Wavelink, Inc v. United States

In the United States Court of Federal Claims
No. 20-749C
(Filed Under Seal: June 24, 2021)
(Reissued: July 1, 2021)
)
WAVELINK, INC., )
Plaintiff, )
v. )
)
THE UNITED STATES,
)
Defendant,
)
and
)
KALMAN & COMPANY, INC.,
)
RESEARCH & ENGINEERING
)
DEVELOPMENT LLC,
)
NOVA TECHNOLOGIES AN
EMPLOYEE OWNED ENGINEERING )
COMPANY, )
ISYS, INC., )
NETCENTRIC TECHNOLOGY, LLC, )
GAN CORP., )
)
BOECORE, INC., and
)
DUCOM, INC.
)
Defendant-Intervenors.
)
Christopher L. Lockwood, Wilmer & Lee, P.A., Huntsville, AL, for Plaintiff. With him on
the briefs were Jerome S. Gabig and Richard J.R. Raleigh, Jr.
Liridona Sinani, Commercial Litigation Branch, Civil Division, United States Department
of Justice, Washington, D.C., for Defendant. With her on the briefs were Jeffrey Bossert
Clark, Acting Assistant Attorney General, Civil Division, Robert E. Kirschman, Jr.,
Director, and Douglas K. Mickle, Assistant Director, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washington, D.C., and Stephen T. O’Neal,
Assistant General Counsel, Office of General Counsel (LP), General Services
Administration, Washington, D.C.
Bryant S. Banes, Neel, Hooper & Banes, P.C., Houston, TX, for Defendant-Intervenor
Kalman & Company, Inc. With him on the brief was Sarah P. Harris.
Frank S. Murray, Foley & Lardner LLP, Washington, D.C., for Defendant-Intervenor
Research & Engineering Development LLC. With him on the brief were David T.
Ralston, Jr. and Julia Di Vito.
Katherine B. Burrows, PilieroMazza PLLC, Washington, D.C., for Defendant-Intervenor
Nova Technologies An Employee Owned Engineering Company. With her on the brief
were Timothy F. Valley, Camilla J. Hundley, and Anna G. Sullivan.
Dawn E Stern, DLA Piper LLP, Washington, D.C., for Defendant-Intervenor ISYS, Inc.
With her on the brief were C. Bradford Jorgensen and Thomas E. Daley.
Damien C. Specht, Morrison & Foerster LLP, Washington, D.C., for Defendant-Intervenor
NetCentric Technology, LLC. With him on the brief were James A. Tucker and Rachael K.
Plymale.
Jon D. Levin, Maynard, Cooper & Gale, P.C., Huntsville, AL, for Defendant-Intervenor
GaN Corp. With him on the brief were W. Brad English, J. Dale Gipson, Emily J. Chancey,
and Nicholas P. Greer.
Ryan J. Klein, Sherman & Howard LLC, Colorado Springs, CO, for Defendant-
Intervenor Boecore, Inc.
Joseph L. Katz, Katz Law, Bethesda, MD, for Defendant-Intervenor DUCOM, Inc.
OPINION AND ORDER
SOLOMSON, Judge.
This post-award bid protest is yet another such case arising from the recent on-
ramp procurement process for Pools 1, 3, and 4 of the One Acquisition Solution for
Integrated Services Small Business (“OASIS SB”) contract vehicle. Plaintiff, WaveLink,
Inc. (“WaveLink”), submitted proposals for Pools 1 and 3, and alleges that Defendant,
the United States, acting by and through the General Services Administration (“GSA”
or the “Agency”): (1) improperly failed to allow WaveLink to update its relevant
experience and past performance proposal volumes during the 10-month proposal
evaluation period; (2) violated Federal Acquisition Regulation (“FAR”) provisions in
conducting discussions with other offerors without allowing all offerors, including
WaveLink, to submit a fully revised proposal, known as a final proposal revision
(“FPR”);1 and (3) erred in awarding contracts to ineligible offerors, in violation of a
1See FAR 15.307(b) (“At the conclusions of discussions, each offeror still in the competitive
range shall be given an opportunity to submit a final proposal revision.”).
2
mandatory solicitation provision and the FAR. The government counters that GSA
acted reasonably in evaluating all the proposals submitted during the OASIS SB on-
ramp procurement, did not conduct discussions with any offeror, and did not award
contracts in derogation of a mandatory solicitation requirement. The government
further argues that even if GSA in fact conducted discussions or should have issued an
amendment to eliminate a mandatory requirement, the Agency would not have been
required to allow WaveLink to fully revise its proposal with updated content.
Both parties filed motions for judgment on the administrative record pursuant to
Rule 52.1 of the Court of Federal Claims (“RCFC”). The government moved to dismiss
WaveLink’s amended complaint for lack of standing pursuant to RCFC 12(b)(1).
The Court concludes that while the bulk of WaveLink’s claims are not
meritorious, WaveLink demonstrates that GSA awarded contracts to offerors contrary
to mandatory terms of the OASIS SB solicitation, thus violating FAR 15.305(a) and
15.206(d). As a result, WaveLink was prejudicially deprived of its opportunity to fairly
compete for a contract award in Pool 3. While the Court understands the government’s
desire for maximum flexibility in conducting its procurements, these FAR provisions
are “essentially corollaries of a basic rule designed to promote fair competition,
particularly in the context of negotiated, best value procurements.” EP Prods., Inc. v.
United States, 63 Fed. Cl. 220, 225 (2005). As the United States Supreme Court recently
observed, “[i]f men must turn square corners when they deal with the government, it
cannot be too much to expect the government to turn square corners when it deals with them.”
Niz-Chavez v. Garland, 141 S. Ct. 1474, 1486 (2021) (emphasis added).
Accordingly, and for the reasons explained below, the Court DENIES the
government’s motion to dismiss, GRANTS, IN PART, and DENIES, IN PART,
WaveLink’s motion for judgment on the administrative record, and GRANTS, IN
PART, and DENIES, IN PART, the government’s motion for judgment on the
administrative record.2
2On May 7, 2021, the Court originally filed, under seal, an opinion and order, finding for
Plaintiff on the merits and issuing limited injunctive relief. Before the Court publicly released
that opinion, however, the Court learned, for the first time, that the contract awardees
potentially impacted by the injunction had not been notified of the instant bid protest action.
The Court accordingly stayed the injunction and ordered the government to notify those
awardees, eight of which ultimately intervened in this case. The Court then provided those
intervenors the opportunity to file a brief and held a status conference with all of the parties.
Upon considering the defendant-intervenors’ arguments, the Court issued, under seal, this
revised opinion and order in place of ECF No. 57, which the Clerk, by separate order, was
directed to strike from the record. ECF No. 113. The Court provided the parties until July 1,
2021, to propose redactions. On July 1, 2021, the parties filed joint proposed redactions, ECF
3
I. Factual And Procedural Background3
A. The Solicitation
OASIS SB is a GSA-administered, government-wide contract vehicle that
provides federal government agencies with access to a range of professional, scientific,
and technical services. AR 1187–93. OASIS SB is a 100% small business set-aside,
consisting of seven separate multiple award, indefinite delivery indefinite quantity
(“IDIQ”) contracts, referred to as “Pools.” AR 412–13, 1186. Each Pool covers a different
industry discipline and is reserved for a small business size standard based either on
annual revenue or number of employees.4 AR 1207–09. In July 2013, GSA originally
issued OASIS SB, Solicitation No. GS00Q-13-DR-0002, as a Request for Proposals (the
“Solicitation” or the “RFP”). AR 40, 1108, 1122. In March 2014, GSA awarded
numerous contracts across the seven Pools, including 44 in Pool 1, 43 in Pool 3, and 40
in Pool 4. AR 6934, 6996. Awardees were then eligible to bid on various task orders
within their respective Pools. AR 5, 49.
The RFP authorized GSA to reopen any of the individual OASIS SB Pools to “on-
ramp” additional contractors.5 AR 458. Consistent with that RFP provision, on April
29, 2019, GSA initiated an on-ramping process for Pools 1, 3, and 4, seeking an
additional 190 contractors in Pool 1, 160 contractors in Pool 3, and 60 contractors in Pool
4. AR 288, 388, 6996. In the event of a tie for the last slot in each Pool, all tied offerors
would be awarded a contract. AR 49, 388. Pools 1, 3, and 4 were structured as
“separate contract actions and separate procurements in and of themselves.” AR 6996.
Notwithstanding that a protest in one Pool would not necessarily impact a different
Pool, “decisions made regarding GSA’s evaluation of any one Pool can have a
significant impact on the other Pools as the evaluation criteria are identical for all three
Pools.” AR 7002. Offerors were permitted to submit proposals for more than one Pool.
No. 115, which this Court adopts and accordingly reissues this public version of this opinion
and order.
3This background section constitutes the Court’s findings of fact drawn from the administrative
record. See infra Section III. Citations to the administrative record (ECF No. 22, as amended by
ECF No. 45) are denoted as “AR”.
4These designations were made utilizing the North American Industry Classification System
(“NAICS”) codes with the corresponding small business size standards, as developed by the
Small Business Administration. See 13 C.F.R. § 121.201.
5Although GSA did not issue a new RFP, see AR 6997, the on-ramp process constituted a new
procurement process. See DigiFlight v. United States, 150 Fed. Cl. 650, 652 (2020).
4
AR 49, 121. Proposals for the on-ramp procurement originally were due by June 20,
2019, but GSA subsequently extended the closing date to June 28, 2019. AR 348, 7001.
The RFP required each proposal to contain six distinct volumes, which GSA
labeled as follows: (1) general; (2) responsibility; (3) relevant experience; (4) past
performance; (5) systems, certifications, and clearances; and (6) cost/price. AR 286–87.
As part of the responsibility volume, the Solicitation instructed offerors, among other
things, to submit financial statements. AR 366–67. The RFP was a “best value”
procurement with contracts awarded to the “Highest Technically Rated Offerors with a
Fair and Reasonable Price.” AR 388. The RFP provided that only the relevant
experience, past performance, and systems, certifications, and clearances volumes
would be scored, whereas the first two volumes (general and responsibility) would be
graded as acceptable or unacceptable. AR 391, 400–01. Offerors’ cost/price was
assessed for reasonableness but was not weighed against the technical score. AR 389,
1245.
The RFP instructed offerors to submit their proposals using the OASIS
Symphony Online Proposal System (“Symphony”). AR 40, 270–79, 348, 1247. Offerors
utilized Symphony to input their proposal information along with supporting
documentation. AR 276. Based on that information, Symphony generated a self-score
for the scored portions of the RFP (i.e., volumes three, four, and five) that an offeror
could view before submitting its proposal. Id.; see AR 359, 490, 1268. The maximum
available score was 10,000 points, including 4,000 points for relevant experience, 4,000
points for past performance, and 2,000 points for systems, certifications, and clearances.
AR 400–01; see also AR 1112–119.
Beyond these general terms, there are several RFP provisions pertinent to this
case: (1) the professional employee compensation plan provision; (2) the relevant
experience “one-year period of performance” provision; (3) the CMMI certificate
provision; and (4) the direct labor rate provisions.
1. Professional Employee Compensation Plan Provision
The RFP required offerors to submit, as part of the general volume, a
professional employee compensation plan. AR 360; see id. at 355 (“To be eligible for an
award, the Offeror shall adhere to the directions and submit the following information
under Volume 1 – General.”). Because “compensation that is unrealistically
low . . . may impair the Contractor’s ability to attract and retain competent professional
service employees[,]” the RFP mandated that a compensation plan provide “the
Offeror’s methodology for determining salaries and fringe benefits for their professional
employees in preparation for future task Order Requirements[.]” AR 360.
5
2. Relevant Experience “One-Year Period of Performance” Provision
At a minimum, the RFP required that proposals contain three primary, relevant
experience projects that met certain basic criteria. AR 368–71. Among other things,
each primary project “must have [had] at least 1 year of performance” unless one of
three exceptions applied. AR 370. In the series of questions-and-answers (“Q&As”)
that GSA provided to potential offerors as part of the procurement process (and as an
amendment to the RFP), GSA clarified that the one year of performance would be
calculated “from the date of solicitation closing,” and not from the on-ramp award date.
AR 697. Thus, for an offeror to claim and ultimately receive experience credit for a
particular project, a one-year period of performance had to be completed before the
proposal due date. Upon meeting the minimum conditions, an offeror would be
awarded base points for each primary project and could obtain additional points based
on the size and complexity of the project. AR 370, 392–95. Offerors could include up to
five primary, and additional secondary, relevant experience projects. AR 368, 377.
The RFP further provided that an offeror’s past performance evaluation and
scoring would be based only on eligible relevant experience primary projects. AR 381,
392. Again, past performance points would be dependent entirely upon a primary
project’s one-year period of performance prior to the proposal submission.
3. CMMI Certificate Provision
As part of the systems, certifications, and clearances volume, the RFP provided
that aside from the section addressing accounting systems, all other items in this
volume were “not minimum or mandatory requirements.” AR 398. On the other hand,
the RFP informed offerors that proposals “who have approved Systems, Certifications
and Clearances will be considered more favorably.” AR 398–99. The RFP outlined
various systems, certifications, and clearances that would be eligible for points,
including a Capability Maturity Model Integration (“CMMI”) certification – a process
improvement and appraisal program administered by the CMMI Institute.6 AR 399; see
AR 325 (“CMMI Certification is not mandatory; however, Contractors are encouraged
to have CMMI Maturity Level 2 or higher in acquisition, services, and/or development
during the entire term of OASIS SB.”). For offerors claiming CMMI certification, the
RFP specified that CMMI Maturity Level 2 was worth 100 points, while Level 3 or
higher was worth 200 points. AR 399.
6 See https://cmmiinstitute.com/ (last visited Apr. 23, 2021).
6
4. Direct Labor Rate Provisions
The Solicitation required offerors, in the cost/price volume, to propose a single
direct labor rate for each of the 104 labor categories identified in the RFP.7 AR 399. For
purposes of determining whether a direct labor was “fair and reasonable,” the RFP
provided a table of labor rate ranges, based on the Bureau of Labor Statistics’ National
Estimate, for each labor category. AR 386–87, 399. All proposed direct labor rates were
“strongly encouraged” to be within those ranges. AR 387. For any proposed direct
labor rate that was outside of the indicated range (whether high or low), the RFP
“strongly advised [offerors] to provide [a] clear and convincing rationale[,]” and
specified consequences for failing to do so. AR 399. In that regard, the RFP
emphasized:
CAUTION: Failure to provide clear and convincing rationale
to support a lower or higher direct labor rate outside the
ranges set forth in [the RFP], will result in a determination the
rate(s) are not fair and reasonable and the Offeror would not
be eligible for award regardless of their technical score.
AR 387 (emphasis added); see also AR 399 (“In the event the rationale is not determined
reasonable, the proposal will be deemed to have a ceiling rate(s) that is not considered
fair and reasonable and the proposal would not be eligible for award, regardless of
technical score.”).
In the series of Q&As that GSA issued, a potential offeror inquired about what
type of rationale was necessary for justifying rates that were either higher or lower than
the ranges that the RFP provided. AR 676. In response, GSA did not provide a specific
level of detail that offerors were required to include and instead referred potential
offerors to the relevant RFP language. Id. The record does not reflect that any
prospective offerors challenged the mandatory rationale language as improperly
ambiguous or otherwise contrary to law.
B. The RFP’s Evaluation Process
The RFP set forth the process for screening and evaluating each of the submitted
proposals, consisting of the following steps:
First, an evaluation team initially screened all offers to “verify that a support
document exists for all the evaluation criteria in accordance with the Offeror’s proposal
7A direct labor rate is a “labor rate[] that [is] not burdened with Indirect Rates such as Fringe
Benefits, Overhead, General and Administrative expenses, and/or Profit.” AR 386.
7
and compare it to the Offeror’s Self Scoring.” AR 389. The RFP clearly indicated that
“[a]ny discrepancies will be treated as clarifications.” Id. Only if a proposal omitted
information regarding minimum submission requirements or otherwise did not comply
with those requirements would a proposal be removed from consideration. Id.Second, all offerors were assigned a “preliminary score” based on the Symphony
self-score and then sorted from the highest score to the lowest score. Id.Third, the highest-scored offerors were identified and ranked in each Pool based
on the anticipated number of awards in each Pool (i.e., 190 for Pool 1, 160 for Pool 3, and
60 for Pool 4). Id. Starting from the highest-scored offeror, each proposal was reviewed
for compliance with the RFP’s minimum requirements and documentation instructions.
AR 389–92. Any offeror with a proposal that failed the acceptability review was
removed from consideration and the next highest-rated offeror moved up in ranking in
place of the eliminated offeror. AR 389.
Fourth, the Agency verified and validated the highest-scored offerors’ self-scores.
Id. Any claimed points that could not be substantiated led to the Agency’s deducting
those points and re-ranking the highest-scored offerors (i.e., based on the revised
score(s)). AR 389.
Fifth, after validating the scores of the putative awardees in each Pool, the
Agency assessed the cost/price of the highest-scored offerors for fairness and
reasonableness. Id. Failure to provide a fair and reasonable cost/price – or the required
rationale for prices outside of the specified range – would lead to mandatory “eliminat[ion]
from further consideration for award unless discussions are conducted.” Id.The RFP informed offerors that GSA “intends to award contracts without
discussions” but that it “reserves the right to conduct discussions if determined
necessary.” AR 388; see also AR 399 (“Cost/Price proposals may only be modified as a
result of discussions and Offerors are advised that the Government intends to make
awards based on initial proposals without discussions.”). The RFP also notified offerors
that while GSA intends to award all of the contracts for each Pool simultaneously, GSA
retains the discretion “to screen, evaluate, and award offers on a rolling basis if
determined to be in the best interest of the Government.” AR 390.
C. The Evaluation of Proposals, Initial Contract Awards, GAO Protests,
And Final Contract Awards
On June 27, 2019, WaveLink, a Huntsville, Alabama-based small business,
submitted timely, identical proposals for Pools 1 and 3. AR 1281. Symphony calculated
WaveLink’s self-score for both Pools to be [**]. AR 7922–25, 7945–48. That score was
8
comprised of a claimed [**] points for relevant experience, 4,000 points for past
performance, and [**] points for systems, certifications, and clearances. See ECF No. 1-1.
Including WaveLink, GSA received a total of 1,072 proposals: 663 proposals for
Pool 1; 284 proposals for Pool 3; and 125 proposals for Pool 4. AR 6999. From the
July 28, 2019 closing date until October 2, 2019, GSA screened and preliminarily ranked
all of the offerors in the three Pools and began evaluating the highest-ranked offerors
using the steps outlined above. AR 6940, 7002. Upon determining that 28 of the
originally awarded contractors in Pool 1 were no longer eligible for task orders due to
their small business status, GSA decided to make Pool 1 awards on a rolling basis in
three phases. AR 2397–98. On November 15, 2019, GSA awarded Pool 1 contracts to
the highest-ranked 40 offerors that did not require clarifications. AR 6820, 6952–53.
From mid-November until January 14, 2020, GSA issued clarification letters to 69 of the
next highest-ranked offerors and continued evaluating offerors. AR 6959–60. One
offeror, NetCentric Technology, LLC (“NetCentric”), received a clarification letter, in
which GSA asked NetCentric to identify where in its proposal it provided a supporting
rationale for its [**] direct labor rates that were below the RFP’s specified range. AR
9148–49. In response, NetCentric directed the Agency to its professional employee
compensation plan, which contained a “bottoms-up rationale” for all of NetCentric’s
direct labor rates. AR 9151–52. On February 13, 2020, GSA awarded additional Pool 1
contracts to the next highest-rated, 89 offerors that submitted compliant proposals.
AR 6820, 6978–82.
That same day, GSA also issued 16 unsuccessful notification letters to offerors
that were no longer eligible for an award. AR 6821. Four of the unsuccessful offerors –
NetCentric, Digiscient Corp. (“Digiscient”), People, Technology and Processes, LLC
(“PTP”), and Technology, Automation & Management, Inc. (“TeAM”) – were
eliminated for proposing direct labor rates for certain labor categories that were below
the low-end of the RFP’s specified labor rate range, without providing a supporting
justification. Id. Specifically, in the Agency’s subsequent February 19, 2020 debriefing
letter to NetCentric, GSA rejected NetCentric’s reliance on its professional employee
compensation plan as a rationale for the low direct labor rates, explaining as follows:
A review of your Professional Employee Compensation Plan
shows that the plan merely provides an explanation of the
offeror’s pricing methodology and labor and burden rates
estimating practice, which is required by every offeror, but
does not satisfy the independent requirement that offerors who are
proposing rates outside of the Section J.2 ranges supply a clear and
convincing rationale for their rates. At no point in your proposal
does your Professional Employee Compensation Plan
9
acknowledge the deviation and attempt to provide a clear and
convincing rationale, it merely outlines the general
methodology for developing rates.
AR 9156–57 (emphasis added). NetCentric, PTP, and TeAM separately filed protests
with the Government Accountability Office (“GAO”), arguing, among other things, that
the RFP required GSA to determine whether their rates were fair and reasonable,
irrespective of whether the proposed rates were outside of the specified range and even
if the offeror did not provide the required rationale for rates outside of that range. See
AR 9120–34, 9355–57, 9524–26. On March 6, 2020, GSA requested that GAO dismiss
NetCentric’s protest, contending it was an untimely challenge to the RFP’s clear
instructions that a proposal with a direct labor rate below the range would not be found
fair and reasonable and would be eliminated in the absence of a sufficient justification
for the out-of-range rate. AR 9168–72. On March 11, 2020, GAO denied GSA’s
dismissal request, without explanation, notifying the parties that “[t]he agency’s
interpretation of the terms of the solicitation is a matter that we will resolve on the
merits.” AR 9346.
On March 16, 2020, GSA issued separate notices of corrective action in all three
GAO protests, providing:
GSA will re-evaluate Protester’s direct labor rates for fairness
and reasonableness. In conducting this re-evaluation, GSA will
not consider direct labor rates that are below the ranges provided in
the Solicitation as unfair or unreasonable. GSA’s corrective
action resolves all Protest grounds and renders the Protest
academic.
AR 9347, 9510, 9673 (emphasis added). GAO subsequently dismissed each of the
protests, finding that GSA’s corrective action rendered the protests academic. AR 9349–
50, 9512–13, 9675–76.8
GSA issued further clarification letters to the remaining highest-ranked offerors
with unresolved issues in Pool 1. AR 2583, 6900. Among those that received
clarification letters were five offerors with proposed direct labor rates above the RFP’s
labor rate range, see AR 6903, 6914, 6928, 6930, one offeror that omitted a labor rate, see
8 A fourth eliminated offeror, Digiscient, also filed a GAO protest, arguing that its two direct
labor rates that were below the RFP’s range were “obvious” typographical errors. AR 9085–92,
9103–12. Although Digiscient did not contest GSA’s interpretation or application of the RFP
terms, GSA determined that its intended corrective action would cover this protest as well and,
accordingly, GAO similarly dismissed Digiscient’s protest as academic. AR 9115, 9117.
10
AR 6904, five offerors that omitted financial statements, see AR 6907, 6914, 6919–20,
6926, 6928, and one offeror that omitted its CMMI certificate documentation. See AR
6927. GSA also sent clarification letters to offerors amongst the highest-ranked in
Pool 3, including one offeror that had proposed a direct labor rate above the RFP’s labor
rate range, as well as to the highest-ranked offerors in Pool 4. AR 2750, 2873, 7109–10.
On April 29, 2020, GSA awarded the remaining Pool 1 contracts to 84 offerors,
including 20 offerors that tied for the last slot (i.e., what would have been the 190th
awardee) with a score of 6,350 points, yielding a total of 210 contracts. AR 6820, 6825.
Consistent with GSA’s “corrective action” described supra, GSA awarded contracts to 12
offerors that proposed direct labor rates below the RFP’s labor rate range. See AR 6839–
40, 6906–09, 6912, 6914, 6922, 6927. That same day, GSA awarded 163 contracts in Pool
3, including ties for the final slot with a score of 6,350 points.9 AR 6996, 7005. Again,
consistent with GSA’s “corrective action” reading of the Solicitation, GSA awarded
contracts to 18 offerors with direct labor rates below the RFP’s labor rate range. See AR
9080. Although three of these awardees pointed to their professional employee
compensation plans as the supporting rationale for their direct labor rates that were
below the RFP’s labor rate range, GSA did not evaluate these rationales, having already
determined that the low rates were fair and reasonable per se. AR 7109, 7112. GSA also
awarded 62 contracts in Pool 4. AR 7018.
On May 26, 2020, GSA notified WaveLink that its proposal was not selected for
an award because its score of [**] was below the 6,350-score threshold for an award in
Pools 1 and 3. AR 7172–73. Seventy-two offerors ranked ahead of WaveLink in Pool 1,
but only 19 offerors ranked ahead of WaveLink in Pool 3. AR 6803–06, 9081.
D. Procedural History
On June 23, 2020, WaveLink filed its complaint against the United States in this
Court. 10 ECF No. 1. Following the government’s filing of the administrative record on
July 28, 2020,11 ECF No. 22, WaveLink amended its complaint on August 10, 2020. ECF
9That the minimum point thresholds for an award in Pools 1 and 3 were identical appears to
have been purely coincidental.
10 This case originally was assigned to Judge Wheeler. ECF No. 2. DigiFlight, Inc., another
offeror with a protest case before the undersigned, filed a directly related case notice. ECF No.
15. Accordingly, the instant case was transferred on July 9, 2020, to the undersigned Judge, but
it was not consolidated with DigiFlight’s matter. ECF Nos. 16, 17.
11The government subsequently amended the administrative record four times. ECF Nos. 25,
32, 33, 43. On January 7, 2021, the government refiled in a single, consolidated filing all of the
amendments to the administrative record. ECF No. 45.
11
No. 23 (“Am. Compl.”). In the amended complaint, WaveLink alleges that the Agency:
(1) acted arbitrarily and capriciously by not allowing WaveLink to update its relevant
experience and past performance proposal volumes during the 10-month evaluation
period; (2) violated the FAR in conducting discussions with other offerors without
allowing all offerors, including WaveLink, to submit a FPR (including updated relevant
experience and past performance volumes); and (3) erred by not enforcing a mandatory
solicitation requirement, resulting in unlawful contract awards to ineligible offerors, or,
in the alternative, in failing to issue a Solicitation amendment to delete the mandatory
requirement. Am. Compl. at ¶¶ 33–89.
In support of WaveLink’s claims, WaveLink submitted a sworn declaration from
Paul Gibbs, WaveLink’s vice president of engineering. ECF No. 1-1. Mr. Gibbs avers
that, based on WaveLink’s projects in-process at the time its proposal was submitted,
WaveLink would have been able to claim an additional [**] relevant experience points
and would have qualified for a contract award in both Pools 1 and 3, had GSA
permitted WaveLink to submit a revised, updated proposal. Id. at ¶¶ 12–13. WaveLink
seeks a permanent injunction, preventing GSA from proceeding with the contract
awards in Pools 1 and 3, allowing WaveLink to update its proposal, requiring GSA to
reevaluate that proposal (and to award WaveLink a contract if the updated score
exceeds the minimum threshold for an award), in addition to “[a]ny other relief this
Court deems just and proper.” Am. Compl. at 16–17.
On August 26, 2020, WaveLink filed its motion for judgment on the
administrative record. ECF No. 27 (“Pl. MJAR”). On September 23, 2020, the
government filed its motion to dismiss for lack of standing pursuant to RCFC 12(b)(1)
or, in the alternative, a cross-motion for judgment on the administrative record. ECF
No. 30 (“Def. MJAR”). The parties filed their respective response briefs. ECF Nos. 34
(“Pl. Resp.”), 37 (“Def. Reply”). On December 10, 2020, the Court held oral argument.
ECF No. 39. Following oral argument, the Court ordered supplemental briefing to
address a variety of specific factual and legal issues that had not been sufficiently
covered in the parties’ briefs or at oral argument. ECF No. 40. Among other subjects,
the Court ordered briefing on whether GSA was required to amend the RFP before
accepting proposals with direct labor rates below the range and whether all offerors are
entitled to submit a fully revised proposal following an agency’s amending a
solicitation. Id. at 2–4. The parties filed their supplemental briefs, ECF Nos. 46 (“Pl.
Supp. Br.”), 48 (“Def. Supp. Br.”), and, after obtaining leave of the Court, WaveLink
filed a supplemental reply brief. ECF No. 51 (“Pl. Supp. Reply”). On February 25, 2021,
the Court held further oral argument. ECF No. 53.
12
E. The Intervenors Join The Case
On May 7, 2021, the Court issued a sealed opinion and order, granting, in part,
WaveLink’s MJAR and issuing injunctive relief. ECF No. 57. In that opinion and order,
the Court concluded, as explained infra, that GSA did not comply with mandatory
solicitation requirements in awarding contracts to 18 offerors in Pool 3 that proposed
direct labor rates below the suggested range without an accompanying rationale and
that WaveLink was prejudiced because, absent discussions or a solicitation amendment,
GSA should have eliminated these ineligible 18 offerors that were improperly awarded
contracts ahead of WaveLink. Id. On May 13, 2021, the government filed a motion,
requesting clarification regarding the scope of the Court’s ordered injunction, to which
WaveLink filed a response. ECF Nos. 58, 59. The next day, on May 14, 2021, the Court
held a status conference with the parties. Minute Order (May 13, 2021).
During that status conference, the Court learned, for the first time, that neither
WaveLink nor the government ever informed these 18 contract awardees about the
filing of the instant bid protest. The Court concluded that due process considerations
required staying the previously ordered injunctive relief to provide the potentially
impacted awardees with an opportunity to intervene. Accordingly, the Court further
directed the government to notify the 18 impacted contract awardees regarding this
case and provided each of them an opportunity to file a motion to intervene. ECF No.
62. Ultimately, eight such awardees filed timely motions to intervene, all of which were
granted. ECF No. 63 (Kalman & Company, Inc. (“Kalman”)); ECF No. 67 (Research
and Engineering Development LLC (“RED”)); ECF No. 72 (Nova Technologies An
Employee Owned Engineering Company (“Nova”)); ECF No. 78 (ISYS, Inc. (“ISYS”));
ECF No. 83 (NetCentric); ECF No. 89 (GaN Corp. (“GaN”)); ECF No. 96 (Boecore, Inc.);
ECF No. 99 (DUCOM, Inc.). The Court provided each defendant-intervenor the
opportunity to file a brief to present their respective views on the Court’s May 7, 2021
decision. ECF No. 101.
On June 9, 2021, six of the eight defendant-intervenors filed briefs with the Court.
See ECF No. 104 (“ISYS Br.”); ECF No. 105 (“Kalman Br.”); ECF No. 106 (“NetCentric
Br.”); ECF No. 107 (“RED Br.”); ECF No. 108 (“Nova Br.”); ECF No. 109 (“GaN Br.”).
On June 16, 2021, the Court held a status conference with all of the parties, for the
primary purpose of hearing argument from the defendant-intervenors that filed briefs.
ECF No. 103.
II. Jurisdiction And Standing
The Tucker Act, as amended by the Administrative Dispute Resolution Act of
1996, Pub. L. No. 104-320, 110 Stat. 3870, provides this Court with “jurisdiction to
13
render judgment on an action by an interested party objecting to a solicitation by a
Federal agency for bids or proposals for a proposed contract or to a proposed award or
the award of a contract or any alleged violation of statute or regulation in connection
with a procurement or a proposed procurement.” 28 U.S.C. § 1491(b)(1). “An
interested party is an actual or prospective bidder whose direct economic interest
would be affected by the award of the contract.” Digitalis Educ. Sols., Inc. v. United
States, 664 F.3d 1380, 1384 (Fed. Cir. 2012). To satisfy the “direct economic interest”
requirement in a post-award bid protest, a plaintiff “must show that there was a
‘substantial chance’ it would have received the contract award but for the alleged error
in the procurement process.” Info. Tech. & Applications Corp. v. United States, 316 F.3d
1312, 1319 (Fed. Cir. 2003) (quoting Alfa Laval Separation, Inc. v. United States, 175 F.3d
1365, 1367 (Fed. Cir. 1999)).
WaveLink was an actual bidder, as it submitted timely proposals for Pool 1 and
Pool 3 before the June 28, 2019 deadline for proposals. AR 1281. WaveLink alleges that
it was directly harmed in either of two concrete ways: (1) that the Agency failed to
allow WaveLink to increase its score through updating its relevant experience and past
performance points in Pool 1 and Pool 3 during an unreasonably lengthy evaluation
period or via a FPR as a result of the alleged discussions or the amendment that the
Agency should have issued; and (2) that, even if WaveLink’s score would have
remained the same, it would have been eligible for an award in Pool 3 because the
Agency should have eliminated numerous ineligible offerors that were improperly
awarded contracts ahead of WaveLink. Pl. MJAR at 23, 26, 30–32. In its supplemental
brief, WaveLink further contends that even among the unsuccessful offerors ranked
ahead of WaveLink, there were (a) two ineligible offerors due to their not having
provided a rationale justifying direct labor rates below the RFP’s rate range, and (b)
three other offerors identified in GSA’s evaluation spreadsheet as subject to “[r]emoval”
from the competition. Pl. Supp. Br. at 12–16, 22 (citing AR 9081).
The government counters that WaveLink lacks a “direct economic interest”
because “[t]here are 72 contractors in Pool 1 and 19 contractors in Pool 3 that had higher
scores than WaveLink but did not receive an award” and “WaveLink’s
arguments . . . rest on the assumption that if GSA requested relevant experience and
past performance information, no other contractors would claim additional points.”
Def. MJAR at 19–20; see Def. Reply at 2–4. Moreover, the government argues, with
respect to Pool 3, that even if the Court concurs that certain offerors were ineligible
based on their low direct labor rates (and the missing rationale for those rates),
WaveLink still would have been outside of the 160 highest-ranked offerors. Def. Reply
at 4–7. The government also disputes WaveLink’s factual contention that the three
offerors marked for “removal” were ineligible for an award. Def. Supp. Br. at 13–14.
14
As “standing is a threshold jurisdictional issue” and “prejudice (or injury) is a
necessary element of standing[,]” Myers Investigative & Sec. Servs., Inc. v. United States,
275 F.3d 1366, 1369–70 (Fed. Cir. 2002), the Court must address the government’s
motion to dismiss for lack of standing before reaching the merits of this case. See Media
Techs. Licensing, LLC v. Upper Deck Co., 334 F.3d 1366, 1370 (Fed. Cir. 2003) (“Because
standing is jurisdictional, lack of standing precludes a ruling on the merits.”). Although
the prejudice inquiry for standing purposes is similar to the merits prejudice inquiry, at
the early, jurisdictional stage the actual “lawfulness of the contested agency decisions is
. . . wholly immaterial . . . . Rather, this showing turns entirely on the impact that the
alleged procurement errors had on a plaintiff’s prospects for award, taking the
allegations as true.” Linc Gov’t Servs., LLC v. United States, 96 Fed. Cl. 672, 694–95 (2010);
see L-3 Commc'ns Corp. v. United States, 99 Fed. Cl. 283, 289 (2011) (“[T]he prejudice
determination for purposes of standing assumes all non-frivolous allegations to be true,
whereas the post-merits prejudice determination is based only on those allegations
which have been proven true.”). Only “once we find that a party has standing,” do we
“turn to the merits of the party’s claim and determine whether it can prove it was
prejudiced based on the record evidence.” Am. Relocation Connections, L.L.C. v. United
States, 789 F. App’x 221, 226–27 (Fed. Cir. 2019).
While the government is correct that under WaveLink’s first theory of prejudice,
other offerors also could have improved their scores, that does not undermine
WaveLink’s standing to bring this case. The United States Court of Appeals for the
Federal Circuit’s decision in Information Technology. & Applications Corp. v. United States,
316 F.3d 1312 (Fed. Cir. 2003), is instructive on this point. In Information Technology, a
post-award bid protest case, the agency intended to award one contract and received
proposals from three offerors. 316 F.3d at 1315–16. Following award of the contract to
the highest-rated offeror, the protester alleged that but for the agency’s failure to
conduct discussions with all offerors pursuant to FAR 15.206(d),12 the protester would
have been able to cure the deficiencies with its cost estimate and thus improve its
position to receive an award. Id. at 1319. The Federal Circuit held that the protester had
standing because had the agency engaged in discussions with the protester, “its
proposal would have been improved and its chances of securing the contract increased
if the problem with its cost estimate had been cured.” Id. The Federal Circuit thus
concluded that had the agency resolicited the contract, the protester would have a
“greater than an insubstantial chance of securing the contract.” Id. (emphasis added).
12As discussed infra, see Section IV.B., FAR 15.306(d) requires that when an agency conducts
discussions with one offeror, discussions must be held with each of the offerors in the
competitive range.
15
Accordingly, the Federal Circuit was unconcerned with the possibility that other
offerors also would be able to revise and enhance their proposals due to discussions.
This is because, in the words of the Federal Circuit, all that a protester must show is a
“greater than an insubstantial chance of securing the contract.” Info. Tech., 316 F.3d at
1319. Here, WaveLink has done exactly that – it has sufficiently alleged that had it been
able to revise its proposal by providing updated relevant experience information,
WaveLink, at a minimum, would have had an increased chance of being awarded a
contract. See Precision Asset Mgmt. Corp. v. United States, 125 Fed. Cl. 228, 233 (2016)
(“Notably, the substantial chance requirement does not mean that plaintiff must prove
it was next in line for the award but for the government’s errors.”); see also Square One
Armoring Serv., Inc. v. United States, 123 Fed. Cl. 309, 323–24 (2015) (rejecting the
government’s argument that protester lacked standing notwithstanding that if all
offerors were reevaluated, other lower-priced offerors could have been rated more
acceptable than the protester).
Furthermore, the Court finds that WaveLink has standing under its alternative
theory of prejudice in Pool 3. The government relies on two decisions from this Court:
Octo Consulting Grp., Inc. v. United States, 124 Fed. Cl. 462 (2015) (“Octo Consulting I”),
and Octo Consulting Grp., Inc. v. United States, 2018 WL 2731416 (Fed. Cl. May 29, 2018)
(“Octo Consulting II”), for the proposition that a protester lacks standing where a
protester’s “ranking nevertheless fell outside the contemplated number of awards”
even after excluding noncompliant offers. Def. Reply at 6–7. The government’s reliance
on these cases misses the mark. Both of these cases involved procurements in which
during the evaluation process, all of the offerors’ technical scores were actually
reviewed and validated before identifying the highest-scoring offerors. The resulting
rankings, thus, were based on an actual evaluation of all offerors and were not subject
to further re-sorting based on point deductions resulting from the agency’s verification
of self-scores. Put simply, in both Octo Consulting decisions, the rankings demonstrated
with precision where the protester was ranked in relation to the contemplated number
of awards and how many other offerors (not awarded a contract) had received a higher
rank than the protester.
In Octo Consulting I, 124 Fed. Cl. 462, the agency first evaluated all 85 compliant
quotes before determining the 20 lowest priced, exceptionally rated quotes and then
awarded 16 contracts. Id. at 464–65. The protester was ranked twenty-third. Id. Thus,
notwithstanding the agency’s alleged error in awarding four of the contracts, the
protester lacked a substantial chance of winning the contract due to the two offerors
that were ahead. Id. at 468. Likewise, in Octo Consulting II, 2018 WL 2731416, the
agency conducted a technical evaluation of all 170 offerors before selecting the highest-
scored offerors for price evaluation and then awarded 60 contracts. Id. at *5. The
16
protester, ranked sixty-eight, alleged that the agency unlawfully awarded one of the
contracts. Id. at *13. The case was dismissed because the protester was seven positions
outside of the anticipated award zone and, given the rankings, the protester could not
show prejudice. Id. In these cases, where the protester is definitively and demonstrably
not “next in line for award” even assuming the validity of the protest grounds, it is
unsurprising that a “direct economic interest” is lacking.
In contrast, the RFP at issue in this case expressly provided that only the highest-
rated offerors in each Pool – based on the anticipated number of contract awards (e.g.,
160 offerors in Pool 3) – would have their self-scoring verified and validated by the
Agency. AR 389. Due to the RFP’s unique self-scoring feature, the Agency determined
the 160 highest-scoring offerors for further review and verification based on the
preliminary self-scores, most importantly without conducting a technical evaluation and
verification of all the offerors’ claimed points. In other words, all offerors with a self-
score outside the first, validated top-160 offerors, including WaveLink, never had their
scores verified and validated.13 Again, that ranking was made purely on the basis of the
preliminary, but unverified, self-scoring. Indeed, the government conceded during oral
argument that the rankings for these offerors were not actually verified scores and
could still be subject to re-sorting because of point deductions. See ECF No. 55 (“Supp.
Oral Arg. Tr.”) at 27–29. This is the critical distinction in the evaluation process of the
RFP at issue, on the one hand, and the evaluation process addressed in the cases cited
by the government, on the other.
To the extent that the government disputes WaveLink’s characterization of
certain other competitor offerors as having been removed from consideration, that is a
merits question, not a standing one. That is because “before reaching the merits of the
parties’ dispute, the court conducts only a ‘limited review’ of the plaintiff[‘]s allegations
and the administrative record for the ‘minimum requisite evidence necessary for
plaintiff to demonstrate prejudice and therefore standing.’” Magnum Opus Techs., Inc. v.
United States, 94 Fed. Cl. 512, 530 n.12 (2010) (quoting Night Vision Corp. v. United States,
68 Fed. Cl. 368, 392 & n.23 (2005)). While the government may have an alternative (and
valid) explanation for the “removal” label assigned to several of the offerors that the
government maintains are ahead of WaveLink, “[a]t this point in the inquiry, we
assume the well-pled allegations of error to be true.” Digitalis Educ. Sols., Inc. v. United
States, 97 Fed. Cl. 89, 94 (2011), aff’d, 664 F.3d 1380 (Fed. Cir. 2012). Regardless of
13
While all offerors were initially screened, that was only to ensure that offerors submitted
required supporting documentation, but not to evaluate whether such documentation was
substantively accurate or supported the claimed points. AR 389.
17
WaveLink’s merits case, the Court concludes that WaveLink has established standing
sufficient to have its claims concerning both Pool 1 and Pool 3 decided on the merits.
III. Standards of Review
Judgment on the administrative record pursuant to RCFC 52.1, “is properly
understood as intending to provide for an expedited trial on the record.” Bannum, Inc.
v. United States, 404 F.3d 1346, 1356 (Fed. Cir. 2005). The rule requires the Court “to
make factual findings from the record evidence as if it were conducting a trial on the
record.” Id. at 1354. The Court asks whether, given all the disputed and undisputed
facts, a party has met its burden of proof based on the record evidence. Id. at 1356–57.
Generally, in an action brought pursuant to § 1491(b) of the Tucker Act, the
Court reviews “the agency’s actions according to the standards set forth in the
Administrative Procedure Act, 5 U.S.C. § 706.” See Nat’l Gov't Servs., Inc. v. United
States, 923 F.3d 977, 981 (Fed. Cir. 2019). Pursuant to the Administrative Procedure Act
(“APA”) standard, the Court asks, “whether the agency’s action was arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with law.” Id.(quoting 5 U.S.C. § 706(2)). In other words, the Court must “determine whether ‘(1) the
procurement official’s decision lacked a rational basis; or (2) the procurement procedure
involved a violation of regulation or procedure.’” Id. (quoting Weeks Marine, Inc. v.
United States, 575 F.3d 1352, 1358 (Fed. Cir. 2009)).
“When a challenge is brought on the first ground, the test is whether the
contracting agency provided a coherent and reasonable explanation of its exercise of
discretion, and the disappointed bidder bears a heavy burden of showing that the
award decision had no rational basis.” Banknote Corp. of Am., Inc. v. United States, 365
F.3d 1345, 1351 (Fed. Cir. 2004) (internal quotation marks omitted). “When a challenge
is brought on the second ground, the disappointed bidder must show a clear and
prejudicial violation of applicable statutes or regulations.” Impresa Construzioni Geom.
Domenico Garufi v. United States, 238 F.3d 1324, 1333 (Fed. Cir. 2001). To establish
prejudice in a post-award challenge, a protester must further demonstrate that “‘but for
the alleged error, there was a substantial chance that it would receive an award–that it
was within the zone of active consideration.’” Allied Tech. Grp., Inc. v. United States, 649
F.3d 1320, 1326 (Fed. Cir. 2011) (brackets omitted) (quoting Statistica, Inc. v. Christopher,
102 F.3d 1577, 1581 (Fed. Cir. 1996)). Simply put, “a protester is not required to show
that but for the alleged error, the protester would have been awarded the contract.”
Data Gen. Corp. v. Johnson, 78 F.3d 1556, 1562 (Fed. Cir. 1996); see Navarro Rsch. & Eng’g,
Inc. v. United States, 151 Fed. Cl. 184, 192 (2020) (“The substantial chance requirement
does not mean that plaintiff must prove it was next in line for the award but for the
government’s errors.”).
18
IV. Discussion
A. GSA Properly Precluded WaveLink From Updating Its Proposal During
The Evaluation Period
WaveLink, in Counts I and II of its amended complaint, contends that GSA acted
in an arbitrary and capricious manner by “allow[ing] 10 months to lapse after obtaining
proposals from offerors” without seeking updated proposals. Am. Compl. at ¶¶ 33–47;
Pl. MJAR at 14. In that regard, WaveLink asserts that GSA “never even considered
whether to update the 10-month old information that represented over 80% of the
evaluation criteria” and instead “proceed[ed] with a source selection decision without
requesting updated information on relevant experience and past performance.” Id. at
16, 21. WaveLink, thus, concludes that GSA fails the APA standard of review because
the Agency “‘failed to consider an important aspect of the problem.’” Id. at 15 (quoting
Charles F. Day & Assoc., LLC v. United States, 120 Fed. Cl. 767, 770 (2015)). WaveLink
also contends that GSA violated applicable procurement law by not awarding contracts
with “reasonable promptness”14 and not considering an offeror’s most “current and
relevant” information. Pl. MAJR at 17.
As a threshold matter, the government asserts that WaveLink waived this claim
by not protesting in a timely manner pursuant to Blue & Gold Fleet, L.P. v. United States,
492 F.3d 1308 (Fed. Cir. 2007).15 Def. MJAR at 21–25; Def. Reply at 9. In Blue & Gold, the
Federal Circuit held that a protester that “has the opportunity to object to the terms of a
government solicitation containing a patent error and fails to do so prior to the close of
the bidding process waives its ability to raise the same objection subsequently in a bid
protest action in the Court of Federal Claims.”16 492 F.3d at 1313. In the government’s
14WaveLink quotes this language from 10 U.S.C. § 2305(b)(4)(C). That statute, however, only
governs Department of Defense contracts. To the extent that this language is relevant,
WaveLink likely should have cited 41 U.S.C. § 3703(c), which similarly provides that an
“executive agency shall award a contract with reasonable promptness to the responsible source
whose proposal is most advantageous to the Federal Government.”
15The government raises its Blue & Gold waiver argument as a basis for granting the
government’s motion for judgment on the administrative record pursuant to RCFC 52.1. See
Def. MJAR at 21 (“If the Court does not dismiss the amended complaint, it should enter
judgment on the administrative record in favor of the United States because the administrative
record demonstrates that WaveLink has waived its challenge to the solicitation terms . . . .”).
The Blue & Gold waiver rule, however, is better understood as grounds for dismissal of a
plaintiff’s complaint pursuant to RCFC 12(b)(6) for failure to state a claim upon which relief can
be granted. See SEKRI, Inc. v. United States, 152 Fed. Cl. 742, 752–53 (2021).
16This doctrine “was established to prevent contractors from taking advantage of the
government, protect other bidders by assuring that all bidders bid on the same specifications,
19
view, because WaveLink challenges a Solicitation term providing that relevant
experience project submissions must have a one-year period of performance before the
due date for proposals, WaveLink forfeited any right to relief by not protesting before
final proposals were due. Def. MJAR at 21–25; Def. Reply at 9.
The Court disagrees with the government’s characterization of WaveLink’s
challenge. While the government is correct, of course, that the Blue & Gold waiver rule
precludes WaveLink from challenging a Solicitation term, WaveLink may protest errors
in the proposal evaluation process. “[A]s a general matter, a bidder cannot be expected
to challenge an agency’s evaluation of bids, in contrast to the terms of the solicitation,
until the evaluation occurs.” Bannum, Inc. v. United States, 779 F.3d 1376, 1381 (Fed. Cir.
2015). Moreover, as recently affirmed by the Federal Circuit, the Blue & Gold waiver
rule only applies in situations where a plaintiff “exercising reasonable and customary
care would have been on notice of the now-alleged defect in the solicitation long before
awards were made.” Inserso Corp. v. United States, 961 F.3d 1343, 1352 (Fed. Cir. 2020);
see Phoenix Mgmt., Inc. v. United States, 125 Fed. Cl. 170, 182 (2016) (“the purpose of the
waiver rule was to prevent an offeror with knowledge of a solicitation defect from sitting on
that knowledge until after the procuring agency awarded the contract” (emphasis
added)). In that regard, WaveLink does not contend that the one-year period of
performance term is invalid or arbitrary or irrational; rather, WaveLink argues only that
GSA’s lengthy 10-month evaluation process rendered the originally submitted past
performance and relevant experience volumes “stale and outdated by the time of the
April 2020 source selection decision.” Pl. MJAR at 1. In other words, WaveLink is not
asserting that the Agency may not provide parameters for the experience references, but
only that the length of the evaluation process ultimately rendered those parameters
arbitrary and capricious. WaveLink did not have notice prior to the award
announcements in April 2020 that GSA would take 10 months to evaluate and award
the contracts. See RMGS, Inc. v. United States, 140 Fed. Cl. 728, 742 (2018) (rejecting
application of waiver rule to the plaintiff’s “unreasonable delay” in awarding the
contract argument because the duration of the agency’s evaluation process was “a fact
which [the plaintiff] could not have known precisely until after awards were
announced”). Accordingly, WaveLink’s claim is timely pursuant to Blue & Gold.
1. The Agency Did Not Act In An Arbitrary And Capricious Manner
Turning to the merits of WaveLink’s initial argument that “an award may
become irrational if an agency allows a significant amount of time to pass between its
and materially aid the administration of government contracts by requiring that ambiguities be
raised before the contract is bid, thus avoiding costly litigation after the fact.” Blue & Gold, 492
F.3d at 1313–14 (citation omitted).
20
collection of information and its source selection decision[,]” Pl. MAJR at 17–18, this
Court is mindful that the APA rational basis standard of review is “highly deferential”
and that “the court should not substitute its judgment for that of the agency.” CW Gov’t
Travel, Inc. v. United States, 110 Fed. Cl. 462, 479 (2013). “Contracting officers are
‘entitled to exercise discretion upon a broad range of issues confronting them in the
procurement process.’” Savantage Fin. Servs. v. United States, 595 F.3d 1282, 1286 (Fed.
Cir. 2010) (quoting Impresa Construzioni, 238 F.3d at 1332). Indeed, “[t]his court will
interfere with the government procurement process ‘only in extremely limited
circumstances.’” EP Prods., 63 Fed. Cl. at 223 (quoting CACI, Inc.-Fed. v. United States,
719 F.2d 1567, 1581 (Fed. Cir. 1983)).
Here, GSA determined that on-ramping hundreds of additional small businesses
contractors into Pools 1, 3, and 4 of the OASIS SB was consistent with “the
Government’s best interest that there remain an adequate number of Contractors
eligible to compete for task orders in each OASIS SB Contract to meet the Government’s
professional service mission requirements.” AR 332. GSA acted within its discretion to
consolidate the on-ramping for all three Pools into one RFP for purposes of evaluating
the numerous proposals, as offerors were permitted to submit the same proposal for all
three Pools provided that the offerors met the relevant small business size standard.
AR 6996. As a result, GSA had to evaluate 1,072 proposals across the three Pools. AR
6999. GSA sufficiently documented its reasoning for prioritizing the evaluation of
proposals for, and the award of contracts within, Pool 1. AR 2397–98. Indeed, as part of
this on-ramp process, GSA sent hundreds of clarification letters to offerors across all
three Pools, eliciting hundreds of responses (totaling thousands of pages), which then
needed to be reviewed and evaluated. See, e.g., AR 2583, 2750, 2873, 6959–60. Given the
sizable scale of this procurement, the Court finds it hardly surprising that GSA took 10
months to screen, evaluate, seek clarifications, reevaluate, and, ultimately, award
hundreds of contracts across the three Pools. GAO protests and GSA’s subsequent
corrective action further contributed to the legitimate delay of this procurement. AR
9115–18, 9168–72, 9346–50, 9510–13, 9673–76. Under these facts, the Court finds that the
Agency reasonably took 10 months from accepting proposals until its final award
decisions with respect to all of the contracts across the three Pools.
Consistent with this understanding, the Court finds that WaveLink’s argument
that GSA “failed to consider an important aspect of the problem,” Pl. MJAR at 15, is
entirely without merit. WaveLink presumes a problem and then proposes an analysis
that, in WaveLink’s view, GSA should have undertaken but did not. See id. at 16
(“However, nothing in the Administrative Record indicates that GSA ever performed
such an analysis.”). Because GSA conducted the evaluation of the proposals in a
reasonable manner, and in a reasonable time period, GSA was not required to analyze
21
whether offerors’ relevant experience and past performance information had become
“stale” during the 10-month evaluation process. Indeed, WaveLink provides no
limiting principle as to when information that was current at the time of submission
may become stale during proposal evaluations. If an agency were always required to
obtain “updated” information, the evaluation stage of a complex procurement would
never end. There is nothing irrational about an agency not reopening the proposal
process simply for an offeror to provide new information that was not available at the
time of initial proposal submissions. That reopening the proposal process might have
worked to WaveLink’s advantage, does not mean the Agency was required to do so.17
2. The Agency Was Not Required By Law To Obtain Updated
Proposals
WaveLink directs the Court to various statutory and regulatory authorities that,
in WaveLink’s view, should require evaluation of only the most current and relevant
proposal information at any given time. Id. at 16–20 (citing 41 U.S.C. § 1126 and FAR
15.305(a)(2)(i)). Finally, WaveLink argues that pursuant to FAR 15.306(a)(2), “GSA had
the authority to obtain updated past performance information without opening
discussions.” Pl. MJAR at 22. The Court is unpersuaded.
Section 1126 of Title 41 of the United States Code articulates the federal
government’s policy that agencies should ensure that “offerors are afforded an
opportunity to submit relevant information on past contract performance[.]” Similarly,
FAR 15.305(a)(2)(i) provides that because “[p]ast performance is one indicator of an
offeror’s ability to perform the contract successfully[, t]he currency and relevance of the
information . . . shall be considered.” To the extent that either of these authorities
require an agency to constantly inquire from an offeror whether the submitted
information is the most current and relevant – and they most certainly do not – these
authorities concern “past performance,” not the “relevant experience” volume about
which WaveLink primarily complains.
17The lone authority that WaveLink cites for this proposition, New Hampshire-Vermont Health
Services, B-189603, 78-1 CPD ¶ 202, 1978 WL 13386 (Mar. 15, 1978), is a decades-old GAO
decision that involved a procurement in which the relevant agency required offerors to submit
past performance ratings that were seven months old. Id. at *7–*9. GAO held that such
evaluations “should be based on the most current information available.” Id. at *8. That
decision, however, involved the validity of information at the time of proposal submission and
thus the offeror never had an opportunity for the agency to consider the offeror’s most recent,
relevant information. Here, WaveLink was afforded such an opportunity at the time of
proposal submission but now wants a perpetual update process. This GAO decision does not
support such an argument.
22
As the government correctly points out, see Def. Reply at 10, WaveLink claimed
the maximum 4,000 points for past performance. Obviously, WaveLink could not have
been prejudiced by not being permitted to update its past performance volume. Rather,
WaveLink could be prejudiced, if anywhere, only by the Agency’s not asking for, and
considering, updated relevant experience information. See ECF No. 1-1. In particular,
WaveLink sought to provide updated relevant experience information that (allegedly)
would have increased its score from [**] points to [**] points. Id. While WaveLink
contends that past performance and relevant experience are “two sides to the same
coin,” ECF No. 42 (“Oral Arg. Tr.”) at 56, WaveLink is mistaken to the point that its
argument borders on frivolous. As the RFP makes perfectly clear, offerors submitted
distinct volumes addressing these two factors and they were separately evaluated and
scored. AR 370, 381. This is because “[e]xperience is the amount of relevant experience
an offeror has[,]” while “[p]ast performance is how well an offeror performed.” Ralph
C. Nash & John Cibinic, Postscript III: Experience Requirements in Best Value Procurements,
16 No. 4 Nash & Cibinic Rep. ¶ 17 (2002). Because the statute and regulation upon
which WaveLink relies relate only to past performance, GSA could not have violated
those provisions simply by declining to permit an updated relevant experience volume.
For the same reason, GSA could not have obtained this information from
WaveLink without opening discussions pursuant to FAR 15.306(a)(2). This provision of
the FAR permits an agency to seek clarification of “the relevance of an offeror’s past
performance information and adverse past performance information to which the offeror
has not previously had an opportunity to respond[.]” FAR 15.306 (a)(2) (emphasis
added). Again, past performance is not the same thing as relevant experience in the
context of this RFP. On the contrary, as discussed infra, see Section IV.B., had the
Agency engaged in communications with WaveLink seeking updated relevant
experience information, that would have constituted discussions, something the Agency
assiduously avoided.
B. GSA Did Not Conduct Discussions With Other Offerors
Clarifications are “limited exchanges” in which “offerors may be given the
opportunity to clarify certain aspects of proposals . . . or to resolve minor or clerical
errors.” FAR 15.306(a)(1), (2). “Clarifications are not to be used to cure proposal
deficiencies or material omissions, materially alter the technical or cost elements of the
proposal, or otherwise revise the proposal.” Dell Fed. Sys., L.P. v. United States, 906 F.3d
982, 998 (Fed. Cir. 2018) (citation omitted). Importantly, as the permissive (“may be
given the opportunity”) language of FAR 15.306(a)(2) indicates, “the Government is
permitted—but not required” to engage in clarifications. Safeguard Base Operations, LLC
v. United States, 989 F.3d 1326, 1346 (Fed. Cir. 2021). An agency will be found to have
abused its discretion in not seeking clarifications only when “it should have discerned
23
that the protestor made an error rather than a deliberate decision.” Telesis Corp. v.
United States, 140 Fed. Cl. 765, 771–72 (2018).
FAR 15.306(d) also authorizes agencies to conduct “discussions” with offerors
once the competitive range is determined. Discussions “are intended to maximize the
Government’s ability to obtain the ‘best value’ in a procurement.” Afghan Amer. Army
Servs. Corp. v. United States, 90 Fed. Cl. 341, 361 (2009). “If the agency decides to award
the contract after holding discussions, it must hold discussions with all responsible
offerors within the competitive range.” Info. Tech., 316 F.3d at 1312 (internal quotation
marks omitted). Once discussions have occurred, “each offeror still in the competitive
range shall be given an opportunity to submit a final proposal revision” – referred to as
a “FPR.” FAR 15.307(b); see Omniplex World Servs. Corp. v. United States, 105 Fed. Cl. 706,
715–20 (2012). Accordingly, “[t]he acid test for deciding whether an agency has
engaged in discussions is whether the agency has provided an opportunity for
quotations or proposals to be revised or modified.” Consol. Eng’g Servs., Inc. v. United
States, 64 Fed. Cl. 617, 626 (2005) (citation omitted).
WaveLink, in Count III of its amended complaint, contends that GSA conducted
discussions with various offerors in Pool 1 and Pool 3 by permitting them to revise
different parts of their proposals to address deficiencies or to make corrections. Am.
Compl. at ¶¶ 48–80; Pl. MJAR at 23–26. WaveLink argues that it likewise should have
been afforded the opportunity to revise its proposal – namely, to update its relevant
experience and past performance volumes.18 Id. at 26. The government primarily
counters that all of these communications merely amounted to clarifications, not
discussions.19 Def. MJAR at 30–34. These communications can be grouped into three
categories, none of which constitute discussions with other offerors.
18As noted supra, see Section IV.A, because WaveLink received the maximum allowable points
for past performance, it could not have been prejudiced when GSA did not ask for or permit
WaveLink to submit an updated past performance volume.
19The government additionally argues that even assuming the Agency conducted discussions,
WaveLink still would not be entitled to submit a fully revised proposal because allowing
updated relevant experience that did not comply with the one year of performance requirement
“would have contravened the terms of the solicitation.” Def. MJAR at 34. The government also
contends that only offerors within the “competitive range” are entitled to submit a fully revised
proposal, and, here, the Agency effectively made a competitive range decision based on its
determination to evaluate only the highest-ranked offerors given the anticipated number of
awards in each Pool. Def. Supp. Br. at 4–7. Neither of these arguments is persuasive. The RFP
did not specify from when the one year of performance would be calculated. See AR 370. While
GSA clarified in the Q&As that “[t]he 1 year period of performance would be from the date of
solicitation closing,” AR 697, this reasonably could be understood to only require one year of
performance by the time final proposals are submitted. Thus, to the extent that GSA conducted
24
First, an agency may seek clarifications from offerors for the purpose of
“eliminating minor irregularities, informalities, or apparent clerical mistakes in the
proposal.” Info. Tech., 316 F.3d at 1321. Moreover, clarifications are appropriate “when
‘the existence of the mistake and the amount intended by the offeror is clear from the
face of the proposal.’” ManTech Advanced Sys. Int’l, Inc. v. United States, 141 Fed. Cl. 493,
508 (2019) (quoting DynCorp Int’l LLC v. United States, 76 Fed. Cl. 528, 545 (2007)). Here,
the Agency permitted six offerors to correct direct labor rates that were higher than the
RFP’s labor rate range – five offerors in Pool 1 and one in Pool 3 – and, additionally, one
offeror in Pool 1 that entirely omitted a labor rate. All of these communications,
however, merely amounted to correcting mistakes that were either clearly clerical or
relatively minor errors or where the information was readily present elsewhere in the
proposal.
For example, [**] erroneously provided one labor rate at $[**] instead of $[**],
which was the correct rate identified in a different spreadsheet tab delineating the same
or similar data. AR 6903. [**] provided a direct labor rate of $[**] where the intended
rate was $[**] – a clear transposition error. Id. Based on the pattern of pricing in [**]’s
offer, it was readily apparent that the one rate which deviated from that pattern was a
clerical error. AR 6914. [**]’s offer, similarly, contained a single rate which deviated
from the pattern of all the other rates in its proposal. AR 6928. [**] erroneously
rounded one of its rates, causing it to be $0.01 over the RFP’s specified range. AR 6930.
[**]’s proposal included one rate of $[**], where the intended rate should have been $[**]
– a difference of one digit. AR 7109–10. Finally, [**] omitted one rate on a spreadsheet
tab, but another tab contained the applicable rate and its supporting documents
“demonstrat[ed] that they intended to provide the exact same direct labor rates on both
discussions triggering the rule that all offerors could submit a FPR, it would not contravene the
RFP’s terms for WaveLink to include projects that were completed after the June 28, 2019 due
date for initial proposals, but before any FPR (so long as such projects spanned a year).
Regarding the government’s “competitive range” argument, the Court firmly rejects the notion
that an agency can create a competitive range before an agency even contemplates conducting
discussions. In that regard, FAR 15.306(c) expressly provides that “[a]gencies shall evaluate all
proposals in accordance with 15.305(a), and, if discussions are to be conducted, establish the
competitive range” (emphasis added). Here, offerors were ranked based on their preliminary
score only for determining which proposals to evaluate, and the RFP specified that GSA
“intends to award contracts without discussions” unless determined to be necessary. AR 388–
89. As GSA did not contemplate conducting discussions, and denies having engaged in
discussions, the preliminary rankings cannot themselves constitute a competitive range. To the
extent that GSA may have later conducted discussions with specific offerors, GSA cannot
retroactively rely on its determination to only evaluate the highest-ranked offerors (based on
the anticipated amount of awards in each respective Pool) to be construed as a competitive
range determination.
25
. . . tabs of their Volume 6 [pricing] template.” AR 6904. In sum, none of these
communications constituted discussions.
Second, this Court has “approvingly cited GAO cases” holding that “exchanges
concerning an element of responsibility . . . do not constitute discussions.” DynCorp
Int’l, 76 Fed. Cl. at 546–47; see Octo Consulting II, 2018 WL 2731416, at *12
(“[C]ommunications based on a responsibility determination in accordance with the
FAR, does not open up discussions for other areas to include those related to
responsiveness.”).20 The RFP instructed offerors to submit financial statements for the
responsibility volume, not as part of the cost/price volume. Because the financial
information that GSA sought from five offerors in Pool 1, see AR 6907, 6914, 6919–20,
6926, 6928, “relates to offeror responsibility, rather than proposal evaluation, [the
exchanges do] not constitute discussions and thus [do] not trigger the requirement to
hold discussions with the other competitive range offerors.” Gen. Dynamics-Ordinance &
Tactical Sys., B-295987, 2005 CPD ¶ 11, 2005 WL 1468418, *9 (May 20, 2005); see Lawson
Enviro. Servs., LLC v. United States, 126 Fed. Cl. 233, 247 (2016) (holding that “an offeror
may present evidence subsequent to proposal submission but prior to award to
demonstrate the bidder’s responsibility” without triggering discussions); Supreme
Foodservice GmbH v. United States, 112 Fed. Cl. 402, 419–24 (2013) (“The Agency engaged
in a responsibility evaluation, not discussions.”).
Third, a single offeror in Pool 1, Spinvi Consulting, LLC (“Spinvi”), omitted its
CMMI certificate documentation from its proposal. Pursuant to the RFP, however,
offerors were not required to submit a CMMI certificate to claim and ultimately receive
points. AR 398–99. On April 2, 2020, GSA sent a clarification letter to Spinvi that
provided, in part, as follows:
The purpose of this letter is to request clarification pursuant
to FAR Part 15.306(a)(1) regarding your firm’s proposal
submission in response to the subject Solicitation. In
conducting our initial review of your proposal, we found the
following discrepancies between your proposal
documentation and the Solicitation requirements:
• Solicitation L.5.5.5 describes the requirements for claiming
credit for a L.5.5.5. CMMI Maturity Level 2 Certification
(or higher).
20“Though GAO opinions are not binding on this court, . . . this court may draw on GAO’s
opinions for its application of this expertise.” Allied Tech. Grp., 649 F.3d at 1331 n.1.
26
o The Government is unable to locate any supporting
documentation in your proposal to support the points
claimed for CMMI Level 2.
AR 4872. Spinvi subsequently provided GSA with the CMMI supporting documents
and was awarded a contract in Pool 1. AR 4871, 6840.
At first glance, this communication would appear to be a discussion, which
would be problematic for the government given that GSA did not intend to open
discussions with offerors and that having done so likely would have required GSA to
accept FPRs from all offerors. In that regard, Spinvi’s failure to provide its CMMI
certification was not an obvious clerical error. Nor was the CMMI certification part of
the responsibility volume of the proposal; rather, the CMMI certification was a scored
portion (worth 100 points) of the systems, certifications, and clearances volume of the
proposal. AR 399. Furthermore, although the CMMI certification was not a mandatory
requirement and, thus, the lack of proposal documentation could not constitute a
“material omission,” see MSC Indus. Direct Co. v. United States, 140 Fed. Cl. 632, 646
(2018), clarifications are still improper when the information would “alter the technical
or cost elements of the proposal.” Dell Fed. Sys., 906 F.3d at 998.
The Court need not definitively resolve this issue, however, because an express
provision in the RFP controls and permitted the Agency’s approach here. See AshBritt,
Inc. v. United States, 87 Fed. Cl. 344, 374 (2009) (“It is a fundamental tenet of
procurement law that proposals must be evaluated in accordance with the terms of the
solicitation.”). The RFP provided that during the initial screening (i.e., step one of the
evaluation process outlined supra), all proposals would be reviewed to ensure that
supporting documentation was submitted for each claimed point (without the Agency
verifying the contents or substance of that document). AR 389. Proposals that omitted
supporting documentation, if unrelated to a minimum submission requirement,
“w[ould] be treated as clarifications.” Id. (emphasis added). This language is clear and
unambiguous.21 Consistent with this RFP provision, GSA sought missing documents
from Spinvi for claimed points not relating to a minimum requirement. This is clearly
evident from the clarification letter that GSA sent to Spinvi, which indicated that “[t]he
21The Court does not opine on the legality of an agency’s treating the submission of missing
documents that impact scoring as a clarification because WaveLink has not raised this
argument. Even if WaveLink would have challenged this RFP provision as part of the instant
case, however, the Court would be required, pursuant to the Blue & Gold waiver rule, discussed
supra Section IV.A., to dismiss that challenge as untimely. The express terms of the RFP put all
offerors, including WaveLink, on notice that GSA could request such missing documentation
without conducting discussions.
27
Government is unable to locate any supporting documentation in your proposal to
support the points claimed for CMMI Level 2.” AR 4872. As the Agency followed the
RFP’s terms regarding the characterization of the communication, this exchange of
information between GSA and Spinvi was not a discussion.
To be clear, the Court notes that this RFP “missing document” provision
provided that discrepancies would be addressed with offerors as part of the initial
screening process. AR 389. As is evident from the April 2, 2020 date on GSA’s
clarification letter to Spinvi, the CMMI certification request was issued only far later in
the evaluation process. AR 4872. This is of no consequence, however, because the RFP
did not expressly limit the time period in the evaluation process in which GSA may
seek clarification of an offeror’s lack of documentation. Although the RFP mentioned
that these clarifications would take place as part of the initial screening period, there is
no reason that such exchanges should be converted into discussions just because they
take place later in the process. This interpretation of the RFP is reasonable as the timing
of these requests is of no significance and WaveLink does not argue, or provide any
support, to the contrary. Alternatively, even assuming that there was a mistake, “[d]e
minimis errors in the procurement process do not justify relief.” Glenn Def. Marine
(ASIA), PTE Ltd. V. United States, 720 F.3d 901, 907 (Fed. Cir. 2013). “’De minimis errors
are those that are so insignificant when considered against the solicitation as a whole
that they can be safely ignored.’” AECOM Mgmt. Servs., Inc. v. United States, 147 Fed.
Cl. 285, 293 (2020) (brackets omitted) (quoting Anderson Consulting v. United States, 959
F.2d 929, 935 (Fed. Cir. 1992)). Accordingly, the Court does not find that GSA’s
communication with Spinvi constituted a discussion so as to trigger the requirement
that GSA conduct discussions with all offerors, including WaveLink.
C. GSA Violated The Solicitation And The FAR In Awarding Contracts To
Offerors With Direct Labor Rates Below The RFP’s Range (Without A
Required Supporting Rationale) But WaveLink Only Demonstrates
Prejudice In Pool 3, Not In Pool 1
WaveLink, in Count IV of its amended complaint, alleges that “GSA violated a
fundamental principle of government procurement by relaxing the [Solicitation]
requirements in [sections] L.5.6.(h) and M.5.4.(f) for more than a dozen offerors.” Am.
Compl. at ¶ 87. WaveLink contends that GSA erred in failing to apply a mandatory
Solicitation requirement, which resulted in unlawful contract awards to otherwise
ineligible offerors, or, in the in alternative, in not issuing a solicitation amendment to
delete the mandatory requirement. Pl. MJAR at 2. With regard to the latter contention,
WaveLink argues that had the Agency issued an amendment, all offerors, including
WaveLink, would have been able to submit a fully revised and updated proposal. Id.28
For the reasons explained below, the Court agrees with WaveLink that the
Agency violated the terms of the Solicitation and, in so doing, the FAR. The Court
further concludes that such violations prejudiced WaveLink in Pool 3 but not in Pool 1.
1. In Awarding Contracts To Ineligible Offerors, GSA Violated The
Solicitation, FAR 15.305(a) And FAR 15.206(d)
The RFP provided in sections L.5.6.(h) and M.5.4.(f), respectively, as follows:
Offerors are strongly encouraged to propose a Direct Labor
rate for each OASIS SB labor category within the ranges
provided in Section J.2. CAUTION: Failure to provide clear
and convincing rationale to support a lower or higher direct
labor rate outside the ranges set forth in Section J.2., will
result in a determination the rate(s) are not fair and
reasonable and the Offeror would not be eligible for award
regardless of their technical score.
.....
If an Offeror does not meet one or more of these parameters
for any labor category, the Offeror is strongly advised to
provide clear and convincing rationale to support the
proposed direct/indirect and/or profit rate(s). In the event
the rationale is not determined reasonable, the proposal will
be deemed to have a ceiling rate(s) that is not considered fair
and reasonable and the proposal would not be eligible for
award, regardless of technical score.
AR 387 (§ L.5.6.(h)), 399 (§ M.5.4.(f)) (emphases added).
In construing the provisions of a solicitation, this Court is guided by “well-
settled principles of contract interpretation.” Linc Gov’t Servs., 96 Fed. Cl. at 708.
Critically, “[i]f the provisions are clear and unambiguous, the court must give them
‘their plain and ordinary meaning.’” ARxIUM, Inc. v. United States, 136 Fed. Cl. 188, 198
(2018) (quoting Banknote Corp., 365 F.3d at 1353); see Linc Gov’t Servs., 96 Fed. Cl. at 708
(“Unless it is manifest that another meaning was intended and understood by all the
parties, the text of the solicitation must be accorded its plain and ordinary meaning.”).
Moreover, when a solicitation provision uses mandatory language that is clear and
unambiguous, “[t]he dispositive issue is not whether [the offeror’s] proposal was
reasonable, but whether it complied with the mandatory requirements of the
solicitation.” Beta Analytics Int'l, Inc. v. United States, 44 Fed. Cl. 131, 139 (1999) (“The
29
solicitation’s use of terms such as ‘shall’ and ‘must,’ as opposed to, for example,
‘should’ or ‘may,’ reinforces plaintiff’s interpretation that a compliant proposal required
four distinct labor categories, each performing the number of hours set forth in the
solicitation.”).
In DigiFlight, Inc. v. United States, 150 Fed. Cl. 650 (2020), this Court laid out the
regulatory framework for how an agency must approach mandatory solicitation
provisions, explaining as follows:
FAR 15.305(a) provides that “[a]n agency shall evaluate
competitive proposals and then assess their relative qualities
solely on the factors and subfactors specified in the
solicitation.” FAR 15.206(d) further provides that “[i]f a
proposal of interest to the Government involves a departure
from the stated requirements, the contracting officer shall
amend the solicitation, provided this can be done without
revealing to the other offerors the alternate solution proposed
or any other information that is entitled to protection.” Taken
together, these FAR provisions enunciate the principle that an
agency cannot award a contract to an offeror “that did not
meet the mandatory requirements of the solicitation.” 15 No.
8 Nash & Cibinic Rep. ¶ 40. The Federal Circuit likewise has
explained that “a proposal that fails to conform to the material
terms and conditions of the solicitation should be considered
unacceptable and a contract award based on such an
unacceptable proposal violates the procurement statutes and
regulations.” E.W. Bliss Co. v. United States, 77 F.3d 445, 448
(Fed. Cir. 1996); see also Centech Grp., Inc. v. United States, 554
F.3d 1029, 1037 (Fed. Cir. 2009). Indeed, an agency contracting
officer has three choices when a proposal does not meet a
solicitation's mandatory requirements: “(1) amend the
solicitation in accordance with FAR 15.206(d), (2) negotiate
with the offeror to get it to meet the requirements, or (3) reject
the proposal.” 15 No. 8 Nash & Cibinic Rep. ¶ 40.
DigiFlight, 150 Fed. Cl. at 657.
As WaveLink correctly notes, the Solicitation’s plain, unambiguous language
specifies that an offeror “would not be eligible for award” if it fails to provide a
“convincing rationale to support” a direct labor rate outside of a set range. Pl. MJAR at
5 (quoting AR 387). The above-quoted direct labor provisions were mandatory
30
Solicitation provisions that the Agency was not free to ignore. Thus, in awarding
contracts to offerors with non-compliant direct labor rates – i.e., that were outside the
specified range and without a required, supporting rationale – the Agency did not
comply with these mandatory Solicitation provisions. The Court knows this to be the
case because the government previously reached that very same conclusion regarding virtually
identical language in the same Solicitation at issue here. See DigiFlight, 150 Fed. Cl. at 650.
In DigiFlight, the government moved to dismiss DigiFlight’s complaint where it
admittedly had failed to submit a profit rationale, which the government characterized
as a material solicitation requirement. Id. at 656-57. The Solicitation language at issue
in DigiFlight provided: “CAUTION: Failure to provide clear and convincing rationale
to support a profit rate that exceeds 7% will result in a determination that Profit is not
fair and reasonable[,] and the Offeror would not be eligible for award regardless of their
technical score.” Id. at 658. Thus, the only difference between the Solicitation language
at issue in the instant case and the language addressed in DigiFlight is that the former
concerns direct labor rates outside of a set range, and the latter concerns profit rates
outside of a set range.
i. The Government’s Interpretation Of The Solicitation Is
Erroneous As A Matter Of Law
Applying those basic principles outlined in DigiFlight to this case leads to the
ineluctable conclusion that the Agency violated a mandatory term of the Solicitation
and, thus, improperly awarded contracts to perhaps as many as 30 offerors (spanning
Pools 1 and 3) that submitted non-compliant proposals. Contrary to both the
government’s position and the Court’s conclusion in DigiFlight, the Agency: (1) never
amended the Solicitation pursuant to FAR 15.206(d) to remove the mandatory language
in sections L.5.6.(h) and M.5.4.(f); (2) did not engage in discussions (i.e., negotiations)
with non-compliant offerors to bring their proposals into compliance with sections
L.5.6.(h) and M.5.4.(f); and (3) did not reject proposals that failed to comply with
sections L.5.6.(h) and M.5.4.(f). Accordingly, the Agency violated the terms of the
Solicitation and, in turn, FAR 15.305.22
The government argues that “GSA did not relax the requirements with respect to
direct labor rates that were below those provided in Section J.2 because GSA’s actions
did not constitute a material change to the terms of the solicitation[.]” Def. Reply at 16.
Put differently, the government maintains that “GSA did not change the solicitation
22
Moreover, as demonstrated infra, the Agency’s approach to offerors that failed to comply with
sections L.5.6.(h) and M.5.4.(f) at issue here is precisely the opposite of how the Agency treated
the plaintiff in DigiFlight.
31
requirement” but rather simply “interpreted the solicitation language to prohibit the
agency from deeming a proposal unreasonable due to too low prices.” Def. MJAR at 37.
The government thus contends that “rather than changing the solicitation requirements
or evaluation requirements, GSA applied the solicitation requirements consistent with
relevant legal principles.” Id.
The Court rejects the government’s attempt to avoid the Solicitation’s plain
language by asserting that the Agency merely decided to read it differently. The
Solicitation provides, in mandatory terms – following an all-caps “CAUTION” warning
– that the “[f]ailure to provide clear and convincing rationale to support a lower or
higher direct labor rate outside the ranges set forth in Section J.2., will result in a
determination the rate(s) are not fair and reasonable and the Offeror would not be
eligible for award regardless of their technical score.” AR 387 (emphasis added). The
Agency could have amended the Solicitation to remove or revise that mandatory
language. See Beta Analytics Int’l, 44 Fed. Cl. at 139. Not having done so, however, the
Agency was bound to follow the Solicitation’s terms as written, not how the Agency
wishes it had written them. Alfa Laval, 175 F.3d at 1367–68 (holding that, in waving a
mandatory solicitation provision for an offeror, “the Navy violated a clearly applicable
procurement statute and regulation”). Applying Alfa Laval, this Court has specifically
held that the government cannot simply reread clear, mandatory language to mean
something different than what it says:
The appeals court explained that procuring officials’ views
regarding the appropriateness of standards set forth in the
solicitation cannot relieve the agency from mandatory terms
of a solicitation. . . . Thus, if a protestor can demonstrate an
instance in which a procuring official failed to abide by a
mandatory solicitation provision, the protestor will prevail,
provided it can demonstrate that, but for the violation, it had
a substantial chance to receive the award.
Beta Analytics Int’l, 44 Fed. Cl. at 138.23
Several defendant-intervenors contend that “fair and reasonable” is a term of art
based on FAR principles that “‘generally addresses whether a price is too high.’” ISYS
Br. at 4–5 (quoting First Enter. v. United States, 61 Fed. Cl. 109, 123 (2004) (emphasis
added)); see also Kalman Br. at 2–4, NetCentric Br. at 2–4, RED Br. at 2. In contrast, only
23Cf. SBSI, Inc., B-410923, 2015 CPD ¶ 112, 2015 WL 1406102 (Mar. 20, 2015) (“Where an offeror
fails to submit information required by the RFP, we cannot find that the agency acted
unlawfully when it refused to further consider that offeror for award.”).
32
where a solicitation incorporates a cost realism analysis is an agency “’investigat[ing]
whether the contractor is proposing a price so low that performance of the contract will
be threatened.’” Kalman Br. at 2 (quoting EMTA Isaat, A.S. v. United States, 123 Fed. Cl.
330, 338 n.9 (2015)). Because the Solicitation only mentions “reasonableness,”
defendant-intervenors’ view is that “the government is obviously referring to
the . . . . accepted legal definition of price reasonableness[.]” Kalman Br. at 3–4. Put
differently, defendant-intervenors argue that “fair and reasonable” must mean “too
high.” E.g., RED Br. at 3.
While defendant-intervenors appear to be generally correct regarding the
meaning of the phrase “fair and reasonable,” their approach to the phrase in the
Solicitation fails to account for the preceding verbiage – “failure to provide clear and
convincing rationale to support a lower or higher direct labor rate outside the ranges[.]”
AR 387 (emphasis added). When interpreting a solicitation, the Court must harmonize
provisions where possible, not create a conflict. Safeguard Base Operations, 989 F.3d at
1344 (“We must consider the Solicitation as a whole and interpret it in a manner that
harmonizes and gives reasonable meaning to all of its provisions.” (internal quotation
marks omitted)). Rather than reason from the premise that “fair and reasonable” must
refer exclusively to prices that are too high, the better approach is understanding that
the Agency has operationally defined this term for purposes of this procurement to refer to
any price that is acceptably within the RFP’s range or, if outside the range, has an
accompanying acceptable rationale. This approach gives meaning to “fair and
reasonable” without deleting the words “lower” and “outside the ranges” from the
Solicitation.24 At least one defendant-intervenor admitted during oral argument that
24
This is not the only place in this Solicitation where particular terms of art do not have their
ordinary meaning. For example, the RFP purported to be a FAR Part 15 “best value” negotiated
procurement with contracts awarded to the “Highest Technically Rated Offerors with a Fair and
Reasonable Price.” AR 388. Based on accepted statutory and FAR principles, the term “best
value” in negotiated acquisitions has a defined meaning – requiring a balancing between
technical considerations and price. FAR 15.101; see FAR 15.304 (“Price or cost to the
Government shall be evaluated in every in every source selection . . . .); see also Serco v. United
States, 81 Fed. Cl. 463, 491–501 (2008) (“[A]n evaluation that fails to give price its due
consideration is inconsistent with CICA and cannot serve as a reasonable basis for an award.”).
The RFP, however, provided that only the technical components would be scored, whereas
cost/price was assessed only for reasonableness. AR 389, 400–01. Although offerors submitted
widely divergent prices, GSA did not conduct a balancing analysis of the technical factors and
price. Nevertheless, GSA referred to the OASIS SB as a “best value” procurement, using that
term in a manner clearly in tension with its accepted meaning. See Ralph C. Nash & John
Cibinic, “Highest Technically Rated Offerors With Fair And Reasonable Pricing”: A New Source
Selection Technique, 30 Nash & Cibinic Rep. ¶ 23 (2006) (questioning whether OASIS SB’s “best
value” technique is legal). To the extent that this Court has held that the OASIS SB’s best value
methodology comports with the requirement to consider price in a best value procurement, see
33
their approach would effectively read language out of the Solicitation. See ECF No. 111
(“Status Conf. Tr.”) at 20.
Alternatively, defendant-intervenor RED argues that while § L.5.6.(h) of the
Solicitation mandates a “convincing rationale to support a lower or higher direct labor
rate outside the ranges[,]” AR 387 (emphasis added), § M.5.4.(f) provides only that if
“the rationale is not determined reasonable, the proposal will be deemed to have a
ceiling rate(s) that is not considered fair and reasonable” AR 399 (emphasis added).
RED Br. at 2–3. RED contends that this alleged contradiction regarding whether
offerors that failed to provide a rationale for direct labor rates below the RFP’s ranges
would be excluded constitutes a patent ambiguity in the Solicitation, and because no
offeror protested, the Agency has the discretion to interpret this ambiguity in any
reasonable manner. Id. at 3–4. Even assuming that an Agency may select any
reasonable interpretation of patently ambiguous solicitation language, federal agencies
are required to engage in reasoned decision-making, generally, and when taking
corrective action, in particular. See Raytheon Co. v. United States, 121 Fed. Cl. 135, 150–51
(2015). Here, as discussed at length below, see infra Section IV.C.1.iii, the Agency
originally read the Solicitation to give meaning to all of its words and phrases, such that
offerors that proposed labor rates below the specified range without providing a
rationale would be found ineligible. Then, in the face of a GAO protest, the Agency
switched its position without any explanation for the new approach (and merely
concluded that the Agency would now accept the previously ineligible offerors). The
Agency’s about-face was not undertaken to address a GAO decision or a clearly
meritorious protest. Indeed, the Agency did not explain why corrective action was
warranted, nor did the Agency explain how its newly-decided reading of the
Solicitation implemented § L.5.6.(h)’s directive, requiring a rationale for a
“lower . . . direct labor rate outside the ranges[.]” AR 387 (emphasis added). Rather, the
Agency all but read those critical words out of the Solicitation. Thus, the Agency’s
voluntary corrective action failed to account for the very language in the Solicitation on
which the Agency previously had relied to exclude offerors and, as result, is not
reasonable but arbitrary and capricious.
The Court’s holding on this issue is not novel. The point is simply that,
generally, agency action (i.e., including an agency decision relating to a procurement)
must be reasonable and is not insulated from review merely because an agency cloaks it
in corrective action clothes. That said, this result serves as a cautionary tale for agencies
Octo Consulting Grp. v. United States, 117 Fed. Cl. 334 (2014), this Court is not bound by that
decision. At the June 16, 2021 status conference, no defendant-intervenor attempted to explain
how the agency’s use of the term “best value” may be reconciled with the agency’s failure to
balance the technical scores against price/cost.
34
implementing corrective action that, while furthering a short-term goal of resolving a
GAO protest, may merely kick the can down the road by creating yet new (but
foreseeable) problems.25
Defendant-intervenor RED, putting a different twist on its argument, further
contends that because the Solicitation language at issue created a patent ambiguity,
WaveLink’s post-award bid protest is an untimely challenge to the Solicitation pursuant
to Blue & Gold, 492 F.3d 1308. RED Br. at 4–5. The Court is not persuaded for the simple
reason that WaveLink submitted direct labor rates that were within the RFP’s ranges and,
accordingly, had no reason to file a pre-award bid protest. Moreover, WaveLink had no
reason to believe that offerors would submit rates below the RFP’s range and that the
Agency would accept those proposals. See Inserso, 961 F.3d at 1352 (holding that Blue &
Gold applies only to a solicitation defect that an offeror “exercising reasonable and
customary care” would have noticed). The Court is unaware of, nor does RED provide,
any case law from this Court (or the GAO) to support the assertion that WaveLink
should have filed a pre-award protest to preclude the Agency from accepting offerors
that submitted proposals with direct labor rates below the specifies ranges without the
required, corresponding rationale. Indeed, at the June 17, 2021 status conference,
counsel for RED conceded that “[g]ranted, it would not be a run-of-the-mill protest for
somebody to come in and say, we want to confirm that [the agency is] going to kick all
those other people out.” Status Conf. Tr. at 14.
ii. The Government Is Judicially Estopped From Offering An
Alternative Reading Of The Mandatory Solicitation
Provision
As this Court previously has noted, “[t]he doctrine of judicial estoppel is
25Unfortunately, GAO did not help the matter by issuing a perfunctory protest dismissal in the
absence of any explanation from GSA as to how it would implement corrective action. The
Court is sympathetic to the premise that a GAO protest does not deprive an agency of
jurisdiction to take action in a procurement, nor is the GAO a federal court that must apply
Article III mootness rules before dismissing a protest. Nevertheless, it remains clear to the
Court that GAO should not have approved (implicitly or explicitly) corrective action in this case
where it had the effect of reading language out of the solicitation, but without explanation as to
why that was necessary or at all warranted. Cf. Owens & Minor Distrib., Inc. v. United States,
2021 WL 2549413, *3–*5 (Fed. Cl. June 22, 2021). Moreover, had the GAO required the GSA to
explain how it would implement the intended corrective action, the instant, follow-on protest
may well have been avoided, as defendant-intervenor GaN correctly explained. See GaN Br. at
5 (“Had the Agency amended the Solicitation to be facially consistent with its commitment to
GAO, this protest never would have landed on the Court’s desk. But it did not, and the Court
concluded that it violated applicable law by evaluating [proposals] contrary to the Solicitation’s
terms.” (internal footnote omitted)).
35
intended to prevent a litigant from ‘playing fast and loose with the courts’ by assuming
contrary positions in legal proceedings[.]” City of Wilmington v. United States, 152 Fed.
Cl. 373, 378–79 (2021) (quoting Def. Tech., Inc. v. United States, 99 Fed. Cl. 103, 127 (2011),
and citing Housing Auth. of Slidell v. United States, 149 Fed. Cl. 614, 643 (2020)). Thus,
“[w]here a party assumes a certain position in a legal proceeding, and succeeds in
maintaining that position, he may not thereafter, simply because his interests have
changed, assume a contrary position, especially if it be to the prejudice of the [other]
party[.]” New Hampshire v. Maine, 532 U.S. 742, 749 (2001). The Supreme Court has
identified a series of factors to consider when applying the doctrine of judicial estoppel:
(1) the party’s later position must be “clearly inconsistent” with its earlier position; (2)
the party must have succeeded in persuading a court to adopt the earlier position,
thereby posing a “risk of inconsistent court determinations”; and (3) “the party seeking
to assert an inconsistent position would derive an unfair advantage or impose an unfair
detriment on the opposing party if not estopped.” Id. at 750–51. These factors are “non-
exclusive” and “guide a court’s decision whether to apply judicial estoppel[.]”
Transclean Corp. v. Jiffy Lube Int’l, Inc., 474 F.3d 1298, 1307 (Fed. Cir. 2007).
The Court will not permit the government to take a different position – regarding
nearly identical language in the same Solicitation – from what the government argued,
and prevailed upon, in DigiFlight. In that case, the government moved to dismiss a bid
protest, arguing based upon nearly identical language from the identical Solicitation
that the plaintiff’s failure to provide a rationale for its profit rate (that was outside of a
specified range) constituted a material omission fatal to its proposal. 150 Fed. Cl. at 656-
57; see also Government’s Motion for Judgment, DigiFlight, Inc. v. United States, Case No.
20-764, at *8 (July 24, 2020) (ECF No. 15) (“These warnings communicated that the profit
rationale in section L.5.6.(j) was a clear material or go/no-go requirement, without
which the contracting officer would reject the proposal.”). Indeed, the government
specifically argued that “DigiFlight’s failure to comply with those material
requirements rendered it ineligible for award.” DigiFlight, ECF No. 15 at 9. Although
DigiFlight had argued the government’s motion should be denied because the Court
had to examine the administrative record to decide whether or not the Solicitation
language at issue constituted a material requirement, the government, in its reply brief,
characterized DigiFlight’s argument as “seemingly designed to avoid addressing the
solicitation’s plain language.” DigiFlight, ECF No. 18 at 4-5 (emphasis added) (explaining
that “DigiFlight admittedly violated [the solicitation] by failing to include the profit
rationale in its proposal, resulting in GSA removing DigiFlight from the competition
exactly as stated in the solicitation” (emphasis added)). Lest there be any ambiguity about
the government’s position in that case, the government clearly argued for the precise
result it now argues against: “it is hard to imagine what constitutes a ‘material
requirement’ more than a clear warning that failure to provide a proposal item needed
36
to evaluate profit would automatically result in ineligibility for award.” Id. at 5
(government arguing that “solicitation section L.5.6.(j) constituted a go/no-go
requirement, without which the contracting officer would reject the proposal”).
To the extent DigiFlight argued for a different reading of the plain language – in
favor of one that, in its view, was consistent with the FAR – the government responded,
and the Court agreed,26 that DigiFlight’s argument was untimely pursuant to the Blue &
Gold waiver rule. See Government’s Reply Brief, DigiFlight, Inc. v. United States, Case
No. 20-764, at *6 (Aug. 27, 2020) (ECF No. 18) (citing Blue & Gold, 492 F.3d at 1313, and
Inserso, 961 F.3d at 1343). Although DigiFlight contested the rationale for, and legality
of, the plain reading of the Solicitation provision at issue in its case, the government
persuasively contended that “the ‘why’ is immaterial when DigiFlight acceded to this
determination and requirement by failing to object to these terms before submitting its
proposal[.]” DigiFlight, ECF No. 18 at 6-7 (arguing that “the plain language here made
the profit rationale a material requirement”).
Finally, as if this were all insufficient proof of just how strongly the government
pressed its argument in DigiFlight, the government further contended in that case that
“the only relevant issue that the Court must decide is a question of law across all these
counts: whether the solicitation made the profit rationale a requirement that cannot be
cured through clarification. If so, then all three counts must be dismissed because no set
of facts entitle DigiFlight to relief as a matter of law.” Id. at 10 (emphasis added). The
implication, of course, is that the government viewed the protester’s omission as so fatal
to its proposal that the defect could not be cured through mere clarifications; only the
receipt of a new proposal or discussions could cure the problem, and the Agency
vigorously denies that it engaged in the latter. Id. at 9. Thus, rather than seeking
clarifications or leveraging discussions, the Agency with respect to the required price
rationale simply ignored the applicable mandatory Solicitation provisions in accepting
perhaps as many as 30 ineligible offerors (spanning Pools 1 and 3). The government
cannot have it both ways – arguing that it properly excluded DigiFlight from the
competition based upon the plain language of a mandatory Solicitation requirement,
while arguing in this case that almost identical language may simply be reinterpreted,
as if it were a work of modern art, to produce a different outcome.
26DigiFlight, 150 Fed. Cl. at 661 (“While this Court notes that FAR 15.404-4(c)(5) does appear to
mandate that contracting officers shall not require contractors to submit supporting rationale
for profit, and this Court does not necessarily understand why GSA’s Solicitation included such
a requirement, nonetheless the Solicitation included the profit rationale requirement, of which
DigiFlight was clearly aware. Federal Circuit precedent requires this Court to find DigiFlight's
post-award challenge to that requirement is barred as untimely.” (emphasis in original)).
37
Although the Court independently has concluded in this case that the
government’s interpretation of the Solicitation is erroneous as a matter of law, the Court
further exercises its discretion and applies judicial estoppel to preclude the government
from invoking its newly inspired, creative reading of the nearly identical Solicitation
language addressed in DigiFlight. Data Gen., 78 F.3d at 1565 (noting that “[t]he decision
whether to invoke judicial estoppel lies within the court’s discretion”); see Transclean
Corp., 474 F.3d at 1307 (“[A] party may be judicially estopped from asserting clearly
inconsistent positions on claim construction, which is a question of law.”). All of the
judicial estoppel factors are met here: (1) as demonstrated above, the government’s
position in this case is the very opposite of the position it took in DigiFlight; (2) the
Court (and, indeed, the same undersigned judge) adopted the government’s previous
position;27 and (3) permitting the government to switch its position would be the height
of unfairness, particularly where ensuring the consistent treatment of offerors within
the same procurement is a prime purpose not only of the FAR, but also of this Court’s
procurement protest jurisdiction. FAR 1.602-2(b); Tolliver Grp., Inc. v. United States, 151
Fed. Cl. 70, 88 n.17 (2020); Centerra Grp., LLC v. United States, 138 Fed. Cl. 407, 413 (2018)
(holding that “[f]airness in government procurements is enshrined in a number of FAR
provisions[,]” including FAR 1.602–2(b)); Alion Sci. & Tech. Corp. v. United States, 74 Fed.
Cl. 372, 376 (2006) (“It is well established that there is an overriding public interest in
preserving the integrity of the federal procurement process by requiring government
officials to follow procurement statutes and regulations.”).28
27DigiFlight, 150 Fed. Cl. at 660 (“DigiFlight failed to provide information that the Solicitation
required offerors to provide in their initial proposals, the Solicitation clearly explained that GSA
would exclude an offeror from the competition if the offeror did not provide the information,
and GSA excluded DigiFlight for that exact reason (as the Agency was required to do).”).
28With respect to the estoppel issue, the Court notes that DigiFlight has appealed this Court’s
decision to the Federal Circuit. DigiFlight, Inc. v. United States, 150 Fed. Cl. 650 (2020), appeal
docketed, No. 21-1486 (Fed. Cir. Jan. 4, 2021). Although the Court stands by its decision in that
case – both in terms of having reached the correct result and as being consistent with the
outcome here – we are quite sure that DigiFlight will be interested to learn that the government
more-or-less adopted DigiFlight’s view of the Solicitation in this litigation. The government
here attempts to distinguish DigiFlight on the grounds that it involved a protester’s failure to
include a rationale for a profit that was above the high-end of the specified profit range, 150 Fed.
Cl. at 654. But that proposed distinction addresses neither the mandatory nature of the
Solicitation language nor the Blue & Gold problem; rather, it addresses only the degree to which
enforcing the mandatory language supposedly would vindicate a greater substantive purpose.
But, again, in DigiFlight, the government specifically argued, and the Court agreed, that the why
of the mandatory provision was irrelevant pursuant to Blue & Gold. The Court either does not
understand or fails to appreciate what appear to be the government’s situational ethics.
38
iii. The Agency Cannot Hide Behind Corrective Action
Finally, the government maintains that “[e]ssentially, what WaveLink is
challenging is the agency’s corrective action, contending that it should have been
broader in scope” such that the Agency should have requested unlimited proposal
revisions. Def. Reply at 17. The Court is unsure of the precise contours of the
government’s argument. If the government is arguing that its revised reading of the
Solicitation is entitled to deference because it was undertaken as part of corrective
action, the Court rejects that assertion.
As explained supra, GSA eliminated several offerors from Pool 1 for proposing
direct labor rates that did not comply with the Solicitation’s requirements in sections
L.5.6.(h) and M.5.4.(f). AR 6821; see, e.g., AR 9156 (GSA explaining that “[u]pon review
of your proposal, numerous Labor Categories were outside the ranges identified in J.2.
Attachment (2) with no rationale document included with your proposal” and that
because “your rates are indisputably outside the range and no rationale was provided
with your proposal submission the Government is unable to determine your proposal
fair and reasonable based on the criteria set forth in Section M.5.4(f)”). The Agency
explained to the eliminated offerors the rationale for its decision to exclude them, as
follows:
It is the sole responsibility of the Offeror to submit a proposal
for consideration which demonstrates compliance with the
solicitation. Acceptance of the rationale provided as part of
your clarification response after receipt of proposals would
constitute either discussions or a late proposal modification.
The Government does not intend to conduct discussions and
no revision to your proposal will be accepted. After a review
of your proposal and response to clarifications, . . . your
proposal was eliminated from further consideration.
AR 9156, 9209, 9534. These offerors then filed GAO bid protests to challenge their
exclusion from the procurement. AR 9120–34, 9355–57, 9524–26.
The Agency moved to dismiss one of the GAO protests as untimely. AR 9168-
9172. Just as the government did in DigiFlight, the Agency argued that the GAO protest
was nothing more than “an untimely challenge to the Solicitation’s requirements
regarding determination of fair and reasonable prices.” AR 9168. The Agency
specifically asserted that the protester “failed to heed clear warnings regarding direct
labor rate submissions, resulting in its exclusion” and that “[t]his protest is a post hoc
attempt to circumvent the evaluation methodology as announced and applied to [the]
39
nonconforming proposal.” AR 9169 (arguing that the protester “provided no factual
basis to establish that GSA failed to follow the stated evaluation methodology”). GSA’s
position before GAO mirrors that of the government before this Court in DigiFlight:
The Solicitation was clear: specific rates were provided in
Section J.2; the “low end” and the “high end” were defined;
offerors were advised that the basis for fair and reasonable
prices were these ranges; offerors were strongly advised that
if they did not meet one or more of these parameters they
were to provide a clear and convincing rationale to support
the proposed rates; and offerors were further cautioned that
failure to provide a clear and convincing rationale to support
a lower or higher direct labor rate “will result” in a
determination the rates are not fair and reasonable.
AR 9171. The protester opposed the Agency’s dismissal request with a lengthy filing.
AR 9173–82. GAO, in a single page decision with virtually no analysis, denied the
government’s dismissal request “[a]t this time[,]” thus presumably reserving the issue
for a possible later determination. AR 9346. GAO summarized the protester’s lengthy
arguments in but a few sentences, concluding without explanation that “[t]he agency’s
interpretation of the terms of the solicitation is a matter that we will resolve on the
merits.” Id. Why the protest was timely at all, GAO does not explain. Several days
later, the Agency notified GAO it would take corrective action, as follows:
GSA will re-evaluate Protester’s direct labor rates for fairness
and reasonableness. In conducting this re-evaluation, GSA
will not consider direct labor rates that are below the ranges
provided in the Solicitation as unfair or unreasonable. GSA’s
corrective action resolves all Protest grounds and renders the
Protest academic.
AR 9347. In light of that representation, GAO dismissed the protest as academic absent
any further guidance as to how the asserted corrective action would be implemented or
whether it could be done without creating yet further procurement irregularities. AR
9349-50; see AR 9512–13, 9675–76 (dismissing similar protests following identical
corrective action); see also AR 9117.
To be sure, the Court agrees that where an agency implements a
recommendation contained in a GAO protest decision, the Court should review with
deference subsequent agency action in compliance with that recommendation,
assuming the Court concludes that GAO’s decision was itself rational and consistent
40
with law. Honeywell, Inc. v. United States, 870 F.2d 644, 647 (Fed. Cir. 1989); Centech Grp.,
Inc. v. United States, 554 F.3d 1029, 1039 (Fed. Cir. 2009);29 Firth Const. Co., Inc. v. United
States, 36 Fed. Cl. 268, 272, 276 (1996) (explaining that “if the GAO’s advice is rational, it
is not arbitrary or capricious to follow it” but concluding GAO advice was, in fact,
irrational because “GAO draws a legal conclusion with no principled support”).30
In this case, GAO did not recommend a course of action as part of resolving a
protest, but rather simply dismissed the protest of an otherwise ineligible offeror due to
the Agency’s “corrective action” – in quotes because the Agency erred in effectively
reading the mandatory provision at issue out of the Solicitation. The Court is unsure
why the Agency decided to throw in the towel on its well-grounded GAO protest
dismissal request. Although GAO denied the Agency’s request for dismissal (while
apparently reserving the issue), GAO declined to undertake any critical examination of
the Agency’s proposed corrective action, resulting in arguably more problems than
were resolved. In any event, GAO did not recommend any course of action that the
Agency followed, and thus the type of deference contemplated in Honeywell is
inapplicable.
If, on the other hand, the government is arguing that its decision to accept the
non-compliant proposals is itself entitled to greater deference per se, merely because the
government did so as part of putative corrective action, the Court rejects that conclusion
as well. Again, the Court agrees – as it must – that corrective action generally need only
be reasonable and address a legitimate procurement defect. Dell Fed. Sys., 906 F.3d at 998
(“The Army was not legally required to address every option, but rather to provide a
reasonable corrective action and adequately explain its reasoning for doing so.”). In
Dell Federal, for example, the Federal Circuit upheld “corrective action” where it was
“rationally related to the undisputed procurement defect of originally failing to conduct
pre-award discussions, as reasonably interpreted by the agency to be required by the
applicable regulations, in the first instance.” Dell Fed. Sys., 906 F.3d at 996 (emphasis
added); see also id. at 999 (“we hold that the original corrective action was rationally
related to the procurement defect”). In this case, however, the Court concludes that
there was no procurement defect – “undisputed” or otherwise – in the Agency’s initial
rejection of the non-compliant proposals. Particularly in the absence of any persuasive
29Notably, in Centech, the Federal Circuit, finding that the agency properly followed GAO’s
recommendation, concluded that “[s]ince Centech’s proposal did not offer to provide what the
RFP requested, it was not responsive to the RFP. It therefore was unacceptable and could not
serve as the basis for contract award.” 554 F.3d at 1039.
30If the GAO recommendation is, for example, plainly contrary to a statutory or regulatory
requirement, that decision is irrational, and an agency action is not justifiably based upon it.
Grunley Walsh Int'l, LLC v. United States, 78 Fed. Cl. 35, 44 (2007).
41
explanation distinguishing the government’s approach here from its view of the
Solicitation language in DigiFlight, the Court rejects the government’s attempt to hide
behind corrective action.
In sum, given that this corrective action argument was not well-developed by the
government, that GAO did not explain its rationale for denying the Agency’s dismissal
request, that the Agency did not provide an explanation for taking corrective action,
and that its position here conflicts with the government’s position in DigiFlight, the
Court declines to accord the corrective action any deference in this case. As explained
above, the Court instead concludes that, as a matter of law, the plain language of the
Solicitation governs just as it did in DigiFlight, and that the government accordingly
violated the terms of the Solicitation and the FAR when it awarded contracts to offerors
that submitted non-compliant proposals.
2. Wavelink Demonstrates Prejudice In Pool 3, But Not Pool 1
The Court’s determination that GSA violated the Solicitation and the FAR does
not end the Court’s inquiry because “‘to prevail in a protest the protester must show not
only a significant error in the procurement process, but also that the error prejudiced
it.’” Labatt Food Serv., Inc. v. United States, 577 F.3d 1375, 1380 (Fed. Cir. 2009) (quoting
Data Gen., 78 F.3d at 1562). WaveLink alleges that had the Agency applied the
Solicitation provision as written – as the Agency was required to do – WaveLink would
have received a contract award because at least 14, and perhaps as many as 20,
successful offerors should have been ineligible for award in Pool 3. Am. Compl. at ¶ 89
(asserting that “[i]f the previously listed offerors had been ineligible for award, then
WaveLink’s proposal would have been in line for award”); Pl. Supp. Br. at 12 n.12, 15,
22 (identifying 20 non-compliant proposals ahead of WaveLink). In other words, after
subtracting out the ineligible offerors, a re-ranking would have placed WaveLink in the
award range. Pl. Supp. Br. at 11-12. That argument, however, “concerns only Pool 3”
where “WaveLink’s initial score was high enough that, if GSA had simply complied
with the Solicitation as written, WaveLink would have possessed a substantial chance
of award, even without an opportunity to update its proposal or increase its score.” Id.(emphasis in original); see also Def. Supp. Br. at 3.
With respect to Pool 1, WaveLink further asserts that it “has been prejudice[d]
because the GSA should have amended the solicitation” – presumably to remove the
mandatory ineligibility language in order to consider otherwise ineligible offers – and
that if GSA had done so, “WaveLink would have been able to update its past
performance/experience thus raising its score beyond the threshold to be selected for
42
award.” Am. Compl. at ¶ 88.31 This argument “is based upon the contention that
GSA’s failure to amend the Solicitation deprived WaveLink of an opportunity to submit
a revised proposal that would have possessed a substantial chance of award.” Pl. Supp.
Br. at 11.
i. Pool 3
To establish prejudice on the merits, a plaintiff need not show that, but for the
procurement errors, “it would win the contract in competition with other hypothetical
bidders.” Tinton Falls Lodging Realty, LLC v. United States, 800 F.3d 1353, 1360 (Fed. Cir.
2015) (emphasis in original). “Rather, all a protester must establish to demonstrate
prejudice is that it has a substantial chance of receiving the contract—that it is a
qualified bidder and could compete for the contract.” Id. (emphasis in original). In
Tinton Falls, the Federal Circuit agreed with this Court that a plaintiff’s “distinct
possibility” of winning a contract – assuming an agency were “required to rebid the
contract” or, presumably, to reevaluate offerors – provided a sufficient basis to find
prejudice. Id. at 1359. Indeed, in that case, notwithstanding that there was “much
speculation as to whether [the agency] would rebid the solicitation on an unrestricted
basis—thus allowing Tinton Falls to compete for the contract”— the mere fact “that this
[was] at least a realistic possibility” was sufficient for the Federal Circuit to conclude
that the plaintiff possessed standing and demonstrated prejudice. Id. at 1359-60.
WaveLink demonstrates that it is prejudiced by the government’s error. In Pool
3, the Agency intended to award only 160 contracts unless there were a tie for the last
slot, in which case all tied offerors would be awarded a contract. AR 388. GSA
awarded 163 contracts, including an additional three offerors that tied for the final slot
with a score of 6,350. AR 6996, 7005. Nineteen unsuccessful offerors were ranked
ahead of WaveLink. AR 9081. WaveLink identifies 18 actual awardees and two
unsuccessful offerors ([**] and [**]) that did not comply with the RFP’s direct labor rate
provision. Pl. Supp. Br. at 12 n.12 (citing AR 9081). Had GSA excluded those
contractors (and subtracted the three additional contract awards due to the ties), “GSA
would have then needed to select the next 15 highest ranked offerors to achieve 160
awards.” Id. at 13. Accordingly, a re-ranking of the offerors and awarding the contracts
to the next highest-ranked 15 offerors would have still left two unsuccessful offerors
ahead of WaveLink. See AR 9081. Notably, those two offerors ([**] and [**]) tied with a
score of [**]. Id. In that regard, WaveLink, with a score of [**], would only be one spot
removed from an award, and even that critically assumes that the rankings as explained
31Although this prejudice argument applies with equal force to Pool 3, the Court only addresses
this argument with respect to Pool 1 because, as explained infra, WaveLink establishes a
stronger prejudice case in Pool 3 without this argument.
43
in the source selection documents would be maintained following the point verification
process. By definition, an assumption is speculative, and insufficient basis to reject
WaveLink’s claims. In re Bed & Breakfast Registry, 791 F.2d 157, 159 (Fed. Cir. 1986)
(concluding that a “speculative assumption” is “an inadequate basis for [a] legal
conclusion”).
Moreover, WaveLink contends that it should have been ranked within the top-
160 because three of the unsuccessful offerors ahead of it were identified on the
Agency’s evaluation spreadsheet as subject to “[r]emoval” from the competition. Pl.
Supp. Br. at 15 (citing AR 9081). The government counters that these three offerors
were merely marked for clarifications and that “those notations do not mean that an
offeror was or would have been removed from the competition.” Def. Supp. Br. at 13–
14. At oral argument, however, the Court discussed at length with the parties the
various factual discrepancies in the administrative record regarding some of the
unsuccessful offerors ranked ahead of WaveLink and the removal notations. See Supp.
Oral Arg. Tr. at 5–40. The Court was inclined to accept the government’s explanation as
it related to one of those offerors ([**]); but, while the government asserted that another
offeror ([**]), in fact, had not been removed, the government was unable to support its
assertion with the administrative record. Id. at 38–39.
The Court need not definitively resolve the status of these offerors because, in
any event, WaveLink’s prejudice case is at least as strong as the plaintiff’s in Tinton
Falls. Removing many of these offerors from the Agency’s initial ranking of offerors
places WaveLink if not within the contemplated award range (i.e., the top 160 offerors),
then at least “within the zone of active consideration.” Allied Tech. Grp., 649 F.3d at 1326(quoting Statistica, 102 F.3d at 1581) (internal citations omitted).
The government contends, however, that “an offeror cannot establish prejudice
when its ranking falls outside the contemplated number of awards, and thus would not
be next in line for consideration.” Def. Supp. Br. at 15. The problem with the
government’s view of the record is that, as explained above, it is far from clear whether
or not WaveLink would be “next in line for consideration,” id., because outside of the
initial set of awardees, offerors only self-scored their respective technical evaluations.
AR 359, 490, 1268. As the Court explained with respect to the government’s motion to
dismiss for lack of standing, see supra Section II, the government did not audit or
otherwise attempt to verify scores outside of the awardees. Accordingly, there is no
way for the Court (or either party) to know definitively what the outcome would have
been if the Agency correctly had determined 20 offerors to be ineligible and then
reranked and evaluated the remaining offerors.32 In that regard, the government all but
32 See Supp. Oral Arg. Tr. at 27:7-13 (“THE COURT: But these -- the 20-plus offerors on page 15
44
concedes that a “‘potential re-ranking’ could place WaveLink within the contemplated
number of award[s.]” Def. Supp. Br. at 15. Indeed, at oral argument, the government
unequivocally admitted that it has no any idea where WaveLink would actually be
ranked following a remand to remove ineligible offerors and that it is possible that
WaveLink would be in position for an award.33 That is more than sufficient for a
finding of prejudice. Info. Tech., 316 F.3d at 1319 (holding that that plaintiff “has
established prejudice (and therefore standing)” where it “ha[s] greater than an
insubstantial chance of securing the contract if successful on the merits of the bid
protest”); Gentex Corp. v. United States, 58 Fed. Cl. 634, 654 (2003) (“protestor must have
been in the zone of active consideration and had a reasonable likelihood of securing the
award” (citing Alfa Laval, 175 F.3d at 1367, and Data Gen., 78 F.3d at 1562)).34
Relying upon Octo Consulting Group, Inc. v. United States, 117 Fed. Cl. 334, 353
(2014), the government maintains that such uncertainty is “insufficient to demonstrate
prejudice.” Def. Supp. Br. at 4–5, 15. The government does not develop its argument
further and does not cite any binding authority that precludes a finding of prejudice
here. In any event, Octo Consulting is readily distinguishable. In that case, the plaintiff
admitted that it had “‘no specific knowledge’ of any mistakes in the other evaluations
by the agency in any of the ten other proposals, making its claims entirely speculative.”
Octo Consulting, 117 Fed. Cl. at 353 (emphasis added). Not only does WaveLink make
no such admission, but also, as noted above, the government never evaluated the
unawarded offerors it asserts were ahead of WaveLink. See AR 389; Pl. Supp. Reply at
9. At a minimum, the Court is convinced that WaveLink is correct that the Agency
erred in not applying mandatory Solicitation language. Thus, unlike in Octo Consulting,
there is no question about whether there has been a “mistake[] in the . . . evaluation[].”
117 Fed. Cl. at 353. The only question, then, is with respect to the likely impact of that
error. Based on the administrative record, there is a realistic possibility that WaveLink
could secure an award if the ineligible offerors are removed. Thus, in contrast to the
protester’s claims in Octo Consulting, WaveLink’s claim is not “entirely speculative.”
of Plaintiff’s initial supplemental brief, ECF 9 [at] 46 -- . . . were those fully evaluated or not?
MS. SINANI: They were not.”).
33See Supp. Oral Arg. Tr. at 28:4-11 (THE COURT: But now what you’re saying is that . . . since
these [20 offerors] are not fully evaluated, it’s possible that . . . those might not be accurate
scores; Wavelink could be ranked number eight. You don’t know. MS. SINANI: We don’t
know that. That’s correct, Your Honor.”).
34“It is important to note that a plaintiff need not establish strict but-for causation in order to
meet its burden of demonstrating that the agency's procurement violation was prejudicial.” Red
River Commc’ns, Inc. v. United States, 109 Fed. Cl. 497, 503 (2013) (citing Data Gen., 78 F.3d at
1562).
45
Defendant-intervenor NetCentric argues that “[f]or decades, the GAO has
repeatedly rejected protesters’ assertions that they were prejudiced by a permissible but
unannounced waiver simply because, without the waiver, higher-rated offerors would
have been ineligible for award[.]” NetCentric Br. at 7–8. Citing a string of GAO
decisions, NetCentric contends that the relevant prejudice inquiry is “‘whether the
protester would have submitted a different [proposal] that would have had a
reasonable possibility of being selected for award had it known that the requirement
would be waived.’” Id. (emphasis omitted) (quoting Illustrious Consultants, B-416914,
2018 CPD ¶ 434, 2018 WL 6839370 (Dec. 28, 2018)). These GAO decisions all involve
protests where the protester would have been next-in-line for an award had it
successfully challenged the awardee’s non-compliant offer. See Illustrious Consultants,
B-416914 at *1; Shuttlewagon Inc., B-419518, 2021 CPD ¶ 172, 2021 WL 1750395, *2 (Apr.
15, 2021); Glem Gas S.p.A., B-414179, 2017 CPD ¶ 60, 2017 WL 730529, *2 n.2 (Feb. 23,
2017); Geonex Corp., B-274390.2, 1997 CPD ¶ 225, 1997 WL 354727, *1 (June 13, 1997). As
WaveLink proposed all its direct labor rates within the RFP’s specified ranges and
altering those rates would not have made its proposal more competitive (given the
nature of the evaluation scheme), NetCentric argues that WaveLink was not prejudiced
by GSA’s decision to award contracts to other offerors that proposed rates outside the
RFP’s ranges. NetCentric Br. at 6–8.
While the Court acknowledges that NetCentric appears to be correct about
GAO’s approach, it is inconsistent with the Federal Circuit’s decision in Alfa Laval
Separation, Inc. v. United States, 175 F.3d 1365, 1367 (Fed. Cir. 1999). In Alfa Laval, the
Federal Circuit held that the protester was prejudiced by the Navy’s ignoring a
mandatory solicitation requirement for the contract awardee. Id. at 1368. As the
protester and the awardee were the only two offerors competing for the contract, the
Federal Circuit reasoned that because “[t]he only bid competing with Alfa Laval was
unacceptable under the standards set out in the RFP[,]” the protester “ha[d] a
substantial chance to receive the contract award.” Id. Critically, in evaluating
prejudice, the Federal Circuit did not analyze how the protester would have altered or
otherwise improved its offer.35 Simply put, Alfa Laval stands for the straightforward
35Several defendant-intervenors, NetCentric Br. at 6–7, RED Br. at 6, Nova Br. at 5, attempt
alternatively to ground their prejudice arguments in a quote from Electronic Data Systems, LLC v.
United States, 93 Fed. Cl. 416 (2010), in which Judge Allegra noted that “[s]everal cases hold that,
to demonstrate prejudice in the context of a failed amendment, the protestor must show that it
would have altered its proposal to its competitive advantage had it been given the opportunity
to respond to an altered requirement.” Id. at 435–36 (internal quotation marks omitted). In
Electronic Data Systems, however, the Court grappled with Alfa Laval and concluded that the
protester was not prejudiced by the agency’s failure to amend the solicitation because “the
impact of that error was dwarfed by the huge price differential between the relevant proposals
and more than offset by the adjustments made by the [Source Selection Authority] in his best
46
proposition that when an agency seeks proposals that meet certain criteria, an offeror
that submits a fully compliant offer (and is still in the zone of consideration, as
explained, supra) is prejudiced when the contract is awarded to a non-complaint offeror.
See, e.g., Transatlantic Lines LLC v. United States, 68 Fed. Cl. 48, 51–52, 57–58 (2005)
(applying Alfa Laval).
Several defendant-intervenors contend that they were properly awarded a
contract (thus effectively mitigating the prejudice to WaveLink) because they explained
their low direct labor rates in the required professional employee compensation plan as
part of their proposals. ISYS Br. at 6, Kalman Br. at 2, NetCentric Br. at 4–5, Nova Br. at
2–3, GaN Br. at 3. Whether an offeror’s specific professional employee compensation
plan complied with the Solicitation’s requirement to provide a “clear and convincing
rationale” is a factual question for the Agency to consider in the first instance, and not
for this Court to resolve. The Court, however, observes that: (1) GSA never reviewed
compensation plans to determine whether they provided the required rationale for rates
outside the specified ranges because, following corrective action, any direct labor rate
below the range was determined to be “fair and reasonable” per se, AR 7109, 7112; and
(2) indeed, prior to corrective action, GSA expressly rejected NetCentric’s attempt to
rely upon its compensation plan as a clear and convincing rationale for its direct labor
rates below the RFP’s set labor rate ranges. AR 9156–57. Accordingly, at least on the
record as it currently stands, the Court is skeptical that defendant-intervenors could
rely upon the compensation plans to save their contract awards and, thus, at this stage,
the Court concludes that they do not undermine WaveLink’s prejudice case.
Accordingly, with respect to Pool 3 of the instant procurement, the Court holds
that WaveLink was prejudiced by the Agency’s improper consideration of, and award
of contracts to, offerors that should have been excluded from the procurement pursuant
to the plain language of the Solicitation.
ii. Pool 1
With respect to Pool 1, where GSA awarded contracts to 12 offerors that did not
comply the RFP’s direct labor rate provision, see AR 6839–40, 6906–09, 6912, 6914, 6922,
6927, resolving WaveLink’s prejudice argument is considerably more complicated.
value determination.” Elec. Data Sys., 93 Fed. Cl. at 438–39. In sum, Judge Allegra only
addressed a situation where “even if the disappointed bidder could have revised its proposal in
light of the Government’s errors, any such differences would have been inconsequential given
the dramatic price difference[.]” Allied Tech. Grp., Inc. v. United States, 94 Fed. Cl. 16, 47 (2010)
(applying Electronic Data Systems to a factually similar case), aff’d, 649 F.3d 1320 (Fed. Cir. 2011).
47
Ultimately, the Court agrees with the government that WaveLink has not met its
burden to demonstrate prejudice in Pool 1.
As explained above, the Agency had three options with respect to non-compliant
proposals: (1) amend the Solicitation in accordance with FAR 15.206(d), (2) engage in
discussions (i.e. negotiate) with non-compliant offerors to get them to meet the
requirements, or (3) reject the proposals. With respect to Pool 3, WaveLink was
prejudiced because the Agency did none of those things and the improper awards may
well have cost WaveLink an award. In contrast, in Pool 1, even if the Agency had
rejected the non-compliant offerors, as the Agency was required to do (i.e., in the
absence of a Solicitation amendment or further negotiations and the submission of
revised, compliant proposals), WaveLink admits that it would not have secured a
contract award. Pl. Supp. Br. at 11–12. Thus, WaveLink takes a different attack angle,
arguing that it would have had a substantial chance at an award in Pool 1 if the Agency
properly (1) had amended the Solicitation to delete sections L.5.6.(h) and M.5.4.(f), and
then (2) had permitted all offerors to submit full, unlimited proposal revisions (akin to a
FPR following discussions). WaveLink maintains that the Agency was required to do
both here. Pl. MJAR at 26–32; Pl. Supp. Br. at 23–25.
There certainly is some facial appeal to WaveLink’s argument. In that regard,
FAR 15.206 provides, in relevant part:
(a) When, either before or after receipt of proposals, the
Government changes its requirements or terms and
conditions, the contracting officer shall amend the
solicitation.
(b) Amendments issued before the established time and date
for receipt of proposals shall be issued to all parties receiving
the solicitation.
.....
(d) If a proposal of interest to the Government involves a
departure from the stated requirements, the contracting
officer shall amend the solicitation, provided this can be done
without revealing to the other offerors the alternate solution
proposed or any other information that is entitled to
protection (see 15.207(b) and 15.306(e)).
FAR 15.206 (emphasis added). Thus, it would seem, where an agency accepts a
proposal that does not comply with solicitation requirements, the agency may be
48
viewed as violating two FAR provisions: (1) FAR 15.305(a), mandating that the agency
follow solicitation requirements (which violation was prejudicial to WaveLink in Pool 3,
as demonstrated above); and (2) FAR 15.206, mandating that the agency amend the
solicitation prior to accepting an otherwise non-compliant proposal.36
The analytical difficulty is that the prejudice analysis is arguably different for the
two violations. For a violation of FAR 15.305(a), the appropriate prejudice question is
whether, but for an agency’s award to ineligible offerors, the plaintiff protester would
have had a substantial chance of receiving a contract award. For a violation of FAR
15.206, on the other hand, the relevant inquiry is whether the agency’s failure to amend
the solicitation effectively precluded the plaintiff protester from submitting a revised
proposal, which revision, in turn, would have provided the protester with a substantial
chance of receiving an award. The latter inquiry, of course, requires another degree of
speculation about what might have happened “but for” the government’s challenged
conduct. That is, would the nature of the RFP amendment have required the Agency to
permit offerors to submit an unrestricted, revised or updated proposal (i.e., essentially a
FPR)? Recognizing this problem, the government responds to WaveLink’s argument
regarding FAR 15.206 with a two-prong parry. First, the government maintains that
because “GSA did not relax the requirements with respect to direct labor rates that were
below those provided in Section J.2 . . . , no amendment was necessary.” Def. Reply at
16. Second, the government asserts that “WaveLink does not offer any support for why
it would have been allowed to change its past experience and performance even if the
agency amended the solicitation to allow for different pricing.” Def. MJAR at 38
(emphasis in original). While the Court rejects the government’s first argument – at
least with respect to Pool 3 – we agree with the second argument as applied to Pool 1.
To recap, the Court agrees with the basic premise that the government’s contract
awards to ineligible offerors violated the terms of the Solicitation, FAR 15.305, and FAR
36 In Elec. Data Sys., LLC v. United States, this Court explained as follows:
“It is hornbook law that agencies must evaluate proposals and
make awards based on the criteria stated in the solicitation.” This
requirement is rooted in the Competition in Contracting Act
(CICA) and the Federal Acquisition Regulations (FAR), both of
which indicate that an agency shall evaluate proposals and assess
their qualities solely based on the factors and subfactors specified
in the solicitation. If the agency changes any evaluation criterion
after issuing the solicitation, it must amend the solicitation and
notify the offerors of the changed requirement.
93 Fed. Cl. 416, 430 (2010) (quoting Banknote Corp. of Am., Inc. v. United States, 56 Fed. Cl. 377,
386 (2003), aff’d, 365 F.3d 1345 (Fed. Cir. 2004)) (other citations omitted).
49
15.206. But those violations are not prejudicial, per se, to WaveLink in Pool 1 because
removing the ineligible offerors from the procurement would not come close to yielding
an award to WaveLink. See AR 6803–06 (identifying 72 offerors ahead of WaveLink).
Indeed, WaveLink concedes this point. See Pl. Supp. Br. at 11. On the other hand, the
only way GSA properly could have accepted the non-compliant proposals would be
through either discussions (followed by the receipt of FPRs) or via a solicitation
amendment, deleting the mandatory provision at issue. But, even if the government
had done the latter, there simply is no concrete, absolute requirement that the
government permit offerors to submit a completely new proposal (i.e., to include, in this
case, new updated experience references and a revised self-score). Accordingly, just as
the government cannot defeat WaveLink’s claim with respect to Pool 3 by speculating
that the Agency would have issued a limited solicitation amendment, so, too, WaveLink
cannot demonstrate that the government would have permitted an entirely new
proposal submission in response to an amended solicitation. Put yet differently, neither
party may speculate about what an appropriate amendment would have permitted or
precluded, but we do know that the Agency’s acceptance of non-compliant proposals
did not prejudice WaveLink in Pool 1.
While “an amendment to the Solicitation may trigger the duty to reenter into
discussions with all offerors and permit all bidders the opportunity to modify their
proposals accordingly[,]” there simply is no hard-and-fast rule that offerors must be
permitted to submit entirely new, updated proposals – akin to a FPR – in response to
any and all solicitation amendments. Portfolio Disposition Mgmt. Grp. LLC v. United
States, 64 Fed. Cl. 1, 12 (2005) (citing FAR 15.206(a) and MVM, Inc. v. United States, 46
Fed. Cl. 126, 131 (2000)); Elec. Data Sys., LLC v. United States, 93 Fed. Cl. 416, 432 (2010)
(“[T]here is no basis for such a per se rule—one in which every failure to amend in
violation of FAR § 15.206 would inevitably lead to a corresponding failure to conduct
meaningful discussions in violation of FAR § 15.306.”). Rather, such a blanket right to
submit a FPR arises only in the case of “major modifications—changes that could result
in a substantially different proposal by those competing for the contract.” Portfolio
Disposition Mgmt. Grp., 64 Fed. Cl. at 12 (citing AT & T Communications, Inc. v. Wiltel,
Inc., 1 F.3d 1201, 1205 (Fed. Cir. 1993) (new bids required only where modifications are
outside the scope of original competed contract)); Elec. Data Sys., 93 Fed. Cl. at 432–33
(“[T]he failure to amend a solicitation leads to the violation of the discussion regulation
only where: (i) application of the modified requirement would give rise to an
unacceptable deficiency or convert a portion of a proposal into a significant weakness;
(ii) the effective modification in requirements is discussed with the awardee, but not
with the relevant offeror; or (iii) a failure to conduct discussions would prejudicially
mislead an offeror.”).
50
Accordingly, WaveLink has the burden to demonstrate, specifically, that the
Agency would have been required to permit WaveLink to address the impact of a
putative amendment, such that WaveLink would have been able to update its self-score
and the bases for that score. Ocean Ships, Inc. v. United States, 115 Fed. Cl. 577, 591 (2014)
(holding that “plaintiff was obligated to provide a concrete explanation of how
amending the RFP to account for [a] ‘change’ would have led to an improved
competitive position”). WaveLink cannot simply assert that the Agency as a matter of
law would have been required to accept entirely new and improved, updated
proposals. Consol. Eng’g Servs., 64 Fed. Cl. at 639–40. In that regard, the prejudice
inquiry requires a protester to demonstrate a nexus between a solicitation requirement
that the Agency erroneously did not amend (or delete) and the proposal content that the
protester would have altered had it been informed of the solicitation change. See
Aerosage, LLC, B-415607, 2018 CPD ¶ 11, 2018 WL 272778 (Jan. 3, 2018) (denying protest
where “[t]he protester has not asserted that, let alone substantiated how, it would have
reduced its unit pricing by an amount that would have overcome the awardee's price
advantage” and finding that an “unsupported speculation that the change in delivery
schedule could have impacted its proposed price is insufficient to establish competitive
prejudice”); Triad Logistics Servs. Corp., B-406416, 2012 CPD ¶ 118, 2012 WL 937389 (Mar.
19, 2012) (rejecting protest where “the protester has offered no evidence to establish that
it was prejudiced by the agency’s failure to shorten the base period through the
issuance of an amendment” and where “[t]he protester has not asserted that it would
have reduced its unit pricing by an amount that would have overcome the awardee’s
price advantage”); Northrop Grumman Tech. Servs., Inc., B-291506, 2003 CPD ¶ 25, 2003
WL 214056 (Jan. 14, 2003) (denying protest where “Northrop Grumman has not shown
how it was prejudiced by the Army’s failure to amend the RFP” because “Northrop
Grumman has not shown that it would or could have materially improved its
competitive position, even if it had amended its proposal presuming the elimination of
the commercial helicopter requirement and the provision of the UH-1 helicopters as
[government-furnished property]”).
The problem for WaveLink, of course, is that the mandatory Solicitation
provision to which the Agency failed to adhere assuredly did not negatively impact the
proposal WaveLink submitted. That is precisely why WaveLink begins with the
mistaken premise that any amendment of the Solicitation would have required the
Agency to permit WaveLink to submit a completely revised proposal, including
updated relevant experience references. WaveLink points to no binding authority,
however, that supports such a broad rule. To the extent there is some case law
supporting such a rule,37 that is perhaps because the previous version of FAR Part 15
37See Saratoga Dev. Corp. v. United States, 777 F. Supp. 29, 38 (D.D.C. 1991) (“Numerous opinions
of the Comptroller General have sustained protests of the award of contracts where the offerors
51
apparently did contain such a requirement. Prior to 1997, FAR 15.606(c) provided that
“[i]f the proposal considered to be most advantageous to the Government (as
determined according to the established evaluation criteria) involves a departure from
the stated requirements, the contracting officer shall provide all offerors an opportunity to
submit new or amended proposals on the basis of the revised requirements.” (emphasis
added). See also Federal Acquisition Regulation; Part 15 Rewrite—Phase I, 61 Fed. Reg.
48380-01, 48386 (Sept. 12, 1996) (proposed FAR 15.205(f), requiring that “the contracting
officer shall provide all offerors an opportunity to submit new or amended proposals
on the basis of the revised requirements”). This broad language was deleted from the
FAR, however, as a part of a final rule issued in late 1997. See Federal Acquisition
Regulation; Part 15 Rewrite; Contracting by Negotiation and Competitive Range
Determination, 62 Fed. Reg. 51224-01, 51235 (Sept. 30, 1997) (Final Rule) (promulgating
FAR 15.206(d), deleting proposed 15.205(f) requirement that the contracting officer
“provide all offerors an opportunity to submit new or amended proposals on the basis
of the revised requirements”).
In sum, the current FAR provision does not contain the requirement that
previously existed in FAR 15.606(c). Thus, WaveLink has pointed to no concrete basis
upon which the Court may conclude that the Agency has a per se obligation to permit all
offerors to submit completely new or amended proposals just because the Agency
amends a solicitation in some respect. Rather, the degree to which an agency must
permit the submissions of revised proposals depends upon whether a protester can
show that the addition or deletion of a requirement or evaluation factor somehow
prejudiced the protester in the sense that it would have submitted a more advantageous
proposal with a substantial chance of winning a contract award had it known the
agency’s true requirements or evaluation factors. WaveLink made no such showing in
this case with respect to Pool 1.
were given no opportunity to respond to the deletion or relaxation of selection criteria.”), aff’d,
21 F.3d 445 (D.C. Cir. 1994); FKW Inc. Systems, B-235989, 89-2 CPD ¶ 370, 1989 WL 241269 (Oct.
23, 1989) (“Where, as here, an agency changes the ground rules or evaluation criteria of an RFP
after proposals are received, all offerors within the competitive range should be given the
opportunity to revise their proposals based on the new criteria. However, we will only sustain a
protest on this basis where this change affected the selection decision or otherwise was
prejudicial to the protester(s).” (internal citations omitted)); TMC, Inc., B-230078, 88-1 CPD ¶
492, 1988 WL 227160 (May 24, 1988) (“When an agency’s changed needs create a material
discrepancy between an RFP's statement of the agency’s requirements or the ground rules under
which a procurement will be conducted and the agency’s actual needs, all offerors within the
competitive range should be given an opportunity through appropriate discussions to revise
their proposals accordingly.” (emphasis added)).
52
V. Injunctive Relief
The Tucker Act vests this Court to award “any relief that the court considers
proper, including . . . injunctive relief.” 28 U.S.C. § 1491(b)(2); see RCFC 65. In
evaluating whether permanent injunctive relief is warranted in a particular case, a court
must consider: (1) whether the plaintiff has succeeded on the merits; (2) whether the
plaintiff has shown irreparable harm without the issuance of the injunction; (3) whether
the balance of the harms favors the award of injunctive relief; and (4) whether the
injunction serves the public interest. PGBA v. United States, 389 F.3d 1219, 1228-29 (Fed.
Cir. 2004); see CW Gov’t Travel, 110 Fed. Cl. at 494–96 (applying these four factors to an
agency award of an IDIQ contract).
With regard to Pool 1, because WaveLink has failed to succeed on the merits of
its various claims, the Court does not evaluate the remaining injunctive relief factors.
See Dell Fed. Sys., 906 F.3d at 999 (“success on the merits is a necessary element for a
permanent injunction”); Vsolvit, LLC v. United States, 151 Fed. Cl. 678, 691 (2020)
(denying injunctive relief where plaintiff failed to succeed on the merits). With regard
to Pool 3, however, WaveLink has successfully demonstrated on the merits that it was
prejudiced by GSA’s awarding contracts to as many as 18 noncompliant offerors in
violation of the Solicitation and, in turn, FAR 15.305.
In evaluating irreparable harm, “[t]he relevant inquiry . . . is whether plaintiff has
an adequate remedy in the absence of an injunction.” Magellan Corp. v. United States, 27
Fed. Cl. 446, 447 (1993). In the bid protest context, “[a] lost opportunity to compete in a
fair competitive bidding process for a contract is sufficient to demonstrate irreparable
harm.” Magnum Opus Techs., 94 Fed. Cl. at 544. Moreover, “[t]he court has repeatedly
held that the loss of potential profits from a government contract constitutes irreparable
harm.” BINL, Inc. v. United States, 106 Fed. Cl. 26, 49 (2012) (internal quotation marks
omitted). Here, WaveLink was denied the opportunity to have its proposal fairly
considered for an award in Pool 3, which is a prerequisite to competing for valuable
task orders. The Court, thus, agrees that WaveLink will suffer irreparable harm in the
absence of an injunction.
In balancing the harms, the Court notes that the government never discussed or
even asserted that it would be harmed by an injunction. See Def. MJAR at 39 (“No need
exists for the Court to consider any remaining injunctive-relief factors.”); Def. Reply at
19 (failing to address the government’s harm resulting from an injunction). Nor has
government represented to the Court whether contract awardees in Pool 3 already have
been issued task orders. Although the Court reasonably speculates that the Agency is
likely to incur some hardship due to the time, cost, and administrative effort it will need
to expend to revisit the Pool 3 procurement, the Court will not make this argument for
53
the government, particularly in the absence of any facts in the record, and where the
government could have avoided this problem by not taking inconsistent positions in
this case and DigiFlight.
The public interest also favors this Court’s granting an injunction, as “the public
always has an interest in the integrity of the federal procurement system.” Starry Assoc.,
Inc. v. United States, 127 Fed. Cl. 539, 550 (2016) (citing Hosp. Klean of Tex., Inc. v. United
States, 65 Fed. Cl. 618, 624 (2005)); see MVM, Inc. v. United States, 46 Fed. Cl. 137, 143
(2000) (“Many cases have recognized that the public interest is served when there is
integrity in the public procurement system.”). That is particularly true here given the
government’s position DigiFlight. The Court cannot allow the integrity of the
procurement system to be undermined by the government’s taking inconsistent
positions on almost identical language within the same solicitation.
*****
In sum, WaveLink is prejudiced in Pool 3 due to GSA’s failure to enforce the
Solicitation’s mandatory ineligibility provision for offerors that did not submit a
rationale for proposed direct labor rates that were below the RFP’s ranges. GSA could
have either enforced that provision as written, conducted discussions with the ineligible
offerors, or, perhaps, amended the Solicitation to delete the mandatory Solicitation
provision at issue. But GSA did not take any of these actions. Indeed, as noted above,
defendant-intervenor GaN accurately summarized the cause of this case: “Had the
Agency amended the Solicitation to be facially consistent with its commitment to GAO,
this protest never would have landed on the Court’s desk. But it did not, and the Court
concluded that it violated applicable law by evaluating contrary to the Solicitation’s
terms.” GaN Br. at 5 (internal footnote omitted). The Court agrees wholeheartedly
with GaN.
CONCLUSION
For all the above reasons, the Court:
1. DENIES the government’s motion to dismiss for lack of standing;
2. GRANTS, IN PART, WaveLink’s MJAR (relating to Pool 3) and DENIES,
IN PART, WaveLink’s MJAR (relating to Pool 1);
3. and GRANTS, IN PART, the government’s MJAR (relating to Pool 1) and
DENIES, IN PART, the government’s MJAR (relating to Pool 3).
Accordingly, the Court GRANTS WaveLink’s request for equitable relief in Pool
3. The Agency is enjoined from proceeding with the unlawfully awarded contracts as
54
explained in this opinion and order, as well as from awarding new work under such
contracts until the terms of this injunction are met. Specific task orders or work already
in progress, however, may be completed. To address the illegality and procurement
defects identified in this opinion and order, the Agency is further directed to take one of
the following actions: (1) enforce the mandatory Solicitation provision as written, see
FAR 15.305, cancel the award to any ineligible offerors, and continue the self-score
verification process to determine whether WaveLink is eligible for an award in Pool 3
following an updated re-ranking; or (2) engage in discussions with ineligible offerors to
bring their proposals into compliance (and, relatedly, to permit all offerors to submit
FPRs); or (3) amend the Solicitation to delete the mandatory Solicitation provisions at
issue, and to fully comply with FAR 15.206, see, e.g., FAR 15.206(c) (requiring notice to
“all offerors that have not been eliminated from the competition”). With respect to the
first option, the Agency must decide which offerors, if any, are ineligible for award after
applying the Solicitation language at issue, as interpreted by the Court in this opinion.
With respect to the latter two options, the government must consider in the first
instance whether (a) the unlawfully awarded contracts must be terminated (with the
exception of any ongoing work) and (b) there is any basis either for limiting the scope of
a FPR (if the Agency selects option 2) or for precluding offerors from responding with
an entirely updated, new proposal (if the Agency selects option 3).
Although the government during the June 16, 2021 status conference detailed its
intended course of action in the event the Court were to reissue injunctive relief in
substantially the same terms, as it does here, the Court expresses no further view on the
optimum way to remedy the government’s violation of the Solicitation and the FAR.38
Thus, the Agency retains maximum flexibility within the foregoing parameters.
Although the Court is mindful of its own view that an Agency’s corrective action –
whether voluntary or in response to an injunction – may create yet additional
unanticipated protests grounds, the Court is not in a position to approve the Agency’s
planned course of conduct by incorporating it into this order or otherwise. In
particular, for example, the Court cannot foresee what impact, if any, the government’s
selected remedy may have on Pool 1 offerors or awardees. See AR 7002. Nor, for that
matter, can the Court anticipate either the (possible) prejudice any amendment, at this
late date, may have on unawarded offerors or whether an amendment properly may
retroactively cure, nunc pro tunc, awards made prior to the amendment under different
solicitation terms. The government, however, should consider the ramifications of each
option above and keep in mind that, depending upon the selected option, all Pools may
38On June 24, 2021, the government filed a status report laying out in detail its intended
approach to meeting the terms of the previously issued, but stayed, injunction. See ECF
No. 112. Because this opinion and order replaces the one previously issued, any concerns with
the terms of the prior, stayed-injunction are moot.
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be impacted. See AR 7002. Finally, the Court notes that this limited injunction accounts
for the time and effort that the Agency previously expended in evaluating and
awarding these contracts.
IT IS SO ORDERED.
s/Matthew H. Solomson
Matthew H. Solomson
Judge
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