The opinion
In the United States Court of Federal Claims
No. 16-348C
(Filed: May 26, 2016)1
(Bid Protest)
*****************************
* 28 U.S.C. § 1491(b); Bid
SPECTRUM COMM, INC., * Protest; Permanent Injunction;
* FAR Part 8.405; Best Value
Plaintiff, * Procurement; Tradeoff
* Decision; Failure of Source
v. * Selection Authority to Follow
* Source Selection Evaluation
THE UNITED STATES, * Board’s Recommendation.
*
Defendant, *
*
and *
*
JACOBS TECHNOLOGY INC., *
*
Intervenor. *
*
*****************************
David Y. Yang, David M. Nadler, and Philip E. Beshara, Blank Rome LLP, 1825 Eye
Street, NW, Washington, D.C. 20006-5403, for Plaintiff.
Benjamin Mizer, Robert E. Kirschman, Jr., Elizabeth Hosford, and Mariana Acevedo,
U.S. Department of Justice, Civil Division, Commercial Litigation Branch, P.O. Box 480, Ben
Franklin Station, Washington, D.C. 20044, for Defendant. Erika L. Whelan Retta, Major George
M. Ebert, and Kerry A. Carlson, United States Air Force, Of Counsel.
Robert J. Symon and Aron C. Beezley, Bradley Arant Boult Cummings LLP, 1615 L.
Street, N.W., Suite 1350, Washington, D.C. 20036, for Intervenor.
1
The Court issued this opinion under seal on April 28, 2016, and directed the parties to file
proposed redactions by May 6, 2016. The Court publishes this Opinion indicating redactions by
asterisks [***].
_________________________________________________________
OPINION AND ORDER
_________________________________________________________
WILLIAMS, Judge.
This post-award bid protest comes before the Court on Plaintiff Spectrum Comm, Inc.’s
(“Spectrum”) motion for a permanent injunction. Plaintiff challenges the United States
Department of the Air Force’s (“Air Force”) award of a contract for support services for the Air
Force Wideband Enterprise Terminals (“AFWET”) Program, to Intervenor, Jacobs Technology,
Inc. (“Jacobs”). Spectrum contests the Air Force’s award on three grounds:
1) The Air Force’s corrective action upgrading Jacobs’ past performance rating
from “Very Good” to “Exceptional” was arbitrary and capricious and without a
rational basis;
2) The Air Force failed to comply with the RFQ requirements in making its best
value determination by not giving due weight to the “Mission Capability”
technical factor; and
3) The Air Force improperly converted the RFQ from a best value into a lowest-
priced technically acceptable procurement.
Plaintiff requests that the Court enter a permanent injunction prohibiting the Air Force from
allowing Jacobs to perform and directing the Air Force to make award to Spectrum.
On April 5, 2016, the Court orally denied Plaintiff’s motion for a preliminary injunction,
finding that Plaintiff had not shown a likelihood of success on the merits and that significant
national security interests warrant maintaining the contract award schedule.
Given the extensive briefing and oral argument at the preliminary injunction phase, the
Court dispensed with further briefing. See Tr. 68.
Findings of Fact2
A Critical Program
The AFWET Program is a $1.3 billion operation that provides worldwide satellite
communications to support military missions of the United States and Coalition forces. AR 79;
Patterson Decl. ¶¶ 1, 2. AFWET’s responsibilities include maintaining 30 large satellite
communications antennae at 21 sites - - called Geographically Separated Units (“GSUs”) - -
located around the world. AR 79; Patterson Decl. ¶ 2. These antennae provide “long haul
satellite communications over Super High Frequency satellites . . . and serve as the primary
2
These findings of fact are derived from the Administrative Record (“AR”). Additional
findings of fact are in the Discussion. The Court does not correct grammatical or typographical
errors in quotations from the record.
2
Military Satellite Communications backbone for the [Department of Defense].” AR 79. As
such, the “AFWET terminals provide communication links necessary to meet crucial national
strategic and tactical command, control, communications and intelligence requirements.” Id.
The Request for Quotation
On June 5, 2015, the Air Force issued Request for Quotation (“RFQ”) No. 964304,
requesting quotations for product support services for the modernization of the enterprise
terminals for the AFWET Program at the Program’s main office at Hanscom Air Force Base, its
associated GSUs, and operating locations. AR 11. Under the RFQ, the contractor was to
provide support services under the “Professional Engineering Services (PES) Government
Services Administration (GSA) contract.” Id. As the RFQ was the second iteration of the
product support services quotation, the Air Force titled it “Product Support Services 2” or
“PSS2.” Id. Spectrum was the incumbent.
The RFQ called for a six-month base period and five options of six months each. Id. The
six-month base period was originally set to begin on August 15, 2015, and run through February
14, 2016. AR 16. Award was to be made in accordance with FAR Part 8.405, Ordering
Procedures for Federal Supply Schedules. AR 11; 48 C.F.R. § 8.405 (2011).
FAR Part 8.405-2 addresses evaluating best value procurements as follows:
(d) Evaluation. The ordering activity shall evaluate all responses received using
the evaluation criteria provided to the schedule contractors. The ordering activity
is responsible for considering the level of effort and the mix of labor proposed to
perform a specific task being ordered, and for determining that the total price is
reasonable.
48 C.F.R. § 8.405-2(d) (2012).
Unlike competitive procurements under FAR Part 15, procurements under FAR Part
8.405 only require the following minimum documentation:
(f) Minimum documentation. The ordering activity shall document—
(1) The schedule contracts considered, noting the contractor from which
the service was purchased;
(2) A description of the service purchased;
(3) The amount paid;
(4) The evaluation methodology used in selecting the contractor to receive
the order;
(5) The rationale for any tradeoffs in making the selection;
(6) The price reasonableness determination required by paragraph (d) of
this subsection;
(7) The rationale for using other than—
(i) A firm-fixed price order; or
(ii) A performance-based order; and
(8) When an order exceeds the simplified acquisition threshold, evidence
of compliance with the ordering procedures at 8.405–2(c).
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48 C.F.R. § 8.405-2(f). Compare 48 C.F.R. § 15.305 (2014).
As required by FAR Part 8.405-2(b), the Air Force attached the AFWET Performance
Work Statement (“PWS”) to the RFQ that detailed the services required. AR 76-104. The PWS
defined the project scope as:
The AFWET Program Office requires product support services to implement the
[Modernization of Enterprise Terminals] and other smaller modernization actions
in order to sustain existing Wideband Enterprise Terminals.
Required services include: implementation project management, integration of
diverse implementation efforts, civil engineering expertise to implement site
preparation activities, logistics expertise to integrate system into [the Air Force]
sustainment structure and support field units, [Satellite Communication]
equipment expertise for training operators/maintainers, and installation expertise
to ensure systems are installed correctly.
AR 79. To effect these services, the RFQ required offerors to provide the following categories
of personnel:
Senior Engineering and Integration Lead
Senior [Satellite Communications] Implementation Leads
Mid-Level [Satellite Communications] Installation Leads
Civil Engineering Implementation Leads
Senior Logistics Implementation Leads
Mid-Level Logistics Implementation Leads
Senior Transportation Logistics Lead
Mid-Level Project Integrator
Senior Equipment Training Lead
AR 12-13, 81. The PWS detailed the requirements for each position. AR 82-93.
The RFQ provided that award was to be made on a best value basis according to the
following criteria:
a. Mission Capability is the most important factor. Past Performance is less
important than Mission Capability but more important than Cost/Price.
Mission Capability and Past Performance combined are significantly more
important than Cost/Price; however, Cost/Price will contribute
substantially to the selection decision.
b. Mission Capability will be measured by how well the labor codes and
descriptions selected by the offerors match Government requirements as
detailed in the PWS. Failure to meet minimum requirements as defined in
the PWS could result in elimination from competition.
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c. Past Performance will be measured by relevant [Contractor Performance
Assessment Reports]3 submitted within the past 2 years from the release of
the RFQ and research among other Government customers.
AR 11-12.
With respect to Past Performance, the RFQ required, in addition to the Contractor
Performance Assessment Reports (“CPARs”), that:
The offeror[s] . . . include contract information from the three most recent and
relevant contracts in their quotation. This information is to include contract
number, dollar value, a short description of the services provided and contact
information.
AR 12.
Beyond the RFQ, the Air Force developed a color-coded rating scale to evaluate the two
technical factors: Mission Capability and Past Performance, but did not share this rating scale
with offerors. Compare AR 152-54, with AR 11-12. For Mission Capability, the scale provided:
RATING SCALE
Color Rating Definition
EXCEPTIONAL Performance meets contractual requirements and exceeds
[blue] many to the Government’s benefit
VERY GOOD Performance meets contractual requirements and exceeds
[purple] some to the Government’s benefit
SATISFACTORY Performance meets contractual requirements
[green]
MARGINAL Performance does not meet some contractual requirements
[yellow]
UNSATISFACTORY Performance does not meet most contractual requirements
[red]
AR 152-53. The “evaluation team” was to provide an overall “color rating” for Mission
Capability based on comparing the “labor code descriptions selected by the contractor and the
position descriptions as described in the PWS.” AR 12.
For Past Performance, the Air Force used a similar rating scheme:
3
Contractor Performance Assessment Reports (“CPARs”) are past performance
evaluations prepared by an agency and housed in an electronic Governmentwide evaluation
reporting tool, the Past Performance Information Retrieval System (“PPIRS”). 48 C.F.R. §§
42.1501, 42.1502.
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RATING SCALE
Color Rating Definition
EXCEPTIONAL Based on the offeror’s recent/relevant performance record,
[blue] the Government has a very high expectation that the
offeror will successfully perform the required effort.
VERY GOOD Based on the offeror’s recent/relevant performance record,
[purple] the Government has a high expectation that the offeror
will successfully perform the required effort.
SATISFACTORY Based on the offeror’s recent/relevant performance record,
[green] the Government has a reasonable expectation that the
offeror will successfully perform the required effort.
MARGINAL Based on the offeror’s recent/relevant performance record,
[yellow] the Government has a low expectation that the offeror will
successfully perform the required effort.
UNSATISFACTORY Based on the offeror’s recent/relevant performance record,
[red] the Government has no expectation that the offeror will be
able to successfully perform the required effort.
AR 153-54.
For Cost/Price, the Air Force’s internal rating scale provided:
Cost/Price will be evaluated for reasonableness. In evaluating cost/price, the
Cost/Price Evaluation Team will determine fair and reasonableness based upon
historical costs, the previous iteration of [product support services], and the
Program Office internal government cost estimate.
AR 154.
The Air Force’s Evaluation and Award
The RFQ required offerors to submit quotations electronically by July 6, 2015, at 12:00
p.m., and each quotation was to remain valid for 120 days. AR 148. Three offerors timely
submitted quotations: Spectrum, Jacobs, and Honeywell Technology Solutions Inc.
(“Honeywell”). AR 593. The offers were first evaluated by a Source Selection Evaluation
Board (“SSEB”) and then independently reviewed by the Contracting Officer, who acted as the
Source Selection Authority. AR 623
The Source Selection Evaluation Board’s Recommendation
On September 18, 2015, the SSEB chairperson, AFWET Program Manager Shawn M.
Patterson, issued a Proposal Analysis Report (“PAR”) for the RFQ. AR 614. The PAR
contained the SSEB’s evaluation of both price and technical factors. AR 596-614. With respect
to “Source Selection Procedures,” the PAR noted:
This is a competitive best-value trade-off source selection conducted in
accordance with FAR Part 8. The Government will select the best overall offer,
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based upon an integrated assessment of Mission Capability, Past Performance,
and Cost/Price. The contract may be awarded to the offeror who is deemed
responsible [in accordance with] the FAR, as supplemented, whose proposal
conforms to the solicitation’s requirements to include all stated terms, conditions,
and all other information required on the [RFQ] based on the evaluation factors
and sub factors that represent the best value to the Government. This may result
in an award to a higher rated, higher priced offeror, where the decision is
consistent with the evaluation factors, and the Source Selection Authority (SSA)
determination that the technical and/or overall business approach and/or past
performance of the higher price offeror outweighs the cost difference. The SSA
will base the source selection decision on an integrated assessment of proposals
against all source selection criteria in the solicitation.
AR 588 (emphasis added).
The SSEB review occurred between July 6, 2015 and August 3, 2015. AR 614.
Following review of each offer, the SSEB concluded the following:
Evaluation Results
Evaluation Criteria Jacobs Honeywell Spectrum
Factor 1 – Mission SATISFACTORY UNSATISFACTORY VERY GOOD
Capability [green] [red] [purple]
Factor 2 – Past VERY GOOD MARGINAL EXCEPTIONAL
Performance [purple] [yellow] [blue]
Factor 3 – Price $7,971,137.36 $11,177,770.53 $8,369,751.55
AR 596.
For Mission Capability the SSEB compared the personnel listed by each offeror with the
nine position categories described in the PWS. AR 589-90. The SSEB also defined sub-ratings,
based on color - - purple, green, yellow, and red - - by which each Mission Capability position
would be evaluated. AR 590-91. Relevant here are the sub-factors for purple and green - - the
sub-factor color ratings awarded to Spectrum and Jacobs, respectively, on Mission Capability:
Purple: Able to perform duties at a very high level
[1] Education: The position has an education background that is far over the
minimum requirement (e.g. Master’s vs. Bachelors)
[2] Years of Experience: The position has years of experience more than 2 years
above what is desired
[3] Security Clearance: The position has a Security Clearance above the minimum
requirement
[4] Ability to: The position description goes above and beyond the qualifications
listed in the [Performance Work Statement]
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Green: Able to perform duties
[1] Education: The position has an education background that meets the
minimum requirement
[2] Years of Experience: The position has years of experience within 1-2 years
(over or under) of what is desired
[3] Security Clearance: The position meets the required Security Clearance
[4] [Professional Engineer]: The position has proposed a [Professional Engineer]
(Civil Engineering Implementation Lead Only)
[5] Ability to: The position described aligns well with the qualifications listed in
the [Performance Work Statement].
Id. An overall “Very Good” rating was given to the RFQ positions with at least one “Purple”
sub-rating and no ratings below “Green.” AR 590. An overall “Satisfactory” rating was given to
the RFQ positions that had all “Green” subratings, and no ratings below “Green.” Id.
The SSEB then rated Mission Capability for the nine position categories based on the
color-rated sub-factors for Jacobs and Spectrum according to the following chart:
Mission Capability Positions
Position Jacobs Spectrum
Senior Engineer and VERY GOOD SATISFACTORY
Integration Lead [1 purple; 3 green] [4 green]
Senior [Satellite SATISFACTORY VERY GOOD
Communication] [4 green] [2 purple; 2 green]
Implementation Lead
Mid-Level [Satellite SATISFACTORY VERY GOOD
Communication] Installation [4 green] [2 purple; 2 green]
Lead
Senior Civil Engineering SATISFACTORY VERY GOOD
Implementation Lead4 [5 green] [1 purple; 4 green]
Senior Logistics SATISFACTORY VERY GOOD
Implementation Lead [4 green] [1 purple; 3 green]
Mid-Level Logistics SATISFACTORY VERY GOOD
Implementation Lead [4 green] [2 purple; 2 green]
Senior Transportation SATISFACTORY VERY GOOD
Logistics Implementation Lead [4 green] [2 purple; 2 green]
Mid-Level Project Integrator VERY GOOD VERY GOOD
[1 purple; 3 green] [1 purple; 3 green]
Senior Equipment Training SATISFACTORY VERY GOOD
Lead [4 green] [1 purple; 3 green]
Overall Assessment SATISFACTORY VERY GOOD
4
The Senior Civil Engineering Implementation lead had an additional sub-factor
requirement that the position be held by a Professional Engineer, in addition to the four sub-
factor requirements for all categories - - education, experience, security clearance, and ability to
meet the requirements in the Performance Work Statement. AR 590-91.
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AR 596-600, 606-11.
Looking at the sub-ratings for Mission Capability, the SSEB awarded Jacobs two purple
and 35 green ratings out of 37 sub-ratings, and Spectrum 12 purple and 25 green ratings out of
37 sub-ratings for Mission Capability. Id. Of Spectrum’s 12 purple sub-ratings, 11 related to
the sub-factors of experience and education, while one purple rating related to the proposed
employee’s ability to perform the PWS requirements for the Mid-Level Satellite
Communications Installation Lead position. AR 446-48.
The following charts illustrate the differences between Spectrum’s and Jacobs’ ratings on
the experience and education sub-factors:
Education Sub-factor Ratings
Position Title Position Qualifications Spectrum’s Jacobs’ Proposed
Proposed Education Level
Education Level
Senior Engineering Master’s in technical or Master’s Degree Master’s Degree
and Integration Lead engineering field [green] [green]
(required)
Senior [Satellite Bachelor’s in technical or Master’s Degree Bachelor’s Degree
Communications] engineering [purple] [green]
Implementation Lead (preferred)/Master’s
(desired)
Mid-Level [Satellite Bachelor’s in technical or Bachelor’s Degree Bachelor’s Degree
Communications] engineering field [green] [green]
Installation Lead (preferred)/Master’s
(desired)
Senior Civil Bachelor’s in Civil Master’s Degree Bachelor’s Degree
Engineering Engineering (required)/ [purple] [green]
Implementation Lead Master’s (desired)
Senior Logistics Bachelor’s Degree Master’s Degree Bachelor’s Degree
Implementation Lead (required) [purple] [green]
Mid-Level Logistics Bachelor’s Degree Master’s Degree Bachelor’s Degree
Implementation Lead (required) [purple] [green]
Senior Transportation Bachelor’s Degree Master’s Degree Bachelor’s Degree
Logistics (required) [purple] [green]
Implementation Lead
Mid-Level Project Bachelor’s Degree Bachelor’s Degree Bachelor’s Degree
Integrator (required) [green] [green]
Senior Equipment Bachelor’s (required) in Bachelor’s Degree Bachelor’s Degree
Training Lead technical or engineering [green] [green]
field (preferred)/ Master’s
(desired)
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AR 446-48, 482-84.
Experience Sub-factor Ratings
Position Title Position Qualifications Spectrum Jacobs’ Proposed
Proposed Education Level
Education Level
Senior Engineering 14 years applicable 15 years 30 years
and Integration Lead experience (desired) [green] [purple]
Senior [Satellite 12 years applicable 15 years 14 years
Communications] experience [purple] [green]
Implementation Lead
Mid-Level [Satellite 8 years applicable 12 years 8 years
Communications] experience [purple] [green]
Installation Lead
Senior Civil 14 years applicable 15 years 14 years
Engineering experience [green] [green]
Implementation Lead
Senior Logistics 14 years applicable 15 years 14 years
Implementation Lead experience (desired) [green] [green]
Mid-Level Logistics 8 years applicable 15 years 8 years
Implementation Lead experience (desired) [purple] [green]
Senior Transportation 12 years minimum 15 years 14 years
Logistics [purple] [green]
Implementation Lead
Mid-Level Project 2 years minimum with 6 years 5 years
Integrator project/schedule/resource [purple] [purple]
management
Senior Equipment 8 years applicable 12 years 8 years
Training Lead (desired) [purple] [green]
Id.
After Mission Capability, the SSEB turned to the offerors’ past performance. For Jacobs,
the SSEB found 50 Contractor Performance Assessment Reports (“CPARs”), reviewed seven,
and ranked Jacobs’ past performance as “Very Good (purple),” stating:
Jacobs Technology Inc. has had substantial success on other relevant and similar
contracts. Almost every area of each contract qualified as robust with only 1
rating below satisfactory in management of key personnel. Considering the
research only uncovered one instance in which the contractor was marginal, and
with a majority of the ratings at Exceptional, the evaluation team believes Jacobs
Technology Inc. has shown to be very capable in executing similar contracts . . . .
Although the majority of the ratings were marked as exceptional, the evaluation
team felt that even one marginal rating on a government labor contract would put
the AFWET Program Office at risk for less than exceptional performance.
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Therefore, the evaluation team arrived at a consensus of Very Good (Purple) due
to consistent ratings of Exceptional and Very Good in all areas of evaluation, but
1 Marginal Rating that negatively affected the offeror’s overall rating.
AR 600; see AR 1517.
With respect to Spectrum, the SSEB found only five relevant CPARs, reviewed all five,
and ranked Spectrum’s past performance as “Exceptional (blue),” stating:
Spectrum Comm Inc. has had substantial success on other relevant contracts.
Almost every area of each contract qualified as robust with only one rating below
Very Good (purple) in schedule management. Therefore, Spectrum Comm Inc.
has shown to be very capable in executing similar contracts. The evaluation team
arrived at a consensus of Exceptional (Blue) due to consistent ratings of
Exceptional (Blue) in all areas . . . . Due to consistent Exceptional (Blue)
performances the Past Performance Evaluation Team is confident in their
assessment of Exceptional (Blue).
AR 611.
The SSEB also found both Spectrum’s price of $8,369,751.55 and Jacobs’ price of
$7,971,137.36 to be fair and reasonable based on the Independent Government Estimate of
$8,763,639.21, as well as historical prices, and a comparison to other offerors’ prices. AR 9,
611-12.
In conclusion, the SSEB wrote the following substantively identical overall assessments
for Jacobs and Spectrum:
Quote received from Jacobs is found acceptable. No waivers or deviations to
standard FAR/DFARS/AFFARS clauses were requested by Jacobs. A contract
with Jacobs Technology is awardable, affordable, if applicable, and executable.
Quote received from Spectrum COMM is found acceptable. No waivers or
deviations to standard FAR/DFARS/AFFARS clauses were requested by
Spectrum. A contract with Spectrum COMM is awardable, affordable, if
applicable, and executable.
AR 613.
On August 17, 2015, the SSEB chair, Mr. Patterson, recommended award to Spectrum,
stating:
Spectrum received substantially better ratings in both Mission Capability and Past
Performance (Very Good and Exceptional, respectively) than the lowest bidder
(Satisfactory and Very Good, respectively). As per the [RFQ] Evaluation
Criteria: “Mission Capability is the most important factor. Past Performance is
less important than Mission Capability but more important than Cost/Price.
Mission Capability and Past Performance combined are significantly more
important than Cost/Price; however, Cost/Price will contribute substantially to the
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selection decision.” Based on this criteria and given Spectrum’s superior ratings
in the two most important areas, I believe Spectrum represents the best value for
the government.
Although Spectrum’s proposal came in at a total price $398,614.19 more
expensive than that of the contractor with the lowest price, it was evaluated by the
Cost/Price Evaluation Team as fair and reasonable. Spectrum’s proposed pricing
was below both [General Service Administration] schedule rates and the
government’s cost estimate. The Air Force Wideband Enterprise Terminals
program is a $1.3 Billion program that depends on its product support team to
integrate all program implementation activities in lieu of a prime contractor. The
PSS2 contractor must meet an aggressive Joint schedule comprised of 25-30
concurrent projects at 22 global locations. Without top-notch support, this
incredibly complex schedule is not achievable. As a Joint schedule, any
perturbations also trigger substantial impacts to Army and Navy programs and
budgets. This cost differential represents a mere 0.026% of the program’s
lifecycle cost. Therefore, I believe securing the superior contracted support
justifies this relatively small premium, making Spectrum the best value for the
government in supporting this critical program.
AR 587.
In the view of the SSEB Chair, the cost differential of $398,614.19 did not justify
selecting Jacobs as the awardee based on the superior rankings Spectrum received in Mission
Capability and Past Performance. Id. The SSEB Chair also considered the cost difference with
respect to the entirety of the overall AFWET program - - 0.026% of $1.3 billion - - to justify
accepting Spectrum’s higher priced quotation. Id.
The Source Selection Authority’s Decision to Award the Contract to Jacobs
On September 18, 2015, Contracting Officer Filomena Gomez, acting as the Source
Selection Authority (“SSA”), issued the Source Selection Decision Document, awarding the
contract to Jacobs. AR 623, 627. Contracting Officer Gomez recognized that the procurement
was to be conducted on a best value basis and based her selection “upon an integrated assessment
of the quotes submitted” by the three offerors - - Jacobs, Honeywell, and Spectrum. AR 623. In
declining to accept the SSEB’s recommendation awarding the RFQ to Jacobs, Contracting
Officer Gomez stated:
After performing my independent evaluation and assessment of the three offerors,
I determined that both offerors are capable of performing the requirements of the
PWS successfully. While I understand the aggressive schedules with multiple
concurrent projects for the AFWET program and the SSEB’s evaluation of
Mission Capability and Past Performance sub-factors, I disagree with the
recommendation. The factor ratings assigned to each awardable offeror and their
comparative weight does not justify the higher price quote submitted by
SpectrumC.
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I determine that it is not in the best interest of the Government to pay an
additional $398,614.19 for SpectrumC quote.
In summary, based on my integrated assessment of the mission requirements and
all quotes in accordance with the evaluation criteria for the AFWET program
PSS2 contract it is my decision that the quote submitted by JacobsTec represents
the best overall value to the Government.
AR 627. In awarding the RFQ to Jacobs, Contracting Officer Gomez considered the almost
$400,000 price difference between Spectrum and Jacobs sufficient to justify award to Jacobs,
despite Jacobs’ lower rankings in Mission Capability and Past Performance. Id.5
Spectrum’s First GAO Protest and the Air Force’s Corrective Action
On October 23, 2015, following Contracting Officer Gomez’s award of the RFQ to
Jacobs, Spectrum filed a bid protest with the Government Accountability Office (“GAO”).
Before reaching the protest merits, the Air Force decided to take corrective action on November
6, 2015, stating:
Based upon the allegations in the above referenced protest, the Government has
decided to take corrective action with regard to its best value determination. The
SSA will review the source selection documentation and make a new best value
determination.
AR 857. The GAO dismissed Spectrum’s first protest as academic. AR 860-61.
On November 17, 2015, Contracting Officer Gomez re-awarded the RFQ to Jacobs,
issuing a second Source Selection Decision Document. AR 862-67. In this second source
selection, Contracting Officer Gomez reviewed each award factor - - Mission Capability, Past
Performance, and Cost/Price - - individually. Id. At the outset, Contracting Officer Gomez
dismissed the notion that there was a meaningful difference between Jacobs and Spectrum in the
Mission Capability and Past Performance technical factors, stating:
While the ratings presented [by the SSEB] provide an appearance that the overall
ratings received by SpectrumC for Mission Capability and Past Performance are
significantly higher than the ratings received by JacobsTec, the reality is that the
Offerors’ overall capabilities are closer to each other than the color ratings would
reveal.
AR 866.
Contracting Officer Gomez explained that the differences in Mission Capability between
Jacobs and Spectrum represented minor differences in education and experience among its
personnel for the positions listed in the RFQ, stating:
In the area of Mission Capaiblity, for example, SpectrumC received an overall
rating of “Very Good” based on the fact that eight of its nine positions received
individual ratings of “Very Good” and one position received a “Satisfactory”
5
The $400,000 difference encompassed the base and all option periods.
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rating. However, two of SpectrumC[’s] nine positions received a rating of “Very
Good” solely based on the fact that SpectrumC exceeded the desired education
level for these positions (Master’s Degree offered while Bachelor’s Degree was
desired.) With two other positions, SpectrumC received a rating of “Very Good”
based solely on the fact that they proposed to fill the position with an individual
who exceeded the desired level of experience by a handful of years (the Mid-
Level Project Integrator had 6 years of experience vs. the desired 2 years and the
Senior Equipment Training Lead had 12 years vs. the desired 8 years of
experience.) JacobsTec, on the other hand, received an overall rating of
“Satisfactory” for Mission Capability based on the fact that two positions received
an individual rating of “Very Good” and seven positions received an individual
rating of “Satisfactory.” While SpectrumC received a higher overall rating for
Mission Capability than JacobsTec, I do not find the differences between the two
offerors is so great as to justify paying an almost $400K premium for SpectrumC
marginally superior quote under Mission Capability.
Id.
With respect to Past Performance, Contracting Officer Gomez considered Jacobs’ and
Spectrum’s proposals to be “very similar” such that both contractors should have received an
“Exceptional” rating, despite the SSEB’s finding Jacobs’ Past Performance should be considered
only “Very Good.” Id. Contracting Officer Gomez explained her disagreement with the SSEB,
stating:
In the area of Past Performance, the “Exceptional” rating received by SpectrumC
was based on 17 CPAR individual ratings of “Exceptional”, four ratings of “Very
Good”, and one rating of “Satisfactory.” The Source Selection Team (SST)6
assigned a rating of “Very Good” to JacobsTec under Past Performance based
solely on the fact that they received one “Marginal” rating in a CPAR evaluation
area. I do not concur with the SST’s evaluation of JacobsTec’s Past Performance
and find that JacobsTec should have received an “Exceptional” rating under Past
Performance. While I understand the SST’s concern regarding this one
“Marginal” rating, I find that on the whole, JacobsTec Past Performance Record is
“Exceptional” in that the Government has a very high expectation that JacobsTec
will successfully perform the required effort.
AR 866-67.
With respect to Cost/Price, the SSEB compared the almost $400,000 difference between
Jacobs’ and Spectrum’s prices to the overall AFWET Program budget of $1.3 billion, whereas
Contracting Officer Gomez compared offerors’ prices against each other and without accounting
for CLINs with maximum “not-to-exceed” values. AR 866. In doing so, Contracting Officer
Gomez found that Spectrum’s proposal represented a 6.3% markup over Jacobs’ price, writing:
6
The Source Selection Team is also referred to as the Source Selection Evaluation Board
or SSEB.
14
In the area of Cost/Price, JacbosTec and SpectrumC quotes compared favorably to
the Independent Government Estimate [$8,763,639.21]. SpectrumC quoted their
published [General Services Administration (“GSA”)] rates. JacobsTec quoted
discounts to their published GSA rates. The difference in the quotes is reflected
in their different rate quotes. Twelve (12) of the (18) CLINs the Government
requested a quote on had a not to exceed (NTE) value which offerors were
instructed to complete at that price. Removing these ‘plug’ values shows a 6.3%
premium for SpectrumC.
AR 866; see also AR 9.
Contracting Officer Gomez awarded the contract to Jacobs, again finding Jacobs’ offer to
represent the “best value overall to the Government.” AR 867.
GAO’s Denial of Spectrum’s Second Protest
Following the Air Force’s November 17, 2015 corrective action and second source
selection decision to award Jacobs the RFQ, Spectrum filed a second bid protest with GAO. AR
1518-19. Spectrum raised two protest grounds before GAO.7 AR 1514. First, Spectrum argued
that the Source Selection Authority (“SSA”) - - Contracting Officer Gomez - - improperly
converted the basis of award for the RFQ from best value to lowest-priced technically acceptable
because price was the deciding factor for award. AR 1520. Second, Spectrum argued that the
Agency improperly raised Jacobs’ past performance technical evaluation factor from “Very
Good” to “Exceptional” in its corrective action following the initial GAO protest because the
Contracting Officer was not provided with any new information regarding Jacobs’ past
performance. AR 1522. On March 4, 2016, GAO denied both protest grounds. AR 1524.
With respect to Spectrum’s first protest ground - - improper conversion of a best value to
a lowest-priced technically acceptable procurement - - GAO determined that the Contracting
Officer sufficiently accounted for the Mission Capability factor in making award, reasoning:
Contrary to the protestor’s assertions, the record shows that the SSA not only
looked beyond the overall adjectival rating assigned under the mission capability
factor, but also considered the position ratings and sub-ratings underlying the
overall adjectival ratings. While she concluded that Spectrum’s proposal was
superior to that of Jacobs because of those underlying differences, she also was
required to consider whether the particular features in Spectrum’s quotation were
worth the associated price premium. The record shows that the SSA found no
discriminators between the two quotations that would support a tradeoff in favor
of Spectrum’s higher-priced quotation. We see no basis to substitute our
judgment for the SSA’s in this area.
AR 1522.
7
GAO also noted that “[a]lthough [it does] not specifically address all of Spectrum’s
arguments, [it has] fully considered all of them and find that they afford no basis on which to
sustain the protest.” AR 1520. Most of these arguments are reiterated in Spectrum’s instant
protest before the Court.
15
Similarly, GAO rejected Spectrum’s second protest ground that the Contracting Officer
arbitrarily raised Jacobs’ Past Performance factor from “Very Good” to “Exceptional,”
reasoning:
Here, the agency explains that after reviewing the source selection documentation
as part of the corrective action, the SSA no longer agreed with the SSEB’s overall
rating of Jacobs under the past performance factor. The SSA disagreed with the
SSEB’s assignment of a very good rating, based on her disagreement with the
SSEB’s conclusion that one marginal rating in one area of one [Contractor
Performance Assessment Report] could put the AFWET program office at risk for
less than exceptional performance, notwithstanding the otherwise exceptional and
very good ratings. Instead, the SSA viewed the single marginal rating for one
area as “an outlier and not representative of Jacobs’ body of Past Performance.”
Further, the SSA found the area in which Jacobs received its one marginal rating
– management of key personnel – was an area for which Jacobs received
exceptional ratings in the remaining six [Contractor Performance Assessment
Reports]. Based on these considerations, the SSA concluded that “on the whole,
Jacobs’ Past Performance record was ‘Exceptional’ in that [she] had a very high
expectation that Jacobs will successfully perform the required effort.” In sum, the
[Source Selection Decision Document] shows that the SSA’s conclusions were
reasonable and appropriately documented; she acknowledged the SSEB’s
concerns with regard to the marginal rating, but did not share those concerns
because “on the whole” she found that Jacobs’ past performance was exceptional.
AR 1523 (internal citations omitted).
GAO further noted that although the outcome of the reeavlaution with respect to Past
Performance following corrective action differed from the Contracting Officer’s initial
assessment, that change “does not constitute evidence that the reevaluation was unreasonable.”
AR 1520. Rather, GAO recognized that “it is implicit that a reevaluation can result in different
findings and conclusions” and that the overriding concern on review is whether the evaluation
results “reasonably reflect the relative merit of the offers.” Id. (internal citations omitted).
GAO also ruled that a source selection official may disagree with evaluation ratings of lower-
level evaluators and exercise independent judgment. AR 1523. In sum, GAO found that
Contracting Officer Gomez “reasonably determined that Jacobs’ quotation offered the best value,
and adequately documented her conclusions.” AR 1524.
Twelve days after GAO’s denial of Spectrum’s protest, on March 16, 2016, Spectrum
filed suit in this Court.
Discussion
Jurisdiction and Standard of Review
This Court has jurisdiction to review bid protests for the award of a government contract
in accordance with the Administrative Procedure Act’s standard of review for agency action. 28
U.S.C. § 1491(b)(4) (2012); 5 U.S.C. § 706 (2012). The Court will not set aside an agency’s
procurement decision unless the agency abused its discretion or acted arbitrarily, capriciously, or
16
otherwise not in accordance with law. Adams & Assocs. v. United States, 741 F.3d 102, 105-06
(Fed. Cir. 2014). In order to obtain relief, if this Court finds that the agency’s actions were
contrary to law or regulation, the plaintiff must also show that the violation was prejudicial.
Bannum, Inc. v. United States, 404 F.3d 1346, 1351 (Fed. Cir. 2005).
A protestor seeking the extraordinary remedy of a permanent injunction must establish
four factors: 1) that it has succeeded on the merits, 2) that it will suffer irreparable harm if the
court withholds an injunction, 3) that the balance of hardships tips in the protestor’s favor, and 4)
that an injunction serves the public interest. Centech Grp., Inc. v. United States, 554 F.3d 1029,
1037 (Fed. Cir. 2009). In addition to the permanent injunction factors, the Court is obligated to
“give due regard to the interests of national defense and national security and the need for
expeditious resolution of the action.” 28 U.S.C. § 1491(b)(3); see also Winter v. Natural Res.
Def. Council, Inc., 555 U.S. 7, 24 (2008) (internal citations omitted) (affording “great deference
to the professional judgment of military authorities concerning the relative importance of a
particular military interest” when the case involved “complex, subtle, and professional decisions
as to the composition, training, equipping, and control of a military force”); Gentex Corp. v.
United States, 58 Fed. Cl. 634, 655 (2003).
The Court affords an agency discretion when the procurement at issue is conducted on a
“best value” basis. See Patriot Taxiway Indus., Inc. v. United States, 98 Fed. Cl. 575, 583 (2011)
(citing Banknote Corp. of Am., Inc. v. United States, 365 F.3d 1345, 1355 (Fed. Cir. 2004)).
Such discretion does not relieve an agency of its obligations to examine the relevant data and
articulate a “satisfactory explanation for its action including a rational connection between the
facts found and the choice made.” Patriot Taxiway, 98 Fed. Cl. at 583 (internal quotation marks
omitted) (citing Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto Ins. Co., 463 U.S. 29, 43
(1983)); In re Sang Su Lee, 277 F.3d 1338, 1334 (Fed. Cir. 2002)). At the same time, a court
may not substitute its judgment for that of the agency. Id. Rather, the Court’s review is confined
to deciding whether the agency’s decision was arbitrary and capricious, irrational, or otherwise
not in accordance with law. Id.
Spectrum Has Not Shown Success on the Merits
Spectrum argues that the Air Force’s award decision was arbitrary, capricious, and
irrational based on three protest grounds:
1) The Air Force’s corrective action that upgraded Jacobs’ past performance
rating from “Very Good” to “Exceptional” was arbitrary and capricious and
without a rational basis;
2) The Air Force failed to comply with the RFQ requirements in making its best
value determination by not giving due weight to the “Mission Capability”
technical factor; and
3) The Air Force improperly converted the RFQ from a best value into a lowest-
priced technically acceptable procurement in violation of the RFQ terms.
Compl. ¶¶ 58-107. The Court addresses each protest ground in turn.
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The SSA’s Upgrade of Jacobs’ Past Performance Rating was Rational
Spectrum argues that the SSA’s upgrade of Jacobs’ Past Performance rating from “Very
Good” to “Exceptional” following corrective action was irrational because the SSA made the
upgrade decision without explanation or “new information regarding Jacobs.” Pl.’s Mot. 18.
Spectrum’s argument is not borne out by the record.
As the SSA explained in detail in her second Source Selection Decision Document, with
respect to Past Performance, Contracting Officer Gomez considered Jacobs’ and Spectrum’s
proposals to be “very similar” such that both contractors should have received an “Exceptional”
rating, despite the SSEB’s finding Jacobs’ Past Performance should be considered only “Very
Good.” The SSA explained her disagreement with the SSEB’s “Very Good” rating for Jacobs’
past performance and upgraded Jacobs’ Past Performance rating to “Exceptional,” stating:
In the area of Past Performance, the Offerors’ overall ratings are also misleading
in that it appears SpectrumC’s Past Performance record significantly exceeds
JacobsTec’s Past Performance record when in reality their actual Past
Performance records are very similar. In the area of Past Performance, the
“Exceptional” rating received by SpectrumC was based on 17 [Contractor
Performance Assessment Reports (“CPARs”)] individual ratings of
“Exceptional”, four ratings of “Very Good”, and one rating of “Satisfactory”
while JacobsTec rating of “Very Good” was based on 27 individual CPAR ratings
of “Exceptional”, four ratings of “Very Good”, four ratings of “Satisfactory” and
one rating of “Marginal”. The Source Selection Team (SST) assigned a rating of
“Very Good” to JacobsTec under Past Performance based solely on the fact that
they received one “Marginal” rating in a CPAR evaluation area. I do not concur
with the SST’s evaluation of JacobsTec’s Past Performance. While I understand
the SST’s concern regarding this one “Marginal” rating, I find that on the whole,
JacobsTec Past Performance record is “Exceptional” in that the Government has a
very high expectation that JacobsTec will successfully perform the required
effort.
AR 866-67.
The record fully supports the SSA’s judgment call. The “Marginal” rating at issue
involved only one sub-rating in one CPAR out of the seven reviewed by the Air Force. The
relevant CPAR states:
[***]
AR 502.
The SSA rationally determined that this sole CPAR sub-rating should not taint Jacobs’
otherwise exceptional past performance history. Indeed, Jacobs had 10 more “Exceptional”
ratings than Spectrum. AR 867. The record supports the SSA’s reasonable determination that
here “the existence of isolated instances of poor performance assessments does not preclude a
favorable evaluation of past performance overall.” Metro Mach. Corp., 2005 CPD ¶112, 2005
WL 1458280 (Comp. Gen. Apr. 21, 2005).
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Nor does the fact that the SSA changed Jacobs’ Past Performance rating in her second
Source Selection Decision Document render the reevaluation unreasonable. AR 1520, 1522-23;
see generally Atl. Diving Supply, Inc. v. United States, 107 Fed. Cl. 244, 256 (2012)
(“[C]hanges in the [offerors’] scores upon reevaluation were to be expected in light of the
Agency’s decision to correct previous evaluation errors”) (citing Vanguard Recovery Assistance
v. United States, 101 Fed. Cl. 765, 786 (2011)).
The Air Force Rationally Weighed the Mission Capability Factor in Making its Best
Value Determination
Spectrum alleges that the Agency improperly downplayed the Mission Capability factor
in two respects, by improperly dismissing or minimizing the Mission Capability sub-factor
ratings and by failing to conduct a proper tradeoff analysis between Mission Capability and
Cost/Price.
The Air Force Reasonably Accounted for Spectrum’s Strengths in Mission
Capability in its Post-Corrective Action Decision
Spectrum contends that the SSA “dismiss[ed] or minimize[d] the very technical
discriminators that the [SSEB] identified as strengths without explaining the basis for the
disagreement.” Pl.’s Mot. 14. Spectrum posits that the SSA only made “general statements of
equivalency” with respect to the Mission Capability factor without properly comparing the
“relative merits of the proposals.” Id. at 15.
The record does not support Plaintiff’s argument. The SSA found that Jacobs’ Mission
Capability was not equivalent to Spectrum’s, and took into account Spectrum’s superior sub-
factor ratings - - acknowledging that Spectrum had 12 out of 37 sub-factors in Mission
Capability rated as “Very Good,” whereas Jacobs had only 2 out of 37 sub-factors rated as “Very
Good.” The SSA’s second Source Selection Decision Document evidences that the SSA looked
closely at the differences between these sub-factor ratings, recognized Spectrum’s superior
Mission Capability rating, but determined it was not worth the extra price premium. AR 866-67.
This is precisely the type of judgment call an SSA is entitled to make in a best value
determination.
The SSA provided a coherent explanation for her decision to award to Jacobs despite
Spectrum’s higher Mission Capability technical rating based on her independent review of the
sub-factors and Jacobs’ lower price. The SSA’s explanation is more than sufficient to satisfy the
FAR Subpart 8.405 documentation requirement. See Matt Martin Real Estate Mgmt. LLC v.
United States, 96 Fed Cl. 106, 116-17 (2010) (“FAR Subpart 8.4 and FAR Part 15 are different
provisions with different purposes. The amount of documentation necessary in FAR Subpart 8.4
procurements does not rise to the level required by FAR Part 15.”); Allied Tech. Grp., Inc. v.
United States, 94 Fed. Cl. 16, 50 (2010) (recognizing that the purpose of FAR Part 8.4 is to offer
a “more simplified and flexible approach away from the more formal and rigorous procedures for
negotiated procurements” under FAR Part 15).
The Court will not “second guess” the SSA’s integrated best value assessment or
independent review of the minutiae of the SSEB’s technical ratings. E.W. Bliss Co. v. United
States, 77 F.3d 445, 449 (Fed. Cir. 1996) (internal citations omitted) (holding that bid protest
19
challenges “deal[ing] with the minutiae of the procurement process in such matters as technical
ratings . . . involve discretionary determinations of procurement officials that a court will not
second guess”); A-T Sols., Inc. v. United States, 122 Fed. Cl. 170, 185 (2015) (declining to
“second-guess” the technical expertise of a procurement official’s decision rating which tracking
software toolkit was superior among various offers); Commc’n Constr. Servs., Inc. v. United
States, 116 Fed. Cl. 233, 266 (2014) (internal citations and quotation marks omitted) (“As the
Federal Circuit has recognized, challenges to the technical scoring involve the minutiae of the
procurement process, discretionary determinations that a court will not second guess.”).8
In sum, the SSA reasonably weighed the Mission Capability technical factor and
sufficiently documented her rationale in the second Source Selection Decision Document. AR
866-67.
The SSA Performed an Adequate Best Value Tradeoff Analysis
Spectrum argues that the SSA failed to properly conduct a meaningful tradeoff analysis
because she failed to “engage in a meaningful, comparative consideration of the technical
differences of Spectrum’s and Jacobs’ proposals or to explain why the Agency failed to choose a
technically superior contractor to perform these exacting requirements when the price difference
was less than five percent . . . .” Pl.’s Reply 2.
Contrary to Plaintiff’s assertion, the SSA has provided a reasoned explanation on her
tradeoff decision - - she did not believe the advantages in Spectrum’s proposal outweighed the
lower price in Jacobs’ technically inferior, but perfectly adequate proposal. In her detailed post-
corrective action source selection decision, the SSA pointed out that Spectrum’s quote
represented a 6.3% price premium and that Spectrum’s advantages in Mission Capability did not
warrant that price premium. AR 627, 866. Spectrum’s disagreement with the SSA’s exercise of
discretion does not warrant the radical relief Plaintiff seeks. Banknote Corp. of Am., Inc. v.
United States, 56 Fed. Cl. 377, 384 (2003), aff’d, 365 F.3d 1345.
The Air Force Did Not Convert this Best Value Procurement to an LPTA Buy
Spectrum argues that because price became a determinative factor for award, the SSA
improperly conducted the procurement on a lowest-priced technically acceptable basis. Pl.’s
Mot. 21. Spectrum posits that “by ignoring and otherwise neutralizing the many technical
advantages proposed by Spectrum over Jacobs, [the SSA] effectively elevated the relative
importance of Price and converted the best value procurement contemplated under the RFQ into
one based on low price and mere technical acceptability, as opposed to technical superiority.”
Id. at 22. Because the SSA fully considered the technical and past performance attributes and
8
Spectrum relies on FirstLine Transportation Security, Inc. v. United States, 100 Fed. Cl.
359, 368 (2011), but that case is distinguishable. In FirstLine, the Court found that the
Transportation Security Administration irrationally awarded a contract to an inferior lower-
priced offeror that had one technical strength and one weakness, while the protestor had 33
strengths and no weaknesses. FirstLine involved a FAR Part 15 best value procurement, the
technical differences between the awardee’s and protestor’s proposals were significant, and the
SSEB failed to articulate a coherent account of the technical differences between the competing
proposals. Id.
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inferiorities of the proposals as well as the price differential, she reasonably conducted a best
value tradeoff analysis. The SSA’s conclusion that Spectrum’s superior proposal did not warrant
a price premium did not convert this best value procurement into an LPTA procurement. In
short, the Agency was required to consider price in its integrated best value assessment and
properly did so.
Other Factors For Injunctive Relief
Because Plaintiff has wholly failed to demonstrate success on the merits of its protest the
Court need not address the remaining factors for injunctive relief. Int’l Res. Recovery, Inc. v.
United States, 64 Fed. Cl. 150, 164 (2005) (“A plaintiff that cannot show that it will actually
succeed on the merits of its claim cannot prevail on its motion for injunctive relief.”); Argencord
Mach. & Equip., Inc. v. United States, 68 Fed. Cl. 167, 176 (2005).
That said, an additional consideration supports denying injunctive relief here. The
Government has established that an injunction could result in significant harm to national
security interests. In resolving bid protests the Court must give “due regard to the interests of
national defense and national security and the need for expeditious resolution of the action.” 28
U.S.C. § 1491(b)(3). The AFWET Program involves important issues of national security as it
supports communications for military operations of the Army, Navy, and Coalition forces
abroad. Cf. Gentex Corp., 58 Fed. Cl. at 655 (“Where a solicitation addresses issues of national
defense, as it does here, the importance of this factor is inflated.”).
The AFWET modernization program is already underway at three locations, and five
additional locations are pending. Patterson Decl. ¶ 2. Delaying the transition of the workforce
from Spectrum to Jacobs until mid-summer, when a total of seven simultaneous AFWET
terminal upgrades will be underway - - as opposed to the three currently underway - - would be
deleterious to the Government and the public interest. Id. As Shawn Patterson, the AFWET
program manager and chair of the SSEB for the instant procurement testified, “the exceptional
risk to the government of transitioning to a new contract in the middle of seven concurrent
[Modernization of Enterprise Terminal] installs represents an incredibly high likelihood of
failure for both the projects and missions they support.” Id. at ¶ 7. So too, as described by Mr.
Patterson, this product support services contract for AFWET is “an incredibly complicated dance
of coordinating plumbers, welders, crane operators, testing activities, trainers, global shipping,
and balancing numerous unique constraints due to location and high security. If one aspect of
the program underperforms the entire project may hemorrhage funding and schedule.” Id. at ¶ 5.
Conclusion
Plaintiff’s requests for a permanent injunction, declaratory relief, and bid and proposal
costs are DENIED.
The Clerk is directed to enter judgment on the Administrative Record in favor of
Defendant consistent with this Opinion.
s/Mary Ellen Coster Williams
MARY ELLEN COSTER WILLIAMS
Judge
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