Accelgov, LLC v. United States

In the United States Court of Federal Claims

ACCELGOV, LLC,

Plaintiff,

v.

No. 25-16781

THE UNITED STATES, (Filed: March 17, 2026)

Filed under seal: February 24,

Defendant,

2026

and Reissued: March 17, 2026

ARGUS SECURE TECHNOLOGY LLC,

Defendant-Intervenor.

W. Brad English, Emily J. Clancey, Taylor R. Holt, & Hunter M. Drake, Maynard Nexsen, PC,

Huntsville, AL, for Plaintiff.

Vijaya Surampudi, Civil Division, U.S. Department of Justice, Washington, D.C., and Wilmary

Bernal & Michael Janson, Office of General Counsel, U.S. Federal Communications

Commission, Washington, D.C., for Defendant.

Robert J. Sneckenberg & James G. Peyster, Crowell & Moring LLP, Washington, D.C., for

Defendant-Intervenor.

OPINION AND ORDER

LERNER, Judge.

I. Introduction

Plaintiff AccelGov, LLC (“AccelGov”) brings this post-award bid protest challenging a

contract award by the U.S. Federal Communications Commission (“FCC” or “Agency”) to

Defendant-Intervenor Argus Secure Technology LLC (“Argus”) for Cybersecurity Support

Services. Am. Compl. ¶¶ 1–3, 21–35, ECF No. 37. Plaintiff moved for a preliminary injunction,

and after consolidating briefing on that motion with the merits, the parties filed cross-motions for

judgment on the administrative record. ECF Nos. 3, 29, 36, 38, & 39. The FCC found

Plaintiff’s proposal of [***] Information System Security Officers (“ISSOs”) to be a “severe

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This Opinion was filed under seal on February 24, 2026. ECF No. 55. The parties jointly

proposed redactions. ECF No. 57. Accordingly, the Court reissues this Opinion with the agreed

upon redactions, which are noted with bracketed asterisks ([***]).

underestimation of the resource allocation required for this contract.” Tab 50 at Admin. R.

(“AR”) 2773. Because Plaintiff fails to show that the Agency impermissibly weighed this

finding or that the best-value analysis was flawed, its Motion for Judgment on the Administrative

Record is DENIED, and Defendant’s and Defendant-Intervenor’s Cross-Motions for Judgment

on the Administrative Record are GRANTED.

II. Background

A. Solicitation

On July 29, 2025, the FCC issued Request for Quotations (“RFQ” or “Solicitation”) No.

273FCC25Q0012 pursuant to Federal Acquisition Regulations (“FAR”) Subpart 8.4. Tab 9 at

AR 69, 124. The Solicitation sought Cybersecurity Support Services (“CSS”) for the FCC

Office of the Chief Information Officer from small-business bidders holding contracts under the

General Service Administration’s (“GSA’s”) Highly Adaptive Cybersecurity Services Multiple

Award Schedule. Tab 19c at AR 343; Tab 32a at AR 542. The deadline for proposals was

August 27, 2025. Tab 32a at AR 543.

The primary objective was to “transition the FCC from a traditional Cybersecurity

Service model to a Managed Cybersecurity Services model to safeguard the FCC’s critical

information infrastructure.” Tab 19c at AR 343. The winning bidder would need to (1) reduce

exposure to cyber risk; (2) ensure priority response and recovery to cyber threats/incidents; (3)

maintain shared situational awareness of cyber threats, vulnerabilities, and incidents; and (4) use

trustworthy cyber protocols, products, services, configurations, and architectures. Id. The FCC

planned to award a firm fixed price task order on a best value basis, with a six-month base

period, four twelve-month optional periods, and one six-month optional period. Id. at AR 344;

Tab 32a at AR 542.

The RFQ was a consolidation of two prior contracts with the FCC: the Network Security

Operations Contract and the Security Program Support Contract. Decl. of FCC Chief

Information Security Officer Christopher S. Webber (“Webber Decl.”) ¶ 5, ECF No. 24-2. The

consolidated CSS Contract (“Contract”) added new “mission critical cybersecurity initiatives”

such as a round-the-clock Security Operations Center and penetration systems, “[***].” Id. ¶ 9.

These expanded services allow the Agency to search for “[***].” Id. The Contract also

addresses new risks from artificial intelligence (“AI”) software and provides cybersecurity

support for four vendors who operate in a quasi-government capacity on behalf of the FCC. Id. ¶

10.

The Solicitation’s Performance Work Statement (“PWS”) required the contractor to

perform seven major task areas “at a minimum”: (1) Program Management and Control; (2)

Security Operation Center Services; (3) Risk and Vulnerability Assessment; (4) Cybersecurity

Architecture, Engineering, Operations, and Maintenance; (5) Governance and Risk Management

(optional for base period); (6) Cybersecurity Assurance (optional for base period); and (7)

Cybersecurity Critical Incident Support (optional). Tab 19c at AR 344. The Solicitation advised

that the contractor “must maintain a sufficient staff and coverage on a continuous basis,

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includ[ing] uninterrupted 24x7x365 day support for all tasks identified in this PWS . . . .

Maintaining a reliable, stable workforce is essential to consistent coverage, and the fulfillment of

all tasks under the contract.” Id. at 346.

At issue in this protest are staffing proposals for work falling under Task Areas 1, 2, and

6. For Task Area 1, Program Management and Control, the PWS asked bidders to provide a

staffing plan including a “highly qualified team” who “must be available 24/7/365, to address

any requirements or emergencies, including cyber events, thereby maximizing the FCC’s value.”

Id. at 354. Bidders were also required to provide a “Continuous Monitoring Strategy” for

“continuous monitoring and compliance management to ensure the integrity and security of IT

systems.” Id.

Under Task Area 2, Security Operation Center Services, the PWS required “Incident

Assessment and Response Support.” Id. at 360–61. The FCC expected the winning contractor to

“work with the [Office of the Chief Information Officer] and any other pertinent parties

(including external vendors) at any FCC location to recover from any incident. . . . Any incident

requiring a response team to respond is expected to be able to respond within 15 minutes of

notification.” Id. at 360. This work would “be done in coordination with external service

providers, FCC system owners, system administrators, and Information System Security Officers

(ISSOs), as appropriate.” Id. The PWS did not explicitly label the title for this role, but in

evaluations, the Agency referred to the role as an Incident Response Analyst, or “IR Analyst.”

See Tab 69 (Contracting Officer Award Decision Memo) at AR 2984–85, 2989, 2993.

Task Area 6, the Cybersecurity Assurance program, “maintains and manages the security

posture of each IT system within defined portfolios.” Tab 19c at AR 370. As part of this

program, the contractor would provide myriad services, including “IT FISMA System Portfolio

Management” and “Cybersecurity Risk Management & Planning.” Id. Risk management

included a “Risk Management Framework (RMF),” which “promotes the concept of near

real-time risk management and ongoing information system authorization through the

implementation of continuous monitoring processes.” Id.

The contractor was required to provide ISSOs “with the knowledge, skills, abilities, staff

support, and other related resources necessary to conduct the following RMF related services:

Prepare [the FCC to manage its security and privacy risks]; Categorize Information Systems;

Select Security Controls; Implement Security Controls; Authorize Information System[s];

Monitor Security Controls”; and “Other RMF Related Services.” Id. at 371. A separate

subsection of Cybersecurity Assurance, titled “Information Security System Officer (ISSO),”

listed the following eleven ISSO responsibilities:

• Serve as primary liaise between the FCC Cybersecurity Group, Information

System Owner (SO), Enterprise Common Control Provider (ECCP), and

Information Owner for coordination and dissemination of information on

technical security and risk-related matters.

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• Verify applications and support systems are meeting information security

policies, including continuous vulnerability scans, patch management, and

configuration management.

• Ensure compliance with requirements concerning the use of commercial and

open-source software through the FCC OCIO Governance Boards.

• Assist with reporting and investigating information security incidents to the

Cybersecurity Group Security Operations Center (SOC) and gather pertinent

information or provide requested services in support of incident handling.

• Identify the security categorization and control selection of the information

system to determine the potential adverse impact in the event of a security

breach following the established methodology for execution of these activities,

stipulated in the FCC’s Risk Management Framework Program methodology

document.

• Coordinate with stakeholders to document and implement standard controls for

existing ECCPs and facilitate discussions with Program Areas to maintain and

expand standard control providers, as needed.

• Coordinate Initial Privacy Assessments (IPAs) and Privacy Impact

Assessments (PIAs).

• Perform real-time monitoring of assigned information systems through

dashboarding capabilities to support continuous monitoring.

• Drafts, reviews, and updates information system continuous monitoring plans

based on changes in risk, control selection, laws, executives’ orders, and

guidelines.

• Review tiered information security reports for the information system and

participate in briefings with the system owner, Chief Information Security

Officer (CISO), and Authorizing Officials, including the Chief Information

Officer (CIO).

• Regularly review the FCC security posture and prepare status update Security

Posture Report with adjusted metrics.

Id. at 375.

The Solicitation stated that bids “must adhere” to the Federal Information

Security Modernization Act of 2014 (“FISMA”), the Government Performance and

Results Act of 1993, and the Clinger-Cohen Act of 1996. Id. at 377. It also listed

applicable standards and restrictions, including the U.S. Office of Management and

Budget (“OMB”) Circular A-130 and the National Institute of Standards and Technology

(“NIST”) Special Publication (“SP”) 800-30, Revision 1. Id.

Bidders asked the Agency to clarify the number of applications “being

continuously monitored under the FISMA/RMF guidelines.” Tab 19e at AR 399. The

FCC responded that “[n]o more than 30 FISMA information system boundaries are

expected to be monitored including general support systems (GSSs) and major

applications. There are also approximately 30 minor applications - software and services

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hosted by or otherwise included in information system boundaries.” Id. The “system

boundary”—interchangeable with the term “authorization boundary”—is discussed by

both the NIST and by OMB Circular A-130, which defines it as “[a]ll components of an

information system to be authorized for operation by an authorizing official. This

excludes separately authorized systems to which the information system is connected.”

Off. of Mgmt. & Budget, Circular A-130, Managing Information as a Strategic Resource

27 (2016); see also Nat. Inst. of Standards & Tech., Spec. Publication 800-30 rev. 1 App.

B B-6 (2012) (defining “Information System Boundary” as “Authorization Boundary”).

B. Evaluation and Award

The FCC stated it would award a task order “on a tradeoff, best value basis.” Tab 19a at

AR 336. The Solicitation listed five evaluation factors: Factor 1—Security Requirements; Factor

2—Technical Approach; Factor 3—Management Approach; Factor 4—Past Performance; and

Factor 5—Price. Id. at 332–35. The first four factors were considered “technical factors” and

listed in descending order of importance. Id. at 332. In determining which quote offered the best

value, the FCC said it “may make tradeoffs between price and non-price factors.” Id. at 336.

When combined, the technical factors were considered significantly more important than price.

Id. at 332.

Factor 1 evaluated the offerors’ security clearance on a Pass/Fail basis. Id. Factor 4, Past

Performance, awarded ratings of “Satisfactory Confidence,” “No Confidence,” or “Unknown

Confidence (Neutral).” Id. at 335. Factor 2, Technical Approach, and Factor 3, Management

Approach, used the following ratings:

High Confidence—The Government has high confidence that the offeror

understands the requirement, proposes a sound approach, and will be successful in

performing the work with little or no Government intervention.

Some Confidence—The Government has some confidence that the offeror

understands the requirement, proposes a sound approach, and will be successful in

performing the work with some Government intervention.

Low Confidence—The Government has low confidence that the offeror

understands the requirement, proposes a sound approach, or will be successful in

performing the work even with Government intervention.

Id. at 332.

The Solicitation stated that “[a]ny subfactor within a specific technical factor are [sic] of

equal importance.” Id. Factor 3, Management Approach, was judged on the management

approach for “review and reporting documentation,” as well as the following seven subfactors:

1. Recruitment and Staffing Plan – The effectiveness of the Offeror’s

proposed method for recruiting, retaining, and backfilling personnel with sufficient

expertise and appropriate certifications (e.g., cybersecurity, Project Management),

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including how the Offeror will ensure continuity of operations and minimize

service disruption.

2. Resource Allocation – Approach to resource allocation, ensuring that

critical functions are always covered, especially during peak times or in emergent

situations.

3. Key Personnel – The qualifications, experience, and alignment of

proposed key personnel to critical roles necessary to meet the project objectives,

including their technical and professional certifications (e.g., cybersecurity, Project

Management) relevant to performing tasks [sic] areas under the task order.

4. Organizational Structure – The clarity and appropriateness of the

organizational structure, including lines of authority, communication flow,

coordination across task areas, and organizational certifications (e.g.[,] CMMI,

ISO).

5. Proposed models, processes, tools, and dashboards for achieving

efficiencies and improvements in cybersecurity processes, including the use of

performance metrics and measures to substantiate claims of enhanced productivity

or effectiveness, such as an approach for achieving an effective level in all

applicable FISMA metrics.

6. Project management: Approach for aligning project objectives and

requirements, including how well the agile implementation roadmap articulates the

project’s vision, direction, and iterative progress within the proposed Agile

framework.

7. Approach for transitioning the FCC from a traditional Cybersecurity

Service model to a managed cybersecurity services model that achieves a reduction

in exposure to cyber risk; ensures priority response and recovery to cyber threats

and incidents; maintains shared situational awareness of cyber threats,

vulnerabilities, and incidents; and uses trustworthy cyber protocols, products,

services, configurations, and architectures.

Id. at 334.

Sixteen bidders submitted timely proposals in response to the Solicitation, including

AccelGov. Tab 68 at AR 2967. A Technical Evaluation Team (“TET”) conducted technical

evaluations of each offer and documented the results in consensus reports alongside a Technical

Evaluation Report and Award Recommendation. Id. The TET rated the bidders as follows:

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The Contract was awarded to Argus on September 23, 2025. Tab 71a at AR 3005.

C. Procedural History

AccelGov requested post-award briefing from the CO. Def.’s Mot. for J. on Admin. R.

(“Def.’s MJAR”) at 12, ECF No. 39. The CO replied with a brief explanation and a copy of

Plaintiff’s technical consensus report. Id. Plaintiff filed its Complaint and a Motion for

Preliminary Injunction on October 8, 2025. Compl, ECF No. 1; Mot. for Prelim. Inj., ECF No.

3. Argus moved to intervene on the same day, which the Court granted on October 9, 2025.

ECF No. 13.

Plaintiff requested consolidation of its Motion for Preliminary Injunction with

cross-motions for judgment on the administrative record. See Joint Status Report at 1–2, ECF

No. 27. However, due to an ongoing federal government shutdown, Defendant objected, citing

the “extremely limited staffing resources to compile and file even the relevant portions of the

whole record.” Id. at 4–7. The Court entered a scheduling order for briefing on the Motion for

Preliminary Injunction alone. ECF No. 16.

On November 13, 2025, after the government shutdown ended, Plaintiff filed a Motion to

Consolidate the briefing on a preliminary injunction with the merits, to which Defendant and

Defendant-Intervenor took no position. Mot. to Consolidate at 3, ECF No. 28. The Court

granted the Motion and issued a schedule for the parties’ Motions and Cross-Motions for

Judgment on the Administrative Record. ECF No. 29. Oral argument was held on February 12,

2026. The motions are fully briefed and ripe for review. See Pl.’s Mot. for J. on Admin. R.

(“Pl.’s MJAR”), ECF No. 36; Def.’s MJAR; Def.-Intervenor’s Mot. for J. on Admin. R.

(“Def.-Int.’s MJAR”), ECF No. 38.

III. Jurisdiction and Legal Standards

The U.S. Court of Federal Claims reviews an agency’s contract award under the

standards set forth in the Administrative Procedure Act (“APA”). 28 U.S.C. § 1491(b)(1), (4).

The Court determines whether the Government “acted without rational basis or contrary to law

when evaluating the bids and awarding the contract.” Bannum, Inc. v. United States, 404 F.3d

1346, 1351 (Fed. Cir. 2005).

A bid award may be set aside if either “(1) the procurement official’s decision lacked a

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

Off. Design Grp. v. United States, 951 F.3d 1366, 1371 (Fed. Cir. 2020) (citation omitted). To

find a rational basis, the Court must determine “whether the contracting agency provided a

coherent and reasonable explanation of its exercise of discretion.” Axiom Res. Mgmt., Inc. v.

United States, 564 F.3d 1374, 1381 (Fed. Cir. 2009) (citation omitted). To establish a procedural

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

statutes or regulations.” Id. (citation omitted).

Courts “look for a reasoned analysis or explanation for an agency’s decision as a way to

determine whether a particular decision is arbitrary, capricious, or an abuse of discretion.”

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Wheatland Tube Co. v. United States, 161 F.3d 1365, 1369 (Fed. Cir. 1998) (citations omitted).

But an “explicit explanation is not necessary . . . where the agency’s decisional path is

reasonably discernible.” DynCorp Int’l, LLC v. United States, 10 F.4th 1300, 1315 (Fed. Cir.

2021) (quoting Wheatland Tube Co., 161 F.3d at 1369–70).

“Generally speaking, an agency must evaluate an offeror’s proposal based on the criteria

set out in the solicitation.” Tetra Tech, Inc. v. United States, 137 Fed. Cl. 367, 383 (2017). At

the same time, “an agency still enjoys ‘great discretion in determining the scope of an evaluation

factor.’” Id. (quoting Forestry Surveys & Data v. United States, 44 Fed. Cl. 493, 499 (1999)).

“[W]hen weighing the merits of a proposal under a specific evaluation factor, an agency may

consider all matters that offerors would reasonably have believed to be within the scope of the

factor.” Id. (quoting Forestry Surveys & Data, 44 Fed. Cl. at 497).

In addition to establishing agency error under the APA, a disappointed bidder must

demonstrate that it was significantly prejudiced by that error. Bannum, Inc., 404 F.3d at 1351.

A bidder is significantly prejudiced if “there was a substantial chance it would have received the

contract award but for” the agency’s errors. Id. at 1353 (citation modified).

IV. Discussion

A. The FCC Gave Equal Importance to All Subfactors.

AccelGov argues the FCC “deviated from the Solicitation because it did not weigh Factor

3’s [subfactors] equally.” Pl.’s MJAR at 8–10. It highlights the four subfactors in which it

earned only positive findings and points out that even though it earned a negative finding in

Resource Allocation, that subfactor also contained [***] positive findings. Id. at 9–10. Relying

on a mathematical calculation, Plaintiff concludes that “[***] High Confidence [subfactors]

averaged with [***] Low Confidence [subfactor] does not equal Low Confidence overall.” Id. at

10. In fact, Plaintiff argues, these subfactor ratings “could only lead to a High Confidence

rating” in Factor 3 overall. Id.

But the FCC was not obligated to treat its “increase confidence” or “lower confidence”

findings as mathematical pluses and minuses. It is a maxim of federal procurement law that

adjectival ratings do not need to “be added up and ‘averaged out.’” Glenn Def. Marine (ASIA),

PTE Ltd. v. United States, 720 F.3d 901, 909 n.6 (Fed. Cir. 2013); Harmonia Holdings Grp.,

LLC v. United States, 167 Fed. Cl. 448, 474 (2023) (“The Court . . . will not engage in

calculating an agency rating by counting ‘Decreases Confidences,’ . . . because this court has

rejected such an approach.”); Ft. Carson Supp. Servs. v. United States, 71 Fed. Cl. 571, 591

(2006) (“The identification of strengths or weaknesses . . . does [not] result in a product that can

be mechanically summed or subtracted.”). Rather, “the reason that strengths and weaknesses are

identified” is not to quantify them but “to help ensure that evaluations are thoughtful.” Ft.

Carson Supp. Servs., 71 Fed. Cl. at 591; see also Hyperion, Inc. v. United States, 92 Fed. Cl.

114, 119 (2010) (“The adjectival ratings are merely a guide.”).

This is not to say the Solicitation’s statement that all subfactors were of equal importance

was without meaning. But while the subfactors were equally important, the underlying

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adjectival findings could carry different weight. See Can Softtech, Inc. v. United States, No.

24-670, 2024 WL 4434253, at *19 (Fed. Cl. Oct. 4, 2024) (“Procurement law is clear that an

agency may choose to attribute different weights to different strengths and weaknesses.”); EFW,

Inc. v. United States, 148 Fed. Cl. 396, 409 (“[C]ommon sense counsels that some strengths are

more important, and some weaknesses pose greater risks.”). And AccelGov’s [***] “Lower

Confidence” finding under Factor 3 was grave. The FCC considered Plaintiff’s proposal of

[***] ISSOs a “severe underestimation of the resource allocation required for this

contract.” AR Tab 50 at 2773 (emphasis in original). The Agency also explained the basis for

this finding: “there is not sufficient detail in the offer to explain how the work will be

completed,” nor an “indication in the proposal that would mitigate [the proposed number of

ISSOs], including additional future staffing or a technical solution that would assist with the

workload.” Id.

Plaintiff argues “[e]ven assuming the one negative finding could have brought [the

Resource Allocation subfactor] to a Low Confidence rating,” the FCC had to equally weigh the

[***] other “High Confidence” subfactors, which should result in a High Confidence score for

all of Factor 3. Pl.’s MJAR at 10. This argument misstates the Solicitation. The Agency did not

individually rank each subfactor—there were no “High Confidence” or “Low Confidence”

subfactors. See Def.’s Reply at 7, ECF No. 49. Therefore, there were no subfactor “scores” to

add up and calculate an average.

Instead, AccelGov’s staffing weakness emanated through all of Factor 3 and poisoned the

rating. The outsized weight of the weakness does not mean the subfactors were considered

unequally. See Enhanced Veterans Sols., Inc. v. United States, 131 Fed. Cl. 565, 586 (2017). As

the “subfactor containing significant weaknesses or deficiencies,” Resource Allocation had the

most influence on the factor rating—but this would occur “regardless of which subfactor

evaluation contained [the weaknesses].” Id; see also In re. Apptis Inc.-Costs, B-402146.3, 2010

WL 2561522, at *5 (Comp. Gen. Mar. 31, 2010). (“In our view, the protestor incorrectly

assumes that an assessment of weaknesses under one of four equally-weighted subfactors

precludes an overall rating of marginal.”). By analogy, a stool missing any of its four legs, no

matter which leg—and no matter how perfectly the other legs are constructed—is not a

functional stool.

Plaintiff stresses that the court in Enhanced Veterans found it significant that the agency

decided how serious weaknesses would affect factor ratings before evaluations were conducted.

Pl.’s Resp. at 3 (citing Enhanced Veterans, 131 Fed. Cl. at 586). In a footnote, the court noted

that “[i]f the [source selection plan] had not prescribed such a methodology, and it was instead

adopted by the evaluators after proposals were reviewed, such a practice could potentially rob

the ultimate source selection decision of its rationality.” Enhanced Veterans, 131 Fed. Cl. at 586

n.22. By contrast, the Solicitation in this case did not explicitly state how the FCC would treat

serious adjectival weaknesses. See Pl.’s Resp. at 4.

But the “methodology” addressed by Enhanced Veterans was the “roll-up” of subfactor

scores, by which an agency automatically equates an entire factor rating with a single subfactor

rating. Enhanced Veterans, 131 Fed. Cl. at 585. The “roll-up” method was not possible in the

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instant procurement because there were no individual subfactor ratings; instead, the FCC used

strengths and weaknesses as subjective guides to determine an overall factor score. Furthermore,

other courts have found that an agency may reasonably “roll up” a subfactor rating even when

the agency did not previously “provide for the ‘roll-up evaluation methodology.’” Harkcon, Inc.

v. United States, 133 Fed. Cl. 441, 469 (2017) (quoting Enhanced Veterans Sols., 131 Fed. Cl. at

586)).

Significantly, while AccelGov contests its “Low Confidence” Management Approach

score, it does not challenge the substance of the decreased confidence finding or defend the

sufficiency of its staffing proposal. The Solicitation defined a “Low Confidence” score to mean

that “[t]he Government has low confidence that the offeror understands the requirement,

proposes a sound approach, or will be successful in performing the work even with Government

intervention.” Tab 19a at AR 332. AccelGov does not dispute the reasonableness of this

finding. And by the terms of this Solicitation, if the assessment of the weakness was reasonable,

then so was the award of a low factor score. See, e.g., In re. Apptis Inc.-Costs, 2010 WL

2561522, at *5 (“[U]nder the evaluation standards announced in the solicitation, weaknesses

relating to an offeror’s understanding of the requirements could have reasonably resulted in an

overall rating of marginal for the technical approach factor—assuming the agency’s assessment

of the weaknesses was reasonable.”). At bottom, Plaintiff’s protest does not overcome the

Agency’s “great discretion in determining the scope of an evaluation factor.” Tetra Tech, Inc.,

137 Fed. Cl. at 383 (quotation omitted).

B. The FCC’s Evaluation Was Not Inconsistent Among Bidders.

AccelGov argues the FCC evaluated the Resource Allocation subfactor inconsistently

among bidders. Pl.’s MJAR at 10–11. Plaintiff notes the Agency also gave Argus a decreased

confidence finding under this subfactor for staffing issues, but it nonetheless awarded Argus a

“High Confidence” Factor 3 rating. Id. at 11. AccelGov latches onto the CO’s statement that

“‘this sub-element was not significant enough to lower’ Argus’s Factor 3 rating from High

Confidence.” Id. (quoting Tab 69 at AR 2984). Plaintiff asserts that this statement proves the

Agency based Argus’s Factor 3 score on “the equal weight it gave Resource Allocation and other

Factor 3 sub-elements, not the substance of the negative finding.” Id. Citing its own proposal,

as well as three other bidders who earned Low Confidence Factor 3 scores due to weaknesses in

Resource Allocation, AccelGov concludes the FCC weighed the subfactor “one way for Argus

and another way for other bidders.” Id. at 11, 11 n.3.

This argument fails. Plaintiff is correct that proposals must be “evaluated ‘evenhandedly

against common requirements and evaluation criteria.’” Id. at 10 (quoting HWA, Inc. v. United

States, 78 Fed. Cl. 512, 516 (2007)). But while “[a]ll contractors and prospective contractors

shall be treated fairly and impartially,” they “need not be treated the same.” 48 C.F.R.

§ 1.102-2(c)(3). To succeed on a disparate evaluation claim, “a protestor must show that the

agency unreasonably downgraded its proposals for deficiencies that were ‘substantively

indistinguishable’ or nearly identical from those contained in other proposals.” Off. Design Grp.,

951 F.3d at 1372 (citations omitted).

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AccelGov’s and Argus’s Resource Allocation weaknesses are plainly distinguishable.

AccelGov proposed an insufficient number of ISSOs, which the Agency concluded was a

“severe underestimation” of the number needed to handle the job. Tab 50 at AR 2773

(emphasis in original). Furthermore, the TET could not find “sufficient detail” in AccelGov’s

offer “to explain how the work will be completed” or any “indication in the proposal that would

mitigate this [weakness], including additional future staffing or a technical solution that would

assist with the workload.” Id. By comparison, Argus proposed enough ISSOs, but an

insufficient number of [***] IR Analysts. See Tab 51 at AR 2785. The TET concluded Argus’s

proposal [***] IR Analysts was “more likely to reduce the quality of work,” but it raised no

concerns about Argus’s ability to complete the work. Id.

The ISSO and IR Analyst positions, and the resulting deficiencies caused by

understaffing them, are not the same. The PWS dedicates an entire subsection to the ISSO

position that lists eleven distinct roles, including that they will “[a]ssist with reporting and

investigating information security incidents to the Cybersecurity Group Security Operations

Center,” “[p]erform real-time monitoring of assigned information systems,” and “[r]egularly

review the FCC security posture.” Tab 19c at AR 375. Offerors knew that ISSOs would be

responsible for monitoring up to thirty “FISMA information system boundaries,” as well as

“approximately 30 minor applications.” Tab 19e at AR 399. Furthermore, the three

higher-ranked bidders all proposed at least [***] ISSOs, which indicates that the importance of

the ISSO role was clear to those with experience in the industry. See Tab 35d at AR 775; Tab

37a at AR 1046; Tab 45b at AR 2110.

By contrast, the Solicitation did not dedicate a subsection to the IR Analyst role. See Tab

19c at AR 360–61 (describing “Incident Assessment and Response Support” generally but not

outlining IR Analyst responsibilities in their own section). The incident response work stressed

the importance of “detecting and mitigating bot threats within FCC applications.” Id. at 360.

While this work is no doubt important to the Contract, it is easily distinguished from the

system-wide monitoring done by ISSOs. Therefore, it is reasonable to conclude from the

Solicitations’ treatment of the two positions that a deficient number of ISSOs is a significantly

different kind of weakness than a deficient number of IR Analysts.

AccelGov does not claim that these two roles are indistinguishable, or that the Agency

was mistaken about the number of employees needed for each role. See generally Pl.’s MJAR.

Regardless, it would be inappropriate for this Court to weigh in on such technical questions.

“Technical ratings involve discretionary determinations of procurement officials that a court will

not second guess.” Benchmade Knife Co. v. United States, 79 Fed. Cl. 731, 733 (2007) (quoting

E.W. Bliss Co. v. United States, 77 F.3d 445, 449 (Fed. Cir. 1996)) (citation modified). The

Agency devoted a full paragraph explaining the information security consequences of both

Argus’s and AccelGov’s staffing weaknesses; it decided the latter were far more significant. See

Tab 50 at AR 2773; Tab 51 at AR 2785; compare Tab 68 at AR 2968 (explaining that because it

“involved [***] IR analysts” rather than “[***],” Argus’s resource allocation weakness did not

impact its overall Factor 3 rating), with id. at 2969 (explaining that AccelGov’s underestimation

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of ISSOs was a “severe underestimation” and thus “significant enough” to lower its overall

Factor 3 rating). This Court will not second guess that decision.

C. The FCC’s Best Value Analysis Was Proper.

AccelGov argues that the CO’s best-value analysis is insufficient. Pl.’s MJAR at 12–13.

First, it asserts the FCC erred because it did not compare the winning proposal “to any proposal

that had a lower price” or “consider whether Argus’s price premium [over AccelGov] was worth

the technical advantage.” Pl.’s Resp. & Reply at 8, ECF No. 44 (citing Serco, Inc. v. United

States, 81 Fed. Cl. 463, 500 (2008)). It further claims the FCC should have considered any

offeror who was eligible for award in the best-value tradeoff analysis. Pl.’s MJAR at 13

(“AccelGov was eligible for award, so FCC should have considered AccelGov in a tradeoff

analysis.”). Doing so would have required explicit consideration in the best value analysis of

thirteen additional offerors. See Tab 69 at AR 2982 (listing sixteen offerors total).

The Court disagrees that the CO failed to weigh Argus against any lower-priced offerors.

Although the CO did not mention those bidders explicitly, her tradeoff analysis between the two

top-tier bidders and second-tier [***] logically ruled out all lower-ranked vendors. While

[***]’s bid was more expensive than Argus’s, it was [***] lower than [***]. Tab 69 at AR

3002. But the CO wrote that [***] could not overcome its staffing deficiencies versus the two

higher-ranked bidders, which included the higher-priced [***]. Id. [***]’s staffing deficiency

earned it a Some Confidence rating under Factor 3. Id. at AR 2982. Every other lower-ranked

vendor, including AccelGov, earned a Low Confidence rating under the same factor. Id.

The lower-ranked bids therefore presented the same type of problem as [***]’s bid, only

more severe. The CO reasoned that “[h]aving two highest technically [sic] vendors ranked

above [***] does not justify awarding to a less technical [sic] favorable offeror.” Id. It is

“reasonably discernible” from this statement that she concluded the Low Confidence bids were

even less justified by a price advantage than [***]’s Some Confidence bid. See DynCorp Int’l,

LLC v. United States, 10 F.4th 1300, 1313–14 (Fed. Cir. 2021) (quoting Wheatland Tube Co. v.

United States, 161 F.3d 1365, 1369–70 (Fed. Cir. 1998)).

Furthermore, the FCC was not required to explicitly consider every offeror in its

best-value analysis. The Solicitation was conducted under FAR Subpart 8.4, and “the

requirements for a best value tradeoff under FAR Subpart 8.4 are significantly less than those for

FAR Part 15.”2 Integrated Fin. & Acct. Sols., LLC v. United States, 161 Fed. Cl. 475, 495

(2022) (citation modified); see also Allied Tech. Grp, Inc. v. United States, 94 Fed. Cl. 16, 50

(2010) (“The very purpose of FAR Part 8 is to provide a more simplified and flexible approach

2

FAR Subpart 8.4 regulates orders placed by an agency under a bidder’s Federal Supply

Schedules contract with the General Services Administration, which “provides a simplified

avenue for federal agencies to procure commercial supplies and services at prices associated with

volume buying.” DevTech Sys., Inc. v. United States, 176 Fed. Cl. 297, 306 (2025) (citing FAR

8.402(a)). FAR Part 15 “prescribes procedures for most negotiated contracts” between a bidder

and a soliciting agency. Id. (quoting Coast Pro, Inc. v. United States, 828 F.3d 1349, 1351–52

(Fed. Cir. 2016)).

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away from the more formal and rigorous procedures for negotiated procurements.” (citation

modified)). The Court analyzes a tradeoff decision under FAR Subpart 8.4 “to determine

whether it is reasonable and within the agency’s discretion.” Distributed Sols., Inc. v. United

States, 106 Fed. Cl. 1, 24 (2012) (citing Allied Tech. Grp., 94 Fed. Cl. at 50), aff’d, 500 F. App’x

955 (Fed. Cir. 2013).

This Court has held that where a CO’s decision memorandum evaluates each bid’s

strengths and weaknesses in detail, it is reasonable under a FAR Subpart 8.4 procurement to

“eliminate[] certain quoters due to ratings before comparing the three remaining quoters . . .

against each other.” Integrated Fin. & Acct. Sols., LLC, 161 Fed. Cl. at 496. Such is the case

here. The CO thoroughly analyzed the strengths and weaknesses of each bid in eighteen pages

of her decision memorandum. Tab 69 at AR 2982–3000. She then considered three bids from

the top two tiers. Id. at AR 3002.

AccelGov objects that the CO did not go further because “nothing in the Solicitation said

that bidders with a Low Confidence rating were ineligible for award.” Pl.’s MJAR at 13 n.4.

But Plaintiff misconstrues the standard for agency discretion—nothing in the Solicitation

required the Agency to conduct explicit tradeoff analyses for each bidder, no matter how lowly

rated. See 22nd Century Techs., Inc. v. United States, No. 21-1137, 2021 WL 3856038, at *12

(Fed. Cl. July 21, 2021) (“Nowhere in the RFQ does it state that each offeror would be evaluated

against every other price. Nor did the RFQ require that the Agency had an obligation to do so.”).

Instead, the Solicitation explained it would choose the offer representing the best value “in

accordance with the evaluation factors” and that technical factors were “significantly more

important than” price. Tab 19a at AR 332, 336. Under these criteria, the CO acted reasonably

by ruling out bids that scored two full technical ratings below the top two offerors.

D. AccelGov Cannot Show Prejudice or Obtain a Permanent Injunction.

AccelGov argues it suffered prejudice because, if not for the alleged evaluation errors, it

stood a substantial chance of award. Pl.’s MJAR at 13–16. The Court need not reach this issue

because Plaintiff has not shown the FCC acted irrationally or contrary to law in its evaluation.

See Bannum, Inc., 404 F.3d at 1351.

Likewise, the Court need not address AccelGov’s argument for a permanent injunction

against continued performance of the Contract. See Pl.’s MJAR at 16–18. To succeed on a

motion for a permanent injunction, a plaintiff must first succeed on the merits of the case.

PGBA, LLC v. United States, 389 F.3d 1219, 1228–29 (Fed. Cir. 2004). As AccelGov fails on

the merits, it cannot obtain a permanent injunction.

V. Conclusion

For these reasons, Plaintiff’s Motion for Summary Judgment on the Administrative

Record, ECF No. 36, is DENIED. Plaintiff’s Motion for Preliminary Injunction, ECF No. 3, is

DENIED AS MOOT. Defendant’s and Defendant-Intervenor’s Cross-Motions for Judgment on

the Administrative Record, ECF Nos. 38 and 39, are GRANTED. The Clerk is directed to enter

judgment accordingly.

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IT IS SO ORDERED.

s/ Carolyn N. Lerner

CAROLYN N. LERNER

Judge

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