Strategic Business Solutions, Inc v. United States

In the United States Court of Federal Claims

No. 16-81C (BID PROTEST)

(Filed Under Seal: November 23, 2016 | Reissued: January 3, 2017)*

) Keywords: Bid Protest; Solicitation

STRATEGIC BUSINESS SOLUTIONS, ) Requirements; Redaction; Negotiated

INC., ) Procurement; Non-Conforming

) Proposal; Minor Informality or

Plaintiff, ) Irregularity.

)

v. )

)

THE UNITED STATES OF AMERICA, )

)

Defendant. )

)

Christopher E. Brown, The Brown Firm PLLC, Alexandria, VA, for Plaintiff.

Devin A. Wolak, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S.

Department of Justice, Washington, DC, with whom were Douglas K. Mickle, Assistant

Director, Robert E. Kirschman, Jr., Director, and Benjamin C. Mizer, Principal Deputy

Assistant Attorney General, for Defendant. Lt. Col. Gregory J. Fike, Assistant General

Counsel, Defense Intelligence Agency, Of Counsel.

OPINION AND ORDER

KAPLAN, Judge.

In this post-proposal, pre-evaluation bid protest, Plaintiff Strategic Business

Solutions, Inc. (SBSI) challenges the Defense Intelligence Agency’s (DIA) decision to

exclude its proposal from consideration for a contract award. DIA’s decision was based

on SBSI’s failure to comply with the solicitation’s requirement that it provide redacted

copies of its proposal that would conceal its identity and the identity of any of its

proposed subcontractors.

Each party has moved for judgment on the administrative record. As discussed

below, the Court concludes that SBSI’s proposal did not conform to the solicitation and

that the agency did not abuse its discretion when it excluded SBSI’s proposal from

*

This Opinion was originally issued under seal, and the parties were given the

opportunity to request redactions. Neither party requested redactions, and the Opnion is

now being reissued in full.

consideration. Accordingly, the government’s motion for judgment on the administrative

record is GRANTED, and SBSI’s cross-motion is DENIED.

BACKGROUND

I. The Solicitation

On August 22, 2014, DIA issued solicitation number HHM402-14-R-0005.

Administrative Record (AR) Tab 4a at 410. The solicitation was a request for proposals

(RFP) seeking contractors to provide “financial management and related services” to

“assist the Agency[’s] efforts to establish internal controls and demonstrate and sustain

audit readiness by the end of FY 2016.” Id. at 410–12, 433. The contract vehicle was

titled “Solutions for Intelligence Financial Management,” or “SIFM II.”1 Id. at 412. The

contract would be a “Multiple Award – Indefinite Delivery Indefinite Quantity (IDIQ)

Contract” with minimum orders of $2,500 and a five-year contract ceiling of

approximately $75,000,000. Id.

The RFP directed prospective offerors to submit their proposals in three volumes:

(1) Security Plan and Technical/Management; (2) Past Performance; and (3) Price. Id. at

518. It also included a table with instructions regarding how many copies of each volume

the offeror should submit and what form those copies should take. Id. at 519. In

particular, those instructions provided that offerors were to provide for each of the first

two volumes one written, non-redacted copy; one electronic, non-redacted copy; and

seven written, redacted copies. Id.

In a provision derived from the FAR, the RFP informed offerors that the

government “intend[ed] to make a single or multiple award(s) . . . to the responsible

offeror(s) whose offer(s), conforming to the solicitation, will be the best value to the

Government.” Id. at 532 (quotation omitted); see also FAR 52.212-2(a) (“The

Government will award a contract resulting from this solicitation to the responsible

offeror whose offer conforming to the solicitation will be most advantageous to the

Government, price and other factors considered.”). Further, the government “reserve[d]

the right to award this effort based on the initial proposal, as received, without

discussion.” AR Tab 4a at 522; see also id. at 514 (“The Government intends to evaluate

offers and award a contract without discussions with offerors.” (quoting FAR 52.212-

1(g))); FAR 15.306(a)(3) (“Award may be made without discussions if the solicitation

states that the Government intends to evaluate proposals and make award without

discussions.”). Finally, the RFP included a provision derived from FAR 52.212-1(g)

stating that the government “may reject any or all offers if such action is in the public

interest; accept other than the lowest offer; and waive informalities and minor

irregularities in offers received.” AR Tab 4a at 513–14.

1

A predecessor contract vehicle, titled “SIFM I,” ran from 2008 to 2014. See Transfer

Compl. ¶¶ 12–13, ECF No. 10.

2

On September 18, 2014, DIA issued Amendment 04 to the RFP. Id. Tab 4i at 601.

The amendment included a list of questions from prospective offerors and the

government’s answers to those questions. Id. at 691–732. Question 22 noted that the

solicitation “d[id] not provide any guidance on what is meant by ‘Redacted’” and asked

the government to:

[P]lease address whether or not the following information is

required to be redacted:

 Prime Offeror company name

 Subcontractors company name(s)

 Prime Offeror individual personnel name(s)

 Subcontractor individual personnel name(s)

 Prime Offeror’s proposed Key Personnel name(s)

 Information identifying the Prime Offeror or any proposed

subcontractors’ [sic] status as a current incumbent on the SIFM

I contract vehicle.

Id. at 695. The government responded that “[a]ll bulleted info shall be redacted and no

additional information needs to be redacted.” Id.

II. SBSI’s Proposal and DIA’s Decision to Exclude the Proposal from

Consideration

SBSI submitted its proposal on October 6, 2014. Id. Tab 5a at 733. In a cover

letter, SBSI expressly took “no exceptions” to the solicitation and acknowledged all of

the RFP’s amendments, including Amendment 04. Id. SBSI’s proposal, however, did not

fully comply with the RFP’s redaction requirements. Specifically, in more than 100

places throughout the proposal, SBSI failed to redact its name, the names of its

subcontractors, and the names of several of its proposed personnel (including the names

of some of its proposed key personnel). See id. Tab 6b at 1011 (contracting officer’s

summary of failures to redact).

The agency received seventeen proposals. Id. Tab 2 at 17. The contracting officer

(CO) then convened a source selection evaluation board (SSEB) and provided its

members with the redacted volumes received from each offeror. See id. On November

18, 2015, the SSEB’s chair emailed the CO to explain that “there might be an issue with

[SBSI’s] [p]roposal in that it is not fully redacted.” Id. Tab 6a at 1007. The chair

observed that “[t]his would directly impact my level of confidence in [SBSI] if they can’t

get the redaction right.” Id.

On November 25, 2014, the CO notified SBSI by letter that he had excluded

SBSI’s proposal from further consideration. Id. Tab 6b at 1010. In the letter, the CO

excerpted the portion of Amendment 04 that explained the redaction requirements. Id. He

then informed SBSI that “[b]ased on SBSI’s failure to submit redacted copies of its

proposal in accordance with the terms of the solicitation,” he found its proposal

unacceptable. Id. at 1011. He also listed several representative places in the proposal

where SBSI had failed to comply with the redaction requirement, and noted that the list

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was “not necessarily exhaustive.” Id. Because its proposal was unacceptable, the CO

informed SBSI that it “w[ould] not be considered for award.” Id. at 1010.

III. GAO Protest

On December 10, 2014, SBSI filed a protest with the Government Accountability

Office (GAO). Id. Tab 3a at 24. It contended that the CO improperly rejected its proposal

on the ground that the non-redactions constituted “a minor informality that should have

been waived by the Contracting Officer (as it had been in previous DIA competitions

under a predecessor contract).” Id. Alternatively, it argued that “if this was a technical

evaluation resulting in an ‘unacceptable’ rating, it was an improper evaluation based on

undisclosed criteria.” Id.

GAO denied the protest. Id. Tab 8 at 1019. Addressing only SBSI’s first

argument, GAO “disagree[d] with SBSI’s characterization of its failure to redact

information as . . . a ‘minor informality.’” Id. at 1021. Rather, the redaction requirement

was “an explicit, mandatory requirement.” Id. at 1022. Accordingly, GAO found that the

agency did not “act[] unlawfully when it refused to further consider [SBSI’s] offer[] for

award.” Id.

IV. SBSI’s Attempt to Appeal GAO’s Decision and This Action

On March 25, 2015, SBSI noted an appeal of GAO’s decision to the Court of

Appeals for the Federal Circuit. See Pet. for Review, Strategic Bus. Sols., Inc. v. Def.

Intelligence Agency, No. 2015-6001 (Fed. Cir. Apr. 1, 2015), ECF No. 1. On November

20, 2015, after resolving various preliminary procedural matters, the Federal Circuit

dismissed the appeal for lack of subject matter jurisdiction, observing that GAO’s non-

binding bid protest decisions “serve as recommendations and are not subject to review in

any court.” See Order at 2–3, Strategic Bus. Sols., Inc., No 15-6001 (Fed. Cir. Nov. 20,

2015), ECF No. 26. The Court of Appeals then ordered the appeal transferred to the

Court of Federal Claims, reasoning that the Court of Federal Claims “m[ight] have

jurisdiction to review the DIA’s rejection of SBSI’s proposal, although not the GAO’s

review of that decision.” Id. at 3.

This Court received the transferred record from the Court of Appeals on January

14, 2016. See ECF No. 1 (minute entry). SBSI took no immediate action in the wake of

the transfer. Accordingly, on March 1, 2016, the Court ordered SBSI to show cause why

the Court should not dismiss the case under RCFC 41(b). ECF No. 4.

After responding to the Court’s order, ECF No. 7, SBSI filed a transfer complaint

on March 21, 2016. ECF No. 10. In the transfer complaint, SBSI alleged that beginning

in 2008, it had successfully performed several task orders under SIFM I. Transfer Compl.

¶¶ 12–13. It then acknowledged that it “did not redact references to SIFM I in [their]

entirety” in the proposal at issue. Id. ¶ 15. According to SBSI, its failure to redact these

references was deliberate. Particularly, it alleges, performance under SIFM I “was SBSI’s

only directly relevant IDIQ contract in Financial Management.” Id. Further, that

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performance “reveal[ed] that SBSI successfully competed for SIFM against [several]

very large companies.” Id.

SBSI then asserted several claims in connection with DIA’s decision to exclude

its proposal from consideration for award. First, it contended that its failure to redact did

not amount to a “material failure” to comply with the RFP’s terms. Id. ¶ 30(a). It also

alleged that DIA’s decision violated FAR 14.405 and FAR 15.304. Id. ¶ 30(b)–(c).

Finally, it claimed that the redaction requirement violated the Competition in Contracting

Act (CICA), 10 U.S.C. § 2304 & 41 U.S.C. § 3301, because the requirement “adversely

impacted SBSI as it was the only small business/prime that had SIFM I IDIQ

experience.” Id. ¶ 30(d). As relief, it requested that the Court “[f]ind in favor of SBSI’s

claims as stated” and “[r]equire DIA to reinstate SBSI into the procurement process for

SIFM II and proceed to the technical, cost, and past performance evaluation.” Id. at 9.

After filing the administrative record, the government filed a motion for judgment

on that record on May 24, 2016. ECF No. 17. SBSI filed an opposition to the

government’s motion on June 24, 2016, attaching a brief it filed before GAO that it

believed should have been included in the administrative record. ECF No. 19. The Court

stated that, assuming SBSI did not object, it would treat SBSI’s opposition as a cross-

motion for judgment on the administrative record. ECF No. 20. It also granted SBSI’s

request to have its GAO brief included in the administrative record. Id. SBSI did not note

any objection to having its opposition treated as a cross-motion. See Docket. The

government then filed a response to SBSI’s cross-motion and a reply in support of its

motion on August 5, 2016. ECF No. 23. SBSI filed a reply in support of its cross-motion

on August 19, 2016. ECF No. 24. Oral argument was held on the cross motions on

November 22, 2016.

DISCUSSION

I. Jurisdiction

The Court of Federal Claims’ bid protest jurisdiction is defined by 28 U.S.C.

§ 1491(b)(1). That statute grants the Court jurisdiction to “render judgment on an action

by an interested party objecting to . . . a proposed award or the award of a contract or any

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

procurement.” Id. As the Federal Circuit has observed, “[o]n its face, the statute grants

jurisdiction over objections to a solicitation, objections to a proposed award, objections to

an award, and objections related to a statutory or regulatory violation so long as these

objections are in connection with a procurement or proposed procurement.” Sys.

Application & Techs., Inc. v. United States, 691 F.3d 1374, 1380–81 (2012).

As indicated by the statute, a plaintiff must be an “interested party” to have

standing to invoke the Court’s bid protest jurisdiction. CGI Fed. Inc. v. United States,

779 F.3d 1346, 1348 (Fed. Cir. 2015); Myers Investigative & Sec. Servs., Inc. v. United

States, 275 F.3d 1366, 1369–70 (Fed. Cir. 2002). According to the Federal Circuit, an

“interested party” under 28 U.S.C. § 1491(b)(1) is “an actual or prospective bidder . . .

whose direct economic interest would be affected by the award of the contract.” CGI

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Fed., 779 F.3d at 1348 (quoting Am. Fed’n of Gov’t Emps, AFL-CIO v. United States,

258 F.3d 1294, 1299 (Fed. Cir. 2001); see also Info. Tech. & Applications Corp. v.

United States, 316 F.3d 1312, 1319 (Fed. Cir. 2003). An offeror has a direct economic

interest if the alleged errors in the procurement caused it to suffer a competitive injury or

prejudice. See Myers Investigative & Sec. Servs., Inc., 275 F.3d at 1370 (holding that

“prejudice (or injury) is a necessary element of standing”).

In a post-proposal, pre-evaluation protest (like this one), an offeror meets this

standard if it can show that it had a “substantial chance” of receiving the award but for

the alleged errors in the procurement. Orion Tech., Inc. v. United States, 704 F.3d 1344,

1348–49 (Fed. Cir. 2013). Thus, the protester must establish that absent the alleged

errors, it “could have likely competed for the contract.” Id. at 1349. Here, SBSI alleges

that its proposal conformed to all of the RFP’s requirements except the redaction

requirement, and the government does not appear to contest that SBSI could have likely

competed for the contract if its proposal had not been excluded for violating the redaction

requirement. Thus, SBSI has standing to bring this protest, and the Court therefore has

jurisdiction.

II. The Parties’ Cross-Motions for Judgment on the Administrative Record

A. Standard for Granting Judgment on the Administrative Record

Pursuant to Rules of the Court of Federal Claims (RCFC) 52.1, the court reviews

an agency’s procurement decision based on the administrative record. See Bannum, Inc.

v. United States, 404 F.3d 1346, 1354 (Fed. Cir. 2005). The court makes “factual findings

under RCFC [52.1] from the record evidence as if it were conducting a trial on the

record.” Id. at 1357. Thus, “resolution of a motion respecting the administrative record is

akin to an expedited trial on the paper record, and the [c]ourt must make fact findings

where necessary.” Baird v. United States, 77 Fed. Cl. 114, 116 (2007). The court’s

inquiry is “whether, given all the disputed and undisputed facts, a party has met its

burden of proof based on the evidence in the record.” A&D Fire Prot., Inc. v. United

States, 72 Fed. Cl. 126, 131 (2006). Unlike a summary judgment proceeding, genuine

issues of material fact will not foreclose judgment on the administrative record. Bannum,

Inc., 404 F.3d at 1356.

B. Standard of Review in Bid Protest Cases

The court reviews challenges to a procurement decision under the same standards

used to evaluate an agency action under the Administrative Procedure Act, 5 U.S.C.

§ 706. See 28 U.S.C. § 1491(b)(4) (stating that “[i]n any action under this subsection, the

courts shall review the agency’s decision pursuant to the standards set forth in section

706 of title 5”). Thus, to successfully challenge an agency’s procurement decision, a

plaintiff must show that the decision was “arbitrary, capricious, an abuse of discretion, or

otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A); see also Bannum, Inc., 404

F.3d at 1351. This “highly deferential” standard “requires a reviewing court to sustain an

agency action evincing rational reasoning and consideration of relevant factors.”

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Advanced Data Concepts, Inc. v. United States, 216 F.3d 1054, 1058 (Fed. Cir. 2000)

(citing Bowman Transp., Inc. v. Ark.-Best Freight Sys., Inc., 419 U.S. 281, 285 (1974)).

In a bid protest action, the protester “bears a heavy burden” in attempting to show

that the agency’s decision lacked a rational basis, and the court’s function is limited to

“determin[ing] whether ‘the . . . agency provided a coherent and reasonable explanation

of its exercise of discretion.’” Impresa Construzioni Geom. Domenico Garufi v. United

States, 238 F.3d 1324, 1332–33, 1338 (Fed. Cir. 2001) (quoting Latecoere Int’l, Inc. v.

U.S. Dep’t of Navy, 19 F.3d 1342, 1356 (11th Cir. 1994)). Thus, to prevail, the agency

need only articulate a “rational connection between the facts found and the choice made,”

and the court will “uphold a decision of less than ideal clarity if the agency’s path may

reasonably be discerned.” Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co.,

463 U.S. 29, 43 (1983) (quotations omitted).

C. DIA’s Decision to Reject SBSI’s Proposal

It is well established that, in negotiated procurements like this one, an agency’s

decision to exclude an incomplete or non-conforming proposal from consideration is

“entitled to a high degree of deference.” See Orion Tech., 704 F.3d at 1351 (holding that

the Army reasonably excluded proposal from competition where it failed to include

required pricing information); see also Equa Sols., Inc. v. United States, 120 Fed. Cl. 371,

381 (2015) (decision to exclude proposal upheld because it had a rational basis); G4S

Tech. CW LLC v. United States, 109 Fed. Cl. 708, 724 (2013) (same); USfalcon, Inc. v.

United States, 92 Fed. Cl. 436, 464–65 (2010) (same). Further, in accordance with FAR

52.212-2(a), the RFP in this case specifically informed offerors that only those proposals

that conformed to the solicitation would be eligible for an award. See AR Tab 4a at 532

(informing offerors that the government “intend[ed] to make a single or multiple

award(s) . . . to the responsible offeror(s) whose offer(s), conforming to the solicitation,

will be the best value to the Government” (emphasis added) (quotation omitted)); see also

FAR 52.212-2(a) (indicating government will award contract to offeror whose proposal

conforms to the solicitation and is the most advantageous to the government). And,

finally, the solicitation also incorporated FAR 52.212-1(b)(11) stating that “[o]ffers that

fail to furnish required representations or information, or [that] reject the terms and

conditions of the solicitation may be excluded from consideration.” See AR Tab 4a at

513–14.

Here, the record confirms and it is not disputed that SBSI’s proposal did not

conform to the instructions in the RFP. Thus, the RFP included an instruction that

required offerors to submit copies of their technical and past performance volumes in

redacted form. Notwithstanding that requirement, SBSI acknowledges that it deliberately

failed to redact references to the fact that it had been a contractor on SIFM I, and the

agency correctly found multiple other failures to redact the proposal, totaling over 100

instances of non-compliance. The Court thus has no basis for upsetting the agency’s

determination that SBSI’s proposal should be excluded from consideration because it

failed to comply with the redaction requirement. See LS3 Inc., B-401948.11, 2010 WL

2862041 (Comp. Gen. July 21, 2010) (finding that agency properly rejected proposal that

contained identifying information where solicitation explicitly required such information

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to be redacted); SNAP, Inc., B-402746, 2010 WL 2804498 (Comp. Gen. July 16, 2010)

(same).2

Although not entirely clear, the primary bases for SBSI’s bid protest in this case

(at least as expressed in its briefs) appear to be that its failure to redact its proposal was

not a “material” failure, that the agency should have treated the defect as a “minor

informality or irregularity” within the meaning of FAR 14.405, and that, as such, the

agency was required either to waive the defect or to permit SBSI to cure it.3 See Pl.’s

Opp’n to Mot. for J. on the Admin. R. (Pl’s Opp’n) at 7–8, 18–20, ECF No. 19. These

arguments lack merit.

First, even assuming that SBSI’s failure to comply with the redaction requirement

could be considered a minor informality or irregularity, the agency was not required to

give SBSI an opportunity to cure its error; nor was it required to waive the error. The

mandatory opportunity to cure/waiver requirements of FAR 14.405 apply where a

procurement is accomplished by means of sealed bidding. See FAR 14.101. This

procurement, however, was governed by FAR Part 12 (Acquisition of Commercial Items)

and FAR Part 15 (Contracting by Negotiation). Both Parts provide that a waiver of minor

errors is discretionary, not mandatory.

Thus, FAR 12.301(b)(1) requires that contracts for the acquisition of commercial

items include the clause set forth at FAR 52.212-1(g), which states that the agency “may .

. . waive informalities and minor irregularities in offers received.” (emphasis added); see

AR Tab 4a at 513–14 (incorporating FAR 52.212-1(g)). Similarly, FAR 15.306(a)(2)

states that “[i]f award will be made without conducting discussions, offerors may be

2

GAO decisions are “not binding authority,” but may be “instructive in the area of bid

protests.” Centech Grp., Inc. v. United States, 554 F.3d 1029, 1038 n.4 (Fed. Cir. 2009);

see also Thompson v. Cherokee Nation of Okla., 334 F.3d 1075, 1084 (Fed. Cir. 2003)

(decisions of the GAO are treated as expert opinions, which the court should “prudently

consider” (quoting Delta Data Sys. Corp. v. Webster, 744 F.2d 197, 201 (D.C. Cir.

1984))), aff’d in part, rev’d in part sub nom. Cherokee Nation of Okla. v. Leavitt, 543

U.S. 631 (2005).

3

FAR 14.405 states, in pertinent part, as follows:

A minor informality or irregularity is one that is merely a matter of form

and not of substance. It also pertains to some immaterial defect in a bid or

variation of a bid from the exact requirements of the invitation that can be

corrected or waived without being prejudicial to other bidders. The defect

or variation is immaterial when the effect on price, quantity, quality, or

delivery is negligible when contrasted with the total cost or scope of the

supplies or services being acquired. The contracting officer either shall give

the bidder an opportunity to cure any deficiency resulting from a minor

informality or irregularity in a bid or waive the deficiency, whichever is to

the advantage of the Government.

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given the opportunity . . . to resolve minor or clerical errors” (emphasis added)). In short,

Part 15 does not “requir[e] contracting officers to clarify minor or clerical errors in

negotiated procurements”; permitting such clarifications is discretionary, “unlike the

mandatory nature of the comparable [rules] in Part 14 for sealed bidding.” BCPeabody

Constr. Servs., Inc. v. United States, 112 Fed. Cl. 502, 510 (2013); see also Bus. Integra,

Inc. v. United States, 116 Fed. Cl. 328, 334 (2014) (observing that the “regulatory

regime” applicable to sealed bidding “differs significantly” from the regime applicable to

procurement by negotiation); ST Net, Inc. v. United States, 112 Fed. Cl. 99, 111 (2013)

(observing that “[t]his court has repeatedly recognized the permissive nature of [Section

15.306] in the context of negotiated procurements”).

In any event, SBSI’s failure to redact its proposal in over 100 places does not

involve a “minor informality or irregularity,” i.e., “one that is merely a matter of form

and not of substance,” and that “pertains to some immaterial defect in a bid or variation

of a bid from the exact requirements of the invitation that can be corrected or waived

without being prejudicial to other bidders.” FAR 14.405. For purposes of Part 14, such

errors might include, for example, providing the wrong number of copies of the bid,

listing the wrong number of employees, or failing to sign the bid itself where the

submission includes other material indicating the bidder’s intent to be bound. See id.

The redaction requirement, however, is not a formalistic one comparable to the

types of requirements violated in the examples set forth at FAR 14.405. It served a

substantive purpose—promoting the unbiased evaluation of all offerors’ proposals.

Moreover, the information revealed in an unredacted proposal could affect an offeror’s

chances of receiving a contract award. In fact, to at least some extent, SBSI’s failure to

redact was deliberate and designed to give it an advantage (or at least to remove some

perceived disadvantage).4 It would be inappropriate to apply an exception designed to

relieve an offeror of the consequences of an inadvertent minor mistake where, as here, it

has acted in deliberate defiance of the solicitation’s requirements and for purposes of

securing an advantage.

Similarly, SBSI’s failure to redact could not have been corrected or waived

without prejudicing other offerors. For if the violation were waived, the agency’s

technical evaluators would have had access to critical information about SBSI’s

experience and proposed staff that the other offerors who complied with the instructions

were not able to present. If, on the other hand, SBSI were allowed to cure the defect (by

submitting a compliant proposal), the agency would have been required to convene an

4

Although SBSI claims that many of its over 100 redaction failures were “accidental,” it

acknowledges that the references to its experience under the predecessor contract were

intentionally left unredacted. See Pl.’s Opp’n at 4 (stating that “prior experience on SIFM

I aside, the omissions were accidental”); see also AR Tab 3a at 160–61 (declaration of

SBSI’s president and CEO stating that “SBSI left some of th[e] information unredacted”

noting as an example that “SBSI’s work under the predecessor SIFM contract is a major

part of SBSI’s experience, and SBSI could not redact this in a manner that would both

maintain its anonymity and demonstrate its technical competence”).

9

entirely new SSEB or take some other extraordinary action to ensure that those reviewing

and evaluating SBSI’s proposal were not tainted by SBSI’s submission of the unredacted

proposal.

In short, the failure to redact did not involve a minor informality or irregularity.

And the agency clearly acted within its discretion when it rejected SBSI’s offer based on

its non-compliance with the redaction requirement.

SBSI’s remaining claims of error also lack merit. Thus, SBSI contends that

because the technical evaluation panel discovered the redaction errors while evaluating

SBSI’s proposal, the exclusion must have been based on an unstated evaluation criterion,

which is unlawful under FAR 15.304. See Pl.’s Opp’n at 9–10. But while SBSI’s failure

to redact was not discovered until the evaluation of the proposals began, the exclusion of

the proposal was not a result of the application of some unstated evaluation criterion—it

was a result of SBSI’s failure to follow the instructions in the solicitation regarding

redaction. And SBSI offers no support whatsoever for its further argument that—once the

evaluation process began—the agency was required to conduct an evaluation of its

proposal pursuant to the factors set forth in section M of the RFP, notwithstanding that

SBSI’s proposal was not redacted as the RFP required.

Finally, SBSI claims that the redaction requirement itself was unfair and improper

at least insofar as it required SBSI to redact reference to its status as a contractor for

SIFM I. See Transfer Compl. ¶ 30(d); see also Pl.’s Opp’n at 28–29. Specifically, in its

complaint, SBSI alleged that “the last instruction in the redacting requirements violated

CICA in that it required proposals [to] redact any and all references to SIFM I,” which

had the effect of “adversely impact[ing] SBSI as it was the only small business/prime that

had SIFM I IDIQ experience.” Transfer Compl. ¶ 30(d). Because SBSI did not raise its

objection to the solicitation’s terms until after the award was made, however, the

objection is waived. Blue & Gold Fleet, L.P. v. United States, 492 F.3d 1308, 1315 (Fed.

Cir. 2007); see also COMINT Sys. Corp. v. United States, 700 F.3d 1377, 1381–82 (Fed.

Cir. 2012).

CONCLUSION

For the reasons discussed above, the government’s motion for judgment on the

administrative record is GRANTED, and SBSI’s cross-motion for judgment on the

administrative record is DENIED. The Clerk is directed to enter judgment accordingly.

Each side shall bear its own costs.

IT IS SO ORDERED.

s/ Elaine D. Kaplan

ELAINE D. KAPLAN

Judge

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