Golden It, LLC v. United States

CORRECTED
In the United States Court of Federal Claims
No. 21-1966C
(Filed Under Seal: January 18, 2022)
(Filed: February 4, 2022)
)
GOLDEN IT, LLC, )
)
Plaintiff, )
)
v.
)
THE UNITED STATES, )
)
Defendant, )
)
and )
)
SPATIAL FRONT, INC., )
)
Defendant-
Intervenor. )
)
Jon D. Levin, Maynard, Cooper & Gale, P.C., Huntsville, AL, for Plaintiff. With him on
the briefs were W. Brad English, J. Dale Gibson, Emily L. Chancey, Joshua B. Duvall, and
Nicholas P. Greer.
Bret R. Vallacher, Commercial Litigation Branch, Civil Division, United States
Department of Justice, Washington, D.C., for Defendant. With him on the briefs were
Brian M. Boynton, Acting Assistant Attorney General, Civil Division, Patricia M.
McCarthy, Director, and Douglas K. Mickle, Assistant Director, Commercial Litigation
Branch, Civil Division, United States Department of Justice, Washington, D.C. Of
counsel was Wilmary Bernal, Contract Law Division, Office of General Counsel, United
States Department of Commerce, Washington, D.C.
Katherine Burrows, PilieroMazza PLLC, Washington, D.C., for Defendant-Intervenor. Of
counsel were Jonathan T. Williams, Samuel S. Finnerty, and Patrick T. Rothwell.
OPINION AND ORDER*
SOLOMSON, Judge.
The first population count of the United States began in 1790 under President
George Washington.1 The 1790 count was, by today’s standards, a rudimentary affair
— a mere “single schedule calling for only two or three details as to the color, sex, and
age of the population.”2
In contrast, the modern census is “a massive undertaking,” complete with
resources available in 59 languages and including “brochures, posters, factsheets, and
social media toolkits.”3 The 2020 census cost the federal government upwards of $14
billion to complete.4 The data produced by today’s United States Census Bureau
comprises “the primary source of statistics” regarding our nation’s economy and
population.5 See ECF No. 44, Corrected Administrative Record (“AR”) 1215. Over time,
the Census Bureau “has become increasingly reliant upon information technology” to
maintain and improve the quality of its data. Id. As part of that effort, the Census
Bureau’s Geography Division maintains the Master Address File/Topologically
Integrated Geographic Encoding and Referencing System (“MAF/TIGER System”),
which is comprised of various software applications and databases that integrate spatial
and address data from “more than 40,000 tribal, state, and local governments.”
AR 1215–16.
In this post-award bid protest, Plaintiff, Golden IT, LLC (“Golden”) challenges
the decision of Defendant, the United States, acting by and through the Department of
*On January 18, 2022, the Court filed, under seal, this opinion and order and provided the
parties the opportunity to propose redactions. On February 3, 2022, the parties filed proposed
redactions, ECF Nos. 56, 57, which this Court adopts, in part, and accordingly reissues this
public version of this opinion and order.
11790 Overview, United States Census Bureau,
https://www.census.gov/history/www/through_the_decades/overview/1790.html (last
visited Jan. 7, 2021).
2Carroll D. Wright, The History and Growth of the United States Census, S. Doc. No. 56-194, at 8
(1st Sess. 1900); see also id. at 13 (noting, of the 1790 population count, that “in the modern sense
of the term it can not truthfully be called a census”).
32020 Decennial Census Program Management, United States Census Bureau,
https://www.census.gov/programs-surveys/decennial-census/decade/2020/planning-
management.html (last visited Jan. 7, 2021).
4U.S. Gov’t Accountability Off., GAO-21-478, 2020 Census: Innovations Helped with
Implementation, but Bureau Can Do More to Realize Future Benefits 6 (2021).
5In addition to the decennial census, the Census Bureau “also conducts a census of all business
establishments and of all governmental units . . . every five years.” AR 1215.
2
Commerce and the Geography Division of the United States Census Bureau (“Census”
or the “Agency”), to award a single-award Blanket Purchase Agreement (“BPA”) with
five one-year options to Defendant-Intervenor, Spatial Front, Inc. (“SFI”) for general IT
support for the MAF/TIGER System and related programs. Golden objects to the
award to SFI as arbitrary, capricious, and otherwise contrary to law. 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 explained below, the Court GRANTS the pending motions to
supplement the administrative record. The Court further GRANTS the government’s
and Defendant-Intervenor’s respective motions for judgment on the administrative
record. The Court DENIES Golden’s motion for judgment on the administrative
record.
I. PROCEDURAL BACKGROUND
Seeking a full range of IT support for the MAF/TIGER System and associated
programs, Census initiated a two-phase procurement on April 14, 2021. AR 1304.
Phase I entailed selecting the “Best Qualified Vendors” from the responses submitted to
a series of preliminary questions. AR 661 (Technical Evaluation Team Phase I Report),
AR 1304. On April 19, 2021, Census received responses from four vendors — Golden;
SFI; [ * * * ]; and [ * * * ]. AR 661. Census’s Technical Evaluation Team recommended all
four vendors to proceed to Phase II of the procurement. AR 665.
In Phase II, which began on April 22, 2021, Census invited the vendors to submit
responses to Request for Quote (“RFQ”) No. 1333LB21Q00000003 (the “Solicitation”) to
award a BPA with a one-year base period and five one-year options. AR 1204, 1258,
1304. Though the government planned to issue most call orders to the eventual
awardee after award, “with more specifically described needs as they arise,” AR 1212,
the Solicitation provided that Census would award both the BPA and first call order
simultaneously. AR 1303, 1310. Census estimated the total value of the BPA to be $98
million and designated the Solicitation as a set-aside for Women-Owned Small
Businesses and/or Service-Disabled Veteran-Owned Small Businesses pursuant to
FAR 8.405-3 under the General Services Administration’s (“GSA”) Multiple Award
Schedule (“MAS”) program. AR 1211, 1213.6
6See FAR 8.401 (“Ordering activity means an activity that is authorized to place orders, or
establish blanket purchase agreements (BPA), against the General Services Administration’s
(GSA) Multiple Award Schedule contracts.”); FAR 8.402(f) (specifying how, “[f]or
administrative convenience, an ordering activity contracting officer may add items not on the
Federal Supply Schedule (also referred to as open market items) to a Federal Supply Schedule
[BPA] or an individual task or delivery order”); FAR 8.405-3 (“Blanket purchase agreements”);
FAR 8.405-5 (providing ordering activity with discretion to set aside BPAs and orders).
3
The RFQ required that quotes include two parts, which were to be submitted
simultaneously: “Technical” (referred to as either “Part 1” or “Volume 1”) and “Price”
(referred to as either “Part 2” or “Volume 2”). AR 1311.7 The Technical Part was
comprised of three evaluation factors: “Management Approach for Master BPA”
(“Factor 1”); “Similar Experience and Past Performance” (“Factor 2”); and “Call Order
0001 — Technical” (“Factor 3”). AR 1311. Factor 2, in turn, had two subfactors:
“Similar Experience” (“Subfactor 2A”) and “Past Performance” (“Subfactor 2B”). Id.
Factor 3 also had two subfactors: “Technical Approach for Call Order 0001” (“Subfactor
3A”) and “Call Order 0001 Key Personnel” (“Subfactor 3B”). Id. Following a series of
RFQ amendments, Census issued a revised, conformed Solicitation on May 14, 2021.
AR 2858–59. Quotes were due on May 20, 2021. AR 2757–58.
Census received timely quotes from all four vendors invited to participate in
Phase II. AR 2859; see also AR 1446–72 (Golden); AR 1473–1652 ([ * * * ]); AR 1653–1818
(SFI); AR 1819–2022 ([ * * * ]). Census awarded the BPA, along with the first call order,
to SFI on September 22, 2021. AR 2881–82.
On October 5, 2021, Golden filed its initial complaint, ECF No. 1, and a motion
for preliminary injunction (“PI Motion”), ECF No. 6, against the United States in this
Court. The next day, SFI filed a motion to intervene, ECF No. 14, which this Court
granted, Minute Order (Oct. 6, 2021). The Court held a telephonic preliminary status
conference on October 6, 2021, to discuss, among other things, Golden’s PI Motion. ECF
No. 13; Minute Order (Oct. 6, 2021). During the status conference, the parties
represented that the government agreed to stay performance of the BPA award (and the
first call order) through December 16, 2021. See ECF No. 16 (October 7, 2021, joint status
report). Accordingly, the Court noted in its Order dated October 7, 2021 that “[t]he
Court understands that the voluntary stay agreement will be without prejudice to
Plaintiff should Plaintiff succeed on the merits of its protest and seek permanent
injunctive relief” and that “[i]f the Court correctly understands the voluntary stay
agreement, Plaintiff shall either withdraw its motion for a preliminary injunction or
inform the Court that the motion should be denied as moot.” ECF No. 17 at 2. On
October 13, 2021, Golden filed a notice requesting that the Court enter an order denying
as moot Golden’s PI Motion. ECF No. 30. Accordingly, the Court denied Golden’s PI
Motion. Minute Order (Oct. 13, 2021).8
7See also AR 1310 (instructing that the “quote shall be submitted in Two (2) Parts, Part 1 –
Technical and Part 2 – Price”).
8At the conclusion of oral argument on the motions for judgment on the administrative record,
the government represented that it would extend its stay of performance of the BPA and first
call order to January 14, 2022. ECF No. 52, Oral Argument Transcript (“Tr.”) at 131:18–132:11.
4
The government filed the administrative record on October 15, 2021. ECF
No. 32.9 On October 20, 2021, Golden filed an amended complaint. ECF No. 33 (“Am.
Compl.”). In its amended complaint, Golden alleged: (1) SFI’s quote failed to meet a
material term of the Solicitation by failing to provide the required years of experience
for four of the Solicitation’s 26 Labor Categories (“LCATs”) and, thus, was
unawardable, Am. Compl. ¶¶ 61–68 (Count One); (2) Census’s “evaluation of Factors 1
and 2 was unreasonable, arbitrary, capricious, and otherwise contrary to law” and a
proper evaluation of those factors “would have placed Golden IT ahead of Spatial
Front,” id. ¶¶ 69–82 (Count Two); (3) Census’s evaluation of Factor 3 was
“unreasonable, arbitrary, capricious, and otherwise contrary to law” because, among
other reasons, SFI improperly “proposed Mr. [JH] as a key person” because “Mr. [JH]
took a position with [another company] before Spatial Front submitted its quote and
four months before Spatial Front received an award,” id. ¶¶ 83–92 (Count Three); and
(4) Census’s best value analysis was arbitrary and capricious, id. ¶¶ 93–95 (Count Four).
Golden filed its motion for judgment on the administrative record on October 29,
2021. ECF No. 37 (“Pl. MJAR”). The government and SFI filed cross-motions for
judgment on the administrative record on November 12, 2021. See ECF Nos. 42 (“Def.
MJAR”), 43 (SFI’s MJAR). The parties filed timely reply briefs. See ECF Nos. 46 (“Pl.
Reply”), 48 (“Def. Reply”), 49 (SFI’s Reply).
All three parties moved to supplement the administrative record prior to oral
argument. On October 26, 2021, Golden moved to supplement the record with a
purported “copy of the LinkedIn profile of Spatial Front’s proposed key personnel,
[JH].” ECF No. 34 at 1. The Court stayed the briefing schedule on that motion, ordering
the parties to “be prepared to address this motion during the eventual oral argument.”
ECF No. 35 at 1. While the Court allowed the parties to “cite the document Golden IT
seeks to have added to the administrative record” in their briefs, the Court cautioned
that such permission “constitutes no guarantee of whether, or for what purpose, the
Court ultimately may consider the documents in question.” Id. at 1–2.
SFI filed its motion to supplement the record on November 12, 2021. ECF No. 40.
SFI sought to include (1) “a Declaration of [JD], [SFI’s] Vice President, Human
Resources and Contracts”; and (2) “a letter of commitment from Mr. [JH] . . . stating that
he remains committed and available to serve as the Information Specialist–Knowledge
Engineer position under the RFQ, as proposed by SFI.” Id. at 3. No party filed,
attempted to file, or sought leave to file responses in opposition to that motion.
9On October 8, 2021, SFI filed a motion to dismiss Golden’s complaint pursuant to RCFC
12(b)(6). ECF No. 18. The Court denied the motion, without prejudice, on October 13, 2021,
because, among other reasons, SFI had “agreed to a briefing schedule with the other parties,
pursuant to which the government will file the administrative record later this week” and “that
schedule already provides time for Golden IT to file an amended complaint.” ECF No. 31 at 1.
5
Finally, on November 12, 2021, the government filed an unopposed motion to
correct the administrative record. ECF No. 41. The government noted that “Census’s
Contract Specialist inadvertently failed to send to us two one-page documents when
compiling the administrative record,” and thus the government filed its motion “to
include the accompanying documents.” Id. at 1. The Court granted the unopposed
motion, Minute Order (Nov. 15, 2021), and the government corrected the administrative
record on November 15, 2021, ECF No. 44.
The Court held oral argument on the parties’ various motions on December 14,
2021. ECF Nos. 50, 52 (“Tr.”).
II. JURISDICTION AND STANDARD OF REVIEW
The Tucker Act, as amended by the Administrative Dispute Resolution Act of
1996, Pub. L. No. 104-320, 110 Stat. 3870, provides this Court with “jurisdiction to
render judgment on an action by an interested party objecting to a solicitation by a
Federal agency for bids or proposals for a proposed contract or to a proposed award or
the award of a contract or any alleged violation of statute or regulation in connection
with a procurement or a proposed procurement.” 28 U.S.C. § 1491(b)(1). “An
interested party is an actual or prospective bidder whose direct economic interest
would be affected by the award of the contract.” Digitalis Educ. Sols., Inc. v. United
States, 664 F.3d 1380, 1384 (Fed. Cir. 2012).
No party challenges either the Court’s jurisdiction or Golden’s standing in this
case. Nevertheless, the Court has an independent duty to determine that it has
jurisdiction over this matter and that Golden has standing to pursue its action. The
Court finds that it has jurisdiction and that Golden has standing: Golden was an actual
offeror, as it submitted a timely quote prior to the RFQ’s deadline; and, Golden alleges
facts demonstrating that, but for Census’s various errors in conducting the
procurement, Golden would have had a not insubstantial chance at receiving the BPA
and the first call order. Info. Tech. & Applications Corp. v. United States, 316 F.3d 1312,
1319 (Fed. Cir. 2003); Aero Spray, Inc. v. United States, -- Fed. Cl. --, 2021 WL 5023371, at
*16 (Fed. Cl. Oct. 28, 2021).
Judgment on the administrative record, pursuant to RCFC 52.1, “is properly
understood as intending to provide for an expedited trial on the record.” Bannum, Inc.
v. United States, 404 F.3d 1346, 1356 (Fed. Cir. 2005). The Rule requires the Court “to
make factual findings from the record evidence as if it were conducting a trial on the
record.” Id. at 1354. Accordingly, this Court asks whether, given all the disputed and
undisputed facts, a party has met its burden of proof based on the evidence contained
in the administrative record. Id. at 1356–57.
6
Generally, in an action brought pursuant to § 1491(b) of the Tucker Act, the
Court reviews “the agency’s actions according to the standards set forth in the
Administrative Procedure Act, 5 U.S.C. § 706.” See Nat’l Gov’t Servs., Inc. v. United
States, 923 F.3d 977, 981 (Fed. Cir. 2019). That APA standard, in turn, requires the Court
to determine “whether the agency’s action was arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law.” Id. (citing 5 U.S.C. § 706(2)). In
other words, the Court must “determine whether ‘(1) the procurement official’s
decision lacked a rational basis; or (2) the procurement procedure involved a violation
of regulation or procedure.’” Id. (quoting Weeks Marine, Inc. v. United States, 575 F.3d
1352, 1358 (Fed. Cir. 2009)). “When a challenge is brought on the first ground, the test is
whether the contracting agency provided a coherent and reasonable explanation of its
exercise of discretion, and the disappointed bidder bears a heavy burden of showing
that the award decision had no rational basis.” Banknote Corp. of Am., Inc. v. United
States, 365 F.3d 1345, 1351 (Fed. Cir. 2004) (internal citation marks omitted). “When a
challenge is brought on the second ground, the disappointed bidder must show ‘a clear
and prejudicial violation of applicable statutes or regulations.’” Impresa Construzioni
Geom. Domenico Garufi v. United States, 238 F.3d 1324, 1333 (Fed. Cir. 2001) (quoting
Kentron Hawaii, Ltd. v. Warner, 480 F.2d 1166, 1169 (D.C. Cir. 1973)).
To establish prejudice on the merits in a post-award challenge, a plaintiff must
further 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.” Allied
Tech. Grp., Inc. v. United States, 649 F.3d 1320, 1326 (Fed. Cir. 2011) (brackets omitted)
(quoting Statistica, Inc. v. Christopher, 102 F.3d 1577, 1581 (Fed. Cir. 1996)); see also Oak
Grove Techs., LLC v. United States, 155 Fed. Cl. 84, 98 (2021) (discussing standard of
review and showing of prejudice in bid protest cases).
III. THE COURT GRANTS THE PARTIES’ RESPECTIVE MOTIONS TO
SUPPLEMENT THE ADMINISTRATIVE RECORD
The Court is mindful that, ordinarily, documents or other evidence not
considered by an agency in the course of a procurement decision should not be added
to the administrative record that the government files with the Court in response to an
action pursuant to 28 U.S.C. § 1491(b). But, as this Court has recognized, not every
procurement-related dispute is so straightforward:
But what is a plaintiff supposed to do . . . when the record
necessarily lacks relevant documentation given the nature of
the specific claims at issue? In such circumstances, a plaintiff
typically will file a motion to add documentation to the
administrative record. Such motions can be categorized into
two types: “[s]upplementing the administrative record in an
APA case means adding material to the volume of documents
the agency considered, while admitting extra-record evidence
7
means adding material outside of or in addition to the
administrative record that was not necessarily considered by
the agency.” Safari Club Int’l v. Jewell, 111 F. Supp. 3d 1, 4
(D.D.C. 2015) (citing Pac. Shores Subdiv. Cal. Water Dist. v. U.S.
Army Corps of Eng’rs, 448 F. Supp. 2d 1, 5 (D.D.C. 2006)); see
SOSS2, Inc. v. United States Army Corps of Eng’rs, 403 F. Supp.
3d 1233, 1237 (M.D. Fla. 2019) (“To supplement the
administrative record means to permit review of material that
the agency considered but failed to include.”).
Naval Sys., Inc. v. United States, 153 Fed. Cl. 166, 178 (2021) (emphasis added).
In this case, the Court concludes that it makes no difference how Golden’s or
SFI’s respective motions to add material to the administrative record are characterized.
Either way, one of Golden’s claims in this matter is that SFI improperly received a
contract award due to SFI’s misrepresentation of a proposed key personnel. See Am.
Compl. ¶¶ 89–92; Pl. MJAR at 20–24. That claim necessitates this Court’s consideration
of evidence that is not contained in the administrative record and, indeed, that no one
could reasonably expect to be contained in the administrative record. In that regard, to
the extent any party opposed Golden’s or SFI’s respective motions to add material to
the administrative record, no one explained during oral argument how this Court could
possibly evaluate a plausible misrepresentation claim based upon only the evidence in
the government’s possession. See, e.g., Tr. 40:15–25 (government agreeing that, in
general, “you’d have to show the Court through some extra-record process that
whatever the offeror asserted in the proposal is false”); Tr. 28:17–29:6 (SFI agreeing that
a material misrepresentation claim ordinarily would require “extra-record evidence”
but arguing that “the extra-record evidence that’s being presented here doesn’t state
anything specific”).
Given the nature of Golden’s misrepresentation argument, this Court would be
remiss if it did not permit the evidence in question to be added to the record. Naval
Sys., Inc., 153 Fed. Cl. at 182 (2021) (“These are precisely the type of circumstances in
which extra-record evidence should be considered.” (citing VSolvit, LLC v. United States,
151 Fed. Cl. 678, 686 (2020))); see also Orion Int’l Techs. v. United States (Orion I), 60 Fed.
Cl. 338, 343 (2004) (“[T]he record may be supplemented with . . . relevant information
that by its very nature would not be found in an agency record . . . .”).
Accordingly, the Court grants the parties’ respective pending motions to
supplement the administrative record.10
10In any event, no party is prejudiced by this Court’s granting the pending motions to
supplement the record. As discussed below, the government and SFI prevail notwithstanding
this Court’s consideration of Mr. [JH]’s LinkedIn profile; SFI’s materials generally are just as
8
IV. FINDINGS OF FACT11
A. The Solicitation
The Solicitation provided that Census would make an award based on “Best
Value principles,” meaning that Census would award the BPA (and the associated first
call order) to “the responsible Quoter whose quote provides the greatest overall value
to the Government, price and all other factors considered.” AR 1329. The technical
evaluation consisted of a determination of strengths, weaknesses, and risks for each
quote. AR 1330. All technical factors were “equal in importance.” AR 1329. Similarly,
all subfactors within each technical factor were given equal weight, as well. Id. The
Solicitation provided that “the Government is more concerned with obtaining superior
technical capabilities than with making an award at the lowest overall price to the
Government.” Id. Accordingly, the Solicitation advised quoters “that the technical
evaluation factors are significantly more important than price.” Id.
1. Part 1, Technical Factor 1 — Management Approach for BPA
Under Technical Factor 1, the Solicitation instructed quoters to describe their
respective plans to manage the BPA and each call order. AR 1318. Specifically, each
quoter had to: (1) provide details regarding how it would communicate with Census
management; (2) describe the policies, procedures, and techniques the quoter would
employ to ensure cost-effective and quality performance; and (3) articulate an approach
to meet the requirements under the BPA’s three Functional Areas.12 Id.
Each quoter was required to address several items, including its “planned
process for submitting deliverables and work products to the Government,” any risks
associated with meeting the Functional Area requirements, and “[a]pproach[es] to
support the [Agency] as needs arise.” AR 1318–19.
The Solicitation provided that the Agency would “consider strengths,
weaknesses, and risks of the Quoter’s approach in addressing” various requirements of
the Solicitation — including, as relevant to this protest, whether each quoter’s proposal
helpful to Golden. In short, while the Court has considered all of the parties’ additional
documents, none of them alter the outcome of this case.
11This background section constitutes the Court’s findings of fact drawn from the
administrative record. Bannum, Inc., 404 F.3d at 1353–54; see also supra Section II. Additional
findings of fact are contained in Section V.
12The Solicitation specified three “Functional Areas” for which the government would issue call
orders: (1) Geography Support Services (Functional Area 0001); (2) BPA and Call Order
Program and Project Management (Functional Area 0002); and (3) Geography Project Support
(Functional Area 0003). See AR 1217–18.
9
completely and accurately met the government’s requested LCATs and their specified
descriptions, as well as the “[c]omprehensiveness and feasibility of the Quoter’s
proposed Draft Master BPA: Incoming Transition Plan.” AR 1330–31.
2. Part 1, Technical Factor 2 — Experience and Past Performance
Technical Factor 2 consisted of two subfactors: “Similar Experience” (2A) and
“Past Performance” (2B). AR 1311.
Under Subfactor 2A, Similar Experience, quoters had to provide three contract
references that “have been performed, or are currently being performed, not older than
July 1, 2017, and are of similar size, scope, and complexity to the work required by this
RFQ.” AR 1319. Quoters were permitted to supplement experience by including up to
two “demonstrated experiences by any proposed subcontractors.” AR 1319.
As relevant to this protest, the Solicitation provided the following definitions for
scope and complexity:
Scope: Quoter provided support simultaneously for multiple
projects and/or services for national consumption and
national impact.
Complexity: Quoter supported organizations comprised of 5–
10 large complex programs aligned to support organizational
mission and supported by several semi-independent business
units. Large, diverse workforce operating from multiple
locations and field offices effectively using advanced
information technology. Demonstration that the work was
successfully coordinated with other contractors and that
risks/problems were successfully addressed.
AR 1319. Quoters were permitted to include contracts on which they had performed (or
on which they were performing) as either a prime contractor or subcontractor. Id.
3. Part 1, Technical Factor 3 — Call Order 0001 — Technical
Technical Factor 3 consisted of two subfactors, including: “Technical Approach
for Call Order 0001” (3A) and “Call Order 0001 Key Personnel” (3B). AR 1311. Under
Subfactor 3A, quoters were to “present an approach to demonstrating the ability and
the understanding of the Quoter to successfully accomplish all requirements for Call
Order #0001.” AR 1321. The RFQ instructed quoters to provide “an approach that
provides high availability and scalability for processing of geospatial data in support of
[the] MAF/TIGER system.” AR 1322. Quoters also were required to provide various
deliverables under Subfactor 3A. Id.
10
The Solicitation identified six key personnel for Call Order 0001, including the
“Information Specialist / Knowledge Engineer” position. AR 1370. Under Subfactor
3B, covering key personnel, quoters had to provide “the descriptions of proposed key
personnel who have been committed to perform on Call Order #0001.” AR 1322. The
Solicitation also provided that, “[a]t a minimum, this shall include the Quoter[’]s Call
Order Key Personnel staff required in the Call Order, and any other staff the Quoter
identifies to be key personnel in accordance with the requirements.” Id. For proposed
key personnel, quoters had to provide résumés, in addition to various information
regarding, inter alia, their employment status, recent work experience, technical
accomplishments, and education. AR 1323.
While the Solicitation noted that “availability and commitment of Key Personnel
is important to the Government and will be evaluated through information contained in
the written quote,” AR 1333, the Solicitation did not require any documentation, such as
letters of commitment, assuring the continued availability of key personnel. See AR
1322–23.
Census “reserve[d] the right to utilize other information available to it to
evaluate Key Personnel.” AR 1334. In that regard, the Solicitation noted that “the
Government may query contract references, other end-user representatives and other
public sources regarding the experience of proposed Key Personnel and the quality of their
performance.” Id. (emphasis added). But that provision clearly refers to a substantive
evaluation of the identified proposed key personnel. In contrast, the Solicitation makes
no reference to the government’s confirming key personnel availability or commitment
during the evaluation process.
4. Part 2 — Price
Regarding Part 2, Price, the Solicitation required quoters to “submit a price quote
separate from the technical quote as part of their quotation package.” AR 1323. The
price quote was to include “overall pricing for the BPA . . . includ[ing] . . . proposed
labor categories.” AR 1323. The Price factor had two subfactors: (1) “Master BPA Rate
Card”; and (2) “Call Order 0001.” AR 1323.
To evaluate price, the RFQ required Census to review quoters’ price quote
templates “for completeness and accuracy,” double-checking “arithmetic” and price
summaries. AR 1334. Census also had to evaluate proposed labor rates to ensure they
were “at or below the Quoter’s current GSA MAS [Information Technology] contract
rates” and to compare the rates to the Independent Government Cost Estimate
(“IGCE”). Id.
11
B. Proposals and Evaluations
In the Award Decision Memorandum, the Contracting Officer (“CO”)
summarized the offerors’ technical and price rankings in the below chart:
VENDOR TECHNICAL & PRICE RANKING
Technical Rank Vendor Price Rank (1-Lowest to 4- Master BPA Price
(Highest to Lowest) Highest)
1 Spatial Front 2nd Lowest $77,747,904.00
2 Golden IT 2nd Highest $90,142,371.64
3 [***] Highest $96,459,667.20
4 [***] Lowest $76,448,198.40
AR 2877–78.
SFI received the highest ranking for its technical quote, which was “strong,
comprehensive, and well written,” and “had more significant strengths and no
significant weaknesses or high risks.” AR 2863–64. The Technical Evaluation
Consensus Report, AR 2596–2707, and the Award Decision Memorandum, AR 2839–81,
outline in great detail the ratings each quoter received. This opinion discusses only the
ratings relevant to this protest.
1. Evaluation of Technical Factor 1
Regarding SFI’s “incoming transition plan,” SFI received a strength for providing
a “dedicated transition manager” in addition to other staff. AR 2627. Census noted that
providing a dedicated Transition Project Management Office, “that includes a
Transition Manager, is not a requirement of the RFQ” but that “having a transition
team . . . coupled with SFI’s previous experience . . . focused on the transition is of great
value to Census.” Id. In contrast, Golden proposed one person to fill both the transition
manager and program manager roles. AR 1453.38. Golden did not receive a strength
for its transition manager staffing proposal. See AR 2674–81 (describing strengths and
weaknesses of Golden IT’s quote under Factor 1).
SFI received two separate significant strengths under Factor 1 for the
“completeness and accuracy” of its proposed LCATs. AR 2629–31. Census awarded
the first significant strength after finding that SFI “provided an additional [ * * * ]
LCATs with the minimum requirement of the candidates having a bachelor’s degree[]”
and provided [ * * * ] LCATs with more years of experience than was required. AR
2629. SFI received the second significant strength for providing LCATs “that exceeded
the requirements provided” for seven of the eight positions referencing certain
experience with Exadata, a computing platform. AR 2630.
12
Finally, SFI “did not provide the number of years of experience required for . . . 4
of the 26 LCATs,” for which it received a weakness. AR 2631. As the Technical
Evaluation Consensus Report notes, the proposed LCATs include a “required number
of years of relevant experience,” but SFI “proposed one to two years less experience
with a minimum bachelor’s degree” for those four LCATs. Id. As a result, “[t]hese
LCATs did not meet the Government’s minimum years of experience, making the
proposed LCATs inaccurate.” Id.
2. Evaluation of Technical Factor 2
Regarding the Similar Experience Subfactor within Factor 2, which required
quoters to submit three contracts that “have been performed, or are currently being
performed, not older than July 1, 2017, and are of similar size, scope, and complexity to
the work required by this RFQ,” AR 1319, SFI received significant strengths for two of
its past experiences and a strength for the third. AR 2633.
3. Evaluation of Technical Factor 3
Within Subfactor 3A’s criterion for providing high availability and scalability for
processing of geospatial data, SFI received a strength for its “experience in providing
high availability and scalability” in past contracts, which gave Census “confidence” that
SFI would “build and support [a] highly available and scalable processing environment
for MAF/TIGER.” AR 2637. Under the same criterion, Golden received a significant
weakness and high risk because its “offer was very generic in nature without any
concrete quote approaches or recommendations.” AR 2689.
SFI also received a significant strength within the Key Personnel subfactor for
proposing Mr. [JH] as its Information Specialist / Knowledge Engineer. AR 2642.
Census noted that Mr. [JH]’s technical certifications and certificates, the number of
which “exceeds the requirements,” would “bring knowledge and leadership to help
guide Census.” Id.
4. Price Evaluation
Overall, Census determined that SFI, [ * * * ], and [ * * * ] “provided complete,
accurate, and reasonable price quotes.” AR 2723. Census found that “Golden IT did
provide a reasonable price quote, but it did not provide a complete and accurate price
quote.” Id.
Census found that SFI “quoted the second lowest overall Master BPA price . . . at
$77,747,904.00 or 16.84% below the IGCE.” AR 2720. Golden “quoted the second
highest overall Master BPA price . . . at $90,142,371.64 or 3.58% below the IGCE.”
AR 2721. Golden’s Master BPA quote was thus $12,394,467.64 more expensive than that
of SFI. Golden’s total price for Call Order 0001 was $8,795,448.40; SFI’s total price for
Call Order 0001 was $7,787,284.80. AR 2718.
13
Census found that SFI properly understood the price quote instructions and SFI’s
LCATs “map[ped] correctly to their LCATs in the Technical Quotation.” AR 2713; see
also AR 2717 (“Spatial Front’s Call Order 0001 LCATs and price were consistent with the
Labor Categories and Rates in their BPA price quote[.]”).
Regarding Golden’s price quote, in contrast, Census concluded: (1) Golden’s
“price quote did not provide LCATs that were consistent with the Labor Categories and
Descriptions as requested” in the Solicitation; (2) Golden “failed to properly map their
GSA MAS IT Labor Categories in their price quote to the BPA Roles included in their
Technical Quotation”; and (3) “when Golden IT quoted the price for Call Order 0001,
they deviated from the LCATs provided in their BPA Labor Category Descriptions in
Tab No. 2 of their Attachment J.7 – Price Quote Template.” AR 2723.13 Census
concluded that “[t]hese inconsistencies could result in insufficient skills and lack of
experience to meet all the Government’s requirements as requested in Attachment J.8
LCAT Descriptions.” Id.; see also AR 2718.
5. Best Value Decision
The CO’s best value determination included a “price [/] technical trade off
analysis” between the “technically superior [SFI] quote and the lowest priced [ * * * ]
quote.” AR 2878. The CO determined that the “superior attributes of SFI’s technical
proposal . . . more than justifies the price premium of an additional $1,299,705.60 over
the lifecycle of the BPA.” AR 2880. Accordingly, Census awarded the BPA and first call
order to SFI on September 22, 2021. AR 2882–86.
C. Employment Timeline of Key Personnel Mr. [JH]
SFI proposed Mr. [JH] to fill the Key Personnel role of Information Specialist /
Knowledge Engineer. AR 1786–90. Mr. [JH] was an employee of SFI on May 20, 2021,
the day SFI apparently submitted its quote. ECF No. 40-1 (Declaration of [JD], SFI Vice
President, Human Resources and Contracts); ECF No. 40 at 4. Mr. [JH] departed SFI
and began working for another company at some point after that — albeit by May 31,
2021, at the latest. See ECF 34-1 (LinkedIn Profile of [JH]) (indicating that Mr. [JH]
worked for SFI from February 2021 to May 2021 and began work at [ * * * ] in May 2021).
In any event, there is no evidence in the administrative record — or proffered by
any party — suggesting that SFI had any indication prior to the time it submitted its
13Specifically, Census found that “14 of [Golden’s] 26 LCATs were . . . improperly mapped.”
AR 2712. Census found a similar error in Golden’s proposal for Call Order 0001. AR 2716–17
(“Golden IT’s Call Order 0001 Labor Categories did not consistently match the Labor Categories
in their BPA price quote Tab No. 2 — Master BPA Labor Price . . . 9 of the 17 Labor
Categories . . . were inconsistent with their BPA Price Quote Labor Categories’ Description[.]”).
14
proposal that Mr. [JH] intended to leave SFI for another employer and would not be
available for contract performance.
V. THE GOVERNMENT AND SFI ARE ENTITLED TO JUDGMENT ON THE
ADMINISTRATIVE RECORD
Golden challenges the Agency’s award to SFI based upon three primary
arguments: (1) that Census engaged in disparate treatment regarding the Solicitation’s
evaluation factors, Pl. MJAR at 24–32; (2) that SFI violated the Solicitation’s material
LCAT requirements and, thus, SFI’s quote is unawardable, id. at 18–19; and (3) that SFI’s
quote contained a material misrepresentation in proposing Mr. [JH] as key personnel,
id. at 20–24.14 For the reasons explained below, the Court rejects each of Golden’s
arguments.
A. Census Did Not Disparately Evaluate the Quotes
Golden argues that Census “disparately treated [Golden]’s proposal during its
evaluation.” Pl. MJAR at 25. The parties agree that this Court evaluates claims of
disparate treatment under the two-part standard outlined in Office Design Group v.
United States, 951 F.3d 1366 (Fed. Cir. 2020). Pl. MJAR at 24–25; Def. MJAR at 20. To
succeed on such a claim, a plaintiff protestor must show either: (1) “that the agency
unreasonably downgraded [the protestor’s] proposal for deficiencies that were
‘substantively indistinguishable’ or nearly identical from those contained in other
proposals”; or (2) “that the agency inconsistently applied objective solicitation
requirements between [the protestor] and other offerors, such as proposal page limits,
formatting requirements, or submission deadlines.” 951 F.3d at 1372.
Golden initially argued that the government’s evaluation included eleven
distinct instances of disparate treatment. Pl. MJAR at 25–32. Golden later abandoned
the vast majority of those claims and, thus, the Court addresses in detail only those that
were not.
For example, under Factor 1, Golden claims that Census “assigned Spatial Front
a strength for proposing a dedicated transition manager as key personnel” while
Golden “also proposed a transition manager as key personnel” but did not receive a
strength. Pl. MJAR at 27. Golden contends that “the proposals are substantively
indistinguishable because both [quoters] proposed a transition manager . . . as key
personnel” and that “[a] reasonable evaluation would have provided Golden IT with a
14Golden asserts that, as a result of the putative misrepresentation, SFI either should have
received a significant weakness with respect to the key personnel evaluation or that SFI’s quote
was unawardable as a matter of law. See Pl. MJAR at 24.
15
strength to match Spatial Front.” Id. The Court rejects this claim as plainly wrong. SFI
proposed a dedicated transition manager — i.e., one person singularly dedicated to the
role — while Golden merely noted (in a parenthetical) that its product manager would
“also function[] as [a] Transition Manager.” AR 1453.38, 1453.99 (emphasis added).
Golden’s reply brief does not address this obvious difference; instead, Golden merely
repeats its initial assertion. Pl. Reply at 15 (“[Census] assigned Spatial Front a strength
for proposing a dedicated transition manager as key personnel while ignoring Golden
IT’s offer of the same thing.”). This Court finds that the Agency reasonably concluded
that SFI’s dedicated transition manager is not “the same thing” as Golden’s proposal to
have one person perform split time between two roles. Id. The Court rejects Golden’s
disparate treatment argument regarding the Agency’s evaluation of the parties’
respective proposed transition managers.
Golden also contends, under Factor 2, that “Spatial Front’s third past
performance and experience example failed both the complexity and scope
requirements because it identified no programs at all other than to say there were
‘multiple . . . agencies’ involved.” Pl. MJAR at 29 (citing AR 1715). As explained above,
the Solicitation required quoters to provide examples of three contracts that “have been
performed, or are currently being performed, not older than July 1, 2017, and are of
similar . . . scope[] and complexity to the work required by this RFQ.” AR 1319 (emphasis
added). Regarding complexity, Golden asserts that Census “erroneously” gave SFI a
significant strength for its third past performance reference “because ‘complexity’
means supporting 5–10 large programs” and SFI only claimed to have supported four
such programs. Pl. MJAR at 29.15
Golden is correct that past performance and experience examples must show that
a quoter supported five to ten complex programs. AR 1319. The Solicitation, however,
also allows quoters to “include contracts on which they have performed, or are
performing work.” Id. (emphasis added). Under SFI’s third past performance and
experience example — a contract with the United States Department of Agriculture —
SFI noted that it had supported four major systems, but “was given a fifth
product . . . starting February 19, 2021.” AR 1715. The government clearly explains this
in its response brief. Def. MJAR at 31 (describing SFI’s fifth product and noting that the
Solicitation allows quoters to reference contracts currently being performed). In its
reply brief, Golden once again merely parrots its initial argument, but does not grapple
15Golden is incorrect that SFI received a significant strength. Rather, the Agency assigned SFI a
strength — but not a significant one — for its third past performance and experience reference.
AR 2633. Golden does not cite to any page in the administrative record to support the assertion
that SFI received a “significant strength” for its third past performance and experience example.
Pl. MJAR at 29; Pl. Reply at 16.
16
with the government’s explanation. Pl. Reply at 16. This Court concludes that the
government reasonably gave SFI credit for this particular past performance and
experience reference and that Golden does not demonstrate otherwise. Indeed, the
government’s approach makes sense given that the Solicitation allowed quoters to
include contracts currently being performed. Golden thus fails to prove that Census
improperly evaluated the past performance and experience requirement.16
Golden further argues, under Factor 3 (Call Order 0001 — Technical), that
Census erroneously assigned Golden a significant weakness and high risk rating for
Golden’s proposal for high availability and scalability for processing of geospatial data
in support of the MAF/TIGER system. Pl. MJAR at 30. Golden contends that its quote
“included the fact that it had been ‘supporting MAF/TIGER systems for many years,’
and provided a roadmap for high availability and scalability using Oracle GoldenGate,
among other things,” while SFI’s proposal “makes no mention of ‘approaches or
recommendations as to how they plan to provide high availability and scalability for
others.’” Id. (quoting AR 2689, 1453.65).
The record undermines Golden’s claims. Census reasonably found that Golden’s
quote was “very generic in nature without any concrete quote approaches or
recommendations as to how they plan to provide high availability and scalability for
[various applications].” AR 2689. In addition to being vague, the section of Golden’s
quote covering high availability and scalability was quite brief, totaling only two
paragraphs. AR 1453.65. In contrast, SFI’s proposal contained a full four-page section
dedicated to high availability and scalability for processing of geospatial data to
support the MAF/TIGER system. AR 1731–35. Census concluded that Golden’s failure
to “provid[e] a detailed strategy on how to provide high availability and scalability is a
High Risk[.]” AR 2689. The legal standard — as Golden itself articulates, Pl. MJAR
at 24–25 — requires showing either that proposals are “substantively indistinguishable”
or that the agency “inconsistently applied objective solicitation requirements,” Office
Design Grp., 951 F.3d at 1372. The proposals at issue here, however, are not
“substantively indistinguishable,” and Census did not “inconsistently appl[y] objective
16Past performance and experience examples also contained “scope” requirements. See AR
1319. The Court agrees with the government that Golden’s MJAR is devoid of support for the
conclusory assertion that SFI “failed . . . the scope requirement[].” Pl. MJAR at 29; Def. MJAR at
31 (correctly responding that Golden’s MJAR “does not offer any argument — much less record
evidence — in support of its contention that SFI’s [third past performance and experience
example] fails the RFQ’s scope requirements, and thus fails to meet its heavy burden of
demonstrating that Census’s decision was irrational.”). In its reply, Golden merely repeats the
Solicitation’s definition of the “scope” requirement but offers no support for its assertion that
SFI failed the requirement. Pl. Reply at 16.
17
solicitation requirements . . . such as proposal page limits, formatting requirements, or
submission deadlines,” in assigning Golden a significant weakness. Id.
Golden raised eight other disparate treatment arguments in its MJAR. See Pl.
MJAR at 25–32. The government countered each of these claims. See Def. MJAR at 20–
37. Golden then failed to address these arguments in its reply brief; thus, the
government contends that Golden’s apparent abandonment of these claims constitutes
waiver, and that the Court should not further address them. Def. Reply at 17 n.6.17 The
Court has carefully reviewed the briefs, agrees with the government that Golden failed
to respond to the government’s counterarguments and, accordingly, holds that Golden
has waived those eight claims.
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, e.g., Cap Export, LLC v. Zinus, Inc., 722 F. App’x 1004, 1009 (Fed.
17The government accurately identifies in its reply brief Golden’s arguments that it abandoned
by not responding to the government’s arguments:
The list of arguments that [Golden] has abandoned includes:
(1) Census should have “credited [Golden] and [Spatial Front] with
same significant strengths for their ability to provide coverage in
all situations,” [Pl. MJAR] at 25–26; (2) Census should have credited
[Golden] and SFI with same significant strengths for their ability to
ensure security, [Pl. MJAR] at 26; (3) Census should have credited
[Golden] and SFI with same strengths for their proposal to “cross
train” employees, [Pl. MJAR] at 26–27; (4) Census “assign[ed]
Spatial Front multiple strengths for the same item,” [Pl. MJAR] at
27; (5) Census erred in assigning [Golden] a weakness for not
specifying “calendar or business days” in reference to its plan to
update its Program Management Plan, [Pl. MJAR] at 27–28;
(6) Census unfairly assigned [Golden] a weakness for “not
discussing kick-off and action items deliverable requirements,” [Pl.
MJAR] at 28; (7) Census erred when it assigned [Golden] a
significant weakness for proposing Dennis Heisler and engaged in
disparate treatment by assigning SFI a significant strength for
proposing Dong Zhang, [Pl. MJAR] at 30–31; and (8) Census[]
“arbitrarily” failed to assign [Golden] three significant strengths for
its proposed Applications Systems Analyst (Master), Database
Specialist (Master), and Program Manager, [Pl. MJAR] at 31.
Def. Reply at 17 n.6.
18
Cir. 2018) (concluding that plaintiff-appellee “abandoned the reference altogether, as
[plaintiff-appellee] did not address that reference in its opposition brief before the
district court”); Sarro & Assocs., Inc. v. United States, 152 Fed. Cl. 44, 58 (2021) (“A party’s
failure to raise an argument in an opening or responsive brief constitutes waiver.”);
Shakur v. Schriro, 514 F.3d 878, 892 (9th Cir. 2008) (“We have previously held that a
plaintiff has ‘abandoned . . . claims by not raising them in opposition to [the
defendant’s] motion for summary judgment.’” (quoting Jenkins v. City of Riverside, 398
F.3d 1093, 1095 n.4 (9th Cir. 2005))); Allen v. Dollar Tree Stores, Inc., 475 F. App’x 159, 159
(9th Cir. 2012) (holding that the district court “properly dismissed” two of plaintiff’s
claims “because [plaintiff]’s opposition to the motion to dismiss failed to respond to
[defendant]’s arguments that those claims were time-barred”); Sportscare of Am., P.C. v.
Multiplan, Inc., 2011 WL 589955, at *1 (D.N.J. Feb. 10, 2011) (“In most circumstances,
failure to respond in an opposition brief to an argument put forward in an opening brief
constitutes waiver or abandonment in regard to the uncontested issue.”); Levy-Tatum v.
Navient Sols., Inc., 183 F. Supp. 3d 701, 712 (E.D. Pa. 2016) (finding that plaintiff, “by
filing a response in opposition to [defendant]’s motion to dismiss that addressed some,
but not all, of [defendant]’s arguments, abandoned those claims upon which [plaintiff]
failed to make any substantive arguments, and those claims are therefore waived”).
Notwithstanding that the Court holds that Golden has waived the eight
arguments the government identified, the Court has considered them and rejects them
on the merits for the reasons the government explained in its response brief. See Def.
MJAR 20–37.
In sum, Golden has failed to prove that Census engaged in disparate treatment of
Golden’s quote.
B. Census Was Not Required to Disqualify SFI Based on Its LCAT
Mapping Approach
Golden argues that the Solicitation contained various mandatory minimum
requirements for LCATs, including years of experience, that quoters had to meet or be
disqualified from the competition. Pl. MJAR at 18–19. SFI, for its part, does not dispute
that it failed to “provide the number of years of experience required for the LCAT
positions in 4 of the 26 LCATs.” AR 2631.18 Golden contends, therefore, that “Spatial
Front failed to meet a material term of the Solicitation” and Census “should have
18The government’s technical evaluation team found that, for four positions, SFI “proposed one
to two years less experience with a minimum bachelor’s degree” and that “[t]hese LCATs did
not meet the Government’s minimum years of experience, making the proposed LCATs
inaccurate.” AR 2631 (Technical Evaluation Consensus Report).
19
deemed Spatial Front’s quote unawardable and removed it from further evaluation,”
rather than merely assessing a weakness. Pl. MJAR at 19. Golden’s arguments fail.
As to the materiality of the government’s LCAT descriptions, including years of
experience, the RFQ does not mandate that quoters precisely match their available
LCATs or be disqualified from the competition. Section B.3.1 (“Labor Rates”) of the
RFQ provides that “[t]he Government is in need of labor categories that are comparable
to Approach LCAT Mapping.” AR 1211 (emphasis added). The Court is not sure
precisely what “Approach LCAT Mapping” is intended to reference — a typographical
error or omission is suspected — but that provision at least suggests that the
government’s LCAT descriptions are not mandatory minimums. Additionally, the RFQ
in Section C.5.2 (“Staffing Requirements”) provides that the particular requirements of a
government LCAT may be met via a combination of factors: “[t]he contractor shall
maintain skilled personnel that have a combined knowledge and abilities that at a
minimum are consistent in terms of specifications and categories provided in
Attachment J.8, Labor Category Descriptions Table.” AR 1223 (emphasis added). That
provision is further evidence that any individual requirement within an LCAT
description was not intended to serve as a mandatory minimum requirement for the
RFQ overall.
The RFQ instructions also do not communicate that the Agency’s LCAT
descriptions are mandatory minimums. Section F.5.4.1.2 required a “Staffing
Approach” be included with the quotes. AR 1234.19 In particular, such documentation
had to include “the Contractor’s Labor Categories and Descriptions that are mapped to
the Government’s Labor Categories and Descriptions.” AR 1236.20 These instructions
were amplified in Section L (“Instructions, Conditions, and Notice to Quoters”). For
example, Section L contained a Quote Deliverables Matrix, AR 1312, in which quoters
were instructed to include their “Draft BPA Staffing Approach” as Attachment 3 to the
quote. AR 1313.21 The matrix entry for the “Staffing Approach” cross-references
Section F.5.4.1.2, and similarly indicates that a “Draft [is] Due with Quote,” the
implication being that the Solicitation recognized that the planned approach is subject
to change. Id. More importantly, none of these instructions communicate that a
quoter’s various LCATs must map precisely to the government’s LCATs in Attachment
J.8 to avoid disqualification from the competition. See AR 1319 (specifying, with respect
19The “Master BPA Deliverables Chart” provides, with respect to the “Staffing Approach”
deliverable, that a “Draft [is] due with Quote.” AR 1234 (emphasis added).
The government’s LCAT descriptions were specified in a table, Attachment J.8 to the RFQ.
20
AR 823–27.
21 Elsewhere, Section L refers to Attachment 3 as the “Master BPA Staffing Plan.” AR 1311.
20
to “Factor 1 – Management Approach for BPA,” that quote deliverables must include a
“Draft Staffing Approach” but not providing any further instructions beyond that “the
total pages for all three attachments combined may not exceed 20 pages”).
Section M provides further, almost definitive, evidence that the RFQ did not
intend to elevate the government’s LCAT descriptions into mandatory minimum
requirements. In that regard, Section M indicates that “the technical evaluation will be
attained through a determination and analysis of strengths, weaknesses, and risks for
each quote.” AR 1330 (§ M.2). Applying that general approach to Factor 1, the RFQ
provides that the government will “consider strengths, weaknesses, and risks of the
Quoters[’] approach in addressing” a variety of items, including “proposed labor
category descriptions in the Draft Staffing Approach” — which, in turn, “will be
evaluated for completeness and accuracy to meet the Government’s requested LCAT[s]
and descriptions.” AR 1330–31 (§ M.2.1) (citing RFQ Attachment J.8 LCAT Descriptions
Table). Reading Section M.2.1 as a whole, as the Court must,22 the Court concludes that
the RFQ required the government to assess a quoter’s Draft Staffing Approach “for
completeness and accuracy” and then assign strengths, weaknesses, and risks,
accordingly. That is precisely what the Agency did in this procurement. See AR 2608–
11 (assigning [ * * * ] a strength, a weakness, and three significant weaknesses for its
Draft Staffing Approach); AR 2629–31 (assigning SFI two weaknesses and two
significant strengths for its Draft Staffing Approach); AR 2655–58 (assigning [ * * * ] a
strength, a weakness, and three significant weaknesses for its Draft Staffing Approach).
The Price Quote Template, see AR 817 (RFQ Attachment J.7), further confirms the
Court’s interpretation of the Solicitation’s instructions regarding the LCAT mapping.
The Price Quote Template, which quoters had to complete and submit, specifically
explained that “[t]he Government is in need of labor categories that are comparable to the
BPA Roles outlined below” and that “[t]he Government[-]provided descriptions are
solely based on what is anticipated for the work described in Section C of the
Solicitation.” AR 817 (emphasis added). Golden makes little to no effort to square its
reading of the significance of the government’s LCAT descriptions with the Price Quote
Template’s guidance, which, if anything, demonstrates that the government’s LCAT
descriptions do not contain mandatory minimum requirements.
In sum, there is essentially no indication in the RFQ that quoters were required to
map their LCATs such that they precisely matched the government’s LCATs in order
22See, e.g., Banknote, 365 F.3d at 1353 (noting that courts “must consider the solicitation as a
whole, interpreting it in a manner that harmonizes and gives reasonable meaning to all of its
provisions”); see also Safeguard Base Operations, LLC v. United States, 989 F.3d 1326, 1344 (Fed. Cir.
2021) (quoting Banknote, 365 F.3d at 1353).
21
for the quote to be awardable. All available evidence is to the contrary. The most the
Court can conclude in support of Golden’s argument is that the RFQ is ambiguous, but,
of course, it is far too late for Golden to complain about that now. See Blue & Gold Fleet,
L.P. v. United States, 492 F.3d 1308, 1313 (Fed. Cir. 2007) (holding that “a party who has
the opportunity to object to the terms of a government solicitation containing a patent
error and fails to do so prior to the close of the bidding process waives its ability to raise
the same objection subsequently in a bid protest action in the Court of Federal
Claims”).23
Golden’s argument regarding SFI’s compliance with the RFQ’s putative LCAT
requirements is the legal equivalent of throwing stones in a glass house, only here
Golden’s own house is far more fragile than SFI’s.
As noted above, four of SFI’s selected LCATs — in the technical part of SFI’s
quote — did not meet the years of experience in the corresponding government LCAT
descriptions to which SFI’s LCATs were mapped. AR 2631. The Agency appropriately
assessed a weakness against SFI, as a result. Id. What Golden did was much worse: in
the technical part of its quote, Golden matched its supposedly available LCATs to those
specified in the RFQ, but then, in its price quote, substituted different LCATs that failed to
match not only the government’s LCAT descriptions, but also what Golden itself had
quoted in its technical volume. AR 2782–90. Indeed, Golden, in its price quote, failed to
properly “map” 14 of its 26 LCATs — considerably more than what Golden argues
should render SFI’s quote unawardable. AR 2712.24 To make matters worse, the
required years of experience were lacking for six of Golden’s 26 mapped LCATs.25
23Moreover, where the Agency wanted to specify a mandatory LCAT requirement, it knew how
to do so. In the Agency’s responses to quoter questions, the government was asked to modify
the key personnel table to distinguish between “required skills” and “preferred skills.” AR 916
(Quoter Clarifying Questions and Government Responses). The questioner asserted that
“Offerors may not present qualified personnel if they lack a specific certification or fall short of
the minimum years of experience.” Id. The government rejected the request, noting that
“[u]nless a skill is specifically identified as preferred it will be required.” Id. Thus, the Agency,
with respect to key personnel, knew how to specify mandatory minimum requirements (and,
even here, the government’s answer creates an ambiguity because it addresses “skill[s]” but not
“minimum years of experience”).
The Agency determined that “Golden IT did not properly map their LCATs in their BPA Price
24
Quote to their LCATs provided in their Technical Quotation as required. 14 of the 26 LCATs
were identified and deemed improperly mapped.” AR 2712 (Price Evaluation Team Report).
Golden did not contest this finding.
25AR 2784 (showing that Golden proposed a Business Systems Analyst with “3–5 years of
relevant experience” to fill an Applications Systems Analyst (Journeyman) LCAT that required
“[a] minimum of 4 years of relevant Applications System experience”); AR 2785 (showing that
22
Accordingly, if anything, although Golden received no weaknesses for its
mapping in the technical volume, Golden’s non-compliance in its price volume in all
likelihood should have rendered its entire proposal unawardable. As the Court
explained above, the RFQ required the technical part of a submitted quote to contain an
LCAT mapping, aligning the available categories from a quoter’s GSA MAS IT contract
with the Agency’s LCATs described in Attachment J.8 of the RFQ. The Solicitation then
required quoters, in a separate volume — variously referred to as Part II26 or Volume
II27 — to “submit a price quote separate from the technical quote as part of their
quotation package.” AR 1323. That price quote had to reflect “overall pricing for the
BPA to include Quoters[’] proposed labor categories and a description for each [GSA
MAS – IT] labor category anticipated to be used under this BPA.” Id. The RFQ further
instructed that “Quoter[s] shall use Attachment J.7 —Titled Price Quotation Template
(Master BPA/Call Order 0001) to complete Volume II – Price Quotation.” AR 1324
(emphasis in original). That template, in turn, directed that “Offeror[s] shall map their
proposed MAS IT Labor Categories to the BPA Roles included in their Technical Proposal.”
AR 817 (emphasis added).
The government correctly paraphrased the RFQ pricing instructions: “In other
words, a quoter’s proposed pricing labor categories must match their technical
proposal[.]” Def. MJAR at 12. Golden failed to do so, essentially pricing a different
technical approach than that which Golden proposed in its technical volume. Such
attempted gamesmanship strikes the Court as completely unacceptable in the context of
the procurement itself, let alone in this litigation where Golden cannot explain why its
approach was not substantively identical to, if not more problematic than, SFI’s quote
with regard to LCAT mapping.
Golden proposed a Business Systems Analyst with “3–5 years of relevant experience” to fill a
Business Analyst (Journeyman) LCAT that required “[a] minimum of 4 years of relevant
experience” and that Golden proposed a Business Systems Analyst with “6–9 years of relevant
experience” to fill a Business Analyst (Senior) LCAT that required “[a] minimum 7 years of
relevant experience”); AR 2787 (showing that Golden proposed a Software/Information
Systems Specialist with “7–9 years of relevant experience” to fill a GIS Systems Analyst (Master)
LCAT that required “[a] minimum of 8 years of experience”); AR 2788 (showing that Golden
proposed a Subject Matter Expert with “2–7 years of relevant experience” to fill a Subject Matter
Expert LCAT that required “[a] minimum of 4 years of experience”); AR 2790 (showing that
Golden proposed a Software / Information Systems Specialist with “4–6 years of relevant
experience” to fill a Systems Engineer LCAT that required “5 years of experience”).
26 AR 1310 (§ L.5.1.), 1311 (Table 1.0).
27 AR 1323 (§ L.7) (“Volume II – Price Quote”).
23
In sum, the Court rejects Golden’s argument that Census should have
disqualified SFI based on SFI’s approach to the LCATs. If anything, either Golden
should be disqualified or, at a minimum, its reading of the RFQ precludes a finding of
prejudice in its favor at least on this issue. VS2, LLC v. United States, 155 Fed. Cl. 738,
768 (2021) (“The simple fact is that VS2 cannot now complain about Vectrus’s and the
government’s interpretation of the Solicitation when VS2 relied upon the very same
interpretation when preparing its proposal.”).
C. Golden Failed to Prove That SFI’s Quote Contained a Material
Misrepresentation Regarding Key Personnel
Golden contends in its amended complaint that the Agency should have
assigned a weakness to SFI’s quote — instead of a significant strength — for proposing
Mr. [JH] as key personnel for the position of Information Specialist / Knowledge
Engineer. Am. Compl. ¶ 91 (“Spatial Front’s failure to disclose Mr. [JH]’s departure
does not meet the [Census]’s stated important factors and Spatial Front should have
received a weakness for this issue.”); see also Pl. MJAR at 21 (“The Agency failed to
consider this important aspect of Mr. [JH] as a key personnel and [SFI] should therefore
have received a significant weakness.”). In Golden’s MJAR, Golden argues for the first
time — and without so alleging in its amended complaint — that SFI “misrepresented
the availability of Mr. [JH] either when it submitted its quote or because it failed to
notify the Agency of the material change to its quote when it had knowledge of Mr.
[JH]’s unavailability.” Pl. MJAR at 21. Golden thus asserts that SFI “should either have
received a significant weakness for this issue or it should be ineligible for award.” Id. at
24 & n.7 (arguing SFI “ostensibly engaged in a ‘bait and switch’”).28 This Court
assumes, without deciding, that both arguments are properly before it, notwithstanding
Golden’s failure to seek leave to amend its complaint a second time to assert that SFI’s
quote contained a material misrepresentation or that SFI engaged in an impermissible
bait-and-switch.29 The Court rejects Golden’s arguments, however, on the merits, for
failing to meet its burden of proof.
28In GAO parlance, claims of material misrepresentation are “refer[red] to . . . as a ‘bait and
switch.’” Patricio Enterprises Inc., B-412738, 2016 CPD ¶ 145, 2016 WL 3213000, at *3 (May 26,
2016).
29The Court notes that because it ordered seriatim (and not simultaneous) briefing, both the
government and SFI had the opportunity to respond fully to all of Golden’s arguments
regarding Mr. [JH]. Moreover, the central facts underlying the misrepresentation argument
were contained in Golden’s amended complaint and had Golden sought leave to amend its
complaint to add the legal claim, based on the facts already alleged, the Court in all likelihood
would have permitted it. Thus, in the Court’s view, neither the government nor SFI were
prejudiced by Golden’s new argument in its opening MJAR.
24
Allegations of knowing (or reckless) material misrepresentations in a proposal
are serious business. GAO, for example, described the nature of such a claim and its
consequences as early as 1978 in its decision in Informatics, Inc., B-188566, 57 Comp.
Gen. 217, 78-1 CPD ¶ 53, 1978 WL 13361 (Jan. 20, 1978). In that case, Informatics
protested NASA’s having selected only a competitor, Computer Sciences Corp.
(“CSC”), for final negotiations under a request for proposals for computer software
services. 57 Comp. Gen. at 218. The GAO’s decision focused on whether CSC’s
proposal misrepresented that Informatics’ employees agreed to accept offers of
employment from CSC should it win the contract. NASA selected CSC for final
negotiations in part because it had “provided a good explanation as to how they could
successfully fill [certain] positions” and because the agency had “no basis for not
believing the CSC statements.” Id. at 220. GAO ultimately determined that the
“manner in which CSC actually conducted [its] survey [of Informatics’ employees]
[was] at complete variance with the manner represented to NASA.” Id. at 224.
Although CSC argued that its misstatement was not material, the GAO found
otherwise, concluding that the “misstatement was relied upon by NASA in evaluating
CSC’s proposal.” Id. at 225 (“The record shows that the procuring officer thought it was
important for an offeror to be able to demonstrate that it would obtain the needed work
force.”).
In recommending that NASA “exclude CSC’s proposal from consideration for
award,” GAO explained as follows:
In the course of discussions in negotiated procurements[,]
contracting agency representatives frequently ask for
information from an offeror. The agency has a right to rely on
the factual accuracy of the responses. Given the importance
of such discussions and the delays and other difficulties
which would be experienced if agency personnel were
required to verify each response, we believe that the
submission of a misstatement, as made in the instant
procurement, which materially influences consideration of a
proposal should disqualify the proposal. The integrity of the
system demands no less. Any further consideration . . . would
provoke suspicion and mistrust and reduce confidence in the
competitive procurement system.
Informatics, 57 Comp. Gen. at 225.
Following Informatics, the GAO consistently has held that “an offeror’s
misrepresentation concerning personnel that materially influences an agency’s
25
consideration of its proposal generally provides a basis for proposal rejection or
reevaluation of the award decision based on the faulty proposal.” Aerospace Design &
Fabrication, Inc., B-278896, 98-1 CPD ¶ 139, 1998 WL 253792, at *4 (May 4, 1998) (citing
other GAO decisions); Patricio Enterprises Inc., B-412738, 2016 CPD ¶ 145, 2016 WL
3213000, at *12 (May 26, 2016) (concluding that a “proposal contained material
misrepresentations concerning the availability of its proposed personnel” and that “the
appropriate remedy here is for the Corps to exclude [that] proposal from the
competition”).
None of those cases explain, however, the analytical basis for this Court’s power
to invalidate a contract award pursuant to the applicable standard of review here. See
28 U.S.C. § 1491(b)(4).30 That is, assuming for the sake of argument that SFI’s proposal
indeed contained a material misrepresentation, how does that render the government’s
procurement decision arbitrary, capricious, or otherwise contrary to law? In other
words, while knowingly (or recklessly) false assertions in a proposal may give rise to
civil False Claims Act liability, see 31 U.S.C. § 3729(a)(1), or provide the government
with grounds to terminate an awarded contract, 31 why is the government subject to a
§ 1491(b) action — and the possibility of an injunction — for its (arguably) reasonable
reliance on an offeror’s false assertions?32
This Court need not definitively answer these questions because the Federal
Circuit has all but explicitly recognized that a plaintiff may object to a contract award
on the grounds that a proposal contained a material misrepresentation. See Plan. Rsch.
30“In any action under this subsection, the courts shall review the agency’s decision pursuant to
the standards set forth in section 706 of title 5.” 28 U.S.C. § 1491(b)(4).
31See Veridyne Corp. v. United States, 758 F.3d 1371, 1378–79 (Fed. Cir. 2014) (affirming this
Court’s decision finding a contractor liable pursuant to 31 U.S.C. § 3729(a)(1)(A) where the
contractor’s proposal contained false assertions of material fact designed to obtain a
government contract); see also id. at 1380 (“Because Mod 0023 was obtained by fraud, each
invoice submitted pursuant to that contract was tainted by that fraud.”). Even though a
contractor cannot obtain any recovery for a contract awarded as the result of fraudulent
conduct, id. at 1377–78, and even though an agency could terminate such a contract, it does not
obviously follow that a third-party — a disappointed offeror — has a cause of action against the
government to challenge the contract award.
32A possible explanation is that where an agency’s contract award is based on a proposal’s
material misrepresentation, the award is per se inconsistent with a solicitation’s requirements
and, thus, is contrary to law. Allied Tech. Grp., Inc. v. United States, 649 F.3d 1320, 1329 (Fed. Cir.
2011) (“[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.” (quoting E.W. Bliss Co. v. United
States, 77 F.3d 445, 448 (Fed. Cir. 1996))).
26
Corp. v. United States, 971 F.2d 736, 740–41 (Fed. Cir. 1992) (holding “that the
misrepresentations of [a contract awardee], together with the ‘massive’ personnel
substitutions made by [the contractor] after award with the acquiescence and assistance
of [the agency], tainted the bidding and evaluation process”).33 Indeed, in Planning
Research Corp., the Federal Circuit quoted the GAO’s Informatics decision at length and
with approval. See id. at 741 (quoting Informatics, 57 Comp. Gen. at 225, for the
proposition that “the submission of a misstatement . . . which materially influences
consideration of a proposal should disqualify the proposal”).
This Court repeatedly has followed the Federal Circuit in recognizing such
claims in bid protest-type actions as well. See, e.g., Optimization Consulting, Inc. v. United
States, 115 Fed. Cl. 78, 99 (2013) (“[T]he submission of a misstatement, as made in the
instant procurement, which materially influences consideration of a proposal should
disqualify the proposal.” (quoting Plan. Rsch. Corp., 971 F.2d at 741)); Blue & Gold Fleet,
L.P. v. United States, 70 Fed. Cl. 487, 495 (2006) (“To preserve the integrity of the
solicitation process when such a material misrepresentation influences the award of the
proposal, the proposal is disqualified from consideration.”), aff’d, 492 F.3d 1308 (Fed.
Cir. 2007); Northrop Grumman Corp. v. United States, 50 Fed. Cl. 443, 468 (2001)
(discussing Plan. Rsch. Corp., 971 F.2d at 741, and explaining that “[a] bidder to a
government contract who makes material misstatements in its proposal taints the
award to such a bidder[,] . . . prevent[s] government officials from determining the best
value to the government[,] and retard[s] the competitive bidding process[,]” such that
“[w]hen a bidder is found to have misrepresented its ability to perform a contract, that
bidder will lose its right to execute the solicited work”); Labat-Anderson, Inc. v. United
States, 42 Fed. Cl. 806, 855 (1999) (noting that the Federal Circuit in Planning Research
Corp., 971 F.2d at 741, cited “Informatics and other GAO ‘bait and switch’ decisions with
approval”); cf. NetCentrics Corp. v. United States, 145 Fed. Cl. 158, 170 (2019) (citing Plan.
Rsch. Corp. and Informatics, and concluding “that an agency may reasonably disqualify a
proposal on material misrepresentation grounds where — despite the fact that the
misrepresentation was inadvertently included in the proposal — the agency relied upon
it when making its award decision”).
33Cf. Impresa, 238 F.3d at 1339 (“It is well-established that a contracting officer should consider
disqualifying a proposed contractor if a material misrepresentation is made.” (citing GAO
decisions)); but see Orion I, 60 Fed. Cl. at 345 & n.16 (noting that “the Court takes no position at
this time as to whether this Court, in exercising its powers under the Administrative Dispute
Resolution Act of 1996, 28 U.S.C. § 1491(b)(1)-(4), may sustain a bid protest on these grounds,
absent Army complicity” and explaining that Planning Research Corp., 971 F.2d at 739–43,
involved a bait-and-switch “where [the] agency ignored evidence of the scheme and abetted it
after award” (emphasis added)).
27
Turning to the merits, all of the parties agreed that an offeror may not knowingly
misrepresent a material fact in a proposal for the purpose of winning a government
contract. Accordingly, there can be no serious dispute that if SFI proposed that Mr. [JH]
would serve in a key personnel role for the BPA (or the call order) — while knowing
that he had planned to depart the company without any intention of serving in such a
role for SFI — Golden likely would be entitled to judgment on the merits of its claim.34
Conversely, Golden’s misrepresentation claim must be rejected if SFI had a reasonable
basis for proposing that it would commit Mr. [JH] to serve as a member of key
personnel in performing the BPA and call order at issue. This question is
fundamentally one of fact, and Golden bears the burden of proof. See, e.g., Palantir, Inc.
v. United States, 904 F.3d 980, 989 (Fed. Cir. 2018) (noting that when deciding motions
for judgment on the administrative record, “the court considers ‘whether, given all the
disputed and undisputed facts, a party has met its burden of proof based on the
evidence in the record.’” (quoting A & D Fire Prot., Inc. v. United States, 72 Fed. Cl. 126,
131 (2006))).
As noted above, Mr. [JH] was an employee of SFI on May 20, 2021, the day SFI
apparently submitted its quote. ECF No. 40-1 (Declaration of [JD]); ECF No. 40 at 4. SFI
does not dispute that Mr. [JH] departed SFI and began working for another company at
some point after that, most likely by May 31, 2021, but certainly prior to the Agency’s
award decision. See ECF 34-1 (LinkedIn Profile of [JH]) (indicating Mr. [JH] worked for
SFI from February 2021 to May 2021 and began working at [ * * * ] in May 2021). The
fatal problem for Golden’s claim, however, is that there is simply no evidence in the
record — literally, nothing — demonstrating that SFI had any knowledge prior to
submitting its proposal, or at any point before Mr. [JH]’s departure from SFI, that he
intended to leave SFI. In the absence of any RFQ requirement that SFI secure written
commitments from proposed key personnel — and particularly given that Mr. [JH] was
a current SFI employee at the time of proposal submission — Golden cannot prevail on
its claim, at least not on this record.
Golden contends that SFI “knew or should have known that Mr. [JH] would not
be able to perform on the contract because, when proposals were due in May 2021,” Mr.
[JH] already left SFI or must have “delivered notice to Spatial Front indicating that he
would be leaving the company to take a more senior role as a Geospatial Program
Manager with [ * * * ] in Colorado.” Pl. MJAR at 22. As to the first point, the Court once
again finds that the administrative record, on balance, supports that Mr. [JH] was
employed at SFI when it submitted its proposal; as to the latter point, Golden merely
34The key personnel requirement is unquestionably a material one. See AR 1333 (“The
availability and commitment of Key Personnel is important to the Government and will be
evaluated through information contained in the written quote.”).
28
speculates about the timing of Mr. [JH]’s putative resignation notice. The Court is not
unsympathetic to the latter point. If Mr. [JH] had notified SFI of his impending
departure from the company in advance of its quote submission — and absent any basis
for believing that he would return to work for SFI on BPA call orders as a member of
SFI’s key personnel — Golden likely would prevail on its claim. The documentation SFI
submitted to substantiate Mr. [JH]’s commitment to SFI certainly raises questions
regarding what SFI knew about Mr. [JH]’s likely availability to serve as a key personnel
and when SFI knew it (i.e., prior to quote submission).35
Nevertheless, Golden cannot sustain its claim on questions alone. In that regard,
this may have been a case where discovery from the intervening awardee would have
been warranted to supplement the administrative record. See Orion I, 60 Fed. Cl. at 345
(permitting “limited discovery,” in the form of interrogatories, regarding whether the
successful bidder misrepresented its key personnel). As noted above, it is almost
inconceivable that the evidence necessary to support a claim of a knowing
misrepresentation in a proposal would ever be located in an agency’s administrative
record filed with the Court. Id. (permitting discovery where the necessary evidence to
support a misrepresentation claim is “not something that would ever normally be
found in an agency’s record”). Golden, however, never sought such discovery and the
Court, for obvious reasons, is loath to order such discovery sua sponte.36
Accordingly, the Court agrees with the government that as a factual matter there
is “no basis in the record for the conclusion that Mr. [JH] is not ‘willing to work’ for SFI”
— either now or at the time SFI submitted its quote. Def. Reply at 7.
35Golden observes that SFI’s supplemental documentation “does not say . . . when Spatial Front
knew [JH] was leaving,” arguing that “[c]ertainly, if it were true, it would be in [SFI]’s interest
to tell the Court that it did not know Mr. [JH] was leaving on the date it submitted its proposal,”
and notes that Mr. [JH]’s letter “has not said when Spatial Front knew he was leaving
employment, or that he committed at that time to return to Spatial Front’s employment.” Pl.
Reply at 4. This Court agrees with the GAO — and Golden’s implicit argument — “that the
eventual decision of [personnel identified in a proposal] to accept employment with the
awardee does not make [an offeror’s] statements in its proposal true after the fact.” Sev1tech,
Inc., B-416811, 2018 CPD ¶ 429, 2018 WL 6829687, at *5 (Dec. 18, 2018).
36Cf. Olaplex, Inc. v. L’Oréal USA, Inc., 855 F. App’x 701, 712 (Fed. Cir. 2021) (concluding that
“[i]f the record contains more evidence than we have identified, [plaintiff] has not brought such
additional evidence to our attention, and we need not sift the extensive record for it on our
own” and quoting Albrechtsen v. Bd. of Regents of Univ. of Wis. System, 309 F.3d 433, 436 (7th Cir.
2002), for the proposition that “Judges are not like pigs, hunting for truffles buried in the
record”); but see Oak Grove Techs., Inc. v. United States, 155 Fed. Cl. 84, 95 (2021) (describing a
series of orders in which the Court directed the government to file the whole administrative
record where the originally filed record appeared facially incomplete).
29
Golden further argues that SFI failed to notify Census of Mr. [JH]’s unavailability
because “[t]he Solicitation requires the [CO] to consent to all key personnel
substitutions.” Pl. MJAR at 23 (citing AR 1260, 1370). Relatedly, Golden notes that the
GAO “has long held that ‘offerors are obligated to advise agencies of material changes
in proposed staffing, even after submissions of proposals.’” Pl. MJAR 23 n.6 (quoting
M.C. Dean, Inc., B-418553, 2020 CPD ¶ 206, 2020 WL 3639639, at *3 (June 15, 2020)).
The first point is inapposite because the process specified in the RFQ for
substitution of key personnel applies post-award, during contract administration, and is
not a proposal instruction. In other words, so long as SFI had a reasonable basis to
propose Mr. [JH] as key personnel for the BPA work, the fact that Mr. [JH] later left the
company cannot render SFI’s quote unawardable. That premise also answers Golden’s
second contention, asserting that SFI violated its supposed duty to update the Agency
regarding changes in proposed staffing even after proposal submission.
Although the Court acknowledges the likely “obligation [of an offeror] to
ascertain the continuing availability of key personnel at the time of submission of final
proposal revisions,” OAO Corp. v. United States, 49 Fed. Cl. 478, 482 (2001),37 the Court is
unable to locate the basis for the GAO’s rule “that offerors or vendors are obligated to
advise agencies of material changes in proposed staffing, even after submission of
proposals.” AttainX, Inc., B-419306, 2021 CPD ¶ 21, 2021 WL 228876, at *4 n.4 (Jan. 12,
2021). Indeed, “[t]he GAO’s rule that offerors are ‘obligated’ to notify agencies of
changes in the status of their proposed key personnel” strikes the Court, candidly, as
without legal basis and “unfair.” Vernon J. Edwards, Key Personnel Substitutions After
Proposal Submission: An Unfair Rule, 31 Nash & Cibinic Rep. ¶ 59 (2017) (criticizing the
rule as “GAO diktat” because it has not been subject to “publication in the Federal
Register and an opportunity for public comment”).38
37See also NetCentrics Corp., 145 Fed. Cl. at 171 (“offerors have an ‘obligation to ascertain the
continuing availability of key personnel’ before submitting [final proposal revisions]” (emphasis
added) (citing OAO Corp., 49 Fed. Cl. at 482)).
38 “The simple facts of biology (illness, injury, incapacitation due to various causes, and death)
and the common realities of business life (people retire, quit, or must be laid off or fired) make it
unreasonable to expect that offerors will not experience changes in the status of their staffing
over the course of such lengthy periods. The GAO requires offerors to tell agencies when there
is a change, but does not require or permit agencies to provide a simple process of substitution.”
Vernon J. Edwards, Key Personnel Substitutions After Proposal Submission: An Unfair Rule, 31 Nash
& Cibinic Rep. ¶ 59 (2017). This Court concurs with that critique of the GAO’s decisions. See
Greg Petkoff, Mark Nackman, Carla Weiss, Joshua Violanti, & Sati Harutyunyan, FEATURE
COMMENT: Disclosure Dilemma for Government Contractors Learning Before Contract Award That
Proposed Key Personnel Are Not Available to Perform the Contract, 60 No. 28 Government
Contractor ¶ 228 (arguing that “GAO has no jurisdiction to make recommendations to offerors
30
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. Rotech Healthcare, Inc. v. United States, 121 Fed. Cl. 387, 400 (2015) (“Even if [the
awardee] ultimately did hire individuals other than those listed in its proposal, . . . that
would not be evidence that [the awardee] misrepresented itself given the fact that so
much time has passed since it submitted its proposal.”); Wackenhut Int’l, Inc. v. United
States, 40 Fed. Cl. 93, 99 (1998) (“If at some point after submitting its proposal [the
awardee] decided to change its approach to securing the required license, such a change
does not constitute fraudulent misrepresentation.”). 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 statue, 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.39
— including a recommendation that an offeror disclose the unavailability of key personnel
when the offeror first learns of this after proposal submission” and noting that “GAO cited no
statute or regulation that is violated if an offeror does not advise an agency of a staffing or
resource change that it learns about after submitting a final proposal revision”); but see Chenega
Healthcare Servs., LLC v. United States, 138 Fed. Cl. 644, 652 (2018) (appearing to endorse the
GAO’s rule, noting that “[a]s the GAO stated, when an offeror is obliged to make a change in the key
personnel included in its proposal, the agency has a choice between evaluating the original
proposal as submitted, or opening discussions to allow for modified proposals” (emphasis
added)).
39Notably, the GAO’s approach to “an impending or already consummated corporate
transaction” appears to primarily depend not upon an offeror’s or quoter’s knowledge of
changed factual circumstances — and a concomitant duty to update an agency — but rather on
an agency’s knowledge of the transaction. Vertex Aerospace, LLC, B-420073, 2021 WL 6337900, at
*4 (Nov. 23, 2021). In that recent decision, the GAO explained that its concern focuses on
“where an agency is aware” of such a transaction “but fails to assess the impact on proposals of
the restructuring.” Id. In such a case, “the agency runs the risk that its failure to do so will be
deemed improper, based of course, on the unique posture of that procurement and the
corporate transaction at issue.” Id. at *4–*5 (explaining that “[k]ey in our analysis in these
31
Accordingly, the Court declines to follow that line of GAO decisions, particularly
because the undersigned agrees with Judge Wolski that “[t]he extent to which [key
personnel] ha[ve] to commit to [an offeror] depends on what the solicitation required.”
Orion Int’l Techs. v. United States (Orion II), 66 Fed. Cl. 569, 574 (2005), aff’d, 185 F. App’x
966 (Fed. Cir. 2006). Here, the Solicitation did not require quoters to: (1) obtain
commitment letters from proposed key personnel; (2) constantly verify their continued
availability and willingness to serve in such roles following the BPA award; or
(3) update the Agency regarding the departure of employees proposed as key
personnel.
In OAO Corp., this Court all but rejected the existence of a freestanding obligation
to update a submitted proposal or FPR, explaining:
It is not clear to the court that this duty exists. While much of
the briefing deals with the various authorities on the elements
of “bait and switch,” the court must begin its legal analysis
with the text of the Solicitation. The court notes that there is
no language in the Solicitation which creates a duty to update
the availability of key personnel between final offer and
award. . . . It would have been a simple enough matter for the
decisions is both whether the contracting agency was aware of the particular corporate transaction,
and of the imminence and certainty of the transaction” (emphasis added)). The Court expresses
no view here as to whether the GAO’s approach to pending or completed corporate transactions
is correct. See Steven W. Feldman, Source Selections and Corporate Restructuring: The Lessons of
Wyle Laboratories, 47 Pub. Cont. L.J. 167, 168 n.2 (2018) (noting that, at least as of late 2018, “[t]he
Court of Federal Claims has yet to decide [such] a . . . protest”). The Court’s point is merely to
highlight a possible difference in GAO’s approach to protests involving changed circumstances.
But see id. at 192 (explaining that only “when the offeror is certain before the submission of final
proposal revisions (or even later) that the offeror is about to undergo a definite (and not just a
speculative) reorganization, the company’s prompt alert to the government is not just advisable
but also required under GAO decisional law” (emphasis added)); Dual, Inc., B-280719, 98-2 CPD
¶ 133, 1998 WL 833624, at *5 (Nov. 12, 1998) (“In these circumstances, Camber had an obligation
to advise the agency of the sale . . . when it agreed to the sale and lease back of facilities. . . .
Because Camber did not do so, the agency’s evaluation and its selection of Camber were based
upon representations concerning Camber’s personnel that were no longer true. The award was
based on Camber’s proposal representations, and to allow such an award to stand in spite of the
fact that Camber had not disclosed to the agency that it would not perform the contract as
proposed would call into the question the integrity of the competition.”). The Court
acknowledges, however, that there may be good and substantial reasons under the FAR to
distinguish between, on the one hand, the type of key personnel question at issue in this case
and, on the other hand, significant corporate transactions.
32
agency to have added such a provision to the Solicitation in
this case.
49 Fed. Cl. at 482. Like the facts described in OAO Corp., the government here is correct
that the Solicitation “did not require . . . letters of commitment, but instead merely
required key personnel descriptions and resumes.” Def. MJAR at 14 (citing AR 1322–
23). Nor did the RFQ require SFI to update the Agency regarding departures of key
personnel proposed in the quote. Again, this Court rejects the GAO’s freestanding rule
requiring offerors to update an agency regarding key personnel (i.e., in the absence of a
solicitation provision containing some such requirement or mandating a certification
regarding the future availability or commitment of proposed personnel).
In sum, all that is necessary here is that SFI had a reasonable belief, at the time of
its quote, that SFI would deploy Mr. [JH] as key personnel upon contract award.40
There is nothing in the administrative record that demonstrates by a preponderance of
the evidence that SFI lacked such a belief. The Court thus finds the government and SFI
are entitled to judgment on this issue, as well.41
CONCLUSION
For the above reasons, the Court GRANTS the pending motions to supplement
the administrative record, and further GRANTS the Defendant’s and Defendant-
Intervenor’s respective motions for judgment on the administrative record. The Court
DENIES Plaintiff’s motion for judgment on the administrative record.
Accordingly, the Clerk is directed to enter JUDGMENT for Defendant and
Defendant-Intervenor.
IT IS SO ORDERED.
s/Matthew H. Solomson
Matthew H. Solomson
Judge
40As Judge Wolski observed in Orion II, the Federal Circuit in Planning Research Corp. accepted
the Board’s finding that the offeror “never intended to hire the persons whose résumés it had
submitted.” Orion II, 66 Fed. Cl. at 576. No such similar evidence exists in this case.
Given that the Court has determined that the government and SFI are entitled to judgment on
41
Counts One, Two, and Three of Golden’s amended complaint, the Court holds that Count Four
— alleging that Census’s best value analysis was arbitrary and capricious, see Am. Compl.
¶¶ 93–95 — similarly fails.
33