Connected Global Solutions, LLC v. United States ( 2022 )

In the United States Court of Federal Claims
No. 22-292C (consolidated with 22-317C)
Filed: October 28, 2022
Reissued: November 15, 2022 †
CONNECTED GLOBAL SOLUTIONS,
LLC,
Plaintiff,
and
AMERICAN ROLL-ON ROLL-OFF
CARRIER GROUP INC.,
Plaintiff,
v.
THE UNITED STATES,
Defendant,
and
HOMESAFE ALLIANCE, LLC,
Intervenor-Defendant.
James Y. Boland, Venable LLP, Tysons, Virginia, with Michael T. Francel, Christopher G.
Griesedieck, Taylor A. Hillman, Lindsay M. Reed, and Allison M. Siegel, of counsel, for
Connected Global Solutions, LLC.
Kara M. Sacilotto, Wiley Rein, LLC, Washington D.C., with Trayce Winfrey Howard, Gary S.
Ward, Cara L. Lasley, Jennifer Eve Retener, Teresita A. Regelbrugge, of counsel, for American
Roll-On Roll-Off Carrier Group Inc.
†
This Opinion was originally issued under seal, (ECF No. 107), and the parties were directed to
file a notice of redactions consistent with the Court’s instructions. That Notice was filed on
November 14, 2022. (ECF No. 109). There is disagreement among the parties as to redactions,
but there is no related motion. The Court accepts all proposed redactions and notes that most are
identical to those proposed in prior Orders with no objection. The sealed and public versions of
this Opinion differ only to the extent of those redactions, the publication date, and this footnote.
Elizabeth Anne Speck, Trial Attorney, Commercial Litigation Branch, Civil Division, Douglas K.
Mickle, Assistant Director, Patricia McCarthy, Director, Brian M. Boynton, Principal Deputy
Assistant Attorney General, with Miles K. Karson, U.S. Department of Justice, Washington,
D.C.; Robert J. Depke, Todd P. Federici, Adam J. Koudelka, Peter B. Ries, Attorney-Advisers,
Office of the Staff Judge Advocate, United States Transportation Command; Erika Whelan
Retta, Chief Bid Protests, Aaron Weaver, Trial Attorney, Commercial Litigation Field Support
Center, Judge Advocate General’s Corps, United States Air Force, Joint Base Andrews,
Maryland, for United States.
Craig A. Holman, Arnold & Porter Kaye Scholer LLP, Washington D.C., with Stuart W. Turner,
Sonia Tabriz, Amanda J. Sherwood, Thomas A. Pettit, Trevor Schmitt, and Nicole Williamson, of
counsel, for HomeSafe Alliance, LLC.
MEMORANDUM OPINION AND ORDER
TAPP, Judge.
“Perfection is the enemy of progress,” 1 an adage aptly describing many aspects of the
government procurement process. The search for a perfect procurement, proposal, or even
performance would be in vain. Arbiters are tasked with deciding whether protested procurements
pass muster; accepting less violates the law and disregards notions of transparency and fairness.
Requiring more is likewise infeasible; it impairs government agencies, awardees, and ultimately
taxpayers. It is within these parameters that the Court decides whether the United States has
acted arbitrarily, capriciously, or in violation of the law in conducting the subject procurement.
In this post-award bid protest, Connected Global Solutions, LLC (“CGSL”) and
American Roll-On Roll-Off Carrier Group Inc. (“ARC”) contest the Department of Defense’s
(“DoD”) award of a household goods transportation contract for certain members of the United
States military and their families. The DoD planned to transition all military members’
permanent change-of-station moves to a single managed service provider rather than contracting
with companies on a move-by-move basis as it does today. In November of 2021, the awarding
agency, United States Transportation Command (“the Agency” or “TRANSCOM”), finally
awarded the contract to HomeSafe Alliance, LLC (“HomeSafe”). In addition to this litigation,
the peregrination of this award has encompassed more than two years and two stops at the
Government Accountability Office (“GAO”), as well as intensive corrective action by the
Agency.
After considering its litigious history, as well as the litany of arguments put forth by the
parties, the Court finds that the parties have not met their burden to justify disturbing the award.
CGSL’s and ARC’s Motions for Judgment on the Administrative Record, (CGSL MJAR, ECF
No. 62; ARC MJAR, ECF No. 61), are denied. The United States and HomeSafe’s Motions for
1
This quote is attributed to Winston Churchill. It is thought to have been delivered during an
October 11, 1952 speech to the Conservative Party Conference, though no transcript of the
speech exists.
2
Judgment on the Administrative Record, (USA MJAR, ECF No. 74; HomeSafe MJAR, ECF No.
75), are granted.
I. Background
TRANSCOM is one of eleven unified combatant commands of the DoD. About
USTRANSCOM, USTRANSCOM, https://www.ustranscom.mil/cmd/aboutustc.cfm (last visited
Oct. 1, 2022). On September 13, 2019, TRANSCOM issued a Request for Proposals (“RFP”)
seeking a qualified contractor to perform the Global Household Good Relocation Contract
(“GHC”); this contract provides comprehensive household goods relocation services for DoD
service members, DoD civilians, and U.S. Coast Guard members. (See Administrative Record, 2
Tab 7 at AR121; Tab 7b1 at AR461–462; Tab 134b1 at AR21077). The procurement is
lucrative—worth up to $17.9 billion should the DoD exercise all contract options over the next
nine years. The GHC is the first time that the DoD has consolidated management of the entire
relocation process for DoD families into a single contract. (See Tab 118 at AR19454).
The RFP subject to this litigation sought a single indefinite delivery, indefinite quantity
contract after the Agency conducted discussions with offerors whose proposals were within the
competitive range. (Tab 7 at AR135). This limited competition to three offerors—CGSL, ARC,
and HomeSafe. TRANSCOM advised each offeror that they must represent the best value to the
Agency, price and other factors considered. (Id.). TRANSCOM informed offerors that this may
“result in an award to a higher rated, higher priced Offeror” where the decision was “consistent
with the evaluation factors and the Source Selection Authority (SSA) reasonably determined that
the superior technical capability” outweighed the cost difference. (Id.).
The RFP required offerors to submit proposals in four volumes corresponding to four
evaluation factors: (1) Business Proposal; (2) Technical Capability (rated); (3) Past Performance;
and (4) Price (assessed for fairness, reasonableness, completeness, and balance). (Tab 7 at
AR135, AR197; Tab 134 at AR21030–31). In the “[r]elative order of importance[,]” the RFP
stated that an offeror’s Technical Capability would be evaluated on a basis approximately equal
to price. (Tab 7 at AR135). Technical Capability had four equally weighted subfactors (“SF”):
(1) operational approach (SF 1); (2) capacity and subcontractor management (SF 2); (3)
transition/volume phase-in (SF 3); and (4) information technology (“IT”) services (SF 4). (Tab 7
at AR199–201). Each SF was “of equal importance.” (Id.).
TRANSCOM provided a technical rating for each Technical Capability SF. (AR136).
The technical ratings were based on the offeror’s approach and understanding of the
requirements and assessment of strengths, weaknesses, significant weaknesses, and deficiencies
of the proposal. (Id.). The Agency rated Technical Capabilities as either Outstanding, Good,
Acceptable, Marginal, or Unacceptable and explained how strengths, weaknesses, significant
weaknesses, and deficiencies would be evaluated. (Id.). TRANSCOM further advised that after
2
The Administrative Record could not be uploaded to the CM/ECF System; it was filed with the
Clerk’s Office in physical media format. (See ECF No. 59). Thus, there is no ECF Number
assigned to the record. Further, The Administrative Record is consecutively tabbed and
paginated, thus the Court will cite to the record using (“Tab __ at AR__”).
3
assigning technical ratings, it would assign a technical risk rating for each SF. (Id. at AR136–
137).
Concerning Factor 4, the Agency advised offerors that price would be evaluated for
completeness, but not rated. (AR138). TRANSCOM informed offerors that to be considered for
award, the offeror’s total evaluated price must be determined to be fair and reasonable. (Id.).
In Spring of 2020, TRANSCOM awarded the contract to ARC; in response, CGSL and
HomeSafe filed protests with the GAO. (See Tab 80). After TRANSCOM took corrective action
to address ARC’s responsibility, it re-awarded the contract to ARC and, in July 2020, both
CGSL and HomeSafe re-filed their protests. (See Tab 118 at AR19453; Tab 133 at AR20987).
On October 21, 2020, the GAO sustained both protests, finding, inter alia, that TRANSCOM
conducted an insufficient responsibility determination regarding ARC, failed to adequately
document oral presentations, did not “provide CGSL an opportunity to address the [A]gency’s
perception” of a deficiency in the presentation in the subsequent discussions, and conducted an
unreasonable and unequal technical evaluation and flawed best value tradeoff. (See Tab 118).
In response to the GAO’s decisions recommending that TRANSCOM conduct a new
technical evaluation and best value tradeoff analysis, the Agency took corrective action. (See id.;
Tab 133). Notably, “the evaluation team was restaffed with new members and specifically
advised not to consider the previous technical evaluation, to the point that the technical team did
not have access to any previous source selection documentation.” (Tab 269.236 at AR58106; see
also Tab 258 at AR37642).
During renewed evaluations, the Source Selection Evaluation Board (“SSEB”) 3
documented whether each proposal demonstrated an adequate, thorough, or exceptional
“approach and understanding,” detailing for each Performance Work Statement (“PWS”)
requirement the responsive portions of the proposal and the team’s reasoning for the assigned
approach rating. (Tabs 198c–f, 198j–m, and 198p–s). The SSEB examined strengths,
weaknesses, significant weaknesses, deficiencies, and discussion items assigned to each offeror
under each subfactor. (Id.).
The Source Selection Advisory Council (“SSAC”) examined the SSEB’s 1000-page
report and conducted an independent comparative analysis of each offeror. (Tab 200 at
AR34285–91 (comparing ARC and CGSL), AR34465–72 (comparing ARC and HomeSafe),
AR34644–52 (comparing HomeSafe and CGSL)). Based on this analysis, the SSAC concluded
that HomeSafe’s proposal offered the best value to the Agency. (Id. at AR34652–53). The SSA,
in turn, reviewed both reports and issued its independent best value determination in the Source
3
Under DoD Source Selection Procedures (“SSP”) the SSEB “evaluate[s] proposals ‘related to
technical and risk matters.’” (Tab 263 at AR38072; see also Tab 2c at AR105). The SSAC
“provide[s] a written comparative analysis of proposals and an award recommendation in an
SSAC report for the SSA’s consideration.” (Tab 2c at AR104). The SSA performs an
“independent assessment” to determine the best value in which it “compar[es] the strengths,
weaknesses, and the cost/price of the competing proposals to determine which proposal
represents the best value to the Government.” (Id.).
4
Selection Decision Document (“SSDD”). (Tab 201 at AR34654.) The SSA agreed with the
following ratings assigned to the three remaining offerors:
(Id.).
CGSL had the lowest price at $17,684,158,550.47, HomeSafe the next lowest price at
$17,908,768,040.96, and ARC the highest price at $19,533,278,941.16; all prices were found to
be fair and reasonable. (Id.). As to the equally weighted technical subfactors, the SSA agreed
with the following ratings assigned to the three remaining offerors:
(Tab 200 at AR34112).
After the SSAC conducted a comparative analysis, the SSA issued the SSDD in which he
concluded that CGSL and HomeSafe’s proposals were the most competitive. (Tab 201 at
AR34656). The SSA concluded that, while CGSL had the lower-priced proposal, HomeSafe had
the higher-rated technical proposal. (Id.). Based on a best value tradeoff analysis, the SSA
determined that HomeSafe’s proposal represented the best value to the Government. (Id. at
AR34673). In November 2021, TANSCOM awarded HomeSafe the GHC. (Tab 205 at
5
AR35238). Following the award, CGSL and ARC filed protests at the GAO, which the GAO
denied. (Tabs 251, 267). This litigation ensued.
II. Analysis
A. Standard of Review
According to 28 U.S.C. § 1491(b)(4), the Court reviews agency procurement decisions
under the Administrative Procedure Act (“APA”), 5 U.S.C. § 706. Under the APA standard, “[i]n
a bid protest case, the inquiry is whether the agency’s action was arbitrary, capricious, an abuse
of discretion, or otherwise not in accordance with law and, if so, whether the error is prejudicial.”
Glenn Def. Marine (ASIA), PTE Ltd. v. United States, 720 F.3d 901, 907 (Fed. Cir. 2013). Thus,
judicial review of agency action under the APA proceeds on two tracks: the Court could find (1)
the agency’s decision lacked either a rational basis or support from the administrative record or
was arbitrary and capricious; and/or (2) the agency’s procurement procedure involved a violation
of regulation or statute. Weeks Marine, Inc. v. United States, 575 F.3d 1352, 1358 (Fed. Cir.
2009). To obtain relief, after showing that the procuring agency violated the law or acted
arbitrary and capriciously, the protestor must also show that the agency’s violation was
prejudicial to the protestor. Glenn Def. Marine, 720 F.3d at 907.
“Under the ‘arbitrary and capricious’ standard[,] the scope of review is a narrow one. A
reviewing court must consider whether the decision was based on a consideration of the relevant
factors and whether there has been a clear error of judgment.” Bowman Transp., Inc. v.
Arkansas-Best Freight Sys., Inc., 419 U.S. 281, 285 (1974) (internal quotations omitted). The
Court may not substitute its own judgment for that of the agency. Id. But the agency must
articulate a “rational connection between the facts found and the choice made.” Burlington Truck
Lines, Inc. v. United States, 371 U.S. 156, 168 (1962).
Unlike the standard applied in summary judgment motions, “the existence of genuine
issues of material fact does not preclude judgment on the administrative record” under RCFC
52.1. Tech. Sys., Inc. v. United States, 98 Fed. Cl. 228, 242 (2011); see also RCFC 56. Rather,
the Court’s inquiry is 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)). Taken together, the standards for success by a plaintiff are substantial.
B. Discussion
Each Plaintiff serves a litany of arguments purporting TRANSCOM’s award to
HomeSafe was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with
law. (See generally CGSL MJAR; ARC MJAR). In sum, Plaintiffs argue that: (1) TRANSCOM
should not have replaced certain portions of its prior evaluation; (2) TRANSCOM’s discussions
with offerors were misleading and unequal; (3) TRANSCOM unfairly and irrationally evaluated
the parties’ proposals; (4) TRANSCOM’s best value tradeoff analysis was irrational; (5)
HomeSafe’s proposal contained material misrepresentations necessitating disqualification of its
bid; (6) TRANSCOM’s price analysis was based on disqualified bids and therefore irrational;
and (7) TRANSCOM irrationally evaluated HomeSafe’s responsibility. Based on these
6
arguments, CGSL and ARC argue that these purported errors amount to violations of the Federal
Acquisition Regulations (“FAR”) and Competition in Contracting Act, 41 U.S.C. § 253; that
those violations prejudiced them; that TRANSCOM’s errors breached the duty to consider the
proposals honestly and fairly; and that, as a result, they are entitled to a permanent injunction.
The Court addresses each argument in turn.
Ultimately, neither ARC nor CGSL successfully identify any basis to overturn
TRANSCOM’s technical evaluation or award to HomeSafe. The protestors’ claims before this
Court fail to satisfy their “heavy burden” of proving the decision lacked a rational basis or was
contrary to law. See KSC Boss All., LLC v. United States, 142 Fed. Cl. 368, 380 (2019) (quoting
Impresa Construzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324, 1338 (Fed. Cir.
2001)). Thus, based on the analysis below, the Court will not disturb the United States’ award
decision.
i. TRANSCOM did not err when it did not explain departure from prior
strengths assigned to CGSL.
CGSL argues that TRANSCOM failed to explain why it replaced portions of its prior
evaluations assigned during the ARC award, something not recommended by the corrective
action prescribed by the GAO. 4 (CGSL 12–17; see also Tr. Or. Arg. at 12:21–23; Tab 267). In
2020, TRANSCOM assigned CGSL’s proposal 26 strengths across the Technical Capability
subfactors. (Tab 58a1 (2020 strengths)). In 2021, after the GAO recommended some level of
reconsideration, TRANSCOM conducted a new evaluation that departed from its earlier
assessment, resulting in the assignment of only 17 strengths. (Compare 2020 strengths, with Tab
193a1 (2021 strengths)). CGSL argues that deviation would only be justified if the Record
showed: (1) the RFP’s definition of “strength” changed during the reevaluation; (2) the Agency
changed its methodology for determining what proposal elements warranted a strength; or (3) the
Agency’s original assessment of strengths in CGSL’s proposal was unreasonable or unsupported.
(CGSL MJAR at 15). CGSL maintains that the Record exhibits nothing of the sort, and neither
explains nor supports TRANSCOM’s departure from its previous factual determinations. (Id.).
The GAO recommended that TRANSCOM reevaluate proposals after identifying errors
committed in the prior award to ARC but was silent as to what reevaluation would look like. (See
Tab 267). In response, TRANSCOM took corrective action by revising the RFP, soliciting
revised proposals, empaneling and training a new technical evaluation team, comprising some
new members and prior members of the original evaluation team, conducting an entirely new
evaluation, performing new discussions with offerors, and making a new source selection
decision. (See Tab 269.236 at 58106). TRANSCOM informed the SSEB, a panel comprised of
70% of the same individuals from the 2020 Evaluations, that it was “specifically advised not to
consider the previous technical evaluation[;]” the new team had no access to any prior
documentation relating to its earlier recommendation. (Id.; see also TAB 258a at AR37644). In
4
The Court acknowledges that CGSL does not assert that the United States was bound by its
previous determinations in that it was not permitted to stray from them. (See Tr. Or. Arg. 12:6–
10). This analysis is based upon whether the United States can be required to explain deviation
from those prior determinations.
7
its latest iteration, the SSEB assigned fewer strengths to each offeror than were assigned in the
first evaluation. (Compare Tab 68 at AR15670 with Tab 198p at AR32074–76; Tab 198q at
AR32220–21; Tab 198r at AR32268–69; Tab 198s at AR32328–30; Tab 194).
The United States argues that, given the GAO’s decisions recommending a new technical
evaluation as well as the Agency’s conclusions from its internal review, it was reasonable for the
Agency to conduct a comprehensive reevaluation, including the assignment of strengths. (Id.).
The Court agrees that TRANSCOM acted within its discretion assigning reevaluation of all
proposals and did not err when it failed to further elaborate on departure from prior strengths
assigned to CGSL. Further, CGSL was not prejudiced because each offeror received fewer
strengths than they did in the earlier 2020 evaluation.
“[A]n agency has the discretion to re-evaluate proposals during a corrective action and to
correct prior evaluation errors.” Sotera Def. Sols., Inc. v. United States, 118 Fed. Cl. 237, 262
(2014). Agency evaluators must be “allowed the discretion to review their own conclusions if
they conclude a mistake has been made, or if further inquiry appears appropriate, provided the
re-evaluation conforms with the solicitation,” and “the evaluation process is conducted in a
manner fair to all offerors.” Glenn Def. Marine (Asia), PTE Ltd. v. United States, 105 Fed. Cl.
541, 569 (2012), aff’d, 720 F.3d 901 (Fed. Cir. 2013). That said, agency discretion “does not
relieve the agency of its obligation to develop an evidentiary basis for its findings.” FCN, Inc. v.
United States, 115 Fed. Cl. 335, 368 (2014).
To support its claims, CGSL cites F.C.C. v. Fox Television Stations, Inc. for the
proposition that “the requirement that an agency provides reasoned explanation for its action
would ordinarily demand that it display awareness that it is changing position.” 556 U.S. 502,
515 (2009). CGSL inappropriately applies precedent involving agency rulemaking to the bid
protest context. Relying on the Supreme Court’s decision in F.C.C. v. Fox, CGSL declares the
Agency was bound to its previous “factual findings” and lacking a “reasoned explanation for”
reaching a different conclusion. Id. at 515–37. The Court of Federal Claims rejected a similar
argument in Ultra Electronics Ocean System Inc. v. United States, holding that “decisions of
contracting officers are fundamentally different from the decisions reached in agency rulemaking
proceedings and adjudications that are the subject of APA review” and that “contracting officers
have no obligation to explain or distinguish past procurement decisions when making
determinations under new procurements.” 139 Fed. Cl. 517, 531 (2018). Here, TRANSCOM
conducted a new evaluation and advised the evaluators “not to consider the previous technical
evaluation.” (Tab 269.236 at AR58106). No evidence exists to suggest that the evaluators
disregarded this instruction or that it was not conducted in a manner fair to all offerors.
In support of its position, the United States cites DHS v. Regents of the University of
California. 40 S. Ct. 1891, 1907 (2020). Although Regents is not a bid protest, its logic is more
applicable here. As explained in Regents, when a court remands a matter, the agency can either
elect to provide further explanation and clarification for the reasoning contained in prior
evaluations, or it can examine the issue “afresh” and take new action. Id. (see also Tr. Oral Arg.
at 12–17 (DOJ Counsel: “Why would [the Agency] want to consider a prior flawed evaluation if
it’s doing an entirely new technical[] analysis; it’s empaneling a new team; it’s conducting a new
SSA; the SSAC is creating a new report; and the SSA is conducting a new best value tradeoff
decision?”)). While it is true the reevaluation was based on the GAO’s recommendation and not
8
a court’s remand, similar reasoning prevails despite the distinction between an agency decision
and a court’s remand. TRANSCOM’s reevaluation of the proposals entirely is tantamount to
examining the issue afresh.
When an agency takes new action, as TRANSCOM did here, the United States argues
persuasively that it “is not limited to its prior reasons.” (USA MJAR at 6). The Agency can
correctly assume that if it committed error in evaluating the proposal of one offeror, that error
was likely repeated in evaluating the offers of its cohort. And if an agency is not bound by a
decision, failure to address each departure from prior findings is not error when the record
clearly shows that it was warranted. The Contracting Officer’s (“CO”) statement of facts shows
that the Agency wanted to ensure the SSEB was equipped with proper tools because of the
concern that Agency incorrectly evaluated technical factors. (Tab 258A at AR37642–44). It is
evident from the Record why TRANSCOM did not want to reimplement prior findings, and the
United States has not shied from admitting that the prior evaluation was fundamentally flawed.
(See Tr. Or. Arg. at 58:13–15 (The Court: “That sounds like the United States is throwing the
first SSEB under the bus.” DOJ Counsel: “Yes, I am.”)).
Although a reviewing court “may not supply a reasoned basis for the agency’s action that
the agency itself has not given,” a decision that is not fully explained may, nevertheless, be
upheld “if the agency’s path may reasonably be discerned.” Bowman Transp., Inc., 419 U.S. at
285–86 (citation omitted). Rather than risk growing additional tainted fruit, TRANSCOM chose
to plant a new tree (albeit on the same property). This is not something that the Court can
reasonably fault TRANSCOM for. As a matter of public policy, the Court would rather
commend agencies for thorough corrective action. Stated differently, based on the Record before
the Court, it was enough for the Agency to say that corrective action was necessary and then
explain that it would be conducting an entirely new evaluation. It is inapposite to require an
agency to explain how its new findings relate to its previous findings when the Record
establishes that errors occurred. The Agency’s admission, coupled with restaffing and retraining
the SSEB, demonstrates that TRANSCOM believed that the evaluations were done incorrectly
on a larger scale.
CGSL fails to establish that it was prejudiced by these ratings. First, it does not
effectively argue that the ascribed ratings were “so plainly unjustified as to lack a rational basis.”
Savantage Fin. Servs., Inc. v. United States, 595 F.3d 1282, 1286 (Fed. Cir. 2010). Second, even
if TRANSCOM’s rating discrepancy required more explanation—or if it amounts to a “change in
position”—CGSL was not prejudiced by the change in ratings because all offerors were assigned
fewer strengths than were assigned in the first evaluation: HomeSafe, for example, initially
received 22 strengths but only 14 after the Agency’s corrective action evaluation. (Compare Tab
68 at AR15670 (initial round) with Tab 198p at AR32074–76; Tab 198q at AR32220–21; Tab
198r at AR32268–69; Tab 198s at AR32328–30). Although CGSL lost more strengths than other
offerors, (see Tr. Or. Arg. 11:25–12:1), CGSL has not shown that this evaluation process was
applied unfairly or that, but for this error, it would have had a substantial chance of winning the
award. See CliniComp Int’l, Inc. v. United States, 904 F.3d 1353, 1358 (Fed. Cir. 2018).
If CGSL was the only offeror to lose strengths, or if the 2021 evaluation of its strengths
was meaningfully imbalanced, there is a world where CGSL could perhaps show that it was
uniquely positioned to win the award but for that error. However, because each offeror lost
9
similar numbers of strengths, this solidifies the conclusion that the SSEB applied its revised
approach for the most recent evaluations equally. This approach, better or worse, affected each
offeror. This lack of showing in conjunction with the fact that there are no meritorious criticisms
of CGSL’s 2021 evaluation, illustrates that the Agency did not commit error.
ii. TRANSCOM’s discussions with offerors were not misleading or unequal.
“Uneven 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.” Serco Inc. v. United States, 81 Fed. Cl. 463, 482 (2008). “All contractors
and prospective contractors shall be treated fairly and impartially.” FAR 1.102-2(c)(3). “At a
minimum, the contracting officer must . . . indicate to, or discuss with, each offeror still being
considered for award,” “deficiencies” and “significant weaknesses.” FAR 15.306(d)(3). Both
plaintiffs argue that TRANSCOM’s discussions were misleading and unequal, thereby violating
the FAR. (CGSL MJAR at 17; ARC MJAR at 29–30). The Record, however, does not support
this characterization.
CGSL claims the Agency left the impression it had resolved significant weaknesses in its
proposal, resulting in no further changes to CGSL’s proposal, but that the Agency held these
“weaknesses” against CGSL anyway. (CGSL MJAR at 17). Those perceived “weaknesses”
were: (1) CGSL’s proposal to automatically assign moves to subcontractors based on their
performance scores and availability for work risked “turnbacks” (subcontractors rebooking
moves); and (2) CGSL’s unbundling of move services among subcontractors, an approach that
the Agency believed risked producing unnecessary layers of subcontracting. (Id.). Similarly,
ARC purports that TRANSCOM failed to inform it of two concerns identified during its
evaluation that had a significant, adverse competitive impact on the evaluation and award
decision—that ARC’s approach to awarding shipments to subcontractors (1) “has a higher
potential for creating turnbacks” and (2) “is contingent upon the subcontractors [sic] reliable and
consistent use of its .” (ARC MJAR at 29–30 (citing Tab 200 at AR34395)). ARC
further argues that discussions about the thoroughness of its proposal were unequal in
comparison to TRANSCOM’s discussions with other offerors. (Id.).
An agency’s evaluation is unequal where it holds one offeror to “different, and more
exacting, technical standards” than another. CliniComp Int’l, Inc. v. United States, 117 Fed. Cl.
722, 741 (2014). Contracting officers must indicate deficiencies, significant weaknesses, and
adverse past performance information to which the offeror has not yet had an opportunity to
respond. FAR 15.306(d)(3). “As such, when discussions occur, the contracting officer must
accurately identify weaknesses. An error in communicating a weakness that causes an offeror to
revise its proposal is quintessentially a misleading discussion.” Caddell Constr. Co. v. United
States, 125 Fed. Cl. 30, 45 (2016), overruled on other grounds, Sys. Stud. & Simulation, Inc. v.
United States, 22 F.4th 994, 998 (Fed. Cir. 2021). Agencies may not mislead an offeror into
believing that a flaw has been resolved if the flaw continues to exist. See Q Integrated Cos., LLC
v. United States, 126 Fed. Cl. 124, 146 (2016) (noting agency “affirmatively misstated that there
were no weaknesses”). Misleading discussions constitute “arbitrary and capricious conduct.”
Caddell Constr. Co., 125 Fed. Cl. 30, at 34.
10
It is uncontroverted that TRANSCOM conducted extensive discussions in its second
round of corrective action, commensurate with the size of the procurement. (CGSL MJAR at 18
(citing e.g., Tab 154a2 (raising 102 issues with CGSL in single round of discussions); Tab 144a
at AR21236, AR21265–66 (plan to communicate weaknesses and discussion items); Tab 144b at
AR21287, AR21289 (same)); see also Tr. Or. Arg. at 22:18–25 (CGSL Counsel, in relevant part:
“[]I’ve never seen discussions as extensive as what happened in the second round; hundreds of
deficiencies, weaknesses, across all offerors.”)). In 2021, TRANSCOM conducted discussions
by issuing evaluation notices. (Tab 198 at AR31392; Tab 267 at AR38315). TRANSCOM issued
two types of technical capability evaluation notices: (1) “Technical Capability Deficiencies,”
which identified proposal deficiencies (e.g., Tab 269.72); and (2) “Technical Capability Other
than Deficiency,” which identified strengths, weaknesses, significant weaknesses, and discussion
items (e.g., Tab 269.91). When an offeror sufficiently addressed the request or concern,
TRANSCOM treated the issue as resolved. (Tab 269.215 at AR56618–56716; Tab 269.220 at
AR56943–57063).
The RFP states that “[s]ubjective tradeoff procedures will be utilized in accordance with
FAR 15.101-1 and DoD Source Selection Procedures [(DoD SSP)].” (Tab 136 at AR21147.2). It
is not inconsistent or unreasonable for the SSEB to evaluate proposals against the solicitation and
find an approach to be technically acceptable and yet disadvantageous in the final evaluation.
(See Tab 263 at AR38072). That the SSEB determined that CGSL’s approach no longer met the
solicitation’s definition of a significant weakness does not necessarily render CGSL’s approach
equivalent to, or more advantageous than, HomeSafe’s approach. (Tab 267 at AR38317; Tab 263
at AR38072; Tab 200 at AR34558–34564; Tab 201 at AR34662–34664). TRANSCOM targeted
the elimination of all weaknesses, not just deficiencies and significant weaknesses, thus
exceeding FAR requirements. See FAR 15.306(d)(3). The Record does not show that the SSEB
identified CGSL’s or ARC’s approaches as weaknesses, significant or otherwise, nor that they
were treated as such in reaching the technical capability ratings. (See Tab 269.216; Tab 263 at
AR38070–38071). For example, the SSEB flagged CGSL’s payment structure to subtractors as a
discussion item that was resolved after clarification. (Id. at AR38070–38071). It was not assessed
as a weakness, despite how CGSL portrays it. (See Tr. Or. Arg. 23:15–16 (CGSL Counsel:
“[T]hey didn’t call it a weakness, but they treated it as one.”)).
As to ARC’s claims of unequal treatment, there is also no evidence that TRANSCOM
treated its concerns as weaknesses in the final evaluation. With respect to the first alleged
concern, the higher potential for turnbacks compared to HomeSafe’s approach, the technical
evaluation demonstrates that ARC’s rating under SF2 was not negatively impacted because of its
award management system. (AR Tab 198d). Second, ARC misconstrues the SSEB’s assessment
that the “effectiveness of [its award management system] approach is contingent upon the
willingness of subcontractors to frequently update their respective .” (Tab 198d at
AR31506). ARC fails to acknowledge the SSEB’s assessment that found “required daily updates
to the capacity [were] a suitable approach that would likely prevent capacity and
scheduling issues DoD experiences under the current [Household Goods] program with respect
to agents providing accurate and timely updates to capacity, especially during the high and
volatile requirements of peak season.” (Id.(emphasis added)). This assessment does not indicate
that the SSEB considered ARC’s award management system, or specifically its use of the
capacity , to necessarily constitute a deficiency or a significant weakness. (Tab 7 at
AR136).
11
TRANSCOM was not required to reopen discussions once it determined that HomeSafe’s
approach was more advantageous. Lyon Shipyard, Inc. v. United States, 113 Fed. Cl. 347, 357
(2013). The FAR does not require agencies to inform an offeror that its acceptable approach is
less advantageous than an approach proposed by another offeror. FAR 15.306(d)(3); see also
DMS All-Star Joint Ventures v. United States, 90 Fed. Cl. 653, 669 (2010) (explaining that in
discussions “‘agencies need not . . . identify relative weaknesses in a proposal that is technically
acceptable but presents a less desirable approach than others.’”) (quoting WorldTravelService v.
United States, 49 Fed. Cl. 431, 439 (2001)). Plaintiffs fail to acknowledge that advising other
offerors of the preferred aspects of HomeSafe’s award management system would run afoul of
FAR 15.306(e)(1). FAR part 15 prohibits the agency from revealing another “offeror’s technical
solution.” FAR 15.306(e)(2). Thus, if HomeSafe provides a different method in its technical
proposal that TRANSCOM found more advantageous, it would contravene FAR requirements to
share that with other offerors to urge them to implement the same methodology. Any argument
otherwise is circular and leads to spoon-feeding offerors—something well beyond FAR
requirements. See Standard Comms., Inc. v. United States, 101 Fed. Cl. 723, 740 (2011)
(meaningfulness requirement “does not mean that an agency must spoon-feed an offeror as to
each and every item that must be revised, added or otherwise addressed to improve a proposal.”)
(internal citations omitted). So long as the agency “leads” the offeror to the general area of
concern, the agency fulfills its obligations. D&S Consultants, Inc. v. United States, 101 Fed. Cl.
23, 40–41 (2011).
Any dismissive discussion of those approaches was done in a comparative manner,
designed to explain the additional benefits HomeSafe’s differing approach offered the Agency.
Once the weaknesses of each offer were addressed, the SSEB’s determinations warranted no
additional discussion. This is a rational decision clearly reflected in the Administrative Record; it
was neither arbitrary nor capricious. Further, the Court cannot find that either party was
prejudiced by factors that SSA does not explicitly treat as a weakness.
iii. TRANSCOM’s evaluation of the parties’ proposals was rational.
CGSL argues that TRANSCOM irrationally evaluated HomeSafe’s proposal, essentially
giving credit where none was due, specifically regarding SF2. (CGSL MJAR at 29). First, it
claims that TRANSCOM ignored HomeSafe’s approach of awarding moves to subcontractors—
one of the central features upon which TRANSCOM distinguished between HomeSafe’s and
CGSL’s proposals—was internally inconsistent and contradicted HomeSafe’s statements during
discussions. (Id.). The United States and HomeSafe maintain that HomeSafe’s proposal did not
contain inconsistencies, and even if it did that the written proposal surmounts its oral statements.
Agencies may exercise a great deal of discretion in procurement, but the agency has even
greater discretion in a best value procurement than if the contract were awarded based on cost
alone. Galen Med. Assoc., Inc. v. United States, 369 F.3d 1324, 1330 (Fed. Cir. 2004). Thus,
assigning the relative merit of competing proposals is primarily a matter of administrative
discretion. E.W. Bliss Co. v. United States, 77 F.3d 445, 449 (Fed. Cir. 1996) (quotation
omitted). In Office Design Grp. v. United States, the Federal Circuit held that to prevail on a
disparate treatment claim, “a protestor must show that the agency unreasonably downgraded its
proposal for deficiencies that were ‘substantively indistinguishable’ or nearly identical from
those contained in other proposals.” 951 F.3d 1366, 1372–73 (Fed. Cir. 2020) (“A protestor may
12
also prevail by showing that the agency inconsistently applied objective solicitation requirements
between it and other offerors, such as proposal page limits, formatting requirements, or
submission deadlines.”). CGSL has not shown that the agency unreasonably downgraded its
proposal. Thus, the Court finds that CGSL’s gripe as to discrepancies in HomeSafe’s proposal
amounts to subjective disagreement with the manner in which the Agency ascribed value.
HomeSafe alleges that CGSL misunderstands the subcontractor approach explained in its
proposal. (HomeSafe MJAR at 33). In discussions, the Agency clarified “with respect to
HomeSafe’s use of the word ‘ ’ versus ‘ ,’ . . . for consistency purposes, the process
remain[ed] the exact same regardless of what verb is used.” (Id. (citing AR38129–30; compare
Tab 147b at AR22241 with Tab 178b at AR28123 (showing HomeSafe proposed the same
process for subcontractor assignments in the initial and final proposal))). The SSAC touted that
HomeSafe’s approach was “more advantageous” because HomeSafe had “an absolute
understanding of its efficient selection process” and “phenomenally lays out its selection
procedures and even intertwines it with its approach to in order to optimize the
network.” (Id. (citing AR34572–73)).
So long as an agency documents its final award decision and includes the rationale for
any business judgments and tradeoffs, the Court will not disturb the agency’s decision.
Blackwater Lodge & Training Ctr., Inc. v. United States 86 Fed. Cl. 488, 514 (2009). Even if
HomeSafe’s proposed subcontractor approach amounted to an inconsistency between the oral
presentation and the written proposal, the SSEB Report indicates that HomeSafe’s written
proposal “takes precedence” over its oral presentations. (Tab 269.221 at AR57100–01,
AR57103–04). Neither the SSAC’s nor the SSA’s reports reference HomeSafe’s oral
presentation. (Tab 200 at AR34570–74; Tab 201 at AR34659–64). The SSAC identified
HomeSafe’s “ based” selection process, (Tab 269.159 at AR54890–93), as an
innovative and meaningful approach. (USA MJAR at 10 (citing AR34573)). CGSL’s failure to
receive a similar endorsement is not a basis to disturb the award.
Second, CGSL contends that TRANSCOM inaccurately concluded that HomeSafe
proposed to exceed the RFP’s 40% small business participation commitment by more than
CGSL. (CGSL MJAR at 31 (citing Tab 136 at AR21143 (requiring submission of “a completed
Small Business Commitment Document (Attachment 9)” that “identif[ies] the Offeror’s
commitment to the 40% utilization of small business concerns in the performance of this contract
in accordance with PWS paragraph 1.2.1.2.2”); Tab 134b1 at AR21078 (describing “forty
percent” requirement))). According to CGSL, this percentage is miscalculated and HomeSafe
failed to fill out the Small Business Participation Form correctly. (Id.).
HomeSafe’s proposal committed to subcontracting “50% of total [continental United
States] – based contract value” to small businesses. (Tab 269.159 at AR54890). Here, the
Agency assigned a strength to any offeror that proposed to exceed the 40% threshold, regardless
of the amount that would exceed the threshold. (Tab 200 at 34568). TRANSCOM assigned both
CGSL and HomeSafe a strength for exceeding the 40% subcontracting commitment. (Id.). The
SSAC determined that HomeSafe’s commitment of 50% and CGSL’s commitment of 46.71% (a
difference of 3.29%) were roughly equivalent. (Tab 200 at AR34568). By CGSL’s calculations,
HomeSafe’s relevant commitment should have been 43.41%, not 50%. (CGSL MJAR at 32).
Even if that is correct, it is reasonable that the SSAC would come to the same conclusion based
13
on CGSL’s alleged difference of 3.3%. Because both offerors proposed to exceed the 40%
threshold, whether it was by 10% as HomeSafe proposed or 3.41% as CGSL believes HomeSafe
should have proposed, the SSAC reasonably concluded that there was not a discernible
difference between the proposals. CGSL has not shown that even if this constitutes a
miscalculation that it was prejudicial.
Although CGSL asserts that HomeSafe failed to fill out the Small Business Participation
Commitment document correctly, which CGSL claims required the Agency to reduce
HomeSafe’s commitment to small businesses, that document represents only proposed and
estimated amounts and vendors. (Tab 264 at AR38132). Further, it was not incorporated into the
contract upon award. (Id.). Thus, the Agency had no way of ensuring either that the proposed
subcontractors receive work under the contract or that the proposed subcontractors receive those
estimated amounts. (Id.) If it were the case that the awardee failed to live up to this expectation,
it amounts to issues of contract administration. Thus, HomeSafe’s oversight could not have
prejudiced CGSL.
ARC shares the opinion that TRANSCOM unreasonably evaluated offerors’ proposals
under the technical factors. (ARC MJAR at 21–29). This is based on the Agency’s evaluation of
SF1, SF2, and SF4. First, ARC maintains that HomeSafe failed to comply with the material
terms of the PWS. PWS § 1.2.6.3.1 requires the contractor to “provide packing materials that are
new or in sound condition, except in the case when the customer has provided original or
specially designed packaging that the contractor has inspected and accepted as being as good or
in sound condition.” (Id. at 22 (citing Tab 134b1 at AR21083)). ARC suggests that the contractor
must complete two steps to fulfill this requirement: (1) accommodate customers’ requests to use
their own “original or specially designed packaging” and (2) “inspect[] and accept[]” the
customer-provided packaging “as being as good or in sound condition.” (Id. citing PWS).
Further, PWS § 1.2.6.15 requires the contractor to “provide unpacking and reassembly services
unless waived by the customer.” (ARC MJAR at 22 (citing Tab 134b1 at AR21087)). ARC states
that HomeSafe’s proposal did not commit to performing either of these steps, (AR28101), and
should have been found unacceptable.
ARC has pointed to no authority mandating that a proposal must, in painstaking detail,
discuss every single PWS requirement to be found acceptable. In support of its argument, ARC
cites Mortgage Contracting Services v. United States, 153 Fed. Cl. 89, 142 (2021), but that case
is inapplicable. Mortgage Contracting Services applies only where the deviation from a
solicitation term is “material,” when that deviation has “more than a negligible impact on the
price, quantity, quality, or delivery” of the services. Id. And the United States correctly notes that
ARC ignores HomeSafe’s proposal which logically encompasses the requirement to use original
or specially designed packaging that the contractor has inspected and accepted as being as good
or in sound condition. HomeSafe’s proposal states that it will “comply with all DoD packing
material requirements.” (USA MJAR at 22–23, 44–45).
Further, ARC misstates the scope of PWS § 1.2.6.3.1. A plain reading of the requirement
demonstrates that, while the contractor is required to inspect customer-provided packaging, it is
not required to accommodate those requests. Instead, the contractor must find the packaging to
be in good or sound condition. (Tab 134b1 at AR21083). The SSEB did not determine that
HomeSafe needed to acknowledge an exception to the requirement to meet it, nor did it find the
14
wording of HomeSafe’s proposal to prohibit the waiver of unpacking and reassembly by the
customer. (Id. (citing Tab 198p at AR32069)). This is not an irrational decision.
Second, ARC states that TRANSCOM deviated from the RFP standard when evaluating
SF3, specifically because ARC proposed to accelerate evaluated transition requirements that
contained deadlines. (ARC MJAR at 24 (citing Tab 198e at AR31553–60)). In conducting its
evaluation, the SSEB determined that it “did not assess early completion of transition
requirements as being advantageous to the Government[,]” and that the “tasks and respective
timelines associated with transition . . . coincide with the Government’s estimated timelines for
the Government to be prepared to handle said transition related tasks.” (Tab 198e at AR31554–
31560). Similarly, the SSAC determined that “early completion of tasks during the transition
period was . . . not . . . advantageous to the Government as the transition period will remain at
nine (9) months and therefore accelerated integration was not evaluated to have a positive (or
negative) impact on either transition or ultimately contract performance.” (Tab 200 at AR34396).
To prevail in a protest alleging an agency departed from the stated evaluation criteria, “a
protestor must show that (i) the procuring agency used a significantly different basis in
evaluating proposals than stated; and (ii) the protester was prejudiced as a result – that it had a
substantial chance to receive the contract award but for that error.” Banknote Corp. of Am. v.
United States, 56 Fed. Cl. 377, 386–87 (2003) (emphasis added). Simply because TRANSCOM
did not find accelerated transition timelines to be advantageous does not equate to an evaluation
in which no consideration was given to the offerors requisite approach and understanding of said
requirements. And it certainly cannot be said that it is evidence of a significant deviation.
Lastly, ARC maintains that TRANSCOM’s evaluation of SF 4 was arbitrary and
capricious because it forced ARC to proceed through several steps to thoroughly explain its
Multifactor Authentication (“MFA”) when other offerors did not face the same requirement.
(ARC MJAR at 26). Per ARC’s argument, no offeror explained what solution they would use to
provide MFA for government users. (Id.). However, the United States argues that ARC’s
contention is undermined by the Administrative Record, which demonstrates that TRANSCOM
equally evaluated the parties’ proposals on each front. (USA MJAR at 49). Relevant here,
HomeSafe’s proposal states, “[a]s in all HomeSafe applications it
is impossible to circumvent or bypass the [MFA] component of this solution.” (Tab 178b at
AR28161). Thus, in all HomeSafe applications enforces MFA for all
users which logically includes all government users. Because ARC’s complaint is simply a
disagreement with the Agency’s subjective technical evaluation judgments, again, it is no basis
to disturb the award.
Federal procurement entities have broad discretion in making contract award decisions.
Banknote Corp. of Am. v. United States, 365 F.3d 1345, 1354 (Fed. Cir. 2004). “When technical
evaluation errors are alleged, those technical ratings fall within a category of ‘discretionary
determinations of procurement officials that a court will not second guess.’” iAccess Techs., Inc.
v. United States, 143 Fed. Cl. 521, 527 (2019) (quoting E.W. Bliss Co., 77 F.3d at 449). The
Court’s task is to determine whether an agency’s evaluation and award decision have a rational
basis and do not violate statutory or regulatory requirements, prohibitions, or standards.
Savantage Fin. Servs., 595 F.3d at 1285–86. Should Plaintiffs believe that the SSA failed to
explain its rationale in evaluating these portions of the PWS, the Court must still uphold that
decision when an agency’s path may reasonably be discerned. See Bowman Transp., Inc., 419
15
U.S. at 285–86. The Court finds that the Record reflects a reasonable discernable, rational
evaluation of the offerors’ proposals and adequate support of the award to HomeSafe.
iv. TRANSCOM followed the RFP’s evaluation scheme, and its best value
tradeoff was rational.
Plaintiffs contend that the best value tradeoff was conducted arbitrarily, capriciously, and
irrationally. CGSL attacks both the SSAC’s comparative analysis concluding that HomeSafe
presented a more advantageous technical approach and the SSA’s ultimate finding that
HomeSafe’s “superior technical solution warrants the minimal 1.26% difference between the
Offerors’ proposals.” (CGSL MJAR at 6–12, 33–34; see also Tab 201 at AR34671). Similarly,
ARC argues that TRANSCOM’s best value tradeoff analysis is flawed because of how it
conducted its comparative analysis of the offerors’ technical SFs. (ARC MJAR at 33–34). The
Court finds that, contrary to Plaintiffs’ assertions, the Agency conducted a proper comparative
analysis that was, among other things, in accordance with the RFP. Ultimately, Plaintiffs object
to the manner in which the Agency performed its tradeoff analysis. However, their subjective
disagreement with the analysis does not establish that the Agency’s decision lacked a rational
basis, as required. See KSC Boss, 142 Fed. Cl. at 380–81.
1. TRANSCOM correctly followed the RFP’s evaluation scheme.
CGSL surmises that TRANSCOM’s decision to award the subject contract to HomeSafe
was arbitrary and capricious because its evaluation contravened the scheme delineated by the
RFP. (CGSL MJAR at 6–12). Specifically, it alleges that TRANSCOM downplayed CGSL’s
“superiority” for technical SFs 1 and 3. (Id. at 7, 9–10). According to CGSL, it was unlawful and
contrary to the RFP for the SSA “to single out preferred factors, such as ease of use and
customer experience as being ‘extremely impactful,’ as determinative in the tradeoff while
diminishing the importance of such factors as transition and phase-in volume.” (Id. at 12). While
this argument is understandable, it is not compelling.
An agency is given broad discretion to conduct a reasonable determination that is
consistent with the solicitation. That said, agencies must evaluate proposals and make source
selection decisions following the terms of the solicitation. See 10 U.S.C. § 3301(a); FAR
15.304(a); FAR 15.305(a). This includes adhering to the weighting assigned to each evaluation
factor. See BayFirst Solutions, LLC v. United States, 102 Fed. Cl. 677, 694 (2012) (“This is not
the weighting scheme set forth in the solicitation, and therefore constitutes an arbitrary and
improper evaluation scheme.”); 360Training.com, Inc. v. United States, 106 Fed. Cl. 177, 190
(2012). It is unlawful for an agency to solicit proposals on one basis but evaluate them on
another. See FirstLine Transp. Sec., Inc. v. United States, 100 Fed. Cl. 359, 382 (2011) (“Having
announced the relative weight of the non-price factors in the RFP, the government was not free
to evaluate the proposals and award the MCI contract in accordance with another scheme,
regardless of the reasonableness of that scheme.”).
Even so, it is well established that adjectival ratings are merely a guide. Hyperion Inc. v.
United States, 92 Fed. Cl. 114, 119 (2010). As with matters of contract interpretation, the Court
must give the text of the solicitation its plain and ordinary meaning. Id. It “must interpret [the
solicitation] as a whole” and in a manner that gives reasonable effect “to all its parts and avoids
16
conflict or surplusage of its provisions.” Gardiner, Kamya & Assocs., P.C. v. Jackson, 467 F.3d
1348, 1353 (Fed. Cir. 2006) (internal quotation marks and citation omitted).
In this case, the SSA was required to weigh all subfactors equally giving each no more,
and no less, than 25% of the overall Technical Capability assessment. (Tab 7 at AR135). This
requirement is undisputed. It is also true that each subfactor encompassed varying numbers of
requirements, but the RFP was silent as to their relative weight. CGSL maintains that the
discrepancy of requirements caused the SSA to disregard the equal weighting of subfactors to
justify the determination that HomeSafe’s Factor 2 proposal had greater merit, thereby
warranting a 1.26% ($225 million) price premium. (CGSL MJAR at 7). To illustrate its point,
CGSL points out that the SSA acknowledged that CGSL’s proposal was superior to HomeSafe’s
proposal in SFs 1 and 3, notwithstanding their equivalent Acceptable ratings, but then
“downplayed” CGSL’s advantages as having less value than other features in HomeSafe’s
proposal. (CGSL MJAR at 8; Tab 201 at AR34659, AR34666).
CGSL states that the SSA inflated the importance of HomeSafe’s approach to individual
PWS requirements. (CGSL MJAR at 8). For example, the SSA found that HomeSafe’s approach
to the ease of use PWS requirement under SF4 was “extremely impactful to improving the
customer experience, as the IT system will be utilized by the customer for virtually all aspects of
each of the roughly 400,000 annual moves that will be serviced under GHC.” (AR34667).
Further, the SSAC determined that the “impact” of HomeSafe’s strength under SF4 for allowing
customers to arrival was “slightly larger than the combined impact of
CGSL’s [SF] 1 approaches to Claims Settlement/Adjudication as well as Customer Payout
Options and Minimizing Transfer of Claims . . . and Inconvenience Claims combined” because
“the impact of HomeSafe’s [SF] 4 approach can be felt by the customer, during
both pick-up and delivery, on every move whereas the impact of CGSL’s [SF] 1 approaches . . .
will only be felt by customers on moves in which claims must be filed.” (AR34647). With
respect to claims settlement and inconvenience claims, the SSA found CGSL’s advantages less
impactful because “the difference only extends to one part of the move process, specifically
claims, which will not occur in every move, or likely even the majority of moves.” (AR34658).
As to CGSL’s argument that some of its strengths were downplayed, HomeSafe points
out that CGSL omits introduction and conclusion sentences to that excerpted paragraph,
acknowledging “that there are areas in which CGSL’s proposal provided benefits that
HomeSafe’s proposal did not also provide.” (HomeSafe MJAR at 29, (citing AR34671); see also
Tr. Or. Arg. 18:16–18 (“The decision cannot be rational if [the SSA] does not even acknowledge
attributes of CGSL’s proposal that were better.”)). To the contrary, the SSA specifically
discussed CGSL’s advantages and the ways CGSL’s proposal was more impactful to customer
experience, as well as its advantages in point of contact, delivery, and claim settlement and
adjudication. (Tab 201 at AR34657–59). Contextually, TRANSCOM did not “downplay” or
ignore CGSL’s advantages, but merely summarized its conclusions and provided select examples
given the voluminous Record. Contrary to CGSL’s argument, highlighting different requirements
in the various subfactors is not evidence of unequal weighting.
Further, the RFP allows the CO to consider customer experience, such as ease of use, in
the tradeoff analysis. (Tab 136 at AR21142; see also Tr. Or. Arg. at 46:24–47:2). The SSA
addressed some requirements, like ease of use, not because the SSA prioritized them but because
17
they were areas in which there was a discernible difference between HomeSafe’s and CGSL’s
proposals for that SF. (See AR34667–71). The United States effectively argues the SSA was
merely discussing the differences in competing proposals and documenting the supporting
rationale for business judgments and tradeoffs rather than pointing out these differences because
weight was unevenly distributed. (USA MJAR at 29–30). The RFP requires TRANSCOM to
equally weigh the four subfactors, but it permits a finding that the “impact” of HomeSafe’s SF4
strengths is greater than CGSL’s strengths under other SFs. (AR34667–68). The Court of Federal
Claims has upheld an agency’s determination that the awardee’s superiority in one equally
weighted subfactor outweighed a disappointed bidder’s superiority in another subfactor in a best
value procurement. See Plasan N. Am., Inc. v. United States, 109 Fed. Cl. 561, 577 (2013)
(finding that award turning on one subfactor did not indicate greater weight, but that awardee
outperformed disappointed bidder by greater magnitude than the disappointed bidder
outperformed in other subfactors). Just because all SFs are of equal importance for evaluation
purposes does not mean that, in conducting best value determination, an offeror’s approach to
one SF cannot be more valuable than another offeror’s approach to a different SF. In plainer
terms, equally important requirements do not translate to equally valuable approaches.
TRANSCOM’s conclusion regarding the relative impact of the offerors’ strengths did not
create a new weighting scheme centered on the percentage of moves impacted by a particular
proposal feature but instead constituted an observation about the degree of benefits to the United
States. Statements and comparisons in this regard are inherent in a best value tradeoff. See Am.
Relocation Connections, LLC v. United States, 147 Fed. Cl. 608, 617–19 (2020) (acknowledging
agency “discretion—and duty—to analyze one offeror’s superiority over another, especially their
technical capabilities to perform the contract”). The Court finds that the SSA’s relative weighting
as it appears in the Record is perfectly reasonable and consistent with the solicitation. It does not
evidence an improper predilection for HomeSafe as ARC and CGSL contend.
2. Best Value Tradeoff Analysis
CGSL and ARC assert that TRANSCOM’s best value tradeoff analysis was irrational.
Again, these arguments amount to subjective disagreement with the Agency’s analysis. Mere
disagreement from a protestor does not establish that an agency’s decision lacked a rational
basis. KSC Boss, 142 Fed. Cl. at 380–81.
“Procurement officials have substantial discretion to determine which proposal represents
the best value for the government.” E.W. Bliss, 77 F.3d at 449. Adjectival ratings “are not subject
to a mathematical calculation.” Glenn Def. Marine, 720 F.3d at 909 n.6. Additionally, “[t]he
process of making a ‘best value’ decision is not merely an exercise in adding up strengths and
weaknesses, but a comprehensive comparative analysis that necessarily is influenced by the
procurement official’s expertise.” Coastal Int’l Sec., Inc. v. United States, 93 Fed. Cl. 502, 550–
51 (2010) (citing Galen Med. Assocs., 369 F.3d at 1330).
The FAR requires an agency’s final award decision to “be based on a comparative
assessment of proposals against all source selection criteria in the solicitation.” FAR 15.308. “To
determine whether and to what extent meaningful differences exist between proposals, agencies
should consider both adjectival ratings and information on advantages and disadvantages of the
proposals.” Femme Comp Inc. v. United States, 83 Fed. Cl. 704, 758 (2008) (internal quotations
18
omitted). “Looking beyond the adjectival ratings is necessary because proposals with the same
adjectival rating are not necessarily of equal quality.” Id. (internal quotations and citations
omitted).
CGSL argues that even if the Court determines that the evaluation ratings and assignment
of strengths were reasonable, the tradeoff was arbitrary and contrary to law because the SSA
failed to (1) exercise reasonable “independent judgment,” (2) accurately assess the relative merit
of CGSL’s and HomeSafe’s proposals, and (3) give due weight to CGSL’s $225 million cost
savings. (CGSL MJAR at 32–33). Specifically, CGSL takes issue with the SSA’s single-
paragraph iteration to explain why HomeSafe was the superior offeror. (Id at 33 (citing Tab 201
at AR34671)). CGSL maintains that this finding ignores multiple aspects of CGSL’s proposal
containing more detail than HomeSafe’s proposal due to the SSAC’s determination that no
discernible difference in detail existed. (Id.). CGSL insists that the ignored excerpts of its
proposal show that CGSL had a greater understanding of multiple requirements, such as CGSL’s
proposal to accept original packaging from the customer under PWS § 1.2.6.3.1, Packing
Materials, (see Tab 196a at AR31301); how CGSL would resolve claims for PWS § 1.2.7.2.4,
Hardship Expenses, (see id. at AR31307); and the specific subject matter of its government
personnel training under Appendix A.2.2.5, (see id. at AR31351). (CGSL MJAR at 33).
ARC opines that TRANSCOM’s best value tradeoff was unreasonable because it did not
perform any analysis of whether ARC’s SF 1 approach was more beneficial than HomeSafe’s SF
2 approach. (ARC MJAR at 34). ARC asserts that the SSA instead concluded that because each
offeror was superior under one of these subfactor tradeoffs, the approaches overall were “roughly
equivalent.” (ARC MJAR at 34 (citing AR34472). Had it compared those subfactors, ARC
believes that the SSA would have concluded that its SF 1 approach, which would “significantly
affect both customers and the customer’s property,” was more beneficial than HomeSafe’s SF 2
approach, which merely “contributes to an overall improved move experience.” (Id. (citing
AR34470, AR34472)).
That there were no “discernible differences” between various strengths among proposals
is not an indication they were not considered when TRANSCOM made its final award. It merely
shows that strengths existed for both offerors that did not warrant further distinction. This does
nothing more than illustrate that the SSA acknowledged the benefits of both offerors; to consider
it further is an invitation for the Court to replace its judgment for the agency’s, an improper
intrusion into the discretion afforded the agency. See KSC Boss, 142 Fed. Cl. at 380–81. The
Record shows that HomeSafe had higher adjectival ratings under SFs 2 and 4, but TRANSCOM
did not rely on adjectival ratings or a rote counting of strengths and weaknesses; the United
States notes that “there are nearly 200 pages of documentation demonstrating that TRANSCOM
appropriately went behind the adjectival ratings in conducting a qualitative analysis between
CGSL and HomeSafe that . . . supports its best value determination.” (USA MJAR at 26 (citing
Tab 258a at AR37780)). This is affirmative evidence that the SSA considered the offerors’
proposals fully and comprehensively.
As to ARC’s additional arguments, the Agency rated both HomeSafe and ARC
“Acceptable” under SF 3 but concluded that ARC was more advantageous in “one (1) out of
eleven (11) requirements.” (Tab 200 at AR34423). That is, ARC already received an advantage
19
under SF 3 and cannot reasonably show that a single additional strength would have merited a
higher rating (much less a $1.6 billion premium).
Finally, CGSL cites the SSA’s statement that servicemembers are “absolutely deserving
of the quality of service and support HomeSafe will provide” and that HomeSafe’s proposal
therefore “handedly warrants” a $225 million price premium. (CGSL MJAR at 33 (citing
AR34673)). CGSL believes that this supports the contention that “the SSA readily admitted that
he viewed non-price factors as more important than price.” (Id. (emphasis removed)). Not so, but
it is nevertheless obviated by the explicit language of the RFP. The RFP stated that each
“Offeror’s Technical Capability will be evaluated on a basis approximately equal to price.” (Tab
136 at AR21148 (emphasis added)). This has no bearing on the best value tradeoff analysis
because there is no requirement that non-price factors be weighted exactly equal to price as
CGSL contends. (Tr. Or. Arg. at 17:12–18 (CGSL Counsel: “It’s saying that because the
contracted services are critical, therefore . . . this is more important. And that’s an example of . . .
treating technical as more important than price.”)). Thus, the RFP clearly contemplates different
weights given to non-price factors.
TRANSCOM was clearly within its discretion to evaluate this procurement under a best
value tradeoff analysis instead of a price-based analysis. And there is no designated method for
conducting a best value determination; it is an analysis specific to agencies that may vary from
one solicitation to another. In a best value tradeoff analysis, the agency provides guidance as to
the relative weight of price and technical factors, but it is not bound to blindly adhere to a crude
metric as suggested by Plaintiffs. This is not simply a “cost versus technical” analysis. (See Tr.
Or. Arg. 42:9–10). The Court has held that in a best-value procurement, agencies may decide to
select a lower-technically-rated proposal, even if the solicitation emphasizes the importance of
technical merit, if it decides that the higher price of a higher-technically-rated proposal is not
justified. Mil-Mar Century Corp. v. United States, 111 Fed. Cl. 508, 552–553 (2013) (citing 48
C.F.R. § 15.101-1(a)). Under that rationale, the inverse must also be true—that under a best
value tradeoff analysis it is reasonable for an agency to decide that the higher price of a higher-
technically-rated proposal is justified. CGSL’s argument is a misplaced attempt to convert this
procurement into a lowest-price procurement. As iterated in the preceding section, a procurement
official is granted more discretion in a best value tradeoff analysis because the two are inherently
different based on the procurement. See Galen Med. Assoc., 369 F.3d at 1330.
v. HomeSafe’s representation regarding FedRAMP compliance was not material
to the solicitation and therefore cannot prejudice ARC.
ARC next claims that TRANSCOM should have disqualified HomeSafe because its
proposal included a material misrepresentation. 5 ARC’s argument is comprised of three
components: (1) HomeSafe’s representation that “ has achieved FedRAMP High
compliance” was false because had obtained authorization only at the lower, Moderate,
level; (2) HomeSafe’s misrepresentation was material because TRANSCOM relied on it to
award HomeSafe a strength that contributed to its award decision; and (3) ARC was prejudiced
5
This argument has been the subject of various other Court orders, (ECF Nos. 42, 67), regarding
discovery. Facts and findings in those orders are adopted in this Opinion.
20
because, in any reevaluation, HomeSafe would be disqualified based on its misrepresentation.
(ARC MJAR 8–16).
Bid protests are typically judged in a finite universe, one limited by the administrative
record. When proposals use falsified information or offerors wish to use evidence outside of the
administrative record, the sky opens allowing the Court to consider extraneous evidence. To
establish a material misrepresentation, a protester must demonstrate that “(1) [the awardee] made
a false statement; and (2) the [agency] relied upon that false statement in selecting [the
awardee’s] proposal for the contract award.” Blue & Gold Fleet, LP v. United States, 70 Fed. Cl.
487, 495 (2006) (citation omitted), aff’d, 492 F.3d 1308 (Fed. Cir. 2007); see also Sealift, Inc. v.
United States, 82 Fed. Cl. 527, 538 (2008). It would be naïve to believe “that the evidence
necessary to support a claim of a knowing misrepresentation in a proposal would ever be located
in an agency’s administrative record filed with the Court.” Golden IT, LLC v. United States, 157
Fed. Cl. 680, 702 (2022) (citations omitted). For the Court to evaluate ARC’s material
misrepresentation allegations, it logically follows that the Court must consider extrinsic
information supporting those allegations. Connected Glob. Sols., LLC v. United States, 160 Fed.
Cl. 420, 424 (2022). The Court has considered the extrinsic information put forth by ARC and
finds that ARC has not carried its burden. Though the Court is concerned with the veracity of
HomeSafe’s statement, ARC was not prejudiced because the relevant factor was not material to
the procurement.
“FedRAMP” refers to the Federal Risk and Authorization Management Program, which
provides a standardized approach to security assessment, authorization, and continuous
monitoring for cloud products and services as a prerequisite for use by the Federal Government.
(Tab 231 at AR37116; Tab268.427 at AR50453). FedRAMP provides “a uniform way to
determine . . . security capabilities.” Oracle Am. v. United States, 144 Fed. Cl. 88, 118 (2019).
The security categories are based on the potential impact that certain events would have on an
organization’s ability to accomplish its assigned mission, protect its assets, fulfill its legal
responsibilities, maintain its day-to-day functions, and protect individuals. (ECF No. 42 at 2
(citation omitted)). Security ratings are categorized into one of three impact levels—Low,
Moderate, and High–across three security objectives—Confidentiality, Integrity, and
Availability. (Tab 268.427 at AR50453.).
Under the IT Services SF of the GHC RFP, TRANSCOM asked offerors to describe their
technical approaches to meeting 16 separate requirements, one of which was “Secure Access.”
(Tab 7 at AR201; Tab 201 at AR34667). For this requirement, contractors had to “provide and
maintain an easy to use, secure, web-based, mobile device compatible IT system able to manage
complete household goods relocation services globally during peak (surge) and non-peak
seasons.” (Id.). To meet the secure access requirement, HomeSafe proposed the use of “ ”
products and services. (Tab 178b at AR28160). HomeSafe’s proposal
indicated that “[ has achieved FedRAMP High compliance, HomeSafe is able to take
advantage of Authority to Operate (ATO) to ensure its own FedRAMP compliance,”—
the problematic statement at issue. (Id.).
The FedRAMP program management office, under the auspices of the GAO, maintains a
public website that lists all FedRAMP authorizations, including the impact level of each
authorization. FedRAMP Marketplace, FedRAMP, https://marketplace.fedramp.gov (last visited
21
Oct. 16, 2022). ARC points to this publicly available information showing that has
achieved authorization only at the Moderate impact level. (ARC MJAR at 9). ARC thus argues
that the representation that had achieved a High compliance score is a material
misrepresentation and takes issue with HomeSafe receiving a strength because of that
compliance score. (Id.). ARC cites the SSEB’s praise of HomeSafe’s IT plan, which stated:
As stated, has achieved FedRAMP High compliance which involves the
highest level of security controls. As such, a highly secure
solution provides the most stringent security
controls resulting in a heightened level of security for
. As such, this aspect of the proposal was considered to be
advantageous to the Government.
(Tab 178b at AR28160).
ARC previously noted this perceived misrepresentation in its protest before the GAO; the
GAO subsequently invited the parties to provide additional briefing on the appropriate remedy
when an offeror’s proposal contains a material misrepresentation. (Tab 239a.). In response,
HomeSafe submitted an apparently self-serving declaration from the President of one of its
subcontractors as evidence that HomeSafe did not intend to “mislead the Agency regarding
FedRAMP status,” and indicated that HomeSafe relied on publicly available information
from website. (Id. at AR37422–23, ¶ 10). The declaration seems to indicate that the
program could be configured to meet specific needs in instances where a High rating was
necessary. It states that website includes documentation advising users on how to
configure for FedRAMP compliance. (Id.).
The referenced documentation provides, in relevant part, that
(Id. at AR50454). Further,
the declaration states that website informs users that
(Tab 239a at AR37422–23). The GAO determined that, based on these representations,
HomeSafe had not made material misrepresentations in its proposal. (Tab 251 at AR37535). The
Court is not bound by the GAO’s determination, nor is it particularly swayed by it, but it accepts
its explanation as instructive.
The Court begins its analysis by addressing Defendants’ misconceptions regarding the
viability of a material misrepresentation claim. As the Court has held and reiterated, HomeSafe’s
intent is immaterial. Connected Glob. Sols., LLC v. United States, 159 Fed. Cl. 801, 808 (2022)
(“Assuming this would go to HomeSafe’s intent, rather than the fact that HomeSafe made a
misrepresentation, that is not at issue.”); Connected Glob. Sols., 160 Fed. Cl. at 424 (“the Court
notes again that the relevant inquiry here is whether HomeSafe’s representation on its face was
false, not HomeSafe’s intent.”). A material misstatement made with the intent to deceive is
particularly egregious, but that “does not mean that an agency lacks the discretion to disqualify a
proposal that contains a material misrepresentation that an offeror included inadvertently (as
opposed to intentionally) in its proposal.” NetCentrics Corp. v. United States, 145 Fed. Cl. 158,
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169 (2019). Simply put, it is nonsensical to explore the subjective factors of “intent” in a case
normally confined to an administrative record.
The United States equates this misrepresentation issue to an issue of contract
administration. (USA MJAR at 32). The Court rejects this argument. The United States bases
this, in part, on a case decided by the undersigned. In Huffman Bldg. P, LLC v. United States, the
Court found that the awarding agency was entitled to rely on the awardee’s representation of
technical compliance based on the totality of the circumstances. 152 Fed. Cl. 476, 486–87
(2021). Here, the United States ignores that ARC’s allegation could have been proved or
disproved by documents within TRANSCOM’s access. FedRAMP is a publicly available
website, completely dissimilar to the outside records at issue in Huffman. It is unreasonable to
find that the United States is entitled to rely on representations it has the resources to debunk
merely by looking to easily accessible records.
HomeSafe also argues that the Federal Circuit does not recognize offeror
misrepresentation (absent agency involvement or indicia on the face of a proposal) as an APA
bid protest cause of action. (HomeSafe MJAR at 9–11). This is false. Allegations of material
misrepresentation can be the basis for a bid protest. See e.g., LightBox Parent, L.P. v. United
States, ___ Fed. Cl. ___, 2022 WL 4241847, at *6 (Fed. Cl. Aug. 26. 2022) (acknowledging that
the Court of Federal Claims has employed this in the context of bid protests); Plan. Rsch. Corp.
v. United States, 971 F.2d 736, 740–41 (Fed. Cir. 1992) (“[T]he misrepresentations of [the
contractor], together with the ‘massive’ personnel substitutions made by [the contractor] after
award with the acquiescence and assistance of [the agency], tainted the bidding and evaluation
process.”); Optimization Consulting, Inc. v. United States, 115 Fed. Cl. 78, 99 (2013) (“[T]he
submission of a misstatement, as made in the instant procurement, which materially influences
consideration of a proposal should disqualify the proposal.”) (internal quotations omitted); Blue
& Gold Fleet, 70 Fed. Cl. at 495 (“To preserve the integrity of the solicitation process when such
a material misrepresentation influences the award of the proposal, the proposal is disqualified
from consideration.”). Thus, any argument that a material misrepresentation claim is improper
before this Court is not well founded.
Turning to the merits of ARC’s claim, the FedRAMP website shows that had not
achieved High Compliance at the time of award. In an attempt to salve this, the United States
points out that, to achieve DoD IL4 PA status, typically a company must hold FedRAMP
Moderate status at a minimum, and then implement the heightened DoD-specific controls.
(AR50454). DoD IL4 PA status exceeds FedRAMP Moderate security requirements and
fundamentally met the FedRAMP High requirements, which are less stringent than DoD-specific
security requirements. (Id.). It is outside of this Court’s purview to equate the standards of DoD-
specific controls and FedRAMP compliance.
Based on the documents supplied at the GAO’s request, (Tab 239a AR37422–23),
Defendants have shown allows users to configure the settings to meet High compliance.
The statement at issue, that HomeSafe may take advantage of High compliance score, is
not entirely false. Even so, it is suspect. Offerors should take care to utilize transparent language
in their bids. Likewise, agencies are not relieved from reviewing records in their own control (or
subject to an internet search) to debunk terms of a proposal.
23
Despite the truthfulness of the statement, ARC must show the Agency’s material reliance
in making its final award. ARC cannot. Misstatements must materially influence the
consideration of a proposal. See Optimization Consulting, Inc., 115 Fed. Cl. at 99. TRANSCOM
found that HomeSafe was more advantageous under SF 4 based on an evaluation of 16
requirements, one of which was secure access. (Tab 201 at AR34667; see also Tr. Or. Arg.
69:20–23 (DOJ Counsel: “TRANSCOM found HomeSafe more advantageous based on -- it was
the 16 requirements were evaluated; it was more advantageous in nine out of 16
requirements.”)). Thus, this was a mere, single requirement among several under IT Services.
There is no evidence that the SSA materially relied on this particular requirement; it is not
explicitly stated in the SSDD.
The only other apparent way to justify that this representation was a material part of the
award decision is to show that it was relevant to a material term of the solicitation. By ARC’s
own admission, a solicitation term is material where it has more than a negligible impact on the
price, quantity, quality, or delivery of the subject of the proposal. (ARC MJAR at 12 (citing
Mortg. Contracting Servs., 153 Fed. Cl. at 142). ARC has not shown that the secure access
requirement had an integral impact on pricing, quality, quantity, or delivery. Thus, because it
was not material to the solicitation, it is not likely to have been materially relied upon.
ARC counters that the content need not relate to a material term of the contract in order
to constitute a material misrepresentation. (See Tr. Or. Arg. 32:17–19 (ARC Counsel: “What
we’re looking at in the material, is it material to the [A]gency’s evaluation of the proposals.”)).
But that does not acknowledge ARC’s burden to prove that TRANSCOM materially relied on
that false statement in selecting HomeSafe’s proposal for the award. Unless the SSA’s decision
clearly denotes that secure access requirements materially influenced this decision or the secure
access requirement relates to a material contract term, the Court cannot find that it can rise to the
level of a material misrepresentation. Therefore, whether achieved FedRAMP High
compliance was not a determining factor in the Agency’s award decision and cannot be a
material misrepresentation warranting disruption of the award.
vi. TRANSCOM’s price analysis was not arbitrary and capricious.
ARC next argues that the pricing analysis used by TRANSCOM was based on
disqualified bids and therefore arbitrary. When the Agency obtained new proposals in December
2020 from ARC, HomeSafe, and CGSL, the Record states it used FAR 15.404-1(b)(2)’s first
price analysis technique—comparing proposed prices. (Tab 199 at AR32395–96). But, as ARC
maintains, the Agency could not have compared the December 2020 proposed prices from ARC,
HomeSafe, and CGSL to each other because TRANSCOM found all December 2020 proposals
unacceptable. (Tab 198 at AR31391–96 (identifying deficiencies in each proposal in each
round)); see also FAR 15.001 (defining a “deficiency” as “a material failure . . . that increases
the risk . . . to an unacceptable level”). Instead, the Agency looked back in time to its “Pre-
Competitive Range Determination data” and compared ARC’s, HomeSafe’s, and CGSL’s
current prices to the prices proposed by the seven original competitors in their initial proposals
from November 2019. (Id.). ARC claims that this method is inapplicable because those prices
were found to be unacceptable. The Agency repeated this evaluation—using these static
benchmarks—in each evaluation round and used the results to inform discussions. (See generally
Tab 199).
24
ARC ignores that FAR part 15 does not require the United States to recalculate fair and
reasonable pricing thresholds after the competitive range is set, if an offeror removes itself from
the competition, or if the agency takes corrective action. See generally FAR 15.4. As HomeSafe
notes, “normally” does not mean “mandatory,” it only provides an example of when
recalculation might occur. (HomeSafe MJAR at 50).
ARC fails to identify any statutory or regulatory provision that would require
TRANSCOM to update its reasonable price estimates in the period between the initial RFP and
final award. To evaluate a price for balance and reasonableness, the FAR prescribes a menu of
“price analysis techniques and procedures.” FAR 15.404-1(b)(2), 15.404-1(g)(2). These
techniques and procedures include comparing a particular price to “proposed prices received in
response to the solicitation.” FAR 15.404-1(b)(2). Therefore, TRANSCOM adequately
established a fair and reasonable price pursuant to FAR part 15. See FAR 15.404-1(b)(2)(i)
(“Comparison of proposed prices received in response to the solicitation. Normally, adequate
price competition establishes a fair and reasonable price (see 15.403-1(c)(1)).”).
ARC argues that had TRANSCOM employed what it believes to be the correct price
analysis, it would have identified ARC’s price as unreasonable, thereby obligating it to hold
discussions and give ARC the opportunity to make its proposal competitive. (Tr. Or. Arg. at
37:17–21). The fatal flaws to ARC’s argument are that (1) ARC admits it could not have reduced
its price and cannot prove prejudice, (Tab 214 at AR35367 (
)), and (2) this
would only be compelling had ARC’s price been found to be unreasonable—it was not.
Therefore, any error that may have occurred in determining the reasonableness of price was not
prejudicial to offerors.
vii. The CO’s responsibility determination was rational.
ARC argues that the CO’s responsibility determination brushed aside, without any
rational basis, serious national security concerns raised by an outside review. ARC believes that
had TRANSCOM conducted a rational responsibility determination, HomeSafe would have been
eliminated from the competition or required to significantly revise its technical approach to
mitigate its responsibility risks. (ARC MJAR at 35). The United States counters that
TRANSCOM appropriately considered all relevant information and rationally found HomeSafe
responsible. (USA MJAR (citing Tab 251 at AR37526–529.)). The Court agrees with the United
States.
COs “are ‘generally given wide discretion’ in making responsibility determinations and
in determining the amount of information that is required to make a responsibility
determination.” Supreme Foodservice GmbH v. United States, 112 Fed. Cl. 402, 415 (2013).
Responsibility determinations are a matter of “business judgment” and COs are “generally given
wide discretion” in making them. Bender Shipbuilding & Repair Co. v. United States, 297 F.3d
1358, 1362 (Fed. Cir. 2002). An agency’s responsibility determination is entitled to a
“presumption of regularity,” and a plaintiff “necessarily bears a heavy burden” in seeking to
rebut that presumption. Impresa Construzioni, 238 F.3d at 1338. Although the FAR requires a
CO to have, or to obtain, enough information to make a responsibility determination, the
contracting officer is the arbiter of the type of information he needs and the breadth of that
25
information. John C. Grimberg Co., Inc. v. United States, 185 F.3d 1297, 1303 (Fed. Cir. 1999)
(citing FAR 9.105–1(a)).
Here, TRANSCOM engaged Exiger, a contractor supporting the Office of the Secretary
of Defense, to provide a report so TRANSCOM could “fully assess an apparent awardee’s
responsibility.” (Tab 268.428 at AR50465). Exiger was contracted to evaluate topics “including,
but not limited to, [risk associated with] foreign ownership and control,” (id. at AR50465,
AR50457–58), in order for TRANSCOM to “do a solid assessment of the apparent awardee’s
responsibility,” regardless of the unclassified nature of the contract, (id. at AR50463). Exiger
produced an extensive report including risk profiles for several issues, such as foreign
ownership, control, and influence, as applied to HomeSafe and its beneficiaries. (Tab 204c at
AR35153–212; see also Tab 204d). Specifically, it identified Sun Capital Partners, a US-based
private equity firm, into which numerous other funds invest capital from a range of both
domestic and foreign investors. (Id. at AR35137). Sun Capital Partners’ fund, in turn, invests
money in Tier One Relocation LLC, which is one of the 50/50 joint venture partners of
HomeSafe. (Id.). Exiger also documented that Tier One’s higher-level parents presented
concerns due to their “investments in high-risk jurisdictions like China or Russia,” which could
“create exposure and potential vulnerability to foreign intelligence targeting operations,” and
allow “[a] determined foreign intelligence activity” to “elicit valuable operational information
from tracing the movements of U.S. military and special forces personnel around the U.S. or the
world.” (Tab 204c at AR35154). Based on these findings, Exiger determined that HomeSafe
merited a “Medium” risk rating. (Tab 204c at AR35159). TRANSCOM found that these factors
did not impact the responsibility level attributed to HomeSafe. (Tab 204 at AR34713–15).
Contrary to ARC’s contentions, a Medium risk rating does not lend itself to an
irresponsible rating. Exiger found that the foreign investors of Sun Capital Limited Partners are
passive owners. (Tab 204c at AR35155). TRANSCOM conducted a step-by-step evaluation
under FAR 9.104 to explain its responsibility determination. (See generally Tab 204).
TRANSCOM found no nexus between Sun Capital Partners’ fund, and any possible foreign-
based influence, because of the wide distribution of both investors and the entities receiving
investments from this fund. (Id. at AR34713). TRANSCOM concluded that the combination of
these factors effectively eliminates any realistic possibility of foreign control or influence over
Sun Capital Partners, let alone Tier One Relocation LLC, as the recipient of capital from the
fund. (Id.). Further, the Agency concluded that “[HomeSafe] itself is even more insulated from
this risk as Tier One Relocation LLC is but one of its 50/50 joint venture partners.” (Id.). Due to
the attenuation between these companies, the Agency’s finding is reasonable.
ARC references vague concerns about national security risks relating to HomeSafe
winning this procurement, (ARC MJAR at 37–38), but this is not a classified contract. (Tr. Or.
Arg. at 45:9–10). The RFP relates to relocation services for household goods and there are no
explicit aspects of this contract that implicate national security concerns. (See Tab 134b1 at
AR21077; AR21084). If TRANSCOM believes that its interests, as well as the interests of its
service members and their families, are sufficiently protected, it alone bears the risk of that
decision. The Court cannot substitute its judgment for that of the Agency. Even so, there is no
indication that these non-U.S. beneficial owners have any interest in, let alone a realistic
opportunity to obtain, GHC data, sensitive or otherwise.
26
viii. Miscellaneous
There are a host of other arguments offered by Plaintiffs, notably that TRANSCOM’s
evaluation breached its duty to consider other proposals honestly and fairly and that any
violations of procurement law prejudiced the other offerors. Success on either of these arguments
would necessitate a finding that a violation occurred. The Court finds no error.
Plaintiffs also request this Court to permanently enjoin the award to HomeSafe. A party
seeking permanent injunctive relief must show that: (1) it “has succeeded on the merits of the
case;” (2) it “will suffer irreparable harm if the court withholds injunctive relief;” (3) “the
balance of hardships to the respective parties favors the grant of injunctive relief;” and (4) “it is
in the public interest to grant injunctive relief.” PGBA, LLC v. United States, 389 F.3d 1219,
1228–29 (Fed. Cir. 2004). Because Plaintiffs have not succeeded on the merits of this protest, no
injunctive relief is warranted.
Pursuant to RCFC 7 and 52.1, the United States moves to strike paragraphs 3–17 of a
declaration, (ECF No. 78-1), that ARC submitted with its Response to the United States’ Cross-
Motion for Judgment on the Administrative Record. (ECF No. 85). Because the Court did not
consider the Declaration in this ruling, the United States’ Motion to strike is DENIED AS
MOOT.
III. Conclusion
Plaintiffs have not met their burden to show that the GHC was awarded arbitrarily,
capriciously, or contrary to law. Thus, the Court declines to disturb the award to HomeSafe.
CGSL’s and ARC’s Motions for Judgment on the Administrative Record, (CGSL MJAR, ECF
No. 62; ARC MJAR, ECF No. 61), are DENIED. The United States and HomeSafe’s Motions
for Judgment on the Administrative Record, (USA MJAR, ECF No. 74; HomeSafe MJAR, ECF
No. 75), are GRANTED.
The Clerk is DIRECTED to enter judgment accordingly. The parties shall meet and
confer and file a Joint Status Report proposing redactions to the memorandum opinion by
November 14, 2022 to allow the Court to file a public version of the opinion.
IT IS SO ORDERED.
s/ David A. Tapp
DAVID A. TAPP, Judge
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