The opinion
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 6, 2000 Decided September 29, 2000
No. 00-1023
J.A. Jones Management Services,
Petitioner
v.
Federal Aviation Administration,
Respondent
Wackenhut Services, Inc.,
Intervenor
On Petition for Review of a Final Order of the
Federal Aviation Administration
Douglas L. Patin argued the cause and filed the briefs for
petitioner.
Sandra Wien Simon, Attorney, U.S. Department of Jus-
tice, argued the cause for respondent. With her on the brief
were David W. Ogden, Acting Assistant Attorney General,
and Anthony J. Steinmeyer, Attorney.
Richard J. Webber argued the cause and filed the brief for
intervenor Wackenhut Services, Inc.
Before: Edwards, Chief Judge, Ginsburg and Tatel,
Circuit Judges.
Opinion for the Court filed by Circuit Judge Tatel.
Tatel, Circuit Judge: A disappointed bidder challenges the
Federal Aviation Administration's award of a contract. Re-
viewing the FAA's decision pursuant to the highly deferential
arbitrary and capricious standard, we deny the petition for
review.
I
Following a competitive bidding process, the FAA awarded
Wackenhut Services, Inc., intervenor herein, a $5 million
contract to provide operations and maintenance services at
the William Hughes Technical Center, a 5059 acre facility in
New Jersey that serves as the national scientific test base for
FAA research, development, and acquisition programs. Pur-
suant to FAA procedures, petitioner J.A. Jones Management,
an unsuccessful bidder, protested the award to the agency's
Office of Dispute Resolution for Acquisition ("ODRA"). In
that protest, Jones claimed both that the agency failed to
follow its own procedures and that Wackenhut failed to meet
the contract solicitation's substantive requirements. After
reviewing the evidence and making factual findings, ODRA
recommended that Jones's protest be denied. Adopting
ODRA's findings and recommendations, the FAA Administra-
tor issued a final order awarding the contract to Wackenhut.
The solicitation required the contract to be awarded to the
responsible, low-priced offeror deemed acceptable in each of
several listed technical areas. The agency contracting officer,
assisted by a contract specialist, oversaw the procurement
decision. As outlined in the solicitation, an eight-member
Technical Evaluation Board following a Technical Evaluation
Plan was responsible for determining whether offers met the
technical requirements. According to the Plan, if the Board
unanimously decided that an offer failed in any one area, the
offeror would be disqualified from further consideration. All
agree that if the Board was not unanimous, the contracting
officer would retain discretion to award the contract to the
offeror.
At a July 26, 1999 meeting, the Technical Evaluation Board
unanimously disqualified Wackenhut, stating in its report that
the company had failed in two specific areas: demonstrating
how it would remove snow from the facility and proposing an
electrical engineer with the required work experience. Re-
viewing the Board decision, the contract specialist discovered
that the individual evaluation sheet of one of the Board
members--Evaluator F--indicated that he had given Wack-
enhut a passing grade in both areas. In particular, referring
to the snow removal task, Evaluator F wrote on his scoring
sheet: "I think this was addressed adequately." When the
contract specialist asked for an explanation, the Board chair
pointed out that, despite his individual assessment, Evaluator
F had signed the report disqualifying Wackenhut in the two
areas. The chair also told the contract specialist that Evalu-
ator F had agreed to change his individual scoring sheet to
reflect the Board's evaluation. As ODRA later found, howev-
er, Evaluator F failed to do so.
Unsatisfied, the contract specialist arranged a second
Board meeting to discuss the inconsistency between the
Board report and Evaluator F's individual scoring sheet. At
that meeting, which occurred on August 12, Evaluator F
reiterated his belief in the acceptability of Wackenhut's offer
and refused to change his evaluation sheet. During a break
in the meeting, Evaluator F, believing that his unwillingness
to change his assessment of Wackenhut had become an
obstacle to agreement, telephoned the contract specialist and
asked to be removed from the Board. The contract specialist
denied his request.
After the break, the chair called the contract specialist to
inform her that the Board was still discussing Wackenhut's
proposal. The contract specialist directed the chair to post-
pone any further action until she finished discussing the
matter with the contracting officer and agency counsel. Dur-
ing that discussion, the three found Wackenhut's offer techni-
cally acceptable and decided not to follow the Board's assess-
ment. Learning of this decision, the chair reconvened the
Board. Under the circumstances, the Board decided it was
pointless to meet further. The contracting officer later deter-
mined that Wackenhut was the responsible, low-priced offeror
deemed acceptable in all of the solicitation's technical areas.
Wackenhut was awarded the contract.
After hearing testimony about these events, ODRA con-
cluded that the contracting officer properly followed agency
procedures in awarding the contract to Wackenhut. Central
to the dispute in this case, ODRA found that the Board's
decision had not been unanimous and that Wackenhut had
therefore not been disqualified. This determination rested
primarily on the events of the August 12 meeting--in particu-
lar, Evaluator F's continued refusal to agree that Wackenhut
was unacceptable. At one point in its report, ODRA found
that "[i]t is undisputed that, at the conclusion of the final
Board meeting on August 12, the Board, in a non-unanimous
vote, found Wackenhut's proposal unacceptable." Reviewing
all of the evidence, ODRA concluded that the meeting "ended
in a non-unanimous Board decision."
Jones, the unsuccessful bidder, now challenges the award of
the contract to Wackenhut. Jones claims that, contrary to
ODRA's finding, no non-unanimous vote occurred at the end
of the August 12 meeting. As Jones views the events of
August 12, the Board reached no decision at all. Accordingly,
Jones argues, the contracting officer was bound by the July
26 unanimous disqualification of Wackenhut. Focusing on
three of the solicitation's technical requirements, Jones also
challenges the contracting officer's determination that Wack-
enhut was qualified. We consider each claim in turn.
II
We review the FAA's non-unanimity finding under the
familiar arbitrary and capricious standard. See 5 U.S.C.
s 706(2)(A). Under this standard, we "may reverse only if
the agency's decision is not supported by substantial evi-
dence, or the agency has made a clear error in judgment."
Kisser v. Cisneros, 14 F.3d 615, 619 (D.C. Cir. 1994); see also
49 U.S.C. s 46110(c) (FAA "[f]indings of fact ..., if supported
by substantial evidence, are conclusive."). Jones fails to
appreciate the result this highly deferential standard so clear-
ly dictates.
Jones argues that the contracting officer lacked discretion
to disregard the Board's disqualification of Wackenhut. Be-
cause Jones concedes that the contracting officer had dis-
cretion to disregard a non-unanimous Board, its claim nec-
essarily turns on its assertion that the Board was in fact
unanimous. To prevail, Jones must demonstrate that the
agency's determination to the contrary did not rest on sub-
stantial evidence. Yet as ODRA found, not only did Evalu-
ator F declare Wackenhut acceptable on his individual scor-
ing sheet (which he never altered despite his apparent
promise to do so), but at the August 12 meeting, he again
refused to change his evaluation. This evidence is more
than enough to sustain the agency's finding of non-
unanimity.
Seeking to undermine the agency's decision, Jones argues
that it rests on an unsupported ODRA factual finding: that
"it is undisputed that, at the conclusion of the final Board
meeting on August 12, the Board, in a non-unanimous vote,
found Wackenhut's proposals unacceptable." The finding
that formal balloting took place at the August 12 meeting
indeed lacks support in the record. ODRA's error does not
require reversal, however, for we do not believe that the
agency rested its decision solely on the existence of a formal
vote. See 5 U.S.C. s 706 ("[D]ue account shall be taken of
the rule of prejudicial error."). As we read ODRA's report,
the agency relied primarily on Evaluator F's individual evalu-
ation sheet and his statements at the August 12 meeting.
Using the word "vote" only twice, ODRA's report repeatedly
refers to a non-unanimous Board "decision." Moreover, as
Jones's counsel concedes, neither the agency's procedures nor
the contract solicitation required a formal vote, so ODRA had
no reason to consider the existence of a vote significant.
Thus, even without relying on the existence of a non-
unanimous vote, the agency had adequate support for its
ultimate conclusion that "[t]he August 12 meeting, which was
the last meeting of the Board on the subject, ended in a non-
unanimous Board decision of unacceptability of the Wacken-
hut proposal."
Jones provides little evidence to counter the agency's non-
unanimity determination. Pointing out that the contract spe-
cialist cut off the August 12 meeting in the middle of discus-
sion, Jones argues that the Board reached no decision at all.
While this is certainly one possible view of what happened at
the meeting, the question we face is "not whether [petition-
er's] view of the facts supports its version of what happened,
but rather whether the [agency's] interpretation of the facts
is reasonably defensible." Harter Tomato Prods. Co. v.
NLRB, 133 F.3d 934, 938 (D.C. Cir. 1998) (internal quotation
marks omitted). As we demonstrate above, ODRA's non-
unanimity determination finds more than adequate support in
the record.
III
Jones's remaining claims require little attention. Arguing
that Wackenhut's offer failed to meet the solicitation's sub-
stantive requirements, Jones urges us to reverse the agency's
final contract award. Where a procurement decision requires
an agency to assess an offeror's qualifications to perform a
contract, our review is "especially deferential." See Iceland
S.S. Co., Ltd.-Eimskip v. United States Dept. of the Army,
201 F.3d 451, 461 (D.C. Cir. 2000). We are particularly
reluctant to second-guess agency decisionmaking on these
" 'delicate questions.' " Elcon Enters., Inc. v. Washington
Metro. Area Transit Auth., 977 F.2d 1472, 1479 (D.C. Cir.
1992) (quoting Delta Data Sys. Corp. v. Webster, 744 F.2d
197, 203 (D.C. Cir. 1984)).
Jones first claims that Wackenhut failed to satisfy the
solicitation's past performance provisions, which required ex-
perience managing a facility of similar size, i.e., with "over 60
employees and/or over $5 million per year." The FAA found
that Wackenhut met this requirement, based in part on its
experience managing a correctional facility with sixty work-
ers, including forty-four inmates. Jones contends that the
agency erred in considering the inmates to be employees.
But as the agency found, the inmates were employees be-
cause they were both paid and supervised by Wackenhut.
Given our especially deferential standard of review, we cannot
imagine a basis for overturning the agency's judgment on this
issue. Nor do we find any reason to credit Jones's unsup-
ported assertion that Wackenhut's experience managing a
correctional facility was not the type of experience the solici-
tation required.
Jones next argues that the FAA was not entitled to award
the contract to Wackenhut because the company failed to
include in its offer a copy of its proposed Environmental
Specialist's license. By providing that such a failure "may"
render the proposal ineligible, however, the solicitation left
the agency with discretion to award the contract to a bidder
whose offer omitted the required license.
Equally without merit is Jones's final claim that the agency
was not entitled to award the contract to Wackenhut because
its offer contained rEsumEs of key personnel whose consent
had not been obtained. Relying again on our highly deferen-
tial standard of review, we find no basis for disturbing
ODRA's judgment that the rEsumEs were submitted in good
faith.
IV
The petition for review is denied.
So ordered.