Mes Simulation & Training Corp. v. United States

In the United States Court of Federal Claims

No. 18-1055C

Filed Under Seal: December 6, 2018

Reissued: January 2, 2019*

NOT FOR PUBLICATION

)

MES SIMULATION & TRAINING )

CORP. )

)

Plaintiff, )

)

v. ) Post-Award Bid Protest; Judgment upon

) the Administrative Record; RCFC 52.1;

THE UNITED STATES, ) Best Value Determination; Injunctive

) Relief; Supplementing the Court Record.

Defendant, )

)

v. )

)

RIPTIDE SOFTWARE, INC. )

)

Defendant-Intervenor. )

)

Jonathan D. Shaffer, Counsel of Record, Mary Pat Buckenmeyer, Of Counsel, Todd M.

Garland, Of Counsel, Smith Pachter McWhorter PLC, Tysons Corner, VA, for plaintiff.

Andrew W. Lamb, Trial Attorney, Allison Kidd-Miller, Assistant Director, Robert E.

Kirschman, Jr., Director, Joseph H. Hunt, Assistant Attorney General, Commercial Litigation

Branch, Civil Division, United States Department of Justice, Washington, DC; Kristine

Kassekert, Of Counsel, United States Marine Corps, Quantico, VA, for defendant.

John M. Manfredonia, Counsel of Record, Manfredonia Law Offices, LLC, Cresskill, NJ,

for defendant-intervenor.

*

This Memorandum Opinion and Order was originally filed under seal on December 6, 2018

(docket entry no. 36). The parties were given an opportunity to advise the Court of their views

with respect to what information, if any, should be redacted from the Memorandum Opinion and

Order. The parties filed a joint status report on December 27, 2018 (docket entry no. 38)

proposing certain redactions which the Court has adopted. And so, the Court is reissuing its

Memorandum Opinion and Order, dated December 6, 2018, with the agreed-upon redactions

indicated by three consecutive asterisks within brackets ([* * *]).

MEMORANDUM OPINION AND ORDER

GRIGGSBY, Judge

I. INTRODUCTION

Plaintiff, MES Simulation & Training Corp. (“MES”), brought this post-award bid

protest action challenging the decision of the United States Marine Corps, Marine Corps Systems

Command (the “Marine Corps”) to award a contract for the Support Army Virtual Training

(“SAVT”) system issued by Program Manager Training Systems to Riptide Software, Inc.

(“Riptide”). The parties have filed cross-motions for judgment upon the administrative record,

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

generally Pl. Mot.; Def. Mot.; Def.-Int. Mot. MES has also filed a motion to supplement the

court record. See generally Pl. Mot. to Supp.

For the reasons discussed below, the Court: (1) GRANTS MES’s motion to supplement

the court record; (2) DENIES MES’s motion for judgment upon the administrative record; (3)

GRANTS the government’s and Riptide’s cross-motions for judgment upon the administrative

record; and (4) DISMISSES the complaint.

II. FACTUAL AND PROCEDURAL BACKGROUND1

A. Factual Background

In this post-award bid protest matter, MES challenges the decision by the Marine Corps

to award a contract for a SAVT system to provide training for Joint Tactical Air Controller

Forward Air Controllers and Forward Observers in the employment of Supporting Arms and

Close Air Support (the “SAVT Contract”) to the defendant-intervenor in this matter, Riptide.

Compl. at ¶ 1.

Specifically, MES challenges the Marine Corps’ evaluation process in connection with

the award of the SAVT Contract to Riptide. See generally id. As relief, MES requests that the

1

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

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

(“Pl. Mot.”); plaintiff’s memorandum in support of its motion for judgment upon the administrative

record (“Pl. Mem.”); and the government’s and Riptide’s respective cross-motions for judgment upon the

administrative record (“Def. Mot.” and “Def.-Int. Mot.”). Except where otherwise noted, all facts recited

herein are undisputed.

2

Court: (1) declare that the Marine Corps violated the material terms of the RFP by failing to

award the SAVT Contract to MES; (2) grant permanent injunctive relief directing the Marine

Corps to award the SAVT Contract to MES, or to re-evaluate MES’s and Riptide’s proposals; (3)

alternatively, grant permanent injunctive relief directing the Marine Corps to conduct meaningful

discussions with offerors and re-evaluate the proposals based on those discussions; and (4) award

MES costs, including bid and proposal costs and reasonable attorney’s fees. Id. at Prayer for

Relief.

As background, MES is a small business and technical services corporation located in

Christmas, Florida. Compl. at ¶ 14. MES is the incumbent contractor for the Marine Corps’

requested logistic services training simulator (“Task Order 1”). Compl. at ¶ 14; Def. Mot. at 2.

MES is not the incumbent contractor for the requested simulator modifications for the SAVT

system (“Task Order 2”). Compl. at ¶ 14; Def. Mot. at 2-3.

1. The RFP

On August 25, 2017, the Marine Corps issued Request for Proposal No.

M6785417R7826 (the “RFP”) seeking proposals for operating and monitoring the SAVT system.

AR Tab 1 at 1. The RFP sought proposals for an indefinite delivery/indefinite quantity (“IDIQ”)

contract with a base ordering period of 60 months. Id. at 2. Under the terms of the RFP, the

SAVT Contract would be issued for an amount of up to $49 million, or until the basic ordering

period ends, whichever comes first. Id. The RFP also involves a “100% Small Business set-

aside.” Id.

The RFP contains two task orders. See generally id. Each task order has a Performance

Work Statement (“PWS”) outlining its respective requirements. Id. at 63-115 (providing the

PWS for Task Order 1); see also id. at 116-64 (providing the PWS for Task Order 2).

The Performance Work Statement for Task Order 1 provides that the contractor “shall

provide all labor, materials, consumables, equipment, tools, repairs, tech data, test equipment,

and transportation necessary to operate/maintain the training systems and equipment,” as well as

recurring projects such as janitorial support. Id. at 98. Task Order 1 also requires “daily

operation and maintenance” and a period of performance that “will end 12 months after” Task

Order 1 is awarded. Id. at 98, 114.

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Of particular relevance here, Task Order 2 requires that offerors provide hardware and

software modifications to the SAVT system. Id. at 122; Def. Mot. at 6. Task Order 2’s

Performance Work Statement provides that “[t]he Period of Performance will end 18 months

after Task Order 002 date of award.” AR Tab 1 at 163; see also id. at 541 (providing a Comment

Resolution Matrix which states that the period of performance for Task Order 2 is “18 mos.”).

With regards to the evaluation of responsive proposals, the RFP provides that the Marine

Corps will consider four evaluation factors: (1) Training Device Operators Approach; (2)

Technical Approach; (3) Past Performance; and (4) Price. Id. at 56. The RFP further provides

that the Marine Corps may award the SAVT Contract to an offeror other than the lowest priced

offeror. Id. The RFP also provides that the Training Device Operators Approach Factor is more

important than the Technical Approach Factor, and that the Technical Approach Factor is more

important than the Past Performance Factor. Id. In addition, the RFP provides that the non-price

evaluation factors, when combined, are significantly more important than price. Id.2

With regards to Factor 1, Training Device Operators Approach, the RFP provides that:

The Government will evaluate the Training Device Operators Approach for:

1. Roles and responsibilities proposed for Operators/Maintainers are comprehensive

and will result in successful performance.

2. Knowledge, Skills, Education, and Work experience for Operators proposed

demonstrate knowledge of the requirements.

3. Ability to successfully perform required services on day one of the contract.

4. Compensation Plan shall be evaluated for reflecting a clear understanding of work

to be and capability of the proposed compensation structure to obtain and keep

suitably qualified operators to meet mission objectives.

Id.

The RFP also provides that the Marine Corps’ Technical Evaluation Team (“TET”) must

assign each offeror a rating for the Training Device Operators Approach Factor to determine how

well the offeror’s proposal meets or exceeds the RFP’s requirements. Id. at 57. Specifically, the

RFP provides that offerors may be assigned a rating of either “outstanding,” “good,”

“acceptable,” “marginal,” or “unacceptable” under the Training Device Operators Approach

2

The RFP also makes clear that “as non-price factors qualitative distinctions become closer, price

increases in importance.” AR Tab 1 at 56.

4

Factor 2. Technical

Acceptable—Moderate Risk Acceptable—Low Risk

Approach

Factor 3. Past

Substantial Confidence Substantial Confidence

Performance

AR Tab 16 at 1178, 1225.

i. Evaluation Of The Training Device Operators Approach Factor

With regards to MES’s proposal, the TET assigned two weaknesses and one strength

under the Training Device Operators Approach Factor. AR Tab 16 at 1178. But, the TET

determined that the identified weaknesses in MES’s proposal were low risk, and that “[one

weakness] likely could be resolved at the Post Award Conference and documented in the

meeting minutes.” Id. at 1179.

With regards to Riptide’s proposal, the Marine Corps’ TET assigned one weakness and

one strength for the Training Device Operators Approach Factor. Id. at 1225. The

administrative record shows that the TET assigned the weakness:

[B]ecause Riptide’s proposal assigns [* * *]. It is clear from the proposal that

Riptide can successfully hire employees independently . . . .

Id. at 1225. In addition, the TET assigned the proposals submitted by MES and Riptide a

strength each “in the area of Knowledge, Skills, Education, and Work experiences for proposing

Operators” under the Training Device Operators Approach Factor. Id. at 1179, 1226.

ii. Evaluation Of The Technical Approach Factor

With regards to the Technical Approach Factor, the TET evaluated MES’s proposal as

“acceptable,” but with a moderate risk. AR Tab 16 at 1178. In this regard, the Marine Corps

assigned MES’s proposal three weaknesses, one medium risk, two low risk, and one strength. Id.

at 1187, 1196-98. The administrative record shows that the weakness assigned to MES’s

proposal centered on “[* * *],” and specifically, the “[* * *].” Id. at 1196. In this regard, the

TET noted:

These three Weaknesses, when considered together, present a MEDIUM Risk to

the Government, and, as a result, the TET assesses them together as a Weakness

because [* * *].

7

Id. The TET also assigned one strength for MES’s “[* * *]” proposal and the TET found the

proposal to be advantageous to the government. Id. at 1197-98. And so, the TET determined

that, “[b]ased on the associate technical approach, the labor categories proposed by MES [in its

proposal] reflect the expected competencies and skill required to successfully perform the

requirements of TO 002 PWS.” Id. at 1195.

With regards to the evaluation of Riptide’s proposal under the Technical Approach

Factor, the TET assigned one weakness, which was low risk, and no strengths. Id. at 1233. In

this regard, the administrative record shows that the TET assigned the weakness because “[t]he

proposed hours and distribution of the hours is insufficient to successfully perform the logistics

related tasks.” Id. The administrative record also shows that Riptide’s proposal included labor

hours for [* * *], with the hours allocated in specific labor categories for the first [* * *] of

performance. AR Tab 13 at 945-49. Although the TET assigned a weakness to Riptide’s

proposal, the TET assessed this weakness to be a “low risk,” because “Riptide does propose

various labor categories which may have the requisite skills to provide the [* * *]. . . .” AR Tab

16 at 1242. And so, the TET ultimately determined that the “proposed labor mix and hours are

likely to result in successful performance of the PWS requirements” for Task Order 2. Id. at

1242 (emphasis original).

The TET also addressed why it did not award Riptide’s proposal a strength for proposing

an accelerated performance schedule under the Technical Approach Factor. Id. at 1242. In this

regard, the TET found that:

Additionally, it appears that Riptide is proposing to perform certain work faster

than the expected 18-month period of performance, which, if true, might be

considered beneficial to the Government. However, other than date references in

Riptide’s proposal (in Riptide’s TO 0002 Summary, Riptide provides a breakout

for [* * *], and provides the notation [* * *]), Riptide does not describe an approach

that would achieve those results. So, for example, the TET did not identify a section

of the proposal that described how Riptide would concurrently perform tasks.

Because Riptide does not explicitly propose to complete Task Order 0002 tasks in

an [* * *], nor is this explained elsewhere in Riptide Volume II, Section 1 or Section

2 proposal, this leaves the TET with an ambiguity that should be clarified, if

applicable, at a Post Award Conference.

Id. at 1242.

8

iii. Evaluation Of The Past Performance Factor

With regards to the Marine Corps’ evaluation of the proposals submitted by MES and

Riptide under the Past Performance Factor, the Marine Corps’ PPET determined that there was a

“high expectation that [both MES and Riptide] will successfully perform the requirements of the

RFP.” AR Tab 16 at 1199, 1244. In this regard, the PPET found that MES has successfully

performed as the incumbent for the SAVT Contract and successfully performed other contracts

of similar scope, magnitude, and complexity. Id. at 1199. The PPET also determined that

Riptide has “proven successes . . . in the area of training simulator and training systems.” Id. at

1243. And so, the PPET evaluated these offerors’ proposals equally under the Past Performance

Factor. Id. at 1154, 1199, 1243-44.

iv. Evaluation Of Price

Lastly, with respect to the Price Factor, the administrative record shows that MES

proposed a total evaluated price of $3,191,228 and that Riptide proposed a lower total evaluated

price of $2,818,414. AR Tab 18 at 1299. And so, the Marine Corps determined that Riptide’s

total evaluated price was the lowest of all acceptable proposals. Id.

3. Best Value Determination And Award To Riptide

After conducting an evaluation of all responsive proposals, the Marine Corps’ Source

Selection Authority (“SSA”) performed a best value determination and determined that “Riptide

provide[d] the best overall value to the Government.”4 AR Tab 18 at 1299. On March 23, 2018,

the SSA issued a Source Selection Decision Memorandum (“SSA Memo”) explaining the

agency’s decision to award the SAVT Contract to Riptide. See generally id. In the SSA Memo,

the SSA determined that “while Riptide’s proposal does not offer any strengths [for the

Technical Approach Factor],” the proposal does provide the “lowest risk of unsuccessful

performance” to the Marine Corps. Id. at 1305. The SSA Memo also states that, “Riptide is

assessed as more advantageous than MES” under the Technical Approach Factor, even though

MES and Riptide received the same rating for this factor, because “the risk that MES would be

4

The RFP provides that: “[a]ward will be made to the proposal that results in the best value to the

Government as defined in [Federal Acquisition Regulation] 2.101 on the basis of a tradeoff between

technical merit, past performance, compensation plan, and price.” AR Tab 1 at 56.

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unable to successfully perform the [* * *] is an unnecessary risk in comparison to Riptide’s

proposal.” Id.

In addition, the SSA determined that “not only is Riptide the most highly rated proposal

amongst all Offers for non-price Factors, it also provides the lowest [total] evaluated [price].”

Id. at 1310. In this regard, the SSA determined that “Riptide provided a slightly superior and

more advantageous Factor 1 Training Device Operators Approach . . . as a result of their having

proposed [* * *]. . . . [and that] Riptide distinguished themselves as slightly more advantageous

to the Government than MES [for the Technical Approach Factor].” Id. at 1309. The SSA also

determined that “[t]here were no qualitative distinctions between the Past Performance of . . .

MES and Riptide.” Id. at 1309. And so, the SSA concluded that “the Best Value to the

Government is straightforward as the Government does not pay more for less advantageous non-

price proposals” and the SSA recommended that the Marine Corps award the SAVT Contract to

Riptide. Id. at 1298-99, 1310.

4. The Small Business Administration And GAO Protests

Following the award of the SAVT Contract to Riptide, MES filed a size protest with the

Small Business Administration (“SBA”) on March 30, 2018. AR Tab 29 at 1561. In that

protest, MES alleged that “Riptide has no applicable relevant expertise to do this work and they

are totally dependent” upon a third party. Id. MES also alleged that Riptide did not qualify as a

small business. Id.; Def. Mot. at 17. On April 26, 2018, the SBA denied MES’s size protest.

AR Tab 29 at 1571.

On April 2, 2018, MES initiated a protest before the United States Government

Accountability Office (“GAO”) regarding the award of the SAVT Contract to Riptide. See

generally AR Tab 24. On May 14, 2018, MES filed a supplemental GAO protest alleging,

among other things, that Riptide violated the RFP’s requirements by proposing a period of

performance for Task Order 2 of [* * *] identified in the Performance Work Statement for Task

Order 2. AR Tab 32 at 2849; Def. Mot. at 18. On July 10, 2018, the GAO denied MES’s

protest. AR Tab 39 at 2960-71; MES Simulation & Training Corp., B-416210, B-416210.2,

2018 WL 3641320 (Comp. Gen. July 10, 2018).

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B. Procedural History

On July 18, 2018, MES filed the complaint in this bid protest matter. See generally

Compl. On July 19, 2018, Riptide filed an unopposed motion to intervene, which the Court

granted on July 23, 2018. See generally Mot. to Intervene; Order, dated July 23, 2018. On July

23, 2018, the Court entered a Protective Order in this matter. See generally Protective Order.

On August 14, 2018, the government filed the administrative record. See generally AR.

On August 15, 2018, MES filed a motion to supplement the court record. See generally Pl. Mot.

to Supp. On August 21, 2018, MES filed a motion for judgment upon the administrative record

and memorandum in support of its motion for judgment upon the administrative record. See

generally Pl. Mot.; Pl. Mem. On August 22, 2018, the government filed a response and

opposition to MES’s motion to supplement the court record. See generally Def. Opp. On

August 24, 2018, MES filed a reply in support of its motion to supplement the court record. See

generally Pl. Reply to Mot. to Supp.

On September 4, 2018, the government and Riptide filed their respective cross-motions

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

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

On September 13, 2018, MES filed a response and opposition to the government’s and

Riptide’s respective cross-motions for judgment upon the administrative record and a reply in

support of its motion for judgment upon the administrative record. See generally Pl. Resp. On

September 21, 2018, the government and Riptide filed their respective reply briefs in support of

their cross-motions for judgment upon the administrative record. See generally Def. Reply;

Def.-Int. Reply.5

These matters having been fully briefed, the Court resolves the pending motions.

5

In its motion for judgment upon the administrative record, MES requests that the Court hold oral

argument on the parties’ cross-motions. Pl. Mot. at 2. A careful review of the administrative record and

the parties’ briefs demonstrates that oral argument is not warranted to resolve MES’s claims. And so, the

Court resolves the pending motions based upon the parties’ filings and the administrative record. See

RCFC 1; RCFC 52.1.

11

III. LEGAL STANDARDS

A. Bid Protest Jurisdiction

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

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

proposals for a proposed contract or to a proposed award or the award of a contract or any

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

procurement.” 28 U.S.C. § 1491(b)(1). This Court reviews agency actions in bid protest matters

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

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

Procedure Act standard, an award may be set aside if “‘(1) the procurement official’s decision

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

procedure.’” Banknote Corp. of Am., Inc. v. United States, 365 F.3d 1345, 1351 (Fed. Cir. 2004)

(quoting Impresa Construzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324, 1332

(Fed. Cir. 2001)). In this regard, the United States Court of Appeals for the Federal Circuit has

explained that:

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

agency provided a coherent and reasonable explanation of its exercise of discretion,

and the disappointed bidder bears a heavy burden of showing that the award

decision had no rational basis. When a challenge is brought on the second ground,

the disappointed bidder must show a clear and prejudicial violation of applicable

statutes or regulations.

Id. at 1351 (internal citations omitted).

In reviewing an agency’s procurement decision, the Court also recognizes that the

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

Park, Inc. v. Volpe, 401 U.S. 402, 415 (1971), abrogated on other grounds by Califano v.

Sanders, 430 U.S. 99 (1977) (citations omitted). In addition, the Court should not substitute its

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

And so, “‘[t]he protestor must show by a preponderance of the evidence that the agency’s actions

were either without a reasonable basis or in violation of applicable procurement law.’” Gentex

Corp. v. United States, 58 Fed. Cl. 634, 648 (2003) (quoting Info. Tech. & Applications Corp. v.

United States, 51 Fed. Cl. 340, 346 (2001), aff’d, 316 F.3d 1312 (Fed. Cir. 2003)).

12

This standard “is highly deferential.” Advanced Data Concepts, Inc. v. United States,

216 F.3d 1054, 1058 (Fed. Cir. 2000). As long as there is “a reasonable basis for the agency’s

action, the court should stay its hand even though it might, as an original proposition, have

reached a different conclusion . . . .” Honeywell, Inc. v. United States, 870 F.2d 644, 648 (Fed.

Cir. 1989) (citation omitted). But, if “the agency entirely fail[s] to consider an important aspect

of the problem [or] offer[s] an explanation for its decision that runs counter to the evidence

before the agency,” then the resulting action lacks a rational basis and, therefore, is defined as

“arbitrary and capricious.” Ala. Aircraft Indus., Inc.-Birmingham v. United States, 586 F.3d

1372, 1375 (Fed. Cir. 2009) (quoting Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins.

Co., 463 U.S. 29, 43 (1983)) (internal quotation marks omitted).

B. Best Value Determinations

This Court affords contracting officers a great deal of discretion in making contract

award decisions, particularly when the contract is to be awarded to the offeror that will provide

the best value to the government. See TRW, Inc. v. Unisys Corp., 98 F.3d 1325, 1327-28 (Fed.

Cir. 1996); E.W. Bliss Co. v. United States, 77 F.3d 445, 449 (Fed. Cir. 1996); Lockheed Missiles

& Space Co. v. Bentsen, 4 F.3d 955, 958-59 (Fed. Cir. 1993); Banknote Corp. of Am. v. United

States, 365 F.3d 1345, 1355-56 (Fed. Cir. 2004). The Court has held that the government’s best

value determination should not be disturbed, if the government documents its analysis and

includes a rationale for any business judgments and trade-offs made in reaching that decision.

See Blackwater Lodge & Training Center, Inc. v. United States, 86 Fed. Cl. 488, 514 (2009).

And so, a decision to award a contract is least vulnerable to challenge when that decision is

based upon a best value determination. PlanetSpace, Inc. v. United Sates, 96 Fed. Cl. 119, 125

(2010).

C. Judgment Upon The Administrative Record

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

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

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

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

RCFC 56, “the existence of genuine issues of material fact does not preclude judgment on the

administrative record” under RCFC 52.1. Tech. Sys., Inc. v. United States, 98 Fed. Cl. 228, 242

13

(2011) (citations omitted); RCFC 56. Rather, the Court’s inquiry is whether, “given all the

disputed and undisputed facts, a party has met its burden of proof based on the evidence in the

record.” A & D Fire Prot., Inc. v. United States, 72 Fed. Cl. 126, 131 (2006).

D. Injunctive Relief

Under its bid protest jurisdiction, the Court “may award any relief [it] considers proper,

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

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

permanent injunction, the Court “considers: (1) whether . . . the plaintiff has succeeded on the

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

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

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

LLC v. United States, 389 F.3d 1219, 1228-29 (Fed. Cir. 2004) (citing Amoco Prod. Co. v. Vill.

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

essentially the same as for a permanent injunction with the exception that the plaintiff must show

a likelihood of success on the merits rather than actual success.”); see also Centech Grp., Inc.,

554 F.3d at 1037. In this regard, the United States Court of Appeals for the Federal Circuit has

held that:

No one factor, taken individually, is necessarily dispositive. If a preliminary

injunction is granted by the trial court, the weakness of the showing regarding one

factor may be overborne by the strength of the others. If the injunction is denied,

the absence of an adequate showing with regard to any one factor may be sufficient,

given the weight or lack of it assigned the other factors, to justify the denial.

FMC Corp. v. United States, 3 F.3d 424, 427 (Fed. Cir. 1993) (citations omitted).

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

motion for permanent injunctive relief. Cf. Nat’l Steel Car, Ltd. v. Canadian Pacific Ry., Ltd.,

357 F.3d 1319, 1325 (Fed. Cir. 2004) (finding that a plaintiff who cannot demonstrate likely

success upon the merits cannot prevail upon its motion for preliminary injunctive relief). This

Court has also found success upon the merits to be “the most important factor for a court to

consider when deciding whether to issue injunctive relief.” Dellew Corp. v. United States, 108

Fed. Cl. 357, 369 (2012) (citing Blue & Gold Fleet, L.P. v. United States, 492 F.3d 1308, 1312

(Fed. Cir. 2007)). But, while success upon the merits is necessary, it is not sufficient alone for a

14

plaintiff to establish that it is entitled to injunctive relief. See Contracting, Consulting, Eng’g

LLC v. United States, 104 Fed. Cl. 334, 353 (2012) ((“Although plaintiff’s entitlement to

injunctive relief depends on its succeeding on the merits, it is not determinative because the three

equitable factors must be considered, as well.”) (citations omitted)).

IV. LEGAL ANALYSIS

The parties have filed cross-motions for judgment upon the administrative record

pursuant to RCFC 52.1 on the issues of whether the Marine Corps properly evaluated Riptide’s

proposal under the terms of the RFP and whether the Marine Corps conducted a reasonable best

value analysis. See generally Pl. Mem.; Def. Mot; Def.-Int. Mot. MES has also filed a motion to

supplement the court record. See Pl. Mot. to Supp.

MES argues in its memorandum in support of its motion for judgment upon the

administrative record that the Marine Corps did not conduct a reasonable evaluation of proposals

with respect to the award of the SAVT Contract because: (1) the administrative record does not

meet the standards of the Administrative Procedure Act (“APA”) for documentation of the

Marine Corps’ award decision; (2) the Marine Corps failed to properly evaluate Riptide’s

proposal under the RFP’s requirements; and (3) the Marine Corps failed to perform a reasonable

and proper trade-off analysis and best value determination. See Pl. Mem. at 13-30. MES also

requests that the Court supplement the court record with the declaration of its President, Naren

Shahani. See generally Pl. Mot. to Supp.

In their cross-motions for judgment upon the administrative record, the government and

Riptide counter that the Marine Corps’ decision to award the SAVT Contract to Riptide was

reasonable and in accordance with the terms of the RFP and applicable law. And so, the

government and Riptide request that the Court sustain the Marine Corps’ award decision. See

Def. Mot. at 23-35; Def.-Int. Mot. at 9-23.

For the reasons discussed below, the Court may consider the Declaration of Naren

Shahani because the declaration addresses the factors that the Court weighs in awarding

injunctive relief. In addition, the record evidence makes clear that the Marine Corps’ evaluation

of proposals in connection with the award of the SAVT Contract to Riptide was reasonable and

consistent with the requirements of the RFP. And so, the Court: (1) GRANTS MES’s motion to

supplement the court record; (2) DENIES MES’s motion for judgment upon the administrative

15

record; (3) GRANTS the government’s and Riptide’s cross-motions for judgment upon the

administrative record; (4) DISMISSES the complaint.

A. The Court Grants MES’s Motion To Supplement The Court Record

As a preliminary matter, the Court grants MES’s motion to supplement the court record

with the declaration of Naren Shahani. In its motion to supplement the court record, MES

requests that the Court include the declaration of its President, Naren Shahani, in the court record

for this matter to support its request for injunctive relief. Pl. Mot. to Supp. at 1. As MES

correctly observes in its motion to supplement the court record, this Court recognizes a

distinction between the court record and the administrative record in bid protest matters. Pl.

Mot. to Supp. at 5. Generally, the court record includes evidence that may not necessarily be in

the administrative record, such as evidence regarding harm to a plaintiff or to the government, or

other evidence pertaining to the injunctive relief factors. See, e.g., AshBritt, Inc. v. United States,

87 Fed. Cl. 344, 366-67 (2009) (“In general, it is appropriate to add evidence pertaining to

prejudice and the factors governing injunctive relief to the record in a bid protest—not as a

supplement to the AR, but as part of this Court’s record.”).

In this case, a careful reading of the Shahani Declaration shows that the declaration

addresses MES’s request for injunctive relief and the injunctive relief factors that the Court

should consider. Given this, the Court GRANTS MES’s motion to supplement the court record

with the declaration of Naren Shahani.

B. The Administrative Record Satisfies The APA Standard For Documentation

Turning to the substance of MES’s claims, the Court must reject MES’s claim that the

administrative record in this matter is insufficient, because it contains no explanation regarding

the Marine Corps’ evaluation of, and decision not to exclude, Riptide’s proposal due to the

accelerated performance schedule in the proposal. Pl. Mem. at 13-16. It is well-established that

an administrative record is sufficiently clear if “the agency’s path forward may reasonably be

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

And so, in this case, the administrative record must contain supporting documentation to explain

the ratings that the Marine Corps assigned to Riptide’s proposal in connection with the

evaluation process for the SAVT Contract. AshBritt, Inc. v. United States, 87 Fed. Cl. 344, 370

(2009); see also Fla. Power & Light Co. v. Lorion, 470 U.S. 729 (1985).

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A careful review of the administrative record shows that the record evidence in this case

satisfies the aforementioned standard for documentation. Specifically, the administrative record

contains detailed reports from the Marines Corps’ TET and PPET regarding the agency’s review

of responsive proposals. See generally AR Tab 16. These reports describe the evaluation factors

under the RFP and the basis for the ratings assigned by the Marine Corps to each responsive

proposal—including Riptide’s proposal—during the agency’s evaluation process. Id.

The administrative record also shows that the Marine Corps carefully evaluated Riptide’s

accelerated schedule for performing the SAVT Contract. In this regard, the record evidence

shows that the TET’s report determined that:

Riptide proposes a labor category of [* * *]. The proposed hours and distribution

of the hours is insufficient to successfully perform the logistics related tasks.

AR Tab 16 at 1233. The administrative record also shows that the Marine Corps’ TET assessed

Riptide’s proposed labor mix and hours as “a low risk” to the government. Id. at 1233, 1240.

Specifically, the administrative record further shows that:

[T]he TET has reviewed the labor mix and hours in Riptide’s proposal and

determined that there is risk of unsuccessful performance resulting from the

misalignment of labor mix and hours. This presents a LOW Risk to the

Government as the development and delivery of the required Contract Deliverable

Reports (CDRLs) may be delayed, which may result in non-fulfillment of entry

criteria for CPR and ultimately, and delay the delivery schedule for the SAVT

modifications.

AR Tab 16 at 1242. And so, the record evidence shows that the Marine Corps ultimately

determined that the “proposed labor mix and hours are likely to result in successful performance

of the PWS requirements.” Id. (emphasis original).6 Given this evidence in the administrative

6

The TET also determined that:

[I]t appears that Riptide is proposing to perform certain work faster than the [* * *] period

of performance, which, if true, might be considered beneficial to the Government.

However, other than date references in Riptide’s proposal (in Riptide’s TO 0002 Summary,

Riptide provides a breakout for [* * *]), Riptide does not describe an approach that would

achieve those results. So, for example, the TET did not identify a section of the proposal

that described how Riptide would concurrently perform tasks. Because Riptide does not

explicitly propose to complete Task Order 0002 tasks in an [* * *], nor is this explained

elsewhere in Riptide Volume II, Section 1 or Section 2 proposal, this leaves the TET with

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record, MES has not shown that the administrative record is insufficient with respect to the

Marine Corps’ evaluation of Riptide’s proposed accelerated schedule for performance. State

Farm Mut. Auto Ins. Co., 463 U.S. at 43.

C. The Marine Corps Reasonably Evaluated Riptide’s Proposal

MES’s objections to the Marine Corps’ evaluation of Riptide’s proposal with regards to

the Technical Approach Factor are also unsubstantiated by the record evidence. In this regard,

MES challenges the Marine Corps’ decision to award the SAVT Contract to Riptide because,

Riptide did not propose using the entire 18 months of performance for Task Order 2 and Riptide

did not explain its proposed accelerated schedule. See Pl. Mem. at 16, 20. MES also argues that

the Marine Corps treated other offerors who proposed an accelerated schedule differently than

Riptide. See Pl. Mem. at 25. For the reasons discussed below, MES’s claims lack evidentiary

support.

1. The RFP Does Not Require That

Offerors Use All 18-Months For Performance

First, the record evidence in this matter does not support MES’s claim that the RFP

requires that offerors propose a schedule that utilizes the entire 18-month period of performance

for the SAVT Contract. AR Tab 1 at 163, 536, 541. In this regard, it is undisputed in this matter

that the RFP provides that: “The Period of Performance [of the SAVT Contract] will end 18

months after Task Order 002 date of award.” Id. at 163. While this language clearly establishes

an 18-month period to complete performance, the language in the RFP does not expressly require

that offerors use the entire 18 months of performance to satisfy the RFP’s requirements. Id. at

163. In fact, as the government correctly argues in its cross-motion for judgment upon the

administrative record, the 18 month period of performance under the terms of the RFP represents

an end date for completing performance of the SAVT Contract. See Def. Mot. at 29. And so, the

Court reads the RFP to provide that the offerors have up to 18 months to complete performance

of the SAVT Contract and that a shorter period of performance would not run afoul of the terms

of the RFP.

an ambiguity that should be clarified, if applicable, at a Post Award Conference.

AR Tab 16 at 1242.

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The Court’s reading of the RFP is reinforced by the questions and answers exchanged

between Riptide and the Marine Corps during the solicitation process. Specifically, the record

evidence shows that Riptide submitted a request for clarification regarding the performance

period for the RFP stating that: “[i]t is unclear if [the performance period is] supposed to be for

the duration of the 4 modification activities only or for the full 5 year [period of performance].”

AR Tab 1 at 536. The Marine Corps responded to Riptide’s question by stating that the

performance period for the SAVT Contract is “the duration of the modifications” for Task Order

2. Id.; AR Tab 2 at 592. As the government persuasively argues, the period of time required to

complete the modifications required under Task Order 2 could be less than 18 months. Def.

Mot. at 29. And so, the Marine Corps’ answer that the performance period for the SAVT

Contract corresponds to the time needed to complete the required modifications shows that there

is no requirement in the RFP that offerors use the entire 18-month period to complete

performance of the SAVT system modifications.7

2. The Marine Corps Reasonably Evaluated

Riptide’s Proposal Under The Technical Approach Factor

Because the Court does not read the RFP to require that Riptide and other offerors

perform during all 18 months of the performance period for the SAVT Contract, MES’s claim

that the Marine Corps erred by failing to assign a material deficiency under the Technical

Approach Factor to Riptide’s proposal due to Riptide’s proposed accelerated schedule is

similarly unsubstantiated by the record evidence. Pl. Mem. at 17-18. As discussed above, the

RFP and the Marine Corps’ responses to questions during the procurement process make clear

that the performance period for the SAVT Contract is a period of up to 18 months. AR Tab 1 at

163. Because there is no requirement in the RFP that offerors use the entire 18-month period to

complete performance, MES has not shown that the Marine Corps erred in evaluating Riptide’s

proposal under the Technical Approach Factor.

7

This reading of the RFP is also supported by evidence in the administrative record regarding the

schedule that various offerors proposed. See generally AR Tab 16. Four offerors, including Riptide,

proposed either [* * *] or [* * *] month periods of performance. See AR Tab 16 at 1217, 1241, 1265-

66, 1290-91.

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3. Riptide Had No Obligation To Explain Its Proposed Schedule

For these same reasons, MES’s claim that Riptide was required to explain its proposed

accelerated schedule for performing the SAVT Contract is also without merit. The

administrative record makes clear that Riptide and other offerors had no obligation to explain the

schedules in their proposals. In this regard, the RFP provides that:

The Offeror shall complete a staffing plan for Task Orders 0001 and 0002 in

spreadsheet format . . . . The spreadsheet shall include . . . . [t]he number of hours

to be performed for each labor category for the Offeror . . . allocated per month

across a calendar year.

AR Tab 1 at 47-48. And so, the RFP requires only that offerors provide a staffing plan and the

number of hours to be performed for each labor category contemplated by the RFP with respect

to the performance schedule. Id. Given this, MES’s claim that Riptide had an obligation to

explain its proposed accelerated schedule is refuted by the plain terms of the RFP.

MES’s claim is also called into doubt by the evaluation criteria for the Technical

Approach Factor under the RFP. The RFP provides that the Marine Corps would evaluate the

Technical Approach Factor based upon the following criteria:

• [W]hether the proposed labor categories are appropriate to perform the PWS,

• [W]hether the proposed combination of hours and labor categories logically aligns

to the PWS requirements, and

• Whether the proposed labor mix and hours are likely to result in successful

performance of the PWS requirements.

Id. at 57. Notably, none of these evaluation criteria require an explanation of the length of the

proposed schedule of performance.

In addition, the administrative record shows that the Marine Corps appropriately

evaluated Riptide’s proposal based upon the aforementioned evaluation criteria for the Technical

Approach Factor. Specifically, the record evidence shows that the Marine Corps’ TET carefully

reviewed Riptide’s proposed labor categories and hours and determined that Riptide’s proposal

was “Acceptable - LOW Risk” under the Technical Approach Factor. AR Tab 16 at 1225, 1240-

42. The administrative record also shows that, in evaluating Riptide’s proposed labor categories,

the TET found that:

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Based on the associated technical approach, the labor categories proposed by

Riptide reflect the expected competencies and skill sets required to successfully

perform the requirements of TO 0002 PWS.

Id. at 1241. Similarly, in its evaluation of Riptide’s proposed combination of hours and labor

categories, the Marine Corps’ TET determined that:

Based on the allocation of the hours assigned to each labor category per month, and

the associated technical approach, the hours and labor categories are not logically

aligned and commensurate to the PWS requirements. . . . However, Riptide does

propose various labor categories which may have the requisite skills to provide the

[* * *] who likely would be able to prepare the required Contract Deliverable

Reports.

Id. at 1241-42.

A careful review of the administrative record also shows that the Marine Corps also

considered the impact of Riptide’s proposed accelerated schedule on successful performance.

The TET determined that:

[I]t appears that Riptide is proposing to perform certain work faster than the

expected 18-month period of performance, which, if true, might be considered

beneficial to the Government. However, other than date references in Riptide’s

proposal (in Riptide’s TO 0002 Summary, Riptide provides a breakout [* * *]),

Riptide does not describe an approach that would achieve those results. So, for

example, the TET did not identify a section of the proposal that described how

Riptide would concurrently perform tasks. Because Riptide does not explicitly

propose to complete Task Order 0002 tasks in [* * *] month period, nor is this

explained elsewhere in Riptide Volume II, Section 1 or Section 2 proposal, this

leaves the TET with an ambiguity that should be clarified, if applicable, at a Post

Award Conference.

Id. at 1242. And so, the TET report and other evidence in the administrative record makes clear

that the Marine Corps reasonably evaluated Riptide’s proposal, based upon the evaluation

criteria for the Technical Approach Factor, as required under the RFP.

4. MES’s Unequal Treatment Claim Is Unsubstantiated

MES’s claim that the Marine Corps treated certain offerors unequally with respect to

their proposed schedules for performing the SAVT Contract is similarly unsubstantiated by the

record evidence. Pl. Mem. at 25-27. In this regard, MES argues that the Marine Corps engaged

in unequal treatment of offerors because the agency assigned a deficiency under the Technical

Approach Factor to the proposals submitted by two other offerors that proposed schedules for

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completing performance of the SAVT Contract in less than 18 months—[* * *]. Id. But, a

careful review of the administrative record shows that the Marine Corps did not assign a

deficiency to these proposals because of the accelerated schedules put forward by these offerors.

Rather, the record evidence makes clear that the Marine Corps’ TET assigned a

deficiency to [* * *] proposal because it concluded that [* * *] “[did] not provide sufficient labor

categories or labor hours to successfully perform” and that the government “was unable to

understand the proposal.” AR Tab 16 at 1283. The administrative record also shows that the

Marine Corps’ TET assigned a deficiency to [* * *] proposal because the agency found that

“[* * *] proposal does not demonstrate an understanding of the RFP requirements.” Id. at 1256.

Given this evidence, the administrative record simply does not support MES’s claim that the

Marine Corps failed to treat [* * *] equally to Riptide with respect to the evaluation of the

schedules proposed by these offerors.

5. MES Has Not Shown That The Marine Corps Awarded

The SAVT Contract To Riptide With The Intent To Modify

MES’s claim that the Marine Corps awarded the SAVT Contract to Riptide with the

intent to later modify Riptide’s proposal also lacks support in the administrative record. Pl.

Resp. at 21. MES argues in its memorandum in support of its motion for judgment upon the

administrative record that the Marine Corps’ determination that “Riptide’s proposal has an

ambiguity that should be clarified, if applicable, at a Post Award Conference” should be

interpreted to mean that Riptide would be permitted to make changes to its proposal after the

award of the SAVT Contract. Id.; AR Tab 16 at 1242.

MES’s claim is belied by the plain terms of the RFP. Indeed, a review of the

administrative record shows that the RFP expressly allows for the post-award conference

referenced in the Marine Corps’ statement. Specifically, the RFP provides that “[w]ithin 30 days

of the start of performance, the awardee shall organize a Post Award Conference to be attended

by the Contracting Officer, [Contracting Officer’s Representative] and contractor personnel to

reconcile performance requirements . . . .” AR Tab 1 at 11. And so, the Marine Corps’ decision

to address the noted ambiguity in Riptide’s proposal during a post award conference is consistent

with the terms of the RFP. Id.

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D. The Government Conducted A Reasonable Best Value Determination

The Court is also unpersuaded by MES’s argument that the Marine Corps conducted an

irrational best value determination during the evaluation process for the SAVT Contract. As

discussed above, the record evidence shows that the Marine Corps reasonably and equally

evaluated all responsive proposals for the SAVT Contract pursuant to the terms of the RFP, and

that the agency ultimately determined that Riptide’s proposal offered the best value to the

government. See generally AR Tab 18. The Marine Corps’ best value determination is well-

supported by the administrative record.

In this regard, the agency’s best value determination is described in detail in the SSA

Memo, the TET report and the PPET report developed during the evaluation process for the

SAVT Contract. See generally id.; AR Tab 16. Specifically, the record evidence shows that the

Marine Corps conducted its best value determination by comparing the proposals submitted by

MES and Riptide. AR Tab 18 at 1298. Because the evaluation ratings for these two proposals

were very similar for the three non-price factors, the Marine Corps properly determined that

price became increasingly more important to determine the overall best value to the government.

See AR Tab 1 at 56.

There is no dispute in this matter that MES’s proposed price of $3,191,228 was higher

that Riptide’s proposed price of $2,818,414. AR Tab 18 at 1299. And so, the agency’s best

value determination that Riptide offered the lowest total evaluated price is fully consistent with

the terms of the RFP, which provides that “[t]he [RFP’s] non-price factors, when combined, are

significantly more important than price,” but “as non-price factors qualitative distinctions

become closer, price increases in importance.” AR Tab 1 at 56. Given this, the Court will not

set aside the agency’s sound determination. See Banknote Corp. of Am. v. United States, 365

F.3d 1345, 1355-56 (Fed. Cir. 2004).

E. MES Has Not Shown That It Is Entitled To Injunctive Relief

As a final matter, MES has not demonstrated that it is entitled to the injunctive relief that

it seeks in this matter. As discussed above, MES has not prevailed upon the merits of any of its

claims challenging the Marine Corps’ evaluation process for the SAVT Contract. It is well-

established that a plaintiff that has not actually succeeded upon the merits of its claims cannot

prevail upon a request for injunctive relief. Argencord Mach. & Equip., Inc. v. United States, 68

23

Fed. Cl. 167, 176 (2005). And so, the Court must DENY MES’s request for injunctive relief in

this matter.

V. CONCLUSION

In sum, MES has not shown that any of its claims regarding the Marine Corps’ evaluation

process for the SAVT Contract are supported by the administrative record. Rather, the record

evidence shows that the Marine Corps reasonably evaluated Riptide’s proposal for this contract,

that the Marine Corps treated all responsive offerors equally with respect to the schedule for

completing performance, and that the Marine Corps made a sound best value determination to

award the SAVT Contract to Riptide. While MES may understandably disagree with the Marine

Corps’ decision to award the SAVT Contract to Riptide, it simply has not shown that the

agency’s evaluation process and award decision were irrational or contrary to the terms of the

RFP. MES has shown, however, that it is appropriate to supplement the court record with the

Declaration of Naren Shahani.

And so, for the foregoing reasons, the Court:

1. GRANTS MES’s motion to supplement the court record;

2. DENIES MES’s motion for judgment upon the administrative record;

3. GRANTS the government’s and Riptide’s cross-motions for judgment upon the

administrative record; and

4. DISMISSES the complaint.

The Clerk shall enter judgment accordingly.

Each party shall bear their own costs.

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

considered protected information subject to the Protective Order entered in this matter on July

23, 2018. This Memorandum Opinion and Order shall therefore be filed UNDER SEAL. The

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

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

publication. The parties shall FILE a joint status report identifying the information, if any, that

24

they contend should be redacted, together with an explanation of the basis for each proposed

redaction on or before January 3, 2019.

IT IS SO ORDERED.

s/ Lydia Kay Griggsby

LYDIA KAY GRIGGSBY

Judge

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