Tellus Strategies, LLC v. United States

IN THE UNITED STATES COURT OF FEDERAL CLAIMS

CONSOLIDATED

___________________________________

)

TELLUS STRATEGIES, LLC, )

)

Plaintiff, )

)

v. ) No. 25-2186

)

THE UNITED STATES, ) Filed: May 29, 2026

)

Defendant, ) Re-issued: June 11, 2026 ∗

and )

)

EXACTA SOLUTIONS, LLC, )

)

Defendant- )

Intervenor, )

and )

)

COMPASS, INC., )

)

Defendant- )

Intervenor, )

and )

)

INNOVATE NOW, LLC, )

)

Defendant- )

Intervenor, )

and )

)

PROCLEARED, LLC, )

)

Defendant- )

Intervenor, )

and )

)

∗ The Court issued this opinion under seal on May 29, 2026, and directed the parties to file

any proposed redactions by June 5, 2026. The opinion issued today incorporates the redactions

jointly proposed by the parties. Upon review, the Court finds that the material identified warrants

protection from public disclosure, as provided in the applicable Protective Order (ECF No. 16).

Redacted material is represented by bracketed ellipses “[ . . . ].” The Court did not adopt some

proposed redactions by Tellus of information that is already on the public docket.

LOGIC GATE, LLC, )

)

Defendant- )

Intervenor. )

___________________________________ )

)

ASSERTIVE PROFESSIONALS, LLC, )

)

Plaintiff, )

)

v. ) No. 26-93

)

THE UNITED STATES, )

)

Defendant, )

and )

)

COMPASS, INC., )

)

Defendant- )

Intervenor, )

and )

)

EXACTA SOLUTIONS, LLC, )

)

Defendant- )

Intervenor, )

and )

)

LOGIC GATE, LLC, )

)

Defendant- )

Intervenor, )

and )

)

INNOVATE NOW, LLC, )

)

Defendant- )

Intervenor, )

and )

)

PROCLEARED, LLC, )

)

Defendant- )

Intervenor. )

___________________________________ )

2

OPINION AND ORDER

In this post-award bid protest, consolidated plaintiffs Tellus Strategies, LLC (“Tellus”) and

Assertive Professionals, LLC (“AP”) each seek a permanent injunction preventing the National

Geospatial-Intelligence Agency (“NGA” or “the Agency”) from proceeding with a multiple-award

indefinite-delivery indefinite-quantity (“IDIQ”) contract for advisory and assistance support

services awarded to Defendant-Intervenors Exacta Solutions, LLC (“Exacta”), Compass, Inc.

(“Compass”), Innovate Now, LLC (“Innovate Now”), ProCleared, LLC (“ProCleared”), and Logic

Gate, LLC (“Logic Gate”). Tellus and AP raise various challenges to NGA’s evaluation of

proposals under the Relevant Experience, Past Performance, and Risk Assessment factors. For the

reasons discussed below, the Court DENIES the Motions for Judgment on the Administrative

Record filed by Tellus and AP, as well as Tellus’s Motion to Supplement the Administrative

Record with the Declaration of Sam Burton. Further, the Court GRANTS the Cross-Motions for

Judgment on the Administrative Record filed by the Government and Defendant-Intervenors.

Lastly, the Court DENIES AS MOOT the Government’s Motion to Dismiss and GRANTS IN

PART AND DENIES IN PART AS MOOT Exacta’s Motion to Dismiss.

I. BACKGROUND

A. The CLOVER Solicitation

NGA issued Request for Proposals No. HM0476-21-R-0023 (“RFP” or “Solicitation”) on

December 9, 2021, seeking proposals for a multiple-award IDIQ contract to support the Agency’s

CLOVER program. See generally Admin. R. (“AR”) Tab 12. 1 The CLOVER awardees will

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Unless otherwise noted, the Court’s citation to filings in this consolidated matter refer to

the Tellus docket (No. 25-2186). On January 30, 2026, the Government shared the AR

electronically through the Justice Enterprise File Sharing system. See ECF No. 53. On February

5, 2026, the Court granted the Government’s Motion to Correct the AR to include Tabs 123 and

124. See ECF No. 56. On February 17, 2026, the Court granted the Government’s Motion to

Correct the AR to include Tab 125. See ECF No. 59. For ease of reference, citations to the AR

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compete for task orders to provide advisory and assistance support services across three Work

Service Categories (“WSCs”): (1) Total Lifecycle Acquisition Management, (2) Financial

Management, and (3) Strategic Business Management (“SBM”). AR Tab 14a.1 at 1555–62; see

also AR Tab 17 at 2355–58 (describing services to be provided, including scope of potential task

orders). CLOVER replaces and “redefines the [incumbent] EMERALD program” and will

“encompass[] a similar, but not identical, scope.” AR Tab 14a.1 at 1549.

The RFP stated that NGA would make award using a Highest Technically Rated Offerors

with a Fair and Reasonable Price (“HTRO”) methodology. AR Tab 17 at 2466. Offerors were

instructed to submit a self-scoring sheet in which they assigned points to their proposals based on

the Agency’s defined criteria. Id. at 2461–62, 2475. Upon receiving proposals, NGA would

initially conduct an acceptability review and compliance check to ensure proposals satisfied the

RFP’s requirements. Id. at 2467. Proposals deemed non-compliant were subject to removal from

consideration. Id. Following the acceptability review and compliance check, evaluators would

rank the proposals by self-score. Id. NGA would then review the five highest self-scored

proposals to verify that each self-score was supported by the documentation within the proposal.

Id. at 2467. Where a self-scored evaluation element was unsubstantiated or otherwise not met, the

Agency’s evaluation team would reduce the offeror’s self-score by the appropriate number of

points. Id. The offeror would then be re-ranked based on its revised score. Id. If the offeror’s

revised score caused it to fall out of the five highest-rated offerors, then the next highest self-rated

offeror would be evaluated. Id. NGA would repeat this process until there were five verified

refer to the bates-labeled page numbers. Although the Court’s rules require the filing of a joint

appendix including “those portions of the administrative record that the parties have cited in their

respective briefs,” Rules of the United States Court of Federal Claims, App. C, ¶ 26, the parties

filed only a joint appendix index following the completion of briefing. See ECF No. 106.

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highest-rated offerors. Id. According to the RFP, the Agency would only assess the price

reasonableness of those five proposals. Id.

Proposals were due March 29, 2022, and were to be submitted in seven volumes. Id. at

2340, 2446. Three such volumes are relevant to these bid protests: Volume 2 – Relevant

Experience, Volume 3 – Past Performance, and Volume 6 – Risk Assessment. Id.

1. Relevant Experience

For Volume 2 – Relevant Experience, offerors could self-score up to 27,000 points for

demonstrating experience performing work similar to the statement of work (“SOW”) for

CLOVER. See id. at 2468–69; AR Tab 17a at 2622. The Solicitation instructed offerors to submit

up to nine projects demonstrating relevant experience performing efforts similar to the three

WSCs. AR Tab 17 at 2456. Offerors could only use these nine projects for the remaining

evaluation factors. AR Tab 14b at 1698.

The CLOVER SOW included an illustrative list of capabilities for each WSC. See AR Tab

14a.1 at 1555–62. The Total Lifecycle Acquisition Management WSC consisted of 17 capabilities.

Id. at 1555–59. The Financial Management WSC consisted of 10 capabilities. Id. at 1559–61.

The SBM WSC consisted of eight capabilities. Id. at 1561–62. These capabilities are not inclusive

of all services NGA may order under the IDIQ. Id. at 1555, 1559, 1561. Instead, the capabilities

were listed “to provide a generalized understanding of the type of work to be performed.” Id. at

1555. Offerors were instructed “to provide enough substantiating documentation for the

Government to evaluate and assess the technical capabilities contained in each relevant experience

example.” AR Tab 17 at 2456. The RFP did not limit the amount of supporting documentation

an offeror could provide. Id. at 2447. NGA used the following scale to assess an offeror’s

Relevant Experience:

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Scale Rating Description

3,000 Very Relevant Offeror submission addresses most aspects of the WSC, and

convincingly demonstrates that it will meet the Government’s

performance requirements.

2,000 Relevant Offeror submission addresses some aspects of the WSC, and

convincingly demonstrates a likelihood of meeting the

Government’s performance requirements.

1,000 Minimally Offeror submission addresses a few aspects of the WSC, and

Relevant demonstrates the ability to meet the Government’s performance

requirements. The submission may contain several scope

inconsistencies.

0 Not Offeror submission does not address any aspects of the WSC, or

Relevant/Not no evidence is presented indicating the likelihood of successfully

Submitted meeting the Government’s performance requirements.

Id. at 2469.

2. Past Performance

As part of Volume 3 – Past Performance, offerors could self-score up to 27,000 points

based on the quality of their performance on each project submitted under Volume 2. AR Tab 17

at 2458–60; AR Tab 17a at 2623–24. Offerors were instructed to submit a Past Performance

package for each project, including an Attachment J.18 form and a Past Performance Questionnaire

(“PPQ”) completed by the offeror’s point of contact (“POC”). AR Tab 17 at 2458–59. The

Solicitation noted that offerors were “responsible for having the POC qualified to speak on

representative performance.” Id. at 2459. When reviewing an offeror’s Past Performance, the

Agency maintained discretion under the RFP to consider information from other sources, including

but not limited to: “the Past Performance Information Retrieval System (PPIRS), Federal Awardee

Performance and Integrity Information System (FAPIIS), Beta System for Award Management

(SAM.gov)[,] [] the Contractor Performance Assessment Reporting System (CPARS),” and

“Government customer interviews and questionnaires.” Id. at 2471.

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Under Past Performance, the Agency evaluated offerors based on each Past Performance

package submitted according to the following scale:

Scale Rating Description

3,000 Exceptional 1) Performance met contractual requirements and exceeded many, to the

Government’s benefit.

2) The contractual performance of the element or sub-element being

evaluated was accomplished with no problems or with few minor

problems for which corrective actions taken by the contractor were

highly effective.

2000 Very Good 1) Performance met contractual requirements and exceeded some, to the

Government’s benefit.

2) The contractual performance of the element or sub-element being

evaluated was accomplished with some minor problems for which

corrective actions taken by the contractor were effective.

1000 Satisfactory 1) Performance met contractual requirements.

2) The contractual performance of the element or sub-element contains

some minor problems for which corrective actions taken by the contractor

appear or were satisfactory.

500 Marginal 1) Performance did not meet some contractual requirements.

2) The contractual performance of the element or sub-element being

evaluated reflects a serious problem for which the contractor has not yet

identified corrective actions or the contractor’s proposed actions appear

only marginally effective or were not fully implemented.

500 Neutral Any overall WSC Project performance incapable of being evaluated

favorably or unfavorably due to the Offeror not having a record of

relevant past performance, or for whom information on past performance

is not available.

0 Adverse Any overall WSC Project performance rating of Unsatisfactory. (Adverse

past performance is defined as Unsatisfactory.)

Id. at 2471–72. Both elements of the definition needed to be met for the offeror to receive the

corresponding score. Id. at 2472.

The PPQs required a separate assessment. Specifically, the Solicitation required the POCs

to “corroborate the time frame of performance, customer supported, entity that performed the

work, and scope/size/obligated dollars of work performed by Offeror, and customer ratings or

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performance information.” Id. at 2471. The PPQs provided the following ratings for the POCs to

assign:

AR Tab 16a.3 at 2321.

3. Risk Assessment

For Volume 6 – Risk Assessment, under the Organizational Structure subfactor, offerors

could self-score additional points by demonstrating previous performance with their

subcontractors or joint venture members in the proposed business arrangement. AR Tab 17 at

2475–76. The Solicitation instructed each offeror to “identify if it has previously performed in a

business arrangement with their proposed subcontractors or JV partners.” Id. at 2463. The

Solicitation defined “Previously Performed” as “performance that took place before the issuance

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of the CLOVER solicitation, for a period of no less than one complete Period of Performance on

another contract action, or for a period totaling one calendar year.” Id.

To earn a score of 2,000 points under Risk Assessment – Organizational Structure, the RFP

instructed joint venture offerors to submit a J.17 Self-Scoring Sheet reflecting that the offeror “has

previously performed with greater than or equal to 60% of all Partners and proposed subcontractors

under previous agreements/contracts.” AR Tab 17a at 2625. Non-joint venture offerors could

earn a score of 2,000 points by indicating that the offeror “has previously performed with greater

than or equal to 60% of all subcontractors under previous agreements/contracts.” Id. To verify

the submission, offerors were required to include: (1) “[t]he contract or Task Order for which the

work was performed,” and (2) “[e]vidence of the business arrangement,” e.g., “[a] [j]oint venture

agreement that identifies all members, or [a] copy of the subcontract(s).” AR Tab 17 at 2464. If

the offeror previously performed with less than 60 percent of all partners and proposed

subcontractors, the offeror was only entitled to 1,000 points. AR Tab 17a at 2625.

The Solicitation stated in bold and centered text that “[i]t is the responsibility of the

Offeror to ensure that any supporting documentation clearly represents the working

partnership on the previously performed work.” AR Tab 17 at 2464 (emphasis in original).

The RFP also indicated, in describing the evaluation methodology for Risk

Assessment – Organizational Structure, that “[s]coring for this element is only available for

demonstrating that the Offeror has previously performed in the proposed business arrangement.”

Id. at 2475. Thus, “Offerors who have worked with their partners or subcontractors before are

considered more favorable in accordance with [the J.17 Self-Scoring Sheet].” Id. at 2475–76.

B. Tellus’s Proposal

Tellus is a mentor-protégé joint venture between McIntire Solutions, LLC (“McIntire”) and

S2 Analytical Solutions, LLC (“S2”). AR Tab 30a.6 at 31482. It submitted its proposal on March

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29, 2022, and included the maximum nine projects for the Relevant Experience and Past

Performance factors. See AR Tab 30a.1 at 31746; AR Tab 30a.3 at 31773, 31777. For the Total

Lifecycle Acquisition Management WSC, Tellus submitted three projects: (1) Project 1-1 ([ . . . ]),

(2) Project 1-2 ([ . . . ]), and (3) Project 1-3 ([ . . . ]). AR Tab 30a.3 at 31773. For the Financial

Management WSC, Tellus submitted three projects: (1) Project 2-1 ([ . . . ]), (2) Project 2-2

([ . . . ]), and (3) Project 2-3 ([ . . . ]). Id. For the SBM WSC, Tellus submitted three projects:

(1) Project 3-1 ([ . . . ]), (2) Project 3-2 ([ . . . ]), and (3) Project 3-3 ([ . . . ]). Id. Under the Risk

Assessment – Organizational Structure factor, Tellus self-scored 2,000 points based on it having

previously performed with greater than or equal to 60 percent of all partners and proposed

subcontractors. AR Tab 30e.1. In support of this score, Tellus submitted eight subcontract

modifications, with two subcontract modifications demonstrating the relationship between [ . . . ]

and [ . . . ], and the remaining subcontract modifications demonstrating the relationship between

[ . . . ] and six of Tellus’s proposed subcontractors. AR Tab 30f.2 at 36071. Overall, Tellus scored

its proposal as receiving 72,750 points out of a possible 78,500 points. AR Tab 30e.1.

C. AP’s Proposal

AP also submitted a timely proposal. AR Tab 112 at 45650. Three of AP’s projects are

relevant to its protest: (1) Project 1-2, which involved AP’s subcontractor [ . . . ]’s performance of

Program Management Support Services for the [ . . . ], AR Tab 21b.27 at 3195; (2) Project 2-2,

which involved AP’s subcontractor [ . . . ]’s performance of Business Operations services for the

[ . . . ], AR Tab 21b.34 at 3382; and (3) Project 3-2, which involved the same contract as Project

2-2, AR Tab 21b.36 at 3387. Under the Risk Assessment – Organizational Structure factor, AP

self-scored 2,000 points based on it having previously performed with at least 60 percent of its

proposed subcontractors. AR Tab 21e.4. In support of this score, AP submitted two documents:

(1) a unilateral modification exercising an option year under an IDIQ subcontract between AP and

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[ . . . ], AR Tab 21f.8; and (2) a bilateral modification exercising an option year under an IDIQ

subcontract between AP and [ . . . ], AR Tab 21f.9. 2 Overall, AP self-scored 73,750 points out of

78,500 possible points. AR Tab 21e.4.

D. The Initial Award Decision, Protests, and 2025 Re-Evaluation

On May 23, 2023, NGA announced its original awards to Compass, Credence Dynamo

Solutions, LLC, Exacta, Innovate Now, and Logic Gate. See AR Tabs 45a–45e. Tellus and AP

both requested and received post-award debriefings on June 16, 2023, during which the Agency

provided each plaintiff with a redacted version of the Source Selection Decision Document

(“SSDD”), a redacted and excerpted version of the Source Selection Evaluation Board (“SSEB”)

Report, and copies of their respective Consensus Evaluation Reports (“CERs”). See AR Tabs 49a,

49b.

Three unsuccessful offerors subsequently filed protests at the Government Accountability

Office (“GAO”): AP, Zolon PCS II, LLC (“Zolon”), and ProCleared. See AR Tabs 52, 57, 66.

Tellus did not file a protest or otherwise object to the procurement at that time. In July 2023, NGA

took voluntary corrective action including re-evaluation of proposals. AR Tabs 53, 59, 67. Zolon

challenged NGA’s proposed corrective action in this Court on August 24, 2023. See Zolon PCS

II, LLC v. United States (Zolon I), 172 Fed. Cl. 742 (2024). On January 8, 2025, Zolon filed a

subsequent protest of the Agency’s decision to incorporate into the RFP a revised version of

Federal Acquisition Regulation (“FAR”) 52.204-7. See Zolon PCS II, LLC v. United States (Zolon

II), 176 Fed. Cl. 279 (2025). The merits of Zolon’s previous protests are not relevant to Tellus’s

and AP’s current challenges.

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AP and [ . . . ] both proposed [ . . . ] as a subcontractor. See AR Tab 21a.3 at 2649; AR

Tab 28a.2 at 2436–37. [ . . . ] was also proposed as a member of Exacta, a mentor-protégé joint

venture. See AR Tab 25a.1 at 16714.

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Following resolution of Zolon’s second protest before this Court, NGA completed its re-

evaluation of the remaining offerors. See AR Tab 112 at 45649–52. On September 8, 2025, based

on the re-evaluation, the Agency notified offerors of its new decision to issue awards to Compass,

ProCleared, InnovateNow, Logic Gate, and Exacta. See AR Tabs 115a–116b. As part of the

debriefing process, Tellus and AP were provided with redacted copies of the new SSDD, SSEB

report, and CERs. See AR Tabs 119a.1, 119b.1.

During the re-evaluation, NGA validated 57,250 of Tellus’s 72,750 claimed points. See

AR Tab 112 at 45737. Specifically, the evaluators reduced Tellus’s self-scores for the Relevant

Experience, Past Performance, and Risk Assessment – Organizational Structure factors. Id. Tellus

initially filed an agency-level protest on September 22, 2025, AR Tab 121, which NGA denied on

December 1, 2025, AR Tab 122. The re-evaluation also resulted in the Agency verifying 68,750

of AP’s 73,750 self-score points. AR Tab 112 at 45688. Specifically, NGA reduced AP’s self-

scores for the Relevant Experience, Past Performance, and Risk Assessment – Organizational

Structure factors. Id. at 45689–94. AP initially filed a protest at GAO, which was dismissed under

4 C.F.R. § 21.11(b) after Tellus filed its protest in this Court.

E. Procedural History

On December 30, 2025, Tellus filed its Complaint. See ECF No. 1. Following dismissal

of its GAO protest, AP filed its Complaint on January 16, 2026. See Assertive Pros., No. 26-93,

ECF No. 1. All five awardees intervened. See ECF Nos. 11–13, 20, 22, 24, 26–27. The Court

subsequently consolidated the cases, designating Tellus, No. 25-2186, as the lead case. See

Consolidation Order, ECF No. 39.

Tellus filed a Motion to Complete and Supplement the Administrative Record, Order

Depositions, and Temporarily Suspend Briefing on February 23, 2026. ECF No. 61. In its motion,

Tellus sought to: (1) complete the AR with all documents prepared by the members of the relevant

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evaluation teams in connection with the preparation of their CERs, as well as the Performance

Assessment Reports (“PARs”) that the POC reviewed in completing PPQs for three of Tellus’s

projects, id. at 2–3; (2) supplement the AR with the Declaration of Sam Burton, [ . . . ] of [ . . . ]

(the “Burton Declaration”), as well as the transcripts of the as-yet taken depositions of the chairs

of the relevant evaluation teams, id. at 3–6; (3) have the Court order such depositions, id. at 6–7;

and (4) suspend briefing “until such time as the AR is completed and supplemented and the

depositions occur,” id. at 7. On March 9, 2026, the Government and Defendant-Intervenors Logic

Gate, ProCleared, Innovate Now, and Exacta filed oppositions to Tellus’s motion. See ECF Nos.

74 (Logic Gate), 78 (Government), 80 (ProCleared), 82 (Innovate Now), 85 (Exacta). Following

oral argument on March 12, 2026, the Court denied Tellus’s motion, except that it deferred ruling

on whether to supplement the record with the Burton Declaration. ECF No. 87.

On the same day that Tellus filed its request for completion and supplementation, both

Tellus and AP filed their Motions for Judgment on the Administrative Record. ECF Nos. 62

(Tellus), 64 (AP). In their motions, each plaintiff brings various challenges to the Agency’s

evaluation under the Relevant Experience, Past Performance, and Risk Assessment factors. On

March 9, 2026, the Government and Exacta filed Motions to Dismiss and Cross-Motions for

Judgment on the Administrative Record. ECF Nos. 79 (Government), 86 (Exacta). That same

day, the remaining Defendant-Intervenors also filed Cross-Motions for Judgment on the

Administrative Record. ECF Nos. 72 (Compass), 73 (Logic Gate), 81 (ProCleared), 83–84

(Innovate Now). On March 20, 2026, Tellus and AP each filed their combined response to the

Government’s and Defendant-Intervenors’ motions and reply in support of their motions. ECF

Nos. 93 (AP), 94 (Tellus). The Government and Defendant-Intervenors each subsequently filed

their combined responses and replies. ECF Nos. 96 (Compass), 98 (Logic Gate), 101 (ProCleared),

102 (Government), 103–04 (Innovate Now), 105 (Exacta). The Court heard oral argument on the

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parties’ dispositive motions on April 17, 2026. All motions are now fully briefed and ripe for

disposition.

II. LEGAL STANDARDS

A. Rule 12(b)(6) Motions to Dismiss

Under Rule 12(b)(6) of the Rules of the United States Court of Federal Claims (“RCFC”),

an action may be dismissed if it fails to state a claim for which relief may be granted. “A motion

to dismiss pursuant to Rule 12(b)(6) tests whether ‘the facts asserted by the claimant . . . entitle

[plaintiff] to a legal remedy.’” Flynn v. United States, 180 Fed. Cl. 256, 260 (2026) (alteration in

original) (quoting Lindsay v. United States, 295 F.3d 1252, 1257 (Fed. Cir. 2002)). To avoid

dismissal under RCFC 12(b)(6), “a complaint must contain sufficient factual matter, accepted as

true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Although a complaint

need not contain detailed factual allegations to raise a plausible claim, a plaintiff must provide

“more than labels and conclusions, and a formulaic recitation of the elements of a cause of action

will not do.” Twombly, 550 U.S. at 555; see also Papasan v. Allain, 478 U.S. 265, 286 (1986)

(holding that courts “are not bound to accept as true a legal conclusion couched as a factual

allegation”).

In deciding a motion under RCFC 12(b)(6), the Court may consider the complaint itself,

“the written instruments attached to it as exhibits, ‘documents incorporated into the complaint by

reference, and matters of which a court may take judicial notice.’” Todd Constr., L.P. v. United

States, 94 Fed. Cl. 100, 114 (2010) (quoting Tellabs, Inc. v. Makor Issues & Rts. Ltd., 551 U.S.

308, 322 (2007)), aff’d, 656 F.3d 1306 (Fed. Cir. 2011). The Court must draw all reasonable

inferences in favor of the non-moving party. Sommers Oil Co. v. United States, 241 F.3d 1375,

1378 (Fed. Cir. 2001).

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B. Motions to Complete or Supplement the Administrative Record

“Different standards govern motions to complete and motions to supplement the

administrative record.” ELB Servs., LLC v. United States, 172 Fed. Cl. 233, 241 (2024). A motion

to complete the administrative record seeks to add documents to the record that were generated or

considered by the relevant decision-maker but not included in the administrative record. Poplar

Point RBBR, LLC v. United States (Poplar Point I), 145 Fed. Cl. 489, 494 (2019). Because the

Government’s “designation of an administrative record is entitled to a presumption of

completeness,” to prevail on a motion to complete, a plaintiff must provide “clear evidence” that

the administrative record lacks information that was “generated or considered by the agency during

the procurement and decisionmaking process.” Id.; see also Am-Pro Protective Agency, Inc. v.

United States, 281 F.3d 1234, 1238–39 (Fed. Cir. 2002) (explaining that courts presume

government officials exercise their duties in good faith).

A motion to supplement the administrative record, on the other hand, seeks to add materials

that were not considered by the agency in reaching its decision but are nevertheless necessary to

permit the Court’s full evaluation of the agency’s decision. Poplar Point I, 145 Fed. Cl. at 494.

To supplement the record, a plaintiff must make a higher showing than that necessary to prevail

on a motion to complete. See Axiom Res. Mgmt., Inc. v. United States, 564 F.3d 1374, 1379 (Fed.

Cir. 2009) (explaining that parties have a “limited” ability to supplement the administrative

record). This is because, in a case applying the Administrative Procedure Act’s (“APA”) standard

of review, “the focal point for judicial review should be the administrative record already in

existence, not some new record made initially in the reviewing court.” Id. (quoting Camp v. Pitts,

411 U.S. 138, 142 (1973)). Thus, the administrative record “should be supplemented only if the

existing record is insufficient to permit meaningful review consistent with the APA.” Id. at 1381.

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Courts have found supplementation appropriate where the supplemental material is

“necessary to help explain an agency’s decision,” Orion Int’l Techs. v. United States, 60 Fed. Cl.

338, 343 & n.10 (2004) (citing Camp, 411 U.S. at 142–43); helps explain what the agency

considered in reaching a decision, Precision Standard, Inc. v. United States, 69 Fed. Cl. 738, 747

(2006), aff’d, 228 F. App’x 980 (Fed. Cir. 2007); or otherwise “correct[s] mistakes and fill[s] gaps”

in the record, Pinnacle Sols., Inc. v. United States, 137 Fed. Cl. 118, 130 (2018). Supplementation

is also generally appropriate when the extra-record material contains “relevant information that by

its very nature would not be found in an agency record[,]” including “evidence of bad faith.”

Orion, 60 Fed. Cl. at 343–44.

C. Motions for Judgment on the Administrative Record

RCFC 52.1(c) governs motions for judgment on the administrative record. Such motions

essentially call for “an expedited trial on the record.” Bannum, Inc. v. United States, 404 F.3d

1346, 1356 (Fed. Cir. 2005). Unlike the standard for summary judgment, the standard for

judgment on the administrative record involves determining, “given all the disputed and

undisputed facts in the administrative record, whether the plaintiff has met the burden of proof to

show that the [challenged agency decision] was not in accordance with the law.” Martinez v.

United States, 77 Fed. Cl. 318, 324 (2007) (citing Bannum, 404 F.3d at 1357). Therefore, a

genuine dispute of material fact does not prevent a court from granting a motion for judgment on

the administrative record. See Bannum, 404 F.3d at 1357; Martinez, 77 Fed. Cl. at 324.

D. Bid Protest Standard of Review

The Tucker Act, as amended by the Administrative Dispute Resolution Act of 1996,

confers on this Court “jurisdiction to render judgment on an action by an interested party objecting

to . . . the award of a contract or any alleged violation of statute or regulation in connection with a

procurement or a proposed procurement.” 28 U.S.C. § 1491(b)(1). The Act requires this Court to

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review the agency’s action “pursuant to the standards set forth” in the APA. Id. § 1491(b)(4); see

also Banknote Corp. of Am., Inc. v. United States, 365 F.3d 1345, 1350 (Fed. Cir. 2004) (explaining

that this Court reviews bid protests under the APA’s arbitrary and capricious standard).

Accordingly, the Court asks whether a procuring agency’s action was “arbitrary, capricious, an

abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). To prevail,

a protester “must show a significant, prejudicial error in the procurement process.” WellPoint Mil.

Care Corp. v. United States, 953 F.3d 1373, 1377 (Fed. Cir. 2020) (quoting Alfa Laval Separation,

Inc. v. United States, 175 F.3d 1365, 1367 (Fed. Cir. 1999)); see also 5 U.S.C. § 706 (“[D]ue

account shall be taken of the rule of prejudicial error.”). Under the APA standard, an agency action

“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 v. United States, 238 F.3d 1324, 1332 (Fed. Cir. 2001).

Procurement officials “are given broad discretion” in their procurement duties; when a

procurement officer makes a reasonable decision within the scope of that discretion, “a court may

not substitute its judgment for that of the agency.” DynCorp Int’l, LLC v. United States, 10 F.4th

1300, 1311 (Fed. Cir. 2021) (quoting R & W Flammann GmbH v. United States, 339 F.3d 1320,

1322 (Fed. Cir. 2003)). Thus, a protester “bears a heavy burden” to overcome the presumption of

regularity courts afford to an agency decision. Impresa, 238 F.3d at 1338. If the “agency provided

a coherent and reasonable explanation of its exercise of discretion,” the agency action should be

sustained. Id. at 1333 (quoting Latecoere Int’l, Inc. v. U.S. Dep’t of Navy, 19 F.3d 1342, 1356

(11th Cir. 1994)).

III. DISCUSSION

This opinion proceeds in five parts. First, the Court finds that Tellus has not demonstrated

prejudicial error in the Agency’s evaluation of its proposal. Second, the Court further explains its

17

previous decision denying Tellus’s Motion to Complete and Supplement the Administrative

Record, Order Depositions, and Temporarily Suspend Briefing, and it denies Tellus’s Motion to

Supplement the AR with the Burton Declaration because it is not necessary for effective judicial

review. Third, the Court determines that AP has not established prejudicial error in NGA’s

evaluation process. Fourth, the Court finds that neither plaintiff has established that the Agency’s

HTRO determination and resulting award decision were unreasonable. Finally, the Court

concludes that neither plaintiff is entitled to permanent injunctive relief.

A. Tellus Has Not Succeeded in Its Protest.

Tellus challenges the Agency’s evaluation of Tellus’s proposal under the Relevant

Experience, Past Performance, and Risk Assessment – Organizational Structure factors. See ECF

No. 62 at 19–44. Tellus also argues that the Agency failed to conduct a meaningful re-evaluation

of Tellus’s proposal. Id. at 16–19. Upon review, the Court determines that Tellus has not

demonstrated any prejudicial error in NGA’s evaluation, nor has it demonstrated that the Agency

failed to conduct a meaningful re-evaluation.

1. The Agency Rationally Evaluated Tellus’s Relevant Experience.

Tellus claims that the Agency failed to rationally evaluate Tellus’s Relevant Experience

volume because (1) Tellus was entitled to a Very Relevant rating for each project that demonstrated

at least some relevant experience for greater than 50 percent of the WSC elements; (2) the Agency

understated Tellus’s Relevant Experience and its ability to meet NGA’s requirements; and (3) the

Agency engaged in disparate treatment when evaluating Tellus’s Relevant Experience. None of

these claims have merit.

18

a. The RFP did not require the Agency to give Tellus a Very Relevant rating for

each project that demonstrated at least some Relevant Experience for greater

than 50 percent of the elements listed under the WSC.

Tellus claims that “NGA failed to reasonably evaluate Tellus’s Relevant Experience” with

respect to four projects: (1) Project 1-3 ([ . . . ]); (2) Project 2-1 ([ . . . ]); (3) Project 3-1 ([ . . . ]);

and (4) Project 3-3 ([ . . . ]). Id. at 19 (citing AR Tab 107a at 45301–45). According to Tellus,

because the Relevant Experience Evaluation Team (“REET”) “found that all Tellus’s projects

reflected either ‘very relevant experience’ or ‘some relevant experience’ with respect to at least

50% of the elements comprising each WSC,” these projects were each entitled to a Very Relevant

rating. Id. at 20.

Under the Solicitation, a Relevant Experience submission (i.e., a project) would receive a

“Very Relevant” rating and 3,000 points if it “addresse[d] most aspects of the WSC, and

convincingly demonstrate[d] that [the offeror] will meet the Government’s performance

requirements.” AR Tab 17 at 2469. A submission would instead receive a “Relevant” rating and

2,000 points if it “addresse[d] some aspects of the WSC, and convincingly demonstrate[d] a

likelihood of meeting the Government’s performance requirements.” Id.

Tellus and the Government disagree as to the proper interpretation of this scoring

methodology, specifically disputing the meaning of “addresses most aspects of the WSC.” In

Tellus’s view, the question of whether an offeror should receive a Very Relevant rating “is largely

a mathematical one of: (1) how many ‘aspects’ there are to each WSC and (2) based on a

reasonable evaluation, whether a Project ‘addresses’ more than half.” ECF No. 94 at 13. Tellus

argues that the “aspects of the WSC” are the non-exclusive list of “capabilities” enumerated in the

SOW for each WSC, which Tellus also refers to as the “elements” of a WSC. 3 See id. at 21–22;

3

For ease of reference, in this section the Court mirrors Tellus’s use of the term “element”

when referring to these “capabilities.”

19

see also, e.g., AR Tab 14a.1 at 1555 (introducing the capabilities for the Total Lifecycle

Acquisition Management WSC and stating that they “provide a generalized understanding of the

type of work to be performed”). Tellus also takes the view that a WSC aspect is “addressed” if

NGA made at least one finding of “some relevant experience” with regard to that WSC aspect.

ECF No. 62 at 20–22. The Government disagrees with Tellus’s interpretation of the Solicitation,

arguing that the Agency had greater discretion to weigh its findings and assign an overall rating.

See ECF No. 79 at 50–52; ECF No. 102 at 19–23. The Court agrees.

As an initial matter, the United States Court of Appeals for the Federal Circuit has rejected

similar attempts by disappointed offerors challenging adjectival ratings to transform a procuring

agency’s evaluative judgment into a formulaic calculation. In Glenn Defense Marine (ASIA), PTE

Ltd. v. United States, 720 F.3d 901 (Fed. Cir. 2013), the Circuit emphasized that past performance

adjectival ratings are “not subject to a mathematical calculation,” and thus it is incorrect to argue

that overall and subfactor ratings can “be added up and ‘averaged out’ to score the contractor.” Id.

at 909 n.6; see also AccelGov, LLC v. United States, 180 Fed. Cl. 385, 394–95 (2026) (an agency

does not need to treat adjectival findings as “mathematical pluses and minuses” (citing Glenn Def.

Marine, 720 F.3d at 909 n.6)); Am. Relocation Connections, LLC v. United States, 147 Fed. Cl.

608, 619 (2020) (agencies have the “discretion to make a best value judgment concerning the

proposals’ technical advantages, and that judgment necessarily involve[s] considering the

magnitude of the strengths, not just the quantity of strengths” (citing Glenn Def. Marine, 720 F.3d

at 909 n.6)), appeal dismissed, No. 2020-1717, 2020 WL 13660147 (Fed. Cir. Apr. 27, 2020).

Moreover, in arguing for a mathematical interpretation, Tellus attempts to distort the

Agency’s adjectival ratings in a manner that leads to illogical results. To understand why, it is

important to better understand how the Solicitation approached the evaluation of an offeror’s

Relevant Experience. First, Tellus is incorrect to say that the WSC “aspects” referenced by the

20

adjectival rating scale are co-extensive with the “capabilities” listed under each WSC. See AR

Tab 17 at 2469 (describing a Very Relevant submission as, in part, one that “addresses most

aspects of the WSC” (emphasis added)). When responding to questions from potential offerors,

the Agency specifically stated that “aspect” should be defined according to its common usage. AR

Tab 14b at 1715. Thus, as the Government aptly argues, “an aspect of a WSC is simply a part of

that WSC.” ECF No. 102 at 23 (citing Aspect, Merriam-Webster Dictionary,

https://www.merriam-webster.com/dictionary/aspect). The capabilities (i.e., elements) listed

under each WSC also contained various tasks or expectations, which the Solicitation explicitly

stated were non-exclusive of the work to be performed pursuant to that WSC. See, e.g., AR Tab

14a.1 at 1555. Accordingly, the Solicitation did not plainly contemplate a mathematical counting

of a WSC’s listed capabilities. 4

Additionally, while “most” lends itself to an interpretation of greater than 50 percent, see

Apr. 17, 2026 Oral Arg. Tr. at 25:13–14, ECF No. 108, the Solicitation does not require Tellus’s

strict application of the term. When asked to quantitatively define the term “some” in relation to

the Relevant Experience rating scale, NGA refused, instead stating that “some is less than most”

but “greater than few” and emphasizing that “[e]valuators will exercise their discretion to assess

relevance.” AR Tab 14b at 1715 (cleaned up). This further demonstrates the Agency’s reluctance

to cabin its analysis to a mathematical approach such as the one suggested by Tellus.

Indeed, the Solicitation’s allowance for discretion appears particularly sensible when

taking Tellus’s mathematical argument to its logical conclusion. As previously discussed, each

4

Admittedly, in evaluating Tellus’s proposal, NGA only analyzed whether Tellus

addressed the listed capabilities of each WSC. See generally AR Tab 107a. Even so, the fact that

the Solicitation gave the Agency discretion to consider additional aspects beyond what was

explicitly described as a non-exclusive list of capabilities indicates that the Solicitation intended

for the Agency’s discretion to play a significant role in determining an offeror’s overall rating.

21

WSC was comprised of a number of capabilities (or elements) that themselves contained various

tasks or expectations. For example, under the Total Lifecycle Acquisition Management WSC,

there were 17 elements, the first of which was Acquisition Management Support. See AR Tab

14a.1 at 1555. Under that element, awardees may be required to:

Provide advice to the Government in complying with the Federal Acquisition

Regulation and supplements from the [Department of Defense (DoD)],

[Intelligence Community (IC)], and Agency. Develop policies and procedures for

standardizing and expediting NGA acquisitions. Communicate and market

acquisition policy and efforts to internal and external customers. Assess current

contracts, along with acquisition trends from other agencies’ software development

and commercial off-the-shelf (COTS) integration contracts, to identify

opportunities for implementing acquisition reform principles. Manage and advise

the requirements identification and documentation process.

Id. Using Tellus’s interpretation of the Solicitation, if an offeror demonstrated at least some

experience with “[p]rovid[ing] advice to the Government in complying with the Federal

Acquisition Regulation and supplements from the DoD, IC, and Agency,” then the offeror

successfully “addressed” the entire Acquisition Management Support element, even if the offeror

demonstrated minimal or no experience with the remaining tasks/expectations. Thus, if the offeror

ultimately demonstrated at least some experience with at least one of the tasks/expectations for

just over half of the elements, the offeror would be entitled to an overall rating of Very Relevant.

This would remain true even if other offerors demonstrated very relevant experience for all of the

tasks/expectations for every WSC element; the two offerors would be entitled to the same overall

Very Relevant rating. This is not a reasonable interpretation of the Solicitation. See ECF No. 102

at 21–23; ECF No. 108 at 88:14–90:4. The only reasonable interpretation is the one put forth by

the Government—that the Agency retained discretion to take a more nuanced evaluative approach.

See ECF No. 102 at 23 (arguing that under the Solicitation, “the determination of whether a project

demonstrates relevant experience with most, some, few, or not any aspects of a WSC is left to the

evaluator’s discretion”).

22

Allowing room for discretion in determining the first component of the Very Relevant

rating definition also gives meaning to the second component—that the offeror “convincingly

demonstrate[] that it will meet the Government’s performance requirements.” AR Tab 17 at 2469.

As argued by the Government, Tellus’s mathematical approach would seemingly render this

language superfluous: if the offeror demonstrated at least some experience with just over 50

percent of the WSC elements, it was entitled to a Very Relevant rating, with no separate

consideration of whether the offeror convincingly demonstrated that it will meet the Agency’s

requirements. 5 See ECF No. 102 at 20–21. The Court declines to adopt Tellus’s interpretation

and thus relegate the second component of a Very Relevant rating to insignificance. See Banknote,

365 F.3d at 1353 (stating that courts “must consider the solicitation as a whole, interpreting it in a

manner that harmonizes and gives reasonable meaning to all of its provisions”).

In sum, considering the Agency’s decision to use adjectival ratings, the Solicitation’s

emphasis on the Agency’s discretion, and the illogical results that would occur using Tellus’s

mathematical approach, the Court rejects Tellus’s reading of the Solicitation. The Agency did not

act irrationally in choosing not to award each of Tellus’s projects a Very Relevant overall rating

simply because Tellus demonstrated some experience with greater than 50 percent of the

applicable WSC capabilities. 6

5

Tellus seems to argue that, if a project addresses most aspects of the WSC, it also

demonstrates an ability to meet the Agency’s performance requirements. See ECF No. 62 at 20

(stating that because “all Tellus’s projects reflected either ‘very relevant experience’ or ‘some

relevant experience’ with respect to at least 50% of the elements comprising each WSC,” Tellus’s

proposal also “consistently demonstrated the ability to meet the Government’s performance

requirements”). But this fails to address the issue of superfluousness, as it merely melds the two

standards into one test.

6

At oral argument, Tellus argued that the Agency failed to “explain how it arrived at its

ratings.” ECF No. 108 at 23:5–12 (contending that “[t]he evaluation report contains findings for

each element of a work service category, but never explains how the findings warrant the rating

assigned for the project”). Tellus claims that its interpretation of the Solicitation “steps into that

23

b. Tellus’s objections to the Agency’s analysis of its Relevant Experience constitute

mere disagreement with the Agency’s reasonable evaluation.

Tellus also takes issue with the Relevant Experience ratings assigned by the Agency for

Projects 3-1 and 3-3, claiming that the Agency “understate[d] the . . . projects’ relevant experience

and Tellus’s ability to meet NGA’s requirements.” ECF No. 62 at 20. Specifically, Tellus argues

that “NGA ignored details showing that Tellus’s members performed the very WSC elements

NGA claimed were missing.” Id.

“Tellus submitted Project 3-1, performed by [ . . . ], to show its relevant strategic business

experience.” Id. at 24. When evaluating Project 3-1, NGA determined that Tellus demonstrated

very relevant experience with regard to four of the eight elements. Id. Tellus claims that the

Agency acted unreasonably in failing to credit it with experience addressing one additional

element—Continuity of Operations (“COOP”). Id. The Solicitation listed the following

responsibilities as comprising the COOP element: “Conduct technical assessments of current and

future DoD and IC efforts for COOP to determine the impact on the [National System for

Geospatial Intelligence (“NSG”)]. Assist with review and evaluation of strategic direction for

systems to participate in COOP architectures.” AR Tab 14.a.l at 1562.

According to Tellus, Project 3-1 demonstrated experience with COOP services because

(1) “[ . . . ]’s efforts under Project 3-1 covered the entire acquisition lifecycle,” ECF No. 62 at 25;

(2) “[ . . . ] supported tasks ‘designed to provide a technical and strategic framework to enable

sound decisions relating to system performance, risk, cost, and schedule,’” id. (emphasis in

void to explain how the findings would logically translate to ratings.” Id. at 23:13–14. Nowhere

in Tellus’s Amended Complaint or briefing does it make the argument that the Agency

inadequately explained its aggregation of evaluation results into an overall rating. See ECF No.

62 at 19–21 (describing the three categories of Tellus’s Relevant Experience arguments). Tellus

has thus waived its argument that the Agency’s ratings were inadequately explained. Brooks

Range Cont. Servs., Inc. v. United States, 101 Fed. Cl. 699, 708–09 (2011).

24

original) (quoting AR Tab 123 at 47682); and (3) “[ . . . ] supported technology integration,” id.

The Court, however, cannot find that the Agency acted arbitrarily or capriciously in determining

that Project 3-1 demonstrated only minimally relevant experience with regard to COOP services.

To support its argument, Tellus cites language in the SOW for Project 3-1 stating that [ . . . ]

shall “accomplish technical program and project life cycle integration; test and evaluation; and[]

project management functions that include planning, scheduling, and monitoring.” Id. (quoting

AR Tab 30b.74 at 33505; AR Tab 123 at 47681). Tellus also notes that [ . . . ] supported

“continuity and transition transparency for end users and customers.” Id. (quoting AR Tab 30b.74

at 33505; AR Tab 123 at 47681). But the Agency did not ignore this experience—it simply found

it “minimally relevant.” AR Tab 107a at 45337. And while Tellus argues that [ . . . ]’s “support

activities mirror the COOP element description from the Solicitation,” ECF No. 62 at 25, the

Agency did not act irrationally in concluding otherwise. The Solicitation stated that it sought

experience “[c]onduct[ing] technical assessments of current and future . . . efforts for COOP.” AR

Tab 14a.1 at 1562 (emphasis added). Tellus’s experience with “life cycle integration” and “project

management,” AR Tab 123 at 47681, is not clearly responsive to that Agency need. In large

measure, Tellus’s arguments are conclusory and merely quote portions of the Project 3-1 SOW

and the Solicitation without actually explaining how the work relates to the COOP element. See

ECF No. 62 at 24–25. As a result, Tellus presents nothing more than its “mere disagreement” with

the Agency’s findings, which is insufficient to carry its burden. Croman Corp. v. United States,

724 F.3d 1357, 1363–64 (Fed. Cir. 2013); SOFITC3, LLC v. United States, 178 Fed. Cl. 194, 208

(2025).

Tellus better explains the relevance of [ . . . ]’s support for technology integration, stating

that the work “focused on system continuity and meeting customer needs to minimize service

disruptions and maintain continuous operations.” ECF No. 62 at 25. Tellus compares this effort

25

to the “aspect of COOP where offerors must assist with the ‘evaluation of strategic direction for

systems to participate in COOP architectures.’” Id. (quoting AR Tab 14a.1 at 1562). Even so, the

Court does not find that the Agency acted irrationally in deeming this experience irrelevant. While

Project 3-1 may have involved technology integration efforts to “incorporate . . . service continuity

requirements,” AR Tab 123 at 47698, the Agency could rationally find these efforts distinct from

strategic planning aimed at COOP architectures. As a result, Tellus is unable to overcome the

significant deference the Court must show the Agency when reviewing its analysis of Tellus’s

proposal. Glenn Def. Marine, 720 F.3d at 907 (“The arbitrary and capricious standard applicable

in bid protests is highly deferential.” (cleaned up)).

Tellus similarly argues that NGA failed to properly evaluate [ . . . ]’s COOP experience

under Project 3-3, which Tellus also submitted to show its relevant SBM experience. ECF No. 62

at 26. Tellus argues that the February 2020 Monthly Activity Report (“MAR”) submitted under

Project 3-3 documented [ . . . ]’s “weekly activities in support of continuity planning and enterprise

risk management, including the drafting and assessment of Standard Operating Procedures

(“SOPs”) designed to mitigate service gaps.” Id. at 26–27 (citing AR Tab 30b.104 at 34019–20).

Tellus specifically cites [ . . . ]’s support for “Business Continuity (BC) planning,” which ensured

“there [were] no gaps in coverage.” Id. at 27 (quoting AR Tab 30b.104 at 34019–20). According

to Tellus, “[s]uch language contradicts NGA’s determination that Project 3-3 lacked experience

with business continuity planning to minimize coverage gaps.” Id. But nowhere in NGA’s

evaluation of Tellus’s Project 3-3 does it make such a finding.

Rather, the Agency found that Project 3-3 “demonstrate[d] minimally relevant experience

supporting COOP,” specifically acknowledging that [ . . . ] “[a]ssumed duties over . . . Business

Continuity/COOP” and “[c]ontinued to provide support” by “responding to agency level

taskers/requests for information on . . . Business Continuity (BC) planning.” AR Tab 107a at

26

45343–44. The Agency, however, determined that while this may have demonstrated some

experience supporting COOP, it did not “demonstrate relevant experience conducting technical

assessments of current and future efforts for COOP to determine the impact on the NSG, or

assisting with the review and evaluation of strategic direction for systems to participate in COOP

architectures.” Id. at 45344. Indeed, Tellus’s cited experience is vague and does not clearly

encompass the experience with “technical assessments” and “review and evaluation of strategic

direction for systems to participate in COOP architectures” that the Agency sought. AR Tab 14a.1

at 1562. The MAR demonstrates that [ . . . ] provided support “responding to agency level

taskers/requests for information on . . . Business Continuity (BC) planning” but did not give further

explanation as to what that entailed. AR Tab 30b.104 at 34019. [ . . . ]’s experience “collecting,

reviewing, and editing Standard Operating Procedures (SOPs)” to “ensure that there are no gaps

in coverage” was also targeted at a specific team, id. at 34019–20, which makes it distinguishable

from the Solicitation’s emphasis on “technical assessments of current and future DoD and IC

efforts for COOP” and broader “COOP architectures.” AR Tab 14a.1 at 1562.

The deferential arbitrary and capricious standard applicable in bid protests “requires a

reviewing court to sustain an agency action evincing rational reasoning and consideration of

relevant factors.” Advanced Data Concepts, Inc. v. United States, 216 F.3d 1054, 1058 (Fed. Cir.

2000). Because agency officials “are entitled to exercise discretion upon a broad range of issues

confronting them in the procurement process,” Impresa, 238 F.3d at 1332 (cleaned up), the Court

does not find that the Agency acted irrationally or failed to consider relevant factors in determining

that Tellus lacked COOP experience.

27

c. The Agency did not engage in disparate treatment when evaluating Tellus’s

Relevant Experience, and in any event, Tellus was not prejudiced by the alleged

disparate treatment.

Tellus further claims that “NGA treated similar proposals differently” when evaluating the

Relevant Experience factor. ECF No. 62 at 21. In particular, Tellus states that although Project

2-1 contained experience that was substantively indistinguishable from the experience of Logic

Gate and ProCleared, NGA failed to credit Tellus with Monitor and Control experience, as it did

for the two other offerors. 7 Id. at 22–24. Tellus’s claim fails, however, as its cited experience was

not indistinguishable from that of Logic Gate and ProCleared. Further, even assuming that Tellus

could establish disparate treatment, it cannot prevail due to lack of prejudice.

The Federal Circuit adopted the test for a disparate treatment claim in Office Design Group

v. United States, 951 F.3d 1366, 1372 (Fed. Cir. 2020), holding that an agency acts unreasonably

when downgrading a protester’s proposal “for deficiencies that were ‘substantively

indistinguishable’ or nearly identical from those contained in other proposals.” A court must

ensure that the proposal aspects being compared are truly indistinguishable to prevent the inquiry

from devolving into “the second guessing of [procurement] ‘minutiae’ which [courts] are not

allowed to undertake.” Enhanced Veterans Sols., Inc. v. United States, 131 Fed. Cl. 565, 588

(2017) (quoting E.W. Bliss Co. v. United States, 77 F.3d 445, 449 (Fed. Cir. 1996)). To succeed

on a disparate treatment claim, the protester must also show that, but for the disparate treatment,

it “had a substantial chance of receiving a contract award.” Off. Design Grp., 951 F.3d at 1373–

74.

7

In its Motion for Judgment on the Administrative Record, Tellus also claims that “NGA

[] disparately treated Tellus’s Project 3-1 when compared to Compass, Inc.’s Project 3-2.” ECF

No. 62 at 24. Tellus later withdrew the argument, stating that it was included inadvertently. ECF

No. 94 at 17 n.4.

28

Though the Government argues that Tellus must show that its proposal was substantively

indistinguishable from another offeror’s proposal, ECF No. 102 at 24, Tellus contends that a

disparate treatment claim can succeed where a feature of a proposal is substantively

indistinguishable from a feature of another offeror’s proposal, ECF No. 94 at 16. The Court agrees

with Tellus that Office Design Group permits protesters to allege disparate treatment at the feature

or element level, though the protester must also demonstrate that such disparate treatment

prejudiced the protester. See 951 F.3d at 1373–74 (finding that the agency “disparately evaluated

[the protester’s] technical proposal in two instances” but concluding that the protester “was not

prejudiced by [the agency’s] disparate treatment”); Enhanced Veterans Sols., 131 Fed. Cl. at 588

(noting that a successful disparate treatment claim “require[s] the existence of nearly identical

provisions in the proposals under consideration”).

For Project 2-1, submitted by Tellus to demonstrate its relevant Financial Management

experience, NGA found that Tellus demonstrated relevant experience for five of the 10 Financial

Management elements and thus awarded Tellus 2,000 points. ECF No. 62 at 22 (citing AR Tab

107a at 45324–27). Tellus claims that the Agency acted unreasonably in determining that Project

2-1 did not demonstrate Tellus’s relevant experience for a sixth element—Monitor and Control.

Id. at 22. The Project 2-1 SOW submitted by Tellus stated that: “On an annual basis the Contractor

shall assess annual unfunded requirements against the NRO Enterprise Mission Architecture.” Id.

(quoting AR Tab 125 at 47808). Tellus compares this language to the SOW submitted by Innovate

Now, which stated that: “The Contractor shall assist the government in performing . . . [ . . . ].” Id.

at 23 (quoting AR Tab 26b.20 at 18945). Although NGA found Tellus’s experience to be “not

relevant,” AR Tab 107a at 45326, the Agency listed Innovate Now’s experience as support for its

determination that the “[r]eferenced work demonstrates very relevant experience.” AR Tab 103a

at 44978–79.

29

Tellus does not sufficiently explain how “assess[ing] annual unfunded requirements

against the NRO Enterprise Mission Architecture” is substantively indistinguishable from

“[ . . . ].” Indeed, the Court is not convinced that the two types of experience are substantively

indistinguishable. As explained by Innovate Now, “[a]ssessing annual unfunded requirements

against an enterprise architecture is not the same activity as [ . . . ].” ECF No. 103 at 4. To find

otherwise would cross the line into the impermissible “second guessing of ‘minutiae.’” Enhanced

Veterans Sols., 131 Fed. Cl. at 588 (quoting E.W. Bliss, 77 F.3d at 449).

Tellus also claims that NGA engaged in disparate treatment of Tellus’s proposal as

compared to that of ProCleared. ECF No. 62 at 23. NGA found that ProCleared had “‘very

relevant experience’ for [the Monitor and Control] element based in part on its experience with

‘[ . . . ].’” Id. (quoting AR Tab 28b.11 at 26615; AR Tab 105a at 45158). According to Tellus,

NGA gave Tellus no credit for its “similar experience” with “web-based reporting tools, custom

scripts, databases, analytic tools, models, source code, and executable, specialized compilers.” Id.

at 23–24 (citing AR Tab 107a at 45326–27; and then quoting AR Tab 125 at 47808).

Again, Tellus fails to show that the cited aspects of the proposals were substantively

indistinguishable. Perhaps Tellus’s experience was “similar,” id. at 23–24, but it was not

indistinguishable—as it must be for Tellus to carry its burden, Off. Design Grp., 951 F.3d at 1373.

The only aspect of the parties’ proposals that could potentially be deemed substantively

indistinguishable is their experience with “databases.” ProCleared, however, also claimed

experience with “[ . . . ],” AR Tab 105a at 45158, that is not clearly encompassed by Tellus’s

experience with “web-based reporting tools, custom scripts, . . . analytic tools, models, source

code, and executable, specialized compilers,” AR Tab 125 at 47808. 8

8

In its Response and Reply, Tellus analogizes its disparate treatment argument to Golden

IT, LLC v. United States, 165 Fed. Cl. 676 (2023), ECF No. 94 at 15–16, but that case is

30

Even if the Court were to find that Tellus successfully alleged disparate treatment, Tellus

is unable to demonstrate prejudice in two respects. First, there is insufficient evidence that NGA

would have found that Tellus “addressed” the Monitor and Control element even if it recognized

Tellus as demonstrating some relevant experience. The Court has already rejected Tellus’s

interpretation of “addressed,” finding that the Agency had greater discretion to consider the other

tasks/expectations of the Monitor and Control element, none of which Tellus met. See AR Tab

107a at 45326–27. Additionally, upon review, it is clear that the Agency’s determination that

Innovate Now demonstrated very relevant Monitor and Control experience was not based solely,

or even in large measure, on Innovate Now’s unfunded requirements experience. Instead, the

unfunded requirements experience was one line in a paragraph that spanned over half a page,

listing numerous areas of experience that supported the Agency’s finding that Innovate Now

demonstrated very relevant Monitor and Control experience. AR Tab 103a at 44978–79. Tellus

does not claim that it shares any of that other relevant experience. Indeed, NGA found that Tellus

did not have any relevant experience for the Monitor and Control element whatsoever. AR Tab

107a at 45326–27. Similar to Innovate Now, the Agency also credited ProCleared with Monitor

and Control experience in a lengthy paragraph. ProCleared’s “[ . . . ]” was just one experience of

many through which ProCleared demonstrated that it could meet the Agency’s Monitor and

Control requirements. AR Tab 105a at 45158–59. As was the case with Innovate Now, Tellus

does not purport to have any of this other relevant experience. Thus, Tellus is unable to

demonstrate that it was prejudiced by the alleged instances of disparate treatment.

distinguishable. In Golden IT, the agency noted that the protester lacked experience with

Salesforce and SharePoint but “failed to note the same for other offerors with similar levels of

Salesforce and SharePoint experience.” 165 Fed. Cl. at 687. Thus, Golden IT involved an

agency’s disparate treatment of offerors’ prior experience with the exact same technologies. This

is not the case here, where the offerors cited different capabilities.

31

Second, even if the Agency did find that Tellus addressed the Monitor and Control element,

the Agency retained discretion to ultimately award Project 2-1 a Relevant rating only. Again,

because the Court has rejected Tellus’s mathematical approach to the Solicitation, Tellus cannot

solely rely on its argument that experience with six out of 10 elements automatically entitles it to

a Very Relevant rating. See ECF No. 62 at 24. For these reasons, Tellus cannot show that, but for

the Agency’s alleged disparate treatment, Tellus “had a substantial chance of receiving a contract

award.” Off. Design Grp., 951 F.3d at 1373–74. Instead, it seems far more likely that NGA’s

overall rating for Tellus’s Project 2-1 would have remained the same.

2. The Agency Rationally Reduced Tellus’s Scores for Past Performance.

As to the Past Performance factor, Tellus argues that (1) but for NGA’s violations of the

FAR and NGA Acquisition Regulation Implementation (“NARI”) when administering its past

contracts with [ . . . ], Tellus would have received an Exceptional rating for four projects it

submitted under Past Performance; and (2) NGA’s evaluation of Tellus’s past performance was

arbitrary and capricious because Tellus failed to consider material that was too close at hand to

ignore. Neither argument prevails.

a. Tellus’s objections to NGA’s failure to comply with the FAR/NARI in

administering its past contracts with [ . . . ] are not properly brought in the bid

protest forum.

According to Tellus, the Past Performance Evaluation Team’s (“PPET”) reduction of

Tellus’s scores for Projects 1-2, 2-2, 3-2, and 3-3 “was based in large measure on NGA’s failure

to follow the FAR and NARI requirements regarding the creation of performance assessment

reports and consideration of contractor rebuttals to those reports.” ECF No. 62 at 27–28. Tellus

argues that, but for NGA’s failure to comply with the FAR and NARI when administering its

previous contracts with [ . . . ], there is a substantial chance that Tellus would have received an

Exceptional rating for all four projects. Id. at 33.

32

Under the NARI, “Contracting Officers and CORs [Contracting Officer’s Representatives]

must formally document contractor past performance and prepare a performance assessment report

(PAR) . . . for contracts of all types with a period of performance, including options, exceeding

one year.” NARI § 5X42.1503-90(a). The NARI further requires that: “When the period of

performance exceeds 12 months, annual assessment reports shall be completed at the end of the

initial 12-month performance period and annually thereafter, until contract completion.” Id. FAR

42.1502(a) contains a similar mandate: “Past performance evaluations shall be prepared at least

annually and at the time the work under a contract or order is completed.” Both the FAR and the

NARI also require that: (1) the contractor be able to submit a rebuttal to the Agency’s review;

(2) the rebuttal be considered in issuing the final performance rating; and (3) the contractor be

provided with the final evaluation. FAR 42.1503(d), (f); NARI § 5X42.1503-90(b)–(e). Pursuant

to the NARI, contractors must also be informed that failure to respond to their evaluation within a

designated timeframe constitutes agreement with the assessment. NARI § 5X42.1503-90(b).

Tellus states that “NGA prepared evaluations of [ . . . ] task orders only sporadically, not

annually as the FAR and NARI required.” ECF No. 62 at 29. Specifically, Tellus claims that

because there were eight years of performance prior to the CLOVER awards under each of the five

[ . . . ] task orders, NGA should have issued 40 PARs to [ . . . ], one for each annual period of

contract performance. NGA, however, only issued 13 PARs. Id. Similarly, there were six years

of performance under the [ . . . ] task order prior to the time of the CLOVER awards, but NGA

issued [ . . . ] only one PAR. Id. at 30. Tellus states that NGA’s failure to issue these PARs

violated FAR 42.1502(a), (d) and NARI § 5X42.1503-90(a). Id.

Tellus further claims that the “deficient PAR record was very significant to the evaluation

results” in the CLOVER procurement, because for each of the [ . . . ] projects the “CER report

relied exclusively on a single PPQ” submitted by the COR that Tellus designated as its POC. Id.

33

at 32–33. In completing the [ . . . ] PPQs, the COR reviewed PARs submitted by previous CORs

to evaluate periods of performance that preceded his time on the contract. 9 Id. at 33 (citing AR

Tab 30c.77 at 35686–87; AR Tab 30c.78 at 35694–95; AR Tab 30c.82 at 35723–24). Accordingly,

the PPQs completed by this COR were based in part on a review of the deficient PAR record. See

id. As a result, Tellus claims that NGA’s FAR and NARI violations “inexorably affected the PPQ

assessments and, thus, the CER’s reduction in Tellus’s score for these Projects.” Id. As for the

[ . . . ] project, Tellus states that “the absence of PARs—which would have been too close at hand

for NGA to ignore—contributed to the negative assessment.” Id.

Tellus also argues that, in relation to the PARs it did create, NGA violated FAR and NARI

provisions related to contractor rebuttal statements. First, Tellus claims that NGA failed to notify

[ . . . ] that its failure to respond to the Agency’s evaluation within the designated timeframe would

constitute agreement with the assessment. Id. at 31. Second, Tellus asserts that “NGA failed to

consider [ . . . ]’s rebuttals in issuing final performance ratings.” 10 Id. And lastly, Tellus states

that “NGA failed to provide [ . . . ] with the final evaluations.” Id. Tellus contends that these

errors also contributed to the arbitrary and capricious nature of the Agency’s Past Performance

evaluation. See id.

9

Tellus claims that the COR would have reviewed 20 of the missing PARs had they been

issued, ECF No. 94 at 21–22, but this is incorrect. According to Tellus’s own table, only 11 of the

missing PARs preceded the time the COR began working with [ . . . ] on the [ . . . ] contract. See

ECF No. 62 at 30; AR Tab 30c.77 at 35686 (“I have been COR for the contracts associated with

[ . . . ], since October 2020. I cannot speak to the previous Periods of Performance, but after

reviewing the previous PARs submitted . . . .”).

10

Tellus states that “[ . . . ] submitted rebuttals to nine PARs across the six [ . . . ] and [ . . . ]

task orders.” ECF No. 62 at 30.

34

As evidence of the prejudice it experienced due to NGA’s FAR and NARI violations,

Tellus relies on the Burton Declaration, 11 which purportedly details [ . . . ]’s “[e]xceptional

performance” under the [ . . . ] contract. Id. at 33. Contained in the Burton Declaration are:

(1) nine PPQs completed by [ . . . ] CORs in 2023, who rated [ . . . ]’s performance as Exceptional

across all categories, id. at 33–34; (2) eight PAR rebuttals [ . . . ] submitted in response to the PARs

it did receive under the [ . . . ] task orders, which provide “further evidence of [ . . . ]’s excellent

performance,” id. at 34; and (3) a review of more than 400 MARs and 30 Quarterly Program

Management Review reports (“QPMRs”) [ . . . ] submitted in performing its [ . . . ] task orders,

which also “offer[] additional evidence of [ . . . ]’s outstanding performance,” id. The Burton

Declaration similarly discusses [ . . . ]’s “outstanding” performance under the [ . . . ] task order, id.

at 34–35, and reviews: (1) “77 MARs and 25 QPMRs that address the successes that [ . . . ]

achieved in performing the [ . . . ] task order,” id. at 35; and (2) [ . . . ]’s rebuttal to the PAR issued

by NGA, which provides “further evidence of Tellus’s superior past performance,” id.

In response, the Government relies on the Federal Circuit’s opinion in Bannum to argue

that “claims from a disappointed offeror regarding performance reviews from past contracts are

irrelevant in a bid protest, because a bid[ ]protest ‘is not the proper forum’ to litigate such

disputes.” ECF No. 79 at 59 (quoting Bannum, 404 F.3d at 1353). The Government contends that

Tellus’s claims instead “involve questions of contract administration that must be brought under

the [Contract Dispute Act (“CDA”)].” Id. (alteration in original) (quoting ITility, LLC v. United

States, 124 Fed. Cl. 452, 460 (2015)). According to the Government, “Tellus’s past performance

arguments, therefore, are inappropriate and should be dismissed as outside the scope of a bid

protest.” Id. at 59–60.

11

As noted above, Tellus seeks to supplement the AR with the Burton Declaration, ECF

No. 61 at 3–5, which the Court addresses later in this opinion. See infra § III.B.

35

In Bannum, the Federal Circuit affirmed that an agency’s failure to comply with the FAR

in creating Contract Evaluation Forms (“CEFs”), which are the equivalent of NGA’s PARs, during

past contracts with the protester constituted a violation of law that was properly brought as part of

a bid protest. See 404 F.3d at 1349–51. Under the solicitation at issue in Bannum, bidders were

required “to submit a list of all contracts completed [for the agency] in the preceding three years,

or currently in process.” Id. at 1350. The agency evaluated an offeror’s past performance by

reviewing the CEFs issued under the identified contracts. Id. at 1349. As the Circuit explained,

FAR 42.1503 governs the process by which agencies issue past performance reviews like CEFs,

and in relevant part, requires agencies to “provide for review at a level above the contracting officer

to consider disagreements between the parties regarding the evaluation.” FAR 42.1503(d); see

also Bannum, 404 F.3d at 1349. 12 The agency’s own procedures, however, did not properly

provide for this required review. See Bannum, 404 F.3d at 1351–53. As a result, the Federal

Circuit found the agency’s reliance on the protester’s unreviewed CEF scores to be a procurement

error. See id. at 1353; see also id. at 1350 (noting the lower court’s holding that the agency “had

violated both FAR § 42.1503(b) and the terms of the RFP when assigning weights (based on the

CEFs) to Bannum’s past contract performance”).

The protester in Bannum additionally argued that the agency “violated the FAR in failing

to assess [the protester’s] rebuttals [to the CEFs], on the prior contracts, when assessing its bid,”

but the Circuit rejected this argument as being outside the scope of a bid protest. Id. at 1353. In

so ruling, the Circuit relied on a prior decision of the GAO, which held that “a bid protest is not

the proper forum, under FAR § 42.1503(b), to litigate CEF disputes.” Id. (citing Ocean Tech.

Servs., Inc., B-288659, 2001 WL 1505946, at *3 (Comp. Gen. Nov. 27, 2001)). In an explanatory

12

The Federal Circuit cited FAR 42.1503(b), but the requirement for review of

performance assessments at a level above the contracting officer is now found in FAR 42.1503(d).

36

parenthetical, the Circuit also included the following quote from the GAO’s opinion: “Our bid

protest forum is not the place for a firm to first complain of not having received an assessment,

nor do we serve as a forum for a firm to dispute the substance of an agency’s assessment of the

firm’s work.” Id. (quoting Ocean Tech. Servs., 2001 WL 1505946, at *3).

Tellus characterizes Bannum as “draw[ing] a key distinction between protests of agency

failure to follow FAR procedures in the preparation of performance assessments and protests about

the substance of the performance assessments.” ECF No. 94 at 18 (citations omitted). According

to Tellus, the agency’s failure in Bannum to review CEFs at a level above the contracting officer

was a “procedural” error that the Federal Circuit found to be properly brought in the bid protest

context. Id. at 18–19. By contrast, the protester’s challenge to the agency’s failure to assess the

protester’s performance review rebuttals was “substantive,” and thus constituted a CEF dispute

“not within the trial court’s jurisdiction.” Id. at 19–20. Tellus asserts that, just as the agency’s

failure to properly review performance assessments was a procedural error, “so too is the failure

of NGA to create the performance assessments in the first instance.” Id. at 19 (emphasis in

original).

Tellus also relies on Vanguard Recovery Assistance v. United States, 101 Fed. Cl. 765

(2011), as support for its claim that NGA’s failure to issue PARs constitutes a procurement error.

ECF No. 94 at 20. In Vanguard, a judge of this court reviewed a protester’s challenge to an

agency’s past performance evaluation where the agency failed to review—because it never

issued—contemporaneous performance evaluations related to its prior contracts with several of

the awardees, who were incumbent contractors. See 101 Fed. Cl. at 780. Because the agency was

given discretion to consider information beyond that required by the solicitation, the court found

that the too close at hand doctrine obligated the agency “to draw upon internal information that

concerned any of the firms’ prior work, even if the offeror did not cite it.” Id. at 781. As a result,

37

the agency’s failure to issue performance assessments for the incumbents “blinded the agency to

information” vital to its evaluation of the incumbents’ past performance. Id. at 780–81. Although

the agency later “instructed the offerors to have at least five of their clients complete a [PPQ],” the

Contracting Officer’s Technical Representative (“COTR”) “declined to provide PPQs for any of

the incumbents.” Id. at 772–73. The Vanguard court found this significant, noting that the agency

refused to “remedy” its “failure to evaluate the incumbents’ performance” by reviewing “PPQs

from the [prior contract’s] COTR.” Id. at 782.

Contrary to its argument, Tellus’s FAR/NARI-based claim relating to NGA’s past

contracts with [ . . . ] is not a valid protest ground. The relevant inquiry here is not whether Tellus

raises procedural or substantive challenges based on the PARs, but rather whether the Agency’s

previous failure to issue PARs constitutes an error in connection with this procurement, where the

documents relevant to the Agency’s Past Performance review were the PPQs, not the missing

PARs. The Court finds that it does not.

First, Tellus interprets the holding of Bannum too broadly. The Circuit did not hold that

every procedural error an agency commits in issuing prior performance evaluations constitutes a

valid basis for a subsequent bid protest. Instead, the procedural error at issue was related to a

document essential to the agency’s review of the offeror’s past performance. Under the solicitation

at issue in Bannum, the agency evaluated an offeror’s past performance based exclusively on its

CEFs. 404 F.3d at 1349. Thus, as the Government explained at oral argument, the agency’s

violation of the FAR in Bannum “became a procurement error” because the CEFs became

“procurement documents.” ECF No. 108 at 94:7–14. Indeed, that appears to be how the trial court

and protester characterized the claim asserted in Bannum. See 404 F.3d at 1350 (noting that the

protester believed “CEF and rebuttal review would take place in conjunction with the source

38

selection on the RFP”); id. (describing trial court’s holding that the agency had “violated both FAR

§ 42.1503(b) and the terms of the RFP” in evaluating the deficient CEFs).

Here, however, the Solicitation required the Agency to consider Tellus’s PPQs, not the

PARs. AR Tab 17 at 2471. As a result, the case at hand differs from Bannum because the relevant

procurement documents, the PPQs, were properly created. See ECF No. 108 at 94:15–25. Though

Tellus argues that the Agency’s failure to issue the requisite number of PARs influenced the COR’s

PPQ assessments, see ECF No. 62 at 32–33, the connection is simply too attenuated. Whereas in

Bannum, the CEF issues “directly impact[ed] an offeror’s ability to obtain a full past performance

evaluation and compete for a contract,” ECF No. 102 at 26, here, the PARs at best only indirectly

influenced the Agency’s evaluation, as it was the COR (not the PPET) who partly considered PARs

in completing the PPQs. See, e.g., AR Tab 30c.77 at 35686–87. Because the Agency only

reviewed the PPQs, see AR Tab 107b, they are the relevant procurement documents, not the PARs.

The Court also finds it significant that the Circuit in Bannum not only cited, but quoted,

the GAO’s holding that a bid protest “is not the place for a firm to first complain of not having

received an assessment . . . .” 404 F.3d at 1353 (emphasis added) (quoting Ocean Tech. Servs.,

2001 WL 1505946, at *3). When asked at oral argument how it interprets that quotation, Tellus

was unable to give a satisfactory answer, merely stating that the “GAO case . . . is secondary to

the holding of [Bannum].” ECF No. 108 at 34:22–25, 35:1. This does not convince the Court that

it should ignore Bannum’s quotation of the GAO, which indicates that the Circuit would not

consider all procedural errors pertaining to performance assessments to be properly raised in a bid

protest, and indeed seems to foreclose the claim Tellus makes here.

Tellus attempts to further support its procedure-versus-substance distinction by relying on

ITility and Colonna’s Shipyard v. United States, 146 Fed. Cl. 519 (2020), but such reliance is

misplaced, as this distinction is not relevant to the inquiry at issue. Both cases clearly “involved

39

challenges to the substance of performance assessments,” and thus the claims were not properly

raised in the bid protest forum. ECF No. 94 at 20 (emphasis added). The cases are additionally

distinguishable because they involved challenges related to procurement documents, unlike the

case at hand. See ITility, 124 Fed. Cl. at 456 (alleging that “agencies are currently about to evaluate

ITility’s past performance” by reviewing the purportedly deficient performance assessment);

Colonna’s Shipyard, 146 Fed. Cl. at 520 (alleging that “the agency relied on a CPAR” that the

protester contended was “neither factual nor correct” and “that the CPAR directly caused the Navy

to reject Colonna’s bid” (cleaned up)).

The Court also finds that Vanguard does not support Tellus’s FAR/NARI arguments.

Notably, Vanguard did not address the question of whether this Court has bid protest jurisdiction

over a protester’s claim that an agency violated the law by failing to issue performance evaluations

for prior contracts of the protester. Indeed, Vanguard did not address jurisdiction at all, nor did it

discuss Bannum’s holding in that regard. As noted above, the protester in Vanguard challenged

the agency’s past performance evaluations of the awardees (who were the incumbents). See 101

Fed. Cl. at 780. In other words, it faulted the agency for giving the incumbents more favorable

evaluations without adequately reviewing their past performance on the predecessor contract. The

Vanguard court agreed, finding that the agency in that case entirely failed to evaluate the

incumbents’ prior performance due to the agency’s failure to issue performance evaluations and

its refusal to complete PPQs on behalf of the incumbents. See id. at 781–82. To be sure, Vanguard

held that the too close at hand doctrine mandated consideration of the incumbents’ past

performance on the predecessor contract, id. at 781, making the agency’s failure to create

contemporaneous performance assessments a “manifest error,” id. at 782. However, this error was

not dispositive. Vanguard recognized that the agency could have reviewed PPQs to evaluate the

incumbents’ past performance, which the agency in fact instructed all offerors to provide. Id. at

40

781–82 (“[N]othing in . . . the FAR[ ] prohibits an agency from evaluating a proposal based on

past performance information that was not recorded contemporaneously.” (alterations in original)

(quoting Kathpal Techs., Inc., B-291637.2, 2003 WL 1918465, at *3 n.7 (Comp. Gen. Apr. 10,

2003))). The issue was thus not the agency’s specific failure to create past performance

assessments, but rather its broader failure to evaluate the incumbents’ performance on the

predecessor contract, even through the use of PPQs. By contrast, in the case at hand, the

Solicitation required NGA to review Tellus’s PPQs, AR Tab 17 at 2471, which were made readily

available to the Agency. Thus, even in the absence of PARs, these PPQs provided the necessary

insight into Tellus’s past performance that was missing in Vanguard.

That Tellus challenges its own Past Performance evaluation on the basis of missing PARs

is also an important distinction. In making its FAR/NARI arguments, Tellus, unlike the protester

in Vanguard, is attempting to take advantage of the Agency’s failure to issue PARs even though

[ . . . ] never raised any objection at the time the PARs were due. The case law does not permit

such an approach. Indeed, the GAO decision cited by the Circuit in Bannum expressed concern

about permitting protesters to challenge an agency’s past errors for the first time in a bid protest

despite the protester’s awareness of the agency’s error and its ability to address the error at the

time it occurred. 13 See Ocean Tech. Servs., 2001 WL 1505946, at *3 (noting that the protester

“knew (or certainly should have known)” that it was owed performance evaluations upon

completion of its contracts and thus should have “addressed the matter with the agency at that

13

At oral argument, counsel for Tellus stated that because “[ . . . ][] was never told by the

Government that the Government wasn’t going to be conducting [the missing] PAR evaluations,”

Tellus “didn’t know that there was going to be a deficiency in the development of all the PARs by

the time of the source selection.” ECF No. 108 at 127:22–24, 128:6–8. Even if the PARs had

been “trickl[ing] in over time,” as Tellus claims, id. at 127:24–128:4, Tellus could not have

reasonably believed that [ . . . ] would receive its 32 missing PARS—some of which stretch back

to [ . . . ]’s performance in 2017—prior to the Agency’s evaluation of Tellus’s Past Performance.

41

time”). Allowing Tellus to protest NGA’s CLOVER procurement because the Agency committed

procedural errors in administering [ . . . ]’s [ . . . ] and [ . . . ] contracts creates an undesirable

incentive for offerors to sit on their CDA claims and wait for an agency’s procedural failure to

poison a subsequent procurement.

Tellus also fails to provide a limiting principle for its argument—in other words, it fails to

explain what the Agency could have done to rectify the harm from its failure to properly issue

PARs. Significantly, unlike in Bannum, Tellus does not allege that it was expecting the missing

PARs to be created as part of the evaluation in the CLOVER procurement. And it refuses to

recognize the ability of PPQs to remedy the alleged FAR/NARI violations, see ECF No. 108 at

36:7–18, despite Vanguard’s acknowledgement that an agency’s review of PPQs can “remedy”

missing performance evaluations. 101 Fed. Cl. at 782. Indeed, Tellus does not propose any other

potential remedy, instead requesting that the Court rely on Mr. Burton’s self-assessment of [ . . . ]’s

own performance to find that Tellus should have received higher Past Performance ratings. That

simply cannot be the answer. The foregoing reasoning thus provides further support for the Court’s

determination that Tellus’s FAR/NARI arguments are not properly presented in this bid protest.

In sum, the Agency reasonably evaluated Tellus’s Past Performance based on the PPQs,

which were the relevant procurement documents under the Solicitation. As a result, NGA’s failure

to issue PARs related to prior contracts is not an error in connection with this procurement, and

Tellus’s claim that the Agency’s Past Performance evaluation was arbitrary and capricious due to

NGA’s prior FAR/NARI violations is dismissed as outside the scope of this bid protest. 14

14

Though the Government argues that “Tellus’s past performance arguments [] are

inappropriate and should be dismissed as outside the scope of a bid protest,” ECF No. 79 at 59–

60, the Government’s Motion to Dismiss is entirely focused on waiver under Blue & Gold Fleet,

L.P. v. United States, 492 F.3d 1308 (Fed. Cir. 2007), see ECF No. 79 at 31–36. Conversely,

Exacta’s Motion to Dismiss explicitly argues that “Tellus improperly attempts to bring bid protest

arguments based on NGA’s purported failure to properly administer other contracts” and thus the

42

Even assuming that NGA’s failure to issue PARs in administering its past contracts with

[ . . . ] could constitute a valid basis for a bid protest, Tellus’s claim fails because it has not

sufficiently demonstrated prejudice. The Court does not find Tellus’s proffered evidence sufficient

to demonstrate that the existence of additional PARs would have changed its PPQ results. To

demonstrate “significant prejudice,” a protester must show that, but for the Agency’s errors, “there

was a substantial chance it would have received the contract award.” Bannum, 404 F.3d at 1353

(quotation omitted).

In Bannum, the Federal Circuit found that the protester suffered no prejudice from the

Agency’s FAR violation because the protester did not explain why it had a substantial chance of

scoring higher on past performance had the agency reviewed the CEFs in accordance with the

FAR. Id. at 1358. As was the case in Bannum, Tellus provides no more than “conjecture” to

support its contention that additional PARs “would provide it a substantial chance of prevailing in

the bid.” Id.

In an attempt to provide hard facts, Tellus argues that the Burton Declaration contains

sufficient evidence of [ . . . ]’s “[e]xceptional performance.” ECF No. 62 at 33. The Court is not

convinced. 15 The MARs and QPMRs that purportedly document [ . . . ]’s “outstanding

performance” were created by [ . . . ] itself, id. at 34, and thus reflect [ . . . ]’s own view of its

accomplishments and performance, rather than the view of the Agency. The same is true for

Court should dismiss Tellus’s FAR/NARI allegations as outside this Court’s bid protest

jurisdiction. ECF No. 86 at 37 (emphasis omitted). Like the Government, Exacta also argues that

Tellus’s claims are waived under Blue & Gold. Id. at 39. Because the Court agrees that it lacks

bid protest jurisdiction over Tellus’s FAR/NARI allegations, the Court grants in part Exacta’s

Motion to Dismiss. The Government’s and Exacta’s Motions to Dismiss pursuant to Blue & Gold

are fully addressed infra § III.A.5.

15

To the extent the Court references the Burton Declaration, it does so as part of the Court’s

record, rather than as a supplement to the AR. See infra III.B.

43

[ . . . ]’s PAR rebuttals. Such rebuttals were drafted and submitted by [ . . . ] to counter the

Agency’s own review. See id. at 31, 34. As a result, the PAR rebuttals do not provide convincing

evidence of how the Agency would rate [ . . . ]’s performance if the Agency issued an additional

PAR for a different period of performance.

Moreover, although the nine PPQs referenced in the Burton Declaration were at least

created by NGA officials, id. at 33–34, the evidence they contain is not enough to demonstrate

prejudice. Significantly, the COR who submitted Tellus’s PPQs for this procurement also wrote

the majority of the 2023 PPQs referenced by Tellus. See ECF No. 102 at 28 n.6. It is a circular

argument to say that based on the COR’s own PPQs, there is sufficient evidence to believe that

additional PARs would have changed that very same COR’s view of Tellus’s Past Performance.

Because Tellus must demonstrate that it had a “substantial chance” of receiving the contract absent

the Agency’s error, Info. Tech. & Applications Corp. v. United States, 316 F.3d 1312, 1319 (Fed.

Cir. 2003) (quoting Alfa Laval Separation, 175 F.3d at 1367), whatever persuasive value can be

taken from Tellus’s evidence is simply not enough for it to prevail.

The Court lastly turns to Tellus’s argument that NGA violated FAR and NARI provisions

related to contractor rebuttal statements. See ECF No. 62 at 30–31 (stating that NGA failed to

(1) warn [ . . . ] that failure to respond to an evaluation constitutes agreement with the assessment,

(2) consider [ . . . ]’s rebuttals, and (3) provide [ . . . ] with its final evaluations); see also id. at 28

(arguing that “NGA’s decision to reduce Tellus’s self-assessed score was based in large measure

on NGA’s failure to follow the FAR and NARI requirements regarding the creation of performance

assessment reports and consideration of contractor rebuttals to those reports” (emphasis added)).

In its Response and Reply, Tellus seems to abandon these claims, stating that it “is not seeking any

revisions to the substance of its PARs,” but instead “challenges NGA’s failure to issue the PARs

44

in the first instance.” ECF No. 94 at 21. Nevertheless, the Court will explain why these arguments

fail.

First, Bannum explicitly states that a bid protest is not the proper forum in which to

challenge an agency’s alleged failure to consider a protester’s performance assessment rebuttals.

See 404 F.3d at 1353 (noting that “[the protester] further argues that the [agency] violated the FAR

in failing to assess [the protester’s] rebuttals, on the prior contracts, when assessing its bid” but

finding that “a bid protest is not the proper forum” to litigate such disputes). Indeed, Tellus itself

recognizes this in its Response and Reply. Compare ECF No. 94 at 19–20 (“Bannum also involved

another challenge, which alleged violation of the FAR in failing to assess Bannum’s rebuttals on

the prior contracts when assessing its bid. . . . This part of the ruling concerned the ‘substantive’

challenge to Bannum’s assessments, so was not within the trial court’s jurisdiction.”), with ECF

No. 62 at 31 (stating that “NGA’s failure to consider [ . . . ]’s nine rebuttals and issue final PARs

was material” because [ . . . ]’s rebuttals detailed the reasons why [ . . . ] should have received

better ratings). Thus, Tellus cannot prevail on its claim that NGA failed to properly consider

[ . . . ]’s PAR rebuttals.

The remaining procedural errors alleged by Tellus—that NGA failed to warn [ . . . ] that

failure to respond to an evaluation constitutes agreement with the assessment and that NGA failed

to provide [ . . . ] with its final evaluations—relate to NGA’s issuance of PARs, which are not the

relevant procurement documents and thus do not present a valid bid protest ground under Bannum.

Tellus also presents no evidence that these procedural errors prejudiced it in any way. Tellus has

not stated that [ . . . ] would have issued additional rebuttals had NGA warned it that failure to

object to its PARs constituted agreement with the performance assessment. And even if those

rebuttals existed, whether the Agency properly considered them would be a “substantive” error

not appropriate for a bid protest. Tellus has also failed to demonstrate that its Past Performance

45

score would have changed had NGA properly sent [ . . . ] its final evaluations. The Court finds it

difficult to imagine any way Tellus could convincingly make such an argument. [ . . . ]’s mere

possession of its final evaluations could in no way influence their content or the Agency’s

subsequent reliance on the evaluations. Therefore, to the extent Tellus maintains these claims,

they are rejected.

b. The Agency was not required to consider additional evidence relating to Tellus’s

Past Performance pursuant to the too close at hand doctrine.

Tellus additionally argues that NGA “acted arbitrarily by ignoring past performance

evidence within NGA’s possession that was ‘too close at hand’ to disregard.” ECF No. 62 at 35.

Specifically, Tellus states that, “for the incumbent [ . . . ] task orders, NGA had in its possession

three categories of documents that were ‘too close at hand’ to ignore:” (1) “nine PPQs prepared by

NGA CORs in 2023,” (2) “eight rebuttals to PARs that [ . . . ] submitted to NGA in 2021 and

2022,” and (3) “20 MARs submitted in Tellus’s proposal.” Id. at 36. The CER, however,

purportedly considered none of this information. Id. (citing AR Tab 107b). As for the [ . . . ] task

order, Tellus claims that “NGA had in its possession two types of documents that were too close

at hand to ignore: (1) the PAR rebuttal that [ . . . ] had submitted to NGA and (2) seven MARs

submitted in Tellus’s proposal.” 16 Id. at 37. Again, the CER purportedly considered none of this

information. Id.

Under the too close at hand doctrine, an agency may be obligated to consider past

performance information not cited in an offeror’s proposal if the agency possesses or has personal

knowledge of that information. ProSecure, LLC v. United States, 151 Fed. Cl. 697, 707 (2020).

The too close at hand doctrine was developed by the GAO, which recognized that “some [past

16

The Burton Declaration, with which Tellus seeks to supplement the AR, contains most

of the documents Tellus claims were too close at hand to ignore. See ECF No. 61 at 5.

46

performance] information is simply too close at hand to require offerors to shoulder the inequities

that spring from an agency’s failure to obtain, and consider, the information.” Int’l Bus. Sys., Inc.,

B-275554, 1997 WL 113958, at *4 (Comp. Gen. Mar. 3, 1997). The doctrine seeks to ensure that

the wide discretion of contracting officials does not “result in inequitable selections of the

information used to evaluate the bids.” Insight Pub. Sector, Inc. v. United States, 157 Fed. Cl.

398, 411 (2021).

The Government responds to Tellus’s invocation of the too close at hand doctrine by

arguing that the 2023 PPQs, PAR rebuttals, and MARs are outside the Solicitation’s evaluation

scope and thus are not covered by the too close at hand doctrine. ECF No. 79 at 60–61 (citing

Walden Sec. v. United States, 136 Fed. Cl. 216, 229 (2018)). Here, the Solicitation required that

NGA consider “information from the Offeror’s proposal submissions,” but it gave the Agency

discretion whether to consider “data obtained from other sources.” Id. at 61 (citing AR Tab 17 at

2471). Thus, in the Government’s view, the Agency could not have been required to consider

Tellus’s cited documents because that would contravene the Solicitation’s directions. Id. (citing

Linc Gov’t Servs., LLC v. United States, 96 Fed. Cl. 672, 720 (2010), abrogated on other grounds

by Safeguard Base Operations, LLC v. United States, 989 F.3d 1326 (Fed. Cir. 2021)). In its

Reply, the Government further notes that the Solicitation forbade consideration of proposals

submitted after the deadline. See ECF No. 102 at 29 (citing AR Tab 17 at 2445). Accordingly,

the Government argues that, at the very least, the Agency could not have evaluated the 2023 PPQs

because they post-dated the submission deadline. Id. The Government also expresses concern

that Tellus’s view of the too close at hand doctrine “give[s] an unfair advantage to incumbents,”

as evaluators would be required to “continually consider new performance reviews provided to an

offeror on other contracts with that agency.” ECF No. 79 at 61.

47

In its Response and Reply, Tellus emphasizes that “[t]he RFP did not forbid consideration

of documents outside the Offeror’s proposal submission,” but rather gave the Agency discretion

to review “data obtained from other sources, as applicable.” ECF No. 94 at 23 (emphasis in

original) (quoting AR Tab 17 at 2615). Tellus also distinguishes Walden and Linc Government

Services, stating that Walden only stands for the narrow proposition that agencies cannot allow

one offeror to submit new past performance references but not permit others to do the same, and

characterizing Linc Government Services as a case where the RFP expressly proscribed agency

review of material external to the proposal. See id. at 24–25.

The Court agrees that the documents Tellus cites as being too close at hand were not outside

the Solicitation’s scope. In Linc Government Services, the RFP expressly stated that evaluators

“shall not consider or use as a basis for evaluation any assumptions, preconceived ideas, and

personal knowledge or opinions not supported by material provided in the proposal.” 96 Fed. Cl.

at 720. Here, the Solicitation at issue did not contain a strict prohibition. See AR Tab 17 at 2471.

Indeed, the too close at hand doctrine exists to cabin agency discretion under solicitations like the

one at issue, where the agency has some choice in what it reviews when evaluating past

performance. See Insight Pub. Sector, 157 Fed. Cl. at 411. Additionally, although the Solicitation

prohibited evaluation of proposals submitted after the deadline, AR Tab 17 at 2445, it did not place

a time constraint on the data the evaluation teams could consider, instead merely stating that the

Agency maintained discretion to “use data obtained from other sources.” AR Tab 17 at 2615.

Though the Court rejects the Government’s argument that the materials cited by Tellus are

outside the scope of the Solicitation, it does not find that the Agency abused its discretion in

choosing not to review the documents Tellus claims were too close at hand. In general, agencies

are given broad discretion to determine what information they review when evaluating an offeror’s

past performance. Walden, 136 Fed. Cl. at 229. This discretion is needed to protect the deference

48

courts owe agency decisionmakers. See Crowley Gov’t Servs., Inc. v. United States, 158 Fed. Cl.

358, 375 (2022) (“[T]he role of the Court is not to determine what [the agency] could have done

in its evaluation; rather, it is to determine whether [the agency] had a rational basis for what it did.”

(citing Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)). In

turn, the too close at hand doctrine ensures that an agency does not abuse that broad discretion by

ignoring highly relevant information. See Insight Pub. Sector, 157 Fed. Cl. at 411.

Here, the material Tellus cites as being too close at hand was simply not relevant enough

to the Agency’s evaluation of Tellus’s Past Performance so as to trigger the doctrine, and thus the

Agency did not abuse its discretion by electing not to review it. See Walden, 136 Fed. Cl. at 229

(explaining that “an agency acts unreasonably when it fails to consider relevant information which

is too close at hand” (emphasis added) (quotation omitted)). First, the PAR rebuttals submitted by

[ . . . ] do not reflect objective insight into [ . . . ]’s past performance under the [ . . . ] and [ . . . ]

contracts. Considering that the PAR rebuttals were submitted by [ . . . ] to dispute the Agency’s

own view of [ . . . ]’s performance, it was rational for the Agency to rely solely on Tellus’s proposal

and the PPQs it submitted, which were issued by a government COR. This same conclusion

applies to Tellus’s assertion that NGA was arbitrary and capricious in failing to review the MARs

Tellus included as part of its Relevant Experience submission. Again, these MARs solely reflect

[ . . . ]’s summary of the tasks it completed, rather than the Agency’s view of the quality with

which [ . . . ] completed those tasks. See, e.g., AR Tab 30b.40 (example of a MAR drafted by an

[ . . . ] employee). As a result, they are not particularly relevant evidence of NGA’s assessment of

[ . . . ]’s past performance under the [ . . . ] and [ . . . ] contracts, and thus the Agency was justified

in electing not to review them as part of its evaluation.

Second, the PPQs issued by NGA CORs in 2023 are largely redundant of the PPQs Tellus

submitted as part of its proposal. See Aery Aviation, LLC v. United States, 179 Fed. Cl. 392, 407

49

(2025) (rejecting a plaintiff’s motion to supplement the AR with a document that was allegedly

“too relevant and close at hand to ignore” because the information contained in the document was

“redundant of evidence specifically considered by the [agency] during its evaluation of [the

plaintiff’s] proposal”). Though the two sets of PPQs may have contained different narrative

explanations and evaluation results, they reviewed the same underlying performance and provided

the same type of past performance analysis. There was thus no reason for the Agency to seek out

the 2023 PPQs, many of which were completed by the same COR who submitted Tellus’s PPQs.

And because Tellus was able to choose the POCs it wanted to complete its PPQs, see AR Tab 107b

at 45351–52, there was also no reason for the Agency to consider the views of a different COR by

reviewing PPQs he completed after Tellus submitted its proposal.

Even if the Court does not view the 2023 PPQs as being redundant, it still rejects Tellus’s

claim that the 2023 PPQs were too close at hand to ignore. As the Government correctly argues,

ruling that an agency is required to consider additional PPQs completed after the deadline for

proposal submissions would unfairly favor incumbents or those who have other contracts with the

Agency. ECF No. 79 at 61. The court in Walden expressed a similar concern, rejecting a plaintiff’s

argument that the agency was required to consider additional past performance information

developed well after the proposal deadline, as other offerors were unable to submit comparable

information. 136 Fed. Cl. at 229. Tellus claims that the Agency’s consideration of its too close at

hand materials would not “afford Tellus any unfair advantage,” ECF No. 94 at 24, but

simultaneously fails to grapple with the question of whether NGA would thus be obligated to

consider additional PPQs for all other incumbents or offerors. Tellus similarly fails to explain

where the Agency could permissibly draw the line and refuse to consider further performance

assessments. See id. at 23 (acknowledging that Tellus’s 2023 PPQs were issued after NGA

completed its initial evaluation without explaining how this timing impacts the applicability of the

50

too close at hand doctrine). 17 The Court will not rule that the too close at hand doctrine extends

so far. Because Tellus’s submitted PPQs already provided the Agency with sufficient past

performance information, NGA did not abuse its discretion in electing not to consider successive

PPQs.

Tellus’s reliance on Seattle Security Service, Inc. v. United States, 45 Fed. Cl. 560 (2000),

is misplaced. According to Tellus, Seattle Security Service demonstrates that the too close at hand

doctrine “applies particularly to ‘past performance of an incumbent on the very contract to be

resolicited,’” ECF No. 62 at 36 (quoting Seattle Sec. Serv., 45 Fed. Cl. at 569), but the case does

not stand for such a broad proposition. In Seattle Security Service, the solicitation at issue

combined two contracts that were originally performed by the protester. 45 Fed. Cl. at 567.

Although the protester referenced both contracts in its proposal, the agency only considered one.

Id. In doing so, the agency “systematically prejudiced the plaintiff,” since the full effect of the

protester’s experience could only be appreciated if the contracts were viewed in conjunction. Id.

The court thus found that the agency’s evaluation was arbitrary and capricious, as agencies “may

not disregard the past performance of an incumbent on the very contract to be resolicited.” Id. at

568. NGA did not disregard [ . . . ]’s past performance on [ . . . ]. Rather, it fully reviewed the

submitted PPQs that addressed [ . . . ]’s performance under [ . . . ] and based its evaluation of

Tellus’s Past Performance on the information they contained. See AR Tab 107b at 45356–57,

45359–61. That is sufficient to ensure the Agency did not unfairly “disregard the past performance

of an incumbent.” Seattle Sec. Serv., 45 Fed. Cl. at 568.

17

Notably, the corrective action mandated a re-evaluation of the offerors’ existing Relevant

Experience, Past Performance, and Risk Assessment volumes, with no opportunity for revision.

See generally AR Tab 59; see also AR Tab 70 at 42778 (informing offerors that, other than re-

certifying their previously submitted labor rates, “[n]o other proposal revisions will be accepted”).

51

Accordingly, Tellus fails to show that NGA abused its discretion in refusing to consider

the 2023 PPQs, [ . . . ]’s PAR rebuttals, and the MARs. Instead, the Agency acted reasonably

when it elected to evaluate Tellus’s Past Performance on the basis of the PPQs completed by

Tellus’s selected COR.

3. NGA Reasonably Found that Tellus’s Documentation Was Too Heavily Redacted

to Verify the Working Partnership Between [ . . . ] and [ . . . ] under the Risk

Assessment – Organizational Structure Factor.

According to Tellus, it deserved its self-score of 2,000 points for the Risk Assessment –

Organizational Structure factor because “[ . . . ] or [ . . . ] ‘previously performed with greater than

or equal to 60% of all Partners and proposed subcontractors under previous

agreements/contracts.’” ECF No. 62 at 38 (quoting AR Tab 17 at 2464). The Agency, however,

awarded Tellus only 1,000 points, noting that Tellus’s supporting documentation was “heavily

redacted,” thus making it “unclear to the evaluator on the validity of the agreements/subcontracts.”

AR Tab 107d at 45373–74. Tellus has not met its burden to show that this finding lacked a rational

basis.

Per the Solicitation, an offeror could earn 2,000 points under Risk Assessment –

Organizational Structure by demonstrating that: “The Protégé or Mentor has previously performed

with greater than or equal to 60% of all Partners and proposed subcontractors under previous

agreements/contracts.” AR Tab 17a 2625. The Solicitation defined “previously performed” as

“performance that took place before the issuance of the CLOVER solicitation, for a period of no

less than one complete Period of Performance on another contract action, or for a period totaling

one calendar year.” AR Tab 17 at 2463. To verify its claimed previous performance, the offeror

was required to include: (1) “[t]he contract or Task Order for which the work was performed,” and

(2) “[e]vidence of the business arrangement,” such as “[a] [j]oint venture agreement that identifies

all members” or “[a] copy of the subcontract(s).” Id. at 2464.

52

The RFP explicitly stated that it was “the responsibility of the Offeror to ensure that

any supporting documentation clearly represents the working partnership on the previously

performed work.” Id. (emphasis in original). Though offerors were permitted to submit redacted

documents, the Solicitation warned that they would do so “at the risk of not receiving credit for

the redacted submission if the Government source selection team cannot sufficiently understand

and / or verify the information submitted.” Id. at 2444. Accordingly, redacted documents were

“discouraged.” Id.

The Risk Assessment Evaluation Team (“RAET”) was unable to confirm [ . . . ] and

[ . . . ]’s working relationship due to the redactions to the [ . . . ] Task Order [ . . . ] Modification

and the [ . . . ] Task Order [ . . . ] Modification, which Tellus submitted as supporting

documentation. AR Tab 107d at 45373–74. With regard to Task Order [ . . . ], NGA took issue

with the absence of a signature block for the subcontractor, [ . . . ]—as the modification submitted

was unilateral—and noted that Tellus similarly redacted all other information that could

demonstrate “if there was actual performance awarded” under the Task Order. Id. at 45374. As

for Task Order [ . . . ], NGA found that “all information and signature blocks have been redacted

that would demonstrate a signed agreement between the two parties.” Id. Further, “[t]he tables

that would have demonstrated if work was actually aligned between the two parties have also been

redacted.” Id.

Tellus asserts that “[f]rom the material submitted, [] NGA cannot credibly question the

validity of the assertion that [ . . . ] had previously performed with [ . . . ] as a subcontractor under

Task Orders [ . . . ] and [ . . . ].” ECF No. 62 at 41. Tellus specifically points to the introductory

paragraph of the documentation for Task Order [ . . . ], which states that: “This Task Order

Modification, effective January 9, 2019 is made between [ . . . ] . . . and [ . . . ] . . . .” Id. at 41–42

(quoting AR Tab 30f.8 at 36097). According to Tellus, “Task Order [ . . . ] begins in essentially

53

the same manner.” Id. at 42 (citing AR Tab 30f.9 at 36101). Tellus also notes that the task order

modifications include: “(1) actual signature blocks for both [ . . . ] and [ . . . ] that were signed by

[ . . . ]’s Director of Contracts and the [ . . . ] Contract Manager, (2) a modification summary that

explained each prior modification to the subcontract, (3) the labor positions affected by the

modification, and (4) funding information and contract value.” Id. (citing AR Tab 30f.8 at 36097–

100). As evidence that the working relationship between [ . . . ] and [ . . . ] met the Solicitation’s

duration standard, Tellus cites the statement in the Task Order [ . . . ] documentation that a prior

modification exercised Option Year 1, which spanned from September 29, 2018, to September 28,

2019. Id. (citing AR Tab 30f.8 at 36098). Though Tellus notes that the redactions “covered

financial and other sensitive commercial information,” it maintains that “the submission of the

actual contractual documents provided clear evidence that the parties in fact previously performed

work together.” Id. at 43. Tellus therefore contends that “[i]t was unreasonable for the evaluators

to reject the documentation based on some redactions to the details in the documents.” Id.

The problem is, Tellus did not merely redact “some” details. The record instead reflects

that Tellus redacted the task order modifications almost in their entirety. As for Task Order [ . . . ],

the extent of Tellus’s redactions make it such that what remains appears only to be the standard

outline of a task order modification. See AR Tab 30f.8. All the hours worked are redacted, as are

the names of those working under the Task Order. Id. And contrary to Tellus’s assertion, the Task

Order Modification does not include funding information and contract value, because those

sections, too, are fully redacted. See id. at 36099–100. Additionally, the language Tellus cites as

demonstrating that [ . . . ] and [ . . . ] had a working relationship for at least one year/one period of

performance—“Modification exercises Option Year 1 (September 29, 2018 through September

28, 2019)”—is found in the section of the Task Order Modification that describes past

modifications. Id. at 36098. The Task Order Modification Tellus submitted was Modification 3,

54

a unilateral modification that merely removed an individual and his associated position from the

contract and reduced incremental funding. The bilateral modification that exercised Option Year

1 was Modification 1. Id. at 36097–98. As a result, though it may have been possible for the

Agency to infer a working relationship from the unilateral modification Tellus submitted, the

Solicitation explicitly required that the working relationship be “clearly represent[ed].” AR Tab

17 at 2464 (emphasis in original). Based on Tellus’s heavy redactions to a unilateral task order

modification, the Court finds it was rational for the Agency to determine that it needed to see a

more direct representation of the working relationship between [ . . . ] and [ . . . ].

The documentation for Task Order [ . . . ] is similarly deficient. Though the modification

submitted under Task Order [ . . . ] was bilateral, Tellus fully redacted the signatures of both

parties. AR Tab 30f.9 at 36101. Particularly in light of the Solicitation’s demand that the

documentation “clearly represent[]” the working relationship, AR Tab 17 at 2464 (emphasis

omitted), it was reasonable for the Agency to find that it could not verify [ . . . ] and [ . . . ]’s

working relationship in the absence of signatures, which are fundamental to a valid contract.

Additionally, Tellus again redacted all information related to the hours worked, funding

information, and contract value, AR Tab 30f.9 at 36103–04, further obscuring the nature and extent

of the parties’ relationship. The Task Order Modification also contains no insight into the duration

of [ . . . ] and [ . . . ]’s relationship, and consequently cannot provide the evidence the Agency

needed to verify that [ . . . ] and [ . . . ] met the Solicitation’s definition of “past performance.”18

18

Tellus also claims that the Agency irrationally concluded that it could not verify the

duration of Tellus’s working relationships because Tellus’s proposal stated that Task Orders [ . . . ]

and [ . . . ] “together span over a year” and the other subcontractors were “long term (over a year)

subcontractors to [ . . . ] on [ . . . ].” ECF No. 94 at 27 (quoting AR Tab 30f.2 at 36070). However,

Tellus could not simply claim that its working relationships met the Solicitation’s duration

requirement; Tellus was required to submit documentation proving that it was true. See AR Tab

17 at 2464 (requiring offerors to verify their claimed working relationships by submitting “[t]he

55

See generally AR Tab 17 at 2463. Tellus thus cannot rely on Task Order [ . . . ] to rectify the

absence of validating information in Task Order [ . . . ].

The RAET found similar redaction issues present in the documentation submitted for

[ . . . ]’s claimed business relationships with five other subcontractors. AR Tab 107d at 45374

(stating that “the same problem continues in which the subcontracts are redacted to the point that

it is unclear of the working partnership and claimed previous performance”). Indeed, Tellus argues

that the task order modifications submitted for the subcontractors “had the same appearance and

type of content as the task order/subcontract modifications between [ . . . ] and [ . . . ] discussed

above.” ECF No. 62 at 43. Tellus does not defend these modifications on an individual basis.

Thus, as the Court rejects Tellus’s argument that the Agency acted irrationally in refusing to verify

the relationship between [ . . . ] and [ . . . ], so too must it reject Tellus’s argument that the Agency

acted irrationally in refusing to verify [ . . . ]’s relationships with these subcontractors. Even so,

upon review of Tellus’s submitted documentation, the Court finds the Agency to have rationally

concluded that the documents suffer from the same deficiencies as those previously discussed.

Each of the modifications redacts the parties’ signatures, the number of hours worked, funding

information, and contract value, leaving very little to reveal the nature or validity of the parties’

working relationship. See AR Tab 30f.5 at 36080, 36084–85; AR Tab 30f.6 at 36086, 36090–91;

AR Tab 30f.7 at 36092, 36095–96; AR Tab 30f.10 at 36105, 36110–11; AR Tab 30f.14 at 36118,

36122–23.

In sum, the Court rejects Tellus’s contention that “there was no reasonable basis to question

whether the eight identified instances of previous performance actually occurred.” ECF No. 62 at

43. Contrary to Tellus’s characterization, it did not merely redact “some” detail from the task

contract or Task Order for which the work was performed” and “[e]vidence of the business

arrangement”).

56

order modifications but rather redacted almost every piece of information that pertained to the

work performed. The Agency rationally found that these redactions prevented it from validating

the parties’ working relationships.

4. Tellus Has Not Demonstrated that the Agency Failed to Conduct a Meaningful Re-

Evaluation.

Apart from the alleged evaluation errors, Tellus argues that the Agency’s “re-evaluation of

Tellus’s proposal was unreasonable because the Agency did not meaningfully review Tellus’s

proposal, as the Agency represented it would.” 19 Id. at 16. As support for this claim, Tellus

emphasizes the fact that the Agency gave Tellus the same scores and largely the same written

explanations upon re-evaluating Tellus’s proposal. Id. at 17 (stating that the Court should compare

AR Tab 41a with AR Tab 107a (Relevant Experience), AR Tab 41b with AR Tab 107b (Past

Performance), and AR Tab 41d with AR Tab 107d (Risk Assessment)). According to Tellus, the

“only logical explanation” for the “near identicality of the two sets of evaluation results” is that

NGA’s re-evaluation of Tellus’s proposal “was superficial and failed to meaningfully consider the

merit of the proposal.” Id. Tellus cites ProCleared’s change in score as evidence that “where the

Agency chose to meaningfully re-evaluate[] a proposal, the results could be radically different.”

Id. Indeed, according to Tellus, if the Agency had conducted a meaningful re-evaluation, “it would

have corrected its earlier errors in scoring Tellus’s Relevant Experience, Past Performance, and

Risk Assessment submissions, which would have increased Tellus’s total points to 70,750 and

19

Tellus accuses the Agency of “prioritiz[ing] speed over competition,” ECF No. 62 at 16,

and argues that the “supposed re-evaluation was effectively a rubber stamp on the original

evaluation,” id. at 17–18. Though Tellus’s arguments seem to allege bad faith on the part of the

Government, see Syneren Techs. Corp. v. United States, 166 F.4th 1040, 1046 (Fed. Cir. 2026)

(addressing a protester’s argument that the agency’s re-evaluation was designed to reach a

“predetermined result” as an allegation of bad faith), Tellus has explicitly stated that it is not raising

such an argument. Mar. 16, 2026 Oral Arg. Tr. at 8:25–9:3, ECF No. 91. Any attempt to make

such a bad faith argument would need to be supported by clear and convincing evidence, Am-Pro

Protective Agency, 281 F.3d at 1239–40, which Tellus has not purported to present.

57

placed Tellus among the top five awardees.” Id. at 18. Tellus claims that the Agency’s failure to

conduct a meaningful re-evaluation renders its evaluation of Tellus’s proposal arbitrary and

capricious. 20 Id. at 16.

As support for its claim that the Agency failed to conduct a meaningful re-evaluation,

Tellus contends that the AR contains “no documents explaining anything about the re-evaluation”

and “no evidence of the evaluators having again reviewed Tellus’s proposal.” ECF No. 94 at 11

(emphasis in original). Tellus argues that because the Agency failed to document its re-evaluation,

the Court must conclude that it acted irrationally. Id. at 12 (citing 22nd Century Techs., Inc. v.

United States, 176 Fed. Cl. 389, 397–98 (2025)). Tellus is incorrect, however, to say that there is

no evidence and no documentation of the re-evaluation conducted by NGA. Though the record

may not detail the re-evaluation to the extent Tellus would desire, the Court finds that the AR

contains ample evidence of the re-evaluation, as shown in the evaluation and decision documents

appropriately issued upon completion of the re-evaluation. See, e.g., AR Tabs 98–108 (the CERs

issued upon re-evaluation); AR Tab 112 (the SSEB report that explained the re-evaluation

process); AR Tab 113 (the SSDD that detailed how the SSA’s decision had changed upon re-

evaluation).

Importantly, “[t]he presumption of regularity provides that, in the absence of clear evidence

to the contrary, the court will presume that public officers have properly discharged their official

duties.” Miley v. Principi, 366 F.3d 1343, 1347 (Fed. Cir. 2004). As a result, courts are permitted

to “presume that what appears regular is regular.” Butler v. Principi, 244 F.3d 1337, 1340 (Fed.

Cir. 2001); see also Linc Gov’t Servs., 96 Fed. Cl. at 720 (rejecting a plaintiff’s “baseless charge”

20

Though Tellus does not fully define what it means for a re-evaluation to be meaningful,

Tellus argues that, at bottom, it must entail “a re-reading of the evaluation reports.” ECF No. 94

at 11.

58

that the agency did not actually do what it said it did because “procurement officials are entitled

to a strong presumption of regularity and good faith”). Tellus provides no such evidence to rebut

the presumption here.

Tellus’s arguments are largely based on its belief that, upon re-evaluation, “invariably there

would have been some new views, reflected in differences between the original and new reports.”

ECF No. 94 at 11. At oral argument, Tellus could not cite any evidence to support its position,

instead citing “human nature” as the basis for this belief. See, e.g., ECF No. 108 at 18:22–19:1 (“I

would submit that it’s human nature that when we study something that is very complex a second

time, that we almost formulate . . . some slightly different impression of what it says than the first

time we did it.”). Thus, in Tellus’s view, the “logical inference” from the identicality of the reports

is that the Agency entirely failed to re-read and deliberate upon Tellus’s proposal. ECF No. 94 at

11. But a much more likely explanation—and one more in line with the presumption of

regularity—is that neither Tellus’s score nor its evaluations changed because the Agency found

that it got it right the first time. This explanation is further confirmed by numerous CERs, which

explicitly state that “[i]f the [evaluation team’s] analyses or conclusions did not change, the revised

CER was unmodified from the original CER.” E.g., AR Tab 107a at 45297. As the Agency’s

evaluative judgments did not change, neither did the substance of the reports. Indeed, to go

through and change substantive details in an evaluation report that was perfectly satisfactory in its

original form would be a waste of agency resources.

Moreover, as detailed in Sections III.A.1–3, the Court agrees that NGA’s re-evaluation of

Tellus’s proposal was rational and conducted in accordance with the law. Accordingly, Tellus

cannot demonstrate that it was prejudiced by any purported failure of the Agency to meaningfully

re-evaluate its proposal. In the absence of prejudice, Tellus’s meaningful re-evaluation claim

59

cannot survive independently, and must be rejected. 21 See ECF No. 108 at 22:6–14 (conceding

that “Count 1 [Tellus’s allegation that the Agency failed to meaningfully re-evaluate its

proposal] . . . does require a showing of prejudice” and that such a showing relies on “the flaws in

the evaluation results . . . that [Tellus] demonstrated in Count 2 [Tellus’s claim that NGA’s

evaluation of Tellus’s proposal was unreasonable]”).

5. Because Tellus’s Protest Does Not Prevail on the Merits, the Court Finds It

Unnecessary to Rule on the Government’s and Exacta’s Motions to Dismiss.

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

Government separately moves to dismiss Tellus’s protest, arguing that Tellus waived its right to

raise any objection to the results of the re-evaluation by failing to challenge the Solicitation and

its original evaluation in 2023 when Tellus received its debriefing. ECF No. 79 at 31. Exacta

similarly argues that “Tellus’s challenges to its past performance should [] be dismissed based on

the waiver principles set forth in Blue & Gold Fleet.” ECF No. 86 at 34. Exacta more narrowly

focuses its dismissal arguments on Tellus’s FAR/NARI violations, contending that because Tellus

knew of the violations and their potential impact on its Past Performance assessment prior to the

submission of its proposal, or at least upon receipt of its debriefing, it cannot bring such arguments

now. Id. at 39–45.

Considering the Court’s rejection of Tellus’s arguments on the merits or for lack of

jurisdiction, it is unnecessary to rule on the Blue & Gold waiver question posed by the

Government’s and Exacta’s respective dismissal requests. In that respect, the motions are denied.

21

The Government and Exacta argue that Tellus’s claim regarding the meaningfulness of

the re-evaluation is speculative and thus should be dismissed pursuant to RCFC 12(b)(6) for failure

to state a claim. ECF No. 79 at 36–37; ECF No. 86 at 34–36. As both parties asserted these

dismissal arguments in their Cross-Motions for Judgment on the Administrative Record, the Court

finds that no efficiency would be gained from dismissing Tellus’s claim pursuant to RCFC

12(b)(6) and thus solely grants the Government’s and Exacta’s Cross-Motions for Judgment on

the Administrative Record.

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B. The Court Denies Tellus’s Motion to Complete and Supplement the

Administrative Record, Order Depositions, and Temporarily Suspend Briefing.

In conjunction with its dispositive motion, Tellus filed a Motion to Complete and

Supplement the Administrative Record, Order Depositions, and Temporarily Suspend Briefing.

ECF No. 61. In its motion, Tellus first asked the Court to direct the Agency to complete the AR

by adding two sets of documents: (1) all documents prepared by the members of the REET, the

PPET, and the RAET in connection with the preparation of their re-evaluation reports, including

any documents that relate to the nature or extent of the re-evaluation the teams undertook; and

(2) the PARs that the COR reviewed in completing the PPQs for three projects submitted by Tellus.

Id. at 2–3.

The Court denied Tellus’s request, as Tellus’s motion was unsupported by “evidence of

actual omissions.” Competitive Innovations, LLC v. United States, 175 Fed. Cl. 296, 306–07

(2025). To overcome the presumption that the administrative record is complete, a plaintiff “must

provide ‘clear evidence’ that the record lacks information ‘that was generated and considered by

the agency’” in reaching the challenged decision. CAN Softtech, Inc. v. United States, 173 Fed.

Cl. 480, 484 (2024) (quoting Poplar Point I, 145 Fed. Cl. at 494), reconsideration denied, 174

Fed. Cl. 412 (2024). Tellus did not do so. Instead, Tellus’s motion relied on a “[b]ald allegation[]”

that the re-evaluation “lack[s] explanation.” Competitive Innovations, 175 Fed. Cl. at 306–07.

Tellus cannot overcome the presumption of completeness by simply arguing that there must be

more evidence demonstrating the nature and extent of the re-evaluation. See id.; BHB Ltd. P’ship

v. United States, 147 Fed. Cl. 226, 229 (2020) (rejecting a plaintiff’s motion to complete where

the plaintiff solely presented “a list of what [were] essentially document requests, seeking

categories of documents they believe[d] [were] necessary to understand better the agency’s

decision-making process”); Xerox Corp. v. United States, No. 21-1807, 2021 WL 9563553, at *5

61

(Fed. Cl. Dec. 17, 2021) (denying a plaintiff’s motion to complete where the plaintiff failed to

“point to any specific document that [was] missing from the record and instead [sought] a broad

category of [documentation], believing that there must be some further explanation for the

Agency’s decision”). Thus, Tellus failed to make the requisite showing with respect to documents

relating to the nature or extent of the re-evaluation.

Similarly, Tellus failed to show that the PARs referenced by the COR in several of Tellus’s

PPQs were reviewed by the relevant agency decisionmakers. See Smith v. United States, 114 Fed.

Cl. 691, 695 (2014) (“If an agency omits information that was generated and considered by the

agency, then it is properly part of the administrative record, and is admissible to complete the

record . . . .” (quotation omitted)), aff’d, 611 F. App’x 1000 (Fed. Cir. 2015). Instead, the evidence

demonstrates that only the COR who completed Tellus’s PPQs reviewed the PARs. See, e.g., AR

Tab 30c.77 at 35686–87. In turn, the relevant Agency evaluators reviewed the PPQs, but not the

PARs. AR Tab 107b at 45356–57. Tellus failed to cite any case holding that an agency is deemed

to have considered documents that were reviewed by a third-party simply because the third-party

referenced the documents in a report reviewed by the agency during the decision-making process. 22

As a result, the Court denied Tellus’s Motion to Complete the Administrative Record with the

PARs.

The Court further denied Tellus’s Motion to Order Depositions and Motion to Supplement

the Administrative Record with deposition transcripts. “[T]he focal point for judicial review

22

At oral argument on the motion, Tellus characterized Tauri Group, LLC v. United States,

99 Fed. Cl. 475 (2011), as “a case where the Court required that the Government complete the

record by providing worksheets, and I doubt very much that those worksheets themselves were

considered by the source selection official.” ECF No. 91 at 18:14–17. Tauri Group, however, is

not on point, as those “worksheets” were not created by individuals wholly external to the

Solicitation. See Tauri Group, 99 Fed. Cl. at 481 (permitting the AR to be completed with

worksheets created by one of the solicitation’s evaluation teams).

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

reviewing court.” Camp, 411 U.S. at 142. Accordingly, courts should only order supplementation

of the administrative record where it is necessary for effective judicial review. Axiom, 564 F.3d

at 1381. Due to this stringent standard, and the Supreme Court’s admonition to avoid inquiry into

the mental processes of agency decision makers, “it is exceedingly rare for a court to allow

depositions.” Constr. Helicopters Inc. v. United States, 169 Fed. Cl. 102, 111 (2024); see also

Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402, 420 (1971) (“[S]uch inquiry into the

mental processes of administrative decisionmakers is usually to be avoided.”). To justify a request

for a deposition, the plaintiff must demonstrate “a specific reason to believe there is information

that cannot be gathered from the existing written record.” Constr. Helicopters, 169 Fed. Cl. at

111.

Tellus claimed that its requested depositions were necessary to reveal the “nature and

extent of the re-evaluation,” and, for two of the depositions, to “develop[] the record of the

proximity of the past performance documents that were close at hand to NGA decision-makers in

this procurement.” ECF No. 61 at 6–7. At oral argument on the motion, Tellus informed the Court

that it withdrew the latter argument. ECF No. 91 at 27:21–23. Tellus, however, failed to present

the Court with a specific reason to believe that the depositions would reveal information that was

necessary for effective judicial review but could not be gathered from the existing written record.

See Constr. Helicopters, 169 Fed. Cl. at 111.

The only two cases Tellus cited to support its request were Pitney Bowes Government

Solutions, Inc. v. United States, 93 Fed. Cl. 327 (2010), and OTI America, Inc. v. United States,

73 Fed. Cl. 758 (2006), aff’d, 227 F. App’x 926 (Fed. Cir. 2007). Both cases are distinguishable.

In Pitney, the depositions ordered by the court were needed to develop the plaintiff’s allegations

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of bias and to recreate documents that were improperly destroyed. 93 Fed. Cl. at 334, 336. As

noted by the court in that case:

Where bias is alleged, the administrative record frequently will not be complete or

suffice to prove or disprove the allegation. Consequently, to address bias, the court

will entertain extrarecord evidence and permit discovery when there has been a

strong showing of bad faith or improper behavior such that without discovery the

administrative record cannot be trusted.

Id. at 332 (quotation omitted). Here, Tellus made no allegation of bias, nor did it argue that the

Agency destroyed relevant evidence. Rather, Tellus merely put forth the assertion that the

evaluators must have additional insight into the re-evaluation. See ECF No. 61 at 6–7. This is not

enough to justify ordering depositions, particularly where, as here, evidence demonstrating the

nature and extent of the re-evaluation is already included in the AR.

OTI America is similarly unhelpful. The court’s opinion in that case only mentioned in

passing that it had previously permitted deposition testimony “on a limited number of subjects on

which the administrative record was silent.” OTI Am., 73 Fed. Cl. at 777 n.42. Though Tellus

contends that the AR in the instant case is silent on the nature and extent of the re-evaluation, ECF

No. 61 at 2–3, the Court disagrees, see, e.g., AR Tab 112 (the SSEB report that explained the re-

evaluation process); AR Tab 113 (the SSDD that detailed how the SSA’s decision had changed

upon re-evaluation). Thus, OTI America does not provide support for Tellus’s request for

depositions. In sum, Tellus failed to demonstrate that this is the rare case where depositions are

required to permit effective judicial review. See Constr. Helicopters, 169 Fed. Cl. at 111.

Accordingly, the Court denied Tellus’s Motion to Order Depositions, and in turn, the Motion to

Supplement the Administrative Record with deposition transcripts.

The Court deferred ruling on Tellus’s Motion to Supplement the Administrative Record

with the Burton Declaration, as the Court found it would benefit from considering the parties’

merits arguments in ruling on that aspect of the motion. The Court now denies the request. Tellus

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sought supplementation of the AR with the Burton Declaration to: (1) provide factual evidence of

NGA’s FAR/NARI violations; (2) “explain[] the prejudice that Tellus experienced” in connection

with the Agency’s evaluation of Tellus’s Past Performance; and (3) “demonstrate[] that there were

very relevant performance documents close at hand to NGA during the past performance

evaluation.” ECF No. 61 at 3–5. Because the Court rejects Tellus’s characterization of the alleged

FAR/NARI violations as procurement errors and finds that they fall outside of the Court’s protest

jurisdiction, there is no need for the Court to determine if the Agency committed such violations.

Consequently, the evidence contained in the Burton Declaration is not necessary for effective

judicial review of Tellus’s Past Performance allegations. Axiom, 564 F.3d at 1381; see also ECF

No. 78 at 13 (arguing that because Tellus’s FAR/NARI allegations are not properly raised in the

bid protest forum, “the Burton Declaration, PARs, rebuttals to PARs, and evidence concerning

Tellus’s disputes with PARs” are “irrelevant and unnecessary for effective judicial review”).

To the extent that the Court considered the Burton Declaration when alternatively ruling

that Tellus did not suffer prejudice from the Agency’s alleged errors, the Burton Declaration is

more appropriately considered as part of the Court record and supplementation remains

unnecessary. See E. W., Inc. v. United States, 100 Fed. Cl. 53, 57–58 (2011) (considering a

plaintiff’s submitted declaration as part of the court’s record for purposes of determining

prejudice); State of N.C. Bus. Enters. Program v. United States, 110 Fed. Cl. 354, 362 (2013)

(stating that “evidence going to prejudice or prospective relief, if not found in the administrative

record, may nonetheless be considered as part of the court’s record”); see also ECF No. 61 at 5

(alternatively requesting that the Court accept the Burton Declaration and attached exhibits as part

of the Court’s record).

There is also no need to supplement the AR with the Burton Declaration to resolve Tellus’s

claim that the Agency failed to consider materials that were too close at hand to ignore. See ECF

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No. 61 at 5. Supplementation of the record, for purposes of the too close at hand doctrine, is only

appropriate where the plaintiff alleges that the agency “failed to consider information relevant to

its final decision.” MG Altus Apache Co. v. United States, 102 Fed. Cl. 744, 752 (2012) (emphasis

added) (quotation omitted), supplemented by, 111 Fed. Cl. 425 (2013). Because the Court does

not find the documents cited by Tellus to be relevant to the Agency’s Past Performance evaluation,

supplementation of the record is unnecessary. As a result, the Court denies Tellus’s Motion to

Supplement the Administrative Record with the Burton Declaration.

C. AP Has Not Demonstrated Prejudicial Error in NGA’s Evaluation.

Similar to Tellus, AP challenges the Agency’s evaluation of its proposal under the Past

Performance, Risk Assessment – Organizational Structure, and Relevant Experience factors. See

ECF No. 64 at 11–41. Upon review, the Court determines that AP has not demonstrated any

prejudicial error in NGA’s evaluation.

1. NGA’s Evaluation of AP’s Past Performance Was Coherently and Reasonably

Explained and Did Not Involve Disparate Treatment.

AP has not demonstrated prejudicial error in the Agency’s evaluation of its proposal under

the Past Performance factor. 23 In analyzing a challenge to an agency’s past performance

evaluation, the Court’s role is limited “to review[ing] the past performance rating to ensure it was

reasonable and consistent with the solicitation’s criteria and applicable law.” AcmeSolv, LLC v.

United States, 174 Fed. Cl. 748, 755 (2025). The Court may not “substitute [its] judgment for a

reasonably based past performance rating.” Integrated Fin. & Acct. Sols., LLC v. United States,

161 Fed. Cl. 475, 487 (2022) (alteration in original) (quotation omitted). Although the Court will

23

The Government argues that AP’s objections to the Solicitation’s Past Performance

evaluation methodology are waived under Blue & Gold. See ECF No. 79 at 67–73. As with the

similar argument regarding Tellus’s protest, see supra § III.A.5, the Court need not address the

Government’s waiver argument because, regardless, the Court has reviewed the parties’ arguments

on the merits and determined that there was no prejudicial error.

66

not “automatic[ally] endorse[] [] the agency’s actions,” Mortg. Contracting Servs., LLC v. United

States, 153 Fed. Cl. 89, 126 (2021), it must show “especially great deference to the agency’s

technical evaluations, past performance ratings, and other ‘minutiae of the procurement

process . . . which involve discretionary determinations of procurement officials,’” Pro. Analysis,

Inc. v. United States, 177 Fed. Cl. 39, 43 (2025) (quoting Vanguard, 101 Fed. Cl. at 780).

AP’s challenges to NGA’s Past Performance evaluation involve two categories of

argument. First, AP argues that the PPET’s evaluations of AP’s Projects 1-2, 2-2, and 3-2 were

unreasonable, undocumented, and did not evince a consideration of the relevant factors described

in the Solicitation. See ECF No. 64 at 11–24. Second, AP argues that the Agency engaged in

disparate treatment in conducting its Past Performance evaluation by failing to evaluate all

offerors’ submissions equally. Id. at 25–29. Neither argument meets AP’s “heavy burden” to

show that NGA’s decision lacked a rational basis. Impresa, 238 F.3d at 1333. The Court takes

each argument in turn.

a. The RFP did not require the Agency to validate an overall rating of Exceptional

if an offeror had multiple Very Good PPQ ratings.

AP challenges the Agency’s Past Performance evaluation of AP’s Projects 1-2, 2-2, and 3-

2 as both unreasonable and undocumented. See ECF No. 64 at 15–24. Upon reviewing NGA’s

evaluation of AP’s Past Performance submissions, the Court finds no error.

Several of AP’s Past Performance arguments rest on its contention that the RFP required

NGA to give an offeror an overall rating of Exceptional if the offeror had multiple Very Good

PPQ ratings. See id. at 14–15. Rather than evaluating Past Performance in this manner, AP argues

that the Agency erred by adopting the most prevalent adjectival rating within each of AP’s PPQs.

Id. at 15. In evaluating Past Performance, the PPQ form instructed the POCs to assign ratings

across four topical areas (Technical Performance, Management Performance, Cost/Price

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Performance, and Small Business Participation) with each topical area having between two and

six subtopics. See AR Tab 16a.3 at 2321–23. The POC was to provide a rating for each subtopic,

for a total of 19 ratings. Id. The PPQ form also instructed POCs to “provide an assessment

rationale to describe the ratings for each topical area,” and included boxes for this narrative

assessment rationale. Id. The PPQ defined adjectival ratings ranging from Unacceptable to

Outstanding. Id. at 2321. As relevant to AP’s protest, the PPQ rating system defined “Very Good”

as follows:

• Performance meets contractual requirements and exceeds some to the

Government’s benefit. The contractual performance of the element or sub-

element being evaluated was accomplished with some minor problems for

which corrective actions taken by the contractor were effective.

• To justify a Very Good rating, identify a significant event and state how it

was a benefit to the Government. There should have been no significant

weaknesses identified.

Id.

The RFP indicated that offerors would be “evaluated on overall ratings earned for each

past performance package submitted,” using a scale ranging from Adverse to Exceptional. AR

Tab 17 at 2471–72. As relevant to AP’s protest, an overall rating of “Very Good” was defined as

performance that (1) “met contractual requirements and exceeded some, to the Government’s

benefit” and (2) “was accomplished with some minor problems for which corrective actions taken

by the contractor were effective.” Id. at 2472. “Exceptional” was defined as performance that

(1) “met contractual requirements and exceeded many, to the Government’s benefit,” and (2) “was

accomplished with no problems or with few minor problems for which corrective actions taken by

the contractor were highly effective.” Id. For each adjectival rating definition, both elements had

to be met for the offeror to receive the corresponding score. Id. When reviewing an offeror’s past

performance, NGA noted that it may use information from other sources. Id. at 2471.

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According to AP, because the PPQ rating of “Very Good” was defined as “[p]erformance

meets contractual requirements and exceeds some to the Government’s benefit,” AR Tab 16a.3 at

2321, each Very Good rating involved at least one instance where the offeror met and exceeded

contract requirements. See ECF No. 64 at 14–15; ECF No. 93 at 7–8. Thus, in AP’s view, “[w]hen

combined, multiple Very Good ratings” in a PPQ, ECF No. 64 at 14–15, should have warranted

an overall Past Performance rating of Exceptional because exceptional past performance was

defined as where “[p]erformance met contractual requirements and exceeded many, to the

Government’s benefit,” AR Tab 17 at 2472 (emphasis added). AP further argues that NGA failed

to conduct this analysis of AP’s Past Performance and instead adopted “whichever evaluation

rating was most prevalent.” ECF No. 64 at 15. The Court finds this to be an overly quantitative

and mechanistic reading of the RFP’s evaluation criteria.

While AP is correct that the Solicitation required that the PPET consider “how much an

offeror exceeded contract requirements to the Government’s benefit” in assigning an overall Past

Performance rating for a given project, ECF No. 93 at 8, the RFP did not require a quantitative

calculation of the number of instances where an offeror exceeded contract requirements. See ECF

No. 64 at 14. Looking at the broader evaluative scope, the Solicitation required the Agency to

qualitatively assess Past Performance by evaluating the “overall ratings earned for each past

performance package submitted,” taking into consideration the PPQ ratings, POC narrative

assessment rationales, and—at NGA’s discretion—other information. AR Tab 17 at 2471. Thus,

NGA retained discretion to exercise its judgment in evaluating an offeror’s overall past

performance in a nuanced manner beyond the mere mathematical counting of strengths and

weaknesses for which AP advocates.

This qualitative and discretionary understanding of the RFP’s Past Performance evaluation

methodology is supported by the case law’s general treatment of adjectival ratings, as well as the

69

Agency’s express rejection of a strict quantitative analysis in favor of a discretionary assessment.

As noted above, the Federal Circuit has rejected the contention that past performance adjectival

ratings are “subject to a mathematical calculation” such that they “can be added up” and “averaged

out.” Glenn Def. Marine, 720 F.3d at 909 n.6; see also Connected Glob. Sols., LLC v. United

States, 162 Fed. Cl. 720, 743 (2022) (explaining that “[l]ooking beyond the adjectival ratings is

necessary because proposals with the same adjectival rating are not necessarily of equal quality”

(quoting Femme Comp Inc. v. United States, 83 Fed. Cl. 704, 758 (2008))). After all, “[e]valuation

of experience and past performance, by its very nature, is subjective.” SOFITC3, 178 Fed. Cl. at

208 (quoting Gritter Francona, Inc. v. United States, 158 Fed. Cl. 597, 608 (2022)).

Moreover, during the procurement’s Q&A process, NGA resolved any doubt regarding

whether the Solicitation’s adjectival ratings were to be assigned through the evaluators’ discretion

or by mathematical calculation. As noted above with respect to Tellus’s protest, when asked to

“quantitatively define ‘some’” in relation to the Relevant Experience ratings, the Agency

responded that “‘[s]ome’ is less than most, and greater than ‘few,’” emphasizing that “[e]valuators

will exercise their discretion” in assigning adjectival ratings. AR Tab 14b at 1715. While AP

argues that this Q&A does not address the Past Performance adjectival ratings, see ECF No. 93 at

8–9, it offers no reason why NGA would have adopted a discretionary approach for the Relevant

Experience ratings but not for the Past Performance ratings. Indeed, there is no reason to believe

the Agency intended for the term “some” as used in the evaluation of multiple proposal volumes

to have different meanings, nor that it intended to give itself discretion in the evaluation of some

volumes but not others. See AR Tab 14b at 1715 (clarifying in Q&A the definition of

“‘some’ . . . for the purpose of CLOVER” (emphasis added)).

Finally, that the Agency considered whether a certain adjectival rating was “predominant”

within AP’s PPQs does not demonstrate that its evaluation lacked a rational basis. Rather, this

70

was a reasonable consideration in evaluating AP’s Past Performance based “on [its] overall rating[]

earned.” AR Tab 17 at 2471. Accordingly, AP’s argument that the Agency failed to consider

“how much an offeror exceeded contract requirements to the Government’s benefit,” ECF No. 93

at 8, is unsupported by the record which demonstrates that the PPET reasonably considered the

PPQ responses alongside the POC’s narrative assessment rationale in its evaluation of AP’s Past

Performance. See AR Tab 98b at 44606–07, 44610–11, 44613–14.

AP’s attempt to convert the Solicitation’s discretionary Past Performance evaluation

methodology into a quantitative analysis and corresponding argument that NGA’s consideration

of the most predominant rating in AP’s PPQs was inconsistent with the RFP are, therefore,

unavailing.

b. NGA coherently and reasonably explained its evaluation of AP’s Past

Performance under Project 1-2.

Contrary to AP’s assertion, see ECF No. 64 at 15–17, 20, the Agency’s evaluation of AP’s

Past Performance for Project 1-2, which involved AP’s subcontractor [ . . . ]’s performance of

Program Management Support Services for the [ . . . ], see AR Tab 21c.17 at 3863, was not

inconsistent with the RFP’s methodology. This argument rests upon AP’s erroneous interpretation

of the Solicitation as requiring that the Agency sum up each Very Good PPQ rating to reach an

Exceptional rating overall. AP maintains that, “[l]ogically, an aggregation of one Outstanding and

fifteen Very Good ratings, absent any documented or cited problems, should have been enough to

raise the overall [Past Perfo

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