Hydraulics International, Inc. v. United States

In the United States Court of Federal Claims
No. 22-364
(Filed: 8 August 2022 *)
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HYDRAULICS INTERNATIONAL, INC., *
*
Plaintiff, *
* Post-Award Bid Protest; Motion for
v. * Judgment on the Administrative Record;
* Best-Value Determination; Bid Protest
THE UNITED STATES, * Jurisdiction; Venue Transfer;
* Other Transaction Agreements; Motion to
Defendant. * Supplement; Motion to Dismiss.
*
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Howard W. Roth, Oles, Morrison, Rinker & Baker, LLP, with whom were Nicole E.
Wolfe, and Jedidiah K. Blake, all of Seattle, WA, for plaintiff.
Galina I. Fomenkova, Trial Attorney, Commercial Litigation Branch, Civil Division,
Department of Justice, with whom were Brian M. Boynton, Principal Deputy Assistant Attorney
General, Patricia M. McCarthy, Director, and Douglas K. Mickle, Assistant Director, all of
Washington, DC, Seth B. Ritzman, Bruce L. Mayeaux, and Michael McDermott, Contract
Litigation & Intellectual Property Division, Army Legal Services Agency, for defendant.
OPINION AND ORDER
HOLTE, Judge.
Plaintiff Hydraulics International, Inc. brings this post-award bid protest of an “Other
Transaction Agreement” for Aviation Ground Power Unit prototypes used to service military
helicopters. Plaintiff contends the government misevaluated its whitepaper submission and, in
awarding the prototype project to Sun Test System Inc. and John Bean Technologies, waived or
relaxed a key solicitation requirement. To support its waiver theory, plaintiff moves to
supplement the administrative record with a declaration from the president of Hydraulics
International, Inc. The government cross-motions to dismiss plaintiff’s complaint for lack of
subject matter jurisdiction pursuant to Rule 12(b)(1) of the Rules of the Court of Federal Claims,
or in the alternative, for judgment on the administrative record. Plaintiff further moves to
transfer venue if the Court finds it lacks jurisdiction. For the following reasons, the Court: (1)
*
This opinion was originally filed under seal on 29 July 2022 pursuant to the protective order in this case. The
Court provided the parties an opportunity to review this opinion for any proprietary, confidential, or other protected
information and submit proposed redactions by 5 August 2022. Plaintiff proposed redactions on 5 August 2022.
The Court accepts plaintiff’s proposed redactions and reissues the order, with redacted language replaced as follows:
“[XXXXX].”
denies the government’s motion to dismiss; (2) denies as moot plaintiff’s motion to transfer
venue; (3) denies plaintiff’s motion to supplement the administrative record; (4) denies plaintiff’s
motion for judgment on the administrative record; (5) and grants the government’s motion for
judgment on the administrative record.
I. Factual Background
A. Aviation Ground Power Unit 1.1 Upgrade
This protest involves an upgrade to military helicopter Aviation Ground Power Units
(“AGPU”), used for servicing Army helicopters when not in flight. Admin. R. (“AR”) at 668
(Selection Memorandum), ECF No. 23. The AGPU provides an alternate source for the energy
outputs of the helicopter’s engine so maintenance can be performed without operating the
aircraft’s engine. To this end, the AGPU provides electrical, pneumatic, and hydraulic outputs.
Id. The current unit, AGPU 1.0, does not support the Army’s entire fleet of helicopters. Id.
This prompted the army to seek an upgraded unit, AGPU 1.1, to service all models in the Army
fleet. Id.
To ensure the AGPU 1.1 can meet the operational requirements if ultimately deployed,
the Army provided a detailed specification in a Product Item Description (“PID”). AR at 207–
22. Two requirements are relevant to this protest: (1) the AGPU must meet the minimum
performance threshold for electrical, pneumatic, and hydraulic outputs while all three systems
are operating simultaneously, AR at 207–13 (PID); and (2) the AGPU must be modular, such
that one malfunctioning component can easily be replaced by another, and a malfunction in one
output system does not affect the function of other components, AR at 213, 215 (PID).
B. The Other Transaction Agreement and Request for Enhanced Whitepapers
To accomplish the AGPU upgrade, the government selected an Other Transaction
Agreement (“OTA”) as the purchasing vehicle. OTAs are transactions “other than contracts,
cooperative agreements, and grants” that are generally used for advanced research projects.
10 U.S.C. §§ 4021–22 (originally codified on 29 November 1989 as 10 U.S.C. § 2371). The
Army determined “[t]he use of an OTA . . . is essential to promoting the success of the AGPU
1.1 project, because it allows for the use of a streamlined selection process, and permits the
negotiation of program-specific terms and conditions.” AR at 680 (Determination & Findings).
The Army’s objective in using an OTA was to avoid obstacles related to the regulation of
procurements and reduce cost and risk for the overall project. Id. The Army first awarded an
OTA to the Aviation and Missile Technology Consortium (“AMTC”), which engages industry
and academia in OTA prototype projects. AR at 5832, 5836 (AMTC OTA). AMTC is managed
by Advanced Technology International (“ATI”), and through the OTA, ATI manages several
prototype projects. Id. To conduct the projects and satisfy the Army’s technological needs, ATI
issues “Requests for Enhanced Whitepapers” to members of the AMTC and enters further OTAs
with selected contractors. See AR at 5829–61 (AMTC OTA).
On 11 January 2021, the ATI issued AMTC-21-01 Request for Enhanced Whitepapers
(“RWP”), inviting whitepaper submissions for various projects in an accompanying Objective
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Requirements Document (“ORD”). AR at 3 (RWP). The AGPU 1.1 upgrade prototype project
was in this ORD. AR at 87–89 (ORD). The project scope was for a “base effort” of one
prototype AGPU 1.1, with an option for a second phase of ten prototypes. Id. at 87–88. The
RWP contemplated awarding up to two contractors the base effort award in the third quarter of
2021. AR at 88 (ORD). The Army would then complete an initial phase of risk reduction testing
in the first quarter of 2022. Id. Upon completion of risk reduction testing, the Army would
decide whether to pursue a down-select option to one of the first phase vendors for the second
phase in the second quarter of 2022. Id. The RWP provided, pursuant to the Army’s OTA
authority under § 2371b(f) (now § 4022(f)), “[u]pon a determination that this competitively
awarded prototype project has been successfully completed, this project may result in the award
of a follow-on production contract for over 150 AGPUs without the use of competitive
procedures.” AR at 87 (ORD).
The RWP gave specific instructions on how bidders were to submit whitepapers and how
they would be evaluated. Bidders were to submit whitepapers through an online interface known
as BIDS. AR at 8–9 (RWP). Upon submission of the whitepaper to the BIDs system, the
submitting agent was then prompted to input basic information about their proposal such as price
and schedule data. Id.; Oral Arg. Tr. (“Tr.”) at 81:11–16, ECF No. 37 (when asked what inputs
are required when submitting a whitepaper via BIDS, government counsel stated: “there’s also
questions that you answer in the system itself when you submit, and those are reflected . . . in
this cover page. [T]wo of those questions are the cost price estimate and the period of
performance . . . .”). The provided inputs remained in the system for preparation of future
evaluation documents such as the selection memorandum. See Gov’t MJAR at 29, ECF No. 28.
For instance, the selection memorandum will automatically populate a table with the information
inputted into BIDS. Id. The RWP provided whitepapers would be assessed based on an
“integrated assessment” of numerous factors. AR at 11–12.
The Army evaluates whitepaper submissions and gives them one of three rankings:
excellent, acceptable, or unacceptable. AR at 12 (RWP). Excellent whitepapers “demonstrate[]
a thorough approach that is expected to exceed project requirements and objectives. The
technical benefits outweigh the project risk (technical and schedule) for a development effort at
this stage.” Id. Acceptable whitepapers “demonstrate[] an adequate approach that is expected to
meet project requirements and objectives. The project risk (technical and schedule) is considered
acceptable for a development effort at this stage.” Id. Unacceptable whitepapers “do[] not
demonstrate an approach that is expected to meet project requirements and objectives. The path
does not appear feasible, or does not provide the Government with a desired new or enhanced
capability. The project risk (technical and schedule) is considered too high for a development
effort at this stage.” Id.
C. The Whitepaper Evaluations and Base Effort Award
Five bidders submitted whitepapers in response to the RWP. AR at 291–526
(Whitepaper Submissions). The three relevant here are: (1) Sun Test System Inc.; (2) John Bean
Technologies (“JBT”); and (3) plaintiff Hydraulics International, Inc. Pl.’s Mot. J. on AR (“Pl.’s
MJAR”) at 7, ECF No. 26-1. The Army initially reviewed the whitepapers and assigned each a
rating of either excellent, acceptable, or unacceptable. See AR at 527–56 (Technical
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Evaluations). The Army then compiled the initial evaluation feedback into consensus
evaluations which assigned whitepapers a final rating of either excellent, acceptable, or
unacceptable. See AR at 557–94 (Consensus Evaluations). Whitepapers rated as either excellent
or acceptable were considered for award of the base effort. AR at 87–89 (ORD). The Army then
selected two contractors for award of the base effort using a best-value determination. Id. A
selection memorandum detailed the best-value decision rationale and awarded the base effort
contracts. AR at 667–76 (Selection Memorandum).
The Army rated Sun Test’s whitepaper as “Excellent,” the highest possible rating. AR at
585 (Competitive Evaluation). Sun Test’s solution met or exceeded the government’s
expectations for energy outputs. AR at 584. Only minor changes were required from Sun Test’s
commercially available unit to raise it to 100% compliance with the PID, and Sun Test had a
clear and logical plan for implementing those changes. Id. Despite having the highest estimated
cost of any proposal, the Army considered this solution the best value because it was the most
“complete solution.” AR at 670 (Selection Memorandum). Sun Test’s proposal met the
schedule contemplated by the Army and would cost an estimated $10,167,548. Id.
The Army rated JBT’s whitepaper as “Acceptable.” AR at 582 (Competitive Evaluation).
Like Sun Test’s proposal, JBT’s met or exceeded all the government’s requirements for energy
outputs. AR at 581. JBT proposed modifying their commercially available unit to meet any
requirements of the PID unmet by their current product. Id. at 580. Unlike Sun Test, JBT’s
whitepaper did not make clear what changes would be required to meet full compliance. AR at
581. Despite this risk, the Army considered JBT’s solution “the next best technical approach and
overall solution.” AR at 671 (Selection Memorandum). JBT’s proposal met the schedule
proposed by the Army and would cost an estimated $6,204,374, although the Army noted it was
unclear whether this includes all testing costs. Id.
The Army rated plaintiff’s whitepaper as “Acceptable.” AR at 588 (Competitive
Evaluation). Unlike Sun Test and JBT, plaintiff’s existing commercial product did not meet the
PID’s requirement that minimum electrical, pneumatic, and hydraulic outputs be provided
simultaneously. AR at 586. Plaintiff’s whitepaper proposed two alternatives to address this
shortcoming: (1) the Army relaxes the simultaneous operation requirement; or (2) plaintiff
redesigns its unit. Id. The Army rejected plaintiff’s request to relax the simultaneous operation
requirement. Id. at 587.
The Army then evaluated plaintiff’s proposal to redesign their unit to meet the
simultaneous operation requirement. AR at 587 (Competitive Evaluation). Plaintiff’s
whitepaper warned “there will be an increased risk both technically and cost wise” if it redesigns
its unit to meet the simultaneous power requirement. AR at 434 (Plaintiff’s Whitepaper). The
Army determined plaintiff could mitigate the technical risks associated with redesigning the
prototype, but not the schedule risk. AR at 587 (Competitive Evaluation). Plaintiff’s proposed
timeline for the redesign would require twelve months before delivery of a compliant prototype
and exceeds the timeline required by the ORD. AR at 436 (Plaintiff’s Whitepaper); AR at 88
(ORD).
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Sun Test, JBT, and plaintiff all presented acceptable or better whitepapers and were
considered for award of the base effort contract. AR at 669 (Selection Memorandum). The
Army, however, did not to select plaintiff because it considered plaintiff’s schedule risk and
redesign risk undesirable. AR at 672. Instead, the Army awarded the base effort to Sun Test and
JBT, as they presented the best value. AR at 669–71, 675. Plaintiff’s whitepaper remains in the
“basket” for potential related projects since it was rated “Acceptable.” AR at 669.
II. Procedural History
On 31 March 2022, plaintiff filed its complaint, ECF No. 1, a motion for preliminary
injunction, ECF No. 4, and several exhibits, including the declaration of Bahman Seifollahi, ECF
No. 1-11. See also Am. Compl., ECF No. 24. The Army agreed to voluntarily stay execution of
the option to proceed with Sun Test to phase two, ECF No. 13, which the parties agreed rendered
plaintiff’s motion for a preliminary injunction moot. The Court accordingly denied the motion
as moot, ECF No. 19. Plaintiff filed its MJAR on 29 April 2022, ECF No. 26. On 13 May 2022,
the government filed a cross-MJAR and motion to dismiss for lack of subject matter jurisdiction,
ECF No. 28. Plaintiff responded to the government’s MJAR on 20 May 2022, and further
moved the Court to supplement the AR with the Seifollahi declaration, or alternatively transfer
venue if the Court lacks jurisdiction (“Pl.’s Reply”), ECF No. 30. On 27 May 2022, the
government replied in support of its motions and in opposition to plaintiff’s motions (“Gov’t
Reply”), ECF No. 31. Plaintiff did not file replies in support of its motions to supplement the
AR or transfer venue. See Tr. at 67:4–17, 69:2–8 (plaintiff’s counsel explaining no reply briefs
are necessary). On 8 July 2022, the Court held oral argument, ECF No. 32.
III. The Government’s Motion to Dismiss for Lack of Subject Matter Jurisdiction
A. Parties’ Arguments
The government moves to dismiss plaintiff’s complaint for lack of subject matter
jurisdiction because it is not “in connection with a procurement or a proposed procurement,” as
required under 28 U.S.C. § 1491(b)(1). Gov’t MJAR at 15–19. The government contends the
Army acquired AGPU prototypes through use of OTAs, and OTAs are undisputedly not a
“procurement.” Id. at 16–17. Further, the government argues the OTAs are not in connection
with a proposed procurement because any “follow-on production” from the OTAs is conditional
and may never occur, and even if it were to occur, may still not be a “procurement.” Id. at 17–
18. According to the government, Congress provided OTA contracting authority to the
Department of Defense (“DoD”) “specifically [to] exempt[] these prototype projects” from
“review by this Court.” Gov’t Reply at 8. To find otherwise would “not just defy reason, it
obliterates it.” Id.Plaintiff argues the Court has jurisdiction to hear this case under the Tucker Act because
it is “in connection with a procurement.” Pl’s Reply at 10. Plaintiff contends the possibility of a
follow-on production contract for 150 AGPUs without competition places these OTAs “in
connection with a procurement.” Id. at 15–16. Plaintiff otherwise agrees OTAs themselves are
not procurement contracts. Id. at 12. In the event the Court finds it lacks jurisdiction, plaintiff
requests the Court transfer the case to federal district court. Id. at 16, 28.
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B. Standard of Review
“In deciding a motion to dismiss for lack of subject matter jurisdiction, the court accepts
as true all uncontroverted factual allegations in the complaint, and construes them in the light
most favorable to the plaintiff.” Stephens v. United States, 884 F.3d 1151, 1155 (Fed. Cir. 2018)
(quoting Estes Exp. Lines v. United States, 739 F.3d 689, 692 (Fed. Cir. 2014)). “The United
States, as sovereign, is immune from suit save as it consents to be sued, . . . and the terms of its
consent to be sued in any court define that court’s jurisdiction to entertain the suit.” United
States v. Sherwood, 312 U.S. 584, 586 (1941). The Court of Federal Claims has jurisdiction to
the extent that Congress has consented, and no further. Id. at 587–88. “The party seeking to
invoke the [Court of Federal Claims’] jurisdiction must establish that jurisdiction exists by a
preponderance of the evidence.” Hymas v. United States, 810 F.3d 1312, 1317 (Fed. Cir. 2016).
The Tucker Act grants the Court of Federal Claims “jurisdiction to render judgment on an
action by an interested party objecting to a solicitation by a Federal agency for bids or proposals
for a proposed contract or to a proposed award or the award of a contract or any alleged violation
of statute or regulation in connection with a procurement or a proposed procurement.” 28 U.S.C.
§ 1491(b)(1). “[T]he Federal Circuit has held that ‘[t]he operative phrase “in connection with” is
very sweeping in scope.’” Space Expl. Techs. Corp. v. United States, 144 Fed. Cl. 433, 439–40
(2019) (quoting RAMCOR Servs. Grp., Inc. v. United States, 185 F.3d 1286, 1289 (Fed. Cir.
1999)). Though the Court’s bid protest jurisdiction is broad, it nevertheless “is exclusively
concerned with procurement solicitations and contracts.” Res. Conservation Grp., LLC v. United
States, 597 F.3d 1238, 1245 (Fed. Cir. 2010).
C. The History of the Department of Defense’s Other Transaction Authority
In October 1957, the Soviet Union successfully launched Sputnik I, the first man-made
object sent into space. Heidi M. Peters, Cong. Rsch. Serv., R45521, Department of Defense Use
of Other Transaction Authority: Background, Analysis, and Issues for Congress 1 (2019).
Triggering the Space Race, Congress swiftly responded with the Space Act of 1958 and the
creation of a new agency, the National Aeronautics and Space Administration (“NASA”). Id.To allow NASA to move quickly and avoid the bureaucratic torpor of federal acquisition
processes, the agency was given broad authority to “enter into and perform such contracts,
leases, cooperative agreements, or other transactions as may be necessary” to carry out its
mission. National Aeronautics and Space Act of 1958, Pub. L. No. 85-568, § 203(5), 72 Stat.
426, 430 (1958) (emphasis added). One interesting relation to the current Court of Federal
Claims, during the first three years of NASA’s existence, NASA was temporarily headquartered
at the Tayloe House on Lafayette Square in Washington, DC. East Side Historic Properties,
U.S. Gen. Serv. Admin. (Feb. 8, 2018), https://www.gsa.gov/real-estate/historic-
preservation/explore-historic-buildings/heritage-tourism/our-capital/lafayette-square/east-side-
historic-properties. The Tayloe House and adjacent Dolley Madison House were later joined and
integrated into the National Courts Building, the current home of the Court of Federal Claims.
Id.-6-
Based on the success of the NASA model, Congress extended the ability to enter into
such “other transactions” to several other agencies. Peters, supra, at 2. The DoD enjoys such
authority which is statutorily governed by 10 U.S.C. §§ 4021–22. By reference to section 4021,
section 4022(a)(1) allows the DoD to enter into OTAs to “carry out prototype projects that are
directly relevant to enhancing the mission effectiveness of military personnel and the supporting
platforms, systems, components, or materials proposed to be acquired or developed by the
Department of Defense, or to improvement of platforms, systems, components, or materials in
use by the armed forces.” When pursuing such prototype projects, the statute mandates “[t]o the
maximum extent practicable, competitive procedures shall be used when entering into [OTAs] to
carry out the prototype projects . . . .” 10 U.S.C. § 4022(b)(2). If the initial prototype phase uses
competitive procedures, a “follow-on production contract or transaction” may be awarded
“without the use of competitive procedures.” 10 U.S.C. § 4022(f)(2). Both sections 4021 and
4022 are silent on the Tucker Act, bid protests, judicial review, and the Court of Federal Claims.
D. Whether the AGPU 1.1 OTAs are in Connection with a Procurement or a
Proposed Procurement
For the Court to have jurisdiction over the OTAs at issue in this bid protest, the OTAs
must be “in connection with a procurement or a proposed procurement.” § 1491(b)(1); see
Kinemetrics, Inc. v. United States, 155 Fed. Cl. 777 (2021), and MD Helicopters Inc. v. United
States, 435 F. Supp. 3d 1003 (D. Ariz. 2020) (each holding the Court of Federal Claims has
jurisdiction when a disputed OTA is in connection with a procurement or proposed
procurement); Tr. at 34:9–21 (government counsel agreeing with the holding of Kinemetrics and
that this Court has jurisdiction over OTAs in connection with a procurement). As an initial
matter, it is undisputed OTAs themselves are not procurements. Pl.’s Reply at 12; Gov’t Reply
at 1. This court has held OTAs are not procurements. See Space Expl. Techs. Corp. v. United
States, 144 Fed. Cl. 433, 435 (2019) (“SpaceX”) (“OT[A]s are agreements that are not
procurement contracts.”); see also Kinemetrics, Inc., 155 Fed. Cl. 777. Thus, the Court focuses
its analysis on these OTAs’ connectivity to “a procurement or a proposed procurement.”
§ 1491(b)(1).
The Tucker Act does not define “procurement” or “proposed procurement.” § 1491. The
Federal Circuit relies on the definition of “procurement” from 41 U.S.C. § 111 (formerly
41 U.S.C. § 403(2)) when delineating the bounds of the Court’s bid protest jurisdiction. See,
e.g., Distributed Sols., Inc. v. United States, 539 F.3d 1340 (Fed. Cir. 2008); Res. Conservation
Group, LLC, 597 F.3d 1238; AgustaWestland N. Am., Inc. v. United States, 880 F.3d 1326 (Fed.
Cir. 2018). The statue states: “[t]he term ‘procurement’ includes all stages of the process of
acquiring property or services, beginning with the process for determining a need for property or
services and ending with contract completion and closeout.” 41 U.S.C. § 111. Read together,
the Federal Circuit has found that “a narrow application of section 1491(b)(1) does not comport
with the [Tucker Act’s] broad grant of jurisdiction over objections to the procurement process.”
Sys. Application & Techs., Inc. v. United States, 691 F.3d 1374, 1381 (Fed. Cir. 2012)
(discussing § 1491(b)(1) and § 403(2) (currently § 111); citing Res. Conservation Group, LLC,
597 F.3d at 1244–45, and Distributed Sols., Inc., 539 F.3d at 1345). By explicitly granting
jurisdiction over “proposed procurements,” “the statute does not require an actual procurement”
occur and “contemplates the ability to protest . . . pre-procurement decisions.” Distributed Sols.,
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Inc., 539 F.3d at 1346. Therefore, if the AGPU OTAs are part of the Army’s “process for
determining a need for acquisition,” then they are in connection with a proposed procurement
and this Court has jurisdiction over plaintiff’s complaint. AgustaWestland, 880 F.3d at 1330
(citation omitted).
The government stresses although the RWP contemplates a follow-on production contract
or transaction for 150 AGPUs, it does not guarantee it, and the Army reserves the right to pursue
AGPU acquisition through non-procurement means. Gov’t MJAR at 18 (“[F]ollow-on
production of any kind is explicitly not mandatory, ‘any prototype project . . . may result in the
award of a follow-on production,’ and is conditional . . . .” (quoting AR at 13 (RWP))). Since
the program only “may” result in a production contract, no procurement contract currently exists,
and one may never exist. Id. at 17–18. According to the government, this forecloses the
possibility the OTAs in question could be “‘in connection with a procurement or proposed
procurement’ as required for this Court’s jurisdiction.” Id.
In Distributed Solutions, the Federal Circuit faced a similar issue and held § 1491(b)
“does not require an actual procurement.” Distributed Sols., Inc., 539 F.3d at 1346. In that case,
an agency issued a Request for Information (“RFI”) related to software products for integration
into a government system. Id. at 1342. “[T]he RFI specified [the requested information] would
be ‘for market research purposes only’ and would ‘not result in a contract award.’” Id.According to the RFI, the government would “review the results of the vendor self-assessments
and the presentations to determine the next course of action.” Id. The agency received RFI
responses but “decided to pursue alternative courses of action.” Id. Instead, the agency tasked
one of its prime contractors, who was already under contract, with “select[ing] and award[ing]
subcontracts to vendors providing the necessary software.” Id. at 1342–43. The prime
contractor then issued an RFI of its own. Distributed Sols., Inc., 539 F.3d at 1343. Two bidders
who submitted responses to both the agency’s and prime contractor’s RFIs, but were not selected
for award by the prime contractor, protested. Id. The Court of Federal Claims found jurisdiction
lacking “because [the prime contractor] was not a purchasing agent for the government, the
subcontracts awarded were not on behalf of a federal agency[,] and therefore were not subject to
a bid protest.” Id. This court found no federal agency procurement occurred, and the agency
RFI alone did not give rise to § 1491(b) jurisdiction, so the court dismissed for lack of
jurisdiction. Distributed Sols., Inc. v. United States, 76 Fed. Cl. 524, 527–28 (2007), rev’d, 539
F.3d 1340 (Fed. Cir. 2008).
The Federal Circuit reversed, finding “the phrase, ‘in connection with a procurement or
proposed procurement,’ by definition involves a connection with any stage of the federal
contracting acquisition process, including ‘the process for determining a need for property or
services.’” Distributed Sols., Inc., 539 F.3d at 1346. The Circuit noted the agency used its RFI
to “determine the parameters of the eventual procurement of the software at issue,” and the RFI
responses influenced the agency’s decision to not competitively procure the software. Id. It was
immaterial no actual agency procurement occurred because “the statute does not require an
actual procurement” and “explicitly contemplates the ability to protest these kinds of pre-
procurement decisions by vesting jurisdiction in the Court of Federal Claims over ‘proposed
procurements.’” Id.-8-
The RWP in this case serves a similar purpose to the RFI in Distributed Solutions. The
current AGPU 1.0 no longer supports the Army’s helicopter fleet, so the Army issued this RWP
for AGPU 1.1 to “be a bridge between the legacy AGPU 1.0 and AGPU 2.0 that will support
Future Vertical Lift [] platforms.” Gov’t MJAR at 3 (citing AR at 207 (PID), 87 (ORD), 668
(Selection Memorandum)). The ORD indicates “[t]he effort will evaluate the Technical
Feasibility[,] Manufacturing Feasibility[,] and Military Utility” of the upgraded AGPU prototype
unit. AR at 195. The PID states: “The AGPU 1.1 shall provide Army Aviation maintenance
with an enabler to ensure fully mission-capable aircraft are provided to commanders through
reliability, maintainability, and availability, thereby increasing readiness rates.” AR at 207. The
ORD continues: “It is anticipated that the completion of the base effort will feed decision points
whereby the Government will assess the results of RRT, supporting documentation,
manufacturability needs, and costs to determine whether or not to continue with the effort and
exercise the Option.” AR at 197. If the base effort is successful, the Army will down-select one
vendor from the base effort and acquire up to ten more units to conduct: “Performance
Verification Testing,” an “Operational Test and Evaluation,” a “Logistics Demonstration,
Customer and Transportation testing, Technical Manual Verification, [and] Provisioning
Verification.” AR at 87–88 (ORD). The ORD lastly states: “Upon a determination that this
competitively awarded prototype project has been successfully completed, this project may result
in the award of a follow-on production contract for over 150 AGPUs without the use of
competitive procedures.” AR at 87. Per the RWP, the Army is using the whitepaper
submissions and OTA prototypes to decide whether to proceed with purchasing upgraded
AGPUs, like the RFI in Distributed Solutions. Id.; Distributed Sols., Inc., 539 F.3d at 1346. The
Army is also using the whitepapers and prototypes to “determine the parameters of the eventual
procurement” or acquisition of new AGPUs, if the OTAs are successful. Distributed Sols., Inc.,
539 F.3d at 1346; AR at 87–88 (ORD). Indeed, every aspect of the RWP in this case is
specifically tailored towards “determining” the Army’s “need for property”—upgraded AGPUs.
Distributed Sols., Inc., 539 F.3d at 1346; see also Int’l Genomics Consortium v. United States,
104 Fed. Cl. 669, 678 (2012) (following Distributed Sols. and holding an “RFI or other formal
contracting action signif[ies] the beginning of a procurement process”).
The government does not disagree the OTAs are for determining the Army’s need for
upgraded AGPUs. At oral argument, the government confirmed the central OTA goal is to
replace the legacy AGPUs. Tr. at 16:15–19 (government counsel stating, “the eventual goal . . .
if these prototypes work, if they meet the Army’s needs, that eventually we’ll be able to replace
in the field a better product that better suits our needs.”). The government also conceded “[a]n
OTA can lead to a prototype that the agency might eventually want to do a separate procurement
for . . . .” Tr. at 16:1–3. The government further stated, “it’s an open question as to whether a
[follow-on] production contract [under § 4022(f)] means procurement contract.” Tr. at 27:6–8.
Nevertheless, the government agreed “the Army [is] contemplating its future need to acquire
AGPUs” by virtue of including the possibility “of a follow-on production contract for over 150
[AGPUs] without the use of competitive procedures.” Tr. at 28:4–20 (quoting AR at 87 (ORD)).
The government could not identify a substantive difference between an RFI, like that in
Distributed Solutions, and the RWP present in this case. Tr. at 15:10–18; see also Tr. at 58:15–
25, 60:22–25 (government counsel stating the Court’s jurisdiction “covers the procurement
process of buying stuff,” and “the end result [of an OTA] is [the government] buying stuff,” but
an OTA and “a procurement [are different] subset[s] of buying stuff”).
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Despite these concessions, the government adamantly contends the Army could fulfill all
its AGPU needs with OTAs, and “that would be not subject to the Court of Federal Claims
jurisdiction.” Tr. at 31:21–25. The government believes it is “conceivable” no court could ever
review an agency’s OTA. Tr. at 43:4–11. According to the government, the combination of
§§ 4021 and 4022, along with its interpretation of § 1491(b)(1) of the Tucker Act, impliedly
demonstrates “Congress’ intent . . . to strip this Court of jurisdiction.” Tr. at 49:2–24.
The government’s arguments do not pass muster. First, the government agrees §§ 4021
and 4022 are silent on jurisdiction; the government’s position is based upon its own reading
between the lines, not an express provision of law or statement from Congress. Tr. at 49:16–
50:23. That is not to say OTAs do not receive some special treatment—OTAs are “generally not
subject to the Federal laws and regulations limited in applicability to contracts, grants or
cooperative agreements,” and OTAs are “not required to comply with the Federal Acquisition
Regulation (FAR) and its supplements.” 32 C.F.R. § 3.2 (2003). Though some agency
acquisitions receive special treatment under federal procurement laws, that does not inherently
remove those acquisitions from the Tucker Act’s purview. See, e.g., Emery Worldwide Airlines,
Inc. v. United States, 264 F.3d 1071, 1079 n.7, 1084 (Fed. Cir. 2001) (concluding section
1491(b)(1) provides jurisdiction over USPS procurements, notwithstanding its exemption “from
all federal procurement laws not specifically enumerated in 39 U.S.C. § 410(a)”). OTAs’
exemption from the FAR does not necessitate exemption from the Tucker Act. Second, two
recent decisions, one from this court and one from the District of Arizona, do not align with the
government’s interpretation of these statutes. In Kinemetrics, Inc. v. United States, this court
held it had bid protest jurisdiction over an OTA, so long as the OTA “had a direct effect on the
award of a [procurement] contract.” 155 Fed. Cl. 777, 785 (2021). This court found the OTA
was not “‘separate and distinct’ from the decision to procure . . . because, unlike [SpaceX],
rejection in the [OTA] evaluation phase did disqualify [a bidder] from consideration for the
follow-on production contract contemplated by the [OTA].” Id. In MD Helicopters Inc. v.
United States, the district court dismissed an APA claim against the Army for an OTA prototype
project because the OTA “took place within the ‘process of determining a need for acquisition’
of advanced helicopters.” 435 F. Supp. 3d 1003, 1013 (D. Ariz. 2020). Distinguishing the case
from SpaceX, the district court found the OTA included a down-select process that would
eliminate vendors at the various stages, possibly resulting in the award of “a ‘follow-on
production contract or transaction without the use of competitive procedures’ under 10 U.S.C. §
[4022](f) to [p]erformers who successfully complete the prototype project.” Id. (original
emphasis). Both this court and the District of Arizona have held where an OTA can result in the
exclusion of a bidder for consideration of “a follow-on production contract,” the OTA is “in
connection with a procurement or a proposed procurement.” § 1491(b)(1); Kinemetrics, Inc.,
155 Fed. Cl. at 785; MD Helicopters Inc., 435 F. Supp. 3d at 1013.
The government principally relies on three cases in its motion to dismiss, but each is
distinguishable. Gov’t MJAR at 15–16. In Space Exploration Technologies Corp. v. United
States, this court found OTAs “are not procurement contracts,” and the particular OTA in
question was not in connection with a procurement. 144 Fed. Cl. 433, 442 (2019). The SpaceX
court, unlike this case, relied on the particular OTA competition there: (1) was not for goods or
services, and (2) the phase two procurement was predetermined to be a separate FAR-based
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competition, fully open to those excluded from the OTA competition. Id. at 443–45. In
Resource Conservation Group, LLC v. United States, the Federal Circuit stated: “[section]
1491(b)(1) in its entirety is exclusively concerned with procurement solicitations and contracts.”
597 F.3d 1238, 1245 (Fed. Cir. 2010). That case involved the government solicitation of lessees
for land it already owned, not OTAs or an agency acquisition, and the Circuit found this was not
a part of the “process of acquiring property or services.” Id. at 1244 (citing Distributed Sols.,
Inc., 539 F.3d 1340). Finally, the Federal Circuit in Hymas v. United States found cooperative
agreements do not fall under the Tucker Act but said nothing of OTAs or when an OTA is in
connection with a proposed procurement. 810 F.3d 1312, 1330 (Fed. Cir. 2016).
The Court is unpersuaded by the government’s arguments. 1 The Federal Circuit has been
direct on the Court of Federal Claims bid protest jurisdiction under the Tucker Act: “the statute
does not require an actual procurement” and “explicitly contemplates the ability to protest these
kinds of pre-procurement decisions by vesting jurisdiction in the Court of Federal Claims over
‘proposed procurements.’” Distributed Sols., Inc., 539 F.3d at 1346; AgustaWestland, 880 F.3d
at 1330. It is therefore immaterial whether the potential procurement of 150 AGPUs ever occurs,
so long as the government has “initiated ‘the process for determining a need’ for acquisition,”
and that acquisition might occur via procurement. AgustaWestland, 880 F.3d at 1330 (quoting
Distributed Sols., Inc., 539 F.3d at 1346). The OTAs in this case “initiated ‘the process for
determining a need’ for acquisition,” id., and they are “in connection with” that process because
they may result in the exclusion of plaintiff for consideration of “a follow-on production
contract.” Distributed Sols., Inc., 539 F.3d at 1346; § 1491(b)(1); see Kinemetrics, Inc., 155 Fed.
Cl. at 785; MD Helicopters Inc., 435 F. Supp. 3d at 1013. Such activity fits squarely within the
first “stage of the federal contracting acquisition process.” Distributed Sols., Inc., 539 F.3d at
1346. Therefore, the Court has subject matter jurisdiction over plaintiff’s complaint and must
deny the government’s motion to dismiss. 2
IV. Plaintiff’s Motion to Supplement the Administrative Record
In support of its claim the Army waived or relaxed the modularity requirement in the
RWP, plaintiff attached a declaration from Bahman Seifollahi to its complaint. Am. Compl at
29; Seifollahi Decl., ECF No. 24-5. Plaintiff submits the declaration from Mr. Seifollahi, the
president of plaintiff Hydraulics, to prove “Sun Test and JBT could not meet the mandatory
requirement of modular design in the PID.” Am. Compl. at 30; Pl.’s MJAR at 33. In response to
plaintiff’s modularity arguments, the government suggests “this Court should strike the
Declaration of Mr. Bahman Seifollahi and the portions of HII’s MJAR that rely on that
1
Although the government argues the Court having jurisdiction would “do[] violence to the intent of Congress and
to . . . the language in [§ 4022(f)],” Tr. at 11:19–12:1, the DoD apparently is also unpersuaded. See DoD, Other
Transactions Guide (“OT Guide) (2018), at 37, https://www.dau.edu/pdfviewer/Source/Guidebooks/Other-
Transactions-(OT)-Guide.pdf (“Myth 5: OT[A]s cannot be protested. . . . Protests to the U.S. Court of Federal
Claims are . . . possible but are a rare occurrence.”); see also Peters, supra, at 5 (“OT[A]s are not free from all
legislative and regulatory requirements. Generally, statutes and regulations that are not procurement-specific apply,
including . . . the Tucker Act (28 U.S.C. [§] 1491).”); Space Expl. Techs. Corp., 144 Fed. Cl. at 435 (citing OT
Guide); MD Helicopters Inc., 435 F. Supp. 3d at 1005 (citing Peters, supra, at 4).
2
Plaintiff agreed its motion to transfer venue is moot if the Court determines it has jurisdiction over its complaint.
Tr. at 68:5–7. Accordingly, the Court denies as moot plaintiff’s motion to transfer venue, ECF No. 30.
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declaration entirely.” Gov’t MJAR at 27. Spurred by the government’s suggestion, plaintiff, in
its reply-MJAR brief, moves to supplement the administrative record with the declaration. Pl.’s
Reply at 27. Plaintiff contends “the [a]dministrative [r]ecord is devoid of any [g]overnment
consideration or evaluation of the key PID modularity requirement[, so t]he [d]eclaration is
necessary to a full and complete understanding of the modularity issue in the solicitation.” Id.
According to plaintiff, “the [d]eclaration provides information on the aspects of modularity for
Sun Test, JBT, and Hydraulics based on knowledge, experience, and perception, and is necessary
so as not to frustrate effective judicial review because the Government should have but did not
consider modularity in its evaluations.” Id. at 28.
The government argues plaintiff has not met the high bar required for supplementation.
Gov’t Reply at 16. According to the government, “Mr. Seifollahi’s opinions on modularity are
simply irrelevant,” and “[t]he Court may not substitute its own judgment for that of the Army on
the technical merits of the whitepapers; it certainly may not substitute HII’s.” Id. at 17. The
government asserts the administrative record is “amply sufficient to adjudicate HII’s argument
regarding modularity,” and states “supplementing the administrative record with Mr. Seifollahi’s
opinions on modularity would be an abuse of discretion.” Id. at 18.
The Federal Circuit established the standard for supplementation of the administrative
record in Axiom Resource Management, Inc. v. United States, 564 F.3d 1374 (Fed. Cir. 2009). In
Axiom, the Federal Circuit explained, “[t]he purpose of limiting review to the record actually
before the agency is to guard against courts using new evidence to ‘convert the “arbitrary and
capricious” standard into effectively de novo review.’” Axiom Res. Mgmt., Inc., 564 F.3d at
1380 (quoting Murakami v. United States, 46 Fed. Cl. 731, 735 (2000), aff’d, 398 F.3d 1342(Fed. Cir. 2005)). “Thus, supplementation of the record should be limited to cases in which ‘the
omission of extra-record evidence precludes effective judicial review.’” Id. (quoting Murakami,
46 Fed. Cl. at 735). “It is well settled that the ‘primary focus’ of the court’s review of agency
decision making ‘should be the materials that were before the agency when it made its final
decision.’” Joint Venture of Comint Sys. Corp. v. United States, 100 Fed. Cl. 159, 166 (2011)
(quoting Cubic Applications, Inc. v. United States, 37 Fed. Cl. 345, 349–50 (1997)). “[T]o
perform an effective review pursuant to the [Administrative Procedure Act (‘APA’)], the court
must have a record containing the information upon which the agency relied when it made its
decision as well as any documentation revealing the agency’s decision-making process.”
Vanguard Recovery Assistance v. United States, 99 Fed. Cl. 81, 92 (2011) (citing Citizens to
Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402, 420 (1971), abrogated on other grounds by
Califano v. Sanders, 430 U.S. 99 (1977)). Plaintiff agrees the declaration offered by Mr.
Seifollahi “was not part of the materials that were before the agency” at the time of the
whitepaper evaluation. Tr. at 71:2–5. Therefore, the only question for the Court to answer under
Axiom is whether omission of the declaration would preclude effective judicial review. 564 F.3d
at 1380.
Mr. Seifollahi’s declaration states Sun Test and JBT could not meet the modularity
requirement, which contradicts the whitepapers of both offerors. Seifollahi Decl. at 3. In its
whitepaper, JBT asserts “[u]nmet requirements were identified and new subsystems integrated in
order to completely comply with the PID.” AR at 303 (JBT Whitepaper). JBT also specifically
lists its compliance with the modularity requirement in its “Key Performance Parameters
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Compliance Table.” AR at 330, 339. Sun Test’s whitepaper asserts full compliance with all PID
requirements, “except as listed,” and does not note modularity as a compliance exception; in
other words, Sun Test’s whitepaper certifies its prototype is modular. AR at 375–77 (Sun Test
Whitepaper). As both Sun Test and JBT certified modularity compliance, the government was
entitled to rely on those assertions when considering the bids. See Allied Tech. Grp., Inc. v.
United States, 649 F.3d 1320, 1330 (Fed. Cir. 2011) (“Where an offeror has certified that it
meets the technical requirements of a proposal, the Contracting Officer is entitled to rely on such
certification in determining whether to accept a bid . . . .”). Mr. Seiffolahi’s declaration, thus,
offers nothing to the record but a contradiction to these bidders’ whitepaper certifications.
Seifollahi Decl. at 3. To take such contradictory statements over the technical evaluations
conducted by the Army in accepting these bids would “convert the ‘arbitrary and capricious’
standard into effectively de novo review.” Axiom Res. Mgmt., Inc., 564 F.3d at 1380 (quoting
Murakami, 46 Fed. Cl. at 735).
Assuming Mr. Seiffolahi’s declaration is correct, supplementation would still be
inappropriate. An offeror’s potential failure to comply with the proposal requirements is
ordinarily “a matter of contract administration,” which does not go to the propriety of accepting
the bid. Centech Grp., Inc. v. United States, 554 F.3d 1029, 1039 (Fed. Cir. 2009) (citation
omitted). “However, where a proposal, on its face, should lead an agency to the conclusion that
an offeror could not and would not comply with the [applicable requirement], we have
considered this to be a matter of the proposal’s technical acceptability,” which does affect the
propriety of accepting the offer. Id. (citation omitted and emphasis added). Although Mr.
Seiffolahi’s declaration may submit Sun Test’s and JBT’s whitepapers improperly certified
modularity, “documents [that] proffer facts that substitute plaintiff’s opinion for the [agency’s]
technical determinations” “are not proper supplementation of the administrative record.”
RhinoCorps Co. v. United States, 87 Fed. Cl. 261, 282 (2009); accord PlanetSpace, Inc. v.
United States, 90 Fed. Cl. 1, 6 (2009) (A “declaration [] devoted entirely to re-arguing the merits
of [the agency’s] award decision” is “prototypical of the kind of extra-record evidence against
which the court must guard.”). To that end, it is unclear how Mr. Seiffolahi purports to know
Sun Test and JBT could not meet the modularity requirement, as he readily admits “[he] do[es]
not know what exact unit Sun Test or JBT indicated would be provided in their [w]hitepapers
and [he] understand[s] that information is protected.” Seifollahi Decl. at 3.
Plaintiff’s motion to supplement the administrative record seeks to introduce “new
evidence [and] ‘convert the “arbitrary and capricious” standard into effectively de novo
review.’” Axiom Res. Mgmt., Inc., 564 F.3d at 1380 (quoting Murakami, 46 Fed. Cl. at 735).
This is precisely the form of supplementation Axiom warns against, and plaintiff does not
disagree. See Tr. at 78:21–79:10 (“THE COURT: . . . [Y]ou agree [Mr. Seiffolahi’s declaration
is] a technical review[,] a complex technical analysis . . . [c]orrect? [PLAINTIFF]: Yes. THE
COURT: Okay. Again, Axiom says, ‘The purpose of limiting review to the record actually
before the agency is to guard against courts using new evidence to convert to de novo review.’
Isn’t that exactly what Axiom suggests we guard against? [PLAINTIFF]: When you put it that
way, I would say I think you have a good point.”). As the Sun Test and JBT whitepapers both
certify modularity compliance, and the Army was “entitled to rely on such certification[s] in
determining whether to accept [the] bid[s],” Mr. Seiffolahi’s contrary declaration would not aid
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judicial review. Allied Tech. Grp., Inc., 649 F.3d at 1330. Accordingly, the Court denies
plaintiff’s motion to supplement the administrative record.
V. The Cross-Motions for Judgement on the Administrative Record
Plaintiff and the government filed cross-motions for judgment on the administrative
record. Plaintiff claims the Army misevaluated its proposal by ignoring its alternative pricing for
a modified compliant unit and by inaccurately construing its proposed schedule. Pl.’s MJAR
at 4. Plaintiff also alleges the Army inappropriately waived or relaxed the modularity
requirement when evaluating the proposals from Sun Test and JBT. Id. As a result of the
misevaluation of its own proposal, and the relaxed evaluation of the awardees’ proposals,
plaintiff argues the Army’s actions and award decision were irrational, arbitrary and capricious,
and in violation of law. Id. The government disagrees with plaintiff on each count, arguing the
Army accurately evaluated each proposal, did not waive or relax the modularity requirement, and
rationally selected Sun Test and JBT for award. Gov’t MJAR at 19–33.
A. Standard of Review
When this Court evaluates a bid protest, “the inquiry is whether the agency’s action was
arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law and, if so,
whether the error is prejudicial.” Glenn Def. Marine (ASIA), PTE Ltd. v. United States, 720 F.3d
901, 907 (Fed. Cir. 2013); see also Sys. Application & Techs., Inc., v. United States, 100 Fed. Cl.
687, 711 (2011), aff’d, 691 F.3d 1374 (Fed. Cir. 2012). Arbitrary and capricious means “the
agency entirely failed to consider an important aspect of the problem, offered an explanation for
its decision that runs counter to the evidence before the agency, or the decision is so implausible
that it could not be ascribed to a difference in view or the product of agency expertise.” Ala.
Aircraft Indus. v. United States, 586 F.3d 1372, 1375 (Fed. Cir. 2009) (cleaned up).
“[T]he disappointed bidder bears a heavy burden of showing that the award decision had
no rational basis.” Allied Tech. Grp., Inc., 649 F.3d at 1326 (citation omitted). The Court has a
narrow scope of review of agency judgements, particularly those involving subject-matter
experts evaluating the technical merits of a proposal. Tech. Innovation All. LLC v. United States,
149 Fed. Cl. 105, 129 (2020). “[T]he Court should not substitute its judgment to assess the
relative merits of competing proposals.” Walden Sec. v. United States, 136 Fed. Cl. 216, 231
(2018) (citation omitted).
“[T]o prevail in a protest the protester must show not only a significant error in the
procurement process, but also that the error prejudiced it.” Data Gen. Corp. v. Johnson, 78 F.3d
1556, 1562 (Fed. Cir. 1996). To establish prejudice, the protestor “must show that, had it not
been for the alleged error in the procurement process, there was a reasonable likelihood that the
protester would have been awarded the contract.” Id. This requirement is satisfied when “but
for the government’s alleged error, the protestor would have been ‘within the zone of active
consideration.’” Preferred Sys. Sols., Inc. v. United States, 110 Fed. Cl. 48, 57 (2013) (quoting
Allied Tech. Grp., Inc. v. United States, 94 Fed. Cl. 16, 37 (2010)). “[T]here is no presumption
of prejudice when a protestor demonstrates irrationality in an agency decision. The protestor
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must show prejudice under the usual standard. . . . [T]here is no starting point of presumed
prejudice.” Sys. Stud. & Simulation, Inc. v. United States, 22 F.4th 994, 998 (Fed. Cir. 2021).
B. Whether the Army’s Evaluation of Plaintiff’s Proposal was Rational
Plaintiff argues the government misevaluated their schedule and price regarding the
production of an initial prototype unit. Pl.’s MJAR at 25–29. According to plaintiff, this
misevaluation is demonstrated by language in the initial evaluation documents and a table within
the selection memorandum. Id. Plaintiff does not challenge the evaluation of its proposal on any
other grounds. Tr. at 113:9–12 (when asked by the Court if the price and schedule issue were the
only grounds for misevaluation of plaintiff’s proposal, plaintiff’s counsel stated: “if the schedule
and price were—if they truly were evaluated . . . [plaintiff] do[es]n’t have another argument
besides those two”).
Plaintiff’s whitepaper was unique from other proposals—plaintiff’s current commercial
unit does not meet the minimum requirement for the simultaneous operation of hydraulic,
pneumatic, and AC power output. See AR at 567 (Consensus Evaluation) (“[A] serious
weakness is that the currently manufactured units do not meet the critical requirement of
simultaneous operations.”). As such, plaintiff included two options within its whitepaper
submission: one option for a unit that does not meet the simultaneous operation requirement,
and a second option for a heavily modified unit which does meet the simultaneous operation
requirement. See AR at 434 (Plaintiff’s Proposal). Plaintiff proposed different schedules and
prices for each. Id.For the non-compliant option, “The period of performance from contract award to
delivery of a prototype unit, for Risk Reduction Testing (RRT) . . . will be 9 months.” AR at 436
(Plaintiff’s Proposal). For the compliant option, “The period of performance from contract
award to delivery of a prototype unit, for Risk Reduction Testing, that fully complies with the
existing Draft PID, that includes simultaneous power operation, will be 12 months.” Id.In addition to the “period of performance” outlined above, plaintiff’s whitepaper also
provided a “Proposed Schedule” based on the schedule required by the ORD. Id. The schedule
provided in the ORD is as follows:
Base Effort:
3QTR FY21 White Paper review/Select up to two vendors
1QTR FY22 Complete Risk Reduction Testing, Select one vendor
AR at 196 (ORD). The schedule provided by plaintiff’s whitepaper is as follows:
Base Effort:
2QTR FY21 Submittal of Enhanced White Paper (AGPU 1.1)
2QTR FY21 Government Review and Selection of HII for the Base Effort
1QTR–2QTR FY22 Delivery of RRT AGPU 1.1 Unit to the Government
2QTR FY22–4QTR FY22 RRT Test Phase
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AR at 436 (Plaintiff’s Proposal). Significantly, plaintiff’s proposed schedule assumed a base
effort selection date a quarter sooner than the ORD contemplated.
As for pricing, for the non-compliant option, plaintiff’s whitepaper proposed a base effort
price of [XX] ([XX] with cost share) and an additional [XX] to complete the option effort. AR
at 437–38. For the compliant option, plaintiff’s whitepaper proposed a base effort price of [XX]
([XX] with cost share) and an additional [XX] to complete the option effort. Id.
1. Whether the Army Erred When Evaluating Plaintiff’s Schedule in the
Consensus Evaluation
The consensus evaluation states plaintiff “laid out a mitigation plan to design, develop,
test, and provide a system capable of simultaneous operations, but it would add an additional 12
months to their schedule in order to prepare a prototype unit for RRT that meets” full
compliance. AR at 569 (Consensus Evaluation), 588 (Competitive Evaluation). According to
plaintiff, this demonstrates a misevaluation of the timeline proposed by plaintiff’s whitepaper as
the statement suggests a fully compliant prototype would require an additional twelve months
when compared to the non-compliant option. Pl.’s MJAR at 29. Under plaintiff’s proposal,
production of the non-compliant alternative would take nine months, and production of the
compliant alternative would take twelve months, so plaintiff asserts a correct understanding of
their timeline would characterize the compliant alternative as requiring only an additional three
months. Id. Plaintiff argues “the competitive process was not carried out to the maximum extent
practicable, and [plaintiff] was harmed because its [w]hitepaper was not evaluated correctly as
required by evaluation criteria.” Pl.’s MJAR at 30.
Further review of the consensus evaluation reveals other statements demonstrating
plaintiff’s proposal was not misevaluated. The “Schedule” section of the consensus evaluation
states “[t]he offeror’s schedule will require 12 months to develop, integrate, and test a solution to
meet the PID requirement for simultaneous operations.” AR at 568. Within this section, the
Army accurately represents plaintiff’s proposed timeline, and the evaluation of that timeline
states the “schedule is undesirable within the required timeline.” Id.; Tr. 95:18–23 (“THE
COURT: . . . [T]he Army described this kind of a timeline as undesirable[?] [PLAINTIFF]:
Yes. THE COURT: And that’s reasonable, right? [PLAINTIFF]: Well, they know their . . .
minimum needs, yes.”). This language is consistent with the timeline provided by plaintiff and
indicates the Army accurately construed the schedule when developing the consensus evaluation
and other evaluation documents. Compare AR at 436 (Plaintiff’s Proposal), with AR at 568
(Consensus Evaluation). Moreover, it demonstrates any weaknesses assessed because of
plaintiff’s schedule did not result from an incorrect comparison of two different proposed
timelines, or that “the agency entirely failed to consider an important aspect of the problem.”
Ala. Aircraft Indus., 586 F.3d at 1375.
Furthermore, the “Risk and Mitigation” section of the consensus evaluation contains
language which accurately reflects the timeline proposed by plaintiff. AR at 567 (“. . . HII has
stated that they will require at least 12 months before a unit will be available for RRT.
Therefore, the offeror cannot satisfy the requirements for simultaneous operation without
significant technical, cost, and schedule risk.”). The “Test/Evaluation” section of the consensus
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evaluation also contains language referencing the proposed schedule. AR at 568. The section
states “HII will provide one prototype unit for RRT in 2nd QTR FY22.” Id. Compared to
plaintiff’s proposal, plaintiff’s whitepaper calls for a “1QTR–2QTR FY22 Delivery of RRT
AGPU 1.1 Unit to the Government.” AR at 436. Plaintiff’s proposed delivery schedule applies
to both the non-compliant and compliant options provided by plaintiff. Id. Given the 3-month
differential in lead time between the two options, Pl.’s MJAR at 29, the schedule indicates a non-
compliant option would be delivered in 1QTR FY22 and a compliant option in 2QTR FY22. Id.At oral argument, plaintiff confirmed that is how to read its proposed schedule. Tr. at 94:18–22.
Since the Army refused to consider the non-compliant unit, the schedule contemplated in the
“Test/Evaluation” section—2QTR FY22—is consistent with the 2QTR FY22 delivery date
proposed by plaintiff. Id.; AR at 436, 568.
Despite the multiple examples in the consensus evaluation which demonstrate the Army
accurately conceptualized plaintiff’s timeline, plaintiff seizes on the “additional 12 months”
language in the “Rationale” section to argue the Army misunderstood the proposed timeline. AR
at 569. Based on the Court’s review of the evaluation documents, however, the “additional 12
months” language from the “Rationale” section of the consensus evaluation refers to the initial
time period the Army would have to wait before beginning risk reduction testing, if plaintiff’s
compliant unit was selected for award. Id. Before describing the proposed timeline offered by
plaintiff, the evaluation rejects plaintiff’s offer to provide a non-compliant unit. Id. (“HII
recommended that the Government remove this key critical requirement for simultaneous
operation. . . . [T]his requirement is still valid, posing a significant impact to HII’s proposed
solution.”). Given the Army rejected the non-compliant alternative, any discussion of timeline
would be in reference to the lead-time from the initial contract award, not a comparison to an
unsuitable alternative. The “additional 12 months” therefore corresponds to the “period of
performance from contract award to delivery of a prototype unit” which, according to plaintiff’s
whitepaper, “will be 12 months.” AR at 436 (Plaintiff’s Proposal). Noting the twelve months
required for plaintiff to deliver a compliant prototype is consistent with the “competitive” nature
of the evaluation considering other offerors, such as Sun Test and JBT, did not require the same
lead time. See AR at 559 (JBT Consensus Evaluation noting their prototype delivery schedule is
“1st QTR FY22”); 564 (Sun Test Consensus Evaluation noting the same). Furthermore, noting
the twelve-month requirement is particularly salient as the schedule provided by plaintiff
contemplates a risk reduction test phase finishing in 4QTR FY22 as opposed to the 1QTR FY22
end date identified by the ORD. See AR at 196 (ORD); AR at 436 (Plaintiff’s Proposal).
Putting the Army’s evaluation aside, plaintiff’s proposed schedule on its face fails to
meet the RWP scheduling requirements. The ORD schedule calls for selection of vendors in
3QTR FY21 and completion of risk reduction testing in 1QTR FY22. AR at 196. Applying
plaintiff’s proposed twelve-month lead time for delivery of a compliant prototype would mean
risk reduction testing could begin no sooner than 3QTR FY22. This is a six-month delay when
compared to the ORD schedule. Id. In the alternative, had the Army ignored the lead time
language from plaintiff’s proposal and instead relied exclusively on the schedule provided by
plaintiff, delivery timing would remain an issue. See id.; AR at 436 (Plaintiff’s Proposal). The
earliest risk reduction testing window contemplated by plaintiff’s whitepaper is 2QTR FY22
which is after the ORD anticipates completion of such testing. AR at 196 (ORD); AR at 436
(Plaintiff’s Proposal). As such, assuming arguendo the consensus evaluation did misconstrue the
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timeline proposed by plaintiff’s whitepaper, plaintiff cannot prevail as “the protester must show
not only a significant error in the procurement process, but also that the error prejudiced it.”
Data Gen. Corp. 78 F.3d at 1562. Plaintiff’s proposed interpretation of their delivery timeline
still falls outside the schedule required by the ORD and therefore plaintiff cannot establish, “had
it not been for the alleged error in the procurement process, there was a reasonable likelihood
that the protester would have been awarded the contract.” Id. Plaintiff admitted as much in oral
argument:
THE COURT: . . . [Y]ou proposed 12 months for a compliant prototype and the ORD
only allows for 6 months or 2 quarters.
[PLAINTIFF]: Yes.
THE COURT: [E]xplain that.
[PLAINTIFF]: . . . [W]e were definitely going to need more time to have the
simultaneous, yes.
THE COURT: Okay. And then the Army described this kind of a timeline as
undesirable[?]
[PLAINTIFF]: Yes.
THE COURT: And that’s reasonable, right?
[PLAINTIFF]: Well, . . . they know their minimum needs, yes.
Tr. at 95:10–23.
The AR demonstrates a thorough review of plaintiff’s whitepaper with respect to
scheduling; the Court is unpersuaded by plaintiff’s arguments to the contrary. Plaintiff has not
shown the Army relied on inaccurate information when preparing the evaluation documents or
that their proposal was subject to a less scrutinizing review than that of other participants. As
such, the Court does not find “[t]he competitive process was not carried out to the maximum
extent practicable.” Pl.’s MJAR at 30; see SMS Data Prod. Grp., Inc. v. United States, 853 F.2d
1547, 1553–54 (Fed. Cir. 1988). Furthermore, the Court does not find the evaluation of
plaintiff’s timeline, as outlined in the consensus evaluation, to be “arbitrary, capricious, an abuse
of discretion, or otherwise not in accordance with law.” Glenn Def. Marine, 720 F.3d at 907. As
demonstrated by three separate sections in the consensus evaluation, the Army evaluated the
schedule consistent with the timeline advocated for by plaintiff and did not “entirely fail[] to
consider an important aspect of the problem.” Ala. Aircraft Indus., 586 F.3d at 1375. The
decision to note the twelve-month lead time in reference to the contract award, as opposed to
non-compliant alternative, is not “so implausible that it could not be ascribed to a difference in
view or the product of agency expertise.” Id. Even if the Army had incorrectly evaluated
plaintiff’s proposed schedule, plaintiff fails to show prejudice. Data Gen. Corp., 78 F.3d at
1562. Plaintiff’s proposed schedule, construed in plaintiff’s favor, fails to meet the minimum
requirements set forth in the ORD and therefore there was not a “reasonable likelihood that the
protester would have been awarded the contract.” Id. Plaintiff fails to meet the “heavy burden
of showing that the award decision had no rational basis.” Allied Tech. Grp., Inc., 649 F.3d at
1326.
2. Whether the Army Erred When Evaluating Plaintiff’s Schedule in the
Selection Memorandum
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Plaintiff argues, separate from the alleged misevaluation in the consensus evaluation, its
proposed schedule was also misevaluated in the selection memorandum. Pl.’s MJAR at 26–29.
The selection memorandum includes a table which summarizes the primary information, such as
initial technical rating, company name, cost, and period of performance, for each company which
submitted a whitepaper. Id. at 26. According to plaintiff, their whitepaper identifies a total
“period of performance” of twenty-seven months, inclusive of both the base effort and option
effort. Id. The table, however, indicates a “period of performance” of nine months for plaintiff’s
proposal. AR at 669 (Selection Memorandum). Plaintiff states other information in this table
correctly matches the whitepaper information provided by Sun Test and JBT, but incorrectly
represents plaintiff’s proposal information. Pl.’s MJAR at 26. Plaintiff contends this shows the
Army relied on accurate information for other bidders, but inaccurate information for plaintiff’s
proposal, and therefore “the agency conducted a disparate and unequal competitive evaluation.”
Id.
As an initial matter, plaintiff fails to divulge the information included in the table was
auto-populated directly from information provided by plaintiff during the whitepaper submission
process. See supra Section I.B; AR at 8–9 (RWP). As such, plaintiff complains that the
government inappropriately relied on information plaintiff directly provided. Such reliance is
per se reasonable as an agency “is entitled to rely on [an offeror’s certification] in determining
whether to accept a bid, and the offeror’s potential failure to comply with the proposal
requirements is ordinarily ‘a matter of contract administration,’ which does not go to the
propriety of accepting the bid.” Allied Tech. Grp., 649 F.3d at 1330 (citing Centech Grp., Inc.,
554 F.3d 1029).
Plaintiff argues the auto-population from the self-reported information is immaterial
because “[t]he RWP states that the evaluations will be conducted based on the information
submitted in the Whitepapers. . . . [T]hat is the only place that the Government should have
looked to evaluate [plaintiff’s] proposal.” Pl.’s Reply at 18–19. To succeed on this argument,
plaintiff must demonstrate: (1) the Army relied on the information in the table and not the
information in its whitepaper; and (2) reliance on this information was prejudicial. See Data
Gen. Corp., 78 F.3d at 1562 (“[T]o prevail in a protest the protester must show not only a
significant error in the procurement process, but also that the error prejudiced it.”). Plaintiff does
not, however, provide any evidence the government relied on the information in the table when
drafting the selection memorandum. Plaintiff cites no language from the selection memorandum
which indicates the Army contemplated a nine-month timeline as opposed to a twenty-seven-
month timeline. Rather, plaintiff merely concludes “any evaluation was based on incorrect
information as evidenced by the Government’s own table in the Selection Memo” and
“[plaintiff] specifically offered a solution with simultaneous operations with a competitive price
and schedule that the Selection Memo documents [did] not consider[].” Pl.’s MJAR at 26; Pl.’s
Reply at 17.
Contrary to plaintiff’s assertions, the selection memorandum indicates the Army relied on
plaintiff’s whitepaper and understood the various options provided, including the redesign for
simultaneous operation. AR at 672 (Selection Memorandum). The selection memorandum
states: “The offeror is capable of providing a prototype unit that provides simultaneous electric,
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hydraulic, and pneumatic power requirement; however, additional time for design, build and in-
house testing will be required to integrate this required capability.” Id. As discussed supra
Section V.B.1., this “additional time” language represents the Army’s understanding that
plaintiff requires twelve months to deliver a compliant prototype. Plaintiff has therefore not
demonstrated a significant error in the procurement process or shown evidence of a disparate and
unequal evaluation. See Data Gen. Corp., 78 F.3d at 1562. Instead, plaintiff is left to argue the
mere existence of inaccurate information, which plaintiff directly provided, taints the entire
award decision regardless of evidence indicating the government never relied on the inaccurate
information. Such discrepancies are insufficient to invalidate an otherwise sound award
decision. See Gulf Grp. Inc. v. United States, 61 Fed. Cl. 338, 358 (2004) (holding discrepancies
in the record concerning the score of a prior evaluation was “of the variety of ‘small or
immaterial errors’ that are not sufficient to invalidate a procurement decision”) (citing Lockheed
Missiles & Space Co. v. Bentsen, 4 F.3d 955 (Fed. Cir. 1993)); Ala. Aircraft Indus., 586 F.3d at
1375.
Even if the Army did rely on the information from the table instead of plaintiff’s
whitepaper, plaintiff has not demonstrated such reliance was prejudicial. See Data Gen. Corp.,
78 F.3d at 1562. The “period of performance” represented in the table is 18 months shorter than
plaintiff’s actual schedule, and is consequently the only representation of plaintiff’s timeline
which may, if viewed favorably, meet the schedule of the ORD. AR at 436 (Plaintiff’s
Proposal); AR at 196 (ORD). To establish prejudice, the protestor must show “but for the
government’s alleged error, the protestor would have been ‘within the zone of active
consideration.’” Preferred Sys. Solutions, Inc, 110 Fed. Cl. at 57 (quoting Allied Tech. Grp.,
Inc., 94 Fed. Cl. at 37). Here, this burden is not carried because the alleged error does not move
plaintiff outside the “zone of active consideration.” Id. Rather, given the Army’s frequently
expressed concern regarding plaintiff’s proposed schedule, the alleged error presumably would
have moved plaintiff closer to the “zone of active consideration.” Id. As discussed supra
Section V.B.1., plaintiff’s proposed whitepaper schedule on its face fails to meet the RWP
scheduling requirements absent any selection memorandum errors. As such, plaintiff fails to
meet the “heavy burden of showing that the award decision had no rational basis” and fails to
show prejudice. Allied Tech. Grp., Inc., 649 F.3d at 1326; Data Gen. Corp., 78 F.3d at 1562.
3. Whether the Army Erred When Evaluating Plaintiff’s Price in the
Consensus Evaluation
Plaintiff next contends “[t]he Government’s obvious misunderstanding of Hydraulics
schedule and pricing can also be seen in the evaluation documents.” Pl.’s MJAR at 28. To
support this argument, plaintiff quotes two initial technical evaluations: “HII states there will be
an increased risk, both technically and cost-wise, if the simultaneous power requirement is
maintained.” Id. (quoting AR at 534, 549). Plaintiff also quotes from the consensus evaluation:
HII states there will be an increased risk, both technically and cost-wise, if the
simultaneous power requirement is maintained. . . . Therefore, the offeror cannot
satisfy the requirement for simultaneous operation without significant technical,
cost, and schedule risk. . . . Redesigning the unit is a cost risk as there will be
additional cost per unit.
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Id. (quoting AR at 567 (original alterations)). Based on these two statements alone, plaintiff
concludes:
The evaluators did not realize and evaluate that [plaintiff] did include pricing for
the base and option for a unit with simultaneous operations. The information was
specifically marked in the pricing tables in [plaintiff’s] Whitepaper and the
statements in . . . the evaluation documents expressing uncertainty about the cost
risks is just not rational given the evidence in the Whitepaper concerning the cost
of simultaneous operations for [plaintiff’s] offer.
Id. at 29.
Contrary to plaintiff’s conclusion, the statements quoted supra do not demonstrate the
Army was unaware plaintiff’s whitepaper contained an option for a compliant unit. Rather, the
statements merely identify pursuing the compliant option, as described in the whitepaper, would
require accepting additional risk. AR at 534, 549, 567. Importantly, the Army did not assess
these risks itself; plaintiff’s own whitepaper warned of these specific risks if its compliant unit
were selected for award. See AR at 434 (Plaintiff’s Proposal) (“[T]here will be an increased risk
both technically and cost wise if the simultaneous power requirement is maintained.”).
Plaintiff ignores numerous sections in both the initial technical evaluations and the
consensus evaluation which demonstrate the Army was aware of both options provided in
plaintiff’s whitepaper. One technical evaluation notes the existence of the compliant option in
three different sections. See AR at 533–34 (Initial Technical Evaluation). Moreover, the
consensus evaluation specifically indicates plaintiff did provide an option compliant with the
simultaneous operation requirement. AR at 566 (Consensus Evaluation), 586 (Competitive
Evaluation) (“The offeror is capable of providing a prototype unit that provides simultaneous
electric, hydraulic, and pneumatic power requirements”). If that were not enough, plaintiff
agreed at oral argument the price information listed in the competitive evaluation, including both
of plaintiff’s prototype options, AR at 587, is “the correct information.” Tr. at 100:16–24.
Given multiple sections of the initial technical evaluations and the consensus evaluation
demonstrate the Army’s understanding of the options provided by plaintiff’s whitepaper, plaintiff
is unable to demonstrate “the agency entirely failed to consider an important aspect of the
problem.” Ala. Aircraft Indus., 586 F.3d at 1375. Furthermore, the concerns regarding the risks
of selecting plaintiff’s compliant prototype option, which involves redesigning the system for
simultaneous operation, are adopted directly from plaintiff’s own whitepaper. See AR at 434
(Plaintiff’s Proposal). The explanation for these concerns, therefore, do not run “counter to the
evidence before the agency.” Ala. Aircraft Indus., 586 F.3d at 1375. Instead, the explanation
comes directly from the evidence put before the agency by plaintiff itself. Even if plaintiff had
not suggested these concerns directly, such an evaluation is directly contemplated by the ORD
which permits the Army to consider the “[e]xtent to which the cost/price estimate provided is
appropriate for the proposed scope or approach.” AR at 11–12. The Court must give deference
to agency evaluations concerning technical, subject-matter decisions. Tech. Innovation All. LLC,
149 Fed. Cl. at 129. The Army is tasked with evaluating the risks associated with prototype
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production, and, in this case, it chose to adopt the view expressed directly by plaintiff. This
decision is not so implausible “that it could not be ascribed to a difference in view or the product
of agency expertise.” Ala. Aircraft Indus., 586 F.3d at 1375. As such, plaintiff fails to meet the
“heavy burden of showing that the award decision had no rational basis.” Allied Tech. Grp., Inc.,
649 F.3d at 1326.
4. Whether the Army Erred When Evaluating Plaintiff’s Price in the
Selection Memorandum
Plaintiff also argues its proposed price was incorrectly evaluated in the selection
memorandum. Pl.’s MJAR at 26. Plaintiff’s arguments on this front mirror its arguments related
to the incorrect schedule data in the table included in the selection memorandum. See supra
Section V.B.2. According to plaintiff, their whitepaper identifies a total price of [XX] ([XX]
with cost share), inclusive of both the base effort and option effort. Id. The table, however,
indicates an “Estimated Cost” of [XX] for plaintiff’s proposal. AR at 669 (Selection
Memorandum). According to plaintiff, the information in this table correctly matches the
whitepaper information provided by the other bidders but includes incorrect information for
plaintiff. Pl.’s MJAR at 26. Plaintiff concludes from this table that “the agency conducted a
disparate and unequal competitive evaluation.” Id.
Just as with the scheduling data, plaintiff fails to divulge the information included in the
table was auto-populated directly from information provided by plaintiff during the whitepaper
submission process. See supra Section V.B.2. As such, plaintiff complains the government
inappropriately relied on information which plaintiff directly provided. Such reliance is per se
reasonable as an agency “is entitled to rely on [an offeror’s certification] in determining whether
to accept a bid, and the offeror’s potential failure to comply with the proposal requirements is
ordinarily ‘a matter of contract administration,’ which does not go to the propriety of accepting
the bid.” Allied Tech. Grp., 649 F.3d at 1330 (citing Centech Grp., Inc., 554 F.3d 1029).
Plaintiff argues the auto-population from self-reported information is immaterial because
“[t]he RWP states that the evaluations will be conducted based on the information submitted in
the Whitepapers. . . . [T]hat is the only place that the Government should have looked to
evaluate [plaintiff’s] proposal.” Pl.’s Reply at 18–19. To succeed on this argument, plaintiff
must demonstrate: (1) the Army relied on the information in the table and not the information in
plaintiff’s whitepaper; and (2) reliance on this information was prejudicial. See Data Gen.
Corp., 78 F.3d at 1562 (“[T]o prevail in a protest the protester must show not only a significant
error in the procurement process, but also that the error prejudiced it.”). Plaintiff does not,
however, provide any evidence the government relied on the information in the table when
drafting the selection memorandum. See Pl.’s MJAR 24–29; Pl.’s Reply 17–20. Plaintiff cites
no language from the selection memorandum which indicates contemplation of a [XX] total cost
as opposed to an [XX] total cost. Rather, plaintiff merely concludes “any evaluation was based
on incorrect information as evidenced by the Government’s own table in the Selection Memo”
and “[plaintiff] specifically offered a solution with simultaneous operations with a competitive
price and schedule that the Selection Memo documents [did] not consider[].” Pl.’s MJAR at 26;
Pl.’s Reply at 17.
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Contrary to plaintiff’s assertions, the selection memorandum indicates the Army relied on
plaintiff’s whitepaper and understood the pricing provided. AR at 672 (Selection
Memorandum). The selection memorandum states: “The estimated cost does not include
additional pricing associated with the redesign of the prototype to meet the Critical Requirement
for simultaneous operation.” Id. The “estimated cost” refers to the specific table heading and
the associated [XX] figure provided in the selection memorandum table. AR at 669. The
language thus distinguishes the cost provided in the table and the cost provided by plaintiff’s
whitepaper by indicating the “estimated cost” from the table does not encompass the full scope
of plaintiff’s proposal described in its whitepaper. This language directly counters plaintiff’s
assertion, as it demonstrates the Army understood the data in the table to not cover plaintiff’s full
proposal. Plaintiff has therefore not demonstrated a significant error in the procurement process
or shown evidence of a disparate and unequal evaluation. See Data Gen. Corp., 78 F.3d at 1562.
Again, plaintiff is left to argue the mere existence of inaccurate information, which it directly
provided, taints the entire evaluation regardless of evidence indicating the Army understood the
data to be incomplete. Such an inconsistency does not rise to a level sufficient to invalidate an
otherwise sound award decision. See Gulf Grp. Inc., 61 Fed. Cl. at 358 (citing Lockheed Missiles
& Space Co., 4 F.3d 955) (holding that discrepancies in the record concerning the score of a
prior evaluation was “of the variety of ‘small or immaterial errors’ that are not sufficient to
invalidate a procurement decision”). As such, plaintiff fails to meet the “heavy burden of
showing that the award decision had no rational basis.” Allied Tech. Grp., Inc., 649 F.3d at
1326.
C. Whether the Army Waived or Relaxed the Modularity Requirement
Plaintiff also argues the Army inappropriately “waived or relaxed” the requirement the
system be modular for Sun Test and JBT, but not for others. Pl.’s Reply at 20–22. Plaintiff
claims “the evaluation of Sun Test and JBT was flawed since they could not meet and comply
with the requirement in the ORD for modular design which comes from the PID at 3.8 and 3.17.”
Pl’s Reply at 21. To support its contention the Sun Test and JBT proposals did not meet the
modularity requirement, plaintiff relies on the declaration of Bahman Seifollahi—president of
the plaintiff-company. Pl.’s Reply at 22. The Court denied plaintiff’s motion to supplement the
administrative record with this declaration, supra Section IV, so plaintiff is left with its bare
disagreements with Sun Test’s and JBT’s whitepapers, and the Army’s evaluations thereof. See
Pl.’s MJAR at 33, Pl.’s Reply at 22 (basing its modularity claim solely on the declaration of
Bahman Seifollahi); see also RhinoCorps Co., 87 Fed. Cl. at 282 (“[D]ocuments [that] proffer
facts that substitute plaintiff’s opinion for the [agency’s] technical determinations” “are not
proper supplementation of the administrative record.”). Plaintiff argues: (1) “[t]he statements in
the submissions from JBT and Sun Test are insufficient in that they do not match the specific
language seen in the ORD or the PID,” Pl.’s MJAR at 33; and (2) “modularity is not mentioned
in any of the evaluation documents for Sun Test, JBT, or [plaintiff] in the Administrative
Record,” so the requirement must have been waived, Pl.’s Reply at 22.
The government responds it determined the Sun Test and JBT proposals did meet the
modularity requirement, and the “‘highly deferential’ ‘rational basis’ standard of review does not
allow the Court to substitute [plaintiff’s] opinions regarding other companies’ technology in
place of Sun Test’s, JBT’s, and the Army’s unanimously contrary view.” Gov’t Reply at 16
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(quoting Dell Fed. Sys., L.P. v. United States, 906 F.3d 982, 992 (Fed. Cir. 2018)). The
government also identifies language in both the JBT and Sun Test whitepapers which assert
compliance with the modularity requirement. Gov’t MJAR at 25. The government argues
plaintiff ignores language in the JBT and Sun Test proposals which contemplates changes to
their commercial offerings to meet full compliance. Id. at 25–26. “The evaluation comments did
not specifically mention modularity,” but “[t]he arbitrary and capricious standard does not—and
for the sake of readability and comprehension, cannot—require rote recitation of every
requirement in the evaluations.” Id. at 26–27.
“The Court’s scope of review is particularly narrow when it comes to agency judgments
regarding the technical merits of particular proposals.” Tech. Innovation All. LLC, 149 Fed. Cl.
at 129. Where an agency’s action was reasonably based, “the Court cannot substitute its
judgment for that of the agency.” RX Joint Venture, LLC v. United States, 145 Fed. Cl. 207, 213
(2019). “[I]t is well established that evaluations of proposals for their technical quality involves
the specialized expertise of an agency’s subject-matter experts,” and thus, “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.” RX Joint Venture, 145 Fed. Cl. at
213 (quoting E.W. Bliss Co. v. United States, 77 F.3d 445, 449 (Fed Cir. 1996)).
The RWP required AGPU prototypes be “modular in design to facilitate rapid and
effective repair.” AR at 87 (ORD). The “modular components/subcomponents will be able to
work independently from each other,” and “modularity is defined as a variety of single
components that are operated by a common power source.” AR at 213. Sun Test’s whitepaper
states its system “is fully compliant . . . except as listed below.” AR at 376. The modularity
requirement is not a noted exception in this section, suggesting that Sun Test “is fully compliant”
with that requirement. AR at 376–77. JBT’s whitepaper states “[u]nmet requirements were
identified and new subsystems integrated in order to completely comply with the PID.” AR at
303. JBT’s whitepaper includes a table which identifies the modularity requirement twice, and
in both instances, it states JBT’s prototype will “[c]omply.” AR at 339, 341. JBT’s whitepaper
also includes a diagram showing its system as “a variety of single components that are operated
by a common power source.” AR at 300, 339. The Army reviewed these submissions and
determined Sun Test’s and JBT’s “system[s] fully meet[] all requirements.” AR at 580, 583.
Plaintiff does not identify a single statement in either Sun Test’s or JBT’s whitepaper
indicating either bidder would not comply with the modularity requirement. Rather, plaintiff
contends the instances where Sun Test and JBT certify compliance with the modularity
requirement are insufficient for not repeating the verbatim language of the RWP. Pl.’s MJAR at
33. In reviewing Sun Test’s and JBT’s whitepapers, the Army found the language used in the
whitepapers sufficient to conclude Sun Test’s and JBT’s “system[s] fully meet[] all
requirements.” AR at 580, 583. Given “[t]he Court’s scope of review is particularly narrow
when it comes to agency judgments regarding the technical merits of particular proposals,” Tech.
Innovation All. LLC, 149 Fed. Cl. at 129, the Court is unable to substitute its judgment for that of
the government. RX Joint Venture, LLC, 145 Fed. Cl. at 213. The modularity requirement is an
issue involving evaluations of proposals for their technical qualities, and thus, these evaluations
should be left to the subject matter experts at the Army. Id. The evidence in the administrative
record shows Sun Test and JBT complied with the modularity requirement, so the Court must
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defer to the government’s judgment on this issue. See CSC Gov't Sols. LLC v. United States, 129
Fed. Cl. 416, 434 (2016) (explaining great deference must be afforded to an agency’s judgment
“because of the highly specialized, detailed, and discretionary analyses frequently conducted by
the government in that regard”.). Further, Sun Test and JBT both certified their compliance with
this requirement, and an agency “is entitled to rely on [an offeror’s certification] in determining
whether to accept a bid, and the offeror’s potential failure to comply with the proposal
requirements is ordinarily ‘a matter of contract administration,’ which does not go to the
propriety of accepting the bid.” Allied Tech. Grp., 649 F.3d at 1330 (citing Centech Grp., Inc.,
554 F.3d 1029). Thus, even if plaintiff were correct in that neither proposal is modular, that
would not affect the Court’s review, as the Army is entitled to rely on the contrary whitepaper
assertions. Id. As such, plaintiff fails to show the government waived or relaxed the modularity
requirement for Sun Test and JBT, and therefore does not meet the “heavy burden of showing
that the award decision had no rational basis.” Id. at 1326.
D. Whether the Army’s Best-Value Determination was Rational
Plaintiff’s argument the Army’s best-value determination was arbitrary and capricious is
based only on its position the Army misevaluated plaintiff’s price and schedule proposal and
waived or relaxed the modularity requirement. Pl.’s MJAR at 35–37. At oral argument, plaintiff
confirmed it has no other arguments pertaining to the rationality of the best-value determination
if the Court were to find the Army’s evaluations of price, schedule, and modularity had a rational
basis. Tr. at 112:23–113:12. As discussed supra Sections V.B.1.–4., plaintiff fails to
demonstrate the Army erred in its evaluation of plaintiff’s price or schedule. Plaintiff also fails
to demonstrate the Army waived or relaxed the modularity requirement when evaluating the
whitepapers of Sun Test and JBT. See supra Section V.C. Given plaintiff has failed to carry its
burden on these grounds, plaintiff’s claim that the Army’s best-value decision was arbitrary and
capricious must likewise fail as necessarily dependent on them, as agreed by plaintiff. Pl.’s
MJAR at 35–37; Tr. at 112:23–113:12.
To that end, plaintiff’s whitepaper contained more shortcomings that were independently
fatal to plaintiff’s bid. Plaintiff’s whitepaper admits “there will be an increased risk both
technically and cost wise if the simultaneous power requirement is maintained.” AR at 434
(Plaintiff’s Whitepaper). As for technical risk, plaintiff’s whitepaper stated: “[XXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXX].” Id. Either option under plaintiff’s proposal would
be problematic as there are “[XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX].” Id. In either case, plaintiff’s
whitepaper suggests “[a]dditional time for design, build and in-house testing will be required.”
Id. At oral argument, plaintiff agreed it was rational for the Army to consider plaintiff’s
numerous warnings as a weakness, and agreed the warnings were “significantly different than the
other two proposals.” Tr. at 113:13–114:5. The Army took plaintiff at its word and found
plaintiff’s whitepaper did not present the best value based on the risks identified in plaintiff’s
own whitepaper. See AR at 672 (Selection Memorandum) (“Redesigning the system to include
simultaneous operation is a major effort and will increase technical, cost, and schedule risk.”).
As such, plaintiff was not awarded a base effort contract. AR at 675.
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The Army’s explanation for not awarding plaintiff the base effort accordingly does not
run “counter to the evidence before the agency,” as it is directly lifted from plaintiff’s own
submission. Ala. Aircraft Indus., 586 F.3d at 1375. Given the Army’s decision tracks
admissions by plaintiff itself, the decision is not “so implausible that it could not be ascribed to a
difference in view or the product of agency expertise.” Id. Plaintiff has therefore not carried its
“heavy burden of showing that the award decision had no rational basis.” Allied Tech. Grp., Inc.,
649 F.3d at 1326. As such, this Court will not “substitute its judgment to assess the relative
merits of competing proposals” and must find the Army acted rationally when it chose not to
award plaintiff the base effort or find it represented the best value. RX Joint Venture, 145 Fed.
Cl. at 213.
VI. Plaintiff’s Requests for Declaratory and Injunctive Relief
Plaintiff requests the Court “enter a declaratory judgement that: “(1) the evaluation of
[plaintiff’s] Whitepaper by Defendant United States, acting through its agent the United States
Army in partnership with AMTC was irrational, arbitrary and capricious, an abuse of discretion,
and otherwise a violation of law; [and] (2) that the Government should not be allowed to proceed
with the prototype project to include the option of any follow-on production with Sun Test until
such time as the Court can determine the propriety of the Government’s actions.” Pl.’s MJAR at
37. The Court does not find that the Army in partnership with AMTC acted irrationally,
arbitrarily, capriciously, abused its discretion, or conducted their review in a manner which
otherwise violated the law. See supra Section V. As such, the Court denies plaintiff’s first
requested declaratory judgement. Pl.’s MJAR at 37. Furthermore, because this Court does not
find that the government acted irrationally with regards to the evaluation of the whitepapers or
subsequent award, this Court denies plaintiff’s second requested declaratory judgement. Id.
Plaintiff also requests “an Order from this Court enjoining the Agency from proceeding
with the option with Sun Test.” Id. at 38. The Court considers the following factors when
determining whether to issue a permanent injunction: “(1) whether, as it must, the plaintiff has
succeeded on the merits of the case; (2) whether the plaintiff will suffer irreparable harm if the
court withholds injunctive relief; (3) whether the balance of hardships to the respective parties
favors the grant of injunctive relief; and (4) whether it is in the public interest to grant injunctive
relief.” PGBA, LLC v. United States, 389 F.3d 1219, 1228–29 (Fed. Cir. 2004). According to
the first factor, plaintiff is not entitled to injunctive relief because plaintiff does not prevail on the
merits. The Court therefore does not consider the remaining factors and denies plaintiff’s
request. Info. Tech. & Apps. Corp. v. United States, 51 Fed. Cl. 340, 357 n.32 (2001) (“Absent
success on the merits, the other factors are irrelevant.”), aff’d, 316 F.3d 1312 (Fed. Cir. 2003).
VII. Conclusion
For the foregoing reasons, the Court: (1) DENIES the government’s motion to dismiss;
(2) DENIES as MOOT plaintiff’s motion to transfer venue; (3) DENIES plaintiff’s motion to
supplement the administrative record; (4) DENIES plaintiff’s motion for judgment on the
administrative record; and (5) GRANTS the government’s motion for judgment on the
administrative record. The Clerk is directed to enter judgment accordingly.
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IT IS SO ORDERED.
s/ Ryan T. Holte
RYAN T. HOLTE
Judge
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