Decisionpoint Corporation v. United States

In the United States Court of Federal Claims

No. 24-782C

(Filed Under Seal: December 9, 2024)

(Reissued: January 14, 2025)

FOR PUBLICATION

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DECISIONPOINT CORPORATION, *

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Plaintiff, *

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v. *

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THE UNITED STATES, *

*

Defendant. *

*

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Kenneth A. Martin, The Martin Law Firm, PLLC, McLean, VA, for Plaintiff.

Mariana Teresa Acevado, Trial Attorney, Commercial Litigation Branch, Civil

Division, United States Department of Justice, Washington, D.C., for Defendant.

With her on the briefs were Brian M. Boynton, Principal Deputy Assistant Attorney

General, Patricia M. McCarthy, Director, and William J. Grimaldi, Assistant

Director, Commercial Litigation Branch, Civil Division, United States Department of

Justice, Washington, D.C. Also on the briefs were Ronald C. Walton and Joshua B.

Fix, Trial Attorneys, Contract Litigation & Intellectual Property Division, U.S. Army,

Fort Belvoir, VA.

OPINION AND ORDER

Plaintiff DecisionPoint Corporation brings this post-award bid protest

challenging the Department of the Army’s decision to award a contract to Peterman

& Sons Solutions (“P&S”). Compl. (ECF 1). Plaintiff argues that the Army’s award to

P&S was arbitrary and capricious because P&S and its subcontractor had formed a

joint venture that was ineligible to receive the award. Plaintiff also argues that the

Army failed to evaluate P&S’s experience according to the terms of the solicitation

and failed to perform a “best value” determination as the solicitation required. The



Pursuant to the protective order in this case, the Court initially filed this opinion under seal on

December 9, 2024, for the parties to propose redactions of confidential or proprietary information. The

parties were directed to propose redactions by December 23, 2024. The parties notified the court via

email on January 6, 2025, that there were no proposed redactions. The Court hereby releases publicly

the opinion and order of December 9 in full.

parties have filed cross-motions for judgment on the administrative record, and I have

heard oral argument.1 For the reasons discussed below, Plaintiff’s motion is

DENIED, and Defendant’s motion is GRANTED. The case is DISMISSED.

BACKGROUND

I. The Solicitation

The Army issued a solicitation, No. W-912CN-23-R-0027, for a single-award,

fixed-price contract for Maintenance Assistance and Instruction Team (“MAIT”)

support for units in the Pacific. AR 301, 318, 322.

The procurement was set aside for offerors that qualified as “Service-Disabled

Veteran Owned Small Businesses” under NAICS Code 541614 (“qualified small

businesses”). AR 381, 1272; see also 13 C.F.R. § 128.401. But the solicitation also

permitted offerors to team up with subcontractors that were not qualified small

businesses, so long as the offeror complied with the limitations on subcontracting set

out in the Federal Acquisition Regulation. See AR 7, 373–74; see also 48 C.F.R.

(“FAR”) § 52.219-14.

After a threshold review for form, the proposals were to be evaluated on a “best

value” basis, meaning the final award would be made to the bid that provided the

best overall value to the government given the price, not necessarily to the bid with

the lowest price. AR 381, 397–98; FAR § 15.300 et seq.; see Konecranes Nuclear Equip.

& Servs., LLC v. United States, 165 Fed. Cl. 421, 426 (2023). The evaluation

considered three factors: (1) Key Personnel and Staffing, (2) Past Performance, and

(3) Price. AR 398. The first factor would be rated as either acceptable or unacceptable.

Id. Offers deemed technically acceptable would reach consideration of the second two

factors, which would be given “approximately equal” weight. AR 386, 397–98.

This protest centers on the Past Performance factor, which was intended to

“determine whether there is a reasonable expectation that the offeror can successfully

perform the MAIT requirements.” AR 400. The Army’s review of Past Performance

examined the recency, relevancy, and quality of previous work the offeror listed as

Past Performance Information (“PPI”). AR 400–01. “Relevancy,” the aspect of Past

Performance most pertinent here, depended on whether the PPI was “the same or

similar in nature, size, and complexity to the services being procured under this

solicitation.” AR 387. For purposes of the Past Performance evaluation, “the ‘offeror’

include[d] any joint ventures, subcontractors, and/or teaming partners proposed as

1 Administrative Record (“AR”) (ECF 11); Pl.’s Mot. for J. on the Administrative R. (“Pl.’s MJAR”) (ECF

12); Def.’s Cross-Mot. for J. on the Administrative R. & Opp. (“Def.’s MJAR”) (ECF 13); Pl.’s Resp. to

Def’s Cross-Mot. & Reply (“Pl.’s R&R”) (ECF 15); Def.’s Reply (ECF 19); Transcript of Oral Argument

(“Tr.”) (ECF 21).

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part of the prime contractor’s team under this effort,” AR 400, meaning that proposals

could include PPIs attributable to either the offeror or its team partners.

The Army evaluated PPIs using the following rating system:

Rating Description

Very Present/past performance effort involved essentially the same scope

Relevant and magnitude of effort and complexities this solicitation requires.

Relevant Present/past performance effort involved similar scope and

magnitude of effort and complexities this solicitation requires.

Somewhat Present/past performance effort involved some of the scope and

Relevant magnitude of effort and complexities this solicitation requires.

Not Present/past performance effort involved little or none of the scope

Relevant and magnitude of effort and complexities this solicitation requires.

AR 401. The offeror’s overall Past Performance was, in turn, assigned one of five

confidence ratings based on the likelihood the offeror could perform the contract: No

Confidence, Limited Confidence, Neutral Confidence, Satisfactory Confidence, and

Substantial Confidence. AR 400.

II. The P&S Proposal

P&S’s proposal identified itself as the prime contractor working with a

subcontractor, The Oryza Group. AR 1981. P&S was a qualified small business, but

Oryza was not. See AR 124.

P&S stated that it would operate with Oryza “as a single entity,” further

explaining that “[a]s an integrated organization hereafter known as Team P&S, we

will operate under unified plans, procedures, and controls to provide the Government

with a unified force for responsive and cost-effective support.” AR 1981 (emphasis in

original). Nevertheless, P&S clarified that while it would work with Oryza as a “single

unit,” P&S would “perform services for all management positions on the contract ,”

and the proposal stated that P&S has a “proven ability to manage subcontractors.”

Id.

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The proposal further depicted Team P&S’s organizational structure in the

following flowchart:

AR 1978. The flowchart shows that P&S would run the Corporate Project

Management Office (“PMO”). Id. The PMO is connected to Oryza by a purple bracket,

meaning — according to the legend at lower left — “Internal Coordination.” Id.

In a table setting forth P&S’s proposed labor rates, P&S listed the roles of

Program Manager, Alternate Program Manager, Instructor/Course Developer, and

Instructors in one out of three locations as exclusively filled by P&S as the prime

contractor. AR 2039. The remaining two Instructor positions would be shared by the

prime and subcontractor. Id.

P&S included three PPIs for evaluation of Past Performance. The first PPI was

for a contract on which P&S served as the subcontractor, AR 1983, the second for a

contract on which Oryza served as the subcontractor, AR 1986, and the third for a

contract on which Oryza served as the prime, AR 1989.

Upon submission of the proposal, P&S stated that it “agree[d] with all terms,

conditions, and provisions included in the solicitation.” AR 1979. Further, Team P&S

certified that it would “abide by and faithfully execute all contract requirements set

forth in the Request for Proposal and its associated attachments.” AR 1982.

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III. Evaluation of Proposals and Award of Contracts

The Army initially received seven proposals. AR 2292. Only the DecisionPoint

and P&S proposals received an “acceptable” technical rating, so only those two

proposals reached an evaluation of Past Performance. AR 2292, 3272.

The Army’s Source Selection Evaluation Board (“SSEB”) rated one of P&S’s

PPI submissions “relevant” and the other two “somewhat relevant.” AR 2173, 2179–

80. For each PPI, the SSEB stated which experience items were similar or shared

some of the scope, magnitude, and complexities of this solicitation. AR 2179–80.

Those explanations focused on what kind of work and skills the PPI items involved,

and on what scale. Id. For the two PPIs receiving a “somewhat relevant” rating, the

SSEB included a brief explanation why the submission had not received a “relevant”

or “very relevant” rating instead. Id. Based on those evaluations, the Army assigned

P&S a Past Performance rating of “Satisfactory Confidence.” AR 2180.

The Source Selection Authority (“SSA”) performed the best value

determination. AR 2365–69. The SSA stated his concurrence with the SSEB ratings

but also explained why P&S’s PPIs that received “somewhat relevant” ratings may

have been stronger than noted in the SSEB summary. See AR 2366 (explaining that

the past performance in PPI #1 “clearly involve[d] many other critical facets of the

PPI’s” and demonstrated “extreme fluency with [s]upply and property management

and accountability programs,” and that PPI #3 was related to a Navy service contract,

but “the actual performance was very similar to the Army’s MAIT program”). The

SSA separately noted that Oryza had relevant experience and ultimately stated that

the “conglomerate of experience substantiates the overall ‘Satisfactory Confidence’

rating.” AR 2367.

DecisionPoint received a Past Performance rating of “Substantial Confidence,”

AR 2165, a step higher than P&S’s “Satisfactory Confidence” rating. AR 2173. But its

quoted price was approximately $1.7 million higher than P&S’s. AR 2369, 3275–76.

The SSA compared the offers under performance-price tradeoff procedures, see AR

2367–69, and determined that the P&S proposal represented the best value to the

government. See AR 2369 (“With past performance approximately equal to price,

[DecisionPoint]’s higher past performance rating of Substantial Confidence, one level

above [P&S]’s Satisfactory Confidence, does not warrant the substantial price

differential of an additional $1,701,714.56.”).

After a debriefing explaining the Army’s decision, see AR 3269–76,

DecisionPoint filed the present bid protest.

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DISCUSSION

I. Legal Standards

A. Jurisdiction and Standing

To reach the merits of the case, I must first determine that the Court has

jurisdiction over DecisionPoint’s claims. See Steel Co. v. Citizens for a Better Env’t,

523 U.S. 83, 94 (1998). This Court’s jurisdiction in post-award bid protests is derived

from the Tucker Act, as amended by the Administrative Dispute Resolution Act of

1996, Pub. L. No. 104-320, § 12(a)–(b), 110 Stat. 3870, 3874 (1996) (codified at 28

U.S.C. § 1491(b)). See Dyonyx, L.P. v. United States, 83 Fed. Cl. 460, 464–65 (2008).

The Tucker Act now grants this Court jurisdiction “to render judgment on an action

by an interested party objecting to ... the award of a contract or any alleged violation

of statute or regulation in connection with a procurement[.]” 28 U.S.C. § 1491(b)(1).

This Court is empowered under the statute to “award any relief that the court

considers proper, including declaratory and injunctive relief[.]” 28 U.S.C. § 1491(b)(2).

DecisionPoint must also have standing to challenge the contract award.

DecisionPoint has Article III standing because it claims an injury — specifically,

rejection of its bid — which is traceable to the allegedly defective procurement process

and which could be redressed by this Court. See Lujan v. Defs. of Wildlife, 504 U.S.

555, 560–61 (1992).

The “interested party” requirement goes only to “statutory standing,” and is

therefore not jurisdictional in a strict sense. CACI, Inc.-Fed. v. United States, 67 F.4th

1145, 1151 (Fed. Cir. 2023). Nonetheless, “when the plaintiff is arguing that the

[government] made an error in evaluating the bid of another contractor,” a judicial

determination of statutory standing remains “required,” although it does not need to

be made before reaching the merits. Id. at 1152.

To establish that it is an interested party, a plaintiff must show (1) that it is

an “actual or prospective bidder” and (2) that it “possesses the requisite direct

economic interest.” Rex Serv. Corp. v. United States, 448 F.3d 1305, 1307 (Fed. Cir.

2006) (citing Myers Investigative & Sec. Servs., Inc. v. United States, 275 F.3d 1366,

1369–70 (Fed. Cir. 2002) (itself citing Lujan, 504 U.S. at 561)). Here, there is no

dispute that DecisionPoint meets the two-part test. First, DecisionPoint was an

actual bidder who submitted a proposal. AR 1582–84. Second, DecisionPoint has the

requisite economic interest because — as the only offeror other than P&S that met

the solicitation’s technical requirements, AR 2292 — it “had a substantial chance of

being awarded the contract.” McVey Co., Inc. v. United States, 111 Fed. Cl. 387, 405

(2013); Weeks Marine, Inc. v. United States, 575 F.3d 1352, 1359 (Fed. Cir. 2009)

(quoting Rex Serv. Corp., 448 F.3d at 1308).

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B. Standard of Review

This Court reviews bid protests “pursuant to the standards set forth in section

706 of title 5,” i.e., the Administrative Procedure Act. 28 U.S.C. § 1491(b)(4); see

Banknote Corp. of Am., Inc. v. United States, 365 F.3d 1345, 1350 (Fed. Cir. 2004).

The protester must show that the agency’s action was arbitrary and capricious and

that it was prejudiced by the agency’s conduct. 5 U.S.C. § 706; see, e.g., Bannum, Inc.

v. United States, 404 F.3d 1346, 1351 (Fed. Cir. 2005); Weeks Marine, 575 F.3d at

1358. When resolving motions for judgment on the administrative record under Rule

52.1(c), this Court proceeds “as if it were conducting a trial on the record.” Bannum,

404 F.3d at 1354 (addressing former RCFC 56.1); see also Young v. United States, 497

F. App’x 53, 58–59 (Fed. Cir. 2012) (addressing the standard under RCFC 52.1 and

citing Bannum, 404 F.3d at 1356).

There are two bases for setting aside government procurements as arbitrary

and capricious: “(1) the procurement official’s decision lacked a rational basis; or (2)

the procurement procedure involved a violation of regulation or procedure.” Impresa

Construzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324, 1332 (Fed. Cir.

2001); see also Weeks Marine, 575 F.3d at 1358; Bannum, 404 F.3d at 1351; Advanced

Data Concepts, Inc. v. United States, 216 F.3d 1054, 1057–58 (Fed. Cir. 2000). The

first route involves determining “whether the contracting agency provided a coherent

and reasonable explanation of its exercise of discretion.” Impresa, 238 F.3d at 1332–

33 (quotes omitted) (quoting Latecoere Int’l, Inc. v. United States Dep’t of Navy, 19

F.3d 1342, 1356 (11th Cir. 1994)). To succeed, “the disappointed bidder bears a heavy

burden of showing that the award decision had no rational basis.” Id. at 1333 (quotes

omitted) (quoting Saratoga Dev. Corp. v. United States, 21 F.3d 445, 456 (D.C. Cir.

1994)). The second route requires the disappointed bidder to “show a clear and

prejudicial violation of applicable statutes or regulations.” Id. (quotes omitted)

(quoting Kentron Hawaii, Ltd v. Warner, 480 F.2d 116, 1169 (D.C. Cir. 1973), and

Latecoere, 19 F.3d at 1356). In either case, this Court’s review is “highly deferential”

to agency decision-making, Advanced Data Concepts, 216 F.3d at 1058 — especially

in an award based on best value, where “the contracting officer ha[s] even greater

discretion than if the contract were to have been awarded on the basis of cost alone.”

Galen Med. Assocs., Inc. v. United States, 369 F.3d 1324, 1330 (Fed. Cir. 2004); see

also Cleveland Assets, LLC v. United States, 883 F.3d 1378, 1382 (Fed. Cir. 2018).

II. Merits

DecisionPoint argues that the award to P&S was flawed in various respects.

First, DecisionPoint argues that P&S and Oryza were in effect a joint venture

that was not a qualified small business for purposes of the procurement. Compl.

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¶¶ 32, 55; Pl.’s MJAR at 12–15. DecisionPoint is studiously vague, though, about the

exact legal basis of that argument.

Teams composed of prime contractors and their subcontractors — as distinct

from joint ventures — are a common feature of federal procurements. See FAR

§ 9.601. Sometimes teaming arrangements give rise to questions about whether the

offeror is genuinely a qualified small business, in which case the Small Business

Administration (“SBA”) makes size determinations about contract offerors on request

from procuring agencies. See 13 C.F.R. §§ 121.901, 121.1001 et seq.; FAR § 19.301-

1(f); Tr. at 30–31, 33. Under 13 C.F.R. § 121.103(h)(3), the SBA can decide that an

offeror and its “ostensible subcontractor” are in fact a joint venture for purposes of

size qualifications.2 But DecisionPoint disclaimed reliance on the ostensible

subcontractor rule, see Tr. at 5 (seeking to “differentiat[e] what I think the issue is

here versus the ostensible subcontractor rule”), 6–7, and is not requesting that P&S

be referred to the SBA for a size determination, Tr. at 36, 38–39, 81, 85–86.

So what is DecisionPoint really saying? All that remains, apparently, is a

theory that in the P&S proposal, the functions of P&S and Oryza were so integrated

that the companies must have been a joint venture, compelling the Army to consider

an SBA referral. Tr. at 36, 38–39, 81, 86; see Pl.’s MJAR at 7–8, 12–13, 16, 18; Pl.’s

Resp. at 4–9, 12. That makes little sense: As explained above, P&S’s proposal

explained in several ways how its functions and Oryza’s would be distinct — with

P&S in charge. See AR 1978, 1981.

At most, DecisionPoint cites P&S’s assurance that “[a]s an integrated

organization, hereafter known as Team P&S, we will operate under unified plans,

procedures, and controls to provide the Government with a unified force for

responsive and cost-effective support.” AR 1981 (emphasis in original). But the same

page of the proposal states that P&S will fill all management positions, and that P&S

is a “low risk” option because of its “[p]roven ability to manage subcontractors.” Id.

At any rate, the solicitation asked offerors to demonstrate that they would

“successfully integrate and coordinate all activities” under the contract. AR 342. In

context, the language P&S relies on merely reflects the solicitation’s own language

2 DecisionPoint also referred at argument to what it called the “general affiliation rules” of 13 C.F.R.

§ 121.103. Tr. at 34. But that argument was not visible in DecisionPoint’s briefs and is therefore

forfeited. See SmartGene, Inc. v. Advanced Biological Lab’ys, SA, 555 F. App’x 950, 954 (Fed. Cir. 2014)

(“It is well established that arguments that are not appropriately developed in a party’s briefing may

be deemed waived.”) (citing SmithKline Beecham Corp. v. Apotex Corp., 439 F.3d 1312, 1320 (Fed. Cir.

2006). DecisionPoint expressly waived any argument that P&S and Oryza formally entered into an

undisclosed joint venture. Tr. at 6; see also FAR § 9.601(a).

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back to the government, conveying an assurance that P&S and Oryza would work

together smoothly to give the Army what it wants.

P&S certified “agree[ment] with all terms, conditions, and provisions included

in the solicitation,” including small business qualifications, upon submission of the

proposal. AR 1979. A contracting agency must sometimes look past the form of a

certification and consider whether an offeror would satisfy the substance . Allied Tech.

Grp., Inc. v. United States, 649 F.3d 1320, 1330–31 (Fed. Cir. 2011); see Per Aarsleff

A/S v. United States, 829 F.3d 1303, 1315 (Fed. Cir. 2016). But contracting officers

are “generally entitled to rely on a contractor’s certifications” unless the proposal, on

its face, calls the offeror’s status into question or indicates that the offeror “could not

and would not comply” with the solicitation requirements. Harmonia Holdings Grp.,

LLC v. United States, 999 F.3d 1397, 1405–06 (Fed. Cir. 2021) (collecting cases)

(quotes omitted); see also FAR § 19.301-1(f) (“The contracting officer shall accept an

offeror’s representation in a specific bid or proposal that it is a small business unless

... the contracting officer has a reason to question the representation.”). Here,

DecisionPoint cannot show that the Army “necessarily abused [its] discretion” by

accepting P&S’s certifications at face value. Harmonia Holdings, 999 F.3d at 1407.

Even if there were red flags in P&S’s proposal that might have suggested an

unusual merging of operations between P&S and Oryza, the SBA has provided by

regulation that it will not find that a qualified prime and its non-qualified

subcontractor have formed a joint venture when the prime meets the limitations on

subcontracting set forth in 13 C.F.R. § 125.6. See 13 C.F.R. § 121.103(h)(3)(iii). That

regulation, in a services procurement like this one, is satisfied when a qualified prime

does not pay more than fifty percent of its labor costs to subcontractors that are not

“similarly situated,” i.e., also qualified small businesses. See 13 C.F.R. § 125.6(a)(1).3

P&S’s labor rates table reflect that more than fifty percent of labor costs would go to

P&S. AR 1140; Def.’s Reply at 8. DecisionPoint conceded at argument that P&S would

comply with the limitations on subcontracting, Tr. at 28, which would rule out the

3 DecisionPoint relies on the SBA’s decision in Size Appeal of: SecTek for the proposition that a prime

that will complete over fifty percent of the work can nonetheless be treated as a joint venturer with its

subcontractor based on the totality of the circumstances. SBA No. SIZ-4558, 2003 WL 21876712, at *5

(May 14, 2003); Tr. at 39–41. But SecTek interpreted 13 C.F.R. § 121.103 as it existed in 2003, before

the safe harbor to the ostensible subcontractor rule was added in May 2023. Compare 13 C.F.R.

§ 121.103(h)(4) (effective through 2005), with 13 C.F.R. § 121.103(h)(3)(iii) (adding the relevant safe

harbor in the version effective May 2023–August 2023 and maintaining it through the time of the

solicitation and protest in the version effective August 2023–March 2024 and the current version,

effective March 2024–present). Under the current version of the regulation, the totality of

circumstances analysis in 13 C.F.R. § 121.103(h)(3)(i) only matters when the safe harbor of 13 C.F.R.

§ 121.103(h)(3)(iii) is inapplicable.

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SBA finding a joint venture under 13 C.F.R. § 121.103(h) even if the Army had made

a referral.

Second, DecisionPoint takes issue with the Army’s analysis of P&S’s Past

Performance. Most importantly, DecisionPoint objects to the adjectival ratings

assigned to P&S’s PPIs. Pl.’s MJAR at 20–22. That is a difficult argument. The SSEB

explained its choice of adjectival ratings, including its reasons for not awarding

higher ratings. See AR 2179–80. The SSA then exercised independent judgment to

reach the same overall conclusions. AR 2366–67. Because the Court does not evaluate

proposals anew, it will not second guess the discretionary determinations of

procurement officials. E.W. Bliss Co. v. United States, 77 F.3d 445, 449 (Fed. Cir.

1996); AccelGov, LLC v. United States, 170 Fed. Cl. 508, 518 (2024). Instead,

DecisionPoint must establish that the government acted “arbitrarily, capriciously, or

contrary to the terms of the solicitation.” Harmonia Holdings, 999 F.3d at 1408.

In essence, DecisionPoint disagrees with the Army’s opinion about how P&S’s

PPIs compare with the work required by the solicitation. See Pl.’s MJAR at 20–21.

For example, DecisionPoint argues that P&S’s PPI #1 could not have been “somewhat

relevant” to the solicitation because it was for a $4 million subcontract and the work

did not involve training, assessment, or instruction. Pl.’s MJAR at 20. But the SSEB

took that into account, reasoning that the PPI involved other kinds of relevant work

with “some” of the magnitude, effort, and complexity required by the solicitation. AR

2179. The SSEB also acknowledged that PPI #1 did not include the other kinds of

work DecisionPoint mentions. Id. The SSEB thus assigned a “somewhat relevant”

rating rather than “relevant” or “very relevant.” Id. It is hard to see anything

arbitrary about that: Because the Army provided a “coherent and reasonable

explanation” rooted in the record, Impresa, 238 F.3d at 1332–33 (quotes omitted), its

discretionary assignment of the adjectival ratings cannot be disturbed.

Even if the adjectival ratings were debatable, DecisionPoint has failed to

explain why I should set them aside. DecisionPoint argues, for example, that the

Army failed to take into account differences between the size of P&S’s PPIs and the

size of the present procurement. See Pl.’s MJAR at 15, 19–21. Not only were

DecisionPoint’s own calculations about the projects’ relative size s largely

unexplained, see Pl.’s MJAR at 20–21, but DecisionPoint conceded at oral argument

that they were wrong, and it never provided accurate estimates or explained its

methods. Tr. at 40. That is hopelessly inadequate as a basis for overturning the

Army’s exercise of discretion.

DecisionPoint relatedly argues that the Army should have at least

distinguished P&S’s and Oryza’s experience when considering Past Performance,

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Pl.’s MJAR at 18, 22, but that contradicts the terms of the solicitation, which

explicitly required the Army to treat the experience of a prime and subcontractor

together. AR 400 (stating that for “purposes of this evaluation, the ‘offeror’ includes

any joint venturers, subcontractors and/or teaming partners proposed as part of the

prime contractor’s team under this effort”); 13 C.F.R. § 121.103(h)(3)(ii) (allowing “a

prime contractor [to] use the experience and past performance of a subcontractor to

enhance or strengthen its offer”); see also, e.g., PAI Corp. v. United States, No. 09-

411C, 2009 WL 3049213 *8–9 (Fed. Cl. Sept. 14, 2009), aff’d, 614 F.3d 1347 (Fed. Cir.

2010). The Army likely would have acted arbitrarily if it had distinguished P&S’s and

Oryza’s Past Performance as DecisionPoint proposes.

Third, DecisionPoint argues that the Army lacked a rational basis for its

tradeoff analysis and instead selected P&S’s proposal because it offered the lowest

technically acceptable price, rather than the best value . Pl.’s MJAR at 23–25. That

argument directly contradicts the record, which showed that the Army SSA

considered DecisionPoint’s higher Past Performance rating and decided that it did

not justify DecisionPoint’s much higher price. See AR 2365–69. That is a rational

decision supported by the record, so this Court cannot overturn it. See Cleveland

Assets, 883 F.3d at 1382.

CONCLUSION

For the foregoing reasons, Defendant’s Cross-Motion for Judgment on the

Administrative Record (ECF 13) is GRANTED. Plaintiff’s Motion for Judgment on

the Administrative Record (ECF 12) is DENIED. The case is DISMISSED.

Pursuant to the Court’s May 28, 2024, Protective Order (ECF 10), this Opinion

has been issued under seal. The transcript of oral argument is under seal as well. The

parties shall have two weeks to propose redactions and, accordingly, are ORDERED

to file notice of their proposed redactions no later than December 23, 2024. To aid

the Court’s evaluation of the proposed redactions and in light of the “presumption of

public access to judicial records,” Baystate Techs., Inc. v. Bowers, 283 F. App’x 808,

810 (Fed. Cir. 2008) (per curiam), each party shall file a memorandum explaining

why redactions are necessary for each item of information for which a redaction is

proposed.

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The parties have not complied with their obligation to file redacted versions of

their own filings. See Protective Order ¶ 12. The parties are ORDERED to file the

required redacted versions by December 23, 2024.

The Clerk is directed to enter judgment accordingly.

IT IS SO ORDERED.

s/ Stephen S. Schwartz

STEPHEN S. SCHWARTZ

Judge

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