Acmesolv, LLC v. United States

In the United States Court of Federal Claims

No. 24-1282C

(Originally Filed: February 6, 2025)

(Re-issued: February 11, 2025) 1

*********************

ACMESOLV, LLC,

Plaintiff,

v.

THE UNITED STATES,

Defendant,

and

ARLLUK TECHNOLOGY SOLUTIONS, LLC,

Intervenor.

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Brad W. English, Huntsville, AL, with whom were Emily J. Chancey,

Michael R. Pillsbury, Taylor R. Holt, and Hunter M. Drake, for the plaintiff.

Nelson Kuan, Trial Attorney, United States Department of Justice,

Commercial Litigation Branch, Washington, D.C., with whom were Brian

M. Boynton, Principal Deputy Assistant Attorney General, Patricia M.

McCarthy, Director, and Steven J. Gillingham, Assistant Director for the

defendant. Adam Humphries, U.S. Department of Agriculture, of counsel.

Devon Elizabeth Hewitt, Washington, D.C., for the defendant-

intervenor.

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This opinion was originally issued under seal pursuant to the protective

order (ECF No. 11). The parties agree that no redactions are necessary—the

opinion thus appears in full.

OPINION

BRUGGINK, Senior Judge.

In this post-award bid protest, AcmeSolv, Inc. (“AcmeSolv”) alleges

that the United States Department of Agriculture (“USDA”) improperly

awarded a contract to Arlluk Technology Solutions, LLC (“Arlluk”), the

intervenor, for cybersecurity services, because the agency erroneously

evaluated AcmeSolv’s proposal. Plaintiff seeks a permanent injunction to

prevent the USDA from allowing performance under this solicitation by

Arlluk and to direct the USDA to perform a new evaluation and make a new

award decision. Plaintiff has filed its motion for judgment on the

administrative record. The government has cross-moved. Oral argument was

held on January 29, 2025. As we announced at oral argument, because

plaintiff fails to show that the agency made an arbitrary and capricious award

decision or that it was prejudiced by any errors in the procurement process,

we deny plaintiff’s motion and grant the government’s cross motion for

judgment on the administrative record.

BACKGROUND

I. The Solicitation

The USDA Rural Development Technology Office issued a small

business set-aside solicitation, No. 12SAD123R003, to procure professional

technology services, including managing “a full range of IT cybersecurity,

compliance, quality assurance, program management and surge support

services.” Administrative Record (“AR”) 1487. The USDA intended to

award a single, Firm Fixed Price, Indefinite Delivery, Indefinite Quantity

(“IDIQ”) contract, to the offeror who represented the best value to the

agency. Id. The contract was set for a base period of 12 months with three

optional 12-month extension periods for a total estimated value of

approximately $24.5 million. AR 1487–88, 1594. The solicitation

contemplated work under four Focus Areas: Focus Area One: Cybersecurity,

Information Assurance and Risk Management Services; Focus Area Two:

Compliance and Assessment Services; Focus Area Three: Quality Assurance

and Testing Services; and Focus Area Four: Surge Support Services for

Modernization Efforts. AR 557–69.

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II. Evaluation Criteria

In making an award on a best value basis, the agency was to use the

following factors for its evaluation:

Factor 1 – Technical

Technical Subfactor 1 – Experience

Technical Subfactor 2 – Technical Approach

Technical Subfactor 3 – Qualifications

Technical Subfactor 4 – Quality Control

Factor 2 – Past Performance

Factor 3 – Price

AR 1493–99. When combined, Factors One and Two were equally as

important as Price; however, Factor One, Technical, was “significantly”

more important than Factor Two, Past Performance. AR 1490.

Under Technical Subfactor One, Experience, the USDA took into

consideration “the capabilities, past performance, and experience” of each

offeror. AR 1493. The agency required each offeror to provide information

from up to five relevant and recent past contracts that best relate to the

solicitation’s four main Focus Areas. AR 1493. This information included

the contract, a brief description of the work performed, period of

performance, contract value, invoiced amount, and the client point of

contract (“POC”). Id. A project was considered “recent” if it was performed

within the last three years. Id. Under this subfactor, offerors were also

required to send questionnaires to the relevant POCs for each listed contract,

asking them to “verify the relevant contract information the Offeror listed,”

indicate whether “the POC would hire [the] company again,” and state

“whether [the] company’s performance was: Exceptional, Very Good,

Satisfactory, Marginal, or Unsatisfactory.” AR 1494. This information would

be “evaluated to determine how closely it matches the [Performance Work

Statement’s] requirements in scope and size.” Id.

Technical Subfactor Two, Technical Approach, required each offeror

to provide a detailed narrative describing its technical plan to address each

Focus Area. AR 1494. This narrative was to identify technical risks and

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solutions, explain how the work would be completed, demonstrate an

understanding of IT security standards, and include any exceptions or

assumptions associated with performing the work. AR 1494–95. Technical

Subfactor Three, Qualifications, required each offeror to identify and submit

resumes for key personnel. AR 1495–96. Each offeror’s key personnel were

to have the necessary qualifications and certifications, which was to include,

among other things, risk management framework experience. Id. Technical

Subfactor Four, Quality Control, required each offeror to submit a Quality

Control Plan for addressing each Focus Area. AR 1497.

Under the Past Performance Factor, the USDA reviewed each

offeror’s past contract questionnaires already submitted under Technical

Subfactor One, Experience. AR 1498. The solicitation stated that, in

evaluating an offeror’s proposal under the Past Performance Factor, “[t]he

primary question under consideration will be whether [the] company’s

performance was: Exceptional, Very Good, Satisfactory, Marginal, or

Unsatisfactory.” Id. If a past contract reference failed to return a

questionnaire to the USDA, “the evaluation rating under the Past

Performance Factor . . . may result in an unknown confidence level rating,

which is neither favorable nor unfavorable.” Id. The USDA also retained the

right to evaluate Past Performance by reviewing information available in the

Contractor Performance Assessment Reporting System (“CPARS”). Id.

CPARS constitute evaluations for past government contracting work,

applying the same performance ratings to six evaluation areas: Quality,

Schedule, Cost Control, Management, Small Business Subcontracting, and

Regulatory Compliance. AR 1095, 1109, 1116. To be a valid CPARS

reference, the work had to be similar in scope to the solicitation and

performed within the last five years. Id. at 1498. After evaluating Technical

and Past Performance, the USDA applied the following confidence ratings

to each of the two factors:

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Rating Description

The Government has supreme confidence that the

Offeror understands the requirement, proposes a sound

Supreme Confidence

approach, and will be successful in performing the

contract with no Government intervention.

The Government has high confidence that the Offeror

understands the requirement, proposes a sound approach,

High Confidence and will be successful in performing the contract with

very little Government intervention.

The Government has satisfactory confidence that the

Offeror understands the requirement, proposes a sound

Satisfactory Confidence approach, and will be successful in performing the contract

with some Government intervention.

The Government has low confidence that the Offeror

understands the requirement, proposes a sound approach, or

Low Confidence will be successful in performing the contract even with

Government intervention.

The Government has no confidence that the Offeror

understands the requirement, proposes a sound approach, or

No Confidence will be successful in performing the contract even with

Government intervention.

This category relates only to the Past Performance factor. If no

recent/relevant performance record is available, or the

offeror’s performance record is so sparse that no meaningful

confidence assessment rating can be reasonable assigned, the

Unknown Confidence Offeror will be rated as Unknown Confidence[.]

AR 1502.

Under the last Factor, Price, the USDA stated that it “may” conduct a

price realism analysis to ensure that each offeror’s price was fair and

reasonable. AR 1499.

III. The Evaluation and Award

The USDA received 27 proposals. AR 1594. After reviewing each for

compliance with the solicitation’s requirements, the agency eliminated 20

from consideration, leaving seven offerors, including AcmeSolv, a joint

venture between AgovX, LLC (“AgovX”) and 22nd Century Technologies

Inc., and Arlluk. AR 1328, 1575. AcmeSolv is the incumbent on the existing

contract.

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The agency appointed a panel of Source Selection Evaluators

(“SSEs”) to evaluate each of the remaining seven offers under the Technical

and Past Performance factors. AR 1172–1293. The Chair of the Source

Selection Evaluation Board (“SSEB”) subsequently prepared and submitted

a “Consensus Evaluation Report” (“CER”), compiling the evaluators’

findings, to the Source Selection Authority (“SSA”), the ultimate award

decisionmaker. AR 1327–92. Under the Technical factor, the CER gave

AcmeSolv 14 positive findings and three negative findings, determining in

its negative findings that (1) AcmeSolv’s proposal demonstrated only

minimal experience in security control testing and “made no mention of

automated test scripts for [quality assurance],” relating to Focus Areas Two

and Three; (2) AcmeSolv did not mention how it would onboard and train

new staff members necessary for meeting surge support services under Focus

Area Four; and (3) one of AcmeSolv’s proposed Senior Cybersecurity

Analysts lacked security control assessment experience, which is called for

in Focus Area Two. AR 1386–90.

The CER gave Arlluk 14 positive findings and five negative findings

under the Technical Factor, finding that (1) Arlluk provided insufficient

detail to determine whether it had the experience level to meet the

compliance activities in Focus Area Two; (2) Arlluk did not provide enough

experience “related to security testing and compliance control assessments”;

(3) Arlluk’s experience did not directly mention “supporting Salesforce,

Mulesoft, and Accessibility”; (4) Arlluk did not include any exceptions or

assumptions in its technical approach; and (5) Arlluk’s proposal lacked

sufficient detail regarding the Risk Management Framework process. AR

1367–73. The CER gave both offerors an overall rating of “Satisfactory

Confidence” for Technical. AR 1365, 1384.

Under the Past Performance factor, all five of AcmeSolv’s references

were found to be recent and relevant. AR 1392. Four of the returned

questionnaires rated AcmeSolv’s performance as “Very Good” while one

rated performance as “Exceptional.” Id. The USDA also found CPARs for

two relevant contracts previously performed by AcmeSolv for the

government. Id. One CPAR was for the incumbent work for the USDA. The

agency rated AcmeSolv “Exceptional” for Schedule and Cost Control and

“Very Good” for Quality and Management on that contract. AR 1103, 1392.

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The other CPAR was for work performed by Acmesolv’s protégé member,

AgovX, for the Air Force, where the agency rated AgovX’s performance as

“Satisfactory” across all applicable categories. AR 1093–97, 1392.

For Arlluk, out of the five references submitted, only three returned

questionnaires. AR 1374. Two references rated Arlluk’s performance as

“Exceptional,” while one rated Arlluk’s performance as “Satisfactory.” Id.

No relevant or recent CPARs for Arlluk were identified by the agency. Id.

Based on these inputs, the CER ultimately gave AcmeSolv a rating of

“Satisfactory Confidence” and Arlluk “High Confidence” for Past

Performance. AR 1365, 1384.

Based on findings in the CER, the SSEB prepared a Proposal Analysis

Report (“PAR”) with an award recommendation to the SSA. AR 1575–93.

The SSEB first explained that five out of the seven proposals evaluated were

eliminated from consideration due to deficiencies in the Technical and/or

Price factors, leaving only AcmeSolv and Arlluk as awardable bidders. AR

1592. AcmeSolv’s price for its services was $14,750,763; Arlluk’s was

$12,607,140. Id. The SSEB recommended that, because Arlluk’s proposal

received a “Satisfactory Confidence” rating for Technical, a “High

Confidence” rating for Past Performance, and included a price of $12.6

million—more than $2 million lower than AcmeSolv’s price—Arlluk’s

proposal “provided the best overall value for satisfying the USDA’s stated

requirements.” Id.

Relying on the SSEB’s PAR, the SSA prepared a Source Selection

Decision Memorandum (“SSDM”). AR 1594–1601. In her memorandum,

the SSA agreed with the SSEB’s assessments and ratings. AR 1594. Though

the SSA found both offeror’s prices to be reasonable and balanced, she

agreed that “[Arlluk] offered the ‘best value’ proposal for fulfilling [the

agency’s] requirements for the Cybersecurity Contract.” AR 1599–1600. On

August 7, 2024, the agency informed AcmeSolv that Arlluk was selected for

award.

IV. Procedural History

AcmeSolv filed its protest on August 20, 2024, challenging the

USDA’s decision under both the Technical and Past Performance factors.

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The case was stayed by agreement of the parties and remanded to the USDA

to reexamine the award evaluation and, if necessary, take corrective action.

Remand Order, ECF No. 26. After reevaluating, the USDA SSA reaffirmed

its award to Arlluk on November 14, 2024. AR 1928, 1930. In reaffirming

her award decision, the SSA concluded that, under the Technical Factor, (1)

AcmeSolv only had minimal experience in security control testing and its

proposal did not include any experience in automated test scripts for quality

assurance; (2) AcmeSolv’s proposal failed to include a plan for onboarding

team members for surge support; and (3) AcmeSolv’s proposed Senior

Cybersecurity Analyst’s resume did not show specific control assessment

experience, including performing audits or assessments. AR 1922–25. While

the SSA recognized that both AcmeSolv and Arlluk had negative findings

under the Technical Factor that decreased confidence, she considered

Arlluk’s Technical Factor rating “superior,” because “their technical

approach to surge support varied. [Arlluk] raised confidence on surge

support, while AcmeSolv decreased confidence in that area. Similarly,

[Arlluk] proposed key personnel that raised confidence, while AcmeSolv

proposed a Cybersecurity Analyst that decreased confidence.” AR 1929.

Under the Past Performance factor, the SSA explained that “receiving

a Very Good rating in past performance is more common, and an Exceptional

rating is competitively rare,” and that “an Exceptional rating demonstrates

that [an offeror] not only met, but exceeded the Government’s confidence.”

AR 1926. As a result, because AcmeSolv received only one “Exceptional”

rating, while Arlluk received two “Exceptional” ratings, this “supports the

Government’s assessment of High Confidence” for Arlluk. AR 1926.

Altogether, since the USDA considered Arlluk’s proposal “superior in both

non-price factors and provides a lower price than AcmeSolv’s proposal . . .

[Arlluk’s] proposal offers the best overall value for meeting the USDA’s

requirements.” AR 1929. Moreover, the SSA determined that, even if

AcmeSolv were given higher ratings for both non-price factors, it would “not

justify paying a $2.1M premium over [Arlluk] because [Arlluk’s] proposal

was satisfactory, and the savings can be redeployed for other critical needs.”

AR 1929–30.

After the USDA’s remand decision, AcmeSolv filed a new motion for

judgment on the administrative record on December 18, 2024, claiming that,

because the USDA improperly evaluated AcmeSolv’s proposal under the

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Past Performance factor, the government should be enjoined from awarding

the contract to Arlluk and undergo a new evaluation and award decision. The

government subsequently filed its cross motion for judgment on the

administrative record on January 7, 2025.

DISCUSSION

I. Standard of Review

The Tucker Act grants this court jurisdiction over bid protests. 18

U.S.C. § 1491(b)(1). In any bid protest, this court reviews an agency’s

decision pursuant to the standards set forth in the Administrative Procedure

Act (“APA”). § 1491(b)(4). Under the APA, we review an agency’s action

to see if it was “arbitrary, capricious, an abuse of discretion, or otherwise not

in accordance with law.” 5 U.S.C. § 706(1)(A); see also Off. Design Grp. v.

United States, 951 F.3d 1366, 1371 (Fed. Cir. 2020). The court may “set

aside a procurement action if ‘(1) the procurement official’s decision lacked

a rational basis; or (2) the procurement procedure involved a violation of

regulation or procedure.’” Centech Grp., Inc. v. United States, 554 F.3d

1029, 1037 (Fed. Cir. 2009) (quoting Impresa Construzioni Geom.

Domenico Garufi v. United States, 238 F.3d 1324, 1332 (Fed. Cir. 2001)).

“Generally speaking, an agency must evaluate an offeror’s proposal

based on the criteria set out in the solicitation.” Tetra Tech, Inc. v. United

States, 137 Fed. Cl. 367, 383 (2017). Our review of agency procurement

decisions is highly deferential, and the agency “enjoys ‘great discretion in

determining the scope of an evaluation factor.” Tetra Tech, Inc., 137 Fed. Cl.

at 383 (quoting Forestry Surveys and Data v. United States, 44 Fed. Cl. 493,

499 (1999)). If the agency “provided a coherent and reasonable explanation

of its exercise of discretion,” we will not set aside its decision. Mitchco Int’l,

Inc. v. United States, 26 F.4th 1373, 1384 (Fed. Cir. 2022) (quoting Impresa,

238 F.3d at 1333). A protester consequently “bears a ‘heavy burden’ of

showing that the award decision had no rational basis.” Tumble Constr., Inc.

v. United States, 172 Fed. Cl. 43, 52 (2024) (quoting Impresa, 238 F.3d at

1333). Moreover, a protestor “must show not only that significant errors

occurred in the procurement process, but also that the errors were

prejudicial.” Advanced Data Concepts, Inc. v. United States, 216 F.3d 1054,

1057 (Fed. Cir. 2000).

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Here, the solicitation for cybersecurity services was prepared in

accordance with the format in FAR subpart 12.6. AR 1487. FAR Subpart

12.602(b) states, in part, that “[p]ast performance shall be evaluated in

accordance with the procedures in section 13.106 or subpart 15.3, as

applicable.” 48 C.F.R. § 12.602(b). Accordingly, the solicitation notified

bidders that “[t]he Government will evaluate all proposals in accordance with

FAR 15.305(a).” AR 1492. This provision requires the government to

consider the “currency and relevance of the information, source of the

information, context of the data, and general trends in contractor’s

performance.” 48 C.F.R. § 15.305(a)(2)(i).

AcmeSolv claims that, in violation of the FAR and solicitation,

instead of considering the “depth and breadth” of plaintiff’s past

performance, the USDA “did not consider any information beyond the

[plaintiff’s] top of the line rating” in each questionnaire and CPAR. Pl.’s

MJAR at 10. This review, it claims, was superficial, not exploring the context

or trends of performance, causing it to be prejudiced by the agency’s

erroneous evaluation. The government responds that the agency rationally

evaluated plaintiff’s past performance in accordance with the FAR and

solicitation, did not err in its best value tradeoff, and even if the plaintiff’s

past performance should have been given a higher confidence rating, that

error would not have prejudiced the plaintiff. After reviewing the

administrative record and arguments before the court, we agree with the

government.

II. The Past Performance Evaluation Was Reasonable

We give “the greatest deference possible . . . to the agency” when

reviewing an agency’s past performance analysis. Dynamic Sys. Tech., Inc.

v. United States, 127 Fed. Cl. 551, 562 (2016) (quoting Sci. & Mgmt. Res.,

Inc. v. United States, 117 Fed. Cl. 54, 65 (2014)). Our role is merely to

review the past performance rating to ensure it was reasonable and consistent

with the solicitation’s criteria and applicable law. Glenn Def. Marine (Asia),

PTE Ltd. v. United States, 105 Fed. Cl. 541, 564 (2012), aff’d, 720 F.3d 901

(Fed. Cir. 2013). Though an agency’s past performance evaluation must be

reasonable and consistent with the solicitation’s evaluation criteria, a

protestor “is not entitled to an exhaustive comparison of past performance.”

Plasan N. Am., Inc. v. United States, 109 Fed. Cl. 561, 572, 575 (2013).

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Indeed, “[t]he agency need not perform a comprehensive analysis of an

offeror’s entire contracting history.” Westech Int'l, Inc. v. United States, 79

Fed. Cl. 272, 294 (2007).

AcmeSolv asserts the agency took a purely “mathematical” and

“quantitative” approach to its designated confidence ratings. Pl.’s MJAR at

9–10, 12, 16. This was error, it alleges, because it does not comply with FAR

15.305(a), which it asserts contemplates a more nuanced evaluation. In

making this argument, AcmeSolv cites the Source Selection Decision

Document, where the SSA noted that Arlluk “received a High Confidence

rating by the Government since the majority of questionnaires rated their

performance as Exceptional, with only one being rated as Satisfactory.” AR

1492 (emphasis added). AcmeSolv also cites the Individual Evaluation

Worksheet for Allurk from one SSE, in which that SSE stated that “[s]ince

there were three submissions, one was satisfactory and two were exceptional,

this averages to high confidence with future performance.” AR 1268

(emphasis added). To AcmeSolv, this indicates that instead of considering

the entire context of its past performance as required under FAR 15.305(a),

the agency simply counted the number of “Exceptional” ratings in giving its

overall confidence rating. AcmeSolv claims its relevant CPARS “included a

wealth of information the Agency simply did not evaluate.” Pl.’s MJAR at

11.

While the agency’s analytical steps at both the SSEB and SSA levels

were less than fulsomely described, there is no question that the agency

analyzed both the relevancy and recency of each questionnaire and CPAR

before assigning an overall confidence rating. AR 1391–92. For example,

when reviewing AcmeSolv’s CPAR for one of its past contracts with

Lackland Air Force Base, a contract that was deemed both recent and

relevant, the agency not only noted AcmeSolv’s overall rating of

“satisfactory,” but also recognized that the “work reviewed is relevant to

[Focus Area] 1,” pertaining to cybersecurity, information assurance and risk

management services. AR 1392. When reviewing some of AcmeSolv’s other

CPARs, in addition to their respective overall ratings, the agency noted that

AcmeSolv’s past contract work for the Defense Information Systems Agency

(“DISA”) “was not directly related to this PWS” and was determined “not

relevant,” that the work for both the DLA Contracting Services Office

(“DCSO”) and the Defense Health Agency had “insufficient details provided

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by the rater” to determine their relevancy, and that the work for the

incumbent contract with the USDA also included additional internal

communications between the agency and AcmeSolv. Id. These comments

show that the agency considered other contextual information in addition to

the overall ratings.

AcmeSolv counters that one SSE applied solely a quantitative

approach by assigning Arlluk a “high confidence” rating based on the

“average” of received questionnaire ratings. AR 1268. This evaluation,

however, was only one of six SSE reviews for both AcmeSolv and Arlluk,

which were merged into the SSEB’s evaluation and thereafter reviewed again

by the SSA. One of the other SSEs, for example, in filling out her Individual

Evaluator Worksheet, gave Arlluk a past performance confidence rating of

“high confidence” after providing a more in-depth analysis, noting that

“[Arlluk] has the experience and skills needed to execute this contract, other

than the lack of details of past performance with control assessment work.

In addition they have experience working with loan and grant programs.” AR

1258. Thus, even if one SSE conducted a “quantitative” past performance

analysis, we cannot find that the work of the other SSEs, the SSEB, and the

SSA, did not collectively constitute a substantive review of past

performance.

AcmeSolv offers its own mathematically based challenge to its past

performance rating of “Satisfactory Confidence.” Under AcmeSolv’s

mathematical approach, AcmeSolv assigns numerical values to each

adjectival rating in the questionnaires and CPARs, so that “Exceptional” is a

“5,” “Very Good” is a “4,” “Satisfactory” is a “3,” “Marginal,” is a “2,” and

“Unsatisfactory” is a “1.” Pl.’s MJAR at 20. AcmeSolv also assigns these

numerical values to the overall past performance confidence ratings,

resulting in “Supreme Confidence” as a “5,” “High Confidence as a “4,”

“Satisfactory Confidence” as a “3,” “Low Confidence” as a “2,” and “No

Confidence” as a “1.” Id. at 19. In averaging all seven of its questionnaire

and CPAR ratings, AcmeSolv calculates an average rating of “4.07” or “Very

Good.” Id. at 20. AcmeSolv argues that, when applying the average rating

of “4.07” to the overall past performance confidence ratings, AcmeSolv’s

rating should equate to a “4” or “High Confidence.” Id. at 19–20.

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The problem with AcmeSolv’s mathematical approach is that the SSA

would disagree with AcmeSolv’s premise that each confidence rating can be

assigned a proportional numerical value. In affirming the award to Arlluk,

the SSA explained that “[s]ince receiving a Very Good rating in past

performance is more common, and an Exceptional rating is comparatively

rare, the fact [that AcmeSolv] only received one Exceptional rating supports

the Government’s assessment of Satisfactory Confidence, given that this is a

qualitative evaluation.” AR 1926. Due to the relative rarity of an

“Exceptional” rating, in other words, the SSA assigned it a

disproportionately higher value than the “5” plaintiff would have given it.

Because AcmeSolv received one rating of “Exceptional” compared to two

for Arlluk, we cannot say the agency’s rating of “Satisfactory Confidence”

for AcmeSolv’s past performance and “High Confidence” for Arlluk was

arbitrary. These are matters better left to the contracting entities.

Finally, in arguing that the agency did not consider the “depth and

breadth” of AcmeSolv’s past performance information, AcmeSolv asserts

the agency should have also considered the quantity of AcmeSolv’s

questionnaires and CPARs. More specifically, AcmeSolv claims that,

because Arlluk had two fewer returned questionnaires than AcmeSolv and

no relevant and recent CPARs on file—yet received a higher confidence

rating in the past performance factor—AcmeSolv was unable to fairly

compete for the contract since “[t]he Agency’s evaluation process inherently

rewarded offerors who had less experience to evaluate.” Pl.’s MJAR at 12.

Essentially, AcmeSolv claims it should have received additional

credit for its quantity of past performance references. However, AcmeSolv

imposes an evaluation criterion not found in the solicitation. The solicitation

announced that, in evaluating an offeror’s proposal under the Past

Performance Factor, “[t]he primary question under consideration will be

whether [the] company’s performance was: Exceptional, Very Good,

Satisfactory, Marginal, or Unsatisfactory,” and “[i]f the Offeror’s references

do not respond, the evaluation rating under the Past Performance Factor . . .

may result in an unknown confidence level rating, which is neither favorable

nor unfavorable under the Past Performance section.” AR 1498 (emphasis

added). The solicitation clearly stressed the importance of quality over

quantity, and that unresponsive references could result in a neutral rating for

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the bidder. Bidders were thus on notice that the sheer number of references

would not be determinative in selecting an awardee. 2

In assigning its confidence ratings for the Past Performance Factor,

the agency did not merely do a quantitative analysis of only the top-of-the-

line ratings from the questionnaires and CPARs. It made a qualitative

analysis of a variety of past performance information in accordance with the

solicitation. Accordingly, the agency’s past performance evaluation was

reasonable.

III. AcmeSolv Has Not Been Prejudiced

Even if a protestor can show errors in the agency’s award decision,

the protestor “must show it was prejudiced by a significant error in the

procurement process.” REV, LLC v. United States, Aptive Res., LLC, 91 F.4th

1156, 1163 (Fed. Cir. 2024) (quoting CliniComp Int'l, Inc. v. United States,

904 F.3d 1353, 1358 (Fed. Cir. 2018)). In other words, the protestor must

show that, “had it not been for the alleged error in the procurement process,

there was a reasonable likelihood that the protestor would have been awarded

the contract.” Data Gen. Corp. v. Johnson, 78 F.3d 1556, 1562 (Fed. Cir.

1996). The protestor must have “greater than an insubstantial chance of

securing the contract if successful on the merits of the bid protest.” Info.

Tech. & Applications Corp. v. United States, 316 F.3d 1312, 1319 (Fed. Cir.

2003). For example, a protestor fails to show prejudice where its non-price

factors are outweighed by its higher-priced proposal. See Carahsoft Tech.

Corp. v. United States, 86 Fed. Cl. 325 (2009) (“No amount of agency

reasoning could justify selecting a higher-priced proposal, where a lower-

priced and technically equal proposal is available.”).

Even if AcmeSolv should have been awarded a “High Confidence”

rating for past performance, it faces the problem that this merely puts it even

with Arlluk in technical and past performance, while AcmeSolv’s price

remains $2.1 million higher than Arlluk’s. AcmeSolv attempts to get around

2

To the extent AcmeSolv challenges the solicitation’s provision regarding

non-responsive references, that argument is precluded under Blue & Gold

Fleet, because it failed to challenge or inquire about the provision before the

agency’s award selection. Blue & Gold Fleet, L.P. v. United States, 492 F.3d

1308, 1313 (Fed. Cir. 2007).

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this problem by arguing that its technical “Satisfactory Confidence” rating

was actually better than Arlluk’s “Satisfactory Confidence” rating, because

it received two less negative findings than Arlluk. AcmeSolv argues that the

agency should be required to do a more rigorous tradeoff analysis than

simply relying on the price difference.

The difficulty with that argument is that the remand decision

anticipates AcmeSolv’s argument. According to the agency’s amended

source selection decision memorandum, “[w]hile [Arlluk] and AcmeSolv

both had areas of experience that decreased confidence, their technical

approach to surge support varied. [Arlluk] raised confidence on surge

support, while AcmeSolv decreased confidence in this area. Similarly,

[Arlluk] proposed key personnel that raised confidence, while AcmeSolv

proposed a Cybersecurity Analyst that decreased confidence.” AR 1929. The

SSA, aware of both offerors’ number of negative findings, nevertheless

concluded Arlluk’s technical rating “superior” to AcmeSolv’s. Id.

AcmeSolv’s prejudice argument thus fails because, under the Price

Factor—a factor as important to the award decision as both the Technical and

Past Performance Factors combined—Arlluk’s proposal was over $2 million

less than AcmeSolv’s. AR 1490, 1929. The SSA determined that the amount

in savings was “significant,” and that:

Even if the court were to find that AcmeSolv’s technical and

past performance ratings should be increased to high

confidence, [it] would not justify paying a $2.1M premium

over [Arlluk] because [Arlluk’s] proposal was satisfactory, and

the savings can be redeployed for mother critical needs in RD’s

mission to stimulate, grow and protect the American Rural

economy.

AR 1929–30. Accordingly, even if we determined AcmeSolv should have

received a higher past performance confidence rating, remand to the agency

would be unnecessary because the agency remand decision precludes the

scenario AcmeSolv hypothesizes. Even if AcmeSolv was higher rated, the

agency considered the cost savings sufficient to justify the award to Arlluk.

CONCLUSION

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AcmeSolv has failed to show that the USDA’s award decision was

arbitrary or capricious, or that even if the agency made errors in the

procurement process, it was unfairly prejudiced. We therefore need not

address the issue of injunctive relief. Accordingly, AcmeSolv’s motion for

judgment on the administrative record is denied. The United States’ cross-

motion for judgment on the administrative record is granted. The Clerk of

Court is directed to enter judgment accordingly. No costs.

s/Eric G. Bruggink

ERIC G. BRUGGINK

Senior Judge

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