Price Gordon Services v. United States

In the United States Court of Federal Claims

No. 18-695C

(Filed Under Seal: July 20, 2018)

(Reissued for Publication: August 13, 2018)*

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

PRICE GORDON SERVICES, d/b/a *

Postaward Bid Protest; Motion for

VETERAN NATIONAL *

Discovery; Cross-Motions for Judgment on

TRANSPORTATION, LLC, *

the Administrative Record; Effective

*

Judicial Review; Mandatory Wage

Plaintiff, *

Withholding; Termination for Cause; Bias;

*

Bad Faith; Improper Evaluations; Unstated

v. *

Evaluation Criteria; Failure to Follow

*

Solicitation Instructions; Past Performance

THE UNITED STATES, *

History; Price Realism; Price

*

Reasonableness

Defendant. *

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

Joseph A. Whitcomb, Denver, CO, for plaintiff.

Nathanael B. Yale, United States Department of Justice, Washington, DC, for defendant.

OPINION AND ORDER

SWEENEY, Chief Judge

In this postaward bid protest, plaintiff Price Gordon Services (d/b/a Veteran National

Transportation, LLC) alleges that the United States Department of Veterans Affairs (“VA”)

acted in bad faith and demonstrated bias in improperly evaluating its technical capabilities and

past performance in connection with a solicitation for certain transportation services. Before the

court are plaintiff’s motion for discovery and the parties’ cross-motions for judgment on the

administrative record pursuant to Rule 52.1 of the Rules of the United States Court of Federal

Claims (“RCFC”). For the reasons explained below, the court denies plaintiff’s motion for

discovery, denies plaintiff’s motion for judgment on the administrative record, and grants

defendant’s cross-motion for judgment on the administrative record.

*

The court issued this Opinion and Order under seal on July 20, 2018, and directed the

parties to submit proposed redactions. This reissued Opinion and Order incorporates the

redactions proposed by the parties, with some nonsubstantive typographical changes. All

redactions are indicated by a bracketed ellipsis (“[. . .]”).

I. BACKGROUND

In Southern Arizona, the VA utilizes contractors to provide veterans with transportation

to and from medical appointments.1 AR 63. From May 2015 through approximately May 2017,

plaintiff provided these services under Contract VA258-15-D-0037 (the “prior contract”). Id. at

624. Following termination of the prior contract, see id. at 41-42, four contractors began

providing the transportation services under blanket purchase agreements, id. at 164, 176.

On August 3, 2017, the VA issued Solicitation VA258-17-R-0070 to obtain

transportation services for a base year and four option years from October 1, 2017, through

September 30, 2022. Id. at 78, 83-88. Proposals were due on August 30, 2017. Id. at 78. The

contract was awarded to Owl, Inc. (“Owl”) on October 26, 2017, with a November 1, 2017

effective date. Id. at 909. Plaintiff lodged a size and status protest on October 30, 2017, id. at

968, and obtained a stay of performance of the awarded contract, id. at 1112. Plaintiff then

protested the award at the United States Government Accountability Office (“GAO”) on

November 13, 2017. Id. at 1457. Two weeks later, on November 27, 2017, the VA issued a

notice of corrective action, indicating that it would cancel the award to Owl and reevaluate

proposals. Id. at 1604. The GAO then dismissed plaintiff’s protest as academic on December 4,

2017. Id. at 1612. Following the reevaluation of proposals, the VA awarded Contract

36C25818D0031 (the “new contract”) to Owl on January 6, 2018. Id. at 1860. Plaintiff

protested the award at the GAO on January 12, 2018. Id. at 1958. That protest was denied on

April 16, 2018. Id. at 2863. This action followed.

A. The Prior Contract

1. Performance

Consistent with the small business set-aside nature of the prior contract, id. at 21, plaintiff

is a service-disabled, veteran-owned small business, id. at 584. Plaintiff, then known as LMC

Medical Transportation, began performance of the prior contract in May 2015. Id. at 624. The

purpose of the contract was to provide “pre-arranged, non-emergency, lie-down, wheelchair[,]

and ambulatory transportation services” to VA beneficiaries on an as-needed basis twenty-four

hours per day, 365 days per year. Id. at 21. With respect to unscheduled trips, the contract

required plaintiff to provide transportation within forty-five minutes of notification, including

furnishing alternative transportation if necessary. Id. at 2940. If plaintiff was unable to do so,

the VA could obtain alternative transportation and bill plaintiff for any costs in excess of the

contract rate. Id. Otherwise, if the VA agreed to accept a late pickup, plaintiff would only

receive 75% of the contract price for that particular trip. Id. Plaintiff was required to provide

transportation for unscheduled trips no later than one hour after notification 100% of the time to

receive a favorable past performance rating. Id.

1

The facts in this section are derived from the administrative record (“AR”), relevant

statutes and regulations, publicly available court filings, and matters of which the court may take

judicial notice pursuant to Rule 201 of the Federal Rules of Evidence.

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On March 28, 2016, contracting specialist Eric Auffhammer contacted Tracy Beasley,

then plaintiff’s president, regarding exercising the first option year of the prior contract. Id. at

2937, 2940. Mr. Auffhammer emphasized that “[t]he timely pickup of veterans is one of the

most important parts of [the] contract,” and expressed concern that plaintiff “ha[d] been picking

up and dropping off patients late on a regular basis,” including “as many as 5-10 late pickups a

day exceeding an hour.” Id. at 2940; see, e.g., id. at 2932 (listing six late pickups on March 24,

2016). Mr. Auffhammer reminded Mr. Beasley of the contractual requirements regarding late

pickups, requested a corrective action plan addressing pickup and delivery, and asked for a

face-to-face meeting to share concerns and “start taking the necessary steps to address these

contractual issues.” Id. Plaintiff provided a two-page quality control plan the following day. Id.

at 2942-43. On the evening of April 19, 2016, plaintiff’s program manager resigned. Id. at

2937. The next day, Mr. Beasley designated one of plaintiff’s employees as an interim point of

contact with the VA until a permanent replacement for plaintiff’s program manager could be

named. Id. The VA expressed concerns regarding the new point of contact, who was a

dispatcher for plaintiff. Id. at 2936-37. The confusion resulting from the turnover resulted in a

late pickup and a cancelled appointment. Id. at 2935-36. Mr. Beasley informed the VA that

plaintiff was in the process of hiring additional staff to prevent additional late pickups. Id. at

2933.

On May 5, 2016, Mr. Auffhammer uploaded an evaluation of plaintiff’s performance

during the first year of the prior contract to the Contractor Performance Assessment Report

System (“CPARS”). See generally id. at 1814-15. Mr. Auffhammer rated each element of

plaintiff’s performance as “Satisfactory” from among the available options—Exceptional, Very

Good, Satisfactory, Marginal, and Unsatisfactory. Id. In other words, plaintiff’s performance

“[met] contractual requirements [with] some minor problems for which corrective actions taken

by [plaintiff] appear[ed] or were satisfactory.” Id. at 1814. Mr. Auffhammer concluded that, as

of the evaluation date (i.e., May 5, 2016), he would recommend plaintiff for similar future

contracts. Id. at 1815.

On May 27, 2016, contracting officer Daniel Thiel issued a letter of concern to plaintiff

in which he emphasized:

Since the end of March there has been a steady stream of

complaints concerning late transportation culminating in yesterday

the [VA] having to obtain 12 alternative modes of transportation as

patients were left without transportation to their homes for in some

cases up to 5 hours [and] four additional transports occurring as of

this letter.

Id. at 2945. Mr. Thiel stressed that the VA was concerned regarding plaintiff’s ability “to fulfill

its contractual requirements moving forward,” and requested a corrective action plan. Id. Mr.

Thiel noted that, because over 30% of plaintiff’s fleet was inoperable, the corrective action plan

should address the health of plaintiff’s operating fleet. Id.

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Nicholas Price, plaintiff’s owner, responded to Mr. Thiel on June 2, 2016.2 Id. at 2949.

Mr. Price averred that he had been unaware of the problems due to a breakdown in

communication, reported that a Texas state court had recently given full control of plaintiff to

Mr. Price and “barred [Mr. Beasley] from interfering in any way with [plaintiff’s] business

matters,”3 assured Mr. Thiel that he (i.e., Mr. Price) had been “working diligently” since the

Texas state court order to get plaintiff “back on track,” and promised to “increase the number of

site visits in order to thoroughly evaluate the management and immediately make any other

necessary changes.” Id.

Mr. Thiel responded the following day to indicate that Mr. Price’s corrective action plan

was incomplete and nonspecific. Id. at 2947. Mr. Thiel suggested that Mr. Price may not have

understood “the seriousness of the situation,” which was the VA’s fundamental “concern with

[plaintiff’s] ability to meet the contract’s requirements” as a result of the VA “having to

intervene on multiple occasions.” Id.

One of plaintiff’s outside counsel provided a detailed plan in response to Mr. Thiel’s June

3, 2016 letter. See generally id. at 2950-51. As part of that plan, plaintiff’s counsel noted the

following statistics:

 plaintiff performed 3,470 pickups in May 2016, including 62

late or failed pickups, for an on-time rate of 98.2%;4

 from the beginning of 2016 through early June,5 plaintiff had

averaged 3,914 pickups per month; and

2

The letter is incorrectly dated May 2, 2016. Compare AR 2949 (response letter), with

id. at 2947 (transmittal of the response letter).

3

The docket sheet for LMC Medical Transportation, LLC v. Tracy Beasley, No.

16-DCV-232419 (268th Dist. Ct. Fort Bend County, Tex. filed May 16, 2016), reflects a May 31,

2016 hearing on an application by Mr. Price for a temporary restraining order. According to

plaintiff’s counsel, Mr. Beasley forged Mr. Price’s name on a Texas Secretary of State filing,

used the forged filing to open a checking account, accessed SAM.gov and diverted all of the

company’s money to that checking account, and then moved those funds to his private checking

account. AR 2950. Plaintiff’s counsel reports that on May 31, 2016, a Fort Bend County, Texas

judge “restor[ed] control of the company and its resources to the proper [service disabled

veteran] owner,” Mr. Price. Id.

4

Plaintiff’s counsel incorrectly reported the deficiency rate as 1.7%, AR 2950, rather

than 1.8%. The difference is immaterial for purposes of resolving the instant motions.

5

Plaintiff’s counsel’s response is undated. See AR 2950-51. However, the response

refers to June 2, 2016, as a past date and June 13, 2016, as a future date, id. at 2950, and

therefore is presumed to have been written between those two dates.

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 plaintiff averaged 130 pickups per day,6 compared to 60 per

day as referenced by Mr. Thiel.

Id. at 2950.

On September 13, 2016, one of plaintiff’s drivers was struck from behind by another

vehicle while transporting a patient. Id. at 2962. The patient did not report any injuries at the

time, id. at 2959, 2962, but contacted the VA two days later for assistance with accident-related

injuries, id. at 2960. Plaintiff failed to notify the VA of the accident prior to the patient’s

request, in contravention of the contractual requirement to submit all such reports within

twenty-four hours. Id. at 2959-60. Plaintiff forwarded its internal report to the VA on

September 16, 2016, and was asked to remind its staff that any incidents while transporting

patients needed to be reported to the VA within twenty-four hours in accordance with the

contract. Id. at 2956-60.

On October 24, 2016, a patient was injured while being transported to an appointment.

Id. at 2977. The contracting officer’s representative then performed a file audit and discovered

that the training records for several of the drivers were insufficient and not in accordance with

plaintiff’s contract proposal. Id. at 2977-78. On November 14, 2016, the VA requested a

corrective action plan regarding driver training. Id. at 2978. Mr. Price timely submitted a

corrective action plan on November 28, 2016. Id. at 2952-53. On December 6, 2016,

contracting officer Nathan McCoy recognized that plaintiff’s response was “timely and

contained proposed measures to emphasize and improve safety,” but advised plaintiff that the

measures required more “urgency . . . to immediately mitigate/eliminate the risk of any

additional harm to our patients.” Id. at 2954. Mr. McCoy imposed specific deadlines with

respect to driver training, driver certification, and updating plaintiff’s employee handbook, and

requested a “monthly review of Driver/Attendant qualifications” moving forward. Id. He

cautioned that “[p]oor performance within [plaintiff’s] control and purview may result in a cost

decrement, less than favorable past performance ratings, [a] combination of both, [or] other

corrective actions.” Id.

2. Subcontractor Payment Disputes

Plaintiff engaged Arizona Medical Transport, LLC (d/b/a Arizona Medical Transit, LLC)

(“Arizona Medical Transit”) as a subcontractor on the prior contract from its inception on May 1,

2015, through September 10, 2015. Pet. ¶ 5.5, Price Gordon Servs., LLC v. Ariz. Med. Transp.,

LLC (“Ariz. Med. Transit”), No. 16-DCV-234549 (240th Dist. Ct. Fort Bend County, Tex. Aug.

12, 2016). During the performance of the subcontract, a payment dispute arose between plaintiff

and Arizona Medical Transit. Id. The dispute culminated in plaintiff filing suit against Arizona

Medical Transit on August 12, 2016, seeking a declaratory judgment that it was not obligated to

6

Plaintiff’s counsel incorrectly reported the average number of daily pickups as 150, AR

2950, rather than 130. The difference is immaterial for purposes of resolving the instant

motions.

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pay certain invoices issued by Arizona Medical Transit. Id. ¶ 6.2. The suit was dismissed with

prejudice on October 18, 2016. Ariz. Med. Transit, No. 16-DCV-234549 (240th Dist. Ct. Fort

Bend County, Tex. Oct. 18, 2016) (order dismissing case).

Approximately one year prior to the lawsuit, on August 27 or 28, 2015, representatives

from Arizona Medical Transit; Gentle Care Transport, Inc. (“Gentle Care”), another of plaintiff’s

subcontractors at the time; and a third contractor (whose role is unclear) met with Mr. Thiel and

other Southern Arizona VA officials, including the Associate Director, “to discuss [their]

concerns regarding [plaintiff].” AR 2986-88. On August 31, 2015, Mr. Thiel issued a letter of

concern to plaintiff regarding allegations from Arizona Medical Transit and Gentle Care that

plaintiff had unpaid invoices totaling approximately $170,000. Id. at 2991. In response the next

day, Mr. Beasley (who was still in control of plaintiff at the time) asserted that plaintiff’s

subcontractors “ha[d] been consistently paid” and that the outstanding invoices were due to a

“lack of personnel it requires to process billing information and communication.” Id. at 2993.

He averred that the concerns with Gentle Care would be quickly resolved with additional staff,

faster processing, and increased communication. Id. at 2994. Mr. Beasley also averred that

Arizona Medical Transit’s grievance stemmed from being unhappy with its trip volume, and that

plaintiff planned to pay the amounts owed and sever ties with Arizona Medical Transit. Id. at

2995. Mr. Thiel replied that because the VA did not have privity of contract with either Arizona

Medical Transit or Gentle Care, his primary concern was continuity of operations should either

subcontractor cease performance. Id. at 2993.

Shortly thereafter, on September 11, 2015, Ana “Bertie” Lozano, Arizona Medical

Transit’s chief executive officer, lodged a complaint through the VA Inspector General Hotline

regarding approximately $71,000 in alleged unpaid invoices.7 Id. at 2983-87. Ms. Lozano

followed up with the Associate Director and Mr. Thiel on October 1 and 26, 2015, and met with

both of them on November 3, 2015. Id. at 2989. At that meeting, she was “informed that the

[VA] has no privity of contract with [Arizona Medical Transit]” and that Arizona Medical

Transit needed to “work with [plaintiff] through the terms of their contract or through legal

measures” to resolve the dispute. Id. In the meantime, on October 8, 2015, Ms. Lozano sought

assistance from United States Senator John McCain, who forwarded her concerns to the Director

of the Southern Arizona VA on October 29, 2015. Id. at 2979-82. After reviewing the matter

with the Southern Arizona VA’s contracting authority, the Director responded to Senator

McCain’s office on January 20, 2016, and highlighted the fact that Ms. Lozano’s dispute with

plaintiff was “outside the [VA’s] purview” because it was “a contractual issue” between the two

private parties and should be resolved accordingly. Id. at 2988-90.

On April 28, 2016, Gentle Care requested a meeting with Mr. Thiel regarding its

difficulties in securing payment, and asked if the VA could simply pay Gentle Care’s invoices

7

The record does not reflect the results of Ms. Lozano’s complaint against plaintiff.

However, the Southern Arizona VA asserted that, despite not having “received any inquiries

from the [VA Inspector General] regarding” Ms. Lozano’s complaint, it had nevertheless

internally addressed the issues raised therein. AR 2988.

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directly and reduce payments to plaintiff accordingly. Id. at 2998. In response, Mr. Thiel

emphasized that the VA could not get involved in the dispute because the VA was not a party to

the contract between Gentle Care and plaintiff. Id. Approximately one month later, on May 31,

2016, another subcontractor, A-Vet Transportation, warned Mr. Thiel that it had not been paid by

plaintiff at all since April 22, 2016, having only been partially paid since March 2016, and noted

it would be retaining legal counsel as its “only avenue in getting paid for services rendered.” Id.

at 2999.

3. Wage Payment Dispute

In September 2016, the United States Department of Labor (“DOL”) notified plaintiff

that it was investigating plaintiff’s compliance with the McNamara-O’Hara Service Contract Act

of 1965 (“SCA”), 41 U.S.C. §§ 6701-6707 (2012). AR 46. As relevant here, the SCA requires

contractors to pay prevailing wage rates and fringe benefits as determined by the DOL (“SCA

wages”) “to an employee engaged in performing work on the contract.” 41 U.S.C. § 6704(a);

accord AR 46.

To comply with the SCA, plaintiff had “segregated hours worked for the VA from hours

it was not working for the VA, i.e.[,] when drivers and attendants were not performing a Unit of

service the VA contracted to pay for.” AR 46. However, according to plaintiff, the DOL

“asserted that segregating hours as VA hours and non-hours was impermissible.” Id. In other

words, plaintiff’s understanding of the DOL’s position was that plaintiff “must pay Federal

prevailing wages even when [plaintiff’s] employees are not providing a per Unit service to the

VA.” Id. On April 17, 2017, the DOL directed the VA to withhold contract funds from plaintiff

until the the difference between SCA wages and non-SCA wages as alleged by the DOL—

$459,451.09—had been paid. Id. The VA notified plaintiff of the mandatory withholding on

April 21, 2017. Id. Plaintiff then filed suit in this court on April 28, 2017, seeking an injunction

preventing the VA from withholding contract funds as directed by the DOL. Compl. Request for

Relief, Veteran Nat’l Transp., Inc. v. United States, No. 17-579C (Fed. Cl. Apr. 28, 2017).

On June 6, 2017, the DOL (through its Wage and Hour Division Administrator) filed an

amended complaint with its Office of Administrative Law Judges.8 See generally AR 2269-75.

The DOL alleged that $459,451.09 in back wages owed to plaintiff’s employees for the period

from August 15, 2015, through October 8, 2016, had been withheld from VA contract funds

owed to plaintiff and that an unspecified amount of additional back wages since October 8, 2016,

was also due. Id. at 2274. The DOL also alleged that plaintiff, Mr. Price, and Mr. Beasley were

subject to debarment as a result of their SCA violations. Id. at 2270, 2274-75. On June 23,

2017, plaintiff moved to dismiss its April 28, 2017 suit in this court, and the motion was granted.

Veteran Nat’l, No. 17-579C (Fed. Cl. June 23, 2017) (order dismissing case). According to

plaintiff’s counsel, the DOL administrative proceedings have not concluded. See Pl.’s Mot. J.

Administrative R. (“Pl.’s MJAR”) 8 (stating that posthearing briefs were due on July 11, 2018).

8

The original complaint was filed on June 2, 2017. AR 2275, 2282.

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4. Termination

In the meantime, the VA’s withholding of contract funds pursuant to the DOL directive

strained plaintiff’s operations. As a result, plaintiff was unable to pay its employees after April

28, 2017. AR 45. By May 19, 2017, plaintiff’s drivers began not performing transportation

services, prompting contracting specialist Nick Lebano to issue a Cure Notice to plaintiff. Id. at

43-44. In the Cure Notice, Mr. Lebano noted that plaintiff’s nonperformance caused

“cancellation of numerous patient appointments” and that the situation “appear[ed] to be directly

related” to the DOL investigation regarding SCA wages. Id. at 43. Mr. Lebano stated that the

failure to perform transportation services was unacceptable and provided ten days for plaintiff to

resume performance to avoid a default termination. Id.

Plaintiff’s counsel responded to the Cure Notice on May 30, 2017. See generally id. at

45-47. Plaintiff’s counsel agreed that the VA’s withholding of contract funds caused plaintiff’s

nonperformance, and averred that plaintiff was not liable for default because the VA had

unilaterally decided not to pay plaintiff’s outstanding invoices. Id. at 45. Plaintiff’s counsel

remarked that plaintiff paid its employees SCA wages when working “VA hours,” and stated that

plaintiff would not provide further transportation services until its outstanding invoices were

paid. Id. at 46.

Mr. Thiel issued a Show Cause Notice to plaintiff on June 1, 2017, emphasizing that it

had become “necessary to determine whether [plaintiff’s] failure to perform [the prior contract]

arose from causes beyond [plaintiff’s] control and without fault or negligence on [plaintiff’s]

part.” Id. at 48. He gave plaintiff the opportunity to “present, in writing, any facts bearing on

this question.” Id. Mr. Price timely submitted a response on June 7, 2017, and restated the same

facts identified in plaintiff’s counsel’s May 30, 2017 response to the Cure Notice—that the VA’s

withholding of funds caused plaintiff’s nonperformance, that plaintiff’s drivers had not been paid

since April 28, 2017, that plaintiff would not be liable for default because its nonperformance

was caused by the VA acting in its contractual capacity, and that the DOL’s administrative

complaint regarding SCA wages was meritless because plaintiff had “segregated hours worked

for the VA from hours it was not working for the VA.” Id. at 49-50.

On June 15, 2017, Mr. Thiel issued a contract modification “to formally terminate for

cause” the prior contract. Id. at 41. He referenced the VA’s Cure Notice, the VA’s Show Cause

Notice, and plaintiff’s responses to each, and explained that the contract was terminated for

cause because plaintiff was “unable to provide the required services and comply with the

contract terms and conditions.” Id. at 42. Finally, Mr. Thiel notified plaintiff that it had the right

to appeal the termination decision pursuant to Federal Acquisition Regulation (“FAR”) 33.211.

Id. Plaintiff did not do so.

Following the default termination, four contractors—including Arizona Medical Transit

and Power Arizona LLC—began providing transportation services under blanket purchase

agreements (the “bridge contracts”). Id. at 164.

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B. Solicitation of the New Contract

On August 3, 2017, the VA issued Solicitation VA258-17-R-0070 to procure

transportation services for the Southern Arizona VA Health Care System in accordance with the

Performance Work Statement (“PWS”) attached to the solicitation. Id. at 78. The solicitation

was designed as a firm-fixed-price, indefinite-quantity, 100% set-aside for service-disabled,

veteran-owned small business concerns. Id. at 78, 96, 126. As with the prior contract, the

“primary objective” for the new contract is to “transport veterans to and from VA medical

appointments.” Id. at 107. Specifically, the awardee would “provide safe and comfortable

door-to-door ambulatory, wheelchair, and stretcher transportation services to eligible

beneficiaries.” Id.

1. Contract Requirements

Pursuant to the solicitation, patient data would be provided by 4:30 p.m. for next-day

transportation; in addition, the awardee would be responsible for managing unscheduled

transportation requests. Id. at 111. The awardee would be “responsible for all supplies,

equipment, facilities, personnel, supervision, and service required to perform work” under the

contract, including vehicles meeting certain operating and safety standards. Id. at 112. Section

V.1.c of the PWS, Response Times, provided as follows:

 pickups must be completed (i.e., “on the road”) within 30

minutes of the scheduled pickup time for noncritical, scheduled

patients;

 pickups must be completed within 20 minutes of the scheduled

pickup time for dialysis, hematology/oncology, radiation, and

oxygen patients;

 if the contractor is unable to complete a pickup within 60

minutes of the scheduled time, it must furnish “alternate

transportation to meet the 60 minute timeframe”; and

 if the contractor is unable to find alternate transportation, the

VA could obtain transportation from another source and charge

any excess cost beyond the contract price to the awardee.

Id. at 113-14. Untimely pickups would result in reductions in the trip price paid by the VA. Id.

at 117. To receive favorable performance evaluations, the awardee would be required to meet

the following standards, among others:

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 95% of pickups completed timely;

 100% of vehicles properly maintained and certified annually by

Arizona Weights and Means; and

 100% of drivers and attendants “properly licensed, trained[,]

and competent to provide the services in the contract.”

Id. at 117-18.

2. Proposal Submission Requirements

Offerors were instructed to submit their proposals in three files, one for each volume:

(1) General Information and Price/Cost Schedule, (2) Technical Capability, and (3) Past

Performance. Id. at 124-25. Offerors were further instructed that “[a]ll information . . . shall be

confined to the appropriate proposal volume in order to facilitate independent evaluation.” Id. at

123.

For the Price volume, offerors were required to complete a Price/Cost Schedule. Id. at

124. A list of DOL-determined SCA wages for Pima County, Arizona and related information

was contained within the solicitation to assist offerors in completing the Price/Cost Schedule.

See generally id. at 149-59.

With respect to the Technical Capability volume, offerors were instructed to

provide a narrative addressing [the offeror’s] relevant technical

capabilities and methodology for completing the requirements of

this procurement in accordance with the [PWS] and as described in

the Evaluation Criteria. Review and rating of the Technical

Capability Package will focus on how the contractor addresses

items such as the following:

Technical Solution—The offeror[’]s technical solution is

described in sufficient detail to evaluate compliance with the

requirements in the solicitation and should address, at a

minimum, the following:

 Description (detailed work plan) of the offeror’s technical

solution as it relates to addressing all activities, personnel

resources, equipment to accomplish contract requirements,

and a proposed schedule for beginning performance upon

contract award. . . . The work plan should illustrate how

the offeror will conform to these requirements.

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....

 Description of the type(s) of equipment to be employed,

number to be used, how to be utilized, owned or leased,

serviceability (condition), Americans With Disabilities Act

(ADA) compliance, etc.

Supporting Documentation—The offerors are to provide

documentation in support of the following:

....

 Copy of insurance certificates and permits as required by

state law to operate and own a non-emergency medical

transportation service.

....

 Detailed quality control plan . . . .

 Identification of any inspections performed on transport

vehicles to . . . verify the reliability and safety of vehicles

used to transport patients. Additionally, all vehicles must

have functional Heating, Ventilation, and Air Conditioning

(HVAC).

Id. at 124-25.

With respect to the Past Performance volume, offerors were instructed to

provide evidence of satisfactory past performance within the last

five (5) years . . . for a minimum of three (3) but no more than six

(6) Government and/or Commercial contracts (prime or major

subcontractor) of a similar scope to that described by the PWS

associated with this solicitation. This information will be

evaluated for relevance to this procurement in relation to the

offeror[’]s technical capability.

Id. at 125. Further, offerors were advised that that review and rating of past performance could

include other considerations:

The [VA] may also consider other relevant information when

evaluating an offeror’s past/present performance. . . . The [VA]

may also review past performance history obtained from other

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federal agency web sites, i.e., [CPARS], Past Performance

Information Retrieval System (PPIRS), etc.

Id.

Finally, offerors were advised that the VA “intend[ed] to award a contract based on the

initial offers, without discussions,” pursuant to FAR 52.215-1. Id. at 130; accord id. at 33.

3. Evaluation Criteria

Pursuant to FAR 52.212-2, the contract would be awarded using a best-value trade-off

approach

to the responsible offeror whose offer conforms to the solicitation

by evaluating the following factors:

 Technical Capability

 Past Performance

 Price

Technical Capability is more important than Past

Performance and Price. Past Performance is more important than

Price. Technical and Past Performance, when combined, are

significantly more important than Price, however Price is still an

important factor and can be the determining factor in making the

award.

Id. at 126.

The evaluation criteria for the Technical Capability factor mirrored the requirements for

the Technical Capability volume of the proposals. Compare id. at 127-28 (evaluation criteria),

with id. at 124-25 (proposal requirements). The evaluation criteria for the Past Performance

factor similarly mirrored the requirements for the Past Performance volume of the proposals,

compare id. at 128 (evaluation criteria), with id. at 125 (proposal requirements), and also

contained additional information:

Offerors are cautioned to submit sufficient information and

in the format specified in the proposal preparation instructions. . . .

When [a] relevant performance record indicates performance

problems, the [VA] will consider the number and severity of the

problems and the appropriateness and effectiveness of any

corrective actions taken (not just planned or promised). The [VA]

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may review more recent contracts or performance evaluations to

ensure corrective actions have been implemented and to evaluate

their effectiveness. Communication conducted to resolve minor or

clerical errors will not constitute discussions and the contracting

officer reserves the right to award a contract without the

opportunity for proposal revision.

Offerors are authorized to provide information on problems

encountered on the identified contracts and the offeror’s corrective

actions [in accordance with] FAR 15.305(a)(2)(ii).

Past performance regarding predecessor companies . . . or

sub-contractors that will perform major or critical aspects of the

requirement will be considered as highly as past performance

information for the principal offeror. . . .

....

The [VA] reserves the right to consider past performance

information regarding predecessor companies, key personnel who

have relevant experience, or subcontractors that will perform major

or critical aspect of the requirement provided by the offeror, as

well as information obtained from any other sources, to establish a

past performance rating.

Id. at 128-29 (emphases added).

According to the Source Selection Plan, proposals would be initially screened by the

contracting officer “to determine if they [met] the basic intent” of the solicitation—in other

words, the initial screening was “not an evaluation of the technical or other specific requirements

that will be evaluated”—and then forwarded to the evaluation panel. Id. at 29. For the Technical

Capability factor, the members of the evaluation panel would evaluate each proposal individually

“on its own merit”—i.e., not in comparison to the other proposals—and then the team would

reach a consensus evaluation. Id. at 34. Past performance and price would be evaluated by the

contracting officer. Id. at 28-29. After each factor was evaluated, the evaluations would then be

forwarded to the Source Selection Authority for a final decision. Id. at 29.

The Technical Capability factor was to be evaluated using the following ratings and

definitions:

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Rating Definition

Proposal has exceptional strengths that will

significantly benefit the [VA] and offers an[]

Excellent

excellent chance of success with highly

experienced staff.

Proposal demonstrates good understanding of

Very Good the requirement and approach that exceeds

performance or capability standards.

Proposal demonstrates acceptable

Average understanding of requirements and approach

that meets performance or capability standards.

Proposal demonstrates a shallow understanding

of requirements and approach that only

Marginal marginally meets performance or capability

standards necessary for minimal but acceptable

performance.

Proposal shows lack of understanding of the

Unsatisfactory requirement, or omission in major areas.

Deficiencies have no chance to be corrected.

Id. at 30. Similarly, the Past Performance factor was to be evaluated using the following ratings

and definitions:

Rating Definition

Based on the offeror’s Past Performance

Substantial history, the [VA] has a high expectation that

Confidence the offeror will successfully perform the

required effort.

Based on the offeror’s Past Performance

Satisfactory history, the [VA] has an expectation that the

Confidence offeror will successfully perform the required

effort.

Based on the offeror’s Past Performance

Limited history, the [VA] has a low expectation that the

Confidence offeror will successfully perform the required

effort.

Based on the offeror’s Past Performance

history, the [VA] has no expectation that the

No Confidence

offeror will be able to successfully perform the

required effort.

No Past Performance information provided

relative to this acquisition. The Contracting

Neutral

Officer reserves the right to consider all other

evaluation aspects to justify award.

-14-

Id. at 31. Similarly, under the Price factor, the contracting officer would “determine whether an

offeror[’]s proposed prices for the project [were] realistic, complete, and reflect[ed] an

understanding of the solicitation requirements, and . . . provide an assessment of the

reasonableness of the proposed price.” Id. at 33. The VA estimated that the total estimated

value of the contract award for the base year and four option years would be approximately $14

million. Id. at 59.

Ultimately, the VA planned to award the contract to the offeror “whose proposal [was]

determined to represent the best overall value” to the VA. Id. at 33.

C. Plaintiff’s Proposal

Seven offerors, including plaintiff, submitted proposals in response to the solicitation by

the August 30, 2017 deadline. Id. at 866. Mr. Price submitted plaintiff’s proposal on the

morning of the due date, and Mr. Lebano confirmed its receipt within minutes. Id. at 660. In

signing each volume of the proposal on behalf of plaintiff, Mr. Price certified that plaintiff “fully

agree[d] with all terms, conditions, and provisions included in the solicitation documents,” took

“no exceptions to the contractual and/or technical terms and conditions of the solicitation,” and

had not “modified any contractual or technical terms.” Id. at 580, 594, 620.

In the general information portion of its proposal, plaintiff avowed:

We have teamed with National Mobility (dba Envoy America)[] in

a prime-subcontractor relationship to support ambulatory

transportation services. National Mobility is a current incumbent

subcontractor for [the VA on one of the bridge contracts].

. . . Our pricing includes all labor, tools, equipment,

vehicles, facilities, training, and supplies in accordance with the

requirements of the solicitation for ambulette transportation

services. The pricing being presented is in accordance with our

technical approach.

[Plaintiff’s] pricing is complete and considers all

equipment, technologies, and other resources to provide timely and

quality services. Our price and technical solutions comply with

[DOL] interpretations for SCA compliance. [Plaintiff] is fully

knowledgeable in SCA compliance and [plaintiff] presented a price

solution that demonstrates [its] full understanding of the [DOL’s]

requirements of SCA wages for Shuttle Bus Drivers and other

labor classifications. We have properly mapped the job duties of

our personnel to the SCA wage determinations for performance on

this contract.

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. . . [Plaintiff’s team] provides the [VA] with the following

betterments and value-added services:

....

 Van replacement, with 4 newer wheelchair/stretcher vans

each year throughout the period of performance.

....

 Ambulatory fleet that is 2005 or newer and large roomy

cars with 4 doors.

Id. at 586.

Plaintiff’s total proposed price for all five years of contract was $21,957,292.40. Id. at

593. Plaintiff also represented that it was not then “presently debarred, suspended, proposed for

debarment, or declared ineligible for the award of contracts by any Federal agency” and that it

had not “within a 3-year period preceding this offer, had one or more contracts terminated by

default by any Federal agency.” Id.

In the Technical Capability volume of its proposal, plaintiff represented that its past

performance reflected “100% performance objectives met on all Federal contracts”; touted its

relationship with National Mobility, to whom it was “subcontracting ambulatory services”; and

emphasized that it was “mission-ready” and prepared to execute “a seamless transition” upon

contract award. Id. at 597; see also id. at 607 (highlighting National Mobility’s record of having

“exceeded 100% of the established performance objectives on the current contract”), 613 (noting

that its team had “consistently met 100% on-time performance metrics for scheduled and

nonscheduled patient transports [and] 100% of all dispatched calls”). Plaintiff stated that its

team—i.e., plaintiff and National Mobility—planned to employ twenty nonambulatory drivers

and ninety ambulatory drivers to support the contract, including thirty-seven “mission-ready

drivers” then employed by National Mobility. Id. at 601-03. Plaintiff did not specify whether

the drivers then employed by National Mobility would be directly hired or remain subcontracted,

and did not otherwise identify the extent to which National Mobility would be providing

services. Plaintiff emphasized that “over 30% of Team VNT’s workforce are Veterans,”

remarked it “endeavor[ed] to achieve a goal of 70% Veteran employees” on the contract, and

championed the benefits of having “over 90% of [its] work force and 100% of [its] drivers

[being] aged 50 or over.” Id. at 603.

With respect to vehicles, plaintiff stated that “Team VNT’s in-place assets . . . include 15

mission-ready non-ambulatory vans and 53 additional ambulatory vehicles [ready] to assume full

operational performance on day one of the contract.” Id. at 601. Later in its proposal, plaintiff

identified a lesser number of vehicles, declaring:

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Team VNT has a fleet of 15 vans configured to support

wheelchair and stretcher transports . . . and 37 sedans and vans to

support ambulatory services. . . . Our fleet of 15 non-ambulatory

vehicles includes 11 in-service for daily transports, and four

stand-by vehicles. . . . For ambulatory services, we are doubling

our fleet by October 1[, 2017, the projected contract start date,]

enabling us to operate at full capacity.

....

Our ambulatory service vehicles are spacious and

comfortable and our non-ambulatory service vehicles are ADA

compliant in accordance with state of Arizona regulations.

Non-Ambulatory vehicles . . . meet all required Federal

[Department of Transportation] and Arizona State safety

standards for non-emergency transport vehicles . . . . Most of the

vehicles that Team VNT is providing in support of this contract

are 2005 or newer. All vehicles are well-maintained, clean, and

mission ready. . . .

Id. at 604. Plaintiff then provided a table listing a total of fifty-two vehicles, thirty-seven of

which were identified as a “Passenger Vehicle” and fifteen of which were listed as various other

types, i.e., for nonambulatory service. Id. at 604-05. Half of the vehicles were 2012 or newer

models, and all but three (all of which were designated as nonambulatory) were 2005 or newer.

Id. at 604-05.

In the “Insurance Certifications” portion of its Technical Capability volume, plaintiff

indicated that it was

in the process of renewing [its] insurance, and at the time of this

submission [its] broker was processing [plaintiff’s] ACORD

certificate. [Plaintiff] will forward [its] certificate to the

Contracting Office upon receipt . . . .

Id. at 615. Accordingly, plaintiff included in its proposal a general liability insurance quotation

dated August 22, 2017, that purported to be valid for sixty days, named plaintiff as the applicant,

and listed thirty-five specific drivers. Id. at 615-17; see also id. at 617 (indicating that seventeen

of the thirty-five identified drivers were born after August 1967, i.e., were younger than fifty

years old when plaintiff submitted its proposal). Plaintiff also submitted, as a separate

attachment alongside its proposal, a Certificate of Liability Insurance reflecting that it held a

commercial general liability insurance policy valid from August 30, 2017, to August 30, 2018.

Id. at 579, 643, 2838. In addition, plaintiff included in its proposal Certificates of Liaiblity

Insurance reflecting that National Mobility carried commercial general liability and automobile

insurance policies valid from March 8, 2017, to March 8, 2018. Id. at 618. Further, plaintiff

provided a Vehicle for Hire permit for fifteen livery vehicles issued by the Arizona Department

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of Transportation Vehicles that was valid from August 27, 2017, through August 27, 2020, and

named plaintiff as the licensee. Id. at 619.

In the Past Performance volume of its proposal, plaintiff proclaimed that it had “proven

its ability to adapt, improve, and succeed in safely transporting both ambulatory and

non-ambulatory patients/beneficiaries” and that its subcontractor, National Mobility, “currently

maintains a 100% customer satisfaction rating as an incumbent [sub]contractor for the [Southern

Arizona VA] for the ambulatory transportation services they have provided over the past 90+

days.” Id. at 622. Plaintiff then listed multiple accolades that National Mobility had received

with respect to its incumbent performance. Id. Plaintiff provided five project references and

reported that it had requested a Past Performance Questionnaire from the point of contact for

each of the five identified contracts to be sent directly to the contracting officer responsible for

the solicitation. See generally id. at 623-42.

Plaintiff listed the Southern Arizona VA and the prior contract as its first past

performance reference, and identified Mr. Thiel as the contracting officer and point of contact.

Id. at 624. Plaintiff reported that the period of performance was May 2015 through May 2017,

and stated that it performed the following number of transports each week: 200-300 wheelchair,

10-20 stretcher, 500-700 ambulatory, and 1-4 special needs. Id. Plaintiff indicated that it

received transport orders for the following day in addition to “last-minute unscheduled add-ons

via phone that required servicing within 45 minutes,” and that it “consistently met or exceeded

performance objectives throughout [the] contract, achieving 100% of performance objectives for

safe and timely pickups.” Id. (emphasis added). In conjunction with plaintiff listing the prior

contract as a past performance reference, Mr. Price asked Mr. Thiel to complete a Past

Performance Questionnaire. Id. at 634-38. Specifically, Mr. Price asked Mr. Thiel to provide

his “thoughtfulness and any highlights that [Mr. Thiel] deem[ed] beneficial for sharing” with Mr.

Lebano, the procuring contracting officer on the new contract, and noted that Mr. Lebano

“consider[ed plaintiff’s] historical performance as a very necessary ingredient for demonstrating

a level of competency” for the new contract. Id. at 634.

The remaining past performance references for plaintiff were the San Francisco VA and

the United States Department of Defense Education Activity (“DoDEA”) in Puerto Rico. Id. at

625-26. In addition, plaintiff listed two past performance references for National Mobility:

(1) National Mobility’s subcontract with Power Arizona LLC on the bridge contract with the

VA, for which National Mobility provided approximately 1600 ambulatory transports per week,

id. at 627; and (2) National Mobility’s contract with the American Cancer Society in the greater

Tucson and Phoenix areas to provide approximately 310 ambulatory transports per week, id. at

628.

The VA received three Past Performance Questionnaires for plaintiff: one for plaintiff’s

prior contract and one for each of National Mobility’s contracts. Id. at 1847, 1850. Mr. Thiel

completed the reference for the prior contract, noting that the value of the two-year effort from

May 2015 through May 2017 was $6.4 million. See generally id. at 2349-51. The Past

Performance Questionnaire was divided into six categories—management effectiveness, quality

of service and workmanship, timeliness/adherence to schedules, quality control, customer

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satisfaction, and compliance. Id. at 2350-51. Within each category, Mr. Thiel rated multiple

subcategories; overall, he gave twelve Neutral/Unknown Confidence ratings, ten Marginal/Little

Confidence ratings, three Unsatisfactory/No Confidence ratings, and zero Exceptional/High

Confidence, Very Good/Significant Confidence, or Satisfactory/Confidence ratings. Id. at

2349-51. His narrative comments were as follows:

 “During the term of our contract the contractor experienced

several turnovers at the manager position. There was also an

internal struggle within the company that affected the

performance as the manager threatened to fire employees who

attended weekly progress meetings. Contractor did not pay

subcontractors on time.” Id. at 2350.

 “Contractor’s overall quality was satisfactory. There were

times they did not follow contract procedures or their own

internal procedures. One of these incidents occurred while

trying to transport an 80 year old patient who was injured due

to not following procedures.” Id.

 “Timeliness was an issue at first. The contractor got better at

this as the VA actively engaged the contractor on their

performance.” Id.

 “Quality control plan and proposal approach completely

ignored during contract performance.” Id. at 2351.

 “Customer satisfaction overall was satisfactory. The VA had

to go to great lengths to work with the contractor to help them

perform at a satisfactory level.” Id.

 “Contractor was fined by DOL for approximately $480K in

unpaid wages to employees under SCA.” Id.

 “Contractor was given multiple letters of concern, a cure

notice, a show cause notice[,] and eventually a termination for

cause.” Id.

 “Contractor does not understand working with the federal

government and the laws and regulations that go along with

that as evidenced by the DOL investigation. Contractor did not

pay [its] sub-contractors timely, and even did not pay [its] own

employees. I believe that they want to do a good job, but have

-19-

no concept of how to conform to a contract’s terms and

conditions, and continue wanting to do things their own way

regardless of what the contract, or law[,] state[s].” Id.

National Mobility’s reference for its American Cancer Society contract noted that the

value of the contract, which began in February 2016 and was ongoing, was $100,000 per year;

provided twenty-five Exceptional/High Confidence ratings across all subcategories; and stated

that it was “currently expanding [its] contracts with [National Mobility] to several additional

territories based on the superior service that [it] provide[s] to our patients.” Id. at 2352-55.

National Mobility’s reference for its subcontract on the bridge contract with the VA noted that

the value of the subcontract, which began on June 5, 2017, and was ongoing as of August 30,

2017, was $290,000; provided one Very Good/Significant Confidence, eighteen

Satisfactory/Confidence, five Neutral/Unknown Confidence, and one Marginal/Little Confidence

ratings across all subcategories; indicated that National Mobility was “not doing any consecutive

out of town trips [or] any special mode transports”; and stated that it would award another

contract to National Mobility. Id. at 2345-48.

D. Evaluation of Proposals and Contract Award

Once the offerors submitted proposals, the evaluation panel—comprised of Kyle Cipra

(Supervisor, Patient Transportation) and Sherrie Miller (Business Operation Service Line

Administrative Officer)—evaluated the Technical Capability volumes, and the contracting

officer—Mr. Lebano—evaluated the Past Performance and Price volumes. 9 Id. at 866-67.

These evaluations were then forwarded to the Source Selection Authority, Mr. Thiel. Id. at 867.

As reflected in the initial evaluations, Owl’s technical proposal received “Very Good”

ratings from each individual evaluator and a “Very Good” consensus rating. Id. at 710-11,

724-25. Owl’s past performance rating was “Substantial Confidence,” id. at 697, and Owl’s total

proposed price was $20,654,918.00, id. at 471. Plaintiff’s technical proposal received

“Marginal” ratings from each individual evaluator and a “Marginal” consensus rating. Id. at

718-19, 732-33. Plaintiff’s past performance rating was “No Confidence,” id. at 705, and its

total proposed price was $21,957,292.40, id. at 593. As reflected in the Source Selection

Decision, Mr. Thiel agreed with the ratings issued by the evaluators for six of the seven offerors.

Id. at 887. He did not evaluate the seventh offeror because it was not a verified service-disabled,

veteran-owned small business at the time of its proposal submission. Id. at 885; see also id. at

662 (reflecting Mr. Lebano’s status verification efforts). He also observed that the Independent

Government Estimate (“IGE”) of the price for the new contract was “significantly undervalued”

because five of the evaluated prices (including Owl’s and plaintiff’s) were 40-48% higher than

the IGE, and the sixth evaluated price was nearly 70% higher than the IGE and twice as high as

the lowest offered price. Id. at 886. Mr. Thiel noted that the IGE’s undervaluation was “most

9

Mr. Cipra was also involved in resolving plaintiff’s late pickup issues in April, May,

and June 2016. See generally AR 2929-39.

-20-

likely a result of the estimate being based upon rates paid to the previous contractor [who was]

terminated due to issues with underpaying their employees not in accordance with [SCA] rates.”

Id.

Mr. Thiel concluded that Owl and one other offeror tied for the highest technical rating

(which was the second-highest rating available), Owl and a third offeror tied for the highest past

performance rating (which was the highest rating available), and therefore Owl was the highest

rated when the technical and past performance ratings were combined. Id. at 887-88. Mr. Thiel

further concluded that Owl offered the lowest price. Id. Because Owl was the highest rated and

proposed the lowest price, Mr. Thiel determined that Owl offered the best value to the VA. Id. at

888. Accordingly, on October 26, 2017, after finding that Owl was a responsible offeror, id. at

790-92, the VA notified the unsuccessful offerors, id. at 897-908, and awarded Owl the contract,

id. at 909. Plaintiff received a debriefing on November 3, 2017. Id. at 1439, 1457.

E. Initial Protests and Corrective Action

In the meantime, on October 30, 2017, plaintiff filed a size and status protest regarding

Owl. See generally id. at 969-72. Specifically, plaintiff alleged that Owl had revenues in excess

of the allowable amount for small business concerns and accordingly was ineligible to compete

for the new contract since the new contract was designated as a 100% set-aside for

service-disabled, veteran-owned small business concerns. Id. at 970. The protest triggered a

stay of performance of the awarded contract. Id. at 1112. On December 4, 2017, the United

States Small Business Administration confirmed Owl’s status as a small business concern. Id. at

1614-20.

While awaiting the outcome of its size and status protest, plaintiff filed a bid protest at

the GAO on November 13, 2017. Id. at 1456. Plaintiff alleged generally that the VA’s

evaluation was flawed. See id. at 1458-59. Plaintiff averred that, but for the VA’s errors, it

would have been the awardee. Id. at 1464.

In response to the protest, on November 27, 2017, the VA issued a Notice of Corrective

Action and Request for Dismissal. Id. at 1604-06. Specifically, the VA stated that it would

“cancel the award of the contract to [Owl], . . . re-evaluate proposals in the manner set forth in

the solicitation, and . . . proceed to make contract award in accordance with the criteria published

in the solicitation.” Id. at 1604. On December 4, 2017, the GAO dismissed plaintiff’s protest as

academic based on the VA’s proposed corrective action. Id. at 1612.

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F. Reevaluation

Pursuant to the amended Source Selection Plan, Mr. Cipra and Ms. Miller again served as

the technical evaluators. Id. at 1625.10 Mr. Lebano, as the contracting officer, served as the past

performance and price evaluator.11 Id. at 1825. In addition, Mr. Thiel, as the division chief,

served as the Source Selection Authority. Id. at 1625. The same ratings and substantive

definitions were used to evaluate both the Technical Capability and Past Performance factors as

were used in the previous evaluations. Compare id. at 1630-31 (ratings and definitions for the

reevaluations per the amended Source Selection Plan), with id. at 30-31 (ratings and definitions

for the previous evaluations per the original Source Selection Plan). Mr. Cipra and Ms. Miller

provided consensus evaluations for the six responsive offerors that “supersede[d] all previously

submitted technical evaluations.” Id. at 1637. The VA also queried CPARS records as part of its

past performance evaluation. See generally id. at 1644-1821.

In the new Source Selection Decision, Mr. Thiel rated plaintiff’s technical proposal as

Average, stating that plaintiff had “demonstrated [its] ability to accomplish the solicitation

requirements as described in the PWS.” Id. at 1845. Mr. Thiel then identified five strengths and

seven weaknesses in plaintiff’s technical proposal:

Strengths:

 [Quality control] table provided, page 12 and page 14-17.

Monitor performance measures through patient surveys

(this may or may not be allowable as a result of patient

privacy—HIPAA). [Program manager] monitors

compliance and performance.

 Contract transition mentioned in the documents, page 3

planning session layout.

 They will have 10 cross-trained on call drivers between

5pm and 7am with one week on and four weeks off (on

call).

10

The amended Source Selection Plan was organized in the same format as the original

Source Selection Plan; the amendment contained updated descriptions for the adjectival ratings,

but no substantive changes. Compare AR 1623-36 (amended Source Selection Plan), with id. at

26-40 (original Source Selection Plan).

11

Mr. Thiel was designated as the contracting officer in the amended Source Selection

Plan, but was replaced in that role by Mr. Lebano, as reflected in the new Source Selection

Decision. Compare AR 1825 (Source Selection Decision), with id. at 1625 (amended Source

Selection Plan).

-22-

 Page 1 states they have 52 well-maintained vehicles with

safety equipment and tracking software.

 ADA compliance on page 15.

Weaknesses:

 [Plaintiff’s] work plan discussed their management

approach (industry best practices), tools and technologies,

and communication mechanisms. However, it lacked some

detail in regards to how [plaintiff] will establish operations

and implement work.

 Page 1 states that 52 well maintained vehicles (no type

identified). Page 5 states 15 non-ambulatory vans, 53

ambulatory vans. Page 8 states 15 vans to support with

wheelchair and stretcher and 37 sedans. Fleet of 15 non-

ambulatory vehicles includes 11 for daily transportation.

Very confusing on total number of vehicles, type[,] and

availability.

 The use of sedans for transportation is not optimal for

elderly patients with limited mobility.

 On page 9, vehicle list shows some vehicles as old as 19

years (3), two stretchers and one ambulatory. Age of

vehicles is concerning in the desert heat. This also raises a

concern about the serviceability and condition of these

vehicles. Newer vehicles are generally more reliable,

comfortable, efficient, and safer than older vehicles.

 Quote for insurance on renewal process, no proof of current

insurance. Accord expire[d] 9/16/2017.

 Document states on page 1 the company will be

subcontracting services with another company. Although

subcontracting is permitted, it introduces additional risk

into the procurement because the offeror must rely on

vehicle(s) owned and operated by a third party and

personnel who do not work for the offeror to provide

services.

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 The offeror appears to want 1-2-3 week schedule ahead

from Patient Travel. This will not work. Schedules change

daily. This creates a risk if the offeror needs this much

advance notice to perform.

Id. at 1845-46. Mr. Thiel summarized his technical rating of plaintiff as follows:

[Plaintiff] responded to most technical evaluation criteria

and [its] proposal demonstrates an Average understanding of the

requirement. [Plaintiff’s] approach meets performance or

capability standards and represents a solution expected to ensure

that necessary services are rendered . . . . [Plaintiff’s] submission

did include some weaknesses that were generally offset by the

noted strengths. Overall, the benefits outlined in their technical

proposal merit a rating of Average.

Id. at 1846. Mr. Thiel later acknowledged (during plaintiff’s second GAO protest) that plaintiff

provided an actual certificate of insurance concurrent with its proposal, and explained:

The insurance was overlooked as it was provided as an attachment

to an email, and not in accordance with the directions outlined in

the solicitation. . . . Because [plaintiff] did not include proof of

current insurance in the correct volume of the proposal, and [its]

proposal stated that it was only providing a quote, I agreed with the

Technical Evaluation Board findings that lack of proof of current

insurance was a weakness . . . . Had I known that [plaintiff]

submitted the proof of current insurance I would not have found

this to be a weakness under Technical Capability.

While this was considered a weakness, it was not

something considered as a significant weakness. Removing this

weakness [would not have changed plaintiff’s] overall Technical

Capability as Average, nor [would it have changed] the decision

that award of the contract to [Owl] represents the best value to the

[VA].

Id. at 2838.

Mr. Thiel also analyzed plaintiff’s past performance as part of his Source Selection

Decision. See generally id. at 1846-52. He determined that plaintiff’s prior contract and the San

Francisco VA contract were relevant, but that its DoDEA contract was not relevant. Id. at

1846-47. Mr. Thiel then summarized the Past Performance Questionnaire he had submitted

regarding the prior contract—no Past Performance Questionnaire regarding plaintiff’s San

Francisco VA contract was returned—and noted that he had left both “[p]ositive and negative

-24-

comments” for plaintiff but had also “indicated that he would not recommend [plaintiff] for

similar requirements in the future.” Id. at 1847-48. In addition to reviewing the Past

Performance Questionnaire, Mr. Thiel provided a summary of CPARS records for the contracts

identified by plaintiff, i.e., the prior contract and the San Francisco VA contract. Id. at 1848-49.

He noted that “[a]ll comments left for [plaintiff] are positive and both raters indicated that they

would recommend [plaintiff] for similar requirements in the future.” Id. at 1849. In addition to

the Past Performance Questionnaire and CPARS records, Mr. Thiel reported that

past performance information for [plaintiff] was obtained from the

procurement files and personal knowledge of the [Southern

Arizona VA contracting office] staff regarding [plaintiff’s]

performance, and termination for default in June 2017 for refusing

to perform, under [the prior contract]. This part performance

information is for a contract that is the same scope as the current

procurement, and is therefore relevant to the current procurement,

because the current procurement is for the re-procurement of the

contract for which [plaintiff] defaulted. The following items were

identified in reviewing [plaintiff’s] past performance on [the prior

contract] and are considered to be negative past performance

information:

 [Plaintiff] received a Cure Notice on May 19, 2017 and

Show Cause Notice on June 1, 2017 . . . . [Plaintiff]

abruptly ceased performance of the contract and in the

process numerous patients were stranded at the hospital and

up to 100 patients per day thereafter were in jeopardy of

missing their scheduled appointments. Ultimately, the

contract was terminated for cause on June 15, 2017 . . . .

 Examples of problems experienced on [the prior contract]

prior to [plaintiff’s] termination are as follows:

a) November 16, 2016—Letter of Concern, Injured

patient, required corrective action

b) September 13, 2016—Injured patient, failure to

report accident on time, required corrective action

c) May 27, 2016—Letter of Concern, failure to meet

transportation timelines, required corrective action

d) April 28, 2016—Letter of Concern, failure to meet

transportation timelines, required corrective action

-25-

 The [DOL] implemented a mandatory withholding of

contract payments to [plaintiff] for [the prior contract] for

failing to pay [its] employees [SCA] wages. To the

contracting office’s knowledge, [plaintiff] has not

completely resolved the DOL imposed withholding.

Id. at 1849-50.

Mr. Thiel also recognized that both of plaintiff’s past performance references for

National Mobility, its proposed subcontractor, were relevant. Id. at 1850. He indicated that both

references returned Past Performance Questionnaires, and that “[a]ll positive comments were left

and the raters indicated that they would recommend [National Mobility] for similar requirements

in the future.” Id. He then listed several positive comments provided for National Mobility on

the Past Performance Questionnaires and noted that there were no CPARS records available for

National Mobility. Id. at 1851. Finally, he summarized the past performance evaluation for

plaintiff as follows:

The contracting officer has considered the past

performance information described above for both [plaintiff] and

[National Mobility]. Because [plaintiff] previously defaulted and

refused to perform on a contract for the same services for the same

geographic location as the current procurement, the contracting

officer has no expectation that [plaintiff] will successfully perform

the current procurement on its own. Although [plaintiff] has

proposed to use the services of a subcontractor with a recent

history of successful past performance providing [the VA] some of

the services required by the current procurement, the proposal does

not describe the percentage of services that will be provided by

[National Mobility]. Additionally, [plaintiff’s] CPARS comments

note that [plaintiff], in the past, did not timely pay its

subcontractors, raising a question of how long [National Mobility]

might actually perform work on this contract. For these reasons,

and because [plaintiff] would ultimately be in control of the

contract, the contracting officer has assigned little weight to

[National Mobility’s] past performance record when evaluating the

Past Performance factor for [plaintiff]. As a result, the contracting

officer has determined that [plaintiff] has earned a Limited

Confidence rating for the Past Performance factor. Based on the

offeror’s Past Performance history, the [VA] has a low expectation

that the offeror will successfully perform the required effort.

Id. at 1852.

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Next, in evaluating price reasonableness, Mr. Thiel acknowledged that “it is readily

apparent that the IGE submitted for this procurement was significantly undervalued” and

therefore “the analysis of prices to determine price reasonablesness did not use the IGE, but

rather relied upon a comparison of the prices offered for this procurement on the basis of

adequate price competition [in accordance with] FAR 15.404-1(b)(2)(i).” Id. at 1857.

After discussing the technical rating, past performance rating, and pricing for each of the

six responsive offerors, Mr. Thiel summarized the evaluations in a chart as follows:

Past Performance

12 Technical Total Proposed

Offeror Rating

Rating Contract Price

(Confidence)

Owl Very Good Substantial $20,654,918.00

B Average Substantial [. . .]

C Very Good Satisfactory [. . .]

D Average Satisfactory [. . .]

Plaintiff Average Limited $21,957,292.40

F Marginal Satisfactory [. . .]

Id. at 1858. Mr. Thiel determined that all of the proposed prices were reasonable except the one

submitted by Offeror D. Id. at 1847. He concluded that Owl “earned the highest combined

rating for the Technical and Past Performance factors out of all offerors eligible for contract

award [and] also proposed a price which is lower than that of any other submitted proposals.”

Id. at 1859. In other words, Owl “submitted the highest-rated, lowest-priced proposal” and thus

represented “the best value offer” to the VA. Id. Mr. Thiel signed the Source Selection Decision

on Friday, January 5, 2018. Id.

That same day, Mr. Lebano notified Owl of the award and sent Owl the new contract to

be signed. Id. at 1913-14. The new contract was signed by Owl’s president on January 5, 2018.

Id. at 1860. The next day—Saturday, January 6, 2018—Mr. Thiel signed the new contract on

behalf of the VA, and a contract award notice was posted on FedBizOpps.gov. Id. at 1860, 2110.

As Mr. Thiel explained during plaintiff’s second GAO protest, he posted the award notice on a

Saturday because he had been ordered to report to a temporary duty assignment at another

location out of state beginning the following Monday, January 8, 2018. Id. at 2513. Plaintiff did

not request a debriefing following the award notice. Id.

12

Mr. Thiel referred to each offeror by a specific letter, rather than by name, throughout

the Source Selection Decision document. AR 1829.

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G. Plaintiff’s Second GAO Protest

Plaintiff protested the award of the new contract to Owl at the GAO on January 12, 2018,

and attached copies of the original solicitation, slides used as part of its VA debriefing, its

proposal, a blank past performance questionnaire, the VA’s November 27, 2017 Notice of

Corrective Action, and the January 6, 2018 Award Notice.13 Id. at 1958. Plaintiff alleged

generally that the VA acted in bad faith in taking corrective action and in evaluating its proposal,

and that the VA’s technical and past performance evaluations were flawed. Id. at 1959-60. Mr.

Lebano stayed performance of the new contract on January 16, 2018, the next business day. Id.

at 2111. After multiple rounds of briefing, the GAO denied the protest on April 16, 2018. Id. at

2863.

H. Procedural History

Plaintiff filed suit in this court on May 16, 2018, seeking to overturn the VA’s award of

the new contract to Owl on generally the same grounds as argued before the GAO.14 Plaintiff

also moved for a temporary restraining order and a preliminary injunction. After defendant filed

a notice that the VA was willing to suspend performance of the new contract until July 19, 2018,

to allow for resolution of the instant protest, the court denied plaintiff’s motions for a temporary

restraining order and a preliminary injunction as moot.

Plaintiff then filed a motion for discovery and a motion for judgment on the

administrative record. Defendant responded to each motion, and cross-moved for judgment on

the administrative record. After briefing, the court heard oral argument on July 17, 2018. The

motions are now ripe for adjudication.

13

Plaintiff indicated that a “Notice of Award November 21, 2017” document was

attached as an exhibit to its January 12, 2018 GAO protest, AR 1958, but there was no such

attachment.

14

As a threshold matter, the jurisdiction of the United States Court of Federal Claims to

entertain bid protests against the federal government by interested parties is unquestioned. 28

U.S.C. § 1491(b)(1); Impresa Construzioni Geom. Domenico Garufi v. United States, 238 F.3d

1324, 1329 (Fed. Cir. 2001). In the instant protest, plaintiff has made nonfrivolous allegations

that the VA improperly evaluated its proposal. See Distributed Sols., Inc. v. United States, 539

F.3d 1340, 1345 n.1 (Fed. Cir. 2008) (“A non-frivolous allegation of a statutory or regulatory

violation in connection with a procurement or proposed procurement is sufficient to establish

jurisdiction.”). Further, the parties do not dispute that plaintiff submitted a proposal that was

actively considered along with others that were eligible to be awarded the new contract. See

CACI, Inc.-Fed. v. United States, 719 F.2d 1567, 1574-75 (Fed. Cir. 1983) (finding that a

protestor “within the ‘zone of active consideration’” had “standing to challenge the proposed

award”). Therefore, plaintiff has standing as an “interested party” to bring the instant protest.

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II. PLAINTIFF’S MOTION FOR DISCOVERY

Before addressing the merits of plaintiff’s protest, the court must resolve plaintiff’s

motion for supplementation of the administrative record through discovery. As set forth in its

motion, plaintiff seeks to supplement the administrative record with the following documents:

(1) “all non-privileged communications and correspondence . . . between members of the [VA

contracting authority] regarding the evaluation of [plaintiff’s] offer” for the new contract, (2) “all

non-privileged communications and correspondence . . . between members of the [VA

contracting authority] and the [DOL] pertaining to the investigation of [plaintiff]” on the prior

contract and pertaining to the evaluation of [plaintiff’s] bid” for the new contract, and

(3) “further documentation regarding pricing.” Mem. Supp. Pl.’s Mot. Disc. & Suppl. Admin. R.

(“Pl.’s Mot. Disc.”) 2. Plaintiff also seeks to depose Mr. Thiel, Mr. Auffhammer, Mr. Lebano,

and Mr. Cipra. Id. at 1-2. Defendant contends that the plaintiff fails to “explain how the current

administrative record is insufficient to evaluate the VA’s award of the contract,” and thus is not

entitled to the discovery that it seeks. Def.’s Resp. Pl.’s Mot. Disc. 10.

A. Standard of Review

In bid protests, the proper standard of review to be applied “is provided by 5 U.S.C.

§ 706(2)(A): 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.’” Banknote Corp. of Am. v. United

States, 365 F.3d 1345, 1350 (Fed. Cir. 2004). Generally, “the focal point for judicial review

should be the administrative record already in existence, not some new record made initially in

the reviewing court.” Camp v. Pitts, 411 U.S. 138, 142 (1973); accord Axiom Res. Mgmt., Inc.

v. United States, 564 F.3d 1374, 1381 (Fed. Cir. 2009). An administrative record typically

contains the materials developed and considered by an agency in making a decision subject to

judicial review. See Camp, 411 U.S. at 142-43 (remarking that an agency’s finding must be

“sustainable on the administrative record made” by the agency at the time of its decision); Cubic

Applications, Inc. v. United States, 37 Fed. Cl. 345, 349-50 (1997) (“[T]he primary focus of the

court’s review should be the materials that were before the agency when it made its final

decision.”).

The administrative record “should be supplemented only if the existing record is

insufficient to permit meaningful review consistent with [5 U.S.C. § 706(2)(A)].” Axiom, 564

F.3d at 1381; accord id. at 1380 (“[S]upplementation of the record should be limited to cases in

which the omission of extra-record evidence precludes effective judicial review.” (internal

quotation marks omitted)). Supplementation is appropriate when “information upon which the

agency relied when it made its decision” is lacking, including “documentation revealing the

agency’s decision-making process.” Parcel 49C Ltd. P’ship v. United States, 127 Fed. Cl. 570,

573 (2016). Supplementation might also be necessary “when a subjective value judgment has

been made but not explained” or when the administrative record “is missing relevant information

that by its very nature would not be found in an agency record—such as evidence of bad faith,

. . . or the content of conversations.” Id. (internal quotation marks omitted). Information that

“should have been considered by the agency,” but was not, is also appropriate for

supplementation. E.W., Inc. v. United States, 100 Fed. Cl. 53, 75 (2011). In particular,

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depositions may be necessary when the administrative record does not include a basis for the

contracting officer’s decision. Impresa, 238 F.3d at 1339. The party seeking to supplement the

administrative record bears the burden of demonstrating why the existing record is insufficient.

DataMill, Inc. v. United States, 91 Fed. Cl. 722, 732 (2010).

B. Plaintiff Has Failed to Allege Bias or Bad Faith Conduct

Plaintiff’s chief argument in support of its motion for discovery is that “bias and bad faith

lie at the core of this matter.” Pl.’s Mot. Disc. 5. It is well settled that government officials

enjoy “presumptions of regularity and good faith conduct.” Inforeliance Corp. v. United States,

118 Fed. Cl. 744, 747 (2014). Accordingly, a party seeking “to put facts relating to bad faith in

play” must show “either a motivation for the Government employee in question to have acted in

bad faith or conduct that is hard to explain absent bad faith,” and then, if successful in doing so,

demonstrate that “discovery could lead to evidence would provide the level of proof required to

overcome the presumption of regularity and good faith.” Id. at 747-48 (internal quotation marks

omitted). Therefore, a party seeking discovery must set forth “sufficient well-grounded

allegations of bias to support supplementation” that “rest on hard facts, not merely suspicion or

innuendo.” Id. at 748 (internal quotation marks omitted). Mere disagreement with evaluation

results or identification of agency errors is insufficient to warrant supplementation. Jacobs Tech.

Inc. v. United States, 131 Fed. Cl. 430, 455 (2017).

Plaintiff identifies a handful of “hard facts” in support of its contention that the VA

contracting authority exhibited bias or bad faith. However, plaintiff’s charges of bias and bad

faith are unavailing. Because all of the conduct upon which plaintiff relies can be explained

absent bias or bad faith, plaintiff fails to make its required threshold showing.

First, plaintiff avows that it was “operating at a 98% on time rate” at the time the VA

issued letters of concern regarding plaintiff’s failure to achieve 100% on-time performance of the

prior contract, whereas the “subject solicitation . . . only required a 95% on time performance,”

and plaintiff’s inability to “meet the impossible 100% standard” was used “negatively against it

in evaluating past performance.” Pl.’s Mot. Disc. 6. In his Source Selection Decision, Mr. Thiel

made a passing reference to two letters of concern regarding plaintiff’s failure to meet

transportation deadlines on the prior contract. Plaintiff does not dispute that those letters were

issued or their accuracy, but instead insists that because its performance on the prior contract

would have been sufficient on the new contract, the VA showed bias. Rather than showing bias,

however, Mr. Thiel simply recognized the fact that plaintiff failed to perform according to the

standards set forth in the prior contract to which plaintiff agreed. As defendant emphasizes,

“using the prior contract metric to evaluate performance under the prior contract is reasonable on

its face, and does not require further explanation.” Def.’s Resp. Pl.’s Mot. Disc. 16-17. In any

event, the solicitation provided that “past performance history” was a major component of the

evaluation of each proposal, including “adverse past performance information,” which was

defined as “past performance information that supports a less than satisfactory rating on any

evaluation element or any unfavorable comments received.” AR 128. Further, plaintiff did not

address the letters of concern in its proposal, and merely indicated that it had “consistently met

or exceeded performance objectives throughout [the prior] contract, achieving 100% of

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performance objectives for safe and timely pickups.” Id. at 624. Indeed, plaintiff’s repeated

references to itself having “met 100% of all performance metrics” on its prior contracts, see, e.g.,

id. at 597, undermine plaintiff’s contention that the 100% performance standard was

unattainable. Therefore, rather than showing bias or bad faith by referencing the letters of

concern—of which plaintiff was aware and chose not to address—the VA merely evaluated

plaintiff’s proposal in line with the criteria outlined in the solicitation.

Second, plaintiff contends that in the Past Performance Questionnaire that Mr. Thiel

completed for plaintiff regarding the prior contract, Mr. Thiel “stated that he would never award

[plaintiff] another contract.” Pl.’s Mot. Disc. 7. Plaintiff avers that this evaluation amounts to a

de facto debarment “without any due process” because plaintiff “will likely never again receive a

fair and reasonable evaluation of any submitted proposal in” the southwestern United States. Id.

Indeed, plaintiff notes that a negative report regarding its DoDEA contract appeared on the

CPARS shortly after the VA began the DOL-directed withholding in which the evaluator

“needlessly smear[ed plaintiff] without cause.” Id. at 8. Plaintiff’s allegation is somewhat

misleading. Rather than state that he would “never” award plaintiff another contract, Mr. Thiel

simply answered “[n]o” to the question, “[i]f given the opportunity, would you award another

contract to this contractor?” AR 2351. Regardless, plaintiff’s allegation concerning the CPARS

report with respect to its DoDEA contract lacks merit. In that report, Noah Mitchell indicated

that he would “not recommend [plaintiff] for similar requirements in the future” and listed

information specific to that contract. Id. at 1808. In other words, Mr. Mitchell provided a

factual history—not a “needless smear”—of plaintiff’s performance. Additionally, Mr. Price

provided a lengthy rebuttal to Mr. Mitchell’s evaluation that is included in the same report. In

any event, the DoDEA past performance reference was not considered in the evaluation of

plaintiff’s proposal because the DoDEA contract was deemed not relevant to the new contract.

Further, plaintiff’s allegation that Mr. Thiel’s evaluation acts as a de facto debarment is merely a

conclusory accusation. In the Past Performance Questionnaire, Mr. Thiel noted that plaintiff had

been issued “multiple letters of concern, a cure notice, a show cause notice[,] and eventually a

termination for cause.” Id. at 2351. In other words, rather than exhibiting bias or bad faith, Mr.

Thiel supported his evaluation by pointing to specific events involving Mr. Price. As noted

above, plaintiff referenced the prior contract in its proposal but failed to address the concerns

previously expressed by the VA, concerns of which plaintiff was fully aware. There is no reason

to suspect, beyond suspicion and innuendo—neither of which is sufficient to warrant a finding of

bias or bad faith—that plaintiff’s “side of the story” (including, if applicable, a favorable ruling

in the DOL administrative proceedings) will not be given due consideration in future proposals

should plaintiff choose to share it.

Third, plaintiff highlights the “satisfactory” rating given by Mr. Auffhammer regarding

plaintiff’s performance of the prior contract as evidence of Mr. Thiel’s bias against plaintiff.

Pl.’s Mot. Disc. 9. However, plaintiff fails to consider the ratings provided by Mr. Auffhammer

in the CPARS report and by Mr. Thiel in the Past Performance Questionnaire in their proper

context. Mr. Auffhammer submitted his CPARS report on May 5, 2016. At that point, the VA

had issued only one letter of concern. The withholding of contract funds pursuant to the DOL

investigation, which ultimately resulted in the default termination, did not begin until

approximately one year later, but before Mr. Price asked Mr. Thiel to complete the Past

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Performance Questionnaire. Therefore, any comparison between the evaluations provided by

Mr. Auffhammer and Mr. Thiel is neither relevant nor suggestive of bias or bad faith.

Fourth, plaintiff relies on the VA’s failure to ask plaintiff “to clarify certain aspects of

[its] proposal or allow[ plaintiff] to respond to adverse past performance ratings,” id., as

evidence of bias or bad faith. While the solicitation provided that “[o]fferors may be asked to

clarify certain aspects of their proposal or respond to adverse performance information to which

the offeror has not previously had an opportunity to respond,” AR 128 (emphases added),

plaintiff fails to recognize that the VA was not required to do so. The solicitation provided that

each offeror was required to “ensure that [its] proposal establishes [its] qualifications and

demonstrates [its] ability to perform all services pertaining to [the] solicitation,” id. at 127, and

that offerors were “authorized to provide information on problems encountered on the identified

contracts,” id. at 129. Further, as discussed above, plaintiff was aware of the adverse past

performance information relied upon by the VA in its evaluation. In short, plaintiff had ample

opportunity to provide additional information regarding its past performance in its proposal and

simply chose not to do so even though, under FAR 15.305(a)(2)(ii), the VA would have been

required to consider plaintiff’s “side of the story” regarding adverse past performance

information had plaintiff provided it. In any event, the solicitation explicitly provided that the

VA “intend[ed] to award a contract based on the initial offers, without discussions.” Id. at 130.

Therefore, because the VA did not conduct discussions with any of the offerors, its failure to

hold discussions with plaintiff does not suggest bias or bad faith.

Fifth, plaintiff asserts that the VA’s reliance “on the errant presumption that [plaintiff]

violated the DOL’s regulations as an unspoken evaluating criterion” demonstrates bad faith

because, plaintiff alleges, the VA did not consider plaintiff’s “side of the story” despite knowing

that plaintiff was contesting the DOL’s withholding request. Pl.’s Mot. Disc. 10. However, the

VA considered plaintiff’s adverse past performance on the prior contract—and not plaintiff’s

compliance with DOL regulations—in evaluating plaintiff’s proposal. Further, offerors were

instructed that “[a]ll information pertaining to [each factor] shall be confined to the appropriate

proposal volume in order to facilitate independent evaluation.” AR 123. As noted above,

plaintiff’s proposal is completely devoid of any reference to the DOL’s withholding request and

the ensuing Cure Notice, Show Cause Notice, and default termination. Because plaintiff failed

to include its “side of the story” within its proposal, it would have been improper for the VA to

consider it. Therefore, the VA’s alleged failure to do so does not suggest bias or bad faith.15

Sixth, plaintiff remarks that the VA “rel[ied] on the claim that [plaintiff] failed to pay a

subcontractor” as part of its past performance evaluation without providing “any basis for this

allegation.” Pl.’s Mot. Disc. 10-11. Plaintiff avows that “the claim is dubious at best and stems

15

Plaintiff’s appeal rights with respect to the DOL’s withholding request are provided in

parts six and eight of title 29 of the Code of Federal Regulations. 29 C.F.R. § 4.187(f) (2016).

Plaintiff’s appeal rights regarding its termination for cause are outlined in FAR 33.211, as

described in the termination notice. Plaintiff cannot use a bid protest to remedy its failure to

pursue the proper avenues for appeal.

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from a legal dispute that ultimately sparked the DOL investigation of [plaintiff] in the first

place.” Id. at 11. The Source Selection Decision referenced the Past Performance

Questionnaire—both of which were authored by Mr. Thiel—regarding the allegation that

plaintiff “did not pay subcontractors on time.”16,17 AR 1847. The Past Performance

Questionnaire itself does not specifically identify the source of Mr. Thiel’s averment. However,

the disputes between plaintiff and Arizona Medical Transit and plaintiff and Gentle Care arose

during the performance of the prior contract in August 2015 and were the subject of complaints

received, meetings attended, and a letter of concern issued by Mr. Thiel. In other words, Mr.

Thiel was well acquainted personally with the subcontractor payment dispute. Indeed, in the

Source Selection Decision, Mr. Thiel referenced the “procurement files and personal knowledge”

of his office regarding plaintiff’s past performance. Id. at 1849. In any event, the dispute giving

rise to plaintiff’s lawsuit against Arizona Medical Transit was a matter of public record. Further,

the lawsuit was filed after Mr. Price regained control of plaintiff. Mr. Price was fully informed

regarding the dispute, and plaintiff nevertheless chose not to provide its “side of the story” in its

proposal. Therefore, Mr. Thiel’s assertions in the Past Performance Questionnaire regarding

subcontractor payments fail to demonstrate bias or bad faith despite the lack of citations to

specific materials or incidents.

Finally, plaintiff states that the VA failed to give equal weight to National Mobility’s past

performance evaluation and that such failure “reflects bias and disparate treatment against

[plaintiff].” Pl.’s Mot. Disc. 11-12. As relevant here, the evaluation criteria contained in the

solicitation provided that “[p]ast performance regarding . . . sub-contractors that will perform

major or critical aspects of the requirement will be considered as highly as past performance

information for the principal offeror.” AR 129 (emphasis added). The evaluation criteria also

provided that past performance information “will be evaluated for relevance to this procurement

in relation to the offeror[’]s technical capability.” Id. at 128. In the Source Selection Decision,

Mr. Thiel described National Mobility’s past performance references and their relevance, but

also observed that plaintiff’s proposal failed to “describe the percentage of services that will be

provided by” National Mobility as one of multiple reasons for National Mobility’s past

performance being given “little weight.” Id. at 1852. The VA’s failure to give National

16

Mr. Thiel also indicated, in summarizing plaintiff’s past performance evaluation in the

Source Selection Decision, that “CPARS comments note that [plaintiff], in the past, did not

timely pay its subcontractors.” AR 1852. However, the only CPARS comment with respect to

plaintiff’s payment obligations is a comment regarding plaintiff’s DoDEA contract that plaintiff

had “a lot of problems with employees . . . like paying them late.” Id. at 1808 (emphasis added).

Since this comment concerned employees and not subcontractors, and since the DoDEA contract

was deemed irrelevant, the court disregards Mr. Thiel’s reference to the CPARS in connection

with plaintiff’s subcontractor payment issues.

17

Defendant correctly observes that plaintiff “fails to identify any regulation or

precedent suggesting that a contracting officer involved in a prior termination for default is

somehow disqualified from evaluating proposals, including that of a terminated party.” Def.’s

Resp. Pl.’s Mot. Disc. 14.

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Mobility’s past performance more than “little weight” is thus attributable to plaintiff’s failure to

adequately describe the scope of National Mobility’s involvement in its teaming arrangement

rather than bias or bad faith.

In sum, the facts on which plaintiff relies to support its allegations of bias and bad faith

are attributable to the self-inflicted deficiencies in plaintiff’s proposal rather than improper

motives on the part of the VA.

C. The Administrative Record Is Sufficient for Effective Judicial Review

In addition to alleging bias or bad faith, plaintiff “asserts that the VA relied on unstated

evaluation criteria . . . (or no criteria at all)” in appraising plaintiff’s proposal, “rendering its

award decision arbitrary and capricious and contrary to law.” Pl.’s Mot. Disc. 9. Plaintiff posits

that the VA relied on the “DOL enforcement findings” in evaluating its proposal and that

“[d]iscovery will allow Plaintiff to find out how much the [VA contracting authority] relied upon

the findings by the DOL in evaluating the subject solicitation.” Id. at 10.

Plaintiff’s argument is meritless. While plaintiff is correct that federal agencies cannot

blindly follow other agencies, see Veterans Contracting Grp., Inc. v. United States, 135 Fed. Cl.

610, 618-19 (2017), appeal docketed, No. 18-1409 (Fed. Cir. Jan. 16, 2018), “[i]t is mandatory

for a contracting officer to adhere to a request from the [DOL] to withhold funds” and to transfer

those withheld funds to the DOL—even “prior to the institution of administrative proceedings,”

29 C.F.R. § 4.187(a). In other words, the VA had no discretion to consider the propriety of the

DOL withholding request because it was required to comply. Further, as explained in the Source

Selection Decision, the primary reason that plaintiff received a “Limited Confidence” past

performance rating was its prior termination for default. Therefore, defendant is correct that

“[t]he administrative record contains the notice of termination for default as well as the

underlying notices from the VA and responses from [plaintiff],” which are “more than sufficient

to provide effective judicial review of the contract award decision.” Def.’s Resp. Pl.’s Mot.

Disc. 19.

Plaintiff’s request for “further documentation regarding pricing,” i.e., the process by

which the VA determined the IGE, Pl.’s Mot. Disc. 13, is similarly without merit. In the Source

Selection Decision, Mr. Thiel acknowledged that the IGE was undervalued and therefore was not

used to evaluate price reasonableness. Therefore, any documentation regarding the IGE is

irrelevant to the propriety of the award decision.

Finally, plaintiff’s request for the VA’s internal communications regarding the evaluation

of plaintiff’s proposal must be denied. The administrative record already contains the individual

and consensus evaluations of plaintiff’s proposal, the detailed Source Selection Decision, and

past performance records relied upon by the VA in evaluating plaintiff’s proposal.

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D. Summary

Plaintiff has failed to credibly allege bias or bad faith. Further, plaintiff has failed to

show that the administrative record is otherwise insufficient for judicial review. The

administrative record as currently constituted will allow the court to conduct a full and fair

evaluation of the VA’s award of the new contract to Owl. Therefore, plaintiff’s motion for

discovery must be denied in its entirety.

III. CROSS-MOTIONS FOR JUDGMENT ON THE ADMINISTRATIVE RECORD

The court now turns to the parties’ cross-motions for judgment on the administrative

record. In ruling on such motions, “the court asks 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). Because the court makes “factual findings . . .

from the record evidence,” judgment on the administrative record “is properly understood as

intending to provide for an expedited trial on the record.” Bannum, Inc. v. United States, 404

F.3d. 1346, 1356 (Fed. Cir. 2005).

Plaintiff advances two main arguments in support of its motion for judgment on the

administrative record. First, plaintiff contends that the weaknesses assigned to the technical

volume of its proposal “are unreasonable and inaccurate” and “inconsistent with the solicitation’s

evaluation criteria.” Pl.’s MJAR 18-19. Second, plaintiff asserts that the VA’s past performance

evaluation was flawed because the “only way one can reasonably come to a ‘Limited

Confidence’ decision as the VA did . . . is bias.” Id. at 30. Plaintiff avers that had the VA “done

a meaningful analysis of [plaintiff’s] technical capability and accurately evaluated” National

Mobility’s past performance information, plaintiff “would have been the awardee.” Id. at 19.

Plaintiff also challenges the VA’s price analysis and best-value tradeoff. Defendant argues that

“the VA conducted a reasonable evaluation of [plaintiff’s] technical approach, and properly

evaluated [plaintiff’s] past performance.” Def.’s Resp. Pl.’s MJAR & Def.’s Cross-Mot. J.

Administrative R. (“Def.’s Cross-Mot.”) 37.

A. Legal Standard

As explained above, the proper standard of review in bid protests provides that “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.” Per Aarsleff A/S v. United States, 829 F.3d 1303, 1309

(Fed. Cir. 2016) (internal quotation marks omitted). Under this standard, the court

may set aside a procurement action if (1) the procurement official’s

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

involved a violation of regulation or procedure. A court reviews a

challenge brought on the first ground to determine 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

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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.

Centech Grp., Inc. v. United States, 554 F.3d 1029, 1037 (Fed. Cir. 2009) (citations and internal

quotation marks omitted); see also Turner Constr. Co. v. United States, 645 F.3d 1377, 1384-85

(Fed. Cir. 2011) (explaining that reviewing courts conduct a “rational basis” review of the

agency action at issue, rather than an “independent de novo assessment”); Advanced Data

Concepts, Inc. v. United States, 216 F.3d 1054, 1058 (Fed. Cir. 2000) (observing that the

“arbitrary and capricious” standard is “highly deferential” and requires courts to sustain agency

actions that demonstrate “rational reasoning and consideration of relevant factors”).

B. The VA Did Not Unreasonably Evaluate Plaintiff’s Technical Proposal

Plaintiff argues that the weaknesses assigned to the technical portion of its proposal are

“repetitive, unsubstantiated, irrelevant, and unreasonable.” Pl.’s MJAR 19. Plaintiff also

suggests that “the VA relied on unstated evaluation criteria in evaluating [plaintiff’s] proposal.”

Id. Defendant emphasizes that plaintiff’s arguments “amount to mere disagreements with the

VA’s evaluation of its technical proposal, and because the VA’s evaluations were reasonable and

consistent with the [solicitation’s] evaluation criteria, these arguments should be rejected.”

Def.’s Cross-Mot. 14.

Proposal evaluation is “an assessment of the proposal and the offeror’s ability to perform

the prospective contract successfully.” FAR 15.305(a). It is well settled that government

agencies must “evaluate competitive proposals and then assess their relative qualities solely on

the factors and subfactors specified in the solicitation.” Id. When an evaluation is challenged,

courts must examine the evaluation “to ensure that it was reasonable and consistent with the

evaluation criteria and applicable statutes and regulations,” while remaining mindful that the

“merit of competing proposals is primarily a matter of agency discretion.” E.W. Bliss Co. v.

United States, 77 F.3d 445, 449 (Fed. Cir. 1996) (internal quotation marks omitted).

Plaintiff provides a chart listing some of its assigned weaknesses and its disagreement

with each, the substance of which is reproduced below:

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VA SSA Documents VNT Offer

Lacked some detail in regards Detailed work plan.

to how [plaintiff] will establish

operations and implement

work.

Regarding vehicles: Very List of make and model of all

confusing on total number of vehicles.

vehicles, type, and availability.

The use of sedans for List of vehicles contains a mix

transportation is not optimal of sedans, trucks, and multi-

for elderly patients with passenger vans.

limited mobility.

Quote for insurance on Copy of insurance certificates

renewal process, no proof of and permits as required by

insurance liability. Accord state law per solicitation were

expire[d] 9/16/2017. provided.

Insurance document appears to Insurance is in place.

be a quote and not a current

policy.

Pl.’s MJAR 18. The court will address each of plaintiff’s five arguments in turn.

Plaintiff’s first argument merely reflects its disagreement with the VA’s evaluation and

does not provide any further detail. The VA recognized that plaintiff’s “work plan discussed

[its] management approach (industry best practices), tools and technologies, and communication

techniques” before opining that “it lacked some detail in regards to how [plaintiff] will establish

operations and implement work.” AR 1845-46. In other words, the VA did not state that

plaintiff failed to include a detailed work plan; the VA merely stated that plaintiff’s work plan

“lacked some detail” in a specific area—its transition plan. The evaluation criteria in the

solicitation put offerors on notice that they would be evaluated, in part, on a “[d]escription

(detailed work plan) of the offeror’s technical solution as it relates to . . . a proposed schedule for

beginning performance upon contract award.” Id. at 127. Plaintiff provided a contract transition

plan in Section 1.2.2 of its technical proposal, but has not explained how the VA’s assessment of

it as lacking some detail is unreasonable. Therefore, it was not unreasonable for the VA to

assess this weakness.

Plaintiff’s second argument is unavailing. While plaintiff did provide a list of the makes

and models of its vehicles, its proposal was internally inconsistent regarding its vehicle fleet. As

defendant observes, the VA “provided citations to the specific pages in the proposal where these

inconsistencies occur, and in its motion, [plaintiff] fails to address these inconsistencies.” Def.’s

Cross-Mot. 17. Thus, it was not unreasonable for the VA to assess this weakness. Further, the

proposal does not specify which vehicles are owned by National Mobility and which vehicles are

owned by plaintiff directly. The distinction is important since “subcontracting . . . introduces

additional risk into the procurement because [plaintiff] must rely on vehicle(s) owned and

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operated by a third party,” AR 1846—a separate weakness that plaintiff does not contest.

Ultimately, it was plaintiff’s responsibility to make its proposal clear. Therefore, the court finds

plaintiff’s second argument regarding its technical evaluation unavailing.

Third, plaintiff takes issue with the VA’s statement that “[t]he use of sedans is not

optimal for elderly patients with limited mobility,” id. at 1846, and contends that its proposal

includes a “[l]ist of make and model of all vehicles,” Pl.’s MJAR 18. Plaintiff further states that

“[s]edans are not the primary method of transportation and nothing references their use for

elderly patients.” Id. While plaintiff is correct that its proposal does not reference the use of

sedans for elderly patients, and includes a list of all vehicles, plaintiff’s proposal does not explain

how it would ensure that limited-mobility patients would be assigned an appropriate vehicle.

Further, plaintiff’s statement that sedans would not be the primary method of transportation is

dubious given that half of the vehicles identified in its list are sedans. Accordingly, it was not

unreasonable for the VA to assess this particular weakness.

Fourth, plaintiff argues that it provided copies of insurance certificates and permits “per

[the] solicitation,” id., contrary to the VA’s statement plaintiff provided a quotation and not

proof of current insurance. Defendant emphasizes that “based upon an evaluation of [plaintiff’s]

proposal, the assignment of this weakness was reasonable.” Def.’s Cross-Mot. 18. Plaintiff’s

proposal included various insurance and permit information, as well as a statement that plaintiff

was “in the process of renewing [its] insurance, and at the time of this submission [plaintiff’s]

broker was processing [plaintiff’s] ACORD certificate.” AR 615. Plaintiff indicated that it was

providing its “insurance quote” and promised to “forward [its] certificate to the Contracting

Office upon receipt.” Id. When transmitting its proposal, plaintiff submitted four attachments—

one for each volume of its proposal, and one containing its insurance certificate. Thus, plaintiff

is correct that, according to the certificate provided, its “[i]nsurance is in place.” Pl.’s MJAR 18.

Mr. Thiel acknowledged, during the second GAO protest, that the certificate was overlooked and

that he would not have assessed a weakness had he originally been aware of it. However, Mr.

Thiel also averred that it was not a significant weakness and would not have changed plaintiff’s

overall technical rating. Even so, the assessment of the weakness itself was not unreasonable.

As Mr. Thiel remarked, plaintiff did not submit its insurance certificate according to the

directions contained in the solicitation. Because the solicitation put offerors on notice that “[a]ll

information pertaining to [each factor] shall be confined to the appropriate proposal volume,”

and such information included copies of applicable “insurance certificates,” AR 123-24

(emphases added), the VA was not required to take plaintiff’s insurance certificate into account,

particularly given that plaintiff’s proposal included a statement that plaintiff was providing a

quotation in lieu of a certificate. Further, the evaluation criteria explained that offerors would be

evaluated, in part, based on providing appropriate documentation. See ST Net, Inc. v. United

States, 112 Fed. Cl. 99, 110 (2013) (“[A]n agency is not required to sift through a proposal in

order to identify information that the offeror failed to include in the correct place.”). In short, the

weakness assigned was in accordance with the evaluation criteria and instructions contained in

the solicitation, and thus was reasonable. To the extent that identifying the purported lack of a

certificate as a weakness was unreasonable, the assessment was not prejudicial because there is

no evidence that a correct assessment would have changed plaintiff’s technical rating or the

award of the contract to Owl.

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Fifth, plaintiff asserts that the VA’s statement that “[i]nsurance document appears to be a

quote and not a current policy,” id. at 880, reflects an error because “[i]nsurance is in place.”

Pl.’s MJAR 18. Plaintiff’s assertion is moot because the VA’s statement was included in the

original Source Selection Decision, not the Source Selection Decision following the VA’s

corrective action. In any event, plaintiff’s fifth assignment of error is duplicative of its fourth,

and is meritless for the reasons stated in the previous paragraph.

In addition to the specific objections set forth in its chart, plaintiff contends that the

weakness concerning the age of vehicles was improperly assigned because “[t]he solicitation

contained no requirements concerning vehicle age.” Id. at 19. Plaintiff is correct that the

solicitation does not expressly refer to the age of vehicles. However, the evaluation criteria

described in the solicitation indicated that offerors would be evaluated in part on the

“serviceability (condition)” of vehicles, the documentation provided to “verify the reliability and

safety of vehicles,” and the “functional Heating, Ventilation, and Air Conditioning” within the

vehicle fleet. AR 127-28. Further, the PWS provided that the fundamental purpose of the

contract was to procure “safe and comfortable . . . transportation services.” Id. at 107. Plaintiff

does not, and cannot, dispute that its proposal indicates that three of its fifteen nonambulatory

vehicles are year 2000 models or older. In the Source Selection Decision, Mr. Thiel “raise[d] a

concern about the serviceability and condition of these vehicles,” and noted that “[n]ewer

vehicles are generally more reliable, comfortable, efficient, and safer than older vehicles.” Id. at

1846. His concern was the functionality, not the age, of the vehicles, and thus he did not rely on

unstated evaluation criteria. In short, plaintiff fails to articulate how Mr. Thiel’s concern

regarding the serviceability and condition of vehicles that constituted twenty percent of

plaintiff’s nonambulatory fleet is unreasonable. Therefore, plaintiff’s argument concerning the

age of its fleet is unavailing.

In sum, the VA’s evaluation of the technical portion of plaintiff’s proposal was

reasonable and based on appropriate factors.

C. The VA Did Not Unreasonably Evaluate Plaintiff’s Past Performance

In addition to asserting that the VA improperly evaluated the technical portion of its

proposal, plaintiff alleges that the VA improperly evaluated its past performance as a result of

bias or bad faith. Specifically, plaintiff posits that the VA failed to follow the stated evaluation

criteria by not properly crediting National Mobility’s past performance history, the VA relied on

past performance information containing indicia of bias, and the VA’s written analysis of

plaintiff’s past performance was disproportionately lengthy vis-à-vis the written analysis of the

other offerors’ past performance.

Plaintiff’s first two contentions are meritless for the reasons stated above and need not be

repeated. See supra Section II.B. Plaintiff’s third contention in support of its allegation that the

VA improperly evaluated its past performance is that its “seven-page past performance analysis

[was] roughly three times the length of every other offeror,” and thus “illustrates the effort the

VA [put forth] to disqualify” plaintiff. Pl.’s MJAR 29. Plaintiff indicates that the Source

Selection Decision contained “7 pages” of “written analysis for past performance” with respect

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to plaintiff but only “2 pages” for each other offeror. Id. at 28. Plaintiff’s indication is

inaccurate and, in any event, misses the mark. As defendant emphasizes, “the page disparity

pointed to by [plaintiff] can easily be explained by a more reasonable explanation not involving

bias—the amount of past performance information for [plaintiff] versus other offerors.” Def.’s

Cross-Mot. 33.

Plaintiff’s past performance evaluation comprised six pages of the Source Selection

Decision. In composing the evaluation, Mr. Thiel began by listing plaintiff’s three past

performance references and discussing the relevancy of each. Then, he reviewed the only Past

Performance Questionnaire that was returned from among plaintiff’s three references. Next, Mr.

Thiel discussed plaintiff’s relevant CPARS information. He then discussed National Mobility’s

past performance, first by considering the relevancy of each of National Mobility’s two

references, and then reviewing the comments received on the Past Performance Questionnaires

that each of the references returned. Finally, Mr. Thiel provided an overview of plaintiff’s

default termination and concluded with a summation of plaintiff’s past performance rating of

“Limited Confidence.”

Mr. Thiel’s evaluation of Owl’s past performance comprised three pages of the Source

Selection Decision. Similar to plaintiff’s past performance evaluation, he listed Owl’s past

performance references and discussed their relevancy, reviewed Owl’s relevant CPARS

information, noted that Owl proposed no subcontractors or other teaming arrangements,

observed that there were no default terminations, and concluded with a summation of Owl’s

“Substantial Confidence” rating. None of Owl’s references returned a Past Performance

Questionnaire.

The other past performance evaluations followed a similar track. Offeror B’s past

performance evaluation comprised two pages; no CPARS information, subcontractor

information, or past default termination was on file, and only one Past Performance

Questionnaire was returned. Offeror C’s past performance evaluation comprised approximately

three pages of the Source Selection Decision and contained CPARS information, but there were

no Past Performance Questionnaires returned, no subcontractors or other teaming arrangements

proposed, and no default terminations. Offeror D’s past performance evaluation also comprised

three pages and contained CPARS and subcontractor information, but no Past Performance

Questionnaires or default terminations. Finally, Offeror F’s past performance evaluation

comprised approximately two pages, containing one Past Performance Questionnaire, CPARS

summary information but no comments, no details regarding subcontractors, and no default

terminations.

In other words, the VA’s past performance evaluations followed the same process for

each offeror. Importantly, the discussions were substantially similar in nature; there was simply

more relevant information with respect to plaintiff. Indeed, agencies “shall consider [past

performance references], as well as information obtained from any other sources, when

evaluating the offeror[’s] past performance.” FAR 15.305(a)(2)(ii). Thus, it would have been

arbitrary and capricious for the VA not to consider the available past performance information

concerning plaintiff—particularly because plaintiff misrepresented its past performance by

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stating that it had no prior default terminations and met 100% of its objectives on prior contracts.

Plaintiff’s apparent disagreements regarding the relevance of this information are of no moment.

Because determining the relevance of past performance information is a matter of agency

discretion, such decisions are entitled to deference. Linc Gov’t Servs., LLC v. United States, 96

Fed. Cl. 672, 718 (2010). There is no reason to question Mr. Thiel’s determinations of relevance

concerning the past performance information for any of the offerors. Accordingly, the variances

in length among the offerors’ past performance evaluations are not unreasonable and provide no

basis for finding that any of the past performance evaluations were improper.

In short, plaintiff has not met its burden of showing that the VA’s past performance

evaluations were the result of bias or bad faith or were otherwise improper.

D. The VA Did Not Fail to Properly Analyze the Offerors’ Proposed Prices

Plaintiff also alleges that the VA’s evaluation of its proposal was flawed because the VA

did not properly evaluate prices. Specifically, plaintiff contends that “[t]he VA should also have

evaluated the price reasonableness of offers based on SCA wage rates in the solicitation,” Pl.’s

MJAR 28, and suggests (without support) that Owl “did not take [SCA] rates into consideration

in its proposal,” id. at 29 n.9. Defendant responds that the solicitation “plainly did not require” a

“price realism analysis supporting SCA wages.” Def.’s Cross-Mot. 35.

By effectively arguing that the VA should have determined whether Owl’s proposed

price is unrealistically low, plaintiff actually invokes price realism rather than price

reasonableness:

[A] price reasonableness analysis has the goal of preventing the

government from paying too much for contract work. A price

realism analysis, on the other hand, investigates whether the

contractor is proposing a price so low that performance of the

contract will be threatened.

DMS All-Star Joint Venture v. United States, 90 Fed. Cl. 653, 657 n.5 (2010). The solicitation

provided that the VA could “determine that an offer [was] unacceptable if the option prices are

significantly unbalanced,” AR 129. Therefore, offerors were on notice that price analysis would

be conducted. However, plaintiff fails to identify any language in the solicitation expressly or

impliedly requiring the VA to conduct a price realism analysis. See UnitedHealth Military &

Veterans Servs., LLC v. United States, 132 Fed. Cl. 529, 554-55 (2017) (providing examples of

language that has been deemed to require agencies to conduct a price realism analysis in the

absence of an express directive in the solicitation). Conducting a price realism analysis “[i]n

situations where the solicitation does not expressly or implicitly require a price realism analysis”

would be an improper use of unstated evaluation criteria. Ceres Envtl. Servs., Inc. v. United

States, 97 Fed. Cl. 277, 306 (2011). Accordingly, the VA could not have performed the analysis

that plaintiff suggests without running afoul of the FAR. To the extent that plaintiff believes

such an analysis should have been conducted, plaintiff has waived that objection by not

challenging the terms of the solicitation in a preaward bid protest. See Blue & Gold Fleet, L.P.

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v. United States, 492 F.3d 1308, 1313 (Fed. Cir. 2007) (providing that contractors who have the

opportunity to object to the terms of a solicitation, but fail to do so, are precluded from later

raising such objections in a bid protest).

The VA did, however, perform a price reasonableness analysis pursuant to the terms of

the solicitation and the FAR. Agencies may “use various price analysis techniques and

procedures to ensure a fair and reasonable price,” including “[c]omparison of proposed prices

received in response to the solicitation” and “[c]omparison of proposed prices with [IGEs].”

FAR 15.404-1(b)(2)(i), (v). As described above, the VA analyzed price reasonableness by

comparing the offerors’ proposed prices to one another rather than the IGE (since the IGE was

undervalued). See Serco Inc. v. United States, 81 Fed. Cl. 463, 494 (2008) (“[A]n agency may

conclude that an awardee’s price is reasonable if it is consistent with the prices received from

various competitors . . . .”). Therefore, the VA’s price reasonableness inquiry was not improper.

E. The VA’s Best-Value Tradeoff Analysis Was Not Improper

Finally, plaintiff asserts that the VA “failed to perform the best-value analysis required by

the solicitation.” Pl.’s MJAR 29. Plaintiff supports its assertion by stating that the VA’s

technical, past performance, and price evaluations were each flawed. Plaintiff’s reasoning is

meritless for the reasons stated above, which need not be repeated. See supra Sections III.B

(technical), III.C (past performance), III.D (price). In addition, plaintiff has not carried its

burden of demonstrating bias or bad faith.

Under FAR 15.308, a best-value tradeoff must be “based on a comparative assessment of

proposals against all source selection criteria in the solicitation.” The solicitation provided that

proposals would be evaluated based on the following three factors, in descending order of

importance: technical capability, past performance, and price. As the Source Selection

Authority, Mr. Thiel determined that because Owl received the “highest combined rating for the

Technical and Past Performance factors out of all offerors eligible for contract award,” and also

proposed the lowest price, Owl’s proposal “represent[ed] the best value offer” to the VA in

response to the solicitation. AR 1859. Even if plaintiff’s Technical Capability rating had been

Very Good (one level higher) and its Past Performance rating had been Substantial Confidence

(three levels higher), the VA’s best-value award to Owl would stand because plaintiff’s proposed

price was $1.3 million higher.

Best-value tradeoffs are appropriate “when it may be in the best interest of the

Government to consider award to other than the lowest priced offeror or other than the highest

technically rated offeror.” FAR 15.101-1(a). Here, Owl was both, and thus no comparative

tradeoff was necessary. Further, Mr. Thiel’s determinations regarding each offeror were

supported by detailed narratives, were not unreasonable or the product of bias or bad faith, and

were consistent with the evaluation criteria described in the solicitation. Courts are generally

loathe to “disturb a best-value award so long as the agency documents its final award decision

and includes the rationale for any business judgments and tradeoffs made,” Afghan Am. Army

Servs. Corp. v. United States, 90 Fed. Cl. 341, 360 (2009), and the court similarly declines to do

so here.

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F. Plaintiff Is Not Entitled to Injunctive Relief

In sum, plaintiff has not established that the VA’s award of the new contract to Owl was

improper. Accordingly, plaintiff is not entitled to injunctive relief. See PGBA, LLC v. United

States, 389 F.3d 1219, 1228-29 (Fed. Cir. 2004) (explaining that a plaintiff “must [have]

succeeded on the merits of the case” in order to be granted permanent injunctive relief); Career

Training Concepts, Inc. v. United States, 83 Fed. Cl. 215, 219 (2008) (collecting cases for the

proposition that “a permanent injunction requires actual success on the merits”).

IV. CONCLUSION

The court has considered all of the parties’ arguments. To the extent not discussed

herein, they are unpersuasive, without merit, or are unnecessary for resolving the matters

currently before the court.

Discovery is not warranted because plaintiff has failed to make its threshold showing of

bias or bad faith and the administrative record as currently constituted is sufficient for effective

judicial review. Further, the VA evaluated proposals according to the criteria set forth in the

solicitation and sufficiently explained its reasoning. Plaintiff has failed to show that the award

decision was arbitrary, capricious, an abuse of discretion, contrary to law, the product of bias or

bad faith, or otherwise improper. Because plaintiff has not succeeded on the merits of its protest,

it is not entitled to a permanent injunction.

Therefore, the court DENIES plaintiff’s motion for discovery, DENIES plaintiff’s

motion for judgment on the administrative record, and GRANTS defendant’s motion for

judgment on the administrative record. No costs. The clerk is directed to enter judgment

accordingly.

[. . .]

IT IS SO ORDERED.

s/ Margaret M. Sweeney

MARGARET M. SWEENEY

Chief Judge

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