Joerns Healthcare, LLC v. United States

In the United States Court of Federal Claims

No. 25-1688

Filed: April 1, 2026

Re-issued: April 28, 2026 1

________________________________________

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JOERNS HEALTHCARE, LLC, )

)

Plaintiff, )

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v. )

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THE UNITED STATES, )

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Defendant )

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________________________________________ )

Aron Beezley, Bradley Arant Boult Cummings LLP, Washington, D.C., for Plaintiff.

Thomas J. Adair, Trial Attorney, Commercial Litigation Branch, Civil Division, Department of

Justice, for Defendant. Laura B. Reass, Office of General Counsel, U.S. Department of Veteran

Affairs, of counsel.

OPINION AND ORDER

This case primarily calls upon the court to determine what the Department of Veterans

Affairs (“VA”) meant when it solicited hospital beds with a “minimum” width of 36 inches and

others that could extend to “at least” 42 inches wide. The solicitation also made clear that bed

dimensions would be verified with a tape measure to ensure compliance, with no indication that

variation from the minimum requirements would be acceptable. In fact, failing to meet

minimum dimensions would result in the offer being deemed non-responsive and excluded from

further consideration. The answer seems obvious enough; words have meaning after all.

Unhappy with its exclusion from the competition because the beds it submitted for

evaluation failed to meet both width requirements, Joerns Healthcare, LLC contends the

language was not so clear when viewed through the lens of industry practices. To Joerns,

industry practices led it to believe that the VA did not really mean 36 inches or 42 inches. Joerns

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The court initially issued this opinion and order under seal and directed the parties to confer

and propose redactions pursuant to the protective order. The parties have jointly proposed

redactions that the court adopts with the following notation: “[ * * * ]”. The court also made one

typographical correction to avoid ambiguity by capitalizing one instance of a defined term that

was inadvertently not capitalized in the original version of this opinion. See RCFC 60(a).

contends that, in the hospital bed market, beds within an inch of the stated dimensions are

acceptable. There are several problems with this belief. First, it is not a reasonable

interpretation of the solicitation because it ignores “minimum” and “at least” by shifting the

focus to a purported industry understanding of 36 inches. But the VA simply is not procuring

36-inch beds, it is procuring beds that are a “minimum” of 36 inches wide and some that can

expand to “at least” 42 inches wide. Second, the record confirms that various manufacturers

make beds with varying widths, meaning that the VA had to provide clear requirements rather

than rely on an amorphous, self-serving assertion that being over 35 inches wide and expanding

to more than 41 inches is good enough. That is what the VA did. Third, even if Joerns’

interpretation was reasonable, the disparity between Joerns’ view and the plain text of the

solicitation is so great and obvious from the face of the solicitation that Joerns’ failure to protest

before the submission of proposals waives its argument. And finally, even if the court were to

accept Joerns’ argument, Joerns could not show prejudice because the beds it submitted failed to

meet the standard Joerns insists should apply.

Perhaps sensing that it would not prevail with its interpretive argument, Joerns throws in

a Hail Mary. Joerns contends that the VA selected beds that do not qualify as commercial

products and therefore are ineligible for award in this commercial product procurement under

FAR Part 12. But the record simply does not support Joerns’ argument, which Joerns bases on

attorney argument and hearsay.

In the end, there is no reason that the VA cannot procure the beds it has asked for since

the start of this procurement. As a result, the court denies Joerns’ motion for judgment on the

administrative record and grants the United States’ cross-motion for judgment on the

administrative record.

I. Background

A. Pre-Solicitation Research

In 2024, the Veterans Health Administration, Prosthetic & Sensory Aids Service

identified a need for “Hospital Beds for Home Use w/Accessories.” Tab 13, AR 106. These

beds are intended for use by elderly or disabled veterans being cared for outside of a hospital in a

community care or home setting. Id. The Department of Veterans Affairs (“VA”) formed an

Integrated Project Team (“IPT”), comprised of various government stakeholders and clinical

subject matter experts (“SMEs”), to “develop[] minimum technical requirements, acquisition

plan, source selection plan, and evaluation criteria, as well as perform[] and document[] the

technical evaluation.” Tab 3, AR 11.

The VA began with market research to determine “the most suitable approach” to satisfy

its needs. Tab 11, AR 53. It kicked off this effort with an in-person “Industry Day” on June 24,

2024, where thirteen hospital bed manufacturers showcased their beds to SMEs. Id. at 63-64.

Then, on November 1, 2024, the VA posted an RFI notice to SAM.gov to solicit industry

feedback on its draft Minimum Technical Requirements (“MTRs”). Tab 7, AR 38-39. Relevant

here, draft MTR 1 laid out the physical dimension requirements for the two types of beds that the

VA was seeking:

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Upgraded Electric Bed Frame with minimum length of 80 inches

and width of 36 inches; Bed must have the ability to adjust both

length (up to at least 84 inches) and width (up to at least 42

inches); Bed must be able to accommodate bed side rails (no

mattress)

Basic Electric Bed Frame Model should be made available meeting

80″ x 36″ that does not require adjustable capability (no mattress)

Tab 8, AR 41-42. 2 Five vendors commented on MTR 1. One vendor, [ * * * ], recommended a

“minimum width of 35 inches to align with industry standards” and “avoid unnecessary

restrictions that could limit competition.” Tab 6 (emphasis added). Joerns had different

concerns, suggesting that “[t]he Upgraded Bed Frame and the Basic Electric Bed Frame be listed

as separate MTRs and CLINs.” 3 Id. Notably, Joerns did not identify any conflict between the

bed width requirements and industry norms. Rather, Joerns itself agreed that MTR 1 requires a

“minimum width of 36 inches” and an adjustable width “up to at least 42 inches.” Id.

Based on the market research, the Contracting Officer felt “confident. . . that there

w[ould] be 2 or more Small Businesses that provide acceptable proposals.” Tab 11, AR 64.

Thus, the VA concluded that its desired hospital beds were “available in the commercial

marketplace” and recommended that the solicitation be a small business set-aside. Tab 13, AR

106.

B. The Solicitation

On February 5, 2025, the VA issued Solicitation No. 36C10G25R0011 (“Solicitation”),

titled “Hospital Beds for In Home Use.” Tab 19, AR 161. It was designated as a total small

business set-aside under the Federal Acquisition Regulation (“FAR”) Part 12’s procedures. Id. at

AR 161, 210; Tab 25 at AR 435, 486. 4 The VA would consider four factors when evaluating

offers: (1) Technical, (2) Past Performance, (3) Socio-economic, and (4) Price. Tab 19 at AR

218; Tab 25 at AR 494. Because this protest involves only the technical evaluation, the court

does not delve into the remaining factors.

The technical evaluation was to proceed in two phases. In Phase 1, the VA evaluated

commercial product literature to determine whether the proposed beds preliminarily satisfied all

2

The administrative record contains a pdf printout of the SAM.gov website posting that includes

a link to the draft MTRs. See In Home Hospital Beds, SAM.gov, https://perma.cc/2RR2-4G8J.

It is unclear why the draft MTRs themselves are not included in the administrative record as they

plainly belong there. Based on the parties’ arguments about them, e.g., ECF No. 32 at 5 & n.3;

ECF No. 36 at 9-10, the court considers the draft MTRs to be incorporated in Tab 8 and properly

before the court as part of the administrative record.

3

A CLIN is a contract line item.

4

The VA issued two amendments to the solicitation. See Tab 21, Tab 24. For ease of reference

in the background section, the court provides citations to both the original solicitation, Tab 19,

and the final solicitation, Tab 25, for all terms unchanged by these amendments.

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MTRs. Tab 19 at AR 219-20; Tab 25 at AR 495-96. Only beds that passed Phase 1 would be

considered acceptable for a physical evaluation conducted in Phase 2. Tab 19 at AR 220; Tab 25

at AR 496. If a bed did not “meet MTRs (literature review) and/or physical inspection as

specified, the proposal w[ould] be considered non-responsive and eliminated from further

consideration.” Tab 19 at AR 219; Tab 25 at AR 496. In other words, a bed would be

disqualified if the VA determined that it failed to satisfy any MTR at any point of the technical

evaluation.

MTR 1 in the Solicitation was materially identical to the draft version posted in

November 2024, although it did adopt Joerns’ suggestion to split the requirement into MTR 1a

for the “Advanced Electric Bed Frame” and MTR 1b for the “Basic Electric Bed Frame.” Tab

19 at AR 221; Tab 25 at AR 497. But the substance of MTR 1’s width requirements remained

unchanged—still requiring a “minimum . . . width of 36 inches,” and adjustable width “up to at

least 42 inches.” Tab 19 at AR 221; Tab 25 at AR 497. The Solicitation further provided that

the entirety of the Phase 2 evaluation for MTR 1 would be the “[p]hysical measurement of bed

frame length and width using tape measure with bed in supine position.” Tab 19 at AR 221; Tab

25 at AR 497.

In addition to the MTRs, the Solicitation required that the proposed beds comply with

two International Electrotechnical Commission (“IEC”) standards addressing the safety and

performance of electrically powered medical beds used in home-healthcare environments. Tab

19 at AR 168; Tab 25 at AR 442. The solicitation did not incorporate any other industry

standards.

The VA received 118 questions in response to its posting of the Solicitation. Tab 23.

Only one vendor, [ * * * ], raised concerns regarding the bed’s width requirement and whether

the bed could be maneuvered through doorways:

Question 100: Does the stated 36” minimum width refer to the

bed deck or the overall bed width? A 36” bed deck typically

results in an overall width exceeding 40” due to siderails and other

features. Given standard interior door widths (30-32”) and even

exterior door widths (typically 36”, sometimes smaller in older

homes), how will these beds be maneuvered through doorways?

Response: The bed width refers to the bed deck.

Id. at AR 428 (emphasis in original).

On March 4, 2025, the VA issued Amendment 1 to the solicitation modifying eight

MTRs in response to questions. Tab 22 at AR 321-24. But MTR 1 was not among the revised

provisions. Id. at AR 321. The VA issued Amendment 2 on March 5, 2025, but MTR 1 again

remained unchanged. Tab 25 at AR 444.

C. Technical Evaluation

Eleven offerors submitted proposals in response to the VA’s Solicitation. Tab 40. The

VA eliminated seven offerors after the Phase 1 literature review for failing to comply with

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various requirements. Id. Relevant here, five offerors were found to have failed MTR 1a by

proposing Advanced Beds that were only 35 inches wide. Id. at AR 4023 ([ * * * ]), 4024 ([ * *

* ]), 4026 ([ * * * ]), 4030 ([ * * * ]), 4035 ([ * * * ]). Joerns and three other offerors were

deemed to have preliminarily satisfied the MTRs and thus proceeded to Phase 2. Id. at AR 4022.

The VA conducted its Phase 2 evaluation at the National Acquisition Center from May

20 through May 22, 2025. Id.; Tab 69 at AR 4164. Three out of the four surviving offerors

proposed a bed manufactured by Joerns. Tab 56 at AR 4104 (Joerns); Tab 57 at AR 4110 ([ * *

* ]); Tab 58, AR 4116 ([ * * * ]). Only [ * * * ] provided a non-Joerns product, offering the [ * *

* ] bed manufactured by [ * * * ] instead. Tab 55 at AR 4098; Tab 30a.

The VA determined that all three offerors providing a Joerns-made bed—Joerns, [ * * * ],

and [ * * * ]—failed to meet both MTR 1a and 1b. 5 Tab 69 at AR 4178-215. The agency

measured each of these beds at 34.5 inches wide for the Basic Bed and 41.5 inches wide for the

Advanced Bed (1.5 inches short of the 36-inch and 42-inch minimum width requirements). Id. at

AR 4179, 4191, 4204-05. [ * * * ]’s [ * * * ] bed, on the other hand, was measured at 36 inches

wide for the Basic Bed and 42 inches wide for the Advanced Bed. Id. at AR 4165-66.

Ultimately, the VA determined that the [ * * * ] bed complied with all MTRs and was thus the

sole surviving offeror after Phase 2. Id. at AR 4164-77. The VA notified the unsuccessful

offerors on May 27, 2025. Tabs 70-72.

D. Procedural History

On June 6, 2025, Joerns filed a bid protest at the Government Accountability Office

(“GAO”). Tab 79. Joerns’ then filed a supplemental protest three days later, arguing that (1) the

VA acted unreasonably by applying unequal evaluation standards and failing to interpret the

solicitation’s requirements “in light of well-established commercial industry standards,” and (2)

the VA’s award relied upon unreasonable and unsupported evaluated weaknesses in Joerns’

proposal. See Tab 82 at AR 4520. The GAO denied the protest on September 9, 2025,

concluding that the agency reasonably evaluated Joerns’ proposal and Joerns failed to establish

that the agency applied unequal evaluation standards. Tab 95. Joerns then filed this protest.

II. Jurisdiction and Standard of Review

This court has jurisdiction to hear this action under 28 U.S.C. § 1491(b)(1). The court

reviews agency procurement decisions under the standards of 5 U.S.C. § 706. 28 U.S.C. §

1491(b)(4). Among the standards applied are whether the agency’s decisions are “arbitrary,

capricious, an abuse of discretion, or otherwise not in accordance with the law.” 5 U.S.C. §

706(2)(A). 6 In the context of a bid protest, an agency award “may be set aside if either: (1) the

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

involved a violation of regulation or procedure.” Impresa Construzioni Geom. Domenico Garufi

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[ * * * ] and [ * * * ] also failed MTR 16, requiring battery backup functionality, which is an

independently sufficient basis for disqualification. Tab 69 at AR 4199, 4212.

6

While § 706(2)(A) is the most cited part of the standards under § 706, there are additional

standards as well. See 5 U.S.C. §§ 706(2)(B)-(F).

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v. United States, 238 F.3d 1324, 1332 (Fed. Cir. 2001) (citations omitted). For the first category,

the test is “whether the contracting agency provided a coherent and reasonable explanation of its

exercise of discretion.” Id. at 1333 (quoting Latecoere Int’l, Inc. v. U.S. Dep’t of Navy, 19 F.3d

1342, 1356 (11th Cir. 1994)). As to the latter category, the violation must be “clear and

prejudicial.” Id. And to establish prejudice, the protester must show that there was a

“substantial chance it would have received the contract award but for that error.” Alfa Laval

Separation, Inc. v. United States, 175 F.3d 1365, 1367 (Fed. Cir. 1999) (quoting Statistica, Inc.

v. Christopher, 102 F.3d 1577, 1581 (Fed. Cir. 1996).

Rule 52.1 provides that any party before this court “may move for partial or other

judgment on the administrative record.” RCFC 52.1(c)(1). The rule is “designed to provide for

trial on a paper record, allowing fact-finding by the trial court.” Bannum, Inc. v. United States,

404 F.3d 1346, 1356 (Fed. Cir. 2005). “Unlike a motion for summary judgment, a genuine

dispute of material fact does not preclude a judgment on the administrative record.” Sparksoft

Corp. v. United States, 167 Fed. Cl. 694, 700 (2023) (citing Bannum, Inc., 404 F.3d at 1354).

Thus, “[i]n deciding cross-MJARs, this court considers ‘whether, given all the disputed and

undisputed facts, a party has met its burden of proof based on evidence in the record.” Golden

IT, LLC v. United States, 117 Fed. Cl. 118, 132 (2025) (quoting XOtech, LLC v. United States,

950 F.3d 1376, 1380 (Fed. Cir. 2020)).

III. Discussion

A. The Solicitation’s Requirements That Beds Be a “Minimum” of 36 Inches

Wide and Expandable to “At Least” 42 Inches Wide Are Unambiguous.

1. Framework for Determining Whether a Solicitation is Ambiguous

This court interprets solicitations using the same principles that govern contract

interpretation. Safeguard Base Operations, LLC v. United States, 989 F.3d 1326, 1344 (Fed. Cir.

2021). Thus, the court begins with the plain language. Banknote Corp. of America, Inc. v.

United States, 365 F.3d 1345, 1353 (2004). The court’s task is to “consider the solicitation as a

whole, interpreting it in a manner that harmonizes and gives reasonable meaning to all of its

provisions.” Id. (citing Coast Fed. Bank, FSB v. United States, 323 F.3d 1035, 1038 (Fed. Cir.

2003)). A solicitation is ambiguous “only if its language is susceptible to more than one

reasonable interpretation.” Id. (citing Grumman Data Sys. Corp. v. Dalton, 88 F.3d 990, 997

(Fed. Cir. 1996)); see also Cmty. Heating & Plumbing Co., Inc. v. Kelso, 987 F.2d 1575, 1578-

79 (Fed. Cir. 1993) (“[C]ontracts are not necessarily rendered ambiguous by the mere fact that

the parties disagree as to the meaning of their provisions.”) (citations omitted). Put differently,

ambiguity requires that a solicitation is “susceptible of two different interpretations, each of

which is found to be consistent with the [solicitation’s] language.” Western States Const. Co.,

Inc. v. United States, 26 Cl. Ct. 818, 825 (1992) (citations omitted).

If a contract provision is “clear and unambiguous” on its face, this court generally cannot

look to extrinsic evidence to interpret its meaning. Bell/Heery v. United States, 739 F.3d 1324,

1331 (Fed. Cir. 2014) (quoting McAbee Const., Inc. v. United States, 97 F.3d 1431, 1435 (Fed.

Cir. 1996)); Banknote Corp., 365 F.3d at 1353 (“If the provisions of the solicitation are clear and

unambiguous, they must be given their plain and ordinary meaning; we may not resort to

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extrinsic evidence to interpret them.”) (citing Coast Fed. Bank, 323 F.3d at 1038). The Federal

Circuit had held that a contractor’s subjective interpretation of a provision—even one grounded

in industry norms—cannot create an ambiguity where none exists in the text. See R.B. Wright

Constr. Co. v. United States, 919 F.2d 1569, 1571-72 (Fed. Cir. 1990) (“Neither a contractor’s

belief nor contrary customary practice . . . can make an unambiguous contract provision

ambiguous, or justify a departure from its terms.”).

That said, the Federal Circuit also has recognized that courts may “consult evidence of

trade practice and custom to show that ‘language which appears on its face to be perfectly clear

and unambiguous has, in fact, a meaning different from its ordinary meaning.’” Metric

Constructors, Inc. v. NASA, 169 F.3d 747, 751 (Fed. Cir. 1999) (quoting Gholson, Byars, and

Holmes Constr. Co. v. United States, 173 Ct. Cl. 374, 395 (1965)). A party may rely on trade

usage to show that a provision has a “special meaning within the industry,” such that it was

“legitimately interpreted in a way different than a layman’s reading,” thereby rendering the

provision ambiguous. Western States Constr. Co., 26 Cl. Ct. at 824; accord Metric

Constructors, 169 F.3d at 752. But trade usage evidence “is not an avenue for a party to avoid

its contractual obligations by later invoking a conflicting trade practice.” Metric Constructors,

169 F.3d at 752. A party cannot, for example, invoke such evidence if a provision “was not

reasonably susceptible of differing interpretations at the time of contracting.” Id. If a

solicitation is ambiguous, the court must determine whether a protestor waived its argument by

failing to protest before the submission of proposals:

[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.

Blue & Gold Fleet, L.P. v. United States, 492 F.3d 1308, 1313 (Fed. Cir. 2007). Similarly,

“where a government solicitation contains a patent ambiguity, the government contractor ‘has a

duty to seek clarification from the government, and its failure to do so precludes acceptance of

its interpretation’ in a subsequent action against the government.” Id. (quoting Stratos Mobile

Networks USA, LLC v. United States, 213 F.3d 1375, 1381 (Fed. Cir. 2000) (quoting Statistica,

Inc. v. Christopher, 102 F.3d 1577, 1582 (Fed. Cir. 1996))). Thus, “assuming that there is

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

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

United States, 700 F.3d 1377, 1382 (Fed. Cir. 2012). Otherwise, the argument is waived. Blue

& Gold, 492 F.3d at 1313. This waiver rule applies “to all situations in which the protesting

party had the opportunity to challenge a solicitation before the award and failed to do so.”

COMINT Sys. Corp, 700 F.3d at 1382.

Blue & Gold does not apply to latent ambiguities. G4S Secure Integration LLC v. United

States, 161 Fed. Cl. 387, 406 (2022). A patent ambiguity is “an obvious omission, inconsistency

or discrepancy of significance.” Per Aarsleff A/S v. United States, 829 F.3d 1303, 1312 (Fed.

Cir. 2016) (quoting E.L. Hamm & Assocs., Inc. v. England, 379 F.3d 1334, 1339 (Fed. Cir.

2004)). A latent ambiguity, by contrast, is a “hidden or concealed defect which is not apparent

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on the face of the document” and “could not be discovered by reasonable and customary care.”

Id. (quoting Analytical & Rsch. Tech, Inc., v. United States, 39 Fed. Cl. 34, 46 (1997)).

2. The Solicitation is Unambiguous

With these principles in mind, the court turns to the solicitation’s plain language. In its

final form, MTR 1 provides the minimum length and width of the beds the VA will accept:

MTR 1a. Advanced Electric Bed Frame with minimum length of

80 inches and width of 36 inches; Bed must have the ability to

adjust both length (up to at least 84 inches) and width (up to at

least 42 inches); Bed must be able to accommodate bed side rails

(no mattress).

MTR 1b. Basic Electric Bed Frame Model should be made

available meeting 80″ x 36″ that does not require adjustable

capability. (no mattress)

Tab 25 at AR 444. At the outset, the court recognizes that “minimum” and “at least” appear only

in MTR 1a. Throughout their briefs, both parties refer to MTR 1’s minimum width requirements

as applying to the Basic beds as well. E.g., ECF No. 31 at 23-25 (Joerns making contentions

about bed sizing standards without differentiating between MTR 1a and 1b). Because neither

party argues that “minimum” does not apply to the Basic Bed dimensions under MTR 1b, any

such argument is forfeited.

The Government’s interpretation is reasonable—it asserts that the Solicitation means

exactly what it says. When addressing the width of the beds, the Solicitation requires that they

be a “minimum . . . width of 36 inches” and the Advanced Bed be adjustable to “at least 42

inches.” 7 As the Government observes, it does not say that the beds must be “approximately 36

inches wide, nominally 36 inches wide, or almost 36 inches wide.” ECF No. 32 at 2. Because

the Government’s interpretation is based on the Solicitation’s plain language and gives meaning

to all its provisions, it is reasonable. See generally Banknote Corp., 365 F.3d 1345. Joerns does

not argue otherwise.

Joerns argues that its interpretation is also reasonable; it presents a competing

interpretation based on trade practice. The thrust of its argument is that the Solicitation is

ambiguous because there is a “commercial industry standard on bed width . . . under which a

width-standard of ‘36 inches’ does not literally mean ‘36 inches.’” ECF No. 31 at 23. Much like

two-by-four lumber, Joerns claims that “the electronic hospital bed industry uses standardized

sizing terminology—such as such as a ‘36″ by 80″ bed’ or ‘42″ by 84″ bed’—with the shared

understanding that the actual measurements will only nominally comply to the standardized

sizing references.” Id. at 15 (emphasis added); see also ECF No. 30 at 5 n. 1. In other words,

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Although the Solicitation also included length requirements, none of the beds failed to meet

those requirements. So the discussion focuses only on the width requirements.

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due to a “special industry meaning” for 36″ by 80″ hospital beds, MTR 1’s width requirements

were ambiguous in the eyes of commercial vendors. But this is not a reasonable interpretation.

a) Joerns’ Interpretation Disregards “Minimum,” “At Least,” and

the Phase 2 Tape Measure Evaluation

To begin with, Joerns’ interpretation of the Solicitation renders meaningless the words

“minimum” and “at least” in MTR 1. The Solicitation did not ask for “36″ by 80″” beds—it

called for beds that are a “minimum” of 36 inches wide, and for the Advanced Bed to be

adjustable to “at least” 42 inches wide. Joerns’ reading provides these two qualifying phrases

with no meaning. Rather than addressing the elephant in the room, Joerns asks the court to look

the other way. For example, Joerns asserts that “[r]eferences throughout the Government’s brief

to a ‘minimum required width’ of 36 inches[,] as though the word ‘minimum’ governed the rest

of the sentence[,] does not change the fact that standardized sizing governs the commercial

industry’s expectations.” ECF No. 34 at 5. Joerns similarly argues that “[t]he issue is not . . . in

‘minimum’ or ‘at least,’. . . [t]he issue is in 36 inches.” ECF No. 38, Tr. at 62:8-10. But the

court must give effect to all terms of the Solicitation; it cannot rewrite “minimum” and “at least”

to mean “approximately” or “about.” Thus, even assuming “36″ by 80″” carries some special

meaning in the hospital bed industry, Joerns’ interpretation is unreasonable because the

Solicitation does not ask for “36″ by 80″” beds, it asks for beds with “minimum” dimensions.

Joerns cannot square its interpretation with the Solicitation’s clear terms.

To illustrate the point, take Joerns’ two-by-four analogy. See ECF No. 34 at 10. It is true

that in the lumber industry, a piece of lumber advertised as 2″ x 4″ is, in fact, 1.5″ x 3.5″. Id.

(citing Oliver J. Curtis, Nominal Versus Actual: A History of the 2x4, Harv. Design Mag,

https://perma.cc/F9BX-RB3P). If a hypothetical solicitation asked for one hundred pieces of 2″

x 4″ lumber, without more, a bidder could reasonably understand the requirement to incorporate

nominal dimensions consistent with industry practice. That bidder could go to a lumber yard and

buy commercial 1.5″ x 3.5″ lumber and satisfy the requirement. But if the solicitation asked

instead for one hundred pieces lumber that are a “minimum” of or “at least” 2″ x 4″, the 1.5″ x

3.5″ lumber would not cut it. This is because the words “minimum” and “at least” foreclose

reliance on the industry’s standard dimensions of two-by-fours. In this hypothetical, just as is

the case here, the solicitation’s precise requirements displace industry norms concerning nominal

dimensions (to the extent they exist)—not the other way around.

Further, any notion that a bed less than 36 inches wide complied with the Solicitation

does not survive the fact that the Phase 2 evaluation for MTR 1 was a tape measure verification

of the bed dimensions. This evaluation consisted entirely of the “[p]hysical measurement of bed

frame length and width using tape measure with bed in supine position.” Tab 25 at AR 497. As

the GAO observed, if MTR 1 required only “nominal” compliance based on an “amorphous”

standard, it necessarily would have specified a permissible range for the tape measure

evaluation—e.g., “36″ ± 0.125.″” See Tab 95 at AR 6094 n. 5, AR 6096. Otherwise, how close

is close enough? Is a bed that is 35.8 inches wide close enough? Does 35.4 inches cut it?

Nobody knows—and that is precisely the problem. An offeror whose bed is 35.8 inches could

well come to court and argue that the “industry standard” is within a quarter inch (protestors are

known to make opportunistic arguments). Of course, various companies proposed beds that

were 36 inches, some 35 inches, some in between, and some less than 35 inches. In other words,

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the purported industry standard is variability. E.g., ECF No. 31 at 5 n.3 (“Although hospital bed

sizes are standardized, each manufacturer may offer slightly different measurements.”) (quoting

Jordan McElwain, Hospital Bed Dimensions: Your Guide to Choosing the Right Size at Home,

Chapter (Dec. 30, 2024), https://perma.cc/6GWY-A7YF). In that environment, if the VA

determined that any proposed bed failed MTR 1 in Phase 2—i.e., that its dimensions fell outside

some undefined “nominal” range—it would necessarily be relying on unstated evaluation

criteria. That would be unlawful. See, e.g., Banknote Corp., 56 Fed. Cl. at 386 (“It thus is

beyond peradventure that the government may not rely upon undisclosed evaluation criteria in

evaluation proposals . . . .”) (citing Acra, Inc. v. United States, 44 Fed. Cl. 288, 293 (1999)).

Joerns’ reply that the use of the tape measure does not undermine its argument because

“[t]he Solicitation never says that a bed shall be exactly 36 inches wide, or it will be found

technically unacceptable,” ECF No. 34 at 5 (emphasis in original), is the reddest of herrings. Of

course, the Solicitation does not say the beds “shall be exactly 36 inches wide,” it says that the

beds will be a minimum of 36 inches wide—36 inches or greater. Tab 25 at AR 444. And

Joerns’ double emphasis on “shall” is curious too. The Solicitation plainly requires the beds to

be a minimum of 36 inches wide, and states that failure to meet that MTR renders a proposal

unacceptable and excluded from further consideration for award. That sounds a lot like “shall.”

b) The Record Does Not Support That Vendors Shared Joerns’

Understanding of Nominal Compliance

Joerns also contends that its interpretation was reasonable because multiple vendors were

eliminated for “interpreting the MTRs exactly the way Joerns did.” ECF No. 31 at 23 (emphasis

added). This, Joerns argues, serves as “prima facie evidence that there is, in fact, a commercial

industry standard on bed width . . . under which a width-standard of ‘36 inches’ does not literally

mean ‘36 inches.’” Id. This argument has a few problems.

Based on the record, it is far from clear that other offerors shared Joerns’ interpretation of

the Solicitation’s width requirements. For example, Joerns claims that four other vendors

“proposed an Advanced Electric Bed Frame with Overall Bed Size dimensions of ‘87″ L x 36″’

W,’” but were eliminated in Phase 1 because the VA found them to be 35 inches wide. Id. at 23-

25. This is wrong. All references to a 36″ wide bed in these proposals refer to the Basic Bed

called the “[ * * * ]” that they offered to meet MTR 1b. Tab 26a at AR 535 ([ * * * ]); Tab 27a

at AR 673 ([ * * * ]); Tab 28a at AR 1029 ([ * * * ], which specifically identifies (in red text)

this reference as addressing MTR 1b—[ * * * ]); Tab 34a at AR 2668, 2716 ([ * * * ]). All the

references to the beds being 35 inches concerned the Advanced Bed model called the “[ * * * ]”

proposed to meet MTR 1a. And it was because the proposals explicitly stated that the [ * * * ]

was 36 inches wide and the [ * * * ] was 35 inches wide that each of these offerors failed to meet

MTR 1a but satisfied MTR 1b. AR Tab 40.

Counter to Joerns’ assertions, the VA never determined whether these four offerors’ beds

were, in fact, exactly or nominally 36 inches wide because they were eliminated in Phase 1,

which consisted of only a literature review. They did not proceed to the Phase 2 tape measure

10

evaluation. 8 And the fact that these four vendors submitted Advanced Beds marketed as 35

inches wide does not help Joerns either. According to Joerns, the industry standard is that 35-

inch-wide beds and 36-inch-wide beds are separate classes, and “anything above 35 [inches]

would qualify as a 36-inch bed in the industry.” ECF No. 38, Tr. at 71:9-10; see also id. at

71:25-72:7 (The Court: “Then what’s the tape measure for? Like if we are going to . . .” Counsel:

“To make sure it’s not a 35-inch bed your honor.”). But even under Joerns’ view, these

proposals were not even nominally complaint with MTR 1—as 35-inch class beds, they would

have been measured between 34 and 35 inches. Clearly, these vendors had a different

understanding of what qualifies as nominal compliance.

To the extent Joerns points to [ * * * ]’s submission of a 35.8-inch-wide bed for support,

this argument fails for similar reasons. Recall that, in response to Question 100, the VA

responded that the bed deck must be 36 inches, not the overall width. Tab 23 at AR 428. And

according to the product literature, [ * * * ] submitted a bed with a “mattress deck” that is 34.6

inches wide. Tab 37a at AR 3371. That would call into question whether [ * * * ] could have

believed its bed complied. Even more, under Joerns’ view, a 34.6-inch-wide bed deck would not

be nominally compliant with a 36-inch-wide requirement. Tab 23 at AR 428. It thus appears

that not even [ * * * ] shared Joerns’ understanding of the permissible nominal range.

Based on the product literature, only one vendor, [ * * * ], could have shared Joerns’

view of this industry standard. This is one possible inference from [ * * * ] proposing an

Advanced Bed and Basic Bed with 35-inch-wide “sleep deck[s].” See Tab 38a at AR 3770,

3788. Because [ * * * ] was eliminated in Phase 1, the court cannot say whether these beds were

in fact within Joerns’ nominal range or not. In any event, a single bidder sharing Joerns’ view

could not establish an industry standard sufficient to overcome the Solicitation’s plain language.

Seemingly no one was on the same page as to the Solicitation’s width requirements.

Ultimately, however, none of these disappointed bidders’ interpretations were reasonable since

none were consistent with the Solicitation. As analyzed above, the Solicitation used the words

“minimum,” “at least,” and “tape measure.” Any interpretation that deletes these terms is

unreasonable.

In the end, the plain reading of this Solicitation is the correct one. There are no

competing reasonable interpretations here. The Solicitation unambiguously required beds that

were a minimum of 36 inches wide and Advanced beds were adjustable to at least 42 inches

wide. By interpreting MTR 1 to allow for something less, Joerns reads a meaning into the text

that the words cannot bear.

B. Even if Joerns’ Interpretation Were Reasonable, Its Claims Still Fail.

8

As for the beds that did proceed to Phase 2, that two other vendors were found to be non-

compliant with MTR 1 is of no significance since Joerns itself manufactured each bed. Tab 57 at

AR 4110 ([ * * * ]); Tab 58, AR 4116 ([ * * * ]).

11

If the court concluded that Joerns’ industry standard interpretation was reasonable,

Joerns’ protest would still fail for at least two reasons—(1) the resulting ambiguity would have

been patent, and (2) Joerns would be unable to show prejudice.

1. Any ambiguity was patent.

Assuming that the Solicitation’s width requirements were ambiguous, Joerns’ challenge

to MTR 1 would still fail under Blue & Gold. This is because any such ambiguity would have

been patent—i.e., apparent on the face of the document—and therefore waived by Joerns’ failure

to raise the issue before the close of bidding. As discussed above, MTR 1’s minimum dimension

requirements were clear from the Solicitation’s plain language. It was also confirmed by the

Solicitation’s use of a tape measure to ensure compliance with the minimum dimensions with no

variation allowed. In other words, the Solicitation did not say that a bed could be within an inch

of 36 inches, it said it must be a minimum of 36 inches. The language is glaringly different than

the industry standard that Joerns asserts, showing that the ambiguity would have been patent. H

& M Moving, Inc. v. United States, 499 F.2d 660, 671 (Ct. Cl. 1974).

Indeed, Joerns contends that [ * * * ] identified the issue in its response to the RFI it

submitted in November 2024. ECF No. 31 at 16. In response to the minimum width

requirements, [ * * * ] commented:

The minimum bed frame length should be 80 inches, with a

minimum width of 35 inches to align with industry standards for

bed frame dimensions.

Benefits: Specifying a 35-inch width ensures adherence to industry

norms while avoiding unnecessary restrictions that could limit

competition. By opting for 35 inches rather than 36 inches, the

veteran’s home gains flexibility, achieving a best-value solution

without compromising accessibility—especially in home

environments where narrower doorways are common.

Tab 6 at AR 35. Joerns reads this as proof that the VA was on notice about the industry standard

of nominal sizing. ECF No. 31 at 16. It is not clear that this is what [ * * * ] was saying; it

appears to have been stating that more manufacturers make beds that are 35 inches wide than

make beds that are 36 inches wide. But if [ * * * ] shared Joerns’ interpretation as Joerns argues,

it would confirm that this argument is waived under Blue & Gold. Joerns cannot argue that [ * *

* ] recognized that a nominally 36-inch bed was out of compliance with the Solicitation before

proposals were due, but Joerns itself could not have known this. Far from being “unknowable,”

G4S Secure Integration LLC v. United States, 161 Fed. Cl. 387, 407 (2022), this alleged

ambiguity was, in fact, known— at least according to Joerns. Joerns’ challenges to the

Solicitation’s minimum sizing requirements are thus waived.

2. Joerns cannot establish prejudice under its view of nominal sizing.

Assuming again that Joerns’ interpretation of the Solicitation was reasonable and

survived Blue & Gold’s waiver rule, Joerns would still fail for lack of prejudice. For protests

alleging that an agency procurement violated a regulation, a protester must show prejudice—i.e.,

12

a “substantial chance it would have received the contract award but for that error.” Alfa Laval

Separation, 175 F.3d at 1367 (quoting Statista, 102 F.3d at 1582). Joerns contends that

“anything above 35 [inches] would qualify as a 36-inch bed in the industry.” ECF No. 38, Tr. at

71:9-10. Thus, Joerns contends that its beds complied with MTR 1’s width requirements under

industry standards. But the record belies that contention. During the Phase 2 evaluation, the VA

measured all [ * * * ] Joerns-manufactured beds and found them to be 34.5 inches wide—an

entire inch and a half short of MTR 1’s 36-inch requirement. Tab 69 at AR 4179, 4191, 4204-

05. And a half inch narrower than Joerns’ own understanding of the permissible nominal range,

35 inches or greater. Thus, accepting Joerns’ interpretation, the bed it submitted was not even

nominally compliant with MTR 1. Because Joerns would have been eliminated either way, it

cannot show prejudice.

Joerns provides no meaningful response: “We dispute that measurement. The beds are 35

and a half, 35.4 with the allowance.” ECF No. 38, Tr. at 33:22-23. And counsel explained “I

mean, the client’s response to the idea that the bed was 34 and a half was apoplectic. There’s no

way that an objective measurement—I mean, these beds are extremely uniform and the idea that

they mismeasured by 0.9 inches was incredibly offensive to the client.” Id. at 35:25-36:5. In the

end, Joerns agreed that its “argument is that the measurement has to be wrong because it just

can’t be right.” Id. at 94:11-13.

However offensive the VA’s measurement of Joerns’ beds may be to Joerns, simply

arguing that the VA is wrong falls short of proving the VA’s measurement is wrong, no matter

how many times Joerns repeats its disagreement. In Phase 2, the VA separately evaluated Joerns

beds submitted by multiple offerors and all of them failed to meet the width requirements. Tab

69 at AR 4179, 4191, 4204-05. Given this record, the court declines to find that the VA erred on

all three instances simply because Joerns says so.

C. The VA Did Not Violate the FAR’s Commercial Item Requirements.

Joerns next argues that the VA violated the Federal Acquisition Streamlining Act of 1994

(“FASA”) and FAR Part 12’s provisions regarding commercial product procurements. ECF No.

31 at 13-22. Joerns makes several arguments here—that the VA failed to conduct adequate

market research to understand industry practice, its interpretation of the Solicitation violated that

industry practice, and that its award to [ * * * ] violated the requirement to purchase a

commercial item. Id. at 17. None is persuasive. Because the court has addressed Joerns’

argument that the VA’s interpretation violated industry practice above, the court does not revisit

that issue here.

1. The VA conducted adequate market research.

Joerns’ principal argument is that the VA must not have conducted adequate market

research because, had it done so, it would have discovered that a strict 36-inch width requirement

conflicts with customary commercial practice. See ECF No. 31 at 15; ECF No. 34 at 7. This

argument is both circular and baseless. Joerns does not identify any defect in the agency’s

methodology, data collection, or analysis. Instead, it simply asserts that the VA’s research must

have been inadequate because it did not lead the VA to Joerns’ own understanding (albeit

unstated during market research) of how the market works. This is circular: it assumes the very

13

premise it seeks to prove—that strict compliance with stated dimensions is inconsistent with

commercial practice—and then treats the VA’s failure to adopt that premise as evidence of

inadequate research. But the VA conducted market research.

Start with FAR § 12.202(a), 9 which provides that “[m]arket research (see 10.001) is an

essential element of building an effective strategy for the acquisition of commercial products and

commercial services and establishes the foundation for the agency description of need (see part

11), the solicitation, and resulting contract.” Nobody disputes that. The VA did market research

in this procurement, and Joerns participated throughout the process.

Starting in 2024, the VA began the planning for this procurement by assembling the

integrated project team (“IPT”) and defining its various roles and responsibilities in the process.

See Tab 3 at AR 10-18. One of the early market research efforts was an industry day at which

interested manufacturers could come to the VA and discuss their hospital beds. 10 Tab 2 at AR 4-

9; Tab 11 at AR 63-64. Each manufacturer got between 1 and 1.5 hours to discuss the beds they

had available. Tab 2 at AR 7.

A few months after industry day, the VA posted a RFI containing the draft MTRs and

“soliciting suggestions, recommendations, and comments on the MTRs.” Tab 8 at AR 41. The

draft of MTR 1 provided that the beds had to be a “minimum” of 36 inches wide and the

Advanced Bed had to be able to extend to “at least 42 inches” wide. See supra Part I.A & n.1.

The VA received responses from ten vendors. Of these ten vendors, only five commented on

MTR 1. Tab 6 at AR 35. Recall that Joerns raised no concerns about the minimum width

requirement—Joerns suggested splitting MTR 1 in two so that fixed and expandable beds were

priced separately, as did [ * * * ] and [ * * * ]. Id. They all confirmed the “minimum” width

requirement and the requirement that the Advanced Bed extend to “at least” 42 inches. Tab 6 at

AR 35. How was the VA to know that these vendors did not really mean 36 and 42 inches?

Only [ * * * ] suggested changing the requirement to 35 inches to allow more

competition. Tab 6 at AR 35. But this comment—read naturally—does not indicate anything

about nominal sizing in the hospital bed industry; it simply states that there could be more

competition if the required width were narrower. And read naturally, it contradicts Joerns’

position because [ * * * ]’s comment would be unnecessary if it thought 35-inch beds nominally

complied with a 36-inch requirement.

Finally, the VA responded to the questions and answers during the procurement. See

generally Tab 23. In 118 questions, not one potential offeror said anything to indicate that

industry practice is to advertise their beds as being wider than they are. Not one. Again, it is

unclear what more market research Joerns thinks the VA should have done. Joerns does not say.

It is clear, however, that the FAR did not require more.

9

In Joerns’ brief, it cites FAR § 12.201(a) when quoting the language of FAR § 12.202(a). See,

e.g., ECF No. 31 at 13.

10

The VA limited industry day to manufacturers but allowed them to designate a distributor to

present on their behalf. Tab 2 at AR 7.

14

2. Joerns has not established that [ * * * ]’s bed is a non-commercial item.

Even though Joerns is ineligible for award for failing to satisfy MTR 1, it contends that [

* * * ] is also ineligible for award because the bed that [ * * * ] proposed is not a commercial

product. ECF No. 31 at 18-22. As a result, Joerns contends that the VA must resolicit the

hospital beds, meaning Joerns will then be able to compete for the requirement. Id. at 22.

Although Joerns does not explain its standing to make such an argument, the court

understands this argument to invoke Tinton Falls Lodging Realty, LLC v. United States, 800 F.3d

1353 (Fed. Cir. 2015). Under Tinton Falls, a protestor can establish standing by showing that all

other offerors are similarly ineligible for the award and that the procurement would need to be

rebid in a way that would allow the protestor to compete. Id. at 1358-60. It is unclear, however,

that Joerns would be able to compete in a new competition because there is nothing suggesting

that there is a “sufficient probability” that the VA would resolicit for a bed less than 36 inches.

Id. at 1360. According to the Government, the VA would simply state more clearly that it wants

a bed with a minimum width of 36 inches. Of course, the VA determines what its needs are, not

this court. Savantage Fin. Servs., Inc. v. United States, 595 F.3d 1282, 1286 (Fed. Cir. 2010).

Assuming Joerns has standing to pursue this claim, Joerns fails on the merits. Here, the

primary dispute is whether [ * * * ]’s [ * * * ] bed is a commercial product. The FAR defines a

“commercial product” to cover six categories of products, two of which are relevant here. 48

C.F.R. § 2.101 (defining “commercial product”). Joerns concedes that it has the burden to show

that the [ * * * ] offerings are not commercial products. ECF No. 34 at 18 (citing AGMA Sec.

Serv., Inc. v. United States, 152 Fed. Cl. 706, 719 (2021)).

Joerns contends that the [ * * * ] is not a product that has been sold, leased, or licensed,

or offered for sale, lease, or license to the public. ECF No. 31 at 20; See 48 C.F.R. § 2.101

(subsection 1 of the definition of “commercial product”). According to Joerns, there is no

publicly available information indicating that [ * * * ] has ever sold or offered to sell the [ * * * ]

bed to the public. ECF No. 31 at 20-21. Joerns also points to the fact that the publicly available

information for [ * * * ]’s [ * * * ] bed, as opposed to the [ * * * ] bed, indicates that the [ * * * ]

bed is 35.5 inches wide and expandable to 41.5 inches. Id.; Tab 79 at AR 4426. Thus, Joerns

contends that the [ * * * ] bed is not the same thing that is offered for sale to the public. In the

Government’s view, this is pure speculation by Joerns—there is nothing indicating whether [ * *

* ] does offer the [ * * * ] bed to the public and under what name it may market it. E.g., ECF

No. 32 at 33. In the end, there is not sufficient information to determine whether the [ * * * ] bed

is offered or sold to the public.

Even if the [ * * * ] bed is not itself sold or offered for sale to the public, it may still

qualify as a commercial product. The Government contends that the bed would still be a

commercial product because widening the [ * * * ] bed by roughly half an inch would only be a

minor modification of a commercial product. ECF No. 32 at 33. Under the FAR, a commercial

product includes products that would qualify as a commercial product (e.g., sold or offered for

sale to the public) but for “[m]inor modifications of a type not customarily available in the

commercial marketplace made to meet Federal Government requirements.” 48 C.F.R. § 2.101

(subparagraph 3(ii) of the definition of “commercial product”). And the FAR provides

15

“Minor modifications” means modifications that do not

significantly alter the nongovernmental function or essential

physical characteristics of an item or component, or change the

purpose of a process. Factors to be considered in determining

whether a modification is minor include the value and size of the

modification and the comparative value and size of the final

product.

Id.

Joerns has failed to establish that if the [ * * * ] bed is a modification of the [ * * * ] bed,

that modification was not minor, and therefore permissible under the FAR. There is no argument

that widening a bed by a half inch alters the nongovernmental function of the bed. Indeed, there

is nothing to suggest that the function of the bed would be changed at all by such a small change

to its width, much less resulting in a significant alteration of the function. Nor is it apparent that

there would be a change to the essential physical characteristics of the bed by widening the frame

by a half inch to 36 inches and the extended width by a half inch to 42 inches. This is less than a

1.5% change in each dimension.

Joerns makes several attempts to show that widening the frame was not minor, but none

are persuasive. First, Joerns relies on the VA’s contention before the GAO that the distinction

between the [ * * * ] bed and the [ * * * ] bed “is not trivial.” Tab 94 at AR 6072. Joerns

contends this necessarily means that any modification of the [ * * * ] bed to make the [ * * * ]

bed cannot be “minor” for the purposes of the FAR definition of a commercial product. ECF

No. 35 at 21. This argument seeks to compare apples to oranges. The VA’s assertion to the

GAO was in response to Joerns’ argument that the VA treated Joerns differently than the VA

treated [ * * * ]. Tab 94 at AR 6072. In that context, the non-trivial distinction referred to one

bed being compliant and one not being compliant. In other words, there was no disparate

treatment. See Office Design Grp. v. United States, 951 F.3d 1366, 1372 (Fed. Cir. 2020).

Despite the VA recognizing that there are differences between the [ * * * ] bed and the [ * * * ]

bed, those differences are not necessarily “minor” for commercial product purposes just because

they are not “trivial” for disparate treatment purposes. Indeed, the FAR provides the factors for

consideration when determining whether something is a commercial product and Joerns’

argument does not fit within those factors.

Second, Joerns argues that widening the [ * * * ] bed would not qualify as a minor

change because “[ * * * ] had to completely reengineer its bed frame dimensions, set up new

manufacturing processes for the [ * * * ] beds, [and] conduct additional testing to meet IEC

standards.” ECF No. 31 at 21; see also ECF No. 34 at 20. But this is nothing more than

unsupported attorney argument. When pressed during argument, Joerns provided its basis for

this argument:

The best evidence that I have for that is, along the way, we asked

Joerns, look, what is it going to take to just make a 36-inch bed?

Can we go to the agency and say, give us two weeks and we can

make a 36-inch bed? And they said it’s impossible because there’s

an entire supply chain, there’s an entire design process, there’s an

16

entire manufacturing process. We have to go and retool the

machines. We have to retest for the IEC standards every time we

make a change to one of these beds. It’s a huge lift.

ECF No. 38, Tr. at 43:12-21. But that is inadmissible hearsay. Fed. R. Evid. 802. So the court

is left without anything but attorney argument based on hearsay to conclude that widening the [ *

* * ] bed by a half inch would be more than a minor modification. In other words, Joerns failed

to establish that, even if [ * * * ] widened its [ * * * ] bed by a half inch—less than 1.5%—to

make the [ * * * ] bed, that change was not a minor modification under FAR § 2.101.

Finally, Joerns argues that the court should not give any weight to the Government’s

arguments about whether any changes were minor as these are post-hoc rationalizations, arguing

that none of the analysis appears in the administrative record. ECF No. 34 at 20. For this

argument to hold water, Joerns necessarily contends that the VA had to specifically address

whether specific beds were, in fact, commercial items during the procurement. Joerns has

provided no support for that assertion, and the court has not identified any prior decision of this

court or the Federal Circuit addressing the issue. The GAO, however, has rejected the argument:

“there is no requirement in the FAR that agencies formally evaluate or document whether an

offered item is a commercial item when using commercial item procedures, and the protester has

not provided any authority for its belief that such an analysis is required.” Nabco, Inc., B-

293027 et al., 2004 WL 187279, at *3 (Comp. Gen. Jan. 15, 2004). Nor is the Government

seeking to assert a post-hoc rationalization, it is simply arguing that Joerns has failed to carry its

burden to show that (if the [ * * * ] bed is a modified [ * * * ] bed) widening a bed by a half inch

is not a minor modification under the FAR.

D. Because Joerns Fails to Show the VA’s Evaluation Was Arbitrary,

Capricious, or Contrary to Law, Its Claim Under the Implied Duty to Consider

Proposals Fairly Fails

Joerns asserts that it is entitled to relief because the VA “breached the implied duty to

consider Joerns’ proposal fairly and honestly, i.e., the implied duty of good faith and fair dealing

. . . .” ECF No. 31 at 37. Those are, of course, two separate duties and only the first one is

applicable here. Scott Timber Co. v. United States, 692 F.3d 1365, 1372 (Fed. Cir. 2012) (“The

[agency] could not have breached the covenant of good faith and fair dealing by its pre-award

conduct because the covenant did not exist until the contract was signed.”).

As for the implied duty to consider Joerns’ proposal fairly and honestly, that claim fits

within this court’s bid protest jurisdiction under 28 U.S.C. § 1491(b)(1). See Blue Origin Fed’n,

LLC v. United States, 157 Fed. Cl. 74, 113 (2021) (citing Safeguard Base Operations, LLC v.

United States, 989 F.3d 1326, 1332 (Fed. Cir. 2021)). The parties agree that the standard the

court applies is whether the VA’s conduct was arbitrary and capricious. ECF No. 31 at 37; ECF

No. 32 at 42. Joerns claims that, because its prior arguments establish that the VA’s conduct was

arbitrary and capricious, Joerns is entitled to relief for the breach of this implied duty. ECF No.

34 at 24. But Joerns’ failure to show that the VA’s conduct was arbitrary, capricious, or

otherwise contrary to law means this claim fails as well.

E. Joerns’ Challenges to Assessed Weaknesses Do Not Change the Outcome

17

Under the Solicitation, “[i]f any proposed products do not meet MTRs (literature review)

and/or physical inspection as specified, the proposal will be considered non-responsive and

eliminated from further competition.” Tab 25 at AR 496. That is what happened to Joerns’

proposal. Tab 69 at AR 4178; Tab 70 at AR 4218-19. And nothing Joerns has argued here

shows that the VA’s evaluation of its proposal was arbitrary, capricious, or contrary to law. That

means that Joerns remains ineligible for award—regardless of any errors the VA made in

assigning the weakness to Joerns’ proposal. As a result, Joerns cannot establish prejudice from

any of the weaknesses. E.g., WellPoint Mil. Care Corp. v. United States, 953 F.3d 1373, 1377

(Fed. Cir. 2020). Therefore, the court need not address the weaknesses further.

F. Injunctive Relief

When deciding whether to grant injunctive relief under 28 U.S.C. § 1491(b)(2), 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.” Centech Grp., Inc. v. United States, 554 F.3d 1029, 1037 (Fed. Cir.

2009) (citation omitted). But “[a]bsent success on the merits, the other factors are irrelevant.”

Info. Tech. & Applications Corp. v. United States, 51 Fed. Cl. 340, 357 n.32 (2001), aff’d, 316

F.3d 1312 (Fed. Cir. 2003). As explained in detail above, Joerns has failed on the merits of each

of its claims. Therefore, the court denies injunctive relief.

IV. Conclusion

For the foregoing reasons, the court denies Joerns’ motion for judgment on the

administrative record, ECF No. 31, and grants the United States’ cross-motion for judgment on

the administrative record, ECF No. 32. The Clerk’s Office is directed to enter judgment

accordingly. No costs.

It is so ORDERED.

s/ Edward H. Meyers

Edward H. Meyers

Judge

18