Iap Worldwide Services, Inc. v. United States ( 2022 )

In the United States Court of Federal Claims
No. 21-1570C
(Filed Under Seal: March 28, 2022)
(Reissued for Publication: April 5, 2022)
)
IAP WORLDWIDE SERVICES, INC., )
)
Plaintiff, )
)
v.
)
THE UNITED STATES, )
)
Defendant, )
)
and )
)
VECTRUS SYSTEMS CORPORATION, )
Defendant- )
Intervenor. )
)
Kara L. Daniels, Arnold & Porter Kaye Scholer LLP, Washington, D.C., for Plaintiff. Of
counsel were Nathaniel E. Castellano, Thomas A. Pettit, and Aime JH Joo.
Tanya B. Koenig, Commercial Litigation Branch, Civil Division, United States Department
of Justice, Washington, D.C., for Defendant. With her on the briefs were Brian M. Boynton,
Acting Assistant Attorney General, Martin F. Hockey, Jr., Acting Director, and Reginald T.
Blades, Jr., Assistant Director. Of counsel was Major Seth Ritzman, Contract Litigation &
Intellectual Property Division, United States Army Legal Services Agency, Fort Belvoir,
VA.
Adam K. Lasky, Seyfarth Shaw LLP, Seattle, WA, for Defendant-Intervenor. Of counsel
were Edward V. Arnold, Stephanie B. Magnell, and Bret C. Marfut, Seyfarth Shaw LLP,
Washington, DC.
MEMORANDUM OPINION *
SOLOMSON, Judge.
This case involves a billion dollar procurement; the range and number of the
parties’ arguments reflect the stakes of the dispute.
In this post-award bid protest action, Plaintiff, IAP Worldwide Services, Inc.
(“IAP”), challenges the decision of Defendant, the United States — acting by and through
the U.S. Department of the Army, Army Contracting Command–Aberdeen Proving
Ground (the “Army”) — to award the Operations, Maintenance, and Defense of Army
Communications in Southwest Asia and Central Asia (“OMDAC-SWACA”) contract to
Defendant-Intervenor, Vectrus Systems Corporation (“Vectrus”). IAP contests that
contract award as arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law, including provisions of the Federal Acquisition Regulation (the
“FAR”). The parties filed cross-motions for judgment on the administrative record
pursuant to Rule 52.1 of the Rules of the United States Court of Federal Claims (“RCFC”).
For the reasons set forth below, the Court finds for IAP on a single issue, but
declines to issue either monetary or injunctive relief, at least on the record as it currently
stands. Instead, the Court orders supplemental briefing on the question of appropriate
relief. Whether this case ultimately yields IAP a pyrrhic victory remains to be seen.
I. FACTUAL BACKGROUND 1
A. The Solicitation
On April 3, 2019, the Army issued Solicitation No. W91RUS-19-R-0018 (the
“Solicitation” or “RFP”) for the OMDAC-SWACA contract, seeking operations and
*Pursuant to the protective order in this case, the Court initially filed this opinion under seal on
March 28, 2022, and directed the parties to propose redactions of confidential or proprietary
information by April 4, 2022. The parties have jointly submitted proposed redactions to the
Court. ECF No. 53. The Court adopts those redactions, in part, as reflected in this public version
of the opinion. Words or phrases that are redacted entirely have been replaced with [ * * * ], while
redactions via substitution are denoted simply in brackets (e.g., [Alpha]).
1This background section constitutes the Court’s findings of fact drawn from the administrative
record. Judgment on the administrative record, pursuant to RCFC 52.1, “is properly understood
as intending to provide for an expedited trial on the record” and requires the Court “to make
factual findings from the record evidence as if it were conducting a trial on the record.”
Bannum, Inc. v. United States, 404 F.3d 1346, 1354, 1356 (Fed. Cir. 2005). Citations to the
administrative record (ECF Nos. 26, 27, as amended by ECF No. 28) are denoted as “AR” followed
by the page number. Additional findings of fact are made throughout Section V.
2
maintenance services for communications and information systems supporting the 160th
Signal Brigade of the U.S. Army Central, its subordinate units, U.S. Central Command,
and the U.S. Army Regional Cyber Center Southwest Asia. 2 The services are for various
locations, including sites in Afghanistan, Iraq, Kuwait, Bahrain, the United Arab
Emirates, Jordan, and Qatar. 3
The Solicitation informed potential offerors that the Army intended to award a
single performance-based contract utilizing cost-plus-fixed-fee and cost-reimbursable
contract line items (“CLINs”), with a performance period of two sixty-day phase-in
periods, an eight-month base period, and four one-year option periods. AR 3756 (§ B.2);
AR 3974. The planned contract is estimated to be worth over one billion dollars. 4 Vectrus
is the incumbent contractor for the services sought in the RFP. AR 301 (Acquisition Plan).
Proposals were due on May 17, 2019. AR 3951 (§ L.4.1.A).
The Solicitation instructed offerors to submit proposals addressing four factors (in
descending order of importance): (1) mission support/technical approach (“MS/TA”);
(2) past performance; (3) cost; and (4) small business participation. AR 3113 (§ M.1.A).
The RFP similarly specified that this is a “best value” procurement and that “[a]ll non-cost
factors[,] when combined[,] are significantly more important than the cost factor.” AR
3113 (§ M.1.A). The Solicitation emphasized that “[o]fferors must clearly demonstrate
their ability to meet all requirements specified in [the] solicitation” and that “[f]ailure to
furnish full and complete information that demonstrates the [o]fferor’s ability to satisfy
the specified requirements may cause an offer to be considered unacceptable and
therefore will be ineligible for award.” AR 3114 (§ M.1.A). The Army cautioned offerors
that “the [o]fferor with the lowest overall estimated cost to the [g]overnment” is not
guaranteed to win the award, as the government may determine that “the non-cost
benefits offered by another [o]fferor [may] warrant paying a higher cost.” AR 3113
(§ M.1.A). 5
2AR 2784 (§ A), 3755–56 (§ B.1), 3768 (§§ C.1.0, C.2.0) (“Contractor shall provide . . . operation and
maintenance (O&M) support of Title X telecommunications equipment and information systems
that is U.S. Government owned or leased and under the operational purview of the Network
Enterprise (NETCOM), 160th Signal Brigade and its subordinate units in the Southwest Asia
(SWA) and Central Asia (CA) Theaters of operation.”).
3 AR 3768 (§ C.2.0).
4AR 306 (Acquisition Plan) (“The total estimated cost of [the] 160th Signal Brigade
OMDAC-SWACA procurement over the life of the contract, including all options . . . is
approximately $[ * * * ].”); AR 9168 (Initial Price/Cost Proposal Analysis) (“[T]he Independent
Government Estimate (IGE) used for evaluation purposes is $[ * * * ].”).
5 The Solicitation provided that the Army would utilize “a best value approach that permits a
trade-off assessment” and award the contract to the offeror “whose proposal conforms to the
solicitation requirements” and “presents the best value to the [g]overnment, with appropriate
3
The Solicitation repeatedly advised offerors that “the [g]overnment intends to
award a contract without discussions, but reserves the right to hold discussions, if
necessary,” and, thus, “cautioned” offerors “to examine [the] solicitation in its entirety
and to ensure that their proposal[s] contain[] all necessary information, provide[] all
required documentation, and [are] complete in all respects.” AR 3952 (§ L.5.1.A); see also
AR 3113 (§ M.1.A) (“[I]t is the [g]overnment’s intention to award without discussions.
Offerors are encouraged to present their best technical proposal and costs in their initial
proposal submissions. Should the Contracting Officer determine discussions are
necessary[,] the [g]overnment reserves the right to hold them.”); AR 3123 (§ M.5) (noting
government’s intent to award without discussions based upon initial offers).
Nevertheless, the RFP provided that, in the event the Army decided to engage in
discussions, “a competitive range will be determined and [o]fferors [will be] notified of
inclusion/exclusion,” but “[t]he competitive range may be limited for purposes of
efficiency.” AR 3113 (§ M.1.A).
1. Factor 1 – Mission Support/Technical Approach
Pursuant to the Solicitation, the MS/TA factor is the most important evaluation
factor in the best value calculus. AR 3113 (§ M.1.A). For this factor, the RFP required
offerors to propose their management and technical solution based on the specific
requirements listed in the Performance Work Statement (“PWS”) and supporting
documents, including technical exhibits and attachments. AR 3960–61 (§ L.8.2). The
MS/TA evaluation factor is divided into four subfactors: (1) management (“Subfactor 1”);
(2) technical (“Subfactor 2”); (3) property management (“Subfactor 3”); and (4) quality
control (“Subfactor 4”). AR 3113 (§ M.1.A), 3115 (§ M.3). Subfactor 1 is the most
important subfactor, while Subfactor 2 is more important than Subfactors 3 and 4. AR
3113 (§ M.1.A).
The RFP instructed Offerors that MS/TA proposals should be “sufficiently
specific, detailed, and complete as to demonstrate clearly and fully that the [o]fferor has
a thorough understanding and knowledge of the complexities inherent in the
performance of this requirement.” AR 3960 (§ L.8.2). Offerors were encouraged to
provide “a holistic approach versus addressing each PWS element.” AR 3961 (§ L.8.2).
Furthermore, offerors were warned that “[s]tatements that the [o]fferor understands, can,
or will perform the requirements of the PWS without supporting information or
considerations given to trade-offs between the cost and non-cost factors.” AR 3113 (§ M.1.A);
see also AR 311 (Acquisition Plan) (“This acquisition will utilize a best value approach that permits
trade-offs between cost and non-cost factors allowing the [g]overnment to accept other than the
highest technically rated, and/or the lowest priced proposal.”); AR 9169 (Initial Price/Cost
Proposal Analysis) (“Evaluation and award of this contract will be made in accordance with the
Best Value Continuum Tradeoff procedures described in Federal Acquisition Regulation (FAR)
15.101-1, Tradeoff Process for a Best Value Decision.”).
4
narratives are inadequate.” AR 3960 (§ L.8.2); see also AR 3953 (§ L.6.2) (warning offerors
that “[u]nless specifically stated,” offerors shall not “paraphrase the requirements of the
PWS, or use phrases such as ‘unsurpassed levels of reliability,’ or ‘standard techniques
will be employed’”); AR 3961 (§ L.8.2) (similar instructions); AR 3961 (§ L.8.2) (cautioning
that “[p]roposals that merely mimic the PWS may receive a less favorable evaluation
rating”); AR 4112 (Source Selection Plan) (“mere promises to comply with contractual
requirements are insufficient basis for a favorable rating; evidence is required in support
of any statements relating to promised performance”).
For Subfactors 1 and 2, the RFP provided that proposals would be adjectivally
rated as “Outstanding,” “Good,” “Acceptable,” “Marginal,” or “Unacceptable.” 6 AR
3116 (§ M.4.a). These ratings were to be based on the Army evaluation team’s
“consideration of risk” together with an offeror’s assessed “strengths, weaknesses,
significant weaknesses, uncertainties, and deficiencies.” AR 4113 (Source Selection Plan).
Subfactors 3 and 4, in contrast, were rated on a pass/fail basis. AR 3116 (§ M.3.1). For
each offeror’s overall MS/TA rating, the Army evaluators developed a consensus for the
adjectival rating utilizing the same scale as for Subfactors 1 and 2. AR 3116 (§ M.3.1).
To be considered for award, an offeror had to receive an overall MS/TA rating of
“Acceptable” or higher. AR 3113 (§ M.1.A). An offeror that received a rating of less than
“Acceptable” (i.e., “Marginal” or “Unacceptable”) on “Sub-factors 1 and 2,” or a failing
score on “Sub-factors 3 and 4,” would “not move forward in the source selection process,
and [would] not be considered for award.” AR 3113–14 (§ M.1.A) (emphasis added).
a. Subfactor 1 – Management
For Subfactor 1, the RFP directed offerors to propose an “effective management
approach/solution,” and “describe, in detail, [their] overall experience and
[m]anagement approach for this effort, understanding of the requirement, feasibility of
the approach, and completeness of the proposed solution.” AR 3116–17 (§ M.4), 3961
6An “Outstanding” rating is assigned to a proposal that “indicates an exceptional approach and
understanding of the requirements and contains multiple strengths, and risk of unsuccessful
performance is low.” AR 3116 (§ M.4.a). A “Good” rating is assigned to a proposal that “indicates
a thorough approach and understanding of the requirements and contains at least one strength,
and risk of unsuccessful performance is low to moderate.” AR 3116 (§ M.4.a). An “Acceptable”
rating is assigned to a proposal that “meets requirements and indicates an adequate approach
and understanding of the requirements, and risk of unsuccessful performance is no worse than
moderate.” AR 3116 (§ M.4.a). A “Marginal” rating is assigned to a proposal that “has not
demonstrated an adequate approach and understanding of the requirements, and/or risk of
unsuccessful performance is high.” AR 3116 (§ M.4.a). An “Unacceptable” rating is assigned to
a proposal that “does not meet requirements of the solicitation, and thus, contains one or more
deficiencies, and/or risk of unsuccessful performance is unacceptable,” and, as such, the
“[p]roposal is unawardable.” AR 3116 (§ M.4.a).
5
(§ L.8.2.A). This portion of the proposal had to contain: (1) the offeror’s methodologies
related to its corporate and program management organizational approach/solution
(§ L.8.2.A.1); (2) methodologies and solution to provide government “oversight and/or
tracking in . . . key areas,” including key personnel (§ L.8.2.A.2); (3) “managing multiple
locations across the theater with varying types and size sites” (§ L.8.2.A.3); (4) a contract
“phase-in” plan and procedures for in-processing new employees (§ L.8.2.A.4);
(5) “change management and continuous process and service improvement”
(§ L.8.2.A.5); (6) recruitment and retention, including a description of how full
performance will be maintained during employee absences (§ L.8.2.A.6); and (7) training
and certification program (§ L.8.2.A.7). 7 AR 3961–62.
In general, for Subfactor 1, the Army evaluated proposals to determine the
offeror’s “capability and experience to provide an effective management
approach/solution.” AR 3116 (§ M.4.b).
b. Subfactor 2 – Technical
With respect to Subfactor 2, the RFP instructed offerors to address three elements:
technical approach, staffing capability, and labor category descriptions. AR 3962–64
(§ L.8.2.B). First, the RFP directed offerors to “describe the proposed technical approach
for performing the technical requirements set forth in the PWS,” its attachments, and
technical exhibits, including:
• Capability to support the Layered Defense of the Army
network.
• Capability to support operating, maintaining[,] and
defending the following: United States Army Regional
Cyber Center-Southwest Asia (USARCC-SWA), Regional
Network Operations and Security Center (RNOSC),
Post/Camp/Station (P/C/S) Support, Communication
Support Services, Telephone, Inside Plant/Outside Plant,
and Cable, Transmission Services, Supporting the Theater
Logistics Support Facility (TLSF) functions.
• Capability to support the existing and emerging
communications systems and facilities.
AR 3962–63 (§ L.8.2.B.1). Offerors had to demonstrate that their technical approach
reflected “an understanding of the technical requirements to provide support for the
7Sections L.8.2.A.3, L.8.2.A.4, and L.8.2.A.6 of the RFP indicated that offerors who “thoroughly
demonstrate” an approach in those areas “may receive a more favorable rating” on Subfactor 1.
AR 3961–62.
6
identified services listed in [the PWS], inclusive of Attachments and Technical Exhibits.”
AR 3963 (§ L.8.2.B.1). Offerors also were directed to “discuss [their] ability to plan,
organize, implement, sustain, and adapt to changing environments in response to the
specifications set forth in the PWS.” AR 3963 (§ L.8.2.B.1).
Second, offerors were required to demonstrate their “[c]apability to [s]taff the
[e]ffort.” AR 3963 (§ L.8.2.B.2). In that regard, offerors were instructed to propose a
staffing solution based on the technical requirements in the PWS, including Technical
Exhibit 2 (Supported Locations). AR 3117 (§ M.4.c); see also AR 3823 (§ C.4.4) (“The
[c]ontractor shall provide staffing to accomplish the requirements of the PWS. Normal
hours of operation for each site are specified in [Technical Exhibit] 2.”); AR 3743 (RFP
Amendment 0003, Section A – RFP Questions/Answers) (“The [o]fferor shall propose
their solution based on the requirements in the PWS and throughout the solicitation
([Technical Exhibits], etc[.]) . . . .”).
In contrast to the performance requirements contained in Technical Exhibit 2, the
Army provided estimated staffing levels in RFP Attachment 8 and estimated workload data
in RFP Attachment 9 “to assist [o]fferors in understanding the magnitude of the
requirement.” AR 3969 (§ L.8.4.7). Based on the information the Army provided, offerors
had to “develop their own proposed number and type of workforce to perform those
functions” and provide a staffing matrix that addressed “overall staffing structure and
staffing levels by site based on [the offerors’] proposed technical [approach].” AR 3963
(§ L.8.2.B.2). Specifically, offerors were required to submit detailed information about
the type and level of support in each proposed labor category, including: (1) specific job
title; (2) part-time or full-time position; (3) total hours per week; (4) work days; and
(5) employee duty hours. AR 3963 (§ L.8.2.B.2). Offerors were warned against “merely
mimicking” the estimates in Attachments 8 and 9 and were advised instead to “propose
an innovative staffing solution based off workload data.” AR 3963 (§ L.8.2.B.2); see also
AR 3743 (RFP Amendment 0003, Section A – RFP Questions/Answers) (“[Attachment 8]
is the is the government estimate of personnel. [It is] not intended to be an [o]fferor’s
solution, rather examples of possible solutions.”). Additionally, offerors were to
“provide their recommended fill rate(s) at full performance start date, and describe their
plans to maintain these resources through the life of the contract.” AR 3963 (§ L.8.2.B.2).
Finally, the Solicitation provided that “proposal[s] [that] thoroughly demonstrate[]” a
capability to staff the effort “may receive a more favorable rating for [Subfactor 2],” and
“proposal[s] [that] merely mimic[] the estimate[s]” in Attachments 8 and 9 “may receive
a less favorable evaluation rating.” AR 3963 (§ L.8.2.B.2).
Third, the RFP required offerors to provide a chart that included descriptions of
the qualification requirements for each proposed labor category “that reflect the
qualification requirements in the PWS and its Technical Exhibits,” including
“qualifications, type of experience, education, training[,] and certifications.” AR 3964
7
(§ L.8.2.B.3). Specifically, offerors had to “provide the following information in the
[following] specified format for each proposed labor category”:
Job Security Experience Skill Set Training IT/IAT/IAM/Other
Title/Labor Clearance & Certification(s) Required Certification(s)
Category Education and Level
AR 3964 (§ L.8.2.B.3).
The Army evaluated an offeror’s Subfactor 2 proposal for compliance with the
“technical requirements” in the PWS, including whether the offeror “demonstrate[d] an
understanding of the requirement to provide support to the identified services listed in
[the PWS], inclusive of Appendices.” AR 3117 (§ M.4.c).
c. Subfactor 3 – Property Management
For the property management subfactor, the Solicitation instructed offerors to
“describe [an] adequate system of internal controls to manage (control, use, preserve,
protect, repair and maintain) [g]overnment property in its possession.” AR 3964
(§ L.8.2.C). The Army assessed this subfactor on a pass/fail basis. AR 3116 (§ M.3.1)
d. Subfactor 4 – Quality Control
Finally, the quality control subfactor required offerors to “describe, in detail, the
proposed quality of the services provided under this contract, and the manner in which
they are monitored.” AR 3964 (§ L.8.2.D). As with Subfactor 3, the Army assessed
Subfactor 4 on a pass/fail basis. AR 3116 (§ M.3.1).
2. Factor 2 – Past Performance
The past performance factor required the Army to “evaluate the [o]fferor’s record
of past and current performance to ascertain the probability of successfully performing
the required efforts of the PWS.” AR 3118 (§ M.4.3). Offerors had to provide a “[l]ist of
[p]ast [p]erformance [r]eferences,” and each reference listed was required to submit a
“Past Performance Questionnaire” (RFP Attachment 11) detailing the offeror’s past work.
AR 3965 (§ L.8.3.A.1). Additionally, the RFP instructed offerors to “submit a description
of their [g]overnment and/or [c]ommercial contracts . . . in performance during the past
three (3) years[,] which are relevant to the efforts required by this solicitation,” along with
“at least three (3), but no more than five (5), referenced contracts . . . that are relevant in
type and magnitude.” AR 3965 (§ L.8.3.A.2).
8
In assessing this factor, the Army conducted “a performance risk assessment based
on the relevancy and recency of the [o]fferor’s past performance, as well as that of its
proposed subcontractors and team members as it relates to the probability of successful
accomplishment of the required effort.” AR 3118 (§ M.4.3). Thus, for this factor, the
Army assigned offerors both a “relevancy” rating (“Very Relevant,” “Relevant,”
“Somewhat Relevant,” or “Not Relevant”) and a “confidence” rating (“Substantial
Confidence,” “Satisfactory Confidence,” “Neutral Confidence,” “Limited Confidence,”
or “No Confidence”). AR 3119–20 (§ M.4.3).
3. Factor 3 – Cost
The Army assessed the cost factor independently of all other factors. AR 8877
(SSEB Briefing Slides). The Solicitation indicated that an offeror’s overall proposed cost
“shall consist of the total of the cost identified in Schedule B of the solicitation for the
8-month base year and each of the four option years of the contract, to include the fee
amounts.” AR 3121 (§ M.4.4.b). Offerors had to submit a “cost workbook” with “cost
worksheets” and a cost narrative that “describes the methodology used in the
development of the cost factors and the total proposed cost.” AR 3967 (§ L.8.4).
Furthermore, offerors were instructed that the information submitted in the cost
workbook “shall fully support the development of each proposed Schedule B CLIN[]
price.” AR 3967 (§ L.8.4.1). Like the MS/TA factor, the cost factor instructions
discouraged offerors from mimicking the estimated staffing and workload data and
indicated that those that do so may receive “a less than favorable” rating. AR 3969
(§ L.8.4.7).
Offerors were further directed to submit two cost proposals: a “sanitized” version
and an “unsanitized” version.8 AR 3969 (§ L.8.4.5). The Solicitation indicated that the
sanitized version “will be provided to the [MS/TA] team to capture any [labor] hour
adjustments for cost realism analysis.” AR 3969 (§ L.8.4.5).
In accordance with FAR 15.404–1 (“Proposal analysis techniques”), the RFP
indicated that the Army would evaluate cost based on “an assessment of cost realism and
most probable cost . . . to determine the reasonableness of proposed costs in relation to
the [o]fferor’s specific technical approach.” AR 3121 (§ M.4.4.a). As is typically the case
in a procurement involving a cost-reimbursement contract, the Army was not limited to
assessing an offeror’s proposed costs, but rather the Army developed a most probable
cost (“MPC”) estimate the Army employed “in making the best value determination.”
8 An “unsanitized” cost proposal is a “complete cost proposal[] that include[s] all required
information.” AR 3969 (§ L.8.4.5). A “sanitized” cost proposal is one that “exclude[s] all company
proprietary or sensitive data, including cost and price information, but must include a breakdown
of the total labor hours and categories proposed by task and a breakout of the types of all
proposed [o]ther [d]irect [c]osts.” AR 3969 (§ L.8.4.5).
9
AR 3121 (§ M.4.4.b). The RFP further informed offerors that the evaluators “may also use
other techniques,” including “comparison of prices based on adequate price competition,
comparison to the [Independent Government Cost Estimate] in addition to, or in
combination with cost realism to determine price reasonableness.” AR 3121 (§ M.4.4.d).
4. Factor 4 – Small Business Participation
The small business participation factor required offerors to submit a proposed
“Small Business Participation Commitment Document.” AR 3970 (§ L.8.5). The Army
rated each offeror’s “commitment to use small businesses” as “Outstanding,” “Good,”
“Acceptable,” “Marginal,” or “Unacceptable” based on the “Small Business Participation
Rating Method.” AR 3122 (§ M.4.5).
B. Proposals, Evaluations, and Contract Award
The Army received timely proposals from five offerors: (1) IAP; (2) [Kilo];
(3) [Alpha]; (4) [Juliet]; and (5) Vectrus. AR 4152–4916 (IAP Proposal); AR 4917–5525
([Kilo] Proposal); AR 5526–6524 ([Alpha] Proposal); AR 6525–7891 ([Juliet] Proposal); AR
7892–8640 (Vectrus Proposal). Each offeror was assigned a phonetic code name to be
used during the evaluation process: “Alpha” for [ * * * ], “Delta” for IAP, “Foxtrot” for
Vectrus, “Juliet” for [ * * * ], and “Kilo” for [ * * * ]. AR 2074 (RFI Special Notice No. 8);
AR 2076–80 (Naming Convention Assignments).
1. The Army’s Evaluation of Proposals
In accordance with the Source Selection Plan, the Source Selection Team was
comprised of a Source Selection Evaluation Board (“SSEB”), a Source Selection Advisory
Council (“SSAC”), and a Source Selection Authority (“SSA”). AR 9311 (SSEB Initial
Report); see also AR 4107 (Source Selection Plan). The SSEB conducted the first review
and consisted of separate teams to evaluate each of the four evaluation factors the
Solicitation identified. AR 4109, 4117. The SSEB consolidated the findings of the
individual teams into a single report. AR 4109, 4117. The SSAC conducted the second
review. AR 4108–09, 4117. The SSAC “[r]eview[ed] the evaluation results of the SSEB to
ensure the evaluation process follow[ed] the evaluation criteria and the ratings [were]
appropriately and consistently applied” and “[c]onsolidate[d] the advice and
recommendations . . . into a written comparative analysis and recommendation” for the
SSA to consider. AR 4108–09; see also AR 9388 (SSAC Final Report). The SSA conducted
the final review, comparing “the proposals to determine the offer(s) that represent[ed]
the best value to the [g]overnment, taking into consideration the stated evaluation factors,
and their respective weightings as specified in the RFP.” AR 4118–19; see also AR 9399
(Source Selection Decision Document).
10
a. The MS/TA Evaluation
Members of the MS/TA evaluation team “independently evaluated each proposal
with respect to each of the subfactors within the [MS/TA] [f]actor,” AR 9402, and
assigned strengths, weaknesses, deficiencies, and uncertainties based on the following
definitions contained within the Source Selection Plan:
o Significant Strength: An aspect of an [o]fferor’s proposal
that has appreciable merit or appreciably exceeds
specified performance or capability requirements in a way
that will be appreciably advantageous to the
[g]overnment during contract performance.
o Strength: An aspect of an offeror[’s] proposal that has
merit or exceeds specified performance or capability
requirements in a way that will be advantageous to the
[g]overnment during contract performance.
o Weakness: A flaw in the proposal that increases the risk of
unsuccessful contract performance. See FAR 15.001.
o Significant Weakness: A flaw in the proposal that
appreciably increases the risk of unsuccessful contract
performance. See FAR 15.001.
o Deficiency: A material failure of a proposal to meet a
[g]overnment requirement or a combination of significant
weakness[es] in a proposal that increases the risk of
unsuccessful contract performance to an unacceptable
level. See FAR 15.001.
o Uncertainty: An aspect of a non-cost/price factor proposal
which the intent of the offer is unclear (e.g., more than one
way to interpret the offer or inconsistencies in the
proposal indicating that there may have been an error,
omission, or mistake). 9
AR 9072 (MS/TA Team Initial Report); see also AR 4115–16 (Source Selection Plan).
9 These definitions are consistent with the FAR’s definitions of “deficiency,” “weakness,” and
“significant weakness.” See FAR 15.001 (defining “[d]eficiency” as “a material failure of a
proposal to meet a [g]overnment requirement or a combination of significant weaknesses in a
proposal that increases the risk of unsuccessful contract performance to an unacceptable level,”
“[w]eakness” as “a flaw in the proposal that increases the risk of unsuccessful contract
performance,” and “significant weakness” as “a flaw that appreciably increases the risk of
unsuccessful contract performance”).
11
After each team member independently reviewed the proposal evaluations, the
MS/TA team “[m]embers then conducted a team discussion to establish consensus
ratings” for the subfactors, while a “property management subject matter expert
independently reviewed and evaluated” Subfactor 3. AR 9071. The MS/TA team
composed draft Evaluation Notices (“ENs”) to be used in discussions. AR 9104–29.
i. IAP’s MS/TA Evaluation
The MS/TA evaluation team, in its initial report, found that IAP’s “proposal did
not meet the requirements of the solicitation, and contained one or more deficiencies.”
AR 9073. The MS/TA team accordingly assigned IAP an overall rating of “Unacceptable”
for the MS/TA evaluation factor. AR 9073. In particular, for Subfactor 1, IAP received
one significant strength, one strength, and one weakness, resulting in a “Good” rating
overall.10 AR 9073–76. For Subfactor 2, IAP received one deficiency, one significant
weakness, one weakness, and one uncertainty, resulting in an overall “Unacceptable”
rating for that subfactor. AR 9073, 9076–79. In sum, the MS/TA evaluation team found
that IAP “has not demonstrated an adequate approach and understanding of the
requirements,” and, thus, “[t]he risk of unsuccessful performance is unacceptable and the
proposal is unawardable.” AR 9073.
The SSEB adopted the MS/TA team’s evaluation findings, including IAP’s
“Unacceptable” rating for the MS/TA factor, and found IAP ineligible for award. AR
9319 (SSEB Initial Report) (“The proposal from [IAP], whose overall rating for [the
MS/TA] factor was Unacceptable, did not meet the minimal Acceptable rating required
for contract award consideration.”). Specifically, as relevant to this protest, the SSEB
assigned IAP a deficiency on Subfactor 2 due to IAP’s failure to adequately address the
Outside Plant (“OSP”) support requirements:
[IAP]’s proposal does not address the Outside Plant (OSP)
technical requirement in PWS paragraph C.3.7.2, which
supports all Iraq P/C/S. [IAP] proposed centralizing the
Inside Plant (ISP)/OSP teams by region where travel and
movement are feasible (Volume 2, paragraph 2.2.3.5.3, page
Vol. 2 - 72). The lack of support for the OSP requirement
creates a capability gap to support the OSP infrastructure at
P/C/S level within Iraq. The lack of OSP support within Iraq
is a deficiency because the proposal failed to provide OSP
support in accordance with [Technical Exhibit 2], which
specifies current locations and systems to be supported.
10 The Court does not discuss Subfactor 1 ratings in detail, as IAP abandoned all claims concerning
it. See discussion infra Section V.F. Similarly, IAP’s amended complaint does not challenge the
Army’s assessment of Subfactors 3 or 4.
12
[IAP]’s approach increases the risk of unsuccessful contract
performance to an unacceptable level because —
1 [IAP] did not identify the regions where teams would
provide support.
2 Although [IAP] proposed that [Network
Administrators] would provide the OSP support,
[IAP] removed the [Network Administrators] at all
locations in Iraq (Volume 2, paragraph 2.2.11, page
Vol. 2 - 85).
AR 9348.
Additionally, the SSEB assigned IAP a significant weakness on Subfactor 2 because
IAP proposed to reduce the number of Network Administrators without adequately
demonstrating how this approach would meet the workload requirements. The SSEB
also assigned a weakness for IAP’s failing to adequately demonstrate how its “top-down
approach,” which eliminates many Systems Administrators, could meet the workload
requirements. AR 9347–48. An uncertainty was assigned on Subfactor 2 for
inconsistencies between IAP’s proposed labor hours in its sanitized cost workbook and
in its staffing matrix. AR 9348–49.
ii. Vectrus’s MS/TA Evaluation
In contrast to IAP, Vectrus received an overall “Outstanding” rating for the
MS/TA factor. AR 9093 (MS/TA Team Initial Report). Specifically, for Subfactor 1,
Vectrus received two significant strengths and two strengths, resulting in a rating of
“Outstanding.” AR 9093–96. As for Subfactor 2, Vectrus received one significant strength
and one uncertainty, resulting in a rating of “Good.” AR 9096–99.
The SSEB adopted the MS/TA team’s evaluation of Vectrus, finding that Vectrus’s
“proposal indicates an exceptional approach and understanding of the requirements,”
with “multiple strengths” and minimal risk of “unsuccessful performance.” AR 9355
(SSEB Initial Report). Specifically, for Subfactor 1, the SSEB found that Vectrus’s
experience in southwest Asia and its organizational approach are “appreciably
advantageous” to the government, and thus constitute a significant strength. AR 9355–
56. Furthermore, the SSEB found Vectrus’s phase-in approach to be a significant strength,
as it “exceed[s] the [g]overnment’s requirements and ha[s] appreciable merit, providing
support that will be appreciably advantageous to the [g]overnment.” AR 9356.
For Subfactor 2, the SSEB assigned Vectrus a significant strength for Vectrus’s
“technical experience” within southwest Asia, finding Vectrus “demonstrated an
in-depth knowledge of operating, maintaining, and defending large, complex series of
13
communications networks deployed to the battlefield,” which has “appreciable merit and
will be appreciably advantageous to the [g]overnment.” AR 9356–57. While Vectrus was
assigned an uncertainty for inconsistencies in the proposed labor hours in its staffing
matrix and in its sanitized cost workbook, these findings “did not affect” Vectrus’s
Subfactor 2 rating. AR 9357.
b. The Cost Evaluation
The cost team evaluated offerors’ respective cost proposals. AR 9165 (Initial
Price/Cost Proposal Analysis). Criteria used to evaluate the cost factor included: (1) total
proposed price; (2) direct labor rates; (3) overtime; (4) indirect labor rates; (5) other direct
costs; (6) Defense Base Act insurance; and (7) total evaluated price, including the probable
cost of performance. AR 9169–70.
In accordance with FAR 15.404-1, the cost team conducted cost realism analyses.
AR 9183. First, the cost team conducted a cost realism analysis on the offerors’ prices to
determine whether the proposed costs are “[r]ealistic for the work to be performed,”
“[r]eflect a clear understanding of the requirements,” and “[a]re consistent with the
various elements of the offeror’s [MS/TA] factor.” AR 9183. The cost team also
conducted an MPC analysis “to determine the realism and reasonableness of proposed
costs in relation to the offeror’s specific technical approach.” AR 9183.
As delineated in the Solicitation, the MS/TA evaluators utilized the offerors’
sanitized cost proposals to assess whether the proposed labor hours were realistic based
on the proposed technical approach. AR 9322 (SSEB Initial Report). Any inconsistencies
between the labor hours proposed in the offeror’s technical approach and the sanitized
workbook were identified and relayed to the cost team for its cost realism analysis. AR
9197–9220 (Cross-Team Exchanges Between Cost Team and MS/TA Team). Based on the
MS/TA team’s evaluation, the cost team conducted a cost realism analysis on the
proposed labor hours and adjusted them accordingly. AR 9184. The cost team adjusted
four offerors’ proposed labor hours upward (IAP, Vectrus, [Kilo], and [Juliet]), but
adjusted [Alpha]’s proposed labor hours downward. 11 AR 9184. Finally, the cost team
performed a cost realism analysis on the offerors’ labor rates and adjusted those rates
where appropriate. AR 9187–88, 9195.
11 The MS/TA team initially noted a discrepancy in Vectrus’s calculation of its hours —
specifically, that “there was a formula error” in Vectrus’s cost workbook, which resulted in
“significantly underestimat[ed]” labor hours. AR 9184. The cost team later determined, however,
that “[a]lthough the total hours were calculated incorrectly” — that is, in the spreadsheet — “the
manner in which [Vectrus] calculated its proposed costs was correct.” AR 9193; see also AR 9362–
63 (SSEB Initial Report). Thus, Vectrus’s labor hours were adjusted to account for what was
simply a spreadsheet formula error. AR 9193; AR 9362–63; see also discussion infra Section V.D.2.
14
The cost team determined that IAP had the lowest total proposed price of $[ * * * ]
and the lowest total evaluated price of $776,954,538. AR 9171, 9183. Vectrus had the
second highest total proposed price of $[ * * * ] and the second highest total evaluated
price of $1,027,490,421. AR 9171, 9183. The cost team noted, however, that although
IAP’s proposed price was the lowest, IAP’s “average per hour [was] the highest at $[ * * * ]
since its proposed hours are much lower as compared to the other offerors.” AR 9185,
9195.
2. Contract Award
The SSAC, upon review of the SSEB evaluation results, determined that Vectrus
provided “the best overall proposal for non-cost factors” and that Vectrus’s “ratings for
[MS/TA] [a]pproach provide the Best Value to the [g]overnment” and is “worthy of the
additional cost.” AR 9397 (SSAC Final Report). Accordingly, the SSAC recommended
awarding the contract to Vectrus. AR 9388.
As for IAP, the SSAC rated IAP as “Unacceptable” on the MS/TA factor and found
IAP’s proposal unawardable, just as the SSEB had. AR 9391. Additionally, the SSAC
concluded that “[i]t is unlikely” that IAP would be able to “rectif[y]” its Subfactor 2
problems via discussions, but the SSAC did not further explain the rationale or basis for
that conclusion. AR 9392.
The SSA, after consulting the SSEB and SSAC reports, compiled a Source Selection
Decision Document (“SSDD”) explaining the ratings given to the five offerors in each
evaluation category. AR 9399–9413 (SSDD). The following table summarizes the
offerors’ ratings on each factor:
Rating/Cost
Factor/Subfactor
[Alpha] IAP Vectrus [Juliet] [Kilo]
MS/TA Good Unacceptable Outstanding Good Acceptable
Subfactor 1 Good Good Outstanding Good Acceptable
Subfactor 2 Acceptable Unacceptable Good Acceptable Acceptable
Subfactor 3 Pass Pass Pass Pass Pass
Subfactor 4 Pass Pass Pass Pass Pass
Past Performance
Relevancy Very Relevant Very Relevant Very Relevant Very Relevant Very Relevant
Confidence Substantial Substantial Substantial Substantial Substantial
Cost
Total Proposed Price $[ * * * ] $[ * * * ] $[ * * * ] $[ * * * ] $[ * * * ]
Total Evaluated Price $[ * * * ] $776,954,538 $1,027,490,421 $[ * * * ] $[ * * * ]
Small Business Part. Good Good Acceptable Outstanding Acceptable
AR 9404.
15
Given IAP’s overall “Unacceptable” rating for the MS/TA factor, the SSA
concluded that IAP was ineligible for the contract award. AR 9405 (“[IAP] is not eligible
for award based on Unacceptable ratings in Subfactor 2, Technical Approach, and in the
[o]verall [MS/TA] factor rating.”). The other four offerors qualified for consideration.
AR 9404 (“[F]our offerors are eligible for award consideration, while one, [IAP], is not
eligible for award based on an Unacceptable rating within Mission Support/Technical
Approach Factor.”).
Of the remaining offerors, the SSA found that [Kilo] “does not offer the best value
for the government,” as it had “the lowest acceptable ratings” on the MS/TA and small
business participation factors and the highest total proposed price and total evaluated
price; thus, the SSA concluded that [Kilo] “does not provide any technical or non-price
benefit to the [g]overnment that would justify the significantly higher price over other
higher-rated, lower priced eligible proposals.” AR 9410. Furthermore, while Vectrus had
a higher total proposed price and total evaluated price than [Alpha] or [Juliet], the SSA
determined that “the underlying merits of [Vectrus’s] Outstanding rating for Mission
Support/Technical Approach, combined with substantially the same or better benefits
under Past Performance and Small Business, as compared to Offerors Alpha and Juliet,
provides the best overall proposal, non-cost factors considered.” AR 9412.
Based on the best value “trade-off assessment,” the SSA determined that “there is
one offeror that offers the best value to the government and discussions are not required.”
AR 9404. The SSA further explained:
Based on an integrated assessment of the proposal
evaluations and the drafted evaluation notices, I have
determined that discussions would not result in any
meaningful benefit to the [g]overnment, or any changes to the
apparent outcome of the source selection decision. Thus, in
accordance with the terms and conditions of the solicitation,
a contract will be awarded without discussions and a
competitive range will not be established.
AR 9409; see also AR 9420 (Price Reasonableness Memorandum) (explaining that
“discussions were not entered into” because “[t]he SSA believed that discussions would
not be meaningful, as the deficiencies, weaknesses, and uncertainties annotated in the
evaluations would not produce higher evaluations, or markedly different cost(s)”).
Ultimately, the SSA followed the SSAC’s recommendation and selected Vectrus
for award, determining that its proposal “represents the best value to the [g]overnment
based on the . . . trade-off analysis” with a “fair and reasonable” proposed cost/price. AR
9413. Accordingly, on December 23, 2020, the Army notified Vectrus of its contract
award. AR 9435–36 (Notice of Contract Award to Vectrus). That same day, the Army
16
transmitted letters to IAP, [Kilo], [Alpha], and [Juliet], informing them of the contract
award to Vectrus. AR 9423–34 (Notices to Unsuccessful Offerors).
On December 29, 2020, the Army officially awarded the OMDAC-SWACA
contract to Vectrus. AR 9438–9748 (Contract No. W91RUS-21-C-0001). On March 1, 2021,
Vectrus commenced performance. AR 12145.
II. PROCEDURAL HISTORY
On March 8, 2021, IAP filed a post-award protest with the Government
Accountability Office (“GAO”), raising numerous challenges to the Army’s evaluation of
IAP’s proposal and the Army’s decision to award the OMDAC-SWACA contract to
Vectrus. 12 AR 12132–43 (unredacted version of GAO’s decision); IAP Worldwide
Servs., Inc., B-419647, 2021 CPD ¶ 222, 2021 WL 2766441 (Comp. Gen. June 1, 2021) (public
version). Among other grounds, IAP alleged that the Army: (1) “unreasonably evaluated
IAP’s proposal,” and “erred by assessing its proposal with a deficiency and other
weaknesses”; (2) “fail[ed] to assign strengths for features of IAP’s proposal that allegedly
exceeded the [S]olicitation’s requirements”; (3) “engaged in an unreasonable and unequal
evaluation because [Vectrus]’s proposal similarly should have been evaluated as
deficient”; and (4) “erred in making award without conducting discussions.” AR 12136;
IAP Worldwide Servs., 2021 WL 2766441, at *5.
The GAO denied IAP’s protest, finding that the Army reasonably assessed IAP’s
proposal as technically unacceptable — and thus was unawardable — for failing to
conform to the Solicitation’s material terms and conditions concerning OSP support in
Iraq. AR 12142; IAP Worldwide Servs., 2021 WL 2766441, at *10. The GAO also concluded
that the Army’s decision to award without discussions was reasonable, notwithstanding
that “DFARS section 215.306(c) establishes an expectation that discussions will be
conducted in Department of Defense procurements valued over $100 million” because
“agencies retain the discretion not to conduct discussions based on the particular
circumstances of each procurement.” AR 12142; IAP Worldwide Servs., 2021 WL 2766441,
at *11. As for the remaining protest allegations, the GAO determined that IAP lacked
standing to challenge any other issues concerning the evaluation process. AR 12143; IAP
Worldwide Servs., 2021 WL 2766441, at *12.
On July 13, 2021, IAP filed its initial complaint against the United States in this
Court. ECF No. 1. The next day, Vectrus filed an unopposed motion to intervene, ECF
No. 10, which the Court granted, Minute Order (July 14, 2021). On August 4, 2021, the
government filed the administrative record, ECF Nos. 26, 27, and on August 5, 2021, this
Court granted the government’s motion to file missing portions of the administrative
12Following the filing of IAP’s GAO protest, the Army issued, on March 15, 2021, a “stop work”
order on the contract. AR 10776–78.
17
record, ECF No. 28. On August 27, 2021, with permission from the Court, IAP filed an
amended complaint. ECF No. 30 (“Am. Compl.”).
IAP’s amended complaint raises a bevy of claims that proved difficult to untangle.
In particular, IAP alleges that the Army: (1) abused its discretion in failing to conduct
discussions (Count I); (2) arbitrarily and unequally assigned IAP a deficiency on
Subfactor 2 (Count II.A); (3) abused its discretion in failing to engage in clarifications with
IAP concerning the deficiency (Count II.B); (4) arbitrarily assigned IAP a significant
weakness and a weakness on Subfactor 2 (Count II.C); (5) improperly determined that
Vectrus (as well as [Juliet] and [Kilo]) complied with the Solicitation’s Information
Technology Infrastructure Library Foundation certification requirement (Count III);
(6) arbitrarily assigned IAP a weakness on Subfactor 1 (Count IV); (7) arbitrarily and
unequally ignored “[m]aterial [o]missions” in Vectrus’s proposal (Count V.A);
(8) unequally assigned Vectrus a strength for its recruiting ability while not assigning a
comparable strength to IAP (Count V.B); (9) improperly overlooked Vectrus’s “material
misrepresentation” concerning the availability of one of its putative key personnel, and
unequally permitted Vectrus to revise its proposal (post-award) by replacing that
employee (Count VI); (10) conducted an arbitrary cost realism evaluation (Count VII);
(11) made an arbitrary best value trade-off decision (Count VIII); and (12) improperly and
unequally evaluated the proposals of [Alpha], [Juliet], and [Kilo] (Count IX). Am. Compl.
¶¶ 130–289.
On September 28, 2021, all three parties filed their respective motions for judgment
on the administrative record. See ECF No. 35 (“Def. MJAR”); ECF No. 36-1 (“Pl. MJAR”);
ECF No. 37 (“Intv. MJAR”). On October 25, 2021, the parties filed timely response briefs.
See ECF No. 40 (“Def. Resp.”); ECF No. 41 (“Pl. Resp.”); ECF No. 42 (“Intv. Resp.”). On
January 11, 2022, the Court held oral argument. See ECF No. 50 (“Tr.”).
III. JURISDICTION AND STANDING
The Tucker Act provides that an “interested party” may file an “action” in this
Court “objecting [1] to a solicitation by a Federal agency for bids or proposals for a
proposed contract or [2] to a proposed award or [3] the award of a contract or [4] any
alleged violation of statute or regulation in connection with a procurement or a proposed
procurement.” 28 U.S.C. § 1491(b)(1); see also Tolliver Grp., Inc. v. United States, 151 Fed.
Cl. 70, 84 & n.11 (2020); Aero Spray, Inc. v. United States, 156 Fed. Cl. 548, 559 & n.18 (2021)
(“Section 1491(b) actions are typically referred to as ‘bid protests.’”). 13
13Cf. Tolliver, 151 Fed. Cl. at 96–97 (“[A]lthough ‘[the Administrative Dispute Resolution Act
(“ADRA”)] covers primarily pre- and post-award bid protests,’ the Federal Circuit in RAMCOR
explicitly reversed this Court’s determination ‘that a [plaintiff] could only invoke § 1491(b)(1)
jurisdiction by including in its action an attack on the merits of the underlying contract award’ or
the solicitation.” (alteration in original) (quoting RAMCOR Servs. Grp., Inc. v. United States, 185
F.3d 1286, 1289 (Fed. Cir. 1999))).
18
Thus, to establish standing in a bid protest action, a plaintiff must demonstrate
that it is an “interested party.” Aero Spray, 156 Fed. Cl. at 559 (explaining that “the Tucker
Act, as amended by the Administrative Dispute Resolution Act of 1996, Pub. L. No.
104-320, 110 Stat. 3870[,] . . . defines not only this Court’s jurisdiction over what actions
may be brought against the government, but also who has standing to pursue them”). An
“interested party” is “[1] an actual or prospective bidder or offeror [2] whose direct
economic interest would be affected by the award of the contract or by failure to award
the contract.” Am. Fed’n of Gov’t Emps., AFL-CIO v. United States, 258 F.3d 1294, 1302 (Fed.
Cir. 2001) (quoting 31 U.S.C. § 3551(2)).
In this case, neither the government nor Vectrus challenges IAP’s standing or this
Court’s jurisdiction over IAP’s amended complaint. Nevertheless, the Court has an
independent duty to ascertain whether it possesses jurisdiction to decide IAP’s claims
and whether IAP has standing to pursue them. FW/PBS, Inc. v. City of Dallas, 493 U.S.
215, 231 (1990) (“The federal courts are under an independent obligation to examine their
own jurisdiction, and standing ‘is perhaps the most important of [the jurisdictional]
doctrines.’” (alteration in original) (quoting Allen v. Wright, 468 U.S. 737, 750 (1984))).
Having considered IAP’s allegations in its amended complaint, the Court
concludes that IAP qualifies as an interested party with respect to the procurement at
issue; IAP has sufficiently alleged facts that, if proven based on the administrative record,
demonstrate the requisite prejudice for the purposes of interested party status and
jurisdiction. See Am. Relocation Connections, L.L.C. v. United States, 789 F. App’x 221, 226
(Fed. Cir. 2019) (“For standing, we presume the party bringing a bid protest will succeed
on the merits of its claim and ask whether it has alleged an injury (or prejudice) caused
by the procuring agency’s actions. . . . But once we find that a party has standing, we must
turn to the merits of the party’s claim and determine whether it can prove it was
prejudiced based on the record evidence.”); see also James v. J2 Cloud Servs., LLC, 887 F.3d
1368, 1372 (Fed. Cir. 2018) (courts reviewing a dismissal “for want of standing . . . must
accept as true all material allegations of the complaint, and must construe the complaint
in favor of the complaining party” (quoting Warth v. Seldin, 422 U.S. 490, 501 (1975))); Blue
Origin Fed’n, LLC v. United States, 157 Fed. Cl. 74, 89 (2021) (“For the limited purpose of
determining whether it has standing, a protestor’s allegations are assumed to be true.”);
Yang Enterprises, Inc. v. United States, 156 Fed. Cl. 435, 444 (2021) (“The Court assumes
well-pled allegations of error to be true for purposes of the standing inquiry.”). 14
14The fact that a plaintiff may “successfully allege[] an injury (or prejudice) for standing
purposes” — because if the plaintiff “succeeded on the merits . . . it would have a ‘greater than
an insubstantial chance of securing the contract’” — does not excuse a plaintiff from proving
prejudice on the merits based on the administrative record. Am. Relocation Connections, 789 F.
App’x at 227 (quoting Info. Tech. & Applications Corp. v. United States, 316 F.3d 1312, 1319 (Fed. Cir.
2003)).
19
IV. STANDARD OF REVIEW
Pursuant to 28 U.S.C. § 1491(b)(4), this Court applies the standard of review
contained in the Administrative Procedure Act (APA) § 10(e), 5 U.S.C. § 706. Nat’l Gov’t
Servs., Inc. v. United States, 923 F.3d 977, 981 (Fed. Cir. 2019). In particular, in accordance
with the APA, this Court reviews an agency’s procurement decisions to determine
whether they are “arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law.” 5 U.S.C. § 706(2)(A).
In applying the APA standard of review, this Court affords considerable deference
to an agency’s procurement decisions. Advanced Data Concepts, Inc. v. United States, 216
F.3d 1054, 1058 (Fed. Cir. 2000) (describing the arbitrary and capricious standard of
review in bid protests as “highly deferential”). In particular, protests involving “the
minutiae of the procurement process in such matters as technical ratings . . . involve
discretionary determinations of procurement officials that a court will not second guess.”
E.W. Bliss Co. v. United States, 77 F.3d 445, 449 (Fed. Cir. 1996). Thus, in reviewing an
agency’s procurement decision, the Court shall merely “determine whether ‘the
contracting agency provided a coherent and reasonable explanation of its exercise of
discretion.’” Impresa Construzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324,
1332–33 (Fed. Cir. 2001) (quoting Latecoere Int’l, Inc. v. U.S. Dep’t of Navy, 19 F.3d 1342,
1356 (11th Cir. 1994)). Accordingly, the Court “will uphold a decision of less than ideal
clarity if the agency’s path may reasonably be discerned.” Bowman Transp., Inc. v.
Arkansas-Best Freight Sys., Inc., 419 U.S. 281, 286 (1974) (citing Colorado Interstate Gas Co. v.
Fed. Power Comm’n, 324 U.S. 581, 595 (1945)). On the other hand, the Court will not put
words in an agency’s mouth or invent supporting rationales the agency has not itself
articulated in the administrative record; post hoc explanations for agency decisions
ordinarily will be rejected.
A plaintiff succeeds on the merits where it demonstrates, based on a trial on the
administrative record, 15 that either: “(1) the [agency]’s decision lacked a rational basis;
or (2) the procurement procedure involved a violation of regulation or procedure.”
Impresa, 238 F.3d at 1332. In addition, “to prevail in its bid protest, [IAP] must ‘show a
significant, prejudicial error in the procurement process,’ meaning it must show that
there is a greater-than-insignificant chance” that the Army would have awarded the
contract to IAP “had [the Army] not committed the alleged errors.” Am. Relocation
Connections, 789 F. App’x at 228 (emphasis added) (quoting Alfa Laval Separation, Inc. v.
United States, 175 F.3d 1365, 1367 (Fed. Cir. 1999) (post-award protest)); see also Info. Tech.,
316 F.3d at 1319 (“the protestor’s chance of securing the award must not have been
insubstantial”); WaveLink, Inc. v. United States, 154 Fed. Cl. 245, 265 (2021) (plaintiff must
demonstrate that “but for the alleged error, there was a substantial chance that it would
receive an award—that it was within the zone of active consideration” (alteration in
15 See Bannum, 404 F.3d at 1354–56.
20
original) (quoting Allied Tech. Grp., Inc. v. United States, 649 F.3d 1320, 1326 (Fed. Cir.
2011))).
V. DISCUSSION
With the exception of Count I, challenging the Army’s decision not to make a
competitive range determination and conduct discussions, the Court rejects IAP’s claims
either as unsupported by the administrative record or as a matter of law.
A. The Army’s Evaluation of IAP’s Proposal Under the MS/TA Factor Was
Consistent with the Solicitation and Reasonable (Count II.A)
IAP alleges that the Army’s assignment of a deficiency to IAP on Subfactor 2 for
inadequate OSP staffing in Iraq — which contributed to IAP’s “Unacceptable” rating for
the MS/TA factor — was arbitrary, capricious, or otherwise contrary to law. Am. Compl.
¶¶ 159–184; Pl. MJAR at 12–14, 26–37; Pl. Resp. at 14–24. Specifically, IAP argues: (1) the
Army unfairly faulted IAP for following the RFP’s instructions not to “mimic” the
staffing requirements set forth in Technical Exhibit 2; and (2) IAP’s proposed approach
to OSP support met the PWS requirements. 16 Am. Compl. ¶¶ 162, 165–177; Pl. MJAR at
12–14, 26–30; Pl. Resp. at 14–19.
Contrary to IAP’s assertions, the Army’s evaluation of IAP’s proposal was rational
and the assignment of the deficiency was well within the Army’s discretion. That is
particularly true given that IAP’s proposal failed to conform to the Solicitation’s material
OSP staffing requirements for Iraq.
16IAP presents three additional arguments in support of this count. First, IAP argues that the
deficiency finding is evidence of unequal treatment. Am. Compl. ¶¶ 178–184; Pl. MJAR at 30–37;
Pl. Resp. at 19–24. This argument is addressed infra, Section V.E. Second, IAP contends that
“[t]he SSEB evaluation makes no reference to OSP Technicians, ISP Technicians, or Service Desk
Support Specialists” in its report. Pl. MJAR at 29; Pl. Resp. at 16. The Court need not address this
argument, as the Army is not required to “explicitly spell out [its] rationale or reasoning in perfect
detail or clarity as long as [the Court] can discern the path the [Army] followed.” Swagway, LLC v.
Int’l Trade Comm’n, 934 F.3d 1332, 1342 (Fed. Cir. 2019) (citing Bowman Transp., 419 U.S. at 286).
Third, IAP alleges that the Army “materially narrowed” its concerns with IAP’s proposal and
“recast[] SSEB’s findings” at the GAO to suggest that IAP’s deficiency was solely attributable to
IAP’s approach to “unplanned” OSP work, thus “[t]acitly conceding that [the] SSEB’s findings
were erroneous.” Pl. MJAR at 5–6, 30 (citing AR 11963 (Army GAO Request for Partial Summary
Dismissal)); Pl. Resp. at 14 n.13. Even if this Court were inclined to read the Army’s GAO
argument in the same manner as IAP, there is no reason for this Court to consider such
statements, as the contemporaneous record provides a reasonable and coherent account of the
Army’s decision. See Impresa, 238 F.3d at 1332–33.
21
1. The OSP Support Requirements Are Material Terms of the Solicitation
FAR 15.305(a) provides that “[a]n agency shall evaluate competitive proposals and
then assess their relative qualities solely on the factors and subfactors specified in the
solicitation.” In that regard, “a proposal that fails to conform to the material terms and
conditions of the solicitation should be considered unacceptable and a contract award
based on such an unacceptable proposal violates the procurement statutes and
regulations.” E.W. Bliss, 77 F.3d at 448; see also Centech Grp., Inc. v. United States, 554 F.3d
1029, 1037 (Fed. Cir. 2009) (“To be acceptable, a proposal must represent an offer to
provide the exact thing called for in the request for proposals, so that acceptance of the
proposal will bind the contractor in accordance with the material terms and conditions
of the request for proposals.”). In other words, “an agency cannot award a contract to an
offeror ‘that did not meet the mandatory requirements of the solicitation.’”
DigiFlight, Inc. v. United States, 150 Fed. Cl. 650, 657 (2020) (quoting Ralph C. Nash & John
Cibinic, Mandatory Solicitation Requirements: Can They Be Ignored?, 15 Nash & Cibinic Rep.
¶ 40 (2001)); see also Mangi Env’t Grp., Inc. v. United States, 47 Fed. Cl. 10, 17 (2000)
(“[W]here a proposal is not compliant with the mandatory technical requirements of the
solicitation, the proposal is unacceptable for award.”).
A solicitation term is “material” where: (1) it is express in the solicitation; and (2) it
serves a “substantive purpose.” ManTech Advanced Sys. Int’l, Inc. v. United States, 141 Fed.
Cl. 493, 506 (2019) (citing Bus. Integra, Inc. v. United States, 116 Fed. Cl. 328, 333–36 (2014)).
A solicitation term serves a “substantive purpose” if it “is something important to the
government’s evaluation of the offer, is binding on the offeror, or has a more than
negligible impact on the price, quantity, or quality of the bid.” Id. Thus, “[a] proposal’s
failure to satisfy a material, or mandatory minimum, solicitation requirement is a material
error.” DigiFlight, 150 Fed. Cl. at 657.
To determine whether a solicitation requirement is “material,” the Court must
examine terms of the solicitation. See DigiFlight, 150 Fed. Cl. at 657.
The PWS included a comprehensive outline of an offeror’s technical
responsibilities with respect to OSP. AR 3797 (§ C.3.7.2). Specifically, it provided that
the contractor would be responsible for “maintain[ing], repair[ing], and test[ing]
customer equipment” and “maintaining the OSP infrastructure,” including
“communications pathways, maintenance hole cabling and hand holes, duct systems,
copper and fiber optic cabling, main distribution frame, terminations of [c]opper and
fiber optic cables, vaults, multiplexing equipment, cross connects system design and
integration of systems to the OSP infrastructure and QA/QC of the OSP system.” AR
3797–98 (§ C.3.7.2.1). Physical maintenance requirements associated with the OSP
infrastructure included: (1) “install[ing], de-install[ing], maintain[ing], repair[ing] and
test[ing] multiple-conductor aerial, underground, and buried multi-purpose
communications cable to include coaxial, fiber optics, and copper/conventional cable”;
22
(2) maintaining “telephone poles, manholes, handholds, outside terminals, pedestals,
splice points, and bonding and grounding of termination points”; and (3) “fabricat[ing]
fiber optic, metallic, or coaxial cables,” among other things. AR 3798 (§ C.3.7.2.2). To
accomplish these tasks, “[OSP] cable technicians shall operate digger derricks, bucket
trucks, personnel lifts, backhoes, and trenching equipment to provide demand
maintenance support.” AR 3798 (§ C.3.7.2.2). Additional OSP responsibilities included
conducting site surveys and obtaining and coordinating required OSP-related clearances
and permits. AR 3798 (§§ C.3.7.2.3, C.3.7.2.4, C.3.7.2.5).
The RFP’s Technical Exhibit 2 (Supported Locations) (“TE2”) identified the
mandatory minimum PWS coverage requirements by location, including required OSP
support. AR 3919–45 (TE2). Specifically, TE2 provided that the Army requires OSP
support ten hours per day, six days per week (Monday through Saturday, from 8:00 a.m.
to 6:00 p.m.) at the five Iraq post/camp/site (“P/C/S”) locations at issue here. AR 3939
(TE2) (“10/6=Requirement must be manned 10 hours per day, 6 days a week. M-SA
0800-1800”). While TE2 contained mandatory requirements, the Army estimated that it
would need twelve (12) full-time equivalents (“FTEs”) to provide the necessary OSP
services in Iraq. AR 3980 (Attachment 8 – Staffing Estimate). To be clear, and as discussed
in more detail below, while offerors were not required to propose the precise FTEs
specified in Attachment 8, proposals did need to satisfy or otherwise explain how offerors
would satisfy the minimum conditions specified in TE2.
Accordingly, the Solicitation clearly identified the OSP requirement, satisfying the
first prong of this Court’s test for materiality. See ManTech, 141 Fed. Cl. at 506.
As for the second prong, the Court finds that the OSP staffing requirements served
a “substantive purpose,” as it “is something important to the government’s evaluation of
the offer.” Id. In this regard, the Solicitation specifically provides that “[a]ll items
identified in Section L, paragraph L.8.2.B will be used to evaluat[e]” Subfactor 2,
including “[t]he [o]fferor’s approach to staff the effort (Section L, paragraph L.8.2.B.2).”
AR 3117 (§ M.4.c). In turn, § L.8.2.B.2 explicitly identifies OSP support as one of the RFP’s
staffing requirements. AR 3962–63 (“The [o]fferor shall describe the proposed technical
approach for performing the technical requirements set forth in the PWS, and are not
limited to: . . . Capability to support operating, maintaining[,] and defending . . . Inside
Plant/Outside Plant . . . .” (emphasis added)).
Because the Solicitation (1) clearly identifies the requirement, and (2) the
requirement serves a “substantive purpose,” the Court finds that the OSP staffing
requirements are material. See ManTech, 141 Fed. Cl. at 506.
23
2. The Army’s Assignment of a Deficiency to IAP Was Consistent with the
Solicitation and the Minimum Requirements of Technical Exhibit 2
IAP first argues that the Army’s assignment of a deficiency to IAP for its OSP
approach “contradict[s]” the RFP’s terms. Pl. MJAR at 26; Am. Compl. ¶¶ 103, 165–166.
Specifically, IAP contends that the RFP instructed offerors to provide an “innovative”
staffing approach and “expressly directed offerors not to mimic the staffing in TE2.” Am.
Compl. ¶ 103 (“The [Army] appears to have assigned this deficiency because IAP
purportedly did not staff ‘in accordance with TE2,’ but the Solicitation expressly directed
offerors not to mimic the staffing in TE2.”). 17 Thus, according to IAP, the Army may not
penalize IAP and assign a deficiency where IAP was simply following the RFP’s
instructions. Am. Compl. ¶ 166 (“Following the Solicitation instructions cannot
reasonably be grounds for a deficiency.”); Pl. MJAR at 29 (“The Army could not, as it did
here, warn against mimicking the staffing estimates and then assign IAP a deficiency
because it did just that.”).
This argument fails for two reasons. First, while IAP is correct that the Army
encouraged offerors to provide an “innovative” solution, 18 the RFP did not permit such
innovation at the expense of meeting basic, material PWS requirements. Second, IAP is
incorrect in its assertion that the RFP warned offerors not to “mimic” the figures in TE2.
On the contrary, as discussed above, the data listed in TE2 are minimum requirements that
must be met by an offeror. AR 3919–45 (TE2); see also AR 3823 (§ C.4.4) (“The [c]ontractor
shall provide staffing to accomplish the requirements of the PWS. Normal hours of
operation for each site are specified in TE 2.” (emphasis added)); AR 3824 (§ C.4.6) (“The
[c]ontractor shall provide support in Southwest and Central Asia locations as specified in
the TE2.” (emphasis added)); AR 3757 (§ B.5.e) (“The proposed labor categories and rates
shall represent the appropriate loadings for specific site and countries as associated with
the requirements presented in [the PWS] and the TE2.”). In contrast, the RFP did expressly
warn offerors not to “merely mimic[]” the workload estimates in Attachments 8 and 9. AR
3963 (§ L.8.2.B.2) (“Government Estimated Staffing and Workload Data is provided in
Section J, Attachment 8 and Attachment 9. The Government Estimated Manning is an
estimated full-performance manning; [o]fferors should refrain [from] merely mimicking
the estimated manning[] and propose an innovative staffing solution based off workload
data.”); see also AR 3718 (RFP Amendment 0003, Section A – RFP Questions/Answers)
(“[Attachment 8] and [Attachment 9] represent different estimates from the government
17See also Pl. MJAR at 29 (“[T]he SSEB . . . faulted IAP for proposing centralized teams to perform
OSP services instead of mimicking the staffing estimates set forth in Technical Exhibit 2
(“TE2”). . . . The RFP repeatedly instructs offerors to ‘propose an innovative staffing solution’ and
to ‘refrain merely [from] mimicking the estimated manning.’” (alteration in original) (citation
omitted)).
18See AR 3963 (§ L.8.2.B.2) (advising offerors to “propose an innovative staffing solution based
off workload data”).
24
produced at different times. They are not intended to be an [o]fferor’s solution, rather
examples of possible solutions.”).
Thus, the Army in the RFP expressly distinguished between, on the one hand,
Attachments 8 and 9 — which merely contained estimates for offerors’ consideration —
and, on the other hand, the technical exhibits, which contained minimum requirements.
For example, in responding to an offeror’s question, the Army articulated that “[t]he
[o]fferor shall propose [its] solution based on the requirements in the PWS and throughout the
solicitation (TEs, etc[.]), not as a regurgitation of either [Attachment 8] or [Attachment 9].” AR
3718 (emphasis added); see also AR 3740 (“Question: The number of FTEs in [Attachment
8] and the locations of the FTEs are substantially different than the number of slots per
location as identified in the [Attachment 9]. Will the [government] confirm it prefers use
of the TE2? . . . Answer[:] [Attachment 8] is the [g]overnment estimate for personnel.
[Attachment 9] provides 1yr [sic] of Workload Data, and [t]he TE-2 outlines the
requirement, PWS para [sic], Security clearance level, IT/IAT/IAM level, locations and
workweek requirement.” (emphasis added)).
In sum, IAP improperly conflates the Solicitation’s warning to offerors not to
mimic the staffing estimates and workload data contained in Attachments 8 and 9 with
the requirements in TE2 — all in an attempt to persuade the Court that IAP’s proposal
was “innovative” and complied with the Solicitation’s requirements, when in fact it did
not. The TE2 requirements were not optional; offerors were required to meet the
mandatory staffing requirements listed in TE2 for each location. The failure to do so
constitutes a material error and grounds for disqualification — or at the very least a
deficiency, as the Army assigned here.
3. The Army Reasonably Determined that IAP’s Proposal Failed to Meet
Material OSP Support Requirements
IAP further argues that the Army “misread[]” its proposal and maintains that its
proposal meets the PWS requirements and offers sufficient OSP support in Iraq. Am.
Compl. ¶¶ 102, 104 (arguing that the Army “ignore[d]” IAP’s “proven” solution to
provide OSP support in “all contract locations”); Pl. MJAR at 26–28; Pl. Resp. at 14–18.
The Court finds this argument unpersuasive. IAP mischaracterizes its proposal; it is
readily apparent that IAP’s proposed OSP staffing approach fails on a basic level to meet
the RFP’s requirements for OSP support in Iraq.
The relevant details of IAP’s approach to OSP staffing in Iraq is contained in IAP’s
narrative and its staffing matrix. AR 4359–61, 4381–82 (IAP Proposal, Volume 2 – Mission
Support/Technical Approach).
25
Specifically, IAP described its OSP approach as follows:
2.2.3.5 Capability to Support OMD of Inside Plant / Outside
Plant / Cabling
....
2.2.3.5.3 Operate. [IAP] centralizes the teams [ * * * ] where
travel and movement make that practical. [ * * * ] or we
combined ISP personnel with switch operators where applicable.
[ * * * ]. [ * * * ] we use a Network Administrator to assist with work
alongside the OSP Teammate if maintenance or repairs require a
two-person team for safety. . . .
. . . [ * * * ]. Our plan is to centralize the teams, and deploy them on
schedule (for inspections), or as needed based on requirements
[ * * * ]. . . .
AR 4359–61 (emphasis added).
While this narrative indicates that IAP proposed “centralize[d] . . . teams [ * * * ]”
to provide ISP and OSP support, IAP provided no additional details to explain or support
this approach. IAP does not explain the composition of these teams (i.e., who they are),
where specifically these teams will provide support (i.e., where they are located), or how
these centralized teams or consolidated positions will timely meet the required on-site
OSP support detailed in TE2. See AR 3963 (§ L.8.2.B.1) (“The [o]fferor’s approach shall
demonstrate an understanding of the technical requirements to provide support for the identified
services listed in [the PWS] . . . and Technical Exhibits.” (emphasis added)). 19
IAP’s staffing matrix further fails to adequately supplement IAP’s narrative to
provide the necessary details regarding how its “centralize[d]” teams would meet the
19 IAP further argues that the SSEB erroneously faulted IAP for “not identify[ing] the regions
where [the centralized] teams would provide [OSP] support” in Iraq. Pl. MJAR at 27 (first
alteration in original) (quoting AR 9348 (SSEB Initial Report)); Am. Compl. ¶ 167; Pl. Resp. at 14–
15. Specifically, IAP argues that “contrary to the evaluation,” IAP sufficiently proposed OSP
support “in all contract regions,” including Iraq. Pl. MJAR at 13–14. In support of this assertion,
IAP points to scattered statements in various other sections in its proposal as evidence that it meets
the OSP services requirements. See, e.g., AR 4357 (“[ * * * ].”); AR 4372 (proposing “[ * * * ],” which
“[ * * * ]”). The Court finds such scattered and generalized statements insufficient to rebut the
Army’s central findings. See Red River Holdings, LLC v. United States, 87 Fed. Cl. 768, 787 (2009)
(“As a corollary of the principle that proposals must meet the requirements of a solicitation,
blanket statements that an offeror will meet or exceed them have been found to be noncompliant.”
(citing Int’l Outsourcing Servs., L.L.C. v. United States, 69 Fed. Cl. 40, 49 (2005))). If anything, these
statements constitute further evidence of IAP’s inadequate approach.
26
required OSP support at each Iraq location. 20 If anything, IAP’s staffing matrix reveals
significant “capability gap[s]” in its OSP staffing approach. See AR 9348 (SSEB Initial
Report) (explaining that IAP’s failure to propose sufficient OSP support “creates a
capability gap to support the OSP infrastructure at P/C/S level within Iraq”). For
example, in its staffing matrix, IAP proposed to “consolidate” certain roles. AR 4372
(proposing “[ * * * ] consolidation of ISP/OSP teams for most tasks”); see also Tr. at 127:11–
13 (“[IAP’S COUNSEL]: . . . If you flip through the staffing plan, the whole proposal is
premised on consolidation of labor categories.”). In other words, rather than propose
dedicated, locally-based personnel for each labor category in its staffing matrix, IAP
combined various positions; that is, the duties of certain labor categories were assigned to
FTEs of another labor category.
In IAP’s staffing matrix,21 IAP listed proposed labor categories, with
corresponding columns indicating the location, number of FTEs per contract period, shift
coverage, hours per week, work days, and duty hours. AR 4374–94. In addition to these
required columns, IAP included two additional columns — “Job Code” and “Job Code
Assignment Override.” AR 4374–94. This “Job Code Assignment Override” column
indicates which alternate labor category will assume the duties of the original labor
category.
20 To be clear, the Army has no objection per se to an offeror’s proposing centralized OSP support
[ * * * ]. Indeed, the Army implicitly indicated that such an approach is permissible, so long as it
complies with the PWS and TE2 requirements. For instance, one of the questions submitted to the
Army concerning the draft RFP asked: “When a location has a hours/days metric associated to a
PWS element, is it required that the personnel providing this task coverage are physically located
at the individual locations listed or is it acceptable for some of this support to be provided via
reach back to RNOSC/SWACC?” AR 2340 (Draft RFP Questions & Answers). The Army
responded, “[n]o, as long as services are provided [in accordance with] the PWS and TE[s].” AR
2340. In a follow-up question, a prospective offeror asked: “The answer implies that a regionalized
support approach is acceptable. . . . Are there any constraints to providing operations support from
locations beyond the RNOSC/SWACC, that is, from any site within the same geographical
location or country? Are there any PWS areas where this approach is not acceptable?” AR 3736–
37 (emphasis added). In response, the Army answered, again, “[n]o, as long as services are
provided [in accordance with] the PWS and TE[s].” AR 3737 (RFP Amendment 0003).
21The Court would be remiss if it did not recognize Vectrus’s exemplary presentation in its MJAR
of the RFP’s instructions concerning TE2, OSP support, and the staffing matrix. Vectrus’s
briefings explain in clear, simple terms the nuances of the OSP staffing requirements and
presented a clear breakdown of IAP’s staffing matrix, revealing its deficiencies. See, e.g., Intv.
MJAR at 4–9. In that regard, the Court’s discussion here generally tracks that presented in
Vectrus’s briefs and adapts two of its tables.
27
For example, IAP’s staffing matrix listed the following for the Network
Administrator position at the Al Asad location in Iraq:
Labor Category FTE 8M (P3) FTE OY1 (P4) Job Code Job Code Assignment Override
Network [***] 0 C.3.4.3.1IRAL-106-303 C.3.2.3.1IRRN-106-333 [Network
Administrator Engineer Elite, RNOSC]
AR 4381. Thus, for the Al Asad location, IAP proposed no on-site Network Administrator
after the base period; rather, the duties of the Network Administrator in Al Asad would
be assumed by the Network Engineer Elite at the RNOSC location in Iraq.
For OSP support, IAP’s staffing matrix included the “Outside Plant (OSP)
Technician” labor category at various TE2 locations in southwest Asia and central Asia.
AR 4374–85, 4387, 4393–94. For some locations, including Iraq, IAP proposed zero FTEs
for the OSP Technician labor category. See, e.g., AR 4375 (proposing zero FTEs for OSP
Technician in [ * * * ]). For all these locations except Iraq, the staffing matrix indicated that
the duties of the OSP Technician would be assumed by an ISP Technician at the same
location. See, e.g., AR 4385 (indicating that the duties of the OSP Technician in [ * * * ]
would be assumed by the ISP Technician in the same location). For the locations in Iraq,
IAP’s staffing matrix indicated that the Service Desk Support Specialist (“SDSS”) labor
category would assume the duties of the OSP Technicians:
Labor TE2 FTE FTE FTE FTE FTE FTE FTE Job Code
Category Site/Location 2M 2M 8M OY1 OY2 OY3 OY4 Assignment
(P1) (P2) (P3) (P4) (P5) (P6) (P7) Override
Outside Plant AL ASAD 0 0 0 0 0 0 0 C.3.4.3.4IRAL-247-
(OSP) 1239 [Service Desk
Technician Support Specialist,
AL ASAD]
Outside Plant BDSC 0 0 0 0 0 0 0 C.3.4.3.4IRBD-247-
(OSP) 1224 [Service Desk
Technician Support Specialist,
BDSC]
Outside Plant ERBIL 0 0 0 0 0 0 0 C.3.4.3.4IRER-247-
(OSP) 1233 [Service Desk
Technician Support Specialist,
ERBIL]
Outside Plant FOB UNION 0 0 0 0 0 0 0 C.3.4.3.4IRFO-247-
(OSP) 3 1230 [Service Desk
Technician Support Specialist,
FOB UNION 3]
28
Outside Plant TAJI 0 0 0 0 0 0 0 C.3.4.3.4IRTA-247-
(OSP) 1236 [Service Desk
Technician Support Specialist,
TAJI]
AR 4381–83.
While IAP argues that “[a]ssigning personnel a new labor category does not equate
to a lack of support,” Pl. MJAR at 29, IAP’s proposed reassignment of the OSP support
duties to the SDSS labor category (as indicated in the “Job Code Assignment Override”
column, above) is problematic for several reasons.
First, IAP’s own description of the SDSS labor category did not include any of the
necessary qualifications or skills required for OSP support. Compare AR 4568–69 (IAP’s
labor category description of SDSS in Al Asad, Iraq), with AR 4505–06 (IAP’s labor
category description of OSP Technician in Al Asad, Iraq). While the ISP Technician labor
category differs from the OSP Technician labor category, such differences are
(presumably) marginal and it is conceivable that an ISP Technician has the qualifications
or skills to execute the duties of an OSP Technician. In contrast, the skillsets of an SDSS
and an OSP Technician differ significantly. As succinctly explained by Vectrus in its
MJAR, “the job (and qualifications required) of an OSP Technician on [the
OMDAC-SWACA] contract is comparable to that of a lineworker for a
telecommunications company,” and “is a very physically demanding position, which
requires specific training and education.” Intv. MJAR at 10. On the other hand, “the job
(and qualifications required) of a SSDS on this contract is a desk-job comparable to that
of a customer service/help desk representative for a telecommunications company,” and
entails “entirely different training[] and does not require the same physical ability to
perform.” Id. at 10–11. Thus, assigning the duties of an OSP Technician to an SDSS, a
labor category with inadequate training and qualifications to carry out the OSP support
duties, is insufficient and does not meet the PWS requirements for OSP support. See AR
9112–15 (MS/TA Draft ENs).
Second, IAP failed to demonstrate how these “combined” SDSS positions in Iraq
meet the minimum coverage requirements prescribed in TE2. As noted above, TE2
indicates that the Army requires OSP support in Iraq from Monday through Saturday
from 8:00 a.m. to 6:00 p.m. AR 3939 (TE2). On the other hand, the Army requires Help
Desk support (what IAP labels as SDSS) twenty-four hours per day, seven days per week
in Iraq. AR 3939. IAP’s proposal may be creative, and it may result in cost savings, but
it does not comply with the mandatory requirements. In particular, IAP proposed to
divide the SDSS labor category in Iraq into three shifts, consisting of one [ * * * ] shift on
Saturday through Wednesday from [ * * * ], a second [ * * * ] shift on [ * * * ] from [ * * * ],
and a third [ * * * ] shift on [ * * * ] from [ * * * ]. AR 4381–83 (IAP Staffing Matrix). IAP
further proposed that the OSP Technician duties in Iraq would be assumed by SDSS staff
29
working the first shift — Saturday through Wednesday from [ * * * ]. AR 4381–83. This
approach is in direct contravention of the express coverage requirements specified in TE2
for OSP support in Iraq — a requirement of six days a week, Monday through Saturday.
AR 3939 (TE2). This Court cannot square IAP’s repeated assertions that the Army
“misread” its proposal with the plain facts. The RFP quite clearly specified in TE2 the
days of the week for which the Army required OSP support in Iraq. And, the RFP
unambiguously required that “[o]fferors must clearly demonstrate their ability to meet
all requirements specified in [the] solicitation.” AR 3114 (§ M.1.A). IAP failed to meet
that instruction. 22
Finally, IAP asserts that the SSEB erroneously reported that IAP proposed to
remove all Network Administrators from Iraq. Am. Compl. ¶¶ 175–176; Pl. MJAR at 28–
29; Pl. Resp. at 16, 18. Specifically, IAP contends that the following excerpt from the
SSEB’s deficiency finding is false: “[IAP]’s approach increases the risk of unsuccessful
contract performance to an unacceptable level because — . . . [a]lthough [IAP] proposed
that [Network Administrators] would provide the OSP support, [IAP] removed the
[Network Administrators] at all locations in Iraq (Volume 2, paragraph 2.2.11, page Vol. 2
- 85).” AR 9348 (SSEB Initial Report).
22 This Court also takes issue with IAP’s presentation at oral argument that, in the Court’s view,
mischaracterized IAP’s proposal. In particular, IAP presented a demonstrative PowerPoint slide
deck depicting a putative sample page of IAP’s staffing matrix for Iraq. IAP’s demonstrative,
however, omitted columns from the actual staffing matrix that detailed proposed hours per week,
work days, and duty hours, but included the column for shift coverage. The effect was to lead
the Court to believe that coverage requirements specified in TE2 would be met, when in actuality
there were large gaps. IAP, for example, showed the Court references to putative 24/7 coverage
for the SDSS labor category, which, according to IAP’s counsel, met the need for OSP coverage.
In reality, however — as evident in IAP’s proposal (as opposed to the demonstrative) — IAP was
missing required OSP coverage. This misdirection was corrected by counsel for Vectrus via an
objection during oral argument. The Court agreed with Vectus then and continues to do so.
Tr. 125:16–25, 126:6–9, 128:22–129:2, 129:7–8, 14–21, 129:24–130:1 (“[IAP’S COUNSEL]: Here’s a
pull-out of a chart describing the work breakdown to an ISP and OSP in the region. . . . [W]e are
absolutely addressing the PWS requirement in the proposal. We have a whole labor category just
called outside plant technician in Iraq. We have different labor categories for OSP in each
country. There is one in Iraq. . . . We had in our staffing plan an OSP technician listed in Iraq. . . .
[I]f you follow over to the far right column, job code assignment override, you can see that it
aligns with the job code for a service desk support specialist, where we do have FTEs. . . .
THE COURT: . . . How about the work days only being five days a week instead of six? Is it true
that six days a week were required? [IAP’S COUNSEL]: Your Honor, I think you can see on the
page that [we] are shifting from someone who is 10/6 to 24/7 . . . . [A]s you can see, OSP
technician on the bottom there, TE-2, shift coverage, 10/6. . . . We’re moving to someone who’s
24/7. [VECTRUS’S COUNSEL]: Your Honor, may I object? This is a complete misrepresentation
of this document. It is missing the days and the hours that that person would work. THE COURT:
Yeah. I have a totally different document . . . . It’s [on] [AR] 4381. It says, ‘Workdays, service
desk support specialist, Saturday, Sunday, Monday, Tuesday, Wednesday.’”).
30
This assertion is flatly contradicted by IAP’s staffing matrix. As mentioned above,
IAP’s narrative indicated that at “smaller locations,” like those in Iraq, a Network
Administrator would “assist with [OSP] work alongside the OSP Teammate if
maintenance or repairs require a two-person team for safety.” AR 4360. IAP, in its
staffing matrix, listed “Network Administrator” in various locations throughout Iraq but
proposed to remove them after the base period. AR 4381–82 (proposing zero Network
Administrator FTEs in Al Asad, BDSC, Erbil, FOB Union 3, and Taji after the base period).
Instead, like the OSP Technicians, the duties of the Network Administrator would be
assumed by various network engineering positions at the RNOSC-I location in Iraq. AR
4381–82. While such a reassignment of duties may not by itself present a problem, given
the other problems with IAP’s proposed OSP support in Iraq — and that IAP’s narrative
indicated that the Network Administrators would provide much-needed OSP support —
the SSEB reasonably concluded that that their removal would increase the risk of
unsuccessful performance. AR 9348. That conclusion is particularly reasonable given
that IAP failed to explain how the network engineering positions at the RNOSC-I
location, for example, would be able to provide the necessary OSP support for other
locations in Iraq in addition to meeting their own duties at RNOSC-I. Thus, the SSEB’s
finding concerning Network Administrators was not erroneous and, accordingly, this
Court has no grounds to disturb that determination.
In sum, neither IAP’s technical narrative nor its staffing matrix proposed adequate
OSP staffing coverage in Iraq, despite IAP’s assertions to the contrary. IAP simply has
not “demonstrated, that [the Army’s] findings are unsupported by the administrative
record or inconsistent with the evaluation criteria.” JWK Int’l Corp. v. United States, 52
Fed. Cl. 650, 660 (2002), aff’d, 56 F. App’x 474 (Fed. Cir. 2003). Rather, IAP “offers little
more than mere disagreements with the [Army’s] overall assessment of the adequacy of
its proposal.” Id. Thus, this Court finds that “[s]uch naked claims, by all appearances
unsupported by anything in the record, fall far short of meeting the heavy burden of
demonstrating that these findings were the product of an irrational process and hence
arbitrary and capricious.” Id.Accordingly, the Army did not act arbitrarily in determining that IAP’s approach
to OSP support materially failed to meet the RFP requirements. The Army’s assignment
of a deficiency to IAP on Subfactor 2, and rating IAP as overall “Unacceptable” on the
MS/TA factor, was well within the Army’s discretion, and, in this Court’s opinion, likely
correct as a factual matter (i.e., if this Court were to review the assessment de novo). See
E.W. Bliss, 77 F.3d at 449; see also Fort Carson Support Servs. v. United States, 71 Fed. Cl. 571,
596 (2006) (explaining that “the proper role of courts” does not include “second guessing
the technical judgments of evaluators”).
31
B. The Army Acted Within Its Discretion in Finding that Vectrus Complied
with the Solicitation’s ITIL Requirement (Count III)
Next, IAP argues that the Army’s contract award to Vectrus was arbitrary and
capricious because Vectrus failed to comply with the Solicitation’s Information
Technology Infrastructure Library (“ITIL”) Foundation certification requirement (the
“ITIL Requirement”). Am. Compl. ¶¶ 207–215; Pl. MJAR at 23–26; Pl. Resp. at 9–14
(alleging that the Army “ignored” Vectrus’s “fail[ure] to satisfy” the ITIL Requirement).23
This argument fails, however, as the Army acted within its discretion in finding that
Vectrus met the ITIL Requirement.
In addressing IAP’s allegations concerning the ITIL Requirement, the Court begins
with the pertinent clause of the RFP, which provides as follows:
C.4.21 Information Technology Infrastructure Library (ITIL).
The [c]ontractor shall be Foundation certified on the most
current version of [ITIL] and have experience in the use of the
ITIL framework for IT service management for designing,
developing, and implementing service management best
practices for the service lifecycle, business process modeling,
IM/IT, network operations center, help desk operations, and
telecommunications/information processing, IT networking
(LAN/WAN), messaging services, configuration
management, and maintenance support. This certification is
only critical to upper echelon key management and regional
management positions ([i.e.], Program Manager and Country
Managers). Personnel must be certified upon contract start
date.
AR 3831 (§ C.4.21) (emphasis omitted). Offerors were required to identify in their labor
categories descriptions chart that their Program and Country Managers would have the
necessary ITIL certification. AR 3964 (§ L.8.2.B.3) (instructing offerors to identify
“certifications for each labor category proposed (to include Project Manager, Country
Managers, or Site Managers/Site Lead Technicians)” and “demonstrate that proposed
labor categories include . . . applicable certifications”). 24
23IAP also alleges that [Juliet] and [Kilo] likewise failed to meet the ITIL Requirement. Am.
Compl. ¶¶ 207–215; Pl. MJAR at 23–26; Pl. Resp. at 9. The Court need not address these offerors’
compliance with the ITIL Requirement, however, as IAP cannot demonstrate that it was
prejudiced by any such errors in light of this Court’s resolution of IAP’s other claims.
24 Apparently, the RFP used the titles “Program Manager” and “Project Manager”
interchangeably. See AR 3147 (defining the acronym “PM” as “PROGRAM MANAGER or
PROJECT MANAGER”).
32
IAP’s argument concerning the ITIL Requirement is twofold. 25 First, IAP asserts
that the word “critical” in this provision indicates that the ITIL Requirement is
“material”; that is, the failure to comply with this requirement automatically results in
the disqualification of an offeror’s proposal from consideration. Am. Compl. ¶ 209; Pl.
MJAR at 23; Pl. Resp. at 9. Second, IAP contends that only ITIL Foundation version 4
certification constitutes “the most current version” of ITIL at the time of proposal
submission, and offerors were required to expressly represent in their proposals that their
personnel possessed ITIL version 4 certification. Am. Compl. ¶¶ 210, 211; Pl. MJAR at
24; Pl. Resp. at 11–12. Based on these two grounds, IAP avers that Vectrus “failed to
satisfy the RFP’s material ITIL Version 4 certification requirement,” and, thus, Vectrus’s
proposal is “noncompliant” and “ineligible for award.” Pl. MJAR at 23–24. The Court
finds neither of IAP’s arguments persuasive.
First, the mere use of the word “critical” does not make a solicitation term
inherently material. As discussed above, a solicitation term is material where it is express
in the solicitation and serves a “substantive purpose.” ManTech, 141 Fed. Cl. at 506. While
the Solicitation delineated the ITIL Requirement, this Court finds that it does not serve a
“substantive purpose,” as it is not a term that is “important to the government’s
evaluation of the offer, is binding on the offeror, or has a more than negligible impact on
the price, quantity, or quality of the bid.” Id. There is certainly no RFP language making
the ITIL Requirement a mandatory minimum comparable to the language at issue in
DigiFlight or WaveLink. See DigiFlight, 150 Fed. Cl. at 658 (finding “mandatory minimum
requirement” where “the [s]olicitation expressly warned offerors that failure to comply
with the requirement would lead to an outright rejection of the proposal”); WaveLink, 154
Fed. Cl. at 272–73 (finding a solicitation’s requirement constituted “mandatory
[s]olicitation provisions that the [a]gency was not free to ignore” because the solicitation
“plain[ly]” and “unambiguous[ly]” stated that an offeror “would not be eligible for
award” if it failed to do so).
Second, even if the ITIL Requirement is material, the ITIL Requirement applied not
at the time of proposal submission but rather “upon [the] contract start date.” AR 3831
(§ C.4.21) (emphasis added). As explained by the United States Court of Appeals for the
Federal Circuit,
[w]here an offeror has certified that it meets the technical
requirements of a proposal, the Contracting Officer is entitled
to rely on such certification in determining whether to accept
a bid, and the offeror’s potential failure to comply with the
proposal requirements is ordinarily “a matter of contract
administration,” which does not go to the propriety of
accepting the bid. See Centech, 554 F.3d at 1039 . . . . “However,
25 IAP offers a third argument involving unequal treatment. See discussion infra Section V.E.
33
where a proposal, on its face, should lead an agency to the
conclusion that an offeror could not and would not comply
with the [applicable requirement], we have considered this to
be a matter of the proposal’s technical acceptability,” which
does affect the propriety of accepting the offer. Id. (emphasis
added); see also In re Spectrum Sys., Inc., B–401130, 2009 WL
1325352, at *2 (G.A.O. May 13, 2009) (“[A]n agency may
accept a quotation’s representation that indicates compliance
with the solicitation requirements, where there is no
significant countervailing evidence reasonably known to the
agency evaluators that should create doubt whether the
offeror will or can comply with the requirement.”). The
proper framing of the acceptability of [the offeror]’s proposal
is, therefore, whether the “generally compliant with
exceptions” language in [the offeror]’s proposal constitutes
“significant countervailing evidence reasonably known to the
agency evaluators that should create doubt whether the
offeror will or can comply with the requirement.” Spectrum,
2009 WL 1325352, at *2.
Allied Tech. Grp., 649 F.3d at 1330–31 (second alteration in original) (footnote omitted).
Accordingly, the ITIL Requirement is primarily a matter of contract administration and,
thus, the Court may examine only whether Vectrus’s “proposal, on its face, should lead
[the Army] to the conclusion that [Vectrus] could not and would not comply with” the
Solicitation’s terms. Centech, 554 F.3d at 1039 (quoting Orincon Corp., B-276704, 97-2 CPD
¶ 26, 1997 WL 402081, at *3 (Comp. Gen. July 18, 1997)). 26
The Court finds that nothing contained in Vectrus’s proposal should have led the
Army to conclude that Vectrus could not, or would not, comply with the ITIL
Requirement upon the contract start date, as required. See id. Vectrus did not take
exception to the ITIL Requirement; rather, Vectrus provided all the information required
by the RFP for the requirement. Vectrus clearly represented in its labor categories
descriptions chart, as required by the RFP, that its Project Managers and Country
Managers would be ITIL Foundation certified. AR 8067–68 (Vectrus Proposal, Volume 2
– Sub-Factor 2 Technical Approach) (listing “ITIL Certification” as a required certification
for Country Manager and Project Manager).
26The government argues that the Court lacks jurisdiction to address this argument because it
involves contract administration. Def. MJAR at 37–38. Because IAP frames the issue as one
related to Vectrus’s alleged noncompliance with the RFP, the Court decides the issue on the
merits. The result is the same, however — IAP does not prevail here.
34
Third, to the extent that IAP alleges that offerors were required to explicitly identify
“the most current version of [ITIL]” in their proposals — which, according to IAP, means
version 4 — nothing in the record supports that argument. The RFP merely required that
offerors’ Program and Country Managers be ITIL Foundation certified, in the most current
version, upon contract start date. AR 3831 (§ C.4.21). No provision in the RFP indicated
that offerors were required to specify which version of ITIL Foundation certification its
personnel possessed or project what the most current version would be at a future point
in time. 27 Nevertheless, IAP argues that Vectrus’s proposal is “noncompliant” because
Vectrus’s labor categories descriptions chart merely indicates that its Project and Country
Managers would be “ITIL Foundation” certified and not specifically certified in “ITIL
version 4.” Pl. Resp. at 10–12. The Court concludes, however, that offerors were not
required to identify in their respective proposals which version of ITIL certification their
personnel would possess.
Relatedly, IAP errs in arguing that Vectrus’s proposal is “noncompliant” because
Vectrus allegedly represents in its proposal that its personnel will be certified only in ITIL
version 3 , and not ITIL version 4. Am. Compl. ¶¶ 212, 215; Pl. MJAR at 24; Pl. Resp. at 11.
In support of this argument, IAP points to various statements in Vectrus’s narrative as
“evidence” of Vectrus’s noncompliance, including representations such as “[w]e
implemented ITSM best practices based on the ITIL v3 framework,” and “[w]e provide
an . . . experienced, in-place leadership team of ITILv3 Foundation-certified managers.”
AR 7965, 7967 (Vectrus Proposal, Volume 2 – Sub-Factor 1 Management). IAP’s argument
fails for a simple reason — as explained above, none of Vectrus’s representations in its
proposal amount to an affirmative assertion that Vectrus will not meet the ITIL
Requirement. In fact, each of Vectrus’s aforementioned statements in its proposal are
either in the present tense or the past tense, which is eminently understandable
considering that Vectrus is the incumbent contractor, a fact conveniently overlooked by IAP.
Thus, reading these representations in the context of Vectrus’s position as the current
provider of these services, these statements are merely a recitation of what Vectrus was
providing the Army in support of the ongoing OMDAC-SWACA contract at the time
Vectrus submitted its proposal. Given this context and the nature of the RFP’s requirement,
only a statement disclaiming an intent to provide the most current version of the
27Notably, which version of ITIL Foundation certification is the “most current version” appears
to be an ever-evolving designation. At the time the RFP was issued, ITIL version 3 was the latest
version of the certification. Def. MJAR at 39; Intv. MJAR at 38. In February 2019, however, a mere
few months before proposals were due, ITIL version 4 was released. See Am. Compl. ¶ 210 n.4;
Def. MJAR at 39; Intv. MJAR at 38; Def. Resp. at 18 n.6. Nevertheless, ITIL version 3 remained
current until July 2021. See Def. MJAR at 39 (citing AXELOS announces discontinuation of ITIL v3,
Axelos (Jan. 6, 2021), https://www.axelos.com/news/axelos-announces-discontinuation-of-itil-
v3). In any event, even if IAP is correct and ITIL version 4 is now “the most current version,” the
Court need not definitively resolve this issue because, as discussed above, the RFP does not
require an offeror’s personnel obtain such certification until the contract start date. See AR 3831
(§ C.4.21).
35
certification at the time of contract award (or, more accurately, the start date) could be
disqualifying. Vectrus’s proposal does not suffer from such a defect.
Accordingly, IAP’s argument concerning the ITIL Requirement is without merit,
as nothing in the record indicates that Vectrus’s proposal took exception to the
requirement that its Program and Country Managers must be certified with the most
current version of ITIL upon contract start date.
C. Vectrus Did Not Misrepresent the Availability of Its IT Service Management
Subject Matter Expert (Count VI)
IAP contends that the Army improperly overlooked Vectrus’s failure to notify the
Army of the departure of one of its proposed “key personnel,” Mr. [NS], and engaged in
unequal “post-award discussions” with Vectrus when the Army permitted Vectrus to
replace Mr. [NS] after contract award. Am. Compl. ¶¶ 241–260; Pl. MJAR at 42–48; Pl.
Resp. at 25–29. Essentially, IAP claims that Vectrus engaged in a “bait and switch.” In
general, a “bait and switch” occurs when “an awardee proposes certain key personnel,
then substitutes them for other individuals post-award.” Conley & Assocs., Inc. v. United
States, 142 Fed. Cl. 177, 182 (2019); see also Unified Architecture & Eng’g, Inc. v. United States,
46 Fed. Cl. 56, 64 (“The term ‘bait and switch’ generally refers to an offeror’s
misrepresentation in its proposal of the personnel that it expects to use during contract
performance.”), aff’d, 251 F.3d 170 (Fed. Cir. 2000); Prot. Strategies, Inc. v. United States, 76
Fed. Cl. 225, 235 (2007) (“The crux of a bait and switch claim is the government’s reliance
on a misrepresentation by a successful bidder, which effectively changes the term or
terms of the underlying solicitation.”).
As discussed below, the Court finds that IAP’s bait and switch claim fails for at
least four reasons: (1) Vectrus did not identify Mr. [NS] for a key personnel position as
contemplated by the RFP; (2) even if Vectrus had identified Mr. [NS] for a key personnel
position, there is no evidence that Vectrus had advance knowledge of Mr. [NS]’s intended
departure at the time of proposal submission; (3) there is no evidence that the Army relied
on the availability of Mr. [NS] in evaluating Vectrus’s proposal; and (4) Vectrus had no
obligation to notify the Army of Mr. [NS]’s departure prior to award.
1. Vectrus Did Not Propose Mr. [NS] for a Key Personnel Position
As mentioned above, IAP alleges that Mr. [NS] was one of Vectrus’s proposed key
personnel. This assertion, however, is incorrect.
The Solicitation required offerors to include in their proposals certain “key
personnel.” AR 3961–64 (§ L.8.2). In that regard, the RFP designated only four key
personnel positions: (1) “Project Manager”; (2) “Country Manager”; (3) “Site Manager”;
and (4) “Site Lead Technicians.” AR 3838 (§ H.1.a). Critically, however, the Solicitation
36
did not require offerors to identify their proposed key personnel by name. Indeed, the
RFP specifically instructed offerors “not [to] provide resumes” as part of their proposals.
AR 3964 (§ L.8.2.B.3). Additionally, the Solicitation did not require any documentation,
such as letters of commitment, assuring the continued availability of key personnel.
Instead, the Solicitation only required offerors to be prepared to identify their key
personnel after contract award:
Within ten days of notification of contract award, the
contractor shall provide the names[] and resumes of all
designated Key Personnel to the [Contracting Officer’s
Representative]. Key Personnel identified at the beginning of
phase-in must have the same or greater experience and
qualifications as those presented in the contractor’s proposal.
During contract performance, the contractor shall provide
written notification to the contracting officer at least 30 days
prior to making any changes to Key Personnel. The written
notification shall include copies of the resumes and
Certifications of any individuals proposed as replacements to
Key Personnel. Individuals with equal or higher
qualifications and experience must be provided.
AR 3838 (§ H.1.b).
In Vectrus’s proposal, Vectrus identified Mr. [NS] as its IT Service Management
Subject Matter Expert (“ITSM SME”). AR 7968. Thus, Mr. [NS] was not proposed as “key
personnel,” as the ITSM SME is not one of the “key personnel” positions contemplated
by the RFP. AR 3838 (§ H.1.b).
Nevertheless, IAP argues that the RFP additionally defines “key personnel” as:
(1) “[p]ersonnel identified in the proposal as key personnel to be assigned for
participation in the performance of the contract”; or (2) “[i]ndividuals who are designated
as key personnel by agreement of the government and the contractor during
negotiations.” Pl. MJAR at 10 (quoting AR 3839 (§ H.2.c)). In that regard, IAP alleges
that Vectrus identified six positions in its proposal as “key personnel” in addition to the
four listed in the RFP, and that these six positions, including the ITSM SME role, fall
under the first “defin[ition]” of “key personnel.” Pl. MJAR at 44.
IAP’s reliance on § H.2 of the RFP is misplaced. That RFP section is titled
“Contractor Personnel Administration.” AR 3839 (§ H.2) (emphasis added). Thus, this
portion of the RFP, and its “defin[ition]” of key personnel, governs the terms of the
contract only after the award (during contract administration) and does not apply to an
offeror’s proposal. Indeed, Section H includes “Special Contract Requirements” and does
37
not contain either proposal instructions (Section L) or evaluation criteria (Section M). See
FAR 15.204-2(h) (providing that Section H shall include “a clear statement of any special
contract requirements that are not included in Section I, Contract clauses, or in other
sections of the uniform contract format”); John Blood, B-298841, 2006 CPD ¶ 202, 2006 WL
3771802, at *2 (Comp. Gen. Dec. 21, 2006) (awardee’s “actual compliance with [a] section
H[ clause] is a matter of contract administration”); Petchem, Inc., B-227109, 87-2 CPD
¶ 258, 1987 WL 102822, at *2 (Comp. Gen. Sept. 16, 1987) (“We find particularly
persuasive in this regard the fact that the specific vessel characteristics—including draft
and dimensions—were requested not for technical evaluation purposes, but under
Section H, ‘Special Contract Requirements,’ which required that the work ‘be performed’
in accordance with the listed specifications . . . .”); Sealift, Inc., B-298588, 2006 CPD ¶ 162,
2006 WL 3155722, at *2 (Comp. Gen. Oct. 13, 2006) (where “the solicitation does not
require the offeror to provide the names of crew members or otherwise address how it
will meet the need for a crew in its proposal,” but rather only “requires the owner to
provide the crew list no later than 96 hours prior to the time the ship is to be delivered,”
then “whether [the awardee] complies with [that requirement] is a matter of contract
administration”).
2. The Army Did Not Rely on the Availability of Mr. [NS] in Evaluating
Vectrus’s Proposal and Vectrus Did Not Misrepresent Mr. [NS]’s
Availability
Even assuming, arguendo, that Vectrus had proposed Mr. [NS] for a key personnel
position, contrary to this Court’s interpretation of § H.2 of the RFP, IAP has not met its
burden to demonstrate that Vectrus engaged in an improper “bait and switch.”
To establish a “bait and switch” claim, a plaintiff must demonstrate:
(1) the awardee represented in its proposal that it would rely
on certain specified personnel in performing the services;
(2) the agency relied on this representation in evaluating the
proposal; (3) it was foreseeable that the individuals named in
the proposal would not be available to perform the contract
work; and (4) personnel other than those proposed are
performing the services.
Unified Architecture, 46 Fed. Cl. at 64 (citing Labat-Anderson, Inc. v. United States, 42 Fed.
Cl. 806, 855 (1999)); see also Golden IT, LLC v. United States, -- Fed. Cl. --, 2022 WL 334369,
at *18 (2022) (explaining that while “an offeror may not knowingly misrepresent a
material fact in a proposal for the purpose of winning a government contract,” a
plaintiff’s “misrepresentation claim must be rejected if [the awardee] had a reasonable
basis for proposing that it would commit [a particular individual] to serve as a member
of key personnel in performing the [contract] at issue”).
38
Elements 1 and 4 from the Unified Architecture framework are not at issue here —
all parties agree that Vectrus proposed Mr. [NS] as its ITSM SME and that an individual
other than Mr. [NS] will be serving in that role. The parties disagree, however, regarding
(1) whether the Army’s evaluation relied on Vectrus’s representation that Mr. [NS] would
serve as its ITSM SME, and (2) whether it was foreseeable that Mr. [NS] would leave
Vectrus’s employ prior to award. In other words, the parties contest whether Vectrus
engaged in a knowing, material misrepresentation. Unified Architecture, 46 Fed. Cl. at 64–
65 (“Termination of a contract award based on the proposal is appropriate where such a
misrepresentation materially influences an agency’s evaluation of an offeror’s
proposal.”); Golden IT, 2022 WL 334369, at *18. Thus, the Court addresses the remaining
elements of IAP’s bait and switch claim.
First, the Army did not rely on Vectrus’s representation that Mr. [NS] would serve
as its ITSM SME in evaluating Vectrus’s proposal. IAP dedicates a great deal of space in
its briefs in an attempt to convince the Court that Mr. [NS] was “material” to Vectrus’s
approach and that the inclusion of Mr. [NS] in Vectrus’s proposal “contributed” to the
Army’s assignment of two significant strengths and one strength to Vectrus. Pl. MJAR at
45–46; Pl. Resp. 26–28. For example, IAP asserts that Vectrus’s proposal “touted his
incumbent experience,” and his inclusion was “[e]ssential” to Vectrus’s proposal, and, as
a direct consequence, “[t]he SSEB evaluated and assigned a significant strength to Vectrus
for its ‘experience and its organizational approach.’” Pl. MJAR at 43–45 (arguing that the
SSEB’s award of a significant strength to Vectrus on Subfactor 1 is directly correlated to
“Vectrus’ discussion of the experience of its Key Personnel—including Mr. [NS]—under
the incumbent contract and commitment to provide ‘continuity’”).28
This argument “taxes the credulity of the credulous.” Maryland v. King, 569 U.S.
435, 466 (2013) (Scalia, J., dissenting). First, while the role of the ITSM SME position is
mentioned in several places throughout Vectrus’s proposal, Mr. [NS] is mentioned once
in the proposal, see AR 7968 (identifying “[NS]” as Vectrus’s current ITSM SME), and
there is no indication that Vectrus’s entire management (Subfactor 1) approach hinged
on the identity of its ITSM SME. Second, nothing in the record demonstrates that
Mr. [NS] was a material factor in the Army’s evaluation of Vectrus’s proposal.
Furthermore, there is zero evidence that the Army’s assignment of the two significant
strengths (and one strength) to Vectrus on Subfactor 1 had anything to do with Mr. [NS].
Indeed, the Army does not appear to have even mentioned Mr. [NS] or ITSM SME in any
of its evaluation documents the Court reviewed. 29 See, e.g., AR 9071–9103 (MS/TA Team
28IAP presents similar arguments for the second significant strength and one of the strengths
assigned to Vectrus on Subfactor 1. Pl. MJAR at 44–46.
29Notably, the only instance the term “ITSM SME” (or derivatives thereof) is mentioned in the
source selection documents is in reference to [Juliet]’s proposal — and not even in a final
document — in an email attachment from the MS/TA team to the SSA answering her MS/TA
39
Initial Report); AR 9308–87 (SSEB Initial Evaluation); AR 9388–98 (SSAC Final Report);
AR 9399–9413 (Source Selection Decision Document). Accordingly, the Court finds that
Vectrus’s inclusion of Mr. [NS] in its proposal was not “material” and his proposed role
as ITSM SME did not influence the Army’s evaluation.
Second, there is no evidence that Vectrus knew, or should have known, that
Mr. [NS] planned to depart Vectrus at the time it submitted its proposal to the Army.
Again, the parties do not dispute that Mr. [NS] was an employee of Vectrus on
May 17, 2019, the day Vectrus submitted its proposal. See Am. Compl. ¶ 254; Def. MJAR
at 47; Intv. Resp. at 25. Nor do the parties dispute that Mr. [NS] left Vectrus after proposal
submission, but prior to award, around October 2020. Am. Compl. ¶ 254; Def. Resp. at
25; Pl. Resp. at 25; Intv. MJAR at 44. What the parties do dispute — and what IAP fails to,
and cannot, prove — is whether it was foreseeable (to Vectrus) that Mr. [NS] would leave
Vectrus prior to contract award.
There is no evidence whatsoever in the administrative record — or proffered by
any party — suggesting that Vectrus had any indication at the time it submitted its proposal
that Mr. [NS] intended to leave Vectrus for another employer and would be unavailable
to perform the contract work. See Unified Architecture, 46 Fed. Cl. at 65; Golden IT, 2022
WL 334369, at *19 (“The fatal problem for [Plaintiff]’s claim, however, is that there is
simply no evidence in the record — literally, nothing — demonstrating that [the awardee]
had any knowledge prior to submitting its proposal, or at any point before [the
employee’s] departure from [the awardee], that he intended to leave [the awardee].”).
IAP did not sustain its burden of proof on this claim.
Accordingly, the Court finds that (1) the Army did not rely on Vectrus’s
representation concerning Mr. [NS] in evaluating Vectrus’s proposal, and (2) Vectrus had
no reason to know that Mr. [NS] would leave Vectrus prior to contract award. IAP’s “bait
and switch” claim fails at a minimum for lack of evidence.
3. Vectrus Had No Duty to Notify the Army of Mr. [NS]’s Departure
IAP further alleges that Vectrus had a duty to notify the Army of the departure of
Mr. [NS] and that Vectrus’s failure to do so is grounds for disqualification. Pl. MJAR at
42–43; Pl. Resp. at 25–26. This Court recently rejected the existence of such a duty in
Golden IT, 2022 WL 334369, at *20–22. In short, an offeror is not obligated to notify an
agency of the departure of key personnel post-proposal submission, absent an affirmative
requirement to do so in the solicitation. Id.questions. See AR 9065 (“Offeror Juliet proposed one ITSM subject matter specialist, ITIL
Intermediate certified, as a member of its training team under sub-factor 1.”).
40
Specifically, in rejecting the GAO rule requiring offerors to notify agencies of
changes in staffing, this Court explained:
A proposal is submitted at a point in time and is evaluated
over what is often a lengthy period. The Court agrees, of
course, that an offeror must have a reasonable basis for all
facts and representations made in its proposal — and may not
knowingly or recklessly include false statements of material
fact. A court’s assessment of an offeror’s knowledge of facts
and representations, however, is made with respect to the
point in time at which the offeror submitted its proposal.
Software versions may change, planned approaches to
contract performance might be altered or improved by the
time of contract award, and employees may come and go —
none of those are problems per se. And, where contemplated
in a solicitation, the government typically has discretion to
engage in discussions to verify proposal details, to extract
more details and ultimately include them into an awarded
contract, or to seek final proposal revisions (“FPRs”) for the
purpose of confirming key personnel. But, the Court will not
conjure up a rule — and particularly not one untethered from
a statute, regulation, or Federal Circuit decision — requiring
offerors or quoters to routinely update the government when
facts and circumstances change post-proposal or quote
submission, during the course of the government’s evaluation
period.
Golden IT, 2022 WL 334369, at *21 (citations omitted).
Here, the Solicitation did not require offerors to submit résumés, let alone to name
their key personnel. AR 3964 (§ L.8.2.B.3). Furthermore, the RFP did not require offerors
to update the Army prior to contract award about proposed key personnel departures.
Additionally, there is nothing in the record that demonstrates, by a preponderance of the
evidence, that Vectrus had any knowledge at the time of proposal submission that
Mr. [NS] would not be available for contract performance.
Accordingly, the Court finds that Vectrus had no duty to notify the Army of the
departure of Mr. [NS], and Vectrus’s failure to do so does not render Vectrus’s proposal
unawardable. 30
30In light of the Court’s conclusions that Vectrus did not materially misrepresent the availability
of Mr. [NS] and that Vectrus had no freestanding obligation to inform the Army of Mr. [NS]’s
41
D. The Army’s Cost Realism Evaluation Was Reasonable (Count VII)
IAP contends that the Army’s cost realism evaluation was “flawed.” Pl. MJAR at
37–41; Am. Compl. ¶¶ 261–280; Pl. Resp. at 24. IAP’s argument is two-pronged. First,
IAP challenges the method used by the cost team to evaluate the realism of certain direct
labor rates. Am. Compl. ¶¶ 265–268; Pl. MJAR at 40–41; Pl. Resp. at 24. Second, IAP
alleges that that the Army improperly evaluated Vectrus’s proposed labor hours. Am.
Compl. ¶¶ 269–280; Pl. MJAR at 37–40; Pl. Resp. at 24.
An agency is required to perform a cost realism analysis in a cost-reimbursement
procurement “to determine the probable cost of performance for each offeror.” FAR
15.404-1(d)(2). The FAR defines “[c]ost realism analysis” as:
the process of independently reviewing and evaluating
specific elements of each offeror’s proposed cost estimate to
determine whether the estimated proposed cost elements are
realistic for the work to be performed; reflect a clear
understanding of the requirements; and are consistent with
the unique methods of performance and materials described
in the offeror’s technical proposal.
FAR 15.404-1(d)(1).
There are two main purposes of a cost realism analysis: (1) “to prevent offerors
from gaining an advantage over competitors by proposing an unrealistically low
estimated cost”; and (2) “to determine whether offerors understand the contract
requirements.” VS2, LLC v. United States, 155 Fed. Cl. 738, 759 (2021) (emphasis omitted)
(first quoting Ralph C. Nash & John Cibinic, Cost Realism Analysis in Negotiated Fixed Price
Contracts: Confusion at the GAO or a New Limitation on Buy-Ins?, 4 Nash & Cibinic Rep. ¶ 61
(1990); and then quoting Ralph C. Nash & John Cibinic, Cost Realism Analysis in Cost
Reimbursement Contracts: What are the Rules of the Game?, 5 Nash & Cibinic Rep. ¶ 40
(1991)). “Agencies tasked with performing such an analysis must make appropriate
probable cost adjustments such that an offeror’s proposed cost best reflects the estimated
cost of performance.” Synergy Sols., Inc. v. United States, 133 Fed. Cl. 716, 749 (2017) (citing
FAR 15.404–1(d)(2)(i)). Put simply, a cost realism analysis “addresses whether a cost
estimate is too low.” First Enter. v. United States, 61 Fed. Cl. 109, 123 (2004).
departure, the Court need not address IAP’s argument that the Army engaged in “unequal
discussions” in allowing Vectrus to name a substitute for Mr. [NS]’s position, Pl. MJAR at 46–48,
as such “discussions,” if they can even be called that, were not improper given the terms of the
procurement as specified in the RFP.
42
The Federal Circuit has instructed that “agencies enjoy wide latitude in conducting
the cost realism analysis.” Agile Def., Inc. v. United States, 959 F.3d 1379, 1385–86 (Fed.
Cir. 2020); see also A-T Sols., Inc. v. United States, 122 Fed. Cl. 170, 180 (2015) (“As cost
realism determinations are within an agency’s ‘sound discretion and expertise,’ the Court
will not overturn a cost realism determination unless the plaintiff demonstrates the
absence of a rational basis for the agency’s decision.” (quoting CTA Inc. v. United States,
44 Fed. Cl. 684, 693 (1999))). Although the FAR “provides examples of cost analysis
techniques,” it “does not mandate the use of any specific methodology.” Agile Def., 959
F.3d at 1386 (citing FAR 15.404-1(c)). Rather, the FAR provides that “[t]he [g]overnment
may use various cost analysis techniques and procedures to ensure a fair and reasonable
price, given the circumstances of the acquisition.” FAR 15.404-1(c)(2). Thus, “[w]hile an
agency’s cost realism analysis need not have been performed with ‘impeccable rigor’ to
be rational, the analysis must reflect that the agency considered the information available
and did not make ‘irrational assumptions or critical miscalculations.’” Westech Int’l, Inc. v.
United States, 79 Fed. Cl. 272, 286 (2007) (quoting OMV Med., Inc. v. United States, 219 F.3d
1337, 1344 (Fed. Cir. 2000)).
For the reasons explained below, this Court rejects IAP’s claims concerning the
Army’s cost realism evaluation.
1. The Army’s Evaluation of Direct Labor Rates (Count VII.A)
As discussed supra, 31 the Army’s cost evaluation team performed a cost realism
analysis of offerors’ labor rates in accordance with FAR 15.404-1. AR 9187–88 (Initial
Price/Cost Proposal Analysis). The cost team utilized two different methods to evaluate
offerors’ labor rates:
The direct labor rate analysis produced 1,777 lines of labor
categories among the proposals[,] which translated into 520
unique labor categories. In order to evaluate the rates, the
unique labor categories were grouped into 368 categories
based on the PWS requirements. The [g]overnment used two
methods of labor rate evaluation. First, those rates that were
able to be, were compared on a competitive basis and a
statistical methodology was used to determine if a rate was
realistic or not. [Second,] [i]f less than three rates were
proposed for the same labor category[,] then the Bureau of
Labor Statistics (BLS) and the Economic Research Institute
(ERI) were used as outside pricing assistance to determine the
realism of the remaining rates. The [g]overnment identified
the rates at the 10th, 25th, 50th, 75th, and 90th percentiles in
31 See Sections I.A.3 and I.B.1.b.
43
each database. The [g]overnment selected Washington, D.C.
as the rate location as Middle East locations are not available.
The average of the BLS 25th percentile rate and the ERI 25th
percentile rate was used as a basis to determine the realism of
the proposed direct labor rates. Therefore, if a proposed rate
fell below that benchmark, it was determined to be
unrealistic.
AR 9187–88.
IAP challenges the first method, alleging that it is “flawed” because “the Army
relied on [a] ‘competitive’ approach . . . to determine realism even if all three rates were from
the same offeror.” Pl. MJAR at 40; see also Am. Compl. ¶ 266; Pl. Resp. at 24. Instead, IAP
argues, the Army should have analyzed offerors’ labor rates using only the second
method. Am. Compl. ¶ 268; Pl. MJAR at 41.
The Court agrees with IAP that the first method is irrational only insofar as the
Army applied it to “proposed rates submitted by the same offeror for the same labor
category.” Pl. MJAR at 41 (quoting AR 11389 (Schwartz Decl. ¶ 28)). 32 The Court does
not understand how comparing an offeror’s labor rates to its own labor rates realistic
(even if multiple locations are used). The question is the impact of that flaw. IAP asserts
that “at a minimum, 13 additional Vectrus labor rates would have been found unrealistic”
had the Army employed the second method of evaluating the realism of labor rates. Id.
As a result, according to IAP, an additional $24 million should have been added to
Vectrus’s total evaluated price. Id.
The Court rejects IAP’s argument for lack of proof. IAP cites to its expert’s
conclusion in a declaration, including his “[s]upporting [c]alculations,” but otherwise
provides no explanation for the $24 million sum. Pl. MJAR at 41 (first citing AR 11390
(Schwartz Decl. ¶¶ 30–32); and then citing AR 11574–11917). The expert’s declaration,
however, does not explain the math. Moreover, the referenced “supporting calculations”
span approximately 340 pages, and the Court cannot discern how IAP’s expert identified
the aforementioned thirteen labor categories (with no comparable rates from other
offerors) or how he arrived at a projected $24 million increase to Vectrus’s total evaluated
price. 33 The Court is not obligated to comb 340 pages of data to attempt to reconstruct or
32The administrative record filed with the Court includes the GAO record. The latter contains a
declaration from IAP’s expert, Mr. Marc P. Schwartz, a senior manager with Chess Consulting
LLC. AR 11383–91.
33 The Court agrees wholeheartedly with Vectrus: “IAP’s ‘expert report’ does not reveal the
formula used support these calculations, and thus this claim cannot [be] verified.” See Intv. Resp.
at 30 n.96.
44
prove IAP’s expert’s argument. IAP has the burden of proof, and it is not carried on this
issue. 34
In any event, IAP is not prejudiced by the Army’s analysis. As discussed supra
Section V.A, this Court has found that the Army reasonably determined that IAP’s
proposal was unawardable based on a reasonably assigned Unacceptable rating on the
MS/TA factor. Thus, to the extent the Army erred in its evaluation of the offerors’ direct
labor rates, IAP was not prejudiced by the error because its proposal was ineligible for
award. See Unified Architecture, 46 Fed. Cl. at 64 (finding that while the agency’s cost
realism analysis “might have been arbitrary and capricious, plaintiff . . . has not
demonstrated that [the agency]’s error was significant and prejudicial,” where the error
will not change the source selection result); Worldwide Language Res., LLC. v. United States,
127 Fed. Cl. 125, 135 (2016) (“[E]ven if [plaintiff] had shown that the exclusion of [certain]
costs from the total evaluated price was in error, plaintiff has failed to show they were
prejudiced by that exclusion.”).
2. The Army Rationally Analyzed the Offerors’ Labor Hours (Count VII.B)
Additionally, IAP alleges that that the Army failed to conduct a rational cost
realism analysis of the offerors’ proposed labor hours. 35 Am. Compl. ¶¶ 269–280; Pl.
MJAR at 37–40; Pl. Resp. at 24. Specifically, IAP contends that the Army “never
reconcile[d] [a] fundamental disagreement among the cost and technical evaluation
teams” as to whether the labor hours in Vectrus’s cost proposal was “underestimated by
more than 6 million hours.” Am. Compl. ¶¶ 271–272 (emphasis omitted); see also Pl.
MJAR at 39; Pl. Resp. at 24. Upon careful review of the record, the Court finds that this
assertion is patently false. 36
34Given the Court’s conclusion, the Court need not reach the government’s argument that
Mr. Schwartz’s declaration should be disregarded as an “inappropriate supplementation of the
administrative record.” Def. MJAR at 44 n.4.
35In its MJAR, IAP raised three other arguments under this count. Pl. MJAR at 37–39. The
government countered each of these claims in its response brief. Def. Resp. at 20–22. IAP,
however, failed to address these arguments in its response brief. Accordingly, the Court finds
that IAP has abandoned those three arguments and need not address them. See Golden IT, 2022
WL 334369, at *12 (“This Court will not permit a party to raise a phalanx of thin arguments in a
dispositive motion — thereby forcing the opposing party to spend time and briefing space to
engage with all of them — only to abandon them in the face of the counterarguments, and yet
insist that the Court adjudicate the entire initial salvo. Such a buckshot-like approach to advocacy
undermines both judicial economy and basic notions of fairness.”); see also discussion infra
Section V.F.
36The Court is not surprised that this argument is whittled down to a single paragraph in IAP’s
response brief. Pl. Resp. at 24.
45
As summarized supra, 37 as part of the MS/TA team’s analysis of offerors’
proposed staffing and labor hours, the MS/TA team compared offerors’ staffing matrices
and sanitized cost workbooks to ensure that the labor hours proposed therein were
consistent and realistic. AR 9197–9220; see also AR 9322 (SSEB Initial Report). When the
MS/TA team initially reviewed Vectrus’s cost proposal, the team recognized that the
labor hours listed therein did not match up with either the proposed cost or the labor
hours the team calculated based on Vectrus’s staffing matrix. AR 9208. The MS/TA team
communicated this finding to the cost team, which concurred. AR 9184 (Initial
Price/Cost Proposal Analysis). Subsequently, upon review of the initial data, the SSA
asked the SSEB to investigate the apparent discrepancy. AR 8901 (SSA Email Exchange
with SSEB – SSA Evaluation Questions) (“How does [Vectrus] have significantly [fewer]
overall hours ([ * * * ]) than all other offers and half that of the [Independent Government
Estimate], but have the third most [contract manpower equivalents] ([ * * * ])? How are
[Vectrus]’s hours reasonable for the work scope if they are less than [ * * * ] that of the
[Independent Government Estimate] and other offerors?”); see also AR 9066–67.
Ultimately, both the MS/TA and cost evaluation teams determined that the discrepancy
was the result of a formula error in Vectrus’s Excel spreadsheet (the cost workbook): the
formula in the column reflecting the “Total Productive Labor Hours” in each spreadsheet
did not account in its calculations for the number of FTEs proposed for that labor
category, and only accounted for a single FTE per labor category. 38 AR 9053, 9066–67
(SSA Email Exchange with SSEB – SSEB Response); AR 9193; AR 8158 (Vectrus Proposal,
Volume 4 – Cost Workbook).
Upon adjusting the spreadsheets to account for the formula discrepancy, the
teams were able to determine the correct labor hours in Vectrus’s cost proposal. AR 9053;
AR 9193. The MS/TA team also confirmed that Vectrus’s proposed labor hours were
“adequate to accomplish the work scope.” AR 9067; AR 9068.
The Court has examined the administrative record, including Vectrus’s sanitized
and unsanitized cost workbooks. The Court finds that there is no evidence whatsoever
supporting IAP’s claim that the Army’s cost realism evaluation of Vectrus’s labor hours
was irrational or otherwise flawed. See A-T Sols., 122 Fed. Cl. at 180 (declining to overturn
an agency’s cost realism determination because the agency “had a rational basis for
concluding that [the awardee]’s staffing proposal met the requirements of the solicitation
and that [the awardee]’s cost proposal was realistic”).
37 See Section I.B.1.b.
The teams also realized that they failed to account for Vectrus’s subcontractors’ cost data, which
38
was contained in separate files. AR 9193.
46
E. The Army Did Not Disparately Evaluate IAP’s Proposal (Counts II.A, V.A,
and IX)
IAP’s next challenge is that the Army unlawfully engaged in unequal treatment in
its evaluation of IAP’s proposal, in violation of FAR 1.102(b) and 1.602-2. 39 Am. Compl.
¶¶ 178–183, 234–235, 283–288; Pl. MJAR at 25, 28, 30–37. The Court, however, does not
find any of IAP’s arguments concerning disparate treatment persuasive.
To succeed on a disparate treatment claim, a plaintiff must demonstrate either:
(1) “the agency unreasonably downgraded its proposal for deficiencies that were
‘substantively indistinguishable’ or nearly identical from those contained in other
proposals”; or (2) “the agency inconsistently applied objective solicitation requirements
between it and other offerors, such as proposal page limits, formatting requirements, or
submission deadlines.” 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)).
In this case, IAP challenges the allegedly disparate technical ratings; thus, only the first
Office Design Group standard applies.
First, IAP argues that the Army, in its evaluation of other offerors’ OSP approach,
“did not hold the other offerors to an equal standard [to that of IAP], in contravention of
FAR 1.102 and 1.602-2.” Pl. MJAR at 28. For example, IAP asserts that the Army faulted
IAP for “not identify[ing] the regions where [the centralized] teams would provide
support,” but failed to “criticize the OSP approach of [other] offerors” for not
“mention[ing] specific locations” in their narratives. Id. at 27–28. The Court rejects this
assertion, finding it plainly wrong. IAP was not penalized by the Army for merely failing
to “identify the regions where [the centralized] teams would provide support” in its
narrative, see AR 9348; rather, IAP was faulted for failing to propose sufficient OSP
support in either its narrative or its staffing matrix. While other offerors may have not
provided significant detail in their narratives about their proposed approaches to OSP
support, they did propose OSP services at the required locations in Iraq in their staffing
matrix, unlike IAP. Thus, there was no “[un]equal standard” concerning the requisite
detail in offerors’ OSP support narrative, and IAP’s error was not “substantively
indistinguishable” from those of other offerors. Off. Design Grp., 951 F.3d at 1372.
Second, IAP suggests that the Army’s assignment of a deficiency to IAP for
inadequate OSP support “amounts to unequal treatment” because other offerors had
“substantially identical” OSP staffing shortfalls and they were merely assigned “a
weakness, an uncertainty, or nothing.” Pl. MJAR at 30. IAP asserts that “had the Army
39 FAR 1.102(b)(3) instructs agencies to “[c]onduct business with integrity, fairness, and
openness,” while FAR 1.602-2 requires that “[c]ontracting officers shall . . . [e]nsure that
contractors receive impartial, fair, and equitable treatment[.]” See also Tolliver Grp., Inc. v. United
States, 151 Fed. Cl. 70, 87–88, 88 n.15 (2020) (discussing FAR 1.102 and 1.602-2).
47
treated IAP equally as the FAR required,” IAP would have received, at most, a “minor
weakness.” Id. at 32. Like the preceding argument, the Court finds this claim simply
incorrect as a factual matter. In contrast to other offerors, IAP was not assigned a
deficiency for proposing merely “insufficient OSP hours.” Id. Rather, the Army faulted
IAP for failing to propose sufficient OSP support for an entire country. None of the other
offerors’ proposals completely eliminated support in an entire labor category for an entire
country. Therefore, the shortfalls are not “substantively indistinguishable” and, thus,
IAP was not disparately evaluated. Off. Design Grp., 951 F.3d at 1372.
Third, IAP contends that [Alpha] received “a mere uncertainty” for omitting from
its staffing matrix the required Site Lead Technician at the [ * * * ], when it should have
received a deficiency because [Alpha]’s “flaw” is “substantially similar to the Army’s
purported basis” for assigning IAP a deficiency. Pl. MJAR at 33–35. [Alpha], however,
did propose in its narrative that it would provide a Site Lead Technician at the [ * * * ]. See
AR 5712 ([Alpha] Proposal, Volume 2 – Mission Support/Technical Approach | Sub-
Factor 1). Thus, [Alpha]’s error amounted to a mere discrepancy between its narrative
and staffing matrix, and not a complete failure to propose sufficient support. IAP’s
proposal, in contrast, was consistent in its pervasive omission — IAP’s proposal
contained no evidence of OSP support in Iraq in either its narrative or its staffing matrix.
Furthermore, IAP’s error was material — it eliminated an entire labor category from a
country without providing sufficient detail as to how the necessary support would be
provided. As such, IAP’s error is not “substantively indistinguishable” from that of
[Alpha]. Off. Design Grp., 951 F.3d at 1372.
Fourth, IAP alleges that [Alpha] and [Juliet] had inconsistencies between their
narratives and staffing matrices concerning proposed OSP support, and had the Army
treated their proposals the same as IAP’s, they would have been assigned deficiencies.
Pl. MJAR at 35–36. Such discrepancies, however, did not represent a complete failure to
propose sufficient OSP support in both their narratives and staffing matrices. For
example, in [Juliet]’s technical narrative, [Juliet] proposed “at least two OSP Technicians
on shift at all times.” AR 7019 ([Juliet] Proposal, Volume 2—Mission Support/Technical
Approach | Sub-Factor 2). However, in [Juliet]’s staffing matrix, [Juliet] proposed to have
two OSP technicians in some locations but a single OSP technician in other locations. See,
e.g., AR 7035 (listing two OSP technicians at [ * * * ], but only one OSP technician at [ * * * ],
and indicating that the OSP technician would be “[s]upported by Network Admin [sic]
as needed for 2 man safety”). Similarly, [Alpha] represented in its narrative that its “OSP
teams always have at least two technicians on shift.” AR 5773 ([Alpha] Proposal, Volume
2 – Mission Support/Technical Approach | Sub-Factor 2). Like [Juliet], [Alpha]’s staffing
matrix reflected two OSP technicians in some TE2-required locations, but only one in
others. See, e.g., AR 5809 (listing two OSP technicians at [ * * * ], but only one OSP
technician at [ * * * ]). Thus, IAP’s error is substantively distinguishable from that of
[Alpha] and [Juliet], as there was a discrepancy between [Alpha]’s and [Juliet]’s respective
narratives and staffing matrices as to the level of support in some locations, but not a clear
48
lack of support as the Army evaluators found for IAP. See Off. Design Grp., 951 F.3d at
1372.
Fifth, IAP asserts that the Army “violate[d] the FAR’s equal treatment mandate”
by allowing Vectrus to use its “Statement of Compliance” to “remedy its failure” to meet
the ITIL Requirement, but assigned IAP a deficiency “for purportedly failing to offer
sufficient OSP support in Iraq.” Pl. MJAR at 25. This argument fails for two reasons.
First, as discussed supra Section V.B, Vectrus did not take exception to the ITIL
Requirement, and the Army reasonably found that Vectrus complied with the
requirement. Second, to succeed on a disparate treatment claim, a plaintiff must
demonstrate that the agency evaluated similar deficiencies in two proposals unequally.
See Off. Design Grp., 951 F.3d at 1372. Here, however, IAP’s comparison of the ITIL
Requirement to the OSP support requirement is like the proverbial comparison of apples
to oranges. IAP seeks to compare two vastly different RFP requirements without
explaining why such a comparison has any merit. See Fluor Intercontinental, Inc. v. United
States, 147 Fed. Cl. 309, 330 (2020) (finding no disparate treatment where “the offerors’
‘systemic issues’ were of two inherently different breeds”). Thus, even if the Army
improperly allowed Vectrus to rely on its “Statement of Compliance” to meet the ITIL
Requirement and the ITIL Requirement was a “material” requirement — which it is not
— thus rendering Vectrus’s proposal “noncompliant,” such a “deficiency” is not
“‘substantively indistinguishable’ or nearly identical” to IAP’s complete failure to
provide adequate OSP staffing coverage in Iraq. Off. Design Grp., 951 F.3d at 1372; see also
Tech. Innovation All. LLC v. United States, 149 Fed. Cl. 105, 132 (2020) (“Indeed, having the
Court pass judgment regarding the relative merits of proposals that are not substantively
indistinguishable ‘would give a court free reign to second-guess the agency’s
discretionary determinations underlying its technical ratings’ and ‘[t]his is not the court’s
role.’” (alteration in original) (quoting Office Design Grp., 951 F.3d at 1373)). Accordingly,
the Court finds that IAP’s final disparate treatment argument lacks merit.
IAP fails to demonstrate that the Army disparately evaluated its proposal, and the
Court does not find that the Army evaluators erred in their discretionary assignment of
a deficiency to IAP’s proposal.
F. IAP Abandoned Counts II.B, II.C, IV, and V.B
The Court finds that IAP has abandoned the following claims from its amended
complaint: (1) Count II.B (challenging the failure to conduct clarifications), Am. Compl.
¶¶ 185–192; (2) Count II.C (challenging the significant weakness and weakness assigned
to IAP on Subfactor 2), Am. Compl. ¶¶ 193–206; (3) Count IV (challenging the weakness
on assigned to IAP on Subfactor 1), Am. Compl. ¶¶ 216–227; and (4) Count V.B
(challenging a strength assigned to Vectrus on Subfactor 1 and that IAP should have been
assigned a comparable strength), Am. Compl. ¶¶ 236–240. As the government and
49
Vectrus correctly note, IAP fails to address these claims in its MJAR. Def. Resp. at 1–2;
Intv. Resp. at 1.
The Court agrees with the government and Vectrus that IAP has abandoned these
counts and, thus, need not consider the claims alleged thereunder. 40 See Ironclad/EEI v.
United States, 78 Fed. Cl. 351, 357–58 (2007) (finding that “plaintiff has waived [four]
counts of the complaint” when it failed to address them in its MJAR); Sarro &
Assocs., Inc. v. United States, 152 Fed. Cl. 44, 58 (2021) (“Indeed, in responding to the
government’s motion to dismiss, [Plaintiff] appears to have all but abandoned this
particular claim contained in the amended complaint. A party’s failure to raise an
argument in an opening or responsive brief constitutes waiver.” (citations omitted));
Chromalloy San Diego Corp. v. United States, 145 Fed. Cl. 708, 740 (2019) (“[W]hen a plaintiff
asserts a claim in its complaint but then fails to pursue it in a dispositive motion, the court
can deem that claim abandoned or waived.”); Chenega Healthcare Servs., LLC v. United
States, 141 Fed. Cl. 254, 259 n.4 (2019) (“The court agrees with the government that
[Plaintiff] has waived reliance on any counts of the complaint not addressed by
[P]laintiff’s dispositive motion.”); Singer Co. v. United States, 568 F.2d 695, 718 (Ct. Cl.
1977) (“This claim was called out in plaintiff’s petition but the briefs which plaintiff
submitted offer no discussion of this claim. We assume, therefore, that the claim has been
abandoned.”).
G. The Administrative Record Does Not Support the Army’s Decision
Declining Both to Establish a Competitive Range and to Conduct
Discussions (Count I)
IAP contends that the government’s “failure to engage in discussions” in this
procurement “was arbitrary, capricious, and an abuse of discretion,” Am. Compl. ¶ 131,
“or otherwise not in accordance with law,” id. ¶ 157. In particular, IAP argues that the
Army did not comply with DFARS 215.306. Id. ¶¶ 135–138; Pl. MJAR at 19–23; Pl. Resp.
at 2–4. The Court agrees with IAP.
1. The Plain Language of DFARS 215.306 Creates a Regulatory Presumption
in Favor of Conducting Discussions
Although the Court has addressed the relevant DFARS provision at length in Oak
Grove Techs., LLC v. United States, 155 Fed. Cl. 84, 108–14 (2021), the Court begins once
again with the regulation’s plain language: the DFARS provides that “[f]or acquisitions
40The Court notes that IAP obliquely references Count II.C in its MJAR in two footnotes, Pl. MJAR
at 5 n.4, 29 n.11, and Count V.B is briefly mentioned in its MJAR twice, Pl. MJAR at 16 (statement
of facts), 20–21 (discussions argument), and in one sentence in its response brief, Pl. Resp. at 5.
These tangential inferences do not develop or support the arguments, however, and do not save
these counts from abandonment.
50
with an estimated value of $100 million or more, contracting officers should conduct
discussions.” DFARS 215.306(c)(1) (emphasis added). The key word in that provision,
manifestly, is “should” — a term synonymous with neither “may” nor “shall.” Indeed,
the FAR separately defines all three terms: “May denotes the permissive”; “Shall denotes
the imperative”; while “Should means an expected course of action or policy that is to be
followed unless inappropriate for a particular circumstance.” FAR 2.101 (emphasis
added). The fact that DFARS 215.306 employs the term “should” does not mean that
following the regulation somehow is optional for the Department of Defense or, by
extension, the Army. DynCorp Int’l, LLC v. United States, 10 F.4th 1300, 1311 (Fed. Cir.
2021) (“Naturally, an agency has no discretion to disregard binding regulations.” (citing
5 U.S.C. § 706(2))). The question, then, is not whether the Army must follow DFARS
215.306 — that premise is not in dispute — but rather how much discretion the Army
possesses not to engage in discussions given that the DFARS provision governs this
procurement. To answer that question, we must back up a bit and establish “some
[additional] first principles.” Washington Metro. Area Transit Auth. v. United States, 54 Fed.
Cl. 20, 27 (2002).
What the FAR makes clear is that, depending upon the particular provision at
issue, there exists a continuum of agency discretion, ranging from its apex (indicated by
the word “may”) to its nadir (indicated by the word “shall”) 41 — with “should” falling
somewhere in the middle. See FAR 2.101. Each of those terms — “may,” “should,” and
“shall” — have different meanings. Id.; cf. United States v. Maria, 186 F.3d 65, 71 (2d Cir.
1999) (explaining that “where the Sentencing Commission chose the word ‘should’
instead of ‘shall’ or ‘must,’ the Commission meant what it said and said what it meant”).
And just as there is an obvious distinction between “should” and “shall” — because “[a]s
a general matter, the use of different words within the same statutory context strongly
suggests that different meanings were intended” — so, too, “[t]he difference between
‘may’ and ‘should’ is significant.” Maria, 186 F.3d at 71. 42
Applying those interpretative principles to DFARS 215.306(c)(1), the Court
continues to stand behind its conclusion in Oak Grove that “the DFARS provision’s plain
language . . . create[s] a presumption in favor of an agency’s conducting discussions.”
155 Fed. Cl. at 108 (“the DFARS provision’s plain language suggests that an agency must
justify not engaging in discussions where the provision applies” (emphasis omitted)); see
41FAR 15.306, for example, employs the word “shall” twelve times, and the word “may” sixteen
times.
42See also Kingdomware Techs., Inc. v. United States, 579 U.S. 162, 171–72 (2016) (explaining that
“[u]nlike the word ‘may,’ which implies discretion, the word ‘shall’ usually connotes a
requirement” and that “[w]hen a statute distinguishes between ‘may’ and ‘shall,’ it is generally
clear that ‘shall’ imposes a mandatory duty”); Alamo Travel Grp., LP v. United States, 108 Fed. Cl.
224, 233 (2012) (“The definitions in FAR section 2.101, which have a uniform meaning throughout
the FAR unless otherwise specified, draw a sharp line in usage between ‘shall’ and ‘should.’”).
51
also Maria, 186 F.3d at 73 (explaining that the term “should” “creates . . . a ‘strong
presumption’” (emphasis added) (quoting United States v. Walker, 98 F.3d 944, 945 (7th Cir.
1996)). The Court’s interpretation of DFARS 215.306 in Oak Grove was not formulated ex
nihilo, but rather is premised on binding Federal Circuit precedent that adopted the
government’s own operational interpretation of that provision:
The Federal Circuit’s decision in Dell Federal Systems, L.P. v.
United States removes any doubt that DFARS 215.306
generally requires an Agency to engage in discussions. Dell
Fed. Sys., L.P. v. United States, 906 F.3d 982 (Fed. Cir. 2018).
In Dell Federal Systems, unsuccessful offerors filed GAO
protests, arguing, amongst other things, “that the Army
should have engaged in discussions with offerors . . . as
required by [DFARS] 215.306(c)[.]” 906 F.3d at 987–88
(footnoted omitted). As part of the agency’s corrective action
to resolve the protests, the agency decided it would reopen
the procurement to conduct discussions, request new final
proposals, and then issue a new award decision. The
cognizant contracting officer explained “that because the
procurement was valued in excess of $100 million, the Army
was likely required to [but did not] conduct discussions with
offerors pursuant to DFARS 215.306(c)(1).” Id. at 988. Two of
the initial awardees filed suit in this Court, seeking to enjoin
the corrective action. Id. at 989. On appeal, the Federal Circuit
upheld the agency’s corrective action, holding that, pursuant
to DFARS 215.306, “discussions normally are to take place in
these types of acquisitions.” Id. at 995–96. Thus, the Federal
Circuit “determine[d] that the corrective action of conducting
discussions is rationally related to the undisputed procurement
defect of originally failing to conduct pre-award discussions . . . .”
Id. (emphasis added).
Oak Grove, 155 Fed. Cl. at 108–09 (alterations in original) (first emphasis added).
In Dell Federal Systems, “the government plainly confessed the procurement error
before the Federal Circuit, arguing that ‘[u]nless the Army conducts the discussions
required by DFARS 215.306 under the facts of this case, the awards will be the result of a
flawed procurement process.’” Oak Grove, 155 Fed. Cl. at 109 (alteration in original)
(quoting Reply Brief of Defendant-Appellant, Dell Fed. Sys., L.P. v. United States, 906 F.3d
982 (Fed. Cir. 2018) (Nos. 17-2516, 17-2535, 17-2554), 2018 WL 790985, at *13); see also Reply
Brief of Defendant-Appellant, Dell Fed. Sys., 2018 WL 790985, at *19 (“The regulatory
52
expectation in this procurement was that the Army would conduct discussions and the
record shows that the agency had no reason not to do so.” (emphasis added)).
Although Dell Federal Systems involved corrective action, the government in that
case adopted a position regarding the operational definition of the DFARS provision at
issue in order to justify its corrective action. The government cannot — and does not
attempt to — distinguish Dell Federal Systems merely on the grounds that it involved
corrective action. Again, in that case, the government decided that, given the
administrative record, the agency had no choice but to conduct discussions in light of the
DFARS provision, the presence of which was the critical factor the Army used to justify
its rescinding the contract awards. Dell Fed. Sys., 906 F.3d at 988 (noting Army’s
conclusion that it “was likely required to conduct discussions with offerors pursuant to
DFARS 215.306(c)(1)” (emphasis added)). The regulation cannot mean one thing in that
case and a different thing here. Nor can the government claim more discretion here (i.e.,
to decline to conduct discussions) than the government had in deciding to reopen the
procurement to conduct discussions in Dell Federal Systems (i.e., where the Army
concluded that it was all but required to do so). In sum, the Court will not adopt a rule
that permits the government, on an equally inadequate record, either to exercise discretion
to refuse to conduct discussions in the first place or to exercise discretion to rescind
contract awards and open discussions for the purposes of complying with DFARS 215.306
— all at the government’s sole option. That would be tantamount to giving the
government virtually plenary, “may”-level discretion.
Accordingly, in this case, the Court asks the precise question the government itself
posed in Dell Federal Systems: given that “[t]he regulatory expectation in this procurement
was that the Army would conduct discussions,” does the administrative record
adequately explain a “reason not to do so”? Reply Brief of Defendant-Appellant, Dell
Fed. Sys., 2018 WL 790985, at *19 (emphasis added). The Court answers that question in
the strong negative. The Army’s decision to award without discussions is fatally
undermined by the administrative record evidence, defies logic, and ignores DFARS
215.306.
2. The Administrative Record Does Not Justify the Army’s Decision to Skip
the Discussions Process
The Court confines itself, as it must, to the Army’s stated reason — in the
contemporaneous administrative record — for not conducting discussions. To say that
the record addressing the subject is thin would be an understatement. 43 In that regard,
43The Court rejects Vectrus’s assertion that the SSA issued a “five[-]page rationale for awarding
to Vectrus without discussions.” Intv. Resp. at 9. Contrary to Vectrus’s overly generous
characterization, the SSA did not “spen[d] pages documenting its reasoning for why discussions
were not required.” Id. at 10. The Court would agree that the SSDD, in general, is lengthy and
53
the SSAC’s final report assessed that IAP’s “proposal is unawardable” due to its
Subfactor 2 rating — and, thus, that “[i]t is unlikely this area can be rectified with
discussions.” AR 9392. There is nothing more in the SSAC final report. The SSA in the
SSDD similarly concluded that “[a]s a result of the [SSEB] review and in accordance with
the basis for award, it is my determination there is one offeror that offers the best value
to the government and discussions are not required.” AR 9404 (emphasis added). Although
the SSA indicated that her “decision [was] based on the following information,” AR 9404,
the subsequent discussion in fact consists only of the justification for the SSA’s best value
decision, with the exception of a short, discrete section focused on the decision to “Award
Without Discussions,” AR 9409 (§ 13). But that section contains only a summary of the
offerors’ evaluations and this assertion:
Based on an integrated assessment of the proposal
evaluations and the drafted evaluation notices, I have
determined that discussions would not result in any meaningful
benefit to the Government, or any changes to the apparent outcome
of the source selection decision. Thus, in accordance with the
terms and conditions of the solicitation, a contract will be
awarded without discussions and a competitive range will
not be established.
AR 9409 (§ 13) (emphasis added).
That threadbare, conclusory assertion is insufficient pursuant to DFARS 215.306.
First, neither the SSAC nor the SSA provided any facts, explanation, or analysis
substantiating their question-begging conclusions, respectively, that IAP’s initial ratings
could not be “rectified with discussions,” AR 9392, and that discussions would not
change “the apparent outcome” of the procurement, AR 9409. In the absence of facts
substantiated in the administrative record — and reasoned agency judgment based on
such facts — these conclusions are mere ipse dixit and insufficient even under the
deferential APA review standard. Honeywell Int’l Inc. v. Arkema Inc., 939 F.3d 1345, 1348
(Fed. Cir. 2019) (applying 5 U.S.C. § 706(2)(A), and explaining that an agency “abuses its
discretion if [its] decision” is based on a “record that contains no evidence on which the
[agency] could rationally base its decision”); see also In re Vivint, Inc., 14 F.4th 1342, 1351
(Fed. Cir. 2021) (“A decision is arbitrary and capricious when the agency fails to articulate
a ‘rational connection between the facts found and the choice made.’” (emphasis added)
(quoting Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S.
29, 43 (1983))); cf. Brand v. Miller, 487 F.3d 862, 868–69 (Fed. Cir. 2007) (discussing “section
thorough, but the Court quotes the entirety of the SSDD addressing the discussions
determination, infra Section I.B.2, and it is scarcely more than a handful of sentences; it is
exceedingly brief, conclusory, and, ultimately, inadequate given DFARS 215.306.
54
706 of the APA” and noting that the Supreme Court has held that “agency expertise
cannot substitute for record evidence” (citing Baltimore & Ohio R.R. Co. v. Aberdeen &
Rockfish R.R. Co., 393 U.S. 87, 91–92 (1968))). Under the APA, “[c]onclusory statements
such as those here provided do not fulfill the [Army]’s obligation.” In re Sang Su Lee, 277
F.3d 1338, 1344 (Fed. Cir. 2002).
To make matters worse, Vectrus does not attempt to refute IAP’s contention that
“the SSAC’s rationale for foregoing discussions is ‘objectively false.’” Intv. Resp. at 13
(quoting Pl. MJAR at 19). Rather than providing any substantive justification for the
SSAC’s conclusion, Vectrus responds that because “the SSA did not carry forward the
SSAC’s rationale into the SSDD, IAP’s challenge to the SSAC’s rationale for foregoing
discussions is legally immaterial.” Id. This concession creates a gaping hole in the chest
of the administrative record: if the SSAC’s conclusion that IAP’s proposal cannot “be
rectified with discussions,” AR 9392, is “objectively false,” that must mean the proposal
could be corrected. And if IAP’s deficiencies could be remedied via a final proposal
revision following discussions, how did the SSA conclude that discussions would not
change the outcome of the procurement? That critical question is not answered in the
government’s or Vectrus’s briefs, let alone in the administrative record itself.
Second, although the SSA asserted her decision was based, in part, on the draft
ENs, the SSA did not even attempt to explain how those documents led her to conclude
that offerors — including IAP — would not have been able to meaningfully improve their
respective proposals. If anything, the mere existence of the draft ENs tends to
demonstrate the opposite. In that regard, the cost team’s report strongly suggested a
need for discussions: “The cost realism analysis found that each offeror proposed
multiple unrealistic direct labor rates. Findings and subsequent Evaluation Notices (EN)
for each offeror are found at the end of this report, beginning on page 30.” AR 9168
(Initial Price/Cost Proposal Analysis); see also AR 9176 (“An EN has been created for each
offeror to clearly identify the overtime costs, hours, and multipliers.”); AR 9188 (“[A]n
EN has been created for each offeror asking for additional support for the unrealistic
rates.”); AR 9195 (“If discussions are held, the ENs may be used as topics for discussion
with the offerors regarding their cost proposals. Once revised data has been received by
offerors selected for the competitive range, if applicable, it will be re-analyzed.”); AR
9221–44 (Cost Team Updated Draft ENs). Indeed, the ENs focused on cost apparently
were updated, inexplicably, as late as December 22, 2020, just days before the Army
formally notified Vectrus of its award. AR 9221; ECF No. 26 at 11 (indicating that Tab
46.c of the administrative record contains “Updated Draft ENs (December 22, 2020)”).
Moreover, the MS/TA evaluation panel developed draft ENs specifically addressing the
weaknesses, deficiencies, and risks that culminated in the Army’s finding that IAP’s
proposal was not awardable. AR 9112–21. Nowhere does the administrative record
55
explain why the Army believed that IAP could not address those issues in response to the
ENs or in a final proposal revision as part of the discussions process. 44
Third, the entire point of discussions is to permit offerors “[a]t a minimum” to
address “deficiencies” and “significant weaknesses” (amongst other information not
relevant here). FAR 15.306(d)(3); see also Aviation Ground Equip. Corp., B-417711.2, 2021
CPD ¶ 183, 2021 WL 2109102, at *8 (Comp. Gen. May 3, 2021) (“The FAR makes clear one
of the purposes of discussions is to address deficiencies and significant weaknesses in
proposals.” (citing FAR 15.306(d)(3)). The FAR further “encourage[s]” the contracting
officer “to discuss other aspects of the offeror’s proposal that could, in the opinion of the
contracting officer, be altered or explained to enhance materially the proposal’s potential
for award.” FAR 15.306(d)(3). Thus, the FAR expressly distinguishes between, on the
one hand, “deficiencies” and “significant weaknesses” — both of which “the contracting
officer must . . . discuss” with offerors — and, on the other hand, “other aspects” of a
proposal that may potentially impact the chance for award. Id. (emphasis added).
The point is that the FAR’s operating premise is that providing offerors with an
opportunity to address “deficiencies” and “significant weaknesses” via discussions, by
definition, may “enhance materially the proposal’s potential for award.” Id. 45 The SSA
turned this premise on its head. Rather than engaging in discussions to see whether IAP
might improve its “potential for award” via the submission of a FPR, the SSA merely
assumed IAP could not do so, and then used that assumption to justify not engaging in
44The government asserts that “the evaluation teams’ understandings of the proposal evolved
and so, at the time the final evaluation reports and the SSDD were finalized, the benefit that the
draft evaluations notices might have provided had been diminished.” Def. MJAR at 35. The
government cites no support in the administrative record for that assertion and, indeed, the Court
concludes that the only such support is the SSA’s ipse dixit, which this Court rejects. In that
regard, the government asserts that “the SSA considered the draft evaluation notices in
determining that discussions were unnecessary,” id., but, again, neither the evaluation teams nor
the SSA nor any other document in the administrative record provides any reasoned explanation
for the conclusion that the evaluation notices would have proven ineffective in discussions.
45See also CACI Field Servs., Inc. v. United States, 13 Cl. Ct. 718, 731 (1987) (explaining that “one
purpose of discussions is to advise offerors within the competitive range of informational
deficiencies in their proposals so that they can be given an opportunity to satisfy the
government’s requirements” (quoting Furuno U.S.A., Inc., B-221814, 86-1 CPD ¶ 400, 1986 WL
63429, at *3 (Comp. Gen. Apr. 24, 1986)), aff’d, 854 F.2d 464 (Fed. Cir. 1988); Dynalantic Corp. v.
United States, 945 F.2d 416 (Fed. Cir. 1991) (“These discussions were held so that the agency could
advise the offerors of any deficiencies in their proposals and also of any major concerns of the
agency with the bids. Under this system, the offerors were to be given an opportunity to satisfy
the government’s requirements, and to resolve any uncertainties in the terms and conditions of
their proposals. The purpose of these discussions was to enable the government to get the most
advantageous contract possible.”).
56
discussions — an almost textbook illustration of circular logic.46 As the Court explained
above, however, the Army’s conclusion is a reasonable one only if there are facts
underlying its assessment that IAP could not alter the “apparent outcome of the source
selection decision.” AR 9409 (SSDD). But the Army points to no such data, analysis, or
rationale. The assumption that IAP could not win the procurement following discussions
(and the submission of a FPR) is just that — an assumption — which is an insufficient basis
for a conclusion to survive APA review.
At a minimum, the Court would expect the Army to explain why it bothered
drafting (and even updating) ENs that the Army did not believe IAP could address or,
having drafted them, what led the Army to believe that there was little to be gained by
transmitting them as part of discussions (and, then, accepting FPRs). This Court agrees
with IAP that there is nothing in the record supporting the government’s implicit
assertion that there was some inherent obstacle to IAP’s “providing further information
in its narrative or staffing matrix to resolve . . . and correct[] the Army’s initial
evaluation.” Pl. MJAR at 20.
Fourth, while the government points to the fact that the SSA determined that “there
is one offeror that offers the best value to the government” and thus “discussions are not
required,” Def. MJAR at 33 (quoting AR 9404), this Court rejects the implicit assertion
that a best value decision may substitute for a determination not to conduct discussions
where DFARS 215.306 applies. By definition, every contract award in a best value
procurement is premised upon a sound best value decision. The fact that an agency
arrives at a best value decision based upon a set of initial proposals cannot, standing
alone, support a decision not to engage in discussions — such an approach would nullify
DFARS 215.306. The government no doubt would respond that the SSA did not consider
the best value analysis in a vacuum but also “considered IAP’s unacceptability, as well
as the evaluations of each of the other offerors.” Def. MJAR at 33. But, as the Court
explained above, such a consideration — in terms of deciding whether to conduct
discussions — merely assumes that IAP (and potentially the other offerors) could not
have improved their potential for award. Again, there is no evidence or rationale in the
administrative record to support such a conclusion, and the Court rejects it.
Fifth, other documentation in the administrative record undermines the SSA’s
decision to select an awardee without discussions. Specifically, the Army’s Acquisition
Plan for the procurement at issue anticipated that the Army would conduct discussions.
AR 333 (detailing schedule providing for final proposal revisions, which follow
discussions pursuant to FAR 15.307). More significantly still, the Source Selection Plan
46The Court once again agrees with IAP: “The SSA’s stated premise turns DFARS 215.306 on its
head, and tellingly, neither the SSA’s paragraph in the SSDD nor any other record document
demonstrate that the Army understood and applied that regulation when proceeding to award
on initial proposals.” Pl. Resp. at 4–5.
57
(“SSP”) — a document upon which the SSA expressly relied in developing the SSDD, see
AR 9399 — demonstrates that the Army intended to make a competitive range
determination and conduct discussions. AR 4117–18. While the Court generally concurs
with the GAO’s view that an agency’s violation of an SSP is not actionable per se, 47 the
SSP document is part of the administrative record, and the Court may consider it in
deciding whether a particular agency decision is rational. See WellPoint Mil. Care Corp. v.
United States, 953 F.3d 1373, 1379 n.2 (Fed. Cir. 2020) (“We consider the SSP in evaluating
the rationality of the agency’s actions.”); USfalcon, Inc. v. United States, 92 Fed. Cl. 436,
453–55 (2010) (discussing DFARS and other Department of Defense procedures
governing SSPs, and concluding that “[b]ecause the SSA relies on the evaluators working
for him [or her] to follow source selection plan mandates, departures from the plan could
undermine the rationality of the ultimate source selection decision”). 48 The SSA, after
acknowledging the applicability of the SSP, never explained why she departed from the
plan here.
Sixth, the SSA used the incorrect lens in evaluating whether to conduct
discussions. The SSA concluded that “discussions are not required,” AR 9404, but that is
not the right standard. No party — and certainly not this Court — asserts that discussions
are required just because DFARS 215.306 governs a procurement. Rather, as explained in
47Epsilon Sys. Sols., Inc., B-409720, 2014 CPD ¶ 230, 2014 WL 3955222, at *6 (Comp. Gen. July 21,
2014) (“As stated above, the source selection plan was not provided to offerors nor was it
incorporated into the solicitation. Thus, because the source selection plan here is an internal
agency document that does not give rights to outside parties—contrary to the protester’s
suggestions otherwise—this protest ground is denied.” (citing Park Tower Mgmt. Ltd., B-295589,
2005 CPD ¶ 77, 2005 WL 924201, at *5 n.6 (Comp. Gen. Mar. 22, 2005) (denying challenge based
on alleged deficiency in the application of an agency’s source selection plan because such plans
are internal agency instruction and do not give outside parties any rights)).
48 See also USfalcon, 92 Fed. Cl. at 454 (“Thus, the failure of evaluators to follow the specific
procedures and techniques mandated by a source selection plan, to the prejudice of a protester,
could be evidence of an erroneous or biased evaluation.”); id. at 455 (“With these various ways in
which a source selection plan may be relevant to court review, it is little wonder that the source
selection plan is identified in our rules as among the ‘relevant core documents’ of the
administrative record which may be produced early to expedite a case.” (citing RCFC App. C,
¶ 22(b))); Kerr Contractors, Inc. v. United States, 89 Fed. Cl. 312, 328–29 (2009) (“A violation of a
Source Selection Plan would, however, constitute a significant error if it ‘deprived [a] plaintiff of
the opportunity to have its proposal considered fairly and honestly.’” (alteration in original)
(quoting United Int’l Investigative Servs., Inc. v. United States, 41 Fed. Cl. 312, 322 (1998))), aff’d, 374
F. App’x 979 (Fed. Cir. 2010); Sys. Application & Techs., Inc., v. United States, 100 Fed. Cl. 687, 718
(2011) (analyzing agency’s compliance with an SSP), aff’d, 691 F.3d 1374 (Fed. Cir. 2012); cf. CDA
Inv. Techs., Inc., B-272093, 97-1 CPD ¶ 102, 1996 WL 805036, at *3 (Comp. Gen. Sept. 12, 1996)
(concluding, based in part on an SSP, that “[a]lthough section M of the RFP does not specifically
include a factor for the evaluation of proposed subcontractors, such evaluation clearly would be
logically encompassed by the ‘technical qualifications’ evaluation factor”).
58
detail above, DFARS 215.306 instructs only that agencies “should conduct discussions” in
procurements exceeding $100 million. DFARS 215.306(c)(1) (emphasis added). The
problem is that the SSA’s formulation suggests that she believed the choice was only
between “shall” and “may.” Having determined that discussions were “not required,”
AR 9404 (emphasis added), the SSA apparently assumed she possessed “may”-level
discretion, when in fact the DFARS imposes a presumption in favor of discussions. As
the FAR makes clear, the absence of mandatory language (i.e., “shall”) does not mean that
agency discretion is total; put differently, “should” does not mean “shall,” but neither is
“should” synonymous with “may.” See FAR 2.101. 49
Accordingly, the Court does not hold that the Army lacked discretion to decline to
conduct discussions here; rather, just as in Oak Grove, 155 Fed. Cl. at 110, this Court
concludes only that the DFARS presumption favoring discussions must be overcome
with reasoned decision-making not reflected in the administrative record at issue.
Notably, neither the SSAC report nor the SSDD ever mentions the DFARS provision. See
id. (“DFARS 215.306 quite clearly takes precedence in acquisitions exceeding $100 million.
If anything, then, the [a]gency got the proper framework completely backwards because
the DFARS provision makes conducting discussions the default absent a justification to
the contrary.” (citing Dell Fed. Sys., 906 F.3d at 995–96)). Because “the default rule in
acquisitions exceeding $100 million favors discussions,” the Army’s task is “not to justify
why ‘discussions are necessary’” — or, as the SSA put it here, required — “but rather why
they are unwarranted.” Id.
In sum, the administrative record, even generously interpreted, does not
demonstrate that “the [Army] ever considered during the procurement the requirement
of DFARS 215.306 that ‘discussions normally are to take place in these types of
acquisitions.’” Id. (quoting Dell Fed. Sys., 906 F.3d at 995–96). At worst, the Army appears
to have recognized the required DFARS preference for discussions — at least implicitly, as
reflected in the SSP, AR 4117–18 — but then ignored the DFARS provision in practice. 50
49DynCorp International, LLC v. United States addressed only the meaning of the word “preferred,”
with the Federal Circuit explaining that it connotes “more ‘should’ than ‘shall.’” 10 F.4th at 1311.
In DynCorp, the Federal Circuit interpreted a different FAR provision where “the FAR drafters’
use of ‘preferred’ and ‘may’ . . . is consistent with the choice of technique being committed to a
contracting officer’s discretion.” Id. at 1313 (emphasis added). DFARS 215.306, in contrast, does
not employ the operative word “may.” In Dell Federal Systems, the Federal Circuit specifically
addressed the DFARS provision and concluded that “should” means that “discussions normally
are to take place in these types of acquisitions.” 906 F.3d at 995–96 (noting “the undisputed
procurement defect of originally failing to conduct pre-award discussions, as reasonably
interpreted by the agency to be required by the applicable regulations”).
50The Court agrees with IAP that “at no point does the Army even acknowledge the DFARS
215.306 presumption that discussions are the expected course of action for this significant and
59
3. The Court Agrees with the GAO’s General Interpretation of
DFARS 215.306, But Rejects the GAO’s SAIC Test
Vectrus, for its part, relies primarily and extensively on the GAO’s decision in
Science Applications International Corp. (SAIC), B-413501, 2016 CPD ¶ 328, 2016 WL 6892429(Comp. Gen. Nov. 9, 2016), arguing that this Court must defer to the SSA’s determination
in this procurement not to engage in discussions because the SSA satisfied the SAIC
“3-part-test.” Intv. MJAR at 23–28 (discussing SAIC); Intv. Resp. at 9–11 (same).
Although the Court rejects the GAO’s 3-part-test as not capturing the DFARS
presumption favoring discussions, the Court begins with points of agreement with the
GAO’s SAIC decision. The Court agrees with the GAO that DFARS 215.306(c) “provides
a basis . . . to review the agency’s actions here.” SAIC, 2016 WL 6892429, at *8. The Court
further agrees with the GAO’s general exposition of the DFARS provision:
[F]ailure to hold discussions in high-dollar value, more
complex source selections has led to misunderstandings of
Government requirements by industry and flaws in the
Government’s evaluation of offerors’ proposals, leading to
protests that have been sustained, and ultimately extending
source-selection timelines. DoD proposes to decrease the
possibility of this outcome by making such discussions the
default procedure for source selections for procurements at or
above $100 million. However, use of the term “should,” as
defined in FAR part 2, provides that the expected course of
action need not be followed if inappropriate for a particular
circumstance.
SAIC, 2016 WL 6892429, at *8 n.6 (alteration in original) (emphasis added) (quoting
Defense Federal Acquisition Regulation Supplement; Discussions Prior to Contract
Award (DFARS Case 2010-D013), 75 Fed. Reg. 71,647, 71,648 (Nov. 24, 2010)).
Where the Court parts ways with the GAO, however, is with regard to its
formulation of a “3-part” or “three factor” test (as Vectrus and the government
respectively describe it). See Def. MJAR at 32; Def. Resp. at 14; Intv. MJAR at 23–24; Intv.
Resp. at 9. The test is derived from the GAO’s following summary of its precedent:
We previously have found an agency’s decision not to
conduct discussions to be reasonable where the record
showed [1] there were deficiencies in the protester’s proposal,
complex DoD procurement, which the Army itself valued at more than $1 billion.” Pl. MJAR at
19.
60
[2] the awardee’s proposal was evaluated as being technically
superior to the other proposals, and [3] the awardee’s price
was reasonable. See Richard M. Milburn High Sch., B-277018,
Aug. 19, 1997, 97–2 CPD ¶ 53 at 6; Int’l Data Prods., Corp. et al.,
B-274654 et al., Dec. 26, 1996, 97–1 CPD ¶ 34 at 10–11; Stabro
Labs., Inc., B-256921, Aug. 8, 1994, 94–2 CPD ¶ 66 at 2, 5.
SAIC, 2016 WL 6892429, at *9. The problem the Court has with that approach is evident
from the very next line in the SAIC decision: “Although those cases pre-date [DFARS
215.306(c)], we find the principle applicable here.” Id. (emphasis added).
The Court simply does not understand how that SAIC test, derived from cases that
predate DFARS 215.306 — and thus could not possibly have applied a regulation
specifying a “default procedure” — should govern a procurement to which the DFARS
provision applies. Indeed, those earlier GAO decisions all assume that there is no default
rule favoring discussions and that an agency’s discretion to decline to conduct
discussions is all but plenary 51 — as if the DFARS provision’s “operative word,” to use
the GAO’s terminology, were “may” and not “should.” See, e.g., Int’l Data Prod., B-274654,
1996 WL 761964, at *8 (holding that “the burden is on the offeror to submit an initial
proposal that adequately demonstrates its merits” and that “[g]iven that the agency
received several other proposals that demonstrated significantly greater merit, and given
that the agency was able to accept one of those offers without discussion, we have no
basis to disagree with the [agency]’s actions”). Contrary to International Data Products,
Corp., the DFARS standard clearly requires more of an agency than merely showing that
it “was able to accept . . . [an] offer[] without discussion.” Id. In sum, the SAIC decision
correctly explained DFARS 215.306 in general, but the GAO did not apply it.
Although the GAO’s three factor test in SAIC may make sense outside of DFARS
215.306, those factors swallow the DFARS 215.306 presumption whole. The defect in
SAIC’s analysis — and the GAO’s application of DFARS 215.306 in practice — is that the
second two SAIC considerations are nothing more than the sort of typical findings
undergirding nearly every best value decision. That means the critical factor in SAIC is
the first one: “deficiencies in the protester’s proposal.” SAIC, 2016 WL 6892429, at *9. 52
51Indeed, the GAO in SAIC expressly noted that “[i]n each published decision where [the GAO]
has addressed [DFARS 215.306], it was found inapplicable to the procurement under protest, and,
thus, we did not review the agency’s actions under the regulation.” SAIC, 2016 WL 6892429,
at *8 n.7.
52The Court agrees with IAP’s sentiment that “[i]t is no mystery why Defendants are so keen to
invoke the GAO’s SAIC test because the first element of that test focuses on whether there are
deficiencies assigned to the protester’s proposal.” Pl. Resp. at 3. IAP is correct, however, that
“[o]bviously, the existence of a deficiency does not preclude discussions.” Id. Thus, as IAP
argues, the correct “question for this Court is: given the record and the DFARS 215.306
61
But where a plaintiff challenges an agency’s decision not to conduct discussions under
DFARS 215.306, the agency will have, by definition, assessed the plaintiff’s proposal with
deficiencies (or significant weaknesses) — because the very point of discussions is to
address such findings. See FAR 15.306(d)(3) (discussions “must” include “deficiencies,
significant weaknesses, and adverse past performance information to which the offeror
has not yet had an opportunity to respond”). In contrast, where an agency has not
assessed a proposal with a deficiency or significant weakness, the government is not
required to engage in discussions with that offeror in any event. JWK Int’l Corp. v. United
States, 279 F.3d 985, 988 (Fed. Cir. 2002) (“aside from areas of significant weakness or
deficiency, the contracting officer need not discuss areas in which a proposal may merely
be improved”). That is a long way of saying that SAIC’s three factor test would all but
swallow the DFARS provision, effectively reading the operative term “should” out of the
regulation, replacing it with “may,” despite those terms’ having different definitions.
See FAR 2.101. Accordingly, the Court declines Vectrus’s invitation to follow SAIC’s three
factor test and, in effect, to disregard DFARS 215.306.
In SAIC, the GAO further acknowledged that it “generally does not review an
agency’s decision to make award without conducting discussions.” SAIC, 2016 WL
6892429, at *7. That is because, according to the GAO, “there are ‘no statutory or
regulatory criteria specifying when an agency should or should not initiate discussions.’”
Id. (quoting Trace Sys., Inc., B-404811.4, 2011 CPD ¶ 116, 2011 WL 2321837, at *4 (Comp.
Gen. June 2, 2011)). That the cases upon which SAIC relies recognize an agency’s virtually
unfettered discretion to decide whether to conduct discussions is hardly surprising given
that they do not involve the DFARS provision at issue here. What is surprising, however,
is that the GAO continues to apply such decisions in cases involving DFARS 215.306 even
while acknowledging that the regulation requires more.
The government similarly argues that the Court of Federal Claims’ decision in Dell
Federal Systems “embraced the GAO’s [SAIC] test for determining the reasonableness of
the agency’s decision not to conduct discussions,” Def. MJAR at 32 (citing Dell Fed.
Sys., L.P. v. United States, 133 Fed. Cl. 92 (2017), rev’d, 906 F.3d 982 (Fed. Cir. 2018)), 53 but
the trial court’s decision must give way to the Federal Circuit. In that regard, the Federal
Circuit in Dell Federal Systems “embraced,” if anything, only the first part of the GAO’s
presumption, whether the Army made a rational decision to deviate from the DFARS-presumed
path of discussions.” Id.53 Def. Resp. at 16 (arguing that “[t]he SSA’s conclusions satisfy GAO’s SAIC test”).
62
SAIC decision — the part of SAIC generally interpreting DFARS 215.306, with which this
Court registered its agreement, supra — and not the 3-part-test specifically. 54
More significantly still, an examination of the Federal Circuit’s decision in Dell
Federal Systems demonstrates that the same flaws the Army had identified in that
procurement apply with equal force to the one at issue here:
Had the Army conducted pre-award discussions, several of
the lower-priced offerors deemed unacceptable—either as a
result of ambiguous Solicitation requirements or otherwise—
might have revised their initial proposals, which then might
plausibly have been found technically acceptable. Opening
discussions with all offerors . . . is a reasonable vehicle to
allow offerors to propose compliant equipment and modify
prices accordingly. We determine that the corrective action
of conducting discussions is rationally related to the
undisputed procurement defect of originally failing to conduct
pre-award discussions, as reasonably interpreted by the agency to
be required by the applicable regulations, in the first instance.
Dell Fed. Sys., 906 F.3d at 996 (emphasis added) (citations omitted).
Just as the Federal Circuit agreed with the Army’s assessment in Dell Federal
Systems that discussions were effectively “required by the applicable regulations” —
because “the lower-priced offeror[] deemed unacceptable . . . might have revised [its]
initial proposal[], which then might plausibly have been found technically acceptable”
and awardable, id. — the administrative record in this case provides no support for the
contrary assumption the Army made regarding IAP’s proposal, see Oak Grove, 155 Fed. Cl.
54 In particular, the Federal Circuit discussed SAIC as follows:
FAR 2.101 defines “should” to mean “an expected course of action
or policy that is to be followed unless inappropriate for a particular
circumstance,” and the GAO has applied FAR 2.101 to interpret
DFARS 215.306(c)(1). See Sci. Applications Int’l Corp. (SAIC), No.
B-413501, 2016 WL 6892429, at *8 (Comp. Gen. Nov. 9, 2016)
(finding, in a case of first impression by the GAO, that DFARS
215.306(c)(1) is reasonably read to mean that “discussions are the
expected course of action in [Department of Defense] procurements
valued over $100 million” (emphasis added)).
Dell Fed. Sys., 906 F.3d at 996. The Federal Circuit did not adopt SAIC’s three-part test upon which
the government and Vectrus rely.
63
at 109 (holding that a “conclusory statement is plainly insufficient to satisfy DFARS
215.306”).
4. The Government’s Failure to Follow DFARS 215.306 Constitutes
Prejudicial Error
Relying upon Quantico Tactical Inc. v. United States, 150 Fed. Cl. 566 (2020), aff’d,
835 F. App’x 598 (Fed. Cir. 2021), the government contends that “an agency is not
obligated to conduct discussions with a technically unacceptable offeror.” Def. MJAR at
34; see also Intv. MJAR at 33. That is a generally uncontroversial proposition, but critically
assumes the agency has made a competitive range determination. Thus, if anything,
Quantico Tactical illustrates the Army’s procedural error in this procurement, as well as
the prejudice to IAP. In that case, plaintiffs “challenge[d] their exclusion from the
competitive range,” and this Court found that the contracting officer reasonably
“concluded that Quantico was not among the most highly rated offerors,” that Quantico
was unable “to meet all of the technical subfactors,” and that “[n]o offerors with such a
rating were included in the competitive range, which is consistent with the Source
Selection Plan’s instruction that unacceptable technical factors were unawardable.”
Quantico Tactical, 150 Fed. Cl. at 567, 572. This Court agrees with Judge Bruggink’s
decision in Quantico Tactical that an “agency is well within its rights to be selective in
setting the competitive range, a determination that is owed a great deal of deference
regardless of the number of offerors and is, in any event, a result clearly spelled out in
the solicitation and source selection plan.” Id. at 572. In this case, however, the Army made
no competitive range determination and that failure, itself, was inconsistent with the SSP, as
explained above. 55
To put a fine point on the problem posed by a comparison of the facts of this case
to those at issue in Quantico Tactical, this Court has no idea whether IAP would have been
included in the competitive range (or not), assuming the Army had proceeded with
discussions after properly considering the DFARS presumption favoring them.
Employing the proper lens of DFARS 215.306, the SSA in this case still could have:
(1) made a competitive range determination that included IAP; (2) made a competitive
range determination that excluded IAP; or (3) perhaps supported a decision not to
conduct discussions at all (i.e., with a more robust and rational analysis or with additional
facts absent from this administrative record). 56 But, even if the SSA reasonably had
55See USfalcon, 92 Fed. Cl. at 454 (explaining that “if no reason is given for departing from a source
selection plan (or the departure is not highlighted to allow the SSA to articulate a reason), a
departure could be due to error,” or “to benefit a particular offeror[,] [p]articularly when the SSA
bases his ultimate decision not on the proposals themselves but on briefings in which the ratings
are presented as the inputs for his calculus, an unjustified departure from a source selection plan
may rob this ultimate decision of its rational basis” (footnote omitted)).
56 See discussion infra Section V.I.
64
excluded IAP from the competitive range, IAP would have had the opportunity to
challenge that decision. In other words, the contracting officer had to make such a
decision in the first instance, and IAP could then test that decision against the
administrative record. The Court cannot merely assume that the contracting officer
would have reached a particular conclusion in order to declare harmless error (or no
prejudice) in favor of the government and Vectrus.
Put differently, the fact that a correct application of DFARS 215.306 may have kept
IAP in the competition is sufficient to demonstrate prejudice. As the Federal Circuit
acknowledged in Dell Federal Systems, “[h]ad the Army conducted pre-award discussions,
several of the lower-priced offerors deemed unacceptable—either as a result of
ambiguous Solicitation requirements or otherwise—might have revised their initial
proposals, which then might plausibly have been found technically acceptable.” 906 F.3d
at 996. Such a finding, equally applicable here, supports this Court’s determination that
the Army’s error is prejudicial to IAP. See Tinton Falls Lodging Realty, LLC v. United States,
800 F.3d 1353, 1360 (Fed. Cir. 2015) (“[A]ll a protester must establish to demonstrate
prejudice is that it has a substantial chance of receiving the contract—that it is a qualified
bidder and could compete for the contract.” (emphasis added)). The evaluation results of the
initial proposals are not dispositive. Id. (“The fact that [the plaintiff] did not submit the
lowest-priced bid of its affiliated entities during the initial bidding process does not
preclude it from having a substantial chance of winning a hypothetical reopened bid for
that contract . . . .”); see also WaveLink, 154 Fed. Cl. at 283 (discussing prejudice standards);
Centerra Grp., LLC v. United States, 138 Fed. Cl. 407, 421 (2018) (finding prejudice and
noting that the “technical evaluation, price realism analysis, and best value determination
would all have been revised in a but-for world”).
The government’s position is that “even if [the Army] had conducted discussions,
it would not have done so with IAP.” Def. MJAR at 34 (citing AR 9885–86). To support
that assertion, the government relies upon debriefing materials that are nothing more
than a post hoc guess about what the Army might have done but never did here —
establish a competitive range that excluded IAP. Given that there is no contemporaneous
evidence in the administrative record demonstrating what the competitive range
determination would have been, the Court will not rely on the debriefing materials to
make some sort of harmless error guess in favor of the government. See Rig
Masters, Inc. v. United States, 70 Fed. Cl. 413, 424 (2006) (“materials [that] do not relate to
events that transpired during the procurement process” but instead “involve the debriefing
that occurred only after the parties received notification that the [government] had
chosen a contractor,” are “post hoc rationalizations” that this Court will not review); Fort
Carson Support Servs., 71 Fed. Cl. at 591–92 (“But while such debriefings might, on
occasion, yield useful party admissions, any new explanations of the evaluation process
made post-award are the sort of ‘post hoc rationalizations’ that courts reject when offered
by the government in bid protest cases.”); USfalcon, 92 Fed. Cl. at 464 (“Courts must
review such non-contemporaneous documents with care, to make sure that the
65
statements are a reflection of the views held by the evaluators when the evaluation
occurred rather than ‘“post hoc” rationalizations.’” (quoting Citizens to Pres. Overton
Park, Inc. v. Volpe, 401 U.S. 402, 419 (1971))); Braseth Trucking, LLC v. United States, 124 Fed.
Cl. 498, 509 (2015) (a “debriefing letter . . . is a post hoc explanation of the [agency’s]
decision . . . and therefore entitled to less weight”).
Accordingly, even if the evidentiary value of the debriefing material is not zero, it
is not sufficiently probative for the government to demonstrate harmless error. The Court
further notes that the government has the discretion to include even technically
unacceptable proposals in the competitive range. Aviation Ground Equip., 2021 WL
2109102, at *8 (“[T]he determination whether a proposal should be included [in the
competitive range] is principally a matter within the sound judgment of the procuring
agency. While exclusion of technically unacceptable proposals is permissible, it is not
required.” (citations omitted)). In that vein, the GAO has explained:
The FAR makes clear one of the purposes of discussions is to
address deficiencies and significant weaknesses in proposals.
FAR 15.306(d)(3). While the agency found numerous
deficiencies in [the awardee]’s initial proposal, [the awardee]
submitted a lengthy and complete—albeit technically
unacceptable—initial proposal prior to the time for receipt of
proposals. In this regard, we have previously concluded
agencies may reasonably open discussions where initial
proposals do not provide all information needed to evaluate
the proposals. Agencies have significant discretion to select
proposals for inclusion in the competitive range . . . .
Aviation Ground Equip., 2021 WL 2109102, at *8 (citation omitted). Thus, the Court will
not assume that the Army necessarily would have excluded IAP from the competitive
range. 57
Similarly, while Judge Bruggink’s decision in Quantico Tactical — again, a decision
upon which the government relies — correctly explains that while FAR 15.306
“contemplates, if not requires, agencies taking deficiencies and weaknesses into account
in making the competitive range determination,” it is also the case that “FAR part 15
57 For example, given the relatively small number of proposals and IAP’s lower proposed cost,
the Army may have decided that any efficiency gains from eliminating a single proposal would
be minimal. See FAR 15.306(c)(2)–(3) (efficiency considerations). The Court, in that regard,
further agrees with IAP that it is difficult to understand how the Army could “credibly claim that
there was no meaningful benefit to be gained from conducting discussions to save potentially
hundreds-of-millions.” Pl. Resp. at 7; cf. Level 3 Commc’ns, LLC v. United States, 129 Fed. Cl. 487,
507 (2016) (“[T]he court has determined that the CO’s decision not to enter into negotiations in
light of the significant price disparity was arbitrary, capricious, and an abuse of discretion.”).
66
establishes that the steps in a negotiated procurement (competitive range determination
and discussions) be taken seriatim and that they be independent of one another.” 150 Fed. Cl.
at 573 (emphasis added). Because “[t]he purpose of the competitive range determination,
as made clear in FAR part 15.306, is to winnow the number of offerors with whom
discussions are required . . . , the former cannot anticipate the latter, otherwise its purpose
would be frustrated.” Id.
The undersigned agrees with Judge Bruggink, but his observation cuts both ways:
just as a plaintiff eliminated from the competitive range cannot claim that it should have
been included in the competitive range based solely on its projected outcome of
discussions, the government cannot be permitted to speculate about a competitive range
determination it never made or employ mere assumptions about the outcome of
discussions to avoid making a competitive range determination in the first instance.
Again, the Army’s failure here to perform the correct analysis or to reach a reasonable
conclusion — at least given the administrative record as it currently stands — constitutes
prejudicial error. See Dell Fed. Sys., 906 F.3d at 996 (explaining that offerors “deemed
unacceptable” may improve their competitive position via discussions); see also Info. Tech.,
316 F.3d at 1319 (holding that, to establish prejudice, a plaintiff must only demonstrate
that its “chance of securing the award must not have been insubstantial,” and that a
plaintiff demonstrates prejudice where the agency “improperly failed to conduct
‘discussions’ . . . [and] if it had, [the plaintiff] would have been able to cure deficiencies
in its bid”). 58
Next, Vectrus argues that any failure to conduct discussions is harmless error
because the Solicitation, by its terms, precluded the Army from including IAP in the
competitive range in any event. Intv. Resp. at 21; see also Def. Resp. at 15. Relying upon
2M Research Services, LLC v. United States, 139 Fed. Cl. 471, 477 (2018), Vectrus asserts that
exclusion from the competitive range “is mandatory where the solicitation terms
preclude the agency from advancing initial proposals that fail to achieve a [specified]
minimum adjectival rating.” Intv. Resp. at 21. According to Vectrus, IAP could not have
been included in the competitive range because the Solicitation provided that proposals
with less than an “Acceptable” rating on Subfactor 2 would “not move forward in the
58The government invokes the prejudice formulation from Data General Corp. v. Johnson, 78 F.3d
1556, 1562 (Fed. Cir. 1996) — “that the appropriate standard is that, to 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” (emphasis
added). See Def. Resp. at 17. The Court here finds such a “reasonable likelihood” is present here
because a correct application of the DFARS provision may result in IAP’s being included in the
competitive range for discussions; the subsequent submissions of FPRs means that any offeror
may still win the procurement. See Data Gen. Corp., 78 F.3d at 1562. In any event, IAP “does not
have the burden of showing that it would have received the contract.” Cyios Corp. v. United States,
122 Fed. Cl. 726, 736 (2015) (citing Data Gen. Corp., 78 F.3d at 1562), aff’d, 674 F. App’x 1016 (Fed.
Cir. 2017).
67
source selection process.” Id. (quoting AR 3113–14 (§ M.1.A)). That is not what the
Solicitation says.
Section M.1.A of the Solicitation provides as follows:
To receive consideration for award, a rating of no less than
“Acceptable” must be achieved for the [o]fferor’s Mission
Support/Technical Approach Factor. Offerors with
individual sub-factor ratings of less than “Acceptable” on
Sub-factors 1 and 2, or with an individual [s]ub-factor rating
less than “Pass” on Sub-factors 3 and 4 will not move forward
in the source selection process, and will not be considered for
award.
AR 3113–14 (emphasis added). Vectrus’s argument relies upon an out-of-context excerpt
of that language that omits the operative phrase “less than ‘Acceptable’ on Sub-factors 1
and 2” — including, critically, the conjunctive word “and.” AR 3114 (§ M.1.A) (emphasis
added). In order for an offeror to “not move forward in the source selection process” —
whatever that phrase may mean 59 — an offeror must receive a rating of less than
“Acceptable” on both “Subfactors 1 and 2.” AR 3113–14 (emphasis added).
There is just no other way to read the Solicitation. See Middleton v. Shinseki, 727
F.3d 1172, 1178 (Fed. Cir. 2013) (“use of the conjunctive ‘and’ . . . must [be] give[n]
meaning”); Watson v. Dep’t of Navy, 262 F.3d 1292, 1299 (Fed. Cir. 2001) (explaining that
“[t]he inclusion of the conjunctive ‘and’ in [the regulation] clearly indicates that all three
[of the enumerated] criteria must be demonstrated”); cf. Medgraph, Inc. v. Medtronic, Inc.,
843 F.3d 942, 950 (Fed. Cir. 2016) (“Because the written description does not compel a
disjunctive construction for ‘and,’ the claim term should be given its plain and ordinary
meaning.”). In this case, IAP did not receive less than an “Acceptable” rating in both
“Sub-factors 1 and 2” and, thus, this provision does not apply. In contrast, Vectrus’s
reading would improperly require this Court to replace the word “and” with “or.”
5. IAP’s Argument is Timely
Finally, Vectrus — but not the government — contends that “because the RFP
terms conflicted with the DFARS 215.306 standard as expressed by this [C]ourt, any
challenge based on [the Army] having flipped the starting point [for] the analysis under
59Although the Solicitation language upon which Vectrus relies for its argument plausibly refers
to “mov[ing] forward” into the competitive range for the purposes of discussions, the Solicitation
language also may refer simply to being considered in the final best value tradeoff calculus. The
language is not sufficiently precise, and in any event, there is no need for the Court to decide the
definitive meaning of the phrase.
68
DFARS 215.306 . . . is untimely.” Intv. Resp. at 12–13 (arguing for the application of Blue &
Gold Fleet, L.P. v. United States, 492 F.3d 1308, 1313 (Fed. Cir. 2007)). Vectrus argues, in
particular, that the Solicitation’s language here — “informing offeror[s] that discussions
would be conducted only if the contracting officer determine[s] discussions ‘are
necessary’” 60 — is materially different than the language at issue in Oak Grave, wherein
this Court rejected several versions of a Blue & Gold timeliness argument. Oak Grove, 155
Fed. Cl. at 110–13.
Just as this Court rejected identical arguments in Oak Grove, the Court does so here,
as well. Indeed, on this issue, the Court concurs with the GAO, which likewise rejected
the very same argument in SAIC:
[T]he agency also argues that because the solicitation
included a provision notifying offerors of the agency’s intent
to make award without discussions, SAIC’s claim regarding
discussions is untimely. We disagree. The solicitation
provision cited by the agency also stated that the agency
reserved the right to open discussions, as did a second,
separate solicitation provision. Accordingly, SAIC was not
required to raise its claim until it became evident that the
agency had, in fact, decided not to conduct discussions.
SAIC, 2016 WL 6892429, at *8 n.8 (citations omitted); see also Chenega Healthcare
Servs., LLC v. United States, 138 Fed. Cl. 644, 653 n.5 (2018) (discussing SAIC and
concluding that such a “waiver argument has been rejected by the GAO and must be
rejected here as well”). 61
As was the case in SAIC, the Solicitation at issue here similarly “reserve[d] the
right to hold discussions.” AR 3952 (§ L.5.1.A); AR 3113 (§ M.1.A.). More significantly,
the “if necessary” Solicitation language upon which Vectrus relies, AR 3952 (§ L.5.1.A),62
does not alter the Court’s analysis because that language adds nothing to — and is simply
borrowed from — FAR 52.215-1, which was incorporated into the Solicitation. See AR
3123 (§ M.5) (incorporating FAR 52.215-1 by reference); FAR 52.215-1(f)(4) (providing that
the agency “reserves the right to conduct discussions if the Contracting Officer later
determines them to be necessary” (emphasis added)). That same FAR provision was at
60Intv. Resp. at 12 (emphasis added) (citing AR 3952 (§ L.5.1.A), 3956 (§ L.7.2), 3113 (§ M.1.A.),
3123 (§ M.5)).
61Had IAP challenged the Solicitation in a pre-award protest, the government no doubt would
have argued that such an action is not ripe.
62 See also AR 3113 (§ M.1.A) (“Should the Contracting Officer determine discussions are
necessary[,] the [g]overnment reserves the right to hold them.” (emphasis added)).
69
issue in both Oak Grove and SAIC, having been included in the solicitations at issue in
those cases just as it is in the Solicitation here. Oak Grove, 155 Fed. Cl. at 110–13; SAIC,
2016 WL 6892429, at *2. Thus, contrary to Vectrus’s assertion, there is no material
difference between the Solicitation’s language here and that at issue in Oak Grove and
SAIC. Indeed, neither the government nor the GAO noted any timeliness issue with IAP’s
arguments based upon DFARS 215.306 in this matter. See IAP Worldwide Servs., 2021 WL
2766441, at *11 (rejecting DFARS 215.306 protest grounds on the merits); AR 12142–43.
Once again, the Court emphasizes that the government argued against the
application of Blue & Gold in Dell Federal Systems, and the Federal Circuit identified no
such timeliness problem in that case. Oak Grove, 155 Fed. Cl. at 111 (explaining that “the
government in Dell Federal Systems took the position that Blue & Gold was inapplicable
(and not merely because the government’s decision to engage in discussions pursuant to
DFARS 215.306 was part of corrective action)” (citing Reply and Response Brief of
Defendant at 9, Dell Fed. Sys., L.P. v. United States, 133 Fed. Cl. 92 (2017) (Nos. 17-465C,
17-473C), ECF No. 129)).
* * * *
The Court concludes that IAP has succeeded on the merits of Count I of the
amended complaint. The Court notes that it is not imposing the DFARS provision on the
Army; rather, the Department of Defense itself promulgated that provision to restrict the
discretion of its component agencies — as interpreted by the government (before the
Federal Circuit in Dell Federal Systems). Whether or not the government likes the rules it
has imposed upon itself, they are not for the Court to change. United States ex rel. Accardi v.
Shaughnessy, 347 U.S. 260, 267–68 (1954) (finding that agencies are bound to follow their
own rules, even self-imposed procedural rules that limit otherwise discretionary
decisions); see also Lyles v. Dep’t of the Army, 864 F.2d 1581, 1583 (Fed. Cir. 1989) (“The
Army must abide by its own regulation, even if it is more rigorous than necessary.”).
H. The Army’s Best Value Determination Was Rational (Count VIII)
IAP’s final challenge to the procurement at issue is that the Army conducted an
“irrational” best value determination because IAP was “excluded . . . from the tradeoff
decision” due to the “unequal and irrational deficiency” assigned to IAP for Subfactor 2.
Pl. MJAR at 48–49; Am. Compl. ¶¶ 281–282; Pl. Resp. at 2.
Because IAP’s best value challenge rests entirely on the premise that the Army’s
evaluation of Subfactor 2 was arbitrary and capricious, Count VIII must fail. As the Court
explained above, the Army’s decision to award IAP a deficiency on Subfactor 2 was
reasonable. See discussion supra Section V.A. Accordingly — and putting aside that
discussions, FPRs, and a new round of evaluations would moot the best value decision
here — the Court rejects IAP’s claim that the Army conducted a flawed best value
70
determination based on the offerors’ initial proposals. In that regard, the Court next turns
to whether the procurement decision at issue should be enjoined.
I. The Court’s Record Requires Further Development Regarding an
Appropriate Remedy
In an action pursuant to 28 U.S.C. § 1491(b)(2), this Court “may award any relief
that the court considers proper, including declaratory and injunctive relief except that
any monetary relief shall be limited to bid preparation and proposal costs.” See CNA
Corp. v. United States, 83 Fed. Cl. 1, 10 (2008) (holding that “this court has discretion to
fashion awards that include a mixture of injunctive relief and bid preparation and
proposal costs”), aff’d sub nom. The CNA Corp. v. United States, 332 F. App’x 638 (Fed. Cir.
2009).
Where a plaintiff has succeeded on the merits, the trial court is not required to
issue injunctive relief. Tennessee Valley Auth. v. Hill, 437 U.S. 153, 193 (1978) (“[A] federal
judge sitting as a chancellor is not mechanically obligated to grant an injunction for every
violation of law.”). Rather, a plaintiff bears the burden of demonstrating that this Court
should exercise its discretion to issue injunctive relief. eBay Inc. v. MercExchange, L.L.C.,
547 U.S. 388, 391 (2006) (citing cases and noting that “[t]he decision to grant or deny
permanent injunctive relief is an act of equitable discretion by the district court,
reviewable on appeal for abuse of discretion”). 63 In PGBA, LLC v. United States, for
example, the Federal Circuit concluded that the Tucker Act, as amended by ADRA,
28 U.S.C. § 1491(b)(4), “only incorporates the standard of review of section 706(2)(A) [of
the APA] and therefore does not deprive a court of its equitable discretion in deciding
whether injunctive relief is appropriate.” 389 F.3d 1219, 1225–26 (Fed. Cir. 2004). The
Federal Circuit “thus h[e]ld that, in a bid protest action, section 1491(b)(4) does not
automatically require a court to set aside an arbitrary, capricious, or otherwise unlawful
contract award.” Id. at 1226 (reasoning that “[t]his construction is consistent with the
language of 28 U.S.C. § 1491(b)(2), which, through use of the permissive ‘may,’ provides
63 The Supreme Court in eBay formulated the injunctive relief factors as follows:
According to well-established principles of equity, a plaintiff
seeking a permanent injunction must satisfy a four-factor test
before a court may grant such relief. A plaintiff must demonstrate:
(1) that it has suffered an irreparable injury; (2) that remedies
available at law, such as monetary damages, are inadequate to
compensate for that injury; (3) that, considering the balance of
hardships between the plaintiff and defendant, a remedy in equity
is warranted; and (4) that the public interest would not be disserved
by a permanent injunction.
eBay Inc., 547 U.S. at 391.
71
the Court of Federal Claims with discretion in fashioning relief”); see also Dellew Corp. v.
United States, 108 Fed. Cl. 357, 375 (2012) (“success on the merits does not entitle a
protester to an injunction”).
In deciding whether “a permanent injunction is warranted,” this 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 to
the respective parties favors the grant of injunctive relief, and (4) the public interest is
served by a grant of injunctive relief.” Centech Grp., 554 F.3d at 1037 (citing PGBA, 389
F.3d at 1228–29). “[P]roving success on the merits is a necessary element for a permanent
injunction,” but “[w]e may balance the remaining three Centech permanent injunction
factors—irreparable harm, balance of hardships, and public interest—when deciding
whether to grant or deny injunctive relief[.]” Dell Fed. Sys., 906 F.3d at 999 & n.13.
The Supreme Court has rejected the application of any categorical rule favoring
either the grant or denial of injunctive relief in a particular case. eBay Inc., 547 U.S. at 393–
94 (holding that “[t]o the extent that the District Court adopted such a categorical rule,
then, its analysis cannot be squared with the principles of equity adopted by Congress,”
and that “[j]ust as the District Court erred in its categorical denial of injunctive relief, the
Court of Appeals erred in its categorical grant of such relief”). In each case, a trial court
must exercise its judgment and discretion — given the specific facts — in deciding
whether to issue an injunction. Indeed, notwithstanding that a cause of action pursuant
to 28 U.S.C. § 1491(b) may be “generally recognized to serve the public interest,” there is
“no basis for concluding that [a plaintiff] is relieved of showing irreparable harm and
other usual prerequisites for injunctive relief.” Rondeau v. Mosinee Paper Corp., 422 U.S.
49, 65 (1975). Echoing the principle that there are no presumptions favoring injunctive
relief, Judge Allegra explained the basic calculus:
While it is oft-stated that 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), that balancing argument only goes so far, for it is
axiomatic that the basis for a grant of permanent injunctive
relief “has always been irreparable harm and inadequacy of
legal remedies.” [Rondeau, 422 U.S. at 57 (quoting Beacon
Theatres, Inc. v. Westover, 359 U.S. 500, 506–07 (1959))].
Reema Consulting Servs., Inc. v. United States, 107 Fed. Cl. 519, 530 (2012).
Accordingly, and as the Supreme Court has explained in a different context, “[i]n
selecting a remedy[,] the lower courts should exercise ‘the sound discretion which guides
the determinations of courts of equity,’ keeping in mind the role of equity as ‘the
instrument for nice adjustment and reconciliation between the public interest and private
72
needs as well as between competing private claims.’” Mills v. Elec. Auto-Lite Co., 396 U.S.
375, 386 (1970) (quoting Hecht Co. v. Bowles, 321 U.S. 321, 329–30 (1944)). Again, even
when the government’s compliance with law is at stake, there is no presumption favoring
the issuance of injunctive relief:
In brief, the bases for injunctive relief are irreparable injury
and inadequacy of legal remedies. In each case, a court must
balance the competing claims of injury and must consider the
effect on each party of the granting or withholding of the
requested relief. Although particular regard should be given
to the public interest, “[t]he grant of jurisdiction to ensure
compliance with a statute hardly suggests an absolute duty to
do so under any and all circumstances, and a federal judge
sitting as chancellor is not mechanically obligated to grant an
injunction for every violation of law.”
Amoco Prod. Co. v. Vill. of Gambell, 480 U.S. 531, 542 (1987) (alteration in original) (quoting
Weinberger v. Romero-Barcelo, 456 U.S. 305, 313 (1982)); see also Heritage of Am., LLC v.
United States, 77 Fed. Cl. 81, 84 (2007) (“With respect to equitable relief, . . . the lawsuit
poses the question [of] whether, given those defects, fairness to plaintiff, to the
beneficiaries of the support services in question, to the intervenors, to the Government,
and to the public at large counsels in favor of granting the tailored equitable relief[.]”).
Notwithstanding the absence of ironclad rules, this Court has developed a fairly
well-defined set of injunctive relief principles routinely applied in § 1491(b) cases. For
example, “[t]he Court of Federal Claims has repeatedly held that a protester suffers
irreparable harm if it is deprived of the opportunity to compete fairly for a contract.”
Palantir USG, Inc. v. United States, 129 Fed. Cl. 218, 291 (2016) (quoting CW Gov’t
Travel, Inc. v. United States, 110 Fed. Cl. 462, 494 (2013)), aff’d, 904 F.3d 980 (Fed. Cir. 2018).
That concept stretches back more than two decades. See, e.g., United Int’l Investigative
Servs., Inc. v. United States, 41 Fed. Cl. 312, 323 (1998) (“[T]he opportunity to compete for
a contract and secure any resulting profit has been recognized to constitute significant
harm.”); Seattle Sec. Servs., Inc. v. United States, 45 Fed. Cl. 560, 571 (2000); MORI Assocs.,
Inc. v. United States, 102 Fed. Cl. 503, 552 (2011) (“The Court concludes it is
well-established that the potential profits that are lost to offerors when arbitrary
procurement actions would deprive them of the opportunity to compete for a contract
will normally be sufficient to constitute irreparable injury.”); HP Enter. Servs., LLC v.
United States, 104 Fed. Cl. 230, 245 (2012) (“This court, in many cases, has found that the
loss of the opportunity to fairly compete for a contract constitutes irreparable harm.”);
BCPeabody Constr. Servs., Inc. v. United States, 112 Fed. Cl. 502, 514 (2013) (noting that the
“denial of a fair opportunity to compete and loss of financial benefit from a lawful
procurement process constitute irreparable harm”); Red River Commc’ns, Inc. v. United
States, 109 Fed. Cl. 497, 518–19 (2013) (“This court has held that loss of an opportunity to
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compete constitutes irreparable harm.”); Sierra Nevada Corp. v. United States, 154 Fed. Cl.
424, 440 (2021) (“This Court consistently has held that the lost opportunity to compete for
a contract constitutes irreparable harm.”).64
Similarly, regarding the public interest injunctive relief factor, this Court has long
held that where “a [p]laintiff has established that defendant’s contract award violated
procurement regulations and involved arbitrary and capricious behavior[,] [t]he public
interest in preserving the integrity of the procurement system . . . weighs in favor of
granting injunctive relief.” Caddell Constr. Co. v. United States, 111 Fed. Cl. 49, 117 (2013);
see also BCPeabody Constr. Servs., 112 Fed. Cl. at 514 (“It is well established that the public
interest is well-served by ensuring that the government procurement process is fair and
even-handed” (citing PGBA, LLC v. United States, 60 Fed. Cl. 196, 221 (2004), aff’d, 389 F.3d
1219)); MVM, Inc. v. United States, 46 Fed. Cl. 137, 143 (2000) (“Many cases have
recognized that the public interest is served when there is integrity in the public
procurement system.”). Judge Bruggink explained the “overarching” principle in RLB
Contracting, Inc. v. United States: “The public interest always favors the correct application
of law,” and “[m]ore particularly, in the context of procurement statutes, the public
interest always favors open and fair competition, and to that end, agency compliance
with applicable regulations.” 118 Fed. Cl. 750, 761–62 (2014) (citing Lab. Corp. of Am.
Holdings v. United States, 116 Fed. Cl. 643, 654 (2014)), aff’d, 621 F. App’x 1026 (Fed. Cir.
2015); see also HVF W., LLC v. United States, 148 Fed. Cl. 45, 57 (2020) (holding that an
injunction “to preserve the fairness of competition for government contracts . . . is not of
minor import” because “indeed, this is the function of the court’s bid protest
jurisdiction”).
The forgoing general principles do not amount to per se rules requiring an
injunction and no judge of this Court considering eBay appears to have applied that case
to reject them. See, e.g., RLB Contracting, 118 Fed. Cl. at 761 & n.10 (concluding that “in
64To cite another example, in Global Computer Enterprises, Inc. v. United States, this Court
explained:
Plaintiff has established irreparable injuries based upon losing
(1) the opportunity to participate in a competitive procurement for
this type of work, see Cardinal Maint. Serv., Inc. v. United States, 63
Fed. Cl. 98, 110 (2004), (2) potential profits, see SAI Indus. Corp. v.
United States, 60 Fed. Cl. 731, 747 (2004), and (3) skilled employees
critical to its ability to perform specialized financial management
systems work, see Univ. Research Co., LLC v. United States, 65 Fed.
Cl. 500, 514 (2005).
2008 WL 4725410, at *1 (Fed. Cl. Mar. 31, 2008). In contrast, this Court “has not required proof
that the contractor would be forced out of business to show irreparable harm.” EMTA
Isaat, A.S. v. United States, 123 Fed. Cl. 330, 340 (2015).
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the context of a bid protest, the loss of an opportunity to compete for an award for which
a party would not otherwise be disqualified is sufficient injury to warrant injunctive
relief” and distinguishing eBay); Rush Constr., Inc. v. United States, 117 Fed. Cl. 85, 102
(2014) (“[T]he acceptance of lost profits as a satisfactory showing of irreparable harm does
not create a presumption that the court will award a permanent injunction. Nor does the
court purport to establish such a presumption.”); MORI Assocs., 102 Fed. Cl. at 552
(holding that eBay “merely stands for the proposition that the four-factor test—which our
court applies in bid protest cases—cannot be displaced by a general rule automatically
granting injunctions for certain violations” and that “to recognize that meritorious bid
protests that involve lost profits will satisfy the irreparable harm factor is not the same as
automatically granting an injunction, as the other two factors must still be considered”). 65
Turning to the facts of this case, and applying the above principles, the Court notes
the paucity of briefing the parties provided regarding injunctive relief. IAP’s motion for
judgment on the administrative record spends little more than a page on the issue, and,
for the most part, simply invokes the generic, standard legal principles from the § 1491(b)
cases discussed above (i.e., regarding irreparable harm and the public interest) that every
plaintiff in every bid protest seems to invoke mechanically and often with little
evidentiary support.66 Pl. MJAR at 49–50. IAP does persuasively argue, however, that the
government faces little risk of harm and “no risk of delay or gap in the solicited services,
because Vectrus continues to supply those services today.” Id.
The government’s argument is longer, but, like IAP’s, is short on substance,
relying primarily on generic legal arguments, rather than addressing the specific facts
and context of this procurement. Def. MJAR at 57–60. The government’s main thrusts
are based upon the Supreme Court’s eBay decision: that accepting IAP’s contentions
regarding irreparable harm and the public interest “would create a presumption in favor
of an injunction, which the Supreme Court rejected in eBay.” Id. at 59. In terms of the
public interest, specifically, the government asserts that national security considerations
militate against an injunction. Id. at 59–60. Vectrus says almost nothing, relying only
upon the argument that “IAP has failed to establish success on the merits of its protest.”
Intv. MJAR at 60. Vectrus does not address the subject at all in its response brief.
65Cf. HP Enter. Servs., 104 Fed. Cl. at 245 & n.13 (declining to reach the government’s argument
“that recent precedent shows that this court has not properly applied the ‘irreparable harm’ factor
in bid protest cases, and that economic harm is not sufficient for an injunction to issue in favor of
a bid protestor” and noting that “[t]o the court’s knowledge, there is no binding precedent from
the Federal Circuit which addresses defendant’s argument”).
66But see PGBA, 389 F.3d at 1231–32 (finding that the lower court did not abuse its discretion in
holding that injunctive relief was unwarranted, in particular because the government provided
sufficient factual evidence to support its position regarding each factor in the test for injunctive
relief).
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The Court addresses the government’s national security argument first. See
28 U.S.C. § 1491(b)(3) (“In exercising jurisdiction under this subsection, the courts shall
give due regard to the interests of national defense and national security[.]”). The
government argues that “[t]he impacts on the United States if the services provided by
the contact are interrupted are dramatic and severe[.]” Def. MJAR at 59. In support of
that assertion, the government relies upon a declaration submitted by Major General
[ * * * ]. ECF No. 35-1 (Harm Declaration). The Court accepts the Major General’s Harm
Declaration and credits it fully. But the Harm Declaration is of limited scope, supporting
only the conclusion that this Court “should award a narrowly tailored injunction” that
permits “the Army the flexibility to continue performance for a reasonable time to ensure
that this national security requirement is not disrupted.” Def. MJAR at 60. The Harm
Declaration does not support the conclusion that the public interest “factor weighs in
favor of the agency” more broadly, such that this Court should deny any and all equitable
relief. Id.While the government asserts that “[t]he potential harm to the Army of an
injunction outweighs any harm that IAP alleges,” Def. Resp. at 29, the government
erroneously assumes that the only injunctive relief under consideration involves halting
Vectrus’s performance on the already awarded contract. IAP disclaims that it seeks such
relief. Pl. Resp. at 30 (“IAP does not ask this Court to issue an order that would force the
Army to cease the OMDAC-SWACA operations.”). And, based on the Major General’s
Harm Declaration, the Court would not order such relief in any event. Rather, IAP only
seeks “injunctive relief appropriate to require the Army to reopen the procurement,
including conducting discussions, and making a new award decision.” Id. The
government’s Harm Declaration does not speak to — and there are no other facts in the
administrative record addressing — the potential harm to the government were the Court
to issue the less intrusive equitable relief IAP requests.
Although the Court determines that IAP succeeds on the merits of its discussions
claim, see discussion supra Section V.G, the Court nevertheless is unprepared — at least
on this record, and for the reasons explained below — to order the government to go back
and redo its procurement process. See Edwards Lifesciences AG v. CoreValve, Inc., 699 F.3d
1305, 1317 (Fed. Cir. 2012) (Prost, J., concurring) (“the plaintiff bears the burden of
establishing the four equitable factors that weigh in its favor in order to obtain a
permanent injunction”). Additional factual development is necessary, an approach the
Federal Circuit has endorsed. PGBA, 389 F.3d at 1229 (affirming trial court’s denial of
injunctive relief and noting, with approval, that “the [trial] court held an evidentiary
hearing in order to create a complete record regarding the consequences of granting or
denying injunctive relief”).
IAP asserts that the government’s position, opposing an injunction, ignores “the
long line of decisions affirming that (1) a protester suffers irreparable harm where, as
here, the procurement errors prevent the offeror from a meaningful opportunity to
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compete, and (2) the loss of potential profits from a government contract constitutes
irreparable harm.” Pl. Resp. at 29. The Court agrees with the IAP that considering such
factors does not run afoul of the Supreme Court’s decision in eBay, see id. at 29 n.18, but
that does not mean IAP may talismanically invoke them to require this Court to issue
injunctive relief.
Given this Court’s merits determination on IAP’s first count, regarding DFARS
215.306, this Court at most would order an injunction, remanding the matter to the Army,
as IAP suggests. See Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 744 (1985) (explaining
that, when an agency’s fact-findings and explanation are deficient, “the proper course,
except in rare circumstances, is to remand to the agency for additional investigation or
explanation”); In re Hodges, 882 F.3d 1107, 1117 (Fed. Cir. 2018) (“When faced with . . .
deficient factual findings, ‘we have consistently vacated and remanded for further
proceedings.’” (quoting In re Van Os, 844 F.3d 1359, 1362 (Fed. Cir. 2017))). Thinking such
relief through, however — and how it might play out in practice — tends to demonstrate
that IAP’s claim of irreparable harm is quite weak. On remand, as suggested above, there
are several discrete, mutually-exclusive possibilities:
1. The Army correctly considers and applies DFARS 215.306 and determines, once
again, that it will not engage in discussions. In that case, IAP will not receive the
contract at issue.
2. The Army correctly considers and applies DFARS 215.306 and determines that it
will form a competitive range for discussions, but IAP is excluded from the
competitive range. In that case, IAP will not receive the contract at issue, but the
Army would then have to conduct discussions with the offerors remaining in the
competitive range, none of which have protested the outcome of this procurement.
3. The Army correctly considers and applies DFARS 215.306 and determines that it
will form a competitive range for discussions, and IAP is included in the
competitive range. In that case, IAP will have a chance to submit a FPR, but the
outcome of the procurement remains uncertain; IAP may win the contract award,
or it may not.
What is evident from the above possibilities — putting aside that IAP could
challenge the outcome of the first two scenarios as well — is that any argument
predicated on the notion of lost profits is highly speculative in IAP’s case. Again, the
Court must be clear about the theoretical underpinnings of an irreparable harm finding;
the idea is that a plaintiff
will suffer irreparable harm if an injunction is not granted,
because the only other available relief—the potential for
recovery of bid preparation costs—would not compensate it
for its loss of valuable business on this contract. This type of
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loss, deriving from a lost opportunity to compete on a level
playing field for a contract, has been found sufficient to prove
irreparable harm.
Seattle Sec. Servs., Inc., 45 Fed. Cl. at 571; cf. Chapman L. Firm Co. v. United States, 67 Fed.
Cl. 188, 193 (2005) (“[P]articularly in the arena of government contracting, in which an
economic loss will not be compensable with money damages . . . economic loss can rise
to the level of irreparable injury. Accordingly, this court has found that lost profits, or
even the loss of an opportunity to earn profits, is ‘sufficient to constitute irreparable
harm.’” (quoting Hosp. Klean of Tex., Inc. v. United States, 65 Fed. Cl. 618, 624 (2005))). The
loss of a mere chance of winning a contract does not demonstrate lost profits with
sufficient certainty such that it constitutes irreparable harm per se.
That is a long way of saying that “[d]ecisions in this court have not indicated that
lost profits necessarily constitute irreparable harm[;] [r]ather, individual cases have
recognized that, in some circumstances, the loss of a business opportunity, coupled with
an unfair procurement process, may result in irreparable harm to a plaintiff.” Caddell
Constr. Co., 111 Fed. Cl. at 116 (emphasis added). In this case, the idea that the
government’s error has caused even “the loss of an opportunity to earn profits” is wholly
speculative. Cf. Electra-Med Corp. v. United States, 791 F. App’x 179, 182 (Fed. Cir. 2019)
(concurring with trial court’s finding “that [Plaintiff]’s injury—the loss of the opportunity
to compete for a government contract—though irreparable, was temporary and
speculative, not weighing heavily in favor of an injunction”). Nor did the government
entirely deny IAP the opportunity to compete. IAP submitted an initial proposal and the
Court, in this decision, has concluded that the Army’s substantive evaluation of that
initial proposal was not erroneous or unreasonable. Given the Solicitation’s repeated
warnings that the Army intended to award the contract without discussions, IAP had
sufficient notice that it was not guaranteed an opportunity to a submit a FPR as part of
discussions. IAP thus presumably took its best shot in the initial proposal and
nevertheless was evaluated as unacceptable.
On this record, and notwithstanding that IAP has succeeded on Count I of its
amended complaint, the Court cannot conclude that IAP is entitled to participate in
discussions and to submit a FPR for a second round of evaluations. Accordingly, at most,
what IAP lost here was the opportunity to be considered for the competitive range,
assuming that the Army could not justify its refusal to engage in discussions. In sum,
given this record, it is far from assured that that IAP would wind up in the mix even if
the Court were to remand the issue to the Army for the correct application of DFARS
215.306.
That is not to say that IAP is not prejudiced by the government’s failure to apply
the DFARS provision. To the contrary, the Court has determined that IAP has suffered
legally cognizable prejudice. Nevertheless, this may be a rare circumstance in which a
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plaintiff has demonstrated sufficient prejudice to prevail on the merits but insufficient
harm to demonstrate that the Court should order injunctive relief. As the Court
explained in great detail above, this Court’s application of the injunctive relief factors
should not be mechanical but rather must take into account the particular facts and
circumstances of each individual case. Moreover, the government’s violation of law does
not entitle a plaintiff to equitable relief. The Court cannot but help to ask whether the
government should really be forced to engage in a process that may culminate in a
competitive range (and hence discussions) that ultimately excludes IAP but that includes
offerors that never protested the lack of discussions or the outcome of the procurement.
The Court has insufficient information to definitely answer that question and thus
remains uncertain as to whether equitable relief should be “the remedy for the foot fault
here.” Cohen v. LyondellBasell Indus. N.V., 492 F. Supp. 3d 14, 19–20 (E.D.N.Y. 2020);
cf. Mills, 396 U.S. at 386–88 (holding that “nothing in the statutory policy [of the Securities
Exchange Act of 1934] ‘requires the court to unscramble a corporate transaction merely
because a violation occurred,’” and that the transaction “should be set aside only if a court
of equity concludes, from all the circumstances, that it would be equitable to do so”
(quoting Mills v. Elec. Autolite Co., 403 F.2d 429, 436 (7th Cir. 1968), vacated sub nom. Mills v.
Elec. Auto-Lite Co., 396 U.S. 375 (1970))). The Court notes, however, that this case is not
like Oak Grove, in which the Court held “[g]iven the facts of th[e] procurement — i.e.,
where all offerors or nearly all offerors submitted non-compliant proposals — the [a]gency
should have conducted discussions.” 155 Fed. Cl. at 110 (emphasis added).
On the other hand, the government “has not indicated any special consequence”
if this Court were to require the government to go back and consider whether discussions
should be conducted under a proper application of DFARS 215.306, and, if so, whether
IAP should be included in the competitive range. BCPeabody Constr. Servs., 112 Fed. Cl.
at 514. In sum, “[t]he government has not demonstrated that the balance of hardships
should weigh in its favor.” Id. Indeed, just as in WaveLink, “[i]n balancing the harms, the
Court notes that the government never discussed or even asserted [how] it would be
harmed by an injunction.” 154 Fed. Cl. at 288–89. While the government made clear that
interrupting Vectrus’s performance of the contract at issue may jeopardize national
security, the government did not present any cogent argument against more limited
injunctive relief or, in particular, the remand IAP seeks. Id. (“Although the Court
reasonably speculates that the [a]gency is likely to incur some hardship due to the time,
cost, and administrative effort it will need to expend to revisit the . . . procurement, the
Court will not make this argument for the government . . . .”).
In sum, considering both the public interest in ensuring the government follows
its own procurement rules as well as the national security component to this case, the
Court will not act hastily one way or the other. Accordingly, the parties shall provide the
Court with supplemental briefing addressing the applicable injunctive relief calculus as
the Court has described it in this decision. The parties also shall address whether IAP is
entitled to its bid preparation and proposal costs. See Reema Consulting, 107 Fed. Cl. at
79
532 (outlining the standard for the recovery of bid and proposal costs); MVM, Inc. v.
United States, 47 Fed. Cl. 361, 366 (2000) (“[T]he plain language of 28 U.S.C. § 1491(b)(2)
permits the grant of proposal and preparation costs as well as injunctive relief. The
statute contains no condition that if injunctive relief has already been granted, monetary
damages are not available.”); CNA Corp., 83 Fed. Cl. at 10.
VI. CONCLUSION
The Court GRANTS IAP’s motion for judgment on the administrative record, in
part (i.e., with respect to Count I of IAP’s amended complaint); IAP’s motion for judgment
on the administrative record otherwise is DENIED. Conversely, the Court GRANTS the
government’s and Vectrus’s respective cross-motions for judgment on the administrative
record for Counts II through IX of IAP’s amended complaint; with respect to Count I, the
government’s and Vectrus’s respective cross-motions are DENIED.
The Court reserves the question of appropriate relief in this case pending further
briefing. The Court will issue a separate order directing such briefing.
IT IS SO ORDERED.
s/Matthew H. Solomson
Matthew H. Solomson
Judge
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