System Dynamics International, Inc. v. United States

In the United States Court of Federal Claims
No. 16-710 C
Filed: February 7, 2017
****************************************
* 28 U.S.C. § 1491(b) (Bid
SYSTEM DYNAMICS * Protest Jurisdiction);
INTERNATIONAL, INC., * 48 C.F.R. 15.305 (Proposal
* Evaluation);
Plaintiff, * 48 C.F.R. 15.306 (Determination
* Of Competitive Range);
v. * 48 C.F.R. 15.404-1(Proposal
* Analysis Techniques);
THE UNITED STATES, * 48 C.F.R. 33.103(d) (Procedures
* Governing Agency Protest);
Defendant, * 48 C.F.R. 52.222-46 (Evaluation
* Of Compensation For
and * Professional Employees);
* Rule of the United States Court of
CRUZ ASSOCIATES, INC., * Federal Claims (“RCFC”)
* 12(b)(1) (Motion To
Defendant-Intervenor. * Dismiss For Lack Of
* Subject-Matter
* Jurisdiction).
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Walter Brad English, Maynard, Cooper & Gale, P.C., Huntsville, Alabama, Counsel for Plaintiff.
Amanda L. Tantum, United States Department of Justice, Civil Division, Washington, D.C.,
Counsel for the Government.
Robert Erwin Korrroch, Williams Mullen, P.C., Newport News, Virginia, Counsel for
Defendant-Intervenor.
MEMORANDUM OPINION AND FINAL ORDER
BRADEN, Judge.
On June 17, 2016, System Dynamics International, Inc. (“SDI”) filed a Complaint in the
United States Court of Federal Claims protesting the United States Special Operations Command’s
 On January 31, 2017, the court forwarded a sealed copy of this Memorandum Opinion
And Permanent Injunction to the parties to redact any confidential and/or privileged information
from the public version and note any citation or editorial errors requiring correction. The parties
proposed no redactions.
(“the SOCOM”) decision to eliminate SDI from the competitive range of Solicitation No. H92241-
15-R-0003 (“Solicitation”). To facilitate review of this Memorandum Opinion And Final Order,
the court has provided the following outline:
I. Relevant Factual Background.
A. Overview Of Solicitation No. H92241-15-R-003.
1. The Technical Capability Factor.
a. Regarding The Management Approach Subfactor.
b. Regarding The Recruitment, Retention, And Sustainment Of A Qualified
Workforce Subfactor.
c. Regarding The RFTOP Subfactor.
2. The Price Factor.
3. The Past Performance Factor.
B. Objections To The Terms Of Solicitation No. H92241-15-R-0003.
C. The Source Selection Evaluation Board’s May 9, 2016 Initial Evaluation.
1. SDI’s Technical Capability Evaluation.
2. SDI’s Past Performance Evaluation.
3. SDI’s Price Evaluation.
D. The May 24, 2016 Competitive Range Determination.
II. Procedural History.
III. Discussion.
A. Jurisdiction.
B. Standing.
1. Whether SDI Is An Interested Party.
2. Whether SDI Was Prejudiced By The SOCOM’s Alleged Errors.
C. The Relevant Standards Of Review.
1. The Standard Of Review For A Motion To Dismiss, Pursuant To RCFC 12(b)(1).
2. The Standard Of Review For Judgment On The Administrative Record,
Pursuant To RCFC 52.1.
3. The Standard Of Review For Bid Protest.
4. The Standard Of Review For An Agency’s Decision To Establish A Single Offer
Competitive Range.
D. Whether The SOCOM’s Determination To Exclude SDI From The Competitive
Range Was Contrary To Law, Not Rational, Or Arbitrary And Capricious.
1. The SOCOM’s Evaluation Of SDI’s Proposal Under The Technical Capability
Factor.
a. Count I Of The August 1, 2016 Amended Complaint.
2
b. SDI’s August 8, 2016 Motion For Judgment On The Administrative Record.
c. The Government’s August 29, 2016 Motion To Dismiss, Cross-Motion For
Judgment On The Administrative Record, And Response To Plaintiff’s
Motion For Judgment On The Administrative Record.
d. SDI’s September 12, 2016 Reply In Support Of Plaintiff’s Motion For
Judgment On The Administrative Record And Response To Motion To
Dismiss And Cross-Motion For Judgment On The Administrative Record.
e. The Government’s September 26, 2016 Reply In Support Of Its Motion For
Judgment On The Administrative Record.
f. The Court’s Resolution.
i. Regarding Waiver.
ii. Regarding SDI’s Deficiency Under The Recruitment, Retention, And
Sustainment Of A Qualified Workforce Subfactor.
2. The SOCOM’s Failure To Specify Its Needs In A Manner Designed To Achieve
Full And Open Competition.
a. Count II Of The August 1, 2016 Amended Complaint.
b. The Government’s August 29, 2016 Motion To Dismiss.
c. SDI’s September 12, 2016 Response To Motion To Dismiss.
d. The Government’s September 26, 2016 Reply.
e. The Court’s Resolution.
3. The SOCOM’s Evaluation Of SDI’s Proposal Under The Price Factor.
a. Count IV Of The August 1, 2016 Amended Complaint.
b. SDI’s August 8, 2016 Motion For Judgment On The Administrative Record.
c. The Government’s August 29, 2016 Cross-Motion For Judgment On The
Administrative Record, And Response To Plaintiff’s Motion For Judgment
On The Administrative Record.
d. SDI’s September 12, 2016 Reply In Support Of Plaintiff’s Motion For
Judgment On The Administrative Record.
e. The Government’s September 26, 2016 Reply In Support Of Its Motion For
Judgment On The Administrative Record.
f. The Court’s Resolution.
IV. Conclusion.
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I. RELEVANT FACTUAL BACKGROUND.1
A. Overview Of Solicitation No. H92241-15-R-003.
On June 3, 2015, the SOCOM issued a draft Solicitation to procure analytical, technology,
and logistic services to support the United States Army Special Operations Command Airborne
(“USAOC Abn”).2 AR at 1. The draft Solicitation stated that the SOCOM intended to award a
Firm Fixed Price/Cost, Indefinite Delivery-Indefinite Quantity contract. AR at 1.
On October 19, 2015, the SOCOM issued a final Solicitation to procure:
 technical analysis;
 flight test support;
 logistic services;
 network/information technologies; and
 program analysis in support of the Systems Integration and Management Office
(“SIMO”) 3 and Aviation Maintenance Support Office (“AMSO”).4
AR at 266.
The minimum value of the proposed contract was $100,000; the maximum value was
$140,000,000, over the five-year base contract, plus an optional award of five additional twelve-
month ordering periods. AR at 265.
The October 19, 2015 Solicitation stated that a contract would be awarded, pursuant to
Federal Acquisition Regulation (“FAR”) part 15, on a “best value” basis. AR at 372. The
Solicitation added that, “best value” would be determined by weighing three factors: (1) technical
1
The facts cited herein were derived from: SDI’s August 1, 2016 Amended Complaint
(“Am. Compl. ¶¶ 1–120”); the July 18, 2016 Administrative Record (“AR at 1–4144”); and the
September 1, 2016, Correction To Administrative Record (“AR at 426.1–426.34, 4145–4412”).
2
USAOC Abn plans, conducts and supports Special Operations missions worldwide using
highly modified aircrafts, including: “the A/MH-6 MELB; the MH-60 Blackhawk; an armed MH-
60 variant, known as the Defensive Armed Penetrator (DAP); the MH-47 Chinook, MQ-1C Grey
Eagle Unmanned Aerial Systems (UAS) C-12 Passenger and C-27 Cargo aircraft.” AR at 27.
3
The mission of the SIMO is “to support the integration of new equipment and specialized
mission components into the aviation assets of the [USAOC Abn] and its subordinate
organizations.” AR at 27.
4
The mission of the AMSO is “to provide aviation logistics and maintenance technical
support to the [USAOC Abn].” AR at 27.
4
(management) capability; (2) price; and (3) past performance. AR at 372. Technical capability
was cited the most important factor, then price, and lastly past performance. AR at 372. The
Solicitation also stated that “proposals that [were] unrealistic in terms of technical (management)
capability or price may be rejected. AR at 372. In addition, offerors were “cautioned that one or
more deficiencies in any factor or criteria may be grounds for exclusion of the proposal for further
consideration for [an] award.” AR at 372.
1. The Technical Capability Factor.
The Solicitation required the SOCOM to consider three technical capability subfactors: (a)
management approach; (b) recruitment, retention, and sustainment of a qualified workforce; and
(c) the offeror’s response to the SOCOM’s request for task order proposals (“RFTOPs”). AR at
373. Each subfactor was rated as “outstanding,” “good,” “acceptable,” “marginal,” or
“unacceptable.” AR at 374. A marginal rating indicated that a proposal’s risk of unsuccessful
performance was high; an unacceptable rating signified that the proposal was not subject to an
award. AR at 374.
a. Regarding The Management Approach Subfactor.
The Solicitation required, under the management approach subfactor, that each offeror:
“fully substantiate the proposed management approach to providing services that achieve the
Government’s objective;” provide “resumes for the [listed] key personnel;” and “draft Flight and
Ground Operations Procedures (‘FGOP’) plan.” AR at 365. The Solicitation added that “[t]he
FGOP must comply with and be suitable for flight operations as mandated by the DCMA INST
8210.1 upon date of contract award.” AR at 365.
b. Regarding The Recruitment, Retention, And Sustainment Of
A Qualified Workforce Subfactor.
The Solicitation also required that the SOCOM “evaluate the offeror’s approach to
recruitment of an appropriately qualified workforce, including initial phase-in if applicable, and
the ability to provide this workforce over the contract term with minimal turnover and replacement
of members of the workforce.” AR at 373. The SOCOM was to evaluate the proposal and
determine whether the offeror could “provide employees that meet the requirements of the
Professional Labor Categories [‘PLC’] and solicitation requirements.” AR at 373. In addition,
the Solicitation required that proposals comply with FAR 52.222-46.5 AR at 373.
c. Regarding The RFTOP Subfactor.
The Solicitation also explained that the SOCOM intended to award a task order at the time
of the contract award. AR at 365-66. To facilitate the award and demonstrate understanding of
5
FAR 52.222–46, Evaluation of Compensation for Professional Employees, provides:
(a) Recompetition of service contracts may in some cases result in lowering the
compensation (salaries and fringe benefits) paid or furnished professional
employees. This lowering can be detrimental in obtaining the quality of
professional services needed for adequate contract performance. It is therefore in
5
the task order process, the Solicitation required offerors to provide a proposal for the initial task
order, together with a sample task order. AR at 366. Proposals would be evaluated to ensure that
the initial task order was awardable and “to assess the offeror’s general approach to analyzing and
responding to a Government performance requirement[.]” AR at 373.
As to the sample task order, bidders were provided with an actual flight scenario and raw
data, including “longitudinal static and long term dynamic stability Pulse Code Modulation (PCM)
recordings.” AR at 368. Based on this information, bidders were required to “generate conclusions
and recommendations regarding the longitudinal stability of the UH-60L [helicopter].” AR at 368.
Conclusions were to be presented in a flight test report that included data reduction, findings, and
the Government’s best interest that professional employees, as defined in 29 C.F.R.
541, be properly and fairly compensated. As a part of their proposals, offerors will
submit a total compensation plan setting forth salaries and fringe benefits proposed
for the professional employees who will work under the contract. The Government
will evaluate the plan to assure that it reflects a sound management approach and
understanding of the contract requirements. This evaluation will include an
assessment of the offeror’s ability to provide uninterrupted high-quality work. The
professional compensation proposed will be considered in terms of its impact upon
recruiting and retention, its realism, and its consistency with a total plan for
compensation. Supporting information will include data, such as recognized
national and regional compensation surveys and studies of professional, public and
private organizations, used in establishing the total compensation structure.
(b) The compensation levels proposed should reflect a clear understanding of work
to be performed and should indicate the capability of the proposed compensation
structure to obtain and keep suitably qualified personnel to meet mission objectives.
The salary rates or ranges must take into account differences in skills, the
complexity of various disciplines, and professional job difficulty. Additionally,
proposals envisioning compensation levels lower than those of predecessor
contractors for the same work will be evaluated on the basis of maintaining program
continuity, uninterrupted high-quality work, and availability of required competent
professional service employees. Offerors are cautioned that lowered compensation
for essentially the same professional work may indicate lack of sound management
judgment and lack of understanding of the requirement.
(c) The Government is concerned with the quality and stability of the work force to
be employed on this contract. Professional compensation that is unrealistically low
or not in reasonable relationship to the various job categories, since it may impair
the Contractor’s ability to attract and retain competent professional service
employees, may be viewed as evidence of failure to comprehend the complexity of
the contract requirements.
(d) Failure to comply with these provisions may constitute sufficient cause to justify
rejection of a proposal.
48 C.F.R. 52.222-46(a)–(d).
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supporting data plots. AR at 368. In addition, the Solicitation required that the flight test report
“[p]rovide detailed engineering analysis” and satisfy “Army Standards for Technical Writing,
Analysis and Reporting” as set out in ATTC 70-2. AR at 369.
2. The Price Factor.
Regarding the price factor, the Solicitation stated that the SOCOM would consider five
subfactors: completeness; compliance with the instructions; price reasonableness; indefinite
delivery-indefinite Quantity total evaluated price; and price realism. AR at 374. Offerors also
were required to complete the PLC pricing schedule attached to the Solicitation. AR at 370. The
schedule worksheet required that offerors provide direct labor, fringe benefits, general and
administrative costs, and overhead rates, resulting in a monthly total for each of the 105 PLCs for
the five-year base period and for the five, twelve-month term options. AR at 142 (sample PLC
pricing schedule).
3. The Past Performance Factor.
Regarding the past performance factor, the Solicitation stated that the SOCOM would
consider “the relevancy and the risk associated with performing the current effort based upon the
offeror’s prior performance.” AR at 374. Past performance was to be evaluated by four subfactors:
quality of performance; management effectiveness; customer satisfaction; and timeliness. AR at
375.
In addition, the Solicitation required that the SOCOM consider the “currency,”
“relevancy,” and “trends” of past performance information. AR at 375. The Solicitation defines
“currency” as “performance occurring within three years of the solicitation release date.” AR at
375. “Relevancy” was defined as “providing similar services as required by the Professional Labor
Categories during the contract term.” AR at 375. The Solicitation also required that an offeror’s
experience be evaluated as “very relevant,” “relevant,” “somewhat relevant” or “not relevant.” AR
at 376.
Each proposal also would receive a “confidence rating,” based on past performance. AR
at 375. This rating was expected to reflect the SOCOM’s confidence that an offeror successfully
could perform the contract. A proposal would receive one of four confidence ratings: substantial
confidence; satisfactory confidence; limited confidence; or no confidence. AR at 376. If an offeror
presented “no recent/relevant performance record” or “the offeror’s performance record [was] so
sparse that no meaningful confidence assessment rating [could] be reasonably assigned,” the
SOCOM would assign the offer a “neutral” rating. AR at 376.
B. Objections To The Terms Of Solicitation No. H92241-15-R-0003.
On August 10, 2015, SDI’s agent, Avista Strategies, Inc. (“Avista”), submitted a letter to
the SOCOM’s Contracting Officer (“CO”) objecting to portions of the June 3, 2015 draft
Solicitation. AR at 5. Specifically, Avista complained that “the requirement for the key personnel
[were too] restrictive, almost as if the requirements mirror the qualification of a particular
individual.” AR at 6. In addition, Avista noted that the draft Solicitation contained an excessive
number of PLCs. AR at 6.
7
It appears that the CO ignored Avista’s August 10, 2015 Objections, so that SDI submitted
an October 29, 2015 letter to the SOCOM’s Ombudsman, lodging the same objections as Avista.
AR at 255. On November 2, 2015, the SOCOM filed Amendment 1 that revised sections L and
M, removed key personnel, and changed the PLC descriptions. AR at 261–293. By letter, the
Ombudsman explained that several of the changes in Amendment 1 were made in response to
objections lodged by SDI. AR at 259.
On November 6, 2015, the SOCOM also published Amendment 2, changing the relevancy
factors for past performance. AR 371, 375. Amendment 2 changed the definition of “somewhat
relevant past performance” from “a service contract at a minimum of $75 million,” to “[a contract
with] value in a range of $35 [million] to $75 [million].” AR at 371. In addition, Amendment 2
deleted a section of the October 19, 2015 Solicitation, that explained:
if award will be made without conducting discussions, an offeror may be given the
opportunity to clarify certain aspects of their proposals (i.e. the relevance of an
offeror’s past performance information, as related to this acquisition, adverse past
performance information to which the offeror has not previously had an opportunity
to respond or to resolve minor clerical errors.
AR at 375.
In response, on November 18, 2015, SDI submitted a timely proposal. AR at 1145–
1646. Cruz Associates, Inc. (“CAI”), the incumbent contractor, was the only other offeror.
AR at 1647–2486.
C. The Source Selection Evaluation Board’s May 9, 2016 Initial Evaluation.
On May 9, 2016, the Source Selection Evaluation Board (“SSEB”) published an Initial
Evaluation Report weighing both proposals. AR at 2753. The Initial Evaluation stated that:
Evaluators read each proposal; analyzed the proposal at the [factor and] subfactor
level to determine what the proposal offers, and then compared the offer with the
appropriate evaluation standard. . . . After evaluators completed their individual
subfactor evaluation, they met as a group to arrive at a consensus. The group
documented the rationale of their consensus decisions for the official record in the
factor summary worksheets.
AR at 2753–54.
As required by the Solicitation, the Initial Evaluation Report also considered the strength
of each proposal according to three factors: (1) technical capability; (2) price; and (3) past
performance. AR at 2753 (summarizing evaluation criteria and relative importance of factors).
1. SDI’s Technical Capability Evaluation.
The SSEB evaluated SDI’s technical capability, based on three subfactors: (1) management
approach; (2) recruitment, retention, and sustainment of a qualified workforce; and (3) the offeror’s
8
response to the SOCOM’s RFTOPs. AR at 2754. The SSEB identified the strengths,6
weaknesses,7 or deficiencies8 of each subfactor and assigned the proposal an overall technical
capability rating of “outstanding,” “good,” “acceptable,” “marginal,” or “unacceptable.” AR at
2754–55. Following this process, the SSEB concluded that SDI’s “proposal contained numerous
weaknesses, two significant weaknesses, and two deficiencies that make the proposal
unawardable.” AR at 2771.
Regarding management approach, SDI received two “significant weaknesses.” AR at
4128-39. First, the SSEB found that “[t]he proposed management approach [did] not adequately
substantiate the effective use of key personnel. Two of the seven proposed key personnel [were]
determined not qualified for the respective positions.” AR at 2772. Second, “[t]he proposal did
not provide a draft FGOP that was in compliance with the latest DCMA Instruction 8210.1[.] [In
addition,] significant safety information [was] either formatted incorrectly, misaligned, or missing
. . . . [The FGOP] would require significant revision in order to be determined as ‘suitable for
flight operations.’” AR at 2773.
Under the recruitment, retention, and sustainment of a qualified workforce subfactor, the
SSEB found that SDI’s proposal was deficient, because “professional compensation [was]
unrealistically low and is nearly certain [to] be detrimental to satisfactory contract performance.”
AR at 2776. In addition, the SSEB found that “employee direct compensation [would] be reduced
by 32.1% from the incumbent workforce levels. This unrealistically low compensation would be
detrimental in obtaining [] quality [] professional services . . . [and failed to] reflect a clear
understanding of the work to be performed.” AR at 2776 (internal quotation marks omitted).
Finally, the SSEB found that SDI’s RFTOPs contained one deficiency and several
weaknesses. AR at 2777–81. The SSEB found that SDI’s RFTOPs were deficient, because they
failed to demonstrate a sufficient understanding of how to gather and analyze static stability test
data and failed to use “industry-standard analysis techniques, such as those presented in USNTPS
FTM 107.” AR at 2777. The SSEB also found that the proposal contained contradictory
statements and failed to present critical data appropriately. AR at 2777. And, the SSEB found
that SDI’s RFTOPs contained several weaknesses; most of which involved formatting errors and
6
The May 9, 2016 Initial Evaluation Report defined “strength” as “a feature, item,
technique or methodology of an offeror’s proposal [that] stands out as a significant benefit to
enhance the effective execution of the program.” AR at 2755.
7
The FAR defines “weakness” as “an omission or a flaw in the proposal that increases the
risk of unsuccessful performance.” 48 C.F.R. 15.001. A “significant weakness” is defined as “a
flaw in the submission that appreciably increases the risk of unsuccessful contract performance.”
48 C.F.R. 15.001.
8
The FAR defines “deficiency” as “a material failure of a proposal to meet a Government
requirement or a combination of significant weaknesses in a proposal that increases the risk of
unsuccessful performance to an unacceptable level.” 48 C.F.R. 15.001.
9
an alleged failure to analyze engineering flight test data, instead of directly evaluating the mission
tasks. AR at 2778–81.
2. SDI’s Past Performance Evaluation.
The SSEB found that, because SDI did not provide any past performance reference where
it performed as the prime contractor, SDI was assigned a “neutral” confidence rating. AR at 2783.
3. SDI’s Price Evaluation.
The SSEB found that SDI’s price included a 32.1 percent reduction in average employee
compensation, compared to incumbent levels. AR at 2783. The Initial Evaluation explained that
“[t]he methodology described in the proposal . . . appears to have used local and regional labor
rates as opposed [to] national rates[.]” AR at 2783. Because of the Solicitation’s complex labor
categories, however, personnel must be recruited nationally. AR at 2783. For this reason, the
SSEB concluded that SDI’s proposed compensation rates were unrealistically low. AR at 2783.
D. The May 24, 2016 Competitive Range Determination.
On May 24, 2016, the CO issued a Competitive Range Determination, excluding SDI. AR
at 2873. CAI, however, was included in the competitive range. AR at 2873. Because the SOCOM
did not receive any other offers, the CO’s determination established a competitive range of one
offeror. AR at 2873. In support, the CO cited the SSEB’s Initial Evaluation, recommending that:
Due to SDI’s significant weaknesses and deficiencies, the proposal does not meet
requirements and is deemed UNAWARDABLE.
Cruz Associates Inc. had numerous technical strengths, a few weaknesses, and one
significant weakness. The SSEB has serious concern that significant cuts in salaries
could result in a high turnover rate upon contract award and pose significant
difficulty in recruiting replacements. . . . [But, the] overall proposal was deemed
ACCEPTABLE and overall risk of unsuccessful performance is MODERATE[.]
. . . [For these reasons,] [t]he SSEB recommends establishing a competitive range
of one offeror, Cruz Associates Inc.
AR at 2787.
II. PROCEDURAL HISTORY.
On June 17, 2016, SDI filed a Complaint (“Compl.”), under seal, in the United States Court
of Federal Claims, protesting the SOCOM’s decision to remove SDI from the competitive range
and seeking “to enjoin the [SOCOM] from proceeding to award [the contract].” On that same day,
SDI filed an Application For Temporary Restraining Order and a Motion For Entry Of Preliminary
Injunction. ECF No. 5.
On June 20, 2016, the court convened a status conference during which the Government
represented that the SOCOM would not award the contract until resolution of this bid protest. On
10
June 21, 2016, CAI filed a Motion To Intervene. ECF No. 13. On June 22, 2016, the Government
filed, under seal, an Unopposed Motion For Protective Order. ECF No. 16. That same day, the
court granted CAI’s June 21, 2016 Motion To Intervene. The court, however, denied SDI’s June
17, 2016 Application For A Temporary Restraining Order and reserved judgment on the June 17,
2016 Motion For Preliminary Injunctive Relief. ECF No. 17.
On July 14, 2016, the Government filed a Joint Proposed Briefing Schedule. ECF No. 26.
On July 15, 2016, the court entered the Proposed Briefing Schedule. ECF No. 27. On July 18,
2016, the Government filed a Notice Of Filing Administrative Record. ECF No. 28. On July 22,
2016, the Government filed, under seal, a Motion To Supplement The Administrative Record.
ECF Nos. 30.
On August 1, 2016, SDI filed, under seal, an Amended Complaint, including four counts
(“Am. Compl.”). On August 8, 2016, SDI filed, under seal, a Motion For Judgment On The
Administrative Record And Memorandum Brief In Support Thereof (“Pl. Mot.”). On August 9,
2016, the court granted the Government’s July 22, 2016 Motion To Supplement The
Administrative Record, in light of SDI’s representation, that it did not object. ECF No. 33.
On August 29, 2016, the Government filed, under seal, a Numbered Version Of
Administrative Record Supplementation. ECF No. 35. On that same day, the Government filed a
Motion To Dismiss, Cross-Motion For Judgment On The Administrative Record, and a Response
To Plaintiff’s Motion For Judgment On The Administrative Record (“Gov’t Resp.”). And CAI
filed a Cross-Motion For Judgment On The Administrative Record, Opposition To Plaintiff’s
Motion For Judgment On The Administrative Record And Memorandum In Support Thereof
(“CAI Resp.”).
On September 1, 2016, SDI filed, under seal, a Correction To Administrative Record to
include Tabs 15a and 44–50. ECF Nos. 37, 38. On September 7, 2016, SDI filed, under seal, a
Motion To Supplement Administrative Record. ECF No. 39.
On September 12, 2016, SDI filed, under seal, a Reply In Support Of Plaintiff’s Motion
For Judgment On The Administrative Record And Response To Motion To Dismiss And Cross-
Motions For Judgment On The Administrative Record (“Pl. Reply”).
On September 26, 2016, the Government filed, under seal, a Response To Plaintiff’s
Motion To Supplement The Administrative Record. ECF No. 42. The Government also filed a
Reply In Support Of Its Cross-Motion For Judgment On The Administrative Record (“Gov’t
Reply”). That same day, CAI filed a Reply In Support Of Its Cross-Motion For Judgment On The
Administrative Record (“CAI Reply”).
III. DISCUSSION.
A. Jurisdiction.
Pursuant to the Administrative Dispute Resolution Act of 1995 (“ADRA”), the United
States Court of Federal Claims has jurisdiction:
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to render judgment on an action by an interested party objecting to a solicitation by a
Federal agency or proposals for a proposed contract or to a proposed 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) (emphasis added).
The August 1, 2016 Amended Complaint alleged several violations of law and/or
regulation “in connection with” the SOCOM’s decision to eliminate SDI from the competitive
range, under Solicitation No. H92241-15-R-003. Specifically, Counts I and III allege that the
SOCOM’s evaluation of SDI’s technical capability and past performance were contrary to the
terms of the Solicitation and therefore arbitrary and capricious, an abuse of discretion, and contrary
to applicable law. Am. Compl. ¶¶ 68, 111. Count II alleges that the Solicitation failed to specify
the SOCOM’s needs in a manner designed to achieve full and open competition, as required by
the FAR. Am. Compl. ¶ 100 (citing Glenn Def. Marine (Asia) PTE Ltd. v. United States, 97 Fed.
Cl. 568, 578 (2011) (“As a general rule, offerors must be given sufficient detail in an RFP to allow
them to compete intelligently and on a relatively equal basis.”)). Count IV alleges that the
SOCOM’s evaluation of SDI’s proposed price was contrary to FAR 15.404-1(d)(3).9 Am. Compl.
¶ 115.
Title 28 U.S.C. § 1491(b)(3), however, states that “[i]n exercising jurisdiction under this
subsection, the courts shall give due regard to . . . expeditious resolution of the action.” 28 U.S.C.
§ 1491(b)(3). The appeals court, in Blue & Gold Fleet, L.P. v. United States, interpreted section
1491(b)(3) to mean 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.” Blue & Gold Fleet, L.P. v. United States, 492 F.3d 1308, 1313 (Fed. Cir. 2007).
“It is well settled . . . that the [United States] is ordinarily immune from suit, and that it
may define the conditions under which it will permit such actions.” Honda v. Clark, 386 U.S. 484,
501 (1967) (emphasis added). For this reason, the Supreme Court has held that “[w]hen waiver
legislation contains a statute of limitations, the limitations provision constitutes a condition on the
waiver of sovereign immunity.” Block v. N. Dakota ex rel. Bd. of Univ. & Sch. Lands, 461 U.S.
9
FAR 15.404-1(d)(3) provides:
Cost realism analyses may also be used on competitive fixed-price incentive
contracts or, in exceptional cases, on other competitive fixed-price-type contracts
when new requirements may not be fully understood by competing offerors, there
are quality concerns, or past experience indicates that contractors’ proposed costs
have resulted in quality or service shortfalls. Results of the analysis may be used
in performance risk assessments and responsibility determinations. However,
proposals shall be evaluated using the criteria in the solicitation, and the offered
prices shall not be adjusted as a result of the analysis.
48 C.F.R. 15.404-1(d)(3) (emphasis added).
12
273, 287 (1983). Much like a statute of limitations, Blue & Gold Fleet articulates a procedural
requirement that must be met, before a plaintiff can bring a bid protest in the United States Court
of Federal Claims. Accordingly, the court has determined that the Blue and Gold Fleet waiver
rule is a condition on jurisdiction, under section 1491(b).
In this case, the Government argues that the court should dismiss Counts I and II of the
August 1, 2016 Amended Complaint for failure to state a claim upon which relief may be granted,
pursuant to Rule of the United States Court of Federal Claims (“RCFC”) 12(b)(6), because SDI
failed to raise the objections alleged in those counts before the bidding process closed. Gov’t
Resp. at 19. For the reasons provided above, however, the court has determined that the waiver
rule articulated in Blue & Gold Fleet is a jurisdictional requirement that is more appropriately
addressed under RCFC 12(b)(1). Whether SDI waived the claims alleged in Counts I and II is
addressed below.
B. Standing.
Under 28 U.S.C. § 1491(b)(1), standing is a threshold issue. See Myers Investigative &
Sec. Servs. v. United States, 275 F.3d 1366, 1369–70 (Fed. Cir. 2002) (“[S]tanding is a threshold
jurisdictional issue.”). To establish standing under the Tucker Act, a bid protester must
demonstrate that the protestor: (1) is an “interested party;” and (2) was prejudiced by alleged errors
in the procurement process. See Myers, 275 F.3d at 1370 (holding that standing under § 1491(b)(1)
is limited to interested parties); see also See Labatt Food Serv., Inc. v. United States, 577 F.3d
1375, 1378–79 (Fed. Cir. 2009) (“It is basic that because the question of prejudice goes directly to
the question of standing, the prejudice issue must be reached before addressing the merits.”).
Moreover, the protestor must establish standing on a claim-by-claim basis. Lewis v. Casey, 518
U.S. 343, 358 (1996) (“[S]tanding is not dispensed in gross. If the right to complain of one
administrative deficiency automatically conferred the right to complain of all administrative
deficiencies, any citizen aggrieved in one respect could bring the whole structure of state
administration before the courts for review. That is of course not the law.”).
1. Whether SDI Is An Interested Party.
The United States Court of Appeals for the Federal Circuit has construed the term
“interested party” under 28 U.S.C. § 1491(b)(1) to be synonymous with “interested party,” as
defined by the Competition In Contracting Act (“CICA”), 31 U.S.C. § 3551(2)(A). See Rex Serv.
Corp. v. United States, 448 F.3d 1305, 1307 (Fed. Cir.2006) (citing decisions adopting the CICA
definition of “interested party” for 28 U.S.C. § 1491(b)(1) purposes). Under 31 U.S.C. §
3551(2)(A), a protester is an “interested party” if the protestor: (1) was an actual or prospective
bidder or offeror; and (2) has a direct economic interest in the procurement or proposed
procurement. See Distrib. Solutions, Inc. v. United States, 539 F.3d 1340, 1344 (Fed. Cir. 2008).
A protestor that is eliminated from the competitive range may have an economic interest in the
proposed procurement if, after a successful protest, “the government would be obligated to rebid
the contract, and appellant could compete for the contract once again.” Impresa Construzioni
Geom. Domenico Garufi v. United States, 238 F.3d 1324, 1334 (Fed. Cir. 2001).
In this case, SDI submitted a timely proposal in response to the Solicitation. AR at 1145–
1646. SDI was therefore “an actual . . . bidder or offeror,” satisfying the first element of the
13
“interested party” test. See Distrib. Solutions, 539 F.3d at 1344. In addition, the August 1, 2016
Amended Complaint alleges that the SOCOM’s evaluation of SDI’s proposal was contrary to the
terms of the Solicitation and the FAR. Am. Compl. ¶¶ 68, 100, 111, 115. If established, these
allegations would render the SOCOM’s decision to eliminate SDI from the competitive range
contrary to applicable law as well as arbitrary and capricious, and an abuse of discretion. See
Impresa, 238 F.3d at 1332 (holding that an agency’s procurement procedure is arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with law when it “involved a
violation of regulation or procedure [established in the Solicitation]”). Accordingly, the SOCOM
would be obligated to rebid the contract, and SDI could compete for the contract once again.
C.A.C.I., Inc.-Fed. v. United States, 719 F.2d 1567, 1575 (Fed. Cir. 1983) (“[A determination that
an agency’s procurement process was arbitrary and capricious] would require the government, if
it wants to go ahead with the procurement, to repeat the bidding process under circumstances that
would eliminate the alleged taint of the prior proceedings.”). For these reasons, SDI established a
direct economic interest in the proposed procurement, satisfying the second element of the
“interested party” test.
2. Whether SDI Was Prejudiced By The SOCOM’s Alleged Errors.
Standing also requires the protestor to demonstrate prejudice. See Myers, 275 F.3d 1366,
1370 (Fed. Cir. 2002) (“[P]rejudice (or injury) is a necessary element of standing.”). “A party has
been prejudiced when it can show that but for the error, it would have had a substantial chance of
securing the contract.” See Labatt, 577 F.3d at 1378; see also Bannum, Inc. v. United States, 404
F.3d 1346, 1358 (Fed. Cir. 2005) (“To establish ‘significant prejudice’ [the protestor] must show
that there was a ‘substantial chance’ it would have received the contract award but for the [alleged]
errors . . . [.]”). “In other words, the protestor’s chance of securing the award must not have been
insubstantial.” Info. Tech. & Applications Corp. v. United States, 316 F.3d 1312, 1319 (Fed. Cir.
2003).
Regarding Counts I and IV, the August 1, 2016 Amended Complaint alleges that the
SOCOM assigned SDI’s proposal two deficiencies under the technical capability factor, based on
an assessment that did not comply with the terms of the Solicitation. Am. Compl. at ¶¶ 71, 116.
“Each of these errors, separately and collectively . . . alter[ed] [the] evaluation criteria and the
[SOCOM]’s consideration thereunder. Am. Compl. at ¶ 97. Had the SOCOM evaluated SDI’s
proposal in accordance with the Solicitation, however, SDI would not have received either
deficiency. Am. Compl. at ¶¶ 97, 120. Similarly, Count II alleges that both of the deficiencies
that SDI received, “were the direct result of the [SOCOM]’s nondisclosure of its labor mix and
restrictive staffing profiles.” Am. Compl. at ¶ 103. Had the SOCOM provided SDI with the
information that it did not have, regarding labor mix and staffing profiles, SDI would not have
received either deficiency. Am. Compl. at ¶ 107.
SDI’s exclusion from the competitive range was caused by the SOCOM’s determination
that SDI’s bid contained “one or more deficiencies.” AR at 2787, 4144. But for the errors alleged
in Counts I, II and IV, however, SDI’s proposal would not have received any deficiencies and
would have been included in a competitive range of two. In addition, SDI and CAI received
roughly the same number of strengths (AR at 2855, 57, 58, 61) and “[t]he SSEB ha[d] serious
concern that [CAI’s] [proposed] cuts in salaries could result in a high turnover rate . . . and pose
significant difficulty in recruiting replacements,” (AR at 2787). Absent those errors, SDI would
14
have had “a substantial chance of securing the contract.” See Labatt, 577 F.3d at 1378. For these
reasons, the court has determined that SDI established prejudice regarding Counts I, II and IV of
the August 1, 2016 Amended Complaint.
Count III, however, alleges that the SOCOM inappropriately assigned SDI a “neutral/not
relevant” rating under the past performance factor. Am. Compl. at ¶ 111. “Had the [SOCOM]
evaluated SDI’s past performance on the basis of the Solicitation’s requirements, it would have
determined that SDI had substantial experience in the areas required by the Solicitation. SDI
would therefore not have received a [n]eutral rating, but very likely a higher rating than the one it
received.” Am. Compl. at ¶ 112. The May 9, 2016 Initial Evaluation, however, explained that
SDI’s proposal was “unawardable,” because it contained “significant weaknesses and
deficiencies” under the technical capability factor, not because it lacked relevant experience under
the past performance factor. AR at 2787. Similarly, SDI’s pre-award debriefing reported that
SDI’s proposal was unacceptable, because it “contains one or more deficiencies.” AR at 4144.
Therefore, a higher past performance rating would not have changed the SOCOM’s determination
to exclude SDI from the competitive range. Accordingly, SDI was not prejudiced by the error
alleged in Count III of the August 1, 2016 Amended Complaint.
For these reasons, the court has determined that SDI has standing to challenge the
SOCOM’s determination to exclude SDI’s proposal from the competitive range as alleged in
Counts I, II and IV of the August 1, 2016 Amended Complaint. SDI, however, has not established
prejudice, and therefore does not have standing, to challenge its exclusion from the competitive
range on the grounds alleged in Count III.
C. The Relevant Standards Of Review.
1. The Standard Of Review For A Motion To Dismiss, Pursuant To RCFC
12(b)(1).
A challenge to the United States Court of Federal Claims’ “general power to adjudicate in
specific areas of substantive law . . . is properly raised by a [Rule] 12(b)(1) motion[.]”
Palmer v. United States, 168 F.3d 1310, 1313 (Fed. Cir. 1999); see also RCFC 12(b)(1) (“Every
defense to a claim for relief in any pleading must be asserted in the responsive pleading. . . . But
a party may assert the following defenses by motion: (1) lack of subject-matter jurisdiction[.]”).
When considering whether to dismiss an action for lack of subject matter jurisdiction, “a court
must accept as true all undisputed facts asserted in the plaintiff’s complaint and draw all reasonable
inferences in favor of the plaintiff.” Trusted Integration, Inc. v. United States, 659 F.3d 1159,
1163 (Fed. Cir. 2011).
2. The Standard Of Review For Judgment On The Administrative
Record, Pursuant To RCFC 52.1.
In this case, the parties filed Cross-Motions For Judgment On The Administrative Record,
pursuant to RCFC 52.1. The court should treat a judgment on the administrative record as an
expedited trial on the record. See Bannum, 404 F.3d at 1356. Therefore, the existence of material
issues of fact does not prohibit the court from granting a RFCF 52.1 motion. Id. at 1354. Instead,
the court can base its ultimate determination on “factual findings from the record evidence.” Id.
15
Moreover, while “factual disputes may percolate throughout an administrative record,” Ellsworth
Assocs., Inc. v. United States, 45 Fed. Cl. 388, 393 (1999), the court must follow a “presumption
of regularity” and uphold the agency’s action “as long as a rational basis is articulated and relevant
factors are considered,” Emery Worldwide Airlines, Inc. v. United States, 264 F.3d 1071, 1085
(Fed. Cir. 2001) (quoting Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 415 (1971)).
3. The Standard Of Review For Bid Protest.
Pursuant to the Tucker Act, as amended by the Administrative Dispute Resolution Act,
Pub. L. No. 104-320 § 12, 110 Stat. 3870, 3874 (Oct. 19, 1996), Congress authorized the United
States Court of Federal Claims to review challenges to agency decisions, pursuant to the standards
set forth in the Administrative Procedure Act (“APA”), 5 U.S.C. § 706. See 28
U.S.C. § 1491(b)(4) (“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.”); see also 5
U.S.C. § 706(2)(A) (“The reviewing court shall . . . hold unlawful and set aside agency action,
findings, and conclusions found to be . . . arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law[.]”); Banknote Corp. of Supp., Inc. v. United States, 365 F.3d 1345,
1350 (Fed. Cir. 2004) (“Among the various APA standards of review in section 706, the proper
standard to be applied in bid protest cases is provided by 5 U.S.C. § 706(2)(A): a reviewing court
shall set aside the agency action if it is ‘arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law.’”) (citations omitted).
The United States Court of Appeals for the Federal Circuit has held that the court’s primary
responsibility is to determine whether a federal agency violated a federal statute or regulation in
the procurement process and whether any such violation was prejudicial. See Axiom Res.
Mgmt. v. United States, 564 F.3d 1374, 1381 (Fed. Cir. 2009) (holding that “the disappointed
bidder must show a clear and prejudicial violation of applicable statutes or regulations”) (internal
quotation marks and citations omitted); see also Banknote Corp., 365 F.3d at 1351 (holding, when
challenging a government contract procurement due to a violation of law or procedure, “the
disappointed bidder must show a clear and prejudicial violation of applicable statutes or
regulations”) (citations omitted). As part of this inquiry, the court must determine whether the
agency’s proposal evaluations were consistent with the evaluation scheme described in the relevant
solicitation. See 48 C.F.R. § 15.305(a) (2007) ( “An agency shall evaluate competitive proposals
and then assess their relative qualities solely on the factors and subfactors specified in the
solicitation.”).
If a federal agency’s action is challenged, because it was made without a rational basis, the
trial court must “determine whether the contracting agency provided a coherent and reasonable
explanation of its exercise of discretion, so that the disappointed bidder bears a heavy burden of
showing that the award decision had no rational basis.” Centech Group, Inc. v. United States, 554
F.3d 1029, 1037 (Fed. Cir. 2009); see also Savantage Fin. Servs. Inc. v. United States, 595 F.3d
1282, 1287 (Fed. Cir. 2010) (“We must sustain an agency action unless the action does not evince
rational reasoning and consideration of relevant factors.”) (internal alterations, quotations and
citations omitted); Weeks Marine, Inc. v. United States, 575 F.3d 1352, 1368-69 (Fed. Cir. 2009)
(“We have stated that procurement decisions invoke[] highly deferential rational basis review . . .
[u]nder that standard, we sustain an agency action evincing rational reasoning and consideration
of relevant factors.”) (internal quotations and citations omitted).
16
Finally, if a federal agency’s action is challenged on the grounds that an agency has acted
in an arbitrary or capricious manner, the court may intervene “only in extremely limited
circumstances.” United States v. John C. Grimberg Co., 702 F.2d 1362, 1372 (Fed. Cir. 1983).
Courts have held that a federal agency’s decision to be arbitrary and capricious, if it “entirely failed
to consider an important aspect of the problem, offered an explanation for its decision that runs
counter to the evidence before the agency, or [the decision] is so implausible that it could not be
ascribed to a difference in view or the product of agency expertise.” Motor Vehicle Mfrs.
Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983).
4. The Standard Of Review For An Agency’s Decision To Establish A
Single Offer Competitive Range.
In Birch & Davis Int’l, Inc. v. Christopher, the United States Court of Appeals for the
Federal Circuit held that “if [a] contracting officer has determined an initial competitive range of
one, there must be a clear showing that the excluded bids [had] ‘no reasonable chance’ of being
selected.” Birch & Davis Int’l, Inc. v. Christopher, 4 F.3d 970, 974 (Fed. Cir. 1993). The appellate
court’s holding was a statutory interpretation of FAR 15.609(a) (1992), that states: “[t]he
competitive range . . . shall include all proposals that have a reasonable chance of being selected
for award.” Id. at 973 (“[T]he FAR does not allow a contracting officer to eliminate competitors
from the initial competitive range if there is any ‘reasonable chance’ that they will be selected.”);
48 C.F.R. 15.609(a) (1992) (emphasis added). But, “[t]he FAR standard for inclusion in the
competitive range was changed in 1997 to be much narrower[.]” USfalcon, Inc. v. United States,
92 Fed. Cl. 436, 459 (2010). At that time, FAR 15.609(a) (1992) was replaced by FAR 15.306(c),
that states: “the contracting officer shall establish a competitive range comprised of all of the most
highly rated proposals, unless the range is further reduced for purposes of efficiency . . . [.]” 48
C.F.R. 15.306(c)(1).
Under FAR 15.306(c), the agency has greater discretion in establishing a single offer
competitive range, because the FAR no longer encourages contracting officers to include marginal
proposals with a “reasonable chance of being selected for award.” See USfalcon, 92 Fed. Cl. at
459 (“[T]he FAR itself is no longer cause to follow the approach to review taken in the old
precedents, which were applying the now-obsolete ‘reasonable chance’ . . . standard.”); but see L-
3 Commc’ns EOTech, Inc. v. United States, 83 Fed. Cl. 643, 650 (2008) (“[The United States
Court of Federal Claims] has interpreted the language of FAR 15.306(c)(1) to require close
scrutiny when an agency establishes a competitive range of only one offeror . . . [.]”). Instead, the
contracting officer may narrow the competitive range to include only “the most highly rated
proposals.” 48 C.F.R. 15.306(c). For these reasons, the court has determined that the usual
“arbitrary and capricious” standard applies to the court’s review of the SOCOM’s decision to
establish a single offer competitive range. Cf. USfalcon, 92 Fed. Cl. at 461 (reviewing agency
decision to establish a single offer competitive range, under “arbitrary and capricious” standard).
17
D. Whether The SOCOM’s Determination To Exclude SDI From The
Competitive Range Was Contrary To Law, Not Rational, Or Arbitrary And
Capricious.
1. The SOCOM’s Evaluation Of SDI’s Proposal Under The Technical
Capability Factor.
a. Count I Of The August 1, 2016 Amended Complaint.
Count I alleges that the SOCOM’s decision to assign SDI’s proposal a deficiency under
the RFTOP subfactor was contrary to law, arbitrary and capricious, and an abuse of discretion.
Am. Compl. ¶ 79. The SOCOM assigned SDI a deficiency under the RFTOP subfactor, because
SDI’s sample task order did not use “industry-standard analysis techniques such as those presented
in USNTPS FTM 107” and failed to “present data addressing longitudinal stick position at off-
trim speeds ‘appropriately’ to analyze control position gradient.” Am. Compl. at ¶ 79. But, Count
I also alleges that the Solicitation “withheld vital information about testing techniques.” Am.
Compl. at ¶ 80. For example, “[c]ritical to a successful evaluation of the experimental test data
. . . was the knowledge that one of the data sets was generated from static stability test procedures
described by USNTPS FTM 107,” but the Solicitation “provided no information about the test
procedures used to generate the data sets and made no reference to USNTPS FTM 107.” Am.
Comp. at ¶¶ 81, 83. Therefore, SDI’s deficiency under the RFTOP subfactor was “directly
attributable to the [SOCOM]’s failure to provide basic testing information.” Am. Compl. at ¶ 84.
In addition, Count I alleges that the SOCOM’s assessment of SDI’s proposal under the
qualified workforce subfactor was contrary to the terms of the Solicitation. Am. Compl. at ¶ 78.
The SOCOM assigned SDI’s approach to the recruitment, retention and sustainment of a qualified
workforce a deficiency, because SDI’s compensation package was unrealistically low. Am.
Compl. at ¶ 72. But, the SOCOM evaluated SDI’s proposed compensation based solely on direct
salary rates, instead of SDI’s entire compensation package, including fringe benefits, as required
by the Solicitation. Am. Compl. at ¶ 73.
b. SDI’s August 8, 2016 Motion For Judgment On The
Administrative Record.
SDI argues that the SOCOM evaluated the RFTOP in a manner contrary to applicable law,
because the evaluation was based on factors not specified in the Solicitation. Pl. Mot. at 20 (citing
10 U.S.C. § 2305(b)(1) (“The head of an agency shall evaluate sealed bids and competitive
proposals and make an award based solely on the factors specified in the solicitation.”).
Specifically, an offeror would not know to [plot airspeed versus longitudinal stick position at off-
trim speeds and calculate the gradient of the resulting curve] unless it knew . . . that the data
provided resulted from [USNTPS] FTM 107 test procedures.” The Solicitation, however, did not
disclose that information. Pl. Mot. at 18. The SOCOM’s assessment that SDI’s RFTOP was
deficient, because it failed to include data addressing longitudinal stick position at off-trim speeds
appropriately to analyze control position gradient was inconsistent with the terms of the
Solicitation. Pl. Mot. at 18, 20.
18
SDI also contends that the SOCOM’s evaluation of SDI’s proposed compensation package,
under the recruitment, retention, and sustainment of a qualified workforce subfactor, was contrary
to law, arbitrary and capricious, and an abuse of discretion, because this assessment deviated from
the terms of the Solicitation. Pl. Mot. at 16. (citing L-3 Commc’ns EOTech, 83 Fed. Cl. at 654
(“When the evaluation of proposals materially deviates from the evaluation scheme described in
the solicitation, the agency’s failure to follow the described plan may constitute evidence of
arbitrary and capricious decision-making.”)). The Solicitation required the SOCOM to evaluate
total compensation, including fringe benefits. Pl. Mot. at 14. The SOCOM, however, evaluated
SDI’s compensation package based on proposed salaries alone. Pl. Mot. at 15.
c. The Government’s August 29, 2016 Motion To Dismiss, Cross-
Motion For Judgment On The Administrative Record, And
Response To Plaintiff’s Motion For Judgment On The
Administrative Record.
The Government responds that SDI waived its objection to the Solicitation’s nondisclosure
of the techniques used to generate the RFTOP data sets, because SDI did not raise that objection
before the bidding process closed. Gov’t Resp. at 15 (citing Blue & Gold Fleet, 492 F.3d at 1313
(“[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.”)).
Accordingly, the court should dismiss those portions of Count I alleging that the Solicitation’s
failure to disclose that RFTOP data sets were generated using techniques described in USNTPS
FTM 107 was contrary to law, arbitrary and capricious, and an abuse of discretion. Gov’t Resp.
at 19.
In addition, the SOCOM’s evaluation of the proposed compensation packages did not
deviate from the terms of the Solicitation. Gov’t Resp. at 36. The Solicitation required the
SOCOM to ensure that proposed “salary rates or ranges [] [took] into account differences in skills,
the complexity of various disciplines, and professional job difficulty. . . . Failure to comply with
these provisions may constitute sufficient cause to justify rejection of a proposal.” Gov’t Resp. at
37 (quoting 48 C.F.R. 52.222-46(b), (d)). Therefore, the SOCOM’s determination that SDI’s
proposed salaries were “unrealistically low” and “would be detrimental in obtaining the quality of
professional services needed for adequate contract performance” was consistent with the
Solicitation’s requirements. Gov’t Resp. at 41.
d. SDI’s September 12, 2016 Reply In Support Of Plaintiff’s
Motion For Judgment On The Administrative Record And
Response To Motion To Dismiss And Cross-Motion For
Judgment On The Administrative Record.
SDI responds that Blue & Gold Fleet only applies to objections about the express terms of
the solicitation—not to an agency deviation from the Solicitation evaluation process. Pl. Reply at
2. Count I does not object to the terms of the Solicitation, but to the “unstated evaluation factors
[that] the [SOCOM] employed” during its assessment of SDI’s RFTOP. Pl. Reply at 3.
19
In addition, the SOCOM’s assessment of its proposal under the recruitment, retention, and
sustainment of a qualified workforce subfactor was arbitrary and capricious, because the SOCOM
based its evaluation solely on salary rates and did not consider SDI’s total compensation, as
required by the Solicitation. Pl. Reply at 5.
e. The Government’s September 26, 2016 Reply In Support Of
Its Motion For Judgment On The Administrative Record.
The Government replies that SDI waived its right to contest the SOCOM’s evaluation of
the RFTOP subfactor, because SDI’s concerns are based on the terms of the Solicitation, but SDI
did not register those concerns prior to the closure of the bidding process. Gov’t Reply at 3. SDI
attempts to characterize its protest as “based on alleged errors in [the SOCOM’s] evaluations.”
Gov’t Reply at 2. But, Count I’s allegation that “the Agency withheld vital information about
testing techniques used to generate sample data” describes the Solicitation’s terms, not the
SOCOM’s evaluation method. Gov’t Reply at 3 (quoting Am. Compl. at ¶ 80).
Moreover, SDI did not respond to the Government’s argument that the Solicitation required
the SOCOM to evaluate proposed salary rates to ensure that they accounted for differences in
skills, the complexity of various disciplines, and professional job difficulty. Gov’t Reply at 13.
And, that failure to comply with these provisions may constitute sufficient cause to justify rejection
of a proposal. Gov’t Reply at 13. SDI also failed to respond to “the Federal Circuit’s acceptance
of a focus on salaries, as a pivotal part of total compensation.” Gov’t Reply at 13. Therefore, SDI
has not shown that the SOCOM’s evaluation of SDI’s approach to the recruitment, retention and
sustainment of a qualified workforce was contrary to law, arbitrary and capricious, and an abuse
of discretion. Gov’t Reply at 13.
f. The Court’s Resolution.
i. Regarding Waiver.
“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.” Blue & Gold Fleet, 492 F.3d at 1313. A defect is “patent” if it is “an obvious omission,
inconsistency or discrepancy of significance.” E.L. Hamm & Assocs., Inc. v. England, 379 F.3d
1334, 1339 (Fed. Cir. 2004). By contrast, a latent ambiguity is a “hidden or concealed defect
which is not apparent on the face of the document, could not be discovered by reasonable and
customary care, and is not so patent and glaring as to impose an affirmative duty on plaintiff to
seek clarification.” Per Aarsleff A/S v. United States, 829 F.3d 1303, 1312 (Fed. Cir. 2016)
(quoting Analytical & Research Tech., Inc. v. United States, 39 Fed. Cl. 34, 46 (1997)).
SDI argues that the Blue & Gold Fleet waiver rule does not apply to Count I’s allegations
regarding the RFTOP subfactor, because Blue & Gold Fleet only applies to challenges to the terms
of the Solicitation, not challenges based on alleged errors in agency evaluations. Pl. Reply at 2
(citing Caddell Constr. Co., Inc. v. United States, 111 Fed. Cl. 49, 74 (2013) (“Because plaintiff
is not challenging the terms of . . . the Solicitation, but rather [the agency’s] evaluation of
[plaintiff’s] submissions . . ., the Blue & Gold Fleet, L.P. v. United States waiver rule . . . [does]
20
not apply.”)). Count I, however, alleges that: the SOCOM “withheld vital information about [the]
testing techniques used to generate sample data;” “[t]he sample RFTOP provided no information
about the test procedures used to generate the data sets;” and “[t]he reasons proffered by the
Agency for the second deficiency, as well as many of the weaknesses associated with the sample
RFTOP, are directly attributable to the Agency’s failure to provide basic testing information.”
Am. Comp. at ¶ 80, 83, 84. These allegations describe omissions in the Solicitation, not errors in
the SOCOM’s evaluation method. Therefore, the court has determined that the Blue & Gold Fleet
rule applies to those portions of Count I that relate to the RFTOP subfactor.
Under the RFTOP subfactor, the Solicitation required offerors to analyze raw data to
“generate conclusions and recommendations regarding the longitudinal stability of the UH-60L
[helicopter].” AR 368–69. The Solicitation also required that those conclusions and
recommendations comply with the Army Standards for Technical Writing, Analysis and Reporting
outlined in ATTC 70-2. AR at 369. The August 1, 2016 Amended Complaint states that
compliance with the Army Standards required knowledge of the techniques used to generate the
raw data provided in the Solicitation. Am. Compl. at ¶ 81; see also Official Comm. of Unsecured
Creditors of Color Tile, Inc. v. Coopers & Lybrand, LLP, 322 F.3d 147, 167 (2d Cir. 2003) (“[T]he
allegations in the [operative complaint] are judicial admissions by which [the pleader] was bound
throughout the course of the proceeding.”); J. Wigmore, Evidence § 1064, at 67 (Chadbourn rev.
1972) (explaining that pleadings are judicial admissions). SDI also admits that the Solicitation
“provided no information about the test procedures used to generate the data sets.” Am. Comp. at
¶ 83.
Because information regarding the techniques used to generate the relevant raw data was
necessary to comply with the Solicitation’s requirement, its omission was obvious. See E.L.
Hamm & Assocs., 379 F.3d at 1339. Moreover, this omission should have been discovered by an
offeror exercising “reasonable and customary care.” See Per Aarsleff, 829 F.3d at 1312. For these
reasons, the court has determined that the Solicitation’s failure to disclose how the relevant data
was generated was a patent error. SDI does not dispute that it failed to object to the RFTOP
subfactor terms, before the close of the bidding process. Accordingly, SDI waived its right to
challenge the Solicitation’s failure to disclose the techniques used to generate the RFTOP data
sets, as alleged in Count I. See Blue & Gold Fleet, 492 F.3d at 1313.
Therefore, the relevant portions of Count I are dismissed for lack of jurisdiction, pursuant
to RCFC 12(b)(1).10
10
The Government argues that the court should dismiss Count I of the August 1, 2016
Amended Complaint for failure to state a claim upon which relief may be granted, pursuant to
RCFC 12(b)(6). Gov’t Mot. at 14. But, as stated above, the court considers that the waiver rule
articulated by the United States Court of Appeals for the Federal Circuit in Blue & Gold Fleet is a
jurisdictional requirement that is more appropriately addressed under RCFC 12(b)(1).
21
ii. Regarding SDI’s Deficiency Under The Recruitment,
Retention, And Sustainment Of A Qualified Workforce
Subfactor.
SDI also argues that the SOCOM’s evaluation of its compensation plan, under the qualified
workforce subfactor, was contrary to applicable law, arbitrary and capricious, and an abuse of
discretion, because the SOCOM did not consider associated fringe benefits, as required by the
Solicitation. Pl. Mot. at 16; see also 48 C.F.R. 15.305(a) (“An agency shall evaluate competitive
proposals and then assess their relative qualities solely on the factors and subfactors specified in
the solicitation.”). The court disagrees.
The Solicitation required offerors to comply with FAR 52.222-46. AR at 365. That
regulation states that offerors must “submit a total compensation plan setting forth salaries and
fringe benefits proposed for the professional employees who will work under the contract,” and
explains that “[t]he Government will evaluate the plan to assure that it reflects a sound
management approach and understanding of the contract requirements.” 48 C.F.R. 52.222-46(a)
(emphasis added). FAR 52.222-46, however, does not require that an agency weigh salary rates
and fringe benefits equally. Nor does it prohibit an agency from considering salary and fringe
benefits separately. In fact, the regulation envisions an independent analysis of salary, stating that
“salary rates or ranges must take into account differences in skills, the complexity of various
disciplines, and professional job difficulty.” 48 C.F.R. 52.222-46(b). Therefore, the SOCOM’s
primary reliance on salary to determine that SDI’s compensation plan was deficient, under the
qualified workforce subfactor, was consistent with applicable law and the Solicitation.
Contrary to the allegations contained in Count I, the SOCOM considered total
compensation. AR at 2782 (graph evaluating incumbent compensation to the offerors’ salary rates
and fringe benefits, and demonstrating that SDI’s total compensation was 12.9 percent lower than
incumbent levels). SDI is correct, however, that the SOCOM weighed salary rates more than
fringe benefits, when it determined that SDI’s compensation plan was deficient, under the qualified
workforce subfactor. AR at 2776. The Initial Evaluation found that SDI’s salary rates were 32.1
percent lower than incumbent levels and therefore demonstrated a lack of understanding for the
work to be performed. AR at 2776. “The methodology described in [SDI’s] proposal . . . used
local and regional labor rates as opposed [to] national rates.” AR at 2783. But, the skill level and
the complex nature of the labor categories described in the Solicitation required offerors to recruit
at the national level. AR at 2783. In other words, the salary rates proposed by SDI did not take
into account the “complexity” or “professional job difficulty” of the procured services. Therefore,
the SOCOM’s determination that SDI’s compensation plan was deficient, based on these findings,
not only is consistent with FAR 52.222-46, but required by that provision. See 48 C.F.R. 52.222-
46(b) (“[S]alary rates or ranges must take into account differences in skills, the complexity of
various disciplines, and professional job difficulty.”).
For these reasons, the court has determined that the SOCOM’s evaluation of SDI’s
compensation plan, under the recruitment, retention, and sustainment of a qualified workforce
subfactor, as alleged in Count I, was not contrary to applicable law, arbitrary and capricious, or an
abuse of discretion. Accordingly, the remaining allegations in Count I are dismissed.
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2. The SOCOM’s Failure To Specify Its Needs In A Manner Designed To
Achieve Full And Open Competition.
a. Count II Of The August 1, 2016 Amended Complaint.
Count II of the August 1, 2016 Amended Complaint alleges that “three of the four
deficiencies and [s]ignificant [w]eaknesses it received—[that] formed the primary basis for SDI’s
removal from the competitive range—were the direct result of the [SOCOM]’s nondisclosure of
its labor mix and restrictive staffing profiles.” Am. Compl. at ¶ 103. The Solicitation lists 105
labor categories under the recruitment, retention, and sustainment of a qualified workforce
subfactor. Am Compl. at ¶ 105. But, the SOCOM only evaluated forty percent of those categories.
Am. Compl. at ¶ 105. Although SDI’s compensation was higher than CAI’s in most categories,
CAI’s compensation was higher in the categories that the SOCOM evaluated, because, as the
incumbent, it knew the SOCOM’s labor usage. Am. Compl. at ¶ 105. Therefore, the SOCOM
“skewed the competitive playing field” by “adding labor categories that it had no intention of
ordering” and “failing to disclose the labor categories [that] it intended to use.” Am. Compl. at ¶
105–07.
b. The Government’s August 29, 2016 Motion To Dismiss.
The Government contends that “SDI waived its complaints about [the] SOCOM’s
purported failure to ‘specify its needs’ and disclose its labor usage in the Solicitations, as well as
[the] SOCOM’s restrictive staffing profiles.” Gov’t Resp. at 16. Count II’s allegation that the
Solicitation failed to disclose the SOCOM’s labor mix, was an obvious error. Gov’t Resp. at 17.
Indeed, SDI raised the issue twice. First, SDI submitted a letter to the CO on August 10, 2015,
requesting that the SOCOM “[p]lease consider providing a list of the labor categories most
frequently requested/needed currently by the Government with the final solicitation.” AR at 6.
And, on October 29, 2015, SDI submitted a letter to the Ombudsman with the same request. AR
at 255. SDI, however, failed to object to the Solicitation’s nondisclosure of the labor mix or
restrictive staffing profiles in a “prescribed formal route[] for protest.” Gov’t Resp. at 18.
Accordingly, SDI waived its objections regarding labor usage and staffing profiles. Gov’t Resp.
at 18.
c. SDI’s September 12, 2016 Response To Motion To Dismiss.
SDI responds that the Blue & Gold Fleet rule only applies to objections regarding the
Solicitation, not challenges to agency evaluations. Pl. Reply at 2. Count II, however, does not
object to the terms of the Solicitation, but to the “unstated evaluation factors [that] the [SOCOM]
employed” during the assessment of SDI’s approach to recruitment, retention, and sustainment of
a qualified workforce. Pl. Reply at 3.
d. The Government’s September 26, 2016 Reply.
The Government replies that the court should “consider[] the true basis of [SDI’s] claims
and is not bound by [SDI’s] characterization” that this protest “is based on alleged errors in agency
evaluation.” Gov’t Reply at 2 (citing Katz v. Cisneros, 16 F.3d 1204, 1207 (Fed. Cir. 1994)
(“Regardless of the characterization of the case ascribed by [plaintiff] in its complaint, we look to
the true nature of the action[.]”)). The allegations in Count II concern information “purportedly
23
absent from the [S]olicitation[.]” Gov’t Reply at 3. Therefore, SDI should have made its
allegations before the bidding process closed. Gov’t Reply at 3.
e. The Court’s Resolution.
“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.” Blue & Gold Fleet, 492 F.3d at 1313. In determining whether a pleading alleges an
objection to the “terms of a Government solicitation,” the court looks “to the nature of the action
instead of merely relying on the plaintiff’s characterization of the case.” Doe v. United States, 372
F.3d 1308, 1315 (Fed. Cir. 2004). In this case, Count II alleges that “[t]he Agency’s failure to
disclose [labor mix] prevented SDI from meaningfully proposing on an equal footing with CAI.”
Am. Compl. ¶ 106. This allegation objects to the lack of information provided in the Solicitation,
i.e. the terms of the Solicitation, not the SOCOM’s evaluation of SDI’s bid.
“[T]he presence or absence of a patent ambiguity is not determined by the contractor’s
actual knowledge, but rather by what a reasonable contractor would have perceived in studying
the bid packet.” Triax Pac., Inc. v. West, 130 F.3d 1469, 1475 (Fed. Cir. 1997). But, the
justifications for the Blue & Gold Fleet waiver rule “are perhaps [most] compelling where a party
had actual knowledge of the ambiguity.” HPI/GSA-3C, LLC v. Perry, 364 F.3d 1327, 1337 n.9
(Fed. Cir. 2004). In this case, the Solicitation listed 105 labor categories, but did not disclose the
SOCOM’s labor mix. AR at 6, 255. In other words, the SOCOM did not inform offerors as to the
labor categories that it most frequently requested. AR at 6, 255. This omission was obvious from
the face of the Solicitation. See E.L. Hamm & Assocs., 379 F.3d at 1339 (holding that a defect is
“patent” if it is “an obvious omission, inconsistency or discrepancy of significance”). In fact, SDI
identified both the draft Solicitation’s and Solicitation’s failure to disclose the SOCOM’s labor
mix. AR at 6, 255.
Similarly, the Solicitation’s error regarding restrictive staffing profiles was obvious. See
E.L. Hamm & Assocs., 379 F.3d at 1339. SDI had actual knowledge of that error. After reviewing
the draft Solicitation, SDI objected that “the requirements for key personnel [were] restrictive,
almost as if the requirements mirror the qualifications of a particular individual.” AR at 6. And,
after the SOCOM published the Solicitation, SDI again objected that there were many problems
with the staffing profiles, offering, as an example, that the pilot labor category required experience
with the MH-60 helicopter, but “only the incumbent contractor and Government personnel have
expertise with[that] aircraft.” AR at 255.
Despite having actual knowledge of the patent errors alleged in Count II, SDI did not file
a formal protest citing these issues prior to the close of the bidding process. “[M]ere notice of
dissatisfaction or objection is insufficient to preserve [a protestor’s] [] challenge [to a patent defect
in the Solicitation].” Bannum, Inc. v. United States, 779 F.3d 1376, 1380 (Fed. Cir. 2015). Instead,
a plaintiff must follow the “prescribed formal routes for protest.” Id. Under FAR 33.103(d)(2)(iv),
agency-level procurement protests must include a “[r]equest for a ruling by the agency.” 48 C.F.R.
33.103(d)(2)(iv). Neither of SDI’s objections to the CO and Ombudsman met that requirement.
Moreover, SDI never raised these objections in a bid protest before the GAO or United States
Court of Federal Claims until now. In other words, SDI did not challenge the Solicitation’s
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nondisclosure of labor mix or restrictive staffing profiles through any of the “prescribed formal
route for protest.” See Bannum, Inc., 779 F.3d at 1380.
For these reasons, the court has determined that SDI waived the claims alleged in Count II.
Therefore, Count II is dismissed for lack of subject-matter jurisdiction, pursuant to RCFC 12(b)(1).
3. The SOCOM’s Evaluation Of SDI’s Proposal Under The Price Factor.
a. Count IV Of The August 1, 2016 Amended Complaint.
Count IV alleges that the SOCOM’s assessment of the SDI’s price realism was contrary to
FAR 15.404-1(d)(3), requiring that a “proposal[‘s] [price realism] shall be evaluated using the
criteria in the solicitation[.]” 48 C.F.R. 15.404-1(d)(3). The Solicitation required the SOCOM to
evaluate price realism, based on the total compensation package proposed by each offeror. Am.
Compl. at ¶ 116. Instead, the SOCOM based its price realism evaluation on direct rates, without
considering any fringe benefits. Am. Compl. at ¶ 118. “The [SOCOM]’s evaluation contrary to
the terms of the Solicitation resulted in a deficiency under the Recruitment, Retention, and
Sustainment of a Qualified Workforce subfactor. [But,] [h]ad the Agency performed a proper
evaluation, SDI would . . . would have very likely received strengths for its solid compensation
package.” Am. Compl. at ¶ 120.
b. SDI’s August 8, 2016 Motion For Judgment On The
Administrative Record.
SDI contends that the SOCOM’s evaluation of price realism under the price factor was
contrary to law, arbitrary and capricious, and abuse of discretion, because it contained the same
errors as the SOCOM’s evaluation of its proposed compensation package, under the qualified
workforce subfactor. Pl. Mot. at 27.
c. The Government’s August 29, 2016 Cross-Motion For
Judgment On The Administrative Record, And Response To
Plaintiff’s Motion For Judgment On The Administrative
Record.
The Government responds that the Solicitation did “not describe the methodology required
to conduct the price realism analysis.” Gov’t Resp. at 46. Accordingly, the SOCOM “enjoy[ed]
broad discretion in conducting its price realism analysis,” including the discretion to weigh salaries
more heavily than fringe benefits. Gov’t Resp. at 46 (quoting Ne. Military Sales, Inc. v. United
States, 100 Fed. Cl. 103, 118 (2011)).
d. SDI’s September 12, 2016 Reply In Support Of Plaintiff’s
Motion For Judgment On The Administrative Record.
SDI replies that “[t]he price evaluation was flawed in the same manner as the [SOCOM]’s
evaluation of total compensation.” Pl. Reply at 14. In other words, the SOCOM based its price realism
assessment salary alone, instead of total compensation. Pl. Reply at 15.
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e. The Government’s September 26, 2016 Reply In Support Of
Its Motion For Judgment On The Administrative Record.
The Government replies that SDI fails to dispute that the “nature and extent of a price
realism analysis are within SOCOM’s discretion.” Gov’t Reply at 18.
f. The Court’s Resolution.
The SOCOM’s evaluation of SDI’s compensation under the price factor was consistent
with applicable law and regulation. In reviewing protests challenging an agency’s evaluation of
price realism, the court’s “focus is whether the agency acted reasonably and in a way consistent
with the solicitation’s requirements.” DMS All-Star Joint Venture v. United States, 90 Fed. Cl.
653, 664 (2010). The nature and extent of a price realism analysis, however, “is ultimately within
the sound exercise of the agency’s discretion, unless the agency commits itself to a particular
methodology in a solicitation.” Afghan Am. Army Servs. Corp. v. United States, 90 Fed. Cl. 341,
358 (2009); see also Ala. Aircraft Indus., Inc.-Birmingham v. United States, 586 F.3d 1372, 1375–
76 (Fed. Cir. 2009) (“The trial court’s duty [is] to determine whether the agency’s price-realism
analysis was consistent with the evaluation criteria set forth in the [Solicitation], not to introduce
new requirements outside the scope of the [Solicitation].”)
In this case, the Solicitation states that “the Government will conduct a price analysis and
price realism of proposals to determine if the proposed price is unrealistically low without valid
explanation,” but does not require the SOCOM to evaluate price according to any particular
methodology. AR at 374. As a matter of law, the SOCOM could therefore structure its evaluation
of price realism in any way that was reasonable.
Under the price factor, the SOCOM considered total compensation in its evaluation of the
price realism of SDI’s proposal. AR at 2782 (graph evaluating incumbent compensation to the
offerors’ salary rates and fringe benefits, and demonstrating that SDI’s total compensation was
12.9 percent lower than incumbent levels). But, the SOCOM weighed salary rates more than fringe
benefits. AR at 2783 (“Analysis of SDI’s pricing data shows an overall 32.1% average employee
compensation reduction. The [SOCOM] assessed the offeror’s compensation as unrealistically
low.”). The SOCOM’s methodology, and especially its primary reliance on salary as a determinant
of price realism, was reasonable, however, because salary was the largest component of the
offerors’ compensation proposals. AR at 2782.
For these reasons, the court has determined that the SOCOM’s determination that SDI’s
compensation plan was unrealistically low, under the price factor, was consistent with applicable
law. See Ala. Aircraft Indus., 586 F.3d at 1375–76; see also Ceres Evntl. Servs., Inc. v. United
States, 97 Fed. Cl. 277, 303 (2011) (“The nature and extent of an agency’s price realism analysis,
as well as an assessment of potential risk associated with a proposed price, are matters within the
agency’s discretion.”).
IV. CONCLUSION.
For these reasons, SDI’s August 8, 2016 Motion For Judgment On The Administrative
Record is denied. The Government’s August 29, 2016 Motion To Dismiss and Cross-Motion For
Judgment On The Administrative Record is granted. Moreover, SDI’s June 17, 2016 Motion For
26
Entry Of A Preliminary Injunction, CAI’s August 29, 2016 Cross-Motion For Judgment On The
Administrative Record, and SDI’s September 7, 2016 Motion To Supplement The Administrative
Record are denied as moot. Accordingly, the Clerk of the Court for the United States Court of
Federal Claims is directed to enter judgment on behalf of the Government.
IT IS SO ORDERED.
s/ Susan G. Braden
SUSAN G. BRADEN
Judge
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