Ekagra Partners, LLC v. United States

In the United States Court of Federal Claims
No. 22-1038C
(Filed Under Seal: December 15, 2022)
(Reissued for Publication: December 21, 2022)
)
EKAGRA PARTNERS, LLC, )
)
Plaintiff,
)
v. )
)
THE UNITED STATES, )
)
Defendant, )
)
and )
)
PARADYME MANAGEMENT,
)
INC.,
)
Defendant- )
Intervenor. )
)
Jon D. Levin, Maynard, Cooper & Gale, P.C., Huntsville, AL, for Plaintiff. With him on
the briefs were W. Brad English, Emily J. Chancey, Joshua B. Duvall, and Nicholas P. Greer.
Joshua W. Moore, Commercial Litigation Branch, Civil Division, United States Department
of Justice, Washington, D.C., for Defendant. With him on the briefs were Brian M.
Boynton, Principal Deputy Assistant Attorney General, Patricia M. McCarthy, Director,
and Lisa L. Donahue, Assistant Director. Of counsel was Wilmary Bernal, Office of the
General Counsel, United States Department of Commerce, Washington, D.C.
Christian B. Nagel, Holland & Knight, LLP, Washington, D.C., for Defendant-Intervenor.
Of counsel were Gregory R. Hallmark, Amy L. Fuentes, Kelsey M. Hayes, and Sean Belanger.
OPINION AND ORDER*
SOLOMSON, Judge.
This Court does not examine procurement decisions with an electron scanning
microscope, searching for the slightest of imperfections. As Judge Tapp recently noted,
“even ‘violations of law,’ let alone innocuous mistakes, should not result in setting aside
awards unless those mistakes have some significance, for ‘[a]ny good lawyer can pick lint
off any Government procurement.’”1 In this case, Plaintiff, Ekagra Parnters, LLC
(“Ekagra”), has the burden to allege and then prove that Defendant, the United States —
acting by and through the United States Census Bureau (“Census” or “USCB”) — not
only committed some error in awarding the contract at issue to the Defendant-Intervenor,
Paradyme Management, Inc. (“Paradyme”), but also that any such error prejudiced
Ekagra. Ekagra, however, alleges procurement errors that are more akin to dust particles
than troublesome lint.
After considering Ekagra’s arguments and the administrative record, the Court
discerns no prejudicial error in USCB’s conduct of the procurement at issue. Because
Ekagra fails to carry its burden, the Court concludes that the government and Paradyme
are entitled to judgment.
I. FACTUAL AND PROCEDURAL BACKGROUND2
A. The Procurement
On July 1, 2021, Census issued Solicitation No. 1333LB21Q00000010 (the
“Solicitation” or “RFQ”), pursuant to which Census planned “to award a Single Award
* Pursuant to the protective order in this case, the Court initially filed this opinion under seal on
December 15, 2022, and directed the parties to propose redactions of confidential or proprietary
information by December 20, 2022. ECF No. 38. The parties have jointly submitted proposed
redactions to the Court. ECF No. 40. The Court adopts those redactions, as reflected in this public
version of the opinion. Words or phrases that are redacted have been replaced with [ * * * ].
1 Ginn Grp., Inc. v. United States, 159 Fed. Cl. 593, 608 (2022) (alteration in original) (quoting
Andersen Consulting v. United States, 959 F.2d 929, 932 (Fed. Cir. 1992)); see also Caddell Constr. Co.
v. United States, 129 Fed. Cl. 383, 403–04 (2016). This Court similarly observed in a recent decision
that a plaintiff’s “questions” regarding the conduct of a procurement “do not substitute for the
evidence necessary to succeed on the merits.” Ahtna Logistics, LLC v. United States, -- Fed. Cl. --,
2022 WL 17480642, at *1 (Fed. Cl. Nov. 28, 2022) (describing “prejudice on the merits” as “an issue,
in this Court’s experience, to which plaintiffs all-too-often do not pay sufficient attention, usually
at their own peril”).
2This background section constitutes the Court’s findings of fact drawn from the administrative
record. Rule 52.1 of the Rules of the United States Court of Federal Claims, covering judgment
on the administrative records, “is properly understood as intending to provide for an expedited
2
Blanket Purchase Agreement (BPA), as a vehicle to obtain Tools services for the
Applications Development and Services Division (ADSD) in its support of several
[Census] directorates and divisions.” AR 440; AR 1015 (RFQ § B.1). The contract
awardee will provide “all on-site and off-site support management, supervision of
contractor’s personnel, and labor to plan, coordinate, and ensure effective performance,
for all requirements outlined in Section C of [the RFQ].” AR 1015 (RFQ § B.1). In
particular, the selected contractor “will provide the standards and solutions necessary to
address . . . challenges and transform the way [Census] accomplishes [information
technology] tools management” by supporting the establishment of a Tools Support
Center of Excellence (“TSCoE”). AR 1021 (RFQ § C.2). The TSCoE will reorganize
support functions, moving activities “from the development and functional
organizations throughout Census, to a centralized model of those same functions, as a
resulting Shared Service.” AR 1021; see also AR 1019–20 (describing and depicting the
change). Paradyme is the incumbent contractor for the services sought in the RFQ.
AR 12. Census issued four amendments to the RFQ between July 9 and July 16, 2021.
AR 752, 1140. The government issued its final, conformed RFQ on July 15, 2021.
AR 1013–15 (RFQ Amend. 003). Quotes were due July 20, 2021, by 12:00 pm. AR 1141
(RFQ Amend. 004).
The RFQ specified that Census would “issue a Single Award BPA pursuant to the
authority of Federal Acquisition Regulation (FAR) 8.405-3 — Blanket Purchase
Agreements (BPAs), under General Services Administration (GSA) Multiple Award
Schedule (MAS) Information Technology (IT) contract.” AR 1015 (RFQ § B.2). 3 The
resulting BPA “will include an ordering period of 5 years (consisting of one 12-month
Base Period, four 12-month Option periods),” and provide a vehicle for Census “to fulfill
necessary requirements in the form of issued Call Orders.” AR 1015. Such call orders
“may be issued on a Firm-Fixed-Price (FFP) [basis], Labor Hour (LH) [basis,] or any
combination thereof as required to meet agency needs,” with the precise contract type to
be determined at the call order level. AR 1015. The RFQ included specifications for two
call orders to be awarded along with the BPA: (1) Call Order 0001 is for “the planning,
development, and implementation activities necessary to create the TSCoE,” AR 676
(RFQ Attach. J.12); (2) Call Order 0002 is for “Tools Application/Administration support
services,” AR 711–12 (RFQ Attach. J.13).
trial on the record” and requires the Court to “make factual findings from the record evidence as
if it were conducting a trial on the record.” Bannum, Inc. v. United States, 404 F.3d 1346, 1354, 1356
(Fed. Cir. 2005). Citations to the corrected administrative record, see ECF No. 24, are denoted as
“AR” followed by the page number. Additional findings of fact are made throughout Part IV.
3The procurement “is a 100% Total Small Business Set-Aside for Small Business (SB) MAS IT
contract holders” such that “only quotes submitted by GSA MAS IT SB” are eligible for award.
AR 1015 (RFQ § B.2.1).
3
Section L of the RFQ contains instructions to quoters. AR 1108. The RFQ required
quoters to submit written quotes that “conform to solicitation provisions[,] . . . prepared
in accordance with this section.” AR 1110 (RFQ § L.3). Quotes had to be “written[] [and]
prepared in sufficient detail for effective evaluation of the . . . quote against the evaluation
criteria,” to include “documentation [that] cover[s] all aspects of this solicitation.”
AR 1110. The RFQ required quoters to “demonstrate how [they] intend[] to accomplish
the project and must include convincing rationale and substantiation of all claims.”
AR 1110. Census cautioned quoters that, as part of “its evaluation, the Government will
consider the degree of substantiation of the quoted approaches in the quote volumes and
in response to any technical exchanges if held.” AR 1110.
The RFQ required the submission of two proposal volumes, which were also
assigned correlative evaluation factors, as follows:
Volume Evaluation Factor Evaluation Subfactors
I Technical 1 Similar Experience and 1A Similar Experience
Past Performance 1B Past Performance
2 Master BPA — Technical 2A Management Approach for BPA
2B Key Personnel for BPA
3 Call Order 0001 — N/A
Technical Approach
4 Call Order 0002 — N/A
Technical Approach
II Price 5 Price 5A Labor Rate Pricing for Master BPA
5B Pricing for Call Order 0001
5C Pricing for Call Order 0002
AR 1113 (RFQ § L.5.1); AR 1124 (RFQ § M.1.1) (identifying “evaluation factors”).
For evaluation subfactor 1A (Similar Experience), quoters had to “submit a
synopsis of their similar experience for [Census] review as defined in the Similar
Experience Citation Template.” AR 1114 (RFQ § L.6.2.1). The point of such similar
experience citations was to “provide evidence of the Quoter’s experience on three (3)
contracts that have been performed, or are currently being performed either federally or
commercially, not older than three years from the RFQ release date, as it relates to the
scope, size, and/or complexity of the RFQ.” AR 1114. Then, for evaluation subfactor 1B
(Past Performance), quoters had to “request that all their cited similar experience
references . . . submit written evaluations of their past performance to [Census] no later
than the final quote submission date and time.” AR 1116 (RFQ § L.6.2.2).
For evaluation subfactor 2A (Management Approach for BPA), the RFQ required
quoters to
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[D]escribe how the Quoter plans to manage the overall BPA,
as well as each Call Order to be issued under this BPA.
Quoters shall detail[] how the Quoter plans to communicate
with Census Bureau management; describe the policies,
procedures, and techniques to be employed to assure cost-
effective and quality performance; and [describe] the
Quoter[’]s approach to meet the requirements delineated in
Section C.4 — Scope of this BPA.
AR 1117 (RFQ § L.6.3.1).
For evaluation subfactor 2B (Key Personnel), quoters had to identify specific
individuals to fulfill the following three roles: (1) project manager; (2) TSCoE lead subject
matter expert; and (3) lead tools administrator. AR 1068 (RFQ § H.2) (Key Personnel);
AR 1117–18 (RFQ § L.6.3.2); AR 754 (RFQ Amend. 001) (correcting the list of key
personnel); AR 1014 (RFQ Amend. 003) (further correcting the key personnel list). In
addition to providing a resume for each proposed key personnel, quoters had to include
“a description of the roles and responsibilities of the individual and discussion of the
appropriateness of his/her skills and experience to successfully fulfill the requirements
outlined in Section C of the BPA.” AR 1118 (RFQ § L.6.3.2).
For evaluation factors 3 and 4, quoters had to submit a technical approach for Call
Orders 0001 and 0002, respectively. AR 1118–19. For Call Order 0001, quoters had to
“propose[] [a] technical approach for accomplishing the requirements within Call Order
0001 (Attachment J.12).” AR 1118 (RFQ § L.6.4). Such “detailed plans” had to
“demonstrate a clear understanding of the requirements and the challenges associated
with this work and the Quoter[’]s role in providing technical support as specified in the
defined objective within the Call Order requirements.” AR 1118 (RFQ § L.6.4). In
particular, quoters had to “[c]learly and [c]oncisely describe a complete approach to
setting up, implementing and running a TSCoE,” amongst other activities. AR 1118.
Quoters had to provide similar information “for accomplishing the requirements within
Call Order 0002 (Attachment J.13).” AR 1119 (RFQ § L.6.5). Specifically, quoters had to
submit a “clear and concise approach to how the contractor will ensure that all tools that
support work in this Call Order will follow the TSCoE standards, processes, procedures,
etc. established and maintained in Call Order 0001.” AR 1119 (RFQ § L.6.4). The RFQ
cautioned that “[t]he Government intends to execute a BPA and immediate[ly] award
Call Order 0001 and Call order 0002 without further communicating with Quoters.”
AR 1108 (RFQ § L.1).
Evaluation factor 5 covers the pricing volume, for which quoters had to submit a
completed price quotation worksheet. AR 1119–20 (RFQ § L.7) (referencing Attachment
J.1 — Price Quotation Worksheet). The price volume had to be submitted “separate[ly]
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from the technical quote as part of the[] proposal package” and had to “consist of overall
pricing for the BPA to include Quoter[’]s proposed labor categories and a description for
each GSA MAS IT labor category anticipated to be used under this BPA.” AR 1120 (RFQ
§ L.7). Thus, the quoted pricing had to “consist of pricing for the BPA,” generally, “and
pricing for . . . Call Order 0001 and Call Order 0002 included with this solicitation.”
AR 1120 (RFQ § L.7.1). The Call Order 0001 pricing worksheet required “a Firm Fixed
Price for each line item for [each] performance period.” AR 1121 (RFQ § L.7.1.2); AR 1147
(RFQ Attach. J.1). The Call Order 0002 worksheet, on the other hand, required “Labor
Rates and Total [time and materials] Price[s] for each performance period” based only on
“the Labor Categories and Hours provided” in the worksheet. AR 1121–22 (RFQ
§ L.7.1.3); AR 1148 (RFQ Attach. J.1).
The RFQ instructed quoters that “[t]he Government is in need of labor categories
that are comparable to the BPA Roles outlined in Attachment J.1 — Price Quotation
Worksheet and Attachment J.2 — Labor Category Descriptions” and that, “[f]ollowing
award, Attachment J.1. — Price Quotation Worksheet — will become the Master BPA
Rate Card and shall be the basis for Call Order pricing.” AR 1015–16 (RFQ § B.3.1)
(“Labor Rates (Rate Card)”). Thus, the labor rates “submitted in Attachment J.1 — Price
Quotation Worksheet shall be used by the Contractor as the maximum allowable ceiling
on labor rates when submitting price quotes in response to Call Order requests issued
under this BPA.” AR 1016 (RFQ § B.3.3).
Section M provided further details on the evaluation factors for this best value
procurement:
The Census Bureau’s evaluation will be based on Best Value
principles. Accordingly, an award will be made to the
responsible and technically acceptable Quoter whose quote
provides the greatest overall value to the Government, price
and all other factors considered. This best value
determination will be accomplished by comparing the value
of the differences in the technical factors for competing offers,
based on their strengths, weaknesses, and risks, and with
differences in their price to the Government. In making these
comparisons, the Government is more concerned with
obtaining superior technical capabilities than with making an
award at the lowest overall price to the Government. Quoters
are advised that the technical evaluation factors are
significantly more important than price.
AR 1124 (RFQ § M.1.1) (emphasis added); see also AR 1131 (RFQ § M.4). The agency
intended to make an award “based on initial quote submissions” but reserved the right
to initiate a “dialogue with one or more Quoters” and to request revised quotes.
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AR 1124–25 (RFQ § M.1.1); see also AR 1108 (RFQ § L.1) (reserving “the right to
communicate with only [the best-suited] Quoter to address any remaining issues”).
The RFQ weighted all technical factors and subfactors equally and “when
combined [they] are significantly more important that the Price Factor.” AR 1124; see also
AR 1125 (RFQ § M.2) (“Factors 1, 2, 3 and 4 are of equal importance. Subfactors within
each technical factor are of equal importance within that factor. All Technical Factors
when combined are significantly more important than the Price Factor.”).
The RFQ required evaluators to assess quotes for significant strengths, strengths,
weaknesses, and significant weaknesses. AR 1125–26 (RFQ § M.2.1). A significant
strength “is an element of the proposal which substantially enhances the merit of the
quote or substantially exceeds specified performance or capability requirements in a way
that will be highly beneficial to the Government during BPA or Call Order performance.”
AR 1125. A strength “is an element of the quote that has merit or exceeds specified
performance or capability requirements in a way that will be advantageous to the
Government during BPA or Call Order performance.” AR 1125. A weakness “is a flaw
in the quotation that increases the risk of unsuccessful BPA or Call Order performance.”
AR 1126. A significant weakness “is a flaw in the quote that substantially increases the
risk of unsuccessful BPA or Call Order performance.” AR 1126.
Additionally, Census had to assess quotes for risk — i.e., “the potential for
unsuccessful BPA or Call Order performance” — using the following levels:
High — likely to seriously disrupt the schedule, increase the
price, or degrade the performance[;]
Moderate — potentially cause some disruption of schedule,
increase the price, or degrade the performance[;]
Low — little potential to disrupt schedule, increase price or
degrade performance.
AR 1126 (RFQ § M.2.1).
With respect to the first evaluation factor, similar experience and past
performance, the RFQ required Census to “determine if the Quoter’s experience is
appropriate for supporting organizations, programs, and/or projects with similar size,
scope and complexity” by “determin[ing] the similarity and comprehensiveness of the
Quoter[’]s experience.” AR 1127–28 (RFQ § M.2.2). Census committed to “evaluat[ing]
the submissions to determine whether the Quoter consistently delivers quality services
in a timely and cost-effective manner.” AR 1127 (RFQ § M.2.2). If a quoter lacked
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evaluations from similar prior experiences, Census would give that quoter a “Neutral”
evaluation for the past performance subfactor. AR 1127.
For the remaining technical evaluation factors, the RFQ detailed several areas for
Census to check for strengths, weaknesses, and risks. AR 1128–30 (RFQ §§ M.2.3–2.5).
For example, Census needed to review the Call Order 0001 technical approach to see if
the quoter, among other things, “demonstrate[d] a complete understanding of the
[agency’s] requirements and the Quoter[’]s[] role” and “describe[d] a complete approach
to setting up, implementing and running a TSCoE.” AR 1129–30 (RFQ § M.2.4). The RFQ
further separated the evaluation of the general BPA technical approach into two
subfactors: (1) management approach and (2) key personnel. AR 1128–29 (RFQ § M.2.3).
For the three roles the RFQ identified as key personnel, the RFQ required USCB to
“evaluate the information contained in the resumes submitted with the quote . . . based
on the extent to which personnel . . . meet, or exceed, skills, experience and education
required in performing the work.” AR 1128–29. Such an assessment included
determining if proposed key personnel “meet minimum labor category requirements.”
AR 1129; see also AR 1016 (RFQ § B.3.1) (referring to Attachment J.2 for labor category
descriptions).
For the fifth evaluation factor, price, RFQ Section M.3 provided that Census “will
review the price schedules for completeness and accuracy” and that “[a] determination
will be made as to whether the Quoter has properly understood the price quote
instructions as specified in Section L and properly completed the rate schedules.”
AR 1130 (“The . . . quote will be checked for mathematical correctness[.]”). This
assessment also tasked Census with “determin[ing] . . . whether the price appears
unbalanced either for the total price of the quote or [for] separately priced line items.”
AR 1130–31 (RFQ § M.3). The RFQ defined an “unbalanced quote” as “one that
incorporates prices that are less than cost for some services and/or prices that are
overstated for other services.” AR 1131 (RFQ § M.3).
On July 20, 2021, Ekagra and Paradyme submitted timely proposals. AR Tabs
18–19. Two other quoters, [ * * * ] and [ * * * ], also submitted quotes. AR 2278 (Award
Memorandum).
B. USCB’s Evaluation, Corrective Action, Reevaluation, and Contract Award
On September 22, 2021, Census made an initial BPA award to Paradyme. AR 1650
(Notice of Contract Award to Paradyme). On September 23, 2021, Census notified Ekagra
of the contract award to Paradyme. AR 1821 (Notice to Ekagra — Unsuccessful Offeror).
As a result of a bid protest pre-filing notification made in this Court on October 8,
2021, the government decided to take corrective action, to include issuing a stop work
order, “[c]onducting a re-evaluation of award documentation with the new Contracting
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Officer,” and “[m]aking an award decision based on the results of the new evaluation.”
AR 1911–12 (Corrective Action Notice to Offerors / Request for Quote Validation).4
Census advised both Ekagra and Paradyme (and the two other quoters) that Census
would initiate “a secondary evaluation of [the] submitted quote[s].” AR 1911–13 (noting
that Census “has informed all the vendors (4) that submitted proposals . . . that the USCB
would under[take] a secondary evaluation of their initial quote submission”).
As part of corrective action, the USCB technical evaluation team (“TET”) issued a
new consensus report on April 4, 2022. AR 2183–2239. The TET ranked Paradyme in first
place for its technical quotation because Paradyme “provided an adequate solution that
met all of the solicitation requirements,” including “a few strengths, [and] no weaknesses
or risks overall compared to the other three vendors who all had significant weaknesses
and high risks.” AR 2231–32; see also AR 2237 (“Paradyme’s quotation provides the
required support at no risk to the Government compared to the other vendors; all of
whom had significant weaknesses and high risks.”).
In contrast, the TET determined that “Ekagra’s quote was technically
unacceptable” based on its “three significant weaknesses and high risks.” AR 2238. The
TET similarly concluded that the other two quoters were technically unacceptable
because of their respective significant weaknesses and high risks. AR 2238–39. Overall,
the TET assessed the quoters as follows:
TET Evaluation Quoter
Finding Paradyme Ekagra [***] [***]
Strengths 3 3 7 8
Weaknesses 0 1 1 1
Significant Weaknesses 0 3 6 7
AR 2231–39. All quoters received strengths, but only Paradyme received no weaknesses
and no significant weaknesses. AR 2237–39.
The price evaluation team (“PET”) also issued its reevaluation report on April 4,
2022. AR 2240-2254. The report examined each quote’s total price for each of the RFQ’s
4 See also AR 1913 (Correction Action Notice to Technical and Price Evaluation Teams) (“During
the reevaluation, USCB [technical] and [pricing evaluation] teams would be able to thoroughly
review the proposal again in its entirety.”); AR 1919 (Memorandum for Evaluation Team) (“Due
to a Pre-filing Notice of Protest submitted at the Court of Federal Claims on October 8, 2021, . . .
it was determined[] Census would conduct corrective action of this procurement.”).
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two call orders. For Call Order 0001, Paradyme’s total evaluated price5 of $259,664.26
was a small fraction of the other quotes, including Ekagra’s evaluated price of $[ * * * ]
(the highest of the quoters). AR 2253. For Call Order 0002, Ekagra submitted the lowest
price quote at approximately $[ * * * ] million; Paradyme’s quoted price was
approximately $[ * * * ] million higher than Ekagra’s. AR 2254. The PET concluded that
both Ekagra and Paradyme “understood the price quote instructions as specified in
Section L and did accurately complete Attachment J.1-Price Quote worksheet.” AR 2242–
43. The PET further concluded that “[c]omputations for all four price quotes were
correct” and “were summarized correctly.” AR 2243.
Although the PET observed that “Paradyme’s offer for Call Order 0001 is
unbalanced,” AR 2246, the PET did not identify any performance risks; nor was the PET
concerned that Census somehow would end up paying more than Paradyme quoted.
That makes sense where, as here, the RFQ specified, AR 1121 (RFQ § L.7.1.2), that Call
Order 0001 would be a firm fixed price contract, AR 2247. Moreover, “through price
analysis, the PET was able to determine that the offer from Paradyme is fair and
reasonable,” while acknowledging that “Paradyme’s cost for Call Order 0001 is
significantly less than the other offerors.” AR 2245. The PET specifically addressed
Paradyme’s Call Order 0001 pricing, explaining that Paradyme “provided information
above and beyond what was required in the Solicitation[.]” AR 2245. Accordingly, “with
further analysis [the PET] w[as] able to determine” how Paradyme proposed achieving
the savings. AR 2245; see also AR 2248 (explaining in detail how Paradyme’s “overall
price to the Government for Call Order 0001 . . . was clearly supported”).
On April 25, 2022, the contracting officer issued his best value determination.
AR 2258–66. After providing a detailed tradeoff analysis, the contracting officer agreed
with the TET that “[b]ased on Ekagra’s three significant weaknesses and high risks, . . .
Ekagra’s quote was technically unacceptable” whereas “Paradyme’s technical quote had
no weaknesses or risks and would meet the government’s requirements.” AR 2263–64;
AR 2258 (“I have reviewed the TET’s findings and ranking, the PET report, and agree
with the contents therein.”).
The reason for Ekagra’s technical unacceptability is well explained in the record:
Ekagra was ranked below Paradyme due to the three
significant weaknesses and high risks that spanned across
two different factors: Factor 2B: Key Personnel and Factor 4:
Call Order 0002. Ekagra proposed key personnel that failed
to meet minimum requirements, which will be extremely
5 “The total evaluated price of Call Order 0001 was calculated using the total price for the Base
Period, Four (4) One-year Option Periods, and One (1) Six (6) Month Extension.” AR 2247; see
also AR 2288 (Award Memorandum) (same).
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detrimental to the Government and may cause the contractor
to be unable to support day to day activities.
Ekagra also had a significant weakness and high risk for not
providing details on how the integrity of the security
baselines will be maintained, which may cause unsecured
systems, exposure of title data, and audit findings that would
cause tools to be completely unavailable for mission critical
work. In addition, for Factor 2A: Management Approach,
Ekagra had a weakness and moderate risk for not describing
their retention strategy to reduce vacancies, which may result
in delays in the customer schedules and deliverables, quality
issues from staff burn out, and tools support to miss
standards as stated in the service level agreements.
AR 2285–86 (Award Memorandum) (emphasis added) (“Based on Ekagra’s three
significant weaknesses and high risks, the TET determined that Ekagra’s quote was
technically unacceptable.”).
Accordingly, the contracting officer determined that “Paradyme was the only
Offeror that addressed and met every requirement identified in the solicitation, thus
demonstrating a full understanding of the requirements in their technical quote and had
no weaknesses or risks identified.” AR 2258 (emphasis added). Reviewing Paradyme’s
technical approach to Call Order 0001, the contracting officer explained that Paradyme’s
unique “approach led to Paradyme’s significantly reduced cost compared to the other
Offerors” and the Independent Government Cost Estimate (“IGCE”). AR 2264 (noting
that Paradyme’s “combination of strategies meets the Government’s requirements, while
providing a significant cost savings for Call Order 0001”); see also AR 2265 (discussing
Paradyme’s “approach [which] led to Paradyme’s significantly reduced cost compared
to the other Offerors and the IGCE”).
For Call Order 0001, the contracting officer “determined that the lower price of the
#1 Technically Ranked Paradyme quote is the best value.” AR 2265. Similarly, because
“Paradyme’s [Call Order 0002] technical quote had no weaknesses or risks and would
meet the Government’s requirements,” AR 2265, the contracting officer concluded that
Paradyme’s proposal justified paying more for Call Order 0002, as compared to Ekagra’s
quote for Call Order 0002. AR 2265. Census concluded that, in the aggregate, Paradyme
represented “the best value to the Government, price and other factors considered for
the . . . requirement.” AR 2266.
On April 25, 2022, Census informed Ekagra that, following the corrective action
and reevaluations, Paradyme remained the selected contract awardee. AR 2267 (Notice
to Ekagra — Unsuccessful Offeror). The next day, USCB instructed Paradyme to resume
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work under the BPA and call orders. AR 2271 (Notice to Paradyme — Resume
Performance).
C. GAO Protest
On May 3, 2022, Ekagra filed a post-award protest with the Government
Accountability Office (“GAO”) challenging USCB’s decision to award the contract to
Paradyme. AR 2323. Ekagra presented several grounds of protest and argued USCB
“overlook[ed] or discount[ed] [Paradyme’s] technical risk and unbalanced, irregular, and
unreasonable pricing while also assigning weaknesses to Ekagra’s proposal for phantom
requirements.” AR 2323, 2337–56.
On August 9, 2022, the GAO ultimately concluded “that the agency reasonably
evaluated [Ekagra’s] key personnel and the technical approach for call order 0002, finding
them inadequate and Ekagra’s quotation technically unacceptable.” AR 2855; Ekagra
Partners, LLC, B-420733, 2022 CPD ¶ 220, 2022 WL 4236223, at *3 (Comp. Gen. Aug. 9,
2022). As a result, GAO held that “Ekagra is not an interested party” with regard to its
remaining protest grounds, and dismissed those grounds without reaching their merits.
AR 2855.
D. Ekagra’s Complaint
On August 22, 2022, Ekagra filed its initial complaint in this Court pursuant to 28
U.S.C. § 1491(b), challenging USCB’s award of the BPA and call orders to Paradyme. ECF
No. 1. The next day, Paradyme filed an unopposed motion to intervene in the action,
ECF No. 10, which this Court granted, ECF No. 11. On September 23, 2022, Ekagra filed
its amended complaint. ECF No. 26 (“Am. Compl.”).
Ekagra alleges that Census — in awarding the procurement to Paradyme — made
five errors.
In Count One, Ekagra asserts that Census botched its evaluation of Ekagra’s past
performance by failing to evaluate a particular past performance reference. Am. Compl.
¶¶ 71–77 (Count One). According to Ekagra, “[h]ad [Census] properly evaluated all of
Ekagra’s past performance submissions, it would have received a second strength and
would have had more strengths than Paradyme under the past performance factor.” Id.
¶ 77.
In Count Two, Ekagra avers that Census unreasonably assigned Ekagra a
weakness due its failure to adequately explain its retention strategy to minimize
personnel turnover. Am. Compl. ¶¶ 78–84 (Count Two). Ekagra asserts that it explained
its retention strategy and that, in any event, it is similar to Paradyme’s proposal, which
Census did not evaluate as a weakness. Id. ¶¶ 81–84.
12
In Count Three, Am. Compl. ¶¶ 85–94, Ekagra challenges the significant
weaknesses it received “for its purported failure to meet the Solicitation’s requirements
for its Lead Tools Administrator and Project Manager” — both key personnel positions,
id. ¶ 86. Ekagra maintains that “[i]f not for the Agency’s arbitrary, irrational and
unreasonable evaluation of Ekagra’s key personnel, it would have received two fewer
significant weaknesses and would have had a much higher chance at receiving award.”
Id. ¶ 94.
In Count Four, Am. Compl. ¶¶ 95–101, Ekagra asserts that Paradyme’s approach
to Call Order 0001 is not technically acceptable because Paradyme merely “relied on its
experience with the previous TSCoE” and thus “failed to address the Solicitation’s
express requirement for a new TSCoE,” id. at ¶ 100 (emphasis omitted). Ekagra thus
concludes that Paradyme “should have been found to be unawardable.” Id. ¶ 101.
The particulars of Count Five are not entirely clear, but the core assertion is that
while Census concluded that Paradyme’s pricing was unbalanced, Am. Compl. ¶ 109,
“the contracting officer did not consider whether [Paradyme’s pricing] constituted a risk
or whether the Agency would pay unreasonably high prices for contract performance,”
id. ¶ 111.
On September 23, 2022, Ekagra filed a motion for judgment on the administrative
record pursuant to Rule 52.1 of the Rules of the United States Court of Federal Claims
(“RCFC”). ECF No. 27 (“Pl. MJAR”). On October 7, 2022, the government and Paradyme
each filed a timely cross-MJAR and response to Ekagra’s MJAR. ECF No. 29 (USCB’s
MJAR); ECF No. 30 (Paradyme’s MJAR). Two weeks later, Ekagra filed a timely
combined reply and response brief. ECF No. 33 (“Pl. Resp.”). On October 28, 2022, the
government and Paradyme each filed a timely reply brief. ECF No. 34 (USCB’s reply);
ECF No. 35 (“Def.-Int. Rep.”).
On November 8, 2022, the Court held oral argument on the parties’ cross-MJARs.
ECF No. 37 (“Tr.”).
II. JURISDICTION
The Tucker Act provides that an “interested party” may file an “action” in this
Court “objecting [1] to a solicitation by a Federal agency for bids or proposals for a
proposed contract or [2] to a proposed award or [3] the award of a contract or [4] any
alleged violation of statute or regulation in connection with a procurement or a proposed
procurement.” 28 U.S.C. § 1491(b)(1); see also Aero Spray, Inc. v. United States, 156 Fed. Cl.
13548, 559 & n.18 (2021) (“Section 1491(b) actions are typically referred to as ‘bid
protests.’”). 6
“Standing is an integral part of jurisdiction.” Seventh Dimension, LLC v. United
States, 160 Fed. Cl. 1, 14 (2022) (citing Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992)).
“The party invoking federal jurisdiction bears the burden of establishing standing.”
CliniComp Int’l, Inc. v. United States, 904 F.3d 1353, 1358 (Fed. Cir. 2018) (citing Myers
Investigative & Sec. Servs., Inc. v. United States, 275 F.3d 1366, 1369 (Fed. Cir. 2002)).
“Where a plaintiff lacks standing, its case must be dismissed pursuant to RCFC 12(b)(1).”
Aero Spray, Inc., 156 Fed. Cl. at 556 (citing Media Techs. Licensing, LLC v. Upper Deck Co.,
334 F.3d 1366, 1370 (Fed. Cir. 2003)).
To establish standing in a § 1491(b) action, a plaintiff must demonstrate that it is
an “interested party.” Aero Spray, Inc., 156 Fed. Cl. at 559 (“[T]he Tucker Act, as amended
by the Administrative Dispute Resolution Act of 1996, . . . defines not only this Court’s
jurisdiction over what actions may be brought against the government, but also who has
standing to pursue them.”). In a pre-award protest action — typically involving a
challenge to the terms of a solicitation — a plaintiff must allege facts that “demonstrate[]
a ‘non-trivial competitive injury which can be addressed by judicial relief.’” Weeks
Marine, Inc. v. United States, 575 F.3d 1352, 1362 (Fed. Cir. 2009) (quoting WinStar
Commc’ns, Inc. v. United States, 41 Fed. Cl. 748, 763 (1998)); see also Aero Spray, Inc., 156
Fed. Cl. at 562 (explaining that “[t]he Federal Circuit . . . modified that post-award
standing test for pre-award cases” because “applying the [post-award] ‘substantial
chance’ test makes little or even no sense” where “an agency is in the early stages of the
procurement process and potential offerors have not even submitted proposals yet”). In
a post-award protest action, such as in this case, an “interested party” is “[1] an actual or
prospective bidder or offeror [2] whose direct economic interest would be affected by the
award of the contract or by failure to award the contract.” Am. Fed’n of Gov’t Emps., AFL-
CIO v. United States, 258 F.3d 1294, 1302 (Fed. Cir. 2001) (quoting 31 U.S.C. § 3551(2)).
Irrespective of the applicable “interested party” test, “the question of prejudice
goes directly to the question of standing,” and thus “the prejudice issue must be reached
before addressing the merits.” Info. Tech. & Applications Corp. v. United States, 316 F.3d
1312, 1319 (Fed. Cir. 2003); see also Myers, 275 F.3d at 1370 (“[P]rejudice (or injury) is a
necessary element of standing.”). In that regard, “a plaintiff must allege facts — not mere
conclusory assertions of law — demonstrating prejudice.” Vanquish Worldwide, LLC v.
6 Cf. Tolliver Grp., Inc. v. United States, 151 Fed. Cl. 70, 96–97 (2020) (“[A]lthough ‘[the
Administrative Dispute Resolution Act] covers primarily pre- and post-award bid protests,’ the
Federal Circuit in RAMCOR explicitly reversed this Court’s determination ‘that a [plaintiff] could
only invoke § 1491(b)(1) jurisdiction by including in its action an attack on the merits of the
underlying contract award’ or the solicitation.” (third alteration in original) (quoting RAMCOR
Servs. Grp., Inc. v. United States, 185 F.3d 1286, 1289 (Fed. Cir. 1999))).
14
United States, -- Fed. Cl. --, 2022 WL 17087798, at *10 (Fed. Cl. Nov. 10, 2022) (citing Blue
Origin Fed’n, LLC v. United States, 157 Fed. Cl. 74, 89 (2021)); see also Blue Origin Fed’n, LLC,
157 Fed. Cl. at 89 (“[T]he court must decide whether those alleged facts show the
protestor was prejudiced by the alleged errors.” (citing Statistica, Inc. v. Christopher, 102
F.3d 1577, 1581 (Fed. Cir. 1996))). 7
To succeed on the merits, however, a plaintiff must prove not only that the
government erred — i.e., that it acted arbitrarily, capriciously, or contrary to law — but
also that any such error was prejudicial. See Ascendant Servs., LLC v. United States, 160
Fed. Cl. 275, 287–88 (2022) (“In order to be successful in a bid protest, a protestor must
establish prejudice twice. First, it must establish prejudice as part of the standing
inquiry. . . . Second, a protestor must also establish prejudice as part of its case on the
merits. . . . On the merits of a bid protest, it is not enough to show that an agency has
stepped out of bounds; rather, a protestor must further show that the offending agency’s
conduct prejudiced it.”); L-3 Commc’ns Corp. v. United States, 99 Fed. Cl. 283, 289 (2011)
(“[T]he prejudice determination for purposes of standing assumes all non-frivolous
allegations to be true, whereas the post-merits prejudice determination is based only on
those allegations which have been proven true.”). In other words, a plaintiff ultimately
must do more than demonstrate that the government made errors in an evaluation or
violated the terms of a solicitation or the FAR (or a statute); rather, a plaintiff must prove
that such errors or violations actually prejudiced the plaintiff. 8
7 “The Court assumes the facts alleged in a plaintiff’s complaint are true for the purposes of
evaluating standing but not for the purpose of resolving whether a plaintiff has demonstrated
prejudice on the merits.” Vanquish Worldwide, LLC, 2022 WL 17087798, at *10 (citing Blue Origin
Fed’n, LLC, 157 Fed. Cl. at 89); see also VAS Realty, LLC v. United States, 26 F.4th 945, 950 (Fed. Cir.
2022) (explaining that, for the purposes of standing, “a court is required to accept as true all
factual allegations pleaded” (quoting Frankel v. United States, 842 F.3d 1246, 1249 (Fed. Cir. 2016)));
Blue Origin Fed’n, LLC, 157 Fed. Cl. at 89 (“For the limited purpose of determining whether it has
standing, a protestor’s allegations are assumed to be true.” (citing Am. Relocation Connections,
L.L.C. v. United States, 789 F. App’x 221, 226 (Fed. Cir. 2019))); Am. Relocation Connections, 789 F.
App’x at 226 (“For standing, we presume the party bringing a bid protest will succeed on the
merits of its claim and ask whether it has alleged an injury (or prejudice) caused by the procuring
agency’s actions.”); Yang Enters., Inc. v. United States, 156 Fed. Cl. 435, 444 (2021) (“The Court
assumes well-pled allegations of error to be true for purposes of the standing inquiry.”).
8In this Court’s recent decision in Ahtna Logistics, LLC, for example, the Court concluded that the
plaintiff in that case was an interested party with standing because the complaint included
“factual allegations that, if proven, would support a finding of prejudice.” 2022 WL 17480642, at
*8. Even so, that same plaintiff not only failed to demonstrate that the government erred but also,
in the alternative, failed to demonstrate that any of the putative errors would have prejudiced the
plaintiff given its relative position in the agency’s final evaluation of proposals. Ahtna Logistics,
LLC, 2022 WL 17480642, at *21–24.
15
While neither the government nor Paradyme argues that Ekagra lacks standing as
an interested party, this Court has an independent duty to ascertain whether it possesses
jurisdiction to decide Ekagra’s claims, including whether Ekagra has standing to pursue
them. See FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 231 (1990) (“The federal courts are
under an independent obligation to examine their own jurisdiction, and standing ‘is
perhaps the most important of [the jurisdictional] doctrines.’” (alteration in original)
(quoting Allen v. Wright, 468 U.S. 737, 750 (1984))); see also RCFC 12(h)(3).
There is no dispute that Ekagra “is an actual bidder,” Am. Compl. ¶ 5, but Ekagra’s
assertion that “it had a substantial chance of receiving the [contract] award” but for the
government’s alleged errors, id. ¶ 7, is purely conclusory; Ekagra must allege facts that, if
proven, would demonstrate prejudice. After reviewing the amended complaint for such
factual allegations, the Court determines that Ekagra is an “interested party” pursuant to
28 U.S.C. § 1491(b) with standing to pursue only Counts Three, Four, and Five. 9
With respect to Count One, the fatal problem in terms of prejudice for standing is
that Ekagra asserts only that, had Census “properly evaluated all of Ekagra’s past
performance submissions, it would have received a second strength and would have had
more strengths than Paradyme under the past performance factor.” Am. Compl. ¶ 77.
Ekagra makes no effort, however, to allege facts that show how or why such an improved
past performance rating would have made a difference in USCB’s ultimate award
decision, a legally significant failure given that Census evaluated Ekagra’s proposal as
having “one weakness[] and three significant weaknesses.” Am. Compl. ¶ 66 (emphasis
added). Accordingly, even assuming the truth of the factual statements in Count One,
this Court cannot conclude that Ekagra would be entitled to relief.
Count Two suffers from a similar defect. There, Ekagra alleges only that Census
should not have assigned Ekagra a weakness for its employee retention strategy. Am.
Compl ¶ 84. Again, however, Ekagra makes no effort to show how or why the removal
of a single weakness would make any difference in USCB’s ultimate contract award
decision. In other words, Ekagra’s proposal still would suffer from “three significant
9 The Court notes that a plaintiff must show prejudice for standing (and ultimately prove
prejudice on the merits) for each allegation of agency error (or some discrete collection of errors).
In that regard, Ekagra’s amended complaint also contains a separate count purporting to describe
why “Ekagra Was Prejudiced.” Am. Compl. ¶¶ 112–16 (Count Six). The issue of prejudice,
however, is not itself an allegation of error and thus is not properly labeled as a separate count.
Moreover, in Count Six, all of Ekagra’s prejudice allegations are conclusory, and the Court does
not assume their truth. Similarly, with respect to prejudice on the merits, Ekagra’s MJAR argues
that “[t]he Agency’s errors prejudiced Ekagra,” but that section merely summarizes caselaw and
contains only conclusory statements. Pl. MJAR at 32–33. Ekagra’s reply and response brief also
relies upon a skeletal assortment of conclusory statements to argue that “Ekagra’s proposal . . .
should have been selected for award.” Pl. Resp. at 13–14. As discussed infra, these statements,
with little to no support in the administrative record, do not demonstrate prejudice on the merits.
16
weaknesses.” Id. ¶ 66. In the absence of other alleged facts suggesting the possibility of
a different award decision but for the putatively erroneous weakness, Ekagra’s complaint
does not demonstrate prejudice, for standing purposes, for Count Two.
In sum, at least for Count One and Count Two, Ekagra’s failure to allege facts
demonstrating prejudice means that Ekagra lacks standing to pursue those counts and,
thus, this Court lacks jurisdiction to decide them. See RCFC 12(h)(3); ZeroAvia, Inc. v.
United States, 160 Fed. Cl. 505, 510 (2022) (“Because the Court finds that [Plaintiff’s]
allegations of procurement errors do not contain sufficient factual support to demonstrate
that it had a substantial chance of receiving an award, [Plaintiff] fails to meet its burden
to establish that it has standing.”); cf. Todd Constr., L.P. v. United States, 656 F.3d 1306, 1316
(Fed. Cir. 2011) (“[Plaintiff] has alleged nothing to indicate that the outcome of the
performance evaluations would have been any different if the purported procedural
errors had not occurred. . . . Therefore, [Plaintiff] lacks standing to sue [for this claim].”).
The remaining counts provide sufficient details to establish prejudice for the
purposes of standing — albeit barely. Count Three, for example, alleges that but for
USCB’s erroneous assignment of two significant weaknesses for Ekagra’s key personnel,
it “would have had a much higher chance at receiving award.” Am. Compl. ¶ 94. As
with Counts One and Two, Ekagra does not allege facts in Count Three that, if proven,
demonstrate a “higher chance” of award. Nor does a “higher chance” equate to a “not
insubstantial chance” of an award; trivial odds that are doubled may still be trivial. Nor,
for that matter, does Ekagra deal with the fact that even if it prevails on Count Three,
Ekagra would still suffer from a remaining significant weakness. See Am. Compl. ¶ 66.
Would the removal of two significant weaknesses be sufficient to fundamentally
undermine the foundations of the government’s best value decision here? Or would the
remaining significant weakness mean that Ekagra loses in any event? Ekagra’s amended
complaint does not answer those questions with alleged facts. Nevertheless, the Court
concludes that, reading the complaint as a whole, Ekagra has alleged sufficient facts to
demonstrate prejudice for the purposes of standing for Count Three. Cf. Ascendant Servs.,
LLC, 160 Fed. Cl. at 287–88 (“[I]t appears obvious that if Plaintiff were successful on all of
its challenges to the [agency’s] evaluation it would have a substantial chance of award
and thus the prejudice threshold for standing purposes has been satisfied.”).
Ekagra demonstrates prejudice for standing purposes in Count Four of its
amended complaint because if Paradyme “is not technically acceptable” and “should
have been found . . . unawardable,” Am. Compl. ¶ 101, there is a substantial chance that
Ekagra would be back in the hunt for an award — particularly given Ekagra’s allegation
that it was ranked second for the technical evaluation, id. ¶ 58. VAS Realty, LLC v. United
States, 26 F.4th 945, 949–51 (Fed. Cir. 2022) (holding that where a plaintiff demonstrates
that an awardee’s “ineligibility for the award . . . result[s] [in the] need for [an agency] to
rebid the contract,” the plaintiff has standing because “assuming its protest is successful,
17
it would have an opportunity to participate in a new procurement” (citing Tinton Falls
Lodging Realty, LLC v. United States, 800 F.3d 1353 (Fed. Cir. 2015))).
Finally, for Count Five, Ekagra does not explain with any degree of precision how
it is prejudiced by USCB’s alleged failure to assess risk from unbalanced pricing.
Nevertheless, the Court is reasonably able to discern the general thrust of Ekagra’s
complaint: if the contracting officer properly had considered such risk — i.e., “whether
the Agency would pay unreasonably high prices for contract performance,” Am. Compl.
¶ 111 — Census would not have selected Paradyme for award.
Accordingly, the Court concludes that Ekagra possesses standing to maintain its
action because the amended complaint contains sufficient factual allegations in Counts
Three, Four, and Five. Whether Ekagra has proven prejudicial errors via its MJAR
briefing (and oral argument) is a merits question, which the Court addresses below.
III. STANDARD OF REVIEW
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.
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., 575 F.3d at 1358). “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)).
18
“In applying the APA standard of review, this Court affords considerable
deference to an agency’s procurement decisions.” IAP Worldwide Servs., Inc. v. United
States, 159 Fed. Cl. 265, 286 (2022) (citing Advanced Data Concepts, Inc. v. United States, 216
F.3d 1054, 1058 (Fed. Cir. 2000)). In particular, protests involving “the minutiae of the
procurement process in such matters as technical ratings . . . involve discretionary
determinations of procurement officials that a court will not second guess.” E.W. Bliss
Co. v. United States, 77 F.3d 445, 449 (Fed. Cir. 1996). Thus, in reviewing an agency’s
procurement decision, the Court shall merely “determine whether ‘the contracting
agency provided a coherent and reasonable explanation of its exercise of discretion.’”
Impresa, 238 F.3d at 1332–33 (quoting Latecoere Int’l, Inc. v. U.S. Dep’t of Navy, 19 F.3d 1342,
1356 (11th Cir. 1994)). Accordingly, the Court “will uphold a decision of less than ideal
clarity if the agency’s path may reasonably be discerned.” Bowman Transp., Inc. v.
Arkansas-Best Freight Sys., Inc., 419 U.S. 281, 286 (1974) (citing Colo. Interstate Gas Co. v. Fed.
Power Comm’n, 324 U.S. 581, 595 (1945)). “On the other hand, the Court will not put words
in an agency’s mouth or invent supporting rationales the agency has not itself articulated
in the administrative record; post hoc explanations for agency decisions ordinarily will be
rejected.” IAP Worldwide Servs., 159 Fed. Cl. at 286.
To establish prejudice on the merits in a post-award challenge, a plaintiff must
show with record evidence that, but for the agency’s error, “the protestor’s chance of
securing the award [would] not have been insubstantial.” Info. Tech. & Applications Corp.,
316 F.3d at 1319; see also Oak Grove Techs., LLC v. United States, 155 Fed. Cl. 84, 98 (2021)
(discussing standard of review and prejudice requirements).
IV. DISCUSSION
A. Census Reasonably Evaluated Ekagra’s Proposed Key Personnel (Count
Three)
Ekagra argues that Census improperly “inject[ed] [RFQ] Attachment J.2 into [the]
evaluation criterion” for key personnel. Pl. MJAR at 23. In particular, Ekagra complains
that Census improperly assigned two significant weaknesses to Ekagra because its
proposed program manager and lead tools administrator — both key personnel positions
— lacked experience with Agile software development. Id. at 22–23 (also challenging
Ekagra’s associated “high risk” evaluation); AR 1068 (RFQ § H.2) (identifying key
personnel). 10
10 As explained in Active Network, LLC v. United States, “Agile software methodology is an
alternative approach to traditional project management.” 130 Fed. Cl. 421, 425 n.2 (2017); see also
Agile, Carnegie Mellon Univ. Software Eng’g Inst., https://www.sei.cmu.edu/our-work/agile/
(last visited Dec. 15, 2022) (“Agile is an iterative approach to software delivery that builds and
delivers software incrementally from the start of a project instead of trying to deliver it all at once
near the end.”).
19
Ekagra does not argue that its proposed project manager and lead tools
administrator possess the Agile experience at issue. 11 Nor does Ekagra contend that RFQ
Attachment J.2 lacks an Agile experience requirement for the two key personnel positions
at issue. Thus, Ekagra’s entire argument depends on the erroneous premise that Census
could not properly consider the labor category descriptions specified in RFQ Attachment
J.2, merely because Section M “doesn’t use the word ‘J.2.’” Tr. 16:21–23; see also Tr. 17:4-
6 (arguing that Census could not consider Attachment J.2 because the RFQ did not
“explicitly mention[] J.2”). The Court concludes that Ekagra’s argument has zero merit.
As noted above, Section M.2.3 of the RFQ covers the evaluation of key personnel
(subfactor 2B) for the BPA as a whole. AR 1128. The RFQ required Census to “evaluate
the information contained in the resumes submitted with the quote.” AR 1128. In doing
so, Census had to base its evaluation “on the extent to which personnel submitted by the
Quoter meet, or exceed, skills, experience and education required in performing the work.”
AR 1128–29 (emphasis added). The RFQ additionally specified that “[k]ey [p]ersonnel
will be evaluated on[,]” among other criteria, “[k]nowledge, skills and abilities of the
proposed key personnel to meet minimum labor category requirements.” AR 1129 (emphasis
added).
Ekagra maintains that Census could not consider the labor category requirements
in Attachment J.2. See Pl. MJAR at 22 (arguing RFQ § M.2.3 does not “include”
Attachment J.2). But Ekagra makes no effort to identify where else in the RFQ one might
find “minimum labor category requirements.” AR 1129. The only — and rather obvious
— location for such requirements is in Attachment J.2, which is titled “Labor Category
Descriptions.” AR 1149; see also Pl. MJAR at 22 (“The Government is in need of labor
categories that are comparable to the BPA Roles outlined in . . . Attachment J.2 — Labor
Category Descriptions.” (emphasis added) (quoting AR 1016 (RFQ § B.3.1))). For example,
Attachment J.2 specifies that the “[a]nticipated [r]ole [r]equirements and [s]kills” of the
project manager include “Knowledge of Agile and/or SAFe Frameworks — Minimum 2–
3 years.” AR 1149 (emphasis added). Reading the RFQ as a whole — which is the only
way to read it correctly 12 — Census properly considered Attachment J.2 in evaluating
Ekagra’s proposal.
11Ekagra noted that its TSCoE subject matter expert had Agile experience, Pl. MJAR at 23, but the
significant weaknesses concerned the other two people the quote identified as key personnel.
AR 1166 (Ekagra Quote — Technical Volume) (identifying proposed key personnel).
12See, e.g., Safeguard Base Operations, LLC v. United States, 989 F.3d 1326, 1344 (Fed. Cir. 2021) (“We
must consider the Solicitation as a whole and interpret ‘it in a manner that harmonizes and gives
reasonable meaning to all of its provisions.’” (quoting Banknote Corp. of America, Inc., 365 F.3d at
1353)); Golden IT, LLC v. United States, 157 Fed. Cl. 680, 696–97 (2022) (concluding that an RFQ
attachment’s requirements under “labor category descriptions” provided measures for assessing
strengths, weaknesses, and risks).
20
Moreover, during oral argument, Ekagra all but acquiesced to the government’s
(and this Court’s) reading of the RFQ:
THE COURT: Where are those minimum labor category
requirements?
[EKAGRA COUNSEL]: We don’t believe that they’re in the
solicitation, Your Honor. They’re in J.2, which is not a
requirement.
THE COURT: . . . [B]ut where do I find them? . . . I mean,
these mean something. There’s no pre-award protest
objecting to their ambiguity. Where are they?
[EKAGRA COUNSEL]: There are labor category
requirements in J.2.
Tr. 14:15–25; see also Tr. 16:8–14 (Ekagra agreeing that “J.2 is where there are minimum
requirements” and that “agile experience[] [is a requirement] in both of the labor
categories at issue”). At a minimum, then, Ekagra’s reading of the RFQ suffers from a
fatal timeliness defect pursuant to Blue & Gold Fleet, L.P. v. United States, 492 F.3d 1308(Fed. Cir. 2007). That is because Section M.2.3 requires that Census evaluate quotes
against the “minimum labor category requirements.” AR 1129. If Attachment J.2 cannot
be employed for that purpose and Ekagra cannot identify any other source for such
“minimum” requirements, then the RFQ is patently ambiguous. Ekagra cannot complain
about such an ambiguity this late in the game. See Blue & Gold Fleet, 492 F.3d at 1313–14.
Although Ekagra invokes “the rule of contra proferentem” to support its reading of the
RFQ, Pl. Resp. at 7, “[t]he doctrine of patent ambiguity is an exception to the general rule
of contra proferentem,” Blue & Gold Fleet, 492 F.3d at 1313 (quoting E.L. Hamm & Assocs.,
Inc. v. England, 379 F.3d 1334, 1342 (Fed. Cir. 2004)). Thus, even if the RFQ were
ambiguous, contra proferentem does not save Ekagra’s argument.
Finally, in the alternative, the Court finds that Ekagra has not demonstrated
prejudice on the merits of Count Three, even if Census erred in applying the RFQ’s
requirements. Ekagra pays prejudice scant attention in its briefs, making only two
assertions regarding prejudice for this count. First, Ekagra argues that had Census
properly evaluated Ekagra’s proposed key personnel, it “would have received two less
significant weaknesses and no high risks” for the key personnel evaluation subfactor. Pl.
MJAR at 23–24. Thus, Ekagra reasons, it would have “increas[ed] its opportunity to
receive [the] award.” Id. at 24. Second, Ekagra asserts that “a proper evaluation would
have resulted [in] different ratings” and, thus, the “best value analysis also would have
changed.” Pl. Resp. at 7.
21
At the outset, the Court notes that Ekagra cites no caselaw whatsoever supporting
the proposition that prejudice can be proven merely by demonstrating that Ekagra should
have received a better evaluation than it did — i.e., without showing how that better
evaluation might translate to the increased likelihood of contract award. Although “the
substantial chance requirement does not mean that [a] plaintiff must prove it was next in
line for the award but for the government’s errors[,] . . . [d]emonstrating prejudice does
require . . . that the plaintiff show more than a bare possibility of receiving the award.”
Precision Asset Mgmt. Corp. v. United States, 125 Fed. Cl. 228, 233–34 (2016) (finding “no
evidence on which to base a finding that [the] plaintiff had not only a chance to receive
the award, but a substantial chance” when the plaintiff’s success would leave a higher-
rated, lower-cost alternative offer); see Info. Tech. & Applications Corp., 316 F.3d at 1319(concluding that, to establish prejudice on the merits in a post-award challenge, a plaintiff
must show with record evidence that, but for the agency’s error, “the protestor’s chance
of securing the award [would] not have been insubstantial”); Am. Relocation Connections,
L.L.C. v. United States, 789 F. App’x 221, 228 (Fed. Cir. 2019) (“[T]o prevail in its bid
protest, [Plaintiff] must ‘show a significant, prejudicial error in the procurement process,
meaning it must show that there is a greater-than-insignificant chance” that the agency
would have awarded the contract to the plaintiff “had [the agency] not committed the
alleged errors.” (quoting Alfa Laval Separation, Inc. v. United States, 175 F.3d 1365, 1367
(Fed. Cir. 1999))). 13
Ekagra’s primary difficulty in proving prejudice on the merits is that Census
assigned an independent “significant weakness and high risk” to Ekagra’s quote for the
fourth evaluation factor: “Call Order 0002 Technical Approach.” AR 2262–63. Indeed,
the administrative record suggests that this finding was an entirely separate basis
underpinning USCB’s selection of Paradyme over Ekagra:
For Call Order 0002, Ekagra had a significant weakness and
high risk for not providing details on how the integrity of the
baselines will be maintained, resulting in unsecured systems,
exposure of title data, and audit findings that would cause
tools to be completely unavailable for mission critical work.
There are too many critical service risks for the Federal staff
to mitigate, which would cause either a lapse in service or
critical security risk. These significant weaknesses and high risks
increase the overall risk of unsuccessful BPA and Call Order
performance and is therefore not the best value to the Government.
13See also WellPoint Mil. Care Corp. v. United States, 953 F.3d 1373, 1380 (Fed. Cir. 2020) (“[A]n error
in the TET report, standing alone, is not prejudicial. . . . To show prejudicial error, [Plaintiff] must
show a ‘substantial chance’ that the [decisionmaker] . . . would have made a different award
decision but for the alleged error[.]” (quoting Info. Tech. & Applications Corp., 316 F.3d at 1319)).
22
Thus, Paradyme’s quote for Call Order 0002 is the best value to the
Government.
AR 2263 (Contracting Officer Best Value Determination) (emphasis added) (explaining
that “[w]hile Ekagra did propose the lowest price for Call Order 0002, Ekagra’s technical
quote has significant weaknesses and high risks, especially regarding the high risk
associated with not describing how the integrity of the baselines will be maintained”
(emphasis added)). Moreover, the contracting officer found that “Paradyme’s technical
quote had no weaknesses or risks and would meet the government’s requirements, thus
justifying the increase in cost of $[ * * * ]” specifically for Call Order 0002. AR 2263–64.
Given the Court’s factual findings described above, Ekagra had the burden to
demonstrate that eliminating its two significant weaknesses (and associated high risks)
for key personnel would have undermined (1) the contracting officer’s finding that
Ekagra’s quote was technically unacceptable, and, in turn, (2) the best value decision.
Aside from conclusory assertions that Ekagra’s position for award would have improved,
however, Ekagra makes no effort to tackle the difficult questions regarding its technical
acceptability or the contracting officer’s willingness to pay Paradyme more than Ekagra’s
proposed price for Call Order 0002. See, e.g., Sys. Stud. & Simulation, Inc. v. United States,
22 F.4th 994, 996–98 (Fed. Cir. 2021) (“[T]he challenger of [an] agency action generally
bears the burden of showing that an error was harmful — that is, that it was
prejudicial. . . . We hold that there is no presumption of prejudice when a protestor
demonstrates irrationality in an agency decision. The protestor must show prejudice
under the usual standard.”); Ahtna Logistics, LLC, 2022 WL 17480642, at *8 (“To succeed
on the merits, however, including prejudice, a plaintiff must prove its allegations.”);
Ascendant Servs., LLC, 160 Fed. Cl. at 288 (“On the merits of a bid protest, it is not enough
to show that an agency has stepped out of bounds; rather, a protestor must further show
that the offending agency’s conduct prejudiced it.”); ACI Techs., Inc. v. United States, 162
Fed. Cl. 39, 46 (2022) (“A plaintiff has the burden to prove prejudice and thus must offer
an actual prejudice argument for all but the most self-obvious propositions[.]”).
To be clear, the Court does not deny that Ekagra perhaps could have made a
plausible prejudice argument on this record. But Ekagra did not do so. Having failed to
prove that it was prejudiced by any error in the key personnel evaluation (even assuming
the government made one), Ekagra cannot succeed on Count Three.
B. Census Reasonably Evaluated Paradyme’s Call Order 0001 Quote (Count
Four)
Unlike Ekagra’s first three counts in its complaint that challenge USCB’s
evaluation of Ekagra’s quote, Count Four challenges the evaluation of Paradyme’s quote.
In Count Four, Ekagra contends that Census should have found Paradyme’s quote
“unawardable” because: (1) the RFQ required a “new TSCoE” under Call Order 0001 and
23
Paradyme’s quote proposed building on its previous USCB work to perform that call
order; and (2) Paradyme otherwise failed to demonstrate an understanding of the RFQ’s
requirements. Pl. MJAR at 24–26. This argument is devoid of support in the
administrative record.
The primary premise of Ekagra’s argument is that Paradyme’s extensive work as
an incumbent contractor is not relevant to the new BPA and call orders at issue. Ekagra
thus contends that Paradyme did not provide an awardable quote because it “heavily
relied on [Paradyme’s] previous experience working on TSCoE.” Pl. MJAR at 24.
Ekagra is partially correct: Paradyme did rely on its incumbent work for Census.
For example, Paradyme included this previous work as one of its similar experiences.
AR 1255–56 (describing that project as “the current incumbent work being competed”
where Paradyme “helped [a part of Census] stand up [that project’s] TSCoE”).
Paradyme’s quote further elaborated on what it had done for USCB’s Enterprise
Development Tools Support Branch (“EDTSB”):
Since 2016, [Paradyme] has run and managed the [EDTSB
TSCoE] . . . . The initial goal of the TSCoE was to assist the
Branch in addressing the lack of standardization of tools
throughout the Census enterprise. When the contract began,
many of the tools used throughout the Census Bureau were
in different versions, [and] implemented very differently . . . .
[W]e have significantly improved the state of tools
implementation at the Census, standardizing the version and
implementation of various tools deployed throughout the Bureau.
AR 1279 (emphasis added); cf. AR 1021 (RFQ § C.2) (“The TSCoE objective is to provide
processes, procedures, standards, policies, . . . and best practices[.]”); AR 677 (RFQ
Attach. J.12) (listing several tasks the contract awardee “shall provide” for Call Order
0001 that involve EDTSB). And Census noted in its award decision that “[t]he Enterprise
Tools requirement is currently being provided by Paradyme” under the previous work
order. AR 2276 (Award Memorandum).
Ekagra is also correct that the RFQ obligated Census to assess Call Order 0001
quotes against Attachment J.12’s requirements, see Pl. MJAR at 8, 24, including “the
degree to which the Quoter’s technical approach . . . demonstrates a clear understanding
of the support required,” AR 1129 (RFQ § M.2.4) (listing evaluation criteria). Attachment
J.12, in turn, explained that “[t]he purpose of this Call Order . . . is to procure contractor
services to plan, develop, implement and then manage a new TSCoE and provide [BPA-
level] program and project management.” AR 675 (RFQ Attach. J.12).
24
But the premise of Ekagra’s argument does not prove its conclusion. To the
contrary, Census reasonably found that Paradyme’s quote met the RFQ requirements. In
addition to describing Paradyme’s previous Census TSCoE work, Paradyme explained
that it would implement “the improved TSCoE . . . through the finalization and
codification of [Paradyme’s] processes,” AR 1279 (Paradyme Quote — Technical
Volume), apparently referring to Paradyme’s incumbent work for the EDTSB. Citing this
section of Paradyme’s quote, the contracting officer’s best value determination noted
Paradyme’s plan to leverage its “existing artifacts” and “knowledge of USCB business,”
and concluded that “[t]his combination of strategies meets the Government’s
requirements, while providing a significant cost savings for Call Order 0001.” AR 2264.
The contracting officer’s determination in that regard reflected the TET’s earlier, similarly
positive view of Paradyme’s technical approach: “Paradyme provided a quotation with
an approach that would . . . set up, implement and run a TSCoE. . . . Paradyme’s
proposed approach will provide the capabilities that meet the EDTSB’s requirements.”
AR 2230–31 (Technical Re-Evaluation Consensus Report); AR 2265 (Contracting Officer
Best Value Determination) (same). The contracting officer’s final award memorandum
repeated those findings. AR 2285.
Given this context, Ekagra attempts to manufacture a non-existent RFQ
requirement: that the awardee must provide a completely new TSCoE, totally
uninfluenced by, and having no connection with, USCB’s (and Paradyme’s) previous
work. Quoting the RFQ’s references to a “new TSCoE” and the planned change to the
TSCoE’s organizational model, Ekagra argues that Paradyme’s proposed use of materials
from its existing USCB TSCoE work reveals Paradyme’s quote would not deliver a “new”
TSCoE. Pl. MJAR at 24–26; Pl. Resp. at 7–8; Tr. 40:18–23 (“If the Government rejects the
old center of excellence that Paradyme was using, . . . then using those documents [from
the old center] . . . is not sufficient. And the contracting officer did not grapple with
that.”). But Ekagra makes an unsubstantiated leap from the RFQ’s description of a new
TSCoE structure — i.e., siloed versus centralized, AR 1019–20 — to conclude that the RFQ
demanded “an all new TSCoE,” Pl. MJAR at 24 (emphasis added); see also Pl. Resp. at 8.
Ekagra’s argument does not land for the simple reason that the RFQ does not impose
some artificial firewall between USCB’s and Paradyme’s past work, on the one hand, and
the new contract, on the other. See AR 1021 (RFQ § C.2) (“The TSCoE will migrate Tools
Administration, Support, and Services from the traditional ‘silo’ model to a centralized
model. Tools support functions will move . . . to a centralized model[.]” (emphasis
added)); AR 1279 (Paradyme Quote — Technical Volume) (describing how Paradyme
would improve the existing TSCoE).
Even Ekagra recognized that no part of the RFQ barred use of existing materials or
prior work, and the agency had reasonable discretion to consider past work. See Tr. 37:2–
25
13. 14 As described above, Paradyme’s proposal provided a reasonable basis on which the
contracting officer determined that Paradyme’s experience and related materials would
help Paradyme implement the TSCoE per the RFQ’s terms.
Ekagra’s argument that Paradyme failed to demonstrate an understanding of the
RFQ’s requirements fares no better. Ekagra cites Paradyme’s allegedly “vague, non-
specific, irrelevant plans” and Paradyme’s comparatively low Call Order 0001 price. Pl.
MJAR at 24–25; see Tr. 63:7–9, 64:2–3. But Paradyme’s quote described its proposed
technical approach to Call Order 0001 at length, including details about Paradyme’s
proposed TSCoE. See AR 1279–90. During oral argument, Ekagra argued “the
Government should have considered whether or not [unbalanced pricing] created
substantial risk in light of [Paradyme’s] technical approach,” Tr. 61:16–19, and that
Paradyme “does not add any explanation for how [Call Order 0001] tasks will be
performed” in its basis of estimate, Tr. 64:1–3. But when Ekagra sought to “point [the
Court] to some specific pages” in Paradyme’s proposal, Ekagra referenced only a pricing
spreadsheet. See Tr. 63:7–20 (discussing AR 1358–59). But the pricing spreadsheet,
standing alone, cannot demonstrate Paradyme lacked an understanding of the RFQ’s
requirements. In short, the TET and contracting officer had a sufficient basis in
Paradyme’s quote from which to distill and approve of its technical approach.15
Similarly, in claiming that Paradyme’s Call Order 0001 price was so low that “it is
clear that Paradyme did not understand this requirement,” Pl. MJAR at 25, Ekagra
ignores much of Paradyme’s quote. Paradyme explained its low price. See, e.g., AR 1279
14Ekagra agreed that the RFQ did not preclude per se the USCB’s consideration of Paradyme’s
past work:
THE COURT: So you’re saying [the RFQ] bars the use of any prior work?
[EKAGRA COUNSEL]: It makes it less relevant.
....
THE COURT: Well, if it doesn’t bar it, then it’s just up to the agency’s discretion
[and] whether or not it reasonably considered [Paradyme’s] past work.
[EKAGRA COUNSEL]: Subject to reasonableness, you’re right[.]
Tr. 37:2–13.
15 See, e.g., AR 2230–31 (Technical Re-Evaluation Consensus Report) (“Paradyme proposed to
leverage experience, documentation, and success to quickly plan, draft, and finalize the TSCoE
Vision Document and the TSCoE Enterprise Architecture.”); AR 2264 (Contracting Officer Best
Value Determination) (“Overall Paradyme’s approach includes: (1) leveraging existing artifacts
for similar work they performed at USCB; (2) pricing Call Order 0001 based on each deliverable
and by assuming these artifacts provide the basis for developing the deliverables in this
Solicitation[;] and (3) their knowledge of USCB business.”).
26
(“Rather than starting from scratch, Paradyme can scale and enhance [its prior work
product] through the finalization and codification of our processes[.]”); AR 1282–84
(“Paradyme has a collection of [standard operational procedures], best practices, and
other documentation that it has used to provide TSCoE support that we can leverage to
create [new TSCoE deliverables] . . . . Our team will review and streamline these
documents into an easy to consume set of processes and best practices[.]”).
The PET, in turn, found Paradyme “provided information above and beyond what
was required in the [RFQ].” AR 2245 (Price Evaluation Team Report). From this
information, the PET was “able to determine that Paradyme’s overall [Call Order 0001]
costs differ considerably from the IGCE because of the number of hours they assumed it
would take.” Id.; see also AR 2250 (Price Evaluation Team Report) (“The IGCE assumed
that a vendor would complete the work with no prior experience at USCB. The estimate
included time for discovery, development, and implementation. Paradyme’s approach
differed considerably from that used to develop the IGCE.”).
Additionally, Paradyme assumed in its price quote that “the Basis of Estimate
(BOE) for Call Order 0001 is based on ‘actuals from the current tools program that
Paradyme is the incumbent on.’” AR 2245 (quoting a Paradyme pricing spreadsheet).
The contracting officer reasonably concluded that Paradyme — the company that had
experience developing a standard-supporting Census TSCoE — could “minimize the
research and development needed to create and implement a [TSCoE]” and “provide[]
the best technical quote.” AR 2264; AR 2289 (Award Memorandum) (same). The Court
thus rejects Ekagra’s effort to manufacture a shortcoming in Paradyme’s proposal out of
its lower price; Ekagra cannot so easily gloss over the substance of Paradyme’s quote and
how Paradyme proposed to leverage its prior Census experience.
C. Census Reasonably Considered Unbalanced Pricing (Count Five)
The Court addresses Ekagra’s unbalanced pricing argument by first making clear
what the RFQ does — and does not — provide. The RFQ contains the following provision
in Section M.3 (Factor 5 — Price Quotation) under the heading “Price Evaluation”:
A determination will be made regarding whether the price
appears unbalanced either for the total price of the quote or
separately priced line items. An analysis will be made by
item, resource, quantity, and year to identify any irregular or
unusual pricing patterns. An unbalanced quote is one that
incorporates prices that are less than cost for some services
and/or prices that are overstated for other services.
AR 1131. The RFQ says nothing more about unbalanced pricing.
27
Thus, the RFQ does not incorporate, either expressly or by reference,
FAR 15.404-1(g) (“Unbalanced pricing”). And because this is a FAR part 8 procurement,
AR 1015 (RFQ § B.2), FAR part 15 provisions do not automatically apply. See
FAR 8.404(a). Accordingly, the RFQ does not specify any consequence for an unbalanced
pricing finding.16 Nevertheless, the Court assumes, without deciding, that a finding of
unbalanced pricing requires the contracting officer to “[c]onsider the risks to the
Government associated with the unbalanced pricing” and “whether award of the contract
will result in paying unreasonably high prices for contract performance.” FAR
15.404-1(g)(2)(i)-(ii). Even under FAR 15.404-1(g), however, there is no requirement for
the contracting officer to exclude an offeror from an award due to unbalanced pricing.
See FAR 15.404-1(g)(3) (providing only that “[a]n offer may be rejected if the contracting
officer determines that the lack of balance poses an unacceptable risk to the Government”
(emphasis added)); FAR 2.101 (“May denotes the permissive.”).
Here, there is no dispute that the PET found Paradyme’s Call Order 0001 price
unbalanced. AR 2246. The only question, therefore, is whether “[t]he contracting officer
failed in his duty to analyze balance” — or, more precisely, to consider any associated
risks or consequences of the PET’s unbalanced price finding. Pl. MJAR at 31. According
to Ekagra, the contracting officer failed to “address — implicitly or explicitly — the risks
and concerns the PET raised” and “did not consider whether award of the contract would
result in paying unreasonably high prices.” Id. Ekagra does not suggest how Paradyme’s
low fixed price for Call Order 0001 might somehow result in the government’s ultimately
paying a higher price; thus, Ekagra simply asserts, in essence, that the contracting officer
failed to consider the possibility of some unidentified, unarticulated risks. Contrary to
Ekagra’s assertions, however, the PET, the TET, and the contracting officer all considered
Paradyme’s Call Order 0001 pricing — in light of its technical approach — and did not
assign any weaknesses or risks.
The PET specifically found Paradyme’s offer, overall, reasonable and supported:
Paradyme Management, Inc., proposed rates and prices do
not appear unbalanced for Master BPA labor rates and Call
Order 0002. . . . Paradyme’s cost for Call Order 0001 is
significantly less than the other offerors. Therefore, through
price analysis, the PET was able to determine that the offer
from Paradyme is fair and reasonable. The fair and
reasonable price was determined based on this procurement
being competed via the General Services Administration
16The Court further notes that the RFQ’s unbalanced pricing provision differs in material respects
from FAR 15.404-1(g).
28
(GSA Schedule where the rates are pre-negotiated, as well as
the prices already being determined fair and reasonable).
AR 2245. Indeed, the PET found that Paradyme’s “price quote for Call [O]rder 0001
provided information above and beyond what was required in the Solicitation” and “with
further analysis . . . [the PET] determine[d] that Paradyme’s overall costs differ
considerably from the IGCE because of the number of hours they assumed it would take
to complete all tasks associated with Call Order 0001.” AR 2245 (emphasis added)
(crediting Paradyme’s “assumption provided in their price quote” based on “actuals”
from Paradyme’s incumbent experience). The PET specifically noted the TET’s express
determination “that Paradyme accounted for all deliverables and requirements in their
basis of estimate” and that Paradyme’s “overall total price to Government for Call Order
0001 . . . was clearly supported” in the price quotation worksheet. AR 2248.
The PET expressly considered that the TET had identified three “deliverables” for
which “Paradyme underestimated the level of effort to complete in the required
timeframe.” AR 2248.17 But the PET clearly addressed those concerns, finding that:
(1) “Paradyme’s approach differed considerably from that used to develop the IGCE”;
and (2) while “[t]he other Offerors[’] estimates appear to have accounted for the need for
discovery, development, and implementation,” Paradyme, “[w]ith its prior experience,
. . . was able to reduce the overall cost to accomplish the same work.” AR 2250; see also
AR 2253 (discussing Paradyme’s approach to Call Order 0001 and concluding that “all
quoters[’] proposed prices for Call Order 0001 are deemed fair and reasonable in
comparison to the IGCE”); AR 2254 (“The [PET] determined that all quoters . . . provided
acceptable price quotes[,] . . . . the price submission have been deemed fair and
reasonable, and the technical factors must be considered to make a best value
determination.”).
Accordingly, neither the PET nor the TET failed to address risks associated with
Paradyme’s low price for Call Order 0001. The PET and TET clearly were comfortable
that a contract award to Paradyme would not result in poor performance or the
government’s paying an unreasonably high price. Indeed, given the above-quoted
excerpts from the procurement record, the Court is not sure what Ekagra is complaining
about. Although Ekagra argues otherwise, see Pl. Resp. at 11–12, the contracting officer
adequately considered and addressed the TET’s and PET’s respective consensus reports
in determining that Paradyme’s offer did not present any risks. See AR 2258 (“I have
17In addition to identifying [ * * * ] deliverables for which Paradyme underestimated the required
hours, the PET also identified [ * * * ] other deliverables for which it found Paradyme
overestimated the hours required by a total of [ * * * ] hours. AR 2245. As discussed infra, Census
considered all of these facts in determining that Paradyme’s quote was technically superior,
without performance risks, and would not result in the government’s paying a higher price.
29
reviewed the TET’s findings and ranking[] [and] the PET report, and agree with the
contents therein.”). 18
For example, the contracting officer concluded that “Paradyme was the only
Offeror that addressed and met every requirement identified in the solicitation, thus
demonstrating a full understanding of the requirements in their technical quote and had
no weaknesses or risks identified.” AR 2258 (emphasis added). The contracting officer
specifically found that “the PET provided [the] TET with the [BOE] submitted with the
Paradyme price quote and . . . [the] TET determined that Paradyme accounted for all
deliverables and requirements in their BOE.” AR 2264. Indeed, the contracting officer
concluded that Paradyme’s unique approach to Call Order 0001 “led to Paradyme’s
significantly reduced cost compared to the Offerors and the IGCE.” AR 2264. According
to the contracting officer, Paradyme’s “combination of strategies meets the Government’s
requirements, while providing a significant cost savings for Call Order 0001.” AR 2264.
The contracting officer further concurred with the PET that Paradyme’s price for Call
Order 0001 was “fair and reasonable” and “deemed beneficial to the Government, as the
proposed technical solution offered by Paradyme accounted for all deliverables and
requirements.” AR 2265.19 In sum, unlike the decision in CW Government Travel, Inc. v.
United States, 154 Fed. Cl. 721 (2021), upon which Ekagra relies, this simply is not a case
in which the administrative record “is bereft of any apparent evidence” demonstrating
that the government considered the impact of unbalanced pricing, Pl. MJAR at 32
(quoting CW Gov’t Travel, Inc., 154 Fed. Cl. at 746).
Finally, the Court agrees with Judge Meyers in IAP World Services, Inc. v. United
States, 152 Fed. Cl. 384, 409 (2021), that an offeror may demonstrate prejudice simply
“from [an agency’s] failure to perform an unbalanced pricing analysis.” Unless the risks
18During oral argument, Ekagra asserted for the first time that the contracting officer’s adoption
of the TET’s and PET’s findings was improper because they contain “factually incorrect
statements.” Tr. 35:23–24; see also Tr. 36:1–2 (arguing that TET and PET mistakenly found that
Paradyme will be “leveraging existing artifacts for similar work they’ve performed at USCB”).
Ekagra conceded, however, that it did not make this argument in its briefs (at least not with
respect to unbalanced pricing). Tr. 36:11–12. The Court accordingly concluded the argument is
waived. Tr. 36:13; see also, e.g., Takeda Pharms. U.S.A., Inc. v. Mylan Pharms. Inc., 967 F.3d 1339,
1348 n.5 (Fed. Cir. 2020) (new argument presented for the first time at oral argument is waived);
Sistek v. Dep’t of Veterans Affs., 955 F.3d 948, 957 (Fed. Cir. 2020) (concluding that legal theory
presented for the first time during oral argument and not “in [an] opening brief” is waived); Office
Depot, Inc. v. United States, 95 Fed. Cl. 517, 530–31 (2010) (“Because plaintiff’s argument was not
presented to the court until oral argument, the court considers this argument waived.”); Insight
Pub. Sector, Inc. v. United States, 157 Fed. Cl. 416, 427 n.8 (2021) (same).
19Although during oral argument Ekagra clarified that its argument is that Census failed to
consider the risk that Paradyme “didn’t propose sufficient labor to perform the work,” Tr. 25:21–
22, the contracting officer clearly considered that precise issue.
30
from unbalanced pricing appear obvious from the record, however, a plaintiff bears some
minimal burden of explaining what risks the government ignored such that, had they
been properly considered, the contracting officer’s best value determination may have
been altered. Sys. Stud. & Simulation, Inc., 22 F.4th at 998 (holding that “there is no starting
point of presumed prejudice,” but acknowledging that “[t]he Supreme Court has noted
that, at least in some contexts, prejudice will be easily shown because the circumstances
will make prejudice readily apparent” (citing Shinseki v. Sanders, 556 U.S. 396, 410
(2009))). 20
In this case, Ekagra made no effort to explain what risks Census ignored in its
analysis the Court summarized above. Assuming FAR 15.404-1(g) applies to this
procurement, that provision explains:
The greatest risks associated with unbalanced pricing occur
when — (i) Startup work, mobilization, first articles, or first
article testing are separate line items; (ii) Base quantities and
option quantities are separate line items; or (iii) The evaluated
price is the aggregate of estimated quantities to be ordered
under separate line items of an indefinite-delivery contract.
FAR 15.404-1(g)(1). Ekagra does not address why any of those risks exist here, nor does
Ekagra even suggest any other, presumably more minor risks Census should have
considered. Indeed, the Court cannot even guess what risks Ekagra has in mind, given
that Call Order 0001 is a firm fixed price contract. AR 1121 (RFQ § L.7.1.2).
In general, “to prevail on an allegation of unbalanced pricing, a protester must first
show that one or more line item prices are significantly overstated since the risk in a line
item price being overstated is that the Government will not receive the benefit of its
bargain because other line items (for example, option quantities) will not be purchased.”
AECOM Mgmt. Servs., Inc., B-417506.12, 2019 CPD ¶ 342, 2019 WL 5207000, at *19 (Comp.
Gen. Sept. 18, 2019) (concluding that “the protester has not explained — and it is not
20 Cf. IAP Worldwide Servs., Inc. v. United States, 159 Fed. Cl. 265, 318 (2022) (“[T]he [agency’s]
failure here to perform the correct analysis or to reach a reasonable conclusion — at least given
the administrative record as it currently stands — constitutes prejudicial error.”); IAP Worldwide
Servs., Inc. v. United States, 160 Fed. Cl. 57, 87–88 (2022) (discussing “APA prejudice rules,” and
explaining that “[i]n Mid Continent Nail Corp. v. United States, [846 F.3d 1364, 1384–85 (Fed. Cir.
2017),] the Federal Circuit held that an agency’s ‘failure to comply with the APA was not a mere
technical defect,’ reasoning that although ‘[t]here [wa]s considerable uncertainty as to the effect
of this failure,’ the mere fact that it ‘could well have affected the result’ of the agency’s challenged
determination was sufficient to constitute prejudice” (alterations in original)). In this case, as
explained below, Ekagra has not persuaded the Court that, even if this Court were to instruct
Census to conduct a new unbalanced pricing analysis, the result of the procurement has any
likelihood of changing.
31
apparent to us — how it may have been prejudiced by the agency’s alleged failure to
perform an unbalanced pricing analysis as between the fixed-price elements and cost-
reimbursable elements”). Put differently, “the principal risk associated with accepting
an unbalanced price proposal is that the government will not obtain the benefit of its
bargain because it will purchase some line items but not others.” Id.; see also The Green
Tech. Grp., LLC, B-417368, 2019 CPD ¶ 219, 2019 WL 2635435, at *4 (Comp. Gen. June 14,
2019) (denying protest where “the protester has not challenged the accuracy of the
solicitation’s quantity or hour estimates, or asserted that the contract price would have to
be adjusted for some other reason” and, thus, “on these facts, we see no reason to
conclude that [the awardee’s] CLIN pricing will result in [the government’s] facing
payment of a contract price above and beyond the fixed price quoted”). Moreover,
“[w]hile both understated and overstated prices are relevant to the question of whether
unbalanced pricing exists, the primary risk to be assessed in an unbalanced pricing
context is the risk posed by overstated prices.” AECOM Mgmt. Servs., Inc., 2019 WL
5207000, at *19.
The Court further agrees — in line with other decisions of this Court and the GAO
— that there is little risk from unbalanced pricing in firm fixed price contracts. See Munilla
Constr. Mgmt., LLC v. United States, 130 Fed. Cl. 635, 652 (2017) (“[I]n the context of a firm
fixed-price contract, the risk to the government of unbalanced prices does not hinge upon
whether specific line items are overpriced or underpriced within a single performance
period. Instead, the risk depends upon whether there is ‘front loading’: unbalanced
pricing between the initial years and subsequent option years.” (footnote omitted)). That
is because, “[w]ith a firm fixed-price contract like the present one, the price ‘is not subject
to any adjustment on the basis of the contractor’s cost experience,’ so that the contractor
bears ‘maximum risk and full responsibility for all costs and resulting profit or loss.’” Id.at 652 n.11 (quoting FAR 16.202-1). 21
Here, the Census evaluation teams did not register any concern regarding “front
loading” in Call Order 0001. Moreover, Census concluded that Paradyme’s quote did not
pose any pricing or technical performance risks. AR 2264–65 (Contracting Officer Best
Value Determination) (“Paradyme provided an adequate solution that . . . had a few
strengths, with no weaknesses or risks overall compared to the other three vendors . . . .
[B]ased on the evaluation of the quotes submitted . . . Paradyme would provide the
highest likelihood of success[.]”); see CrowderGulf, LLC, et al., B-418693, 2022 CPD ¶ 90,
21 See also First Enter. v. United States, 61 Fed. Cl. 109, 125 (2004) (“Because this protest involves a
fixed-price contract — not, for example, a cost reimbursement or indefinite delivery/indefinite
quantity contract — [the contractor] would be unable to alter the contract price after award and,
therefore, unable to recoup losses from the government.” (footnote omitted)); CrowderGulf, LLC,
et al., B-418693, 2022 CPD ¶ 90, 2022 WL 1135061, at *9 (Comp. Gen. Mar. 25, 2022) (“[L]ow prices
(even below-cost prices) are not improper and do not themselves establish (or create the risk
inherent in) unbalanced pricing.”).
32
2022 WL 1135061, at *12 (Comp. Gen. Mar. 25, 2022) (“[W]e see no basis to conclude that
the agency should have evaluated understated line-item prices for performance risk and
deny this ground of protest.”).
In addition, while Census expressly recognized that Paradyme’s Call Order 0002
price was higher than Ekagra’s quote for Call Order 0002, the contracting officer
rationally concluded that Paradyme’s quote represented the best value because “Ekagra’s
technical quote has significant weaknesses and high risks” and “was technically
unacceptable.” AR 2265. In contrast, “Paradyme’s technical quote had no weaknesses or
risks and would meet the Government’s requirements, thus justifying the increase in
cost” of approximately $1.267 million for Call Order 0002. AR 2265. Accordingly, the
contracting officer fully appreciated Paradyme’s higher cost for Call Order 0002 but
nevertheless preferred Paradyme. Relatedly, the contracting officer was not misled by
Paradyme’s much lower (fixed) price for Call Order 0001; even within Call Order 0001,
the contracting officer reasonably concluded that Paradyme adequately explained its
technical approach to achieve its lower price. AR 2264 (summarizing Paradyme’s
approach and finding that “[t]his approach led to Paradyme’s significantly reduced cost
. . . . [and] meets the Government’s requirements, while providing a significant cost
savings for Call Order 0001.”).
In sum, Ekagra’s unbalanced pricing argument fails even if FAR 15.404-1(g)
applies because Census considered and addressed Paradyme’s pricing and neither
Ekagra nor the administrative record itself22 suggests any risks that the contracting officer
failed to consider and that might have impacted the contract award decision.
D. Ekagra Fails to Demonstrate Prejudice on the Merits for Count One and
Count Two, Even Assuming Ekagra Had Standing to Pursue those Counts
Even if Ekagra had alleged sufficient facts in its complaint to establish standing for
Counts One and Two — and even assuming Ekagra could prove the government erred
as generally alleged in those counts — they nevertheless flounder on the rocky shoals of
prejudice. Indeed, Ekagra does not prove that USCB’s putative errors prejudiced Ekagra.
Take Count One. Ekagra argues in its MJAR that, had Census correctly evaluated
past performance, Ekagra would have received an additional strength. Pl. MJAR at 20.
22 Judge Meyers’ decision regarding unbalanced pricing in IAP World Services is distinguishable
because, there, “the Government’s argument ignore[d] that the [agency] itself understood” that
at least part of the contract did “not operate as a firm fixed-price contract” and “[t]hus, within
each period of performance, there could certainly be a risk associated with unbalanced pricing —
i.e., some tasks being overpriced while others are underpriced.” 152 Fed. Cl. at 407 (emphasis
added). In this case, no such risks are apparent from the record before the Court involving the
firm fixed price call order at issue.
33
Ekagra makes literally zero effort to show how the additional strength might translate to
a different best value decision. Count Two — challenging a single weakness assigned to
Ekagra’s technical proposal — is similarly defective. See Pl. MJAR at 20–21. Even if the
Court assumes Census erred in assigning Ekagra a weakness for its personnel retention
strategy, Ekagra does not demonstrate why receiving “one less weakness,” id., would at
all undermine the validity of the best value decision Ekagra challenges.
There is no evidence that additional strengths or the removal of a weakness could
somehow counterbalance the finding that Ekagra’s quote was technically unacceptable
and, indeed, Ekagra makes no effort to argue otherwise. Although the Court need not
say more to dispose of Counts One and Count Two, the Court nevertheless notes that the
administrative record conclusively shows that even a slew of strengths cannot overcome
significant weaknesses. In that regard, Census rejected [ * * * ]’s and [ * * * ]’s respective
quotes — both of which had more strengths than either Paradyme or Ekagra — as
technically unacceptable. AR 2231–39. Thus, total strength count was not dispositive of
whether Census found an offer technically acceptable. Ekagra’s technical unacceptability
resulted from its significant weaknesses rather than a dearth of strengths. 23
****
In sum, the pathway to victory for Ekagra here was limited. Ekagra had to
demonstrate either (1) that Census erred in finding Ekagra’s quote technically
unacceptable; or (2) that Paradyme’s quote should have been disqualified. Having done
neither, Ekagra’s challenge to this procurement fails.
V. CONCLUSION
For the above reasons, the Court DENIES Plaintiff’s motion for judgment on the
administrative record and GRANTS Defendant’s and Defendant-Intervenor’s respective
motions for judgment on the administrative record. Accordingly, the Clerk of the Court
is directed to enter JUDGMENT for Defendant and Defendant-Intervenor, terminating
this case.
IT IS SO ORDERED.
s/ Matthew H. Solomson
Matthew H. Solomson
Judge
23See Def.-Int. Rep. at 12 (“The [USCB’s] determination that Ekagra was technically unacceptable
was premised entirely on the three Significant Weaknesses in its technical proposal. Ekagra has
not even challenged one of its three Significant Weaknesses[.]” (administrative record citations
omitted)); Tr. 9:3–4 (Ekagra conceding that it “was technically unacceptable because of the
weaknesses”).
34