Opinion

Sev1tech, Inc. v. United States

Court: United States Court of Federal Claims
Filed: Mar 25, 2016
Status: Published
On the bench: Marian Blank Horn
Cited by: 0 cases
Authority: More cited than 43.2%

finding that the government’s decision to supplement one offeror’s technical rating with two “bonus” scores based on criteria not stated in the solicitation improperly “created an unlevel playing field”

How later courts described this case

finding that the government’s decision to supplement one offeror’s technical rating with two “bonus” scores based on criteria not stated in the solicitation improperly “created an unlevel playing field”
“The participle including typically indicates a partial list . . . . But some drafters use phrases such as including without 45 limitation and including but not limited to — which mean the same thing.”
“Following passage of the APA in 1946, the District of Columbia Circuit in Scanwell Labs., Inc. v. Shaffer, 424 F.2d 859 (D.C. Cir. 1970
“The operative phrase ‘in connection with’ is very sweeping in scope.”

Written by the judges who cited it.

The opinion

REDACTED OPINION

In the United States Court of Federal Claims

Nos. 15-876C; 15-923C

Filed: December 15, 2015

Redacted Version Issued for Publication: March 25, 20161

* * * * * * * * * * * * * * * * ** *

CONSTELLATION WEST, INC. *

and SEV1TECH, INC., * Post-Award Bid Protest; Motion for

* Judgment on the Administrative

Protestors, * Record; Unstated Criteria; Waiver

* of Informalities and Minor

* Irregularities; FAR 52.215-1(f)(3);

UNITED STATES, * Clarifications; FAR 15.306(a)(2);

* Unequal Treatment.

Defendant. *

* * * * * * * * * * * * * * * * ** *

Ralph C. Thomas III, Barton Baker Thomas & Tolle, LLP, McLean, Virginia for

protestor Constellation West, Inc.

Shlomo D. Katz, Brown Rudnick, LLP, Washington DC for protestor Sev1Tech,

Inc. Of counsel was Aidan Delgado, Brown Rudnick, LLP, Washington, DC.

Eric J. Singley and James R. Sweet, Trial Attorneys, Commercial Litigation

Branch, Department of Justice, Washington, DC for defendant. With them were Benjamin

C. Mizer, Principal Deputy Assistant Attorney General, Civil Division, Robert E.

Kirschman, Jr., Director, Commercial Litigation Branch, and Douglas K. Mickle,

Assistant Director, Commercial Litigation Branch, Department of Justice, Washington,

D.C. Of Counsel were William P. Rayel, Senior Trial Counsel, Commercial Litigation

Branch, Department of Justice, Washington, D.C. and Gregory A. Moritz, Assistant

General Counsel, Defense Intelligence Agency.

OPINION

HORN, J.

1This opinion was issued under seal on December 15, 2015. The parties were asked to

propose redactions prior to public release of the opinion. This opinion is issued with some

of the redactions that the parties proposed in response to the court’s request, as well as

additional redactions that the court views as proper. Words which are redacted are

reflected with the following notation: “[redacted].”

FINDINGS OF FACT

The two above captioned cases are post-award bid protests arising from the same

solicitation issued by the Defense Intelligence Agency (DIA). Protestor Constellation

West, Inc. (Constellation West), in case number 15-876C, is a Nebraska corporation

headquartered in Bellevue, Nebraska, that provides Information Technology (IT) support

and solutions. Protestor Sev1Tech, Inc. (Sev1Tech), in case number 15-923C, is a

Virginia corporation headquartered in Woodbridge, Virginia, that also provides IT support

and solutions. DIA received seventy-five proposals for the solicitation, twenty-six for the

full and open track and forty-nine for the small business track, including proposals from

Constellation West and Sev1Tech. On July 15, 2015, the Source Selection Authority

(SSA) stated in his Source Selection Decision Document that DIA had determined twenty-

five offerors to the small business track represented the “best overall value” to the

government based on the analysis and recommendations of the Source Selection

Advisory Council (SSAC), which were attached to the Source Selection Decision

Document, and that contract awards should, therefore, be made to those offerors. The

twenty-five offerors did not include Constellation West or Sev1Tech. On July 17, 2015,

DIA issued award notices to the twenty-five successful offerors. All twenty-five of the

awardees subsequently signed contracts with DIA. Of the twenty-four disappointed

offerors to the small business track, six filed protests in this court, all assigned to the

undersigned. After a hearing and after the administrative record was filed, four of these

protests, in case numbers 15-832C, 15-877C, 15-916C, and 15-922C, were voluntarily

dismissed by the protestors, leaving only the two above captioned protests.

The Solicitation

The solicitation at issue, number HHM402-14-R-0002, allowed offerors the

opportunity to join DIA’s Enhanced Solutions for the Information Technology Enterprise

(E-SITE) contract vehicle. According to the solicitation, the E-SITE contract is intended to

“establish the acquisition framework for delivering the full scope of information technology

services and capabilities to support the DIA, the Combatant Commands (CCMDs), the

Military Services intelligence needs, and partner agency worldwide missions across the

Intelligence Community (IC).” The E-SITE contract is intended to do so by creating a

“contract vehicle that provides participating organizations with comprehensive

Information Technology (IT) technical support services leveraging a mix of large and small

business primes and subcontractors to satisfy the participating organizations’ mission

requirements.” Specifically, the solicitation created an Indefinite Delivery/Indefinite

Quantity (ID/IQ) contract vehicle that will allow E-SITE awardee contractors to propose

solutions for task orders issued by the participating agencies. Task orders will be

competed among E-SITE contractors, although some task orders may be set-aside for

small businesses. The E-SITE contract is intended to replace DIA’s current Solutions for

the Information Enterprise (SITE) contract. The ID/IQ contract’s ordering period consists

of one base year and four one year options. The maximum amount that may be awarded

to any E-SITE contractor is $6,000,000,000.00, and the minimum guaranteed amount is

$500.00.

The original E-SITE solicitation was issued on March 18, 2014 and the final

amended version of the solicitation on May 6, 2014. Awards under the solicitation were

to be made to those offerors whose proposals were determined by DIA to represent the

best value to the federal government. The solicitation created two separate “Evaluation

Tracks” for awards: full and open awards and awards reserved for small business in

accordance with Federal Acquisition Regulations (FAR) 19.502-4(a) (2015). Both

protestors were evaluated under the small business track. Offerors who submitted

proposals under the small business track were evaluated based on price and three non-

price factors: Past Performance; Management/Technical; and Security/Supply Chain Risk

Management. Offerors who submitted proposals under the full and open track were

evaluated under these same factors, as well as an additional Small Business Participation

Factor. The non-price factors included sub-factors that represented specific

characteristics of the solicitation’s objectives. The ratings on which proposals would

ultimately be evaluated, however, were to be assigned at the factor level only. Price was

to be evaluated for completeness and reasonableness in accordance with FAR 15.404-1

(2015). The Security/Supply Chain Risk Management Factor was to be evaluated on a

pass/fail basis and was not to be considered in the best-value analysis. The other non-

price factors (Past Performance and Management/Technical), when combined, were to

be significantly more important than price in determining which proposals represented the

best value. Both the Past Performance and Management/Technical Factors were to be

assigned an overall adjectival/color rating.

The evaluation of individual areas within these Factors included the determination

of significant strengths, strengths, weaknesses, significant weaknesses, and areas that

meet the standard. A “Strength” was defined in the solicitation as “an aspect of an offeror’s

proposal that has merit or exceeds specified performance or capability requirements in a

way that will be advantageous to the Government during contract performance.” A

“Significant Strength” was defined as “an aspect of an offeror’s proposal that has

appreciable merit or appreciably exceeds specified performance or capability

requirements in a way that will be appreciably advantageous to the Government during

contract performance.” A “Weakness” was defined as “a flaw in the proposal that

increases the risk of unsuccessful contract performance.” A “Significant Weakness” was

defined as “a flaw [in the proposal] that appreciably increases the risk of unsuccessful

contract performance.” “Meets the Standard” was defined as “an aspect of the proposal

which does not constitute a strength, weakness, or deficiency.” Each volume of the

proposal, Past Performance, Management/Technical, Security/Supply Chain Risk

Management, and Price, was required to “be written on a stand-alone basis, so that its

contents can be evaluated with no cross-referencing to other volumes.” The solicitation

further stated that “[i]nformation required for proposal evaluation that is not found in its

designated volume may result in unfavorable proposal evaluation.”

The Past Performance Factor evaluated offerors’ performance as either a prime

contractor or a subcontractor on complex IT-related efforts, which were completed within

the last three years or on-going at the time of the solicitation. An overall adjectival/color

rating was assigned for Past Performance based on the following rating table:

Color Rating Description

Blue Substantial Based on the offeror’s recent/relevant performance

Confidence record, the Government has a high expectation that the

offeror will successfully perform the required effort.

Purple Satisfactory Based on the offeror’s recent/relevant performance

Confidence record, the Government has a reasonable expectation

that the offeror will successfully perform the required

effort.

Green Limited Based on the offeror’s recent/relevant performance

Confidence record, the Government has a low expectation that the

offeror will successfully perform the required effort.

Red No Based on the offeror’s recent/relevant performance

Confidence record, the Government has no expectation that the

offeror will be able to successfully perform the required

effort.

White Unknown No recent/relevant performance record is available or the

Confidence offeror’s performance record is so sparse that no

(Neutral) meaningful confidence assessment rating can be

reasonably assigned.

(emphasis in original).

For the Management/Technical Factor, offerors were to be assigned an overall

adjectival/color rating based on two sub-factors, listed in descending order of importance:

(1) Management Experience and Expertise (Section M-3.2.1 of the solicitation) and (2)

Technical Experience and Expertise mapped to functional areas in the Statement of Work

(SOW) (Section M-3.2.2 of the solicitation). For the Management Experience and

Expertise Sub-factor, offerors were to provide “evidence of, and the Government will

evaluate, the depth and breadth of their team’s experience and details of their team’s

expertise on similar on-going and completed projects (as a prime or a subcontractor) with

respect to areas defined” in four sub-paragraphs. The first of these sub-paragraphs

(Section M-3.2.1.1 of the solicitation) stated, in relevant part:

1. IC Wide Transition and Integration Efforts:

The offeror shall provide evidence of their in-depth understanding and ability

to support current/projected IC wide transition and integration efforts (e.g.

Intelligence Community Information Technology Enterprise (IC ITE), Joint

Information Environment (JIE). . . ) and their ability to apply new and

emerging technologies/capabilities in the following demonstration areas.

***

e. Capacity planning approaches.

(first ellipsis in original). The second sub-paragraph under the Management Experience

and Expertise Sub-factor (Section M-3.2.1.2 of the solicitation) stated:

2. Achieving strategic outcomes:

a. Effecting positive change on a customer’s operating model and

systems by understanding their needs, forecasting industry and the

customer’s future, and then transitioning them into a better state

***

e. Provisioning services using a managed service delivery model,

quantitative and qualitative key performance indicators, established

service levels, quality assurance reviews, and performance

management corrections

Sub-factor 2 of the Management/Technical Factor, Technical Experience and

Expertise mapped to functional areas listed in the SOW, required offerors to:

provide evidence of the depth and breadth of their team’s experience and

details of their team’s expertise on on-going and completed projects (as a

prime or a subcontractor) with respect to all areas under SOW 3.2. The

seven functional areas (3 digit paragraphs) are comparatively equal to each

other in importance. The 4 digit subparagraphs within the functional areas

are comparatively equal to each other in importance.

The SOW was included as a part of the solicitation. Among the seven functional

areas under SOW 3.2, portions of two areas are relevant to the two protests currently

before the court: “ENTERPRISE COMPUTING, STORAGE, SHARE AND FIELD

SERVICES” (SOW 3.2.4) and “CYBERSECURITY AND INFORMATION ASSURANCE

SERVICES” (SOW 3.2.6). (capitalization in original). The ninth sub-paragraph of SOW

3.2.4 (SOW 3.2.4.9), titled, “Enterprise Operations, Event Monitoring and Management,

Performance Monitoring, and Analysis,” states:

The Contractor shall provide services to establish Enterprise operations,

event monitoring and management, performance monitoring, and analysis

services. These services provide centralized operations, monitoring,

management and analysis of enterprise applications, systems, and core

services as well as infrastructure assets to include file servers, email

servers, application servers, web servers, and storage from all enterprise

service providers 365 days a year, 24 hours per day, 7 days per week.

Services include, but are not limited to, monitoring established thresholds,

responding to warning and alert messages from the monitoring systems,

coordinating corrective action once thresholds are reached to prevent

issues from re-occurring, and providing initial troubleshooting to restore

services as quickly as possible. Other services include providing feeds to

the Enterprise watch and other government designated watch centers as

directed for situational awareness, responding to escalated incidents and

outages (e.g., from the service desk), taking corrective actions to resolve

the issue, escalating issues that cannot be resolved within the network

operations center, and maintaining/upgrading the supporting network

infrastructure and services.

The twelfth sub-paragraph of SOW 3.2.4 (SOW 3.2.4.12), titled “Enterprise Data Backup,

Disaster Recovery (DR), and Continuity of Operations (COOP) Operations and Support,”

states:

The Contractor shall provide support for planning, execution and

management of Enterprise data backup, disaster recovery (DR), and

continuity of operations (COOP) operations and support. Services include,

but are not limited to, ensuring Enterprise data backup, DR, and COOP

requirements are considered early in the application or systems’

development lifecycle; verifying Enterprise data backup, DR, and COOP

capabilities during installation; certifying Enterprise data backup, DR, and

COOP compliant architectures; creating and executing recurring Enterprise

data backup, DR, and COOP scenarios to test and verify continued

capabilities; and reporting lessons learned and process improvements.

Although the solicitation does not define the term “enterprise,” an April 27, 2015

Memorandum for Record (MFR), titled “Management/Technical Evaluation Process” and

prepared by the chairman of the Source Selection Evaluation Board (SSEB) responsible

for evaluating the elements of the Management/Technical Factor, states that, with regard

to SOW 3.2.4.8 through SOW 3.2.4.12, DIA evaluators “considered whether the Offeror

identified DIA Enterprise equivalent experience.” The MFR further states that:

For purposes of this evaluation the SSEB notes the current DIA Enterprise

is approximately:

 20,000 DIA / 45,000 DoDIIS [Department of Defense Intelligence

Information System] / 250,000 IC [Intelligence Community] user

base,

 25 security domains across Unclassified/Secret/Top Secret,

 5 major world-wide datacenter hubs, and

 15 regional data centers,

 550 customer sites[,]

 900,000 line items of equipment in hardware asset inventory.

The other functional area under SOW 3.2 relevant to protestor Constellation West,

SOW 3.2.6, states:

The Contractor shall provide diverse Cybersecurity and Information

Assurance (IA) services that enforce, comply with, and support the DoD and

IC cybersecurity and IA security directives, policies and procedures.

Cybersecurity and IA include a wide-range of technical, functional, and

managerial services necessary to ensure the secure operation of systems.

Cybersecurity and IA services include, but are not limited to, policy

development; security technical assessment; insider threat assessment;

security architecture development; security engineering; certification and

accreditation; security compliance (such as ICD 503 and ICD 705, DoDI

8500 IA controls and other relevant DoD and IC policies). IA training

management in accordance with DoDD 8570.1, audit, assessment, and

reporting services; Computer Network Defense Service Provider (CNDSP)

and inspection services IAW DoDD 8530.1, Chairman of the Joint Chief of

Staff Instructions (CJCSI) 6510.01E and CJCSM 6510.01; vulnerability

assessment and management; metrics consolidation and reporting (to

include the Federal Information Security Management Act (FISMA)

requirements); computer network defense (CND) operations, monitoring,

and analysis; cybersecurity and IT systems and tools administration and

maintenance; incident response, tracking, and resolution; cross-domain

solutions support; inter-agency coordination; and PKI [Public Key

Infrastructure] procedures and guidance. Specific cybersecurity and IA

requirements and services will be identified in the individual task orders.

The April 27, 2015 MFR, titled “Management/Technical Evaluation Process,” noted that

“[f]or purposes of evaluations, the SOW element 3.2.6 was broken up into components.”

According to the April 27, 2015 MFR, those components were:

 SOW 3.2.6.1 Policy Development; Security compliance (policies

ICD 503/705, DOD 8500); Certification and accreditation

 SOW 3.2.6.2 Security technical assessment; Insider threat

assessment

 SOW 3.2.6.3 Security architecture development; Security

engineering

 SOW 3.2.6.4 IA training management (DoDD 8570.1

audit/assessment/reporting)

 SOW 3.2.6.5 Computer Network Defense Service Provider

(CNDSP) & inspection services (DoD 8530.1 (CJCSI) 6510.01E,

and CJCSM 6510.01)

 SOW 3.2.6.6 Vulnerability assessment and management; Metrics

consolidation and reporting (FISMA) [Federal Information Security

Management Act]

 SOW 3.2.6.7 Computer Network Defense (CND) operations,

monitoring, analysis

 SOW 3.2.6.8 Cybersecurity and IT systems and tools admin and

maintenance

 SOW 3.2.6.9 Incident response/tracking/resolution; inter-agency

coordination

 SOW 3.2.6.10 PKI procedures and guidance

 SOW 3.2.6.11 Cross-domain solutions support

The Management/Technical Factor was to be assigned an overall rating according

to a different rating table than the one used for the Past Performance Factor. The rating

table, which was contained in the solicitation at Section M-3.2.3, was as follows:

Color Rating Description

Proposal meets requirements and indicates an exceptional

approach and understanding of the requirements. Strengths

Blue Outstanding

far outweigh any weaknesses. Risk of unsuccessful

performance is very low.

Proposal meets requirements and indicates a thorough

approach and understanding of the requirements. Proposal

Purple Good

contains strengths which outweigh any weaknesses. Risk of

unsuccessful performance is low.

Proposal meets requirements and indicates an adequate

approach and understanding of the requirements. Strengths

Green Acceptable and weaknesses are offsetting or will have little or no

impact on contract performance. Risk of unsuccessful

performance is no worse than moderate.

Proposal does not clearly meet requirements and has not

demonstrated an adequate approach and understanding of

Yellow Marginal the requirements. The proposal has one or more

weaknesses which are not offset by strengths. Risk of

unsuccessful performance is high.

Proposal does not meet requirements and contains one or

Red Unacceptable

more deficiencies. Proposal is unawardable.

(emphasis in original).

With respect to price, proposals were to be assigned a single total price based on

ceiling labor rates offerors specified for various labor categories offerors filled in a

spreadsheet provided with the solicitation. The spreadsheet required offerors to provide

ceiling rates for various labor categories based on the level of skill required, from “Simple”

(Level 0) to “Exceptionally Complex, Inter-Discipline, Inter-Organizational” (Level 4), the

year of performance, i.e., whether performance occurs during the base year or in one of

the four option years in the E-SITE contract, and the geographic location of performance.

The spreadsheet identified seven geographic locations within the United States, referred

to as a Groups 1 through 7, and six overseas locations, Germany, the United Kingdom,

Iraq and Afghanistan, Seoul, South Korea, Qatar, and Tokyo, Japan. The spreadsheet

used shading to identify specific cells for which binding ceiling prices were not required.

DIA’s goals for this pricing structure were described in the E-SITE “Acquisition Plan,”

dated June 17, 2013, which stated:

As the E-SITE contract will provide ceiling labor rates for many of the

common IT labor categories, price will be a consideration, but will not be the

most important factor. The capability or performance goals will be of greater

importance than price during the source selection. The price competition

will continue at the task order level when the E-SITE prime contractors will

have the opportunity to revise their labor rates downward in the actual task

order proposals.

***

E-SITE will introduce significant competition at the task order level, thereby

driving competitive pricing. In addition, E-SITE will have labor rates

negotiated up front to ensure competitive pricing over the course of the

contract.

The solicitation described the process of how a proposal’s total price would be arrived at

and how it would be evaluated, as follows:

M-6 PRICE

A. The proposed ceiling labor rates (See Section B) will be evaluated for

their completeness and reasonableness in accordance with FAR 15.404.

Price realism or cost realism of proposed prices will not be evaluated.

B. All option year pricing will be considered in the evaluation.

C. Price analysis - The offeror’s proposed ceiling labor rates will be

multiplied against a predetermined and undisclosed quantity of hours

determined by the Government for each labor category to arrive at a total

evaluated price. This evaluation includes the base year and all option years

and a total sum will be calculated.

NOTE: The Government will NOT disclose the “predetermined and

undisclosed quantity of hours”.

D. The predetermined and undisclosed quantity of hours used in the price

analysis is a representative labor mix of historical work performed on the

SITE contract.

E. The total price will be used in the Best Value Trade-Off Analysis

supporting the final Source Selection.

(emphasis and capitalization in original).

The instructions offerors were to follow in submitting the price portion of their

proposals were contained in Section L of the solicitation, which stated:

L-4.5 Volume V – Price

A. The offeror must ensure that all aspects of the Section M, Price pertaining

to the solicitation are addressed. The offeror’s price proposal must adhere

to the provisions of this Volume.

B. Offerors must submit the Price Volume as described herein. Provide only

the information requested. Proper presentation, organization, and clarity, as

well as adequate supporting documentation, must be provided to facilitate

Government evaluation of the proposal.

C. The offeror’s proposed price will be subject to evaluation for

reasonableness and completeness. Information in the Price Volume that

pertains to other volumes will not be evaluated.

D. The Government will use Microsoft Office 2007 Excel for evaluation and

analysis of the pricing section of the Price Volume.

E. The Price Volume must include the ceiling rates for the base period and

all proposed options per the spreadsheet found in Section J, Attachment 2.

Ceiling rates apply to both prime and sub-contractor labor. Minor rounding

errors are acceptable. Offerors should ensure the spreadsheet is complete

(ceiling prices), but should not alter the basic format of this spreadsheet

(columns, rows, font, etc.). The instructions for information to be captured

are contained within the spreadsheet itself. All proposed ceiling rates shall

be for labor support at a Government location only.

(emphasis in original). DIA also incorporated the following “Question & Answer” related

to pricing into the solicitation via an April 16, 2014 amendment:

[Question:] Is offeror required to provide the ceiling rates for all group [sic]

for all labor categories or just for the group within its physical location and

labor categories available?

[Answer:] L-4.5 C answers your question. We require all pricing for

completeness.

The solicitation stated that DIA “intend[ed] to award the contract without

discussions with offerors,” but that “[i]n accordance with FAR 15.306(a), Offerors may be

given the opportunity to clarify certain aspects of their proposal or to resolve minor or

clerical errors.” The solicitation indicated that proposals would be due in two deliveries,

with the volumes discussing the Past Performance and Security/Supply Chain Risk

Management factors due April 17 or 18, 2014 and the volumes discussing the

Management/Technical factor and price due May 15 or 16, 2014.

The process by which proposals were to be evaluated and awardees chosen was

laid out in a revised Source Selection Plan, dated January 30, 2015. The revised Source

Selection Plan established separate SSEBs for each of the evaluation factors. Proposals

were to be initially evaluated by the individual members of each SSEB based on the

evaluation criteria for their factor. Each SSEB was to then agree to one group evaluation

report for each proposal based on the consensus of the findings of the individual

evaluators and assign a rating for their evaluation factor. The SSEBs’ evaluation reports

were to be presented to the SSAC, which would review the results to ensure the

evaluation process followed the evaluation criteria and prepare a comparative analysis

and recommendations to the SSA. The SSA would then make the best-value decision

and document the rationale for the decision in a Source Selection Decision Document.

Constellation West

Protestor Constellation West timely submitted the first set of volumes of its

proposal on April 18, 2014, and the second set of volumes on May 16, 2014. DIA, acting

through the SSEBs, assigned Constellation West a Satisfactory Confidence (purple)

rating for the Past Performance Factor, a Marginal (yellow) rating for the

Management/Technical Factor, and a Pass (green) rating for the Security/ Supply Chain

Risk Management Factor. Constellation West’s total evaluated price was $[redacted]. The

chairman of the Management/Technical SSEB summarized the SSEB’s reasons for

assigning a Marginal (yellow) grade for the Management/Technical portion of

Constellation West’s proposal, as well those of several other offerors’, in an April 27, 2015

MFR titled “Past Performance Evaluations and Management/Technical Evaluation Rating

Differences.” The MFR states:

The Management/Technical Yellow rating was because the Offerors’

proposals:

i. lacked detailed depth and breadth of experience for completed

and/or on-going projects for some element components;

ii. lacked detailed experience on DIA Enterprise scale projects for some

element components; and

iii. lacked an approach and detailed experience for completed and/or

on-going projects for some element components.

DIA’s rationale for rejecting Constellation West’s proposal was laid out in the

SSAC’s July 15, 2015 revised award recommendation report, on which the SSA based

his award decisions. According to the SSAC, although Constellation West’s Past

Performance Factor was “comparative to a majority of those Offerors recommended for

award” and its total evaluated price was “competitive” and “lower than all but eleven (11)

of the proposals recommended for award,” Constellation West’s proposal did not

represent the best value to the government “due to its significant and other weaknesses”

under the Management/Technical Factor. According to the SSAC:

Constellation West’s Management/Technical proposal is inferior to the

proposals of all the Offerors recommended for award. Constellation West’[s]

Management/Technical proposal does not demonstrate adequate

experience and expertise to meet the E-SITE SOW requirements and the

risk of unsuccessful performance is too high to warrant award. In coming to

its award recommendations the SSAC considered that the

Management/Technical Factor was the most important of all Non-Price

Factors. Under Sub-Factor 1, the most important of the two Sub-factors

within the Management/Technical Factor, the SSAC concludes that the two

strengths identified for Constellation West with regard to management of

personnel is [sic] clearly outweighed by the five weaknesses relating to IC

Wide Transition and Integration Efforts, Achieving Strategic Outcomes, and

Management of Transitions. Furthermore under Sub-Factor 2, the SSAC

concludes that thirteen strengths (there were no significant strengths)

identified by the SSEP2 are outweighed by the six significant and twenty-

one other weaknesses. The SSAC carefully read each of the strengths and

weakness identified by the SSEP and has concluded that the risks of

unsuccessful performance as depicted by the findings under

Management/Technical Factor are too high to warrant award

notwithstanding the findings under the Past Performance Factor and lower

price as compared to the majority of the Offerors recommended for award.

The SSEB for the Management/Technical Factor assigned Constellation West’s

proposal no significant strengths, fifteen strengths, twenty six weaknesses, six significant

weaknesses, and twenty nine meets the standards. As noted in the SSAC’s report, two

strengths, five weaknesses and eleven meets the standards were assigned under

Management/Technical Sub-factor 1, Management Experience and Expertise, and

thirteen strengths, six significant weaknesses, twenty one weaknesses, and eighteen

meets the standards under Management/Technical Sub-factor 2, Technical Experience

and Expertise mapped to functional areas listed in the SOW. Constellation West now

challenges the six significant weaknesses and nine of the weaknesses assigned under

the Management/Technical Factor: two weaknesses assigned under elements of

Sub-factor 1, M-3.2.1.1e and M-3.2.1.2e; and six significant weaknesses and seven

weaknesses assigned under elements of Sub-factor 2, SOW 3.2.4.9, SOW 3.2.4.12, and

SOW 3.2.6.

The SSEB assigned one weakness based on Section M-3.2.1.1e, on the grounds

that “[t]he Offeror’s proposal lacks detailed information on a number of components within

capacity planning approaches. The Offeror’s proposal lacks description of capacity

planning that includes monitoring trends of capacity usage and projecting capacity

requirements to stay ahead of demand.”

The SSEB assigned a second weakness based on Section M-3.2.1.2e, but did so

using language contained in Section M-3.2.1.2a of the solicitation, an area for which it

2The SSAC’s report refers to the Source Selection Evaluation Boards (SSEBs) as Source

Selection Evaluation Panels (SSEPs).

had assigned Constellation West a meets the standard. Specifically, the SSEB stated in

its evaluation that:

The Offeror’s proposal lacks detailed information on a number of

components within this area. There is a distinct lack of information regarding

the understanding of needs forecasting of industry and customer’s future

needs, and how to transition the customer to a better state.

The SSEB assigned two weaknesses under SOW 3.2.4.9 and SOW 3.2.4.12

based on Constellation West’s failure to provide evidence of relevant “enterprise” level

experience. With respect to SOW 3.2.4.9, the SSEB stated in its evaluation that:

The Offeror’s proposal describes experience performing operations,

monitoring, and analysis of something less than enterprise level support.

The Offeror’s proposal, page 75, cites: “. . . [redacted] ([redacted]%) of TCW

[Team Constellation West] [personnel] has enterprise operations, event and

performance monitoring, event management, and analysis experience for

the IC-DOD enterprise. . .”.

The Offeror’s proposal, pages 75-77, cites: “. . . TCW has demonstrated its

approach to enterprise operations, event monitoring and management,

performance monitoring, and analysis on the Advanced Server

Management Program for IRS [Internal Revenue Service]. . . TCW prime

contractor Constellation West provided continuous, 24x7x365 monitoring

and management of customer operating systems, incident management

and escalation including IT security coordination and execution of

maintenance tasks in the customer’s infrastructure utilizing ITIL® change

management processes . . . TCW prime contractor Constellation West

provided remote management of 3,000+ servers using BMC products for

event management and incident management via warning and alert

notifications . . . TCW performed monitoring, troubleshooting, and patch

management support for MS Operating System (OS) server performance

and VMware ESX Host platforms . . . TCW provided 24/7/365 enterprise

support for the IRS. When personnel are not on-site, they are called and

within 1 hour of notification begin incident response . . . TCW prime

contractor Constellation West delivered multiple escalation options,

including when a Level 2 support person identified that a change to a

configuration item was necessary to resolve the incident. Additional

escalation levels include ‘under investigation’ when an incident has not

been resolved within 48hrs or SLA [Service Level Agreement] time

frame. . .”.

(omissions and second alteration in original). With respect to SOW 3.2.4.12, the SSEB

stated in its evaluation that:

The Offeror’s proposal describes experience implementing data backup,

disaster recovery (DR), and continuity of operations plan (COOP) at less

than an enterprise in accordance with SOW 3.2.4.12.

The Offeror’s proposal, page 80, cites: “. . . [redacted] ([redacted]%) of TCW

companies provide COOP, DR, operations for federal customers.

Constellation West outlined the COOP/DR plan for USSTRATCOM [United

States Strategic Command] and provides COOP/DR support to

USSTRATCOM, USAF [United States Air Force], VA [Department of

Veterans Affairs], EPA [Environmental Protection Agency], and USDA

[United States Department of Agriculture]. IT Contingency Planning is an

element in a larger Continuity Planning Program that includes Contingency

Planning and DR, BIA [Business Impact Analysis] and Testing of Consulting

in COOP, DR, and Contingency Plans. TCW has extensive experience

supporting federal Continuity Programs, including developing and testing

Contingency and DR Plans and integrating them into a synergistic

framework with other contingency capabilities to protect agencies from

natural, technological, and human risks. Given the criticality of IC missions,

TCW understands the importance of ensuring that DIA can effectively

recover and restore its IT systems to full operational status if they are

disrupted for any reason using standardized and comprehensive DR/COOP

policies and guidelines consistent with industry best practices. Integrating

backup DR/COOP planning into the SDLC [Software Development Life

Cycle] process reduces risks and costs by assuring that these requirements

are built into the solution from the start. TCW has demonstrated support for

planning, execution and management of enterprise data backup, DR, and

COOP operations and support services . . .”.

The Offeror’s proposal, page 81, cites: “. . . DHS [Department of Homeland

Security] – Constellation West led the initial SIEM fielding operations and

support at US-CERT [United States Computer Emergency Readiness

Team] and NSD [National Security Deployment (division)]. Product

selection for DR/COOP was decided after understanding the requirements,

capabilities and limitations of the end users. Subsequent configuration

allowed the key performance parameters and SLAs to be met for the

collection, storage and reviewing of events in the unlikely event of a

manager shutdown or loss of primary process location . . . DHS/DoD – For

US-CERT and DARPA [Defense Advanced Research Projects Agency]

Constellation West utilized VMWARE’s snapshots and VMOTION for both

DR and Continuity of Operations. All functional testing took place in the

development network on resources dedicated to development and staging

prior to activation into operations . . . DHS/DoD – At USSTRATCOM, AFWA

[Air Force Weather Agency], USDA, and EPA, Constellation West verified

DR/COOP and backup functions in the operating environment were

accomplished as part of the monthly maintenance cycle and integrated into

other periodic requirements to minimally disrupt operations. If, during daily

operations a system failed, we would restore files from backup. Care was

taken to restore resources while any issues or discrepancies documented

into the knowledge base for facilitating lessons learned . . . DHS/DoD –

TCW developed lessons learned for exercises and operational activation of

backup/recovery and DR/COOP processes. Our knowledge gained from

documenting successes and failures is presented in the knowledge base

and incident/ticket management system . . .”.

(omissions in original).

The six significant weaknesses and five of the remaining weaknesses assigned by

the SSEB were based on the various components of SOW 3.2.6. The SSEB assigned a

significant weakness based on what it referred to in its evaluation as “SOW 3.2.6.2,”

stating in the evaluation that: “The Offeror’s proposal lacks details on the Offeror’s

approach to security technical assessment and insider threat assessment, and lacks

relevant details on experience for any past, or current projects.” The SSEB assigned a

second significant weakness based on what it referred to in its evaluation as “SOW

3.2.6.5,” stating in the evaluation that: “The Offeror’s proposal lacks significant detail and

provides no information on an approach to or experience in providing Computer Network

Defense (CDN) Service Provider (SP) & inspection services for on-going or completed

projects.” The SSEB assigned a third significant weakness based on what it referred to in

its evaluation as “SOW 3.2.6.6,” stating in the evaluation that: “The Offeror’s proposal

lacks significant detail and provides no information on an approach to or experience in

providing vulnerability assessment, metrics consolidation and reporting activities for on-

going or completed projects.” The SSEB assigned a fourth significant weakness based

on what it referred to in its evaluation as “SOW 3.2.6.8,” stating in the evaluation that:

“The Offeror’s proposal lacks significant detail and provides no information on an

approach to or experience in providing Information Assurance tools administration and

maintenance for on-going or completed projects.” The SSEB assigned a fifth significant

weakness based on what it referred to in its evaluation as “SOW 3.2.6.10,” stating in the

evaluation that: “The Offeror’s proposal lacks detailed information within, or does not

seem to address PKI procedures and guidance.” The SSEB assigned a sixth significant

weakness based on what it referred to in its evaluation as “SOW 3.2.6.11,” stating in the

evaluation that: “The Offeror’s proposal lacks details on the Offeror’s approach to IA cross

domain solutions and support, and lacks relevant details on any experience for a past or

current project.”

The SSEB assigned the first weakness related to SOW 3.2.6 on what it referred to

in its evaluation as “SOW 3.2.6.1,” stating in the evaluation that:

The Offeror’s proposal describes an approach but lacks detail on

experience providing cybersecurity information assurance (IA) policy

development, security compliance and certification and accreditation (C&A)

activities for on-going or completed projects.

The Offeror’s proposal, page 96, cites: “. . . Our IT Security Policy Team will

focus on the development, maintenance and improvement of the IT Security

Policy for DIA that is aligned with DoD Directives, ICD, CJCSI, FISMA and

DIA policy . . .”.

(omissions in original). The SSEB assigned a second weakness related to SOW 3.2.6

based on what it referred to in its evaluation as “SOW 3.2.6.3,” stating in the evaluation

that:

The Offeror’s proposal details the Offeror’s approach to security

architecture development and engineering but lacks relevant details on

experience for any past, or current projects.

The Offeror’s proposal, page 96, cites: “. . . Our Security Architecture Team

will develop, maintain and improve a TRM [Technical Reference Model] that

assess [sic] products, technologies and standards for use within the

enterprise. The Team will analyze products, technologies and standards

that are proposed for use within the Enterprise. The Team then documents

the results of the analysis, and provides a recommendation for addition or

exclusion to the TRM, and a rational [sic] for the recommendation. . .”.

The Offeror’s proposal, page 96, cites: “. . . works closely with the Security

Architecture Team to develop common deployment standards and

methodologies for products and technologies used within the Enterprise.

The Team develops, maintains, and improves upon specific product

technology and standard implementation guides that illustrate how they are

to be configured and used within the Enterprise to ensure security strategy

alignment and standardization. . .”.

(omissions in original). The SSEB assigned a third weakness related to SOW 3.2.6 based

on what it referred to in its evaluation as “SOW 3.2.6.4,” stating in the evaluation that:

The Offeror’s proposal lacks description of their depth and breadth of

experience and details of their expertise on similar on-going and completed

projects as defined in M-3.2.2 Sub-factor 2: Technical Experience and

Expertise mapped to functional areas listed in SOW.

The Offeror’s proposal, pages 96-97, cites: “. . . The Information Assurance

Training Team develops, maintains and improves user IT Security

Awareness and role based training for personnel with IT Security related

responsibilities. The Team also provides reporting for annual training

requirements . . .”.

(omissions in original). The SSEB assigned a fourth weakness related to SOW 3.2.6

based on what it referred to in its evaluation as “SOW 3.2.6.7,” stating in the evaluation

that:

The Offeror’s proposal describes an approach but lacks detail on

experience providing Computer Network Defense (CND) operations,

monitoring and analysis for on-going or completed projects.

The Offeror’s proposal, page 16, cites: “. . . At USSTRATCOM,

USTRANSCOM [United States Transportation Command], AFWA. [sic]

MCTSSA [Marine Corps Tactical Systems Support Activity], IRS, NITC

[National Information Technology Center], EPA, and VA we provide a wide

range of cyber security to include policy, documentation, information

assurance and CND. . . ”.

(omissions in original). The SSEB assigned a fifth weakness related to SOW 3.2.6 based

on what it referred to in its evaluation as “SOW 3.2.6.9,” stating in the evaluation that:

The Offeror’s proposal lacks description of their depth and breadth of

experience and details of their expertise on similar on-going and completed

projects as defined in M-3.2.2 Sub-factor 2: Technical Experience and

Expertise mapped to functional areas listed in SOW.

The Offeror’s proposal, page 97, cites: “. . . The SOC [Security Operations

Center] conducts security monitoring and analysis services for the

enterprise. The SOC monitors the SEIM and Antivirus tools 24/7/356 [sic]

and records security events. When events are recorded the SOC conducts

preliminary investigations of those events to determine if the event is an

actual security issue. When an issue does arise the SOC escalates the

incident to the Incident response team for a formal and thorough

investigation. When false positives are found the SOC works with the

Support Teams and ISO’s [International Organization for Standardization]

to ensure they are remediated. The SOC will also utilize predictive analysis

tools to assist with the investigation and escalation of events security events

[sic] in a proactive fashion. The Incident Response (IR) Team conducts

formal investigation of security events and incidents that have been

escalated by the SOC. The IR Team record, [sic] tracks, contains,

remediates and reports all incidents. The IR Team facilitates and

coordinates intra and intra [sic] agency teams as necessary until incident

closure . . .”.

(omissions in original).

On July 10, 2015, DIA informed Constellation West that it was not selected for an

award. In its unsuccessful offeror notification later sent to Constellation West on July 17,

2015, DIA stated that Constellation West’s proposal was not selected because “it did not

represent the best value to the Government based on a thorough review of your proposal

against the stated criteria in Section M of the RFP.”

On August 14, 2015, Constellation West filed a bid protest complaint in this court

in case number 15-876C. In its complaint, Constellation West alleges that DIA’s

evaluation of its proposal was arbitrary, capricious, and contrary to law because it differed

significantly from the process disclosed in the solicitation. In particular, Constellation West

alleges that it was assigned weaknesses under M-3.2.1.1e, M-3.2.1.2e, SOW 3.2.4.9,

SOW 3.2.4.12, and SOW 3.2.6 based on criteria not stated in the solicitation.

Constellation West alleges that DIA’s actions have substantially prejudiced it because

had DIA not acted improperly Constellation West would have been awarded an E-SITE

contract. Constellation West’s requests include that the court enjoin DIA from proceeding

with performance under the E-SITE contract and that the court order DIA to re-evaluate

its proposal in accordance with the stated criteria in the solicitation.

Sev1Tech

Like Constellation West, protestor Sev1Tech timely submitted the first set of

volumes of its proposal on April 18, 2014, and the second set of volumes on May 16,

2014. DIA assigned Sev1Tech’s proposal a Substantial Confidence (blue) rating for the

Past Performance Factor, a Good (purple) for the Management/Technical Factor, and a

Pass (green) for the Security/Supply Chain Risk Management Factor. With regard to

price, however, DIA concluded that because the pricing spreadsheet Sev1Tech submitted

with its proposal was incomplete, omitting labor rates for [redacted] of the 2,890 cells

contained in the spreadsheet, and because DIA “was not able to calculate projected rates

for these labor categories from the face of the proposal,” Sev1Tech’s total evaluated price

could not be determined.

The [redacted] labor rates Sev1Tech omitted from the proposal were for option

year four in skill levels 1, 2, and 3 of the Systems Architect labor category in the United

States Group 5 location. In a portion of the pricing volume of its proposal titled

“Escalation,” Sev1Tech, however, indicated the following:

The BLS Employment Cost Index Table 5. COMPENSATION (NOT

SEASONALLY ADJUSTED): Employment Cost Index for total

compensation, for private industry workers, by occupational group and

industry for the 12 months ending March 2014 reflects [redacted]% for the

Professional and Related Occupational group. All expectations and

predictions show the economy improving over the next several years. By

year five of the contract, the economy should be supporting annual

employment cost index numbers of [redacted]%. These numbers allow us

to maintain annual salary increases for our existing staff, while keeping the

labor escalation at [redacted]% per year over contract life.

(capitalization in original).

An April 27, 2015 MFR titled “Contracting Officer’s Record of Decisions to Clarify

Incomplete Price Volumes for the Enhanced Solutions for the Information Technology

Enterprise (E-SITE) solicitation” prepared by the contracting officer, noted that eight price

proposals, including Sev1Tech’s, were missing labor ceiling rates.3 For the other seven

offerors, the MFR stated:

3This April 27, 2015 MFR is distinct from the two other April 27, 2015 MFRs discussed

above, titled “Management/Technical Evaluation Process” and “Past Performance

Evaluations and Management/Technical Evaluation Rating Differences.”

the Government could ascertain the Offerors’ intended prices by calculating

the intended escalation rates to the hundredth of the percentage. The

Government did take into account rounding errors in the calculations. The

intended prices were apparent from the face of the proposal. Clarifications

were conducted with these Offerors.

The MFR went on to state:

3. The Government was unable to ascertain the intended unit ceiling prices

for the Offeror Sev1Tech.

4. The Government attempted to estimate the missing unit ceiling prices for

the Offeror Sev1Tech using three different estimation methods. All three

methods were unsuccessful.

a. The price proposal summary was researched, and the Offeror stated

that and [sic] escalation of [redacted]% was chosen. When the

Government attempted to verify this for the Systems Architect labor

category, escalation rates varied from [redacted]% to [redacted]%.

b. Next, five random overseas labor categories and five CONUS

[Continental United States] labor categories were selected for

analysis from Sev1Tech’s Price spreadsheet. It was found, with

consideration for minor rounding errors being acceptable, that the

majority of the labor categories randomly sampled yielded an

approximate [redacted]% escalation as proposed. However, there

were numerous anomalies found within multiple labor categories and

at least one group/location within each of those labor categories that

deviated from the proposed [redacted]% escalation. There was no

discernable pattern among the randomly sampled labor rates for the

Government to determine exactly what the escalation for all

incomplete rates was intended to be.

c. Lastly, escalation rates for all Group 5 labor category ceiling rates

were estimated to determine if there was a discernable pattern

among those rates. It was again found that the majority of rates in

the Group 5 location adhered to the proposed [redacted]% escalation

but there were nine (9) instances of anomalies within the Group 5

escalation rates found. The escalation rates determined to be

anomalies ranged from [redacted]% to [redacted]%. There was no

discernable pattern among the Group 5 escalation rates for the

Government to determine exactly what the escalation for all the

incomplete rates was intended to be.

5. Based on the inconsistencies in escalation rates among all three

methods, the Government determined that Sev1Tech’s intended price could

not be ascertained from the face of the proposal. The Contracting Officer

determined this to be a material deficiency and did not conduct clarifications

with Sev1Tech.

DIA’s attempts discussed in the April 27, 2015 MFR to determine what Sev1Tech

intended to propose for the missing labor rates were documented in an earlier MFR, dated

April 23, 2015 also prepared by the contracting officer, titled “Contracting Officer’s Record

of Incomplete Price Volume for the Enhanced Solutions for the Information Technology

Enterprise (E-SITE) solicitation, RFP number HHM402-14-R-0002, for Offeror

Sev1Tech.” The April 23, 2015 MFR begins by noting the [redacted] missing labor rates

in Sev1Tech’s pricing spreadsheet. The MFR also notes Sev1Tech’s statement in the

price volume of its proposal that it would keep “labor escalation at [redacted]% per year

over contract life.” The MFR then states that DIA first attempted to estimate Sev1Tech’s

[redacted] missing labor rates using the following table, reproduced as it appeared in the

MFR:

[Redacted]

The MFR further states that DIA next randomly selected five labor categories from

overseas locations and five from United States locations from Sev1Tech’s pricing

spreadsheet to perform a similar analysis. According to the April 23, 2015 MFR:

It was found, with consideration for minor rounding errors being acceptable,

that the majority of the labor categories randomly sampled yielded an

approximate [redacted]% escalation as proposed. However, there were

numerous anomalies found within multiple labor categories and at least one

group/location within each of those labor categories that greatly deviated

from the proposed [redacted]% escalation. There was no discernable

pattern among the randomly sampled labor rates for the Government to

determine exactly what the escalation for the incomplete rates should be[.]

For example, an attachment to the MFR shows that for the Cybersecurity Officer labor

category in the United States Group 4 location, five of the fifteen possible escalation rates

deviated greatly from [redacted]%, with a low of [redacted]% and a high of [redacted]%.

DIA then examined escalation rates for all labor categories in the United States Group 5

location. According to the MFR,

It was again found that the majority of rates in the Group 5 location adhered

to the proposed [redacted]% escalation but there were nine (9) instances of

anomalies within the Group 5 escalation rates found. The escalation rates

determined to be anomalies ranged from [redacted]% to [redacted]%. There

was no discernable pattern among the Group 5 escalation rates for the

Government to determine exactly what the escalation for the incomplete

rates was intended to be.

“Based on the inconsistencies in escalation rates among all three methods,” DIA

concluded that Sev1Tech’s intended labor rates for the missing cells could not be

estimated “from the face of the proposal.” The MFR further stated: “It is also the

Government’s opinion that this is a material deficiency and is not a minor or clerical error

that can be resolved during clarification since the intended offer is not apparent on the

face of the proposal.” The MFR concluded by stating that because the missing rates were

a material failure “the Contracting Officer has determined that the Sev1Tech Price

Proposal as [sic] incomplete and is hereby excluded from further competition for an E-

SITE IDIQ award.”

On July 10, 2015, DIA informed Sev1Tech that it had not been selected for an

award. In a July 17, 2015 letter to Sev1Tech, DIA stated that Sev1Tech’s proposal was

not eligible for an award based on the following deficiency:

Upon evaluation of the Sev1Tech submitted Price proposal, Volume V

[Price], it was discovered that a total of [redacted] individual labor category

rates were not proposed. Cells (US Price Groups tab) H642:H644 were

displayed as blank. Pursuant to the solicitation, offerors were required to

propose binding ceiling rates for these cells. The Government attempted to

discern the Offeror’s intended price but was ultimately unable to determine

the Offeror’s intended price from the face of the proposal. The price

proposal was assigned a deficiency as the failure to propose binding ceiling

prices for the subject labor categories constitutes a material failure to meet

a Government requirement.

As noted in the April 27, 2015 MFR, seven offerors in addition to Sev1Tech

submitted proposals with incomplete pricing spreadsheets: AiNET Corporation (AiNET),

DKW Communications, Inc. (DKW), Jupiter Systems Alliance (Jupiter), Progressive

Technologies (Progressive), Responsive Innovative Information Technology Enterprise

(RiiTE), Sotera Defense Solutions, Inc. (Sotera), and Syneren Technologies Corporation

(Syneren). As in the case of Sev1Tech, the contracting officer prepared MFRs for each

of the seven other offerors documenting DIA’s attempts to determine the missing labor

rates. In each of the MFRs, DIA applied the same three methods as were applied to

Sev1Tech’s proposal to try to establish if the offerors’ intended rates could be determined

“from the face of the proposal.” First, DIA examined the escalation rates for the non-

missing items in the specific labor category and geographic group in which the missing

cells were found. Next, it looked at the escalation rates for a random sample of five United

States and five international labor categories. Finally it looked at escalation rates for all

labor categories in the same geographic location as the missing cells. If the price portion

of the offeror’s proposal mentioned an escalation rate, DIA also looked to see if the

escalation rates in each of these methods matched the stated rate. If the offeror’s

intended prices for the missing cells could be determined through DIA’s analysis, DIA

proceeded to email the offeror asking for clarification. The clarification consisted of only

two questions:

Clarification 1. The Government found [ ] individual labor category rate[s]

[was/were] not proposed.[4] [Describes missing rates]

Question: Did you intend to provide pricing for [this/these] cell[s]?

YES or NO

(Note: If the response is NO, then a response is not required to be

provided for Clarification 2.)

Clarification 2. Based on the information provided in your proposal, the

Government believes you intended to propose [an] escalation rate[s] of

[redacted]%.[5] Using [this/these] escalation rate[s], it is apparent to the

Government that you intended to propose the rates identified below.

Question: Is the pricing that you intended to propose correctly listed

in the table below? YES or NO

(emphasis and capitalization in original). The clarification questions allowed only for a yes

or no answer. These questions were followed by a table showing the relevant labor

categories with the missing rates filled in using the DIA’s proposed escalation rates.

4This sentence in Clarification 1 was phrased slightly differently in the clarification request

sent to AiNET, which stated: “The Government found [redacted] cells G59:G62 in the

overseas tab of the price spreadsheet to be blank.”

5This sentence in Clarification 2 was phrased slightly differently in the clarification request

sent to AiNET, which stated: “Based on the information provided in your proposal, the

Government believes you intended to propose an escalation rate of [redacted]% for the

Seoul Korea location.”

For the seven proposals with missing pricing cells, other than Sev1Tech, DIA

ultimately determined that it could ascertain the offerors’ intended labor rates by

calculating the intended escalation rates to the hundredth of the percentage, and that the

intended labor rates, thus, were apparent from the faces of the proposals. Therefore,

unlike for Sev1Tech, DIA requested clarifications from the other seven offerors. All seven

replied yes to both of the clarification questions. Two of the seven offerors, DKW and

RiiTE, were ultimately awarded an E-SITE contract.

The spreadsheet submitted with AiNET’s proposal included [redacted] blank cells

for the Installation Specialist labor category in the Seoul, South Korea location. In the

MFR prepared for AiNET’s proposal, DIA first noted that AiNET’s price proposal made no

mention of a proposed escalation rate. DIA then found that the escalation rates for all of

the non-missing cells in the Installation Specialist category in Seoul were [redacted]%.

Examining five random United States and five random overseas categories, DIA found

that the “large majority” of the overseas rates had escalation rates of [redacted]%, but

that there were some rates in “particular labor categories and locations that did not adhere

to the [redacted]% escalation.” Finally, DIA found that all escalation rates for all non-

missing cells for labor categories in Seoul were [redacted]%. Based on these findings,

DIA requested a clarification from AiNET as to whether they intended to utilize a

[redacted]% escalation rate in their missing cells.

The spreadsheet submitted with DKW’s proposal included [redacted] blank cells,

[redacted] for the Systems Engineer labor category in the United States Group 4 location,

[redacted] for the Systems Architect labor category in the United States Group 5 location,

and [redacted] for the Service Desk Specialist labor category in the Germany location. In

the MFR prepared for DKW’s proposal, DIA first noted that DKW’s price proposal stated

that it used an escalation rate of [redacted]%. DIA then found that the escalation rates for

all of the non-missing cells in the Systems Engineer and Systems Architect categories in

the United States Groups 4 and 5 locations were [redacted]% and that those for the

Service Desk Specialist category in Germany ranged from [redacted]% to [redacted]%

with an average escalation rate of [redacted]%. Examining five random United States and

five random overseas locations, DIA found a [redacted]% escalation rate was used for

each location. Finally, DIA found that the escalation rates for all non-missing cells in the

United States Group 4, United States Group 5, and Germany locations were [redacted]%.

Based on these findings, DIA requested a clarification from DKW as to whether they

intended to utilize a [redacted]% escalation rate in their missing cells.

The spreadsheet submitted with Jupiter’s proposal included [redacted] blank cells

for the Satellite Field Service Technician labor category in the United States Group 2

location. In the MFR prepared for Jupiter’s proposal, DIA first found that the language in

Jupiter’s price proposal was “too vague to determine if the Offeror intended to complete

all unit pricing.” DIA then found that the only non-missing cells for the Satellite Field

Service Technician labor category in the United States Group 2 location were for the base

year and option year one and that for each of these cells the escalation rate was

[redacted]%. Examining five random United States and five random overseas labor

categories, DIA found that every category yielded the same escalation rate pattern of

[redacted]% escalation for option years one through three with a [redacted]% escalation

for option year four. Finally, DIA found that all escalation rates in for non-missing cells in

the United States Group 2 location followed this same pattern of a [redacted]% escalation

for option years one through three with a [redacted]% escalation for option year four.

Based on these findings, DIA requested a clarification from Jupiter as to whether they

intended to utilize an escalation rate pattern of [redacted]% escalation for option years

one through three and [redacted]% escalation for option year four in their missing cells.

The spreadsheet submitted with Progressive’s proposal included [redacted] blank

[redacted] for the base year of the Cybersecurity labor category in the Germany location.

In the MFR prepared for Progressive’s proposal, DIA first noted that Progressive’s price

proposal stated that its price escalation rate would be [redacted]% for all years. DIA then

found that the escalation rates in the Cybersecurity labor category in the Germany

location were between [redacted]% and [redacted]% for option years one and two,

between [redacted]% and [redacted]% for option year three and between [redacted]%

and [redacted]% for option year four. Examining five random United States and five

random overseas categories, DIA found that “the yearly escalation was not actually

[redacted]%, but varied between the different option years, labor categories, and

locations.” Finally, DIA found that all escalation rates for all non-missing cells in all

German labor categories followed a [redacted]%, [redacted]%, [redacted]%, [redacted]%

escalation pattern. Based on these findings, DIA requested a clarification from

Progressive as to whether they intended to utilize a [redacted]% escalation rate in their

missing cell.

The spreadsheet submitted with RiiTE’s proposal failed to include rates for

[redacted] cells for option year two of the Database Administrator labor category in the

United States Group 5 location. In the MFR prepared for RiiTE’s proposal, DIA first noted

that RiiTE’s price proposal stated that price escalation would be [redacted]% for option

year one, [redacted]% for option year two, [redacted]% for option year three and

[redacted]% for option year four. DIA then found that the escalation rates that could be

determined for the non-missing cells in the Database Administrator category for the

United States Group 5 location were [redacted]% for option year one and [redacted]% for

option year four. Examining five random United States and five random overseas

categories, DIA found that the yearly escalation rates were [redacted]% for option year

one, [redacted]% for option year two, [redacted]% for option year three and [redacted]%

for option year four. Finally, DIA found the escalation rates for all non-missing cells in the

United States Group 5 location were [redacted]% for option year one, [redacted]% for

option year two, [redacted]% for option year three and [redacted]% for option year four.

Based on these findings, DIA requested a clarification from RiiTE as to whether they

intended to utilize an escalation rate of [redacted]% for the missing option year two cells.

The spreadsheet submitted with Sotera’s proposal included [redacted] blank cells

for the Program Manager labor category in the Germany location. In the MFR prepared

for AiNET’s proposal, DIA first noted that Sotera’s price proposal proposed an escalation

rate of [redacted]%. DIA then found that the escalation rates for all of the non-missing

cells were [redacted]% in level one, [redacted]% in level two, and [redacted]% in level

three and four. Examining five random United States and five random overseas

categories, DIA found that “the yearly escalation was not actually [redacted]%, but varied

between the different option years, labor categories, and locations.” Finally, DIA found

that all escalation rates for all non-missing cells in Germany categories followed the

escalation pattern of [redacted]% in level one, [redacted]% in level two, and [redacted]%

in level three and four. Based on these findings, DIA requested a clarification from AiNET

as to whether they intended to utilize and escalation pattern of [redacted]% in level one,

[redacted]% in level two, and [redacted]% in level three and four in their missing cells.

The spreadsheet submitted with Syneren’s proposal failed to include rates for

[redacted] cells, [redacted] for the System Administrator labor category in the United

States Group 4 location and [redacted] for the option year four of the Network Engineer

labor category in the United Kingdom location. In the MFR prepared for Syneren’s

proposal, DIA first noted that the language in the price volume of Syneren’s proposal was

“too vague to determine if the Offeror intended to complete all unit pricing.” DIA then found

that the escalation rates for all of the non-missing cells in the System Administrator

category in the United States Group 4 location were [redacted]% and that, for the Network

Engineer category in the United Kingdom, all escalation rates were [redacted]% for option

year one, [redacted]% for option year two, [redacted]% for option year three, and

undeterminable for option year four because all labor rates for year four were missing.

Examining five random United States and five random overseas categories, DIA found

that yearly escalation rate was [redacted]% for all United States pricing group locations

and that the majority of overseas pricing groups followed a pattern of [redacted]%

escalation for option year one, [redacted]% for option year two, [redacted]% for option

year three, and [redacted]% for option year four, but that there were also “a number of

rates within multiple Overseas Labor Categories that did not follow this pattern and

appeared to be random in nature.” Finally, DIA found that all escalation rates for all non-

missing cells in the United States Group 4 location were [redacted]% and that price

escalation for the United Kingdom location followed the [redacted]%, [redacted]%,

[redacted]%, [redacted]% escalation pattern “with exception for the System Administrator

labor category which followed a straight [redacted]% escalation rate between all levels

and option years.” DIA noted that the missing rates in the United Kingdom location all

involved option year four and that “[w]hile there is an apparent lack of consistency within

the United Kingdom labor rates, all Option Year 4 rates with the United Kingdom labor

rates is [sic] slated to have a [redacted]% escalation from the Option Year 3 rate

regardless of being a part of the [redacted]%, [redacted]%, [redacted]%, [redacted]%

pattern or the [redacted]%, [redacted]%, [redacted]%, [redacted]% pattern.” DIA thus

concluded that Syneren’s intended rates for option year four of the Network Systems

Administrator category in the United Kingdom location could be determined “from the face

of the proposal due to the found [redacted]% escalation rate for all Option Year 4 labor

categories with the United Kingdom location.” Based on these findings, DIA requested a

clarification from Syneren as to whether they intended to utilize an escalation rate of

[redacted]% for both the missing United States and United Kingdom location rates.

Sev1Tech, unlike Constellation West, first filed a protest on July 22, 2015 with the

Government Accountability Office (GAO) contesting DIA’s awards under the E-SITE

solicitation. On August 18, 2015, the GAO dismissed Sev1Tech’s protest on the grounds

that a protest of the E-SITE solicitation had subsequently been filed in the United States

Court of Federal Claims by another disappointed offeror.6 On August 24, 2015, Sev1Tech

filed its complaint in this court in case number 15-923C. In its complaint, Sev1Tech

alleges that DIA’s actions were arbitrary, capricious, and in violation of law on three

grounds. First, Sev1Tech alleges that the proposed labor rates for the missing cells in its

proposal were obvious on the face of the proposal because Sev1Tech stated in its Price

Volume that it was “keeping the labor escalation at [redacted]% per year over contract

life.” Sev1Tech alleges that DIA’s failure to consider information it alleges was obvious

on the face of Sev1Tech’s proposal was arbitrary and capricious and violated the

Competition in Contracting Act (CICA), the Federal Acquisition Regulations (FAR), and

the evaluation criteria stated in the solicitation. Second, Sev1Tech alleges that the

[redacted] missing cells in its price proposal constituted only a “minor irregularity” and that

DIA’s decision not to exercise its discretion under section L.3 of the solicitation and FAR

52.215-1(f)(3) (2015) to “waive informalities and minor irregularities in proposals received”

was arbitrary and capricious. Third, Sev1Tech alleges that its omission of the [redacted]

price cells constituted a “minor or clerical error” and that DIA’s failure to exercise its

discretion under FAR 15.306(a)(2) (2015) to seek clarifications from Sev1Tech was an

abuse of discretion, arbitrary and capricious, and contrary to the requirements of the

CICA, the FAR, and the solicitation. Sev1Tech alleges it was prejudiced by each one of

these alleged failures by DIA. Sev1Tech’s requests include that the court order DIA to re-

evaluate Sev1Tech’s pricing spreadsheet taking into account the statement in

Sev1Tech’s proposal that Sev1Tech was “keeping the labor escalation at [redacted]%

per year over contract life” as well as “other evidence of what Sev1Tech intended to put

in the missing cells.” Sev1Tech also asks this court to direct DIA to conduct a new best-

value analysis taking into account its re-evaluation of Sev1Tech’s pricing proposal.

Finally, Sev1Tech requests an injunction prohibiting DIA from awarding any work under

the E-SITE contract until DIA has taken these actions.

Relevant to both cases, numbers 15-876C and 15-923C, the government filed an

administrative record, followed by a corrected administrative record, and then followed by

a revised administrative record. The parties in both cases filed a single joint brief

stipulation of facts. The two protestors filed separate motions for judgment on the

administrative record in their respective cases. For both cases, defendant filed a single

cross-motion for judgment on the administrative record and responses to protestors’

motions. Protestors filed separate responses to defendant’s motion, to which defendant

filed a single reply. A single oral argument was held in the two protests. At oral argument,

the court requested a supplement to the revised administrative record and additional

briefing in case number 15-923C related to DIA’s decision to request clarifications from

the seven offerors other than Sev1Tech with incomplete pricing spreadsheets, and both

Sev1Tech and the government subsequently submitted brief, supplemental filings.

6 The GAO’s decision dismissing the Sev1Tech’s protest states that the disappointed

offeror was Knowledge Systems, LLC. Knowledge Systems, LLC filed a complaint in this

court protesting the E-SITE solicitation on August 4, 2015 in case number 15-832C. The

Knowledge Systems, LLC complaint, however, was one of the protests dismissed earlier,

on September 9, 2015, after both of the protests in the above captioned cases had been

filed in this court.

DISCUSSION

Rule 52.1(c) of the Rules of the United States Court of Federal Claims (2015)

(RCFC) governs motions for judgment on the administrative record. The court’s inquiry is

directed to “‘whether, given all the disputed and undisputed facts, a party has met its

burden of proof based on the evidence in the record.’” Mgmt. and Training Corp. v. United

States, 115 Fed. Cl. 26, 40 (2014) (quoting A & D Fire Prot., Inc. v. United States, 72 Fed.

Cl. 126, 131 (2006) (citing Bannum, Inc. v. United States, 404 F.3d 1346, 1356–57 (Fed.

Cir. 2005))); see also Eco Tour Adventures, Inc. v. United States, 114 Fed. Cl. 6, 21

(2013); DMS All-Star Joint Venture v. United States, 90 Fed. Cl. 653, 661 (2010).

The Administrative Dispute Resolution Act of 1996 (ADRA), Pub. L. No. 104-320,

§§ 12(a), 12(b), 110 Stat. 3870, 3874 (1996) (codified at 28 U.S.C. § 1491(b)(1)–(4)

(2012)), amended the Tucker Act to establish a statutory basis for bid protests in the

United States Court of Federal Claims. See Impresa Construzioni Geom. Domenico

Garufi v. United States, 238 F.3d 1324, 1330–32 (Fed. Cir. 2001). The statute provides

that protests of agency procurement decisions are to be reviewed under Administrative

Procedure Act (APA) standards, making applicable the standards outlined in Scanwell

Labs., Inc. v. Shaffer, 424 F.2d 859 (D.C. Cir. 1970), and the line of cases following that

decision. See, e.g., Kingdomware Techs., Inc. v. United States, 754 F.3d 923, 930 (Fed.

Cir.) (“In reviewing an agency’s action in a bid protest case, we generally apply the

Administrative Procedure Act’s ‘arbitrary, capricious, an abuse of discretion, or otherwise

not in accordance with law’ or ‘without observance of a procedure required by law’

standard of review.” (citing 5 U.S.C. § 706(2)(A), (D) (2012), reh’g en banc denied (Fed.

Cir. 2014), cert. granted, 83 U.S.L.W. 3654 (U.S. June 22, 2015)); Impresa Construzioni

Geom. Domenico Garufi v. United States, 238 F.3d at 1332)); Res. Conservation Grp.,

LLC v. United States, 597 F.3d 1238, 1242 (Fed. Cir. 2010) (“Following passage of the

APA in 1946, the District of Columbia Circuit in Scanwell Labs., Inc. v. Shaffer, 424 F.2d

859 (D.C. Cir. 1970), held that challenges to awards of government contracts were

reviewable in federal district courts pursuant to the judicial review provisions of the APA.”);

Galen Med. Assocs., Inc. v. United States, 369 F.3d 1324, 1329 (Fed. Cir.) (citing

Scanwell Labs., Inc. v. Shaffer, 424 F.2d at 864, 868, for its “reasoning that suits

challenging the award process are in the public interest and disappointed bidders are the

parties with an incentive to enforce the law”), reh’g denied (Fed. Cir. 2004); Banknote

Corp. of Am., Inc. v. United States, 365 F.3d 1345, 1351 (Fed. Cir. 2004) (“Under the

APA standard as applied in the Scanwell line of cases, and now in ADRA cases, ‘a bid

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

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

(quoting Impresa Construzioni Geom. Domenico Garufi v. United States, 238 F.3d at

1332)); Info. Tech. & Applications Corp. v. United States, 316 F.3d 1312, 1319 (Fed. Cir.),

reh’g and reh’g en banc denied (Fed. Cir. 2003). The United States Court of Appeals for

the Federal Circuit has stated that the Court of Federal Claims’ jurisdiction over “any

alleged violation of statute or regulation in connection with a procurement or a proposed

procurement,” 28 U.S.C. § 1491(b)(1), “provides a broad grant of jurisdiction because

‘[p]rocurement includes all stages of the process of acquiring property or services,

beginning with the process for determining a need for property or services and ending

with contract completion and closeout.’” Sys. Application & Techs., Inc. v. United States,

691 F.3d 1374, 1381 (Fed. Cir. 2012) (emphasis in original) (quoting Res. Conservation

Grp., LLC v. United States, 597 F.3d at 1244 (quoting 41 U.S.C. § 403(2))); see also

Rockies Exp. Pipeline LLC v. Salazar, 730 F.3d 1330, 1336 (Fed. Cir. 2013), reh’g denied

(Fed. Cir. 2014); Distrib. Solutions, Inc. v. United States, 539 F.3d 1340, 1346 (Fed. Cir.)

(“[T]he phrase, ‘in connection with a procurement or proposed procurement,’ by definition

involves a connection with any stage of the federal contracting acquisition process,

including ‘the process for determining a need for property or services.’”), reh’g denied

(Fed. Cir. 2008); RAMCOR Servs. Grp., Inc. v. United States, 185 F.3d 1286, 1289 (Fed.

Cir. 1999) (“The operative phrase ‘in connection with’ is very sweeping in scope.”).

When discussing the appropriate standard of review for bid protest cases, the

United States Court of Appeals for the Federal Circuit addressed subsections (2)(A) and

(2)(D) of 5 U.S.C. § 706, see Impresa Construzioni Geom. Domenico Garufi v. United

States, 238 F.3d at 1332 n.5, but focused its attention primarily on subsection (2)(A). See

Croman Corp. v. United States, 724 F.3d 1357, 1363 (Fed. Cir. 2013) (“‘[T]he proper

standard to be applied [to the merits of] bid protest cases is provided by 5 U.S.C.

§ 706(2)(A) [(2006)]: a reviewing court shall set aside the agency action if it is “arbitrary,

capricious, an abuse of discretion, or otherwise not in accordance with law.”’” (quoting

Banknote Corp. of Am. v. United States, 365 F.3d at 1350–51 (citing Advanced Data

Concepts, Inc. v. United States, 216 F.3d 1054, 1057–58 (Fed. Cir.), reh’g denied (Fed.

Cir. 2000)), aff’d, 365 F.3d 1345 (Fed. Cir. 2004))), reh’g and reh’g en banc denied (Fed.

Cir. 2013) (alterations in original). The statute says that agency procurement actions

should be set aside when they are “arbitrary, capricious, an abuse of discretion, or

otherwise not in accordance with law,” or “without observance of procedure required by

law.” 5 U.S.C. § 706(2)(A), (D) (2012);7 see also Tinton Falls Lodging Realty, LLC v.

7 The language of 5 U.S.C. § 706 provides in full:

To the extent necessary to decision and when presented, the reviewing

court shall decide all relevant questions of law, interpret constitutional and

statutory provisions, and determine the meaning or applicability of the terms

of an agency action. The reviewing court shall—

(1) compel agency action unlawfully withheld or unreasonably delayed;

and

(2) hold unlawful and set aside agency action, findings, and conclusions

found to be—

(A) arbitrary, capricious, an abuse of discretion, or otherwise not in

accordance with law;

(B) contrary to constitutional right, power, privilege, or immunity;

of statutory right;

United States, 800 F.3d 1353, 1358 (Fed. Cir. 2015); Orion Tech., Inc. v. United States,

704 F.3d 1344, 1347 (Fed. Cir. 2013); COMINT Sys. Corp. v. United States, 700 F.3d

1377, 1381 (Fed. Cir. 2012) (“We evaluate agency actions according to the standards set

forth in the Administrative Procedure Act; namely, for whether they are ‘arbitrary,

capricious, an abuse of discretion, or otherwise not in accordance with law.’” (quoting 5

U.S.C. § 706(2)(A); Bannum, Inc. v. United States, 404 F.3d at 1351)); Savantage Fin.

Servs. Inc., v. United States, 595 F.3d 1282, 1285–86 (Fed. Cir. 2010); Weeks Marine,

Inc. v. United States, 575 F.3d 1352, 1358 (Fed. Cir. 2009); Axiom Res. Mgmt., Inc. v.

United States, 564 F.3d 1374, 1381 (Fed. Cir. 2009) (noting arbitrary and capricious

standard set forth in 5 U.S.C. § 706(2)(A), and reaffirming the analysis of Impresa

Construzioni Geom. Domenico Garufi v. United States, 238 F.3d at 1332); Blue & Gold

Fleet, L.P. v. United States, 492 F.3d 1308, 1312 (Fed. Cir. 2007) (“‘[T]he inquiry is

whether the [government]’s procurement decision was “arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with law.”’” (quoting Bannum, Inc. v. United

States, 404 F.3d at 1351 (quoting 5 U.S.C. § 706(2)(A) (2000)))); NVT Techs., Inc. v.

United States, 370 F.3d 1153, 1159 (Fed. Cir. 2004) (“Bid protest actions are subject to

the standard of review established under section 706 of title 5 of the Administrative

Procedure Act (‘APA’), 28 U.S.C. § 1491(b)(4) (2000), by which an agency’s decision is

to be set aside only if it is ‘arbitrary, capricious, an abuse of discretion, or otherwise not

in accordance with law,’ 5 U.S.C. § 706(2)(A) (2000).”) (internal citations omitted); Info.

Tech. & Applications Corp. v. United States, 316 F.3d at 1319 (“Consequently, our inquiry

is whether the Air Force’s procurement decision was ‘arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with law.’ 5 U.S.C. § 706(2)(A) (2000).”); Eco

Tour Adventures, Inc. v. United States, 114 Fed. Cl. at 22; Contracting, Consulting, Eng’g

LLC v. United States, 104 Fed. Cl. 334, 340 (2012). “In a bid protest case, the agency’s

award must be upheld unless it is ‘arbitrary, capricious, an abuse of discretion, or

otherwise not in accordance with law.’” Turner Constr. Co. v. United States, 645 F.3d

1377, 1383 (Fed. Cir.) (quoting PAI Corp. v. United States, 614 F.3d 1347, 1351 (Fed.

Cir. 2010)), reh’g and reh’g en banc denied (Fed. Cir. 2011); see also Tinton Falls Lodging

Realty, LLC v. United States, 800 F.3d at 1358 (“In applying this [arbitrary and capricious]

standard to bid protests, our task is to determine whether the procurement official's

(D) without observance of procedure required by law;

(E) unsupported by substantial evidence in a case subject to sections

556 and 557 of this title or otherwise reviewed on the record of

an agency hearing provided by statute; or

(F) unwarranted by the facts to the extent that the facts are subject

to trial de novo by the reviewing court.

In making the foregoing determinations, the court shall review the whole

record or those parts of it cited by a party, and due account shall be taken

of the rule of prejudicial error.

5 U.S.C. § 706.

decision lacked a rational basis or the procurement procedure involved a violation of a

regulation or procedure.”) (citing Savantage Fin. Servs., Inc. v. United States, 595 F.3d

1282, 1285–86 (Fed. Cir. 2010)); Glenn Def. Marine (ASIA), PTE Ltd. v. United States,

720 F.3d 901, 907 (Fed. Cir.), reh’g en banc denied (Fed. Cir. 2013); McVey Co., Inc. v.

United States, 111 Fed. Cl. 387, 402 (2013) (“The first step is to demonstrate error, that

is, to show that the agency acted in an arbitrary and capricious manner, without a rational

basis or contrary to law.”); PlanetSpace, Inc. v. United States, 92 Fed. Cl. 520, 531–32

(2010) (“Stated another way, a plaintiff must show that the agency’s decision either lacked

a rational basis or was contrary to law.” (citing Weeks Marine, Inc. v. United States, 575

F.3d at 1358)).

The United States Supreme Court has identified sample grounds which can

constitute arbitrary or capricious agency action:

[W]e will not vacate an agency’s decision unless it “has relied on factors

which Congress has not intended it to consider, entirely failed to consider

an important aspect of the problem, offered an explanation for its decision

that runs counter to the evidence before the agency, or is so implausible

that it could not be ascribed to a difference in view or the product of agency

expertise.”

Nat’l Ass’n of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 658 (2007) (quoting

Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)); see

also Tinton Falls Lodging Realty, LLC v. United States, 800 F.3d at 1358; F.C.C. v. Fox

Television Stations, Inc., 556 U.S. 502, 552 (2009); Ala. Aircraft Indus., Inc.-Birmingham

v. United States, 586 F.3d 1372, 1375 (Fed. Cir. 2009), reh’g and reh’g en banc denied

(Fed. Cir. 2010); In re Sang Su Lee, 277 F.3d 1338, 1342 (Fed. Cir. 2002) (“[T]he agency

tribunal must present a full and reasoned explanation of its decision. . . . The reviewing

court is thus enabled to perform meaningful review . . . .”); Textron, Inc. v. United States,

74 Fed. Cl. 277, 285–86 (2006), appeal dismissed sub nom. Textron, Inc. v. Ocean

Technical Servs., Inc., 223 F. App’x 974 (Fed. Cir. 2007). The United States Supreme

Court also has cautioned, however, that “courts are not free to impose upon agencies

specific procedural requirements that have no basis in the APA.” Pension Benefit Guar.

Corp. v. LTV Corp., 496 U.S. 633, 654 (1990). Moreover,

A bid protest proceeds in two steps. First . . . the trial court determines

whether the government acted without rational basis or contrary to law when

evaluating the bids and awarding the contract. Second . . . if the trial court

finds that the government’s conduct fails the APA review under 5 U.S.C.

§ 706(2)(A), then it proceeds to determine, as a factual matter, if the bid

protester was prejudiced by that conduct.

Bannum, Inc. v. United States, 404 F.3d at 1351; FirstLine Transp. Sec., Inc. v. United

States, 119 Fed. Cl. 116, 126 (2014); Eco Tour Adventures, Inc. v. United States, 114

Fed. Cl. at 22; Archura LLC v. United States, 112 Fed. Cl. 487, 496 (2013).

Under an arbitrary or capricious standard, the reviewing court should not substitute

its judgment for that of the agency, but should review the basis for the agency decision to

determine if it was legally permissible, reasonable, and supported by the facts. See Motor

Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. at 43 (“The scope of

review under the ‘arbitrary and capricious’ standard is narrow and a court is not to

substitute its judgment for that of the agency.”); see also Turner Constr. Co., Inc. v. United

States, 645 F.3d at 1383; R & W Flammann GmbH v. United States, 339 F.3d 1320, 1322

(Fed. Cir. 2003) (citing Ray v. Lehman, 55 F.3d 606, 608 (Fed. Cir.), cert. denied, 516

U.S. 916 (1995)). “‘“If the court finds a reasonable basis for the agency’s action, the court

should stay its hand even though it might, as an original proposition, have reached a

different conclusion as to the proper administration and application of the procurement

regulations.”’” Weeks Marine, Inc. v. United States, 575 F.3d at 1371 (quoting Honeywell,

Inc. v. United States, 870 F.2d 644, 648 (Fed. Cir. 1989) (quoting M. Steinthal & Co. v.

Seamans, 455 F.2d 1289, 1301 (D.C. Cir. 1971))); Jordan Pond Co., LLC v. United

States, 115 Fed. Cl. 623, 631 (2014); Davis Boat Works, Inc. v. United States, 111 Fed.

Cl. 342, 349 (2013); Norsat Int’l [America], Inc. v. United States, 111 Fed. Cl. 483, 493

(2013); HP Enter. Servs., LLC v. United States, 104 Fed. Cl. 230, 238 (2012); Vanguard

Recovery Assistance v. United States, 101 Fed. Cl. 765, 780 (2011).

Stated otherwise by the United States Supreme Court:

Section 706(2)(A) requires a finding that the actual choice made was not

“arbitrary, capricious, an abuse of discretion, or otherwise not in accordance

with law.” To make this finding the court must consider whether the decision

was based on a consideration of the relevant factors and whether there has

been a clear error of judgment. Although this inquiry into the facts is to be

searching and careful, the ultimate standard of review is a narrow one. The

court is not empowered to substitute its judgment for that of the agency.

Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971), abrogated on

other grounds by Califano v. Sanders, 430 U.S. 99 (1977) (internal citations omitted); see

also U.S. Postal Serv. v. Gregory, 534 U.S. 1, 6–7 (2001); Bowman Transp., Inc. v.

Arkansas-Best Freight Sys., Inc., 419 U.S. 281, 285 (1974), reh’g denied, 420 U.S. 956

(1975); Co-Steel Raritan, Inc. v. Int’l Trade Comm’n, 357 F.3d 1294, 1309 (Fed. Cir. 2004)

(In discussing the “arbitrary, capricious, and abuse of discretion, or otherwise not in

accordance with the law” standard, the Federal Circuit stated: “the ultimate standard of

review is a narrow one. The court is not empowered to substitute its judgment for that of

the agency.”); In re Sang Su Lee, 277 F.3d at 1342; Advanced Data Concepts, Inc. v.

United States, 216 F.3d at 1058 (“The arbitrary and capricious standard applicable here

is highly deferential. This standard requires a reviewing court to sustain an agency action

evincing rational reasoning and consideration of relevant factors.” (citing Bowman

Transp., Inc. v. Arkansas-Best Freight Sys., Inc., 419 U.S. at 285)); Lockheed Missiles &

Space Co. v. Bentsen, 4 F.3d 955, 959 (Fed. Cir. 1993); BCPeabody Constr. Servs., Inc.

v. United States, 112 Fed. Cl. 502, 508 (2013) (“The court ‘is not empowered to substitute

its judgment for that of the agency,’ and it must uphold an agency’s decision against a

challenge if the ‘contracting agency provided a coherent and reasonable explanation of

its exercise of discretion.’” (quoting Keeton Corrs., Inc. v. United States, 59 Fed. Cl. 753,

755, recons. denied, 60 Fed. Cl. 251 (2004), and Axiom Res. Mgmt., Inc. v. United States,

564 F.3d at 1381)), appeal withdrawn, 559 F. App’x 1033 (Fed. Cir. 2014) (internal

citations omitted); Supreme Foodservice GmbH v. United States, 109 Fed. Cl. 369, 382

(2013); Alamo Travel Grp., LP v. United States, 108 Fed. Cl. 224, 231 (2012); ManTech

Telecomms. & Info. Sys. Corp. v. United States, 49 Fed. Cl. 57, 63 (2001), aff’d, 30 F.

App’x 995 (Fed. Cir. 2002); Ellsworth Assocs., Inc. v. United States, 45 Fed. Cl. 388, 392

(1999) (“Courts must give great deference to agency procurement decisions and will not

lightly overturn them.” (citing Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 743–44

(1985))), appeal dismissed, 6 F. App’x 867 (Fed. Cir. 2001), and superseded by regulation

as recognized in MVS USA, Inc. v. United States, 111 Fed. Cl. 639 (2013).

According to the United States Court of Appeals for the Federal Circuit:

Effective contracting demands broad discretion. Burroughs Corp. v. United

States, 223 Ct. Cl. 53, 617 F.2d 590, 598 (1980); Sperry Flight Sys. Div. v.

United States, 548 F.2d 915, 921, 212 Ct. Cl. 329 (1977); see NKF Eng’g,

Inc. v. United States, 805 F.2d 372, 377 (Fed. Cir. 1986); Tidewater

Management Servs., Inc. v. United States, 573 F.2d 65, 73, 216 Ct. Cl. 69

(1978); RADVA Corp. v. United States, 17 Cl. Ct. 812, 819 (1989), aff’d, 914

F.2d 271 (Fed. Cir. 1990). Accordingly, agencies “are entrusted with a good

deal of discretion in determining which bid is the most advantageous to the

Government.” Tidewater Management Servs., 573 F.2d at 73, 216 Ct. Cl.

69.

Lockheed Missiles & Space Co. v. Bentsen, 4 F.3d at 958–59; see also Res-Care, Inc. v.

United States, 735 F.3d 1384, 1390 (Fed. Cir.) (“DOL [Department of Labor], as a federal

procurement entity, has ‘broad discretion to determine what particular method of

procurement will be in the best interests of the United States in a particular situation.’”

(quoting Tyler Const. Grp. v. United States, 570 F.3d 1329, 1334 (Fed. Cir. 2009))), reh’g

en banc denied (Fed. Cir. 2014); Grumman Data Sys. Corp. v. Dalton, 88 F.3d 990, 995

(Fed. Cir. 1996); Kingdomware Techs., Inc. v. United States, 107 Fed. Cl. 226, 231 (2012)

(“‘Federal procurement entities have “broad discretion to determine what particular

method of procurement will be in the best interests of the United States in a particular

situation.”’” (quoting K-Lak Corp. v. United States, 98 Fed. Cl. 1, 8 (2011) (quoting Tyler

Const. Grp. v. United States, 570 F.3d at 1334))), aff’d, 754 F.3d 923 (Fed. Cir.), reh’g en

banc denied (Fed. Cir. 2014), cert. granted, 83 U.S.L.W. 3654 (U.S. June 22, 2015);

Cybertech Grp., Inc. v. United States, 48 Fed. Cl. 638, 646 (2001) (“The court recognizes

that the agency possesses wide discretion in the application of procurement

regulations.”); JWK Int’l Corp. v. United States, 49 Fed. Cl. 371, 388 (2001), aff’d, 279

F.3d 985 (Fed. Cir.), reh’g denied (Fed. Cir. 2002). Furthermore, according to the Federal

Circuit:

Contracting officers “are entitled to exercise discretion upon a broad range

of issues confronting them in the procurement process.” Impresa

Construzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324,

1332 (Fed. Cir. 2001) (internal quotation marks omitted). Accordingly,

procurement decisions are subject to a “highly deferential rational basis

review.” CHE Consulting, Inc. v. United States, 552 F.3d 1351, 1354 (Fed.

Cir. 2008) (internal quotation marks omitted).

PAI Corp. v. United States, 614 F.3d at 1351; see also Weeks Marine, Inc. v. United

States, 575 F.3d at 1368–69 (“We have stated that procurement decisions ‘invoke[ ]

“highly deferential” rational basis review.’ Under that standard, we sustain an agency

action ‘evincing rational reasoning and consideration of relevant factors.’” (quoting CHE

Consulting, Inc. v. United States, 552 F.3d at 1354 (quoting Advanced Data Concepts,

Inc. v. United States, 216 F.3d at 1058))); Cohen Fin. Servs., Inc. v. United States, 112

Fed. Cl. 153, 162 (2013); McVey Co., Inc. v. United States, 111 Fed. Cl. at 402.

Moreover, in a negotiated procurement, contracting officers generally may be

afforded greater decision making discretion, in comparison to their role in sealed bid

procurements. See Glenn Def. Marine (ASIA), PTE Ltd. v. United States, 720 F.3d at 907

(“The protestor’s burden is greater in negotiated procurement, as here, than in other types

of bid protests because ‘“the contracting officer is entrusted with a relatively high degree

of discretion.”’” (quoting Galen Med. Assocs., Inc. v. United States, 369 F.3d at 1330

(quoting Burroughs Corp. v. United States, 223 Ct. Cl. 597–98, 617 F.2d 590, 597

(1980)))); Galen Med. Assocs., Inc. v. United States, 369 F.3d at 1330 (“Because the bid

protest at issue here involved a ‘negotiated procurement,’ the protestor’s burden of

proving that the award was arbitrary, capricious, an abuse of discretion, or otherwise not

in accordance with law is greater than in other types of bid protests.” (internal citations

omitted)); Am. Tel. & Tel. Co. v. United States, 307 F.3d 1374, 1379 (Fed. Cir. 2002)

(“Moreover, in a negotiated procurement, as in this case, this court has held that the

regulations entrust the contracting officer with especially great discretion, extending even

to his application of procurement regulations.”), reh’g en banc denied (Fed. Cir.), cert.

denied, 540 U.S. 937 (2003). The question is not whether the court would reach the same

conclusions as the agency regarding the comparison of proposals, but, rather, whether

the conclusions reached by the agency lacked a reasonable basis and, therefore, were

arbitrary or capricious, in which case, courts have a role to review and instruct.

WorldTravelService v. United States, 49 Fed. Cl. 431, 441 (2001) (“Therefore, this court’s

main task is to ensure that the [agency] examined the relevant data and articulated a

‘rational connection between the facts found and the choice made.’” (quoting Motor

Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. at 43 (internal citations

omitted))).

The United States Court of Appeals for the Federal Circuit also has explained that

procurement officials have a greater degree of discretion when it comes to best-value

determinations, as compared to a procurement based on price alone. See Galen Med.

Assocs., Inc. v. United States, 369 F.3d at 1330 (noting that because “the contract was

to be awarded based on ‘best value,’ the contracting officer had even greater discretion

than if the contract were to have been awarded on the basis of cost alone”); see also

Croman Corp. v. United States, 724 F.3d at 1363 (noting the significant discretion

contracting officers possess when awarding contracts on the basis of best value to the

agency) (citing Banknote Corp. of Am. Inc. v. United States, 365 F.3d at 1355)); CHE

Consulting, Inc. v. United States, 552 F.3d at 1354 (citing E.W. Bliss Co. v. United States,

77 F.3d 445, 449 (1996)); Banknote Corp. of Am. Inc. v. United States, 365 F.3d at 1355

(“It is well-established that contracting officers have a great deal of discretion in making

contract award decisions, particularly when, as here, the contract is to be awarded to the

bidder or bidders that will provide the agency with the best value.” (citing TRW, Inc. v.

Unisys Corp., 98 F.3d 1325, 1327–28 (Fed. Cir. 1996))); Am. Tel. & Tel. Co. v. United

States, 307 F.3d at 1379; E.W. Bliss Co. v. United States, 77 F.3d at 449 (“Procurement

officials have substantial discretion to determine which proposal represents the best value

for the government.”); AM Gen., LLC v. United States, 115 Fed. Cl. 653, 697 (2014);

Amazon Web Servs., Inc. v. United States, 113 Fed. Cl. 102, 110 (2013) (“Contracting

officers are afforded ‘an even greater degree of discretion when the award is determined

based on the best value to the agency.’” (quoting Galen Med. Assocs., Inc. v. United

States, 369 F.3d at 1330)); Akal Sec., Inc. v. United States, 103 Fed. Cl. 310, 329 (2011)

(“The United States Court of Appeals for the Federal Circuit has recognized that

‘[p]rocurement officials have substantial discretion to determine which proposal

represents the best value for the government.’” (quoting E.W. Bliss Co. v. United States,

77 F.3d at 449)); Blackwater Lodge & Training Ctr., Inc. v. United States, 86 Fed. Cl. 488,

514 (2009).

In E.W. Bliss Co. v. United States, the United States Court of Appeals for the

Federal Circuit offered guidance on the applicable standard of review in best value

determinations:

Procurement officials have substantial discretion to determine which

proposal represents the best value for the government. See Lockheed

Missiles & Space Co., Inc. v. Bentsen, 4 F.3d 955, 958 (Fed. Cir. 1993); cf.

Widnall v. B3H, 75 F.3d 1577 (Fed. Cir. 1996) (holding that Board of

Contract Appeals should defer to agency’s best value decision as long as it

is “grounded in reason . . . even if the Board itself might have chosen a

different bidder”); In re General Offshore Corp., B-251969.5, B-251969.6,

94-1 Comptroller Gen.’s Procurement Decisions (Federal Publications Inc.)

¶ 248, at 3 (Apr. 8, 1994) (“In a negotiated procurement, any proposal that

fails to conform to material terms and conditions of the solicitation should

be considered unacceptable and may not form the basis for an award.

Where an evaluation is challenged, we will examine the agency’s evaluation

to ensure that it was reasonable and consistent with the evaluation criteria

and applicable statutes and regulations, since the relative merit of

competing proposals is primarily a matter of administrative discretion.”)

(citations omitted).

***

Bliss’ [other challenges to the procurement] deal with the minutiae of the

procurement process in such matters as technical ratings . . . which involve

discretionary determinations of procurement officials that a court will not

second guess. See Lockheed Missiles & Space Co., 4 F.3d at 958;

Grumman Data Systems Corp. v. Widnall, 15 F.3d 1044, 1048 (Fed. Cir.

1994) (“[S]mall errors made by the procuring agency are not sufficient

grounds for rejecting an entire procurement.”).

E.W. Bliss Co. v. United States, 77 F.3d at 449; see also Glenn Def. Marine (ASIA), PTE

Ltd. v. United States, 720 F.3d at 908 (citing E.W. Bliss Co. v. United States, 77 F.3d at

449); COMINT Sys. Corp. v. United States, 700 F.3d at 1384 (quoting same); Tyler Const.

Grp. v. United States, 570 F.3d at 1334 (citing same); CHE Consulting, Inc. v. United

States, 552 F.3d at 1354 (quoting same); Galen Med. Assoc., Inc. v. United States, 369

F.3d at 1330 (quoting same); R & W Flammann GmbH v. United States, 339 F.3d 1320,

1322 (Fed. Cir. 2003) (citing same); Vanguard Recovery Assistance v. United States, 101

Fed. Cl. at 780; Galen Med. Assocs., Inc. v. United States, 74 Fed. Cl. 377, 383–84

(2006); JWK Int’l Corp. v. United States, 49 Fed. Cl. at 388.

A disappointed bidder has the burden of demonstrating the arbitrary and capricious

nature of the agency decision by a preponderance of the evidence. See Grumman Data

Sys. Corp. v. Dalton, 88 F.3d at 995–96; Davis Boat Works, Inc. v. United States, 111

Fed. Cl. at 349; Contracting, Consulting, Eng’g LLC v. United States, 104 Fed. Cl. at 340.

The Federal Circuit has indicated that “[t]his court will not overturn a contracting officer’s

determination unless it is arbitrary, capricious, or otherwise contrary to law. To

demonstrate that such a determination is arbitrary or capricious, a protester must identify

‘hard facts’; a mere inference or suspicion . . . is not enough.” PAI Corp. v. United States,

614 F.3d at 1352 (citing John C. Grimberg Co. v. United States, 185 F.3d 1297, 1300

(Fed. Cir. 1999)); see also Turner Constr. Co., Inc. v. United States, 645 F.3d at 1387;

Sierra Nevada Corp. v. United States, 107 Fed. Cl. 735, 759 (2012); Filtration Dev. Co.,

LLC v. United States, 60 Fed. Cl. 371, 380 (2004).

When the contracting officer’s discretion grows, so does the burden on the

protestor to overturn the contracting officer’s decisions. As described in D & S

Consultants, Inc. v. United States:

The protestor’s burden becomes more difficult the greater the degree of

discretion vested in the contracting officer. DynCorp Int’l v. United States,

76 Fed. Cl. 528, 537 (2007). Negotiated procurements afford the contracting

officer a “breadth of discretion;” “best-value” awards afford the contracting

officer additional discretion. Id. Therefore, in a negotiated, best-value

procurement, the “protestor’s burden is especially heavy.” Id.

D & S Consultants, Inc. v. United States, 101 Fed. Cl. 23, 33 (2011), aff’d, 484 F. App’x

558 (Fed. Cir. 2012); see also Galen Med. Assocs., Inc. v. United States, 369 F.3d at

1330 (noting that contracting officers have great discretion in negotiated procurements

but even greater discretion in best-value determinations than in procurements based on

cost alone); PHT Supply Corp. v. United States, 71 Fed. Cl. 1, 11 (2006) (“It is critical to

note that ‘a protestor’s burden is particularly great in negotiated procurements because

the contracting officer is entrusted with a relatively high degree of discretion, and greater

still, where, as here, the procurement is a “best-value” procurement.’” (internal citations

omitted)). “It is well-established that contracting officers have a great deal of discretion in

making contract award decisions, particularly when, as here, the contract is to be awarded

to the bidder or bidders that will provide the agency with the best value.” Banknote Corp.

of Am. Inc. v. United States, 365 F.3d at 1355 (citing TRW, Inc. v. Unisys Corp., 98 F.3d

at 1327–28; E.W. Bliss Co. v. United States, 77 F.3d at 449; and Lockheed Missiles &

Space Co. v. Bentsen, 4 F.3d at 958–59); see also Croman Corp. v. United States, 724

F.3d at 1363; Am. Tel. & Tel. Co. v. United States, 307 F.3d at 1379; Lockheed Missiles

& Space Co. v. United States, 4 F.3d at 958; Bahrain Maritime & Mercantile Int’l BSC v.

United States, 118 Fed. Cl. 462 (2014); Brooks Range Contract Servs., Inc. v. United

States, 101 Fed. Cl. 699, 707 (2011) (“[A] plaintiff’s burden ‘is elevated where the

solicitation contemplates award on a “best value” basis.’” (internal citations omitted));

PlanetSpace Inc. v. United States, 96 Fed. Cl. 119, 125 (2010) (citing Galen Med.

Assocs., Inc. v. United States, 369 F.3d at 1330 (“An agency’s contract award is thus

least vulnerable to challenge when based upon a best value determination.”)); Matt Martin

Real Estate Mgmt. LLC v. United States, 96 Fed. Cl. 106, 113 (2010); Serco v. United

States, 81 Fed. Cl. 463, 496 (2008) (“To be sure, as noted at the outset, plaintiffs have a

significant burden of showing error in that regard because a court must accord

considerable deference to an agency’s best-value decision in trading off price with other

factors.”).

Constellation West

In case number 15-876C, protestor Constellation West alleges that DIA acted

arbitrarily, capriciously, and contrary to law when it assigned the six significant

weaknesses and nine of the twenty six total weaknesses to the Management/Technical

portion of Constellation West’s proposal, based on criteria Constellation West asserts

were not stated in the solicitation. In particular, Constellation West alleges that it was

wrongfully assigned two weaknesses based on Sections M-3.2.1.1.e and M-3.2.1.2e of

the solicitation, two weaknesses based on SOW 3.2.4.9 and SOW 3.2.4.12, and six

significant weaknesses and five weaknesses based on SOW 3.2.6. Constellation West

further argues that it was prejudiced by DIA’s actions because it alleges it would have

had a substantial chance of receiving a contract award had DIA’s alleged errors not

occurred. In response, defendant denies that DIA relied on unstated criteria when

evaluating Constellation West’s proposal. Defendant further argues that Constellation

West has not shown, and cannot show, that it was prejudiced by any of the alleged errors.

This court in Banknote Corp. of America, Inc. v. United States summarized this

area of the law:

It is hornbook law that agencies must evaluate proposals and make awards

based on the criteria stated in the solicitation. This requirement is firmly

rooted in the Competition in Contracting Act (CICA) . . . which indicate[s]

that an agency shall evaluate competitive proposals and assess their

qualities solely on the factors and subfactors specified in the solicitation.

See 10 U.S.C. §§ 2305(a)(2)(A), 2305(a)(3)(A) (2000) . . . . It thus is beyond

peradventure that the government may not rely upon undisclosed

evaluation criteria in evaluating proposals, Acra, Inc. v. United States, 44

Fed. Cl. 288, 293 (1999), and, where appropriate, must disclose the factors'

relative importance, Isratex, Inc. v. United States, 25 Cl. Ct. 223, 230

(1992). See also Cube Corp. v. United States, 46 Fed. Cl. 368, 377 (2000);

Dubinsky v. United States, 43 Fed. Cl. 243, 266 (1999). That said, an

agency still has “great discretion in determining the scope of an evaluation

factor.” Forestry Surveys and Data v. United States, 44 Fed. Cl. 493, 499

(1999). Consistent with these precepts, in a case such as this, a protester

must show that: (i) the procuring agency used a significantly different basis

in evaluating the proposals than was disclosed; and (ii) the protester was

prejudiced as a result—that it had a substantial chance to receive the

contract award but for that error.

***

[I]t is well-settled that “a solicitation need not identify each element to be

considered by the agency during the course of the evaluation where such

element is intrinsic to the stated factors.” Analytical & Research Tech., Inc.

v. United States, 39 Fed. Cl. 34, 45 (1997)[.]

Banknote Corp. of Am., Inc. v. United States, 56 Fed. Cl. 377, 386-87 (2003), aff’d, 365

F.3d 1345 (Fed. Cir. 2004) (footnote and other citations omitted); see also NVE, Inc. v.

United States, 121 Fed. Cl. 169, 180 (2015); FirstLine Transp. Sec., Inc. v. United States,

100 Fed. Cl. at 388 (“It is a fundamental principle of procurement law that an agency must

conduct its best-value analysis using the evaluation factors and subfactors specified in

the solicitation.” (citing 48 C.F.R. § 15.101–1(b)(1); 48 C.F.R. § 15.305(a); Acra, Inc. v.

United States, 44 Fed. Cl. 288, 293 (1999))); PlanetSpace, Inc. v. United States, 92 Fed.

Cl. at 536-37; NEQ, LLC v. United States, 88 Fed. Cl. 38, 47-48 (2009); PHT Supply Corp.

v. United States, 71 Fed. Cl. at 13-14.

M-3.2.1.1e

Constellation West argues that DIA relied on unstated criteria when it evaluated

the Management/Technical portion of Constellation West’s proposal as having a

weakness under Section M-3.2.1.1e, on the grounds that the proposal “lacks description

of capacity planning that includes monitoring trends of capacity usage and projecting

capacity requirements to stay ahead of demand.” The relevant portions of Section

M-3.2.1.1 states:

The offeror shall provide evidence of their in-depth understanding and ability

to support current/projected IC wide transition and integration efforts (e.g.

Intelligence Community Information Technology Enterprise (IC ITE), Joint

Information Environment (JIE). . . ) and their ability to apply new and

emerging technologies/capabilities in the following demonstration areas.

***

e. Capacity planning approaches.

Constellation West argues that Section M-3.2.1.1e does not contain a requirement to

monitor trends or project capacity. Defendant argues that DIA’s rationale stated in its

evaluation that the capacity planning approach includes monitoring trends of capacity

usage and projecting capacity requirements is a technical determination that should not

be second guessed by the court. Defendant also argues that DIA’s interpretation was

correct because monitoring trends of usage and projecting capacity requirements is

intrinsic to the stated criteria of providing capacity planning. Constellation West rejects

defendant’s explanation as a “post hoc excuse invented for convenience.”

“[I]t is well-settled that ‘a solicitation need not identify each element to be

considered by the agency during the course of the evaluation where such element is

intrinsic to the stated factors.’” Banknote Corp. of Am., Inc. v. United States, 56 Fed. Cl.

at 386–87 (quoting Analytical & Research Tech., Inc. v. United States, 39 Fed. Cl. at 45)

(alteration in original). “[M]onitoring trends of capacity usage and projecting capacity

requirements to stay ahead of demand” is intrinsic to the concept of “capacity planning.”

Indeed, it is difficult to understand how one could plan for future capacity without

projecting the demand for that capacity. Therefore, DIA did not apply criteria unstated in

the solicitation when it assigned Constellation West a weakness under RFP 3.2.1.1e for

failing to explain how it intended to conduct such monitoring and capacity projection.

M-3.2.1.2e

Constellation West next argues that DIA erred when it assessed the

Management/Technical portion of its proposal a weakness under Section M-3.2.1.2e of

the solicitation based on its “distinct lack of information regarding the understanding of

needs forecasting of industry and customer’s future needs, and how to transition the

customer to a better state.” Section M-3.2.1.2e required offerors to provide evidence of

their experience “[p]rovisioning services using a managed service delivery model,

quantitative and qualitative key performance indicators, established service levels, quality

assurance reviews, and performance management corrections.” Constellation West

argues, and defendant concedes, that there is no reference to “forecasting,” “future

needs,” or “transition” in Section M-3.2.1.2e. Instead, both parties agree that this

language was taken from Section M-3.2.1.2a of the solicitation, which requires evidence

of experience “[e]ffecting positive change on a customer’s operating model and systems

by understanding their needs, forecasting industry and the customer’s future, and then

transitioning them into a better state.” Constellation West notes, and review of the record

confirms, that its proposal was assessed a meets the standard for Section M-3.2.1.2a.

Defendant asserts that DIA made a scrivener’s error by accidentally cutting and

pasting the language of Section M-3.2.1.2a into its evaluation of Section M-3.2.1.2e.

Defendant cites Office Depot, Inc. v. United States, 95 Fed. Cl. 517 (2010), for the

proposition that such scrivener’s errors in evaluation reports constitute mere de minimis

errors, which are not sufficient grounds for overturning awards decisions. In a footnote,

defendant also argues that reliance upon unstated evaluation criteria is not the

appropriate analytical framework under which to review this alleged error because the

criteria upon which Constellation West was evaluated was stated, albeit in a different

section of the solicitation. Constellation West rejects defendant’s argument, asserting

instead that DIA’s evaluation was still based on unstated criteria that was, “in the context

of the other errors,” more than de minimis.

It is uncontested that DIA erred when it included the language for Section

M-3.2.1.1a in its evaluation of Constellation West’s proposal under Section M-3.2.1.2e.

Initially, the court agrees with defendant that DIA’s apparent cut and paste error did not

involve the use of any unstated criteria. Instead, the question is whether DIA’s error was

merely typographical or whether it affected the score Constellation West received under

Section M-3.2.1.2e. See Office Depot, Inc. v. United States, 95 Fed. Cl. at 535 (“Because

the parties and the court agree that this noted weakness is erroneous, the only question

is whether this ‘weakness’ is a mere typographical error which had no effect on the score

given Office Depot for Key Personnel [factor], or, as plaintiff argues, this erroneous

weakness contributed to an incorrect Key Personnel score for Office Depot.”).

Examination of the administrative record before this court demonstrates that three of the

four individual evaluators rated Constellation West’s proposal as meets the standard with

regard to Section M-3.2.1.2e based on the criteria actually stated in M-3.2.1.e, with each

finding that Constellation West’s proposal described experience “provisioning services

using a managed service delivery model,” and two of the three finding that the proposal

described experience using “quantitative and qualitative key performance indicators,

established service levels, quality assurance reviews, and performance management

corrections.”8 The only individual evaluator to assess a weakness under Section M-

3.2.1.2e did so by applying the standard from Section M-3.2.1.1a, finding “a distinct lack

of information regarding the understanding of needs forecasting of industry and

customer’s future needs, and how to transition the customer to a better state.”

Assignments of strengths and weaknesses were to be made based on the consensus of

the individual evaluators’ reports. Because the only individual examiner to award

Constellation West’s proposal a weakness under Section M-3.2.1.2e did so based

erroneously on the standard set forth in Section M-3.2.1.1a, rather than the one set forth

in Section M-3.2.1.2e, the only way DIA’s consensus evaluation could have reached the

same conclusion was through application of the same erroneous standard. DIA’s decision

to assign Constellation West a weakness under Section M-3.2.1.2e was, therefore, an

error. The nature of the typographical error in the present case thus differs from the one

the court found to be de minimis in the case cited by defendant, Office Depot, Inc. v.

United States, 95 Fed. Cl. 517. In Office Depot, the court found that a typographical error

present in the evaluation panel’s report was not reflected in the rating plaintiff ultimately

received for the factor because the rating was consistent with the strengths and

weaknesses noted by the individual evaluators. See id. at 535. By contrast, the

typographical error at issue here was reflected in the weakness score Constellation West

received under Section M-3.2.1.2e, which, otherwise, was inconsistent with the

comments of the individual evaluators applying the correct standard. The impact of this

error is addressed below, in the section of the opinion which addresses prejudice

regarding Constellation West.

SOW 3.2.4.9 and 3.2.4.12

Constellation West argues that its proposal was wrongfully evaluated using

unstated criteria under SOW 3.2.4.9, and SOW 3.2.4.12. Both are part of SOW 3.2.4,

which is titled “ENTERPRISE COMPUTING, STORAGE, SHARED AND FIELD

SERVICES.” (capitalization in original). SOW 3.2.4.9 states that: “The Contractor shall

8One of the two reviewers referred to the last item as “performance management

metrics,” rather than “performance management corrections.”

provide services to establish Enterprise operations, event monitoring and management,

performance monitoring, and analysis services,” and SOW 3.2.4.12 states that: “The

Contractor shall provide support for planning, execution and management of Enterprise

data backup, disaster recovery (DR), and continuity of operations (COOP) operations and

support.” With regard to SOW 3.2.4.9, DIA’s evaluation found that Constellation West’s

proposal “describes experience performing operations, monitoring, and analysis of

something less than enterprise level support.” With regard to SOW 3.2.4.12, DIA’s

evaluation found that Constellation West’s proposal “describes experience implementing

data backup, disaster recovery (DR), and continuity of operations plan (COOP) at less

than an enterprise in accordance with SOW 3.2.4.12.” Constellation West argues that

nowhere in the solicitation does the government provide a metric, standard, or measure

to determine what constitutes enterprise level. Constellation West further argues that it

did show evidence of experience working at enterprise level, with the Internal Revenue

Service (IRS) for SOW 3.2.4.9 and with the United States Strategic Command, the Air

Force Weather Agency, the United States Department of Agriculture, and the

Environmental Protection Agency for SOW 3.2.4.12. Constellation West further argues,

without citation, that experience serving such allegedly “large, diverse, and complex

organizations” meets the “generally accepted meaning of ‘enterprise-level support.[’]”9

Defendant responds that SOW 2.0, titled “SCOPE,” (capitalization in original), did

provide a metric for determining enterprise level, stating that “the E-SITE contract will

provide worldwide coverage” and involve “classified and unclassified programs on

multiple networks and security domains.” Defendant further argues that DIA’s

determination that Constellation West’s proposal did not evidence enterprise level

experience was a discretionary determination that the court should not second guess.

Defendant argues that DIA’s determination was correct because nothing in Constellation

West’s proposal showed experience providing support on a worldwide basis which

involved both classified and unclassified programs on multiple networks and security

domains.

The court notes that the term “enterprise” is not defined in the solicitation. The April

27, 2015 MFR titled “Management/Technical Evaluation Process” stated that, for the

purposes of SOW 3.2.4.9 and SOW 3.2.4.12, DIA treated the term as requiring offerors

to show “DIA Enterprise equivalent experience.” The April 27, 2015 “Evaluation Process”

MFR defines the “DIA Enterprise” as being “approximately:”

 20,000 DIA / 45,000 DoDIIS [Department of Defense Intelligence

Information System10] / 250,000 IC [Intelligence Community] user base,

9 Constellation West never has identified a specific source for its proposed definition of

the word “enterprise.” When asked directly by the court at oral argument for evidence to

support its claim that it had it had demonstrated enterprise-level experience, Constellation

West stated that its experience met the “industry standard,” but was unable to point to

any source for this standard other than common knowledge.

10The Department of Defense Intelligence Information System is “[t]he combination of

Department of Defense personnel, procedures, equipment, computer programs, and

 25 security domains across Unclassified/Secret/Top Secret,

 5 major world-wide datacenter hubs, and

 15 regional data centers,

 550 customer sites[,]

 900,000 line items of equipment in hardware asset inventory.

Just as the term “enterprise” is not defined in the solicitation, the term “DIA

Enterprise” is also not defined in the solicitation. Indeed, the term “DIA Enterprise” is not

used in the solicitation. The scope of the E-SITE solicitation described by SOW 2.0,

however, covers the same topics as those listed in the April 27, 2015 “Evaluation Process”

MFR’s definition of “DIA Enterprise.” While the “Evaluation Process” MFR states that the

“DIA Enterprise” user base included the DIA, Department of Defense Intelligence

Information System, and the Intelligence Community, the E-SITE user base described in

SOW 2.0a not only encompassed each of these three user groups, but, if anything, was

even broader, stating that:

Participating organizations will use E-SITE task orders to provide IT

services to customers across various Departments and Agencies that

include, but are not limited to, DIA, CCMDs [Combatant Commands], Air

Force, Army, Marine Corps, Navy, Coast Guard, Joint Reserve Intelligence

Program, National Command Authorities, other Department of Defense,

(DoD) Agencies, multi-national partners (e. g., coalition and alliance), and

both DoD and non-DoD members of the Intelligence Community (IC) or

other departments or agencies that consume services from the IC

members.[11]

Next, the “Evaluation Process” MFR stated that the “DIA Enterprise” included

approximately “25 security domains across Unclassified/Secret/Top Secret.” Similarly,

SOW 2.0b and SOW 2.0f noted that E-SITE involved Unclassified, Classified, and Top

Secret work, by stating: “The E-SITE contract will support both classified and unclassified

programs on multiple networks and security domains,” and “[w]hile the vast majority of

the E-SITE contract work is on top secret networks, individual task orders will specifically

identify which networks and domains (and their security level) that are to be included in

the scope of work,” respectively. Moreover, while the “Evaluation Process” MFR stated

supporting communications that support the timely and comprehensive preparation and

presentation of intelligence and information to military commanders and national-level

decision makers.” Joint Chiefs of Staff, Joint Publication 1-02, Department of Defense

Dictionary of Military and Associated Terms, 65 (Nov. 8, 2010, as amended through Nov.

15, 2015), http://www.dtic.mil/doctrine/new_pubs/jp1_02.pdf (last visited December 15,

2015).

11Similarly, SOW 1.0a, “PURPOSE,” (capitalization in original) stated that: “The E-SITE

contract will establish the acquisition framework for delivering the full scope of information

technology services and capabilities to support the DIA, the Combatant Commands

(CCMDs), the Military Services intelligence needs, and partner agency worldwide

missions across the Intelligence Community (IC).”

that the “DIA Enterprise” involved approximately “5 major world-wide datacenter hubs”

and “15 regional data centers,” SOW 2.0a made clear that the E-SITE contract involved

servicing a very large, global network of IT systems, stating:

The E-SITE contract will provide worldwide coverage for IT requirements

and technical support services supporting the Government through system

design, development, fielding, and sustainment of global intelligence and

command and control (C2) assets vital to the security of the United States

(US).

SOW 2.0 did not list the exact numbers provided in the “Evaluation Process” MFR for

each of the portions of the “DIA Enterprise,” nor that it would involve “550 customer sites”

or “900,000 line items of equipment in hardware asset inventory,” but this was reasonable

given that they described the global information technology capabilities of the United

States intelligence community and the solicitation was an unclassified document posted

on the Federal Business Opportunities website. Further, that the E-SITE contract would

involve such large numbers of users, networks, and hardware should not have come as

a surprise to offerors given the breadth of user organizations described in SOW 2.0. Nor

should offerors have been surprised that the scope of the term “enterprise” in SOW

3.2.4.9 and SOW 3.2.4.12 would be coterminous with the scope of the E-SITE contract.

That, in the absence of an express definition, the term “enterprise,” as used in the SOW,

would refer to the E-SITE contract specifically, rather than to the “generally accepted”

meaning of the word enterprise, as Constellation West argues, is logical, given that the

first sentence of the SOW stated that the SOW “described the basic services contractors

must provide to support the Defense Intelligence Agency’s (DIA) Enhanced Solutions for

the Information Technology Enterprise (E-SITE) contract vehicle.”12 Thus, DIA’s

evaluation of SOW 3.2.4.9 and SOW 3.2.4.12 did not apply criteria substantially different

than that those listed in the solicitation.

While the SSEB’s evaluation report does not elaborate as to why it found that

Constellation West’s proposal had described experience at “something less than

enterprise level support” with respect to SOW 3.2.4.9 and “at less than an enterprise in

accordance with SOW 3.2.4.12,” the April 27, 2015 MFR, titled “Past Performance

Evaluations and Management/Technical Evaluation Rating Differences,” confirms that the

reason was because the proposal “lacked detailed experience on DIA Enterprise scale

12 This interpretation is also bolstered by the use of the term “enterprise” in areas of the

SOW other than SOW 3.2.4.9 and SOW 3.2.4.12. In a number of places in the SOW, the

term “enterprise,” being used as a noun, is preceded by a definite article, e.g., “[t]he

Contractor shall provide . . . continuous visibility into the types and numbers of assets

throughout the enterprise,” (SOW 3.2.1.8), “[a]s required in support of the enterprise,

services may also include . . . ,” (SOW 3.2.2.6), and “[s]ervices include, but are not limited

to . . . acquiring new approved baseline releases from the enterprise,” (SOW 3.2.4.1). (all

emphasis added). There are no instances in the SOW, however, where the term

“enterprise,” being used as a noun, is preceded by an indefinite article. This indicates that

the term “enterprise” was being used in the SOW to refer to a specific enterprise, rather

than the general concept of an enterprise, as Constellation West argues.

projects.” With regard to SOW 3.2.4.9, Constellation West stated in its proposal that it

had “provided 24/7/365 enterprise support for the IRS,” as part of the IRS’ “Advanced

Server Management Program.” With regard to SOW 3.2.4.12, Constellation West stated

in its proposal that it had experience providing continuity of operations and disaster

recovery support services for the United States Strategic Command, the Air Force

Weather Agency, the United States Department of Agriculture, and the Environmental

Protection Agency. DIA’s evaluation conclusion that Constellation West’s experience did

not rise to the level of the “DIA Enterprise scale projects” the solicitation called for is a

“technical rating[ ] . . . which involve[s] discretionary determinations of procurement

officials that a court will not second guess.” E.W. Bliss Co. v. United States, 77 F.3d at

449; see also Glenn Def. Marine (ASIA), PTE Ltd. v. United States, 720 F.3d at 910-11

(holding that the Navy’s determination that “contracts performed by [an offeror] were of

similar scope, magnitude, and complexity to that in the Solicitation” as part of the

evaluation process “is owed deference”). Further, while Constellation West may be

correct that its experience involved support for “large, diverse, and complex

organizations,” Constellation West points to no evidence in its proposal, and the court’s

review of the record does not reveal, that its experience encompassed the broad user

base, use of classified and unclassified networks, and global reach called for to meet the

requirements of either SOW 2.0 or DIA’s definition of the “DIA Enterprise.” In sum,

Constellation West has failed to show that DIA’s decision to assess it weaknesses under

SOW 3.2.4.9 and SOW 3.2.4.12 for failing to demonstrate experience working at an

“enterprise” level was arbitrary, capricious, or contrary to law.

SOW 3.2.6

With respect to SOW 3.2.6, Constellation West argues that DIA used unstated

criteria when it assigned Constellation West six significant weaknesses and five

weaknesses for not responding to what it terms the “4-digit subfactors” of SOW 3.2.6 that

DIA used in its evaluation. According to Constellation West these “4-digit subfactors” were

not included in SOW 3.2.6 and there was no mention in SOW 3.2.6 that offerors would

be rated for “each non-existent 4-digit subfactor with the 3-digit subfactor.” In support of

its argument, Constellation West points to the language in SOW 3.2.6 that “Cybersecurity

and IA services include, but are not limited to, . . .” which preceded the list of items that

DIA would ultimately treat as the “4-digit subfactors.” (emphasis in original). According to

Constellation West, this language indicated only that these were topics that

“Cybersecurity and IA services could include,” but not that proposals would be scored

against all of the topics. (emphasis in original). Constellation West argues that DIA’s

actions “had the impact of penalizing CWI for not specifically responding to each topic

that was turned into 4 digit subfactors,” which “were only stated generally in a 3 digit

subfactor of the RFP.” (emphasis in original). Constellation West argues that its case is

analogous to Dubinsky v. United States, 43 Fed. Cl. 243 (1999), in which the court found

that evaluators had improperly used a four-tier rating system to rate offerors, rather than

the three-tier system stated in the RFP.

Defendant asserts that Constellation West’s argument “elevates form over

substance.” According to defendant, DIA’s decision to assign four digit numbers to the

elements of SOW 3.2.6 during the evaluation process did not affect the criteria upon which

DIA based the evaluation or introduce any new requirements to the SOW. Defendant

argues that the criteria upon which DIA based its evaluation were identical to those criteria

disclosed in the solicitation. Defendant further argues that the solicitation required offerors

to address each of these criteria, pointing to language in the solicitation stating that

offerors “shall provide evidence of the depth and breadth of their team’s experience and

details of their team’s expertise on on-going and completed projects . . . with respect to

all areas under SOW 3.2” and that “Cybersecurity and IA services include, but are not

limited to” the elements in SOW 3.2.6. Finally, defendant distinguishes Dubinsky, arguing

that the rating system used to evaluate proposals in Dubinsky contained a substantive

standard for evaluation that was different than the substantive standard of the disclosed

rating system.

The solicitation in the cases currently under consideration stated that “[i]nformation

required for proposal evaluation that is not found in its designated volume may result in

unfavorable proposal evaluation.” With regards to Management/Technical portion of

proposals, the solicitation required offerors to “provide evidence of the depth and breadth

of their team’s experience and details of their team’s expertise on on-going and completed

projects (as a prime or a subcontractor) with respect to all areas under SOW 3.2.”

(emphasis added). One of the areas under SOW 3.2 was SOW 3.2.6, which stated that:

The Contractor shall provide diverse Cybersecurity and Information

Assurance (IA) services . . . . Cybersecurity and IA services include, but are

not limited to, policy development; security technical assessment; insider

threat assessment; security architecture development; security

engineering; certification and accreditation; security compliance (such as

ICD 503 and ICD 705, DoDI 8500 IA controls and other relevant DoD and

IC policies), IA training management in accordance with DoDD 8570.1,

audit, assessment, and reporting services; Computer Network Defense

Service Provider (CNDSP) and inspection services IAW DoDD 8530.1,

Chairman of the Joint Chief of Staff Instructions (CJCSI) 6510.01E, and

CJCSM 6510.01; vulnerability assessment and management; metrics

consolidation and reporting (to include the Federal Information Security

Management Act (FISMA) requirements); computer network defense (CND)

operations, monitoring, and analysis; cybersecurity and IT systems and

tools administration and maintenance; incident response, tracking, and

resolution; cross-domain solutions support; inter-agency coordination; and

PKI procedures and guidance.

(emphasis added).

The dictionary meaning of the word “include” is “[t]o contain as part of something.”

Black's Law Dictionary 880 (10th ed. 2014). Thus, the phrase “Cybersecurity and IA

services include,” followed by a list of topics, meant that the terms Cybersecurity and IA

services contained each of the listed topics. The use of the modifying phrase “but are not

limited to” after the word “include” indicates that the list of topics could have been a partial

one, but definitely includes the items listed. See id. (“The participle including typically

indicates a partial list . . . . But some drafters use phrases such as including without

limitation and including but not limited to — which mean the same thing.”) (emphasis in

original). Thus, the language of the solicitation put offerors on notice that their proposals

would be evaluated on whether they “provide[d] evidence of the depth and breadth of

their team’s experience and details of their team’s expertise on on-going and completed

projects (as a prime or a subcontractor) with respect to” each one of the components

listed in SOW 3.2.6 after the words “Cybersecurity and IA services include, but are not

limited to.” These items were precisely how Constellation West was evaluated. The

following chart, a modified version of one provided by defendant, which compares the

language contained in SOW 3.2.6 of the solicitation, the April 27, 2015 MFR, titled

“Management/Technical Evaluation Process,” explaining the components that SOW 3.2.6

was broken up into for evaluation purposes, and DIA’s evaluation of Constellation West’s

Management/Technical proposal for each of the components of SOW 3.2.6 for which

Constellation West was assessed a weakness or significant weakness, is instructive:

SOW 3.2.6 of the April 27, 2015 Evaluation of Constellation West’s

Solicitation MFR Proposal

“policy “SOW 3.2.6.1 “SOW 3.2.6.1 . . . . The Offeror’s

development . . . Policy proposal describes an approach but

certification and Development; lacks detail on experience providing

accreditation; security Security cybersecurity information assurance

compliance (such as compliance (IA) policy development, security

ICD 503 and ICD 705, (policies ICD compliance and certification and

DoDI 8500 IA controls 503/705, DOD accreditation (C&A) activities for on-

and other relevant 8500); Certification going or completed projects.”

DoD and IC policies)” and accreditation”

“security technical “SOW 3.2.6.2 “SOW 3.2.6.2 . . . . The Offeror’s

assessment; insider Security technical proposal lacks details on the Offeror’s

threat assessment” assessment; approach to security technical

Insider assessment and insider threat

threat assessment” assessment, and lacks relevant

details on experience for any past, or

current projects.”

“security architecture “SOW 3.2.6.3 “SOW 3.2.6.3 . . . . The Offeror’s

development; security Security proposal details the Offeror’s

engineering” architecture approach to security architecture

development; development and engineering but

Security lacks relevant details on experience

engineering” for any past, or current projects.”

“IA training “SOW 3.2.6.4 IA “SOW 3.2.6.4 . . . . The Offeror’s

management in training proposal lacks description of their

accordance with DoDD management depth and breadth of experience and

8570.1, audit, (DoDD 8570.1 details of their expertise on similar on-

assessment, and audit/assessment/ going and completed projects as

reporting services” reporting)” defined in M-3.2.2 Sub-factor 2:

Technical Experience and Expertise

mapped to functional areas listed in

SOW.

The Offeror’s proposal, pages 96-97,

cites: ‘. . . The Information Assurance

Training Team develops, maintains

and improves user IT Security

Awareness and role based training for

personnel with IT Security related

responsibilities. The Team also

provides reporting for annual training

requirements . . .’.” (second and third

omissions in original).

“Computer Network “SOW 3.2.6.5 “SOW 3.2.6.5 . . . . The Offeror’s

Defense Service Computer Network proposal lacks significant detail and

Provider (CNDSP) and Defense Service provides no information on an

inspection services Provider (CNDSP) approach to or experience in providing

IAW DoDD 8530.1, & inspection Computer Network Defense (CDN)

Chairman of the Joint services (DoD Service Provider (SP) & inspection

Chief of Staff 8530.1 (CJCSI) services for on-going or completed

Instructions (CJCSI) 6510.01E, and projects.”

6510.01E, and CJCSM CJCSM 6510.01)”

6510.01”

“Vulnerability “SOW 3.2.6.6 “SOW 3.2.6.6 . . . . The Offeror’s

assessment and Vulnerability proposal lacks significant detail and

management; metrics assessment and provides no information on an

consolidation and management; approach to or experience in providing

reporting (to include Metrics vulnerability assessment, metrics

the Federal consolidation and consolidation and reporting activities

Information Security reporting (FISMA)” for on-going or completed projects.”

Management Act

(FISMA)

requirements)”

“cybersecurity and IT “SOW 3.2.6.8 “SOW 3.2.6.8 . . . . The Offeror’s

systems and tools Cybersecurity and proposal lacks significant detail and

administration and IT systems and provides no information on an

maintenance ” tools admin and approach to or experience in providing

maintenance” Information Assurance tools

administration and maintenance for

on-going or completed projects.”

“incident response, “SOW 3.2.6.9 “SOW 3.2.6.9 . . . . The Offeror’s

tracking, and Incident proposal lacks description of their

resolution . . . inter- response/tracking/ depth and breadth of experience and

agency coordination” resolution; inter- details of their expertise on similar on-

agency going and completed projects as

coordination” defined in M-3.2.2 Sub-factor 2:

Technical Experience and Expertise

mapped to functional areas listed in

SOW.

The Offeror’s proposal, page 97, cites:

‘. . . . The Incident Response (IR)

Team conducts formal investigation of

security events and incidents that

have been escalated by the SOC. The

IR Team record, [sic] tracks, contains,

remediates and reports all incidents.

The IR Team facilitates and

coordinates intra and intra [sic]

agency teams as necessary until

incident closure . . .’.” (third omission

in original).

“PKI procedures and “SOW 3.2.6.10 PKI “SOW 3.2.6.10 . . . . The Offeror’s

guidance” procedures and proposal lacks detailed information

guidance” within, or does not seem to address

PKI procedures and guidance.”

“cross-domain “SOW 3.2.6.11 “SOW 3.2.6.11 . . . . The Offeror’s

solutions support” Cross-domain proposal lacks details on the Offeror’s

solutions support” approach to IA cross domain solutions

and support, and lacks relevant

details on any experience for a past or

current project.”

(all emphasis added).

The chart shows that the criteria on which Constellation West was evaluated were

identical, or substantially similar to, the components listed in the solicitation at SOW 3.2.6.

While DIA did assign each of the components a new four digit code as part of the

evaluation process, this did nothing to alter the substance of the components. Because

the language in the solicitation required Constellation West to address each of SOW

3.2.6’s components, DIA’s decision to assign Constellation West weaknesses and

significant weaknesses for failing to do so cannot be said to have been based on

undisclosed criteria, regardless of how DIA chose to label the components during the

evaluation process.

Constellation West is not helped by Dubinsky v. United States, 43 Fed. Cl. 243,

as, in Dubinsky, the RFP stated that proposals would be evaluated against twenty three

technical specifications listed in the RFP using a three-tier rating system—(+), (0) or (-)—

in order to determine the offeror’s score for a “technical requirements” factor. See id. at

247-48 & 248 n.11. In its evaluation, the government evaluated each of these

specifications using a four-tier rating system—(++), (+), (0), or (-)—rather than the three

tier system described in the RFP. Id. at 247-48. The Dubinsky court found that the

government’s use of the four tier system was arbitrary and capricious because the FAR

“does not grant contracting officers carte blanche to notify offerors of one rating system

in the RFP and to then apply a different system during the evaluation of proposals.” Id. at

267 n.56 (citing Clean Florida, Inc., B-233262, 88-2 C.P.D. ¶ 411 at 2 (Comp. Gen. Oct.

28, 1988); Idaho Norland Corp, B- 230598, 88-1 C.P.D. ¶ 529 at 3 (Comp. Gen. June 6,

1988)). Constellation West argues that the present case is analogous to Dubinsky

because “contrary to the express language of the RFP, SOW 3.2.6, which was supposed

to be evaluated as a 3 digit subfactor, was broken down into eleven 4 digit subfactors

from topics that were mentioned in the subfactor in general terms.” As discussed above,

however, the components of SOW 3.2.6 that were assigned four digit numbers by DIA

during its evaluation were stated explicitly in identical or almost identical form, albeit as

part of a three digit description. Additionally, the express language of the solicitation did

not require DIA to evaluate SOW 3.2.6 as a single sub-factor, but instead stated that

offerors were to address “all areas under SOW 3.2,” and that one of those areas, SOW

3.2.6, would “include” the components of SOW 3.2.6 to which DIA later assigned four digit

numbers. Ultimately, the portion of Constellation West’s proposal addressing SOW 3.2.6

was evaluated under the same substantive criteria stated in the solicitation. The effects

of DIA’s decision to assign four digit numbers to the components of SOW 3.2.6 during the

evaluation process were not significant and did not impact the substance of the

evaluation. Also important to the discussion is that all the offerors were evaluated using

the same criteria and sub-criteria. See id. at 269-70 (finding that the government’s

decision to supplement one offeror’s technical rating with two “bonus” scores based on

criteria not stated in the solicitation improperly “created an unlevel playing field”).

Therefore, the government’s approach in Dubinsky of creating an entirely new rating

system is distinct from DIA’s evaluation of Constellation West’s proposal, which

conformed to the description in the solicitation. Moreover, the court in Dubinsky found

that the procurement at issue “was mishandled from start to finish. It was riddled with

violations of procurement regulations and arbitrary and capricious conduct by the

contracting officer.” Id. at 274. No such widespread wrongdoing has been alleged by

Constellation West.

Constellation West also argues that Lab Corp. of America Holdings v. United

States, 116 Fed. Cl. 643 (2014), and 360Training.com, Inc. v. United States, 106 Fed. Cl.

177 (2012), support its claim that DIA’s use of four digit components to evaluate the

portion of its application involving SOW 3.2.6 constituted the use of impermissible

undisclosed criteria. In Lab Corp. of America Holdings, the VA used the number of “FSS

[Federal Supply Schedule] test types listed” in offerors’ proposals as the “predominant

differentiator used in selecting” an awardee, even though “neither the RFQ nor SOW

indicated that the VA would evaluate offerors' proposals based on the number of FSS test

types listed” and the VA “insufficiently documented its technical evaluation.” Lab Corp. of

Am. Holdings v. United States, 116 Fed. Cl. at 651-52. In 360Training.com, the court

stated, “the Court cannot discern the exact process OSHA used to evaluate the

applications because there are many inconsistencies among the documents and the

contemporaneous evaluations do not match OSHA's final conclusions.” 360Training.com,

Inc. v. United States, 106 Fed. Cl. at 191. The 360Training.com court’s findings included

that the solicitation did not disclose the applicant organization’s probation status as an

eligibility requirement, id. at 194, and that the agency placed undue weight on past

performance. See id. at 195. In both cases cited by Constellation West, proposals were

evaluated on criteria that were not mentioned in or otherwise indicated by the solicitation.

As noted above, in the current protest, the DIA solicitation made clear that offerors were

required to address each of the components listed in SOW 3.2.6, including those for which

Constellation West was ultimately assessed a weakness or a significant weakness. DIA’s

decision to assign four digit numbers to each of those components did not alter the

substance of that requirement, the subject matter to be addressed, or otherwise introduce

new evaluation criteria, and Lab Corp. of America Holdings and 360Training.com do not

assist Constellation West.

Prejudice

The record demonstrates that DIA erred when it assigned one of the weaknesses

to the Technical/Management portion of Constellation West’s proposal, based on Section

M-3.2.1.2e of the solicitation. As noted above, however, to prove its claim Constellation

West also must show that it was prejudiced as a result of the error, i.e., “that there was a

‘substantial chance’ it would have received the contract award but for the error[ ].”

Bannum, Inc. v. United States, 404 F.3d at 1353 (quoting Info. Tech. & Applications Corp.

v. United States, 316 F.3d at 1319; Alfa Laval Separation, Inc. v. United States, 175 F.3d

1365, 1367 (Fed. Cir. 1999)). Awards under the E-SITE contract were awarded based on

a best-value analysis. Under the terms of the solicitation, DIA’s best-value analysis was

based on proposals’ prices and the ratings received for the Management/Technical and

Past Performance Factors. Constellation West does not allege that either the total

evaluated price, $[redacted], or the Past Performance rating, Satisfactory Confidence, for

its proposal were incorrectly determined. Therefore, to show that the error could have

affected DIA’s best-value analysis, let alone the award of contracts, Constellation West

must show that the error affected the Management/Technical rating it received. The

elements of the Management/Technical portion of Constellation West’s proposal were

assigned no significant strengths, fifteen strengths, twenty six weaknesses

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