Noblis Msd, LLC v. United States

In the United States Court of Federal Claims

No. 25-1637C

(Originally filed under seal: March 19, 2026)

(Public version filed: March 25, 2026)

)

NOBLIS MSD, LLC, )

)

Plaintiff, )

)

v. )

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THE UNITED STATES, )

)

Defendant, )

and )

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SOLUTE, INC., )

)

Defendant-Intervenor. )

)

)

Rebecca Elizabeth Pearson, Taft Stettinius & Hollister, LLP, Washington, D.C., for Plaintiff.

Of counsel were Suzanne Sumner, Brandon E. Dobyns, Celeste Friel, and Alexander Gorelik.

Kelly E. Palamar and Matthew Lewis, Commercial Litigation Branch, Civil Division, United

States Department of Justice, Washington, D.C., for Defendant. With them on the briefs

were Brett A. Shumate, Acting Assistant Attorney General, Patricia M. McCarthy, Director,

and Steven Michael Mager, Assistant Director. Of counsel was Diana King, Naval

Information Warfare Center.

Joseph Alexander Ward, Morrison & Foerster, LLP, Washington, D.C., for Defendant-

Intervenor. Of counsel were James A. Tucker, Victoria Dalcourt Angle, and Markus G.

Speidel.

OPINION AND ORDER

SOLOMSON, Chief Judge.

In actions challenging a government procurement pursuant to 28 U.S.C. § 1491(b)

— colloquially referred to as bid protests1 — the judges of this Court have repeatedly

stressed the need for plaintiffs to: (1) plead, and then prove, facts demonstrating both

standing and prejudicial error; and (2) properly support requests for permanent

injunctive relief. We have said this to the point of it being tiresome, in both bar-sponsored

panel discussions, as well as our decisions. 2 These are more than just practice pointers

for improving an argument; they are ironclad rules that, when ignored or given short

shrift, become a fatal stumbling block to what may be an otherwise meritorious case.

Here, plaintiff, Noblis MSD, LLC, challenges the award of an approximately $100

million contract for systems engineering and networking services that defendant, the

United States — acting by and through the Department of the Navy — made to

defendant-intervenor, Solute, Inc. As explained in detail below, Noblis successfully

demonstrates that the government committed prejudicial error in evaluating Solute’s

proposal, but Noblis’s victory is pyrrhic. That is because Noblis did not attempt to

support its request for permanent injunctive relief. This case thus stands as yet another

warning for parties and their counsel: your strategic choices and briefing matter.

1 Procurements may solicit bids, proposals, or quotations. See Tolliver Grp., Inc. v. United States,

151 Fed. Cl. 70, 91 (2020); see also Federal Acquisition Regulation 2.101 (“Offer means a response

to a solicitation that, if accepted, would bind the offeror to perform the resultant contract.

Responses to invitations for bids (sealed bidding) are offers called ‘bids’ or ‘sealed bids’;

responses to requests for proposals (negotiation) are offers called ‘proposals’; however, responses

to requests for quotations (simplified acquisition) are ‘quotations’, not offers.”).

2 See, e.g., Dev Tech. Grp., Inc. v. United States, 179 Fed. Cl. 361, 370-75 (2025) (discussing standing

and prejudice requirements); KL3, LLC v. United States, 176 Fed. Cl. 657, 675 (2025) (same); Rotair

Aerospace Corp. v. United States, 167 Fed. Cl. 571, 577 (2023) (“The Court does not address this . . .

request for injunctive relief [where plaintiff] entirely fails to demonstrate that it is entitled to such

relief.” (citing PGBA, LLC v. United States, 389 F.3d 1219, 1229 (Fed. Cir. 2004))); RBVETCO, LLC

v. U.S., 172 Fed. Cl. 566, 579 (2024) (criticizing plaintiff for “fail[ing] to demonstrate or seek any

specified relief in its” motion for judgment on the administrative record, and concluding that a

request to “‘set aside’ the award” — without fully addressing the injunctive relief standards — is

insufficient to warrant injunctive relief, even assuming the plaintiff had prevailed on the merits);

Superior Waste Mgmt. LLC v. United States, 169 Fed. Cl. 239, 299 (2024) (denying injunctive relief

where plaintiff “makes no attempt to support any of the injunctive relief factors with facts” but

instead “relies on the talismanic invocation of injunctive relief guidelines found in various bid

protest decisions”).

2

I. FACTUAL AND PROCEDURAL BACKGROUND 3

A. The Consolidated Afloat Networks and Enterprise Services Procurement

1. The Navy’s request for proposals.

On November 17, 2023, the Navy issued Request for Proposals No.

N6600124R0022 (the “RFP” or “Solicitation”), AR 97, seeking:

engineering, technical and programmatic services for

networking, communication, and computer systems, and

associated certification and information assurance for

developments, current operations and planned upgrades to

support Program Management Warfare (PMW) 160 Tactical

Networks.

AR 104. 4 These systems are part of the Consolidated Afloat Networks and Enterprise

Services (“CANES”), a program that enables “Command and Control (C2) in naval, joint,

coalition operations” and “provid[es] the gateway to achieving Information Warfare

Dominance in the cyberspace domain.” Id. As its name implies with the word “afloat,”

the CANES contract’s performance locations include ships deployed at sea in addition to

various naval bases. AR 244-45.

The Solicitation contemplated the award of a single indefinite-delivery, indefinite-

quantity (“IDIQ”) contract, with a cost-plus-fixed-fee pricing arrangement for services

and a cost reimbursement (no fee) pricing arrangement for other direct costs. AR 98-100,

3 This background section constitutes this Court’s findings of fact drawn from the administrative

record. Rule 52.1 of the Rules of the United States Court of Federal Claims (“RCFC”), covering

judgment on the administrative record, “is properly understood as intending to provide for an

expedited trial on the record” and requires courts to “make factual findings from the record

evidence as if [they] were conducting a trial on the record.” Bannum, Inc. v. United States, 404 F.3d

1346, 1353-54, 1356 (Fed. Cir. 2005). Other factual findings are contained in the Discussion section

of this opinion, see infra Section V. Citations to the corrected administrative record, ECF No. 41,

are denoted as “AR” followed by the page number bolded in the lower right-hand corner of each

page of the administrative record.

4 The Navy amended the initial RFP on December 11, 2023. AR 279.

3

217. The contract covers a three-year base period and includes two two-year option

periods. AR 98-100.

Section L-2 of the RFP (“Submission of Proposals”) instructed offerors to submit

their proposals in three volumes: Volume I – Offer; Volume II – Price/Cost Information;

and Volume III – Written Capability Information. AR 221. In Volume II, offerors were

required to identify direct labor costs, i.e., “the various labor categories and individual

names (if known) intended for use under [the] contract” as well as the number of labor

hours, hourly labor rates, total cost for each labor category, and the average bid rate by

labor category. AR 222. In that regard, the Solicitation further instructed: “Do not submit

average or composite rates for named individuals.” AR 223 (emphasis in original). With

respect to individuals unknown at the time of proposal, however, the RFP noted that “for

proposal purposes, assume they will be employed in the San Diego Area and list intended

labor category with anticipated rates from [Economic Research Institute (“ERI”)] in the

San Diego Area.” Id.

In order to “verify the realism” of proposed direct labor costs, each offeror was

directed to “submit documentation substantiating the accuracy of its proposed direct

labor rates for all labor categories.” AR 229. “Acceptable documentation” included:

(1) the most recent payroll run for named, current employees; (2) signed letters of intent

indicating agreed upon salaries for named, new hires; (3) copies of the most current

Defense Contract Management Agency (“DCMA”) Forward Pricing Rate Agreement

(“FPRA”) or Forward Pricing Rate Recommendation (“FPRR”) for unnamed, existing

labor categories; (4) labor category averages; and (5) for proposed rates that do not fall

within one of the above criteria, a “detailed, comprehensive description of the

methodology used to establish the proposed direct rate.” AR 229-30. The RFP noted that

all proposed direct labor rates not based on, or clearly supported by, the five categories

of acceptable documentation — and were lower than the ERI rates listed in the

Solicitation — would be “adjusted upward to the ERI rate.” AR 230.

Offerors were also instructed to identify projected overhead rates and total

overhead cost in Volume II of their proposals. AR 223. Offerors with different rates for

government and contractor facilities were required to:

(1) Propose on-Government-site overhead rates (i.e., rates

associated with performance at Government facilities) for

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90% of the level of effort for each labor category specified in

[the Solicitation]; and

(2) Propose off-Government-site rates (i.e., rates associated with

performance at contractor facilities) for 10% of the level of

effort for each labor category specified in [the Solicitation].

AR 223.

In Volume III of the proposal, each offeror was required to prepare an

organizational experience matrix, AR 271, explaining the “breadth, depth and relevance”

of its experience. AR 232. Offerors also had to cite “at least one (1) reference for work

performed by the prime offeror, no more than one (1) reference per subcontractor, and

no more than three (3) references total.” Id. For each of these references, offerors were

directed to submit one Reference Information Sheet. AR 272.

2. The Navy’s evaluation criteria.

The Solicitation indicated the Navy would award the CANES contract to the

offeror “determined to provide the ‘best value’ to the Government,” which “may not

necessarily be the proposal offering the lowest cost or receiving the highest technical

rating.” AR 237. The Navy committed to evaluating proposals using a four-step

methodology, culminating in a best-value tradeoff decision, considering three technical

factors and cost. Id.

First, the Solicitation required the Navy to determine the acceptability of each offer

on an “Acceptable”/ “Unacceptable” basis. AR 238. An offer that “manifests the offeror’s

assent, without exception or imposition of condition, to the terms and conditions of this

[RFP]” was deemed “Acceptable.” AR 237. On the other hand, an offer that “takes

exception to any of the terms and conditions of the RFP, imposes additional conditions

or omits material information required by this RFP,” could be considered

“Unacceptable.” Id.

Second, the Solicitation provided that the offerors’ capability (Volume III) would

be evaluated based on three technical factors: (1) organizational experience; (2) past

performance; and (3) small business participation. AR 239. But the RFP did not weigh

these factors equally. Rather, the “organizational experience” factor was weighted

5

the Navy assigned a performance confidence assessment rating for each offeror using the

following scale: Substantial Confidence, Satisfactory Confidence, Neutral Confidence,

Limited Confidence, and No Confidence. AR 241.

The remaining technical factor evaluated the total percentage of small business

participation. AR 241. Adjectival ratings were assigned based on the various thresholds

of small business participation. Id.

Third, the Navy evaluated “the estimated cost and proposed fee of each offer for

realism and reasonableness in accordance with [Federal Acquisition Regulation (“FAR”)]

Subpart 15.4” 7 and as described in the Solicitation. AR 241. Per the RFP, the cost realism

evaluation served three purposes: (1) to verify the offeror’s understanding of the RFP’s

requirements; (2) to assess “the degree to which the cost/price proposal reflects the

approaches and/or risk assessments made in the proposal as well as the risk that the

offeror will provide the supplies or services for the offered price/cost”; and (3) to assess

the degree to which the cost/price proposal “accurately represents the work effort

included in the proposal.” AR 242.

Fourth, and finally, the Navy conducted a trade-off analysis to determine which

offeror would provide the best value to the government. AR 243. The Solicitation

required the Navy to compare “all offerors under consideration for award by trading off

the differences in the non-cost factors against the difference in most probable cost and

proposed fee between the offerors.” Id. The Solicitation provided that the non-cost

technical factors, when combined, were “significantly more important than cost,” but that

“the degree of importance of cost will increase with the degree of the equality of

proposals in terms of the non-cost evaluation factors.” AR 238.

B. The Navy’s Proposal Evaluations and CANES Contract Award Decision

The Navy received proposals from Noblis and Solute in response to the CANES

RFP prior to the December 18, 2023, due date. AR 1180, 1189. On March 13, 2025, due to

RFP, specifically in the Key Areas,” with respect to “complexity, length of performance, number

of tasks, scope, type of work, and value.” AR 240. Only recent work deemed at least “Somewhat

Relevant” was evaluated for the third aspect, overall quality and usefulness, which considered

factors like conformance to contract requirements, timeliness of performance, cost control,

management, utilization of small business and regulatory compliance. Id.

7 The FAR is located at 48 C.F.R. ch. 1.

7

In accordance with FAR 15.506, Noblis requested a post-award debrief, which the Navy

provided on May 28, 2025. AR 1240, 1241. Noblis then submitted questions in response

to the debrief, which the Navy answered on June 3, 2025. AR 1351-62.

C. Noblis’s GAO Protest

On June 6, 2025, Noblis filed a protest with the Government Accountability Office

(“GAO”), challenging the Navy’s “materially flawed” award to Solute. AR 1363. Noblis

argued that the Navy: (1) improperly refused to consider Solute’s negative past

performance that was “too close at hand” and thus misevaluated its past performance

rating; (2) erroneously relied “solely on adjectival ratings” in its best value trade-off

analysis; and (3) failed to perform a reasonable cost realism analysis with respect to one

of Solute’s proposed subcontractors, Booz Allen Hamilton. AR 1363-64.

On June 25, 2025, the GAO dismissed Noblis’s cost realism argument as

speculative, but declined to dismiss Noblis’s past performance and best value challenges.

AR 1926. On July 14, 2025, Noblis filed supplemental protest grounds, reasserting its cost

realism argument. AR 1855.

On September 11, 2025, the GAO denied the protest on all grounds. AR 1928. The

GAO found “no basis in the record … to conclude that the [Navy’s] judgment was clearly

unreasonable” with respect to its assessment of Solute’s experience, AR 1934, and refused

to disturb the Navy’s conclusion that the two proposals were “essentially equal.” AR

1938 (“[W]e cannot conclude that the agency erred by concluding that the two proposals

were essentially technically equal, and that cost was the most significant discriminator

between the two proposals.” (citations omitted)).

D. Noblis’s Bid Protest in this Court

On October 1, 2025, following its unsuccessful GAO protest, Noblis filed its

complaint in this Court. ECF No. 1 (“Compl.”). On November 5, 2025, Noblis filed its

motion for judgment on the administrative record. ECF No. 39 (“Pl. MJAR”). In its

complaint and MJAR, Noblis asserts that: (1) the Navy failed to conduct a proper cost

realism analysis, Compl. at ¶¶ 91-93, 117; Pl. MJAR at 15-23; 9 (2) the Navy’s evaluation

9 The cost realism challenge Noblis includes in its complaint differs from those Noblis developed

in its MJAR. In its complaint, Noblis alleges that the Navy’s cost realism analysis was irrational

because it “failed to accurately assess the cost impact of Solute’s subcontractor, [Booz Allen

9

of Solute’s organizational experience as “Outstanding” was unreasonable and

inconsistent with weaknesses identified by the agency’s evaluators, Compl. at ¶¶ 56, 57;

Pl. MJAR at 23-28; and (3) the Navy improperly assigned Solute a “Substantial

Confidence” rating for past performance, erroneously crediting it with the work of its

parent corporation and despite the Navy’s alleged knowledge of Solute’s recent failed

performance under a different contract, Compl. at ¶80; Pl. MJAR at 28-33. Noblis also

requests a permanent injunction, Pl. MJAR at 7, but nowhere addresses the prerequisite

injunctive relief factors.

On November 21, 2025, the government and Solute filed their respective cross-

MJARs and responses. ECF No. 44 (“Def. MJAR”), ECF No. 43 (“Solute MJAR”). On

December 2, 2025, Noblis filed its response and reply. ECF No. 45 (“Pl. Rep.”). On

December 9, 2025, the government and Solute filed their respective replies. ECF No. 47

(“Def. Rep.”), ECF No. 46 (“Solute Rep.”). On January 29, 2026, this Court held oral

argument on the parties’ pending motions. ECF No. 54 (“Tr.”).

II. JURISDICTION AND STANDING

This Court has jurisdiction over procurement challenges pursuant to the Tucker

Act, as amended by the Administrative Dispute Resolution Act of 1996, Pub. L. No. 104-

320, 110 Stat. 3870. See 28 U.S.C. § 1491(b). The Tucker Act vests this Court with

jurisdiction to render judgment on an action 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.

Hamilton], which, based on publicly available information, has hourly rates well above $120 an

hour for the work at issue – rates that are higher than Noblis’ rates.” Compl. at ¶ 117. Noblis

abandons this argument in its MJAR. Instead, Noblis focuses its cost realism argument on a

locality adjustment Noblis claims the Navy should have performed, arguing that “the Navy

critically miscalculated by assuming that the actual payroll records of Solute’s current employees

were reasonable for Solute’s proposed performance of 90% of the work in San Diego[.]” Pl. MJAR

at 15-16. Neither the government nor Solute objected to Noblis’s swapping in a new argument in

its MJAR.

10

28 U.S.C. § 1491(b)(1). “An interested party is an actual or prospective bidder whose

direct economic interest would be affected by the award of the contract.” Digitalis Educ.

Sols., Inc. v. United States, 664 F.3d 1380, 1384 (Fed. Cir. 2012).

No party challenges either this Court’s jurisdiction or Noblis’s standing to pursue

its case. Nevertheless, this Court has an independent duty to verify that it has jurisdiction

over this matter and that Noblis has standing to pursue its action. Here, this Court finds

that it does have jurisdiction, and that Noblis has standing: Noblis was an actual offeror,

as it submitted a timely proposal before the RFP’s deadline. Further, Noblis alleges facts

that, if proven, demonstrate that but for the Navy’s errors, Noblis would have had a

substantial chance at being awarded the CANES contract. REV, LLC v. United States, 91

F.4th 1156, 1164 (Fed. Cir. 2024) (“In assessing whether a party was prejudiced [for

standing purposes] by purported errors in a procurement process, we must assume that

the party will, if permitted to proceed with its claim, prevail on the merits.”); see also Info.

Tech. & Applications Corp. v. United States, 316 F.3d 1312, 1319 (Fed. Cir. 2003); Aero Spray,

Inc. v. United States, 156 Fed. Cl. 548, 567–68 (2021); Golden IT, LLC v. United States, 157

Fed. Cl. 680, 687 (2022).

Accordingly, this Court will proceed to the merits of Noblis’s procurement

challenge. 10

III. STANDARD OF REVIEW

A. Administrative Procedure Act (“APA”) Review in Bid Protest Cases

Pursuant to 28 U.S.C. § 1491(b)(4), this Court reviews bid protest cases using the

standard of review from the APA § 10(c), 5 U.S.C. § 706(2)(A), and considers a challenged

agency procurement decision to determine whether it is “arbitrary, capricious, an abuse

of discretion, or otherwise not in accordance with law.” Nat’l Gov’t Servs., Inc. v. United

10 This Court considers prejudice at both the standing and merits stages of a case:

For standing, we presume the party bringing a bid protest will succeed on the

merits of its claim and ask whether it has alleged an injury (or prejudice) caused

by the procuring agency’s actions. But once we find that a party has standing, we

must turn to the merits of the party’s claim and determine whether it can prove it

was prejudiced based on the record evidence.

Am. Relocation Connections, L.L.C. v. United States, 789 F. App’x 221, 226–27 (Fed. Cir. 2019)

(internal citations omitted).

11

States, 923 F.3d 977, 981 (Fed. Cir. 2019) (“In reviewing a grant of judgment upon the

administrative record, . . . we review the agency’s actions according to the standards set

forth in the Administrative Procedure Act.”); see also PGBA, LLC v. United States, 389 F.3d

1219, 1226 (Fed. Cir. 2004) (“[W]hen read together, [28 U.S.C. §] 1491(b)(4) and [5 U.S.C.

§] 706(2)(A) compel the conclusion that section 1491(b)(4) only incorporates the arbitrary

or capricious standard of review of section 706(2)(A).”).

For a plaintiff to succeed on the merits in a bid protest, it must first demonstrate,

at a minimum, that either: “(1) the [agency]’s decision lacked a rational basis; or (2) the

procurement procedure involved a violation of regulation or procedure.” Impresa

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

(citations omitted); see also Weeks Marine, Inc. v. United States, 575 F.3d 1352, 1358 (Fed.

Cir. 2009) (explaining that the APA standard of review requires a court to determine

whether “(1) the procurement official’s decision lacked a rational basis; or (2) the

procurement procedure involved a violation of regulation or procedure” (quoting PGBA,

389 F.3d at 1225)).

An agency’s decision is arbitrary and capricious — or lacks a rational basis —

where 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 [the

decision] 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) (alteration in original) (quoting Motor Vehicle Mfrs. Ass’n

v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)). However, this Court “will uphold

a decision of less than ideal clarity if the agency’s path may reasonably be discerned,”

though it will “not supply a reasoned basis for the agency’s action that the agency itself

has not given.” Snyder v. McDonough, 1 F.4th 996, 1005 (Fed. Cir. 2021) (citing Bowman

Transp., Inc. v. Arkansas–Best Freight Sys., Inc., 419 U.S. 281, 285–86 (1974)); see also

Harrington v. Dep’t of Veterans Affs., 2025 WL 655546, at *3 (Fed. Cir. Feb. 28, 2025) (“’[W]e

do not require perfect explanations,’ and ‘we will uphold a decision of less than ideal

clarity if the agency’s path may reasonably be discerned.’” (quoting In re Nuvasive, Inc.,

842 F.3d 1376, 1382–83 (Fed. Cir. 2016))).

But a plaintiff must do more than simply show some agency error; the plaintiff

must also demonstrate that the agency’s error was prejudicial. “[T]here is no starting

point of presumed prejudice[.]” Sys. Stud. & Simulation, Inc. v. United States, 22 F.4th 994,

997–98 (Fed. Cir. 2021) (“[T]he challenger of agency action generally bears the burden of

12

showing that an error was harmful — that is, that it was prejudicial.”); see also Shinseki v.

Sanders, 556 U.S. 396, 409 (2009) (“[T]he burden of showing that an error is harmful

normally falls upon the party attacking the agency’s determination.”). Accordingly, this

Court must always determine whether an agency’s error is prejudicial “before setting

aside a bid award, regardless of whether the error identified at the first step was arbitrary

and capricious action or, instead, a violation of law.” Sys. Stud. & Simulation, 22 F.4th at

997 (citing DynCorp Int’l, LLC v. United States, 10 F.4th 1300, 1308 n.6 (Fed. Cir. 2021) (“The

APA does not provide an exception to the prejudicial-error rule for arbitrary and

capricious action.”)).

Our appellate court — the United States Court of Appeals for the Federal Circuit

— has explained that, to prove prejudice, a plaintiff “must show there is a ‘substantial

chance’ it would have received the contract award but for the alleged error in the

procurement process.” Tinton Falls Lodging Realty, LLC v. United States, 800 F.3d 1353,

1358 (Fed. Cir. 2015) (citing Myers Investigative & Sec. Servs., Inc. v. United States, 275 F.3d

1366, 1370 (Fed. Cir. 2002)). In that regard, a plaintiff must demonstrate “more than a

bare possibility of receiving the award.” Blue Water Thinking, LLC v. United States, 2025

WL 763565, at *9 (Fed. Cl. Mar. 11, 2025) (quoting Precision Asset Mgmt. Corp. v. United

States, 125 Fed. Cl. 228, 233 (2016)); see also Bannum, 404 F.3d at 1358 (affirming the trial

court’s determination that the plaintiff had not demonstrated a substantial chance of

award because its “argument rest[ed] on mere numerical possibility, not evidence”).

B. A Trial on the Administrative Record Requires this Court to Engage in Fact

Finding, Including for the Prejudice Analysis

Procurement challenges pursuant to 28 U.S.C. § 1491(b) are resolved via motions

for judgment on the administrative record, RCFC 52.1(c), a process “properly understood

as intending to provide for an expedited trial on the record.” Bannum, 404 F.3d at 1356.

The process is “designed to provide for trial on a paper record, allowing fact-finding by the

trial court.” Id. (emphasis added). 11 In deciding cross-MJARs, this Court considers

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

based on the evidence of record.” XOtech, LLC v. United States, 950 F.3d 1376, 1380 (Fed.

11 “The primary difference between a typical trial and one conducted on the administrative record

is that, in the latter, new evidence ordinarily may not be considered. Both the nature of APA

review and this Court’s rules ‘restricts the evidence to the agency record, as may be supplemented

consistent with [the law of this circuit].’” Superior Waste Mgmt. LLC, 169 Fed. Cl. at 274 (alteration

in original) (quoting Bannum, 404 F.3d at 1356).

13

Cir. 2020) (quoting Palantir USG, Inc. v. United States, 904 F.3d 980, 989 (Fed. Cir. 2018));

see also Harmonia Holdings Grp., LLC v. United States, 20 F.4th 759, 766 (Fed. Cir. 2021). 12

The Federal Circuit has stated that this Court is “required to determine” whether

“errors in the procurement process significantly prejudiced [the plaintiff],” Bannum, 404

F.3d at 1353 (emphasis added). Thus, the trial court must “make factual findings on

prejudice from the record evidence.” Id. at 1356. In other words, when performing the

mandatory prejudice analysis, this Court performs its ordinary fact-finding role and does

not defer to the agency. Therefore, the Federal Circuit “reviews such [factual] findings

[only] for clear error.” Id. at 1354; see also Associated Energy Grp., LLC v. United States, 131

F.4th 1312, 1319 (Fed. Cir. 2025) (“Prejudice is a factual question that we review for clear

error.” (quoting cases)); Oak Grove Techs., LLC v. United States, 116 F.4th 1364, 1374 (Fed.

Cir. 2024) (“We review determinations of standing under the Tucker Act de novo.

However, underlying factual findings, including prejudice, are reviewed for clear error.”

(citations omitted)); WellPoint Mil. Care Corp. v. United States, 953 F.3d 1373, 1377 (Fed.

Cir. 2020) (“We review the legal standard for prejudice articulated by the Claims Court

de novo, and we review the Claims Court’s underlying factual findings for clear error.”

(citing Bannum, 404 F.3d at 1353–54)). 13

12 See also Noble Supply & Logistics LLC v. United States, 168 Fed. Cl. 439, 447 (2023) (“[T]he court

holds a trial on the administrative record and must determine whether a party has met its burden

of proof based solely on the evidence contained in that record.” (citing Bannum, 404 F.3d at 1355));

Navarre Corp. v. United States, 168 Fed. Cl. 361, 367–68 (2023) (explaining that “the parties are

limited to the administrative record, and the Court must make findings of fact as if it were

conducting a trial on a paper record” and “will then determine whether a party has met its burden

of proof based on the evidence in the record” (citing Bannum, 404 F.3d at 1354–55)); Karthik

Consulting, LLC v. United States, 168 Fed. Cl. 95, 103 (2023) (“The protestor has the burden to show

by a preponderance of evidence the arbitrary and capricious nature of the agency’s decision.”).

13 See also Off. Design Grp. v. United States, 951 F.3d 1366, 1374 (Fed. Cir. 2020) (“Prejudice is a

question of fact that we review for clear error.” (citing CliniComp Int’l, Inc. v. United States, 904

F.3d 1353, 1359 (Fed. Cir. 2018)); Am. Relocation Connections, L.L.C. v. United States, 789 F. App’x

221, 225 (Fed. Cir. 2019) (“Prejudice is a question of fact, and we review the findings of the Court

of Federal Claims thereon for clear error.”); Diaz v. United States, 853 F.3d 1355, 1359 (Fed. Cir.

2017) (“Prejudice is a factual question that we review for clear error.” (citing Tinton Falls Lodging

Realty, LLC v. United States, 800 F.3d 1353, 1357–58 (Fed. Cir. 2015))); Glenn Def. Marine (ASIA),

PTE Ltd. v. United States, 720 F.3d 901, 912 (Fed. Cir. 2013) (“Unlike other issues in this case,

prejudice is a question of fact that this court reviews for clear error.”).

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IV. SUPPLEMENTATION OF THE ADMINISTRATIVE RECORD

A. Legal Standard for Supplementation or Consideration of Extra-Record

Evidence

As explained supra, this Court resolves actions pursuant to 28 U.S.C. § 1491(b) via

motions for judgment on the administrative record, RCFC 52.1. That process differs from

motions for summary judgment under RCFC 56, as the existence of genuine issues of

material fact does not preclude judgment on the administrative record. Bannum, 404 F.3d

at 1355–57. Indeed, we examine whether an agency, given all the disputed and

undisputed facts appearing in the record, acted in a manner that complied with the legal

standards governing the decision under review. The trial court then makes factual

findings based on the evidence in the record. Bannum, 404 F.3d at 1357. Bannum thus

“teaches that two principles commonly associated with summary judgment motions—

that the existence of a genuine issue of material fact precludes a grant of summary

judgment and that inferences must be weighed in favor of the non-moving party—do not

apply in deciding a motion for judgment on the administrative record.” Zappley v. United

States, 135 Fed. Cl. 272, 276 (2012). “Rather, such questions must be resolved by reference

to the administrative record, as properly supplemented—in the words of the Federal

Circuit, ‘as if [the Court of Federal Claims] were conducting a trial on [that] record.’”

Zappley, 135 Fed. Cl. at 276–77 (quoting Bannum, 404 F.3d at 1354, and citing Carlisle v.

United States, 66 Fed. Cl. 627, 631 (2005)).

While the government’s overall “conduct” — i.e., its “procurement decision” — is

subject to the “‘arbitrary and capricious’ standard of [the APA,] § 706,” Bannum, 404 F.3d

at 1351 (discussing 5 U.S.C. § 706(2)(A)), “[t]he substantial evidence standard of 5 U.S.C.

§ 706(2)(E) ‘applies to the trial court’s review of agency findings.’” Blue & Gold Fleet, L.P.

v. United States, 492 F.3d 1308, 1312 (Fed. Cir. 2007) (quoting Bannum, 404 F.3d at 1357

(citation omitted)). This Court, however, may “make[] factual findings from the

administrative record in the first instance . . . ‘like any finding in a bench trial.’” Blue &

Gold Fleet, 492 F.3d at 1312 (quoting Bannum, 404 F.3d at 1357, and noting that the Federal

Circuit “reviews such findings for clear error,” id.). 14 Plaintiff bears the “‘burden of proof

14 See also Young v. United States, 497 F. App’x 53, 59 n.8 (Fed. Cir. 2012) (noting that the Court of

Federal Claims “may make factual determinations and legal conclusions based on the

administrative record in the first instance” while the Federal Circuit “reviews such factual

determinations for clear error and legal conclusions without deference”); but see Rempfer v.

Sharfstein, 583 F.3d 860, 865 (D.C. Cir. 2009) (explaining that “‘when a party seeks review of

agency action under the APA [before a district court], the district judge sits as an appellate

15

based on the evidence in the record.’” Palantir, 904 F.3d at 989 (emphasis added) (quoting

A & D Fire Prot., Inc. v. United States, 72 Fed. Cl. 126, 131 (2006) (citing Bannum, 404 F.3d

at 1356)).

Unlike a typical, full bench trial — which, of course, consists of live testimony and

is preceded by a robust discovery process — the trial court in an action pursuant to 28

U.S.C. § 1491(b) is far more constrained in what evidence the Court may receive and

consider. Axiom Resource Management, Inc. v. United States, 564 F.3d 1374, 1379 (Fed. Cir.

2009). Indeed, the statutorily prescribed standard of review drives the more limited

nature of the available “trial” process, as well as the contours of the administrative record.

As Judge Wolski has explained, “an agency does not possess the discretion to make these

records whatever it says they are.” East West, Inc. v. United States, 100 Fed. Cl. 53, 56

(2011) (emphasis added) (quoting Orion Int’l Techs., 60 Fed. Cl. at 343 n.9, and citing Tauri

Grp., LLC v. United States, 99 Fed. Cl. 475, 480–81 (2011)). Instead, when the United States

Supreme Court instructs that the trial court is to evaluate the “administrative record

already in existence,” Camp v. Pitts, 411 U.S. 138, 142 (1973), that refers to and “depends

on what the agency did in reaching its decision, not what it chooses to assemble after a

protest is lodged.” East West, Inc., 100 Fed. Cl. at 56 (quoting Tauri Grp., 99 Fed. Cl. at

480–81). “This record will normally include the information relied upon by the relevant

agency decision makers and their advisers in reaching the decisions being challenged,

and the contemporaneously articulated reasons for these decisions.” Id. (emphasis added). 15

Implementing that idea, this Court’s Rules provide detailed guidance on what documents

typically should be included in the administrative record. RCFC App. C, ¶¶ 21–24.

But what is a plaintiff supposed to do when it is dissatisfied with the scope of the

record the government has constructed and filed, or when — perhaps as in this case —

the record necessarily lacks relevant documentation given the nature of the specific

tribunal’” such that “‘[t]he entire case on review is a question of law,’ and the ‘complaint, properly

read, actually presents no factual allegations, but rather only arguments about the legal

conclusion to be drawn about the agency action’” (quoting Am. Bioscience, Inc. v. Thompson, 269

F.3d 1077, 1083 (D.C. Cir. 2001), and Marshall County Health Care Auth. v. Shalala, 988 F.2d 1221,

1226 (D.C. Cir. 1993))).

15 Tauri Grp., 99 Fed. Cl. at 480–81 (rejecting the government’s “opinion that the administrative

record is whatever it says it is, regardless of whether this informal compilation of materials

contains all of the information relied upon by the agency in reaching the challenged decision” but

concluding that “the administrative record need not consist of every single document related in

any way to the procurement in question, [and] may be reasonably limited to materials relevant

to the specific decisions being challenged”).

16

claims at issue? In such circumstances, a plaintiff typically files a motion to add

documentation to the record the Court will review. Such motions can be categorized into

two buckets: (1) “[s]upplementing the administrative record in an APA case means

adding material to the volume of documents the agency considered;” and (2) “admitting

extra-record evidence means adding material outside of or in addition to the

administrative record that was not necessarily considered by the agency.” Safari Club

Int’l v. Jewell, 111 F. Supp. 3d 1, 4 (D.D.C. 2015) (citing Pac. Shores Subdiv. Cal. Water Dist.

v. U.S. Army Corps of Eng’rs, 448 F. Supp. 2d 1, 5 (D.D.C. 2006)); see SOSS2, Inc. v. United

States Army Corps of Eng’rs, 403 F. Supp. 3d 1233, 1237 (M.D. Fla. 2019) (“To supplement

the administrative record means to permit review of material that the agency considered

but failed to include.”). 16 In deciding Noblis’s motion to supplement, Pl. Rep. at 10-14,

this Court applies the standards previously articulated, and explained at length, in Naval

Sys., Inc. v. United States, 153 Fed. Cl. 166, 175-182 (2021), and Superior Waste Mgmt. LLC,

169 Fed. Cl. at 279-80.

B. This Court Rejects Noblis’s Proffered Extra-Record Evidence

Noblis’s MJAR relied on nearly 120 pages of extra-record evidence, see ECF No.

39-1, not contained in the administrative record, ECF Nos. 33, 37, 40. Nor could the

government have included those documents: Noblis’s expert developed them for the sole

purposes of critiquing the Navy’s cost realism analysis. The problem here, amongst

others, is that Noblis did not file a timely motion either to supplement the administrative

record, or for this Court to consider Noblis’s extra-record evidence. Instead, Noblis

proceeded on the assumption that this Court must (or would) consider Noblis’s extra-

record evidence. And just as night follows day, Solute and the government object to

Noblis’s approach. Solute urges this Court to “consider the procedural violations in

Noblis’s presentation of its case,” correctly asserting that “Noblis does not even try to

explain why it thinks these materials satisfy Federal Circuit precedents for

supplementation of the procurement record.” Solute MJAR at 13. The government

makes substantially the same argument, but at greater length. Def. MJAR at 20-23.

16 In Axiom, the Federal Circuit all but equated the term “supplementation” with the phrase “extra

record evidence.” 564 F.3d at 1380 (holding that “supplementation of the record should be limited

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

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

1342 (Fed. Cir. 2005)).

17

This Court agrees with Solute and the government. Noblis eventually moved to

supplement the record in its reply brief, Pl. Rep. at 10-14, but that is far too late. Although

this Court was unable to locate any Rule of this Court or case imposing a strict time limit

on when such a motion to supplement or to admit extra-record evidence must be filed,

this Court can safely say that a reply brief will almost always be too late — and it certainly

is in this case. This Court’s scheduling order provided a due date for the administrative

record and for the subsequent filing of the parties’ MJARs. MJARs, by definition, require

the parties to know what evidence this Court will consider — and, thus, what evidence

the parties may rely upon — and what is out of bounds. At least by the time of the

defendants’ respective MJARs, all the parties should know what is in the administrative

record and what is not. Cf. RCFC App. C, ¶ 25 (requiring the parties to meet and confer

to discuss the administrative record).

Here, for whatever reason, Noblis assumed the risk of basing its primary argument

on a host of extra-record materials — including an expert declaration and analysis, as

well as backup data for that analysis — without having ensured that those materials were

properly before this Court. Perhaps Noblis attempted to pitch a fastball, assuming that

it could slide those materials past the parties (and this Court), or hoped that the

defendants just would not care. Or perhaps Noblis figured it wasn’t worth the space in

its MJAR to include a motion to supplement, or that it wasn’t worth the time to draft and

file a separate motion along with its MJAR. But no matter the rationale for Noblis’s

chosen course, it was a strategic error. Permitting Noblis to move to supplement the

administrative record in its reply brief — without any sort of excuse for the delay —

would set a bad precedent: future plaintiffs would be incentivized to avoid time and

possibly page limitations, all while effectively moving the burden to the government (and

any defendant-intervenor) to oppose the admission of the extra-record evidence. But that

would invert the parties’ burdens. The party seeking to add material to the

administrative record, or to otherwise have this Court consider extra-record evidence,

has the burden to demonstrate to this Court why it should depart from its default rule.

Inverting the burdens in the manner Noblis implicitly suggests here makes little sense,

and this Court declines to do so. Noblis’s motion to supplement the administrative

record is DENIED.

In the alternative, this Court concludes that Noblis’s proffered extra-record

materials are relevant, at most, only to the question of prejudice. In other words, even if

Noblis had timely filed its motion, this Court would still not consider the proffered

documentation to support the merits of Noblis’s challenge to the Navy’s cost realism

18

analysis. That is because a plaintiff generally cannot demonstrate that an agency’s

approach to some analysis is unreasonable, or arbitrary and capricious, merely by

pointing to an alternative method of analysis, even if that analysis is superior in some

way (e.g., it would have yielded a more accurate result). Put differently, the fact that

Noblis’s expert came up with an alternate — and, for the sake of argument, better —

analysis, does not mean that the Navy’s chosen approach is unreasonable. See Medart,

Inc. v. Austin, 967 F.2d 579, 581–82 (Fed. Cir. 1992) (holding that plaintiff’s proposed

estimating procedures “might have improved the accuracy of the government estimates,

but their mere existence does [] not mean the approach selected [by the government] was

not reasonable”).

On the other hand, if Noblis were able to demonstrate that the government’s

approach is erroneous (or arbitrary and capricious) based on the existing administrative

record — without regard to a comparatively superior analysis, whatever that might be —

the question of prejudice would remain: did the government fail to adjust Solute’s

projected cost upward in a manner and to a degree that would call into question the

Navy’s ultimate best value judgment? And to answer that question, an expert’s

calculation and opinion might well prove helpful (i.e., in quantifying the degree of the

Navy’s hypothetical error). Moreover, that type of calculation is precisely the sort of

thing that no one would expect to find in the record (as the government evaluators are

not in the habit of producing alternative calculations based on conclusions they did not

reach). Nor, for that matter, would this Court expect that proof of prejudice is always to

be found within the government’s administrative record. See, e.g., FirstLine

Transportation, 116 Fed. Cl. 324, 326–27 (2014) (permitting expert declaration that “does

not substitute [his] judgment for the agency’s judgement” but rather “makes calculations

based on data already contained in the administrative record, so that the Court can better

understand the record”). As discussed below, however, this Court does not reach this

issue because the government’s approach to cost realism complied with the Solicitation

and, thus, is not arbitrary, capricious, or otherwise contrary to law. 17

Accordingly, even if Noblis’s had filed its motion to supplement the record in a

timely manner, and even if this Court had granted the motion to the extent the extra-

17 At oral argument, both the government and Solute agreed to the admission of the extra-record

evidence for the limited purpose of determining the extent of any prejudice. See Tr. 46:19-21 (“For

that purpose, yes, the United States does not take issue with consideration along those lines.”);

Tr. 50:12-13 (Solute’s agreeing that it does “not object to the use of the expert report for the

calculation of prejudice”).

19

record evidence might prove useful to assess prejudice, this Court would still not have

ultimately considered Noblis’s extra-record evidence.

V. DISCUSSION – THIS COURT FINDS THAT THE GOVERNMENT COMMITTED

PREJUDICIAL ERROR BUT DECLINES TO AWARD INJUNCTIVE RELIEF BECAUSE NOBLIS

DIDN’T PROPERLY SEEK IT

Noblis launches a three-pronged attack on the government’s decision to award the

contract to Solute. First, Noblis asserts that the Navy conducted an irrational cost realism

analysis of Solute’s proposal. Pl. MJAR at 15. Second, Noblis argues that the Navy

improperly disregarded certain risks it identified in Solute’s organizational experience.

Id. at 23-24. Third, Noblis contends that the Navy’s past performance evaluation of Solute

is erroneous or arbitrary and capricious. Id. at 33. According to Noblis, any one of these

errors sufficiently infects the Navy’s resulting best value decision such that it must be set

aside. Id. at 7.

This Court rejects all of Noblis’s arguments, except for its past performance

challenge where this Court agrees with Noblis on very narrow grounds. Despite

succeeding on the merits, however, Noblis gains nothing at this stage, as there is no basis

for this Court to order permanent injunctive relief. This Court reserves, however, the

question of whether Noblis should be awarded bid and proposal costs.

A. The Navy’s Cost Realism Analysis Complied with the FAR, Adhered to the

Terms of the RFP, and Was Rational

Noblis’s primary argument challenging the Navy’s cost realism analysis of

Solute’s proposal focuses on “Solute’s failure to document the current locations of its

proposed personnel.” Pl. MJAR at 23. Noblis asserts that the Navy’s “reliance on Solute’s

cost data based on the employee’s current salaries was unreasonable, arbitrary,

capricious, an an abuse of discretion, and prejudiced Noblis.” Id. This Court disagrees

with Noblis’s characterization of the Navy’s cost realism analysis. The Navy’s cost

realism evaluation complied with the applicable FAR provisions, adhered to the terms of

the RFP, and was rational.

20

1. Cost realism analysis pursuant to FAR 15.404-1.

The FAR defines a “[c]ost realism analysis” as:

[T]he process of independently reviewing and evaluating

specific elements of each offeror’s cost estimate to determine

whether the estimated proposed cost elements are realistic for

the work to be performed; reflect a clear understanding of the

requirements; and are consistent with the unique methods of

performance and materials described in the offeror’s technical

proposal.

FAR 15.404-1(d)(1); see IAP Worldwide Servs., Inc. v. United States, 159 Fed. Cl. 265, 301

(2022) (“There are two main purposes of a cost realism analysis: (1) ‘to prevent offerors

from gaining an advantage over competitors by proposing an unrealistically low

estimated cost’; and (2) ‘to determine whether offerors understand the contract

requirements.’” (quoting VS2, LLC v. United States, 155 Fed. Cl. 738, 759 (2021))); Warrior

Focused Sols., LLC v. United States, 175 Fed. Cl. 416, 432 (2025) (“In essence, a cost realism

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

overcharging.” (first citing DynCorp Int’l, LLC v. United States, 10 F.4th 1300, 1305 (Fed.

Cir. 2021); and then citing Agile Def. Inc. v. United States, 959 F.3d 1379, 1384 (Fed. Cir.

2020))).

Where, as here, an agency solicits proposals for a cost-reimbursement contract, it

must conduct a cost realism analysis “to determine the probable cost of performance for

each offeror.” FAR 15.404-1(d)(2). “Probable cost” reflects “the Government’s best

estimate of the cost of any contract that is most likely to result from the offeror’s proposal”

and is “used for purposes of evaluation to determine the best value.” FAR 15.404-

1(d)(2)(i). It is “determined by adjusting each offeror’s proposed cost, and fee when

appropriate, to reflect any additions or reductions in cost elements to realistic levels based

on the results of the cost realism analysis.” FAR 15.404-1(d)(2)(ii).

This Court’s “scope of review of an agency’s cost realism determination is very

narrow.” McConnell Jones Lanier & Murphy LLP v. United States, 128 Fed. Cl. 218, 236

(2016). To successfully challenge the agency’s cost realism determination, “[a] plaintiff

must establish that [the agency’s decision] lacked a rational basis.” Id. (quoting Westech

Int’l, Inc. v. United States, 79 Fed. Cl. 272, 286 (2007)); see also A-T Sols., Inc. v. United States,

21

122 Fed. Cl. 170, 180 (2015) (“[T]he Court will not overturn a cost realism determination

unless the plaintiff demonstrates the absence of a rational basis for the agency’s decision.”

(citation omitted)). “[A]n agency need not perform the analysis with impeccable rigor to

be rational. Rather, the cost realism analysis must reflect that the agency considered the

information available and did not make irrational assumptions or critical

miscalculations.” Crowley Tech. Mgmt., Inc. v. United States, 123 Fed. Cl. 253, 260 (2015)

(internal quotations omitted).

Indeed, “contracting agencies enjoy wide latitude in conducting the cost realism

analysis.” Agile Def., Inc., 959 F.3d at 1385-86 (citing Mission1st Grp., Inc. v. United States,

144 Fed. Cl. 200, 211 (2019), and refusing to “unduly circumscribe a contracting officer’s

discretion and hamstring a contracting agency’s efforts”). Although the FAR “provides

examples of cost analysis techniques,” it “does not mandate the use of any specific

methodology.” 959 F.3d at 1386 (citing FAR 15.404-1(c)). Rather, the FAR provides that

“[t]he [g]overnment may use various cost analysis techniques and procedures to ensure

a fair and reasonable price, given the circumstances of the acquisition.” FAR 15.404-

1(c)(2); see also FAR 15.404-1 (providing that “the complexity and circumstances of each

acquisition should determine the level of detail of the analysis required”).

Contracting agencies retain this broad discretion regarding the “nature and

extent” of a cost realism analysis, “unless the agency commits itself to a particular

methodology in a solicitation.” Afghan Am. Army Servs. Corp. v. United States, 90 Fed. Cl.

341, 358 (2009). It stands to reason that the converse is also true: when the solicitation

specifies precisely what an offeror must provide to substantiate cost realism, and how the

agency will consider that information, the solicitation necessarily cabins the cost realism

requirement and this Court’s review. That is particularly true where a prospective offeror

fails to challenge the controlling solicitation provision prior to the proposal due date. See

Blue & Gold Fleet, 492 F.3d at 1313 (holding that a challenge to a solicitation’s terms is

waived when a plaintiff failed to object before the proposal due date).

2. The CANES Solicitation’s cost realism instructions and evaluation

criteria.

The CANES Solicitation reflected the FAR’s requirements for a cost realism

analysis in numerous provisions. Section M-2 (“Evaluation Criteria and Basis for

Award”), for example, provides that “[t]he Government will evaluate the estimated cost

and proposed fee of each offer for realism and reasonableness in accordance with FAR

22

Subpart 15.4 and as described [in the RFP].” AR 241 (§ M-2, ¶ 3.0). The Solicitation

further provides:

The purpose of this evaluation will be (a) to verify the

offeror’s understanding of the requirements; (b) to assess the

degree to which the cost/price proposal reflects the

approaches and/or risk assessment made in the proposal as

well as the risk that the offeror will provide the supplies or

services for the offered prices/cost; and (c) assess the degree

to which the cost reflected in the cost/price proposal

accurately represents the work effort included in the

proposal.

AR 242 (§ M-2, ¶ 3.0).

Of particular significance here, the Solicitation in § L-2 (“Submission of

Proposals”) expressly directs offerors to “breakout and identify” direct labor costs, i.e.,

“the various labor categories and individual names (if known) intended for use under

this contract including the number of labor hours, hourly labor rates, total cost for each

labor category proposed for each year of the contract, and the average bid rate by labor

category for all years.” AR 222 (§ L-2, ¶ 2.1). For individuals unknown at the time of the

proposal, the Solicitation instructs that “for proposal purposes, assume they will be

employed in the San Diego Area and list intended labor category with anticipated rates

from ERI in the San Diego Area.” AR 223 (§ L-2, ¶ 2.1(a)). The Solicitation further

instructs, in that regard: “Do not submit average or composite rates for named

individuals.” Id. (emphasis in original). In that same section, the Solicitation provides

that “[i]n order to verify the realism” of the proposed direct labor costs, each offeror “shall

submit documentation substantiating the accuracy of its proposed direct labor rates for

all labor categories.” AR 229 (§ L-2, ¶ 2.7(c)). Offerors that propose direct labor rates

based on documentation outside of the specified sources of “acceptable documentation”

and that are lower than the ERI rates “will be adjusted upward to the ERI rate during cost

realism analysis.” AR 229-230 (§ L-2, ¶ 2.7(c)). The first and second items on the list of

“acceptable documentation” are, respectively, the “[m]ost recent payroll run (for named,

current employees)” and “[c]opies of signed Letters of Intent that indicate agreed upon

annual salary (for named, new hires).” AR 229 (§ L-2, ¶ 2.7(c)).

23

3. Noblis fails to demonstrate that the Navy’s cost realism evaluation was

inconsistent with the FAR’s requirements or irrational.

Noblis objects to the Navy’s cost realism analysis, arguing the agency “critically

miscalculated by assuming that the actual payroll records of Solute’s current employees

were reasonable for Solute’s proposed performance of 90% of the work in San Diego[.]”

Pl. MJAR at 15-16. Essentially, Noblis faults the agency evaluators for relying on the

current payroll records and signed letters of intent Solute submitted with its proposal,

AR 724-33 (Appendix B), as sufficient substantiation of direct labor cost realism. Pl.

MJAR at 17 (“The Navy irrationally accepted actual salary data as sufficient proof of the

probable cost of performance in San Diego, without any consideration of the employee’s

current location or any basis for believing the existing salaries were representative of the

cost of performance in San Diego.”). Instead, Noblis argues, the Navy should have

performed a “locality adjustment” to “reflect the higher salaries necessary to attract and

retain personnel for the cost of living in San Diego.” Id. at 17-18. Had it done so, Solute’s

total evaluated costs would have increased by 33%, or $7,738,817, thereby exceeding

Noblis’s evaluated costs by $318,734. Id. at 18. 18 Given that this is a best value

procurement, and the non-cost factors of the two proposals were deemed equal, “Noblis

would have been the awardee.” Id.

But Noblis fails to demonstrate that the Navy’s cost realism analysis violated the

FAR, contradicted the terms of the RFP, or was irrational in any way. Quite the opposite,

in fact: the very premise of Noblis’s argument contradicts the Solicitation and reflects a

fundamental misunderstanding of its provisions.

First, and most importantly, nothing in the FAR or the RFP’s terms mandates the

use of Noblis’s preferred cost realism methodology. See Agile Def., 959 F.3d at 1386 (The

FAR “does not mandate the use of any specific methodology.”). Moreover, in this case,

the Solicitation explicitly circumscribes the cost realism evaluation process in providing

that the actual salary data of named employees shall constitute sufficient proof of realistic

direct labor costs. AR 229 (§ L-2, ¶ 2.7(c)) (providing that “in order to verify the realism”

of the proposed direct labor costs, offerors shall submit “[a]cceptable documentation,”

which includes the “[m]ost recent payroll run (for named, current employees)”).19

18 This Court accepts Noblis’s calculation for the sake of argument.

19 Likewise, the SSDD describes payroll actuals as “the next best source” of rate substantiation

(after FPRR/FPRA data), “since the rate represents the current wage for [the] specialized labor

that this effort requires.” AR 1205 (describing the SSA’s “order of preference for evaluating

24

Nothing in the Solicitation requires the Navy to adjust direct labor rates for named

employees to reflect San Diego-based wage data. See AR 223 (§ L-2, ¶ 2.1(a)) (instructing

offerors to assume “for proposal purposes” that individuals unknown as of proposal

submission “will be employed in the San Diego Area,” but prohibiting the submission of

“average or composite rates for named individuals” (emphasis added)).

Second, Noblis knows better. Before the proposal due date, the Navy rejected

Noblis’s reading of the RFP’s cost realism requirements. In response to a question posed

by Noblis, the Navy declined to amend the Solicitation to require that all named

personnel be based in San Diego and listed with San Diego-based compensation rates.

AR 426; AR 3145-46 (question 4). Noblis asked as follows: “To ensure that compensation

levels are in accordance with the geographic area in which they are to be performed,

would the Government consider adjusting this section to also note that, ‘If Individuals

are known at time of the proposal, the proposed named personnel should be based in San

Diego’?” AR 426. The government responded in the negative. Id. (“The Government is

not adjusting this section.”).

Agency “answers to bidder questions amend[] the solicitation.” BayFirst Sols., LLC

v. United States, 102 Fed. Cl. 677, 689 n.15 (2012); see also Per Aarsleff A/S v. United States,

829 F.3d 1303, 1311 (Fed. Cir. 2016) (“[T]he questions and answers posed during an

agency solicitation . . . play a central role in the interpretation of

the solicitation provisions.”). At a minimum, such Q&As put offerors on notice of the

government’s reading of the Solicitation. As a practical matter, that means that Noblis’s

argument is untimely. Blue & Gold Fleet, 492 F.3d at 1313 (“We also hold that a party who

has the opportunity to object to the terms of a government solicitation containing a patent

error and fails to do so prior to the close of the bidding process waives its ability to raise

the same objection subsequently in a bid protest action in the Court of Federal Claims.”).

At this point, Noblis simply cannot object to the Navy’s failure to perform a locality

adjustment as part of its cost realism evaluation. The Navy had rejected its request for

that adjustment at outset of the procurement process, and Noblis neglected to challenge

the RFP’s terms before submitting its proposal.

Third, the rationale for Noblis’s requested locality adjustment — its assertion that

“90% of personnel proposed would need to be located in San Diego, CA to perform the

realism of direct labor rates,” and indicating that “in cases where the FPRR/FPRA were not

available, offeror-submitted payroll actuals will be utilized”).

25

contract work,” Pl. MJAR at 16 — is rooted in its flawed understanding of the RFP’s

requirement with respect to overhead costs. In § L-2, the Solicitation directs offerors

“with different indirect rates for Government and contractor facilities” to “[p]ropose on-

Government-site overhead rates (i.e., rates associated with performance at Government

facilities) for 90% of the level of effort for each labor category.” AR 223 (§ L-2, ¶ 2.1(c)).

Noblis reads this as a geographical requirement: that 90% of proposed personnel must be

“onsite” in San Diego, CA. Pl. MJAR at 16. As Solute correctly points out, however,

“[t]his instruction does not distinguish between work locations in San Diego and work

locations elsewhere; it distinguishes between overhead at a Government facility (where

overhead rates are typically low) and overhead at a contractor-owned facility (where

overhead rates are typically higher).” Solute MJAR at 17. And the Solicitation does not

elsewhere require or even suggest that 90% of the personnel proposed for the contract

must or will perform the work in San Diego; rather, the Solicitation indicates only that

“[a]ll or a portion of the effort under this contract will be performed on a Government

installation.” AR 121 (§ C, NIWC Pacific PWS Addendum, II(a)) (emphasis added); see

also AR 1205 (“Offerors were also instructed to assume that 90% of the effort would be

performed on Government Site.”). Indeed, the precise location of performance has not

been specified yet. Consistent with the IDIQ nature of this contract, the Solicitation

provides that the exact “[p]lace of delivery or performance” will be specified in

individual task orders. AR 121 (§ C, NIWC Pacific PWS Addendum, I(b)(9));. 20 Noblis’s

reading of the RFP is plainly contrary to the clear and unambiguous Solicitation

provisions.

In sum, the Navy’s cost realism evaluation fully complied with express terms of

the Solicitation. Contrary to Noblis’s assertion, the very terms of the RFP directed the

Navy to perform its analysis by relying on submitted payroll records and signed letters

of intent. The Navy did just that. It accepted current payroll data as sufficient

substantiation of direct labor cost realism, and evaluated the cost proposals of the two

offerors accordingly, just as the Solicitation provided. AR 1203-06. Given the

government’s compliance with the Solicitation, this Court cannot deem the Navy’s

analysis inadequate. 21

20 In an RFP attachment, the Navy lists numerous potential “location(s)” of contract performance,

including: the Naval Information Warfare Center in San Diego, CA; the Naval Information

Warfare Center in Hanahan, SC; and aboard Navy ships in San Diego, CA, Norfolk, VA,

Bremerton, WA, Jacksonville, FL, Pearl Harbor, HI, an Yokosuka, Japan. AR 244-45.

21 Given this Court’s rejection of Noblis’s cost realism argument, we do not need to reach the

prejudice issue. Nor does this Court reach Noblis’s other cost realism arguments, which either

amount to sums too small to be prejudicial, Pl. MJAR at 22 (Navy’s adjustments should have been

26

B. The Navy’s Evaluation of Solute’s Organizational Experience was

Consistent with the Terms of the RFP and Rational

Noblis’s next attack on the Navy’s award decision challenges the Navy’s

evaluation of Solute’s organizational experience. Pl. MJAR at 23-28. The Navy assigned

an “Outstanding” rating to Solute for the organizational experience evaluation factor. AR

1194. Noblis characterizes the Navy’s assessment as “irrational because its recognition

of the risks of Solute’s inexperience[,] and its determination that such risks could lead to

delays or nonfunctional applications, are not reflected in its factor level ratings or the

SSDD.” Pl. MJAR at 23-24. Noblis argues that the Navy “glossed over,” in particular, the

risks it identified in Solute’s proposal under evaluation key area 4 (Application

Integration and Application Development) and, in so doing, “effectively erased [the

Navy’s] recognition of the qualitative differences between Noblis’[s] and Solute’s records

of experience under the most important non-price factor . . . giving both Solute and Noblis

an ‘Outstanding’ rating.” Id. 24-25. Essentially, then, Noblis contends that because

proposal evaluators recognized some risk in Solute’s experience with respect to key area

4, the Navy’s decision to assign Solute a rating of “Outstanding” for the technical factor

as a whole is arbitrary and capricious. A simple review of the record thoroughly

disproves this contention.

Pursuant to the Solicitation’s evaluation requirements, the Navy evaluated the

“breadth, depth, and relevance of offeror organizational experience” since January 1,

2018, in each of four “key areas.” AR 239 (§ M-2, ¶ 2.1). These areas are: (1) Research

and Design; (2) Upgrades; (3) Developmental Testing; and (4) Application Integration

and Development. AR 232 (§ L-2, ¶ 3.1(a)). 22 As indicated in the Source Selection Board

(“SSEB”) Report, the Navy assigned an “Outstanding” rating for organizational

experience to both Noblis and Solute. AR 1139; AR 1165. An “Outstanding” rating, per

the RFP’s definition, means that each “[p]roposal demonstrates exceptional experience

and contains multiple strengths and/or at least one significant strength, and risk of

unsuccessful performance is low.” AR 52; see supra Section I.A.2. The Navy’s evaluators

“correctly calculated as a $676,132 cost increase”), or fail to quantify a cost impact altogether, id.

at 19 (asserting that Solute “based the cost that it proposed to the Navy” on rates of its affiliates,

which “creates the risk that these employees may not agree to perform and would require

substitution upon award”). At oral argument, counsel for Noblis acknowledged that these “small

cost” arguments, Tr. 5:12, “[did] not matter one way or the other” and need not be reached. Tr.

7:1-5.

22 As noted above, supra n.5, the first three of these key areas relate to “systems engineering”

experience. AR 232 (§ L-2, ¶ 3.1(a)).

27

found that Noblis had demonstrated “significant strengths” in all four key areas, whereas

Solute had demonstrated “significant strength” in three of the key areas and “strength”

in the fourth key area. AR 1129-41; AR 1154-67.

The SSEB Report explains the rationale for the “strength” rating in the fourth key

area. With respect to Solute’s first reference, the SSEB concludes: “the offeror did not

demonstrate adequate experience with the types of challenges expected under this

solicitation for CANES assessments and quantity of diverse applications from across

Department of Defense.” AR 1162. According to the evaluators, “because the offeror’s

experience does not indicate that it has covered the range of expected challenges

anticipated for Application Integration and Application Development under the RFP,”

there is “some risk of unsuccessful performance.” Id. With respect to the second

reference, the SSEB assessed it “overall as demonstrating adequate experience,” but notes

that “due to the limited integration experience, there is risk that some of the applications

requirements under this solicitation may not be adequately addressed[.]” AR 1163. The

SSEB likewise assessed the third reference as “demonstrating adequate experience,” but

notes that “there is some risk to successful performance because the offeror's experience

does not clearly demonstrate familiarity with technical documentation and functional

specifications specific to CANES, which could potentially delay publication delivery and

overall system implementation.” Id.

Although Solute did not receive a “significant strength” rating for the fourth key

area, the Navy determined that:

[Solute’s] adequate experience in this [fourth] area indicates

that [Solute] could successfully perform the contemplated

effort with the potential need for minor assistance and ramp

up from the Government to ensure that the applications that

will leverage the CANES Tactical Networks for transport or

services will be adequately integrated to reduce risk of poor

performance when the system is fielded.

AR 1167.

Then, as the RFP required, the Navy performed a holistic evaluation of Solute’s

ratings in all four of the key areas — including the three “significant strengths” and one

28

“strength — and determined that “[t]he risk of unsuccessful performance is low.” Id. The

Navy concluded:

Collectively, the proposal demonstrates exceptional

experience and contains multiple strengths and/or at least

one significant strength, and risk of unsuccessful performance

is low. Therefore, the rating for the organizational experience

factor is Outstanding.

Id.

Noblis’s argument that the Navy failed to “weigh the risks it had identified” and

“‘disappeared’ such risks as if they never existed with the magic words, ‘low risk,’” Pl.

MJAR at 26, finds no support in the administrative record and, yet again, reflects a

fundamental misunderstanding of the Solicitation’s evaluation process. In short, Noblis’s

contention that the Navy’s conclusion — i.e., that Solute was deserving of an

“Outstanding” rating for organizational experience — is “irrationally inconsistent with

its underlying findings,” Pl. MJAR at 27, amounts to nothing more than a mere

disagreement with the Navy’s judgment. See Banknote Corp. of Am. v. United States, 56

Fed. Cl. 377, 384 (2003), aff’d, 365 F.3d 1345 (Fed. Cir. 2004) (“[A]n offeror’s mere

disagreement with the agency’s judgment concerning the adequacy of the proposal is not

sufficient to establish that the agency acted unreasonably.”(citation omitted)); Croman

Corp. v. United States, 724 F.3d 1357, 1363-64 (Fed. Cir 2013) (affirming this Court’s

determination that “the agency had a rational basis for its action, notwithstanding

[plaintiff’s] arguments that simply amount to a mere disagreement with the wisdom of

the agency’s decision”); Harmonia Holdings Grp., LLC v. United States, 152 Fed. Cl. 97, 111

(2021) (“[Plaintiff protestor] may disagree with the agency’s assessment, but such a

disagreement does not allow a court to displace the reasoned and rational judgment of

the agency.”).

First, it is evident from the record, that the Navy evaluators did not in fact “gloss[]

over” or “disappear[]” the risks identified in Solute’s references for the fourth key area.

Rather, and here is where Noblis’s misunderstanding of the RFP’s evaluation process

becomes evident, the Navy documented those risks thoroughly in the SSEB report, AR

1154-67. The Navy then determined — as reflected in both the SSEB report and the SSDD

— that “collectively,” the proposal demonstrates the qualifications necessary to merit a

rating of “Outstanding” for the organizational experience technical factor. AR 1167

29

(emphasis added); AR 1197 (emphasis added). In other words, both the evaluators and

source selection officials agreed that the risks in one key area, when assessed together

with all the other elements for this technical factor, presented a “low” risk overall. AR

1167; AR 1197. This evaluation was entirely consistent with the Solicitation, which

mandated that “the rating for Organizational Experience will be based on the overall

evaluation of all key areas.” AR 238 (§ M-2, (c)) (emphasis added).

Moreover, Noblis’s assertion that “[b]oth significant strengths and strengths could

only apply to instances with no risk revealed in any reference,” Pl. Reply at 25, is plainly

wrong. The very definition of an “Outstanding” rating allows for some degree of risk, so

long as that risk is coupled with “exceptional experience” as well as “multiple strengths

and/or at least one significant strength.” AR 52. It is simply not the case that an offeror

had to be entirely risk-free to merit an “Outstanding” rating. The Navy’s evaluation of

Solute’s proposal as “low risk” overall is not undermined by the finding of some risk in

one key area. Rather, the Navy’s “Outstanding” rating for Solute’s organizational

experience complied with the RFP and was rational.

Put simply, the Navy reasonably concluded that despite the risk present in one

key area, the overall risk in Solute’s organizational experience was low, and its proposal

therefore merited an “Outstanding” rating for that factor. Noblis may be disappointed

with that assessment, but it “bears a heavy burden of showing that the award decision

had no rational basis.” Impresa Construzioni Geom. Domenico Garufi, 238 F.3d at 1332–33

(internal quotations omitted). Offering little more than “mere disagreements” with the

Navy’s conclusions, Noblis has failed to meet that burden here. IAP Worldwide Servs.,

Inc., 159 Fed. Cl. at 294 (describing Plaintiff’s “mere disagreements” as “naked claims,”

which “fall far short of meeting the heavy burden of demonstrating that these findings

were the product of an irrational process and hence arbitrary and capricious”).

C. The Navy’s Evaluation of Solute’s Past Performance Was Arbitrary and

Capricious

This case presents yet another instance where this Court must wade through the

FAR’s labyrinthine approach to defining — or rather, not defining — various terms. One

might expect that regulations governing the expenditure of billions of taxpayer dollars

would provide clear, universal definitions for such fundamental concepts. One would

be wrong.

30

Here, Noblis asserts that Solute (and the Navy) effectively treated Solute’s

affiliated entity as part of Solute itself, but where the Solicitation precluded the Navy

from considering the “past performance of affiliate companies who were not performing

as subcontractors under the prime award.” Pl. MJAR at 28. Although this sounds like a

per se challenge to Solute’s reliance on its affiliate’s past performance, Noblis agrees that

“an agency may generally consider affiliate past performance if there is nothing in the

solicitation explicitly stating otherwise,” so long as the proposal demonstrates that the

“‘resources of the parent or affiliated company will affect the performance of the

offeror.’” Id. at 29 (quoting Am. Auto Logistics, LP v. United States, 117 Fed. Cl. 137, 193

(2014)). According to Noblis, however, Solute improperly relied on the past performance

of its parent company, Sigma — and the Navy erroneously gave Solute full credit for the

Sigma past performance reference 23 — because Solute’s proposal fails to indicate “that

Sigma’s resources, personnel, or expertise will be made available to Solute in the

performance of this contract.” Id. Indeed, Noblis asserts, Solute’s proposal “deliberately

obscures the performing party when discussing Sigma’s contract references, referring to

Sigma as ‘Team Solute’ throughout the past performance volume.” Id.

This Court agrees with Noblis, but these affiliate issues present perennial

problems and so this Court writes at greater length to clarify the source of these problems,

the general background rules, as well as the precise nature of the government’s error here.

In short, while the FAR meticulously defines “affiliates” and provides detailed guidance

on “contractor team arrangements,” the FAR somehow managed to avoid providing

helpful and universal definitions for the very entities that form the backbone of federal

contracting: contractors and subcontractors themselves. This definitional gap has

spawned decades of controversies over a variety of issues for this Court and the GAO to

resolve, including when and how agencies may consider the past performance of entities

other than the offeror itself. The Court finds it necessary, therefore, to provide a

comprehensive analysis of the regulatory framework before turning to the specific facts

of this case.

23 Solute’s own past performance reference was rated “satisfactory.” AR 1201. In contrast,

Solute’s two other past performance references — for Booz Allen Hamilton, a proposed

subcontractor, and Sigma — were rated “exceptional.” Id. Thus, this Court concurs with Noblis

that “it is apparent that the two non-Solute references were what lead to [Solute’s overall]

‘Substantial Confidence’ rating for past performance.” Pl. MJAR at 30.

31

1. What the FAR does and does not define.

How does the FAR define the terms “contractor” and “subcontractor”? Surely the

FAR provides universal definitions for these foundational concepts that appear in

virtually every section of the regulation? Alas, no. While FAR 2.101 defines many things

— from “Acquisition” to “Economically disadvantaged women-owned small business

concern” to “Earned value management system” — it does not provide standalone,

universal definitions of “contractor” or “subcontractor.” The term “contract” is defined,

as is “contracting” and “contracting officer,” but the actual party to the government

contract is left in definitional limbo. To be sure, various FAR provisions use these terms

such that contextual definitions may be inferred. But comprehensive, universally

applicable definitions of “contractor” and “subcontractor”? Zilch. And while even grade

school children are familiar with the premise that a dictionary cannot define a word using

the same word, the FAR defines “Offeror” as “offeror or bidder.” FAR 2.101

Now perhaps the FAR drafters assumed these concepts were too fundamental to

require definition. After all, everyone knows that a “contractor” is the party to the

contract with the government, and everyone knows that “subcontractors” are separate

entities the contractor engages. But the absence of explicit definitions has led to endless

confusion about what it means to “consider” or “credit” an offeror with the experience of

its affiliates or proposed subcontractors — often called team members. The label “team

member” is itself confusing because some offerors may include in their proposals

affiliates or potential subcontractors, without any real commitment from those other

entities to actually perform the resulting contract should the offeror be selected as the

contract awardee. And that has a second order effect: offerors assume that because they

control an affiliate or propose to use a subcontractor, they can claim that entity’s past

performance as their own. This assumption is wrong as a matter of both law and logic,

but the FAR’s silence on the basic definitions has not helped matters.

Let us begin with what the FAR actually defines. FAR 2.101 defines “Affiliates”

as “associated business concerns or individuals if, directly or indirectly either one

controls or can control the other; or third party controls or can control both.” The very

fact that the FAR defines “affiliates” as separate entities reveals a fundamental truth

about federal contracting: affiliates are not the offeror during the procurement process, and

they are not the contractor upon award.

FAR 9.601 defines “Contractor team arrangement” as “an arrangement in which

(1) Two or more companies form a partnership or joint venture to act as a potential prime

32

contractor; or (2) A potential prime contractor agrees with one or more other companies

to have them act as its subcontractors under a specified Government contract or

acquisition program.” But subcontractors — entities with whom the prime contractor

contracts to perform portions of the work — are similar to affiliates in at least one respect:

they are not the contractor either. That is true even when the offeror — i.e., the would-be

prime contractor — intends to enter a subcontract with another company to perform part

of the contract scope. And that is true whether the offeror’s intent to enter a subcontract

is memorialized in a binding teaming agreement with the potential subcontractor

(governed by state law) during the proposal phase of the procurement or whether there

is no formal arrangement at all. 24 Indeed, the FAR recognizes that while “[t]he companies

involved normally form a contractor team arrangement before submitting an offer[,] …

they may enter into an arrangement later in the acquisition process, including after contract

award.” FAR. 9.602(c) (emphasis added).

This all may seem obvious, but its implications are profound and frequently

misunderstood.

2. The Iron Law of Privity: there can be only one contractor.

Here is the critical point that flows from the foregoing definitions: with limited

exceptions not relevant here (e.g., certain contractor team arrangements involving

partnerships or unincorporated joint ventures), there can be only one entity in privity of

contract with the government. That entity is the offeror, which becomes the contractor

(singular) when it is awarded the contract. 25 Thus, the FAR provides that the government

24 Michael W. Mutek, Close Enough for Government Work: The Economic Utility of Teaming Agreements

and the Issue of Enforceability, 49 Pub. Cont. L.J. 423, 431 (2020) (noting that the term “teaming

agreement” does not appear in FAR subpart 9.6, Contractor Team Arrangements” and that “there

is no prescribed format in the FAR for a teaming agreement; in fact, there is no express

requirement in the FAR that such an agreement be written”); id. at 452 (“Although the FAR

addresses the government’s recognition of contractor team arrangements as well as the economic

utility of such arrangements, a teaming agreement’s enforceability looks to the law of its

governing state.”).

25 As if things are not confusing enough, FAR 9.6 (“Contractor Team Arrangements”) does not

apply to the U.S. General Services Administration multiple award schedule (“MAS”) contractor

team arrangements (“CTAs”). https://perma.cc/DZL3-ZP93. For a MAS CTA, “the parties” to

the agreement “remain independent contractors and not create a joint venture or separate

subsidiary” but “each member(s) will operate as a prime contractor for the portion of work they

perform and be responsible for their own employees.” Id.; see also Defense Logistics Acquisition

Directive 8.403(b)(S-90)(2) (“FAR subpart 9.6 Contractor Team Arrangements does not apply to

33

will “[h]old the prime contractor fully responsible for contract performance, regardless

of any team arrangement between the prime contractor and its subcontractors.” FAR

9.604(e).

Which leads us to another set of axioms that are worth making explicit. The

government does not contract with the offeror’s affiliates. Nor does the government

contract with the offeror’s proposed subcontractors. And that means that any

relationship between the contractor and its subcontractors or affiliates is a private

arrangement that exists outside the government contract, governed by separate

agreements or corporate arrangements to which the government is not a party.

These fundamental principles yield an additional crucial corollary: the past

performance of an affiliate or subcontractor cannot be considered the experience or past

performance of the offeror or contractor itself. An affiliate’s stellar track record does not

magically become the offeror’s track record by virtue of common ownership. A proposed

subcontractor’s decades of successful performance do not transform into the would-be

prime contractor’s own experience merely because that offeror proposes to have the

identified subcontractor perform some portion of the contract work.

In other words, affiliates and subcontractors are all separate legal entities, and

their respective histories remain separate and distinct. When an agency evaluates an

offeror’s proposal and considers the past performance of proposed subcontractors or

affiliates, the agency is not crediting the offeror with the other entities’ experiences as the

offeror’s own. Rather, properly considered, the agency is assessing whether the offeror’s

proposed performance — its plan to leverage the capabilities of other entities — is

credible, realistic, and likely to result in successful contract performance.

This distinction may seem semantic, but it is legally significant. An offeror with

no relevant past performance cannot bootstrap itself into a “satisfactory” past

performance rating simply by proposing to use an experienced subcontractor. What the

offeror can potentially demonstrate is that its overall proposed approach to performing

the contract — which includes the use of that experienced subcontractor — is

advantageous and likely to succeed.

GSA Schedules teaming.”). With a typical prime-subcontractor relationship of the type that FAR

9.6 addresses, there is only one prime contractor. The same is true with a prime’s affiliates; they

are not in privity of contract with the government.

34

3. FAR 15.305 permits consideration of subcontractor past performance.

Despite the absence of universal definitions for contractors and subcontractors —

or a useful definition of offeror — the FAR does provide limited guidance on an agency’s

consideration of past performance information belonging to entities other than the

would-be prime contractor. In particular, FAR 15.305(a)(2)(iii) provides that “[t]he

evaluation should take into account past performance information regarding predecessor

companies, key personnel who have relevant experience, or subcontractors that will

perform major or critical aspects of the requirement when such information is relevant to

the instant acquisition.”

This Court has several observations about this FAR provision.

First, the language is permissive: agencies “should” consider the specified

information, but the language is not mandatory (it does not contain the commanding

words of “shall” or “must”). This is not accidental. As the GAO has observed, FAR

15.305 “permits, but does not require, procuring agencies to consider the experience and

past performance of these additional entities and personnel in evaluating an offeror’s past

performance.” MW-All Star Joint Venture, B-291170.4, 2004 CPD ¶ 98, 2003 WL 23527069,

*3 (Comp. Gen. Aug. 4, 2003).

Second, let us be clear about what this consideration entails: it is an assessment of

the offeror’s proposed approach and team, not an attribution of others’ experience to the

offeror itself. The provision directs agencies to “take into account” this information —

not to credit it to the offeror as if it were the offeror’s own performance. The agency is

evaluating whether the offeror’s team, as proposed, is likely to perform successfully. An

offeror with a lack of relevant experience itself may still be evaluated favorably if it has

assembled a credible team of experienced subcontractors and key personnel, but this is a

prospective assessment of likely performance based on the specific proposal, not the

attribution of the subcontractors’ past performance to the offeror per se.

Third, the provision applies to “predecessor companies . . . or subcontractors that

will perform major or critical aspects of the requirement.” FAR 13.305(a)(2)(iii). This

language contemplates meaningful involvement in contract performance, not mere

window dressing. An offeror cannot expect favorable consideration simply by naming

an experienced subcontractor in its proposal. The proposal ordinarily must demonstrate

that the subcontractor will actually perform substantive work.

35

When it comes to affiliates, FAR 15.305 does not mandate their consideration

either, though the Defense FAR Supplement (“DFARS”) specifically requires that

“[w]hen evaluating the past performance of an offeror that is a small business concern in

response to a competitive solicitation, contracting officers shall consider relevant past

performance information provided for affiliates of the offeror.” DFARS 215.305(a)(2)(C).

This Defense Department and small business-specific requirement highlights the FAR’s

general silence on the matter.

What is clear, then, from the regulatory framework is that agencies have

significant discretion in structuring their solicitations to define when and how they will

consider the past performance and experience of team members — whether

subcontractors or affiliates. But regardless of how an agency structures its evaluation,

the fundamental principle remains: the past performance of affiliates and subcontractors is not

the offeror’s past performance per se. It is separate information that may inform the agency’s

assessment of the offeror’s proposed approach to performing the contract in a particular

procurement under a particular proposal.

4. Four Solicitation Permutations.

Through decades of decisions from this Court and the GAO, a pattern has emerged

regarding how agencies may structure their solicitations vis-à-vis subcontractors and

affiliates. The Court identifies four principal permutations.

Permutation One: The Total Exclusion. A solicitation may expressly preclude the

use of subcontractors and/or affiliates altogether. In such cases, an offeror is limited to

demonstrating its own independent capabilities and past performance — that is, the

experience of the single entity that will be in privity of contract with the government. In

such a procurement, the agency is essentially communicating: “We will contract with one

entity, and we want to evaluate that entity’s own track record, not the track records of

other entities it proposes to hire or with which it happens to be affiliated.”

The GAO, for example, has enforced provisions that prohibit the utilization of

subcontractors and/or affiliates. See CardioMetrix, B-257408, 94-2 CPD ¶ 57, 1994 WL

413150, *1-2 (Comp. Gen. Aug. 3, 1994) (upholding a solicitation’s explicit subcontracting

limitation and rejecting plaintiff’s contention that such limitation is “unduly restrictive”);

The EC Corp., B-236973, 90-1 CPD ¶ 23, 1990 WL 277516, *2 (Comp. Gen. Jan. 5, 1990)

(denying a post-award protest and holding that “to the extent that the protestor’s

36

[proposal] was inconsistent with the prohibition against subcontracting guard services,

its [proposal] could properly be rejected as unacceptable since it took exception to a

material requirements of the solicitation”).

Depending on the nature of the procurement, this type of solicitation provision

makes perfect sense from a risk management perspective. The government will be in

privity only with the prime contractor. If the subcontractors fail to perform, the

government’s recourse is against the prime only, and not against the subcontractors, as

explained supra. Therefore, an agency may want to ensure that the prime contractor itself

— the entity that will bear contractual responsibility — has demonstrated capability and

past performance.

When a solicitation contains such a prohibition, agencies must adhere to it. An

agency cannot credit an offeror with subcontractor or affiliate experience if the

solicitation expressly forbids subcontracting (or the use of affiliates). To do so would

violate the fundamental principle that agencies must evaluate proposals in accordance

with the stated evaluation criteria. See FAR 15.305(a) (“An agency shall evaluate

competitive proposals and then assess their relative qualities solely on the factors and

subfactors specified in the solicitation.”); Ernst & Young, LLP v. United States, 136 Fed. Cl.

475, 514-15 (2018) (explaining that the text of the solicitation “governs how the proposals

are to be evaluated”).

On the other hand, the government cannot arbitrarily prohibit consideration of

affiliates or subcontractors. The Competition in Contracting Act of 1984 requires that

solicitations generally permit full and open competition and contain restrictive

provisions only to the extent necessary to satisfy the needs of the agency. 10 U.S.C.

§ 2305(a)(1)(B)(ii). Where a protester challenges a solicitation provision as unduly

restrictive of competition, the procuring agency may be forced to demonstrate that “the

provision is reasonably necessary to meet the agency’s needs.” Iyabak Constr., LLC, B-

409196, 2014 CPD ¶ 62, 2014 WL 523829, *2 (Comp. Gen. Feb. 6, 2014); see also Total Health

Res., B-403209, 2010 CPD ¶ 226, 2010 WL 4014391, *2-3 (Comp. Gen. Oct. 4, 2010)

(solicitation requirement for specific experience on the part of the prime contractor was

unduly restrictive of competition where the agency did not show that its needs could not

be satisfied by a subcontractor with relevant experience). 26

26 See also Iyabak Constr., 2014 WL 523829, *4 (“In sum, we find that the RFP’s past performance

and experience requirements are unduly restrictive of competition, given the agency’s failure to

explain why its needs could not be satisfied by a less restrictive method of evaluating offerors’

37

Permutation Two: Limited Credit. A solicitation may permit the use of

subcontractors and/or affiliates in an offer or proposal, but restrict the offeror from

relying on its subcontractors’ or affiliates’ past performance or corporate experience for

evaluation credit. In this structure, for example, offerors may propose to use

subcontractors or affiliates, and the agency may consider how these entities will

contribute to performance under other evaluation factors (such as technical approach or

management plan), but the offeror receives no affirmative evaluation credit for the

subcontractors’ or affiliates’ track records under the past performance evaluation factor.

Cf. Constructure-Trison JV, LLC, B-416741.2, 2018 CPD ¶ 397, 2018 WL 6191078, *3 (Comp.

Gen. Nov. 21, 2018) (rejecting protest where the RFP expressly provided “that offerors

were required to provide ‘a signed copy of a joint venture agreement, partnership

agreement, teaming agreement, approved mentor protégé agreement (MPA) or letter of

commitment for each member of the Offeror’s team identified’ in the technical approach

narrative”).

This Court addressed such a provision in KGJJ Eng’g Sols., LLC v. United States, 161

Fed. Cl. 556, 566 (2022), where the solicitation provided that “[t]he [g]overnment will not

consider any project submitted for experience that was performed by a firm other than

the Offeror.” While there were exceptions for “first-tier small business subcontractors,

joint ventures, parent companies, subsidiary companies, predecessor companies, or

satellite offices of the offeror,” there was “no exception for work done by affiliate or sister

companies.” Id. at 566. Judge Bruggink held that this express exclusion controlled, and

thus rejected the government’s argument that the offeror’s affiliates were part of the

offeror’s “team.” Judge Bruggink explained that while “affiliates supporting the offeror’s

performance were referred to as ‘Team Members’ in the Price and Past Performance

factors,” the solicitation’s “definitions” subsection specifically defined “Offeror’s Team”

past performance and experience. That is, the Corps has not explained or shown why the

agency’s concerns with considering an affiliate’s past performance and experience under the RFP

are not satisfied by making such consideration contingent upon a firm commitment that the

affiliate would participate meaningfully in the performance of the contract.”); but see Valor Constr.

Mgmt., LLC, B-405365, 2011 CPD ¶ 226, 2011 WL 5044562, *3 (Comp. Gen. Oct. 24, 2011) (“Here,

the agency has determined that, given the complexity of the project, the past performance of team

members which will lack contractual privity with the government does not lessen the risk of

inadequate performance (and thus is not relevant) in the same way as the past performance of

team members with which the agency will have a contractual relationship. In any case, while an

agency may consider a subcontractor’s information, it is not required to do so. . . . [T]he agency

has a legitimate interest in assessing performance risk by considering only the experience and

past performance of entities with which it will have contractual privity.”).

38

as “the offeror and its ‘first-tier small business subcontractor(s) only.’” Id. “Nowhere in

the solicitation does it state that an affiliate’s experience will be considered, either by itself

or as a member of the offeror's team.” Id. 27

The GAO has similarly held that agencies must follow express prohibitions. In

Xtreme Concepts Inc., the Army Corps of Engineers’ solicitation specified that “only the

prime contractor's past performance information would be evaluated.” B-413711, 2016

CPD ¶ 372, 2016 WL 7367629, *1 (Comp. Gen. Dec. 19, 2016). The Army Corps

accordingly refused to evaluate a subcontractor’s past performance and assigned the

protestor a “neutral” rating. Id. at *2. While the GAO sustained the protest on other

grounds, the GAO found that the agency’s decision not to consider subcontractor past

performance was entirely proper given the solicitation’s express prohibition. Id. at *3 n.7.

This permutation recognizes the distinction between evaluating an offeror’s

proposed approach (which necessarily involves assessing the capabilities of proposed

team members) and evaluating the offeror’s own demonstrated track record. An offeror’s

plan to use experienced subcontractors may make its technical approach more credible

or its management plan more feasible, but those subcontractors’ successful past

performance on other contracts does not become the offeror’s past performance.

This approach makes sense when the agency wants to ensure that the prime

contractor itself has a proven track record. After all, even the most experienced

subcontractor cannot guarantee successful contract performance if the prime contractor

lacks the capability to manage the effort. Again, the prime contractor — the entity in

privity with the government — bears ultimate responsibility for the subcontractors’

work. Therefore, the agency may reasonably decide to focus its past performance

evaluation on the offeror’s own demonstrated ability to successfully perform and manage

similar contracts.

Permutation Three: The Committed Teaming Requirement. A solicitation may

permit the use of subcontractors or affiliates and allow the agency to consider their past

27 See also Veterans Electric, LLC v. United States, 138 Fed. Cl. 781, 791 (2018) (concluding that the

plain language of the solicitation required that the contractor itself — i.e., “[the] party to [the]

Government contract other than the Government” — must satisfy the solicitation’s contractor

qualifications without referencing the capabilities of a proposed subcontractor (internal

quotations omitted)); Tele-Consultants, Inc. v. United States, 142 Fed. Cl. 686, 695 (2019) (noting that

“offerors were not permitted to rely upon the corporate experience or past performance of other

legal entities” and that “doing so would render them ineligible for award”).

39

performance or experience in the evaluation, but require proof that the offeror has

actually entered into agreements with its proposed subcontractors or a demonstration of

how the affiliate will be used (and that the affiliate is committed to performing the work).

This is where CTAs under FAR 9.601 become particularly relevant. When an agency

requires documented teaming agreements, it is seeking assurance that the proposed

arrangement is more than aspirational — that the offeror has secured commitments from

its teammates and that the proposed relationships are genuine and enforceable.

For example, in Strategic e-Business Solutions., Inc., the GAO addressed a

solicitation requirement that permitted offerors to meet an experience requirement “with

a combination of experience from the prime and subcontractor(s).” B-310210, 2007 CPD

¶ 206, 2007 WL 3313150, *1 (Comp. Gen. Nov. 8, 2007). The solicitation specifically

permitted the would-be prime to “use experience across multiple legal entities that are

owned under a single corporate umbrella[,]” but required that “[s]ubcontracting

agreements and the establishment of new legal entities must be final at the time of

proposal submission.” Id. The protestor asserted the government had erred in rejecting

the protestor’s proposal “for failing to furnish a fully-negotiated subcontracting

agreement.” Id. at *2. “Contrary to the protester’s position,” the GAO reasoned, “the RFP

required more than written evidence of an agreement to enter into a subcontract; the RFP

language . . . clearly provided that any subcontracting agreements on which an offeror

relied to establish the required experience had to be ‘final’ at the time of proposal

submission.” Id.

Similarly, in G4S-SJC, LLC, an agency found that the protestor, G4S:

failed to demonstrate designer experience because all of the

projects submitted under the designer experience subfactor

were performed by entities other than G4S and, under the

terms of the solicitation, none of these projects could be

considered because G4S failed to submit evidence of a

binding teaming agreement or other contractual agreement

between G4S and its design subcontractor.

B-409694, 2014 CPD ¶ 229, 2014 WL 3940304, *3 (Comp. Gen. July 14, 2014). G4S’s

proposal referred to a specific party as the “Design Partner,” but the GAO concluded “in

the context of this procurement, if [the Design Partner] was not the offeror or a joint

venture partner, it must have been a subcontractor.” Id. at *4. With regard to

40

subcontractors, however, “the RFP required that offerors submit evidence of a binding

teaming agreement or other contractual agreement.” Id. Because “G4S did not submit

such an agreement between itself” and the Design Partner, “the agency reasonably

concluded that it could not consider the projects submitted under the designer experience

factor because none of the projects were performed by G4S, and the protester failed to

submit the requisite contractual agreements to allow the agency to consider projects

performed by other entities.” Id.

Another important point emerges from the G4S decision:

[T]o the extent that the protester contends that [the Design

Partner] was not a subcontractor, we note that the

relationship between G4S and [the Design Partner] as shown

in G4S’s proposal was, at best, ambiguous. In this regard, it

is an offeror’s responsibility to submit a well-written

proposal, with adequately detailed information which clearly

demonstrates compliance with the solicitation requirements

and allows a meaningful review by the procuring agency.

2014 WL 3940304, *4 n.3.

The requirement for documented teaming agreements serves several purposes.

First, it ensures that the offeror is not simply name-dropping more experienced

companies without any actual commitment from those companies. Second, it gives the

agency some concrete assurance that the proposed team is real and will actually perform

the awarded scope of work together. Third, it may provide some basis for holding the

prime accountable if it attempts to substitute different subcontractors after award.

Permutation Four: The Silent Solicitation Default Rule. Perhaps the most

common scenario is where the solicitation does not say anything about affiliate or

subcontractor past performance — either regarding how the agency will consider it or

what an offeror must demonstrate in its proposal to obtain proposal credit for it. In this

scenario, a default rule applies: the procuring agency may consider the experience or past

performance of subcontractors or affiliates of an offeror, so long as the offeror explains

how the subcontractors or affiliates will be used to perform the work.

41

Both this Court and the GAO have consistently articulated the same foundational

principle: “[A]n agency properly may attribute the experience or past performance of a

parent or affiliated company to an offeror where the firm’s proposal demonstrates that

the resources of the parent or affiliated company will affect the performance of the

offeror.” Femme Comp Inc. v. United States, 83 Fed. Cl. 704, 747 (2008) (quoting Hot Shot

Express, Inc., B–290482, 2002 C.P.D. ¶ 139, 2002 WL 1831022, *2 (Aug. 2, 2002)); see also Am.

Auto Logistics, LP v. United States, 117 Fed. Cl. 137, 188 (2014), aff’d, 599 F. App’x 958 (Fed.

Cir. 2015); Sterling Med. Assocs., Inc. v. United States, 177 Fed. Cl. 550, 570 (2025); Anham

FZCO v. United States, 144 Fed. Cl. 697, 712 (2017). The relevant consideration is “whether

the resources of the parent or affiliated company — its workforce, management, facilities

or other resources — will be provided or relied upon for contract performance such that

the parent or affiliate will have meaningful involvement in contract performance.”

Peraton, Inc., B-421038, 2023 CPD ¶ 92, 2023 WL 3093354, *11 (Comp. Gen. Apr. 12, 2023);

see also Inquiries, Inc., B-418486, 2020 CPD ¶ 182, 2020 WL 3034820 (Comp. Gen. May 27,

2020). Examples of meaningful involvement include “reliance on the ‘workforce,

management, facilities or other resources’ of the parent or affiliated company.” Anham

FZCO, 144 Fed. Cl. at 712 (quoting IAP World Servs. Inc, B-407917.2, 2013 CPD ¶ 171, 2013

WL 2817472 (Comp. Gen. July 10, 2013)).

In IAP World Servs., Inc., the Navy credited a joint venture with the corporate

experience and past performance of two subsidiaries of the joint venture member’s parent

company. B-407917.2, 2013 CPD ¶ 171, 2013 WL 3817472, *7 (Comp. Gen. July 10, 2013).

The joint venture’s other member had a senior vice president who sat on the joint

venture's board of managers and was responsible for that member’s operations and

maintenance division. The Navy and intervenor argued that this senior vice president’s

position on the joint venture’s board demonstrated “a commitment of resources or

performance on the part of the parent company.” Id. The GAO disagreed, holding that

“[e]ven accepting that the . . . vice-president’s position on the joint venture’s board of

managers demonstrates a commitment of resources by the parent corporation, this does

not show a commitment of resources from other separate corporate subsidiaries.” Id.

Nor did it “show that other . . . subsidiaries will be meaningfully involved in contract

performance.” Id.

But the mere fact of affiliation is insufficient. As the GAO explained in Language

Select LLP:

42

[W]here an agency observes apparent affiliation between

companies but lacks evidence establishing the nature of the

relationship in the procurement at issue, the potential for

variations in the extent and nature of the relationship between

two affiliated companies means that it is not reasonable for

that agency simply to infer that the relationship will affect

contract performance[.]

B-415097, 2017 CPD ¶ 359, 2017 WL 5969279, *7 (Comp. Gen. Nov. 14, 2017). Before an

agency can properly attribute the past performance of an affiliate to an offeror, “it

generally must have a factual basis showing the planned relationship between the

companies on the contract at issue.” Id. (emphasis added); see also ST Aerospace Engines Pte.

Ltd., B-275725, 97-1 CPD ¶ 161, 2017 WL 5969279 (Comp. Gen. Mar. 19, 1997); Peraton,

2023 WL 3093354, *11 (“[I]t is inappropriate to consider an affiliate’s record where that

record does not bear on the likelihood of successful performance by the offeror and where

there is no evidence that the affiliate will meaningfully contribute to performance.”).

General statements of corporate unity are also insufficient. In Advanced

Management Strategies Group, Inc./Reefpoint Group, LLC v. United States, Judge Bruggink

found that “other than naming the two entities together and citing [the affiliate]’s

experience, the proposal draws no link to assure the agency that ‘the resources of the ...

affiliated company will affect the performance of the offeror.’” 139 Fed. Cl. 404, 417 (2018)

(quoting Femme Comp, 83 Fed. Cl. at 747). Judge Bruggink thus held that where “there is

no documentary support for the agency’s reliance on [the affiliate]’s corporate healthcare

experience,” the agency acted arbitrarily in crediting the offeror with that experience. 139

Fed. Cl. at 417.

In contrast, in Ahtna Logistics, LLC v. United States, this Court found an adequate

demonstration of commitment where the proposal explained that an affiliate company’s

“management personnel, Subject Matter Experts (SMEs), resources, technology tools,

company policies and business processes, and the company Quality Management System

(QMS) are being directly transferred from [the affiliate] to [the contractor] to provide

specific expertise.” 163 Fed. Cl. 488, 513-14 (2022). The proposal at issue in that case

identified “thirteen specific people” from the affiliate “who would be part of [the

contractor’s] corporate leadership, the shared services that span [the affiliate and the

43

contractor],” as well as listing “shared systems, plans, and policies.” 163 Fed. Cl. at 514

(cleaned-up). This level of specificity was sufficient. 28

****

What emerges from this regulatory and decisional thicket is a framework

governed more by solicitation-specific terms than by universal rules. But underlying all

four permutations is a single, unifying principle: there is one offeror, which becomes the

prime contractor when awarded the contract, and that entity alone is in privity with the

government. Subcontractors and affiliates are separate legal entities whose experience

and past performance remain their own. Because the FAR does not provide universal

definitions of “contractor” and “subcontractor,” and because it grants agencies wide

latitude in structuring their evaluation criteria, the answer to “Can I get credit for my

affiliate’s or subcontractor's past performance?” is invariably: “It depends.”

It depends on whether the solicitation expressly prohibits such consideration

(Permutation One). It depends on whether the solicitation allows affiliate or

subcontractor use but restricts evaluation credit under the past performance factor

(Permutation Two). It depends on whether the solicitation requires documented teaming

arrangements or proof of affiliate commitment (Permutation Three). And if the

solicitation is silent, it depends on whether the offeror has adequately explained how the

subcontractor or affiliate will be involved in performance (Permutation Four).

28 Solicitations may also distinguish between subcontractors and affiliates. In Nat’l TRU Sols.,

LLC, the GAO addressed whether an affiliate should be treated as a “teaming subcontractor” or

as an “affiliate.” B-420913, 2022 CPD ¶ 277, 2022 WL 19661852, *19 (Comp. Gen. Nov. 3, 2022).

The solicitation permitted newly formed entities to utilize affiliate resources including “material

supplies, equipment, personnel, or other tangible assets,” as well as “expertise, best practices,

lessons learned, or similar resources.” Id. at *21. The solicitation further instructed, however,

that offerors not include the names of non-teaming subcontractors in their technical proposals.

Id. at *20. The awardee, a newly formed entity, included over 40 references to its affiliate,

including detailed discussions of the affiliate’s past performance, capabilities, and innovations.

Id. at *22. The protestor argued that the affiliate was being offered as a “teaming subcontractor”

subject to the solicitation’s requirements for such entities. Id. The GAO disagreed, finding the

agency reasonably evaluated the affiliate as such. Id. Critically, the offeror had included its

affiliate’s commitment letter in the proposal, making “it clear that the loaned personnel would be

employed directly by [the offeror].” Id. at *21. The GAO held that “the solicitation does not

include a similar prohibition on referencing or relying on the proposed resources of an affiliate”

even though it prohibited naming non-teaming subcontractors. Id. at *22.

44

But in all four permutations, the fundamental reality is the same: when an agency

considers the past performance of a subcontractor or affiliate, it is not converting that experience

into the offeror’s own past performance. Rather, the agency is making a prospective

judgment about whether the offeror’s proposed approach — which includes the use of

certain teammates — is likely to result in successful contract performance.

In sum, both offerors and agencies must remember that federal contracting is built

on the general principle of privity: one government, one contract, one contractor.

Subcontractors and affiliates may play critical roles in performance, but they remain

separate legal entities. Their experience is their experience, their past performance is their

past performance, and their contractual obligations run to the prime contractor, not to the

government. No amount of creative proposal writing or evaluation gymnastics can

change this fundamental legal reality.

Having established the regulatory framework and four permutations of

solicitation structure, the Court now turns to the specific facts before it.

5. On this record, the government’s evaluation of Solute’s past performance

is arbitrary and capricious.

The proposal instructions in § L for Volume III — which covers organizational

experience (factor 1) and past performance (factor 2) — were rather sparse. As noted

above, offerors had to submit an organizational experience matrix “to explain the

breadth, depth, and relevance of your organizational experience since 01 January 2018”

in certain key areas. AR 232 (§ L-2, ¶ 3.1(a)) (emphasis added). The RFP did not define

“your,” nor did it address corporate entities affiliated with the offeror. Offerors had to

illustrate their experience via “references,” including “at least one (1) reference for work

performed by the prime offeror, no more than one (1) reference per subcontractor, and

no more than three (3) references total.” AR 232 (§ L-2, ¶ 3.1(a)). The Solicitation further

instructs offerors to “[c]ite references in the following order: work performed by the

prime, then work performed by the subcontractor.” Id. From this line, the Solicitation

appears to assume the offeror will only be using references from itself or subcontractors;

no mention is made of affiliates. But neither is there any express restriction on an offeror’s

using a reference from an affiliate.

The Solicitation further provides that the “[t]he references submitted under [§ L]

paragraph 3.1 above will be used to evaluate past performance.” AR 233 (§ L-2, ¶ 3.2(a)).

The evaluation criteria in § M aligns in the main with the proposal instructions, with the

45

exception that “[Evaluation] Factor 1 – Organizational Experience” refers only to an

“offeror’s organizational experience,” but does not mention either affiliates or

subcontractors. AR 239 (§ M-2, ¶ 2.1). The same is true for “[Evaluation] Factor 2 – Past

Performance.” Id. (§ M-2, ¶ 2.2). That section, as well, makes no mention of affiliates or

subcontractors.

In sum, the Solicitation did not expressly prohibit the use of affiliates or

subcontractors, nor did it contain language restricting the consideration of teammate past

performance. Nor did the Solicitation require offerors to submit documentation of

committed teaming agreements. Accordingly, this case falls closest to Permutation Four,

supra; the Solicitation certainly does not fit into Permutations One, Two, or Three.

Because we are in Permutation Four, Solute’s proposal must identify specific

resources (personnel, facilities, certifications, systems) of its affiliate, explain how those

resources will be used on the solicited contract, and demonstrate that the affiliate is

committed to providing those resources. As this Court in American Auto Logistics

observed, while a corporate family “may be composed of hundreds of legal entities,”

creating a potentially “heavy burden to require every individual entity that is to be

involved in a proposed contract to independently certify its involvement,” it is

nevertheless the requirement “to make[] clear that the resources of the parent or affiliated

company will affect the performance of the offeror” such that “the past performance

references of the parent or affiliate can be acknowledged.” Am. Auto Logistics, 177 Fed.

Cl. at 193 (internal quotations omitted). Vague statements about affiliation, shared

management, or corporate unity are insufficient.

The precise question for this Court is thus whether, under that legal standard, the

government could properly assign Solute’s proposal a “Substantial Confidence” rating

for past performance where, as here, Solute relied on its affiliate. AR 1189. 29 As noted

above, Solute provided three references for the organizational experience matrix. The

first reference was from Sigma Defense Systems LLC. AR 861. Solute identified Sigma

as “Solute’s parent company.” Id. The other two references were from Booz Allen

Hamilton — a subcontractor — and Solute itself. Id.

In describing the Sigma reference, Solute noted that it is “a Sigma Defense

Company.” AR 863. Solute further noted, once again, that Sigma is “Solute’s parent

29 Noblis and Solute received identical ratings across the board. AR 1189.

46

company.” Id. Solute’s description of reference number 1 (from Sigma) repeatedly refers,

throughout the document, to “Team Solute,” but never once defines the term in the

Volume III. AR 863-67. In contrast, reference number 3 (from Solute itself) does not refer

to “Team Solute,” but rather only to Solute. AR 875-79. The reason for the difference in

terminology is not apparent and is not explained.

There is no evidence that the government properly distinguished between the

offeror, Solute, and its affiliate or even its proposed subcontractor. The SSEB Report, for

example, repeatedly and consistently refers to Solute, Sigma, and Booz Allen Hamilton,

collectively, as “the offeror.” AR 1154-67; AR 1172-73. That the SSEB failed to distinguish

between Solute, as the offeror, and its affiliate (Sigma) and proposed subcontractor (Booz

Allen Hamilton) is most clearly seen in the SSEB Report, which concluded that

“collectively, through the three references, the offeror covered work that involved

essentially the same scope and magnitude of effort and complexities this solicitation

requires.” AR 1173 (emphasis added). The SSDD repeats the same language, referring

to all three of Solute’s organizational experience and past performance references as

being from “the offeror.” AR 1193-94. Notably, the SSDD often refers to Solute in the

plural possessive — e.g., “their efforts”; “how they supplied”; “how they investigated”

— without specifying what “their” or “they” specifically means. Id.

The bottom line is that there is simply no evidence — no indication whatsoever —

that the Navy evaluators and source selection officials understood that Sigma and Solute

are different entities. And nothing in Volume III of Solute’s proposal sheds any light on

the critical issues: whether and how Sigma was committed to performing any contract

awarded to Solute.

Solute, however, points to its cost proposal in Volume II. AR Tab 31. There, Solute

explains, is all the information this Court needs to salvage the agency’s decision here. See

Tr. 56:17-57:15 (counsel for Solute directing this Court to Solute’s cost proposal for a

description of “how Sigma’s resources would affect performance”). But in that volume,

Solute similarly vacillates between referring to itself as “Solute” and “Team Solute.” See,

e.g., AR 968. And though Volume II references Sigma Defense Systems as Solute’s parent

company, AR 986 — and indicates that “Sigma and its wholly owned subsidiary, Solute,

became fully integrated,” AR 988 — Volume II nowhere explains the systems, personnel,

or other resources that Sigma will dedicate to Solute’s performance, should Solute be

awarded the contract. AR 988.

47

This Court acknowledges Solute’s further assertion, in Volume II, that Solute’s

integration with Sigma “brings the collective capabilities together under a single

management team” and that “the two companies are treated as a single segment with

shared indirect rates allowing the free flow of talent across both segments of the

company.” AR 988. But none of that is sufficient — on this record — to support the

Navy’s giving Sigma credit for Solute’s reference in Volume III. For starters, talent may

be able to flow freely across the integrated companies, but precisely what Sigma talent

has been committed to Solute’s performance of the contract at issue? Is it the same talent

that performed the Sigma contract described in reference 1 (of Volume III), or did Sigma

plan to deploy only one person from its management who had nothing to do with the

Sigma contract that Solute referenced?

There are even more significant problems with Solute’s argument: Solute’s

proposal in Volume I critically undercuts Solute’s reliance on Volume II to explain what

role Sigma would play. In particular, Solute describes itself at length, but never once

mentions its parent company, Sigma. AR 660. To make matters worse, Solute included

a “table [that] that introduces Team SOLUTE which is composed of both large and small

business with extensive CANES experience who are ready on Day 1 to successfully

execute.” AR 660 (emphasis added). The table contains a list of 10 companies, AR 660-

61, but the company that is not on the list is Sigma. 30

There is yet another fatal defect in Solute’s argument, which relies on language

in Solute’s proposal Volumes I and II. The Navy’s Source Selection Plan (“SSP”) indicates

that while the SSEB would evaluate organizational experience and past performance,

“[t]he Contract Specialist will be the sole evaluator for Acceptability of the Offer . . . and

Cost.” AR 42 (¶ 3.3.3). The SSP further indicates that the contract specialist “will not

evaluate any other factors” and that “the SSEB will not have access to cost proposals.” Id.

(emphasis added). In other words, there is no reason to assume — in the absence of any

documentation to the contrary — that the SSEB or the source selection authority even saw

the verbiage from proposal Volumes I and II upon which Solute now relies, let alone that

such Navy officials considered it in the manner Solute suggests. The simple fact is that

30 Solute points to the fact that the cover sheet for the volumes indicates that Solute’s Vice

President of Contracts — who signed the proposal — has a Sigma Defense email address. AR

657. But the fact that the Sigma and Solute may share some executives does not meet the legal

standard for obtaining experience and past performance credit for an affiliate’s prior work.

Moreover, when that same executive signed the proposal, he did so on behalf of “SOLUTE, a

Sigma Defense Company” — and not on behalf of Sigma itself. AR 661.

48

an evaluator reviewing Solute’s Volume III (which includes its references for

organizational experience and past performance) would have no way to understand —

from that volume alone — what role Sigma would play in performance.

Solute’s proposal simply does not address: what tasks Sigma personnel would

perform; what percentage of the work Sigma would perform; whether Solute and Sigma

entered into some sort of intra-corporate family agreement, defining service levels or

responsibilities; how Solute would manage and oversee Sigma employees; whether

Sigma was truly committed to participating in the performance of the contract; or what

resources (e.g., personnel, facilities, systems) Sigma would contribute to Solute’s contract

performance. Solute’s level of generality falls far short of what the case law requires.

The GAO’s decision in Kauffman and Associates, Inc., is instructive here. In that

matter, the GAO sustained multiple grounds of protest, including an issue regarding

proposal volumes. Kauffman and Associates, Inc., B-421917.2, 2024 CPD ¶ 40, 2024 WL

582907, *1 (Jan. 29, 2024). The solicitation required past performance information to be

submitted in a specific volume of the proposal. Id at *12. The putative awardee placed

some of its past performance information in the wrong volume, however — specifically,

in a different section of its quotation than the one designated for past performance

evaluation. Id at *13. The GAO held that the agency’s evaluation was flawed because it

improperly considered information that was not contained in the correct proposal

volume. Id. While the Kauffman decision did not involve affiliates specifically, it

establishes an important principle: when a solicitation specifies separate volumes for

different evaluation factors, agencies must evaluate proposals based on the information

contained in the designated sections, and cannot cure deficiencies by importing

information from other proposal volumes.

Nor is the reference to a “Team” sufficient — even assuming Solute had used the

phrase “Team SOLUTE” consistently across its proposal volumes, which it did not. See

MetroStar Sys., Inc., B-416377.5, 2020 CPD ¶ 135, 2020 WL 1888881, *7 (Comp. Gen. Apr.

2, 2020) (finding an agency’s assignment of affiliate experience unreasonable where the

proposal contained only “generalized references to ‘Team CACI,’” which “could be

oblique references to the involvement of these affiliates,” and explaining that such

“references are simply too vague to evidence the meaningful involvement of either

affiliate”). 31

31 In Konecranes Nuclear Equip. & Servs., LLC v. United States, the Court upheld the agency’s

consideration of affiliate resources where the offeror “represented that [offeror] and [affiliate]

49

The bottom line is that Solute’s proposal failed to provide a factual basis sufficient

for the Navy to attribute affiliate past performance to the prime offeror. Solute needed

to, but did not, demonstrate “the planned relationship between the between the

companies on the contract at issue.” ST Aerospace Engines Pte. Ltd., B-275725, 97-1 CPD ¶

161, 1997 WL 223977, *4 (Mar. 19, 1997). As this Court held in Femme Comp, “[a]n agency

properly may attribute the experience or past performance of a parent or affiliated

company to an offeror where the firm’s proposal demonstrates that the resources of the

parent or affiliated company will affect the performance of the offeror.” 83 Fed. Cl. at 747

(quoting Hot Shot Express, B–290482, at *2). The relevant consideration is “whether the

resources of the parent or affiliated company — its workforce, management, facilities or

other resources — will be provided or relied upon for contract performance such that the

parent or affiliate will have meaningful involvement in contract performance.” Inquiries,

Inc., B-418486, at *7. Solute’s proposal does not meet this standard.

In the absence of the Navy evaluation records disclosing on what basis it credited

Solute’s proposal with Sigma’s past performance reference, and given the lack details in

Solute’s proposal, this Court concludes that the agency improperly evaluated Solute’s

past performance. At best, it appears that the Navy essentially inferred that because

Solute and Sigma are affiliates, Sigma’s resources and experience would automatically be

available to Solute. But as this Court and GAO have repeatedly held, affiliation alone

does not support such an inference. Language Select LLP, B-415097, at *7 (“[T]he potential

for variations in the extent and nature of the relationship between two affiliated

companies means that it is not reasonable for that agency simply to infer that the

relationship will affect contract performance[.]”); ST Aerospace Engines, B-275725, at *4

(“Given the potential for variations in the extent and nature of the relationship between

two companies that are affiliated, it is not reasonable for an agency simply to accept,

without more, an offeror's representation that the performance of an affiliated company

— positive or negative — should be attributed to that offeror.”).

Finally, the requirement for adequate contemporaneous documentation is well-

established. The agency cannot cure deficiencies in the contemporaneous record through

post-hoc rationalizations. The evaluation record must demonstrate that the agency

actually considered whether the affiliate or subcontractor would be meaningfully

‘operate as an integrated enterprise’” and where, “as part of a pre-award survey,” the affiliate

“guaranteed the resources required for performance of the contract.” 165 Fed. Cl. 421, 434 (2023).

Here, in contrast, Solute nowhere included such a guarantee from its affiliate, Sigma.

50

involved before crediting the offeror with that entity's experience. In Advanced

Management Strategies Group, this Court held that absent documentary support showing

“that ‘the resources of the . . . affiliated company will affect the performance of the

offeror,’” the agency acted arbitrarily in relying on affiliate experience. 139 Fed. Cl. at

417 (quoting Femme Comp, 83 Fed. Cl. at 747). This Court emphasized: “We therefore

conclude that the agency acted arbitrarily in awarding a ‘substantial confidence’ rating

. . . . It necessarily follows that the best value determination and award . . . were also

irrational.” 139 Fed. Cl. at 417.

Accordingly, on this record, the agency in this case exceeded the bounds of its

discretion by crediting Solute with Sigma’s past performance in the absence of

information about how Sigma would actually be involved in contract performance.

Solute’s failure to explain Sigma’s role in the proposal volume designated for evaluation

of organization experience and past performance, combined with the agency’s failure to

require such an explanation — at a minimum, via discussions — and given the

government’s lack of an explanation for how or why it credited Solute for Sigma’s past

performance reference, resulted in an unreasonable evaluation that prejudiced Noblis.

This Court next turns to the issue of relief.

D. Noblis Waived Any Entitlement to Injunctive Relief

Noblis did not come close to meeting its burden to demonstrate that it is entitled

to equitable relief.

First, Noblis’s complaint does not specifically ask this Court to enjoin the

government’s or Solute’s performance of the awarded contract. Rather, Noblis asks only

that this Court: declare the award to Solute unlawful pursuant to the APA’s standard of

review; direct the Navy to re-evaluate proposals in accordance with the terms of the RFP

and the law; and “[p]rovide such other and further relief as the Court deems just and

proper.” Compl. at 33 (“Prayer for Relief”).

Second, while Noblis repeats the complaint’s Prayer for Relief almost verbatim in

its MJAR’s perfunctory conclusion, Pl. MJAR at 30-31, Noblis’s only other reference to

equitable relief is its assertion in the MJAR introduction that “the Navy’s award to Solute

should be permanently enjoined.” Id. at 7. Noblis does not, however, brief any of the

prerequisite injunctive relief factors. This omission forecloses any path Noblis might

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have had to obtain the contract at issue. Indeed, the Federal Circuit’s decision in PGBA,

LLC v. United States, 389 F.3d 1219 (Fed. Cir. 2004), all but ties this Court’s hands.

In PGBA, the Federal Circuit established several critical principles. The first is that

succeeding on the merits of a bid protest does not automatically entitle the plaintiff to

injunctive relief. Rather, this Court always has the discretion to grant or deny such relief.

PGBA, 389 F.3d at 1226 (“This construction is consistent with the language of 28 U.S.C.

§ 1491(b)(2), which, through use of the permissive ‘may,’ provides the Court of Federal

Claims with discretion in fashioning relief. Interpreting section 1491(b)(4) as requiring

the court to enjoin all agency decisions found to be arbitrary, capricious, an abuse of

discretion, or otherwise unlawful, would read the discretionary language out of section

1491(b)(2) by effectively rewording the statute[.]”).

The second principle PGBA established is that a plaintiff cannot avoid the

mandatory injunctive relief prongs by reframing its request for equitable relief as merely

one for a declaratory judgment. As the Federal Circuit in PGBA recognized, “[a]

declaratory judgment is not available as an academic exercise, and the coercive effect of

one here would encounter all of the objections to injunctive relief.” PGBA, 389 F.3d at

1228 (Fed. Cir. 2004) (quoting Md. Citizens for a Representative Gen. Assembly v. Governor of

Md., 429 F.2d 606, 611 (4th Cir.1970)).

Finally, as Judge Meyers explained in IAP World Servs., Inc. v. United States:

An injunction “is an extraordinary and drastic remedy, one

that should not be granted unless the movant, by a clear

showing, carries the burden of persuasion.” Mazurek v.

Armstrong, 520 U.S. 968, 972, 117 S.Ct. 1865, 138 L.Ed.2d 162

(1997) (per curium) (citation omitted). Whether to grant an

injunction lies within the sound discretion of the Court. When

considering whether to grant permanent injunctive relief, this

Court considers:

(1) whether, as it must, the plaintiff has succeeded on

the merits of the case; (2) whether the plaintiff will

suffer irreparable harm if the court withholds

injunctive relief; (3) whether the balance of hardships

to the respective parties favors the grant of injunctive

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relief; and (4) whether it is in the public interest to

grant injunctive relief.

152 Fed. Cl. 384, 396–97 (2021) (quoting PGBA, 389 F.3d at 1228-29); see also Centech Grp.,

Inc. v. United States, 554 F.3d 1029, 1037 (Fed. Cir. 2009) (“To determine if a permanent

injunction is warranted, the 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.” (citing

PGBA, 389 F.3d at 1228–29)).

Although Noblis succeeds on the merits of its MJAR argument 32 that the Navy

improperly considered Sigma’s past performance, Noblis did not address any of the other

injunctive relief factors. Noblis did not even attempt to meet its burden to obtain the

“extraordinary and drastic remedy” of an injunction. 152 Fed. Cl. at 396. Both Solute and

the government correctly picked up on that omission. Solute points out that “Noblis has

failed even to mention the three remaining injunctive relief factors, much less show that

they weigh in its favor.” Solute MJAR at 43. The government makes the same point:

“Noblis does not appear to address harm at all” and “fails to present any arguments

regarding the balance of harms or the public interest.” Def. MJAR at 43.

This Court agrees with Solute and the government. See Rondeau v. Mosinee Paper

Corp., 422 U.S. 49, 61 (1975) (holding that the district court was “entirely correct in

insisting that respondent satisfy the traditional prerequisites of extraordinary equitable

relief by establishing irreparable harm”). But that’s not the end of the problem for Noblis.

Even after Solute and the government pointed out Noblis’s failure to address the

injunctive relief factors in its MJAR, Noblis did not even attempt to take up the issue in

its reply brief. Whether Noblis declined to do so because its counsel thought it would

draw attention to a conspicuous omission, this Court cannot say. Either way, the fact is

that Noblis nowhere addressed the permanent injunctive relief factors. This Court will not

presume that any of those factors weigh in Noblis’s favor.

32 This Court notes that the argument regarding Sigma — although developed by the parties’

various MJAR briefs — does not appear to form the basis of any count in Noblis’s complaint. Nor

did Noblis seek leave to conform its complaint to the arguments in Noblis’s MJAR. On the other

hand, neither defendant objected to Noblis’s argument on the grounds that it is not in the

complaint.

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Accordingly, and particularly given Noblis’s failure to address irreparable harm,

this Court will not order any equitable or injunctive relief.

VI. CONCLUSION

Noblis’s motion to supplement the administrative record is DENIED. Noblis’s

MJAR is GRANTED with respect to its allegation that the Navy improperly evaluated

Solute’s past performance; Noblis’s MJAR is otherwise DENIED. The defendants’

respective cross-MJARs are DENIED. This Court DENIES Noblis’s request for

permanent injunctive relief to the extent it was requested and, thus, will neither order the

government to halt performance of the awarded contract, nor to redo any aspect of this

procurement.

Noblis, however, may file a motion for bid and proposal costs on or before

Monday, April 13, 2026. The government may file an opposition brief on or before

Monday, April 27, 2026. This Court cautions Noblis, however, that this Court is far from

convinced that Noblis can demonstrate that it should receive such costs. If Noblis decides

not to seek bid and proposal costs, it shall file a status report indicating that, on or before

Monday, April 13, 2026 (i.e., in lieu of a motion).

IT IS SO ORDERED.

s/Matthew H. Solomson

Matthew H. Solomson

Chief Judge

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