Warrior Focused Solutions, LLC v. United States

In the United States Court of Federal Claims

No. 24-1695

Filed: March 4, 2025

Reissued: March 17, 2025 †

WARRIOR FOCUSED SOLUTIONS, LLC,

Plaintiff,

v.

THE UNITED STATES,

Defendant,

and

VALIANT GLOBAL DEFENSE SERVICES, INC.,

Intervenor-Defendant.

W. Brad English, Emily J. Chancey, Michael R. Pillsbury, Taylor R. Holt, and Hunter M. Drake,

Maynard Nexsen, PC, Huntsville, Alabama, for Plaintiff.

Daniel Bertoni, Trial Attorney, Commercial Litigation Branch, Civil Division, Douglas K.

Mickle, Assistant Director, Patricia M. McCarthy, Director, and Brian M. Boynton, Principal

Deputy Assistant Attorney General, U.S. DOJ, Washington, D.C.; with CPT Sana H. Daniell,

Trial Attorney, U.S. Army Legal Services Attorney, for the United States.

Daniel R. Forman, Cherie J. Owen, and Roxanne N. Cassidy, Crowell & Moring LLP,

Washington, D.C., for Intervenor-Defendant.

MEMORANDUM OPINION AND ORDER

TAPP, Judge.

In government contract proposals, clarity is paramount. Ambiguity frequently results in

unsuccessful bids, as demonstrated in this instance. The United States Army Mission and

†

This Opinion was originally issued under seal, (ECF No. 46), and the parties were directed to

file a notice of redactions consistent with the Court’s instructions. That Notice was filed on

March 17, 2025. (ECF No. 48). The Court accepts all proposed redactions. The sealed and public

versions of this Opinion differ only to the extent of those redactions, the publication date, and

this footnote.

Contracting Command (“the Army”) issued the underlying procurement for training services at

Fort Johnson, Louisiana. (Administrative Record (“AR__”) at 1, ECF No. 41). 1 Warrior Focused

Solutions (“WFS”) filed this post-award bid protest seeking declaratory relief and requesting the

Court enjoin the performance by Intervenor-Defendant Valiant Global Defense Services, Inc.

(“Valiant”). (See generally Am. Compl., ECF No. 25).

The combination of a waived argument and proposal ambiguities prevents WFS from

meeting its burden. WFS’s Motion for Judgment on the Administrative Record, (Pl.’s MJAR,

ECF No. 27), is DENIED. The United States’ and Valiant’s Cross-Motions for Judgment on the

Administrative Record, (Def.’s xMJAR, ECF No. 29; Int-Def.’s xMJAR, ECF No. 28), are

GRANTED.

I. Background

Located in Louisiana, the U.S. Army’s Joint Readiness Training Center (“JRTC”) trains

military forces for worldwide deployment across a range of potential theaters and conflicts.

(AR1147). To fulfill this mission, the Army procures Mission Support Services (“MSS”) for

Army special operation units and similar units from the Marines, Navy, and Air Force.

(AR1109). In addition to eight to ten annual rotational exercises, the JRTC MSS contractor also

performs scenario development, property management, technology services, after-action reviews,

video support, and role-play of civilians on the battlefield. (AR1148). On January 12, 2024, the

Army issued a Request for Proposals (“the Solicitation”) seeking such mission support services

at the JRTC. 2 (AR1268).

A. The Acquisition 3

The Solicitation provided for the award of cost-plus-fixed-fee contract line item numbers

(“CLINs”), cost reimbursement CLINs, and some firm fixed price CLINs. (AR2375–78). The

Army intended award to a single contractor following a best value source selection, based on a

“subjective tradeoff between cost and non cost factors.” (AR2441). The Solicitation laid out four

evaluation factors: Factor 1–Mission Capability, Factor 2–Past Performance, Factor 3–Small

Business Participation, and Factor 4–Cost. (AR24441–42). Mission Capability was the

paramount non-cost factor, with Past Performance and Small Business Participation considered

equal, but of secondary importance. (AR2441). All factors “other than cost or price, when

combined, [were] approximately equal to cost or price.” (Id.).

1

The Administrative Record in this case was exchanged using the Justice Enterprise File Sharing

(“JEFS”) System. A Joint Appendix with the abbreviated record was filed after briefing.

(Administrative Record (“AR”), ECF No. 41).

2

Request for Proposals No. W911S821R0017 (the “Solicitation”). Further, unless otherwise

indicated, the dates referenced herein occurred in 2024.

3

The Court provides some overview of these factors but will discuss them at length as they arise

in the Analysis section below.

2

The evaluation of Mission Capability focused “on how well the Offeror . . . demonstrated

a feasible structure and approach to ensure it has the ability to execute [Performance Work

Statement (“PWS”)] requirements.” (AR2442). The Army evaluated each Offeror’s approach by

creating two equally important subfactors within Mission Capability: Subfactor 1–Management

Approach and Subfactor 2–Technical Approach. (AR2442–46).

Recency, relevancy, and quality were the key criteria for the Army’s Past Performance

evaluation. (AR2446). Recent references were for work performed within the past three years.

(AR2447). The Army planned to grade the relevancy of each reference on a sliding adjectival

scale. (Id.). The Army’s quality review relied on customer input regarding the offeror’s

performance on previous contracts. (Id.). The Army’s Past Performance evaluation was meant to

result in a confidence rating ranging from Substantial Confidence to No Confidence. (AR2448).

For Factor 3, the Army committed to evaluating the proposed level of small business

participation in the acquisition’s performance. (Id.). The evaluation would compare that

participation to the objectives and Minimum Quantitative Requirements established in the

Solicitation. (Id.).

The collective importance of these three factors was approximately equivalent to that of

Cost. (AR2441). Beyond assessing cost reasonableness, the Army intended to evaluate cost

realism and adjust figures to determine the most probable performance cost. (AR2449). The

Army informed offerors that the most probable cost would be used to determine the best value.

(Id.).

B. Evaluation and Award

Only WFS and Valiant submitted bids. (AR Tab 24 (Valiant’s Bid); AR Tab 25 (WFS’s

bid)). Valiant’s total evaluated price was $444,672,556.75, and WFS’s total evaluated price was

$432,195,605.95. (AR5733). After conducting evaluations, the Source Selection Evaluation

Board (“SSEB”) produced its report on July 17; its results are summarized below:

3

(AR5733–34). In its tradeoff analysis, the Army stated:

Due to their outstanding technical rating, substantial confidence past

performance assessment, and having the lowest Most Probable Cost,

Valiant’s proposal maximizes the Government’s ability to obtain best value.

Entering discussions and allowing [WFS] to submit a revised proposal

addressing identified weaknesses, significant weaknesses, and uncertainties

would not change the overall end state due Valiant’s significantly higher

rated proposal.

In accordance with the evaluation criteria, the proposal from Valiant Global

Defense Services, Inc, is the best value to the Government and is considered

fair and reasonable based on adequate price competition. The superior non-

cost mission capability and past-performance factors easily support the

awarding to Valiant at the approximately 3% higher proposed price.

(AR5826).

Based on its findings, the Source Selection Advisory Council recommended that the

Source Selection Authority (“SSA”) award the JRTC MSS contract to Valiant. (AR5825 (“The

comparative analysis of both proposals clearly indicates [Valiant] maximizes the Government’s

ability to obtain best value for this critical acquisition.”)). The SSA followed that

recommendation. (AR5794; AR5826). Accordingly, the SSA decided that “entering into

discussions and allowing WFS to submit a revised proposal addressing identified weaknesses,

significant weaknesses, and [u]ncertainties, would not change the overall end state due [to]

Valiant’s significantly higher rated proposal.” (Id). Following the Army’s September 26 award

of the JRTC MSS contract to Valiant, (AR5853), this litigation ensued, (see generally Am.

Compl.). Valiant is currently performing the contract. (See Compl. at 26 n.1, ECF No. 1; Def.’s

xMJAR at 2).

II. Discussion

WFS now protests the Army’s decision. WFS summarizes its qualms in seven counts:

Section I shows that the Army unlawfully issued the Solicitation in violation

of the approved Acquisition Plan and Acquisition Strategy. Section II reveals

the Army’s errors when evaluating [WFS] under Factor 1, Subfactor 2–

Technical Approach. Section III explains that the Army unreasonably

evaluated [WFS]’s Small Business Participation proposal and abused its

discretion by failing to use clarifications to address minor clerical issues.

Section IV proves that the Army’s most probable cost adjustments to

[WFS]’s indirect rates deviated from the Solicitation’s terms and were

irrational. Section V shows that the tradeoff decision was infected with the

errors mentioned above, which made it irrational. Sections VI and VII prove

that the errors prejudiced [WFS] and the Court should enter injunctive relief.

(Pl.’s MJAR at 6; see also Am. Compl.). The Court examines each claim.

4

A. Jurisdiction and Standard of Review

The Tucker Act provides that an interested party may file an action in the Court of

Federal Claims “objecting [(1)] to a solicitation by a Federal agency for bids or proposals for a

proposed contract or [(2)] to a proposed award or [(3)] the award of a contract or [(4)] any

alleged violation of statute or regulation in connection with a procurement or a proposed

procurement.” 28 U.S.C. § 1491(b)(1); see also Aero Spray, Inc. v. United States, 156 Fed. Cl.

548, 559 n.18 (2021) (“Section 1491(b) actions are typically referred to as ‘bid protests.’”). 4

According to 28 U.S.C. § 1491(b)(4), the Court typically reviews agency procurement decisions

under the Administrative Procedure Act (“APA”), 5 U.S.C. § 706. Under the APA standard, “[i]n

a bid protest case, the inquiry is whether the agency’s action was arbitrary, capricious, an abuse

of discretion, or otherwise not in accordance with law and, if so, whether the error is prejudicial.”

Glenn Def. Marine (ASIA), PTE Ltd. v. United States, 720 F.3d 901, 907 (Fed. Cir. 2013).

Judicial review of agency action under the APA typically proceeds on two tracks; the

Court could find: (1) the agency’s decision lacked either a rational basis or support from the

administrative record or was arbitrary and capricious; and/or (2) the agency’s procurement

procedure involved a violation of regulation or statute. Weeks Marine, Inc. v. United States, 575

F.3d 1352, 1358 (Fed. Cir. 2009). To obtain relief, after showing that the procuring agency

violated the law or acted arbitrarily and capriciously, the protestor must also show that the

agency’s violation was prejudicial to the protestor. Glenn Def. Marine, 720 F.3d at 907. This

standard is “highly deferential.” CHE Consulting, Inc. v. United States, 552 F.3d 1351, 1354

(Fed. Cir. 2008). A “protestor’s burden is particularly great in negotiated procurements because

the contracting officer is entrusted with a relatively high degree of discretion, and greater still,

where, as here, the procurement is a ‘best-value’ procurement.” Banknote Corp. of Am., Inc. v.

United States, 56 Fed. Cl. 377, 380 (2003), aff’d, 365 F.3d 1345 (Fed. Cir. 2004).

All parties move for judgment on the Administrative Record. See RCFC 52.1. Unlike the

standard applied in summary judgment motions, “the existence of genuine issues of material fact

does not preclude judgment on the administrative record” under RCFC 52.1. Tech. Sys., Inc. v.

United States, 98 Fed. Cl. 228, 242 (2011); see also RCFC 56. Rather, the Court’s inquiry

focuses on whether, “given all the disputed and undisputed facts, a party has met its burden of

proof based on the evidence in the record.” A&D Fire Protection, Inc. v. United States, 72 Fed.

Cl. 126, 131 (2006) (citing Bannum Inc. v. United States, 404 F.3d 1346, 1356 (Fed. Cir. 2005)).

B. WFS waived its argument regarding discussions.

WFS initially contends that the Army’s Solicitation improperly deviated from the

approved Acquisition Plan and Strategy documents, which WFS purports mandated discussions

or adherence to Defense Federal Acquisition Regulation Supplement (“DFARS”) discussion

provisions. (Pl.’s MJAR at 6). The Court finds that WFS’s failure to timely protest these

4

Standing is an integral part of jurisdiction. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560, (1992).

Here, the United States does not challenge standing. Further, other than the awardee, WFS was

the only other bidder; by virtue of this, the Court finds that WFS has established standing.

5

grounds, as dictated by the Blue & Gold doctrine and reinforced in Oak Grove, bars WFS from

raising this challenge now. See Blue & Gold Fleet, L.P. v. United States, 492 F.3d 1308 (2007);

Oak Grove Technologies, LLC v. United States, 116 F.4th 1364 (Fed. Cir. 2024).

In the summer of 2023, the Army finalized its Acquisition Plan, (AR Tab 9), and its

Acquisition Strategy, (AR Tab 10). As to discussions, the approved Acquisition Plan said “[i]n

accordance with DFARS 215.306(c)(1) the Government will conduct discussions.” (AR1129

(emphasis added)). 5 The Acquisition Plan’s timeline anticipated the award the following July

and included time for discussions. (AR1131). On December 8, 2023, the Army published a pre-

solicitation notice on SAM.gov. (AR Tab 12; AR1261). The Army approved its Source Selection

Plan on January 8, 2024. (AR1180–82).

Despite the approved acquisition documents indicating that discussions would be held,

the Army’s solicitation unequivocally stated that the Army intended to award a contract

“without discussions,” a deviation from the approved plan. (AR1208; AR1222; AR1334

(emphasis added)). WFS argues that this divergence from the acquisition documents and the

decision—either active or inactive—to do so was unlawful. (Pl.’s MJAR at 6–12). The United

States and Valiant maintain that WFS waived this argument through its failure to timely object.

(Def.’s xMJAR at 14–18; Int-Def.’s xMJAR at 9–11). Thus, before the Court may consider the

merits of WFS’s argument, it must consider the applicability of the waiver doctrine under Blue &

Gold and Oak Grove Technologies. 6 492 F.3d 1308; 116 F.4th 1364.

The government must conduct acquisitions in accordance with applicable law. See, e.g.,

Indus. Prop. Mgmt., Inc. v. United States, 59 Fed. Cl. 318, 323 (2004); see also 5 U.S.C. § 706;

28 U.S.C. § 1491(b)(1). However, a bidder with knowledge of a solicitation defect may not

choose to stay silent when submitting its proposal. The Blue & Gold rule solidifies this, dictating

that a party forfeits its ability to challenge a “patent error” in a government solicitation if it does

not object before the close of bidding. 492 F.3d at 1313. A “patent error” is defined as an

obvious omission, inconsistency, or discrepancy of significance, one that could be discovered

5

For an acquisition estimated to cost in the hundreds of millions of dollars, (see AR488), the

Army was required to develop an acquisition plan. DFARS § 207.103(d)(i). The FAR establishes

rules for an acquisition plan: it “must address all the technical, business, management, and other

significant considerations that will control the acquisition” and include “acquisition background

and objectives” and a “plan of action.” FAR § 7.105. In addition, for acquisitions involving an

estimated value of $100 million or more, “contracting officers should conduct discussions.”

DFARS § 215.306(c)(1) (emphasis added). WFS challenges the deviation from the Acquisition

Plan rather than the DFARS directory language suggesting that COs should conduct discussions.

(See Pl.’s MJAR at 6–12).

6

The Court considers the issue of waiver under the RCFC 12(b)(6) standard. See, e.g., Eagle Hill

Consulting, LLC v. United States, 171 Fed. Cl. 115, 130 (2024); Blue Origin Fed’n, LLC v.

United States, 157 Fed. Cl. 74, 95 (2021).

6

through reasonable and customary care. Inserso Corp. v. United States, 961 F.3d 1343, 1349

(Fed. Cir. 2020).

The Federal Circuit has recently, during the pendency of this case, addressed the Blue &

Gold waiver rule. In Oak Grove, the protestor identified various alleged Army failures before the

bid submission deadline but attempted to highlight the Army’s failure to engage in required

discussions after the bidding process closed. Oak Grove Technologies, 116 F.4th at 1378. The

Federal Circuit overturned the Court of Federal Claims’ decision regarding the protestor’s

challenge to the agency’s lack of discussions. Id. The Federal Circuit ruled that the Army’s

inclusion of conflicting clauses regarding discussions—one allowing for their absence and

another strongly encouraging them—resulted in a patently ambiguous solicitation. Id. The Court

further held that Oak Grove’s failure to challenge this ambiguity prior to the proposal submission

deadline constituted a waiver of its discussions argument under the Blue & Gold doctrine. Id.;

see also Blue & Gold Fleet, 492 F.3d at 1314.

Recognizing that Oak Grove would foreclose its path to objecting to the terms of the

solicitation, WFS attempts to distinguish its argument. (Pl.’s MJAR at 12 (“Though Oak Grove

came out well after bidders submitted proposals in this acquisition, we recognize that [WFS]

cannot challenge the Army’s decision not to hold discussions or to follow the DFARS generally

in this post-award protest.”)). Instead, WFS states that “the focus of this count is that the Army

did not decide to forego discussions or ignore the DFARS[,]” but it was the SSA in the driver’s

seat, making that decision without the necessary approval. (Id.). In other words, WFS’s challenge

is directed at the Army’s internal decision-making process and its failure to follow the relevant

regulations. This is a distinction without a difference.

A party cannot shield a claim of statutory non-compliance by merely characterizing it as

a challenge to the agency’s decision-making process. Essentially, the core of WFS’s objection

pertains to a solicitation term it failed to challenge despite multiple opportunities to do so

throughout nine amendments. 7 WFS’s inventive attempt to carve out its argument cannot be

distinguished from a statutory violation claim. Significantly, the Federal Circuit did not limit its

decision in Blue & Gold to non-statutory violations. Furthermore, the Federal Circuit has

broadened the scope of the waiver rule since Blue & Gold. For instance, in COMINT, the Federal

Circuit expanded the waiver rule, noting that “[t]he same policy underlying Blue & Gold

supports its extension to all pre-award situations[,]” and indicating that “assuming that there is

adequate time in which to do so, a disappointed bidder must bring a challenge to a solicitation

containing a patent error or ambiguity prior to the award of the contract.” COMINT Sys. Corp. v.

United States, 700 F.3d 1377, 1382 (Fed. Cir. 2012) (emphasis added). Even reading WFS’s

claims generously, the Court is not aware of, and WFS does not cite, any precedent that would

establish an agency’s deviation from its Acquisition Strategy or Acquisition Plan as a valid,

separate basis for a post-award bid protest.

7

WFS acknowledges its notification, recognizing the Solicitation’s intent despite the deviation

from acquisition documents and potential applicability of DFARS 215.306. (See Pl.’s MJAR at

9).

7

While the Blue & Gold waiver may, at times, appear to prioritize the efficient functioning

of the bidding process over detailed scrutiny of agency action, even when such scrutiny may

reveal errors, it is nonetheless the controlling legal principle. The Army’s no-discussion stance

remained consistent from the initial public solicitation throughout its nine subsequent

amendments. (AR2441–42). WFS’s attempts to provide a rationale for its untimely challenge by

referencing acquisition documents that initially anticipated discussions are ultimately ineffective.

While the Army’s deviation may be troubling, the protestor’s characterization of this deviation as

a violation of the acquisition plan, rather than a direct challenge to the solicitation, does not alter

the outcome. This claim should have been presented prior to the award, and consequently it must

be dismissed.

C. The Army’s Mission Capability and Small Business Proposal evaluations were

not unreasonable.

WFS next contends that the Army’s evaluation deficiently analyzed various aspects of its

proposal, leading to the erroneous assignment of weaknesses and significant weaknesses. (Pl.’s

MJAR at 12–25). These purportedly unreasonable evaluations are specific to WFS’s ratings on

Factor 1—Mission Capability and Factor 3—Small Business Participation proposal. The Court

determines these objections to be matters of procurement minutiae and finds that WFS has not

discharged its evidentiary burden.

This Court routinely holds that contracting officers enjoy “broad discretion with respect

to evaluation of technical proposals[,]” and the Court typically does not “second guess the

technical ratings that the source selection committee gave to each offeror.” Info. Scis. Corp. v.

United States, 73 Fed. Cl. 70, 104 (2006) (quoting Omega World Travel, Inc. v. United States, 54

Fed. Cl. 570, 578 (2002)); Mortg. Contracting Servs. v. United States, 153 Fed. Cl. 89, 126

(2021) (“The court must especially defer to the agency’s technical evaluations . . . and other

‘minutiae of the procurement process . . . which involve discretionary determinations of

procurement officials.’” (quoting E.W. Bliss Co. v. United States, 77 F.3d 445, 449)). However,

the Court has cautioned that “unsuccessful offerors repeatedly ignore this” standard. AccelGov,

LLC v. United States, 170 Fed. Cl. 508, 518 (2024).

The goal of bid protests is to ensure fairness and transparency in the procurement

process, not to provide a forum for bidders to challenge every minor disagreement with an

agency’s evaluation. These limitations promote efficiency and maintain an appropriate distance

between the judiciary and the day-to-day management of government contracting. This is why

agencies retain such broad discretionary authority when determining the scope of an evaluation

factor. See Summit Techs., LLC v. United States, 151 Fed. Cl. 171, 180 (2020); PlanetSpace, Inc.

v. United States, 92 Fed. Cl. 520, 536 (2010). As the disappointed offeror, WFS bears the heavy

burden of showing that the Army’s evaluation lacked a rational basis. See Galen Med. Assocs.,

Inc. v. United States, 369 F.3d 1324, 1330 (Fed. Cir. 2004) (addressing burden of proof in

negotiated procurements). “[T]he test for reviewing courts is to determine whether the

contracting agency provided a coherent and reasonable explanation of its exercise of discretion,

and the disappointed bidder bears a heavy burden of showing that the award decision had no

rational basis.” Impresa Construzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324,

1332–33 (Fed. Cir. 2001) (internal quotation marks and citations omitted).

8

WFS first claims that the Army unreasonably deviated from the Solicitation when it gave

WFS a weakness for PWS Paragraphs 5.8.3.2(c) & (d). (Pl.’s MJAR at 13). These sections

required offerors to “describe[] the methodology, rationale, and procedures to successfully

execute tasks identified in PWS Section 2.1.9.” 8 (AR2445). The JRTC MSS contractor’s duties

under this point include producing and editing video, and Section 5.8.3.2 of the PWS lists

requirements for the contractor regarding Mobile Production Center (“MPC”) vans. (AR2235).

Specifically, the contractor was required to set up and operate the three MPCs. (Id.).

The Army found that WFS’s proposal on this point “demonstrate[d] a lack of

understanding” because WFS “failed to clearly articulate the number of MPC vans they intend to

provide[.]” (AR5818). WFS believes such a finding was unreasonable because the PWS already

specified the required number of vans. (Pl.’s MJAR at 14 (citing AR2235)). WFS contends that

elaboration would be mere repetition of solicitation language, which does not satisfy the

requirement for an adequate explanation of a bidder’s approach. (Id.). The assertion that

parroting solicitation terms is inadequate is correct, but it must not be considered in isolation. See

Sci. Applications Int’l Corp v. United States, 108 Fed. Cl. 235, 259 (2012) (“reiterating RFP

requirements without detailing how those requirements would be met did not comply with the

material technical requirements of the Solicitation”) (citing Red River Holdings, LLC v. United

States, 87 Fed. Cl. 768, 785–89 (2009)). Though mere repetition is insufficient, an offeror retains

the responsibility to state its compliance with the solicitation’s requirements explicitly.

As to the merits of its argument, WFS’s proposal overlooked the varying operational

timeframes for the MPC vans. In the JRTC Site Visit Briefing slides, (see AR Tab 23a), the

Army informed prospective bidders of a typical rotation calendar:

8

PWS 2.1.9 refers to “[a]ll operations to include all personnel, supervision, non‐personal

services, and other items necessary to support the [Forces Command (“FORSCOM”)] [JRTC] Ft

Johnson, LA in strict compliance with the attached [PWS] tasks 5.1, 5.2, 5.3, 5.4, 5.5, 5.6, 5.7,

5.8, 5.9, 5.10, 5.11, 5.12, 5.13 and all subparts.” (AR2150–51).

9

(AR2461). 9 The Army’s concerns reiterated that the PWS required the JRTC MSS contractor to

operate one MPC van beginning on day R-6, and then operate all three MPC vans starting on day

T-1. (AR2235). WFS’s proposal states that “[e]ach MPC operates 24x7 from D-4 through

[Change of Mission,]” (AR4147), ignoring the relevant timeframe. Given the lack of

responsiveness to the solicitation’s stated timeframes, this reasonably creates uncertainty for the

Army’s mission. Therefore, it cannot be said that the Army unreasonably assigned a weakness.

WFS also believes that the Army “unreasonably” gave WFS a weakness for PWS

Paragraph 5.8.4.2 based on an assumption that it would do more work than required. (Pl.’s

MJAR at 14). Section 5.8.4.2 of the PWS requires the JRTC MSS contractor to produce Battle

Execution Summary (“BES”) recordings to use in After Action Review (“AAR”). (AR2238).

The PWS states that a BES recording request “will typically be submitted on T-1 and the

narration script no later than [thirty-six] hours prior to AAR.” (Id.). WFS’s proposal stated:

The BES recording, or “HOOAH Film,” serves as a motivational video when

presented at the start of the final AAR for the BCT and subordinate battalions.

The Editing Team Lead, coordinating with the Training Analysis and

Feedback Facility Officer, receives initial BES guidance NLT D-4. A follow-

on pre-rotational meeting with the Video Lead, Editing Team Lead, and Field

Camera Team Lead results in a synchronized video “shoot” plan to efficiently

capture RTU combat operations at key locations and periods throughout the

rotation. Raw video footage ingested into JRTC-IS VRME enables TAF

analysts and OCTs to rapidly recall the data and build meaningful AARs.

Level II/III Photographers are proficient in the use of airborne vehicle

identification (AVID) digital editing system and are frequently used for surge

video editing when needed. BES recordings meet the highest quality

standards and are included in RTU’s THP.

(AR4147). Importantly, this portion of WFS’s proposal is silent as to the PWS’s T-1 date.

The United States asserts that, based on the information and WFS’s mention of the D-4

date for guidance, the Army “understood that WFS intended to add five days to the schedule

specified in the PWS, and assigned WFS a weakness.” (Def.’s xMJAR (citing AR5818)). The

United States goes on to say that WFS’s proposal does not explain what WFS now clarifies for

the Court—that the additional days are included to “ensure it had time to complete the

requirement,” and that WFS would not bill for more work “simply because it had more time to

complete the job.” (Id. (citing Pl.’s MJAR 15)). The Court agrees that this failure to explain led

to WFS’s assigned weakness. While the explanation presented in WFS’s brief is coherent, its

post hoc reasoning is not discernible from the proposal itself. Contracting officers and bidders

share an equal obligation to ensure clarity; agencies cannot be expected to read between the lines

9

The various calendar designations are used to identify and differentiate phases of the training

schedule. In its evaluations, the Army references the rotational calendar directed by FORSCOM

Regulation 350-50-2. (AR5823; AR5993).

10

and make sense of proposal terms. AccelGov, LLC v. United States, 164 Fed. Cl. 345, 360

(2023). Thus, the Court finds that the Army did not unreasonably assign a weakness.

Next, WFS believes that it was unreasonable for the Army to give WFS a weakness under

PWS Paragraph 5.13 because it incorrectly believed WFS “proposed to do additional work[.]”

(Pl.’s MJAR at 16–18). PWS Section 5.13 explains that the JRTC MSS contractor is required to

perform Reception, Staging, Onward Movement, and Integration (“RSOI”) & Redeployment

tasks. (AR2282). In response, WFS proposed staffing its Commodity Management Section with

three full-time equivalent employees. (AR4161). These employees would “assist the [Rotational

Training Unit]” in establishing and managing installation accounts for all “classes of supply

identified in PWS 5.13.2.” (Id.). WFS went on to state that “[t]he [RSOI] main office maintains

the soldier’s lounge, which is equipped with light refreshments for transiting soldiers.” (Id.). The

Army believed that WFS’s proposal, specifically the mention of refreshments in the lounge,

posed “a moderate risk as it can have a moderate impact to the rotational support and increase

costs” because refreshments were not a PWS requirement. (AR5819; AR5992).

WFS believes the Army’s assessment is unreasonable because WFS did not state it would

provide refreshments; it is typically the responsibility of the Red Cross. (Pl.’s MJAR at 17–18).

The United States asserts that WFS’s failure to specify a third party’s responsibility for

refreshments constitutes a deficiency in its proposal. (Def.’s xMJAR at 27). The United States’

argument is persuasive. Notably, WFS designated third-party involvement in other service

delivery areas within its proposal. For instance, WFS explained that soldiers would transit to the

Alexandria, Louisiana airport via shuttle coordinated by the RSOI office and the Fort Johnson

Staff Duty Non-Commissioned Officer at the Alexandria airport. (AR4161). It also specifies that

a Red Cross liaison is designated to act in other roles—i.e., assisting soldiers departing from Fort

Johnson on emergency leave, reintegrating returning soldiers, and coordinating with the post

agencies identified for transporting soldiers to their destinations via air travel. (Id.). The omission

of the Red Cross’s involvement in stocking refreshments is a notable contrast. Thus, it was not

unreasonable for the Army to interpret WFS’s proposal in this way.

WFS bases its argument, in part, on the Army’s prior history with the contract; it claims

the Army understood or should have understood that it would not be billed for refreshments in

the lounge because they have not been in the past. (Pl.’s MJAR at 18). Because of this, WFS

contends that there is no “rational connection between the facts found and the choice made,”

requiring the Court to set this finding aside. (Id. (citing Tolliver Grp., Inc. v. United States, 151

Fed. Cl. 70, 109 (2020)). Even if the Court were to engage in this analysis, doing so would be

improper. WFS’s argument ignores that providing explanations regarding proper charges to

bidders consumes government funds and personnel resources. Put another way, the government

suffers adverse effects when it must clarify responsibilities to an awardee, irrespective of any

assumptions about the bidder’s prior knowledge. WFS’s argument is unconvincing.

Next, of more significance, WFS asserts that its proposed Chief of Scenario Development

has the experience required by the solicitation and it was unreasonable for the Army to give

[WFS] a significant weakness.” (Pl.’s MJAR at 18). The Solicitation required bidders to propose

personnel with minimum qualifications for certain labor categories, including the Chief, Scenario

Development. (AR2423). PWS 1.15.1.11 dictated that this position required, at a minimum,

Military Education Level (“MEL”) 4, military experience at the combat arms brigade level or

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higher, supervisory experience in exercise development, training management, or battle

simulation commensurate with PWS requirements. (AR2137). The Government also desired a

School of Advanced Military Studies graduate or equivalent. (Id.). WFS proposed a retired U.S.

Army Lieutenant Colonel for this role. (AR4233–34). The Colonel’s (ret.) resume purportedly

explained that he received MEL 4 certification from the U.S. Army Command and General Staff

College. (Id.). WFS explained that he also served as the Director of U.S. Army Europe’s Crisis

Action Branch where he “facilitate[ed] and support[ed] operations throughout the U.S. European

Command Area of Responsibility.” (Id.).

Army evaluators found these qualifications lacked the PWS’s required brigade-level

combat arms military experience. (AR5428; AR5466; AR5822). When WFS questioned this

finding, the Army explained that the candidate’s qualifications, including his “schoolhouse

training,” did not satisfy the requirement. (AR5993).

Arguing the converse, WFS now contends the Solicitation does not directly define

“Combat Arms Brigade level,” therefore “[r]ead using its common meaning, the Solicitation just

required the candidate to have served in the military in a role at the brigade level or higher.”

(Pl.’s MJAR at 20). The United States correctly points out that this understanding eliminates the

phrase “Combat Arms.” (Def.’s xMJAR at 29–30). WFS’s explanation within its proposal did

not clearly articulate how its candidate’s instructor position and experience at the Crisis Action

Branch could be considered equivalent to the PWS’s specified military experience requirement,

despite providing this explanation for other team members. (See AR4214 (explaining proposed

program manager commanded a cavalry squadron—the cavalry equivalent to an infantry

battalion); AR4215 (explaining proposed deputy program manager commanded a joint task force

brigade and two battalions)). Based on WFS’s unclear explanation of how the Colonel’s specific

experience qualified him for this position under the PWS requirements, the Army’s evaluation

was reasonable. Moreover, even if it was inclined to second-guess this evaluation, the Court is

poorly suited to do so. Gauging the quality of combat arms officers at the brigade level is not

something within the ken of courts.

To the extent WFS argues that the solicitation requirement was unclear because it was not

defined, (Pl.’s MJAR at 20), there is no merit. Although agencies must evaluate proposals and

make awards based on the solicitation’s stated criteria, Banknote Corp. of Am., 56 Fed. Cl. at

377–78, agencies also have “broad discretion” when evaluating technical proposals. Red Cedar

Harmonia, LLC v. United States, 840 F. App’x 529, 532–33 (Fed. Cir. 2020). “[A] solicitation

need not identify each element to be considered by the agency during the course of the

evaluation where such element is intrinsic to the stated factors.” Banknote Corp. of Am., 56 Fed.

Cl. at 387. Even if the PWS’s specific wording regarding brigade-level combat arms military

experience might be subject to varying interpretations, the Army’s evaluators determined that

WFS’s candidate did not satisfy the intent and substance of that requirement. Thus, the Army’s

evaluation was a valid exercise of its discretionary authority.

WFS next believes that the Army “unreasonably evaluated [WFS]’s Small Business

Participation proposal and abused its discretion by not seeking clarifications” of clerical errors.

(Pl.’s MJAR at 21). Factor 3 examined “the level of proposed participation of small businesses in

the performance of the acquisition.” (AR2448). The Solicitation outlined five considerations for

the Army’s evaluation of this factor: (1) the extent to which the offeror identified specific small

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businesses; (2) the extent of commitment through enforceable agreements; (3) the complexity

and variety of the work given to small businesses; (4) the extent of small business participation

as a percent of the total contract value; and (5) the extent to which the offeror met or exceeded

socioeconomic minimum quantitative requirements. (Id.). The Army’s evaluation would result in

an adjectival rating, with “Outstanding” indicating that the proposal showed “an exceptional

approach and understanding of the small business objectives,” and “Good” indicating that the

proposal showed “a thorough approach and understanding of the small business objectives.”

(AR2448–49). Significantly, the Army assigned a “Good” rating to both WFS and Valiant.

(AR5664–65; AR5733–34).

WFS’s proposal included five small business partners, each identified as meeting a

particular socioeconomic criterion. (AR4072; AR4831–32). The Army took issue with

inconsistencies in WFS’s arrangement with . (AR5663–66).

First, Tables 4 and 5 of WFS’s proposal presented conflicting information regarding

support for PWS section 5.6 tasks, with Table 4 listing and Table 5 limiting support to

specific socioeconomic categories. (AR4835; AR5665). Second, a discrepancy existed between

the teaming agreement with , which assigned support for PWS section 5.7, and the

proposal’s assertion of no small business support for that section. (AR5666; AR4898; AR4835).

Third, the Army found that lacked the claimed veteran-owned or service-disabled veteran-

owned certifications and had no pending applications for certification. (AR5666; AR5682).

Finally, the teaming agreements contained errors, such as improper vernacular, incorrect

solicitation numbers, and misidentification of the prime contractor. (AR5665–66). WFS argues

that the Army’s observation rendered an unreasonable belief that the agreements were

“unenforceable,” thereby reducing its rating to “Good.” (Pl.’s MJAR at 21–22). WFS further

believes that the Army abused its discretion by failing to seek clarification on the clerical errors

in WFS’s teaming agreements. (Id. at 22–25).

As stated above, offerors bear the burden of submitting an adequately written proposal.

Poplar Point RBBR, LLC v. United States, 147 Fed. Cl. 201, 223 (2020). The agency “is not

expected to hunt for potentially responsive information that is not included or not adequately

presented in the relevant section of an offeror’s proposal.” ST Net, Inc. v. United States, 112 Fed.

Cl. 99, 110 (2013); see also CACI, Inc.-Fed. v. United States, 158 Fed. Cl. 1 (2021) (“Agencies

must indeed review the whole proposal, but they are not compelled to comb the record for

information that an offeror does not otherwise adequately present through a well-written

proposal.”), vacated on other grounds, 67 F.4th 1145 (Fed. Cir. 2023). As to the Army’s

responsibility to seek clarification, a contracting officer has the discretion to ask an offeror “to

clarify certain aspects of proposals . . . or to resolve minor or clerical errors.” FAR §

15.306(a)(2); see also Info. Tech. & Applications Corp. v. United States, 316 F.3d 1312, 1322-23

(Fed. Cir. 2003). While the evaluator did note some clerical errors, they were items the evaluator

recommended the Army discuss with WFS “[i]f the Government decides to go into discussions

with the Offeror.” (AR5665). Since the Army opted to award without discussions, clarification

was unnecessary.

The Court concludes that the evaluator’s findings are reasonable. The Army’s positive

rating of WFS’s small business participation was not solely predicated on the potential

unenforceability of the teaming agreement. Instead, the rating reflected a comprehensive

evaluation of WFS’s proposal, considering the combined deficiencies previously outlined. This

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holistic assessment, considering both strengths and weaknesses, provides a rational and

justifiable explanation for the Army’s overall rating of WFS’s small business participation.

In bid protests, it is not the role of the Court to second-guess the agency’s discretionary

determinations, particularly regarding technical evaluations. See Off. Design Grp. v. United

States, 951 F.3d 1366, 1373 (Fed. Cir. 2020) (rejecting protestor’s argument that would “give a

court free reign to second-guess the agency’s discretionary determinations underlying its

technical ratings.”). Rather, the Court determines whether the agency evaluated the proposals

and explained a “rational connection between the facts found and the choice made.” Motor

Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)

(quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962)). WFS’s

contentions regarding its ratings, focusing on mere disagreements with the agency’s evaluations,

fail to engage with the Court’s established standard of review. See Glenn Def. Marine (ASIA),

PTE Ltd., 720 F.3d at 907 (“In a bid protest case, the inquiry is whether the agency’s action was

arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law and, if so,

whether the error is prejudicial.”). The Court finds no reason to disturb the Army’s rationally

supported findings.

D. The Army’s cost realism analysis was reasonable.

Cost was the overriding factor in this procurement behind Mission Capability. (AR2441).

The solicitation indicated that the Army would conduct a “cost realism analysis . . . on the cost-

reimbursement CLINs.” (AR2449). WFS objects to the Army’s analysis of the realism of WFS’s

proposed costs for overhead (“OH”) and general & administrative expenses (“G&A”). (Pl.’s

MJAR at 25–30). The Court finds that the Army’s cost adjustment procedures and explanations

were proper, and no basis exists to disturb its conclusions.

The FAR defines a “[c]ost realism analysis” as the process behind independently

reviewing and evaluating specific elements of each offeror’s cost estimate to determine whether

“the estimated proposed cost elements are[:] realistic for the work to be performed; reflect a clear

understanding of the requirements; and are consistent with the unique methods of performance

and materials described in the offeror’s technical proposal.” 48 C.F.R. § 15.404-1(d)(1). A cost

realism analysis is required for cost-reimbursement contracts “to determine the probable cost of

performance for each offeror.” FAR § 15.404-1(d)(2). In essence, a cost realism analysis

determines whether a proposed cost is too low and thereby increases the risk of overcharging.

See DynCorp. Int’l, LLC v. United States, 10 F.4th 1300, 1305 (Fed Cir. 2021); Agile Def., Inc. v.

United States, 959 F.3d 1379, 1384 (Fed. Cir. 2020). “[C]ontracting agencies enjoy wide latitude

in conducting the cost realism analysis.” Agile Def., 959 F.3d at 1385–86 (citing Mission1st

Grp., Inc. v. United States, 144 Fed. Cl. 200, 211 (2019) (“It is well established that contracting

agencies have broad discretion regarding the nature and extent of a cost realism analysis, unless

the agency commits itself to a particular methodology in a solicitation.”)). “[A]n agency need not

perform the analysis with impeccable rigor to be rational. Rather, the cost realism analysis must

reflect that the agency considered the information available and did not make irrational

assumptions or critical miscalculations.” Crowley Tech. Mgmt., Inc. v. United States, 123 Fed.

Cl. 253, 260 (2015) (cleaned up); see also OMV Med., Inc. v. United States, 219 F.3d 1337, 1344

(Fed. Cir. 2000). Accordingly, the Court’s “scope of review of an agency’s cost realism

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determination is very narrow.” McConnell Jones Lanier & Murphy LLP v. United States, 128

Fed. Cl. 218, 236 (2016).

The Army directed bidders for this procurement to justify unique, cost-saving practices

clearly and establish a direct link between proposed costs and technical proposal requirements.

(AR2432 (“Data . . . is required to be submitted to support the cost realism analysis of the cost-

reimbursement CLINs”) (emphasis in original); AR2449 (“A cost realism analysis will be

performed on the cost-reimbursement CLINs to determine whether specific estimated proposed

cost elements are realistic for the work to be performed . . . . [T]he Offeror is advised to clearly

show justification for unique practices that significantly lower costs”); id. (stating that the

government would “calculate an evaluated cost” by adjusting the offeror’s proposed cost so that

it would “reflect any additions or reductions in cost elements to realistic levels based on the

results of the cost realism analysis. The evaluated cost may differ from the proposed cost and

will reflect the Government’s best estimate of the cost that is most likely to result from the

Offeror’s proposal[.]”)).

To evaluate OH and G&A costs, the Army considered each offeror’s “unique approach”

and established a “hierarchy” of support for the rates. 10 (AR5565). In its proposal, WFS

summarized its approach, focusing on its business structure and the added value it would

contribute to this particular contract:

WFS is a populated [Joint Venture] purposely built and solely focused on

providing support to the JRTC mission as it changes and evolves with the

global security environment enabling clarity of purpose, unity of effort, and

exceptional cost effectiveness. Focusing the JV on only one contract allows

us to remain as efficient as possible in our corporate structure and processes,

thus minimizing our overhead costs to only those aspects that are required to

support the JRTC MSC. This efficiency simultaneously gives WFS small

business agility with a flat organizational structure and the large business

experience and backbone of two Army Training Center Support Defense

Industry leaders . . . as the managing member and . . . the minority member.

(AR4919). WFS went on to reiterate that the “G&A cost pool is where the customer sees the

most benefit of this cost structure[,]” because all management and business support expenses are

“specific to JRTC and create a significant cost savings.” (AR4926). WFS’s proposal

acknowledged that WFS “[did] not have a Forward Pricing Rate Agreement, or approved billing

rates” and that WFS did not have historical rates. (AR4924). Instead of this, WFS proposed to

“use[] the expertise and experience from both [joint venture] members to build an indirect budget

specifically to support the” JRTC MSS contract. (Id.).

10

An OH rate is calculated by dividing the proposed OH cost by the total labor costs (direct and

fringe). (AR5577). A G&A rate is calculated by dividing the proposed G&A cost by the sum of

labor, OH, and subcontractor costs. (AR5578).

15

WFS proposed $ for OH, calculated at an average rate of % throughout

11

the contract. (AR5577). WFS stated that this rate included “allowable indirect costs related to

the program management and support team, management facility, office expense and this

contract” as well as “allowable indirect expenses related to administrative, project and contract

management, security, training and certifications, and contract specific insurance requirements.”

(AR4926). WFS’s G&A proposal was $ , based on a % average rate for the

contract duration. (AR5577–78). WFS stated that its G&A rate included costs for “executive

management, personnel administration, finance and accounting, information technology, and

contract management at the WFS home offices.” (AR4926).

During the evaluation, the Army observed that WFS, as a recently formed joint venture,

did not have the necessary documentation, such as rate agreements or historical rates, to justify

its proposed rates. (AR5577). To assess WFS’s proposed OH and G&A costs, the evaluator used

the average rates of other contractors, determining an average OH rate of 3.52% and a G&A rate

of 6.84%. (AR5577–78). As a result, the Army determined that WFS’s most probable cost for

OH was $ and for G&A was $ . 12 (AR5577).

WFS argues that, as an initial matter, the sample size of two bidders was too small to use

an average rate, making it irrational. (Pl.’s MJAR at 27). This argument is not convincing. First,

it ignores (but does not refute) that the Army included subcontractors in this analysis. (See

AR5577). Further, in performing their calculations, Army evaluators adopted one of the

approaches specifically envisioned by the FAR: “Comparison of costs proposed by the offeror

for individual cost elements with . . . [o]ther cost estimates received in response to the

Government’s request.” FAR 15.404-1(c)(iii). This provision makes no exception for when the

number of bidders is slim. The evaluator was left with little other option, given the lack of rate

information from WFS. (See AR4924 (WFS acknowledging that its proposal lacked empirical

information and relied instead on the expertise and experience of its members)). A cost realism

analysis simply must reflect that an agency considered the information available. See Crowley

Tech. Mgmt.,123 Fed. Cl. at 260. The step-by-step nature of the Army’s process, (AR Tab 32),

demonstrates that it did just that.

WFS contends that its status as a “populated joint venture” necessarily results in lower

OH and G&A costs. (Pl.’s MJAR at 25–26). Agencies cannot reasonably be expected to accept

assertions lacking data-driven proof. It is precisely this sort of general assertion that the Army

took issue with in its analysis. The United States highlights that WFS used its claim of a tailor-

made joint venture exclusively as a basis for its proposed G&A expenses. (Def.’s xMJAR at 40

11

WFS states that its “proposed overhead rate was % and its G&A rate was %.” (Pl.’s

MJAR at 26 (citing AR4924)). It appears this difference comes from the Army’s calculation of

the average throughout the contract. (See AR5577). That said, this particular percentage is not

integral to the Court’s decision.

12

Upon completion of the cost adjustments, Valiant’s projected cost was determined to be

$478,079,108.95, approximately $10 million less than WFS’s adjusted cost of $488,325,407.81.

(AR5796).

16

(citing AR4926)). WFS’s arguments stemming from its status as a populated joint venture

challenge the Army’s cost-realism analysis methodology. But these arguments dispute a decision

within the Army’s broad discretion. By using this method, the Army did not ignore WFS’s

unique approach as WFS suggests. (See Pl.’s MJAR at 28 (“By adjusting [WFS] to the average,

the Army treated it like any other contractor, not a populated joint venture created for this

contract.”)). Rather, it considered “whether specific estimated proposed cost elements are

realistic for the work to be performed; reflect a clear understanding of the contract requirements;

and are consistent with the unique methods of performance described in the Offeror’s technical

proposal.” (AR5739). That the specifics of WFS’s unique approach were incongruous with

realistic considerations does not render the evaluation unreasonable.

WFS has failed to demonstrate any substantive errors in the Army’s cost realism analysis.

Its primary contention revolves around a disagreement regarding the methodology used to

calculate certain figures rather than identifying any demonstrable flaws in the Army’s process. It

is well-established that mere disagreements with an agency’s methodology do not constitute

grounds for overturning a cost realism analysis. WFS has not shown that the Army failed to

consider the available information, nor has it shown that the Army made irrational assumptions

or critical miscalculations.” See Crowley Tech. Mgmt., 123 Fed. Cl. at 260. Accordingly, this

claim is rejected.

E. WFS’s other arguments fail, and it is not entitled to relief.

WFS argues that the Army’s errors prejudiced WFS. (Pl.’s MJAR at 31–33). As

discussed, WFS has not shown error. Beyond disputing the Army’s evaluation of its proposal,

WFS provides no alternative basis for overturning the best value decision. WFS primarily

attempts to demonstrate how alleged errors negatively affected its chances for award. Because

the Court has not found error, there is no basis to evaluate prejudice.

WFS finally requests the Court to enter permanent injunctive relief. (Pl.’s MJAR at 33–

35). There is no basis to do so. Injunctions are a “drastic and extraordinary remedy, which should

not be granted as a matter of course.” Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 165

(2010) (citation omitted). To obtain permanent injunctive relief, a party must demonstrate: (1)

success on the merits; (2) irreparable harm if an injunction does not issue; (3) the balance of

harm favors the movant; and (4) that the injunction serves the public interest. See PGBA, LLC v.

United States, 389 F.3d 1219, 1228–29 (Fed. Cir. 2004); Amazon Web Servs., Inc. v. United

States, 147 Fed. Cl. 146, 153 (2020). Although “[n]o one factor, taken individually, is

necessarily dispositive . . . , the absence of an adequate showing with regard to any one factor

may be sufficient, given the weight or lack of it assigned the other factors, to justify the

denial.” FMC Corp. v. United States, 3 F.3d 424, 427 (Fed. Cir. 1993). Because WFS has failed

to establish success on the merits, there is no need for further analysis. WFS’s request for a

permanent injunction is denied.

F. Miscellaneous Motions

WFS moves to supplement the administrative record with a declaration regarding the

Army’s history about who stocked the refreshments in the soldiers’ lounge. (ECF No. 26; see

also Am. Compl. App’x A (Declaration of C. Bryan Dyer)). The ability to submit additional

17

information into an administrative record is limited. Axiom Res. Mgmt., 564 F.3d at 1379. The

purpose of limiting review to the record before the procuring agency is to prevent courts from

using new evidence to “convert the ‘arbitrary and capricious’ standard into effectively de novo

review.” Murakami v. United States, 46 Fed. Cl. 731, 735 (2000), aff’d, 398 F.3d 1342 (Fed. Cir.

2005). Because the focal point for judicial review is the agency’s administrative record, “the

standard for discovery in the bid protest context is narrower” than in non-bid protest cases.

Proxtronics Dosimetry, LLC v. United States, 128 Fed. Cl. 656, 681 (2016); see also Murakami,

46 Fed. Cl. at 735 (“[E]xceptions to the general rule against extra-record evidence are based

upon necessity, rather than convenience, and should be triggered only where the omission of

extra-record evidence precludes effective judicial review.”).

The Court must grant a request to supplement the administrative record only “if

necessary for effective judicial review or if the existing record cannot be trusted.” Diversified

Maint. Sys. v. United States, 93 Fed. Cl. 794, 802 (2010) (internal quotations omitted); cf. Axiom

Res. Mgmt., 564 F.3d at 1381. Only in extremely limited circumstances is supplementation of the

administrative record appropriate, such as where the agency failed to consider relevant factors or

where there is some evidence of bad faith or improper behavior by agency officials. Cubic

Applications, Inc. v. United States, 37 Fed. Cl. 339, 342 (1997)); see also Axiom Res. Mgmt., 564

F.3d at 1379 (citing IMS, P.C. v. Alvarez, 129 F.3d 618, 624 (D.C. Cir. 1997)). This Court is

limited to supplementing the record in instances in which it can “explain why the evidence

omitted from the record frustrated judicial review as to the ultimate question of whether [the

agency action] was arbitrary and capricious.” AgustaWestland N. Am., Inc. v. United States, 880

F.3d 1326, 1332 (Fed. Cir. 2018) (citing Axiom Res. Mgmt., 564 F.3d at 1379–80).

WFS claims that without such supplementation, the Court will lack information that is

“generally known in the industry or discipline,” and is “necessary for the Court to have a

complete understanding of the issues before it.” (ECF No. 26 (internal citations omitted)). The

Court finds that WFS’s goal is to present information to the Court that it should have provided or

clarified within its proposal. The Court cannot allow a party to present information required to be

in its proposal, which it failed to include, through extraneous documentation as supplementation

to an administrative record in a bid protest. Int’l Res. Recovery, Inc. v. United States, 60 Fed. Cl.

428, 432 (2004). Given the nature of this document and its findings regarding the Army’s

reasonable evaluation, the Court finds that this document does not aid judicial review. Therefore,

WFS’s Motion is denied.

Further, the Court directed the parties to attach appendices of cited materials to their

briefs. (ECF No. 12). Valiant and WFS failed to do so; to self-correct, they each moved to file

corrected briefs, (ECF Nos. 40, 42). Those motions are granted. The Court notes that refiling

these documents is unnecessary as the Court relied on the corrected briefs attached to each

motion, (ECF No. 40 at 4–57; ECF No. 42-1, 42-2, 42-3), for purposes of this ruling.

III. Conclusion

For the reasons stated above, WFS’s Motion for Judgment on the Administrative Record,

(Pl.’s MJAR, ECF No. 27), is DENIED. The United States’ and Valiant’s Cross-Motions for

Judgment on the Administrative Record, (Def.’s xMJAR, ECF No. 29; Int-Def.’s xMJAR, ECF

18

No. 28), are GRANTED. WFS’s Motion to Supplement, (ECF No. 26), is DENIED. Valiant’s

and WFS’s motions to correct their respective briefs, (ECF Nos. 40, 42), are GRANTED.

The Clerk is DIRECTED to enter judgment accordingly. The parties shall meet and

confer and file a Joint Status Report proposing redactions to this memorandum opinion within

fourteen (14) days of its entry to allow the Court to file a public version of the opinion.

IT IS SO ORDERED.

s/ David A. Tapp

DAVID A. TAPP, Judge

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