had the requisite authority and certifications. Id.
B. The Award
Six companies submitted quotes in response to the RFQ. AR 901–02. The VA
immediately disqualified three submissions as either facially noncompliant or untimely. Id.
Elevated, GreenEfficient, and JohnsonDanforth & Associates remained as the only responsive
contractors. AR 902. GreenEfficient is the incumbent contractor at the DeBakey Medical Center.
AR 528. Elevated is a Michigan corporation with 33 years of experience in the elevator
maintenance industry, including servicing elevators at other VA facilities in Texas. AR 55.
On September 27, 2021, the VA awarded the contract to GreenEfficient for $4,661,302.31.
AR 916. This was more than the price quoted by Elevated. AR 497. Elevated subsequently
requested a debriefing on the award decision. AR 919. Because the RFQ was issued under the
FAR’s simplified acquisition procedures, the VA provided a brief explanation instead, explaining
that it disqualified Elevated from contention for the award because it “did not demonstrate a
contractor’s elevator mechanic license for a state with a licensed elevator mechanic
requirement/program within the United States . . . .” AR 923. Instead of providing a
company-level elevator mechanic license, Elevated submitted a filing endorsement related to its
general Michigan business license. AR 448–49. Elevated’s quote cited a provision from the Public
Buildings Act, asserting that, “[b]y this law, our license is sufficient to allow us to perform the
work under this contract in the State of Texas.” Id. Having determined that Elevated’s quote was
5
technically unacceptable, and that GreenEfficient provided the only technically acceptable quote
in response to the RFQ, the VA finalized a contract with GreenEfficient. AR 902, 924.
C. Procedural History
On October 7, 2021, Elevated protested the VA’s decision with the Government
Accountability Office (“GAO”). AR 1213. 3 This triggered an automatic performance suspension,
which resulted in the VA entering into a bridge contract with GreenEfficient to ensure
uninterrupted service at the facility. AR 1235. The VA subsequently moved to dismiss Elevated’s
protest. AR 1233. After nearly 100 days without receiving a ruling on the motion, Elevated
withdrew its protest at the GAO to proceed with an action in the Court of Federal Claims. AR
1431.
On January 4, 2022, Elevated filed its Complaint. See Pl.’s Compl., ECF No. 1. On
February 1, 2022, Elevated filed a First Amended Complaint, as well as its Motion for Judgment
on the Administrative Record. See Pl.’s Am. Compl., ECF No. 17; Pl.’s Mot. for J. on Admin. R.,
ECF No. 16. First, Elevated argues that the award to GreenEfficient should be set aside because
the VA should have disqualified GreenEfficient’s quote for failing to comply with the terms of the
RFQ. Pl.’s Mem. In Support of Mot. for J. on Admin. R., ECF No. 16-1. Specifically, Elevated
contends that GreenEfficient did not provide the requisite license for the Contract Manager it
identified in its quote and, contrary to the terms of the RFQ, submitted multiple quotes. Id. at 1–
2. Even if those deficiencies were not disqualifying, it claims that the VA should have rejected
GreenEfficient’s quote because GreenEfficient [. . .]. Id. at 2. Second, Elevated argues that the
3
Elevated simultaneously filed a still-pending suit with the Small Business
Administration’s Office of Hearings and Appeals (“OHA”), challenging GreenEfficient’s status
as a service-disabled veteran-owned small business (“SDVOSB”). AR 1035. Elevated contends
GreenEfficient was not eligible for SDVOSB status at the time of its quote because [. . .]. AR
1040.
6
VA should not have disqualified its quote for failing to provide a company-level elevator mechanic
license. Id. According to Elevated, the RFQ did not require such license and, if it did, the RFQ
contained a latent ambiguity that should be construed against the VA. Id.
On February 15, 2022, the Government filed a combined Motion to Dismiss and
Cross-Motion for Judgment on the Administrative Record. See Govt.’s Cross Mot. for J. on
Admin. R., ECF No. 19. On the same day, GreenEfficient filed its Cross-Motion for Judgment on
the Administrative Record. See Def.-Intervenor’s Cross Mot. for J. on Admin R., ECF No. 20.
The cross-motions raise threshold issues, including whether Elevated’s claims are barred by the
doctrine of laches and whether the Amended Complaint should be dismissed pursuant to Rule
12(b)(6) of the Rules of the United States Court of Federal Claims (“RCFC”) for failing to plead
facts supporting Elevated’s request for permanent injunctive relief. See ECF No. 19 at 18; Def.-
Intervenor’s Mem. In Opp’n to Pl.’s Mot. & In Support of Cross Mot. at 9, ECF No. 20-1. On the
merits, the Government and GreenEfficient contend that Elevated’s contract manager claim is a
matter of contract administration beyond the Court’s bid protest jurisdiction because the RFQ did
not require contractors to designate a Contract Manager at the time they submitted their quotes.
See ECF No. 19 at 28; ECF No. 20-1 at 12. They further contend that GreenEfficient merely
submitted multiple prices in a single quote (not multiple quotes) and that its experience and past
performance were sufficient, pointing to its history as the incumbent contractor. See ECF No. 19
at 29–33; ECF No. 20-1 at 12–17. Lastly, they argue Elevated was properly disqualified because
the plain language of the RFQ required a company-level elevator mechanic license. See ECF No.
19 at 20–25; ECF No. 20-1 at 17–21.
The parties’ motions are now fully briefed. See Pl.’s Reply, ECF No. 23; Def.-Intervenor’s
Reply, ECF No. 26; Govt.’s Reply, ECF No. 27. The Court held argument on March 11, 2022.
7
II. LEGAL STANDARDS
A. Rule 12(b)(6) Motion
Dismissal under RCFC 12(b)(6) for failure to state a claim upon which relief may be
granted “is appropriate when the facts asserted by the claimant do not entitle [it] to a legal remedy.”
Lindsay v. United States, 295 F.3d 1252, 1257 (Fed. Cir. 2002). To survive dismissal, a complaint
must allege facts “plausibly suggesting” the claimant is entitled to relief. Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 557 (2007); see Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“The
plausibility standard . . . asks for more than a sheer possibility that a defendant has acted
unlawfully.”). When reviewing a Rule 12(b)(6) motion, the court “assume[s] all well-pled factual
allegations are true” and makes “all reasonable inferences in favor of the nonmovant.” United
Pac. Ins. Co. v. United States, 464 F.3d 1325, 1327–28 (Fed. Cir. 2006). However, “[t]hreadbare
recitals of the elements of a cause of action, supported by mere conclusory statements, do not
suffice” to shield a complaint from dismissal. Iqbal, 556 U.S. at 678. A court is likewise “not
bound to accept as true a legal conclusion couched as a factual allegation.” Acceptance Ins. Co.
v. United States, 583 F.3d 849, 853 (Fed. Cir. 2009) (internal quotation marks and citation
omitted).
B. Motion for Judgment on the Administrative Record
RCFC 52.1(c) governs motions for judgment on the administrative record. Such motions
are “properly understood as . . . an expedited trial on the record.” Bannum, Inc. v. United States,
404 F.3d 1346, 1356 (Fed. Cir. 2005). In contrast to the standard for summary judgment, “the
standard for judgment on the administrative record is narrower” and involves determining, “given
all the disputed and undisputed facts in the administrative record, whether the plaintiff has met the
8
burden of proof to show that the [challenged action or] decision was not in accordance with the
law.” Martinez v. United States, 77 Fed. Cl. 318, 324 (2007) (citing Bannum, 404 F.3d at 1357).
Therefore, a genuine issue of disputed fact does not prevent the Court from granting a motion for
judgment on the administrative record. See Bannum, 404 F.3d at 1357.
C. Bid Protest Standard of Review
The Tucker Act, as amended by the Administrative Dispute Resolution Act of 1996
(“ADRA”), provides the Court of Federal Claims with “jurisdiction to render judgment on an
action by an interested party objecting to . . . the award of a contract or any alleged violation of
statute or regulation in connection with a procurement . . . .” 28 U.S.C. § 1491(b)(1). In such
actions, the Court “review[s] the agency’s decision pursuant to the standards set forth in section
706” of the Administrative Procedure Act (“APA”). 28 U.S.C. § 1491(b)(4); see Banknote Corp.
of Am., Inc. v. United States, 365 F.3d 1345, 1350 (Fed. Cir. 2004). Accordingly, the Court
examines whether an agency’s action was “arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A); see Impresa Construzioni Geom.
Domenico Garufi v. United States, 238 F.3d 1324, 1332 n.5 (Fed. Cir. 2001). Under such review,
an “award may be set aside if either: (1) the procurement official’s decision lacked a rational basis;
or (2) the procurement procedure involved a violation of regulation or procedure.” Impresa, 238
F.3d at 1332 n.5. To prevail in a bid protest, “a protestor must show a significant, prejudicial error
in the procurement process.” WellPoint Mil. Care Corp. v. United States, 953 F.3d 1373, 1377
(Fed. Cir. 2020) (quoting Alfa Laval Separation, Inc. v. United States, 175 F.3d 1365, 1367 (Fed.
Cir. 1999)). A protestor establishes prejudice by showing “that there was a substantial chance it
would have received the contract award but for that error.” Alfa Laval, 175 F.3d at 1367 (quoting
Statistica, Inc. v. Christopher, 102 F.3d 1577, 1582 (Fed. Cir. 1996)).
9
In reviewing an agency’s procurement decisions, the Court does not substitute its judgment
for that of the agency. See Redland Genstar, Inc. v. United States, 39 Fed. Cl. 220, 231 (1997);
Cincom Sys., Inc. v. United States, 37 Fed. Cl. 663, 672 (1997); see also M.W. Kellogg Co. v.
United States, 10 Cl. Ct. 17, 23 (1986) (holding that “deference must be afforded to an agency’s
. . . procurement decisions if they have a rational basis and do not violate applicable law or
regulations.”). The disappointed bidder “bears a heavy burden,” and the contracting officer is
“entitled to exercise discretion upon a broad range of issues.” Impresa, 238 F.3d at 1332 (citations
and internal quotation marks omitted). This burden “is not met by reliance on [the] pleadings
alone, or by conclusory allegations and generalities.” Bromley Contracting Co. v. United States,
15 Cl. Ct. 100, 105 (1988); see Campbell v. United States, 2 Cl. Ct. 247, 249 (1983). A
procurement decision is rational if “the contracting agency provided a coherent and reasonable
explanation of its exercise of discretion.” Impresa, 238 F.3d at 1333. “[T]hat explanation need
not be extensive.” Bannum, Inc. v. United States, 91 Fed. Cl. 160, 172 (2009) (citing Camp v.
Pitts, 411 U.S. 138, 142–43 (1973)).
III. DISCUSSION
Although the parties’ motions raise myriad issues, this case is properly resolved on
narrower grounds. First, the doctrine of laches does not bar Elevated’s claims because Elevated
promptly pursued an administrative remedy at the GAO and then an action in this Court, nor should
its claim be dismissed under RCFC 12(b)(6). Second, Elevated is entitled to judgment on the
record because GreenEfficient submitted more than one quote in violation of the RFQ’s mandatory
language. Per the RFQ, the consequence of providing multiple quotes was that all quotes by the
contractor would be rejected. Had the VA properly disqualified GreenEfficient it would have been
required to reprocure the elevator maintenance services, as there would have been no technically
10
acceptable quote in response to the RFQ. Because Elevated would have had another chance to
compete, regardless of whether it was properly disqualified initially, it was prejudiced by the VA’s
error and is entitled to injunctive relief.
A. Elevated’s Claim Should Not Be Dismissed for Failure to State a Claim.
As a preliminary matter, the Government and GreenEfficient contend that the instant case
should be dismissed under RCFC 12(b)(6) for failure to state a claim because Elevated did not
affirmatively plead in its Amended Complaint or argue in its opening brief the elements of a
permanent injunction. See ECF No. 19 at 18; ECF No. 20-1 at 7. Elevated responds that while it
did not “draft a treatise” on the matter, such positions amount to “unnecessary formalism” because
the requested relief flows naturally from the facts and legal arguments in its briefing. ECF No. 23
at 8, 10. It advocates for addressing whether an injunction is warranted after engaging with the
merits of the claims. Id.A court may award in a bid protest action “any relief that the court considers proper,
including declaratory and injunctive relief.” 28 U.S.C. § 1491(b)(2). The Government is correct
that such relief is not automatic. See PGBA, LLC v. United States, 389 F.3d 1219, 1226 (Fed. Cir.
2004); id. at 1227 (“[T]here is no evidence that Congress intended to abolish the tradition of
equitable discretion in issuing injunctive relief when it enacted section 1491(b)(4) in ADRA . . .
.”). Rather, the protestor must demonstrate that injunctive relief is warranted through application
of the well-established four factor test. Id. at 1228–29 (listing the factors: success on the merits,
irreparable harm, balance of harms, and public interest).
The Government and GreenEfficient have not shown, however, that dismissal of an
action—as opposed to a simple denial of the requested injunction—is appropriate where a plaintiff
has not made such showing. As Elevated notes, the purpose of a Rule 12(b)(6) motion to dismiss
11
is to “‘test[] the sufficiency of a complaint.’” ECF No. 23 at 6 (quoting Bilfinger Berger AG Sede
Secondaria Italiana v. United States, 97 Fed. Cl. 96, 135 (2010)). A court must dismiss where the
complaint does not plead facts sufficient for “the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S.
at 556). But whether the plaintiff has sufficiently alleged a cause of action upon which relief may
be granted seems to present a separate question from whether it has ultimately shown entitlement
to the particular form of relief it seeks—here, an exercise of the Court’s equitable powers to enjoin
a contract award.
Cubic Defense Systems, Inc. v. United States, 45 Fed. Cl. 450, 474 (1999), on which the
Government and GreenEfficient rely, does not hold otherwise. Cubic Defense dealt with a wholly
deficient bid protest claim that the court dismissed on the merits—not under RCFC 12(b)(6). 45
Fed. Cl. at 475. Although acknowledging the protestor’s failure to make a case for injunctive
relief, the court dismissed the case because it found no error in the challenged procurement or
resulting prejudice to the protestor. Id. at 473. The court referenced the protestor’s deficient
“papers” and “bare assertions” in the complaint in the final section of the opinion only as additional
support for its conclusion. Id. at 474.
Here, it is undisputed that Elevated’s Amended Complaint sufficiently pled facts stating a
bid protest claim upon which relief may be granted and included a request for injunctive relief.
Unlike in Cubic Defense, where the claim was otherwise meritless, Elevated’s claim should not be
dismissed out of hand before analyzing the merits. The Court agrees that in the context of bid
protests (which are typically expedited proceedings) protestors are ordinarily expected to attempt
to make an affirmative showing on the permanent injunction factors in their opening dispositive
brief, unless otherwise directed by the court. See ECF No. 19 at 19. Although Elevated formally
12
included such argument for the first time in its combined opposition and reply, the Court does not
believe the Government or GreenEfficient have been unfairly prejudiced as the briefing schedule
permitted both parties a subsequent reply, in addition to oral argument. See Novosteel SA v. United
States, 284 F.3d 1261, 1274 (Fed. Cir. 2002) (holding that fairness and procedure require that new
arguments raised on reply are waived because “the non-moving party ordinarily has no right to
respond to the reply brief”).
As such, the Amended Complaint should not be dismissed for failure to state a claim under
RCFC 12(b)(6).
B. The Doctrine of Laches Does Not Bar Elevated’s Suit Because Elevated Timely
Pursued Relief at the GAO.
GreenEfficient also raises the doctrine of laches as a threshold bar to Elevated’s protest. It
contends that Elevated’s claims are untimely because it waited nearly three months after learning
of the award decision before filing this action. See ECF No. 20-1 at 9. According to
GreenEfficient, Elevated’s choice to first file a protest with the GAO and then withdraw it before
the GAO issued a decision amounts to “forum-shopping” that caused material prejudice because
the GAO protest triggered an automatic performance suspension of the contract. Id. at 10.
Elevated responds that it should not be punished for pursuing its statutory right to seek relief before
the GAO. See ECF No. 23 at 13. It explains that it only withdrew its GAO protest before a
decision because the lack of a ruling near the 100-day decision deadline indicated to it that the
petition would be dismissed. Id. at 16.
The doctrine of laches “bars a claim when a plaintiff’s neglect or delay in bringing suit to
remedy an alleged wrong, which taken together with lapse of time and other circumstances, causes
prejudice to the adverse party.” Nat’l Telecommuting Inst., Inc. v. United States, 123 Fed. Cl. 595,
602 (2015) (citations omitted). Laches requires a showing of: (1) unreasonable and unexcused
13
delay by the claimant; and (2) prejudice to the other party. JANA, Inc. v. United States, 936 F.2d
1265, 1269–70 (Fed. Cir. 1991). The defendant bears the burden of proving the elements of the
defense. See Nat’l Telecommuting, 123 Fed. Cl. at 602. The Federal Circuit has recognized laches
as an available defense in the bid protest context. See Blue & Gold Fleet, L.P. v. United States,
492 F.3d 1308, 1314–15 (Fed. Cir. 2007) (collecting cases that noted the use of laches in bid
protests); Software Testing Sols., Inc. v. United States, 58 Fed. Cl. 533, 535–36 (2003) (stating that
delay may be “considered in the multi-factored analysis of whether injunctive relief is warranted”
or in “the application of equitable doctrines such as laches”).
There is no defined length of time for purposes of determining whether laches will apply.
Instead, such challenges require a fact-specific inquiry into the reasonableness of the delay and the
prejudice to the opposing party. See, e.g., Glob. Comput. Enters., Inc. v. United States, 88 Fed.
Cl. 350, 423 (2009) (rejecting laches where the claimant waited 31 days after its GAO protest to
review the record before bringing suit), modified on recons., 88 Fed. Cl. 466 (2009); Software
Testing Sols., 58 Fed. Cl. at 536 (applying laches where the claimant waited several months to
weigh the cost of litigation when it knew the contract at issue would quickly be performed); Reilly
v. United States, 104 Fed. Cl. 69, 78 (2012) (applying laches where the claimant waited nine
months to file its protest despite the urgent needs of the contract).
In this case, the facts and circumstances do not support application of laches to bar
Elevated’s protest. Based on the record of events, there is no indication that Elevated delayed in
bringing its claims either before the GAO or this Court. Elevated first learned of the VA’s award
decision and requested a formal debrief from the Contracting Officer (“CO”) on September 27,
2021. AR 919. On October 1, 2021—four days later—Elevated communicated to the CO that it
intended to file a protest. AR 1030. On October 7, 2021—ten days after learning of the award
14
decision—Elevated filed its protest with the GAO. AR 1214. On January 4, 2022, Elevated filed
this protest simultaneously to withdrawing its GAO protest. See ECF No. 16-1 at 13 n.3.
That Elevated brought a GAO protest nearly immediately after learning of the award
decision and filed suit in this Court immediately upon withdrawing its GAO protest distinguishes
this case from other protests where courts applied laches. In Software Testing Solutions and Reilly,
the claimants engaged in months of delay for strategic purposes while hindering time-sensitive
contracts. See Software Testing Sols., 58 Fed. Cl. at 536; Reilly, 104 Fed. Cl. at 78. Here, Elevated
pursued relief within a matter of days. Although GreenEfficient faults Elevated for not waiting
for the GAO’s ruling before filing this action, Elevated’s decision to withdraw its GAO protest
quickened the pace of litigation to some degree. Nor has GreenEfficient provided any factual
support for its insinuation that Elevated engaged in strategic “forum-shopping” designed to take
advantage of the administrative system. 4 ECF No. 20-1 at 10. While Elevated could have sued in
the Court immediately after learning of the award decision, it had no obligation to waive its
statutory right to a GAO protest. The fact of the matter is that the law provided Elevated two
forums in which to press its protest.
Even if GreenEfficient could demonstrate that Elevated exhibited inexcusable delay in
bringing its claim, there is no evidence that this delay caused GreenEfficient the type of prejudice
4
The Court is not unsympathetic to GreenEfficient’s concerns on this point. Why Elevated
was unwilling to wait less than two weeks to see if the GAO issued a ruling by the statutory
deadline is puzzling, and its decision to withdraw the protest did deprive the parties of the GAO’s
opinion on the issues raised in the summary dismissal motion (even though Elevated reaped the
benefit of the automatic stay in the interim). That being said, GreenEfficient has not identified
any cases in which a protestor who promptly pursued his claim in one available forum, albeit not
to resolution, was barred by the doctrine of laches from promptly seeking relief in a second
available forum. If there were evidence that Elevated engaged in this litigation strategy in bad
faith, perhaps the conclusion would be different, but GreenEfficient’s allegations do not rise to
such level.
15
justifying application of laches. As the incumbent contractor, GreenEfficient continues to perform
elevator maintenance at the DeBakey Medical Center under a bridge contract while this case is
being litigated. See ECF No. 17 at 3. Uncertainty about the fate of the awarded contract may
temporarily complicate GreenEfficient’s long-term business planning, but Elevated correctly notes
that this is a consequence attendant to many bid protests. See ECF No. 23 at 15. There is no
explanation for why maintaining the status quo has significantly prejudiced GreenEfficient (or the
Government), either economically or in defending against this protest. As such, the doctrine of
laches does not bar Elevated’s Amended Complaint.
C. The VA Acted Arbitrarily and Capriciously in Awarding the Contract to
GreenEfficient Because GreenEfficient Improperly Submitted Multiple Quotes.
Turning to the merits, Elevated claims that GreenEfficient’s submission contained several
fundamental errors that should have disqualified it from the award. Among these errors, Elevated
argues that GreenEfficient impermissibly submitted multiple quotes. See No. 16-1 at 19. It
contends that the RFQ “plainly advised offerors” that submitting multiple quotes would result in
a company being deemed nonresponsive and having all quotes rejected. Id. The Government and
GreenEfficient disagree that GreenEfficient submitted multiple quotes. They argue that
GreenEfficient submitted a single response to the RFQ containing alternative prices, which did not
require disqualification. See ECF No. 19 at 30; ECF No. 20-1 at 13. This issue turns on whether
GreenEfficient’s self-titled “alternate bids,” AR 813–14, were “quotes” or “prices” (the former
being barred by the RFQ) and, if they were “quotes,” whether the VA was required to disqualify
GreenEfficient as nonresponsive.
It is undisputed that an agency “may only accept an offer that conforms to the material
terms of the solicitation.” Furniture by Thurston v. United States, 103 Fed. Cl. 505, 518 (2012).
This is no less true in a procurement using the simplified acquisition procedures of FAR Part 13.
16
See FAR 13.106-2(a)(2) (“Quotations or offers shall be evaluated on the basis established in the
solicitation.”). A response that fails to conform to the material terms of a solicitation “should be
considered unacceptable” because “a contract award based on such a proposal violates the
procurement statutes and regulations.” Allied Tech. Grp., Inc. v. United States, 649 F.3d 1320,
1329 (Fed. Cir. 2011) (quoting E.W. Bliss Co. v. United States, 77 F.3d 445, 448 (Fed. Cir. 1996));
ITT Fed. Servs. Corp. v. United States, 45 Fed. Cl. 174, 194 (1999) (“Generally, the case law
provides that a contract award may not be upheld when the [agency] improperly departs from
stated evaluation criteria in a solicitation.”).
When interpreting the terms of a solicitation, the principles governing contract
interpretation apply with equal force. Grumman Data Sys. Corp. v. Dalton, 88 F.3d 990, 997–98
(Fed Cir. 1996). Courts “begin[] with the language of the written agreement.” Coast Fed. Bank,
FSB v. United States, 323 F.3d 1035, 1038 (Fed. Cir. 2003) (citing Foley Co. v. United States, 11
F.3d 1032, 1034 (Fed. Cir. 1993)). If the “provisions are clear and unambiguous, they must be
given their plain and ordinary meaning.” McAbee Constr., Inc. v. United States, 97 F.3d 1431,
1435 (Fed. Cir. 1996) (quoting Alaska Lumber & Pulp Co. v. Madigan, 2 F.3d 389, 392 (Fed. Cir.
1993)). In determining the meaning of its terms, a solicitation must be construed as a whole and
“in a manner that gives meaning to all of its provisions and makes sense.” Id. (citing Hughes
Commc’ns Galaxy, Inc. v. United States, 998 F.2d 953, 958 (Fed. Cir. 1993)).
If a solicitation uses mandatory language, “[t]he dispositive issue is not whether [the
offeror’s] proposal was reasonable, but whether it complied with the mandatory requirements of
the solicitation.” Beta Analytics Int’l, Inc. v. United States, 44 Fed. Cl. 131, 139 (1999). This is
because waiver of a mandatory requirement of a solicitation “for the benefit of only one offeror
invalidates a procurement decision.” L-3 Commc’ns EOTech., Inc. v. United States, 83 Fed. Cl.
17643, 653 (2008). Words such as “shall” and “must” denote the imperative, whereas “should” or
“may” denote advisory or non-mandatory terms. See FAR 2.101; New England Tank Indus. of
N.H. v. United States, 861 F.2d 685, 694 (Fed. Cir. 1989). However, if a noncomplying defect is
“trivial or a mere formality” (i.e., not material), “the bid is not required to be rejected out of hand.”
M.W. Kellogg, 10 Cl. Ct. at 26; see E.W. Bliss, 77 F.3d at 449.
The RFQ in this case is not exactly a model of clarity in all respects. It does, however,
contain several unambiguous provisions limiting the number of quotes a contractor could submit
in response to the RFQ. It plainly mandated that if a contractor “submits more than one quote[,]
all quotes will be rejected, and the company will be considered nonresponsive.” AR 407. It also
expressly stated that the agency was “not requesting or accepting alternate quotations,” AR 414,
and provided that quotes which “do not include all information” in accordance with the instructions
“will be considered unacceptable and the company will be deemed nonresponsive,” AR 407. The
VA underscored these provisions by deleting FAR 52.212-1(e), which typically encourages
bidders “to submit multiple offers presenting alternative terms and conditions, including
alternative line items . . . or alternative commercial items for satisfying the requirements of the
solicitation.” AR 406. Elevated highlights these provisions, in conjunction with the general
solicitation requirement that “quoters must strictly comply with all instructions outlined in [the
RFQ]” “[i]n order for a quote to be considered,” AR 407, as evidence that GreenEfficient should
have been disqualified for submitting multiple quotes. See ECF No. 16-1 at 15.
Since the text of the RFQ included mandatory language requiring the VA to reject all
quotes of a contractor that submitted more than one quote, the first step in the Court’s analysis is
determining whether GreenEfficient’s pricing options constituted additional quotes. The FAR
proves a useful starting point on this issue. It defines “quotations” (or quotes) as “responses to
18
requests for quotations” under the FAR’s simplified acquisition procedures. FAR 2.101. Based
on this definition, GreenEfficient argues that “only one submission was permitted, but anything
else within the submission was fine.” ECF No. 20-1 at 14. As it concedes, “[h]ad GreenEfficient
submitted three separate submissions, then the Agency would have been bound to reject all three.”
Id.The evidence in the record demonstrates that GreenEfficient submitted three separate
quotes. Although GreenEfficient sent only one email response to the VA, it attached—in its own
words—“3 separate bids in 3 separate PDFs,” including a base bid and two alternate bids. AR
813–14. Beyond being self-contained in different PDFs, [. . .]. AR 813–14. Only GreenEfficient’s
“base bid” provided real-time monitoring for all units, as was required by the RFQ, for a price of
$4,661,307.68. Id.; see AR 314 (clarifying that “the contractor must provide [real-time monitoring
software] for each unit”); AR 751–57 (requesting contractors to “confirm [their] quoted price
includes real time monitoring for all 49 units” and clarifying that “[r]eal time monitoring is not
just restricted” to certain housing units and buildings). [. . .]. AR 813–14. These alternates did
not simply provide different prices for different ways of accomplishing the work under the contract
within the parameters of the RFQ’s Performance Work Statement (“PWS”), as the Government
argues is generally acceptable. See ECF No. 19 at 30. Rather, the additional bids offered the VA
a choice between different levels of service that did not conform to the solicitation. Construing
GreenEfficient’s submission as merely “multiple pricing structures,” ECF No. 20-1 at 13, does not
square with the RFQ’s unambiguous instructions directing contractors not to submit multiple
quotes, alternate quotes, or quotes that failed to comply with the RFQ. 5 When read as a whole,
5
For this reason, the Court finds GreenEfficient’s interpretation of the term “multiple
quotes” unreasonable, see ECF No. 20-1 at 13–14, considering both the plain language of the RFQ
and the substance of GreenEfficient’s submission in response to the RFQ. Indeed, cutting against
19
the RFQ required the VA to disqualify GreenEfficient from the award because of this error.
The Government argues that even if GreenEfficient submitted more than one quote, the
provision prohibiting this practice “is designed to benefit the Government and can be exercised at
its discretion.” ECF No. 19 at 29–30. According to Defendants, the provision did not necessarily
prohibit the VA from accepting alternate bids, so long as it did not prejudice other offerors, and
no prejudice resulted because the VA selected GreenEfficient’s base bid. Id. at 30 (citing Grp.
Seven Assocs., LLC v. United States, 68 Fed. Cl. 28 (2005)). The Government accurately describes
the general rule, but the RFQ in this case contained an express provision mandating that the VA
disqualify contractors who submitted multiple offers. AR 407 (if a contractor “submits more than
one quote[,] all quotes will be rejected, and the company will be considered nonresponsive”); see
AR 414 (“The Government is not requesting or accepting alternate quotations.”). This eliminated
the VA’s typical flexibility and required it to uniformly disqualify contractors for noncompliance
regardless of whether the alternate quotes were evaluated or selected. Because quotes must be
evaluated on the basis established in the RFQ, which in this case was that all quotes must be
rejected if a contractor submits more than one, the Court finds that the “alternate bids” submitted
by GreenEfficient required the VA to disqualify it for the award.
That the RFQ contained such mandatory language distinguishes this case from Group
Seven Associates on which the Government relies. See ECF No. 19 at 30. In that case, the court
considered whether an awardee should have been disqualified for including three alternate staffing
plans within its response to a request for proposals. Grp. Seven Assocs., 68 Fed. Cl. at 29. The
solicitation provided that an offeror’s “initial proposal should contain the offeror’s best terms from
GreenEfficient’s argument is the fact that every other quoter responded to the RFQ with one
submission containing one proposal to meet the requirements of the PWS at one price.
20
a cost or price and technical standpoint.” Id. at 32. Between this provision and the agency’s
decision to delete FAR 52.212-1(e) (multiple offers), the protestor argued that the awardee’s
submission of more than one proposal was improper. Id. In rejecting the protester’s argument,
the court explained the general rule that non-conforming alternate bids may not be accepted, id. at
32–33, but that “[m]ultiple bids that are consistent with the solicitation’s terms are acceptable” and
may be considered (even if some of the alternatives are non-conforming), id. at 33 & n.9 (citing
Saxon Export, 93–2 Comp. Gen. ¶ 130, 1993 WL 342242 (1993)). The court held that each of the
awardee’s multiple proposals conformed to the solicitation’s requirements (and contained the
awardee’s best price) and thus the agency was free to choose any one of them. Id. at 33. The court
further held that while the agency deleted FAR 52.212-1(e) from the solicitation, that omission
meant only that “the agency was not encouraging multiple offers. It [did] not preclude them.” Id.
at 33 n.8.
As explained above, however, the RFQ in this case is distinct from the solicitation in Group
Seven because it contains express language prohibiting multiple quotes and requiring the VA to
disqualify contractors who submitted multiple quotes. AR 407. Contrary to the Government’s
argument, it does not matter that the VA awarded the contract to GreenEfficient on its “base bid,”
which was conforming. See ECF No. 19 at 30. That GreenEfficient submitted “3 separate bids”
was enough to make it nonresponsive according to the terms of the RFQ. AR 813; see AR 407.
The Court appreciates the fact that the request for quotations process in a FAR Part 13 procurement
is designed to be flexible and that a quote (unlike an offer in response to a solicitation) is not
“accepted” by the Government and does not bind the parties. See ECF No. 27 at 12; see also ECF
No. 20-1 at 13. But where a contracting agency chooses to cabin its own flexibility through clearly
stated, mandatory language in an RFQ, the agency is duty bound to adhere to those terms and
21
conditions. 6 See PricewaterhouseCoopers Pub. Sector, LLP v. United States, 126 Fed. Cl. 328,
355 (2016).
The VA’s error in awarding GreenEfficient the contract despite it submitting multiple
quotes was prejudicial to Elevated. Had the VA disqualified GreenEfficient, there would have
been no technically acceptable quote in response to the RFQ. The VA would then have had to
reconduct the procurement, thereby giving Elevated another opportunity to submit a quote. See
VAS Realty, LLC v. United States, 26 F.4th 945, 950 (Fed. Cir. 2022). Accordingly, Elevated has
satisfied the prejudice requirement. See id.; see also Straughan Evtl., Inc. v. United States, 135
Fed. Cl. 360, 374 (2016).
The Government contends that even if the VA mistakenly accepted multiple quotes from
GreenEfficient, Elevated can be accused of the same because it submitted an updated price six
days after the RFQ due date. See ECF No. 19 at 30–31 (citing AR 749–50). It argues that a bidder
cannot establish prejudice if it “benefited from the same potentially unlawful discretion from
which the awardee benefitted.” Id. at 31 (quoting G4S Secure Integration, LLC v. United States,
No. 21-1817C, 2022 WL 211023, at *8 (Fed. Cl. Jan. 24, 2022)). Although a correct statement
of the law, this argument fails because submitting an updated price is not the same as submitting
multiple quotes. On September 16, 2021, Elevated emailed the CO with an “updated quote”
correcting an error that arose from it misreading a term of the RFQ. AR 750. Later that day, the
CO confirmed that he received Elevated’s “price clarification.” AR 749. Elevated’s update did
6
It does not seem unusual for a contracting agency to self-impose such restriction. As the
secondary source cited by the Government explains, additional evaluation time caused by multiple
offers can be unduly burdensome on an agency, including the complications and delay of
evaluating “separate price offers.” John Cibinic, Jr. & Ralph C. Nash, Jr., FORMATION OF
GOVERNMENT CONTRACTS 782 (3d ed. 1998). “Thus, agencies may seek to preclude multiple
offers by including a provision in the solicitation prohibiting more than one offer.” Id. at 782–83.
22
not alter the proposed services to be provided, nor did it seek to submit an alternate quote for the
VA to additionally consider. Id. Of course, it would have been within the VA’s power to reject
Elevated’s price clarification as late. See AR 404 (“Any offer, modification, revision, or
withdrawal of an offer received . . . after the exact time specified for receipt of offers is ‘late’ and
will not be considered” unless certain conditions apply.). However, accepting the correction did
not implicate the same “no more than one quote” provision that GreenEfficient violated. As such,
Elevated did not equally benefit from the VA’s error in accepting multiple quotes.
Accordingly, Elevated has demonstrated that the VA acted arbitrarily and capriciously by
awarding the contract to GreenEfficient despite the fact that it submitted multiple quotes, contrary
to the terms of the RFQ, and that such error prejudiced Elevated. 7
D. Elevated is Entitled to a Permanent Injunction for the VA’s Failure to Disqualify
GreenEfficient.
Having determined that the VA acted arbitrarily and capriciously by failing to disqualify
GreenEfficient for submitting multiple quotes, the Court turns to whether Elevated is entitled to
injunctive relief. Elevated contends that a permanent injunction setting aside the award to
GreenEfficient and ordering the VA to conduct a new procurement is warranted. See ECF No. 23
at 10. The Government responds that Elevated is not entitled to an injunction because it delayed
in pursuing its claim and is unable to meet the technical requirements of the contract based on its
original quote. See ECF No. 27 at 13–14.
In order to obtain a permanent injunction, a protestor must show that: (1) it has succeeded
7
The Court need not address Elevated’s other protest ground—i.e., that the VA erred in
determining that Elevated’s quote was technically unacceptable. Although the Court does not
believe that Elevated met its burden to show that its quote complied with the RFQ’s company-
level license requirement, its protest can be sustained on the basis that GreenEfficient’s quote
should have been disqualified.
23
on the merits; (2) it will suffer irreparable harm if such relief is not granted; (3) the balance of
hardships tips in the protestor’s favor; and (4) an injunction will serve the public interest.
Loomacres, Inc. v. United States, 136 Fed. Cl. 331, 343–44 (2018) (citations omitted). Under this
standard, “[n]o one factor, taken individually, is necessarily dispositive . . . 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). At the very least, however, a protestor must
actually succeed on the merits and demonstrate irreparable harm. CliniComp Int’l, Inc. v. United
States, 134 Fed. Cl. 736, 746 (2017), aff’d, 904 F.3d 1353 (Fed. Cir. 2018); see Amazon.com, Inc.
v. Barnesandnoble.com, Inc., 239 F.3d 1343, 1350 (Fed. Cir. 2001) (holding that a party must
show at least a likelihood of success and irreparable harm to receive preliminary injunctive relief).
To assess irreparable harm, the “relevant inquiry . . . is whether plaintiff has an adequate remedy
in the absence of an injunction.” Magellan Corp. v. United States, 27 Fed. Cl. 446, 447 (1993).
Elevated has already demonstrated that the first factor weighs in favor of permanent
injunctive relief because it actually succeeded of the merits of its claim that GreenEfficient should
have been disqualified from receiving the contract. See Excelsior Ambulance Serv., Inc. v. United
States, 124 Fed. Cl. 581, 594 (2015) (actual success factor demonstrated in protest challenging
award to offeror with technically unacceptable proposal).
The second factor—irreparable harm—likewise favors injunctive relief because without it
Elevated would lose the chance to fairly compete for a lucrative government contract. Id. (“[T]he
‘denial of a fair opportunity to compete and loss of financial benefit from a lawful procurement
process constitute[s] irreparable harm.’” (quoting BCPeabody Constr. Serv., Inc. v. United States,
112 Fed. Cl. 502, 514 (2013))). Moreover, courts have “repeatedly held that the loss of potential
profits from a government contract constitutes irreparable harm.” WaveLink, Inc. v. United States,
24
154 Fed. Cl. 245, 288 (2021) (quoting BINL, Inc. v. United States, 106 Fed. Cl. 26, 49 (2012)).
Although some judges have held that economic injury alone does not rise to the level of irreparable
harm unless extraordinary financial circumstances exist, e.g., OAO Corp. v. United States, 49 Fed.
Cl. 478, 480 (2001), the majority hold that loss of a government contract is sufficient. See Hosp.
Klean of Tex., Inc. v. United States, 65 Fed. Cl. 618, 624 (2005) (“[L]oss of profit, stemming from
a lost opportunity to compete for a contract on a level playing field has been found sufficient to
constitute irreparable harm.”). The Government concedes as much in its briefing. See ECF No.
27 at 14 (“In bid protests, the Court recognizes lost potential profits as irreparable harm.”).
In response, the Government cites Elevated’s lack of urgency in pursuing its claim as
evidence that the harm it would suffer is not significant or irreparable. See id. But as discussed
above, the Court finds that Elevated acted promptly in challenging the procurement decision at the
GAO, and it should not be penalized for exercising its right to an administrative remedy. That its
quote was otherwise rejected for failing to provide the required license, see ECF No. 27 at 13–14,
does not diminish Elevated’s showing on this factor because GreenEfficient’s disqualification
would have required the VA to reopen the solicitation and permit parties to improve upon their
quotes. Elevated represented that it has a Texas Department of Licensing & Regulation elevator
contractor license, see AR 1421, which is compliant with the RFQ, and thus the deficiency of its
quote will not prevent it from competing in a new procurement. The Government’s questioning
of whether Elevated can perform the contract based on the key personnel listed in its quote is
likewise unpersuasive. See ECF No. 27 at 14. The VA did not share those same concerns upon
evaluating Elevated’s quote; instead, it found Elevated met the personnel experience and
certifications requirements. See AR 902.
The balance of hardships likewise tips in favor of enjoining the award. On one hand,
25
Elevated faces the prospect of losing out on fairly competing for the contract even though
GreenEfficient should have been disqualified for submitting multiple quotes. On the other hand,
GreenEfficient faces minimal harm, as the Court has already determined that it should not have
won the contract in the first place. The Government is likewise not harmed as GreenEfficient, the
incumbent contractor, is performing the elevator maintenance services in the interim pursuant to a
bridge contract. See ECF No. 17 at 3. Thus, requiring the VA to conduct a new procurement will
not create any disruption or pose a risk to the safe operation of elevators at the DeBakey Medical
Center. See Excelsior Ambulance Serv., 124 Fed. Cl. at 594. An injunction would only compel
the VA to reopen the solicitation and resolicit quotes from the parties, essentially resetting the
procurement to give all parties a fair chance to compete. See Turner Constr. Co. v. United States,
645 F.3d 1377, 1388 (Fed. Cir. 2011) (“Injunctive relief is appropriate if it ‘enjoin[s] the illegal
action and return[s] the contract award process to the status quo ante.’” (quoting Parcel 49C Ltd.
P’ship v. United States, 31 F.3d 1147, 1153 (Fed. Cir. 1994))). Although this would delay the
finality of selecting a contractor, any added costs to the Government is “of the agency’s own
making” by selecting an awardee who did not comply with the RFQ. See Sheridan Corp. v. United
States, 94 Fed. Cl. 663, 670 (2010); Green Tech. Grp., LLC v. United States, 147 Fed. Cl. 231,
246 (2020) (“Requiring the government to continue purchasing the services from the incumbent
for the interim does not outweigh the irreparable harm to an offeror arising from an agency’s own
failure to comply with the law in awarding the contract.”). As such, the balance of hardships tips
in favor of Elevated.
Finally, the public interest favors enjoining the award because “[t]here is an overriding
public interest in preserving the integrity of the procurement process . . . .” Hosp. Klean of Tex.,
65 Fed. Cl. at 624. The record reflects that the VA’s decision to award GreenEfficient the contract
26
violated the terms of the RFQ by overlooking a flaw in GreenEfficient’s submission which should
have resulted in disqualification. As is the case here, “honest, open, and fair competition in the
procurement process is compromised whenever an agency abuses its discretion in evaluating a
contractor’s bid.” CW Gov’t Travel, Inc. v. United States, 110 Fed. Cl. 462, 496 (2013).
Accordingly, each of the factors favors enjoining the award. Elevated is entitled to the
injunctive relief that accompanies its success on the merits.
IV. CONCLUSION
For these reasons, Elevated’s Motion for Judgment on the Administrative Record (ECF
No. 16) is GRANTED, the Government’s Motion to Dismiss and Cross-Motion (ECF No. 19) is
DENIED, and GreenEfficient’s Cross-Motion (ECF No. 20) is DENIED. The VA is hereby
enjoined from proceeding with the contract unlawfully awarded to GreenEfficient. The VA shall
either resolicit the procurement through a new RFQ or permit Elevated and GreenEfficient to
submit revised quotes in response to the original RFQ for evaluation in accordance with this
opinion. The Clerk is directed to enter judgment accordingly.
SO ORDERED.
Dated: May 6, 2022 /s/ Kathryn C. Davis
KATHRYN C. DAVIS
Judge
27