# Culmen International, LLC v. United States

> United States Court of Federal Claims · April 15, 2025

URL: https://www.frixlaw.com/law-library/cases/10846404

## Case

- **Court:** United States Court of Federal Claims
- **Decided:** April 15, 2025
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Judges:** Edward J. Damich
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10846404

## How later opinions describe it (automated extraction)

- holding that “proving success on the merits is a necessary element for a permanent injunction”
- rejecting derivative challenge to the agency's best value determination because the underlying evaluation was reasonable

## Opinion text

In the United States Court of Federal Claims
No. 25-34C
(Filed Under Seal: April 1, 2025)
(Reissued: April 15, 2025)1
Corrected
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CULMEN INTERNATIONAL, LLC, *
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Plaintiff, *
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v. *
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THE UNITED STATES, *
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Defendant, *
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And *
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TECHTRANS INTERNATIONAL, INC., *
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Defendant-Intervenor. *
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OPINION AND ORDER

DAMICH, Senior Judge.

In this post-award bid protest, Plaintiff Culmen International, Inc. (“Culmen”), the
incumbent contractor, challenges the technical, past performance, cost/price, and best value
evaluations of the Agency for Request for Proposals No. HDTRA1-23-R-0018 (“Solicitation” or
“Procurement”). The Solicitation is for the Department of Defense, Defense Threat Reduction
Agency’s (“Agency” or “DTRA”) Threat Reduction Logistics Services (“TRLS”) II Contract
and is the follow-on effort to Culmen’s TRLS I contract.

The Agency sought a contractor to provide logistics services across the Cooperative
Threat Reduction (“CTR”) Directorate, which includes the Cooperative Biological Threat
Reduction Department, Proliferation Prevention Department, and the Integration Department.
Culmen alleges that the DTRA’s award of the TRLS II contract to TECHTRANS International,
Inc. (“TTI”) was arbitrary and irrational as TTI’s scores should have been lower and that its
1
The Court issued this opinion under seal on April 1, 2025, and the Court gave the
parties fourteen days to propose the redaction of competition-sensitive, proprietary, confidential,
or otherwise protected information. The parties filed their proposed redactions. Thus, the
Court adopts the parties’ redactions and issues the redacted opinion unsealed. Redactions are
indicated with “[ ].”
1
scores should have been higher. Taking the alleged arbitrary and irrational decisions of the
Agency together, Culmen believes it should have been awarded the TRLS II contract.

Culmen timely filed its Motion for Judgment on the Administrative Record on February
20, 2025, seeking a permanent injunction preventing the Agency from proceeding with the
contract award and asks the Court to set aside the award. The Government and Intervenor timely
filed their respective Responses and Cross-Motions for Judgment on the Administrative Record. The
Motions are fully briefed, and oral argument is unnecessary.

For the reasons set forth below, the Court GRANTS the Government’s and Intervenor’s
Cross-Motions for Judgment on the Administrative Record and DENIES Culmen’s Motion for
Judgment on the Administrative Record.

I. Statement of Facts

A. Background

The DTRA’s core functions are to deter, prevent, and prevail against threats posed by
weapons of mass destruction (“WMD”), including nuclear, chemical and biological threats. See
https://www.dtra.mil (last visited March 28, 2025). As part of this mission, the agency responds
to threats like the proliferation of such weapons from unstable areas such as Syria and biological
disease outbreaks like Ebola in Africa. See https://www.dtra.mil/About/DTRA-History (last
visited March 28, 2025). To support this mission, the current procurement sought a single
contractor to provide comprehensive, consistent, and uniform total solutions for CTR logistics
support throughout all areas of responsibility (“AORs”) and in all operational and physical
environments of CTR. AR 2655, 6346.

The scope of services includes the following: worldwide materials transit (including
warehousing and storage), customs clearance in a technical aid environment, procurements,
personnel logistics support services, language services support (including interpretation and
document translation), contingency response support, and an Online Workflow Management
System (“OWMS”). AR 4564, 6346.

The contract is to be an Indefinite Delivery/Indefinite Quantity (IDIQ) single award
contract with an initial three-year term with renewal options to extend the total life of the
contract to a five (5) year period, and “is a best value source selection acquisition.” AR 2655.

B. Solicitation Requirements and the Basis for Evaluation

The Solicitation instructed offerors to submit a five-volume package addressing the
requirements of the Agency, including one volume for each of the following: Executive
Summary, Contract Documentation, Technical, Past Performance, and Cost/Price. AR 2644-54.
The Solicitation informed the offerors:

It is a best value source selection acquisition conducted in accordance with
the FAR and DFARS. The Government will select the best overall offer based
on a comparative assessment of the proposals against all source selection
criteria: Technical, Past Performance, and Cost.
2
In making the best value decision, the SSA will consider the following order
of importance:
Factor 1—Technical is of equal importance to Factor 2—Past Performance.
All Factor 1—Technical subfactors are equal. Factor 1—Technical and
Factor 2—Past Performance, individually, are more important than Factor
3—Cost.

In compliance with FAR 15.304(e), when combined, all other evaluation
factors (Factors 1 and 2) are significantly more important than Factor 3—
Cost. However, the Government’s evaluation team will carefully consider
Factor 3—Cost in the selection decision.

AR 2655. The Solicitation further states “[i]nformation required for proposal evaluation that is
not found in its designated volume will be assumed to have been omitted from the proposal.
Each volume shall be written on a stand-alone basis such that its contents may be evaluated
without cross-referencing to other volumes of the proposal.” AR 2644.

1. The Technical Factor

Regarding the Technical Factor, the Solicitation states the “Government will provide
ratings on the Factor 1—Technical sub-factors ‘Methodology 2: Combined Technical/Risk
Rating Method’ from the DoD Source Selection Procedures,” which includes consideration of
“risk in conjunction with the significant strengths, strengths, weaknesses, significant weaknesses,
uncertainties, and deficiencies” in an offeror’s submission. AR 2656. The Solicitation provided
the evaluation team with the following table to use pursuant to the combined method:

Id.

Within the technical evaluation, the Solicitation includes Mission Capability and
Management Approach sub-factors. For the Mission Capability evaluation, this required the
evaluation of:

3
a)[t]he degree to which the Offeror presents a clear understanding and an
innovative approach to fulfill all the objectives outlined in the [Performance
Work Statement] PWS,

b) [t]he soundness and effectiveness of the Offeror’s approach to fulfill all
the objectives of Sample Task, [and]

c) [t]he degree to which the Offeror’s performance plan meets the objectives
outlined in the PWS and Sample Task.

AR 2657-58.

The Management Approach sub-factor includes evaluation of the a) soundness of
the Offeror’s approach for overall team management, business practices, and
organizational structure required to properly and effectively administer the PWS and
Sample Task, b) the effectiveness of the processes to manage cost, schedule, and
performance, and c) Transition Planning: Specific plan to fulfill PWS requirements while
transitioning from the current TRLS I contract to the new TRLS II contract, and the
approach to include participation by small businesses. AR 2658.

2. The Past Performance Factor

The Solicitation explained that offerors would be evaluated under the Past Performance
Factor pursuant to the following table:

AR 2659.

3. The Cost/Price Factor

The Solicitation contained cost reimbursement CLINs and firm fixed price CLINs.
AR 2653-4. The cost reimbursement CLINs were for logistics, materials costs, and travel.

4
AR 2654. The Solicitation required offerors to price CLINs for “Program Support Labor”
(CLINs 0002 and 1002) on a firm-fixed price basis and to price CLINs for the logistics services
scope of work (CLINs 0001 and 1001) on a cost-plus-fixed-fee (“CPFF”) basis. AR 2654.

The Solicitation explains, in the Cost/Price Factor, the “Government will not rate or score
cost but will evaluate each Offeror's cost proposal for completeness, reasonableness, and
realism.” AR 2660. The Solicitation stated that it would evaluate “reasonableness” using one of
the techniques in FAR 15.404 to determine if the offeror’s proposed cost and fee “in nature and
amount, do not exceed costs potentially incurred by a prudent company in the conduct of
competitive business.” Id. The Agency would evaluate the “realism” of the proposed costs by
assessing whether the proposed costs “are realistic for the work performance; reflect a clear
understanding of the requirements; and are consistent with the unique methods of performance
and materials described in the Offeror’s Technical section.” AR 2660.

Additionally, the Solicitation identified that the Agency would evaluate the cost proposal
for program labor support (CLINs 0002/1002) for price realism. Id. Specifically, the
Solicitation stated that the Agency would conduct a price realism analysis to “determine whether
the proposed PMO price and fixed fully burdened labor rates under CLINs 0002/1002 are so low
that they reflect a lack of technical understanding.” Id. The Agency also retained the discretion
to reject a proposal “for offering too low prices.” Id. The Agency is further tasked here with
assessing whether the proposed cost elements are realistic and the Agency may adjust the
proposed cost where appropriate to reflect the Government’s best estimate of the cost most likely
to result from the offeror’s proposal resulting in a “Most Probable Cost” to be used in the best
value evaluation. Id.

C. The Evaluation Teams and the Two-Phase Process

On July 19, 2023, four offerors submitted initial proposals. See AR 2672; AR 3254; AR
3682; AR 3962. The Agency’s source selection teams then evaluated these initial proposals.
There was a separate evaluation team for each of the three factors discussed above. AR 4565. To
this end, the initial evaluation teams were organized as follows:

AR 4565. Following the initial review and evaluation of the proposals, the Agency summarized
the evaluations in the following chart:

5
not indicate actual bias against Culmen” and “during the conduct of the TRLS II initial
evaluation, there was no indication of actual bias by Ms. DuFrane.” Id.

Mr. Skidan also noted that another SSEB member, Mr. Scott Anderson, could be subject
to an allegation of bias due to his intimate knowledge of the issues and limits with Culmen’s
proprietary information management system. Id. Nevertheless, Mr. Skidan determined that Mr.
Anderson’s criticisms of Culmen’s system were professional and raised only to improve the
system. Id. The investigation of Mr. Anderson revealed that “there has been no indication that
Mr. Anderson is biased against Culmen, and there is no known documentary evidence that could
be used to argue bias.” Id.

Although Mr. Skidan found no evidence of bias against Culmen, he determined that “it is
prudent to exercise an abundance of caution and remove [Ms. DuFrane] from the TRLS II SSEB,
as well as to commit to a new evaluation of all submitted final proposals.” AR 558. Mr. Skidan
noted that “Ms. DuFrane’s removal is not punitive, is not an adverse administrative action, and
has no bearing on her performance.” Id. She was thereafter removed prior to the submission and
evaluation of the offerors’ final revised proposals. Id. As for Mr. Anderson, Mr. Skidan
determined that he could continue serving on the SSEB as a non-voting member. Id.

2. The Agency’s Final Evaluation Teams

The Agency’s final evaluation teams were thus comprised as follows:

AR 6206.

3. The Award

ARServices, Culmen, and TTI submitted their FPRs. AR 4818, 5260, 524. The Source
Selection Authority (“SSA”) selected TTI as the winner of the TRLS II Contract. The SSA
concluded that TTI’s proposal “provides the best overall value to satisfy the requirements of the
TRLS II Request for Proposal (RFP) in support of the Cooperative Threat Reduction Program (CTR)
mission.” AR 6372. To support this conclusion in its Decision Document, the SSA summarized the
evaluation scores of the three FRPs under the three factors as follows:

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II. Standard of Review

The Court of Federal Claims possesses jurisdiction to entertain bid protests pursuant to
the Tucker Act, 28 U.S.C. §1491(b)(1). 28 U.S.C. § 1491(b)(4) requires that the Court “review
the agency’s decision pursuant to the standards set forth in section 706 of title 5” of the
Administrative Procedure Act (APA). See Impresa Construzioni Geom. Domenico Garufi v.
United States, 238 F.3d 1324, 1332 (Fed. Cir. 2001). Thus, in a bid protest, applying the APA
standard of review, the Court must determine whether the agency’s actions were “arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. §
706(2)(A); 28 U.S.C. § 1491(b)(4); Banknote Corp. of Am. v. United States, 365 F.3d 1345, 1350
(Fed. Cir. 2004). Under this standard a court “must sustain an agency action unless the action
does not evince rational reasoning and consideration of relevant factors.” PAI Corp. v. United
States, 614 F.3d 1347, 1351 (Fed. Cir. 2010) (internal quotation marks and citation omitted).
The APA does not permit the court to undertake a de novo review of the agency’s procurement
decision. Axiom Resource Mgmt., Inc. v. United States, 564 F.3d 1374, 1380 (Fed. Cir. 2009).

To prevail in a bid protest, a plaintiff must demonstrate: 1) that the procurement decision
“lacked a rational basis”; or 2) “a clear and prejudicial violation of applicable statutes or
regulations.” Impresa, 238 F.3d at 1332-33 (citations omitted). “When a challenge is brought
on the first ground, the test is ‘whether the contracting agency provided a coherent and
reasonable explanation of its exercise of discretion, and the [protestor] . . . bears a heavy burden
of showing that the award decision had no rational basis.’” Banknote, 365 F.3d at 1351 (quoting
Impresa, 238 F.3d at 1332-33); accord Axiom, 564 F.3d at 1381. The rational basis standard
requires the agency’s decision to have “considered the relevant factors” and to be “within the
bounds of reasoned decision making.” Baltimore Gas & Elec. Co. v. Natural Res. Def. Council,
Inc., 462 U.S. 87, 105 (1983). When a protestor challenges a decision as arbitrary and
capricious, the Court is “highly deferential” to the agency’s action. Advanced Data Concepts,
Inc. v. United States, 216 F.3d 1054, 1058 (Fed. Cir. 2000). “The court must especially defer to
the agency's technical evaluations, past performance ratings, and other ‘minutiae of the
procurement process . . . which involve discretionary determinations of procurement officials.’”
J.C.N. Const., Inc. v. United States, 107 Fed. Cl. 503, 510 (2012) (citing E.W. Bliss Co. v. United
States, 77 F.3d 445, 449 (Fed. Cir. 1996)). When the Court finds a reasonable basis for an
agency’s action, it “stay[s] its hand even though it might, as an original proposition, have
reached a different conclusion as to the proper administration and application of the procurement
regulations.” Honeywell, Inc. v. United States, 870 F.2d 644, 648 (Fed. Cir. 1989); see also
Bowman Transp., Inc., v. Arkansas-Best Freight Sys., Inc., 419 U.S. 281, 285-86 (1974).

Indeed, because “contracting officers are entitled to exercise discretion upon a broad
range of issues confronting them in the procurement process, [] procurement decisions are
subject to a highly deferential rational basis review.” Id. (quotation marks and citations omitted).
To prevail in a bid protest, “a protestor must show a significant, prejudicial error in the
procurement process.” WellPoint Mil. Care Corp. v. United States, 953 F.3d 1373, 1377 (Fed.
Cir. 2020).

And, when a contract is to be awarded on a “best value” basis, as it is here, contracting
officers have “even greater discretion than if the contract were to have been awarded on the basis

9
of cost alone.” Galen Medical Associates, Inc. v. United States, 369 F.3d 1324, 1330 (2004)
(citing E.W. Bliss, 77 F.3d at 449) (“Procurement officials have substantial discretion to
determine which proposal represents the best value for the government.”).

III. Discussion

In this protest, Culmen argues that the Agency’s evaluation and award decision were
arbitrary and irrational. First, Culmen argues that the Agency’s evaluation of TTI’s technical
approach should not have resulted in an Outstanding Rating. Second, Culmen asserts that the
Agency failed to evaluate TTI’s Past Performance according to the Solicitation. Third, Culmen
argues that the Agency misevaluated its proposal. Fourth, the Agency’s actions were arbitrary in
failing to reevaluate the proposals despite removing two members of the evaluation team for
bias. Fifth, and finally, Culmen argues that for these reasons, it is entitled to a permanent
injunction. The Court will take each argument in turn.

A. The Agency’s Evaluation of TTI’s Technical Approach was Rational

Culmen argues that TTI should not have been given an Outstanding technical rating. In
support, Culmen argues that the Agency’s evaluation of TTI’s technical proposal is inconsistent
with the administrative record because when the Agency found that TTI’s proposed labor costs
were too low, the Agency should have accounted for the unrealistic labor costs by determining
whether there was risk under the Technical Factor. Simply put, Culmen argues that because the
team performing a cost realism evaluation under Factor 3, for cost/price, concluded that the line
item for labor in TTI’s proposal was too low, the separate team evaluating Factor 1, the technical
approach, erred in giving TTI’s technical proposal an Outstanding rating.

Turning to the Solicitation, it is clear that the technical and cost/price proposals of each
offeror were separate and were to be evaluated separately. Consistent with the solicitation,
staffing and labor hours were only included in and evaluated under Factor 3 – cost/price; they
were not part of the evaluation of the offerors’ technical proposals. See AR 2648-50; AR 2652;
AR 2656-60 (Section M.3).

Culmen cites to AR 2660 in its reply claiming that this page of the Solicitation mandates
that risk be considered. The Solicitation, however, is silent on that page regarding risk. The
Solicitation simply states that the agency “may” conduct a price realism determination if the
price and burdened rates “are so low that they reflect a lack of technical understanding.” Id.
(emphasis added). Further, the Solicitation provides that if an offeror’s “proposal is determined
to be unrealistic, that proposal may be rejected for offering too low prices.” Id. (emphasis added).
Nothing on this page mandates the rejection of TTI’s proposal or that the agency go back and
reevaluate another separate proposal section—the technical section—based on the alleged risk
posed by an estimate for labor hours that the agency deemed low. Reexamining the technical
evaluations after the separate cost realism analysis—which Culmen claims should have been
done—would have been inconsistent with the terms of the Solicitation.

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Yet, the Solicitation did require consistent approaches between Volume V– Cost/Price
and Volume III – Technical. Specifically, the Solicitation indicated that in Volume V “[t]he
Offeror shall provide a cost proposal for the [work statement] that is consistent with the
approaches provided in the Volume III – Technical.” AR 2652. And in order to ensure
consistency, the record shows that the cost realism analysis was assisted by a member of the
technical evaluation team. The Solicitation, however, did not permit the cost realism analysis to
inform or affect the evaluation of the Technical Factor. The Solicitation clearly split up the
evaluation factors advising that each volume be dedicated to its particular factor as well as
indicating that there would be no cross-referencing between the volumes during the evaluation.
It would have therefore been inconsistent with the Solicitation to carry cost information from
Volume V and apply it to Volume III. By keeping the evaluation of these different factors
separate, the Agency ensured independent analysis of each factor.

Further, under the Technical Factor the Agency correctly applied the combined
technical/risk rating methodology as required by the Solicitation. See AR 2656. Under this
methodology, offerors would be rated between Outstanding and Unacceptable based on the
presence of strengths and/or significant strengths in their proposal, as well as the risk of
unsuccessful performance presented by the proposal. Id. The Solicitation provided that risk
ratings would range from Low to Unacceptable based on any weaknesses and/or significant
weaknesses in the proposal. AR 2657. Based on the terms of the Solicitation, an Outstanding
rating would be assigned for a technical approach that “contains multiple strengths, and/or at
least one significant strength, and risk of unsuccessful performance is low.” AR 2656. A
proposal presented a low risk of unsuccessful performance where the proposal “may contain
weakness/weaknesses, which have low potential to cause disruption of schedule, increased cost,
or degradation of performance.” AR 2657.

Applying these evaluation criteria to TTI’s technical evaluation, the Agency assigned TTI
Outstanding ratings under the Mission Capability and Management Approach subfactors. See
AR 6846. TTI received 16 total strengths, 3 significant strengths, and no weaknesses under the
technical factor whereas Culmen received 8 total strengths, 1 weakness, and no significant
strengths. Cf. AR 6361-62, 6359-60.

In determining these scores, under the Mission Capability subfactor, the SSEB narrative
as it relates to TTI states in part:

The Offeror’s FPR includes ten (10) Strengths and three (3) Significant
Strengths that reflect an exceptional and innovative approach to meeting the
requirements of the PWS. A Significant Strength was given for proposing a
combination of six (6) innovative OWMS features that will provide
considerable advantage to the Government by providing time efficiencies for
searches; faster service request reviews and approvals; proactive solicitation
for support feedback; and optimized system performance that will decrease
the time needed to address various issues individually. . . . The Offeror’s
Strengths included numerous features which provided a considerable
advantage to the Government.

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AR 6362-63. Describing why TTI was awarded an outstanding rating under the Management
subfactor, the narrative states in part:

The Offeror’s solutions included several Strengths due to the robust and
innovative approaches proposed for Team Management that will bring
considerable advantages to the Government The Offeror’s Strengths for
Subfactor: B Management Approach and lack of Weaknesses demonstrate a
very high degree of merit, especially in the Team Management and Transition
sections of Subfactor B, resulting in high confidence the proposed overall
Management Approach has a low potential to cause disruption of schedule,
increased cost, or degradation of performance during and after transition. The
Offeror’s proposal, therefore, received a rating of Outstanding (Blue) for
Subfactor B: Management Approach.

AR 6363-64 (emphasis in the original).

In comparison, Culmen only earned 8 strengths and 1 weakness, and more importantly
only earned a rating of good under the Technical Factor. AR 6360-61. Given the large
discrepancy in the technical evaluations of TTI and Culmen, even if TTI were given a weakness
in connection with the low labor hours estimated for some of the work, TTI would have still had
far more strengths and significant strengths as compared to Culmen. Thus, if the Agency had
assigned a weakness to TTI’s technical proposal because the Agency had concluded the labor
hours set forth in the cost/price proposal were too low, the record depicts that TTI would still
have had a superior technical evaluation compared to Culmen, including twice as many strengths
as Culmen.

Additionally, Culmen argues that because the Agency made adjustment to TTI’s
proposed labor costs pursuant to the Agency’s cost realism analysis, Culmen claims the Agency
could not have rationally concluded that TTI’s proposed price was realistic and the Agency
should have considered rejecting TTI’s entire proposal. However, the record reveals that after
evaluating the proposed costs of each offeror, the Agency concluded each offeror’s proposed
costs and total price were too low. AR 6306 (emphasis added). The Agency was thus unable to
determine if Culmen or the other offerors’ “prices [were] fair and reasonable,” which is why the
cost team performed its cost realism analysis and determined a most probable cost. Id. It was
only after making adjustments to the cost line items of every offeror, that the Agency was able to
conclude that the proposed prices of Culmen and TTI were realistic. AR 6316.

The record, however, shows that the Agency adjusted the labor costs under CLINs
0002/1002, which are firm fixed prices, and should not have been adjusted. While the Agency
should not have adjusted the proposed costs for labor in TTI’s proposal given that it was a firm
fixed price CLIN, this adjustment did not harm Culmen. The adjustment merely raised TTI’s
evaluated price, which was still below Culmen’s following the adjustment. AR 6374. In other
words, the adjustment reduced the gap in price between Culmen and TTI, thus giving Culmen a
better chance of being awarded the contract.

The Agency’s conclusion that TTI provided the superior technical proposal compared to
Culmen was therefore rational. Thus, because the Agency assigned TTI’s technical subfactors
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Outstanding ratings based on the terms of the Solicitation, and the “potential risk” identified in
TTI’s cost/price evaluation was consistent with a low-risk rating, Culmen’s argument is nothing
more than mere disagreement with the Agency’s decision which is insufficient to overturn the
Agency’s determination and final award.

B. The Agency Rationally Assigned TTI a Past Performance Rating of “Substantial
Confidence” Consistent with the Solicitation.

Culmen contends that the Agency’s past performance evaluation departed from the
Solicitation’s required evaluation scheme. Specifically, Culmen asserts that the
Agency’s past performance evaluation was unreasonable due to “agglomerat[ing]” and
“mash[ing] TTI’s references together,” which led to the Agency assessing higher relevancy
ratings to TTI’s past performance references than were merited. ECF No. 34 at 24. According
to Culmen, the Substantial Confidence rating the Agency assigned TTI was unreasonable
because “[n]one of the past performance references submitted by TTI cover all the PWS’s areas
of work.” Id. at 26. In particular, the Agency’s evaluation of TTI’s past performance was
arbitrary because the Agency did not evaluate whether each of TTI’s references separately
demonstrated experience with each of the PWS’s objectives but instead combined the individual
relevancies of each reference to make “a false relevancy determination.” Id. at 24.

“The assignment of a past performance rating is reviewed ‘only to ensure that it was
reasonable and consistent with the stated evaluation criteria and applicable statutes and
regulations, since determining the relative merits of the offerors’ past performance is primarily a
matter within the contracting agency’s discretion.” Todd Constr., L.P. v. United States, 88 Fed.
Cl. 235, 247 (2009), aff’d, 656 F.3d 1306 (Fed. Cir. 2011). And “[w]hen the Court considers a
bid protest challenge to a past performance evaluation conducted in the course of a negotiated
procurement, ‘the greatest deference possible is given to the agency.’” FirstLine Transp. Sec.,
Inc. v. United States, 100 Fed. Cl. 359, 396 (2011). “An offeror’s mere disagreement with the
agency’s judgment concerning the adequacy of the proposal is not sufficient to establish that the
agency acted unreasonably.” AM Gen., LLC v. United States, 115 Fed. Cl. 653, 692 (2014)
(quoting Banknote Corp. of Am. v. United States, 56 Fed. Cl. 377, 384 (2003)).

Here, the Solicitation required offerors to “explain aspects of previous contracts that the
Offeror deems relevant to the proposed effort.” AR 2651. The Agency was then tasked with
evaluating whether these aspects “demonstrated recent and relevant record of performance in
providing the services required to meet the PWS objectives.” AR 2658. The Solicitation further
provided that “[f]or scope, each reference will be compared to the breadth and depth of the PWS
objectives.” Id. Relevancy was based on a reference involving the same or similar “scope and
magnitude of effort and complexities this solicitation requires.” AR 2659. In addition, the
Solicitation requires the awarded contractor to meet seven distinct performance objectives. 2 As

2 Six experiences against which each reference was to be evaluated, i.e., global materials

transit, customs clearance in a technical aid environment, procurement, personnel travel logistics,
language services, and the OWMS align with the PWS objectives of the TRLS II contract. See
AR 6353; AR 1478-1511 (describing each PWS in detail). The one PWS objective not

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the Solicitation states that the Agency would evaluate the references for experience in each of the
PWS objectives, there is no express requirement in the Solicitation for a reference to cover all
the PWS’s areas of work to be relevant as Culmen claims.

As the record reflects, the Agency evaluated each offeror’s refences for relevance to each
of the seven PWS performance objectives in accordance with the terms of the Solicitation. See
generally, AR Tab 75. Where a reference included the work included in a section of the TRLS II
PWS, it received credit depending on how closely that work matched the scope, magnitude, and
complexity. AR 6352-53. Where the work did not match well or not at all, the reference
received a low relevancy rating for that PWS task. Id. Consistent with the Solicitation, after this
individualized assessment of each reference, the PPET combined those references to determine a
relevancy rating under each PWS category and then an overall past performance confidence
score. AR 6293.

Pursuant to the Solicitation, the Agency looked at each past performance reference and
evaluated the reference against seven different elements of the PWS and then combined the
scores for each element to arrive at an overall confidence rating. AR 2658. In other words, the
Agency did what is said it would do. Accordingly, the Agency’s past performance evaluation
was consistent with the Solicitation. Culmen’s contentions amount to nothing more than mere
disagreement with the Agency’s evaluation, which is insufficient to disturb the Agency’s
evaluation.

C. The Agency Did Not Misevaluate Culmen’s Proposal

Culmen argues that the Agency applied unstated evaluation criteria when assigning
Culmen’s proposal a weakness for failing to address the Solicitation’s replenishment
requirements. According to Culmen, “[n]either the Solicitation nor the Sample Task specified
that supplies must be delivered under the Sample Task pursuant to a rigid replenishment plan.”
ECF No. 34 at 28-29. In the alternative, Culmen argues that the weakness was arbitrary because
Culmen “did address the requirements for a replenishment plan” and that it was treated unequally
because “TTI did not propose a replenishment plan at all.” Id. at 30.

Specifically, the Solicitation required that the offer include the requirements for a single
replenishment, a replenishment every two months, and a replenishment every three months of a
sample task. AR 1040-41. Here, the record reflects that when evaluating Culmen's proposal, the
Agency twice assigned a weakness for failing to address the Solicitation’s replenishment
requirements. First, when establishing the competitive range after initial proposal evaluations,
the Agency noted that Culmen had ten weaknesses under Factor 1. AR 4789. One of these
weaknesses was for “fail[ing] to address a replenishment/reorder plan for items requiring
replenishment on a routine basis.” AR 4804-05. Then, during the evaluation of the final
proposals, the Agency again determined that Culmen “did not address the requirements for a
replenishment/reorder plan for items requiring replenishment” and cited to Sample Task 5.1. AR
6843. Accordingly, the evaluation team properly concluded that Culmen’s proposal still “does

mentioned in the above complexity description for the past performance evaluation is the Ad-
Hoc Response standard, which is PWS 5.6. AR 1504; AR 6353.
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not identify a plan to meet the other replenishment requirements identified in the Sample Task,”
such as the one-time replenishment and the goods that need to be replenished every two months.
AR 6240. And although Culmen argues that the evaluation team should have assumed
replenishment would occur despite not being proposed, such assumption is unreasonable based
on the language of the Solicitation. The weakness given to Culmen was thus appropriate.

Likewise, the record does not support Culmen’s argument that it was treated differently
than TTI regarding the sample task’s replenishment requirements. TTI addressed the
replenishment needs as set forth in the sample task explaining that it would consolidate
replenishment items “into a single shipment” “to provide best value and economy of lift” so the
recipient would have the requisite supplies for the duration of the project as set out in the sample
task. AR 5765. Unlike Culmen who proposed to address the replenishment requirement by
, TTI proposed to completely eliminate the need for separate
replenishments by shipping the initial and replenishment quantities together.
Compare id. with AR 5339. Thus, because the difference in the Agency’s evaluation of
Culmen’s and TTI’s replenishment plans can be directly traced to a difference in the plans,
Culmen’s unequal treatment argument fails. See AccelGov, LLC v. United States, 164 Fed. Cl.
345, 362 (quoting Off. Design Grp. v. United States, 951 F.3d 1366, 1372 (Fed. Cir. 2020)) (“To
prevail on a claim of disparate evaluation, a protestor must show that the agency unreasonably
downgraded its proposal for deficiencies that were ‘substantively indistinguishable’ from or
‘nearly identical’ to those contained in other proposals. . . . If a protestor does not meet this
threshold showing, then the court should dismiss the claim, otherwise it ‘would give a court free
reign to second-guess the agency's discretionary determinations underlying its technical
ratings.’”).

And finally, Culmen argues that the Agency improperly adjusted its proposed travel costs
upwards as part of its cost-realism analysis. Culmen argues that the Agency’s evaluation of the
costs was based on a misinterpretation of its proposal. In its proposal, Culmen provided:

Ground transport is highly variable based on several factors. Distance
between the locations, time of day, time of year, type of transport (bus, taxi,
shuttle, train, etc.), and other local factors will affect the individual cost of
transport. For our estimate of ground transport, we

.

AR 5513. Turning to the Agency’s evaluation, the Agency determined:

Culmen’s total proposed price for ground transportation for conference
events, , is than the IGCE3; the variance is significant.
The variance is a result of the calculations used in the IGCE included
ground transportation costs based on an 8-hour day usage for multiple trips
throughout the day, whereas the proposed .

3 Independent Government Cost Estimate.

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AR 6650. This determination, according to Culmen, does not align with its proposal. Culmen
suggests that the interpretation is based on the misinterpretation of the following line in its
proposal: “For our estimate, . . . we used .” AR at 5513
(emphasis in original); see ECF No. 34 at 31. According to Culmen, this reference to “ ”
does not mean that Culmen factored ground transportation for only but “elaborates
that Culmen based its estimate for ground transportation on its ‘ ’ and included an
assumption of on top of that information.” Id.

However, the explanation Culmen now proffers for the reference to “ ” is not
reflected in its proposal. Indeed, in its proposal, Culmen failed to include sufficient details of its
travel plans “for effective evaluation” and substantiation of the validity of those proposed travel costs
especially given the significant variance between Culmen’s proposed travel costs and the
IGCE. Thus, the Agency’s adjusted upward travel costs to a level that reflected the most
probable cost during performance was rational.

D. The Agency Acted Reasonably in Addressing Potential Conflicts of Interests
Amongst SSEB Members

Culmen challenges the Agency’s investigation and resolution of Culmen’s allegations of
bias against an SSEB member. See ECF No. 34 at 32-36. According to Culmen, the “Agency
failed to perform a reasonable analysis to address and remediate any impact upon the
procurement.” Id. at 34. Thus, Culmen claims the Agency’s handling of the situation was
flawed, arbitrary, capricious, and an abuse of discretion.

“The standard for Claims Court review of a contracting officer’s decision with regard to a
conflict of interest is highly deferential. A contracting officer's conflict of interest determination
will be upheld unless it is ‘arbitrary, capricious, or otherwise contrary to law.’” Oracle Am., Inc.
v. United States, 975 F.3d 1279, 1296 (Fed. Cir. 2020) (quoting PAI Corp. v. United States, 614
F.3d 1347, 1352 (Fed. Cir. 2010); see also Oak Grove Techs., LLC v. United States, 116 F.4th
1364, 1380 (Fed. Cir. 2024). Furthermore, the Court must “assume that the government acts in
good faith while contracting and a protester needs ‘well-nigh irrefragable proof’ that the government
had an intent to injure it to overcome this presumption.” Galen Medical Associates, Inc. v. United
States, 56 Fed. Cl. 104, 108 (2003) (quoting Knotts v. United States, 121 F. Supp. 630 (Ct. Cl. 1954);
Am-Pro Protective Agency, Inc. v. United States, 281 F.3d 1234, 1240 (Fed. Cir. 2002).

In May of 2024, after the evaluation of the offerors’ initial proposals, “the attorney
supporting the TRLS II procurement provided Mr. Michael Skidan, [the Source Selection
Evaluation Board (SSEB) Chair,] a series of documents for consideration . . . [of whether Ms.
Elizabeth] DuFrane or any other member of the TRLS II SSEB might have actual or perceived
bias against any TRLS II offeror.” AR 557. Following investigation and review of the facts, the
Chair recommended to Dr. Robert S. Pope, the TRLS II Source Section Authority and SES
Director for Cooperative Threat Reduction at the Agency, that Ms. Elizabeth DuFrane be
removed from the technical evaluation team and that Mr. Scott Anderson continue to serve as a
non-voting member of the team. AR 558.

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Mr. Skidan explained and documented the reasoning behind his recommendation in a
memorandum. AR 557-58. That memorandum explained the concern that Ms. DuFrane might
appear biased against Culmen. Id. However, Mr. Skidan concluded that the evidence gathered
as to Ms. DuFrane did “not indicate actual bias against Culmen, and . . . there was no indication
of actual bias” during the initial TRLS II evaluation. Id. Nevertheless, because the evidence
“could be used to argue bias,” the conservative approach of removing her from the evaluation
team was recommended. Id.

Mr. Skidan also considered whether Mr. Anderson might appear biased. Id. Mr. Skidan
considered the fact that “Mr. Anderson regularly used Culmen’s proprietary information
management system (Mercury)” and had critiqued the system. Mr. Skidan, however, determined
that Mr. Anderson’s “critiques of Mercury have been professional, relevant, and have only been
raised to improve the system. During the TRLS II initial evaluations, there has been no
indication that Mr. Anderson is biased against Culmen, and there is no known documentary
evidence that could be used to argue bias.” Id. For these reasons, Mr. Skidan recommended that
Mr. Anderson remain as a non-voting member of the evaluation team. Id.

Because Ms. DuFrane was removed before submission and review of the final proposals,
even if there were evidence of actual bias on the part of Ms. DuFrane, Culmen was not
prejudiced. For example, Culmen had a chance to review, address, and resolve the weaknesses
in its initial proposal after these evaluators were removed, which it did. Cf. AR 557-58, 5260.
The record indicates that indeed Culmen did address and cure all but one of the weaknesses in its
technical proposal that were identified in the evaluation of its initial proposal. Cf. AR 4734-35,
6238-43. In addition, as indicated in his memorandum, Mr. Skidan committed to a new
evaluation of all submitted final proposals. AR 558.

The Court finds that there is no evidence that the procurement was adversely impacted
by a biased evaluator. The SSEB Chair’s handling of the concern about the appearance of bias
was rational, documented, and conservative. Culmen’s protest ground is nothing more than mere
disagreement with the Agency’s reasonable investigation and mitigation of Culmen's bias
allegations. See Koam Eng'g Sys., Inc., 164 Fed. Cl. at 168 (“Although protestor disagrees with
the breadth of the investigation, unless the contracting officer's determinations were arbitrary and
capricious, mere disagreement is not sufficient for the court to conclude the investigation was
insufficient.”). Therefore, the Court finds that it provides no grounds for disturbing the
Agency’s award decision to TTI.

E. Best Value

Finally, Culmen alleges that the Agency’s best value determination was arbitrary because
it was based on a flawed underlying technical, past performance, and cost evaluation. As this
Court has stated, a “derivative best-value challenge cannot stand on a rejected challenge to
another aspect of the agency's evaluation.” Newimar S.A. v. United States, 160 Fed. Cl. 97, 133
(2022), aff'd, No. 2022-1949, 2023 WL 8534614 (Fed. Cir. 2023). Accordingly, because the
Court finds that the record reflects that the Agency reasonably evaluated Culmen’s and TTI’s
proposals, Culmen’s challenge to the Agency’s best value determination is without merit. See

17
AccelGov, LLC v. United States, 163 Fed. Cl. 43, 56 n.8 (2022) (rejecting derivative best-value
tradeoff challenge where the protester had failed to succeed on its evaluation challenges); IT
Enter. Sols. JV, LLC v. United States, 132 Fed. Cl. 158, 174 (2017) (rejecting derivative
challenge to the agency's best value determination because the underlying evaluation was
reasonable).

IV. Conclusion

Culmen has not established that DTRA’s evaluation was conducted in an irrational,
arbitrary, or capricious manner, or that DTRA’s evaluation was prejudiced. Not having shown
success on the merits, this Court need not consider the other injunctive factors. See Dell Fed.
Sys., L.P. v. United States, 906 F.3d 982, 999 (Fed. Cir. 2018) (holding that “proving success on
the merits is a necessary element for a permanent injunction”). No relief is warranted.
Accordingly, Culmen’s Motion for Judgment on the Administrative Record is DENIED. The
Government’s and Intervenor’s Cross-Motions for Judgment on the Administrative Record are
GRANTED. The Clerk of Court is directed to enter judgment accordingly. No costs.

IT IS SO ORDERED.

s/Edward J. Damich
EDWARD J. DAMICH
Senior Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10846404. Public record. Not legal advice.