By Light Professional It Services, Inc. v. United States

In the United States Court of Federal Claims

BID PROTEST

No. 16-1316C

Filed Under Seal: March 9, 2017

Reissued for Publication: April 11, 2017

)

BY LIGHT PROFESSIONAL IT )

SERVICES, INC., )

)

Plaintiff, )

) Post-Award Bid Protest; Judgment upon

v. ) the Administrative Record; RCFC 52.1;

) Permanent Injunction.

THE UNITED STATES, )

)

Defendant, )

)

v. )

)

TRIBALCO, LLC, )

)

Defendant-Intervenor. )

)

E. Sanderson Hoe, Counsel of Record, Covington & Burling LLP, Washington DC, for

plaintiff.

David M. Kerr, Trial Attorney, Franklin E. White Jr., Assistant Director, Robert E.

Kirschman, Jr., Director, Benjamin C. Mizer, Principal Deputy Assistant Attorney General,

Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington

DC, Karl W. Kuhn, Assistant Counsel, United States Army Engineering and Support Center,

United States Army Corps of Engineers, Huntsville, AL, for defendant.

Richard L. Moorhouse, Attorney of Record, Józef S. Przygrodzki, Of Counsel, Greenberg

Traurig, LLP, Mclean, VA, Ryan C. Bradel, Of Counsel, Greenberg Traurig, LLP, Washington

DC, for defendant-intervenor.

MEMORANDUM OPINION AND ORDER

GRIGGSBY, Judge

I. INTRODUCTION

Plaintiff, By Light Professional Services, Inc. (“By Light”), brought this post-award bid

protest matter challenging the United States Army Corps of Engineers’ (“USACE”) decision to

award a contract for radio, satellite and microwave systems hardware and service support to

Tribalco, LLC (“Tribalco”). By Light has moved for judgment upon the administrative record,

pursuant to Rule 52.1 of the Rules of the United States Court of Federal Claims (“RCFC”). The

government and Tribalco have also moved for judgment upon the administrative record, pursuant

to RCFC 52.1. For the reasons discussed below, the Court DENIES By Light’s motion for

judgment upon the administrative record; GRANTS the government’s motion for judgment upon

the administrative record; GRANTS Tribalco’s motion for judgment upon the administrative

record; and DENIES By Light’s motion for a temporary restraining order and preliminary

injunctive relief.

II. FACTUAL AND PROCEDURAL BACKGROUND 1

A. Factual Background

In this post-award bid protest matter, By Light challenges the decision by the USACE to

award a contract for radio, satellite and microwave systems hardware and service support under

Solicitation No. W912DY-16-R-0015 (the “Solicitation”) to the defendant-intervenor in this

matter, Tribalco. Compl. at ¶¶ 1, 5, 33-36.

Specifically, By Light alleges that the USACE committed several errors in evaluating

responsive proposals for the Solicitation and By Light challenges the agency’s decision to award

the contract to Tribalco upon four grounds. Id. at ¶¶ 45-73. First, By Light alleges that the

USACE’s determination that By Light’s final proposal contained a deficiency−because the

proposal did not include a task order number for work performed under a base IDIQ contract-

was arbitrary and capricious. Pl. Mot. at 12-15. Second, By Light alleges that the USACE

“improperly introduced an unannounced criterion that descriptions of past projects performed as

task orders under IDIQ contracts must include a task order number,” in violation of 48 C.F.R. §

15.303(b)(4). Id. at 16-17. Third, By Light alleges that the USACE erred in upgrading the rating

regarding the relevancy of Tribalco’s past performance under the Solicitation’s Past Performance

factor to a “relevant” rating, in violation of 48 C.F.R. § 15.305(a)(2)(iv). Id. at 18-21. Finally,

1

The facts recited in this Memorandum Opinion and Order are taken from the administrative record

(“AR”); plaintiff’s complaint (“Compl.”); plaintiff’s motion for judgment upon the administrative record

(“Pl. Mot.”); and plaintiff’s reply brief and opposition to the government’s motion for judgment upon the

administrative record (“Pl. Opp.”). Except where otherwise noted, all facts recited herein are undisputed.

2

By Light alleges that the USACE conducted an “irrational” evaluation of the final proposals

submitted by By Light and Tribalco, thereby prejudicing By Light. Id. at 21-22.

By Light further alleges that it has been prejudiced by the aforementioned alleged errors,

because it has been denied the opportunity to compete for award of the contract. Pl. Mot. at 2.

And so, By Light requests that the Court set aside the USACE’s award decision, direct the

USACE to reevaluate By Light’s proposal and grant By Light certain declaratory relief. Compl.

at Prayer for Relief.

1. The Solicitation

On February 23, 2016, the USACE issued the Solicitation which requested proposals for

a contract to provide radio, satellite and microwave systems hardware and service support

throughout the United States and in select locations located outside the United States. AR at

116, 139, 141. The Solicitation calls for a hybrid, firm fixed-price IDIQ single award task order

contract. Id. at 118.

There are several provisions in the Solicitation that are relevant to By Light’s claims.

First, the Solicitation calls for three evaluation factors: Technical Capability, Past Performance

and Price. Id. at 204-08. 2 The Solicitation also provides that the Technical Capability factor

will receive the greatest weight in evaluating responsive proposals, followed by, in descending

order, the Past Performance factor and the Price factor. Id. at 210-11.

With respect to the Solicitation’s Technical Capability factor, the Solicitation provides

that proposals must receive a minimum rating of “acceptable” to be eligible for award. Id. The

2

The following chart shows the Solicitation’s three evaluation factors and their respective weight.

Factor Description Relative importance

Factor 1 TECHNICAL CAPABILITY Most Important Factor

Element 1 Technical Approach

Element 2 Personnel Qualifications and

Organizational Structure

Element 3 Experience

Factor 2 PAST PERFORMANCE Second Most Important Factor

(Slightly Less than Factor 1)

Factor 3 PRICE Least Important Factor,

Significantly less important than

all non-price factors combined.

AR at 210-11.

3

Solicitation also provides that a proposal will receive an “unacceptable” rating if the proposal

fails to meet the requirements of the Solicitation or contains deficiencies. Id. at 212. The

Solicitation’s Technical Capability factor also includes three sub-factors: technical approach,

personal qualifications and organizational structure, and experience. Id. at 206-07. Although

these sub-factors are not individually weighted, the sub-factors contribute to the overall rating of

the proposal. Id. at 206.

Especially relevant to this dispute, the Solicitation’s experience sub-factor requires that

offerors provide three past experiences that are relevant in “scope, magnitude and complexity.”

Id. at 207. In this regard, the Solicitation provides, in relevant part, that:

Element 3, Tab C – Experience

Offerors shall submit documentation of three past (completed

within the last 36 months of the issuance of the RFP) or current

projects (with at least one invoice paid) with similar scope,

magnitude, and complexity to the work described in the RFP,

specifically sections 4.1, 4.2, 4.3, and 4.4 of the PWS. Offerors

shall not include introductory language in their proposal describing

general experience. The Government in this section is interested

only in three “projects,” which are defined as discrete efforts

relevant to this PWS. An IDIQ contract or a BPA alone does not

constitute a relevant "project" but a task order under an IDIQ

contract or the placement of a call under a BPA may

count as a “project.” If the offeror submits more than three (3)

projects, the Government will only review and consider the first

three listed in the proposal. Key subcontractors are defined as

those who will be performing 10% or more of the overall effort.

Offerors shall submit documentation with a minimum of three past

or current projects with similar scope, magnitude, and complexity

to the work described in the solicitation. Experience must include

the following information:

 Contract title

 Current Project Manager, including name, company

name, phone number, and email address

 Contract number

 Contract type

 Contract value

 Date of award

 Period of Performance

 Brief narrative (no longer than one page) describing the

nature and complexity of the work

4

 Role of the offeror (prime or subcontractor) and percent

of the total contract value

 Government Point of Contact (POC) including name,

phone number, and email address

The POCs provided may be contacted by the Government as part

of the evaluation of past performance.

Id. (emphasis supplied).

With respect to the Solicitation’s Past Performance factor, the Solicitation also provides

that “[t]he Government will conduct a performance risk assessment based on the quality and

relevancy of the offeror's past performance, as well as that of its key subcontractors.” Id. In

addition, the Solicitation provides that, if past performance information cannot be located: “past

performance will be rated neither favorably nor unfavorably. The performance confidence rating

will be considered ‘unknown.’” Id. Lastly, with respect to the Solicitation’s Price factor, the

Solicitation provides that “[t]he Government will evaluate all aspects of the price proposal for

fairness and reasonableness for providing the best value to the Government.” Id.

2. Evaluation Of Proposals Submitted By Tribalco And By Light

The USACE conducted a question and answer period for the Solicitation and provided

the vendor questions and government responses to these questions to all offerors in an

Amendment to the Solicitation dated March 16, 2016. Id. at 982, 1831. On March 24, 2016,

five offerors submitted timely proposals for the Solicitation, including By Light and Tribalco.

Id. at 1832.

In its initial proposal, By Light provided the contract number for the base IDIQ contract

that By Light identified as one of the projects to satisfy the Solicitation’s experience sub-factor.

Id. at 1032. The USACE subsequently determined that By Light’s failure to provide the task

order number for this base IDIQ contract created a deficiency in By Light’s initial proposal

because, “[t]he type of contracts listed must not be IDIQs or BPAs (should be task orders or

delivery orders of an IDIQ, BPA, or standalone contract) . . .” Id. at 1313.

The USACE also determined that the projects that By Light identified to satisfy the

experience sub-factor were not of relevant “scope, magnitude, or complexity.” Id. at 1312. And

so, the USACE concluded that the projects identified by By Light to satisfy the experience sub-

factor demonstrated a weakness and a deficiency in By Light’s initial proposal. Id. at 1312-13.

5

During its evaluation of Tribalco’s initial proposal, the USACE similarly determined that

the projects that Tribalco identified to satisfy the experience sub-factor were not of relevant

“scope, magnitude, or complexity.” Id. at 1337. And so, the USACE evaluated these projects as

a weakness in Tribalco’s proposal. Id.

On May 18, 2016, the USACE issued a second amendment to the Solicitation, which

extended the deadline for offerors to resubmit their proposals until May 25, 2016 (“Amendment

2”). Id. at 1355-57. On May 25, 2016, By Light, Tribalco and three other offerors timely

submitted Final Proposal Revisions (“FPR”). Id. at 1832.

In its FPR, By Light cured the prior deficiency in its initial proposal with respect to the

experience sub-factor, by providing the task order number for the base IDIQ contract that By

Light previously identified as one of the projects to satisfy this sub-factor. Id. at 1535. By Light

also provided two new projects to satisfy the experience sub-factor in its FPR. Id. at 1531-42.

But, By Light did not provide the task order number for the base IDIQ contract that it put

forward as one of these new projects. Id. at 1537. And so, the USACE determined that this

failure created a deficiency in By Light’s final proposal. Id. at 1656, 1836.

3. The SSEB’s Evaluation Process

The USACE’s Source Selection Evaluation Board (“SSEB”) met to evaluate the final

proposals on June 21–25, 2016. Id. at 1648, 1832. In the SSEB’s report dated August 9, 2016,

the SSEB evaluated each of the final proposals and decided to award the contract to Tribalco,

because Tribalco’s final proposal was “far superior” to the other proposals received by the

government. Id. at 1648-64.

The SSEB’s report shows that the SSEB first evaluated the final proposals under the

Solicitation’s Technical Capability factor. Id. at 1651-62. In this regard, the SSEB determined

that By Light’s proposal had [***] strengths−including one significant strength−and no

weaknesses, one deficiency and no uncertainties. Id. at 1654-56. The SSEB also determined

that the single deficiency in By Light’s proposal arose from By Light’s failure to provide the task

order number for one of the base IDIQ contracts identified to satisfy the Solicitation’s experience

sub-factor. Id. at 1655-56. Specifically, the SSEB found that:

The third experience was added but the contract number was

incorrect. An IDIQ number was used instead. Per the [ARSS]

solicitation, the contract number for previous performance is

6

required. Failure to provide the contract number results in a

deficiency . . .

Id. at 1656. And so, the SSEB rated By Light’s proposal as “unacceptable” under the

Solicitation’s Technical Capability factor. Id. at 1651.

In evaluating Tribalco’s final proposal under the Solicitation’s Technical Capability

factor, the SSEB determined that Tribalco corrected the weakness previously found in Tribalco’s

initial proposal. Id. at 1658-59. And so, the SSEB determined that Tribalco’s final proposal had

15 strengths−including three significant strengths. Id. The SSEB also determined that

Tribalco’s overall proposal was technically superior to the other proposals that the government

received for the five following reasons:

1. “TribalCo’s technical support is [***] with [***] and [***].” Id. at 1659.

2. “TribalCo’s proposed technical approach allows them to rapidly address

technical issues and to conduct timely repairs, surges and emergencies, which

[sic] in turn will increase efficiency and decrease spending resulting in time and

cost saving to the government.” Id. at 1660.

3. “TribalCo is the only vendor with [***]. Cost is obviously not the most

significant factor. Operational efficiency is value to the government.” Id. at

1661.

4. “TribalCo has significant direct USACE experience with radio services support

as the current Radio Service contractor.” Id.

5. “While all vendors may be able to provide support, TribalCo, [***] will be

better positioned to provide immediate response for emergencies.” Id.

And so, the SSEB rated Tribalco’s final proposal as “outstanding” under the Solicitation’s

Technical Capability factor. Id. at 1974.

The SSEB also evaluated the final proposals under the Solicitation’s Past Performance

factor. Id. at 1651. During this evaluation, the SSEB rated the final proposals submitted by By

Light and Tribalco as overall “satisfactory” under the Past Performance factor. Id.

With respect to By Light, the SSEB found that By Light had experience with satellite

related technology, but did not have any experience with handheld radios. Id. at 1734. And so,

the SSEB initially rated the relevance of By Light’s past performance as “somewhat relevant”

under the Past Performance factor. Id. The SSEB later determined that, “[t]he solicitation states

that a rating of “Relevant” or better must be achieved in order for a vendor to be eligible for

7

award.” Id. And so, in order not to penalize or exclude By Light from consideration for “merely

lacking relevant performance,” the SSEB changed By Light’s rating with respect to relevance for

the Past Performance factor from “somewhat relevant” to “relevant.” Id.

With respect to Tribalco, the SSEB also determined that Tribalco did not have any

experience that was directly parallel to the contract to be awarded. Id. at 1748-49. And so, the

USACE initially rated Tribalco’s final proposal as “somewhat relevant” under the Past

Performance factor. Id. at 1734. But, in order to not penalize or exclude Tribalco from

consideration for “merely lacking relevant performance,” the SSEB also changed Tribalco’s

rating with respect to relevance under the Past Performance factor from “somewhat relevant” to

“relevant.” Id. at 1734.

Lastly, the SSEB evaluated the final proposals under the Solicitation’s Price factor. Id. at

1651. In this regard, the SSEB compared the price offered by Tribalco and By Light. Id.

Although By Light proposed a lower overall price than Tribalco, the SSEB determined, among

other things, that “the government is concerned that By Light’s pricing does not accurately

reflect the cost associated with performing the work required in accordance with the RFP due to

the [***] and the low number of [***] [full time employees].” Id. at 1664. And so, the SSEB

rated By Light’s and Tribalco’s proposed price as “Fair and Reasonable.” Id. at 1651.

After the SSEB completed its evaluation process for the Solicitation, the contracting

officer issued a Source Selection Decision Document (“SSDD”) which included a trade-off

analysis comparing the final proposals submitted by Tribalco and By Light, and a trade-off

analysis comparing the final proposals submitted by Tribalco and of another offeror, Commdex.

Id. at 1831-50. In evaluating the Technical Capability factor, the contracting officer found that,

“[t]he number of Full Time Employees (FTE’s) [***] proposed by By Light is roughly half of

those used to estimate the [Independent Government Estimate for the Solicitation (“IGE”)]. . . .

In comparison, Tribalco proposed 3.5 FTE’s and their proposal meets the labor support needs of

the PWS requirements and more closely aligns with the 4 FTE’s used in the development of the

IGE.” Id. at 1837.

In evaluating the Solicitation’s Past Performance factor, the contracting officer further

found that the government’s confidence in By Light’s and Tribalco’s ability to perform the work

at an acceptable level was “satisfactory” for both offerors. Id. at 1840. But, in evaluating the

Price factor, the contracting officer found that, “[a]lthough it appears that By Light is providing

8

the lowest priced proposal, they are not providing the Government the Best Value when it comes

to Centralized Support.” Id. at 1842. And so, after completing the trade-off analysis comparing

the final proposals submitted by By Light and Tribalco, the contracting officer determined that,

even if By Light received an “outstanding” rating under the Solicitation’s Technical Capability

factor, Tribalco’s proposal offered the best value to the government. Id. at 1836-50.

The USACE awarded the contract to Tribalco on September 19, 2016. Id. at 1852.

B. Procedural History

On October 11, 2016, By Light filed the complaint in this bid protest matter, as well as a

motion for a temporary restraining order, motion for a preliminary injunction, memorandum in

support of its motion for a preliminary injunction and motion for a protective order. See

generally Compl; Pl. Mot. for TRO; Pl. Mot. for Prelim. Inj.; Pl. Mem.; Pl. Mot. for Prot. Order.

With By Light’s agreement, the Court held in abeyance By Light’s motions for a temporary

restraining order and for a preliminary injunction on October 12, 2016. Order, dated October 12,

2016 (Docket no. 11). Subsequently on October 13, 2016, Tribalco filed a motion to intervene in

this matter, which the Court granted on October 13, 2016. See generally Int. Mot. to Intervene;

Order dated October 13, 2016 (Docket entry no. 14).

On October 21, 2016, the government filed the administrative record. See generally AR.

On November 14, 2016, By Light filed a motion for judgment upon the administrative record.

See generally Pl. Mot. On December 9, 2016, the government and Tribalco filed their respective

responses and oppositions to By Light’s motion for judgment upon the administrative record and

cross-motions for judgment upon the administrative record. See generally Def. Mot.; Int. Mot.

On December 19, 2016, By Light filed a response and opposition to the government’s

and Tribalco’s cross-motions for judgment upon the administrative record and a reply in support

of its motion for judgment upon the administrative record. See generally Pl. Opp. On December

30, 2016, the government and Tribalco filed their respective replies in support of their cross-

motions for judgment upon the administrative record. See generally Def. Reply; Int. Reply.

These matters have been fully briefed, the Court addresses the pending motions.

9

III. LEGAL STANDARDS

A. Jurisdiction And Bid Protests

The Tucker Act grants the United States Court of Federal Claims jurisdiction over bid

protests brought by “an interested party objecting to a solicitation by a Federal agency for bids or

proposals for a proposed contract or 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.” 28 U.S.C. § 1491(b)(1) (2011). In bid protest cases, this Court reviews agency

actions under the “arbitrary and capricious” standard. See 28 U.S.C. § 1491(b)(4) (adopting the

standard of review set forth in the Administrative Procedure Act). And so, under the

Administrative Procedure Act standard, an award may be set aside if, “(1) the procurement

official’s decision lacked a rational basis; or (2) the procurement procedure involved a violation

of regulation or procedure.” Banknote Corp. of Am., Inc. v. United States, 365 F.3d 1345, 1351

(Fed. Cir. 2004) (quoting Impresa Construzioni Geom. Domenico Garufi v. United States, 238

F.3d 1324, 1332 (Fed. Cir. 2001)). The United States Court of Appeals for the Federal Circuit

has also recognized that:

When a challenge is brought on the first ground, the test is ‘whether the

contracting agency provided a coherent and reasonable explanation of its exercise

of discretion, and the disappointed bidder bears a “heavy burden” of showing that

the award decision had no rational basis. When a challenge is brought on the

second ground, the disappointed bidder must show a clear and prejudicial

violation of applicable statutes or regulations.’

Id. at 1351 (citations omitted).

In reviewing an agency’s procurement decision, the Court should recognize that the

agency’s decision is entitled to a “presumption of regularity.” Citizens to Pres. Overton Park,

Inc. v. Volpe, 401 U.S. 402, 415 (1971) (citations omitted), overruled on other grounds by

Califano v. Sanders, 430 U.S. 99 (1977). And so, the Court should not substitute its judgment

for that of the agency. Cincom Sys., Inc. v. United States, 37 Fed. Cl. 663, 672 (1997). “The

protestor must show, by a preponderance of the evidence, that the agency’s actions were either

without a reasonable basis or in violation of applicable procurement law” or procedure. Info.

Tech. & Applications Corp. v. United States, 51 Fed. Cl. 340, 346 (2001), aff’d, 316 F.3d 1312

(Fed. Cir. 2003) (“ITAC”); see also Bannum, Inc. v. United States, 60 Fed. Cl. 718, 723 (2004);

Gentex Corp. v. United States, 58 Fed. Cl. 634, 648 (2003). This standard “is highly deferential”

10

and “requires a reviewing court to sustain an agency action evincing rational reasoning and

consideration of relevant factors.” Advanced Data Concepts, Inc. v. United States, 216 F.3d

1054, 1058 (Fed. Cir. 2000) (citing Bowman Transp., Inc. v. Ark.–Best Freight Sys., Inc., 419

U.S. 281, 285 (1974)).

In addition, as long as there is “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 . . .” Honeywell, Inc. v. United States, 870 F.2d 644, 648 (Fed. Cir. 1989) (citations

omitted). But, if “the agency ‘entirely fail[s] to consider an important aspect of the problem [or]

offer[s] an explanation for its decision that runs counter to the evidence before the agency,’” then

the resulting action lacks a rational basis and, therefore, is defined as arbitrary and capricious.

Ala. Aircraft Indus., Inc.–Birmingham v. United States, 586 F.3d 1372, 1375 (Fed. Cir. 2009)

(quoting Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)).

B. Judgment Upon The Administrative Record And Injunctive Relief

Generally, Rule 52.1 limits this Court’s review of an agency’s procurement decision to

the administrative record. RCFC 52.1; see Axiom Res. Mgmt., Inc. v. United States, 564 F.3d

1374, 1379 (Fed. Cir. 2009) (“‘[T]he focal point for judicial review should be the administrative

record already in existence’”.). And so, unlike a summary judgment motion brought pursuant to

Rule 56, the existence of genuine issues of material fact does not preclude judgment upon the

administrative record under Rule 52.1. Tech. Sys., Inc. v. United States, 98 Fed. Cl. 228, 242-43

(2011). Rather, 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).

In addition, under its bid protest jurisdiction, the Court “may award ‘any relief [it]

considers proper, including declaratory and injunctive relief.’” 28 U.S.C. § 1491(b)(2); see also

Centech Grp., Inc. v. United States, 554 F.3d 1029, 1037 (Fed. Cir. 2009). In deciding whether

to issue a permanent injunction, the Court considers: (1) whether the plaintiff has succeeded

upon the merits of the case; (2) whether the plaintiff will suffer irreparable harm if the court

withholds injunctive relief; (3) whether the balance of hardships to the respective parties favors

the grant of injunctive relief; and (4) whether it is in the public interest to grant injunctive relief.

PGBA, LLC v. United States, 389 F.3d 1219, 1228-29 (Fed. Cir. 2004); see also Amoco Prod.

11

Co. v. Vill. of Gambell, Alaska, 480 U.S. 531, 546 n. 12 (1987) (“The standard for a preliminary

injunction is essentially the same as for a permanent injunction with the exception that the

plaintiff must show a likelihood of success on the merits rather than actual success.”); Centech

Grp., Inc., 554 F.3d at 1037. These four factors are to be considered collectively, rather than

individually, such that “[n]o one factor, taken individually, is necessarily dispositive. . . . [T]he

weakness of the showing regarding one factor may be overborne by the strength of the others.”

FMC Corp. v. United States, 3 F.3d 424, 427 (Fed. Cir. 1993). Conversely, “the absence of an

adequate showing with regard to any one factor may be sufficient” to deny injunctive relief. Id.

A plaintiff who cannot demonstrate success upon the merits cannot prevail upon a motion

for injunctive relief. Nat’l Steel Car, Ltd. v. Canadian Pacific Ry., Ltd., 357 F.3d 1319, 1325

(Fed. Cir. 2004) (finding that a plaintiff who cannot demonstrate a reasonable likelihood of

success upon the merits cannot prevail upon its motion for preliminary injunctive relief), reh’g

and reh’g en banc denied. The Federal Circuit has also found success upon the merits to be “the

most important factor for a court to consider when deciding whether to issue injunctive relief.”

Dellew Corp. v. United States, 108 Fed. Cl. 357, 369 (2012) (citing Blue & Gold Fleet, L.P. v.

United States, 492 F.3d 1308, 312 (Fed. Cir. 2007)). However, while success upon the merits is

necessary, it is not sufficient alone for a plaintiff to establish that it is entitled to injunctive relief.

See Contracting, Consulting, Eng’g LLC v. United States, 104 Fed. Cl. 334, 353 (2012)

(“Although plaintiff’s entitlement to injunctive relief depends on it succeeding on the merits, it is

not determinative because the three equitable factors must be considered, as well.”) (citing

PGBA, LLC, 389 F.3d at 1228-29).

IV. LEGAL ANALYSIS

In its motion for judgment upon the administrative record, By Light challenges the

evaluation process for the Solicitation upon four grounds. First, By Light alleges that the

USACE’s determination that By Light’s final proposal contained a deficiency−because the

proposal did not include a task order number for work performed under a base IDIQ

contract−was arbitrary and capricious. Pl. Mot. at 12-15. Second, By Light alleges that the

USACE “improperly introduced an unannounced criterion that descriptions of past projects

performed as task orders under IDIQ contracts must include a task order number,” in violation of

48 C.F.R. § 15.303(b)(4). Id. at 16-17. Third, By Light alleges that the USACE erred in

12

upgrading the rating regarding the relevancy of Tribalco’s past performance under the

Solicitation’s Past Performance factor to a “relevant” rating, in violation of 48 C.F.R. §

15.305(a)(2)(iv). Id. at 18-21. Finally, By Light alleges that the USACE conducted an

“irrational” evaluation of the final proposals submitted by By Light and Tribalco, thereby

prejudicing By Light. Id. at 21-22.

The government and Tribalco both counter that the administrative record in this matter

shows that the USACE conducted a reasonable evaluation process, in accordance with the

requirements of the Solicitation and applicable law. For the reasons discussed below, the Court

agrees. And so, the Court DENIES By Light’s motion for judgment upon the administrative

record; GRANTS the government’s cross-motion for judgment upon the administrative record;

and GRANTS Tribalco’s cross-motion for judgment upon the administrative record.

A. By Light’s Challenge To The Solicitation’s

Task Order Number Requirement Is Untimely

As an initial matter, to the extent that By Light alleges in this post-award bid protest

action that the Solicitation contains a patent ambiguity with respect to whether a task order

number for work performed for an IDIQ contract is required to satisfy the Solicitation’s

experience sub-factor, By Light’s claim is untimely. This Court has long recognized that an

offeror wishing to challenge the terms of a solicitation must do so before offers are due. Blue &

Gold Fleet, 492 F.3d at 1313-15 (holding that a protester who knew the agency’s interpretation

of a solicitation but failed to challenge it before bids were due, waived its ability to object

afterwards). It is also well established that when a solicitation contains a patent ambiguity, an

offeror must bring the patent ambiguity to the attention of the contracting officer prior to the

close of the procurement process, or otherwise waive the ability to pursue a claim in this Court.

Id. And so, By Light may not challenge an alleged patent ambiguity in the Solicitation with

respect to the task order number requirement here, if By Light failed to raise a concern about this

requirement before the conclusion of the procurement process. Id.

In this case, the administrative record shows that By Light did not raise a concern about

the Solicitation’s task order number requirement prior to submitting its final proposal. 3 See AR

3

The government attached the Declaration of Jennifer L. Kelley, the contracting officer for the

Solicitation, as an attachment to its opposition to By Light’s motion for judgment upon the administrative

record and cross-motion. Def. Mot. at Attachment. But, the government has not moved to supplement

13

at 982-92. The administrative record also shows that, although By Light did not raise this issue,

By Light had ample opportunity to challenge the Solicitation’s task order number requirement

prior to submitting its final proposal. In fact, the record evidence shows that the USACE

conducted an extensive question and answer process before the submission of initial proposals.

Id. at 901. Although more than 40 questions were put forward, By Light did not raise a question

about the Solicitation’s task order number requirement. Id. at 901, 982-92. 4

The administrative record also shows that By Light had ample notice of the Solicitation’s

task order number requirement before final proposals were due. After finding that By Light’s

initial proposal failed to include the task order number for a project involving work performed

under an IDIQ contract, the USACE issued an evaluation notice specifically informing By Light

that “[t]he type of contracts listed must not be IDIQs or BPAs (should be task orders or delivery

orders of an IDIQ, BPA, or a standalone contract) . . .” Id. at 1313. To the extent that By Light

remained unclear about the requirement to provide a task order number for its IDIQ contracts, By

Light had an obligation to raise such concerns before submitting its final offer. See Blue & Gold

Fleet, 492 F.3d at 1313; see Pyramid Real Estate Servs., LLC v. United States, 95 Fed. Cl. 125,

137 n.16 (2010) (rejecting an offeror’s protest because it failed to raise concerns about the

solicitation during the proposal process despite the contracting agency’s answers and

amendments to related provisions). Because By Light failed to do so, the administrative record

shows that By Light has waived any claim regarding the Solicitation’s task order number

requirement in this case. See Blue & Gold Fleet, 492 F.3d at 1313.

the administrative record with this declaration. Because the existing administrative record is sufficient to

permit meaningful judicial review, the Court does not consider this declaration for the purpose of

resolving the parties’ cross-motions for judgment upon the administrative record.

4

The administrative record suggests that the Solicitation’s task order number requirement may have been

unclear to several other offerors. Four of five offerors failed to include a task order number for an IDIQ

contract in their final proposals. Id. at 1686-89, 1700.

14

B. By Light’s Claims Are Unsubstantiated By The Record Evidence

1. The Record Evidence Also

Shows That The USACE Reasonably

Determined That By Light’s Proposal Was Deficient

Even if By Light could pursue its challenge to the Solicitation’s task order number

requirement in this litigation, By Light’s challenge to this requirement is unsubstantiated by the

administrative record. A plain reading of the Solicitation makes clear that the Solicitation

requires that By Light provide a task order number for an IDIQ contract in order to satisfy the

Solicitation’s experience sub-factor. Because there is no dispute that By Light failed to do so

here, the administrative record demonstrates that the USACE reasonably determined that By

Light’s final proposal contained a deficiency.

In this regard, the Solicitation provides that, “[a]n IDIQ contract . . . alone does not

constitute a relevant ‘project’” under the Solicitation’s experience sub-factor. AR at 207.

Rather, the Solicitation requires that “a task order under an IDIQ contract . . . may count as a

‘project’”. Id. And so, the Solicitation clearly provides that an IDIQ contract alone cannot be a

project for the purpose of satisfying the experience sub-factor.

In addition, the Solicitation further requires, among other things, that:

Offerors shall submit documentation with a minimum of three past

or current projects with similar scope, magnitude, and complexity

to the work described in the solicitation. Experience must include

the following information: . . . contract number . . .

Id. (emphasis supplied). And so, the plain text of the Solicitation also makes clear that among

the information that must be provided to satisfy the experience sub-factor is a contract number

for a particular project. Id.

Because an IDIQ contract cannot be considered a “project” under the plain terms of the

Solicitation, the USACE interpreted the Solicitation’s requirement to provide a “contract

number” for projects involving an IDIQ contract to require that the task order number for work

performed under an IDIQ contract be provided. Id. at 207, 1313. As the government observes in

its cross-motion, the USACE’s reading of the Solicitation is reasonable because a base IDIQ

contract could not be put forward as a “project” for the purpose of satisfying the Solicitation’s

experience sub-factor. Def. Mot. at 22-23. Given this, the USACE reasonably interpreted the

Solicitation to require that By Light provide the task order number for any project involving

15

work performed under an IDIQ contract that had been provided to satisfy the Solicitation’s

experience sub-factor.

Because the Solicitation requires that By Light provide a task order number for its IDIQ

contracts, the administrative record also demonstrates that the USACE reasonably concluded that

By Light’s final proposal was deficient. There is no dispute that By Light’s final proposal did

not provide the task order number for one of the IDIQ contracts that By Light identified to

satisfy the Solicitation’s experience sub-factor. Id. at 1483-85. Given this, the USACE

appropriately concluded that this failure constituted a deficiency in By Light’s final proposal.

By Light’s contention that its final proposal was not deficient because By Light provided

other information to satisfy the experience sub-factor─including the contract type, award date and

period of performance─is also misguided. See Pl. Mot. at 13; Id. at 1537-39. While the

Solicitation does require that By Light provide this information, doing so did not relieve By

Light of its obligation under the Solicitation’s experience sub-factor to also provide the task

order number for the work performed under all of its IDIQ contracts. See AR at 207. By Light’s

argument that it needed only to provide the contract number for its base IDIQ contract is also

contrary to the plain language of the Solicitation. Pl. Mot. at 12-15. And so, again, the record

evidence demonstrates that the USACE reasonably determined that By Light’s final proposal

was deficient. The Court will not set aside the agency’s reasonable procurement decision.

2. By Light Has Not Demonstrated That The Task

Order Number Requirement Is An Unannounced Criterion

By Light similarly fails to show that the Solicitation’s task order number requirement is

an unannounced evaluation criterion. To prevail upon this claim, By Light must show that: (1)

the USACE used a significantly different basis in evaluating the proposals than was disclosed

and (2) By Light has been prejudiced because it had a substantial chance to receive the contract

award but for that error. NEQ, LLC v. United States, 88 Fed. Cl. 38, 48 (2009) (citing Banknote

Corp., 56 Fed. Cl. at 387). By Light makes neither showing here.

Rather, the administrative record demonstrates that the USACE used the criterion set

forth in the Solicitation to evaluate the experience sub-factor. As discussed above, the plain

language of the Solicitation makes clear that an IDIQ contract number is insufficient to satisfy

the experience sub-factor and that a task order number for the work performed under an IDIQ

contract is required to comply with this sub-factor.

16

The administrative record also demonstrates that the USACE informed By Light of this

requirement prior to the submission of By Light’s final proposal. AR at 1313. Given this, the

administrative record shows that the USACE evaluated By Light’s initial and final proposals

under the same criterion, by requiring that a task order number for any IDIQ contract must be

provided to satisfy the experience sub-factor. Id. at 1313, 1479-85. 5

3. The USACE Did Not Err In Evaluating

The Solicitation’s Past Performance Factor

The administrative record also shows that the USACE conducted a proper evaluation

process with respect to its consideration of the Solicitation’s Past Performance factor. In this

regard, By Light alleges the USACE erred by upgrading Tribalco’s rating with respect to

relevance under the Past Performance factor from “somewhat relevant” to “relevant,” in

violation of 48 C.F.R. § 15.305. Pl. Mot. at 18-21; AR at 1749; 48 C.F.R. § 15.305. By Light

further alleges that it has been prejudiced as a result of this error. AR at 21. For the reasons

discussed below, the Court disagrees.

The record evidence demonstrates that, even if the USACE erred in its evaluation of the

Past Performance factor as By Light suggests, By Light has not been prejudiced by such an error.

In this regard, the administrative record shows that the USACE determined that both By Light

and Tribalco “had relevant past performances” and that the USACE initially rated both offerors’

past experience as “somewhat relevant.” Id. at 1661; 1734; 1749. The record evidence further

demonstrates that the SSEB later determined that, in order to not penalize or exclude either

offeror from further consideration for award of the contract, the SSEB should upgrade both

offerors’ ratings with respect to relevance under the Past Performance factor to “relevant.” Id. at

1734, 1749.

To the extent that Tribalco benefitted from the USACE’s decision to upgrade its

relevancy rating for past performance, the record evidence shows that By Light similarly

benefitted from this decision. Given this, By Light has not shown how it has been prejudiced by

5

By Light also fails to demonstrate that it has been prejudiced because of the USACE’s evaluation

criterion. The administrative record shows that By Light would not have been awarded the contract at

issue in this case even if the USACE had not found By Light’s proposal to be deficient due to the lack of

a task order number. AR at 1836.

17

the USACE’s decision and so, By Light cannot prevail on this claim. Pl. Mot. at 18-21; see

generally Pl. Opp; Banknote Corp., 365 F.3d at 1351 (A disappointed bidder must show a clear

and prejudicial violation of applicable statutes or regulations.)

4. The USACE’s Trade-Off Analysis Was Reasonable

Lastly, the record evidence does not support By Light’s claim that the USACE conducted

an “irrational” evaluation of the final proposals submitted by By Light and Tribalco. Pl. Opp. at

9-13; see also Pl. Mot. at 21-22. To the contrary, the administrative record shows that the

USACE’s contracting officer performed a detailed and balanced trade-off analysis that

reasonably compared the final proposals submitted by Tribalco and By Light. AR at 1832-50.

With respect to the trade-off analysis for the Solicitation’s Technical Capability factor,

the contracting officer’s trade-off analysis found that Tribalco’s final proposal offered more

strengths, even if By Light received an outstanding rating under this factor. Id. For example, the

contracting officer found that:

[t]he number of Full Time Employees (FTE’s) [***] proposed by

By Light is roughly half of those used to estimate the [Independent

Government Estimate for the Solicitation (“IGE”)]. . . . In

comparison, Tribalco proposed 3.5 FTE’s and their proposal meets

the labor support needs of the PWS requirements and more closely

aligns with the 4 FTE’s used in the development of the IGE.

Id. at 1837.

With respect to the Solicitation’s Past Performance factor, the contracting officer further

found that the government’s confidence in By Light’s and Tribalco’s ability to perform the work

at an acceptable level was “satisfactory” for both offerors. Id. at 1840. But, with respect to the

Solicitation’s Price factor, the contracting officer found that, “although it appears that By Light is

providing the lowest priced proposal, they are not providing the Government the Best Value

when it comes to Centralized Support.” Id. at 1842. And so, the contracting officer ultimately

concluded that Tribalco’s proposal offered the best value to the government. Id. at 1836-50.

By Light’s contention that the USACE’s trade-off analysis is flawed because that analysis

reflects a pre-determined outcome is also belied by the record evidence. Pl. Opp. at 9-13. As

demonstrated above, the record evidence shows that the USACE’s contracting officer carefully

considered and weighed several evaluation factors and sub-factors in comparing By Light’s final

proposal and Tribalco’s final proposal.

18

By Light’s argument that the Court should set aside the USACE’s trade-off

analysis−because the USACE allegedly did not reveal to By Light that a trade-off analysis had

been performed−is equally misguided. Even if true, By Light does not explain how the

USACE’s decision not to reveal this trade-off analysis violates terms of the Solicitation, or has

prejudiced By Light. Pl. Mot. at 22.

Indeed, By Light points to no evidence in the administrative record to show that the

USACE’s trade-off analysis lacked a rational basis, or that this analysis has not been performed

in good faith. See generally Pl. Mot. and Pl. Opp. Given this, the Court will not substitute its

judgment for that of the USACE. Cincom Sys., Inc., 37 Fed. Cl. at 672.

C. By Light Has Not Shown That It Is Entitled To Injunctive Relief

Because By Light has not met its burden to demonstrate that the USACE’s evaluation

process for the Solicitation was improper, By Light also fails to demonstrate that it is entitled to

the injunctive relief that it seeks in this matter. When determining whether to grant injunctive

relief, the Court considers: (1) whether the plaintiff has succeeded upon the merits of the case;

(2) whether the plaintiff will suffer irreparable harm if the Court withholds injunctive relief; (3)

whether the balance of hardships to the respective parties favors the grant of injunctive relief;

and (4) whether it is in the public interest to grant injunctive relief. PGBA, LLC, 389 F.3d at

1228-29; see also Zenith Radio Corp. v. United States, 710 F.2d 806, 809 (Fed. Cir. 1983). In

addition, where as here, the evidence demonstrates that a plaintiff will not succeed upon the

merits of its claims, a plaintiff cannot prevail upon a claim for injunctive relief. Cf. Altana

Pharma AG v. Teva Pharm. USA, Inc., 566 F.3d 999, 1005 (Fed. Cir. 2009) (citing Amazon.com,

Inc. v. Barnesandnoble.com, Inc., 239 F.3d 1343, 1350 (Fed. Cir. 2001)) (“Although the factors

are not applied mechanically, a movant must establish the existence of both of the first two

factors to be entitled to a preliminary injunction” or a temporary restraining order); Nat’l Steel

Car, Ltd., 357 F.3d at 1325 (finding that a plaintiff who cannot demonstrate a reasonable

likelihood of success upon the merits cannot prevail upon its motion for preliminary injunctive

relief), reh’g and reh’g en banc denied.

In this case, By Light has simply not demonstrated that any of its challenges to the

USACE’s evaluation process for the Solicitation are supported by the administrative record.

Given this, By Light also has not shown that it is entitled to injunctive relief.

19

V. CONCLUSION

In sum, the administrative record in this case demonstrates that the USACE conducted a

reasonable evaluation process for the Solicitation at issue in this litigation and that the agency’s

evaluation process complied with the terms of the Solicitation and applicable law. Given this,

By Light has not shown that the USACE’s actions here were arbitrary, capricious, an abuse of

discretion, or not in accordance with the Solicitation or applicable law.

And so, for the foregoing reasons, the Court:

(1) GRANTS the government’s motion for judgment upon the administrative record;

(2) GRANTS Tribalco’s motion for judgment upon the administrative record;

(3) DENIES By Light’s motion for judgment upon the administrative record; and

(4) DENIES By Light’s motion for a temporary restraining order and preliminary

injunctive relief.

Judgment shall be entered accordingly.

Each party shall bear their own costs.

Some of the information contained in this Memorandum Opinion and Order may be

considered protected information subject to the protective order entered in this matter on October

13, 2016. This Memorandum Opinion and Order shall be filed under seal. The parties shall

review the Memorandum Opinion and Order to determine whether, in their view, any

information should be redacted in accordance with the terms of the Protective Order prior to

publication.

The Court hereby ORDERS that the parties FILE, by April 10, 2017, a joint status report

identifying the information, if any, that they contend should be redacted, together with an

explanation of the basis for each proposed redaction.

IT IS SO ORDERED.

s/ Lydia Kay Griggsby

LYDIA KAY GRIGGSBY

Judge

20