I3 Cable & Harness LLC v. United States

In the United States Court of Federal Claims

No. 17-490C

Filed: June 30, 2017 1

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

i3 CABLE & HARNESS LLC, *

* Post-Award Bid Protest; Judgment

Protestor, * on the Administrative Record;

* Waiver; Price Evaluation; Technical

v. * Evaluation; Organizational Conflict of

* Interest; Bad Faith.

UNITED STATES, *

*

Defendant, *

*

and *

*

ACE ELECTRONICS DEFENSE *

SYSTEMS, LLC, *

*

Defendant-Intervenor. *

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

Cynthia Malyszek, Malyszek & Malyszek, Westlake Village, California for

protestor i3 Cable & Harness LLC.

Kelly A. Krystyniak, Trial Counsel, Commercial Litigation Branch, Civil Division,

United States Department of Justice, Washington, D.C., for defendant. With her were

Patricia M. McCarthy, Assistant Director, Commercial Litigation Branch, Robert E.

Kirschman, Jr., Director, Commercial Litigation Branch, and Chad A. Readler, Acting

Assistant Attorney General, Civil Division, Department of Justice. Of counsel were Vera

A. Strebel and Laura J. Barke, Defense Information Systems Agency/Defense

Information Technology Contracting Organization, Scott Air Force Base, Illinois.

Jonathan D. Shaffer, Smith Pachter McWhorter PLC, Tysons Corner, Virginia for

Defendant-Intervenor Ace Electronic Defense Systems, LLC. Of counsel were Mary Pat

Buckenmeyer and Todd M. Garland, Smith Pachter McWhorter PLC, Tysons Corner,

Virginia.

1This opinion was issued under seal on June 16, 2017. The court afforded the parties

an opportunity to propose redactions in the published opinion and the parties did not seek

any redactions. The opinion is issued in full below.

OPINION

HORN, J.

FINDINGS OF FACT

This is a post-award bid protest brought by protester i3 Cable & Harness LLC (i3)

against defendant United States, acting through the Defense Information Systems

Agency/Defense Information Technology Contracting Organization (DISA/DITCO or the

Agency). Participating as a defendant-intervenor is Ace Electronics Defense Systems,

LLC (Ace), the awardee of the contract at issue. Motions for judgment on the

administrative record filed by each of the parties are presently before the court.

On May 27, 2016, the Agency issued a request for proposals (RFP), HC1028-16-

R-0010 (the Solicitation), for the contract currently under consideration. The Solicitation

solicited Installation Kits (IKs) for the Project Manager Mission Command (PM MC),

Product Manager (PdM) Joint Battle Command - Platform (JBC-P) program. The JBC-P

is a networked battle command information system that enables military units to share

nearly real-time friendly and enemy-situational awareness information, operational maps

and graphics, and command and control messages. The program is managed by United

States Army, Program Executive Office Command Control Communications-Tactical

(PEO C3T). The Solicitation required awardees to design, develop, produce, modify, and

deliver IK, cables, and brackets to support the installation of the PM MC managed

systems and related subsystems of PEO C3T, as well as supply engineering services to

support the creation of new IKs and for the modification of existing IKs. IKs are an integral

part of the JBC-P systems that provide the electrical and mechanical interfaces to the

vehicle platform. Individual cables and hardware, such as mounting brackets, are critical

to the support and maintenance of the vehicles equipped with JBC-P systems.

Engineering services for development of new kits and modification of existing kits are

essential in keeping up with JBC-P fielding and capability requirements.

The Solicitation stated that the intended award would be a firm-fixed priced (FFP),

Indefinite Delivery/Indefinite Quantity (IDIQ) contract for a base period of three years with

seven one-year options and one six month extension. The “estimated overall value” of

the contract was $99.4 million with a “minimum guarantee” of $1 million. The Solicitation

stated that the award would be made to the offeror whose proposal was technically

acceptable and offered the lowest price to the government using the Lowest Price

Technically Acceptable (LPTA) valuation process.

The Solicitation contained two evaluation factors: (1) Technical/Management

Factor; and (2) Cost/Price Factor. The Technical/Management Factor had four subfactors

and was to be evaluated on an Acceptable or Unacceptable basis. The portion of the

Solicitation setting forth the requirements for the Technical/Management factor stated, in

full:

2. Technical/Management Factor

2

Failure to be found technically acceptable will result in the Offeror being

ineligible for award. In order to be found technically acceptable under Factor

1, the Offeror must be found acceptable under each of the below subfactors:

a. The Offeror must submit proof with its proposal of the following:

(1) at a minimum, dual sources of supply for all types of

materials/components outlined in the Installation Kit Level II

Drawing Package, Suppliers must all be valid companies with

current cage codes;

(2) copies of valid ISO 9001 or AS9100 Quality Management

Certifications for all Suppliers, Subcontractor, and Prime; and

(3) A Quality and Supply Chain Management Plan which

provides procedures to assess Supplier quality and

performance.

b. The Offeror must submit proof of manufacturing kitting processes

to include: sub-kitting; rack flow; staging; work-line instructions;

visual guides; quality checks; and specialized package techniques.

c. The Offeror must submit proof of available facilities, equipment,

and human resources to support a kitting production line that will

provide Installation Kits at a steady state rate of 1,000 Installation

Kits per month, with a surge rate up to 4,000 Installation Kits per

month within five (5) months of order receipt. Surge rate must

sustained throughout the entire period of performance if required by

the Government.

d. The Offeror must submit proof of Installation Kit engineering

design steps and processes from kit design through installation and

integration into a Department of Defense vehicular platform and

ability to execute rapid and simultaneous design efforts.

The technical evaluation will be given one of the following ratings:

Table 1. Technical/Management Ratings

Rating Description

Acceptable Proposal/quotation clearly meets the minimum

requirements of the solicitation.

Unacceptable Proposal/quotation does not clearly meets the

minimum requirements of the solicitation.

3

(emphasis in original).

The portion of the Solicitation setting forth the requirements for the Cost/Price

factor stated, in full:

3. Cost/Price Factor

The Offeror’s price proposal will be evaluated for award purposes based on

proposed total evaluated price. The total evaluated price will be calculated

as the sum total of evaluated pricing for Installation Kits, Spares [spare

parts], T&M [time and materials] labor and the cost reimbursable-only (i.e.

no fixed fee) travel estimate provided by the Government computed as

follows:

Installation Kits and Spares (Firm Fixed Price)

The Offeror’s quoted unit prices for the provided quantity ranges (proposed

in the Attachment J-3- IK Pricing Model) will be multiplied by the

Government-possessed quantity for each CLIN/item identified in Section B.

The sum of all resultant CLIN pricing will equate to evaluated price for the

ordering period.

Time and Materials (T&M) Labor Rates

The Offeror’s quoted hours will be multiplied by the proposed T&M labor

rates in the provided Attachment J-3 – IK Pricing Model. The resultant

product of the computation will constitute the T&M evaluated price for the

ordering period.

Total Evaluated Price

The total evaluated price will consist of the offeror’s evaluated price for IK

Installation, Spares, and T&M labor and the Government-provided cost

reimbursable travel estimate for the base period, all option periods, and the

option pricing for the additional six-month period IAW [in accordance with]

FAR 52.217-8. FAR 52.217-8 authorizes the Government to require

continued performance of any services within the limits and at the rates

specified in the contract. The pricing proposal should include a separate line

item for the additional six-month period IAW FAR 52.217-8. These prices

shall be identical to the proposed pricing in the six months prior to expiration

of the base period, or the final option period, if option periods are present.

Evaluation of options shall not obligate the Government to exercise such

options.

The offeror’s price proposal will be evaluated to determine if it is reasonable

and complete. Normally, price reasonableness is established utilizing one

or more of the price analysis techniques defined in FAR 15.404-1. The

Government will determine completeness of the offeror's proposal by

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verifying that all solicitation requirements have been priced, figures are

correctly calculated, and costs are presented within the mandatory pricing

template provided in Attachment J3 – IK Price Template to the Request for

Proposal.

Award will be made to the technically acceptable offeror that represents the

lowest evaluated price, as this is a LPTA requirement.

(emphasis in original).

The Attachment J-3 Price Template mentioned above in the requirements of the

Cost/Price Factor, was a template in the format of a Microsoft Excel spreadsheet that was

included with the Solicitation. The Attachment J-3 template allowed offerors to input their

pricing for IKs, spare parts (Spares), and time and material (T&M) labor categories for the

three base years, seven options years, and a six month extension. For the IKs and Spares

portion of the Attachment J-3 template, offerors were required to input different prices for

orders of 1-19, 20-49, 50-149, 150-999, and 1000-4999 units for each year.

Additionally, a portion of the Solicitation titled “General Instructions,” stated, in

part:

The offeror's proposal must include all data and information requested by

the Request for Proposal (RFP) and must be submitted in accordance with

these instructions. The offeror shall be compliant with the requirements as

stated in the IK Level II Drawing Package, Statement of Work (SOW), and

Contract Data Requirements List (CDRL). Non-conformance with the

instructions provided in this Information to Offerors may result in

removal of the proposal from further evaluation.

(emphasis in original).

The Statement of Work (SOW) attached to the Solicitation contained the following

provisions relevant to the present protest:

5. Scope. This Statement of Work (SOW) sets forth the tasks and efforts

the Contractor shall perform during this contract. . . .

***

8. Place of Performance. Contractor shall perform all activities at the

Contractor’s facilities with the exception of when travel is required to support

the requirements of the SOW. Travel will be required as directed by the

COR [Contracting Officer Representative]. Contractor personnel will travel

to various (CONUS [Continental United States] only) locations in support of

IK development and production efforts.

(emphasis in original).

5

Final proposals under the Solicitation and its amendments were due on November

28, 2016. Before the deadline for the submission of proposals, the Government received

responses from five offerors, including three relevant to the present protest: i3, Ace, and

Tabet Manufacturing Co. (Tabet).

Ace’s proposal, in its executive summary, contained the following language

relevant to the present protest:

1 INTRODUCTION

Ace Electronics Defense Systems, LLC (ACE) is a privately held, Service-

Disabled, Veteran-Owned Small Business (SDVOSB) and is International

Organization for Standardization (ISO) 9001:2008 certified. The company

specializes in electronics manufacturing services to include electronics and

mechanical design, manufacturing of cabling assemblies, diagnostic repair

and integration services including higher-level electro-mechanical

assemblies. With our 22,000 sq. ft. manufacturing facility in Troy, MI and

resources to another 18,000 sq. ft. in Metuchen, NJ, we support rapid

prototyping and full scale production runs and is [sic] equipped with the

latest manufacturing and test equipment, as well as injection molding

machines. Our 80,000 sq. ft. facility in Lexington, KY supports all aspects

of the kitting requirement, including receiving, kitting, marking, packaging,

and shipping.

Our commitment to providing the most cost effective quality products and

services on a timely basis has given us the advantage to excel in the wire,

cable, and electronic field. We have thoroughly reviewed the Production of

the U.S. Army, Project Manager Mission Command (PM MC) Installation

Kits (IKs) Solicitation Package and fully understand all requirements.

***

4.1.1 SUBCONTRACTORS

ACE intends to subcontract a portion of the cable assemblies to our primary

cable partner, Federal Prison Industries (Unicor). ACE and Unicor will be

responsible for 100% of the cable assemblies in order to meet the FAT [First

Article Testing] and production requirements. Once testing has been

completed and production facilities approved, a work-share providing best

value to the government will be established.

All of the metal components required for this solicitation will be

subcontracted. ACE has qualified multiple companies that are capable of

producing all of the components. . . .

(capitalization and emphasis in original).

6

According to the initial Price Evaluation Report, prepared by the Source Selection

Evaluation Board (SSEB) and issued November 30, 2016, the evaluated prices for IKs

and Spares for each of the five offerors were determined by multiplying the prices

provided in the offerors’ Attachment J-3 templates by government-estimated quantities of

150 units for each of the three base years and seven option years and by 75 units for the

six month extension. The initial Price Evaluation Report makes no mention of how these

government-estimated quantities were determined. After reviewing each of the five

proposals, the SSEB determined that ACE had the lowest Total Evaluated Price (TEP)

with $484,913,135.56, Tabet had the second lowest with $492,476,512.38, and i3 had

the fourth lowest with $612,179,182.05. The “independent government cost estimate”

(IGCE) determined in the initial Price Evaluation Report was $487,062,977.44. Because

the SSEB also found that Ace’s proposal met the requirements of the Solicitation’s

Technical/Management Factor, the SSEB recommended that the award under the

Solicitation be made to Ace. On December 15, 2016, a contracting officer called Ace to

advise it of the government’s decision to make an award to Ace and followed up with an

email stating that Ace was the apparent awardee of contract number HC1028-17-D-0002.

On December 27, 2016, after receiving notice from the Agency that it was an

unsuccessful offeror, i3 filed a protest with the Government Accountability Office (GAO),

challenging the government’s decision to award the contract to Ace. In its protest before

the GAO, i3 alleged that: (1) the government’s evaluation of i3’s and Ace’s pricing

proposals was flawed because i3’s and Ace’s TEPs exceeded the maximum contract

value identified in the Solicitation; (2) the government’s evaluation of Ace’s technical

proposals was flawed because Ace allegedly did not have direct management oversight

for one of its subcontractors; and (3) the government treated offerors unequally through

the release of certain amendments to the Solicitation. On January 10, 2017, the

government informed the GAO that it intended to take corrective action and requested

that the GAO dismiss the protest. In particular, the government’s notice to the GAO stated

that the government would “Re-evaluate the quantities used in the calculation of the Total

Evaluated Price” and, “[i]n accordance with the RFP, . . . identify the lowest priced

proposal and conduct an evaluation of the proposal.” On January 26, 2017, the GAO

dismissed i3’s protest as academic.

On February 15, 2017, the Agency notified all five offerors via email that “[a]s a

result of the protest received . . . , the Government has taken corrective action and is re-

evaluating proposals with regard to the Total Evaluated Price.” The email requested that

offerors confirm the “validity” of their most recent proposals by February 21, 2017. In a

memorandum for record (MFR) dated February 15, 2017, the Agency explained, how it

had determined the re-evaluated quantities to be used in the calculation of the TEP as

part of the corrective action. Based on historical practices, projected needs, and the price

savings available at the 150-999 range, the Agency determined that, as it had done during

the initial price evaluation, it would use an estimated quantity of 150 units for each

individual purchase. Rather than simply apply the 150 unit quantity for each of the three

base years and seven option years (and 75 units for the six month extension), as it did

during the initial price evaluation, however, the Agency organized all types of IKs and

Spares into three groups that would be purchased at different frequencies over the course

of the contract: 1) Items Purchased Often; 2) Items Purchased Moderately; and 3) Items

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Purchased Rarely. Items Purchased Often were assumed to be purchased three to four

times over the course of the contract. Items Purchased Moderately were assumed to be

purchased two to three times over the course of the contract. Items Purchased Rarely

were assumed to be purchased once over the course of the contract. According to the

MFR, the identification of each of the three groups was based upon “the historical

frequency of procurements of IKs and Spares under the Previous IK Contract” and

“current/future fielding and sustainment requirements.” The MFR summarized the overall

process it used in coming to the re-evaluated quantities as follows:

[T]he Government: (1) carefully analyzed its current stock levels of IKs and

Spares; (2) evaluated its anticipated needs of IKs and Spares in the future;

(3) reviewed its historic purchasing patterns under the Previous IK Contract;

and (4) ensured that the IGCE did not exceed the set value of the future IK

contract. As a result, the estimated quantities and the projected

procurements of IKs and Spares are a reasonably accurate representation

of the Government’s anticipated needs.

Based on the re-evaluated government-estimated quantities, the SSEB

determined that the pricing proposal submitted by Tabet represented the lowest priced

solution, with a TEP of $106,245,279.33. Ace was determined to have the second lowest

price, with a TEP of $119,821,714.72, while i3 was determined to have the fourth lowest

price, with a TEP of $142,610,654.61. The ICGE was determined to be $107,980,857.62.

The SSEB also determined, however, that the technical portion Tabet’s proposal was not

acceptable because it did not meet all of the requirements of the Technical/Management

Factor stated in the Solicitation. In accordance with the terms of the Solicitation, the SSEB

evaluated the technical proposal of the next lowest priced offeror, Ace, and determined

that it did meet all of the requirements of the Technical/Management Factor. Based on

these results, the SSEB recommended that the award of the contract be made to Ace.

On March 27, 2017, the contracting officer lifted the stop work order and Ace was allowed

to proceed with the contract. On the same day, the Agency issued post-award and

debriefing letters to all parties that had submitted a response to the Solicitation.

Protestor filed a bid protest complaint in this court on April 7, 2017. In its complaint,

protestor alleges that the award of the contract at issue to Ace was improper and requests

that the court so declare and that the contract should properly have been awarded to i3.

Protestor did not request an injunction. A motion to intervene was filed by Ace on the

same day and granted by the court on April 10, 2017. Protestor filed a motion for judgment

on the administrative record on May 4, 2017, and defendant and defendant-intervenor

each filed cross-motions for judgment on the administrative record and responses to

protestor’s motion on May 17, 2017. Protestor filed its response to defendant and

intervenor’s cross-motion on May 23, 2017, and defendant and defendant-intervenor filed

replies to protestor’s response on May 30, 2017.

DISCUSSION

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

(2016) governs motions for judgment on the administrative record. The court’s inquiry is

8

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

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

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

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

Cir. 2005))); see also Strategic Bus. Sols., Inc. v. United States, 129 Fed. Cl. 621, 627

(2016); Rotech Healthcare Inc. v. United States, 118 Fed. Cl. 408, 413 (2014); Eco Tour

Adventures, Inc. v. United States, 114 Fed. Cl. 6, 21 (2013); DMS All-Star Joint Venture

v. United States, 90 Fed. Cl. 653, 661 (2010). Pursuant to RCFC 52.1, in a bid protest,

the court reviews the agency’s procurement decision to determine whether it is supported

by the administrative record. See CW Gov’t Travel, Inc. v. United States, 110 Fed. Cl.

462, 481 (2013).

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

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

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

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

Garufi v. United States, 238 F.3d 1324, 1330–32 (Fed. Cir. 2001); see also Sys.

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

(explaining that the Tucker Act expressly waives sovereign immunity for claims against

the United States in bid protests). The statute provides that protests of agency

procurement decisions are to be reviewed under Administrative Procedure Act (APA)

standards, making applicable the standards outlined in Scanwell Labs., Inc. v. Shaffer,

424 F.2d 859 (D.C. Cir. 1970), and the line of cases following that decision. See, e.g., Per

Aarsleff A/S v. United States, 829 F.3d 1303, 1309 (Fed. Cir. 2016) (quoting NVT Techs.,

Inc. v. United States, 370 F.3d 1153, 1159 (Fed. Cir. 2004)) (“Protests of agency

procurement decisions are reviewed under the standards set forth in the Administrative

Procedure Act (‘APA’), see 28 U.S.C. § 1491(b)(4) (citing 5 U.S.C. § 706), ‘by which an

agency's decision is to be set aside only if it is arbitrary, capricious, an abuse of discretion,

or otherwise not in accordance with law[.]’”); Impresa Construzioni Geom. Domenico

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

597 F.3d 1238, 1242 (Fed. Cir. 2010) (“Following passage of the APA in 1946, the District

of Columbia Circuit in Scanwell Labs., Inc. v. Shaffer, 424 F.2d 859 (D.C. Cir. 1970), held

that challenges to awards of government contracts were reviewable in federal district

courts pursuant to the judicial review provisions of the APA.”); Galen Med. Assocs., Inc.

v. United States, 369 F.3d 1324, 1329 (Fed. Cir. 2004) (citing Scanwell Labs., Inc. v.

Shaffer, 424 F.2d at 864, 868, for its “reasoning that suits challenging the award process

are in the public interest and disappointed bidders are the parties with an incentive to

enforce the law”); Banknote Corp. of Am., Inc. v. United States, 365 F.3d 1345, 1351

(Fed. Cir. 2004) (“Under the APA standard as applied in the Scanwell line of cases, and

now in ADRA cases, ‘a bid award may be set aside if either (1) the procurement official’s

decision lacked a rational basis; or (2) the procurement procedure involved a violation of

regulation or procedure.’” (quoting Impresa Construzioni Geom. Domenico Garufi v.

United States, 238 F.3d at 1332)); Info. Tech. & Applications Corp. v. United States, 316

F.3d 1312, 1319 (Fed. Cir. 2003).

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

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

9

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

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

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

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

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

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

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

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

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

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

should be set aside when they are “arbitrary, capricious, an abuse of discretion, or

otherwise not in accordance with law,” or “without observance of procedure required by

law.” 5 U.S.C. § 706(2)(A), (D) (2012); 2 see also Tinton Falls Lodging Realty, LLC v.

2 The language of 5 U.S.C. § 706 provides in full:

To the extent necessary to decision and when presented, the reviewing

court shall decide all relevant questions of law, interpret constitutional and

statutory provisions, and determine the meaning or applicability of the terms

of an agency action. The reviewing court shall—

(1) compel agency action unlawfully withheld or unreasonably delayed;

and

(2) hold unlawful and set aside agency action, findings, and conclusions

found to be—

(A) arbitrary, capricious, an abuse of discretion, or otherwise not in

accordance with law;

(B) contrary to constitutional right, power, privilege, or immunity;

(C) in excess of statutory jurisdiction, authority, or limitations, or short

of statutory right;

(D) without observance of procedure required by law;

(E) unsupported by substantial evidence in a case subject to sections

556 and 557 of this title or otherwise reviewed on the record of

an agency hearing provided by statute; or

(F) unwarranted by the facts to the extent that the facts are subject

to trial de novo by the reviewing court.

10

United States, 800 F.3d 1353, 1358 (Fed. Cir. 2015); Orion Tech., Inc. v. United States,

704 F.3d 1344, 1347 (Fed. Cir. 2013); COMINT Sys. Corp. v. United States, 700 F.3d

1377, 1381 (Fed. Cir. 2012) (“We evaluate agency actions according to the standards set

forth in the Administrative Procedure Act; namely, for whether they are ‘arbitrary,

capricious, an abuse of discretion, or otherwise not in accordance with law.’” (quoting 5

U.S.C. § 706(2)(A); Bannum, Inc. v. United States, 404 F.3d at 1351)); Savantage Fin.

Servs. Inc., v. United States, 595 F.3d 1282, 1285–86 (Fed. Cir. 2010); Weeks Marine,

Inc. v. United States, 575 F.3d 1352, 1358 (Fed. Cir. 2009); Axiom Res. Mgmt., Inc. v.

United States, 564 F.3d 1374, 1381 (Fed. Cir. 2009) (noting arbitrary and capricious

standard set forth in 5 U.S.C. § 706(2)(A), and reaffirming the analysis of Impresa

Construzioni Geom. Domenico Garufi v. United States, 238 F.3d at 1332); Blue & Gold

Fleet, L.P. v. United States, 492 F.3d 1308, 1312 (Fed. Cir. 2007) (“‘[T]he inquiry is

whether the [government]’s procurement decision was “arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with law.”’” (quoting Bannum, Inc. v. United

States, 404 F.3d at 1351 (quoting 5 U.S.C. § 706(2)(A) (2000))); NVT Techs., Inc. v.

United States, 370 F.3d at 1159 (“Bid protest actions are subject to the standard of review

established under section 706 of title 5 of the Administrative Procedure Act (‘APA’), 28

U.S.C. § 1491(b)(4) (2000), by which an agency’s decision is to be set aside only if it is

‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,’ 5

U.S.C. § 706(2)(A) (2000).”) (internal citations omitted); Info. Tech. & Applications Corp.

v. United States, 316 F.3d at 1319 (“Consequently, our inquiry is whether the Air Force’s

procurement decision was ‘arbitrary, capricious, an abuse of discretion, or otherwise not

in accordance with law.’ 5 U.S.C. § 706(2)(A) (2000).”); Eco Tour Adventures, Inc. v.

United States, 114 Fed. Cl. at 22; Contracting, Consulting, Eng’g LLC v. United States,

104 Fed. Cl. 334, 340 (2012). “In a bid protest case, the agency’s award must be upheld

unless it is ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance

with law.’” Turner Constr. Co. v. United States, 645 F.3d 1377, 1383 (Fed. Cir.) (quoting

PAI Corp. v. United States, 614 F.3d 1347, 1351 (Fed. Cir. 2010)), reh’g and reh’g en

banc denied (Fed. Cir. 2011); see also Tinton Falls Lodging Realty, LLC v. United States,

800 F.3d at 1358 (“In applying this [arbitrary and capricious] standard to bid protests, our

task is to determine whether the procurement official's decision lacked a rational basis or

the procurement procedure involved a violation of a regulation or procedure.”) (citing

Savantage Fin. Servs., Inc. v. United States, 595 F.3d at 1285–86); Glenn Def. Marine

(ASIA), PTE Ltd. v. United States, 720 F.3d 901, 907 (Fed. Cir.), reh’g en banc denied

(Fed. Cir. 2013); McVey Co., Inc. v. United States, 111 Fed. Cl. 387, 402 (2013) (“The

first step is to demonstrate error, that is, to show that the agency acted in an arbitrary and

capricious manner, without a rational basis or contrary to law.”); PlanetSpace, Inc. v.

United States, 92 Fed. Cl. 520, 531–32 (2010) (“Stated another way, a plaintiff must show

In making the foregoing determinations, the court shall review the whole

record or those parts of it cited by a party, and due account shall be taken

of the rule of prejudicial error.

5 U.S.C. § 706.

11

that the agency’s decision either lacked a rational basis or was contrary to law.” (citing

Weeks Marine, Inc. v. United States, 575 F.3d at 1358)).

The United States Supreme Court has identified sample grounds which can

constitute arbitrary or capricious agency action:

[W]e will not vacate an agency’s decision unless it “has relied on factors

which Congress has not intended it to consider, entirely failed to consider

an important aspect of the problem, offered an explanation for its decision

that runs counter to the evidence before the agency, or is so implausible

that it could not be ascribed to a difference in view or the product of agency

expertise.”

Nat’l Ass’n of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 658 (2007) (quoting

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

also Tinton Falls Lodging Realty, LLC v. United States, 800 F.3d at 1358; F.C.C. v. Fox

Television Stations, Inc., 556 U.S. 502, 552 (2009); Ala. Aircraft Indus., Inc.-Birmingham

v. United States, 586 F.3d 1372, 1375 (Fed. Cir. 2009), reh’g and reh’g en banc denied

(Fed. Cir. 2010); In re Sang Su Lee, 277 F.3d 1338, 1342 (Fed. Cir. 2002) (“[T]he agency

tribunal must present a full and reasoned explanation of its decision. . . . The reviewing

court is thus enabled to perform meaningful review . . . .”); Textron, Inc. v. United States,

74 Fed. Cl. 277, 285–86 (2006), appeal dismissed sub nom. Textron, Inc. v. Ocean

Technical Servs., Inc., 223 F. App’x 974 (Fed. Cir. 2007). The United States Supreme

Court also has cautioned, however, that “courts are not free to impose upon agencies

specific procedural requirements that have no basis in the APA.” Pension Benefit Guar.

Corp. v. LTV Corp., 496 U.S. 633, 654 (1990).

Under an arbitrary or capricious standard, the reviewing court should not substitute

its judgment for that of the agency, but should review the basis for the agency decision to

determine if it was legally permissible, reasonable, and supported by the facts. See Motor

Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. at 43 (“The scope of

review under the ‘arbitrary and capricious’ standard is narrow and a court is not to

substitute its judgment for that of the agency.”); see also Turner Constr. Co., Inc. v. United

States, 645 F.3d at 1383; R & W Flammann GmbH v. United States, 339 F.3d 1320, 1322

(Fed. Cir. 2003) (citing Ray v. Lehman, 55 F.3d 606, 608 (Fed. Cir.), cert. denied, 516

U.S. 916 (1995)). “‘“If the court finds a reasonable basis for the agency’s action, the court

should stay its hand even though it might, as an original proposition, have reached a

different conclusion as to the proper administration and application of the procurement

regulations.”’” Weeks Marine, Inc. v. United States, 575 F.3d at 1371 (quoting Honeywell,

Inc. v. United States, 870 F.2d 644, 648 (Fed. Cir. 1989) (quoting M. Steinthal & Co. v.

Seamans, 455 F.2d 1289, 1301 (D.C. Cir. 1971))); Jordan Pond Co., LLC v. United

States, 115 Fed. Cl. 623, 631 (2014); Davis Boat Works, Inc. v. United States, 111 Fed.

Cl. 342, 349 (2013); Norsat Int’l [America], Inc. v. United States, 111 Fed. Cl. 483, 493

(2013); HP Enter. Servs., LLC v. United States, 104 Fed. Cl. 230, 238 (2012); Vanguard

Recovery Assistance v. United States, 101 Fed. Cl. 765, 780 (2011).

Stated otherwise by the United States Supreme Court:

12

Section 706(2)(A) requires a finding that the actual choice made was not

“arbitrary, capricious, an abuse of discretion, or otherwise not in accordance

with law.” To make this finding the court must consider whether the decision

was based on a consideration of the relevant factors and whether there has

been a clear error of judgment. Although this inquiry into the facts is to be

searching and careful, the ultimate standard of review is a narrow one. The

court is not empowered to substitute its judgment for that of the agency.

Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971), abrogated on

other grounds by Califano v. Sanders, 430 U.S. 99 (1977) (internal citations omitted); see

also U.S. Postal Serv. v. Gregory, 534 U.S. 1, 6–7 (2001); Bowman Transp., Inc. v.

Arkansas-Best Freight Sys., Inc., 419 U.S. 281, 285 (1974), reh’g denied, 420 U.S. 956

(1975); Co-Steel Raritan, Inc. v. Int’l Trade Comm’n, 357 F.3d 1294, 1309 (Fed. Cir. 2004)

(In discussing the “arbitrary, capricious, and abuse of discretion, or otherwise not in

accordance with the law” standard, the Federal Circuit stated: “the ultimate standard of

review is a narrow one. The court is not empowered to substitute its judgment for that of

the agency.”); In re Sang Su Lee, 277 F.3d at 1342; Advanced Data Concepts, Inc. v.

United States, 216 F.3d at 1058 (“The arbitrary and capricious standard applicable here

is highly deferential. This standard requires a reviewing court to sustain an agency action

evincing rational reasoning and consideration of relevant factors.” (citing Bowman

Transp., Inc. v. Arkansas-Best Freight Sys., Inc., 419 U.S. at 285)); Lockheed Missiles &

Space Co. v. Bentsen, 4 F.3d 955, 959 (Fed. Cir. 1993); BCPeabody Constr. Servs., Inc.

v. United States, 112 Fed. Cl. 502, 508 (2013) (“The court ‘is not empowered to substitute

its judgment for that of the agency,’ and it must uphold an agency’s decision against a

challenge if the ‘contracting agency provided a coherent and reasonable explanation of

its exercise of discretion.’” (quoting Keeton Corrs., Inc. v. United States, 59 Fed. Cl. 753,

755, recons. denied, 60 Fed. Cl. 251 (2004), and Axiom Res. Mgmt., Inc. v. United States,

564 F.3d at 1381)), appeal withdrawn, 559 F. App’x 1033 (Fed. Cir. 2014) (internal

citations omitted); Supreme Foodservice GmbH v. United States, 109 Fed. Cl. 369, 382

(2013); Alamo Travel Grp., LP v. United States, 108 Fed. Cl. 224, 231 (2012); ManTech

Telecomms. & Info. Sys. Corp. v. United States, 49 Fed. Cl. 57, 63 (2001), aff’d, 30 F.

App’x 995 (Fed. Cir. 2002); Ellsworth Assocs., Inc. v. United States, 45 Fed. Cl. 388, 392

(1999) (“Courts must give great deference to agency procurement decisions and will not

lightly overturn them.” (citing Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 743–44

(1985))), appeal dismissed, 6 F. App’x 867 (Fed. Cir. 2001), and superseded by regulation

as recognized in MVS USA, Inc. v. United States, 111 Fed. Cl. 639 (2013).

According to the United States Court of Appeals for the Federal Circuit:

Effective contracting demands broad discretion. Burroughs Corp. v. United

States, 223 Ct. Cl. 53, 617 F.2d 590, 598 (1980); Sperry Flight Sys. Div. v.

United States, 548 F.2d 915, 921, 212 Ct. Cl. 329 (1977); see NKF Eng’g,

Inc. v. United States, 805 F.2d 372, 377 (Fed. Cir. 1986); Tidewater

Management Servs., Inc. v. United States, 573 F.2d 65, 73, 216 Ct. Cl. 69

(1978); RADVA Corp. v. United States, 17 Cl. Ct. 812, 819 (1989), aff’d, 914

F.2d 271 (Fed. Cir. 1990). Accordingly, agencies “are entrusted with a good

deal of discretion in determining which bid is the most advantageous to the

13

Government.” Tidewater Management Servs., 573 F.2d at 73, 216 Ct. Cl.

69.

Lockheed Missiles & Space Co. v. Bentsen, 4 F.3d at 958–59; see also Res-Care, Inc. v.

United States, 735 F.3d 1384, 1390 (Fed. Cir.) (“DOL [Department of Labor], as a federal

procurement entity, has ‘broad discretion to determine what particular method of

procurement will be in the best interests of the United States in a particular situation.’”

(quoting Tyler Constr. Grp. v. United States, 570 F.3d 1329, 1334 (Fed. Cir. 2009))), reh’g

en banc denied (Fed. Cir. 2014); Grumman Data Sys. Corp. v. Dalton, 88 F.3d 990, 995

(Fed. Cir. 1996); Geo-Med, LLC v. United States, 126 Fed. Cl. 440, 449 (2016); Cybertech

Grp., Inc. v. United States, 48 Fed. Cl. 638, 646 (2001) (“The court recognizes that the

agency possesses wide discretion in the application of procurement regulations.”);

Furthermore, according to the Federal Circuit:

Contracting officers “are entitled to exercise discretion upon a broad range

of issues confronting them in the procurement process.” Impresa

Construzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324,

1332 (Fed. Cir. 2001) (internal quotation marks omitted). Accordingly,

procurement decisions are subject to a “highly deferential rational basis

review.” CHE Consulting, Inc. v. United States, 552 F.3d 1351, 1354 (Fed.

Cir. 2008) (internal quotation marks omitted).

PAI Corp. v. United States, 614 F.3d at 1351; see also Weeks Marine, Inc. v. United

States, 575 F.3d at 1368–69 (“We have stated that procurement decisions ‘invoke[ ]

“highly deferential” rational basis review.’ Under that standard, we sustain an agency

action ‘evincing rational reasoning and consideration of relevant factors.’” (quoting CHE

Consulting, Inc. v. United States, 552 F.3d at 1354 (quoting Advanced Data Concepts,

Inc. v. United States, 216 F.3d at 1058))).

On a motion for judgment on the administrative record, a disappointed bidder has

the burden of demonstrating the arbitrary and capricious nature of the agency decision

by a preponderance of the evidence. See Tinton Falls Lodging Realty, LLC v. United

States, 800 F.3d at 1364; see also Grumman Data Sys. Corp. v. Dalton, 88 F.3d at 995–

96; Davis Boat Works, Inc. v. United States, 111 Fed. Cl. at 349; Contracting, Consulting,

Eng’g LLC v. United States, 104 Fed. Cl. at 340. The Federal Circuit has indicated that

“[t]his court will not overturn a contracting officer’s determination unless it is arbitrary,

capricious, or otherwise contrary to law. To demonstrate that such a determination is

arbitrary or capricious, a protester must identify ‘hard facts’; a mere inference or suspicion

. . . is not enough.” PAI Corp. v. United States, 614 F.3d at 1352 (citing John C. Grimberg

Co. v. United States, 185 F.3d 1297, 1300 (Fed. Cir. 1999)); see also Turner Constr. Co.,

Inc. v. United States, 645 F.3d at 1387; Sierra Nevada Corp. v. United States, 107 Fed.

Cl. 735, 759 (2012); Filtration Dev. Co., LLC v. United States, 60 Fed. Cl. 371, 380 (2004).

A bid protest proceeds in two steps. First . . . the trial court determines

whether the government acted without rational basis or contrary to law when

evaluating the bids and awarding the contract. Second . . . if the trial court

finds that the government’s conduct fails the APA review under 5 U.S.C.

14

§ 706(2)(A), then it proceeds to determine, as a factual matter, if the bid

protester was prejudiced by that conduct.

Bannum, Inc. v. United States, 404 F.3d at 1351; FirstLine Transp. Sec., Inc. v. United

States, 119 Fed. Cl. 116, 126 (2014); Eco Tour Adventures, Inc. v. United States, 114

Fed. Cl. at 22; Archura LLC v. United States, 112 Fed. Cl. 487, 496 (2013). To prevail in

a bid protest case, the protestor not only must show that the government’s actions were

arbitrary, capricious, or otherwise not in accordance with the law, but the protestor also

must show that it was prejudiced by the government’s actions. See 5 U.S.C. § 706 (“[D]ue

account shall be taken of the rule of prejudicial error.”); see also Glenn Def. Marine

(ASIA), PTE Ltd. v. United States, 720 F.3d at 907 (“In a bid protest case, the inquiry is

whether the agency's action was arbitrary, capricious, an abuse of discretion, or otherwise

not in accordance with law and, if so, whether the error is prejudicial.”) ; Linc Gov’t Servs.,

LLC v. United States, 96 Fed. Cl. 672, 694-96 (2010). In describing the prejudice

requirement, the Federal Circuit also has held that:

To prevail in a bid protest, a protester must show a significant, prejudicial

error in the procurement process. See Statistica, Inc. v. Christopher, 102

F.3d 1577, 1581 (Fed. Cir. 1996); Data Gen. Corp. v. Johnson, 78 F.3d

1556, 1562 (Fed. Cir. 1996). “To establish prejudice, a protester is not

required to show that but for the alleged error, the protester would have

been awarded the contract.” Data General, 78 F.3d at 1562 (citation

omitted). Rather, the protester must show “that there was a substantial

chance it would have received the contract award but for that error.”

Statistica, 102 F.3d at 1582; see CACI, Inc.-Fed. v. United States, 719 F.2d

1567, 1574-75 (Fed. Cir. 1983) (to establish competitive prejudice, protester

must demonstrate that but for the alleged error, “‘there was a substantial

chance that [it] would receive an award--that it was within the zone of active

consideration.’”) (citation omitted).

Alfa Laval Separation, Inc. v. United States, 175 F.3d 1365, 1367 (Fed. Cir.), reh’g denied

(Fed. Cir. 1999); see also Glenn Def. Marine (ASIA), PTE Ltd. v. United States, 720 F.3d

at 912; Allied Tech. Grp., Inc. v. United States, 649 F.3d 1320, 1326 (Fed. Cir.), reh’g en

banc denied (Fed. Cir. 2011); Info. Tech. & Applications Corp. v. United States, 316 F.3d

at 1319; Impresa Construzioni Geom. Domenico Garufi v. United States, 238 F.3d at

1332-33; OMV Med., Inc. v. United States, 219 F.3d 1337, 1342 (Fed. Cir. 2000);

Advanced Data Concepts, Inc. v. United States, 216 F.3d at 1057; Stratos Mobile

Networks USA, LLC v. United States, 213 F.3d 1375, 1380 (Fed. Cir. 2000).

In Data General Corp. v. Johnson, the United States Court of Appeals for the

Federal Circuit wrote:

We think that the appropriate standard is that, to establish prejudice, a

protester must show that, had it not been for the alleged error in the

procurement process, there was a reasonable likelihood that the protester

would have been awarded the contract . . . . The standard reflects a

reasonable balance between the importance of (1) averting unwarranted

15

interruptions of and interferences with the procurement process and (2)

ensuring that protesters who have been adversely affected by allegedly

significant error in the procurement process have a forum available to vent

their grievances. This is a refinement and clarification of the “substantial

chance” language of CACI, Inc.-Fed. [v. United States], 719 F.2d at 1574.

Data Gen. Corp. v. Johnson, 78 F.3d 1556, 1562 (Fed. Cir.), reh’g denied, en banc

suggestion declined (Fed. Cir. 1996); see also Glenn Def. Marine (ASIA), PTE Ltd. v.

United States, 720 F.3d at 912; Bannum, Inc. v. United States, 404 F.3d at 1353, 1358

(“The trial court was required to determine whether these errors in the procurement

process significantly prejudiced Bannum . . . . To establish ‘significant prejudice’ Bannum

must show that there was a ‘substantial chance’ it would have received the contract award

but for the [government’s] errors” in the bid process. (citing Info. Tech. & Applications

Corp. v. United States, 316 F.3d at 1319; Alfa Laval Separation, Inc. v. United States,

175 F.3d at 1367; Statistica, Inc. v. Christopher, 102 F.3d at 1581; Data Gen. Corp. v.

Johnson, 78 F.3d at 1562); see also Todd Constr., L.P. v. United States, 656 F.3d 1306,

1315 (Fed. Cir. 2011); Advanced Data Concepts, Inc. v. United States, 216 F.3d at 1057

(using a “reasonable likelihood” rule); Stratos Mobile Networks USA, LLC v. United

States, 213 F.3d at 1380 (using a “substantial chance” test); Archura LLC v. United

States, 112 Fed. Cl. at 496 (using a “substantial chance” test); Info. Scis. Corp. v. United

States, 73 Fed. Cl. 70, 96 (2006) (using a “substantial chance” test), recons. in part, 75

Fed. Cl. 406 (2007).

Initially, the court notes that the arguments made by protestor in its briefs in support

of its motion for judgment on the administrative record are conclusory, repetitive, poorly

structured, and offered with little or no citations to the record. Protestor also fails to cite

to few, if any, applicable statutes, regulations, or case law for support. That being said,

as best as the court can tell, protestor appears to argue that the Agency erred in awarding

the contract at issue to Ace on four grounds. First, protestor appears to allege that the

price evaluations made by defendant as part of the corrective action, and the estimated

quantities upon which they were based, were arbitrary, capricious, and an abuse of

discretion. Second, protestor appears to allege that defendant violated the evaluation

criteria in the Solicitation by awarding the contract to Ace because Ace was not

“technically capable” of performing the contract. Third, protestor appears to allege that

Ace had an impermissible Organizational Conflict of Interest (OCI) through its

subcontractor Unicor. Fourth, in an argument raised for the first time in its reply brief,

protestor argues that the award to Ace constituted an impermissible “directed award” by

defendant.

Defendant and defendant-intervenor argue that protestor’s first argument was

waived because it concerns a term of the Solicitation that was not challenged prior to the

close of bidding, and, in the alternative, that protestor’s argument fails on the merits. With

regard to protestor’s second argument, defendant and defendant-intervenor argue that

the Agency’s determination that Ace’s proposal was technically acceptable was

reasonable. With regard to protestor’s third and fourth arguments, defendant and

defendant-intervenor assert that protestor has failed to offer sufficient evidence to meet

16

its burden of demonstrating that Ace or Unicor had an OCI or that there was a “directed

award.”

I. Price Evaluations and the Corrective Action

In its motion for judgment on the administrative record, protestor identifies what it

alleges are three separate sources of error related to the price evaluations made as part

of the corrective action evaluation: “The Agency’s corrective action evaluations were

arbitrary and capricious, and an abuse of discretion”; “[t]he Agency failed to make a proper

price evaluation”; and “[t]he Agency’s corrective action reassessment of its estimated

quantities and updated Independent Government Contract Estimate (IGCE) upon which

it based the price evaluation of offerors and award was not reasonable and was arbitrary

and capricious.” (emphasis omitted). Although stylized as three separate sources of error,

each of the three are based on the same substantive allegations: that the price

evaluations made after the corrective action, and the estimated quantities upon which

they were based, were arbitrary and capricious. Indeed, in its reply brief, protestor

dispenses with the three separate allegations and simply summarizes its argument as:

“the corrective action price evaluation was based on different criteria [from those

contained in the Solicitation] and resulted in different price rankings of the offerors.”

(internal citations omitted).

Although protestor’s arguments are highly repetitive and often difficult to follow, it

appears to argue that the price evaluations were arbitrary and capricious on two grounds.

First, protester appears to challenge the Agency’s use of undisclosed estimated quantities

to evaluate the TEP of offerors’ proposals, stating: “It is unreasonable to have offerors

price a proposal based on two different unknown and undisclosed quantities,” the

government estimated quantities used during the initial price evaluation and the re-

evaluated estimated quantities used in the price evaluations performed during the time

when the Agency took corrective action. According to protestor, it is “unfair to offerors and

voids competition if offerors must bid on such large unknown variance of estimated

quantities stated by the Agency” because “[i]t is a given that proposing pricing for larger

quantities versus smaller quantities affects all offerors [sic] proposal pricing.” According

to protestor, “[i]t is apparent that the pricing would have been different for the offerors if

they were aware of the difference in the estimated quantities and the IGCE between the

first and corrective action evaluations by the Agency.” Protestor also asserts that the

amounts of the estimated quantities used by the Agency to evaluate price during the

corrective action were unreasonable, stating: “there is no assurance in the second

corrective action that the estimated quantities are a fair and reasonable estimate of the

needs under this contract.”

In the first place, defendant and defendant-intervenor both argue that protestor’s

objections regarding the estimated quantities used are waived because they amount to

untimely challenges to the terms of the Solicitation. Both argue that, under the terms of

the solicitation, the Agency was not required to disclose the estimated quantities to

offerors. According to the defendant and defendant-intervenor, under Blue & Gold Fleet,

L.P. v. United States, 492 F.3d 1308, protests regarding the terms of a solicitation must

be filed prior to the close of the bidding process. Defendant and defendant-intervenor

17

argue that, because protestor failed to object to the use of undisclosed estimated

quantities prior to the close of bidding on the contract at issue, the objection was waived.

In addition, both defendant and defendant intervenor argue that, to the extent protestor’s

arguments are properly before the court, they fail on the merits because the price

evaluations performed by the Agency as part of the corrective action were “reasonably

based on historical ordering patterns and anticipated needs” and were “conducted in

accordance with the terms of the solicitation.”

In Blue & Gold Fleet, L.P. v. United States, 492 F.3d 1308, the United States Court

of Appeals for the Federal Circuit addressed whether, if an offeror had the opportunity to

object to a patent error in the terms of a solicitation, but failed to do so, did the offeror

waive the right to challenge that same error in a subsequent bid protest. See id. at 1313.

In Blue & Gold Fleet, L.P. v. United States, the protestor challenged the National Park

Service’s award of a contract to Hornblower Yachts, Inc. (Hornblower) for ferry services

to Alcatraz Island. See Blue & Gold Fleet, L.P. v. United States, 492 F.3d at 1310-11.

The protestor argued that Hornblower’s proposal did not include employee wage and

benefits information required by the Service Contract Act, thus, making the Park Service’s

evaluation of the cost of Hornblower’s proposal flawed. See id. at 1312. The Federal

Circuit acknowledged that “[b]y statute, the Park Service must ‘evaluate . . . proposals

and make an award based solely on the factors specified in the solicitation.’” Id. at 1313

(quoting 10 U.S.C. § 2305(b)(1)). Moreover, in Blue & Gold, the Federal Circuit

acknowledged that “[i]n this case, it is true that the decision not to apply the Service

Contract Act to the contract may have influenced the evaluation of the proposals;

however, the Park Service made this decision during the solicitation, not evaluation,

phase of the bidding process.” Id. The Federal Circuit noted that the solicitation “did not

include any requirement that the bidders consider the Service Contract Act,” id., and that

the protestor had not raised any objection to the exclusion of Service Contract Act

requirements prior to the submission of proposals. Therefore, the Federal Circuit found

that the protestor was challenging the terms of the solicitation, not the agency’s evaluation

of Hornblower’s proposal. See id.

The Federal Circuit also noted that the protestor in Blue & Gold had failed to

challenge the terms of the solicitation until after the Park Service had selected Hornblower

for contract award. See id. at 1311. In considering whether the protestor had waited too

long to challenge the solicitation, the Federal Circuit noted that decisions of the Court of

Federal Claims had concluded “that where there is a ‘deficiency or problem in a

solicitation . . . the proper procedure for the offeror to follow is not to wait to see if it is the

successful offeror before deciding whether to challenge the procurement, but rather to

raise the objection in a timely fashion.’” Id. at 1314 (quoting N.C. Div. of Servs. for the

Blind v. United States, 53 Fed. Cl. 147, 165 (2002), aff’d, 60 F. App’x 826 (Fed. Cir. 2003))

(omission in original); see also Draken Int’l, Inc. v. United States, 120 Fed. Cl. 383, 393

(2015).

In Blue & Gold, the Federal Circuit held:

[A] party who has the opportunity to object to the terms of a government

solicitation containing a patent error and fails to do so prior to the close of

18

the bidding process waives its ability to raise the same objection

subsequently in a bid protest action in the Court of Federal Claims.

Blue & Gold Fleet, L.P. v. United States, 492 F.3d at 1313; see also Per Aarsleff A/S v.

United States, 829 F.3d at 1312; Sys. Dynamics Int'l, Inc. v. United States, 130 Fed. Cl.

499, 517 (2017); Phoenix Mgmt., Inc. v. United States, 125 Fed. Cl. 170, 181 (2016);

Universal Marine Co., K.S.C. v. United States, 120 Fed. Cl. 240, 248–49 (2015);

Northeast Constr., Inc. v. United States, 119 Fed. Cl. 596, 609 (2015); Innovative Mgmt.

Concepts, Inc. v. United States, 119 Fed. Cl. 240, 245 (2014); CliniComp Int'l, Inc. v.

United States, 117 Fed. Cl. 722, 737–38 (2014)) (“The rule in Blue and Gold Fleet thus

bars a protester from raising objections to patent errors or ambiguities in the terms of a

solicitation after the closing of bidding if such errors or ambiguities were apparent on the

face of the solicitation,” and “[w]hen a solicitation contains a patent ambiguity, the offeror

has ‘“a duty to seek clarification from the government, and its failure to do so precludes

acceptance of its interpretation”’ in a subsequent court action.” (quoting Blue & Gold Fleet

L.P. v. United States, 492 F.3d at 1313 (quoting Stratos Mobile Networks USA, LLC v.

United States, 213 F.3d 1375, 1381 (Fed. Cir. 2000)))). The Federal Circuit in Blue & Gold

reasoned that such a waiver rule, “requir[ing] that a party object to solicitation terms during

the bidding process,” furthered the mandate in 28 U.S.C. § 1491(b) that, “‘the courts shall

give due regard to the interests of national defense and national security and the need

for expeditious resolution of the action.’” Blue & Gold Fleet, L.P. v. United States, 492

F.3d at 1313 (quoting 28 U.S.C. § 1491(b)(3)) (emphasis in original).

The Federal Circuit also explained in Blue & Gold:

“It would be inefficient and costly to authorize this remedy after offerors and

the agency had expended considerable time and effort submitting or

evaluating proposals in response to a defective solicitation. Vendors cannot

sit on their rights to challenge what they believe is an unfair solicitation, roll

the dice and see if they receive award [sic] and then, if unsuccessful, claim

the solicitation was infirm.”

Id. at 1314 (alteration in original) (quoting Argencord Mach. & Equip., Inc. v. United States,

68 Fed. Cl. 167, 175 n.14 (2005)); see also Bannum, Inc. v. United States, 115 Fed. Cl.

257, 274 (2014).

To the extent protestor argues that the Agency’s price evaluation was arbitrary and

capricious because it was based on “two different unknown and undisclosed quantities,”

protestor challenges the terms of the Solicitation. The Cost/Price Factor portion of the

Solicitation explicitly stated that the IKs and Spares portions of offerors proposals would

be determined, in part, by multiplying the proposed price for each IK and Spare provided

in the offerors’ Attachments J-3 templates by a “Government-possessed quantity” and

then summing the results. The Solicitation makes no mention as to the amounts of the

“Government-possessed quantit[ies]” the Agency would use in evaluating prices, and the

fact that the quantities were “Government-possessed” implies that they would not be

disclosed to offerors. Indeed, protestor somewhat surprisingly admits in its motion for

judgment on the administrative record that “the Agency was not required under the

19

solicitation to provide estimated quantities to offerors” and that “the solicitation advised

offerors that the quantities used in the Total Evaluated Price would not be disclosed.”

That the Agency ultimately re-evaluated the estimated quantities it would use during the

corrective action did not alter the government’s responsibilities under the Solicitation. The

re-evaluated estimated quantities the Agency used during the post-corrective action, price

evaluations were still “Government-possessed quantit[ies]” and the Agency was not

required to disclose them to offerors under the terms of the Solicitation, which was not

altered by the corrective action. It is undisputed that protestor did not challenge the terms

of the Cost/Price Factor portion of the Solicitation, or any other aspect of the Solicitation,

prior to the close of bidding, when offerors reconfirmed their bids, or at any time during

the corrective action period when the agency was re-evaluating the proposals it had

received prior to the award. Therefore, protestor’s argument that the Agency’s use of

“unknown and undisclosed quantities” to evaluate price was improper has been waived.

To the extent, however, protestor alleges that the price evaluation the Agency

undertook as part of the corrective action, and the re-evaluated estimated quantities that

the Agency used during that price evaluation, were unreasonable because they were

based on improper criteria, protestor’s allegations go beyond challenging the terms of the

Solicitation. Here, the Agency initially evaluated offerors’ prices by multiplying the

proposed price for each IK and Spare in the Attachment J-3 templates by 150. After the

initial price evaluation was included as one of the challenges before the GAO, the Agency

took corrective action to “[r]e-evaluate the quantities used in the calculation of the Total

Evaluated Price” and re-evaluate proposals based on the re-evaluated quantities.

Ultimately, the Agency decided to separate the different types of IKs and Spares into

three categories—1) Items Purchased Often; 2) Items Purchased Moderately; and 3)

Items Purchased Rarely—and assign a different estimated quantity to each category. In

the contemporaneous MFR, dated February 15, 2017, the Agency described in some

detail the process of how it determined into which category to place each IK and Spare.

The MFR summarized this process as follows:

[T]he Government: (1) carefully analyzed its current stock levels of IKs and

Spares; (2) evaluated its anticipated needs of IKs and Spares in the future;

(3) reviewed its historic purchasing patterns under the Previous IK Contract;

and (4) ensured that the IGCE did not exceed the set value of the future IK

contract. As a result, the estimated quantities and the projected

procurements of IKs and Spares are a reasonably accurate representation

of the Government’s anticipated needs.

Protestor does not allege that the Agency did not follow the process outlined in the

February 15, 2017 MFR. Instead, to the extent that any specific argument can be

discerned from protestor’s briefs, protestor appears to argue that the fact that the different

estimated quantities between the initial and corrective action evaluations resulted in

different TEPs for the offeror’s proposals shows that both were unreasonable, stating:

“The corrective action price evaluation was based on improper criteria as well as the initial

evaluation because they were both in opposition and conflict of the other, and as such

both are invalid to determine a proper pricing basis for award.” Simply because the re-

evaluated estimated quantities, and the resulting TEPs, arrived at by the Agency during

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the corrective action were “in opposition and conflict,” i.e., different, from those the

Agency arrived at during the initial price evaluation, however, does not imply that the re-

evaluated numbers were “invalid,” or otherwise improper. Indeed, such a rule could

render all corrective action which produced a different result from an agency’s initial

evaluation “invalid.” Protester, thus, has failed to meet its burden of demonstrating that

the Agency’s price evaluations during the corrective action were arbitrary and capricious.

Further, the contemporaneous February 15, 2017 MFR demonstrates that the

government’s decisions regarding the re-evaluated quantities to be used in the price

evaluation were based on a reasoned analysis of its historical practices and future needs,

and, thus, was well within the Agency’s discretion. Judgment on the administrative record

in favor of defendant and defendant-intervenor on the issues related to price evaluation

and the corrective action is, therefore, warranted.

II. Technical Evaluation of Ace

Protester next alleges that the award to Ace was improper because Ace’s proposal

did not meet three requirements contained in the Technical/Management Factor of the

Solicitation. First, protestor asserts that, although “[t]he awardee proposal states that Ace

and Unicor will be 100% responsible for the cable assemblies,” “[t]his cannot be

performed in the same Ace facilities.” (citation omitted). According to protestor this

violates paragraph 8 of the SOW, which states: “8. Place of Performance. Contractor shall

perform all activities at the Contractor’s facilities . . . .” (emphasis in original). Second,

protestor asserts that “[t]he award to Ace violates the Management Requirement because

Unicor does not allow direct program oversight as is required by the contract.” Although

protestor cites to the SOW for this assertion, it does not identify a specific provision that

it believes Ace’s proposal violated. Third, protester asserts, for the first time in its reply

brief, that

[T]he awardee cannot perform to the terms of the contract. It cannot keep

the schedules, or perform the task. The incumbent, DSR,[ 3] rejected ACE

as a subcontractor because they could not do the work, and based on their

qualifications they did not have the ability to perform.

Protestor provides no citation to the record or evidence to support any of these serious,

bald allegations against Ace.

With regard to protestor’s claim that Ace could not be “100% responsible” for cable

assemblies, defendant interprets protestor as alleging that Ace’s proposal was not

technically acceptable because it proposed to have subcontractors perform some

manufacturing activities. Defendant notes the use of subcontractors is consistent with

several provisions of the Solicitation, and that, to the extent SOW paragraph 8 conflicts

with these provisions, there is a patent ambiguity in the Solicitation that protestor failed to

protest in a timely manner. Defendant also argues that, in any case, protestor cannot

3 The contract presently at issue is a follow-on contract to a contract for the acquisition of

IKs and engineering services that was held by DRS Tactical Systems, Inc. (DRS). Thus,

protestor appears to be referring to DRS when it mistakenly refers to “DSR” in its briefs.

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establish prejudice for any alleged violation of SOW paragraph 8 because i3 also

proposed to manufacture some items under contract at subcontractor locations.

Defendant-intervenor adds that the citations to Ace’s proposal that protestor cites do not

support its claims as they have “nothing to do with the facilities where the work will take

place.” With regard to protestor’s claim that Ace violated the “Management Requirement,”

defendant-intervenor notes that protestor provides no citations to the record to indicate

the basis for this protest ground and also states that, “Ace proposed to have full

management responsibility for this contract and will not relinquish control to any of its

subcontractors.” With regard to protestor’s assertion that Ace “cannot perform to the

terms of the contract” based on its alleged past experience with the incumbent, defendant

and defendant-intervenor both note that protestor fails to cite any evidence in support of

its assertion and, thus, fails to meet its burden of proof. Defendant-intervenor also

requests that protestor’s allegations in its reply brief regarding Ace’s ability to perform the

contract be “stricken as impertinent and scandalous” under RCFC 5.4(a)(1) (2016).

Regarding protestor’s allegation that Ace’s proposal violates paragraph 8 of the

SOW, paragraph 8 requires that the “Contractor shall perform all activities at the

Contractor’s facilities with the exception of when travel is required to support the

requirements of the SOW.” Although it is less than clear what language in Ace’s proposal

protestor believes violates this provision, it may be the portion of the Ace’s executive

summary that states: “ACE intends to subcontract a portion of the cable assemblies to

our primary cable partner, Federal Prison Industries (Unicor). ACE and Unicor will be

responsible for 100% of the cable assemblies in order to meet the FAT [First Article

Testing] and production requirements.” Although the court doubts that it was the intent of

the SOW to prohibit all subcontracting of production work, which would be a drastic step,

a strict reading of paragraph 8, which covers “all activities” performed at the contractor’s

facilities, could be read as imposing such a prohibition. As defendant points out, however,

the language in the Technical/Management Factor of the Solicitation requiring offerors to

submit proof of “at a minimum, dual sources of supply for all types of

materials/components outlined in the Installation Kit Level II Drawing Package,” as well

as “copies of valid ISO 9001 or AS9100 Quality Management Certifications for all

Suppliers, Subcontractor, and Prime” would be in direct contradiction to such a reading.

(emphasis added; original emphasis omitted). Thus, at a minimum, there was, again, a

patent ambiguity between the language of SOW paragraph 8 and the

Technical/Management Factor of the Solicitation. Because protestor failed to object to

any such patent ambiguity in the Solicitation prior to the close of the bidding process, it

has waived its ability to do so now. See Blue & Gold Fleet, L.P. v. United States, 492 F.3d

at 1313 (“We also hold that a party who has the opportunity to object to the terms of a

government solicitation containing a patent error and fails to do so prior to the close of

the bidding process waives its ability to raise the same objection subsequently in a bid

protest action in the Court of Federal Claims.”).

The court turns next to protestor’s allegation that “[t]he award to Ace violates the

Management Requirement because Unicor does not allow direct program oversight as is

required by the contract.” Review of both the Solicitation and the SOW reveals nothing

labeled as a “Management Requirement” or requiring “direct program oversight.”

Additionally, although both defendant and defendant-intervenor identified this problem in

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their respective cross-motions for judgment on the administrative record, protestor failed

to clarify or even mention this issue in its reply brief. Further, even if “direct program

oversight” was a requirement of the Solicitation, protestor fails to provide or note in the

record any evidence that Unicor “does not allow” such oversight. Protestor’s bare

assertion, therefore, does not even come close to meeting its burden of demonstrating

that the Agency’s actions were arbitrary and capricious in this regard.

Finally, the court turns to protestor’s assertion that the alleged incumbent “rejected

ACE as a subcontractor because they could not do the work.” Again, protestor offers

nothing more than a bald assertion. Despite making this claim twice in its reply brief,

protestor offers no citation for its claim, nor is there any evidence in the record that the

incumbent or anyone else has ever “rejected” Ace for any reason. Absent such evidence,

there is nothing in the record that supports protestor’s assertion that Ace “cannot keep

the schedules, or perform the task.” Indeed, this language is utterly lacking in support and

irresponsible towards Ace. Counsel for the protestor should refrain from making

unsupported allegations which serve no purpose and waste everyone’s time. Needless

to say, protestor has failed to carry its burden with respect to this allegation.

III. Organizational Conflict of Interest

The court turns next to protester’s argument that the contracting officer failed to

properly identify an OCI held by Ace’s subcontractor Unicor. “Under FAR § 9.504(a), a

CO [Contracting Officer] must ‘[i]dentify and evaluate potential organizational conflicts of

interest as early in the acquisition process as possible’ and ‘[a]void, neutralize, or mitigate

significant potential conflicts before contract award.” Turner Constr. Co. v. United States,

645 F.3d at 1386 (quoting 48 C.F.R. § 9.504(a)) (emphasis and alterations in original).

“‘A significant potential conflict of interest is one which provides the bidding party a

substantial and unfair competitive advantage during the procurement process on

information or data not necessarily available to other bidders.’” Id. (quoting PAI Corp. v.

United States, 614 F.3d 1347, 1352 (Fed. Cir. 2010)). “However, the FAR recognizes that

the identification of OCIs and the evaluation of mitigation proposals are fact-specific

inquiries that require the exercise of considerable discretion.” Axiom Res. Mgmt., Inc. v.

United States, 564 F.3d at 1381–82 (citing 48 C.F.R. § 9.505). Therefore, “[t]he CO has

considerable discretion in determining whether a conflict is significant.” Turner Constr.

Co. v. United States, 645 F.3d at 1386 (quoting PAI Corp. v. United States, 614 F.3d at

1352). Further, the identification of an OCI “must be based on ‘hard facts; a mere

inference or suspicion of an actual or apparent conflict is not enough.’” Id. at 1387 (quoting

PAI Corp. v. United States, 614 F.3d at 1352).

Protestor’s counsel asserts, once again without elaboration, that an OCI existed in

the present case because “[a]s a federal government entity, UNICOR[ 4] could have

4 According to defendant, Unicor is a component of the Federal Bureau of Prisons, a

division of the United States Department of Justice, that operates manufacturing activities

in federal prisons. See generally Unicor, About Unicor,

https://www.unicor.gov/about.aspx; Unicor, Direction & Management of FPI FAQs

https://www.unicor.gov/FAQ_Direction.aspx.

23

potentially have had access to or been privy or inadvertently had information concerning

the solicitation that other offerors did not have.” (capitalization in original). “Unequal

access OCIs can occur when a company has access to nonpublic information in

performing a government contract that may give it a competitive advantage in a later

competition for a government contract.” Turner Constr. Co. v. United States, 645 F.3d at

1382. Protestor, however, fails to specify why Unicor would have had access to nonpublic

information that would have given it a competitive advantage, other than to assert, without

citation to the record or offering evidence, that Unicor is “a federal government entity.” 5

Moreover, by asserting only that Unicor “could have potentially have had access to or

been privy or inadvertently had information concerning the solicitation,” protestor fails to

even allege an actual OCI, and instead suggests only the possibility of one. (emphasis

added). Absent the presence of facts to support its allegations, the court cannot find that

the contracting officer failed to fulfil her duties to identify and avoid potential conflicts

under FAR § 9.504(a). See Turner Constr. Co. v. United States, 645 F.3d at 1387

(affirming United States Court of Federal Claims decision finding the GAO erred in finding

an unequal access OCI where “[t]he GAO cited to no facts supporting its conclusion” that

an offeror’s subcontractor “had access to any information of competitive worth”).

In its reply brief, protestor raises, for the first time, an additional argument in

support of its assertion that Ace’s relationship with Unicor raises an improper OCI.

According to protestor, Ace’s use of Unicor “led to unfair competitive advantage” because

It takes the opportunity out of a small business set aside for a small

business. It takes away the opportunity for a small business to give jobs to

many employees and from the community. Ace is relying on Unicor

extensively for a high volume of each order and this takes away growing a

small business and creating jobs.

Again, the court notes that protestor’s counsel has characteristically failed to provide any

citations to the record, statutes, regulations, or case law to support protestor’s assertions.

Regardless, it is obvious that the alleged effects of the award of the contract at issue on

small businesses and job creation are irrelevant to the issue of whether Ace or Unicor

had a competitive advantage over other offerors because of access to nonpublic

information. Protestor’s assertions in its reply brief, thus, do not come close to meeting

the level of evidence required to support the seriousness of an OCI allegation. Judgment

on the administrative record in favor of the defendant and defendant-intervenor on the

issue of an improper OCI, therefore, is granted.

IV. Directed Award

Protestor also argues, for the first time in its reply brief, that “[i]t appears from the

initial evaluation and subsequent corrective action evaluations that this was a directed

5Protestor does not offer any explanation as to why a component of the Federal Bureau

of Prisons would have had access to nonpublic information during the Solicitation

process, which was managed by DISA/DITCO, a component of the United States

Department of Defense.

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award to Ace.” Protestor’s allegation that the government “directed” award of the contract

to Ace suggests an allegation that the government was biased towards Ace, or that the

government acted in bad faith. See Labat-Anderson, Inc. v. United States, 42 Fed. Cl.

806, 833 (1999) (referring to allegations involving the “premature determination of the

awardee” as “the epitome of bad faith agency conduct”). In order to prove that a

government official’s actions were biased, a protestor must overcome the well-

established presumption that government officials act in good faith. See Croman Corp. v.

United States, 724 F.3d 1357, 1364 (Fed. Cir. 2013) (“The presumption that government

officials act in good faith is enshrined in our jurisprudence.”); see also Galen Med.

Assocs., Inc. v. United States, 369 F.3d at 1337. A protestor must offer “clear and

convincing evidence” that the government did not act in good faith in order to prevail. See

Croman Corp. v. United States, 724 F.3d at 1364; see also Am-Pro Protective Agency,

Inc. v. United States, 281 F.3d 1234, 1239 (Fed. Cir. 2002). The United States Court of

Appeals for the Federal Circuit has addressed the standard for overcoming the

presumption of good faith as follows:

Government officials are presumed to “act ‘conscientiously in the discharge

of their duties.’” Kalvar Corp., Inc. v. United States, 543 F.2d 1298, 1301

(Ct. Cl. 1976) (quoting Librach v. United States, 147 Ct. Cl. 605, 612

(1959)). Courts have always been “loath to find to the contrary,” and to

induce a court to abandon the presumption of good faith dealing, “requires

‘well-nigh irrefragable proof.’” Id. at 1301-02 (quoting Knotts v. United

States, 128 Ct. Cl. 489, 492, 121 F. Supp. 630 (1954)). Thus, [a protestor]

must offer clear and convincing evidence that [the government] did not act

in good faith in order to prevail on this issue. Am-Pro Protective Agency,

281 F.3d at 1239-40.

Croman Corp. v. United States, 724 F.3d at 1364; see also Savantage Fin. Servs. v.

United States, 595 F.3d 1282, 1288 (Fed. Cir. 2010); Am-Pro Protective Agency, Inc. v.

United States, 281 F.3d at 1239 (“The presumption that government officials act in good

faith is nothing new to our jurisprudence. See, e.g., Knotts v. United States, 128 Ct. Cl.

489, 492, 121 F. Supp. 630 (1954) (stating ‘we start out with the presumption that the

official acted in good faith’).”); Square One Armoring Serv., Inc., v. United States, 123

Fed. Cl. 309, 329 (2015) (holding that a plaintiff alleging that the government has acted

in bad faith must offer well-nigh irrefragable proof in support of its claim); Austin v. United

States, 118 Fed. Cl. 776, 790 (2014) (“To overcome this presumption, the plaintiffs must

produce ‘well-nigh irrefragable proof’ of bad faith on the part of the government.”); Kogan

v. United States, 112 Fed. Cl. 253, 266 (2013) (“The presumption of good faith ‘is valid

and binding unless well-nigh irrefragable proof is offered to rebut or overcome it.’

McEachern v. Office of Pers. Mgmt., 776 F.2d 1539, 1545 (Fed. Cir. 1985).”).

The presumption that government officials act in good faith, however, is rebuttable

and not automatically accepted by the court. The Federal Circuit in Am-Pro Protective

Agency defined the “clear and convincing” standard of proof a protestor must meet to

prevail as:

25

A requirement of proof by clear and convincing evidence imposes a heavier

burden upon a litigant than that imposed by requiring proof by preponderant

evidence but a somewhat lighter burden than that imposed by requiring

proof beyond a reasonable doubt. “Clear and convincing” evidence has

been described as evidence which produces in the mind of the trier of fact

an abiding conviction that the truth of a factual contention is “highly

probable.”

Am-Pro Protective Agency, Inc. v. United States, 281 F.3d at 1240 (quoting Price v.

Symsek, 988 F.2d 1187, 1191 (Fed. Cir. 1993)) (internal citations omitted in original and

emphasis in original).

Moreover, the Federal Circuit described the type of proof necessary to establish

that a government official acted in bad faith by “clear and convincing” evidence, as

equated with evidence of some specific intent to injure the plaintiff. Thus,

in Gadsden v. United States, [111 Ct. Cl. 487, 489-90 (1948),] the court

compared bad faith to actions which are “motivated alone by malice.” In

Knotts, the court found bad faith in a civilian pay suit only in view of a proven

“conspiracy . . . to get rid of plaintiff.” Similarly, the court in Struck Constr.

Co. v. United States, [96 Ct. Cl. 186, 222 (1942),] found bad faith when

confronted by a course of Governmental conduct which was “designedly

oppressive.” But in Librach, [v. United States, 147 Ct. Cl. 605 (1959),] the

court found no bad faith because the officials involved were not “actuated

by animus toward the plaintiff.”

***

Nothing in Brown’s affidavit [whereby Am-Pro attempted to show bad

faith], moreover, suggests that the government “had a specific intent to

injure” Am-Pro. Caldwell [& Santmyer, Inc. v. Glickman,] 55 F.3d [1578,]

1581 [(Fed. Cir. 1995)]. And Am-Pro has not alleged that these threats were

“motivated alone by malice,” Gadsden v. United States, 111 Ct. Cl. 487,

489, 78 F. Supp. 126 (1948); as part of a proven “conspiracy . . . to get rid

of [Am-Pro],” Knotts, 128 Ct. Cl. at 500, 121 F. Supp. 630; as part of a

course of governmental conduct which was “designedly oppressive,”

Struck, 96 Ct. Cl. at 222; or as “actuated by animus toward” Am-Pro,

Librach, 147 Ct. Cl. at 614.

Am-Pro Protective Agency, Inc. v. United States, 281 F.3d at 1240, 1241 (quoting in part

Kalvar Corp. v. United States, 211 Ct. Cl. 192, 543 F.2d 1298, 1302 (1976), cert. denied,

434 U.S. 830 (1977)) (citations omitted in original); see also Galen Med. Assocs., Inc. v.

United States, 369 F.3d at 1330 (“‘[A]llegations of bad faith . . . ha[ve] been equated with

evidence of some specific intent to injure the plaintiff.’” (quoting Torncello v. United States,

231 Ct. Cl. 20, 45, 681 F.2d 756, 770 (1982))); Dekatron Corp. v. United States, 128 Fed.

Cl. 115, 118 (2016) (“Bad faith has been found when a contracting officer representative

acts with specific intent to injure or the contracting officer fails to exercise independent

26

judgment or remedy the contracting officer representative’s animus. . . .”); Madison Servs.

Inc. v. United States, 94 Fed. Cl. 501, 507 (2010) (“Because plaintiff submits as evidence

unsubstantiated innuendo and uncorroborated inferences, evidence that categorically

cannot meet a ‘clear and convincing’ standard, the court must deny plaintiff’s requests for

relief.”) (citations omitted); id. at 511 & 511 n.8 (adding unreliable hearsay and attorney

arguments to the list of what will not meet the standard for demonstrating bad faith); L-3

Commc’ns Integrated Sys., L.P. v. United States, 91 Fed. Cl. 347, 354 (2010) (innuendo

or suspicion is not enough to demonstrate bad faith); N. Star Alaska Hous. Corp. v. United

States, 76 Fed. Cl. 158, 187-88 (“Courts have found bad faith when confronted by a

course of government conduct that was ‘designedly oppressive,’ Struck Constr. Co. v.

United States, 96 Ct. Cl. 186, 222, 1942 WL 4411 (1942), or that ‘initiated a conspiracy’

to ‘get rid’ of a contractor, Knotts v. United States, 128 Ct. Cl. 489, 121 F. Supp. 630, 636

(1954).”), appeal dismissed, 226 F. App’x 1004 (Fed. Cir. 2007).

In support of its allegation that the Agency engaged in a “directed award,” protestor

asserts that “[t]he Agency’s pricing evaluations contrasted with each other. And, the

technical evaluations overlooked the technical ability factors and the ability to perform in

their quest for a directed award.” In support of its assertion that the government

“overlooked” Ace’s “ability to perform,” protestor asserts that “neither Ace or their

subcontractors, including Unicor, would be able to produce” “Stryker Cables” because

“[t]he Stryker Cables requires [sic] unique processes of chemical cure that doesn’t exist

within Ace or its subcontractors.” Protestor provides no citations to anything in the record

and offers no evidence that explains what “unique process” is needed to produce a

“Stryker cable,” or that demonstrates that Ace or Unicor lack the capabilities to produce

them. Moreover, protestor’s reply brief is protestor’s first mention of “Stryker cables” and

the quote is the only description of “Stryker cables” in its filings. Protestor’s bald

allegations regarding “Stryker cables” do not amount to cognizable evidence because

they are unsupported by anything in the administrative record. See CWT/Alexander

Travel Ltd. v. United States, 78 Fed. Cl. 486, 495 n.9 (2007) (“[T]he plaintiffs provide no

evidentiary support for these assertions, and assertions alone do not constitute

evidence.”).

Moreover, protestor offers no evidence that the Agency acted in bad faith. That the

initial price evaluation and the corrective action price evaluation “contrasted with each

other” is unsurprising given that the Agency’s stated purpose in undertaking the corrective

action was to re-evaluate the estimated quantities it would use in order to re-evaluate the

TEPs of the offerors. Further, the ultimate awardee, Ace, actually was hurt by the

corrective action, going from having the lowest TEP to the second lowest TEP.

Additionally, the evidence does not demonstrate that the government “overlooked the

technical ability factors” of the offerees. Instead, the record establishes that, after

undertaking corrective action, the SSEB performed an evaluation as to whether the lowest

priced offeror, Tabet, met the requirements for the Solicitations Technical/Management

Factor, and, then, after determining that Tabet’s proposal did not, performed a similar

analysis on Ace’s proposal. Thus, the government evaluated the proposals according to

the Lowest Price Technically Acceptable evaluation process called for by the Solicitation.

Protestor fails to identify any reasons why the corrective action technical evaluations

performed by the SSEB were flawed, let alone the sort of clear and convincing evidence

27

necessary to demonstrate bad faith, and none is apparent to the court upon review of the

record. Protestor’s bald allegation that the Agency engaged in a “directed award” is totally

unsupported by evidence, and is insufficient to overcome the presumption that the

Agency acted in good faith in awarding the contract to Ace. See Info. Tech. & Applications

Corp. v. United States, 316 F.3d 1312, 1323 n.2 (Fed. Cir.) (“ITAC [Information

Technology & Applications Corp.] has pointed to no record evidence of bias. Instead it

has merely reiterated its contentions that the Air Force erred in evaluating the proposals.

This is not evidence of bias, and it is insufficient to overcome the presumption that the

contracting officer acted in good faith.” (citing Spezzaferro v. Fed. Aviation Admin., 807

F.2d 169, 173 (Fed. Cir. 1986))), reh’g and reh’g en banc denied (Fed. Cir. 2003).

CONCLUSION

For the reasons described above, protestor’s motion for judgment on the

administrative record is DENIED, defendant’s motion for judgment on the administrative

record is GRANTED, and defendant-intervenor’s motion for judgment on the

administrative record is GRANTED. Protestor’s complaint is DISMISSED. The Clerk of

the Court shall enter JUDGMENT consistent with this opinion.

IT IS SO ORDERED.

s/Marian Blank Horn

MARIAN BLANK HORN

Judge

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