Advanced Management Strategies Group, Inc. v. United States

In the United States Court of Federal Claims

No. 25-695

(Filed: 20 November 2025) *

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

ADVANCED MANAGEMENT, *

STRATEGIES GROUP, INC., *

*

Plaintiff, *

*

v. *

*

THE UNITED STATES, *

*

Defendant, *

*

and *

*

HARKCON, INC., *

*

Defendant-Intervenor. *

*

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

Craig A. Holman, Arnold & Porter Kaye Scholer, LLP, with whom was Thomas A. Pettit,

of Washington, D.C. for plaintiff.

Steven M. Mager, Acting Assistant Director, Commercial Litigation Branch, Civil

Division, with whom were Patricia M. McCarthy, Director, Yaakov M. Roth, Acting Assistant

Attorney General, Joshua W. Moore, Trial Attorney, U.S. Department of Justice, and William

Mayers, Attorney, Office of the General Counsel, National Nuclear Security Administration,

U.S. Department of Energy.

Thomas K. David, Esq., Reston Law Group, LLP, with whom were Kenneth D. Brody

and Lewis P. Rodes of Reston, VA, for defendant-intervenor Harkcon Incorporated.

OPINION AND ORDER

HOLTE, Judge.

*

This Opinion was originally filed under seal on 2 November 2025 pursuant to the protective order in this case.

The Court provided the parties an opportunity to review this Opinion for any proprietary, confidential, or other

protected information and submit proposed redactions by 10 November 2025 at 5:00 p.m. The Court granted an

extension of time to 17 November 2025 at 5:00 p.m. See Order Granting Consent Motion for Extension of Time,

ECF No. 46. The Court accepts the parties’ proposed redactions and reissues the Opinion with minor formatting

edits and the redacted language removed and/or replaced as follows: “[XXXXX].”

The U.S. Department of Energy, National Nuclear Security Administration issued a

Request for Quotation on a contract to provide support services for the safe transportation of

spent nuclear material. Plaintiff Advanced Management Strategies Group, Inc. brings this action

against defendant the National Nuclear Security Administration seeking: (1) a declaration the

National Nuclear Security Administration’s evaluation of defendant-interventor Harkcon, Inc.’s

quotation, best value determination, and failure to exclude from the competition was arbitrary,

capricious, or contrary to law; (2) a permanent injunction precluding the NNSA from awarding

the contract to Harkcon, directing them instead to award it to plaintiff; and (3) leave to conduct

discovery and supplement the administrative record. For the following reasons, the Court denies

plaintiff’s Motion for Leave to Conduct Limited Discovery and to Supplement the

Administrative Record, grants the government’s and intervenor’s Cross-Motions for Judgment

on the Administrative Record, and denies plaintiff’s Motion for Judgment on the Administrative

Record.

I. Factual Background

A. Request for Quotation

On 4 September 2024, the U.S. Department of Energy, National Nuclear Security

Administration (“DOE,” “NNSA,” or “the Agency”) issued a Request for Quotation (“RFQ”) as

a Service-Disabled Veteran-Owned Small Business (“SDVOSB”) set-aside under the Technical,

Engineering, and Programmatic Support Services III (“TEPS III”) Blanket Purchase Agreement

(“BPA”), seeking a contractor “to provide Administrative Support Services for [the Office of

Secure Transportation (‘OST’)].” Admin. R. (“AR”) Tab 10a at 238 (Project Work Statement

(“PWS”)). The solicitation was for “the administration related to the safe transportation of

nuclear material.” 17 September 2025 Oral Argument Transcript (“Tr.”) at 7:12–14, ECF No.

42. The Agency amended the RFQ twice. See generally AR Tab 10 (RFQ Amendment 1); AR

Tab 11 (RFQ Amendment 2). Amendment 1 contains the final version of the PWS and the final

instructions and evaluation criteria. See AR Tab 10a (PWS); AR Tab 10c (Solicitation

Instructions). Amendment 2, which focuses solely on a narrow foreign ownership, control, and

influence issue, is not relevant to this case. See generally AR Tab 11 (RFQ Amendment 2).

The PWS sought a contractor “to provide Administrative Support Services for OST.” AR

Tab 10a at 328 (PWS). The services included “management and administrative support,”

“project and budget analysis, document controls, federal payroll data entry, travel vouchers

processing, technical editing/writing, purchase requests processing, and invoice tracking.” Id.

As part of the services, the contractor must make “recommendations for managing, monitoring,

and tracking the completion of critical projects, programs and data calls, strategic and operational

programs, budget development and evaluation and implementation of Government performance

metrics and measures.” Id. RFQ Amendment 1 incorporates Q&A exchanges with the offerors.

See generally AR Tab 10d (Solicitation Q&A). One offeror asked: “Given that there is an

incumbent, would the government consider inserting a transition requirement to the PWS?” AR

Tab 10d at 388 (Solicitation Q&A). The Agency responded: “No, due to the administrative

nature of this requirement, the Government views the transition risk-level as low; therefore, [the

contract] will not have a transition period for this requirement.” Id.

-2-

The RFQ requires the Agency to award the order to the TEPS III BPA “Schedule holder

whose quote represents the best value to the Government on the basis of the evaluation factors,”

namely (1) Technical Narrative/Approach; (2) Staffing Approach; (3) Key Personnel Resume;

(4) Past Performance; and (5) Price. AR Tab 10c at 377–78 (Solicitation Instructions). The

factors are listed in descending order of importance: the first four (“non-price factors”) are more

important than price, and if any of the first three factors are found less than “Satisfactory,” this

“will result in elimination of the quote from further consideration regardless of the ratings of the

other factors.” AR Tab 10c at 383 (Solicitation Instructions).

For Factor 1, “Technical Narrative/Approach,” the RFQ states “[t]he Vendor shall

describe its proposed technical approach and ability to successfully perform the PWS Section

3.0—Specific Tasks/Technical Requirements” and “shall describe its process/steps for

completing the technical requirements to include citing relevant experience where similar

activities were performed.” AR Tab 10c at 378 (Solicitation Instructions). The Agency must

“evaluate the Technical Narrative/Approach to determine the extent to which it demonstrates the

Vendor’s understanding of, and ability to successfully perform the Specific Tasks and Technical

Requirements outlined in Section 3 of the PWS (Attachment 1).” Id.

For Factor 2, “Staffing Approach,” the RFQ states “[t]he Vendor shall describe its

proposed staffing approach and detail its approach for on-boarding of the minimum number of

cleared staff on Day 1.” Id. Secondly, “the Vendor shall propose a Task/Labor Mix with

rationale on why the Vendor believes the number of proposed personnel is sufficient to

accomplish the PWS requirements outlined in Section 3 of the PWS (Attachment 1), including

discussions on why it believes that variations in the Labor Categories specified in PWS

Enclosure 4, Labor Category Descriptions (Attachment 1) will result in successful

accomplishment of the PWS requirements.” Id.

For Factor 3, “Key Personnel Resume,” the RFQ states:

Key Personnel Resume (3-page limit) – The Vendor shall provide a resume for

the proposed key personnel, Program Manager, in accordance with Attachment 1,

PWS Section 1.5.12, Key Personnel and Attachment 1 PWS Enclosure 4, Labor

Category Descriptions, Section A, Key Personnel.

Vendor must provide the following information on the Key Personnel Resume:

• Name of Key Person.

• Chronological Work History: Start with current position and work backwards.

A. Name and Address of Firm:

B. Position(s) Held:

C. Dates of Employment:

D. General Summary of Responsibilities: Provide a concise description of

major duties and responsibilities for each job relevant to the proposed position.

Address specific experience as it relates to managing a programs, projects,

contracts, funds, staffing, customer interface, or resources of similar size, scope,

and complexity.

-3-

overall technical acceptability determination and a “Pass” rating for Factor 4, Past

Performance, will move forward for price quote evaluation. One Evaluation Team

Member will serve as the lead and prepare a Technical Evaluation Report

containing the summary findings. A rating of less than Satisfactory in one

evaluation Factor (Factors 1, 2, or 3) will result in elimination of the quote from

further consideration regardless of the ratings of the other factors. An unrealistic

response in terms of technical or price will not be considered for award. The

Government reserves the right to reject any quote that includes any exceptions,

deviations, or conditional assumptions that impacts or affects the Government’s

requirements.

...

After quotes have been evaluated, the Order will be placed with the TEPS III BPA

holder that represents the best value to the Government, based on the Government’s

evaluation of five (5) Factors (in descending order of importance): Factor 1:

Technical Narrative/Approach; Factor 2: Staffing Approach; Factor 3: Key

Personnel Resume; Factor 4: Past Performance; and Factor 5: Price.

The non-price factors, Factor 1, 2, 3, and 4, when combined, are significantly more

important than price, as the Government is more concerned with obtaining a

superior technical quotation than making award at the lowest price. However, the

Government will not make an award at a price premium it considers

disproportionate to the benefits associated with the evaluated non-price superiority

of one Vendor over another. To the extent that the Vendors’ non-price factors are

evaluated as close or similar in merit, price is more likely to be the determining

factor.

AR Tab 10c at 383–84 (Solicitation Instructions).

B. Award and GAO Protest

Four offerors submitted quotations in response to the RFQ, including AMSG and

Harkcon. See AR Tab 30 at 1154–55 (Basis of Award). The Agency assigned the four offerors

the following ratings:

Vendor Factor 1: Factor 2: Factor 3: Key Factor 4: Past Factor 5: Price

Technical Staffing Personnel Performance

Narrative/ Approach Resume

Approach

Advanced Exceptional Exceptional Exceptional Pass $11,746,269.00

Management

Strategies Group,

Inc.

ANALYGENCE, Good Marginal Good Pass $9,587,458.00

Inc.

Harkcon, Inc. Exceptional Exceptional Exceptional Pass $10,498,864.00

-5-

Salmon Group, Unsatisfactory Unsatisfactory Good Pass $6,944,281.00

Inc.

Id. at 1161–62.

Based on those ratings, the Agency concluded “only Harkcon and [AMSG] were deemed

‘Technically Acceptable’ and advanced for final consideration.” Id. at 1168–69; Tr. at 8:12–14

(“THE COURT: “[T]here were four bids, but the agency only treated AMSG and Harkcon as

technically acceptable?” [THE GOVERNMENT]: That’s correct.”). The Agency concluded

AMSG and Harkcon were technically equivalent, stating:

Harkcon rated equivalent to AMSG for all Factors. Ultimately, the decision was

made based on a best-value determination, with price serving as the decisive factor

due to identical ratings for the two Vendors on all non-price factors.

Harkcon’s quotation offered the best value to the government, providing the

required services at a $1,247,405.00, or 11.9%, lower price than AMSG while

ensuring the same very high probability of successful performance. While

Harkcon’s and AMSG’s quotations each had unique attributes under the non-price

factors, none of the unique attributes or strengths of AMSG’s proposal

(individually, or combined) would justify an additional 11.9% price premium.

AR Tab 30 at 1169 (Basis of Award).

On 21 January 2025, AMSG timely filed a protest at GAO challenging the Agency’s

decision to award the task order to Harkcon. See generally AR Tab 39 (Post-Award Protest of

AMSG). This protest was denied. See generally AR Tab 62 (GAO Public Decision).

II. Procedural History

On 23 April 2025, AMSG filed its sealed post-award bid protest challenging the

Agency’s award of the contract to Harkcon. See Compl., ECF No. 1. On 24 April 2025,

defendant-intervenor Harkcon, Inc. (“Harkcon”) filed an unopposed motion to intervene as a

defendant, see Def.-Int.’s Unopp. Mot. to Intervene, ECF No. 6, which the Court granted the

following day, see 25 April 2025 Order, ECF No. 8. On 30 April 2025, the Court held an initial

status conference with the parties, and on 1 May 2025, the Court set a briefing schedule for

cross-motions for judgment on the administrative record (“MJAR”). See 1 May 2025 Scheduling

Order, ECF No. 15. Also on 1 May 2025, in a Joint Status Report (“JSR”), the government

“agreed to stay performance of defendant-intervenor Harkcon, Inc.’s . . . contract at issue

through November 16, 2025” to “obviate the need to litigate a motion for preliminary injunctive

relief” and “provide the Court with sufficient time to issue a decision after full briefing.” 1 May

2025 JSR at 1–2, ECF No. 14. Plaintiff also indicated its intent to move for leave to conduct

limited discovery and to supplement the administrative record with the results of

discovery—briefing related to such a motion was incorporated into the briefing schedule. Id. at

2. During its protest at the GAO, plaintiff submitted the declaration of one of its employees to

support its claims, which the government included in the AR. See AR Tab 39a at 1720–21

(Declaration of [XXXXXXXX]). Harkcon indicated at the status conference it would submit its

-6-

own declaration to rebut plaintiff’s allegations, but Harkcon never submitted a declaration. See

generally 30 April 2025 Status Conference. On 23 May 2025, plaintiff filed its MJAR and its

Motion to Conduct Limited Discovery and to Supplement the AR. See Pl.’s Mot. for Disc., ECF

No. 22; Pl.’s MJAR, ECF No. 23.

The government and Harkcon filed their respective cross-MJARs and responses to

plaintiff’s motions on 6 June 2025. See Gov’t’s Resp. to Mots. for Supp. and Discovery, ECF

No. 27; Gov’t’s Cross-MJAR, ECF No. 28; Def.-Int.’s Cross-MJAR and Resps. to MJAR, Mot.

for Disc., and Mot. to Supp., ECF No. 26. On 16 June 2025, plaintiff filed its Response in

opposition to the Cross-MJARs and its Replies supporting its own motions. See Pl.’s Reply to

Resps. to Mots. for Discovery and to Supp., ECF No. 30; Pl.’s Resp. to Cross-MJARs, ECF No.

31. On 23 June 2025 and 26 June 2025, Harkcon and the government filed their respective

replies in support of their cross-MJARs. See Def.-Int.’s Reply in support of Def.-Int.’s

Cross-MJAR, ECF No. 33; Gov’t’s Reply in support of Gov’t’s Cross-MJAR, ECF No. 34. The

Court held oral argument in Washington, DC on 17 September 2025. See 20 August 2025 Order

Setting Oral Argument, ECF No. 39; see also Tr.

III. Parties’ Arguments Regarding Plaintiff’s Motion for Leave to Conduct Limited

Discovery and to Supplement the Administrative Record

Plaintiff requests “limited discovery” to depose Mr. [XXX] and Ms. [XXX]—Harkcon’s

Chief Human Capital Officer—concerning [XXX]’s roles at Harkcon and Harkcon’s efforts to

recruit another program manager. Pl.’s Mot. for Disc. at 8–9. In addition, plaintiff requests

“targeted document requests to Harkcon seeking [documents] relating to Harkcon’s loss of its

intended Program Manager, Harkcon’s decision to propose Mr. [XXX] as the Program Manager,

Mr. [XXX]’s intention to fill the position on-site during Contract performance, [and] Harkcon’s

plans [and efforts for] filling the Program Manager position.” Id. at 9. Plaintiff argues it is

proper for “the Court [to] supplement the record with (i) materials not before the agency but

relevant to the decision at issue (even documents that post-date challenged decisions), or (ii) with

discovery where it is necessary for the Court to gain a complete understanding of the issues

before it.” Id. at 6 (citations omitted). Plaintiff claims discovery is permitted where the “record

[is] insufficient . . . when it is missing relevant information that by its very nature would not be

found in an agency record—such as evidence of bad faith, information relied upon but omitted

from the paper record, or the content of conversations.” Id. (citations omitted). Finally, plaintiff

argues this is an “uncommon case where substantial evidence exists in the administrative record

for the Court to find that Harkcon made a material misrepresentation,” but “even if the Court

determines that this evidence alone does not require a material misrepresentation

finding . . . discovery remains essential.” Id. at 10.

The government responds plaintiff “is not claiming that the record before the agency

lacks sufficient evidence to determine whether a misrepresentation has occurred” and “concedes

that effective judicial review is possible on the record in front of the Court.” Gov’t’s Resp. to

Pl.’s Mot. for Disc. at 9 (emphasis omitted) (citing Pl.’s Mot. for Disc. at 10; Pl.’s MJAR at 17).

The government argues the Court “should refuse to supplement the record, to permit further

discovery, or to otherwise add to the record evidence, not previously possessed by the agency

merely because the proponent of such measures believes that it will improve the court’s

-7-

understanding of a case.” Id. at 10–11. The government further argues [XXXXXXX]’s

declaration “that Mr. [XXX], indicated to Ms. [XXX] in a phone call that he does not intend to

serve as the Program Manager” should “not change the Court’s analysis,” because it “was not

part of the record in front of the agency at the time,” and “this Court should limit judicial review

to the record actually before the agency.” Id. at 14–15 (cleaned up). In the alternative, the

government argues “even if the Court were to consider Ms. [XXX]’s declaration, it does not

support AMSG’s motion for discovery and supplementation,” as “the declaration is directly

contradicted by record evidence that was before the agency at time it made its decision.” Id. at

15 (emphasis omitted). Finally, the government contends plaintiff’s “requests to depose both

Mr. [XXX] (the proposed PM) and Ms. [XXX] (Harkcon’s chief human capital officer)” are

“incredibly broad in scope . . . [and] unlikely to lead to discoverable information that would shed

definitive light on [plaintiff]’s misrepresentation claim . . . [instead] serv[ing] to elucidate the

mindset of Mr. [XXX] or Ms. [XXX], which goes to Harkcon’s intent, rather than the fact that

Harkcon made a misrepresentation [and] Harkcon’s intent is not relevant here.” Id. at 17.

IV. Parties’ MJAR Arguments

The Court next reviews the arguments raised in the parties’ Cross-MJARs.

A. Plaintiff’s Argument Harkcon’s Proposal Included a Material

Misrepresentation

Plaintiff argues the Agency’s evaluation of Harkcon was arbitrary and capricious because

“Harkcon’s quotation contains material misrepresentations and contravenes the RFQ key

personnel requirements.” See Pl.’s MJAR at 14. Plaintiff argues “[a]n offer that fails to comply

with a material solicitation requirement is ineligible for award.” Id. (citing E.W. Bliss Co. v.

United States, 77 F.3d 445, 448 (Fed. Cir. 1996)). Key personnel requirements, plaintiff

continues, are material, when “noncompliance with key personnel requirements renders a

proposal ineligible for award.” Id. at 15 (citing Plan. Rsch. Corp. v. United States, 971 F.2d 736,

741 (Fed. Cir. 1992)). Plaintiff argues “[n]oncompliance with Program Manager requirements

requires the Agency to assign an unsatisfactory rating, meaning the ‘[q]uotation is

unawardable.’” Id. (quoting AR Tab 10c at 380 (Solicitation Instructions)). Plaintiff asserts

Harkcon failed to meet the key personnel requirements because “Harkcon proposed [XXXXXX]

as its Program manager and as a full-time, on-site (New Mexico) resource” without ever

intending to place [XXX] as the program manager. Id. at 14. Plaintiff argues this is a material

misrepresentation which requires the Court to disqualify Harkcon. Id.

The government responds “[a]t most, [plaintiff] has shown that Harkcon was

contemplating a substitution of its PM after contract award, which is specifically allowed under

the solicitation terms with CO approval,” and “whether [Harkcon] does in fact replace Mr.

[XXX] as the PM is a matter of contract administration, which is not subject to this Court’s bid

protest jurisdiction.” Gov’t’s Cross-MJAR at 22 (citations omitted).

Plaintiff then argues, “[e]ven assuming Harkcon did not materially misrepresent Mr.

[XXX]’s availability to serve as the full-time program Manager, Harkcon’s quotation remains

ineligible for award because Mr. [XXX] lacks a DOE L security clearance.” Pl.’s MJAR at 22.

-8-

According to plaintiff, the PWS “requires the Program Manager to have a DOE L security

clearance ‘on day one of the contract,’” and, while Mr. [XXX] did have a Top Secret (“TS”) and

former DOE Q clearance, plaintiff alleges he did not have the DOE L clearance at the time of the

bid. Id. (quoting AR Tab 10a at 359, 361 (PWS)).

The government responds “[t]he agency reasonably found that Mr. [XXX]’s active TS

clearance meets the requirements of RFQ Attachment 4 Factor 3: Key Personnel Resume

Instruction.” Gov’t’s Cross-MJAR at 23. The government asserts “the RFQ did not require the

PM to have a specific DOE clearance prior to the task order award,” and “[t]he PWS states that

the contractor employees must be able to obtain at a ‘L’ clearance within a reasonable time.”

Gov’t’s Cross-MJAR at 22 (quoting AR Tab 10a at 330 (PWS)). The government argues “[t]he

requirement is that the PM must have an L clearance on the first day of the task order

performance,” not at submission of a quotation, and “the solicitation instructed vendors to

provide a resume for the vendor’s proposed PM and required ‘Level of Security Clearance (if

any).’” Id. at 22 (citing AR Tab 10a at 359 (PWS); AR Tab 10c at 379 (Solicitation

Instructions)) (emphasis omitted). Harkcon adds “[t]he DoD and the DOE have a well-defined

reciprocity program for security clearances that allows individuals who hold DoD clearances to

promptly obtain commensurate DOE clearances,” and “when the current stay of performance

against Harkcon is hopefully lifted at the conclusion of this protest, Mr. [XXX]’s DoD Top

Secret clearance will be quickly processed under the Agency’s reciprocity program and a DOE L

level clearance will be issued prior to ‘the first day of task order performance’ as required by the

RFQ.” Def.-Int.’s Cross-MJAR at 4 (citations omitted).

B. Plaintiff’s Argument Harkcon Deviated from the Solicitation Requirement to

Provide an Alternate When the Program Manager is Absent

Plaintiff argues Harkcon “took exception” to and deviated from the PWS requirement

which says: “[t]he name of [the Program Manager] and an alternate who shall act for the

Contractor when the manager is absent shall be designated in writing to the CO [Contracting

Officer].” Pl.’s MJAR at 23 (quoting AR Tab 10a at 331 (PWS)) (alterations in original and

emphasis omitted). Plaintiff alleges Harkcon’s proposal providing their program manager as

“the singular touch point for all facets of work performed on the contract” means Harkcon

envisioned a program manager with no alternate and was intentionally deviating from the terms

of the PWS. Id. at 23 (quoting AR Tab 13b at 613 (Harkcon Technical and Management

Information)). Plaintiff argues “Harkcon’s failure to identify an alternate . . . rendered Harkcon’s

proposal ineligible for award,” and “[i]f the Agency properly evaluated the Harkcon quotation,

the Agency would have excluded” it. See id. at 24–25.

The government responds plaintiff “reads into the solicitation terms that are not there.”

Gov’t’s Cross-MJAR at 23. The government asserts “[t]he Solicitation does not require an

alternate Program Manager be identified in the quotation[:] . . . [t]he requirement to identify an

alternate is found in the Performance Work Statement,” which is “a task order administration

requirement,” whereas “RFQ Factor 3 . . . does not require alternate Key Personnel be provided

for the purpose of evaluation.” Id. at 23–24. The government argues, because the “requirement

to identify an alternate is . . . a matter of task order administration,” this issue is “not subject to

this Court’s jurisdiction.” Id. at 24.

-9-

C. Plaintiff’s Argument the Agency’s Evaluation Under Factors One and Two

Were Arbitrary, Capricious, an Abuse of Discretion, or Otherwise Contrary

to Law

Plaintiff argues Harkcon should have failed under Factor 1, Technical

Approach/Narrative and Factor 2, Staffing Approach, as Harkcon “took exception to the RFQ’s

express prohibition on a transition period.” Pl.’s MJAR at 25. Plaintiff alleges “[t]he RFQ

Amendment 1 incorporates the Q&A with offerors into the RFQ,” including in relevant part:

“[Q:] Given that there is an incumbent, would the government consider inserting a transition

requirement to the PWS? [A:] No, due to the administrative nature of this requirement, the

Government views the transition risk-level as low; therefore, [the task order] will not have a

transition period for this requirement. Id. at 26 (quoting AR Tab 10d at 388 (Solicitation Q&A))

(alterations in original and emphasis omitted). Despite this, plaintiff alleges, while Harkcon

acknowledged the prohibition by stating, “[w]e recognize and acknowledge that there is no

transition period for this contract,” Harkcon rejected the prohibition by stating “however, based

on transitioning similar contracts in the past, we know there will be a period of ramp

up/transition of the current staff.” Id. (quoting AR Tab 13b at 628–29 (Harkcon Technical and

Management Information)) (emphasis omitted). Plaintiff claims “Harkcon stated for ‘Phase 4:

Transition Complete’ that ‘[o]nce all previous phases are successfully implemented, contract

maintenance begins,’” which plaintiff argues shows “Harkcon will not begin performance

immediately upon the contract start date as required.” Id. at 27 (quoting AR Tab 13b at 629

(Harkcon Technical and Management Information) (emphasis omitted and alterations in

original).

The government responds “[t]he agency did not advise offerors that there would be no

transition activities,” but instead “simply responded that there would be no formal transition

period due to the administrative nature of the requirement.” Gov’t’s Cross-MJAR at 25

(emphasis omitted). The government argues transition activities, defined as “either a pre-period

of performance time between contract execution and the first day of performance, or . . . a period

where both contracts will have overlap to provide a transition,” is necessary as “a . . . solicitation

[which] forbade any transition activities would make the solicitation patently defective because

only the incumbent would be able to perform on day one.” Id. at 24–25. The government

affirms Harkcon proposed “transition activities, . . . acknowledg[ing] there is no task order

transition period,” but merely “presented a detailed plan for contract performance on the first day

of the contract.” Id. at 25 (emphasis omitted). The government argues the “agency reasonabl[y]

understood Harkcon to be proposing to engage in transition activities while at the same time

performing on the contract” because “Harkcon’s ‘Contract Start Process’ does not rely on an

assumption of a formal contract transition period.” Id. at 26.

D. Plaintiff’s Argument the Agency’s Best Value Tradeoff was Arbitrary,

Capricious, an Abuse of Discretion, or Otherwise Contrary to Law

Plaintiff further argues the “Agency’s best value decision was arbitrary, capricious, an

abuse of discretion, or otherwise contrary to law.” Pl.’s MJAR at 30. First, plaintiff argues “the

foregoing errors necessarily render the Agency's conclusion arbitrary [and]

- 10 -

capricious . . . because an award decision cannot rest on a materially flawed evaluation.” Id.

(citations omitted). Second, plaintiff argues the Source Selection Authority (“SSA”) failed to

“look behind adjectival ratings and compare the substantive differences between proposals,”

instead “reduc[ing] the competition to price.” Id. at 31. Plaintiff points out “[t]he SSA observed

that ‘[u]ltimately, the decision was made based on a best-value determination with price serving

as the decisive factor due to identical ratings for the two Vendors on all non-price factors,’”

despite plaintiff having “received twenty-one strengths . . . compared to Harkcon’s fifteen

strengths.” Id. (quoting AR Tab 30 at 1169 (Basis of Award)) (some alterations in original)

(other citations omitted). Third, plaintiff argues “the Agency overemphasized Harkcon’s

experience and minimized [plaintiff]’s experience, . . . highlight[ing] Harkcon’s experience

without any discussion about the substance of that experience or its relevance to this contract,”

while ignoring plaintiff’s “exceptional incumbent experience despite the evaluators assigning

[plaintiff] multiple strengths for its experience.” Id. at 32 (citing Tab 27 at AR 1131) (other

citations omitted).

The government responds “[w]hen a contract that is the subject of a bid protest was

awarded based upon best value, the agency has even greater discretion than if the contract were

awarded upon the basis of cost alone.” Gov’t’s Cross-MJAR at 29 (citations omitted). The

government contends the Source Selection Official (“SSO”), “[a]fter reviewing the strengths of

each quotation,” determined “AMSG and Harkcon presented ‘the same very high probability of

successful performance,’ . . . [and so] turned to price as the decisive factor and found that

Harkcon’s quotation, which was $1,245,405 lower in price, offered the best value.” Id. at 30

(citing AR Tab 30 at 1169 (Basis of Award)) (other citations omitted). The government

contends “the SSO, in making her award decision, ‘examined the relevant data and articulated a

“rational connection between the facts found and the choice made.”’” Id. at 30 (citations

omitted). The government argues the SSO’s decision was rational because “the SSO concurred

in and independently adopted the [Technical Evaluation Panel’s (“TEP”)] assessment of the

strengths within each quotation, . . . [and] provided a thorough review of the advantages that she

identified in each quotation.” Id. (citations omitted).

E. Plaintiff’s Argument Harkcon is Ineligible to Compete for Failure to Hold a

TEPS III BPA

Plaintiff argues “Harkcon is not eligible to compete in this procurement . . . because[]

Harkcon does not hold a TEPS III BPA.” Pl.’s MJAR at 33. Plaintiff claims “[t]he RFQ states

that ‘[t]he Government intends to award a Task Order to the prospective Enterprise-Wide [TEPS

III BPA] Schedule holder whose quote represents the best value to the Government.” Id. at

33–34 (emphasis omitted) (some alterations in original). As “Harkcon is a member of the MELE

Associates CTA, and the MELE Associates BPA identifies MELE Associates—not Harkcon—as

the BPA Holder, . . . [t]he RFQ . . . prohibited Harkcon from competing in this procurement.”

Id. at 34 (citing AR Tab 51b at 2827 (MELE Associates’ BPA)). Once again, plaintiff claims if

the “Agency had excluded Harkcon as required, [plaintiff] would be the only technically

acceptable offeror, meaning AMSG would be in line for award.” Id. Additionally, plaintiff

argues “the TEPS III BPA ordering procedures preclude Harkcon from submitting a

quotation . . . because Harkcon did not sign the BPA award document.” Id. at 33, 35. Plaintiff

points to the TEPS III BPA which “defines ‘Order Leaders’ as ‘the CTA Team Leader or CTA

- 11 -

Team Member that is responsible for performance of work under individual orders,’” and “[t]he

BPA states that ‘[a]ll CTA Team Members shall sign the BPA award document as a concurrence

in order to have privity of contract and allow the placement of Orders directly with the Order

Leader.’” Id. at 35 (citing AR Tab 51b at 2826 (MELE Associates’ BPA)) (emphasis omitted).

Plaintiff again asserts “Harkcon is not the CTA Leader,” but rather “a CTA Team Member,” and

as such “can serve as the Order Leader only if it has ‘sign[ed] the BPA award document as a

concurrence in order to have privity of contract and allow the placement of Orders directly with

the Order Leader.’” Id. (alterations in original). Plaintiff alleges “[a] MELE Associates

representative is the only person who signed the BPA Standard Form 1449,” id. at 36 (citing AR

Tab 51b at 2822 (MELE Associates’ BPA), whereas “[t]he only document Harkcon signed is the

‘BPA Agreement Form,’” id. (citing AR Tab 54a at 2888 (Harkcon BPA Agreement Form)).

The government responds “Harkcon submitted its quotation as a member of a Contractor

Teaming Arrangement (CTA) relying on MELE Associates’ TEPS III BPA as the basis

authorizing Harkcon to submit a quotation,” and “[t]he TEPS III BPA ordering guide provides

that BPA’s were established solely with CTA leaders, but that both the CTA leaders and CTA

members have privity of contract with the Government as a result of the CTA members’ FSS

contracts.” Gov’t’s Cross-MJAR at 32–33 (citing AR Tab 51a at 2808 (NNSA TEPS III

Ordering Guide)) (other citations omitted). The government continues “the ordering guide states

that the ‘Government will have privity of contract with each business within the teams . . . For

Task Order awards, the Team Leaders will select an Order Lead. Orders will be issued directly

against the Order Lead’s [FSS] contract.’ . . . Accordingly, BPA’s would not be established with

CTA members. . . . There is no dispute that Harkcon is identified as a CTA member in MELE’s

TEPS III BPA nor that Harkcon holds an FSS contract.” Id. at 33 (citations omitted) (alterations

in original). In response to plaintiff’s “contention that the RFP was ‘limited’ to BPA Holders,”

the government asserts “the BPA specifically allows for CTA team members to enter into an

“order with the Government” as the ‘Order Lead.’” Id. (citing AR Tab 51b at 2826 (MELE

Associates’ BPA)). As to plaintiff’s second argument, the government responds “Harkcon

signed the ‘BPA award document’ per the terms of the BPA.” Id. (citations omitted). The

government asserts the “TEPS III BPA specifically explains that ‘CTA Team Members will

NOT be awarded their own BPAs.’” Id. (quoting AR Tab 51b at 2826 (MELE Associates’

BPA)). The government argues this means “Harkcon could not, therefore, sign a separate TEPS

III BPA directly with the Government,” and so rather “signed a BPA Agreement Form which

acts as the ‘BPA award document.’” Id. (quoting AR Tab 54a at 2888 (Harkcon BPA

Agreement Form). The agreement form, the government stresses, “(1) correctly lists the MELE

BPA number, (2) states that the contractor will agree to ‘the following terms of a BPA

EXCLUSIVELY WITH’ NNSA, (3) explains that the ‘following contract services/products can

be ordered under this BPA. All orders placed against this BPA are subject to the terms and

conditions of the contract . . .’, and (4) describes the rights and obligations under ‘this BPA.’”

Id. (quoting AR Tab 54a at 2888 (Harkcon BPA Agreement Form)). The government adds

Harkcon’s not signing the BPA does not entail it “lacks privity with the Government,” as “[a]

BPA is not a contract, but rather BPAs are ‘frameworks for future contracts.’” Id. (citations

omitted). The government also argues plaintiff “will have difficulty prosecuting this claim given

that it signed the exact same document on the same day as Harkcon,” and so “[i]f Harkcon’s

document is deficient, then so is” plaintiff’s. Id. at 34 n.12 (citation omitted) (emphasis omitted).

- 12 -

F. Plaintiff’s Argument it is Entitled to a Permanent Injunction

Plaintiff argues it is entitled to injunctive relief. Pl.’s MJAR at 38. First, plaintiff argues

it “will suffer irreparable harm absent a permanent injunction,” namely, it “will lose the profits it

would have realized under this contract.” Id. (citations omitted). Second, plaintiff contends “the

balance of harms favors injunctive relief” because, “[i]n contrast to the irreparable harm

[plaintiff] will suffer absent injunctive relief, NNSA will suffer no meaningful harm.” Id. at 39.

Plaintiff asserts it “will lose this significant work and its incumbent contract workforce.” Id.

Third, plaintiff argues “the public interest (and benefit) also weighs on the side of injunctive

relief,” as “necessary to ‘preserve[] the integrity of the procurement system, promote[] healthy

competition, and bolster[] public confidence in the federal procurement system.’” Id. (citations

omitted).

The government responds “[c]ourts . . . should enjoin performance ‘only in extremely

limited circumstances,’” and “a movant is confronted by a more substantial burden of proof

when it seeks injunctive relief which would interfere with and infringe upon governmental

operations if granted.” Gov’t’s Cross-MJAR at 35 (citations omitted) The government contends

(1) plaintiff “has not succeeded on the merits” as “NNSA followed all pertinent requirements and

did not abuse its discretion by selecting Harkcon;” (2) plaintiff did not suffer irreparable harm as

it “has not been deprived of the opportunity to fairly compete, because the agency acted

properly;” (3) “[t]he balance of hardships in this case favors the Government because ordering

re-procurement would unnecessarily result in the expenditure of Government funds and

resources and would unnecessarily intrude upon the contracting officer’s discretion;” and (4)

injunctive relief is not necessary “to preserve the integrity of the procurement system,” as

“NNSA in this procurement sought the best value and has acted within its discretion, . . . [t]he

integrity of the process is always at issue in a procurement, [and] the public interest lies with

avoiding disruption in a procurement that was conducted properly.” Id. at 36 (citations omitted).

V. Applicable Law

A. Motion to Conduct Discovery and Supplement the Administrative Record

“It is well settled that the ‘primary focus’ of the court’s review of agency decision

making ‘should be the materials that were before the agency when it made its final decision.’”

Joint Venture of Comint Sys. Corp. v. United States, 100 Fed. Cl. 159, 166 (2011) (quoting Cubic

Applications, Inc. v. United States, 37 Fed. Cl. 345, 349–50 (1997)). “Granting agencies the

authority to retroactively create an administrative record once the adversarial process has

commenced, however, ‘may preclude the “substantial inquiry” and “thorough, probing, in-depth

review” the court must perform’ in bid protests.” Id. (quoting Mike Hooks, Inc. v. United States,

39 Fed. Cl. 147, 156 (1997) (citations omitted)). The Federal Circuit established the standard for

supplementation of the administrative record in Axiom Resource Management, Inc. v. United

States, 564 F.3d 1374, 1380 (Fed. Cir. 2009). In Axiom, the Federal Circuit explained, “[t]he

purpose of limiting review to the record actually before the agency is to guard against courts

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

review.’” 564 F.3d at 1380 (quoting Murakami v. United States, 46 Fed. Cl. 731, 735 (2000),

aff’d, 398 F.3d 1342 (Fed. Cir. 2005)). “Thus, supplementation of the record should be limited

- 13 -

to cases in which ‘the omission of extra-record evidence precludes effective judicial review.’”

Id. (quoting Murakami, 46 Fed. Cl. at 735). When performing this analysis, the court is

“required to explain why the evidence omitted from the record frustrate[s] judicial review as to

the ultimate question of whether the award . . . was arbitrary and capricious.” AgustaWestland

N. Am., Inc. v. United States, 880 F.3d 1326, 1332 (Fed. Cir. 2018) (citing Axiom, 564 F.3d at

1379–80).

B. Bid Protest Jurisdiction and APA Standard of Review

The Tucker Act provides this court jurisdiction over “action[s] by an interested party

objecting to a solicitation by a federal agency for bids or proposals for a proposed contract or to a

proposed award or the award of a contract or any alleged violation of statute or regulation in

connection with a procurement or a proposed procurement.” 28 U.S.C. § 1491(b)(1) (1996).

The term “interested party” means “actual or prospective bidders or offerors whose direct

economic interest would be affected by the award of the contract or by failure to award the

contract.” Am. Fed’n of Gov’t Emps. v. United States, 258 F.3d 1294, 1302 (Fed. Cir. 2001).

“[T]o prevail in a protest the protester must show not only a significant error in the procurement

process, but also that the error prejudiced it.” Data Gen. Corp. v. Johnson, 78 F.3d 1556, 1562

(Fed. Cir. 1996) (citations omitted). This court evaluates bid protests under the framework laid

out in Section 706 of the Administrative Procedure Act. 28 U.S.C. § 1491(b)(4); see also

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

2001); MATTHEW H. SOLOMSON, COURT OF FEDERAL CLAIMS: JURISDICTION, PRACTICE, AND

PROCEDURE § 8-37 (2016) (first citing 28 U.S.C. § 1491(b)(4); and then quoting 5 U.S.C.

§ 706(A), (D)); 28 U.S.C. § 1491(b)(4) (2024) (“In any action under this subsection, the courts

shall review the agency’s decision pursuant to the standards set forth in section 706 of title 5.”)).

“[T]he proper standard to be applied in bid protest cases is provided by 5 U.S.C. § 706(2)(A): a

reviewing court shall set aside the agency action if it is ‘arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with law.’” Banknote Corp. of Am., Inc. v. United

States, 365 F.3d 1345, 1350–51 (Fed. Cir. 2004) (quoting Advanced Data Concepts, Inc. v.

United States, 216 F.3d 1054, 1057–58 (Fed. Cir. 2000)). An agency’s action is arbitrary,

capricious, or an abuse of discretion if “the agency ‘entirely failed to consider an important

aspect of the problem, offered an explanation for its decision that runs counter to the evidence

before the agency, or . . . is so implausible that it could not be ascribed to a difference in view or

the product of agency expertise.’” Ala. Aircraft Indus., Inc.-Birmingham v. United States, 586

F.3d 1372, 1375 (Fed. Cir. 2009) (quoting Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm

Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)). Given the arbitrary and capricious standard is

“highly deferential,” a reviewing court must “sustain an agency action evincing rational

reasoning and consideration of relevant factors.” Advanced Data Concepts, 216 F.3d at 1058

(citing Bowman Transp., Inc. v. Ark.-Best Freight Sys., Inc., 419 U.S. 281, 285 (1974)). A court,

therefore, will not “substitute its judgment” for the agency’s so long as the agency’s decision was

reasonable. Dell Fed. Sys., L.P. v. United States, 906 F.3d 982, 998–99 (Fed. Cir. 2018) (quoting

R & W Flammann GmbH v. United States, 339 F.3d 1320, 1322 (Fed. Cir. 2003)).

C. Judgment on the Administrative Record in a Bid Protest

- 14 -

“[Rule] 52.1(c) [of the Rules of the United States Court of Federal Claims (‘RCFC’)]

provides for judgment on the administrative record.” Huntsville Times Co. v. United States, 98

Fed. Cl. 100, 104 (2011); see also Bannum, Inv. v. United States, 404 F.3d 1346, 1353–54 (Fed.

Cir. 2005). A court may set aside an agency action if plaintiff has proven “either: (1) the

procurement official’s decision lacked a rational basis; or (2) the procurement procedure

involved a violation of regulation or procedure.” Impresa, 238 F.3d at 1332 (citations omitted).

The rational basis test requires the court to ask “whether the contracting agency provided a

coherent and reasonable explanation of its exercise of discretion.” Dell Fed. Sys., L.P., 906 F.3d

at 992 (quoting Banknote, 365 F.3d at 1351). “When a challenge is brought on the second

ground, the disappointed bidder must show ‘a clear and prejudicial violation of applicable

statutes or regulations.’” Impresa, 238 F.3d at 1333 (quoting Kentron Haw., Ltd. v. Warner, 480

F.2d 1166, 1169 (D.C. Cir. 1973)) (other citations omitted). “[D]e minimis errors do not require

the overturning of an award.” Grumman Data Sys. Corp. v. Dalton, 88 F.3d 990, 1000 (Fed. Cir.

1996) (citations omitted). A bid protest plaintiff must establish alleged “errors in the

procurement process significantly prejudiced” plaintiff by showing “there was a ‘substantial

chance’ it would have received the contract award but for the errors.” Bannum, 404 F.3d at 1353

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

2003)) (other citations omitted).

D. Permanent Injunction

In a bid protest case, “the Court of Federal Claims ‘may award any relief that the court

considers proper, including declaratory and injunctive relief.’” Oak Grove Techs., LLC v. United

States, 116 F.4th 1364, 1375 (Fed. Cir. 2024) (quoting 28 U.S.C. § 1492(b)(2)). Before granting

injunctive relief, the trial court “must consider whether (1) the plaintiff has succeeded on the

merits, (2) the plaintiff will suffer irreparable harm if the court withholds injunctive relief, (3) the

balance of hardships to the respective parties favors the grant of injunctive relief, and (4) the

public interest is served by a grant of injunctive relief.” Id. (quoting Centech Grp., Inc. v. United

States, 554 F.3d 1029, 1037 (Fed. Cir. 2009)). If the trial court awards injunctive relief, it may

fashion its own remedy to fit the contours of the decision. See Turner Constr. Co. v. United

States, 645 F.3d 1377, 1388 (Fed. Cir. 2011) (explaining “the Court of Federal Claims has broad

equitable powers to fashion an appropriate remedy”).

VI. Whether Harkcon Materially Misrepresented [XXXXXXX]’s Availability to Serve

as Program Manager and Whether to Supplement the Administrative Record with

Limited Discovery

Plaintiff first argues the Agency’s evaluation of Harkcon was arbitrary and capricious

because “Harkcon’s quotation contains material misrepresentations.” See Pl.’s MJAR at 14.

Specifically, plaintiff argues Harkcon’s proposal of “[XXXXXX] as its Program manager and as

a full-time, on-site (New Mexico) resource,” id. falsely represented [XXXXXX]’s ability to

perform as the program manager, id. at 18. Plaintiff asserts Mr. [XXX] was “Chief Operating

Officer, . . . responsible for managing and directing Harkcon operations . . . based in

Fredericksburg, Virginia,” and he “serves as the program manager for two other active

contracts.” Id. Plaintiff also relies on the declaration of its employee, [XXXXXXXX], which

- 15 -

alleged after the Agency awarded the contract, employees at Harkcon told her Harkcon “is

actively recruiting for the Program Manager position” and “Mr. [XXX] . . . does not intend to

serve as the Program Manager.” Id. at 18–19 (quoting AR Tab 39a at 1722 (Declaration of

[XXXXXXXX])). Plaintiff submitted the declaration as part of its post-award protest at the

GAO. See AR Tab 39a at 1699 (Index of Exhibits in GAO protest). The Agency relied on this

misrepresentation, plaintiff argues, since the “Agency assigned Harkcon three strengths based on

Mr. [XXX]’s resume . . . [and] then assigned Harkcon an exceptional rating for the Key

Personnel Resume Factor.” Id. at 20–21. If the Agency had not made this error, plaintiff argues

it would have been the only qualified bidder, and it would have been awarded the task order. See

id. at 14. The Court first evaluates whether the evidence in the AR before the Agency

establishes a material misrepresentation in Harkcon’s proposal such that the Agency’s award was

arbitrary and capricious. Second, the Court determines whether the [XXX] declaration, in

addition to the evidence in the AR, establishes a material misrepresentation in Harkcon’s

proposal such that the Agency’s award was arbitrary and capricious. Third, the Court reviews

plaintiff’s request for leave to conduct discovery and supplement the administrative record.

A. Whether the Evidence in the Administrative Record Before the Agency

Establishes a Material Misrepresentation

Plaintiff alleges Harkcon’s representations Mr. [XXX] would serve as the on-site

program manager for the contract in New Mexico were false statements relied upon by the

Agency. See Pl.’s MJAR at 18. Plaintiff argues this representation was false because [XXX]

was “Chief Operating Officer . . . responsible for managing and directing Harkcon operations,”

which “is based in Fredericksburg, Virginia,” and he “serves as the program manager for two

other active contracts.” Id. Plaintiff alleges Mr. [XXX] was Harkcon’s president as well, citing

“the Harkcon website prior to quotation submission.” Id. These responsibilities, plaintiff argues,

make any suggestion [XXX] “could serve as the on-site, New Mexico, full-time Program

Manager under this contract . . . not credible.” Id.

The Federal Circuit provided in Planning Research Corporation v. United States, “the

submission of a misstatement . . . which materially influences consideration of a proposal should

disqualify the proposal . . . . Any further consideration of the proposal in these circumstances

would provoke suspicion and mistrust and reduce confidence in the competitive procurement

system.” 971 F.2d 736, 741 (Fed. Cir. 1992) (quoting In re Informatics, Inc., 57 Comp. Gen.

217, 225 (Jan. 20, 1978)). Such material misrepresentations “taint[] the bidding and evaluation

process.” Id. at 740–41. In the Court’s 2023 Order in Health Net Federal Services v. United

States, the Court surveyed other cases which further outline the standard for misrepresentation.

168 Fed. Cl. 1 (2023). Notably, in Impresa Construzioni Geom. Domenico Garufi v. United

States, the plaintiff protested the award of a contract to another bidder, alleging the awardee

misrepresented a certification that their principals had not been convicted of fraud or a similar

offense in the last three years. 238 F.3d 1324, 1339 (Fed. Cir. 2001). A former principal of the

awardee had, however, been convicted of fraud in connection with a different government

contract within the last three years. Id. at 1328, 1339–40. This court held the contracting officer

could have reasonably ignored the fraud convictions because nothing in the record “required a

determination that the facts available to the [agency] conflicted with representations filed by the

awardee.” Id. at 1330, 1340. According to this court, the decision to accept the certification was

- 16 -

therefore not arbitrary and capricious. Id. The Federal Circuit disagreed and remanded to this

court to allow for a “limited deposition of the contracting officer” to: (1) identify the contracting

officer’s actual reasons for accepting the certification; and (2) decide if those reasons were

arbitrary and capricious. Id. at 1327, 1340. The Federal Circuit stated, under the legal standard

for material misrepresentations, “[i]t is well-established that a contracting officer should consider

disqualifying a proposed contractor if a material misrepresentation is made. . . . Under these

circumstances, we must assume that the contracting officer considered the certification and

concluded that it was not misleading. The question is whether this was arbitrary.” Id. at 1339

(citations omitted). The Federal Circuit decided the failure of the awardee to report the

indictment of its previous principal raised “serious questions” as to whether there had been a

material misrepresentation. Id. at 1340. The record did not include information as to why the

contracting officer decided to accept the certification, so the Federal Circuit remanded to require

a deposition of the contracting officer to explain. Id.

Here, plaintiff claims Harkcon misled the Agency by proposing Mr. [XXX] as the

program manager when he held various other positions at Harkcon which would make

performance on-site in New Mexico difficult. See Pl.’s MJAR at 18. Harkcon explained at oral

argument Mr. [XXX] intends to “take off his present COO hat and be physically present in New

Mexico” once the contract commences. Tr. at 12:17–22. Harkcon stated “other

individuals . . . would come on board to take over [Mr. [XXX]’s program manager] roles” on the

contracts in Virginia. Tr. at 12:12–14. Mr. [XXX], for his part, is “ready to go to New Mexico

when called upon to be there.” Tr. at 12:24–25. Moreover, the Agency twice requested via

email Harkcon clarify whether Mr. [XXX] would be available on-site in New Mexico and would

perform at a full-time level, and Harkcon twice answered in the affirmative. See AR Tab 17b at

1050 (Response to Email Clarification Notice #1); AR Tab 19a at 1053–1054 (Response to

Email Clarification Notice #2). In October 2024, the Agency asked Harkcon to “clarify whether

your proposed Key Personnel will be available on-site . . . at OST HQ,” and Harkcon

unequivocally stated “[y]es, Harkcon, Inc.’s proposed Program Manager will be available on-site

at OST HQ per the [Project Work Statement] requirements.” Id. In another exchange in

December 2024, the Agency asked Harkcon to clarify whether “it proposes to capture 100% of

the incumbent staff,” including the incumbent program manager. AR Tab 19a at 1053 (Response

to Email Clarification Notice #2). Harkcon clarified it was “proposing Mr. [XXX] as the key

person, but could capture the incumbent [program manager] upon award, with permission.” Id.

Notably, plaintiff agreed at oral argument it is “theoretically possible” for Mr. [XXX] to drop

some or all of his ties to Virginia to be the on-site program manager in New Mexico and simply

disputed whether it was “realistic” for him to do so. Tr. at 20:2–8 (“[PLAINTIFF: C]ould

he . . . cut off his responsibilities to the company he runs? Could he cut off the responsibilities to

the other federal contracts he’s running? . . . is that theoretically possible? Sure.”). Furthermore,

even if Mr. [XXX] does not shed 100% of his other duties at Harkcon, his resume indicates he

commonly wears multiple hats at once as an employee of Harkcon—Mr. [XXX] was the

program manager for two multi-million-dollar contracts with the government at once from

2012–2016. See AR Tab 13b at 633–34 (Mr. [XXX]’s resume) (listing Mr. [XXX] as program

manager for one $16 million contract from 2012–2016 and another “20+ million” contract from

2011–2017). For one of those contracts, Mr. [XXX] “directed the operations of up to 60

Harkcon personnel at nine locations across 4 time zones.” See id. Mr. [XXX] managed two

other multi-million-dollar contracts at once again from 2019–2021. See id. During all of these

- 17 -

times, Mr. [XXX] also served as Harkcon’s COO. See id. Plaintiff agreed it is “possible” for

Mr. [XXX] to “cut off his ties” in Virginia and perform as program manager, Tr. at 20:6–7, and

Mr. [XXX]’s resume indicates he commonly handles numerous responsibilities at the same time

as a Harkcon employee, see AR Tab 13b at 633–34 (Mr. [XXX]’s resume). Given the record

before the Agency supports Harkcon’s statements Mr. [XXX] was able and willing to perform as

program manager, the Court finds Harkcon’s proposal of Mr. [XXX] as the program manager

was “not misleading,” and it was not arbitrary for the Agency to conclude the same. See

Impresa, 238 F.3d at 1338–39 (“Under these circumstances, we must assume that the contracting

officer considered the certification and concluded that it was not misleading. The question is

whether this was arbitrary.”) (“the agency decision is entitled to a presumption of

regularity. . . . Because of that presumption of regularity, the agency should not be required to

provide an explanation unless that presumption has been rebutted by record evidence suggesting

that the agency decision is arbitrary and capricious.”) (citations omitted).

B. Whether the Evidence Establishes a Material Misrepresentation if the Court

Considers the [XXX] Declaration

The Court further considers if the [XXX] Declaration submitted by plaintiff raises

evidence of misrepresentation. Incumbent program manager [XXXXXXX] claims in a

declaration Mr. [XXX] “indicated [to her] he does not intend to serve as the Program Manager”

and “Harkcon is actively recruiting for the Program Manager position.” AR Tab 39a at 1721

(Declaration of [XXXXXXX]). Ms. [XXX] alleges Harkcon employees explained [XXX] was

inserted into the proposal only after “Harkcon discovered the person which it intended to propose

as its Program Manager in its quotation did not have the required security clearance,” and

Harkcon never intended for [XXX] to serve as the program manager. Id. at 1720–21.

According to the Supreme Court, “the focal point for judicial review should be the

administrative record already in existence, not some new record made initially in the reviewing

court.” Camp v. Pitts, 411 U.S. 138, 142 (1973). “The purpose of limiting review to the record

actually before the agency is to guard against courts using new evidence to ‘convert the

“arbitrary and capricious” standard into effectively de novo review.’” Axiom Res. Mgmt, Inc. v.

United States, 564 F.3d 1374, 1381 (Fed. Cir. 2009) (citations omitted); see also Safeguard Base

Operations, LLC v. United States, 989 F.3d 1326, 1348 (Fed. Cir. 2021).

Plaintiff agrees the [XXX] Declaration was not before the Agency prior to its award

decision nor could it have been, as it was prepared as part of plaintiff’s protest at GAO and

addressed solely post-award events. See Tr. at 47:2–7 (“THE COURT: The only reason why

[the declaration is] in the record is because of GAO. But you agree that agency did not consider

[the declaration] . . . before . . . because [it] occurred after the award. [PLAINTIFF]: Of

course.”). The declaration was not before the Agency when it made its decision and is therefore

beyond the “focal point” of the Court’s review. See Camp, 411 U.S. at 142. Accordingly, the

Court declines to consider the [XXX] declaration. Axiom, 564 F.3d at 1381 (“The purpose of

limiting review to the record actually before the agency is to guard against courts using new

evidence to ‘convert the “arbitrary and capricious” standard into effectively de novo review.’”).

- 18 -

If the Court were to consider the [XXX] declaration, plaintiff argues the declaration

“confirms that Mr. [XXX] did not intend to serve as the Program Manager.” Pl.’s MJAR at 18.

Harkcon proposed Mr. [XXX] as its program manager and twice expressly affirmed Mr.

[XXX]’s availability to perform in New Mexico. See AR Tab 17b at 1050 (Response to Email

Clarification Notice #1); AR Tab 19a at 1053–54 (Response to Email Clarification Notice #2).

This directly contradicts the declaration’s claim “Mr. [XXX] . . . does not intend to serve as the

Program Manager.” AR Tab 19a at 1721 (Declaration of [XXXXXXXX]). At oral argument,

Harkcon confirmed it always intended for Mr. [XXX] to perform as the program manager. See

Tr. at 10:22–25 (“THE COURT: Mr. [XXX] was always planned to be the PM? [PLAINTIFF]:

Yes, and he still is ready, willing, and able.”). While Harkcon agrees Mr. [XXX] “did have a

conversation” with Ms. [XXX], Tr. at 11:3–8, Harkcon maintains “he did not tell her that he

would not be available or would not be working,” Tr. at 10:4–8. This contradicts the

declaration’s claim Harkcon only proposed Mr. [XXX] as program manager after “discover[ing]

the person whom Harkcon intended to propose as its Program Manager in its quotation did not

have the required security clearance.” AR Tab 19a at 1721 (Declaration of [XXXXXXXX]).

Nothing on the face of Harkcon’s proposal, in its communications with the Agency, or in the

record before the Agency supports the declaration’s allegations, and the Agency did not have any

of the facts alleged before it when it evaluated Harkcon’s proposal. Moreover, even if the

allegations in the declaration were true, the Agency was aware Harkcon may attempt to capture

the incumbent program manager “with permission, to maintain continuity of staff.” AR Tab 19a

at 1053 (Response to Email Clarification #2). The solicitation expressly allows for substituting

the program manager with the consent of the contracting officer. See AR Tab 9 at 100–01

(Solicitation RFQ) (“Before removing, replacing, or diverting any of the listed or specified

personnel, the Contractor must: (1) Notify the Contracting Officer reasonably in advance; (2)

submit justification (including proposed substitutions) in sufficient detail to permit evaluation of

the impact on this contract; and (3) obtain the Contracting Officer’s written approval.”). Even if

Harkcon was exploring alternative candidates for program manager, whether it be the incumbent

Ms. [XXX] or another individual, at most that establishes “Harkcon is actively recruiting for the

Program Manager position.” AR Tab 19a at 1721 (Declaration of [XXXXXXX]). Given the

solicitation expressly allows for substituting the program manager, the Court finds Harkcon’s

representations to the Agency regarding Harkcon’s intent for Mr. [XXX] to serve as program

manager were “not misleading,” and it was not arbitrary for the Agency to conclude the same.

See Impresa, 238 F.3d at 1338–39 (“Under these circumstances, we must assume that the

contracting officer considered the certification and concluded that it was not misleading. The

question is whether this was arbitrary.”) (“the agency decision is entitled to a presumption of

regularity. . . . Because of that presumption of regularity, the agency should not be required to

provide an explanation unless that presumption has been rebutted by record evidence suggesting

that the agency decision is arbitrary and capricious.”) (citations omitted).

Plaintiff argues this protest is substantially similar to Planning Research and the Court

should reach the same result. See, e.g., Tr. at 20:9–23. There, the Federal Circuit upheld a

decision to terminate a contract award after finding the awardee materially misrepresented the

personnel it intended to use for the contract. Planning Research, 971 F.2d at 739, 743. The

awardee originally proposed capturing a substantial portion of the incumbent staff, but shifted its

plan to use all of its own staff after being informed the agency would treat capturing incumbents

as a weakness. Id. at 740. During bidding, the awardee “repeatedly represented and assured [the

- 19 -

agency] that it would staff the contract with the personnel for whom résumés had been provided.

Id. Once the contract was awarded, however, more than half of the contract staff the awardee

hired were not among the personnel it proposed to the agency. Id. at 739. The agency also

discovered the awardee had submitted proposed personnel resumes “without ascertaining

whether any of the people would be available to work on the . . . contract,” and “did not indicate

during the course of the negotiations that there would be any changes in the proposed staffing of

the contract.” Id. at 742. As a result, the Federal Circuit agreed the awardee “misrepresented the

personnel who would perform the contract and intended to alter its staffing after award.” Id. at

741. Here, unlike in Planning Research, Harkcon did not surprise the Agency by switching its

personnel immediately after contract award. First, Harkcon has not substituted proposed

personnel and it is only speculative whether Harkcon will ultimately choose to do so. The

awardee in Planning Research, on the other hand, immediately began hiring incumbent

personnel after award, contradicting its own proposal. See id. at 739. Second, if Harkcon does

choose to substitute its program manager, it will be adhering to its representations to the Agency

because Harkcon expressly informed the Agency prior to contract award it may attempt to

capture the incumbent program manager. See AR Tab 19a at 1053–54 (Response to Email

Clarification #2) (email exchange between the Agency and Harkcon where Harkcon confirmed it

could capture the incumbent program manager). Third, the court in Planning Research accepted

the GSA Board of Contract Appeals’ finding the awardee “never even attempted, or intended, to

provide the proposed personnel.” Planning Research, 971 F.2d at 742. Here there is no such

prior finding nor significant evidence Mr. [XXX] was unwilling or unable to perform in New

Mexico. Cf. Orion Intern. Techs. v. United States, 66 Fed. Cl. 569, 576 (2005) (distinguishing

Planning Research because of a lack of evidence the awardee never intended to hire the

proposed key person). In Planning Research, disqualification of the awardee was proper

because the awardee made “massive personnel substitutions” in a post-award bait-and-switch;

here, Harkcon has not made any personnel substitutions, and speculation about whom Harkcon

will employ does not warrant disqualification. Cf. CACI, Inc.-Fed. v. United States, 719 F.2d

1567, 1579–82 (Fed. Cir. 1983) (“inferences of actual or potential wrongdoing” should be based

on “hard facts,” not “suspicion and innuendo”).

The record before the Agency when it made its award to Harkcon contains no evidence

establishing Harkcon’s intent was different from that it proposed to the Agency. The Agency

knew Harkcon might explore substituting its project manager, and any such substitution would

have to be approved by the Agency. See AR Tab 19a at 1053 (Response to Email Clarification

#2); AR Tab 9 at 100–01 (Solicitation RFQ). Even if Harkcon was contemplating changing its

project manager from Mr. [XXX] to another individual, such contemplation alone does not show

Harkcon’s representations to the Agency were misleading. Accordingly, the Court finds

Harkcon’s representations regarding Mr. [XXX]’s availability to serve in New Mexico as

program manager were “not misleading,” and it was not arbitrary for the Agency to conclude the

same. See Impresa, 238 F.3d at 1338–39 (“Under these circumstances, we must assume that the

contracting officer considered the certification and concluded that it was not misleading. The

question is whether this was arbitrary.”) (“the agency decision is entitled to a presumption of

regularity. . . . Because of that presumption of regularity, the agency should not be required to

provide an explanation unless that presumption has been rebutted by record evidence suggesting

that the agency decision is arbitrary and capricious.”) (citations omitted).

- 20 -

C. Whether to Grant Plaintiff’s Motion for Limited Discovery and

Supplementation

Plaintiff asks the Court to “permit [plaintiff] to depose Mr. [XXX] and Ms. [XXX] and

submit the document requests identified . . . and, in turn, to supplement the record with the

transcripts and documents.” Pl.’s Mot. for Disc. at 11. The “request for discovery only relate[s]

to the misrepresentation claim.” Tr. at 39:25–40:1. “[S]upplementation of the record should be

limited to cases in which ‘the omission of extra-record evidence precludes effective judicial

review.’” Axiom Res. Mgmt., Inc. v. United States, 564 F.3d 1374, 1380 (Fed. Cir. 2009)

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

2005)). The Court is “required to explain why the evidence omitted from the record frustrate[s]

judicial review as to the ultimate question of whether the award . . . was arbitrary and

capricious.” AgustaWestland N. Am., Inc. v. United States, 880 F.3d 1326, 1332 (Fed. Cir. 2018)

(citing Axiom, 564 F.3d at 1379–80).

In the Court’s 2023 Order in Health Net Federal Services v. United States, 168 Fed. Cl.

1, 8–12 (2023), the Court surveyed several other cases which outline the standard for granting

discovery and supplementation in a misrepresentation case. These cases included: Impresa

Construzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324 (Fed. Cir. 2001); Oracle

Am., Inc. v. United States, No. 18-1880, 2019 WL 354705 (Fed. Cl. Jan. 28, 2019); Orion Int’l

Techs. v. United States, 60 Fed. Cl. 338 (2004)); and Golden IT, LLC v. United States, 157 Fed.

Cl. 680 (2022).

First, in Impresa, the plaintiff protested the award of a contract to another bidder, alleging

the awardee misrepresented a certification their principals had not been convicted in the last

three years and were not presently indicted. 238 F.3d at 1339. The Court of Federal Claims held

the contracting officer could have reasonably ignored the awardee’s past receivership and present

indictment (which contradicted the awardee’s certification) because nothing in the record

“required a determination that the facts available to the [agency] conflicted with representations

filed by the awardee.” Id. at 1330, 1340. The Federal Circuit disagreed and remanded to this

court to allow for a “limited deposition of the contracting officer” to: (1) determine his actual

reasons for accepting the certification; and (2) decide if those reasons were arbitrary and

capricious. Id. at 1327, 1340. The Federal Circuit stated “[t]he failure of [the awardee] to report

the findings and indictment of the Italian courts, which appear to have been before the

contracting officer, raises serious questions as to whether the awardee made a material

misrepresentation on the certificate. . . . Unfortunately, the record does not include any

articulation of what the contracting officer concluded when he reviewed the

certification . . . , [so] we must require an explanation by deposition.” Id. at 1339–40 (citations

omitted).

Second, in Oracle, plaintiff Oracle filed a pre-award bid-protest related to the DoD’s

Joint Enterprise Defense Infrastructure (“JEDI”) Cloud procurement. 2019 WL 354705, at *1.

Plaintiff “filed a motion to complete and supplement the administrative record (‘AR’) and for

leave to conduct limited deposition and document discovery.” Id. The court denied plaintiff’s

motion because “[the] government . . . included in the AR the documents that it developed and

- 21 -

considered in making the decisions at issue, and plaintiff has not made a sufficient showing for

this court to permit supplementation or limited discovery.” Id. at *6. The court reasoned: “To

be granted leave to conduct limited discovery, the protestor must show a ‘likelihood that

discovery would lead to evidence that would meet the clear and convincing standard’ to

overcome the presumption of regularity on the merits.” Id. at *3 (quoting Starry, 125 Fed. Cl. at

623). “The protestor must ‘make a threshold showing of “motivation for the [g]overnment

employees in question to have acted in bad faith or conduct that is hard to explain absent bad

faith,” and [show] that “discovery could lead to evidence which would provide the level of proof

required to overcome the presumption of regularity.”’” Id. (second alteration in original)

(quoting Starry, 125 Fed. Cl. at 622).

Third, in Orion, plaintiff protested the Army’s award of a contract for staff support,

alleging misrepresentation by the awardee related to its personnel. 60 Fed. Cl. at 339–41.

Plaintiff filed a motion for discovery seeking depositions of the awardee’s personnel and the

Army’s Source Selection Authority (SSA) to unearth knowledge about the awardee’s

employment history during the solicitation. Id. at 340, 344. Orion explained “this discovery

[would] determine . . . whether Fiore and its representatives misrepresented the identities of its

key employees in either its qualification package or its oral presentation to the Army.” Id. The

court reasoned, “a plaintiff needs more than innuendo or suspicion to entitle it to discovery

seeking such evidence.” Id. at 344 (citing Info. Tech. & Applications Corp. v. United States, 316

F.3d 1312, 1324 n.2 (Fed. Cir. 2003)). The court then granted and denied the motion in part,

based on its analysis of whether plaintiff Orion met the evidentiary threshold for bad faith in its

analysis. Id. at 346. Referring to the granted aspect of the motion, the court wrote: “[G]iven

th[e] possibility [of misrepresentation], [the awardee’s] discussions with [the employee], and the

plans and contingent plans that he made based on these conversations may be relevant to the

present litigation, and are not something that would ever normally be found in an agency’s

record.” Id. at 345.

Fourth, in Golden IT, plaintiff Golden IT filed a post-award protest challenging the

Census Bureau’s award of a general IT support contract and raised a plausible misrepresentation

claim involving the awardee’s personnel. 157 Fed. Cl. at 684–85. The plaintiff moved to

supplement the administrative record with a “copy of the LinkedIn profile of [the awardee’s]

proposed key personnel” in support of its misrepresentation claim. Id. at 686. Plaintiff argued

part of the Census Bureau’s evaluation was arbitrary because the awardee improperly

characterized one of its key personnel as still employed by the awardee at the time of

submission, and therefore, the Census Bureau “should have assigned a weakness to [awardee’s]

quote—instead of a significant strength.” Id. at 699. The court found plaintiff’s claim of

misrepresentation of a key personnel was enough to trigger discovery because neither party

could “explain[] during oral argument how th[e] [c]ourt could possibly evaluate a plausible

misrepresentation claim based upon only the evidence in the government’s possession,” further

demonstrating supplementation was necessary. Id. Because it could not “possibly evaluate a

plausible misrepresentation claim based upon only the evidence in the government’s possession,”

the court determined supplementation was appropriate. Id.

(1) Whether Supplementation is Necessary for Effective Judicial Review

- 22 -

Plaintiff asks the Court to “permit [plaintiff] to depose Mr. [XXX] and Ms. [XXX] and

submit the document requests identified above and, in turn, to supplement the record with the

transcripts and documents.” Pl.’s Mot. for Disc. at 11. “The focus of judicial review . . . remains

the administrative record, which should be supplemented only if the existing record is insufficient

to permit meaningful review consistent with the [Administrative Procedure Act].” Axiom

Resource Management, Inc. v. United States, 564 F.3d 1374, 1381 (Fed. Cir. 2009) (emphasis

added). Under Impresa, the Agency’s decision to accept Harkcon’s proposal notwithstanding the

alleged misrepresentation must not be “arbitrary.” 238 F.3d at 1339. Here, Harkcon proposed

Mr. [XXX] as its program manager and consistently affirmed to the Agency he was willing and

able to perform his role in New Mexico even after the Agency twice sought specific clarification

on that point. See AR Tab 17b at 1050 (Response to Email Clarification Notice #1); AR Tab 19a

at 1053–1054 (Response to Email Clarification Notice #2) (email exchanges between the Agency

and Harkcon where Harkcon confirmed [XXX] would be available in New Mexico). The

Agency had no reason to suspect Harkcon’s proposal contained any misrepresentation. The

deposition testimony to be developed and the non-record documents plaintiff seeks were also not

before the Agency and therefore could not shed light on whether the Agency’s decision

Harkcon’s proposal was acceptable was “arbitrary.” See Impresa, 238 F.3d at 1339. Similarly,

Orion explains “a plaintiff needs more than innuendo or suspicion to entitle it to discovery.” 60

Fed. Cl. at 344. A bald, disputed declaration from one of plaintiff’s own employees alleging

Harkcon admitted it would, at some point before contract start, replace its proposed manager

does not rise above innuendo or suspicion. In the same vein, the court in Oracle required the

plaintiff to “ma[k]e a sufficient showing” that “discovery would lead to evidence” sufficient for

the Court to answer the ultimate question on the merits. See 2019 WL 354705, at *3, 6 (“To be

granted leave to conduct limited discovery, the protestor must show a “likelihood that discovery

would lead to evidence that would meet the clear and convincing standard” to overcome the

presumption of regularity on the merits.”). Plaintiff’s self-serving allegations and suspicions of

misrepresentation based on Mr. [XXX]’s other responsibilities at Harkcon do not suffice to make

this showing. Plaintiff’s allegations of Harkcon’s intent as to future staffing actions also

distinguishes this case from the discovery granted in Golden IT. There, the plaintiff alleged a

particular employee was not employed with the awardee when the awardee specifically

represented to the agency he was. Golden IT, 157 Fed. Cl. at 699. Supplementation was then

necessary to determine whether the employee was employed by the awardee. Id. Plaintiff’s

allegations are far less concrete—plaintiff does not allege Harkcon misrepresented the

employment status of Mr. [XXX], but instead alleges an active Harkcon employee may not

conform with the promises in Harkcon’s proposal. See AR Tab 39a at 1720–21 (Declaration of

[XXXXXXX]) (alleging Harkcon is “is actively recruiting for the Program Manager position”

and Mr. [XXX] “does not intend to serve as the Program Manager”). Likewise, plaintiff’s

request for discovery to obtain evidence it would then seek to supplement is far from the single,

preexisting piece of evidence the court allowed in Golden IT. See 157 Fed. Cl. at 686 (plaintiff

sought to supplement record with “LinkedIn profile of [awardee’s] proposed key personnel”).

The above cases illustrate plaintiff is required to present “more than innuendo and suspicion to

entitle it to discovery,” Orion, 60 Fed. Cl. at 344, on the ultimate question of whether the

Agency’s decision to accept Harkcon’s bid despite alleged inconsistencies is “arbitrary,” see

Impresa, 238 F.3d at 1339. The Court finds the allegations in plaintiff’s declaration and the

alleged inconsistencies between Mr. [XXX]’s performance as program manager and his other

roles at Harkcon fall short of this requirement. Accordingly, plaintiff has not shown the “extra-

- 23 -

record evidence” is necessary for “effective judicial review.” See Axiom, 564 F.3d at 1380

(citation omitted).

In any event, plaintiff stated at oral argument and in its briefing its misrepresentation

claim can succeed without discovery and supplementation of the record. See Tr. at 40:3–8

(“THE COURT: And it sounds like . . . you cannot support a misrepresentation claim without

discovery? [PLAINTIFF]: I believe we can, your honor, because I think we have the . . . we

have evidence of misrepresentation.”); Pl.’s Mot. for Disc. at 5 (“As detailed in AMSG’s MJAR,

the record contains substantial evidence showing that Harkcon misrepresented its intent for Mr.

[XXX] to serve as the Harkcon Program Manager, and that evidence suffices for the Court to

grant judgment in AMSG’s favor.”) (emphasis added). The primary review under Axiom is

therefore whether omission of the evidence which plaintiff might obtain in discovery would

“preclude[] effective judicial review.” 564 F.3d at 1380 (citation omitted). “The focus of

judicial review . . . remains the administrative record, which should be supplemented only if the

existing record is insufficient to permit meaningful review consistent with the [Administrative

Procedure Act].” Id. at 1381 (emphasis added). Plaintiff’s briefing states this is an “uncommon

case where substantial evidence exists in the administrative record for the Court to find that

Harkcon made a material misrepresentation.” Pl.’s Mot. for Disc. at 10. Given plaintiff agrees

its misrepresentation claim can succeed based only on the “substantial evidence” in the record,

id., then the omission of additional extra-record evidence does not “preclude[] effective judicial

review.” See Axiom, 564 F.3d at 1380 (citation omitted). Supplementation is only appropriate

where “the existing record is insufficient.” Id. at 1381. As the Federal Circuit held in

AugustaWestland, this court “abuse[es] its discretion” if it grants supplementation when “the

administrative record [is] sufficient.” 880 F.3d at 1331. Plaintiff agreed the record without

supplementation is sufficient “for the Court to grant judgment in [plaintiff]’s favor.” Pl.’s Mot.

for Disc. at 5. Accordingly, the Court finds supplementation unnecessary here where plaintiff

agrees the record before the Agency is sufficient to prove its misrepresentation claim. See

Camp, 411 U.S. at 142 (“[T]he focal point for judicial review should be the administrative record

already in existence, not some new record initially made in the reviewing court.”).

(2) Axiom Expressly Guards Against Supplementing the Record Based on

Speculative Claims of Misrepresentation

The Federal Circuit’s strict standard for supplementation articulated in Axiom is designed

to “guard against courts using new evidence to ‘convert the “arbitrary and capricious” standard

into effectively de novo review.’” 564 F.3d at 1380 (quoting Murakami, 46 Fed. Cl. at 735).

“Thus, supplementation of the record should be limited to cases in which ‘the omission of extra-

record evidence precludes effective judicial review.’” Id. (quoting Murakami, 46 Fed. Cl. at

735). Any other rule would invite every protest to stray into developing “some new record made

initially in the reviewing court,” which the Supreme Court has expressly cautioned against. Id.

(quoting Camp, 411 U.S. at 142). “[S]upplementation of the record should be very narrowly

confined, . . . and the court must guard against unsupported or speculative claims of inaccurate

representations being used to circumvent limits on supplementation.” Ala. Structures, Inc. v.

United States, 144 Fed. Cl. 80, 85 (2019) (citing Axiom, 564 F.3d at 1379–80). Otherwise, if a

disappointed bidder could be granted leave to conduct discovery merely by submitting a

declaration that an awardee’s intent was different from its proposal, it would invite any

- 24 -

unsuccessful bidder looking to delay the award of a contract to a competitor to do so.

Accordingly, plaintiffs “must adduce something more than allegations of counsel.” Id. (citations

omitted); see also CACI, Inc.-Fed. v. United States, 719 F.2d 1567, 1579–82 (Fed. Cir.

1983) (“inferences of actual or potential wrongdoing” should be based on “hard facts,” not

“suspicion and innuendo”). A self-serving, post-award declaration with allegations of a

successful bidder’s post-award intent does not rise above “allegations of counsel,” see Ala.

Structures, Inc., 144 Fed. Cl. at 85, nor above “suspicion and innuendo,” which are insufficient

to request discovery, CACI, Inc., 719 F.2d at 1579–82. Tellingly, when the Court presented this

question to counsel for plaintiff, counsel had no response:

THE COURT: Well, so let’s assume that there’s a contract for whatever and it goes

to another company in just a general bid protest. And the incumbent, the losing

offeror --

[PLAINTIFF]: Yes.

THE COURT: -- has a declaration from their employee that is self-serving to

disrupt the -- the loss of the contract. That sounds like it would be the type of thing

that would relate to almost every bid protest that would come up.

[PLAINTIFF]: No, Your Honor. I mean, look, I mean, first of all, Ms. [XXX] is

not -- I don’t think this declaration is self-serving, and let me tell you why. Ms.

[XXX], like most -- many employees, is not -- she was offered a job by Harkcon.

See Tr. at 40:16–41:5. Plaintiff’s motion to supplement the administrative record seeks to

introduce “new evidence [and] ‘convert the “arbitrary and capricious” standard into effectively

de novo review.’” Axiom, 564 F.3d at 1380 (citations omitted). This new, extra-record evidence

not before the Agency would force the Court to determine in the first instance whether

Harkcon’s proposal contained material inconsistencies or factual errors after the Agency already

determined Harkcon’s proposal was acceptable for award. This is precisely the form of

supplementation and de novo review Axiom warns against. Id. Excluding plaintiff’s search for

extra-record evidence of a speculative misrepresentation does not “preclude effective judicial

review,” and entertaining such a request would invite “convert[ing] the ‘arbitrary and capricious’

standard into effectively de novo review.” Id. Accordingly, plaintiff’s Motion for Leave to

Conduct Limited Discovery and Supplement the Administrative Record is denied.

VII. Whether the Transition Plan in Harkcon’s Quotation Violated the Terms of the

Solicitation

In an answer to questions submitted by potential offerors, the Agency specified “due to

the administrative nature of this requirement, the Government views the transition risk-level as

low; therefore, will not have a transition period for this requirement.” AR Tab 10d at 388

(Solicitation Q&A). Plaintiff insists Harkcon violated the solicitation terms by stating in its

proposal “[w]e recognize and acknowledge that there is no transition period for this . . . contract,

. . . however, based on transitioning similar contracts in the past, we know there will be a period

of ramp up/transition of the current staff.” Pl.’s MJAR at 26 (quoting AR Tab 13b at 628–29

- 25 -

(Harkcon Technical and Management Information)) (emphasis omitted). Plaintiff argues

Harkcon should be disqualified because it proposed a four-phase transition plan to run from

before the contract award through contract inception. Id.

Plaintiff argues the Agency’s Q&A answer stating the contract will not have a transition

period prohibits Harkcon’s transition plan. See Tr. 61:4–8 (“THE COURT: Mr. Holman, what

does Plaintiff rely on in stating that the RFQ did not permit any transition activities at all?

[PLAINTIFF]: I think we’re relying, Your Honor, on the bidder’s question. It’s Tab 10d, AR

388.”). Plaintiff agrees the Court “needs to apply the plain language of the solicitation.” Tr. at

64:9–11. Nothing in the plain language of the solicitation or the Q&A, precludes all transition

activities—they state the contract “will not have a transition period.” AR Tab 10d at 388

(“[D]ue to the administrative nature of this requirement, the Government views the transition

risk-level as low; therefore, will not have a transition period for this requirement.”). The

government agreed at oral argument the Agency Q&A’s preclusion of a “transition period”

means “once the contract starts, you have to start performing on the contract” and “[t]here’s not

going to be a time where both contractors are performing at the same time,” Tr. at 62:25–63:3,

and further specified it “would expect anyone but the incumbent to propose a transition,” Tr. at

60:10–11. A solicitation which forbade any transition activities whatsoever would make the

solicitation patently uncompetitive because only the incumbent would be able to perform on day

one with no transition at all, which would contradict the Agency’s evaluation plan. See AR Tab

8 at 78 (NNSA’s Evaluation Plan) (“Vendors are reminded that this is a competitive requirement

conducted under FAR Part 8 against the TEPS III BPA.” (emphasis added)). Merely because the

solicitation does not contemplate a “transition period” does not then preclude an offeror from

proposing or executing any kind of transition plan. See AR Tab 10d at 388 (Solicitation Q&A)

(stating project “will not have a transition period”). Harkcon’s transition plan expressly states it

“will provide uninterrupted and efficient support from the very first day of the contract.” AR

Tab 13b at 629 (Harkcon Technical and Management Information) (“When the contract

commences, Team Harkcon will implement a series of meticulously planned processes to ensure

a seamless transition and immediate operational readiness.”). Harkcon confirmed at oral

argument its transition plan proposes “performing on all aspects of the contract from day one.”

Tr. at 57:15–19 (“THE COURT: [D]oes Harkcon intend to be performing on all aspects of the

contract from day one? [HARKCON]: Yes.”). Nothing in any phase of Harkcon’s transition

plan contemplated performing at the same time as AMSG or delaying contract performance after

contract start. See generally AR Tab 13b at 628–29 (Harkcon Technical and Management

Information); Tr. at 60:16–24 (“[THE GOVERNMENT]: . . . [t]he [g]overnment’s position is

generally transition period is . . . either where both contractors are performing or where it’s sort

of like a ramp-up period . . . . That’s not what’s going on here.”).

The Agency rationally understood Harkcon’s transition plan to mean it would, “[w]hen

the contract commences . . . implement a series of meticulously planned processes to ensure a

seamless transition and immediate operational readiness.” AR Tab 13b at 629 (Harkcon

Technical and Management Information) (emphasis added); see also Tr. at 59:18–21 (“[THE

GOVERNMENT: Harkcon will] be performing on day one but at the same time we’re

performing, we’re going to be doing these transition activities such as rebadging.”). Plaintiff

argues Harkcon’s statement in phase 4 of its transition to occur after the contract starts—“[o]nce

all previous phases are successfully implemented, contract maintenance begins”—demonstrates

- 26 -

Harkcon will not be performing immediately upon the contract start date. See Pl.’s MJAR at 27

(quoting AR Tab 13b at 629 (Harkcon Technical and Management Information)) (emphasis

omitted). Harkcon’s proposal says precisely the opposite when it states Harkcon “will provide

uninterrupted and efficient support from the very first day of the contract, ensuring continued

OST mission success.” AR Tab 13b at 629 (Harkcon Technical and Management Information).

Plaintiff offers no reason why Harkcon could not begin contract performance from day one and

does not point to anything in the solicitation which precludes Harkcon from detailing its plans to

transition the contract. Accordingly, plaintiff has failed to show Harkcon’s transition plan “fails

to conform to the material terms and conditions of the solicitation.” E.W. Bliss Co. v. United

States, 77 F.3d 445, 448–49 (Fed. Cir. 1996) (upholding contract award where protestor did not

show the government “acted arbitrarily and capriciously in awarding the contract on the basis of

its belief [the awardee’s] proposal included a [required item]”).

VIII. Whether Harkcon’s Quotation Violated the Terms of the Solicitation by Not

Naming an Alternate Program Manager

Plaintiff argues Harkcon “took exception” to and deviated from the PWS requirement

which says: “[t]he name of [the Program Manager] and an alternate who shall act for the

Contractor when the manager is absent shall be designated in writing to the CO [Contracting

Officer].” Pl.’s MJAR at 23 (quoting AR Tab 10a at 331 (PWS)) (emphasis omitted). Plaintiff

claims Harkcon rejected this requirement when its quotation specified its program manager

would be the “singular touch point for all facets of work performed on the contract.” Id.

(quoting AR Tab 13b at 613 (Harkcon Technical and Management Information)) (emphasis

omitted). The government argues, and Harkcon agrees, the “Solicitation does not require an

alternate Program Manager be identified in the quotation.” Gov’t’s Cross-MJAR at 23. The

solicitation provided “[t]he contractor shall provide a Program Manager who shall be responsible

for the performance of the work. The name of this person and an alternate who shall act for the

Contractor when the manager is absent shall be designated in writing to the CO.” AR Tab 10a at

331 (PWS). The requirement to specifically identify an alternate program manager only comes

after the contract has been awarded and before performance begins. AR Tab 10a at 331 (PWS)

(“The name of [the program manager] and an alternate who shall act for the Contractor when the

manager is absent shall be designated in writing to the [contracting officer].”); see also Tr. at

69:5–10 (“THE COURT: What about Performance Work Statement Part 1.5.12? [THE

GOVERNMENT]: Your Honor, that refers to once the contract commences.”). At oral

argument, plaintiff agreed the RFQ did not require Harkcon to identify an alternate program

manager in its initial quotation. See Tr. at 70:7–12 (“THE COURT: But is there something that,

as [the Government] describes, does not allow the naming of an alternate after the contract

commences? [PLAINTIFF]: Well, I think our argument, Your Honor, is that . . . there’s nothing

that prohibits that.”).

Harkcon’s proposal stated “Harkcon’s Program Manager (PM), backed by Harkcon’s

dedicated DOE/NNSA Program Management Office (PMO), will be the singular touch point for

all facets of work performed on the contract regardless of the Team Harkcon member/entity

performing the work.” AR Tab 13b at 613 (Harkcon Technical and Management Information).

- 27 -

A plain, rational reading of Harkcon’s proposal indicates Harkcon’s program manager will be

joined by at least Harkcon’s “DOE/NNSA Program Management Office.” Id. Harkcon

confirmed at oral argument it did not foreclose naming an alternate program manager. See Tr. at

67:13–20 (“THE COURT: Did your quotation reject or foreclose the possibility of naming an

alternate [program manager]? [HARKCON]: We did not foreclose that. . . . Harkcon was ready,

willing and able to do that as soon as the award was made, performance commenced, et cetera, et

cetera.”). The government confirmed “[t]here’s nothing in Harkcon’s bid from the agency’s

perspective that would lead the agency to believe that Harkcon was not going to comply with the

PWS upon contract award and once they started the contract to provide an alternative program

manager.” Tr. at 69:14–19. Moreover, the solicitation states “[t]he Program manager or

alternate shall have full authority to act for the Contractor on all contract matters” and the

alternate program manager “shall act for the Contractor when the manager is absent.” AR Tab

10a at 331 (PWS). Under the terms of the solicitation, Harkcon could have its single point of

contact with “full authority to act” be either the lead program manager or, if the lead is “absent,”

the alternate program manager.” See id. Harkcon’s proposal of its program manager as its

“single point of contact” does not reject the possibility its program manager could be a different

person depending on the situation. See AR Tab 13b at 613 (Harkcon Technical and Management

Information) (“Harkcon’s Program Manager (PM), backed by Harkcon’s dedicated DOE/NNSA

Program Management Office (PMO), will be the singular touch point for all facets of work

performed on the contract.”). Accordingly, the Court determines the Agency’s award was not

arbitrary and capricious because Harkcon’s proposal of its program manager as its single point of

contact did not violate a requirement to name an alternate. See E.W. Bliss Co. v. United States,

77 F.3d 445, 448–49 (Fed. Cir. 1996) (upholding contract award where protestor did not show

the government “acted arbitrarily and capriciously in awarding the contract on the basis of its

belief [the awardee’s] proposal included a [required item]”).

IX. Whether [XXXXXXX] Lacks the Security Clearance Required to be Program

Manager

Plaintiff argues “Harkcon’s quotation remains ineligible for award because Mr. [XXX]

lacks a DOE L security clearance.” Pl.’s MJAR at 22. Specifically, plaintiff asserts Mr. [XXX]

“doesn’t have a DOE clearance at all” and would have “to go through a process” to obtain one.

Tr. at 86:12–15. Further, plaintiff insists it was arbitrary for the Agency to assign Harkcon a

strength because Mr. [XXX] “exceeds the security clearance level requirement.” Pl.’s MJAR at

22. The solicitation specifies “[t]he Contractor and all employees must at a minimum be able to

obtain an ‘L’ level clearance within a reasonable timeframe.” AR Tab 10a at 330 (PWS). It

further specifies the “program manager” must be “cleared/certified” with an L clearance “on day

one of the contract.” Id. at 359. Mr. [XXX] currently holds a “top secret” clearance from the

Department of Defense. See AR Tab 13b at 631 (Harkcon Technical and Management

Information) (“With an active Top-Secret clearance and prior Q clearance, [Mr. [XXX]] is

equipped to manage high-security projects effectively.”). Although he does not currently hold a

security clearance from the Department of Energy, he held a “prior Q clearance.” Id.

Regarding plaintiff’s argument Harkcon is ineligible for the award, the plain language of

the solicitation requires the program manager to possess a DOE L level security clearance “on

- 28 -

day one of the contract.” AR Tab 10d at 359 (PWS). Mr. [XXX] already holds a top secret

clearance from the DOD and previously held a DOE Q clearance. See AR Tab 13b at 631

(Harkcon Technical and Management Information). Plaintiff agreed at oral argument Mr.

[XXX]’s DOD top secret clearance is generally equivalent to a DOE Q clearance, which are both

more demanding clearance levels than the DOE L clearance Mr. [XXX] will be required to have

on day one of the contract. Tr. at 85:2–4 (“[PLAINTIFF]: I think the general equation is that the

[top secret] is comparable to the Q, Your Honor, and the secret is comparable to the L.”).

Plaintiff offered no reason why Mr. [XXX] would be unable to comply with the clearance

requirement and agreed Mr. [XXX] “very well might” be able to quickly obtain a DOE L

clearance. Tr. at 83:13–18. The DOE and the DOD have a well-established reciprocity program

whereby DOD security clearance holders can quickly obtain an equivalent clearance from the

DOE. See AR Tab 46a at 2620 (“[DOE] must accept national security eligibility adjudications

for clearances at the same or higher level conducted by an authorized adjudicative agency.”). 1

The solicitation requires Mr. [XXX] to be ready with a DOE L clearance “on day one of the

contract,” AR Tab 10d at 359 (PWS), and the DOE’s reciprocity program will allow Mr. [XXX]

to quickly and easily obtain an “L” clearance. Plaintiff presents no evidence Harkcon is unable

or unwilling to comply with the requirement Mr. [XXX] hold a DOE L level security clearance

before day one of the contract.

The Agency assigned a strength to Harkcon because Mr. [XXX] “exceeds the security

clearance level requirement.” AR Tab 30 at 1189 (Basis of Award). As plaintiff agreed at oral

argument, a DOE Q clearance is roughly equivalent to a DOD top secret clearance, and the

less-demanding DOE L clearance is equivalent to a DOD secret clearance. Tr. at 85:2–4. DOE

Order 472.2A also clarifies a DOE Q level clearance “allows access to: . . . Information and

material described below for L Access Authorization . . . [and] Information listed under [top

secret], [secret], and [confidential] security clearance.” AR Tab 46a at 2585 (DOE Order

472.2A, Ex. 1). Mr. [XXX]’s top secret clearance is therefore equivalent in level to the DOE Q

clearance, which is higher than the DOE L clearance he is required to hold. Since Mr. [XXX]’s

top secret security clearance with the DOD is a higher level than the DOE L clearance required,

the Agency’s determination Mr. [XXX] exceeds the security clearance level requirement is

neither “implausible” nor “counter to the evidence before the agency.” Ala. Aircraft Indus.,

Inc.-Birmingham v. United States, 586 F.3d 1372, 1375 (Fed. Cir. 2009). Accordingly, given

Mr. [XXX] exceeds the required security clearance level, the Court determines the Agency’s

assignment of a strength to Harkcon on this basis was not arbitrary and capricious. See E.W.

Bliss Co. v. United States, 77 F.3d 445, 448–49 (Fed. Cir. 1996) (upholding contract award

where protestor did not show the government “acted arbitrarily and capriciously in awarding the

contract on the basis of its belief [the awardee’s] proposal included a [required item]”).

X. Whether the Agency’s Best Value Determination Was Arbitrary and Capricious

1

The DOE website explains “[i]f you have a current, Top-Secret security clearance, and your investigation was

completed within the previous five years, you won’t need to have another investigation in order for DOE to grant

you an access authorization. . . . Under reciprocity, a final Secret clearance would result in an L access authorization

and a final Top-Secret clearance would support the granting of a Q access authorization from DOE.” Department

Vetting Policy and Outreach FAQs, DOE, https://www.energy.gov/ehss/departmental-vetting-policy-and-outreach-

faqs?nrg_redirect=374749 (last visited 29 October 2025).

- 29 -

Plaintiff argues the Agency’s best value determination was “arbitrary, capricious, an

abuse of discretion, or otherwise contrary to law for at least three reasons.” Pl.’s MJAR at 30.

First, plaintiff argues “the foregoing errors”—referring to its claims Harkcon made

misrepresentations to the Agency and failed to conform to certain solicitation

requirements—“necessarily render the Agency’s conclusion arbitrary [and]

capricious . . . because an award decision cannot rest on a materially flawed evaluation.” Id.

Second, plaintiff argues “the [Agency] failed to consider the substantive differences between the

Harkcon and AMSG quotations” and “reduced the competition to price.” Id. at 31. Plaintiff

points out “[t]he SSA observed that ‘[u]ltimately, the decision was made based on a best-value

determination with price serving as the decisive factor due to identical ratings for the two

Vendors on all non-price factors,’” despite “AMSG [having] received twenty-one strengths

compared to Harkcon’s fifteen strengths.” Id. at 31–32 (quoting AR Tab 30 at 1169 (Basis of

Award)) (other citations omitted). Third, plaintiff argues “the Agency overemphasized

Harkcon’s experience and minimized AMSG’s experience.” Id. at 32.

The government responds the Agency “[a]fter reviewing the strengths of each quotation,”

and finding “AMSG and Harkcon presented ‘the same very high probability of successful

performance,’ . . . turned to price as the decisive factor and found that Harkcon’s quotation,

which was $1,245,405 lower in price, offered the best value.” Gov’t’s Cross-MJAR at 30 (citing

AR Tab 30 at 1169 (Basis of Award)). The government contends “the SSO, in making her

award decision, ‘examined the relevant data and articulated a rational connection between the

facts found and the choice made.’” Id. at 30 (citations omitted).

Plaintiff first argues, based on its claims the Agency should have disqualified Harkcon

from competition, “the foregoing errors necessarily render the Agency’s conclusion . . . arbitrary

[and] capricious . . . because an award decision cannot rest on a materially flawed evaluation.”

Pl.’s MJAR at 30 (citations omitted). Plaintiff’s argument depends on the Court finding error

with the Agency’s evaluation of Harkcon and failure to disqualify Harkcon from competition.

See id. at 30–31 (arguing the Agency’s best value determination was arbitrary and capricious

because the Agency should have disqualified Harkcon). Since the Court finds no error with the

Agency’s evaluation of or its refusal to disqualify Harkcon, the Agency’s best value

determination accordingly did not err on those grounds. See supra Sections VI.A–B, VII-IX; see

infra Section XI. “It is well-established that contracting officers have a great deal of discretion

in making contract award decisions, particularly when, as here, the contract is to be awarded to

the bidder or bidders that will provide the agency with the best value.” Banknote Corp. of Am.,

Inc. v. United States, 365 F.3d 1345, 1355 (Fed. Cir. 2004) (citations omitted).

Plaintiff next argues the Agency’s selection of Harkcon’s proposal as presenting the best

value was arbitrary because “the Agency overemphasized Harkcon’s experience and minimized

AMSG’s experience, . . . highlight[ing] Harkcon’s experience without any discussion about the

substance of that experience or its relevance to this contract.” Pl.’s MJAR at 32. In the basis of

award document, the Agency highlighted plaintiff’s strong performance as the incumbent. For

example, the contracting officer highlighted plaintiff’s “[program manager] incumbency ensures

that they have established relationships with key stakeholders, a comprehensive understanding of

the Performance Work Statement (PWS) and proven management capabilities.” AR Tab 30 at

1163 (Basis of Award). Further, plaintiff noted at oral argument the Agency’s technical

- 30 -

evaluation of plaintiff—which the contracting officer expressly adopted, see AR Tab 30 at 1162

(Basis of Award)—highlighted plaintiff’s “use of historical knowledge to support OST/HRP

specifically in scheduling medical and psychological appointments reflects an in-depth

understanding of the unique needs and processes involved.” Tr. at 96:5–9; see AR Tab 30 at

1172 (Basis of Award) (assigning plaintiff a strength for the quoted language regarding

experience). When evaluating Harkcon, the Agency highlighted “Harkcon and its Contractor

Teaming Arrangement (CTA) partners have over 30 years of experience working with NNSA.”

AR Tab 30 at 1165 (Basis of Award). Plaintiff did not dispute “there is some benefit of that

level . . . of having some experience with NNSA.” Tr. at 95:5–7 (“[PLAINTIFF]: . . . I’m not

disputing that there is some benefit of that level . . . of having experience with NNSA.”). Even if

thirty years of experience contracting with the Agency did not speak for itself, the Agency

explained in its technical evaluation Harkcon’s “30+ years of working with DOE/NNSA bring in

comprehensive understanding of OST’s mission. PEC has staff currently collocated and working

at OST HQ, TSTS, AOWC, AOCC, and AOEC. Between the three companies, the team

collectively possesses current presence at all OST operating locations, familiarity with PWS

scope within NNSA/OST, and an understanding of OST mission/operational battle rhythm.” AR

Tab 30 at 1184 (Basis of Award). The Agency reviewed both plaintiff’s and Harkcon’s

experience in detail, and the Agency’s award to Harkcon in view of relevant experience reflected

a “rational . . . consideration of relevant factors. Advanced Data Concepts, Inc. v. United States,

216 F.3d 1054, 1058 (Fed. Cir. 2000) Given the arbitrary and capricious standard requires the

Court “to sustain an agency action evincing rational . . . consideration of relevant factors,” id.,

and given the Agency demonstrated rational reasoning and consideration of plaintiff’s and

Harkcon’s past experience, the Court determines the Agency’s evaluation of plaintiff’s and

Harkcon’s past experience was not arbitrary and capricious.

Plaintiff further argues the Agency’s best value determination was arbitrary and

capricious because “the SSA failed to consider the substantive differences between the Harkcon

and [plaintiff] quotations” and “reduced the competition to price.” Pl.’s MJAR at 31. The

solicitation stated “[t]he Government intends to award an Order to the Vendor whose quotation

represents the best value to the Government based on the Government’s evaluation of four (4)

factors (in descending order of importance): (1) Technical Narrative/Approach; (2) Staffing

Approach; (3) Key Personnel Resume; and, (4) Past Performance.” AR Tab 9 at 164

(Solicitation RFQ). It also provided “[t]he non-price factors (Technical Narrative/Approach;

Staffing Approach; Key Personnel Resume; and, Past Performance), when combined, are

significantly more important than Price.” Id. Although the solicitation placed importance on

price, it explained “the Government will not make an award at a price premium it considers

disproportionate to the benefits associated with the evaluated non-price superiority of one vendor

over another. To the extent that the vendors’ non-price factors are evaluated as close or similar in

merit, Price is more likely to be the determining factor.” Id. at 164–65.

The Agency assigned adjectival evaluation ratings for each non-price factor to both

Harkcon and plaintiff’s proposals. See AR Tab 30 at 1161–62 (Basis of Award). The Agency

assigned both Harkcon and plaintiff “exceptional” ratings for factors 1 through 3, and a “pass”

rating for factor 4. Id. Each was also assigned a number of strengths for particular positive

attributes in their proposal: plaintiff was assigned twenty-one strengths and Harkcon was

- 31 -

assigned fifteen. See AR Tab 30 at 1171–91 (Agency Technical Evaluations). At oral argument,

plaintiff agreed these strengths “are documented in the technical evaluation report.” Tr. at

112:24–25. These technical evaluations were attached to the Basis of Award document, and the

contracting officer expressly “concur[ed] in and independently adopt[ed]” those evaluations. AR

Tab 30 at 1162 (Basis of Award). Ultimately, the Agency determined: “Harkcon’s quotation

offered the best value to the government, providing the required services at a $1,247,405.00, or

11.9%, lower price than AMSG while ensuring the same very high probability of successful

performance. While Harkcon’s and AMSG’s quotations each had unique attributes under the

non-price factors, none of the unique attributes or strengths of AMSG’s proposal (individually,

or combined) would justify an additional 11.9% price premium.” Id. at 1169. The Agency

contracting officer’s statement it performed an “independent review and judgement of the

. . . evaluation,” id., is entitled to a strong presumption of good faith. See Am-Pro Protective

Agency v. United States, 281 F.3d 1234, 1239 (Fed. Cir. 2002). The Federal Circuit has also

stated adjectival ratings “are not subject to a mathematical calculation.” Glenn Def. Marine

(ASIA), PTE Ltd. v. United States, 720 F.3d 901, 909 n.6 (Fed. Cir. 2013). After fulsome

technical evaluations which were adopted into the contracting officer’s analysis, the Agency was

within its discretion to assign an “excellent” rating to each of Harkcon and plaintiff’s proposals

despite the disparity in the number of strengths assigned to each proposal. See E.W. Bliss Co. v.

United States, 77 F.3d 445, 449 (Fed. Cir. 1996) (noting matters such as technical ratings

“involve discretionary determinations of procurement officials that a court will not second

guess”) (citations omitted). Since the arbitrary and capricious standard is “highly deferential,” a

reviewing court must “sustain an agency action evincing rational reasoning and consideration of

relevant factors.” Adv. Data Concepts, 216 F.3d at 1058 (citing Bowman, 419 U.S. at 285

(1974)). The Agency’s long technical evaluations, incorporated into the Basis of Award

analysis, show consideration of relevant factors, including the technical strengths of each

proposal. See AR Tab 30 at 1171–91 (Agency Technical Evaluations).

As this Court has observed, “[t]he process of making a ‘best value’ decision is not merely

an exercise in adding up strengths and weaknesses, but a comprehensive comparative analysis

that necessarily is influenced by the procurement official’s expertise.” Coastal Int’l Sec., Inc. v.

United States, 93 Fed. Cl. 502, 550–51 (2010) (citing Galen Med. Assocs. v. United States, 369

F.3d 1324, 1330 (Fed. Cir. 2004)). The solicitation is explicit “[t]o the extent vendors’ non-price

factors are evaluated as close or similar in merit, Price is more likely to be the determining

factor.” AR Tab 9 at 165 (Solicitation RFQ). Accordingly, the Agency was within its discretion

to make its best-value determination “with price serving as the decisive factor due to identical

ratings for the two Vendors on all non-price factors.” AR Tab 30 at 1169. Given Harkcon’s

proposal was rated equally to plaintiff’s proposal at a cost discount of more than $1.2 million, the

Court finds the Agency’s best value determination was reasonable and in accordance with the

government’s “discretion in making contract award decisions, particularly when, as here, the

contract is to be awarded to the bidder . . . that will provide the agency with the best value.”

Banknote, 365 F.3d at 1355.

Plaintiff compares this case to Firstline Trasp. Sec. Inc. v. United States, 100 Fed. Cl.

359, 373 (2011), in which this court held the Source Selection Evaluation Board’s (“SSEB”)

contract award to a lower-cost bidder was arbitrary because the SSEB “failed to conduct a proper

best-value analysis.” See Tr. at 104:17–21. The SSEB acknowledged FirstLine, the higher-cost

- 32 -

bidder, “had the ‘better proposal,’” and assigned higher adjectival ratings to its proposal, but

awarded the contract to the lower-cost bidder anyway. Firstline, 100 Fed. Cl. at 375–76 (“The

difference between the ratings assigned to the proposals was one level for Factors 2 through 4

[Redacted] and two levels for Factor 5 [Redacted] all in favor of FirstLine.”) (citations omitted).

Additionally, “the FirstLine proposal had thirty-three strengths and not a single

weakness . . . while [lower-cost bidder]’s proposal had just one strength and one weakness.” Id.

(citations omitted). Ultimately, this court held “the SSEB largely ignored the chasm between the

number of strengths assigned to the proposals” and “failed to account for the significant

differences between the competing proposals with respect to technical quality.” Id. at 376–77.

The court held “the SSEB’s analysis and the subsequent award of the . . . contract to intervenor

was arbitrary, capricious, and not in accordance with law.” Id. at 379 (citations omitted). Here,

Harkcon and plaintiff both received identical adjectival ratings. See AR Tab 30 at 1161–1162

(Basis of Award). In FirstLine, the lower-cost bidder was at a net disadvantage of five levels.

See 100 Fed. Cl. at 375–76. Further, Harkcon received 15 strengths and plaintiff received

twenty-one, a difference of forty percent. See AR Tab 30 at 1171–91 (Agency Technical

Evaluations). In FirstLine, the strength differential was a stunning 330%. See 100 Fed. Cl. at

376. The significant gap between the evaluation differentials in FirstLine and in this case

demonstrates FirstLine is inapposite. Here, the relative technical similarity of Harkcon and

plaintiff’s proposals ensures the Agency’s selection decision falls within the “great deal of

discretion in making contract award decisions, particularly when . . . the contract is to be

awarded to the bidder or bidders that will provide the agency with the best value.” See

Banknote, 365 F.3d at 1355. The Court will therefore not second guess the Agency’s best value

determination. Impresa, 238 F.3d at 1332–33.

XI. Whether Harkcon May Compete for the Contract as a TEPS III BPA Holder

A. What the Solicitation Requires Regarding BPA Holders

Plaintiff next argues “Harkcon is not eligible to compete in this

procurement, . . . because[] Harkcon does not hold a TEPS III BPA.” Pl.’s MJAR at 33. The

solicitation states “[t]he Government intends to award a Task Order to the prospective

Enterprise-Wide Technical, Engineering, and Programmatic Support Services III Blanket

Purchase Agreement [(‘TEPS III BPA’)] Schedule holder whose quote represents the best

value.” AR Tab 10c at 378 (Solicitation Instructions). The TEPS III BPA ordering guide

defines “BPA Holder” as “the CTA Leader or Prime Contractor (if a CTA is not contemplated).”

AR Tab 51a at 2806 (TEPS III BPA Ordering Guide). Plaintiff argues the solicitation limits

offerors to “BPA Holders,” and Harkcon is only a member of a CTA, not a CTA Leader, so

Harkcon cannot compete for the contract. Pl.’s MJAR at 34.

A BPA is “an ordering vehicle which makes . . . issuance of orders a more simple

process.” Tr. at 114:10–12. A BPA functions as “an agreement between the [g]overnment and a

contractor to allow repetitive orders during a specified time period.” Tr. at 114:13–16. BPAs

are not contracts; rather, they are “appropriately characterized as frameworks for future

contracts—‘a set of ground rules as it were, and no obligations are assumed by either party until

orders are given by the [g]overnment and accepted by the contractor.’” Crewzers Fire Crew

- 33 -

Transp., Inc. v. United States, 741 F.3d 1380, 1381 (Fed. Cir. 2014) (quoting Modern Sys. Tech.

Corp. v. United States, 979 F.2d 200, 204 (Fed. Cir. 1992)); see also Zhengxing v. United States,

204 Fed. App’x 885, 886–87 (Fed. Cir. 2006) (“The BPA at issue, however, is merely a

framework for future contracts and only creates a contractual obligation with regard to accepted

orders.”). BPAs establish particular, knowable terms between contractors in the government,

such as “invoicing, discounts, requirements (e.g., estimated quantities, work to be performed),

delivery locations, and time,” FAR 8.405-3(a)(4), to be used as a preexisting framework for

future contracts, see Crewzers, 41 F.3d at 1381. In this way, BPAs act as “a funnel to narrow

down the type of contractors” so the government can easily negotiate and place orders. Tr. at

132:6–9.

A Contractor Team Arrangement (“CTA”) is a related agreement “in which two or more

GSA Schedule contractors work together to meet ordering activity needs.” AR Tab 51a at 2806

(TEPS III BPA Ordering Guide). A CTA is made up of a “CTA Leader” and “CTA Members.”

Id. “CTA Leaders have been awarded BPAs and have privity of contract with the federal

government.” Id. at 2808. “Each CTA Leader has their own BPA Award number, and each CTA

Team Member will sign an agreement with the Team Leader.” Id. “The [g]overnment will have

privity of contract with each business within the teams—allowing the government to engage

small businesses directly rather than just through the CTA Leader.” Id. Functionally, a CTA

allows all of its team members to utilize a BPA between its leader and the federal government as

if all of the team members had a BPA directly with the government. Id. (“In a CTA, a Team

Member has the ability to enter into an Order with the Government, as a prime contractor,

utilizing its own GSA Schedule, labor categories and rates. Under DOE/NNSA’s TEPS III BPA,

CTA Leaders have been awarded BPAs and have privity of contract with the Government. CTA

Members have also signed the agreements and have privity of contract with the Government as

well.”). Consequently, CTA “Team Members will not be awarded their own BPAs.” Id. at

2806.

Here, Harkcon is a member of a CTA arrangement led by MELE Associates, which holds

a BPA agreement with the federal government. See AR Tab 51b at 2826 (MELE Associates’

BPA) (listing Harkcon, Inc. as a “Team Member”). Plaintiff insists Harkcon is therefore not a

“BPA holder” because “Harkcon is a member of the MELE Associates CTA, and the MELE

Associates BPA identifies MELE Associates—not Harkcon—as the BPA Holder.” Pl.’s MJAR

at 34.

“Interpretation of the solicitation . . . begin[s] with the plain language of the document.”

Banknote Corp. of Am., Inc. v. United States, 365 F.3d 1345, 1353 (Fed. Cir. 2004). The

solicitation uses both “BPA Holder” and “BPA holder.” See, e.g., AR Tab 10c at 378

(Solicitation Instructions) (emphasis added) (“The government intends to award a Task Order to

the prospective [TEPS III BPA] Schedule holder whose quote represents the best value”)

(emphasis added), 381–82 (“Labor rates must be discounted by at least the BPA Holder’s

minimum discount as stated in its BPA.”). As the government noted at oral argument, “the word

BPA schedule holder is used three times in [the solicitation] . . . when the solicitation is talking

about who it is limited to, it says BPA holder two times, lowercase H.” Tr. at 118:19–22.

“[L]ater on . . . it notes that labor rates must be discounted at least by the BPA, capital H,

Holder’s minimum discount as stated in its BPA.” Tr. at 118:22–25; see AR Tab 9 at 162

- 34 -

(Solicitation RFQ) (“Labor rates must be at least discounted by the BPA Holder’s minimum

discount”). Plaintiff offers no other explanation for the distinction in capitalization conventions.

When interpreting a contract, one must consider it as a whole and interpret it to harmonize and

give reasonable meaning to all its parts. See McAbee Constr., Inc. v. United States, 97 F.3d

1431, 1434–35 (Fed. Cir. 1996). Accordingly, the Court finds, to harmonize these capitalization

distinctions, the solicitation distinguishes between referring to a BPA holder—a business which

can take advantage of a BPA like a CTA member—and a BPA Holder—a BPA team leader

which establishes the BPA framework agreement with the federal government.

Affording capitalization conventions significance in this solicitation accords with the

purpose of the CTA arrangement. The CTA arrangement here is designed to allow “two or more

GSA Schedule contractors [to] work together to meet ordering activity needs.” AR Tab 51a at

2806 (TEPS III BPA Ordering Guide). This arrangement “allow[s] the government to engage

with small businesses directly.” Id. at 2808. A solicitation which limits competition to only a

CTA Leader—when the point of the arrangement is for all members to be able to compete for

contracts under one BPA—would defeat the purpose of the arrangement. See id. (CTAs “allow[]

the government to engage with small businesses directly”). Tellingly, at oral argument, plaintiff

was unable to provide a single reason why the Agency would limit competition for this contract

to CTA Leaders. See Tr. at 121:18–23 (“THE COURT: [Plaintiff], is there any practical reason

why the [solicitation] would be limited to BPA Holders, capital H, instead of simply anyone

falling under a BPA? [PLAINTIFF]: Your Honor, I mean, there’s certainly no documented

reason as to why the agency would have . . . made that limitation.”). When interpreting the

solicitation, the Court “must consider the solicitation as a whole, interpreting it in a manner that

harmonizes and gives reasonable meaning to all of its provisions.” Banknote, 365 F.3d at 1353.

The most harmonizing understanding of the solicitation is for Harkcon to be able to compete for

this contract because a CTA arrangement is designed to “allow[] the government to engage with

small businesses directly.” AR Tab 51a at 2808 (TEPS III BPA Ordering Guide). The

procurement here is set-aside for a “service-disabled veteran-owned small business”

(“SDVOSB”). AR Tab 9 at 79–80 (Solicitation RFQ). MELE Associates is not an SDVOSB,

but Harkcon is. See AR Tab 13b at 608. When Harkcon competes for this contract as part of

MELE Associates’ BPA, the government gains the opportunity for the small, veteran-owned

Harkcon to perform under a BPA where it would not otherwise be individually eligible. See Tr.

at 124:11–13 (“[THE GOVERNMENT: The whole point of a CTA teaming agreement is so that

these smaller businesses can use the bigger business to get these types of contracts.”). It would

destroy the point of these agreements—to “allow[] the government to engage with small

businesses directly”, AR Tab 51a at 2808 (TEPS III BPA Ordering Guide)—if the solicitation

then limited competition to the large companies like MELE Associates leading BPA agreements.

Plaintiff cites no case from any court or agency where a bidder was disqualified because it was a

CTA member rather than a CTA leader. The Court finds the solicitation was limited to

businesses which are able to compete under a TEPS III BPA, but did not limit competition to

only BPA Holders or CTA leaders. All parties agree Harkcon is a member of MELE Associates’

BPA. See Pl.’s MJAR at 34 (“Harkcon is a member of the MELE Associates CTA”); Gov’t’s

Cross-MJAR at 32 (“Harkcon submitted its quotation as a member of a [CTA] relying on MELE

Associates’ TEPS III BPA”). Accordingly, the Court finds Harkcon was eligible for award as a

CTA member under MELE Associates’ TEPS III BPA agreement and satisfied the solicitation

BPA requirement. See E.W. Bliss Co. v. United States, 77 F.3d 445, 449 (Fed. Cir.1996)

- 35 -

(upholding contract award where protestor did not show the government “acted arbitrarily and

capriciously in awarding the contract on the basis of its belief [the awardee’s] proposal included

a [required item]”).

B. What BPA Signatures Were Required of Harkcon

Plaintiff argues, even if Harkcon is a BPA holder, “the TEPS III BPA ordering

procedures preclude Harkcon from submitting a quotation, . . . because Harkcon did not sign the

BPA award document.” Pl.’s MJAR at 33, 35. The TEPS III BPA ordering guide provides “[a]ll

Team Members shall sign the BPA award document as a concurrence in order to have privity of

contract and allow the placement of Orders directly with the” federal government. AR Tab 51a

at 2806 (TEPS III BPA ordering guide). Plaintiff argues Harkcon “can serve as the Order Leader

only if it has ‘sign[ed] the BPA award document.’” Pl.’s MJAR at 35 (alteration in original).

Plaintiff then insists “the only person who signed the BPA standard form 1449” is “[a] MELE

Associates representative.” Id. at 36 (citing AR Tab 51b at 2822) (MELE Associates’ BPA).

The failure to sign the BPA award document, plaintiff argues, “render[s Harkcon] ineligible to

compete under the terms of the BPA.” Id. at 37. The government points to Harkcon’s signed

“BPA Agreement Form,” a document signed prior to BPA award, and argues that agreement

satisfied the requirement to sign the BPA award. Gov’t’s Cross-MJAR at 34.

First, plaintiff asserts “the BPA required Harkcon to sign the BPA award document to

have privity of contract with the Government and . . . Harkcon did not meet that requirement,

rendering it ineligible to compete under the terms of the BPA.” Pl.’s MJAR at 37; see also Tr. at

135:22–25 (“[PLAINTIFF]: [F]or purposes of an order under a BPA, there is no privity

. . .unless the prime offeror . . . has attested to and executed the BPA award.”). The TEPS III

BPA ordering guide provides “[a]ll Team Members shall sign the BPA award document as a

concurrence in order to have privity of contract and allow the placement of Orders directly with

the federal government.” AR Tab 51a at 2806 (TEPS III BPA ordering guide). All parties

agreed at oral argument, however, Harkcon already has privity of contract with the federal

government through Harkcon’s Federal Supply Schedule (“FSS”) contract. See Tr. at 134:17–20

(“[PLAINTIFF]: “. . . [W]e don’t dispute that they have an FSS contract and that creates privity

of contract with the Government through the FSS contract generally.”); Tr. at 127:20–21 (“[THE

GOVERNMENT]: [Harkcon] has privity of contract with the Government through its GSA FSS

schedule.”); see also Tr. at 128:4–7 ([THE GOVERNMENT]: “It does not need to be signed by

Harkcon because Harkcon already has privity with the Government through its FSS schedule.”)

Accordingly, to the extent Harkcon was required to sign the BPA award document to establish

privity of contract with the government, Harkcon has already established the requisite privity

through its FSS contract.

Second, to the extent Harkcon was required to sign the BPA award document, Harkcon

signed a document titled “BPA Agreement Form” prior to the award of MELE Associates’ BPA.

See AR Tab 54a at 2888 (Harkcon BPA Agreement Form). That agreement specifies “the

Contractor agrees to the following terms of a BPA EXCLUSIVELY WITH U.S. Department of

Energy, National Nuclear Security Administration.” Id. (emphasis omitted). Every other

member of MELE Associates’ BPA signed the same document, as did every member of

AMSG’s BPA. See generally AR Tab 54a (MELE Associates’ BPA Agreement Forms); AR

- 36 -

Tab 54b (AMSG’s BPA Agreement Forms). Aside from a blank “BPA Number” space at the

top of the document—marked with an asterisk stating the blank is “to be completed at BPA

Award”—the agreement form is complete. See AR Tab 54a at 2888 (Harkcon BPA Agreement

Form). This signed agreement bound Harkcon to the terms of MELE Associates’ BPA. See id.

Further, the AR shows the AMSG CTA members, including AMSG, have BPA agreement forms

which match Harkcon’s, including an unfinished blank for the BPA number at the top-left of the

agreement. See generally AR Tab 54b (AMSG BPA Agreement Forms) (showing all seven BPA

agreement forms were signed in May 2022 and lack a BPA number on the assigned blank line).

The form plaintiff argues Harkcon must sign, standard form 1449, has only one place for a

contractor signature, which is taken up by a representative of MELE Associates, the CTA lead.

See AR Tab 51b at 2822 (MELE Associates’ BPA). When asked where Harkcon—or any of the

other members of MELE Associates’ BPA for that matter—are meant to sign that document as

plaintiff argues, plaintiff could only speculate “there could have been . . . either additional forms

that are included, or it could have been this BPA agreement form.” Tr. at 133:8–11; see also Tr.

at 151:16–17 (“[INTERVENOR:] There’s only room for one signature.”). No additional forms

on which Harkcon could sign onto the standard form are in the administrative record, nor does

plaintiff point to any place in the administrative record to show such forms exist. Counsel for

plaintiff was unsure whether the members of plaintiff’s CTA had signed the standard form, and

plaintiff’s full BPA is not in the record. See Tr. at 148:14–20 (“THE COURT: Does [plaintiff]

have other CTA members? [PLAINTIFF]: . . . I believe . . . it does, Your Honor. THE

COURT: And did they also sign your award? [PLAINTIFF]: . . . I don’t know. . . . I don’t

believe that the full BPA award document [is in the record].”). The administrative record,

therefore, does not support plaintiff’s argument Harkcon is required to sign the standard form

1449 to establish privity of contract with the government. The remaining option offered by

plaintiffs, “the BPA agreement form,” Tr. 133:8–11, is exactly what Harkcon signed, see AR

Tab 54a at 2888 (Harkcon BPA Agreement Form). This is the same document every other

member of both MELE Associates’ and AMSG’s BPA also signed. See AR Tab 54a (MELE

Associates’ BPA Agreement Forms); Tab 54b (AMSG BPA Agreement Forms). Multiple places

in the administrative record also demonstrate Harkcon is considered a part of MELE Associates’

BPA. See AR Tab 51b at 2827 (MELE Associates’ BPA) (listing Harkcon, Inc. as a team

member); AR Tab 3 at 11 (TEPS III BPA CTA Team Composition Matrix) (listing Harkcon

under MELE Associates’ BPA). The administrative record therefore contains ample evidence

Harkcon satisfied the requirements to become a CTA member under MELE Associates’ BPA by

signing the BPA agreement form. On the other hand, it lacks evidence to support plaintiff’s

argument Harkcon was required, in some unknown way, to sign MELE Associates’ standard

from 1449. Plaintiff is also unable to point the Court to any case from any court or agency where

an offeror was disqualified for failing to sign a particular document related to a BPA. See Tr. at

138:4–9 (“THE COURT: Can you point the Court to any case where a bidder was disqualified

for not signing a particular BPA document? [PLAINTIFF]: We have not seen a particular case

specific to a BPA.”). The Court finds Harkcon’s signature on the BPA Agreement form, AR Tab

54a at 2888, satisfied the requirement that “Team Members shall sign the BPA award

document,” AR Tab 51a at 2826 (TEPS III BPA Ordering Guide). Harkcon is therefore able to

utilize MELE Associates’ BPA to compete for this award, and has not “fail[ed] to conform” to

the “material terms” that a bidder be a member of a TEPS III BPA. E.W. Bliss Co., 77 F.3d at

448–49 (upholding contract award where protestor did not show the government “acted

- 37 -

arbitrarily and capriciously in awarding the contract on the basis of its belief [the awardee’s]

proposal included a [required item]”).

XII. Whether Plaintiff is Entitled to a Permanent Injunction

Lastly plaintiff argues it is entitled to a permanent injunction. Pl.’s MJAR at 38–39.

“Before granting injunctive relief, [a] trial court ‘must consider whether (1) the plaintiff has

succeeded on the merits, (2) the plaintiff will suffer irreparable harm if the court withholds

injunctive relief, (3) the balance of hardships to the respective parties favors the grant of

injunctive relief, and (4) the public interest is served by a grant of injunctive relief.’” Oak Grove

Techs., LLC v. United States, 116 F.4th 1364, 1375 (Fed. Cir. 2024) (quoting Centech Grp., Inc.

v. United States, 554 F.3d 1029, 1037 (Fed. Cir. 2009)). At oral argument, plaintiff agreed if it

does “not win on the merits then the Court [does] not have to address any of the [other]

permanent injunction factors.” Tr. at 152:12–18 ([PLAINTIFF]: Yes. If Your Honor . . . rules

against AMSG on every issue, then we would not have succeeded on the merits, which would be

a requirement to get injunctive relief.”). According to the first factor, plaintiff is not entitled to

injunctive relief because plaintiff does not prevail on the merits, as laid out in the foregoing

analyses. The Court therefore need not evaluate plaintiff’s arguments on irreparable harm, the

balance of hardships, or the public interest, and must deny plaintiff’s request for permanent

injunctive relief. See Info. Tech. & Apps. Corp. v. United States, 51 Fed. Cl. 340, 357 n.32

(2001) (“Absent success on the merits, the other factors are irrelevant.”), aff’d, 316 F.3d 1312

(Fed. Cir. 2003).

XIII. Conclusion

For the foregoing reasons, the Court DENIES plaintiff’s Motion for Leave to Conduct

Limited Discovery and to Supplement the Administrative Record, ECF No. 22, GRANTS the

government’s Cross-Motion for Judgment on the Administrative Record, ECF No. 28, GRANTS

intervenor’s Cross-Motion for Judgment on the Administrative Record, ECF No. 26, and

DENIES plaintiff’s Motion for Judgment on the Administrative Record, ECF No. 23. The Clerk

is directed to enter judgment accordingly.

IT IS SO ORDERED.

s/ Ryan T. Holte

RYAN T. HOLTE

Judge

- 38 -