Management & Training Corporation v. United States ( 2022 )


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  •            In the United States Court of Federal Claims
    No. 22-560C
    (Filed Under Seal: August 18, 2022)
    (Reissued for Publication: September 1, 2022) *
    ***************************************
    MANAGEMENT & TRAINING                   *
    CORPORATION,                            *
    *
    Plaintiff,            *          Postaward Bid Protest; Operation of a Job
    *          Corps Center; Cross-Motions for Judgment
    v.                                      *          on the Administrative Record; Evaluation of
    *          Proposals; Relevance of Past Performance;
    THE UNITED STATES,                      *          Subcontractor Past Performance; Unequal
    *          Treatment; Price Realism; Professional
    Defendant             *          Employee Compensation, FAR 52.222-46;
    *          Best Value Determination; Permanent
    and                                     *          Injunction
    *
    ODLE MANAGEMENT GROUP, LLC,             *
    *
    Defendant-Intervenor. *
    ***************************************
    Alex P. Hontos, Minneapolis, MN, for plaintiff.
    Bret R. Vallacher, United States Department of Justice, Washington, DC, for defendant.
    John E. McCarthy, Jr., Washington, DC, for defendant-intervenor.
    OPINION AND ORDER
    SWEENEY, Senior Judge
    In this postaward bid protest, plaintiff Management & Training Corporation (“MTC”)
    challenges the award of a contract to operate a Job Corps center by the United States Department
    of Labor (“Department of Labor”) to defendant-intervenor Odle Management Group, LLC
    (“Odle”). Specifically, MTC contends that the Department of Labor improperly evaluated
    proposals in several respects and then made a flawed best value determination. Before the court
    are the parties’ cross-motions for judgment on the administrative record. As explained below,
    *
    This reissued Opinion and Order incorporates the agreed-to redactions proposed by the
    parties on August 31, 2022. The redactions are indicated with bracketed ellipses (“[. . .]”).
    the court grants in part and denies in part each motion and enters a permanent injunction
    requiring the Department of Labor to reevaluate the proposals.
    I. BACKGROUND
    “Job Corps is a national residential training and employment program administered by
    the U.S. Department of Labor to address the multiple barriers to employment faced by
    disadvantaged youth throughout the United States.” Admin. R. (“AR”) 182. It “provides
    comprehensive career development services to students including academic, career technical,
    career success and independent living skills, career readiness training, and support services,” and
    “is intended to prepare youth to obtain and hold gainful employment, pursue further education or
    training, or satisfy entrance requirements for careers in the Armed Forces.” Id.
    A. Solicitation
    On March 11, 2021, the Department of Labor issued a solicitation for proposals to
    operate the Turner Job Corps Center in Albany, Georgia. Id. at 173-74. In particular, it sought a
    contractor to (1) operate the center for a planned on-board strength (“OBS”) of 732 students, id.
    at 176, 184; (2) handle Outreach and Admissions to ensure that a minimum of 660 students
    arrived at the center each year and that the center operated at 100% of its planned OBS, 1 id. at
    176, 184-85; and (3) provide Career Transition Services for all program graduates and former
    program enrollees, id. at 176, 186. 2 Accord id. at 3116 (indicating, in the Source Selection Plan,
    that proposals would “pertain[] to the operation of the Turner Job Corps Center and Outreach &
    Admissions and Career Transition Services”). The contractor would be required to comply with
    the provisions of the Workforce Innovation and Opportunity Act and its implementing
    regulations, as well as with the Department of Labor’s Policy and Requirements Handbook,
    which was incorporated by reference into the contract. Id. at 182.
    1
    The Department of Labor indicated that another contractor––Atlanta Outreach and
    Admissions––was obligated to send 660 students per year to the Turner Job Corps Center. AR
    184. Nevertheless, the Turner Job Corps Center contractor remained responsible for operating
    the center at 100% of its OBS of 732. Id. at 176, 185, 191. Specifically, offerors were advised:
    [T]he requirement to operate the Center at 100% OBS . . . applies independently
    of the annual arrivals requirements . . . and arrivals anticipated from third party
    Outreach and Admissions contractors. The Contractor is required to deliver
    enrollees at higher numbers than specified here if that is necessary to attain and/or
    maintain full capacity (100% OBS) at the Center they are operating.
    Id. at 191; accord id. at 185.
    2
    The Department of Labor also planned to “place service orders for services and
    equipment,” AR 198, under three cost-reimbursement contract line items, id. at 177-80. These
    contract line items are not at issue in this protest.
    -2-
    The Department of Labor intended to award a contract with a base period of two years
    and three one-year option periods. Id. at 177. The center operations contract line item would be
    awarded on a fixed-price-with-a-price-adjustment basis (with downward adjustments for months
    when the OBS was less than 100% of the planned OBS), while the Outreach and Admissions and
    Career Transition Services contract line items would be awarded on a firm-fixed-price basis. Id.
    at 177-80. The contract would also contain line items for phase-in and phase-out, if either were
    necessary, and a 1% management fee. Id. at 177-81.
    1. Proposal Requirements
    In section L of the solicitation, the Department of Labor advised offerors that their
    proposals should include five sections. Id. at 247. The Technical Approach section was to
    address five topics: Career Pathways; Counseling, Placement, and Support; Relationships with
    Community; Safety and Security; and Outreach and Admissions. Id. at 249. Of particular
    importance in this protest is Outreach and Admissions; the Department of Labor provided the
    following instruction for this topic: “Describe your strategies, methods, and relationships that
    you have or will develop to promote a positive image of the program as well as lead to
    enrollment of a sufficient number of enrollees for the Job Corps center to operate at full OBS.”
    Id. at 249-50.
    In the Past Performance section, 3 offerors were to “identify those projects which they
    believe[d were] relevant and should be considered by [the Department of Labor] . . . .” Id. at
    250. The “work under the identified projects [was to be] be similar in size, scope, and
    complexity to the requirements of [the Turner Job Corps Center] solicitation,” with “size”
    defined as “dollar value or center OBS,” “scope” defined as “type of work and the nature of the
    activities performed,” and “complexity” defined as “performance challenges and risks.” Id.
    Offerors were permitted to “identify projects they performed as the prime, as well as projects
    performed by subcontractors that [would] perform major or critical aspects of the requirement.”
    Id. at 251.
    In the Staff Resources section of their proposals, offerors were to supply organizational
    and staffing charts, describe their approach to staffing the center, and address the corporate
    resources that would be devoted to center operations. Id. at 251-52. The proposal section
    devoted to financial matters—the Business Management Proposal—was to include, among other
    information, the offerors’ proposed prices for each contract line item. Id. at 252. It was also to
    include a Professional Staff Compensation Plan and supporting information in accordance with
    Federal Acquisition Regulation (“FAR”) 52.222-46, id., which was (twice) incorporated into the
    solicitation by reference, id. at 222, 244. Finally, the Phase-In and Phase-Out section of the
    offerors’ proposals was to indicate “the period of time required for each action, staff
    requirements, and major steps to be accomplished during these periods.” Id. at 255.
    3
    The Department of Labor formally labels this section, and the associated evaluation
    factor, as “Demonstrated Record of Effectiveness (Past Performance),” but otherwise uses the
    term “Past Performance” when addressing the section and factor. For simplicity, the court will
    also use the term “Past Performance.”
    -3-
    2. Evaluation and Award Criteria
    As set forth in section M of the solicitation, the Department of Labor stated its intent to
    evaluate proposals on the following five factors, listed “in descending order of importance”:
    Technical Approach, Past Performance, Staff Resources, Price, and Phase-In and Phase-Out. Id.
    at 257. Technical Approach was divided into five subfactors that corresponded with the five
    topics the offerors were required to address: Career Pathways; Counseling, Placement, and
    Support; Relationships with Community; Safety and Security; and Outreach and Admissions. Id.
    at 257-58. The subfactors were “relatively equal in importance to each other in the overall
    Technical Approach evaluation.” Id. at 258.
    With respect to the Past Performance factor, the Department of Labor’s “evaluation
    [would] include consideration of the quality of each offeror’s past performance, if any, operating
    or providing activities at a Job Corps center or similar facility . . . .” Id. The Department of
    Labor advised that “[o]nly those projects deemed relevant will be considered in the evaluation of
    past performance” and that “[p]rojects found not to be similar in scope, size or complexity . . .
    [would] not be considered.” Id. It further provided:
    The Government will consider Past Performance information for the entity
    proposed as the prime contractor, as well as information for proposed
    subcontractors that will perform major or critical aspects of the requirement, when
    such information is relevant to this procurement. However, greater emphasis may
    be placed on the past performance of the prime contractor.
    Id. at 259. Finally, it indicated that “an offeror without a record of relevant past performance
    [would] not be evaluated favorably or unfavorably,” but instead would “receive a Neutral
    rating.” Id.
    For the Staff Resources factor, the Department of Labor planned to assess the proposals
    using three subfactors: Organizational and Staffing Charts, Staff Schedules, and Corporate
    Oversight and Capacity. Id. Further, for the Price factor, the agency would “conduct a price
    analysis to assess whether the contract price proposed is fair and reasonable.” Id. It also stated:
    “The Professional Staff Compensation Plan[s] will be evaluated such that plans indicating
    unrealistically low professional employee compensation may be assessed adversely as one of the
    factors considered in making an award.” Id. at 260. Finally, “[t]he Phase-In and Phase-Out
    plans [would] be evaluated on a pass/fail basis.” Id.
    The Department of Labor indicated that it would award the contract to the offeror whose
    proposal represented the best value to the government. Id. The importance of each factor to the
    best value determination was described in the following manner:
    Technical Approach is more important than Demonstrated Record of
    Effectiveness (Past Performance), which is more important than Staff Resources,
    which is more important than Price. Phase-In and Phase-Out Plans will be
    evaluated on a pass/fail basis and offerors whose Phase-In and/or Phase-Out Plans
    are found to have failed will not be eligible for award. Technical Approach,
    -4-
    Demonstrated Record of Effectiveness (Past Performance), and Staff Resources,
    when combined are significantly more important than Price.
    Id.
    B. Evaluation of Proposals
    Proposals were due by April 30, 2021. Id. at 2138. Six offerors timely submitted
    proposals: MTC, the incumbent contractor; Odle; [. . .]; [. . .]; [. . .]; and [. . .]. Id. at 3179-80.
    The proposals were evaluated on each factor identified in the solicitation, and the Source
    Selection Authority described the results of those evaluations in her Business Clearance
    Memorandum.
    1. Technical Factors
    For the Technical Approach and Staff Resources factors and subfactors, the technical
    evaluators identified the strengths, weaknesses, significant weaknesses, and deficiencies of each
    proposal using the following definitions:
    •   STRENGTH: Any aspect of a proposal that, when properly evaluated,
    enhances the merit of the proposal or increases the probability of successful
    performance of the contract.
    •   WEAKNESS: A flaw in the proposal that increases the risk of unsuccessful
    contract performance.
    •   SIGNIFICANT WEAKNESS: A flaw in the proposal that appreciably
    increases the risk of unsuccessful contract performance.
    •   DEFICIENCY: A material failure of a proposal to meet a Government
    requirement or a combination of significant weaknesses in a proposal that
    increases the risk of unsuccessful contract performance to an unacceptable
    level.
    Id. at 2929, 3151. As summarized by the Source Selection Authority:
    For Technical Approach Factor 1, . . . [. . .] had eight strengths and no
    weaknesses. [. . .] had eight strengths and no weaknesses. MTC had six strengths
    and no weaknesses. Odle had ten strengths and one weakness. [. . .] had five
    strengths and one weakness. [. . .] had six strengths and two weaknesses. There
    were no significant weaknesses or deficiencies identified in any of the six
    offerors[’] proposals for Technical Approach.
    ....
    -5-
    For Staff Resources Factor 3, [. . .] had no strengths and two weaknesses.
    [. . .] had no strengths or weaknesses. MTC had no strengths or weaknesses.
    Odle had no strengths or weaknesses. [. . .] had one strength and no weaknesses.
    [. . .] had no strengths or weaknesses, but two significant weaknesses. None of
    the offerors received deficiencies for Staff Resources.
    Id. at 3233.
    The technical evaluators then, for each proposal, assigned adjectival ratings for the
    Technical Approach and Staff Resources factors and subfactors using the following definitions:
    •   OUTSTANDING: Exceeds the specified requirements of the solicitation in a
    significantly beneficial way to the Government. Proposal reflects no
    weaknesses, significant weaknesses, or deficiencies. The proposal presents a
    very high probability of successful performance, shows a thorough
    understanding of the requirement and offers numerous strengths. Overall,
    there is a very low degree of risk in meeting the Government’s requirements.
    •   VERY GOOD: Meets all and exceeds many of the specified requirements of
    the solicitation in a significantly beneficial way to the Government. Proposal
    reflects no significant weaknesses, or deficiencies. The proposal presents a
    high probability of successful performance, shows an understanding of the
    requirement and has at least one strength. Overall, there is a low degree of
    risk in meeting the Government’s requirements.
    •   ACCEPTABLE: Meets the specified requirements of the solicitation. Any
    strengths in the proposal are few in number and are not of significant benefit
    to the government and no deficiencies exist. The proposal shows an
    understanding of the requirement and the strengths outweigh the weaknesses
    which presents the probability of successful performance. Overall, there is a
    moderate degree of risk in meeting the Government’s requirements.
    •   MARGINAL: Minimally meets the requirements of the solicitation and there
    are one or more significant weaknesses. Significant weaknesses are
    correctable without major revisions to the proposal. Any strengths in the
    proposal are few in number and are outweighed by the presence of the
    significant weaknesses. Overall, there is a high degree of risk in meeting the
    Government’s requirements. No deficiencies may exist.
    •   UNACCEPTABLE: Fails to meet the requirements of the solicitation. The
    proposal contains a major error(s), omission(s) or deficiency(ies) that
    indicates a lack of understanding of the problem or an approach that cannot be
    expected to meet requirements. Overall, there is a very high degree of risk in
    meeting the Government’s requirements and none of these conditions can be
    corrected without major rewrite or revision of the proposal.
    -6-
    Id. at 2926-97, 3150. All six proposals were rated as Acceptable for the Technical Approach
    factor and received, with a few exceptions, Acceptable ratings for each subfactor. 4 Id. at 3184,
    3188, 3193, 3196, 3201, 3204. Four proposals––those submitted by [. . .], MTC, Odle, and
    [. . .]––were rated as Acceptable for the Staff Resources factor and received Acceptable ratings
    for each subfactor. Id. at 3191, 3195, 3200, 3203. The proposals of [. . .] and [. . .], in contrast,
    were rated Marginal on this factor, with either Marginal or Acceptable ratings for each subfactor.
    Id. at 3187, 3207.
    For the final factor assessed by the technical evaluators, Phase-In and Phase-Out, all six
    offerors received a Pass rating for their proposals. Id. at 3188, 3192, 3196, 3200, 3204, 3208.
    2. Past Performance
    With respect to the Past Performance factor, the evaluators first described the criteria
    used to determine the relevance of the offerors’ identified projects: 5
    1) The OBS is 732 which was used to determine the size.
    2) The scope is Center Operations with Outreach and Admissions and Career
    Transition Services. Therefore, the scope is considered to be relevant when the
    offeror performed as the prime operator of a contract servicing a Center with
    Operations, Outreach and Admissions and Career Transition Services.
    4
    [. . .]’s proposal received a Very Good rating for the Career Pathways subfactor; [. . .]’s
    and [. . .]’s proposals received a Very Good rating for the Counseling, Placement, and Support
    subfactor; and [. . .]’s, MTC’s, and Odle’s proposals received a Very Good rating for the Safety
    and Security subfactor. AR 3184, 3188, 3193, 3196, 3201, 3204.
    5
    It is unclear from the administrative record who initially evaluated the offerors’ past
    performance. The Source Selection Plan indicates that there was a “past performance evaluation
    team,” AR 3131, and that the Source Selection Evaluation Board would review past performance
    information, id. at 3126, but neither the Technical Evaluation Consensus Report nor the portion
    of the administrative record labeled as the “Past Performance Evaluation” includes an evaluation
    of past performance, see id. at 3137 to 3148.12 (including past performance data in charts,
    spreadsheets, and tables, but no analysis of that data or any indication of who compiled that
    data), 3149-75 (Technical Evaluation Consensus Report). Moreover, the summary of the Past
    Performance factor evaluation included in the Source Selection Authority’s Business Clearance
    Memorandum does not indicate who performed the evaluation. See id. at 3209-27. During oral
    argument, defendant described the past performance evaluation process and identified the
    individuals who performed various steps of the evaluation but did not, as the court requested,
    indicate where in the administrative record that information was located. See Oral Argument at
    48:54-51:56. Rather, defendant referred the court to the portion of the administrative record
    labeled as the “Past Performance Evaluation” and the Source Selection Authority’s Business
    Clearance Memorandum. See id. (citing AR 3137-48, 3211-27).
    -7-
    3) The complexity was set forth within the Statement of Work (SOW) outlining
    the performance requirements of Center Operations with Outreach and
    Admissions and Career Transition Services. Therefore, an offeror who has
    demonstrated through contracted performance the ability to manage the
    challenges and risks identified in the SOW were considered to be relevant. [sic]
    Id. at 3209. For each offeror, the evaluators provided a brief narrative addressing the relevance
    of the offerors’ prior Job Corps center contracts––both those identified by the offerors and those
    identified by the evaluators. Compare id. at 2192-95 ([. . .] proposal identifying [. . .] contracts),
    2466-68 (MTC proposal identifying twenty-six contracts), 2699 (Odle proposal identifying nine
    contracts), with id. at 3211-13 (evaluators listing fourteen “projects” for [. . .]), 3217-19
    (evaluators listing eighteen “projects” for MTC), 3221-22 (evaluators listing eleven “projects”
    for Odle). These narratives included the following language regarding scope that was broader
    than the already-stated scope criteria: “Relevant projects consist of operations on Center that
    included Outreach and Admissions & Career Transition Services, stand-alone OA/CTS and
    Center-only contracts.” Id. at 3211, 3214, 3216, 3220, 3223-24. In addition, each narrative
    included a brief mention of the size of the other Jobs Corps center contracts associated with the
    offeror:
    •   “The Turner OBS is 732. The centers[’] OBS . . . for [. . .] range from [. . .] to
    [. . .] and are, therefore, relevant.” Id. at 3211.
    •   “The Turner OBS is 732. The centers[’] OBS . . . for [. . .] range from [. . .] to
    [. . .] and are, therefore, relevant.” Id. at 3214.
    •   “The Turner OBS is 732. The centers[’] OBS . . . for MTC range from [. . .]
    to [. . .] and are, therefore, relevant.” Id. at 3216.
    •   “The Turner OBS is 732. The centers[’] OBS . . . for Odle range from [. . .] to
    [. . .] and are, therefore, relevant.” Id. at 3220.
    •   “The Turner OBS is 732. The centers[’] OBS . . . for [. . .] range from [. . .] to
    [. . .] and are, therefore, relevant. The remaining contracts were OA/CTS and
    were considered relevant.” Id. at 3223.
    •   “The Turner OBS is 732. The centers[’] OBS . . . for [. . .] range from [. . .] to
    [. . .] and are, therefore, relevant.” Id. at 3224.
    Following each relevance-related narrative, the evaluators provided a one-paragraph
    summary of their assessment of the offeror’s past performance that included an adjectival rating;
    the ratings were defined as follows:
    -8-
    Exceptional/Very Low      Based on the offeror’s performance record, no doubt
    Performance Risk          exists that the offeror will successfully perform the
    required effort.
    Very Good/Low             Based on the offeror’s performance record, little
    Performance Risk          doubt exists that the offeror will successfully
    perform the required effort.
    Satisfactory/Moderate     Based on the offeror’s performance record, some
    Performance Risk          doubt exists that the offeror will successfully
    perform the required effort. Normal contractor
    emphasis should preclude any problems.
    Marginal/High             Based on the offeror’s performance record,
    Performance Risk          substantial doubt exists that the offeror will
    successfully perform the required effort.
    Unsatisfactory/Very       Based on the offeror’s performance record, extreme
    High Performance Risk     doubt exists that the offeror will successfully
    perform the required effort.
    Neutral/Unknown           No past performance record exists/no performance
    Performance Risk          record is identifiable.
    Id. at 3210. The summary paragraph for each offeror was identical (except for the name of the
    offeror):
    As required, [the offeror] identified past or current projects that demonstrate
    records of effectiveness and relevant work experience within the past three (3)
    years. The relevant past performance and experience during the past three years
    for the Job Corps contracts performed by [the offeror] have been reviewed and
    evaluated in accordance with the evaluation instructions of the solicitation. Based
    on [the offeror]’s overall performance record, some doubt exists that [the offeror]
    will successfully perform the required effort. Therefore, the overall rating is
    SATISFACTORY.
    Id. at 3211, 3214, 3216, 3220, 3223, 3225.
    After each narrative, the evaluators presented a table showing the “CPARS ratings” for
    the offeror’s “relevant projects.” 6 Id. at 3211-15, 3217-19, 3221-22, 3224-26. The tables of
    “relevant projects” included fourteen projects for [. . .], id. at 3211-13; six projects for [. . .], id.
    at 3214-15; eighteen projects for MTC, id. at 3217-19; eleven projects for Odle, id. at 3221-22;
    three projects for [. . .], id. at 3224; and nine projects for [. . .], id. at 3225-26. All but three of
    these projects were associated with a particular Job Corps center; for MTC, Odle, and [. . .], there
    was one project identified only as an “IDIQ contract” with no associated OBS. Id. at 3219,
    3222, 3226.
    6
    “CPARS” refers to the Contractor Performance Assessment Reporting System. AR
    251.
    -9-
    After each table, the evaluators described any Letters of Concern received by the offerors
    and indicated whether the offerors were the subject of an Office of Inspector General report.
    Specifically, they indicated that each offeror had [. . .] except [. . .], which had none. Id. at 3213-
    16, 3219-20, 3222-24, 3226-27. They also indicated that [. . .]. Id. at 3214, 3216, 3220, 3223,
    3224, 3227.
    Finally, the evaluators did not discuss past performance information for any of the
    offerors’ subcontractors. See id. at 3209-27. Of particular importance in this protest, Odle
    proposed a subcontractor to perform the Outreach and Admissions portion of the contract. Id. at
    2695. Specifically, it stated:
    ODLE has chosen Paxen as our subcontractor to perform Outreach and
    Admissions services, [. . .]. Paxen . . . [. . .]. Paxen has been the [. . .]. This
    partnership [. . .]. [sic]
    Id.
    3. Price
    Two components of the evaluation of the final factor––Price––are relevant to this
    protest. 7 First, the evaluators “conducted a price analysis to assess whether the contract price
    proposed [was] fair and reasonable.” Id. at 3227. They compared the offerors’ proposed prices,
    both with and without the HUBZone price evaluation preference to which one offeror was
    entitled. 8 Id. at 3227-28. The evaluators used the following prices in their comparisons:
    7
    It is unclear from the administrative record who initially evaluated the offerors’
    Business Management Proposals. The Source Selection Plan indicates that there was a Price
    Analysis Team, AR 3122, 3127, 3133; that the Contract Specialist was to be a member of that
    team, id. at 3127; and that the team would provide the Contracting Officer with its evaluation, id.
    at 3133. However, the administrative record does not include any such evaluation distinct from
    what appears in the Source Selection Authority’s Business Clearance Memorandum. Further, the
    summary of the price evaluation included in the Source Selection Authority’s Business
    Clearance Memorandum does not indicate who performed the evaluation. See id. at 3227-32.
    During oral argument, defendant described the price evaluation process and identified the
    individuals who performed various steps of the evaluation but did not, as the court requested,
    indicate where in the administrative record that information was located. See Oral Argument at
    1:21:10-1:21:40. Rather, defendant referred to portions of the Source Selection Authority’s
    Business Clearance Memorandum that identified the procurement’s “Points of Contact” and
    presented the price evaluation. See id. (citing AR 3177, 3227-33).
    8
    “[T]he HUBZone Program . . . provide[s] Federal contracting assistance for qualified
    small business concerns located in historically underutilized business zones, in an effort to
    increase employment opportunities, investment, and economic development in those areas.”
    FAR 19.1301(b). For “acquisitions conducted using full and open competition,” procuring
    agencies are required to “give offers from HUBZone small business concerns a price evaluation
    preference by adding a factor of 10 percent to all offers” except “[o]ffers from HUBZone small
    -10-
    Offeror     Total Contract     Total Evaluated HUBZone Price
    Award Price            Price
    [. . .]                $[. . .]           $[. . .]     $[. . .]
    [. . .]                $[. . .]           $[. . .]     $[. . .]
    MTC         $117,742,832.48 $121,899,636.18 $134,089,599.80
    Odle         $ 98,946,420.08 $100,996,715.74 $111,096,387.31
    [. . .]                $[. . .]           $[. . .]     $[. . .]
    [. . .]                $[. . .]           $[. . .]     $[. . .]
    Id. at 4, 3227-28, 3241. They also noted an Independent Government Cost Estimate (“IGCE”) of
    $[. . .] as a basis for comparison. Id. at 3228. However, this IGCE cannot be compared to either
    the Total Contract Award Prices or the Total Evaluated Prices: It includes (1) all of the contract
    line items except for the 1% management fee and (2) an amount representing the cost of a six-
    month contract extension, while the Total Contract Award Prices consist of all contract line
    items (including the phase-in, phase-out, and cost-reimbursement items) and the Total Evaluated
    Prices consist of (1) all contract line items except for the phase-in and cost-reimbursement items
    and (2) an amount representing the cost of a six-month contract extension. Id. at 3227-28. A
    separate IGCE of $[. . .], referenced by the Source Selection Authority in the Source Selection
    Decision section of her Business Clearance Memorandum, included the same components as the
    Total Evaluated Prices. See id. at 4, 3241.
    Based on their comparisons of the proposed prices, the evaluators concluded that “there
    was adequate price competition to establish a fair and reasonable price” since, as described in
    FAR 15.404-1(b)(2)(i), “two or more responsible offerors, competing independently, submitted
    priced offers that satisfy the Government’s expressed requirements.” Id. at 3227.
    Second, the evaluators analyzed the offerors’ Professional Staff Compensation Plans. Id.
    at 3229-32. For each offeror, they provided a table in which they identified between eight and
    ten “professional positions” and the associated “proposed salaries” that the offeror purportedly
    listed in “its Staff Salary and Compensation Report,” 9 along with the “average base salaries” in
    Albany, Georgia, for those positions [. . .]. Id. Then, in a short paragraph, they describe the
    sources for the offeror’s proposed salaries, assert that they compared the proposed salaries with
    the salaries [. . .], and state their conclusion. Id. The conclusion was identical for each offeror
    (except for the offerors’ names): “Based on the results of that comparison and the salary data for
    the categories/positions proposed by [the offeror], the proposed salaries are in line with the
    average base salary range for the geographical region of Albany, Georgia.” Id. at 3229-32.
    business concerns that have not waived the evaluation preference” or “[o]therwise successful
    offers from small business concerns.” FAR 19.1307.
    9
    With a single exception, none of the “professional positions” and “proposed salaries”
    identified by the evaluators for Odle appeared in Odle’s Professional Staff Compensation Plan.
    Compare AR 2767-69 (Odle’s Professional Staff Compensation Plan), with id. at 3230-31
    (evaluation).
    -11-
    C. Best Value Determination, Source Selection Decision, and Contract Award
    After summarizing the evaluation results, the Source Selection Authority turned to the
    task of determining which offeror’s proposal provided the best value to the government. At the
    outset of the Best Value Determination section of her Business Clearance Memorandum, she
    wrote:
    The Government has assessed the strengths and weaknesses amongst the
    offerors who were fully responsive to the solicitation and has determined that the
    proposal submitted by Odle Management Group represents the best value and the
    award of the Turner Job Corps Center with Outreach and Admissions & Career
    Transition Services contract to Odle Management Group LLC[] is in the
    Government’s best interest.
    Id. at 3233. She continued by indicating the number of strengths and weaknesses each proposal
    received under the Technical Approach and Staff Resources factors and subfactors, the
    Satisfactory rating received by all of the offerors for the Past Performance factor, each offeror’s
    Total Evaluated Price, and the Pass rating each proposal received for the Phase-In and Phase-Out
    factor. Id. at 3233-34. The Source Selection Authority then presented a table that purported to
    set forth the adjectival ratings for every factor and subfactor, 10 along with the offerors’ Total
    Evaluated Prices. Id. at 3234.
    Following the table, the Source Selection Authority recounted the ratings, strengths,
    weaknesses, and Total Evaluated Price of each proposal, starting with [. . .]’s proposal and
    continuing with the other proposals alphabetically by offeror. Id. at 3235-40. She concluded the
    section for each offeror with a determination of why that offeror’s proposal did, or did not,
    represent the best value to the government:
    [. . .] total evaluated price is the second lowest of offers. However, [. . .] received
    a Marginal rating for Staff Resources and with the addition of the 10% Hubzone
    consideration to the price, the price exceeded that of [. . .]. With all Factors and
    pricing combined, the overall total evaluated proposal does not benefit nor justify
    the government paying a premium price [over] that of the awardee (Odle).
    ....
    10
    The table has three errors: the Career Pathways subfactor rating for Odle’s proposal
    and the Staff Resources ratings for [. . .]’s and [. . .]’s proposals. With respect to the former, the
    Source Selection Authority indicated that Odle’s proposal received a Very Good rating instead of
    the Acceptable rating assigned by the evaluators. See AR 3163, 3196. With respect to the latter,
    the Source Selection Authority indicated that [. . .]’s and [. . .]’s proposals received Acceptable
    ratings instead of the Marginal ratings assigned by the evaluators. See id. at 3154, 3174, 3187,
    3207.
    -12-
    . . . [. . .]’s total evaluated price is the second highest of all the offers.
    With the addition of the 10% Hubzone consideration to the price, the price
    exceeded that of [. . .]. With all Factors and pricing combined, the overall total
    evaluated proposal does not benefit nor justify the government paying a premium
    price [over] that of the awardee (Odle).
    ....
    . . . MTC’s total evaluated price is the third lowest of all the offers. With
    the addition of the 10% Hubzone consideration to the price, the price exceeded
    that of [. . .]. With all Factors and pricing combined, the overall total evaluated
    proposal does not benefit nor justify the government paying a premium price
    [over] that of the awardee (Odle).
    ....
    . . . Odle has a total evaluated price of $100,996,715.74, a difference of
    $[. . .] lower than the second lowest offer of $[. . .] ([. . .]), and $[. . .] lower than
    the highest offer of $[. . .] ([. . .]). With the addition of the 10% Hubzone
    consideration to the price, the price was lower than [. . .]’s. With all Factors and
    pricing combined, Odle’s total evaluated price, along with the perceived benefits
    of [its] technical proposal, offers the best value to the government. The award to
    Odle is in the best interest of the government.
    ....
    . . . [. . .]’s total evaluated price is the highest of all of the offers. [. . .]’s
    Subcontracting Plan was not approved. With the addition of the 10% Hubzone
    consideration to the price, the price exceeded that of [. . .]. With all Factors and
    pricing combined, the overall total evaluated proposal does not benefit nor justify
    the government paying a premium price [over] that of the awardee (Odle).
    ....
    . . . [. . .]’s total evaluated price is the third highest of all of the offers.
    With the addition of the 10% Hubzone consideration to the price, Odle’s adjusted
    proposed price of $111,096,387.31 is still the best valued offer to the Government
    as it is priced $[. . .] below [. . .]’s offer of $[. . .]. [. . .] received a Marginal rating
    for Staff Resources and with all Factors and pricing combined, the overall total
    evaluated proposal does not benefit nor justify the government paying a premium
    price [over] that of the awardee (Odle).
    Id. at 3236-40.
    After determining that Odle’s proposal represented the best value to the government, the
    Source Selection Authority formally documented that determination in the Source Selection
    -13-
    Decision section of her Business Clearance Memorandum. Id. at 3240-41. She began by
    reiterating the evaluation and contract award criteria set forth in the solicitation. Id. at 3240. She
    then concluded:
    Taking all factors into consideration, including the strengths offered in the
    most important factor of Technical Approach, the selection of Odle Management
    Group LLC provides the greatest overall benefit to the Government. While the
    ratings for all six offerors were “Acceptable” for Technical Approach,
    “Satisfactory” for Demonstrated Record of Effectiveness (Past Performance), and
    “Acceptable” for Staff Resources; 11 with a multitude of strengths, Odle fully
    demonstrated how [it] will provide staff with a wide variety of tools that will
    support student success. Odle is eligible for award and offers the best value to the
    Government at a significantly lower price than the other offerors. Therefore,
    there is no basis for awarding to the other five offerors at the higher price. Odle’s
    proposal had the lowest total evaluated price of $100,996,715.74, a difference of
    $[. . .] less than the Government estimate of $[. . .].
    An award of [the contract] to Odle Management Group[] is in the best
    interest of the Government.
    Id. at 3241 (footnote added). The Department of Labor awarded the contract to Odle on
    February 16, 2022. Id. at 3269-70.
    D. MTC’s Protests
    After it was notified of the contract award to Odle, MTC requested and received a
    debriefing from the Department of Labor. Id. at 3382, 3390-93. It then lodged a protest of the
    award decision with the Government Accountability Office (“GAO”). Id. at 3398, 3402-17.
    During the course of the GAO protest, the Source Selection Authority submitted a supplemental
    statement of facts related to the Past Performance factor evaluation in which she stated:
    4. Odle’s past performance submission referred to a subcontracting relationship
    with a firm named “Paxen,” to perform Outreach and Admission (“OA”)
    services.
    5. Odle’s proposal did not identify Paxen as a “major” or “critical”
    subcontractor.
    6. OA services are not considered a major or critical aspect of this requirement
    for purposes of the past performance evaluation. Though important, OA
    services are but a small portion of the overall work to be performed under the
    11
    As noted above, two of the proposals actually received Marginal ratings for the Staff
    Resources factor.
    -14-
    solicitation. And they are secondary to the main service, which is operations
    of the Job Corps Center.
    7. As such, Paxen’s past performance was not relevant to this procurement.
    Id. at 3971 (citation omitted). Ultimately, the GAO determined that some of MTC’s allegations
    did not constitute cognizable grounds for protest and then, on May 10, 2022, denied the
    remainder of the protest. Id. at 3997-4003.
    MTC filed its protest in this court on May 23, 2022. In its amended complaint, it
    articulates six claims for relief: (1) “Failure to Evaluate Odle’s Proposal in Accordance with
    Solicitation – Compensation Realism”; (2) “Failure to Evaluate Odle’s Proposal in Accordance
    with Solicitation – Price Realism”; (3) “Failure to Evaluate Odle’s Proposal in Accordance with
    Solicitation – Odle Subcontractor Past Performance”; (4) “Failure to Evaluate Odle’s Proposal in
    Accordance with Solicitation – Improper Consideration of Dissimilar Past-Performance
    Comparators”; (5) “Unreasonable Best-Value Decision”; and (6) “Unequal Treatment of
    Offerors.” Am. Compl. ¶¶ 35-84. It requests a declaration that the Department of Labor’s award
    decision was arbitrary, capricious, an abuse of discretion, or not in accordance with the law; an
    injunction enjoining the commencement of contract performance and directing the reevaluation
    or resolicitation of proposals; an award of attorney’s fees and costs; and any other relief deemed
    appropriate by the court. Id. at 18.
    In accordance with their proposed schedule and pursuant to Rule 52.1(c) of the Rules of
    the United States Court of Federal Claims (“RCFC”), the parties filed and briefed cross-motions
    for judgment on the administrative record. The court heard argument on August 15, 2022, and is
    now prepared to rule.
    II. DISCUSSION
    In ruling on motions for judgment on the administrative record, “the court asks whether,
    given all the disputed and undisputed facts, a party has met its burden of proof based on the
    evidence in the record.” A & D Fire Prot., Inc. v. United States, 
    72 Fed. Cl. 126
    , 131 (2006)
    (citing Bannum, Inc. v. United States, 
    404 F.3d 1346
    , 1356 (Fed. Cir. 2005)). Because the court
    makes “factual findings . . . from the record evidence,” judgment on the administrative record “is
    properly understood as intending to provide for an expedited trial on the record.” Bannum, 
    404 F.3d at 1356
    .
    A. Legal Standard
    The court reviews challenged agency conduct pursuant to the standards set forth in 
    5 U.S.C. § 706
    . 
    28 U.S.C. § 1491
    (b)(4). Specifically, “the proper standard to be applied in bid
    protest cases is provided by 
    5 U.S.C. § 706
    (2)(A): a reviewing court shall set aside the agency
    action if it is ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with
    law.’” Banknote Corp. of Am. v. United States, 
    365 F.3d 1345
    , 1350 (Fed. Cir. 2004). Under
    this standard, the court
    -15-
    may set aside a procurement action if “(1) the procurement official’s decision
    lacked a rational basis; or (2) the procurement procedure involved a violation of
    regulation or procedure.” A court reviews a challenge brought on the first ground
    “to determine whether the contracting agency provided a coherent and reasonable
    explanation of its exercise of discretion, and the disappointed bidder bears a
    heavy burden of showing that the award decision had no rational basis.” “When a
    challenge is brought on the second ground, the disappointed bidder must show a
    clear and prejudicial violation of applicable statutes or regulations.”
    Centech Grp., Inc. v. United States, 
    554 F.3d 1029
    , 1037 (Fed. Cir. 2009) (citations omitted)
    (quoting Impresa Construzioni Geom. Domenico Garufi v. United States, 
    238 F.3d 1324
    , 1332-
    33 (Fed. Cir. 2001)); accord Savantage Fin. Servs., Inc. v. United States, 
    595 F.3d 1282
    , 1286-87
    (Fed. Cir. 2010) (providing that a protestor has the “burden of showing that the agency’s
    decision . . . is so plainly unjustified as to lack a rational basis”); Advanced Data Concepts, Inc.
    v. United States, 
    216 F.3d 1054
    , 1058 (Fed. Cir. 2000) (“The arbitrary and capricious standard
    . . . requires a reviewing court to sustain an agency action evincing rational reasoning and
    consideration of relevant factors.”).
    Procurement officials “are entitled to exercise discretion upon a broad range of issues
    confronting them in the procurement process.” Impresa, 
    238 F.3d at 1332
     (quoting Latecoere
    Int’l, Inc. v. U.S. Dep’t of the Navy, 
    19 F.3d 1342
    , 1356 (11th Cir. 1994)). Thus, the court’s
    review of a procuring agency’s decision is “highly deferential.” Advanced Data Concepts, 
    216 F.3d at 1058
    ; see also Citizens to Preserve Overton Park, Inc. v. Volpe, 
    401 U.S. 402
    , 416 (1971)
    (“The court is not empowered to substitute its judgment for that of the agency.”). Furthermore,
    when engaging in a negotiated procurement, a “protestor’s burden of proving that the award was
    arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law is greater
    than in other types of bid protests.” Galen Med. Assocs., Inc. v. United States, 
    369 F.3d 1324
    ,
    1330 (Fed. Cir. 2004). And, when a contract is to be awarded on a “best value” basis,
    contracting officers have “even greater discretion than if the contract were to have been awarded
    on the basis of cost alone.” 
    Id.
     (citing E.W. Bliss Co. v. United States, 
    77 F.3d 445
    , 449 (Fed.
    Cir. 1996) (“Procurement officials have substantial discretion to determine which proposal
    represents the best value for the government.”)).
    In addition to showing “a significant error in the procurement process,” a protestor must
    show “that the error prejudiced it.” Data Gen. Corp. v. Johnson, 
    78 F.3d 1556
    , 1562 (Fed. Cir.
    1996); accord Sys. Stud. & Simulation, Inc. v. United States, 
    22 F.4th 994
    , 997 (Fed. Cir. 2021)
    (confirming that the prejudice analysis “is always required before setting aside a bid award,
    regardless of whether the error . . . was arbitrary and capricious action or, instead, a violation of
    law”). “To establish prejudice . . . , a protester must show that there was a ‘substantial chance’ it
    would have received the contract award absent the alleged error.” Banknote, 
    365 F.3d at 1351
    (quoting Emery Worldwide Airlines, Inc. v. United States, 
    264 F.3d 1071
    , 1086 (Fed. Cir.
    2001)); see also Data Gen., 
    78 F.3d at 1562
     (“[T]o establish prejudice, a protester must show
    that, had it not been for the alleged error in the procurement process, there was a reasonable
    likelihood that the protester would have been awarded the contract.”). The test for establishing
    prejudice “is more lenient than showing actual causation, that is, showing that but for the errors
    [the protestor] would have won the contract.” Bannum, 
    404 F.3d at 1358
    .
    -16-
    B. Jurisdiction and Standing
    As a threshold matter, the court possesses jurisdiction to entertain this protest pursuant to
    
    28 U.S.C. § 1491
    (b)(1), which provides that the United States Court of Federal Claims has
    “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
    . . . .” In addition, MTC has standing to protest the Department of Labor’s award of the contract
    to Odle. 12 As an offeror who submitted one of the two highest-rated proposals, MTC is an
    interested party who has a direct economic interest affected by the contract award and, if its
    allegations of agency error are accepted as true, is prejudiced by the contract award. See
    CliniComp Int’l, Inc. v. United States, 
    904 F.3d 1353
    , 1358 (Fed. Cir. 2018) (setting forth the
    requirements to establish standing in bid protests).
    C. Relevance of Past Performance
    Turning to the merits of the protest, the court first addresses MTC’s contention regarding
    the Department of Labor’s assessment of the relevance of the offerors’ past performance. It is
    well settled that a procuring agency’s “determination of relevance is owed deference as it is
    among ‘the minutiae of the procurement process,’ which . . . court[s] ‘will not second guess.’”
    Glenn Def. Marine (Asia), PTE Ltd. v. United States, 
    720 F.3d 901
    , 911 (Fed. Cir. 2013)
    (quoting E.W. Bliss, 
    77 F.3d at 449
    ). Indeed,
    the determination of whether a particular example of past performance is relevant
    involves an exercise of discretion that lies particularly within the expertise of the
    procuring agency. The agency’s subject-matter experts are best suited to
    determine whether and to what extent the experience reflected in a past
    performance example instills confidence that the offeror will successfully perform
    and meet the needs of the agency on the contract at issue.
    Tech. Innovation All. LLC v. United States, 
    149 Fed. Cl. 105
    , 138 (2020) (collecting cases); see
    also FAR 15.305(a)(2)(ii) (“The source selection authority shall determine the relevance of
    similar past performance information.”). However, a court cannot effectively review whether a
    procuring agency has properly exercised its discretion if the procuring agency does not
    adequately explain the rationale for its relevancy assessment. See Motor Vehicle Mfrs. Ass’n of
    12
    Neither defendant nor Odle contest MTC’s standing to protest, but the court has the
    independent obligation to ensure that all jurisdictional requirements have been satisfied. See
    PIN/NIP, Inc. v. Platte Chem. Co., 
    304 F.3d 1235
    , 1241 (Fed. Cir. 2002) (“Jurisdiction is a
    threshold issue, and a court must satisfy itself that it has jurisdiction to hear and decide a case
    before proceeding to the merits.” (citations omitted)); View Eng’g, Inc. v. Robotic Vision Sys.,
    Inc., 
    115 F.3d 962
    , 963 (Fed. Cir. 1997) (“[C]ourts must always look to their jurisdiction,
    whether the parties raise the issue or not.”); accord Juidice v. Vail, 
    430 U.S. 327
    , 331 (1977)
    (“Although raised by neither of the parties, we are first obliged to examine the standing of
    appellees, as a matter of the case-or-controversy requirement associated with Art. III, to seek
    injunctive relief in the District Court.”).
    -17-
    the U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 
    463 U.S. 29
    , 43 (1983) (remarking that to
    survive review under the arbitrary-and-capricious standard, an “agency 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’” (quoting Burlington Truck Lines, Inc.
    v. United States, 
    371 U.S. 156
    , 168 (1962))); Timken U.S. Corp. v. United States, 
    421 F.3d 1350
    , 1355 (Fed. Cir. 2005) (articulating the State Farm standard and observing that “it is well
    settled that an agency must explain its action with sufficient clarity to permit ‘effective judicial
    review’” (quoting Camp v. Pitts, 
    411 U.S. 138
    , 142-43 (1973))); accord Lab’y Corp. of Am.
    Holdings v. United States, 
    116 Fed. Cl. 643
    , 652 (2014) (applying the State Farm standard in a
    bid protest decision). The GAO applies the same standard: 13
    Where a protester challenges a past performance evaluation, we will
    review the evaluation to determine if it was reasonable and consistent with the
    solicitation’s evaluation criteria and procurement statutes and regulations, and to
    ensure that the agency’s rationale is adequately documented. While, as a general
    matter, the evaluation of an offeror’s past performance is a matter within the
    discretion of the contracting agency, we will question an agency’s evaluation of
    past performance where it is unreasonable or undocumented. The agency’s
    evaluation must be sufficiently documented to allow our Office to review the
    merits of a protest. Where an agency fails to document or retain evaluation
    materials, it bears the risk that there may not be adequate supporting rationale in
    the record for us to conclude that the agency had a reasonable basis for its
    evaluation conclusions.
    Trident Vantage Sys., LLC, B-415944 et al., 2018 CPD ¶ 166 (Comp. Gen. May 1, 2018)
    (citations and footnote omitted); accord Deloitte Consulting, LLP, B-412125.2 et al., 2016 CPD
    ¶ 119 (Comp. Gen. Apr. 15, 2016); Arctic Slope Mission Servs., LLC, B-410992.5 et al., 2016
    CPD ¶ 39 (Comp. Gen. Jan. 8, 2016).
    In the solicitation, the Department of Labor advised offerors that it would conduct the
    past performance evaluation in two steps: determining the relevance of an offeror’s past
    performance and then assessing the quality of the past performance it deemed relevant. For the
    initial inquiry—the one at issue here—the agency would determine whether projects were similar
    in size, scope, and complexity to the contemplated Turner Job Corps Center contract. MTC
    argues that the Department of Labor improperly deemed all of the offerors’ Job Corps center
    experience to be relevant, ignoring the size and scope constraints set forth in the solicitation.
    1. Scope
    It appears, from the Source Selection Authority’s Business Clearance Memorandum, that
    the evaluators first considered the scope of the offerors’ prior projects to determine what projects
    13
    Although they are not binding on this court, the decisions of the GAO, which has
    expertise in bid protests, are instructive. See Allied Tech. Grp., Inc. v. United States, 
    649 F.3d 1320
    , 1331 n.1 (Fed. Cir. 2011); Centech Grp., 
    554 F.3d at
    1038 n.4; Cutright v. United States,
    
    953 F.2d 619
    , 622 n.* (Fed. Cir. 1992).
    -18-
    would be considered relevant. Before addressing the offerors’ past performance, the evaluators
    noted that the scope of the Turner Job Corps Center contract was “Center Operations with
    Outreach and Admissions and Career Transition Services” and, “[t]herefore, the scope is
    considered to be relevant when the offeror performed as the prime operator of a contract
    servicing a Center with Operations, Outreach and Admissions and Career Transition Services.”
    AR 3209. However, as MTC observes, when assessing each offeror’s past performance, the
    evaluators stated that they considered relevant projects to be (1) contracts to operate a Job Corps
    center that included Outreach and Admissions and Career Transition Services, (2) standalone
    contracts to provide Outreach and Admissions and Career Transition Services, and (3) contracts
    to operate a Job Corps center that did not include Outreach and Admissions and Career
    Transition Services. Further, because they apparently considered all three types of contracts to
    be relevant, their list of “relevant projects” for each offeror did not indicate the contract type for
    the projects. 14
    As a general proposition, the Department of Labor possessed the discretion to determine
    the scope of the projects it would consider to be similar to the proposed Turner Job Corps Center
    contract so as to satisfy the relevancy requirement. As defendant observes, the agency did not
    specify in the solicitation what it meant by “similar.” However, once the evaluators defined the
    scope of the Turner Jobs Corps Center contract as including center operations, Outreach and
    Admissions, and Career Transition Services, and declared that “the scope is considered to be
    relevant when the offeror performed as the prime operator of a contract” that included these
    same three elements, 
    id.,
     it was improper for them to then, without explanation, consider
    contracts that did not include all three elements to be relevant past performance.
    This impropriety has three components. First, the evaluators deviated from their stated
    criteria for determining what work was of a similar scope to the work to be performed under the
    Turner Job Corps Center contract. By doing so, they did not exercise their discretion in an
    internally consistent manner. See Braseth Trucking, LLC v. United States, 
    124 Fed. Cl. 498
    , 510
    (2015) (requiring a contracting officer to “provide an explanation for [an] exercise of discretion
    that is coherent and not internally inconsistent”). Second, the evaluators did not explain why
    they deviated from their stated criteria. It may be that they decided that their original criteria
    14
    MTC contends that two of the projects identified in Odle’s past performance
    evaluation did not involve, prior to 2020, Outreach and Admissions or Career Transition
    Services. In support of this contention, it attached to its motion excerpts from the solicitations
    for the relevant contracts. Defendant, relying on Axiom Resource Management, Inc. v. United
    States, 
    564 F.3d 1374
     (Fed. Cir. 2009), objects to any consideration of these documents because
    they are not part of the administrative record and, in any event, supply facts that are irrelevant to
    the resolution of the protest. MTC did not respond to these objections. Without deciding
    whether it would be appropriate for the court to consider publicly available solicitations for other
    Jobs Corps center contracts that were assessed as part of the past performance evaluation at issue
    here, the court agrees with defendant that it need not consider them. As explained below, what
    matters is that the evaluators deemed a contract to operate a Job Corps center that did not include
    Outreach and Admissions and Career Transition Services to be relevant to this procurement, not
    that any particular past performance was under such a contract. Accordingly, the court did not
    consider the solicitation excerpts attached to MTC’s motion.
    -19-
    were overly restrictive or incorrect. 15 However, it is not for the court to supply a reason when
    the procuring agency has not provided one. See State Farm, 
    463 U.S. at 43
    . Third, the
    evaluators did not explain why they considered contracts involving only center operations or
    contracts involving only Outreach and Admissions and Career Transition Services to be of a
    similar scope to the contemplated Turner Jobs Corps Center contract. Certainly, it is tempting to
    infer that the evaluators believed that any operations, Outreach and Admissions, or Career
    Transition Services work was sufficiently similar to the work described in the instant solicitation.
    But because the evaluators also stated that only contracts with all three components were similar
    in scope, such an inference would be purely speculative. Such speculation is no substitute for a
    reasoned, agency-supplied explanation.
    In short, the Department of Labor’s assessment of the scope of the offerors’ past
    performance was arbitrary and capricious.
    2. Size
    The other aspect of the Department of Labor’s relevancy determination challenged by
    MTC is the agency’s assessment of similar size. In the solicitation, “size” is defined as “dollar
    value or center OBS.” AR 250. However, as reflected in the Source Selection Authority’s
    Business Clearance Memorandum, the evaluators considered only “center OBS” when assessing
    the size of an offeror’s prior projects. They noted that the OBS for the Turner Job Corps Center
    was 732, but did not indicate what OBS would be considered similar enough to 732 to be
    relevant. Rather, the evaluators reported the range of OBSs for the Job Corps center contracts
    they associated with each offeror, as summarized in the following court-created table:
    Offeror     Number of Job Minimum Maximum
    Corps Center      Center     Center
    Contracts        OBS        OBS
    [. . .]               [. . .]    [. . .]    [. . .]
    [. . .]               [. . .]    [. . .]    [. . .]
    MTC                      17       153       1002
    Odle                     10       186        669
    [. . .]               [. . .]    [. . .]    [. . .]
    [. . .]               [. . .]    [. . .]    [. . .]
    They then concluded, without elaboration or analysis, that all of these contracts were relevant.
    As noted above, the court cannot effectively review a procurement decision unless the
    procuring agency provides a clear and satisfactory explanation for the decision that rationally
    connects its fact findings to its ultimate determination. Here, the Department of Labor found
    facts—the center OBSs for the Job Corps contracts associated with each offeror—and made a
    15
    It is also possible that there was no actual deviation, and that the apparently differing
    criteria for determining similar scope was the result of inattentive drafting. However, defendant
    does not contend that the inconsistency is merely a drafting error.
    -20-
    determination—deeming the contracts to be similarly sized and therefore relevant to the
    contemplated Turner Job Corps Center contract—but did not provide a rational connection
    between the two. In other words, the agency did not explain how or why a center with a
    particular OBS was similar in size to the Turner Job Corps Center with an OBS of 732.
    Moreover, there is no evidence in the administrative record indicating why a center OBS as low
    as [. . .], 153, [. . .], [. . .], 186, or [. . .] (the minimum center OBS for each offerors’ Job Corps
    center past performance) is similar in size to the Turner Job Corps Center’s OBS of 732. In
    short, the Department of Labor’s “decisional path” is not “reasonably discernable” from the
    administrative record. DynCorp Int’l, LLC v. United States, 
    10 F.4th 1300
    , 1313-14 (Fed. Cir.
    2021) (quoting Wheatland Tube Co. v. United States, 
    161 F.3d 1365
    , 1369-70 (Fed. Cir. 1998)).
    A number of GAO decisions address situations in which the procuring agency, when
    evaluating past performance, determined that a project was relevant to the effort being solicited
    without providing an adequate explanation—or any explanation at all—for that determination.
    For example, in U.S. Information Technologies Corp., the solicitation required bidders “to
    identify at least three projects performed within the past 5 years that were similar in scope and
    complexity . . . .” B-404357 et al., 2011 CPD ¶ 74 (Comp. Gen. Feb. 2, 2011). In its evaluation
    of proposals, the procuring agency stated, “without analysis or discussion,” that the awardee
    “provided relevant past performance examples for itself and each teaming partner.” 
    Id.
     Upon
    reviewing the awardee’s proposal, the GAO found that the awardee “identified nine past
    performance projects for its contractor team . . . .” 
    Id.
     Two of the projects were “valued at $5.5
    million and $5.25 million,” two others were valued “at $2.8 million and $2.25 million,” and the
    remaining five were valued between “$50,000 to $1.5 million.” 
    Id.
     The GAO remarked:
    “While two of these projects might reasonably be considered similar in size to the approximately
    $8 million project here, there is no explanation in the record why the remaining projects—which
    are much smaller in value than the work solicited here—were considered relevant.” 
    Id.
     It
    therefore stated that it was “unable to conclude that the agency reasonably found that [the
    awardee] had identified relevant past performance, as required by the [solicitation].” 
    Id.
    The GAO found a relevancy determination in Al Raha Group for Technical Services,
    Inc., B-411015.2 et al., 2015 CPD ¶ 134 (Comp. Gen. Apr. 22, 2015), to be similarly inadequate.
    In that case, the solicitation provided that the procuring agency “would evaluate the scope,
    magnitude of effort, and complexities for each [past performance] reference” and that “the
    evaluation would include logistical and programmatic considerations, including but not limited
    to, the quantity procured, length of effort, complexity of the required delivery timeline, and
    dollar values of efforts submitted.” 
    Id.
     However, when determining that one of the awardee’s
    contracts was relevant, the procuring agency’s only contemporaneous explanation was the
    following: “[T]his contract was determined to be relevant to the . . . work scope, as the [period
    of performance] was two years and the dollar value was $11.299M.” 
    Id.
     (alteration in original).
    The GAO found this statement to be devoid of any “analysis comparing the contract against the
    [solicitation]’s articulated relevancy criteria,” and therefore concluded that the procuring agency
    “did not adequately evaluate” the contract’s relevance. 
    Id.
    It reached the same conclusion in Trident Vantage Systems. In that case, the solicitation
    provided that only relevant contracts would be considered during the past performance
    evaluation, and that in assessing the relevance of a contract, the procuring agency “would
    -21-
    evaluate the contract experience to determine its overall relevancy to the [statement of work]”
    and consider the “contract scope, customer, size, type, length, and role as prime or
    subcontractor.” 2018 CPD ¶ 166. Notwithstanding this guidance, “the entirety of the
    contemporaneous evaluation record that discussed relevant experience and past performance”
    consisted of a briefing provided by the Source Evaluation Board to the Source Selection
    Authority in which the Board (1) reported, for each “contract[] identified in the offerors’ past
    performance narratives,” the “contract number; contract name; customer or agency; contract
    value; contract type; and role as prime or subcontractor” and then (2) assigned each “contract an
    overall relevancy rating of either somewhat relevant, relevant, or highly relevant.” 
    Id.
     The GAO
    remarked that the “briefing [was] devoid of any discussion of the scope of the offerors’ past
    performance contracts” and did not “offer a rationale for the relevancy ratings assigned.” 
    Id.
     It
    therefore concluded that “[g]iven the lack of contemporaneous documentation, [it had]
    insufficient information from which to assess the reasonableness of the agency’s past
    performance evaluation.” 
    Id.
    As these GAO decisions reflect, it is not possible to determine whether past performance
    relevancy assessments are reasonable if the procuring agency has not provided an adequate
    explanation for those assessments or the administrative record otherwise lacks support for the
    assessments. See also Glob. Language Ctr., B-413503.8, 2017 CPD ¶ 238 (Comp. Gen. June 1,
    2017) (sustaining the protest because the procuring agency did not “explain how or why it
    determined that” the awardee’s reference contracts with different scopes and values were
    relevant); Deloitte Consulting, 2016 CPD ¶ 119 (“[T]he agency’s contemporaneous
    documentation is insufficient to permit our office to review the reasonableness of the past
    performance relevancy evaluation.”); KMR, LLC, B-292860, 2003 CPD ¶ 233 (Comp. Gen.
    Dec. 22, 2003) (“[G]iving due deference to the agency’s broad discretion in determining whether
    a contract is relevant, the agency has not rationally explained, nor does the record indicate, how
    [the awardee]’s referenced contracts are relevant—that is, are the ‘same or similar’—to the effort
    described in the [solicitation].”). Neither defendant nor Odle offers any legal authority
    indicating that a procuring agency can dispense with the requirement that the reasonableness of
    its decisions be apparent from the administrative record. Instead, they primarily rely on case law
    emphasizing the indisputable proposition that procuring agencies have great discretion in
    evaluating past performance when a contract is to be awarded on a best value basis in a
    negotiated procurement––case law that does not alter a procuring agency’s obligation to
    adequately explain its relevancy determination. Defendant also relies on Avtel Services, Inc. v.
    United States, 
    70 Fed. Cl. 173
     (2005), to argue that a protestor’s contention that the awardee’s
    prior experience was not similar in size, scope, and complexity to the solicited work amounts to a
    mere disagreement with the procuring agency’s evaluation. However, in Avtel, the procuring
    agency actually provided an explanation for its determination that the prior experience was
    relevant. See 
    id. at 219
     (“The [procuring agency]’s Performance Risk Assessment concluded
    that the [contract at issue] provided [the awardee] with recent experience, of a logistics and
    engineering services nature, over contracts of the proper size. . . . The [procuring agency]’s
    extensive Performance Risk Assessment on [the awardee] provided a reasonable basis for a
    [deleted] rating based on past performance of similar work.” (final alteration in original)). No
    such explanation was provided in this case.
    -22-
    Here, the Department of Labor concluded, without elaboration, that past performance at
    Job Corps centers with OBSs from [. . .] to [. . .] was relevant to the work being solicited for the
    Turner Job Corps Center, which has an OBS of 732. There is almost nothing in the
    administrative record indicating what differences, if any, exist between Job Corps centers of
    differing OBSs. 16 Do Job Corps centers with lower OBSs offer fewer services, serve a different
    type or mix of students, serve a smaller geographical area, have smaller campuses, require
    different staffing arrangements, or have other characteristics distinguishing them from Job Corps
    centers with higher OBSs? And, if so, would the differences affect the similarity determination?
    In the absence of such evidence, or an explanation by the Department of Labor, the court has no
    basis to assess the reasonableness of the agency’s relevancy determinations.
    3. Prejudice
    Defendant and Odle argue that to the extent that the Department of Labor erred in its
    relevancy assessments, MTC was not prejudiced because it benefited from the agency’s decision
    to consider all past performance at Job Corps centers to be relevant. There is an obvious flaw in
    this argument. Had the Department of Labor—after properly assessing the scope and size
    aspects of the relevancy inquiry—determined that certain Job Corps center contracts were not
    sufficiently similar to the proposed Turner Job Corps Center contract to be considered relevant,
    some (if not all) of the offerors would have less past performance that could be evaluated, and
    the reduction would not necessarily affect all offerors equally. 17 For example, if the Department
    of Labor decided that contracts for Job Corps centers with OBSs of less than 450 were not
    relevant, (1) two of the offerors would not have any relevant past performance, requiring a Past
    Performance factor rating of Neutral rather than Satisfactory, and (2) other offerors might see
    their Past Performance factor rating improve if they received better CPARS ratings for their
    contracts with higher center OBSs. Similarly, if the Department of Labor decided that only
    contracts that included center operations, Outreach and Admissions, and Career Transition
    16
    The court identified only one such piece of information. In the evaluation of [. . .]’s
    proposal on the Staff Resources factor, the technical evaluators stated: “[T]he Turner Job Corps
    Center includes a residential parent program where a select number of students reside in an
    apartment building on campus with their young children, which requires additional security than
    on a typical Job Corps campus.” AR 3207.
    17
    The two decisions relied upon by Odle for the proposition that errors affecting all
    offerors equally are not prejudicial are distinguishable. In both of those cases, the protestor and
    the awardee similarly deviated from the requirements of the solicitation and the procuring
    agency accepted those deviations. See G4S Secure Integration, LLC v. United States, No. 21-
    1817C, 
    2022 WL 211023
    , at *9 (Fed. Cl. Jan. 24, 2022) (unpublished opinion), appeal docketed,
    No. 22-1513 (Fed. Cir. Mar. 8, 2022); VS2, LLC v. United States, 
    155 Fed. Cl. 738
    , 768 (2021).
    In this case, however, there is no suggestion that the offerors deviated from the solicitation’s
    requirements; they were entitled to identify whatever past performance they believed to be
    relevant to the proposed Turner Job Corps Center contract. The Department of Labor was solely
    and independently responsible for determining what past performance was relevant. Moreover,
    unlike in G4S Secure Integration, any change that the Department of Labor makes in the criteria
    it uses to assess relevance might impact its evaluation of each proposal in a different manner.
    -23-
    Services were relevant, and an offerors’ past performance did not include any such contracts,
    then that offeror would be rated Neutral, not Satisfactory, for the Past Performance factor. 18
    And, on the flip side, if the Department of Labor altered its relevancy criteria in a manner that
    would eliminate some of MTC’s prior contracts from consideration, it is possible that MTC’s
    rating on the Past Performance factor would improve from its current Satisfactory rating since all
    of its CPARS ratings for Job Corps contracts with higher OBSs were Satisfactory or better. See
    AR 3217-19.
    Since the administrative record does not reflect where the Department of Labor might
    draw the line between relevant and irrelevant, or how that line might affect its evaluation of the
    proposals (including Odle’s proposal, which otherwise received the same nonprice adjectival
    ratings as MTC’s proposal), the court cannot conclude that MTC did not have a substantial
    chance of being awarded the contract had the agency properly conducted its relevancy
    assessment. MTC was therefore prejudiced by the agency’s errors.
    D. Subcontractor Past Performance
    MTC’s next contention is that the Department of Labor did not adhere to the
    solicitation’s requirements for evaluating subcontractor past performance. It is undisputed that a
    procuring agency’s evaluation of proposals “should be consistent with the factors, subfactors and
    procedures outlined in the solicitation.” L-3 Commc’ns EOTech, Inc. v. United States, 
    83 Fed. Cl. 643
    , 653 (2008); accord FAR 15.305(a) (“An agency shall evaluate competitive proposals
    and then assess their relative qualities solely on the factors and subfactors specified in the
    solicitation.”). And, if the evaluation “significantly differs from the evaluation process disclosed
    in the solicitation, the agency’s decision can be found to lack a rational basis.”
    360Training.com, Inc. v. United States, 
    106 Fed. Cl. 177
    , 184 (2012).
    MTC’s challenge is based on the following sentence from the solicitation: “The
    Government will consider Past Performance information for the entity proposed as the prime
    18
    If the Department of Labor considered relevant only contracts at Job Corps centers
    with OBSs greater than 450 that involved center operations, Outreach and Admissions, and
    Career Transition Services, then Odle’s relevant past performance might include only a single
    contract––the Pittsburgh Job Corps Center contract. See AR 2695, 2699. If so, Odle might
    avoid receiving a Neutral rating for the Past Performance factor. See 
    id. at 259
     (indicating, in the
    solicitation, that “[i]n accordance with the [FAR], an offeror without a record of relevant past
    performance . . . will receive a Neutral rating”), 3210 (indicating, in the Source Selection
    Authority’s Business Clearance Memorandum, that a Neutral rating indicates that there is no past
    performance record). But see id. at 3131 (indicating, in the Source Selection Plan, that a Neutral
    rating could be assigned—in accordance with FAR 15.305(a)(2)(iv)—to “an offeror without a
    record of relevant past performance or for whom information on past performance is not
    available or so sparse that no meaningful past performance rating can be reasonably assigned”);
    FAR 15.305(a)(2)(iv) (“In the case of an offeror without a record of relevant past performance or
    for whom information on past performance is not available or so sparse that no meaningful past
    performance rating can be reasonably assigned, the offeror may not be evaluated favorably or
    unfavorably on past performance.”).
    -24-
    contractor, as well as information for proposed subcontractors that will perform major or critical
    aspects of the requirement, when such information is relevant to this procurement.” AR 259.
    Defendant contends that this sentence does not impose an obligation on the Department of Labor
    to evaluate qualifying subcontractor past performance, and that when read in context with the
    sentence that follows (“However, greater emphasis may be placed on the past performance of the
    prime contractor.”), it is clear that the agency possessed the discretion not to conduct such an
    evaluation. Defendant’s interpretation is strained in two respects.
    First, by using the word “will,” the Department of Labor represented that it would
    consider the described subcontractor past performance information. It did not qualify this
    representation by stating that it would only consider information concerning subcontractors that
    were expressly designated by offerors as performing “major” or “critical” work, 19 or by
    providing that it would only consider such information if supplied by the offeror. “Will
    consider” means just that. Second, the Department of Labor’s representation that it reserved the
    right to place greater emphasis on the past performance of the primary contractor does not
    extinguish the obligation to consider subcontractor past performance in the first instance.
    Rather, the agency was merely stating that it would assign whatever weight to subcontractor past
    performance it believed was appropriate.
    In short, the Department of Labor obligated itself to consider relevant past performance
    information for “proposed subcontractors that [would] perform major or critical aspects of the
    [Turner Job Corps Center] requirement . . . .” Id. MTC contends that the Department of Labor
    violated this provision by not considering the past performance of Paxen, the subcontractor
    designated by Odle to perform Outreach and Admissions, despite Outreach and Admissions
    being a major or critical component of the services solicited by the agency. Defendant and Odle
    dispute MTC’s characterization of Outreach and Admissions as major or critical, relying on a
    sentence from the sworn statement made by the Source Selection Authority to the GAO:
    [Outreach and Admissions] services are not considered a major or critical aspect
    of this requirement for purposes of the past performance evaluation. Though
    important, [Outreach and Admissions] services are but a small portion of the
    19
    That offerors were not required to identify past performance that specifically related to
    Outreach and Admissions, as defendant observes, does not eliminate the Department of Labor’s
    obligation to consider past performance information for subcontractors that are proposed to
    perform Outreach and Admissions work if, as the court finds below, that work is “major or
    critical.” Indeed, the Department of Labor advised offerors in the solicitation that it would rely
    on sources of information outside of the proposals to assess the quality of the offerors’ past
    performance, see AR 258, and did, in fact, evaluate past performance on contracts that were not
    identified in the offerors’ proposals, compare id. at 2192-95 ([. . .] proposal identifying five
    contracts), 2699 (Odle proposal identifying nine contracts), with id. at 3211-13 (evaluating
    fourteen contracts for [. . .]), 3221-22 (evaluating eleven contracts for Odle). Moreover, contrary
    to defendant’s suggestion, the Department of Labor’s statement that its evaluation would
    “include consideration of” offerors’ past performance doing the work described in the Workforce
    Innovation and Opportunity Act, see id. at 258, does not mean that the agency would not, or
    could not, consider past performance doing other work described in the solicitation.
    -25-
    overall work to be performed under the solicitation. And they are secondary to
    the main service, which is operations of the Job Corps Center. 20
    Id. at 3971 (emphasis and footnote added).
    It is difficult to reconcile defendant’s and Odle’s position, and the Source Selection
    Authority’s statement, with the plain language of the solicitation. Throughout the solicitation,
    the Department of Labor stated that it sought to award a contract to provide three types of
    services at the Turner Job Corps Center: operation of the center, Outreach and Admissions, and
    Career Transition Services. See, e.g., id. at 174 (Standard Form 33), 176 (background), 177-80
    (contract line items), 182-87 (statement of work), 190 (period of performance), 251 (Staff
    Resources proposal requirements). It also stated that in evaluating the proposals under the
    Technical Approach factor, it would consider the five subfactors (including Outreach and
    Admissions) as “relatively equal in importance to each other,” making the Outreach and
    Admissions rating worth approximately 20% of the most important factor. Id. at 258.
    Furthermore, it indicated that there would be financial penalties for failing to maintain the
    required OBS (in other words, to recruit and admit a sufficient number of students). And, it
    incorporated into the solicitation its Policy and Requirements Handbook, which states that
    Outreach and Admissions providers perform the following tasks:
    •    “receive and respond to prospective applicants, inform them about Job Corps
    training and education programs and center life, and assess applicants’
    likelihood of success”;
    •    “process applications consistent with applicable law and policy requirements,
    keep applicants informed of their status, and report to federal managers on
    detailed information regarding the status of applicants during each phase of
    the admissions process”; and
    •    “work cooperatively with a multitude of organizations in order to promote
    referrals of Job Corps applicants; introduce students to all aspects of center
    life and center education and training opportunities; interact with the
    applicants in accordance with applicable law and Job Corps policy
    requirements; assist applicants with career planning; advise applicants of
    admissions determination; and coordinate applicants’ arrival on centers among
    other responsibilities.”
    Office of Job Corps, U.S. Dep’t of Labor, Policy and Requirements Handbook § 1.0 (June 17,
    2022).
    20
    This sentence does not constitute a relevancy determination, as defendant suggests.
    Rather, the Source Selection Authority is commenting on whether Outreach and Admissions
    work was “major or critical” such that the Department of Labor was required to assess whether
    any past performance of the subcontractors proposed to do this work was relevant (and therefore
    to be considered as part of its evaluation under the Past Performance factor).
    -26-
    While the Outreach and Admissions work might not be considered “major” because of
    the expectation that the contractor would not be required to devote significant resources to satisfy
    its Outreach and Admissions obligations, it is certainly a “critical” aspect of the Turner Job
    Corps Center contract requirements. 21 The Department of Labor would not award the contract to
    an offeror that did not include Outreach and Admissions in its proposal, and the recruitment and
    admission of students was vital to a contractor’s ability to maintain the required OBS of 732. It
    is unclear how a contractor could perform the work described in the solicitation’s statement of
    work without providing Outreach and Admissions services. Thus, Outreach and Admissions
    meets the definition of “critical.” The contention of defendant, Odle, and the Source Selection
    Authority otherwise is contrary to the solicitation. 22
    In its proposal, Odle indicated that Outreach and Admissions would be performed by
    Paxen, a subcontractor. Because this work is a “critical aspect[] of the requirement,” the
    Department of Labor was required to evaluate Paxen’s relevant past performance. However,
    there is no evidence in the administrative record indicating that the Department of Labor sought
    or obtained any past performance information for Paxen as it did for the six primary offerors;
    indeed, Paxen is not mentioned anywhere in the Source Selection Authority’s Business
    Clearance Memorandum. The agency’s failure to adhere to the solicitation’s requirements for
    evaluating past performance is arbitrary and capricious.
    Furthermore, MTC was prejudiced by the Department of Labor’s failure to address
    Paxen’s past performance. Odle represents in its proposal that Paxen has [. . .] and [. . .]. AR
    2695. Consequently, the Department of Labor might have been able to obtain past performance
    information for Paxen, deem that information to be relevant, and then assess the quality of
    Paxen’s past performance. And, if it was able to identify relevant past performance information
    for Paxen, and that information was generally negative, then Odle’s Past Performance rating may
    have been adversely affected such that Odle would have been seen as a riskier choice than MTC.
    21
    The phrase “major or critical” is not defined in the solicitation. Thus, the assessment
    of whether “an aspect of the requirement” is “major or critical” can involve an examination of
    dollar values, personnel assignments, the percentage of work, and/or the type of work. See, e.g.,
    Am. Auto Logistics, LP v. United States, 
    117 Fed. Cl. 137
    , 197 (2014) (remarking that “the term
    ‘major’ refers to an ‘aspect’ of the work to be provided, not just a price or dollar value
    calculation”), aff’d, 599 F. App’x 958 (Fed. Cir. 2015); Info. Tech. & Applications Corp. v.
    United States, 
    51 Fed. Cl. 340
    , 352 (2001) (providing that “the percentage of the work proposed
    to be performed is one consideration and not the dispositive factor in determining whether the
    proposed effort of the subcontractor is a major or critical aspect of the work”), aff’d, 
    316 F.3d 1312
     (Fed. Cir. 2003). Moreover, “major” and “critical” mean different things. “Major” refers
    to something that is “[g]reat in scope and effect” or “[g]reat in number, size, or extent[.]” Major,
    The American Heritage College Dictionary (4th ed. 2004). “Critical,” in contrast, refers to
    something that is “[i]ndispensible; essential.” Critical, 
    id.
    22
    Because the Source Selection Authority’s statement conflicts with the plain language
    of the solicitation, the court need not decide, as a threshold matter, whether it is appropriate to
    consider that statement, which was prepared during the GAO protest.
    -27-
    Of course, none of this may be true: Paxen may not have any past performance that the
    Department of Labor would deem relevant or Paxen may have a stellar past performance record.
    But because the Department of Labor did not attempt to assess Paxen’s past performance, and
    because MTC and Odle were the two highest-rated offerors (with MTC proposing the third-
    lowest price), the court must conclude that MTC would have a substantial chance of being
    awarded the contract if the Department of Labor had adhered to the process set forth in the
    solicitation. 23
    E. Unequal Treatment
    MTC next argues that in evaluating the proposals on the Staff Resources factor, the
    Department of Labor identified weaknesses in [. . .]’s and [. . .]’s proposals but ignored the same,
    or almost identical, weaknesses in Odle’s proposal. It is well established that procuring agencies
    “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) (citing Seattle Sec. Servs., Inc. v. United States, 
    45 Fed. Cl. 560
    , 569 (2000)), aff’d,
    
    365 F.3d at 1345
    ; see also PGBA, LLC v. United States, 
    60 Fed. Cl. 196
    , 207 (2004) (“[U]neven
    treatment goes against the standard of equality and fair-play that is a necessary underpinning of
    the federal government’s procurement process and amounts to an abuse of the agency’s
    discretion.”), aff’d, 
    389 F.3d 1219
     (Fed. Cir. 2004). However, to prevail on a disparate treatment
    claim involving the subjective evaluation of proposals, a protestor must show that its proposal
    was “‘substantively indistinguishable’ or nearly identical” to a competitor’s proposal but was
    evaluated differently. Off. Design Grp. v. United States, 
    951 F.3d 1366
    , 1372 (Fed. Cir. 2020)
    (quoting Hamilton Sundstrand Power Sys. v. United States, 
    75 Fed. Cl. 512
    , 516 (2007)); accord
    Ascendant Servs., LLC v. United States, 
    160 Fed. Cl. 275
    , 291 (2022) (“[T]the inquiry on a
    disparate evaluation claim is the same whether the disparate evaluation involves a strength,
    weakness, or deficiency: the Court is examining whether there is something in the protestor’s
    proposal that is different from one or more other proposals that is rated higher.”). However,
    “[w]hen a court is not convinced that the aspects of the proposals brought to its attention are
    indistinguishable for the purposes of the evaluation, then the exercise crosses the line and
    involves the second guessing of ‘minutiae’ which [courts] are not allowed to undertake.”
    Enhanced Veterans Sols., Inc. v. United States, 
    131 Fed. Cl. 565
    , 588 (2017) (quoting E.W.
    Bliss, 
    77 F.3d at 449
    ).
    23
    To the extent that Paxen lacks any past performance relevant to Outreach and
    Admissions, the court disagrees with plaintiff that the Department of Labor would be required to
    assign Odle a Neutral rating for the Past Performance factor. It appears that Odle itself has
    Outreach and Admissions experience, and because Odle is ultimately responsible for performing
    the work required by the contract, the Department of Labor was permitted to evaluate that
    experience. However, because the Department of Labor did not consider whether Paxen had any
    relevant past performance, because the quality of any such past performance is unknown, and
    because the agency’s assessment of past performance relevance was inadequate, it is not possible
    to conclude on the existing administrative record that Odle’s Satisfactory rating for the Past
    Performance factor is reasonable.
    -28-
    Here, MTC does not allege that the Department of Labor evaluated its proposal
    differently from the proposals submitted by Odle or the other offerors. Accordingly, its disparate
    treatment claim does not fall within the parameters described in Office Design. Moreover, MTC
    has not supplied any legal authority for the proposition that a protestor can prevail on a claim
    that the procuring agency disparately evaluated the proposals of the other offerors. 24 Yet that is
    the type of claim it advances here. Specifically, MTC argues that had the Department of Labor
    assigned the same weaknesses to Odle’s proposal as it did to [. . .]’s and [. . .]’s proposals, it
    would have assigned a lower rating to Odle’s proposal on the Staff Resources factor, leading to
    MTC’s proposal being the highest rated overall on the nonprice factors. As explained by
    defendant and Odle, there is an obvious flaw in MTC’s argument. If, as MTC alleges, the
    Department of Labor evaluated the proposals of Odle, [. . .], and [. . .] in a disparate manner, one
    available remedy would be the retraction of the weaknesses identified in the [. . .] and [. . .]
    proposals, rather than the assignment of weaknesses to Odle’s proposal. Thus, there would be no
    downgrade of Odle’s proposal such that MTC’s proposal would be considered superior on the
    nonprice factors. In other words, MTC would not be prejudiced by the Department of Labor’s
    purported disparate treatment. Accord Mil-Mar Century Corp. v. United States, 
    111 Fed. Cl. 508
    , 534 (2013) (“Plaintiff cites to no authority, and the court is aware of none, that supports
    plaintiff’s argument that a party not subject to the alleged unequal treatment claims can
    demonstrate prejudice.”).
    MTC’s disparate treatment argument also fails on its merits. According to MTC, the
    Department of Labor evaluated proposals unequally on three topics: (1) whether offerors
    proposed an [. . .], (2) the number of proposed security personnel, and (3) the proposed
    scheduling of security personnel. First, MTC contends that [. . .]’s proposal was assigned a
    weakness for [. . .]’s failure to propose an [. . .], but Odle’s proposal was not assigned a weakness
    even though Odle also did not propose an [. . .]. Although Odle’s staffing chart did not include
    24
    The sole decision that MTC mentions, BayFirst Solutions, LLC v. United States, 
    102 Fed. Cl. 677
     (2012), does not support its position. In BayFirst, the protestor observed that the
    awardee’s proposal was assigned a strength because all of the resumes it provided for its key
    personnel met the requirements set forth in the solicitation, but that, in fact, four of the resumes
    did not meet the solicitation’s requirements. 
    Id. at 686
    . The court therefore concluded that the
    assignment of a strength for the awardee’s proposal was erroneous. 
    Id.
     Although the court then
    noted that the procuring agency assigned risks or weaknesses to other offerors’ proposals when
    their submitted resumes did not meet the requirements of the solicitation, this finding was not the
    basis for the court’s ultimate conclusion of disparate treatment:
    [The protestor] was not assigned a strength for Personnel despite having presented
    resumes with the requisite experience, whereas [the awardee] was assigned a
    strength for Personnel despite having included resumes that clearly did not meet
    all requirements. This constitutes either disparate treatment of offerors, or an
    irrational evaluation of [the awardee]’s and [the protestor]’s proposals. The court
    finds that the . . . ratings for [the awardee] and [the protestor] were arbitrary and
    capricious.
    
    Id.
     (citation omitted).
    -29-
    an [. . .], see AR 2713, Odle stated, elsewhere in the Staff Resources section of its proposal, that
    it would “ensure all contract positions are full, with negotiations conducted well in advance of
    contract expirations,” and that [. . .], id. at 2705; accord id. at 2728. Because the [. . .] proposal
    did not mention the [. . .] requirement at all, Odle’s proposal is substantively distinguishable,
    rendering it improper for the court to analyze the reason for the Department of Labor’s decision
    to evaluate the proposals differently. See Off. Design, 951 F.3d at 1372.
    Second, MTC contends that [. . .]’s proposal was assigned a significant weakness for
    [. . .] proposing [. . .] security personnel, but Odle’s proposal was not assigned a weakness for
    Odle proposing [. . .] security personnel. Once again, because the two proposals are
    substantively distinguishable, it would be improper for the court to analyze the reason for the
    Department of Labor’s decision to evaluate the proposals differently. See id. Indeed, it was
    within the Department of Labor’s discretion to draw the line between [. . .] and [. . .] when
    determining the number of security personnel that are necessary to staff the Turner Job Corps
    Center. Accord AGMA Sec. Serv., Inc. v. United States, 
    158 Fed. Cl. 611
    , 623-24 (2022)
    (characterizing “[t]he decision where to draw the line” when evaluating proposals as one
    “committed to the discretion of the agency”). It was also within the agency’s discretion not
    assign any kind of weakness for proposing a number of security personnel that is only [. . .]
    greater than the number warranting the assignment of a significant weakness.
    Third, MTC contends that [. . .]’s proposal was assigned a significant weakness for [. . .]
    proposing [. . .] security personnel for the night shift three days per week, but Odle’s proposal
    was not similarly assigned a weakness for Odle’s proposed staffing of the night shift. However,
    there are marked differences between [. . .]’s and Odle’s proposals. [. . .] proposed [. . .] security
    personnel for the night shift three days per week, with [. . .] security personnel staffing the night
    shift on the remaining days. AR 3208. Odle proposed [. . .] security personnel for the night shift
    four days per week, with [. . .] security personnel staffing the night shift on the remaining days.
    
    Id. at 2729
    . The substantive difference between the two proposals render it improper for the
    court to analyze the reason for the Department of Labor’s decision to evaluate the proposals
    differently. See Off. Design, 951 F.3d at 1372. Indeed, it was well within the Department of
    Labor’s discretion to determine––as it appears to have done here––that at least [. . .] security
    personnel were necessary to sufficiently staff the night shift. Accord AGMA Sec. Serv., 158
    Fed. Cl. at 623-24.
    In summary, MTC has not alleged a disparate treatment claim cognizable by the court
    and, even if its disparate treatment claim was cognizable, it would not be successful on its merits.
    Accordingly, the court must deny MTC’s protest as to this claim.
    F. Price Realism
    The court also rejects MTC’s claim that the Department of Labor departed from the
    solicitation by failing to conduct a price realism analysis. 25 A “[p]rice realism analysis is done in
    25
    The methods described in the FAR for ensuring that a proposed price is fair and
    reasonable include a “cost realism analysis,” FAR 15.404-1(d), but not a “price realism
    analysis,” see FAR 15.404-1. However, “in common usage a cost realism analysis performed in
    -30-
    fixed-price acquisitions to determine whether a price is unrealistically low and to what degree,
    and to figure out why it is low so that risk can be properly assessed.” Price Realism: A Primer,
    supra note 25; accord UnitedHealth Mil. & Veterans Servs., LLC v. United States, 
    132 Fed. Cl. 529
    , 554 (2017). A procuring “agency may, at its discretion, provide for the use of a price
    realism analysis to measure an offeror’s understanding of the solicitation requirements, or to
    avoid the risk of poor performance from a contractor who is forced to provide goods or services
    at little or no profit.” Ceres Envtl. Servs., Inc. v. United States, 
    97 Fed. Cl. 277
    , 303 (2011).
    However, if a solicitation “does not expressly or implicitly require a price realism analysis,” a
    procuring agency is prohibited from conducting one. 
    Id. at 306
    ; accord FAR 15.305(a) (noting
    that procuring agencies must “evaluate competitive proposals and then assess their relative
    qualities solely on the factors and subfactors specified in the solicitation”); see also
    UnitedHealth, 
    132 Fed. Cl. at 554-55
     (providing examples of language that has been deemed to
    require agencies to conduct a price realism analysis in the absence of an express directive in the
    solicitation).
    MTC maintains that the Department of Labor, in accordance with the solicitation, was
    required to conduct a price realism analysis but failed to do so. This requirement, it contends, is
    found in the following sentence in section M of the solicitation: “In accordance with FAR
    15.404-1, the Government will conduct a price analysis to assess whether the contract price
    proposed is fair and reasonable.” AR 259 (emphasis added). As defendant and Odle argue, this
    sentence does not create an express or implied obligation to conduct a price realism analysis.
    FAR 15.404-1 sets forth a number of proposal analysis techniques that procuring
    agencies can use “to ensure that the final agreed-to price is fair and reasonable.” FAR 15.404-
    1(a). These techniques include, among others, price analysis, cost analysis, and cost realism
    analysis. FAR 15.404-1(b)-(d). Price analysis, the technique identified in the solicitation at
    issue, is “used when certified cost or pricing data are not required,” FAR 15.404-1(a)(3), as in
    this procurement, see AR 245 (“[T]he Government anticipates that this solicitation will result in
    adequate price competition and therefore will not require offerors to submit Certified Cost or
    Pricing Data.”). Specifically, price analysis is “the process of examining and evaluating a
    proposed price without evaluating its separate cost elements and proposed profit . . . .” FAR
    15.404-1(b)(1). “The Government may use various price analysis techniques and procedures to
    ensure a fair and reasonable price,” including “[c]omparison of proposed prices received in
    response to the solicitation”; “[c]omparison of the proposed prices to historical prices paid,
    whether by the Government or other than the Government, for the same or similar items”; and
    “[c]omparison of proposed prices with independent Government cost estimates.” FAR 15.404-
    1(b)(2). An analysis of price realism is not one of the enumerated price analysis techniques. See
    
    id.
    The case law relied upon by MTC does not support its contention that the language in the
    solicitation requires a price realism analysis. In Afghan American Army Services Corp. v.
    United States, the issue was not whether a price realism analysis was required, but instead
    a fixed-price acquisition is called a price realism analysis.” Price Realism: A Primer, 28 Nash &
    Cibinic Rep. NL ¶ 1 (Jan. 2014); see also DMS All-Star Joint Venture v. United States, 
    90 Fed. Cl. 653
    , 663 (2010) (explaining what a “price realism analysis” entails).
    -31-
    whether the price realism analysis undertaken by the procuring agency was adequate. 
    90 Fed. Cl. 341
    , 355 (2009). Thus, although the court examined the language of the solicitation upon
    which the procuring agency’s price realism analysis was based, it did not render an opinion as to
    whether that language required a price realism analysis. See 
    id. at 357
    . Furthermore, the
    language of the solicitation at issue in that case is quite distinct from the language in the
    Department of Labor’s solicitation. Compare 
    id.
     (“The . . . solicitation stated that the agency
    would ‘evaluate price proposals to determine whether the offered price reflects a sufficient
    understanding of the contract requirements and the risk inherent in the offeror’s approach.’
    Proposals that had ‘an unreasonable (high or low) price may be deemed to be unacceptable and
    may not receive further consideration.’ The ‘competitive procurement will establish the basis for
    price reasonableness’ and the ‘price proposals will be evaluated by comparison of proposed
    prices received in response to this solicitation.’”), with AR 259 (“[T]he Government will conduct
    a price analysis to assess whether the contract price proposed is fair and reasonable.”).
    The language of the solicitation in DMS All-Star, 
    90 Fed. Cl. at 653
    , is also substantially
    different from the language in the Department of Labor’s solicitation. In DMS All-Star, the
    solicitation provided that “Price/Cost [would] be evaluated using price and/or cost analysis
    techniques” and that the procuring agency was “interested in proposals that offer[ed] value in
    meeting the requirements, with an acceptable performance risk, at a fair and reasonable price.”
    
    Id. at 656
    . It also provided: “A proposal that is unrealistic in terms of technical quality or price
    will be deemed reflective of an inherent lack of technical competence or indicative of failure to
    comprehend the complexity and risks of the contractual requirements. Such proposals may be
    rejected as unacceptable without further evaluation or discussion.” 
    Id. at 664
    . No such language
    appears in the Department of Labor’s solicitation. Moreover, the issue before the court in DMS
    All-Star was not whether a price realism analysis was required, but whether the price realism
    analysis conducted by the procuring agency “was rational and consonant with the solicitation.”
    
    Id. at 665
    .
    Finally, MTC argues that a price realism analysis must be required because the fact that
    “[p]roposed Phase-In prices [would] be analyzed for reasonableness only,” AR 259, suggests that
    the remaining components of the offerors’ proposed prices would be analyzed for something
    more than just reasonableness. Even if the court agreed with MTC’s interpretation of this
    language in isolation, it would not matter because the language must be read in context to
    understand its meaning. Here is the language in context: “To foster competition and create a
    level field, please note that the Government will not evaluate Phase-In prices when calculating
    the offeror’s total evaluated price. Proposed Phase-In prices will be analyzed for reasonableness
    only.” 
    Id.
     In other words, the Department of Labor was clarifying that although it would
    determine whether proposed Phase-In prices were reasonable, it would not include an offeror’s
    Phase-In price in the offeror’s Total Evaluated Price (because of the likelihood that one offeror––
    the incumbent contractor––would have no Phase-In costs). It was not implying that it would
    analyze the reasonableness of the other components of the offerors’ proposed prices any
    differently. Accordingly, MTC’s argument lacks merit.
    The Department of Labor was not required, either expressly or implicitly, to analyze the
    realism of the offerors’ proposed prices. Rather, it was obligated to determine, through a price
    -32-
    analysis, whether the offerors’ proposed prices were fair and reasonable, and it satisfied this
    obligation by comparing the offerors’ proposed prices to each other and to the IGCE.
    G. Professional Compensation
    MTC also alleges another error in the Department of Labor’s assessment of proposed
    prices: that the agency’s evaluation of the offerors’ Professional Staff Compensation Plans
    violated the FAR and was arbitrary and capricious.
    1. FAR and Solicitation Requirements
    As noted above, FAR 52.222-46, Evaluation of Compensation for Professional
    Employees, was incorporated by reference into the solicitation. 26 “The purpose of the review
    envisioned by this clause is ‘to evaluate whether offerors will obtain and keep the quality of
    professional services needed for adequate contract performance, and to evaluate whether offerors
    understand the nature of the work to be performed.’” CRAssociates, Inc. v. United States, 
    95 Fed. Cl. 357
    , 370 (2010) (quoting Innovative Mgmt., Inc., 2003 CPD ¶ 209 (Comp. Gen. Nov. 7,
    2003)); accord FAR 52.222-46(a) (reflecting that the clause is meant to address the “lowering”
    of professional compensation that may occur when contracts are recompeted, which “can be
    detrimental in obtaining the quality of professional services needed for adequate contract
    performance”). Overall, the clause’s objective is to ensure “that professional employees” are
    “properly and fairly compensated.” FAR 52.222-46(a).
    In furtherance of this objective, offerors must submit with their proposals “a total
    compensation plan setting forth salaries and fringe benefits proposed for the professional
    employees who will work under the contract,” along with the “data, such as recognized national
    and regional compensation surveys and studies of professional, public and private organizations,
    used in establishing the total compensation structure.” 
    Id.
     “The compensation levels proposed
    should reflect a clear understanding of work to be performed and should indicate the capability
    of the proposed compensation structure to obtain and keep suitably qualified personnel to meet
    mission objectives.” FAR 52.222-46(b).
    The procuring agency must then “evaluate the plan to assure that it reflects a sound
    management approach and understanding of the contract requirements.” FAR 52.222-46(a). In
    particular, its evaluation is to “include an assessment of the offeror’s ability to provide
    uninterrupted high-quality work” and a consideration of the proposed professional
    compensation’s “impact upon recruiting and retention, . . . realism, and . . . consistency with a
    total plan for compensation.” 
    Id.
     Further, when an offeror proposes “compensation levels lower
    than those of predecessor contractors for the same work,” the procuring agency is to evaluate that
    offeror’s plan “on the basis of maintaining program continuity, uninterrupted high-quality work,
    and availability of required competent professional service employees” because “lowered
    26
    “[T]he contracting officer shall insert the provision at 52.222-46, Evaluation of
    Compensation for Professional Employees, in solicitations for negotiated contracts when the
    contract amount is expected to exceed $750,000 and services are to be provided which will
    require meaningful numbers of professional employees.” FAR 22.1103.
    -33-
    compensation for essentially the same professional work may indicate lack of sound
    management judgment and lack of understanding of the requirement.” FAR 52.222-46(b).
    Ultimately, “[p]rofessional compensation that is unrealistically low or not in reasonable
    relationship to the various job categories, since it may impair the Contractor’s ability to attract
    and retain competent professional service employees, may be viewed as evidence of failure to
    comprehend the complexity of the contract requirements.” FAR 52.222-46(c).
    In the solicitation, the Department of Labor specifically instructed offerors to submit a
    Professional Staff Compensation Plan and supporting information as part of their Business
    Management Proposals, and indicated that the term “professional employees” was defined in
    FAR 22.1102. AR 252. FAR 22.1102, in turn, defines “professional employee” as “any person
    meeting the definition of ‘employee employed in a bona fide . . . professional capacity’ given in”
    29 C.F.R. part 541, and explains that “[t]he term embraces members of those professions having
    a recognized status based upon acquiring professional knowledge through prolonged study.” See
    also 
    29 C.F.R. § 541.300
     (indicating that an “employee employed in a bona fide professional
    capacity” includes employees “[w]hose primary duty is the performance of work” that requires
    “knowledge of an advanced type in a field of science or learning customarily acquired by a
    prolonged course of specialized intellectual instruction” or “invention, imagination, originality or
    talent in a recognized field of artistic or creative endeavor”). “Examples of these professions
    include accountancy, actuarial computation, architecture, dentistry, engineering, law, medicine,
    nursing, pharmacy, the sciences (such as biology, chemistry, and physics[)], and teaching[].”
    FAR 22.1102.
    Finally, the Department of Labor indicated in section M of the solicitation that it would
    evaluate the Professional Staff Compensation Plans “such that plans indicating unrealistically
    low professional employee compensation may be assessed adversely as one of the factors
    considered in making an award.” AR 260.
    2. Adequacy of the Evaluation
    MTC raises two issues with the Department of Labor’s evaluation of Professional Staff
    Compensation Plans. 27 First, it contends that the agency did not assess whether the plans
    satisfied the requirements set forth in FAR 52.222-46(a), in other words, (1) whether they
    “reflect[] a sound management approach and understanding of the contract requirements”; (2)
    whether they demonstrate “the offeror’s ability to provide uninterrupted high-quality work”; (3)
    their “impact upon recruiting and retention”; and (4) their “consistency with a total plan for
    compensation.” Second, with respect to the analysis that the Department of Labor did conduct,
    MTC contends that the agency did not explain why it examined only eight-to-ten positions for
    each offeror, how it selected those positions, and why it did not analyze the same positions for all
    offerors.
    27
    In addition to these issues, MTC complains that the Department of Labor did not
    explicitly state that it was evaluating the offerors’ Professional Staff Compensation Plans but
    instead referred to each offeror’s “Staff Salary and Compensation Report.” Although the
    inaccurate nomenclature is unfortunate, the context of its usage provides no doubt that the
    Department of Labor was evaluating the offerors’ Professional Staff Compensation Plans.
    -34-
    In response, defendant argues that the solicitation’s language cabining the effect of the
    evaluation of Professional Staff Compensation Plans—such that a plan “indicating unrealistically
    low professional employee compensation may be assessed adversely as one of the factors
    considered in making an award,” AR 260—provided the Department of Labor with the discretion
    to evaluate the plans by comparing the proposed salaries with the average base salaries for the
    Albany, Georgia region. 28 Defendant further contends that MTC has not established that it was
    prejudiced by the Department of Labor’s purported evaluation errors because it does not contend
    that Odle’s Professional Staff Compensation Plan was unrealistic. Odle, in turn, characterizes
    the criteria set forth in FAR 52.222-46 as “objectives” and “truisms regarding the purpose for
    conducting a professional compensation realism analysis but do[] not mandate a particular
    method as to how to conduct that analysis or that an agency must use . . . ‘magic’ words in
    documenting its analysis.” Odle’s Cross-Mot. 9 (referring to “sound management approach and
    understanding of the contract requirements,” “impact upon recruiting and retention,”
    “consistency with a total plan for compensation,” and “offeror’s ability to provide uninterrupted
    high-quality work”). Consequently, it argues, all that was required of the Department of Labor
    28
    In advancing this argument, defendant implies that the Department of Labor was not
    required to comply with the requirements of FAR 52.222-46 because the solicitation provided
    other criteria for evaluating professional employee compensation plans. See, e.g., Def.’s Cross-
    Mot. 34 (“MTC argues that [the Department of Labor]’s analysis was not adequate under ‘the
    factors outlined in FAR 52.222-46[.’] However, MTC’s argument is premised on a misreading
    of the [solicitation]. Although Section L of the [solicitation] instructed offerors to submit the
    information required by FAR 52.222-46, Section M of the [solicitation]—which outlines the
    evaluation process—only stated that ‘Professional Staff Compensation Plan will be evaluated
    such that plans indicating unrealistically low professional employee compensation may be
    assessed adversely as one of the factors considered in making an award.’ This vested [the
    Department of Labor] with discretion as to how to [evaluate the plans].” (quoting AR 260)); Oral
    Argument at 1:26:20-1:27:00 (“When you take . . . a closer look at the [decision in OMV
    Medical, Inc. v. United States, 
    219 F.3d 1337
     (Fed. Cir. 2000)], it’s very apparent that the
    Federal Circuit did not conclude that the FAR imposed such a requirement [to compare proposed
    professional compensation with the compensation being paid by the existing contractor], but
    rather that the [solicitation] in that case did. . . . [The requirements were] all from the
    [solicitation] itself. But no such requirements are present in this [solicitation].”). If defendant so
    believes, it is mistaken. FAR 52.222-46 was incorporated by reference into the solicitation and
    the Department of Labor was required to comply with its terms. See AR 244 (“This solicitation
    incorporates one or more solicitation provisions by reference, with the same force and effect as if
    they were given in full text.”); CRAssociates, 
    95 Fed. Cl. at 378
     (“The [procuring agency]’s
    failure to comply with [FAR 52.222-46] constituted a departure from the evaluation criteria
    specified in the solicitation and, correspondingly, a violation of both the FAR and the
    Competition in Contracting Act.”). Indeed, the solicitation’s evaluation criteria and FAR
    52.222-46 can coexist. An analysis performed in compliance with FAR 52.222-46 would result
    in the determination that an offeror did or did not propose unrealistically low professional
    employee compensation, which could, pursuant to the solicitation’s evaluation criteria, affect the
    award decision.
    -35-
    was to ensure that the offerors’ proposed professional compensation was not unrealistically low
    or unreasonable, and the agency’s evaluation satisfied this requirement.
    A review of the requirements of FAR 52.222-46; the solicitation’s requirements; the
    Professional Staff Compensation Plans submitted by [. . .], MTC, and Odle; and the Department
    of Labor’s evaluation of those plans reveals a number of significant deficiencies with the
    agency’s evaluation. As an initial matter, there is no evidence that the Department of Labor—
    either the evaluators or the Source Selection Authority—compared the offerors’ proposed
    professional compensation to the professional compensation being paid by the incumbent
    contractor, MTC. 29 The requirement that such a comparison be performed is apparent from the
    plain language of the clause and confirmed by binding and nonbinding precedent.
    FAR 52.222-46(b) provides: “[P]roposals envisioning compensation levels lower than
    those of predecessor contractors for the same work will be evaluated on the basis of maintaining
    program continuity, uninterrupted high-quality work, and availability of required competent
    professional service employees.” In other words, if an offeror proposes professional
    compensation below what is being paid by the existing contractor for the same work, the
    procuring agency must evaluate whether the offeror could maintain the existing type and quality
    of work if it was awarded the contract. Logically, a comparison of proposed and existing
    professional compensation is necessary to determine whether this additional evaluation is
    necessary.
    There is ample legal authority supporting this plain-language reading of FAR 52.222-
    46(b), starting with OMV Medical. That case concerned a solicitation clause with language
    strikingly similar to the language in FAR 52.222-46:
    Clause L-95 of the [solicitation] was entitled “Evaluation of
    Compensation for Professional Employees.” That clause explained that the
    29
    This issue, not specifically raised by MTC, came to the court’s attention as it reviewed
    FAR 52.222-46 and the case law relevant to the evaluation of professional employee
    compensation plans. Because MTC generally challenges the Department of Labor’s evaluation
    of the offerors’ Professional Staff Compensation Plans, see Am. Compl. ¶¶ 35-42, the court finds
    it appropriate to note the agency’s failure to comply with any of FAR 52.222-46’s requirements.
    See Kamen v. Kemper Fin. Servs., Inc., 
    500 U.S. 90
    , 99 (1991) (“When an issue or claim is
    properly before the court, the court is not limited to the particular legal theories advanced by the
    parties, but rather retains the independent power to identify and apply the proper construction of
    governing law.”); accord Long Island Sav. Bank, FSB v. United States, 
    503 F.3d 1234
    , 1244-45
    (Fed. Cir. 2007); cf. Becton Dickinson & Co. v. C.R. Bard, Inc., 
    922 F.2d 792
    , 800 (Fed. Cir.
    1990) (explaining that the practice of considering an issue not raised in an opening brief to be
    waived “is, of course, not governed by a rigid rule but may as a matter of discretion not be
    adhered to where circumstances indicate that it would result in basically unfair procedure”).
    Moreover, the court afforded the parties the opportunity to address the issue during oral
    argument, and they all took advantage of that opportunity. See Order, Aug. 11, 2022 (identifying
    the issue and directing the parties to address it during oral argument); see, e.g., Oral Argument at
    31:46-34:47 (MTC), 1:21:50-1:29:11 (defendant), 1:42:37-1:44:44 (Odle).
    -36-
    proposed compensation levels would be reviewed to ensure that they reflected “a
    clear understanding of the work to be performed” and indicated “the capability of
    the proposed compensation structure to obtain and keep suitably qualified
    personnel to meet mission objectives.” In addition, clause L-95 explained that
    proposals with compensation levels lower than those of predecessor contractors
    for the same work would be evaluated “on the basis of maintaining program
    continuity, uninterrupted high-quality work, and availability of required
    competent professional service employees.”
    OMV Medical, 
    219 F.3d at 1339
     (emphasis added). Based on this language, the United States
    Court of Appeals for the Federal Circuit (“Federal Circuit”) concluded that the procuring agency
    was required to compare proposed and existing professional compensation. See 
    id. at 1343
    (observing that one component of the solicitation clause was “a determination of whether each
    offeror’s compensation package was generally consistent with the salaries being paid by the
    incumbent contractor,” and that this component “was designed to ensure that the incoming
    contractor would not experience a large turnover in the program workforce because of a
    significant reduction in salary levels”).
    The decision in CRAssociates, which concerned FAR 52.222-46, is even more on point.
    In that case, the protestor contended that the clause, which was incorporated by reference into the
    solicitation, required the procuring agency to compare proposed and existing professional
    compensation. 
    95 Fed. Cl. at 370
    . The court agreed: “[T]he clause’s language certainly infers
    the need for such a comparison as it requires the agency to perform additional analysis when an
    offeror’s compensation levels are lower than those paid by the incumbent.” Id.; accord 
    id. at 372
    . It explained “that the drafters of the FAR intended agencies to perform more analysis when
    a recompetition of an existing contract occurs, with the obvious goal of promoting a smooth
    transition from one contract to the next” and, therefore, “an agency is obliged to make the
    threshold comparison described in [FAR 52.222-46(b)] to determine whether it must conduct the
    further analysis of compensation plans required only for recompetitions.” 
    Id. at 370-71
    . It also
    asserted that the Federal Circuit’s decision in OMV Medical supported its interpretation of FAR
    52.222-46(b). See 
    id. at 371
    . See generally Sparksoft Corp. v. United States, 
    141 Fed. Cl. 609
    ,
    624 (2019) (adopting CRAssociates’ characterization of OMV Medical as requiring the
    comparison of proposed and existing professional compensation).
    During oral argument, defendant contended that CRAssociates’ analysis and conclusions
    had been undercut by more recent precedent rejecting a protestor’s contention that the procuring
    agency was required to compare proposed and existing professional compensation under the
    holdings of OMV Medical and CRAssociates. 30 See Oral Argument at 1:24:31-1:28:29
    30
    Defendant also contended that the requirements in FAR 52.222-46(b) are mere
    restatements of the requirements in FAR 52.222-46(a). See, e.g., Oral Argument at 1:22:38-
    1:22:54. However, FAR 52.222-46(b)’s requirements are focused specifically on situations in
    which the procuring agency is recompeting an existing contract, while FAR 52.222-46(a)’s
    requirements apply to all procurements of professional services. Accord CRAssociates, 
    95 Fed. Cl. at 370-71
    . In any event, the Department of Labor did not address the factors set forth in
    either section of FAR 52.222-46.
    -37-
    (discussing CSC Government Solutions LLC v. United States, 
    129 Fed. Cl. 416
    , 431-33 (2016),
    and declaring it to be “more persuasive”); see also 
    id.
     at 1:43:33-1:44:44 (reflecting Odle’s
    agreement with defendant’s position). The court disagrees. As is apparent from its own analysis
    of the clause, the CRAssociates court correctly construed the language of FAR 52.222-46(b) and
    properly relied on the decision in OMV Medical in support of its construction.
    In short, the Department of Labor was required to compare the offerors’ proposed
    professional compensation to the compensation being paid by MTC under the existing contract,
    but failed to do so. 31
    The Department of Labor also did not address all of the factors set forth in FAR 52.222-
    46. The only conclusion reached by the Department of Labor was: “Based on the results of that
    comparison and the salary data for the categories/positions proposed by [the offeror], the
    proposed salaries are in line with the average base salary range for the geographical region of
    Albany, Georgia.” AR 3229-32 (emphasis added). Assuming that this conclusion is accurate (as
    discussed below, it may not be), the mere fact that “the proposed salaries are in line” with
    regional salaries does not mean that the proposed salaries reflect a sound management approach
    or an understanding of the contract requirements. Moreover, the primary reason for the existence
    of FAR 52.222-46 is to address the government’s concern that the compensation in a follow-on
    contract would be too low for a contractor to retain or attract competent professional employees.
    Proposed salaries that are in line with regional salaries might be insufficient for this purpose if
    the salaries paid under the existing contract are higher. Cf. OMV Med., 
    219 F.3d at 1343
    (remarking that “salary levels [consistent with the Bureau of Labor Statistics’ Occupational
    Outlook Handbook] might still be sufficiently far below the incumbent’s salary levels that the
    incoming contractor would be likely to experience an unacceptably large staff turnover and loss
    of program continuity”). Indeed, the Department of Labor does not, as required, explain how the
    offerors’ proposed salaries would impact the offerors’ ability to retain the existing professional
    employees or to recruit individuals to fill vacant professional employee positions. Nor is there
    any indication that the Department of Labor made any effort to assess whether the offerors’
    proposed salaries for professional employees were consistent with the offerors’ overall
    compensation plans. While the Department of Labor was not required to use any particular
    language in addressing the clause’s requirements, it did need to provide an explanation sufficient
    to indicate that it had considered the requirements in its analysis. See State Farm, 
    463 U.S. at 43
    .
    Furthermore, even though the Department of Labor possessed the discretion to determine
    how, precisely, to evaluate the reasonableness and realism of the offerors’ Professional Staff
    31
    While it is true that the evaluators and the Source Selection Authority had access to
    MTC’s proposed salaries for the new contract since they were included in MTC’s proposal, there
    is no indication that they sought to ascertain whether MTC’s proposed salaries were in line with
    what MTC was currently paying. See CRAssociates, 
    95 Fed. Cl. at 372
     (“[T]here is no
    assurance that the incumbent’s compensation plan for the new contract, forged in the face of
    renewed competition, will provide for the same compensation it is paying on the old contract.”).
    Moreover, even if they did conclude that MTC’s proposed salaries were in line with its existing
    salaries, the evaluators and the Source Selection Authority failed to compare the other offerors’
    proposed salaries to MTC’s proposed salaries.
    -38-
    Compensation Plans, there is at least one problem with the methodology it used. 32 The offerors
    were required to set forth in their plans “salaries and fringe benefits proposed for the professional
    employees.” The evaluators decided to compare the offerors’ proposed salaries with “average
    base salaries” [. . .]. AR 3229-32. Presumably, these “average base salaries” did not include
    fringe benefits (or they would not be “base” salaries). However, the “proposed salaries” that the
    evaluators listed for MTC and Odle included fringe benefits. Compare id. at 2545-53 (MTC’s
    proposed base salaries and total compensation), 2767 (Odle’s proposed base salaries and total
    compensation), with id. at 3230 (“proposed salaries” for MTC and Odle used in the evaluation).
    Thus, it is unclear whether the offerors’ proposed salaries were, in fact, in line with the regional
    averages. 33
    32
    A second issue is whether the eight-to-ten positions identified by the Department of
    Labor for its analysis are, in fact, professional positions. (MTC does not raise this issue, likely
    because it included the positions evaluated by the agency in its Professional Staff Compensation
    Plan.) By regulation, professional employees include “members of those professions having a
    recognized status based upon acquiring professional knowledge through prolonged study,” FAR
    22.1102, and, more particularly, are individuals whose work requires “knowledge of an advanced
    type in a field of science or learning customarily acquired by a prolonged course of specialized
    intellectual instruction” (learned professionals) or “invention, imagination, originality or talent in
    a recognized field of artistic or creative endeavor” (creative professionals), 
    29 C.F.R. § 541.300
    .
    The Department of Labor evaluated the salaries of, for example, human resource managers,
    safety and security managers, and career services managers. It is unclear whether such positions
    are encompassed within the regulations’ conception of professional employees. See also 
    29 C.F.R. § 541.301
    (b) (indicating that “[t]he phrase ‘field of science or learning’ includes the
    traditional professions of law, medicine, theology, accounting, actuarial computation,
    engineering, architecture, teaching, various types of physical, chemical and biological sciences,
    pharmacy and other similar occupations that have a recognized professional status”). See
    generally 
    id.
     § 541.100(a) (defining “executive employees” as those “[w]hose primary duty is
    management of the enterprise in which the employee is employed or of a customarily recognized
    department or subdivision thereof,” who supervises other employees, and who can hire or fire
    other employees); id. § 541.200(a) (defining “administrative employees” as those “[w]hose
    primary duty is the performance of office or non-manual work directly related to the
    management or general business operations of the employer or the employer’s customers” and
    “includes the exercise of discretion and independent judgment with respect to matters of
    significance”).
    33
    In contrast, the “proposed salaries” that the evaluators listed for [. . .] did not include
    fringe benefits. Compare AR 2287-96 (setting forth tables reflecting [. . .]’s proposed minimum
    and maximum salaries, average salaries, average fringe benefits, year one total compensation,
    and year two total compensation), with id. at 3229 (listing the “proposed salaries” for [. . .] used
    in the evaluation). Because the evaluators listed salaries with fringe benefits for some offerors
    and salaries without fringe benefits for at least one other offeror, the court’s analysis would not
    change if its presumption that “average base salaries” did not include fringe benefits is incorrect.
    -39-
    3. Prejudice
    There can be no question that the Department of Labor’s evaluation of the offerors’
    Professional Staff Compensation Plans was materially deficient. The agency did not compare
    the proposed salaries to those of the incumbent contractor, failed to address several required
    evaluation factors, and used a problematic methodology to assess the reasonableness of the
    proposed salaries. These errors prejudiced MTC. The price proposed by Odle was much lower
    than the price proposed by MTC and, according to MTC, lower than what MTC offered in 2016
    when it was awarded the incumbent contract. By not complying with FAR 52.222-46, the
    Department of Labor was unable to ascertain whether the difference in proposed prices was due
    to “unrealistically low” professional compensation. Had the Department of Labor properly
    assessed the offerors’ Professional Staff Compensation Plans, MTC would have had a substantial
    chance of being awarded the contract. Accord Sparksoft Corp., 141 Fed. Cl. at 627 (“[The
    protestor] will suffer prejudice if [the procuring agency] does not perform the analysis required
    by FAR § 52.222-46. . . . If [the procuring agency] will not conduct a realism analysis on the
    proffered plans for professional compensation, [the protestor] risks being undercut by [a
    competing offeror] with a potentially less ‘realistic’ bid.”).
    H. Best Value Determination
    MTC’s final contention is that the Department of Labor’s best value determination was
    inadequate. In particular, MTC faults the Source Selection Authority for merely describing the
    proposals’ strengths, weaknesses, and adjectival ratings without comparing the proposals head-
    to-head or explaining why the benefits of MTC’s proposal did not justify its higher proposed
    price. In response, defendant and Odle argue that the best value determination was appropriately
    documented and reflected a consideration of the proposals’ similarities and differences.
    Defendant further contends that the Source Selection Authority was not required to conduct the
    tradeoff analysis described by MTC because no proposal received higher adjectival ratings than
    Odle’s proposal and Odle proposed the lowest price. In other words, there was no need to
    determine whether a higher-priced, higher-rated proposal offered benefits that justified its higher
    price.
    The overarching goal of the competitive acquisition process is the award of a contract
    that represents the best value to the government. FAR 15.002(b); see also FAR 2.101 (“‘Best
    value’ means the expected outcome of an acquisition that, in the Government’s estimation,
    provides the greatest overall benefit in response to the requirement.”). In determining which
    proposal represents the best value, procuring agencies must make “a comparative assessment of
    proposals against all source selection criteria in the solicitation,” FAR 15.308, and may, if
    necessary, utilize a tradeoff process, FAR 15.101-1. “A tradeoff process is appropriate when it
    may be in the best interest of the Government to consider award to other than the lowest priced
    offeror or other than the highest technically rated offeror.” FAR 15.101-1(a). “The perceived
    benefits of the higher priced proposal shall merit the additional cost, and the rationale for
    tradeoffs must be documented . . . .” FAR 15.101-1(c); accord FAR 15.308 (“The source
    selection decision shall be documented, and the documentation shall include the rationale for any
    business judgments and tradeoffs made or relied on . . . , including benefits associated with
    additional costs.”); Serco Inc. v. United States, 
    81 Fed. Cl. 463
    , 497 (2008) (explaining that the
    -40-
    tradeoff process “obliges the agency to do more than simply parrot back the strengths and
    weaknesses of the competing proposals—rather, the agency must dig deeper and determine
    whether the relative strengths and weaknesses of the competing proposals are such that it is
    worth paying a higher price”). Ultimately, procuring agencies “have substantial discretion to
    determine which proposal represents the best value for the government.” E.W. Bliss, 
    77 F.3d at 449
    . And, “where agency officials reasonably and properly exercise their discretion when
    conducting a best value analysis, the Court will not disturb an agency award.” Blackwater
    Lodge & Training Ctr., Inc. v. United States, 
    86 Fed. Cl. 488
    , 514 (2009).
    Defendant’s and Odle’s defense of the Department of Labor’s best value determination is
    premised on their understanding that the agency considered Odle’s proposal to be superior than
    MTC’s proposal on the nonprice factors (or that the two proposals were equivalent on those
    factors) because had the agency considered MTC’s proposal to be technically superior, it would
    have performed a tradeoff analysis. However, nowhere in the Best Value Determination or
    Source Selection Decision sections of her Business Clearance Memorandum does the Source
    Selection Authority state that Odle’s proposal was the highest-rated proposal on the nonprice
    factors or that MTC’s and Odle’s proposals were technically equal. Instead, she summarized the
    evaluators’ findings (noting that the two proposals were assigned the same adjectival ratings for
    the nonprice factors; noting that neither proposal was assigned any strengths or weaknesses for
    the Staff Resources factor; and, for the Technical Approach factor, describing some of the six
    strengths assigned to MTC’s proposal and some of the ten strengths and one weakness assigned
    to Odle’s proposal) and concluded that “[t]aking all factors into consideration, including the
    strengths offered in the most important factor of Technical Approach,” Odle’s proposal would
    provide “the greatest overall benefit to the Government.” 34 AR 3241; accord 
    id.
     (“Odle . . .
    offers the best value to the Government at a significantly lower price than the other offerors.
    Therefore, there is no basis for awarding to the other five offerors at the higher price.”).
    The Source Selection Authority’s failure to explicitly conclude that Odle’s proposal was
    technically superior (or equivalent) to MTC’s proposal makes it more difficult to ascertain
    whether her source selection decision was a reasonable exercise of her discretion. Nevertheless,
    the court is able to infer, from two things she did state, that she found Odle’s proposal to be
    superior to MTC’s proposal. First, in finding that Odle’s proposal represented the best value, she
    emphasized the strengths assigned for the Technical Approach factor, and Odle’s proposal was
    assigned four more strengths than MTC’s proposal. Second, in finding that Odle’s proposal
    “offer[ed] the best value to the Government at a significantly lower price,” she distinguished
    between the nonprice and price factors, thereby suggesting that Odle’s proposal was superior on
    the nonprice factors. Because procuring agencies “have substantial discretion to determine
    which proposal represents the best value for the government,” E.W. Bliss, 
    77 F.3d at 449
    , the
    34
    Contrary to the suggestions of defendant and Odle, the Source Selection Authority
    included no discussion of the Past Performance factor evaluations in her best value
    determination; she merely noted that each offeror was rated Satisfactory on that factor. See AR
    3233-41.
    -41-
    court must conclude that the Source Selection Authority’s best value determination—assuming
    that there were no errors in the underlying evaluation process—was reasonable. 35
    Of course, the court has determined that the Department of Labor made a number of
    errors in its evaluation of the offerors’ proposals. Its assessment of the scope of the offerors’
    past performance was arbitrary and capricious; it did not adequately document its determination
    that different-sized Job Corps centers could be considered sufficiently similar to the Turner Job
    Corps Center for relevancy purposes; its failure to evaluate Paxen’s past performance was
    arbitrary and capricious; and its evaluation of the offerors’ Professional Staff Compensation
    Plans was materially deficient. 36 Accordingly, to the extent that the Department of Labor is
    required to reevaluate proposals as a result of this protest, the current best value determination
    will no longer be operative.
    I. Injunctive Relief
    Because MTC has established the existence of significant, prejudicial procurement errors,
    the court must address whether MTC is entitled to injunctive relief. 37 The United States Court of
    Federal Claims has the authority to award injunctive relief pursuant to 
    28 U.S.C. § 1491
    (b)(2),
    and is guided in making such an award by RCFC 65. In determining whether to issue a
    35
    In so holding, the court rejects MTC’s contention that the Source Selection
    Authority’s misstatement of the Staff Resources ratings for [. . .]’s and [. . .]’s proposals in the
    Source Selection Decision section of her Business Clearance Memorandum indicates that her
    best value determination was based on a misunderstanding of the ratings assigned to the
    proposals. As Odle observes, these errors could not prejudice MTC because they would not have
    affected any tradeoff between MTC’s and Odle’s proposals.
    36
    The court concluded that each of these errors was independently prejudicial to MTC.
    Taken together, it is even more evident that MTC was prejudiced by the Department of Labor’s
    evaluation errors. Accord CRAssociates, 
    95 Fed. Cl. at 390
     (“Given the range and depth of the
    errors found here, it requires little to conclude that plaintiff was prejudiced by the [procuring
    agency]’s conduct of this procurement . . . . The correction of these errors undoubtedly could
    lead to significant fluctuations in both technical ratings and price, paving the way for plaintiff to
    receive an award of the contract. This leaves the court with the firm conviction that the
    combined impact of the errors encountered here clearly prejudiced plaintiff.”).
    37
    One error—the Department of Labor’s failure to adequately document its
    determination that different-sized Job Corps centers could be considered sufficiently similar to
    the Turner Job Corps Center for relevancy purposes—could be remedied by a remand of the
    protest to the agency. See CRAssociates, 
    95 Fed. Cl. at 384
     (“[I]f the record before the court
    precludes a determination as to whether ‘the procurement official’s decision lacked a rational
    basis . . . or . . . the procurement procedure involved a violation of regulation or procedure,’ and
    the claimed error, alone or in combination, appears prejudicial, the court must remand the matter
    to the agency to allow it to supply, in the first instance, the missing explanation.” (quoting
    Impresa, 
    238 F.3d at 1332
    )). However, the existence of several other errors for which remand is
    not appropriate renders remand insufficient as a remedy.
    -42-
    permanent injunction, the court must consider whether (1) the plaintiff has succeeded on the
    merits; (2) the plaintiff will suffer irreparable harm if the court withholds injunctive relief; (3)
    the balance of hardships favors the grant of injunctive relief; and (4) it is in the public interest to
    grant injunctive relief. PGBA, 
    389 F.3d at 1228-29
    . The protestor bears the burden of
    establishing the factors by a preponderance of the evidence. Lab’y Corp. of Am., 116 Fed. Cl. at
    654; Textron, Inc. v. United States, 
    74 Fed. Cl. 277
    , 287 (2006). None of the four factors, taken
    individually, is dispositive, and a “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). 38 Conversely, “the absence of an adequate showing with regard to any one factor may be
    sufficient, given the weight or lack of it assigned the other factors, to justify the denial” of
    injunctive relief. 
    Id.
     The award of injunctive relief is within the discretion of the court. See
    Turner Constr. Co. v. United States, 
    645 F.3d 1377
    , 1388 (Fed. Cir. 2011) (“We give deference
    to the Court of Federal Claims’ decision to grant or deny injunctive relief, only disturbing its
    decision if it abused its discretion.”).
    MTC has succeeded on the merits of its protest. Therefore, the court turns to the
    remaining injunctive relief factors.
    1. Irreparable Injury
    With respect to the irreparable injury factor, “[t]he 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); see also Younger v. Harris, 
    401 U.S. 37
    , 43-44 (1971)
    (noting that “the basic doctrine of equity jurisprudence [is] that courts of equity should not act
    . . . when the moving party has an adequate remedy at law and will not suffer irreparable injury if
    denied equitable relief”). MTC contends that it will be harmed absent a permanent injunction
    because it will have lost the opportunity to fairly compete for the Turner Job Corps Center
    contract. This court has recognized that a lost opportunity to compete for a contract can be
    sufficient, on its own, to constitute an irreparable injury. Hosp. Klean of Tex., Inc. v. United
    States, 
    65 Fed. Cl. 618
    , 624 (2005), cited in Sys. Application & Techs., Inc. v. United States, 
    691 F.3d 1374
    , 1383 (Fed. Cir. 2012). Normally, attorney argument is insufficient to establish an
    irreparable injury. See, e.g., Intelligent Waves, LLC v. United States, 
    135 Fed. Cl. 299
    , 314
    (2017); Totolo/King v. United States, 
    87 Fed. Cl. 680
    , 693 (2009), appeal dismissed and
    remanded sub nom. Totolo/King Joint Venture v. United States, 431 F. App’x 895 (Fed. Cir.
    2011) (per curiam); Ashbritt, Inc. v. United States, 
    87 Fed. Cl. 344
    , 367 (2009); cf. Obsidian
    Sols. Grp., LLC v. United States, No. 20-1602C, 
    2021 WL 1688892
    , at *4 (Fed. Cl. Apr. 27,
    2021) (unpublished opinion) (holding that a party cannot rely solely on “the unsupported
    assertions of its attorney in a memorandum of law” to establish that “it will suffer irreparable
    harm in the absence of a stay”). However, as the incumbent contractor, MTC presumably
    submitted a proposal with the expectation of making a profit (as opposed to submitting a lower-
    priced offer to gain a toehold in the industry), and there can be no dispute that a lost opportunity
    38
    Although FMC Corp. concerns the award of a preliminary injunction, 
    3 F.3d at 427
    ,
    “[t]he standard for a preliminary injunction is essentially the same as for a permanent injunction
    with the exception that the plaintiff must show a likelihood of success on the merits rather than
    actual success,” Amoco Prod. Co. v. Vill. of Gambell, 
    480 U.S. 531
    , 546 n.12 (1987).
    -43-
    to compete for a contract forecloses a contractor’s ability to gain the experience associated with
    performing the contract, which has value when competing in future procurements.
    Consequently, MTC has established irreparable injury.
    2. Balance of Harms
    In addition to considering whether a protestor would suffer an irreparable injury absent a
    permanent injunction, “the court must weigh the irreparable harm plaintiff would suffer without
    an injunction against the harm an injunction would inflict on defendant and defendant-
    intervenor.” Progressive Indus., Inc. v. United States, 
    129 Fed. Cl. 457
    , 485 (2016). A delay in
    implementing the new contract or in arranging for an alternative means to acquire the goods or
    services at issue while complying with the terms of the injunction, absent exceptional
    circumstances, does not “warrant a denial of injunctive relief, or the courts would never grant
    injunctive relief in bid protests.” Reilly’s Wholesale Produce v. United States, 
    73 Fed. Cl. 705
    ,
    716 (2006) (quoting PGBA, LLC v. United States, 
    57 Fed. Cl. 655
    , 663 (2003)). Further,
    although the government would bear the cost of reprocurement, such costs do not necessarily tilt
    the balance of harm in the government’s favor. See, e.g., Springfield Parcel C, LLC v. United
    States, 
    124 Fed. Cl. 163
    , 195 (2015); Huntsville Times Co. v. United States, 
    98 Fed. Cl. 100
    , 122
    (2011).
    MTC contends that there are no exceptional circumstances rendering any delay caused by
    an injunction to be harmful to the Department of Labor. It further argues that an injunction
    would not create a gap in services at the Turner Job Corps Center because those services are
    being provided under the incumbent contract. Defendant, in response, contends that the
    Department of Labor would be harmed by an injunction “because ordering reprocurement would
    unnecessarily result in the expenditure of Government funds and resources and would
    unnecessarily intrude upon the [Source Selection Authority]’s discretion.” Def.’s Cross-Mot. 41.
    Odle does not allege that it would suffer any harm from the imposition of an injunction.
    The harms that defendant claims would flow from the issuance of an injunction do not
    outweigh the harms that MTC would suffer in the absence of an injunction. The costs that the
    Department of Labor might incur to reprocure the contract—which defendant does not identify
    or quantify—are the direct result of the agency’s failure to conduct a fair competition and are not
    greater than the harms suffered by MTC due to the lack of a fair competition. Further, if the
    Source Selection Authority did not properly exercise her discretion in awarding the contract, then
    the court is not intruding on her discretion by requiring her to take corrective action. In short, the
    balance of harms tips in MTC’s favor.
    3. Public Interest
    Finally, when “employing the extraordinary remedy of injunction,” a court “should pay
    particular regard for the public consequences” of doing so. Weinberger v. Romero-Barcelo, 
    456 U.S. 305
    , 312 (1982). There is no dispute that “[t]here is an overriding public interest in
    preserving the integrity of the procurement process by requiring the Government to follow its
    procurement regulations.” Bona Fide Conglomerate, Inc. v. United States, 
    96 Fed. Cl. 233
    , 242
    (2010). Although “there is a countervailing public interest in minimizing disruption” to the
    -44-
    procuring agency, Heritage of Am., LLC v. United States, 
    77 Fed. Cl. 66
    , 80 (2007), defendant
    does not explain how the Department of Labor would be disrupted by properly evaluating the
    proposals in this procurement. Rather, both defendant and Odle maintain that the public interest
    lies in allowing Odle to proceed with its performance of a contract that was awarded after a
    properly conducted competition.
    Of course, as explained in detail above, the Department of Labor did not properly
    conduct the competition. Indeed, MTC contends that the Department of Labor’s failure to
    adhere to procurement regulations is sufficient to satisfy the public interest factor. It also
    contends that absent an injunction, its existing staff at the Turner Job Corps Center “would face
    substantial uncertainty about their continued employment,” potentially leading to the departure
    of key staff and the “destabiliz[ation of] a residential educational facility that serves hundreds of
    at-risk youth . . . .” MTC’s Mot. 32. The court finds this latter contention unpersuasive. The
    center’s existing staff would face the same uncertainty if the contract was properly awarded to
    another offeror, and because such an award would be in the government’s best interest, it almost
    necessarily would be in the public interest. However, MTC is correct, and defendant and Odle
    do not dispute, that the public has an interest in preserving the integrity of the procurement
    process. On this basis, the public interest factor weighs in MTC’s favor.
    4. Summary
    In sum, in addition to prevailing on the merits of its protest, MTC has established that it
    will suffer irreparable harm if the court withholds injunctive relief, that the balance of harms tips
    in its favor, and that an award of injunctive relief is in the public interest. Thus, the issuance of a
    permanent injunction is warranted.
    III. CONCLUSION
    For the reasons set forth above, the court GRANTS IN PART and DENIES IN PART
    MTC’s motion for judgment on the administrative record and GRANTS IN PART and
    DENIES IN PART defendant’s and Odle’s cross-motions for judgment on the administrative
    record. MTC is entitled to injunctive relief. The Department of Labor
    •   is ENJOINED from continuing performance on the contract awarded to Odle
    pursuant to the solicitation at issue,
    •   shall CANCEL the contract awarded to Odle, and
    •   is ENJOINED from awarding a new contract under the solicitation at issue
    unless it reevaluates the proposals in accordance with the provisions of the
    solicitation.
    The clerk shall enter judgment in favor of MTC, consistent with this opinion.
    The court has filed this ruling under seal. The parties shall confer to determine agreed-to
    proposed redactions. Then, by no later than Thursday, September 1, 2022, the parties shall
    -45-
    file a joint status report indicating their agreement with the proposed redactions, attaching a
    copy of those pages of the court’s ruling containing proposed redactions, with all proposed
    redactions clearly indicated.
    IT IS SO ORDERED.
    s/ Margaret M. Sweeney
    MARGARET M. SWEENEY
    Senior Judge
    -46-