# Decisionpoint Corporation v. United States

> United States Court of Federal Claims · January 14, 2025

URL: https://www.frixlaw.com/law-library/cases/10780722

## Case

- **Court:** United States Court of Federal Claims
- **Decided:** January 14, 2025
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Stephen S. Schwartz
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

In the United States Court of Federal Claims
No. 24-782C
(Filed Under Seal: December 9, 2024)
(Reissued: January 14, 2025)
FOR PUBLICATION
*************************************
DECISIONPOINT CORPORATION, *
*
Plaintiff, *
*
v. *
*
THE UNITED STATES, *
*
Defendant. *
*
*************************************
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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10780722. Public record. Not legal advice.