Sigmatech, Inc. v. United States

In the United States Court of Federal Claims

No. 18-1425C

Filed: November 30, 2018

Redacted Version Issued for Publication: January 2, 20191

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

SIGMATECH, INC., *

*

Protestor, *

*

v. * Post-Award Bid Protest; Cross-

UNITED STATES, * Motions for Judgment on the

* Administrative Record; Disparate

Defendant, * Treatment; Best-Value Trade-Off;

* Organizational Conflict of Interest.

v. *

DIGIFLIGHT, INC., *

*

Defendant-Intervenor. *

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

Jon D. Levin, Maynard, Cooper & Gale, P.C., Huntsville, AL, for protestor. Of

counsel were J. Andrew Watson, W. Brad English, and Katherine E. McGuire,

Maynard, Cooper & Gale, P.C., Huntsville, AL.

Joseph E. Ashman, Trial Attorney, Commercial Litigation Branch, Civil Division,

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

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

Kirschman, Jr., Director, Commercial Litigation Branch, and Joseph H. Hunt, Assistant

1 This Opinion was issued under seal on November 30, 2018. The parties were asked to

propose redactions prior to public release of the Opinion. Defendant proposed redactions

related “to the content and evaluation of the proposal submitted by Systems &

Simulations, Inc.,” which was not a party in the above-captioned bid protest. Protestor

stated that protestor “concurs with the Government’s proposed redactions” and “proposes

no additional redactions.” Defendant-intervenor requested that the court redact “specific

tools and features” offered in defendant-intervenor’s quotation.

This Opinion is issued with some of the redactions that the parties proposed in response

to the court’s request. Words which are redacted are reflected with the notation:

“[redacted].”

Attorney General. Of counsel was Lieutenant Colonel Robert B. Nelson, Judge

Advocate, United States Army Legal Services Agency, Fort Belvoir, VA.

Christopher L. Lockwood, Wilmer & Lee, P.A., Huntsville, AL, for defendant-

intervenor. Of counsel were Jerome S. Gabig and Richard J.R. Raleigh, Jr., Wilmer &

Lee, P.A., Huntsville, AL.

OPINION

HORN, J.

On September 21, 2017, the Department of the Army, Army Contracting

Command – Redstone (the Army), issued Task Order Request for Quotation No. 2015P-

06 (the TORFQ), which is the solicitation at issue in the above-captioned bid protest. On

May 22, 2018, the Army awarded a task order, which became Contract No. W31P4Q-18-

A-0035 (the DigiFlight Task Order), under the TORFQ to DigiFlight, Inc. (DigiFlight), the

defendant-intervenor in the above-captioned bid protest. On September 18, 2018,

protestor, Sigmatech, Inc. (Sigmatech), filed a bid protest complaint in this court

challenging the Army’s award under the TORFQ to DigiFlight as being irrational, arbitrary

and capricious, an abuse of discretion, and otherwise not in accordance with law.

FINDINGS OF FACT

The parties have stipulated that the Sigmatech is the “incumbent contractor on the

task order the TORFQ seeks to replace.” According to Sigmatech’s motion for judgment

on the administrative record, on July 10, 2017, the Army initially issued the TORFQ “as a

small business ‘reserve.’” DigiFlight submitted a quotation in response to the July 10,

2017 TORFQ that Sigmatech asserts was issued as a “small business ‘reserve.’”

Sigmatech states that “Sigmatech protested the Agency’s decision to ‘reserve’ the

TORFQ” at the United States Government Accountability Office (GAO), and that the Army

subsequently took corrective action in response to Sigmatech’s bid protest at the GAO.

On September 21, 2017, the Army reissued the TORFQ, which was “competitively

solicited for award in accordance with the EXPRESS Blanket Purchase Agreements

(BPAs).” The parties have stipulated that the “AMCOM [Aviation and Missile Command]

EXPRESS program utilizes General Services Administration Federal Supply Schedule

contractors to acquire advisory and assistance services.” (capitalization in original). The

parties have stipulated that the resultant task order awarded under the TORFQ is to

consist of a one-year base period of performance and four one-year option periods of

performance. The Army’s Independent Government Cost Estimate anticipated the total

value of the resultant task order awarded under the TORFQ to be $88,358,911.64.2

The TORFQ’s performance work statement stated:

2 As discussed below, the Army’s Best Value and Fair and Reasonable Determination

indicated that the Army’s Independent Government Cost Estimate estimated the total

value of the resultant task order awarded under the TORFQ to be $92,730,115.53.

2

1.1 The Security Assistance Management Directorate (SAMD) has a

requirement for programmatic support to meet contractual obligations for

the procurement, delivery and sustainment of weapon systems entered into

via the Foreign Military Sales (FMS) process between the United States

Government (USG) and numerous foreign governments. The objective of

this Performance Work Statement (PWS) is to provide support for

implementation and sustainment of current program actions and future

programs.

1.2 The contractor shall provide programmatic services for independent

evaluation, assessments and analysis. The contractor shall provide

programmatic support necessary to monitor, coordinate and integrate FMS

[Foreign Military Sales] programs for our foreign allies. The contractor shall

supply the necessary personnel labor and travel, facilities and materials to

fulfill this objective except as identified in Paragraph 5.0., Government

Furnished Property (GFP).

Section 2.1.1 of the performance work statement stated that:

2.1.1.1 The contractor shall perform financial analyses, verification of FMS

monies and provide input and recommendations utilizing automated

databases and systems. (PS1)

2.1.1.2 The contractor shall track case funding consisting of country level,

case level, line level and requisition level data using databases. (PS1)

2.1.1.3 The contractor shall develop and utilize an automated system for

FMS financial data collection. This system should access multiple FMS

databases and work towards an output that standardizes FMS financial

status data reporting. (PS1)

In section 2.1.2 of the performance work statement, the performance work statement

required that the “contractor shall collect data such as repair status, repair cost, and repair

capability from Corpus Christi Army Depot (CCAD) and Letterkenny Army Depot (LEAD),

Security Assistance Management Information System and other databases in order to

update requisition and document status reports and to provide recommendations on

repair requirements.”

Under section 2.1.3, the TORFQ stated:

2.1.3.1 The contractor shall provide recommendations regarding financial

database programs for particular systems and in the establishment of future

databases for the budgetary support of the FMS cases. (PS1)

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2.1.3.2 The contractor shall provide maintenance of these financial

databases for all FMS requirements in order to provide status/information

as input to required reports. (PS1)

Section 2.2.2 of the performance work statement addressed “INPUTS BY OTHER

CONTRACTORS AND USG [United States government] AGENCIES.” (capitalization in

original). Under section 2.2.2, the “contractor shall perform cost estimating and analysis

of data prepared and furnished by other contractors and USG agencies” and “provide

analysis of the life cycle cost requirements for FMS programs.”

The TORFQ stated that award would be made on a best value basis based upon

evaluation of three criteria, which the TORFQ identified as being the Technical Expertise

factor, Risk Mitigation and Management factor, and Price factor. The TORFQ stated that

the Army would engage in a “tradeoff process.” The TORFQ defined best value as

meaning “the expected outcome of the acquisition that, in the Government’s estimation,

provides the greatest overall benefit in response to the requirement (FAR [Federal

Acquisition Regulation] 2.101).” The TORFQ stated that “‘[t]radeoff’ means that the

Government may accept other than the lowest priced quotation, where the decision is

consistent with the evaluation criteria and the Government reasonably determines that

the perceived benefits of a higher priced quotation warrant the additional price.” The

TORFQ also stated that the Technical Expertise factor and the Risk Mitigation and

Management factor were of equal importance, and that the Technical Expertise factor

and the Risk Mitigation and Management each were more important than the Price factor.

The Price factor was “not expected to be the controlling criterion in the selection, but its

importance will increase as the differences between the evaluation results for the other

criteria decrease.” According to the TORFQ, “‘Offeror’ means the entity or entities

submitting the quotation and is comprised of the Blanket Purchase Agreement (BPA)

Team Leader (Prime) or Direct Awardee, as well as BPA Team Members and

Subcontractors.”

The Army indicated in the TORFQ that the Army would evaluate the Technical

Expertise factor “based on how well the quotation demonstrates a clear understanding of

the requirements and deliverables, and on the Offeror’s expressed ability to successfully

perform.” The TORFQ stated that the Army would “assess the Offeror’s understanding of

the requirements and the technical methodology” and whether a quotation “thoroughly

demonstrates the Offeror’s understanding of the services to be delivered in order to meet

the requirements of the PWS and the Offeror’s ability to perform those services.”

According to the TORFQ, “a quotation may also establish its expertise in other ways such

as, but not limited to, combinations of stated capabilities and explanations of how

seemingly unrelated experiences have provided sufficient preparation to perform the

PWS requirements.” The TORFQ stated that the Army would assign the following ratings

to an offeror’s Technical Expertise factor:

Technical Expertise Ratings

Rating Description

4

Outstanding Quotation meets requirements and indicates an exceptional level

of expertise and an understanding of the requirements. Strengths

far outweigh any weaknesses. Risk of unsuccessful performance

is very low.

Good Quotation meets requirements and indicates a thorough level of

expertise and an understanding of the requirements. Strengths

outweigh any weaknesses. Risk of unsuccessful performance is

low.

Acceptable Quotation meets requirements and indicates an adequate level of

expertise and an understanding of the requirements. Strengths

and Weaknesses are offsetting or will have little or no impact on

contract performance. Risk of unsuccessful performance is

moderate.

Unacceptable Quotation does not meet requirements and contains one or more

deficiencies. If this criterion is rated as Unacceptable, additional

factors will not be evaluated and the quotation is not eligible for

award.

(emphasis and capitalization in original).

The TORFQ stated that the Army would evaluate the Risk Mitigation and

Management factor based on how well an offeror would mitigate and manage the

following three risks: “1. The ability to obtain and retain qualified personnel. 2. The ability

to bring together the right team to perform the PWS requirements. 3. The ability to

effectively manage the project.” The TORFQ stated:

The quotation’s description of Risk Mitigation and Management shall also

include any significant anticipated technical or management risks that the

Offeror believes may be encountered in performing the required work and

shall provide an effective plan for overcoming them.

The quotation shall identify any possible adverse impacts to existing

programs/projects and include an approach that ensures the successful

performance of the PWS while avoiding or mitigating such impacts on the

other programs/projects.

The TORFQ indicated that the Army would evaluate the Risk Mitigation and Management

factor “to assess completeness, feasibility, and how well it addresses the details of the

PWS” and would assign one of the following rating:

Risk Mitigation and Management Ratings

Rating Description

Outstanding Quotation meets requirements and indicates an exceptional Risk

Mitigation and Management approach. Strengths far outweigh any

weaknesses. Risk of unsuccessful performance is very low.

5

Good Quotation meets requirements and indicates a thorough Risk

Mitigation and Management approach. Strengths outweigh any

weaknesses. Risk of unsuccessful performance is low.

Acceptable Quotation meets requirements and indicates an adequate Risk

Mitigation and Management approach. Strengths and

weaknesses are offsetting or will have little or no impact on

contract performance. Risk of unsuccessful performance is

moderate.

Unacceptable Quotation does not meet requirements and contains one or more

deficiencies. If this criterion is rated as Unacceptable, additional

factors will not be evaluated and the quotation is not eligible for

award.

(emphasis and capitalization in original).

Regarding the third factor, the Price factor, the TORFQ stated that the Army would

use price analysis to determine the overall price reasonableness of a quotation. The

TORFQ defined reasonableness as “a fair and reasonable price; i.e., a price that a

prudent businessperson would pay for an item or service under competitive market

conditions, given a reasonable knowledge of the marketplace.”

The TORFQ also defined the terms strength, weakness, and deficiency. The

TORFQ stated that a strength was defined “as an aspect of an offeror’s quote that has

merit or exceeds specified performance capability requirements in a way that will be

advantageous to the Government during contract performance.” The TORFQ defined a

weakness “as any flaw in the quote that increases the risk of unsuccessful contract

performance,” and a deficiency as “any material failure of a quote to meet a Government

requirement or a combination of significant weaknesses in a quote that increases the risk

of unsuccessful contract performance to an unacceptable level.”

On October 2, 2017, the Army issued an amendment to the TORFQ, which

corrected typos in the TORFQ. On October 23, 2017, Sigmatech, DigiFlight, and Systems

& Simulations, Inc. (S3) submitted quotations in response to the TORFQ. In Sigmatech’s

quotation, Sigmatech stated that:

Our team is to provide expert labor; be knowledgeable of Security

Assistance (SA) and Foreign Military Sales (FMS) execution IAW [in

accordance with] US laws and USG regulations, policies and guides;

recognize the overarching mission, role, structure, and priorities of the

SAMD; and deliver capability to enable accomplishment of SAMD mission

effectively and efficiently.

Sigmatech’s quotation indicated that “Team Sigmatech” consisted of Sigmatech, Applied

Technologies Group, and PROJECTXYZ.

6

Sigmatech stated that “Repair & Return (R&R) programs are a key component of

security assistance programs and continue long after delivery of the major systems to

support sustainment.” Sigmatech asserted that “Team Sigmatech brings proven

methodologies to data collection, repair status, repair cost, and repair capability,

coordinating with depots and ensuring accurate database information.” According to

Sigmatech, “[o]ur ability to perform is further demonstrated through Sigmatech’s

coordination with USASAC [United States Army Security Assistance Command]-NC, the

SAMD R&R [Repair and Return] Office, and CCAD to manage the Royal Saudi Land

Forces Aviation Command (RSLFAC) Apache R&R program.”

In section 2.1.3 of Sigmatech’s quotation, which is titled “Update & Maintenance

of Databases,” Sigmatech asserted:

We recommend and support the development of SAMD-unique financial

databases, which monitor and report on implemented FMS case line

budgets and expenditure. Sigmatech assists in the development and

maintenance of FAST [Financial Analysis Support Tool] financials, which is

a compilation of financial reports drawn from GFEBS [General Fund

Enterprise Business System], PBAS [Program Budget Accounting System],

SOMARDS [Standard Operation & Maintenance Army Research &

Development System], and DIFS [Defense Integrated Financial System]

financial databases. During case execution, periodic financial analysis

provides performance and cost control monitoring and measurement, to

include variance and trend analyses. We currently support SAMD in

improving efficiencies throughout the FMS financial and accounting

processes by developing and implementing an enterprise portal (the COP

[Common Operating Picture]) to file and store FMS accounting data, reports

and case close-out files. We support the migration of legacy SA systems to

[redacted], a DoD [Department of Defense] system which will be common

across MILDEPs [military departments] (2.1.3.1). [redacted] will replace the

Army legacy systems for logistics and financial processes, such as CISIL

[Centralized Integrated System for International Logistics] and PBAS.

Sigmatech has provided SME [subject matter expert] support to the

development of this system, to include analysis of interfaces with the Army-

wide GFEBS accounting system.

(emphasis in original). Sigmatech stated that, “[u]nder the USASAC programmatic TO

[task order], we helped develop the [redacted]. [redacted] will provide the FMS customer

with a common and standard system for management of their FMS cases.”

In Sigmatech’s quotation, Sigmatech also stated “[w]e generate funding profiles

for customer baseline hardware and services requirements, O&S [operations and

support], maintenance concepts, associated support items, and CSPs [concurrent spare

parts]. We compare LOA [Letter of Agreement] data, current contracts, and Army stock

prices for consistency, reasonableness and fairness.” Sigmatech asserted:

7

In compliance with the primary financial management references, our team

performs FMS program analyses and cost estimating from pre-LOR [Letter

of Request], LOR, case development and execution through case closure

to identify program, financial, acquisition, and logistical requirements. This

ensures accurate information for financial reports and reviews. Sigmatech

demonstrated this expertise in the analysis of financial data in preparation

of an Indonesian Apache amendment that identified $7M of unused

transportation funding. These savings were reprogrammed to support other

case requirements. Sigmatech further demonstrates an ability to execute

this requirement through amendment of the largest RSLFAC [Royal Saudi

Land Forces Aviation Command] Apache FMS case (SR-B-WAL).

Sigmatech coordinated with the technical POCs [point of contacts], budget

personnel, and case managers to define and request funding for specific

FMS requirements to be included in the amendment.

(emphasis in original). Sigmatech’s proposed price, if all option periods of performance

were exercised, was $61,454,297.78.

In DigiFlight’s quotation, DigiFlight stated that “Team DigiFlight comprises over 35

years of International Program / FMS case experience and current support to 84 FMS

Partners and five international organizations.” DigiFlight indicated that “Team DigiFlight”

is comprised of “[redacted] SB [small business] Team Member: [redacted] SB

Subcontractors: [redacted] and [redacted] CAS, Inc. (hereafter, referred to as KBRwyle),

[redacted].” According to DigiFlight’s quotation, with the “fivefold increase in AMCOM

FMS cases over the past decade, an automated FMS financial data collection and

standardized reporting system, such as [redacted], is essential to the collection of data to

support budgetary processes for management of the $53.2B in undelivered value for over

1,000 SAMD-managed FMS cases.” DigiFlight stated:

Team DigiFlight uses [redacted] to collect financial transactions

(commitments, obligations, and disbursements), automate financial

analysis, generate standardized SAMD financial reports, and provide inputs

and recommendations based on the analysis and reports. Our Team

developed [redacted], maintains the underlying code, and

recommends [redacted] for future SAMD Division and Branch support.

As shown in Figure 2.1, we maintain and update [redacted] standardized

FMS financial reports by accessing access and extract financial data from

[redacted]. [redacted]-generated standardized reports provide automated

comparisons of source data to quickly identify anomalies, verify [redacted]

funding sources, and generate case funding and budget execution reports.

Our Team’s [redacted] analysts facilitate case funding tracking and report

at the country, case, line, and requisition levels. We collect, process, and

report [redacted] data to enhance financial case status.

(emphasis in original). DigiFlight alleged that “Team-developed [redacted] automatically

retrieves and merges critical FMS financial records from legacy databases, improves

8

accuracy and efficiency, and [redacted].” (emphasis in original). DigiFlight also stated that

“[o]ur approach is to continue to use our Team expertise, coupled with [redacted] data

collection methodology, to refine R&R processes and automatically collect WebRoR data

to track repair status, costs, and capabilities from CCAD, LEAD, and OEMs [original

equipment manufacturers]/industry.” According to DigiFlight’s quotation, DigiFlight’s

approach “is to manage thousands of assets through database systems that maintain

accountability by tracking and monitoring R&R assets from FMS Partner requests for

repair through return-of-country assets.”

Regarding its cost estimating and analysis process, DigiFlight stated that “[o]ur

Team develops FMS case-specific databases that identify the purpose of funding; key

milestones; PWD, MIPR [military intradepartmental purchase request], and JONO [job

order number] issuance; monthly fund allocations; and expenditures supporting FMS

budget and pricing.” DigiFlight stated that “Team DigiFlight uses our Team’s [redacted]

cost estimating analysts to conduct line-by-line reviews of LOR data provided by PMs

[program managers], OEMs, and USG agencies. We provide thorough analyses of life

cycle costs and recommendations during reviews with SAMD, FMS Partners, and prime

contractors.” DigiFlight proposed a total price of $63,001,142.24 if all option periods of

performance were exercised.

In S3’s quotation, S3 asserted that S3 was [redacted]. (emphasis and capitalization

in original). S3 proposed a price of [redacted] if all option periods of performance were

exercised.

The parties have stipulated that the Army completed its evaluation of the

quotations submitted by Sigmatech, DigiFlight, and S3 on January 24, 2018.3 The Army

completed a document titled “Evaluation Worksheet” for each of the quotations of

Sigmatech, DigiFlight, and S3, which evaluated the Technical Expertise and Risk

Mitigation and Management factors for each vendor’s quotation.4 In the Evaluation

Worksheet analyzing DigiFlight’s quotation, the Army determined that DigiFlight’s

Technical Expertise was outstanding. The Army found that DigiFlight’s technical approach

warranted five strengths, which were assigned under sections 2.1.1 and 2.1.3,5 2.1.2,

2.2.2, 2.3, and 2.4 of DigiFlight’s quotation, zero weaknesses, and zero deficiencies.

Under the strength assigned to sections 2.1.1 and 2.1.3, the Army stated:

3As discussed below, on June 4, 2018, Sigmatech filed a post-award bid protest at the

GAO challenging the Army’s award to DigiFlight under the TORFQ, and the Army issued

a Stop Work Order to DigiFlight on June 5, 2018.

4The Army’s Evaluation Worksheets were not signed, but the Army’s Best Value and Fair

and Reasonable Determination indicates that the Evaluation Worksheets were completed

by Jennifer Kaufman, Michele Crook, and John Philips. The Army’s Best Value and Fair

and Reasonable Determination does not provide the job titles of Jennifer Kaufman,

Michele Crook, and John Philips.

5The Army assigned DigiFlight a single strength for DigiFlight’s technical approach under

sections 2.1.1 and 2.1.3 of DigiFlight’s quotation.

9

The Offeror’s proposal details its response to the Task Order Request for

Quotation (TORFQ) and the USG Performance Work Statement’s

requirements for financial databases, analysis, tracking and use, as well as

the updates and maintenance of those databases. The Offeror has

developed [redacted]. The Offeror demonstrates superior understanding of

multiple SAMD databases necessary to support its proprietary [redacted]

system that provides an exceptional level of financial support by maintaining

and updating [redacted] standardized reports to aid in quickly identifying

anomalies and for case managers to use in managing and executing

Foreign Military Sales (FMS) case lines. The [redacted] system also

[redacted]. The Offeror utilizes legacy systems for reporting, maintaining the

underlying code for [redacted], and providing recommendations and plans

for future growth of the [redacted] system to support SAMD’s evolving

needs.

The Offeror’s specialized knowledge and experience in both legacy and

current data systems will be advantageous to SAMD in managing case line

and contract financials. The use of the legacy systems and the innovative

development of the [redacted] system will enable the Offeror to provide

critical recommendations to SAMD for future growth and exceptional

support for program resource control. The Offeror’s development and

maintenance of its innovative [redacted] system will also benefit SAMD by

exporting data from multiple SAMD financial databases and will provide a

consistent standardized report. The Offeror’s unique skillset with [redacted]

and legacy systems will increase mission efficiency of financial

management by reducing the time to pull reports from multiple systems,

simplifying data utilization, and providing automated financial solutions to

the FMS case managers.

Under the strength assigned to section 2.1.2 of DigiFlight’s quotation, the Army

stated:

The Offeror has provided extensive support to R&R programs for over three

decades. The Offeror has developed and will provide the [redacted]. The

Offeror also plans to combine the existing expertise with the [redacted] data

collection methodology to refine the R&R process to automatically collect

Web Repair of Repairable (WebRoR) data for better tracking from Corpus

Christi Army Depot (CCAD), Letterkenny Army Depot (LEAD), and industry.

The Offeror’s R&R experience will benefit SAMD by utilizing its innovative

[redacted] in conjunction with the WebRoR system to track and assist in the

management of repair requirements, requisition documentation, contract

information, and other major commands data to generate R&R reports. The

system along with the Offeror’s cited very extensive experience with the

10

SAMD R&R process will benefit SAMD by increasing the amount of data

and status information collected from CCAD, LEAD, and industry.

Regarding DigiFlight’s strength under section 2.2.2 of DigiFlight’s quotation, the

Army stated that DigiFlight demonstrated a “unique ability to perform cost analysis by

utilizing their [redacted] cost estimation analysts, which are personnel trained and certified

using cost analysis methods.” The Army stated that Team DigiFlight employees already

were trained in using [redacted] and asserted that such training “will improve the quality

of detailed cost assessments to SAMD.” As to DigiFlight’s strength under section 2.3, the

Army stated that DigiFlight utilizes [redacted] and that DigiFlight’s “scheduling tools will

benefit SAMD by having readily available access to [redacted] for the development,

maintenance, evaluation, and presentation of an IMS [Integrated Master Schedules] for

each FMS case.” Under the strength assigned to section 2.4 of DigiFlight’s quotation, the

Army noted that DigiFlight developed the [redacted], which is a [redacted]. The Army

asserted that the [redacted] “provides an exceptional management system for post-

meeting tracking.”

Under a section of the Evaluation Worksheet titled “RATIONALE FOR OVERALL

RATING (TECHINICAL EXPERTISE),” the Army stated that DigiFlight’s “superlative

understanding” of and ability to perform the tasks in the performance work statement

warranted a rating of outstanding under the Technical Expertise factor. (capitalization in

original). According to the Army, DigiFlight successfully addressed all of the Army’s

requirements in the performance work statement and demonstrated a capability to exceed

the requirements in the performance work statement “by providing existing proprietary

systems that support financial, R&R, scheduling, and programmatic tracking in support of

SAMD operations.”

Under the Risk Mitigation and Management factor, the Army assigned DigiFlight

three strengths, zero weaknesses, and zero deficiencies. The Army assigned DigiFlight

a strength under section 3.1 of DigiFlight’s quotation because of DigiFlight’s “exceptional

ability to have no loss of mission effectiveness, no loss of a documented knowledge base,

and no need of government funds to train new employees.” The Army assigned DigiFlight

a strength under section 3.2 because of DigiFlight’s ability to “bring together the right team

to perform the PWS requirements.” Under section 3.4, the Army assigned DigiFlight a

strength because DigiFlight “demonstrates a firm ability to staff OCONUS Field Office

Positions.”

The Army also provided comments on sections 2.3 and 3.4 of DigiFlight’s

quotation. Under section 2.3, the Army stated that DigiFlight had developed and is

currently maintaining an [redacted], and that DigiFlight’s experience with the [redacted]

reduces risk for the Security Assistance Management Directorate. Under section 3.4, the

Army asserted that DigiFlight “has experience anticipating and addressing challenges and

uses its extensive expertise to quickly and proactively handle various inherent

organization dynamics.” The Army assigned DigiFlight’s quotation a rating of outstanding

under the Risk Mitigation and Management factor. The Army stated that DigiFlight

“demonstrated an exceptional Risk Mitigation and Management approach and proven

11

ability to effectively manage the project and anticipated technical risk” and that the “[r]isk

of unsuccessful performance is very low.”

In the Army’s Evaluation Worksheet analyzing Sigmatech’s quotation, the Army

assigned Sigmatech one strength under the Technical Expertise factor, which was under

section 2.4 of the performance work statement. The Army assigned Sigmatech a strength

under section 2.4 because Sigmatech demonstrated that it could successfully host

meetings “at its local facility,” which the Army asserted “reduces the logistics required for

visitor access, ensuring adequate meeting space and media support equipment.” The

Army also provided four “[c]omments” on Sigmatech’s technical approach. The Army’s

comments included that, under section 2.1.1 of Sigmatech’s quotation, Sigmatech’s

“experience with various Foreign Military Sales (FMS) financial systems is useful to

SAMD in performing financial analysis and providing input and recommendations.” Under

section 2.1.1.3, the Army commented that Sigmatech’s quotation “cites experience with

the SAMD Saudi PATRIOT Program,” which the Army stated “is valuable to

understanding the importance of organization and financial tracking,” but “does not

support the PWS requirement of developing an automated database that provides

standardized reports from multiple systems.” Under section 2.1.2, the Army stated that

DigiFlight’s “experience with Repair and Return (R&R) will assist SAMD in the analysis of

the R&R process and will provide recommendations to expedite and streamline the return

of items to the FMS customer.” Under section 2.1.3 of the TORFQ, the Army commented

that Sigmatech “demonstrates experience in aiding in the development of a case

management system however; details on how it will perform these tasks in support of

SAMD are not provided.” The Army assigned Sigmatech’s quotation a rating of good

under the Technical Expertise factor because Sigmatech “addressed all of the PWS

paragraph requirements, stating it will meet all requirements and discussed how it plans

to meet requirements by providing examples of relevant experience associated with each

PWS paragraph.”

Under the Risk Mitigation and Management factor, the Army assigned Sigmatech’s

quotation three strengths, which were assigned to sections 3.2, 3.2,6 and 3.4. Under

section 3.2, Sigmatech received a strength for Sigmatech’s “ability to bring together the

right team to perform the PWS requirements.” The Army also assigned Sigmatech a

strength for its “ability to obtain and retain qualified personnel” and noted that Sigmatech

“maintains an exceptional 92% average retention rate.” Under section 3.4, the Army

assigned Sigmatech a strength for its ability to effectively manage “the project” because

Sigmatech “utilizes multiple processes and tools to minimize performance risk by

accurately tracking contract data and requirements.” The Army did not assign Sigmatech

any weaknesses or deficiencies or list any comments for Sigmatech’s Risk Mitigation and

Management factor. The Army rated Sigmatech’s Risk Mitigation and Management factor

as outstanding. According to the Army, Sigmatech “demonstrated a [sic] exceptional Risk

Mitigation and Management approach and proven ability to effectively manage the project

and anticipated technical risk.”

6The Army’s Evaluation Worksheet assigned two separate strengths to section 3.2 for

Sigmatech’s quotation.

12

The Army assigned [redacted] and a rating of [redacted] to S3’s Technical

Expertise factor and [redacted] and a rating of [redacted] to S3’s Risk Mitigation and

Management factor. The Army did not assign [redacted] to S3’s quotation.

On May 22, 2018, Army contracting officers Ashantas Cornelius and Sonya

Anderson issued the Army’s Best Value and Fair and Reasonable Determination. The

Best Value and Fair and Reasonable Determination provided “a summary of the

evaluations for the non-price factors,” which noted the strengths, weaknesses,

deficiencies, and ratings assigned to each vendor’s quotation under the Technical

Expertise and Risk Mitigation and Management factors. The Army’s Best Value and Fair

and Reasonable Determination also provided the following “summary comparison of the

Independent Government Cost Estimate (IGE) and the Offeror’s proposed prices:”

Offeror DigiFlight Sigmatech S3 IGE

Base Effort $59,928.57 $26,034.41 [redacted] $26,376.18

Option 1 $12,273,922.83 $12,184,307.52 [redacted] $16,725,207.35

Option 2 $12,429,121.33 $12,248,669.31 [redacted] $17,614,215.65

Option 3 $12,586,626.43 $12,294,440.10 [redacted] $18,527,784.27

Option 4 $12,746,460.43 $12,328,644.55 [redacted] $19,466,895.64

Option 5 $12,905,082.65 $12,372,201.89 [redacted] $20,369,636.44

Total $63,001,142.24 $61,454,297.78 [redacted] $92,730,115.53

According to the Best Value and Fair and Reasonable Determination, “[a]ll three offerors

quoted prices that were less than the IGE. DigiFlight’s total price is $63,001,142.24 which

is 32% lower than the IGE value of $92,730,115.53. Sigmatech’s total price is

$61,454,297.78 which is 34% lower than the IGE. S3’s price is [redacted] which is

[redacted] lower than the IGE.” The Best Value and Fair and Reasonable Determination

states that the “Contracting Officer has reviewed the pricing received in response to this

solicitation to determine price reasonableness. In accordance with FAR Subpart 15.404-

1(b)(2)(i) price analysis is considered substantiated based on this acquisition having

adequate price competition.”

In a section of the Best Value and Fair and Reasonable Determination titled “Best

Value Discussion,” the Army provided the following summary of the Army’s evaluation of

the vendors’ quotations:

Offeror DigiFlight Sigmatech S3

Technical Outstanding Good [redacted]

Expertise

Risk Mitigation & Outstanding Outstanding [redacted]

Management

Total Price $63,001,142.24 $61,454,297.78 [redacted]

13

(emphasis in original). The Army noted that DigiFlight received five strengths, no

weaknesses, and no deficiencies under its Technical Expertise factor and three strengths,

no weaknesses, and no deficiencies under its Risk Mitigation and Management factor,

which produces a total of eight strengths. The Army stated that Sigmatech received one

strength, no weaknesses, and no deficiencies under its Technical Expertise factor and

three strengths, no weaknesses, and no deficiencies under its Risk Mitigation and

Management factor, which produces a total of four strengths. Regarding S3’s quotation,

the Army stated that S3 received [redacted] under its Technical Expertise factor and

[redacted] under its Risk Mitigation and Management factor, which produces a total of

[redacted] strengths.

The Army’s Best Value and Fair and Reasonable Determination stated that all

vendors demonstrated a capability to perform the Army’s requirement, but asserted:

DigiFlight, however, provided quotations with superior responses describing

their capability to accomplish the PWS requirements and how they plan to

meet requirements through examples of relevant experience associated

with each PWS paragraph. They thoroughly described how they will

manage the project and addressed anticipated risks. DigiFlight can provide

the required support, with very low risk of unsuccessful performance.

In further analyzing the best value amongst all three Offerors based on

Technical Expertise, the strengths and weaknesses of each Offeror were

considered. DigiFlight exhibited numerous strengths; providing relevant

experiences and demonstrating exceptional understanding of the technical

requirements. DigiFlight had no weaknesses identified in the Technical

Expertise factor. DigiFlight demonstrated exceptional capability, experience

and understanding to successfully perform the requirements of the PWS

with virtually no risk to the Government. DigiFlight demonstrated

exceptional understanding in the use of current and legacy data systems.

DigiFlight developed and implemented numerous systems and databases

such as [redacted]. The implementation of these programs will significantly

aid in collecting, processing and refining, analyzing and tracking data. The

use of such innovative databases/systems will effectively redefine data

collection and processing.

The Army further stated that:

In regards to the Risk Mitigation and Management, DigiFlight and

Sigmatech both received the rating “Outstanding” indicating an exceptional

approach. Both demonstrated a thorough approach to Risk Mitigation and

Management. Both demonstrated proven techniques in their abilities to

obtain and retain qualified personnel, ability to bring together the right team

to perform PWS requirements and the ability to effectively manage the

project; thus providing continuous support and risk mitigation through the

performance of the PWS requirements.

14

(capitalization in original). Regarding the vendors’ proposed prices, the Army asserted:

Based upon a price comparison of the Offerors, all three Offerors total

quoted prices are lower than the Independent Government Estimate (IGE).

DigiFlight’s total quoted price of $63,001,142.24 is 2% higher than

Sigmatech’s total quoted price of $61,454, 297.78 and [redacted] lower than

S3’s quoted price of [redacted]. Sigmatech’s total quoted price of

$61,454,297.78 is [redacted] lower than S3’s quoted price of [redacted].

Due to its ratings of “Outstanding” for Technical Expertise and Risk

Mitigation and Management and the 2% price premium between it and

Sigmatech, DigiFlight’s proposal offers the best value to the Government.

The rationale for award is based on a rating of Outstanding in the area of

Technical Expertise, Outstanding in the area of Risk Mitigation and

Management, and fair and reasonable pricing all combined. DigiFlight

clearly stated the requirements and how they would perform the

requirements for both Technical Expertise and Risk Mitigation and

Management. This was demonstrated by specific examples for both

Technical Expertise and Risk Mitigation and Management.

(capitalization in original).

In a subsequent section in the Best Value and Fair and Reasonable Determination

titled “Trade-Off Discussion,” the Army noted that, under the evaluation criteria set forth

in the TORFQ, the Technical Expertise factor and the Risk Mitigation and Management

factor were of equal importance, and each factor was of greater importance than the Price

factor. (capitalization in original). The Army stated:

DigiFlight demonstrated a far superior approach in both Technical Expertise

and Risk Mitigation and Management. DigiFlight received the highest

ratings in the two most important criteria (Technical and Risk Mitigation and

Management), and only presented a slight disadvantage over Sigmatech in

the least important criteria of Price. DigiFlight’s significant strengths

exceeds specified performance capability requirements in a way that will be

advantageous to the Government during contract performance.

Consequently, DigiFlight’s strengths in Technical Expertise and Risk

Mitigation and Management support the Government’s payment of a higher

price premium and will provide the Government the best value.

The Army concluded that, “[b]ased on the review of the evaluations, the Contracting

Officer determines that DigiFlight provides the best value with all ratings and price

considered.”

On May 22, 2018, the Army sent a memorandum with a subject of “Explanation of

Basis of Award Decision, TORFQ: 2015P-6” to Sigmatech, which explained the Army’s

15

evaluation of Sigmatech’s quotation and stated that DigiFlight was the awardee under the

TORFQ. (capitalization in original). The Army asserted in the May 22, 2018 memorandum

that DigiFlight’s quotation provided the best value to the government. Also on May 22,

2018, the Army awarded the DigiFlight Task Order under the TORFQ to DigiFlight.

On June 4, 2018, Sigmatech filed a post-award bid protest at the GAO challenging

the Army’s award to DigiFlight under the TORFQ. In its post-award protest at the GAO,

Sigmatech argued that the Army “unreasonably downgraded Sigmatech’s Technical

Expertise rating by identifying strengths as ‘comments,’” “unreasonably downgraded

Sigmatech’s quotation under the Technical Expertise factor,” and unreasonably evaluated

DigiFlight’s quotation. Sigmatech also argued that the Army’s source decision document

was unreasonable. On June 5, 2018, the Army issued a Stop Work Order to DigiFlight.

On July 16, 2018, Sigmatech filed a supplemental bid protest at the GAO. In its

supplemental bid protest, Sigmatech asserted that the Army assigned strengths to

DigiFlight “but not to Sigmatech for the same or virtually identical features,” the Army

failed to consider an organizational conflict of interest (OCI), the Army improperly

emphasized the experience of DigiFlight’s subcontractors, the Army improperly relied on

“unexplained technology in differentiating Sigmatech and DigiFlight,” and that the “source

selection authority failed to properly document the source selection decision.” Regarding

the alleged organizational conflict of interest, the parties have stipulated that Sigmatech

alleged at the GAO that an employee, Eileen Whaley, “of DigiFlight’s subcontractor on

the task order, KBRWyle,[7] was a former agency employee who, in that capacity, was

involved with the programmatic requirements of the TORFQ, thereby allegedly placing

her in a position to provide DigiFlight competitively useful non-public information about

the Army’s needs under the TORFQ.”

On July 27, 2018, contracting officer Ashantas Cornelius issued a Determination

and Findings regarding the alleged OCI involving Eileen Whaley, in which Ms. Cornelius

concluded that an OCI did not exist. Regarding Eileen Whaley’s employment at the

Security Assistance Management Directorate, Ashantas Cornelius stated:

Ms. Eileen Whaley served as Deputy Director of the Security Assistance

Management Directorate (SAMD) from August 2013 to June 2017. In her

capacity as the Supervisory International Program Management Specialist,

Ms. Eileen Whaley oversaw Security Assistance Program matters under the

cognizance of the command. She participated equally with the Director in

directing, managing, and coordinating the total activities of the organization,

consisting of professional, technical, and support personnel through

subordinate supervisors. As such, her duties included reviewing directives,

7 In DigiFlight’s quotation, DigiFlight identifies “CAS, Inc. (hereafter, referred to as

KBRwyle)” as a subcontractor on Team DigiFlight. Other documents in the administrative

record refer to KBRWyle as “KBRWyle/CAS, Inc.” The parties have referred to

KBRWyle/CAS, Inc. as KBRWyle, and the court refers to KBRWyle/CAS, Inc. as

KBRWyle.

16

planning documents, and program and policy statements received from

high authority and interpreting and evaluating to determine merits of new

concepts of long plans proposed in the various fields of security assistance

management in their operation staff aspects.

(capitalization in original; internal references omitted). According to Ashantas Cornelius:

In response to questions asked of the Contracting Officer’s Representative

(COR) on the current task order, the COR explained that Ms. Eileen Whaley

served as the Deputy Director of SAMD during the initiation and submission

of the Contracts Requirement Packet (CRP) for the task order whose award

is being protested. Due to her position and level of management, Ms.

Whaley was not involved in the development or completion of the

documents. Due to her position, it has been confirmed that Ms. Whaley only

provided signatory authority in the approval of two Limited Sources

Justifications (LSJs) to allow non-competitive extension of the previous task

order while the protests of the new task order are resolved. Ms. Whaley

confirms via her declaration, that she did not discuss nor have any

knowledge of or involvement with the current acquisition process. The CRP

documents were completed by Ms. Susan Tier [sic] (COR)[8] with the

assistance of Jimmy D. Jones, Jr. (Chief of Business Management Office)

and Mr. Alex T. Lamar (Technical Monitor). The documents required for the

Contract Requirements Packet (CRP) are approved independently and

require signatures based upon the type of document requiring approval. Ms.

Whaley did not sign any of the documents for the current procurement.

Upon completion of individual documents, submission was made to the

respective Contract Specialist and/or Officer.

(capitalization in original; internal references and footnote omitted). In a footnote,

Ashantas Cornelius stated that the Contract Requirement Packet consisted of multiple

documents used in the TORFQ, including the performance work statement, task order

data requirements, Independent Government Cost Estimate, and evaluation criteria.

In the July 27, 2018 Determination and Findings, Ashantas Cornelius also stated

that Larry Jess, the Vice President for DigiFlight’s Huntsville operations, stated in a

declaration that “he was directly responsible for the quotation development effort and

exclusively interfaced with all of DigiFlight teammates,” including KBRWyle, when

preparing DigiFlight’s quotation. Ashantas Cornelius asserted that:

According to his declaration, Mr. Jess had no interaction with Ms. Whaley,

nor did she serve as representative for CAS [KBRWyle] in supporting the

quotation preparation. As shown by his declaration, Mr. Jess was not aware

that Ms. Eileen Whaley was a CAS employee until the filing of the

8In the November 1, 2018 declaration signed by Susan Teir and a September 25, 2018

email message sent by Susan Teir, Ms. Teir spells her name as “Teir,” rather than “Tier.”

17

supplemental protest. Moreover, CAS has confirmed, that Ms. Eileen

Whaley was hired on August 14, 2017. This is four days after the due date

for initial responses to the TORFQ, which were due on August 10, 2017.

Quotations were received as stated above; however, a protest was

received. Upon receipt of the protest, the Government did not take any

action regarding the quotations submitted in response to TORFQ 2015P-6

in August 2017. Due to the receipt of the protest and proposed corrective

action, the TORFQ was subsequently re-issued on September 21, 2017 as

full open and competition (which was a change from the previous TORFQ,

which was issued as a Small Business Reserve). DigiFlight submitted

quotes in response to both TORFQs. The Contracting Officer compared the

two quotations, finding minimal differences in the two quotations.

(capitalization in original; internal references omitted). Ashantas Cornelius concluded that

she had

found no evidence that Ms. Whaley had any involvement in the

development of the TORFQ PWS, or that she had access to or received

any competitively useful, proprietary, or source selection information

relating to the Programmatic Services Support TORFQ, or that she had any

involvement in the procurement process or any influence on the source

selection decision. Thus, there is no evidence that DigiFlight gained unequal

access to any non-public information which would give the company an

unfair competitive advantage about the Programmatic Support Services

procurement as a result of Ms. Whaley’s tenure as the Deputy Director of

SAMD or as a KBRWyle/CAS employee.

On September 11, 2018, the GAO denied in part and dismissed in part

Sigmatech’s bid protest at the GAO. See Sigmatech, Inc., B-415028.3 et al., 2018 WL

5110874, at *1 (Comp. Gen. Sept. 11, 2018). The GAO determined that there was “no

merit to the protester’s challenges to the agency’s evaluation of Sigmatech’s quotation”

and dismissed Sigmatech’s allegation of unequal treatment as untimely. Id. at *3. The

GAO rejected Sigmatech’s argument that the Army unreasonably evaluated DigiFlight’s

experience because the GAO found “no basis to conclude that the agency’s assignment

of strengths to the awardee’s quotation based on the experience of its proposed

subcontractors was inconsistent with the terms of the solicitation or otherwise

unreasonable.” Id. at *6. The GAO also found that Sigmatech’s allegation of an OCI

involving Eileen Whaley lacked merit because, “[w]here, as here, the contracting officer

investigates a potential unfair competitive advantage and reasonably concludes that no

such advantage exists, we will defer to the agency’s judgment.” Id. at *9 (citation omitted).

The GAO denied the remainder of Sigmatech’s claims. See id. at *11.

18

On September 18, 2018, Sigmatech filed its complaint in the above-captioned bid

protest.9 In its complaint, Sigmatech argued that the Army arbitrarily and capriciously

evaluated Sigmatech’s quotation, that the Army engaged in disparate treatment, and that

the Army’s source selection decision was unequal, arbitrary and capricious, an abuse of

discretion, or otherwise not in accordance with law. Sigmatech argued that the Army

“failed to adequately consider the former Acting Director’s [Eileen Whaley’s] access to

information and setting of requirements, who is now a KBRWyle employee working on

the LPTO Task Order, was a conflict of interest.” During a discussion of the alleged

conflict of interest involving Eileen Whaley at the November 13, 2018 oral argument,

counsel of record for protestor stated “I will formally withdraw it.” Counsel of record for

protestor stated “I will fully admit, having reviewed the briefs, that I do not believe the

Eileen Whaley argument is particularly strong” and counsel officially withdrew protestor’s

claim involving Eileen Whaley.

In Sigmatech’s complaint, Sigmatech also asserted, for the first time, that the Army

failed to consider “the DigiFlight team’s organizational conflicts of interest” involving

KBRWyle’s position as the prime contractor on a task order “under the Defense System

Technical Area Task (‘DS TAT’) contract for Patriot Technical Support at the ‘Lower Tier

Project Office System Engineering Directorate.’” (capitalization in original). According to

Sigmatech:

KBRWyle (and therefore, DigiFlight) has an organizational conflict of

interest—that is, as the subcontractor to DigiFlight under the RFQ and as

the contractor under the DS TAT task order, KBRWyle would have to

monitor and evaluate its own work under the DS TAT task order an

impermissible impaired objectivity OCI.

Sigmatech’s complaint requests a declaration that the Army’s evaluation of quotations

and award under the TORFQ was irrational, arbitrary, and capricious, an abuse of

discretion, and contrary to law, a permanent injunction, other relief deemed appropriate

by the court, and that the court “[r]equire the Agency to perform a new evaluation and

make a new award decision.”

On September 19, 2018, DigiFlight filed an unopposed motion to intervene in the

above-captioned bid protest, which the court granted. Also on September 19, 2018, the

court held a hearing with the parties in the above-captioned bid protest. During the

September 19, 2018 hearing, counsel of record for defendant indicated that the Army

voluntarily agreed to stay performance of DigiFlight’s award under the TORFQ until

December 14, 2018. Defendant indicated that an Army contracting officer was

investigating and evaluating Sigmatech’s new OCI claim involving KBRWyle’s

performance under the Defense System Technical Area Task task order.

9 In a footnote in the complaint, Sigmatech states that “Sigmatech is not pursuing all of

the grounds it raised before the GAO.”

19

On October 1, 2018, defendant filed the administrative record in the above-

captioned bid protest. On October 3, 2018, defendant filed a notice of the Army’s

Determination and Findings, which was dated October 2, 2018, signed by contracting

officer Ashantas Cornelius, and addressed Sigmatech’s allegation that

DigiFlight, Inc. entered into a teaming/subcontractor agreement with

KBRWyle/CAS Inc. (KBRWyle), creating impaired objectivity in which

KBRWyle, in performing the EXPESS Task Order, would provide oversight

and/or approval over its own work performance and deliverables performed

under other task orders awarded through the Defense Technical

Information Center (DTIC) Defense Systems Technical Area Task (DS-

TAT) program.

In the October 2, 2018 Determination and Findings, Ashantas Cornelius “concluded that

no OCI exists.” Ms. Cornelius states that the Lower Tier Project Office is the “Office of

Record for the ACAT-1A PATRIOT Air & Missile Defense Weapon System,” and that the

“LTPO [Lower Tier Project Office] provides requirements based upon ‘production

contracts’, providing foreign military customers with a weapon system/end product.”

(capitalization in original). Ms. Cornelius asserts:

The Lower Tier Project Office is part of the Program Executive Office (PEO)

Missiles and Space. This office is not a part of AMCOM. SAMD is an

Aviation and Missile Command (AMCOM) organization. SAMD has

divisions that are co-located with the respective Missile and Space Program

Executive Office (PEO)/Aviation Program Executive Office (PEO) Weapon

Systems Program Offices. However, each organization performs duties and

responsibilities specific to that organization’s mission. The two

organizations function independently of each other and have no

organizational relationship with each other. With different command

teams/structures, SAMD does not provide management oversight to LTPO

or vice versa.

LTPO and AMCOM SAMD require technical support services in order to

successfully perform their missions. In response to this need, both

organizations acquired technical supports [sic] services through the use of

the DTIC Defense Systems Technical Area Task (DS-TAT) Indefinite

Delivery Indefinite Quantity (IDIQ) contracts managed by Defense

Technical Information Center (DTIC) personnel located at Ft. Belvoir, VA. A

task order for technical support at LTPO (FA807517F1374) was awarded

on May 20, 2017 and a task order for technical support at SAMD

(FA807517F1389) was awarded on September 28, 2017. Both task orders

were awarded to Wyle Laboratories, Inc., a part of KBRWyle/CAS, Inc.,

located in Huntsville, Alabama.

(internal references omitted).

20

According to Ashantas Cornelius’s statements in the October 2, 2018

Determination and Findings, “[t]hese contracts are similar in the type of ‘technical support’

they provide to LTPO and SAMD. However; the support is based upon individual mission

requirements of each organization.” Ashantas Cornelius further states:

The primary purpose of Task Order FA 807517F1374 in support of the

LTPO mission is to study, analyze, provide, advice [sic], research, and

develop deliverables to advance defense-related scientific and technical

information (STI) through the application of knowledge and resources in

achieving the requiring activity’s mission requirements. The objective is to

provide the Government the necessary multi-discipline support to execute

the extremely challenging effort of managing the PATROIT weapon system.

The primary purpose of Task Order FA 807517F1389 in support of the

AMCOM SAMD mission is to study, analyze, advise, research and develop

deliverables to advance FMS-related scientific and technical Information

(STI). Some of the key objectives are Program Management, STI

Relevance Assessment and Gap Analysis, Systems Engineering Support;

Forensic and Reliability Analysis, Strategic Planning, Integrated Logistics

Support; and Foreign Military Sales Support. These task orders are

separate entities and function independently of each other in support of two

different commands with varying missions.

(capitalization in original; internal references omitted).

Regarding the task order awarded to DigiFlight under the TORFQ, Ashantas

Cornelius asserts:

[T]he task order provides programmatic services to AMCOM SAMD.

Programmatic services entails [sic] support in monitoring, assessing,

coordinating, analyzing and integrating component programs/activities,

including briefings/ presentations and agendas for the total life cycle

systems. This program is in response to the SAMD’s mission and supports

only the SAMD Foreign Military Sales (FMS) functions. The EXPRESS task

order functions is [sic] the same manner as the DTIC task order. The

Contracting Officer appoints a COR, who has been trained and performs

duties in accordance with the FAR and other applicable regulations.

Similarly, each EXPRESS task order is allocated a Program Manager

and/or a task order lead whose primary duty and responsibility is to manage/

provide oversight in support of his/her specific task order.

(internal references omitted). In the October 2, 2018 Determination and Findings,

Ashantas Cornelius concludes that:

As the Contracting Officer responsible for the acquisition of the

Programmatic Support Services Task Order Request for Quote and

subsequent award, I have thoroughly reviewed the tasks to be performed

21

under the EXPRESS task order and the tasks KBRwyle performs under

the DS-TAT task orders for both LTPO and SAMD, and have found no

evidence of impaired objectivity with KBRWyle/CAS, Inc. in performance

of their duties supporting the EXPRESS Task Order and the DTIC Task

Orders. KBRwyle working on the EXPRESS task order will not be

monitoring or evaluating the work of KBRwyle employees on the DTIC task

orders. As stated above, oversight of contractor personnel and

performance is done by the Government, through Contracting Officer

Representative and Program Managers, and not by other contractors.

Furthermore, the work performed under the EXPRESS task order is

different from the work performed under the DTIC task orders, involving

different categories of services, with the EXPRESS task order providing

program support services and the DTIC task orders focused on scientific

and technical tasks.

Furthermore, additional last-minute information was provided by

Sigmatech regarding KBRWyle performing other DS TAT task Orders.

These tasks orders provide support to various Program Management

Offices (PMOs) to include Cargo Helicopter, Unmanned Aircraft Systems,

Fixed Wing and Future Vertical Lift. Additionally, information has been

provided indicating that DigiFlight is a subcontractor on several of

KBRWyle’s task orders. While Sigmatech has not provided sufficient

information to fully investigate these last-minute additions to its impaired

objectivity OCI allegations, because these DS TAT task orders are all

managed in the manner as previously stated, sufficient government

oversight is provided to successfully eliminating [sic] any possibility of

impaired objectivity.

Protestor has not amended its complaint in the above-captioned bid protest to include an

allegation that there is an organizational conflict of interest as a result of DigiFlight’s role

as a “subcontractor on several of KBRWyle’s task orders.”

On October 19, 2018, Sigmatech filed a motion for judgment on the administrative

record. In the October 19, 2018 motion, Sigmatech argues that the Army’s evaluation of

Sigmatech’s quotation and DigiFlight’s quotation, as well as the Army’s source selection

decision, was irrational, arbitrary, capricious, an abuse of discretion, and not in

accordance to law. Sigmatech asserts in its motion for judgment on the administrative

record that the Army failed to consider Eileen Whaley’s “access to information and her

involvement in setting the requirements for the TORFQ.” Sigmatech also contends that

the Army’s “evaluation of KBRWyle’s impaired objectivity OCI resulting from its work on

related task orders was arbitrary, capricious, and contrary to law.” Sigmatech also

provided a “concrete (hypothetical) example of KBRWyle’s conflicting roles” in an attempt

to support Sigmatech’s allegation of an impaired objectivity OCI.

Sigmatech attached to its October 19, 2018 motion for judgment on the

administrative record an October 15, 2018 declaration signed by Philip Roman, who

22

states that he is the “Vice President of Security, Cooperation/Security Assistance of

Sigmatech, Inc.,” and that the October 15, 2018 declaration is offered “in support of

Sigmatech’s Motion to Supplement the Agency Record.” On October 22, 2018, the court

issued an Order stating that defendant had not filed a motion to supplement the

administrative record as described in the October 15, 2018 declaration signed by Philip

Roman. On October 23, 2018, Sigmatech filed a motion to supplement the administrative

record with the October 15, 2018 declaration signed by Philip Roman. In the October 23,

2018 motion, Sigmatech argues that supplementation of the administrative record is

appropriate because, without the declaration signed by Philip Roman, the court “cannot

determine whether the Agency ignored salient information without understanding where

contractor-employees are placed and whether the Agency oversees those employees;

the scope of the Agency’s oversight; and how the Agency integrates FMS into its program

management.”

On November 2, 2018, defendant and defendant-intervenor both filed responses

to Sigmatech’s motion for judgment on the administrative record and cross-motions for

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

administrative record, defendant argues that the administrative record establishes that

the Army’s evaluators treated all offerors equally and that the Army’s best value

determination was rational. Defendant also argues that the Army’s award to DigiFlight

“does not create any OCI.” In defendant-intervenor’s cross-motion for judgment on the

administrative record, defendant-intervenor asserts that Sigmatech has failed to establish

that the Army’s evaluation was unequal and has failed to establish that the source

selection decision was improper. Defendant-intervenor contends that Sigmatech failed to

establish “an OCI arising from KBRwyle’s hiring of Eileen Whaley” or that award to

DigiFlight created an “impaired objectivity OCI.”

Also on November 2, 2018, defendant submitted a motion to supplement the

administrative record with a November 1, 2018 declaration signed by Susan Teir, who

states that she served as the contracting officer’s representative on the Sigmatech’s

incumbent task order. Defendant argues that the November 1, 2018 declaration signed

by Susan Teir “is necessary to fill a gap in the administrative record regarding Sigmatech’s

allegation that the agency’s award decision created an impaired objectivity organizational

conflict of interest (OCI) because the awardee’s subcontractor, KBRWyle, would,

allegedly, be placed in a position to review its work on other contracts with the agency.”

Defendant asserts that Sigmatech’s “hypothetical significantly mischaracterizes

KBRWyle’s performance of the task order with the Lower Tier Project Office Patriot Missile

program management office,” and that, “[i]n her declaration, Ms. Tier [sic] responds to

Sigmatech’s hypothetical scenario involving KBRWyle and explains why it is factually

incorrect.”

On November 6, 2018, defendant and defendant-intervenor filed responses to

Sigmatech’s October 23, 2018 motion to supplement the administrative record, both of

which asserted that the court should not supplement the administrative record with the

additional documents proffered by Sigmatech.

23

On November 9, 2018, Sigmatech filed a reply in support of its motion for judgment

on the administrative record and response to defendant and defendant-intervenor’s cross-

motions.10 In Sigmatech’s November 9, 2018 filing, Sigmatech argued that this court

should deny defendant’s November 2, 2018 motion to supplement the administrative

record. Also on November 9, 2018, Sigmatech filed a reply in support of Sigmatech’s

October 23, 2018 motion for supplementation to the administrative record. On November

13, 2018, the court heard oral argument in the above-captioned bid protest.

DISCUSSION

Rule 52.1(c)(1) (2018) of the Rules of the United States Court of Federal Claims

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

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

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

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

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

Cir. 2005))); see also Centerra Grp., LLC v. United States, 138 Fed. Cl. 407, 412 (2018)

(citing Bannum, Inc. v. United States, 404 F.3d at 1356-57); Informatics Applications Grp.,

Inc. v. United States, 132 Fed. Cl. 519, 524 (2017) (citation omitted); Strategic Bus. Sols.,

Inc. v. United States, 129 Fed. Cl. 621, 627 (2016), aff’d, 711 F. App’x 651 (Fed. Cir.

2018); Rotech Healthcare Inc. v. United States, 118 Fed. Cl. 408, 413 (2014); Eco Tour

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

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

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

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

462, 481 (2013); see also CR/ZWS LLC v. United States, 138 Fed. Cl. 212, 223 (2018)

(citing Bannum, Inc. v. United States, 404 F.3d at 1353-54).

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

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

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

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

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

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

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

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

procurement decisions are to be reviewed under APA standards, making applicable the

standards outlined in Scanwell Labs., Inc. v. Shaffer, 424 F.2d 859 (D.C. Cir. 1970), and

the line of cases following that decision. See, e.g., Per Aarsleff A/S v. United States, 829

F.3d 1303, 1309 (Fed. Cir. 2016) (“Protests of agency procurement decisions are

reviewed under the standards set forth in the Administrative Procedure Act (‘APA’), see

10 During the September 20, 2018 hearing, defendant indicated that defendant did not

intend to file a reply in support of its cross-motion for judgment on the administrative

record and subsequently did not file a reply. Intervenor, likewise, declined to file a reply

in support of its cross-motion for judgment on the administrative record.

24

28 U.S.C. § 1491(b)(4) (citing 5 U.S.C. § 706), ‘by which an agency’s decision is to be

set aside only if it is arbitrary, capricious, an abuse of discretion, or otherwise not in

accordance with law[.]’” (quoting NVT Techs., Inc. v. United States, 370 F.3d 1153, 1159

(Fed. Cir. 2004)) (citing PAI Corp. v. United States, 614 F.3d 1347, 1351 (Fed. Cir.

2010))); Impresa Construzioni Geom. Domenico Garufi v. United States, 238 F.3d at

1332; Res. Conservation Grp., LLC v. United States, 597 F.3d 1238, 1242 (Fed. Cir.

2010) (“Following passage of the APA in 1946, the District of Columbia Circuit in Scanwell

Labs., Inc. v. Shaffer, 424 F.2d 859 (D.C. Cir. 1970), held that challenges to awards of

government contracts were reviewable in federal district courts pursuant to the judicial

review provisions of the APA.”); Galen Med. Assocs., Inc. v. United States, 369 F.3d 1324,

1329 (Fed. Cir. 2004) (citing Scanwell Labs., Inc. v. Shaffer, 424 F.2d at 864, 868, for its

“reasoning that suits challenging the award process are in the public interest and

disappointed bidders are the parties with an incentive to enforce the law”); Banknote

Corp. of Am., Inc. v. United States, 365 F.3d 1345, 1351 (Fed. Cir. 2004) (“Under the

APA standard as applied in the Scanwell line of cases, and now in ADRA cases, ‘a bid

award may be set aside if either (1) the procurement official’s decision lacked a rational

basis; or (2) the procurement procedure involved a violation of regulation or procedure.’”

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

1332)); Info. Tech. & Applications Corp. v. United States, 316 F.3d at 1319.

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

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

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

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

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

to be applied [to the merits of] bid protest cases is provided by 5 U.S.C. § 706(2)(A)

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

an abuse of discretion, or otherwise not in accordance with law.”’” (alterations in original)

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

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

(Fed. Cir. 2000)))), reh’g and reh’g en banc denied (Fed. Cir. 2013). The statute says that

agency procurement actions should be set aside when they are “arbitrary, capricious, an

abuse of discretion, or otherwise not in accordance with law,” or “without observance of

procedure required by law.” 5 U.S.C. § 706(2)(A), (D) (2012);11 see also Tinton Falls

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

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

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

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

of an agency action. The reviewing court shall—

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

and

25

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

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

States, 700 F.3d 1377, 1381 (Fed. Cir. 2012) (“We evaluate agency actions according to

the standards set forth in the Administrative Procedure Act; namely, for whether they are

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

(quoting 5 U.S.C. § 706(2)(A); and Bannum, Inc. v. United States, 404 F.3d at 1351));

Savantage Fin. Servs. Inc., v. United States, 595 F.3d 1282, 1285-86 (Fed. Cir. 2010);

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

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

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

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

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

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

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

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

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

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

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

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

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

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

found to be—

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

accordance with law;

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

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

of statutory right;

(D) without observance of procedure required by law;

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

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

an agency hearing provided by statute; or

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

to trial de novo by the reviewing court.

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

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

of the rule of prejudicial error.

5 U.S.C. § 706.

26

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

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

in accordance with law.’ 5 U.S.C. § 706(2)(A) (2000).”); Synergy Sols., Inc. v. United

States, 133 Fed. Cl. 716, 734 (2017) (citing Banknote Corp. of Am. v. United States, 365

F.3d at 1350); Eco Tour Adventures, Inc. v. United States, 114 Fed. Cl. at 22; Contracting,

Consulting, Eng’g LLC v. United States, 104 Fed. Cl. 334, 340 (2012). “In a bid protest

case, the agency’s award must be upheld unless it is ‘arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with law.’” Turner Constr. Co. v. United States,

645 F.3d 1377, 1383 (Fed. Cir.) (quoting PAI Corp. v. United States, 614 F.3d at 1351),

reh’g en banc denied (Fed. Cir. 2011); see also Tinton Falls Lodging Realty, LLC v. United

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

protests, our task is to determine whether the procurement official’s decision lacked a

rational basis or the procurement procedure involved a violation of a regulation or

procedure.” (citing Savantage Fin. Servs., Inc. v. United States, 595 F.3d at 1285-86));

Glenn Def. Marine (ASIA), PTE Ltd. v. United States, 720 F.3d 901, 907 (Fed. Cir.), reh’g

en banc denied (Fed. Cir. 2013); Nat’l Gov’t Servs., Inc. v. United States, 137 Fed. Cl.

715, 735 (2018) (quoting Centech Grp., Inc. v. United States, 554 F.3d 1029, 1037 (Fed.

Cir. 2009)); McVey Co., Inc. v. United States, 111 Fed. Cl. 387, 402 (2013) (“The first step

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

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

United States, 92 Fed. Cl. 520, 531-32 (“Stated another way, a plaintiff must show that

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

Marine, Inc. v. United States, 575 F.3d at 1358)), subsequent determination, 96 Fed. Cl.

119 (2010).

The United States Supreme Court has identified sample grounds which can

constitute arbitrary or capricious agency action:

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

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

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

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

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

expertise.”

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

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

also F.C.C. v. Fox Television Stations, Inc., 556 U.S. 502, 552 (2009); Tinton Falls

Lodging Realty, LLC v. United States, 800 F.3d at 1358; Ala. Aircraft Indus., Inc.-

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

banc denied (Fed. Cir. 2010); In re Sang Su Lee, 277 F.3d 1338, 1342 (Fed. Cir. 2002)

(“[T]he agency tribunal must present a full and reasoned explanation of its decision. . . .

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

United States, 74 Fed. Cl. 277, 285-86 (2006), appeal dismissed sub nom. Textron, Inc.

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

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

27

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

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

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

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

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

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

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

substitute its judgment for that of the agency.”); see also Dell Fed. Sys., L.P. v. United

States, 906 F.3d 982, 990 (Fed. Cir. 2018); Turner Constr. Co., Inc. v. United States, 645

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

2003) (citing Ray v. Lehman, 55 F.3d 606, 608 (Fed. Cir.), cert. denied, 516 U.S. 916

(1995)); Synergy Sols., Inc. v. United States, 133 Fed. Cl. at 735 (citing Impresa

Construzioni Geom. Domenico Garufi v. United States, 238 F.3d at 1332-33). “‘“If the

court finds a reasonable basis for the agency’s action, the court should stay its hand even

though it might, as an original proposition, have reached a different conclusion as to the

proper administration and application of the procurement regulations.”’” Weeks Marine,

Inc. v. United States, 575 F.3d at 1371 (quoting Honeywell, Inc. v. United States, 870

F.2d 644, 648 (Fed. Cir. 1989) (quoting M. Steinthal & Co. v. Seamans, 455 F.2d 1289,

1301 (D.C. Cir. 1971))); Limco Airepair, Inc. v. United States, 130 Fed. Cl. 544, 550 (2017)

(citation omitted); Jordan Pond Co., LLC v. United States, 115 Fed. Cl. 623, 631 (2014);

Davis Boat Works, Inc. v. United States, 111 Fed. Cl. 342, 349 (2013); Norsat Int’l

[America], Inc. v. United States, 111 Fed. Cl. 483, 493 (2013); HP Enter. Servs., LLC v.

United States, 104 Fed. Cl. 230, 238 (2012); Vanguard Recovery Assistance v. United

States, 101 Fed. Cl. 765, 780 (2011).

Stated otherwise by the United States Supreme Court:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

28

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

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

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

Space Co. v. Bentsen, 4 F.3d 955, 959 (Fed. Cir. 1993); By Light Prof’l IT Servs., Inc. v.

United States, 131 Fed. Cl. 358, 366 (2017); BCPeabody Constr. Servs., Inc. v. United

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

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

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

its exercise of discretion.’” (internal citations omitted) (quoting Keeton Corrs., Inc. v.

United States, 59 Fed. Cl. 753, 755, recons. denied, 60 Fed. Cl. 251 (2004); and Axiom

Res. Mgmt., Inc. v. United States, 564 F.3d at 1381)), appeal dismissed, 559 F. App’x

1033 (Fed. Cir. 2014); Supreme Foodservice GmbH v. United States, 109 Fed. Cl. at 382;

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

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

App’x 995 (Fed. Cir. 2002).

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

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

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

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

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

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

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

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

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

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

69.

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

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

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

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

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

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

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

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

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

Furthermore, according to the United States Court of Appeals for the Federal Circuit:

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

of issues confronting them in the procurement process.” Impresa

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

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

procurement decisions are subject to a “highly deferential rational basis

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

29

Cir. 2008) (internal quotation marks omitted).

PAI Corp. v. United States, 614 F.3d at 1351; see also AgustaWestland N. Am., Inc. v.

United States, 880 F.3d 1326, 1332 (Fed. Cir. 2018) (“Where, as here, a bid protester

challenges the procurement official’s decision as lacking a rational basis, we must

determine whether ‘the contracting agency provided a coherent and reasonable

explanation of its exercise of discretion,’ recognizing that ‘contracting officers are entitled

to exercise discretion upon a broad range of issues confronting them in the procurement

process.’” (quoting Impresa Construzioni Geom. Domenico Garufi v. United States, 238

F.3d at 1332-33 (internal quotation marks and citation omitted))); Weeks Marine, Inc. v.

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

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

action ‘evincing rational reasoning and consideration of relevant factors.’” (alteration in

original) (quoting CHE Consulting, Inc. v. United States, 552 F.3d at 1354 (quoting

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

A disappointed bidder has the burden of demonstrating the arbitrary and capricious

nature of the agency decision by a preponderance of the evidence. See Tinton Fall

Lodging Realty, LLC v. United Sates, 800 F.3d at 1364; see also Grumman Data Sys.

Corp. v. Dalton, 88 F.3d at 995-96; Enhanced Veterans Sols., Inc. v. United States, 131

Fed. Cl. 565, 578 (2017); Davis Boat Works, Inc. v. United States, 111 Fed. Cl. at 349;

Contracting, Consulting, Eng’g LLC v. United States, 104 Fed. Cl. at 340. The Federal

Circuit has indicated that “[t]his court will not overturn a contracting officer’s determination

unless it is arbitrary, capricious, or otherwise contrary to law. To demonstrate that such a

determination is arbitrary or capricious, a protester must identify ‘hard facts’; a mere

inference or suspicion . . . is not enough.” PAI Corp. v. United States, 614 F.3d at 1352

(citing John C. Grimberg Co. v. United States, 185 F.3d 1297, 1300 (Fed. Cir. 1999)); see

also Turner Constr. Co., Inc. v. United States, 645 F.3d at 1387; Sierra Nevada Corp. v.

United States, 107 Fed. Cl. 735, 759 (2012); Filtration Dev. Co., LLC v. United States, 60

Fed. Cl. 371, 380 (2004).

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

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

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

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

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

protester was prejudiced by that conduct.

Bannum, Inc. v. United States, 404 F.3d at 1351; T Square Logistics Servs. Corp. v.

United States, Fed. Cl. 550, 555 (2017); FirstLine Transp. Sec., Inc. v. United States, 119

Fed. Cl. 116, 126 (2014), appeal dismissed (Fed. Cir. 2015); Eco Tour Adventures, Inc.

v. United States, 114 Fed. Cl. at 22; Archura LLC v. United States, 112 Fed. Cl. at 496.

To prevail in a bid protest case, the protestor not only must show that the government’s

actions were arbitrary, capricious, or otherwise not in accordance with the law, but the

protestor also must show that it was prejudiced by the government’s actions. See 5 U.S.C.

§ 706 (“[D]ue account shall be taken of the rule of prejudicial error.”); see also Glenn Def.

30

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

inquiry is whether the agency’s action was arbitrary, capricious, an abuse of discretion,

or otherwise not in accordance with law and, if so, whether the error is prejudicial.”); IT

Enter. Sols. JV, LLC v. United States, 132 Fed. Cl. 158, 173 (2017) (citing Bannum v.

United States, 404 F.3d at 1357-58); Linc Gov’t Servs., LLC v. United States, 96 Fed. Cl.

672, 694-96 (2010). In describing the prejudice requirement, the Federal Circuit also has

held that:

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

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

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

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

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

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

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

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

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

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

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

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

consideration.’” (citation omitted)).

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

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

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

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

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

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

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

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

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

Federal Circuit wrote:

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

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

procurement process, there was a reasonable likelihood that the protester

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

reasonable balance between the importance of (1) averting unwarranted

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

ensuring that protesters who have been adversely affected by allegedly

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

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

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

31

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

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

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

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

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

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

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

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

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

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

1306, 1315 (Fed. Cir. 2011); Advanced Data Concepts, Inc. v. United States, 216 F.3d at

1057 (using a “reasonable likelihood” rule); Stratos Mobile Networks USA, LLC v. United

States, 213 F.3d at 1380 (using a “substantial chance” test); Am. Corr. Healthcare, Inc.

v. United States, 137 Fed. Cl. 395, 410 (2018) (using a “substantial chance” test); Vintage

Autoworks, Inc. v. United States, 132 Fed. Cl. 143, 149 (2017) (using a “substantial

chance” test); Active Network, LLC v. United States, 130 Fed. Cl. 421, 427 (2017) (using

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

“substantial chance” test); Info. Scis. Corp. v. United States, 73 Fed. Cl. 70, 96 (2006)

(using a “substantial chance” test), recons. in part, 75 Fed. Cl. 406 (2007).

In the above-captioned bid protest, Sigmatech argues that the Army “assigned

strengths to Digiflight for experience, expertise or proposed solutions that were (at best)

equal to those contained in Sigmatech’s quotation. Yet despite having an (at least)

equivalent - - and much more thoroughly detailed - - quotation, Sigmatech received only

‘comments.’” Sigmatech argues that the Army unreasonably and unequally evaluated

Sigmatech’s and DigiFlight’s proposed performance of SAMD Repair and Return and cost

analyses, as well as Sigmatech’s and DigiFlight’s understanding of financial databases.

Regarding SAMD Repair and Return, Sigmatech asserts that the Army awarded

DigiFlight a strength based on DigiFlight’s “substantial experience with R&R,” but the

Army “merely ‘commented’ on Sigmatech’s experience, and noted that it would be of

value to SAMD.” Sigmatech contends that “Sigmatech spent almost two full pages

describing its extensive experience with R&R.”

Sigmatech argues that the Army awarded DigiFlight a strength based on

DigiFlight’s [redacted] certified cost estimation analysts, notwithstanding that “Digiflight’s

quotation provides no insight into what [redacted] is, or why it is important.” Sigmatech

asserts “Sigmatech showed deep expertise with cost analyses,” but only received a

comment for its experience with cost analyses. Sigmatech contends that the Army

“completely ignored a host of other relevant information in Sigmatech’s quotation,

including: 1) the depth of Sigmatech’s expertise with specific financial systems; 2) its use

of best practices; 3) its understanding of the laws and regulations that apply to that

financial management; and 4) its experience with [redacted].”

Sigmatech also contends that the Army awarded DigiFlight a strength “for its

‘superior understanding’ of multiple financial databases to support its proprietary

[redacted] tool.” According to Sigmatech, the Army “completely overlooked that

32

Sigmatech also uses [redacted] and also has a deep understanding of the Agency’s

financial management needs.” (emphasis in original; internal references omitted).

Sigmatech asserts that Sigmatech’s quotation “included a graph describing how it had

developed [redacted] and, consistent with the DoD’s policy, it [redacted] would replace

legacy systems,” but Sigmatech “received no credit for its extensive [redacted] experience

and merely a passing comment regarding its development experience with [redacted].”

Sigmatech argues that “[i]t was patently unreasonable for the Agency to heap credit on

Digiflight’s experience with [redacted] development, while completely ignoring

Sigmatech’s development experience with [redacted].” Sigmatech argues that the Army’s

evaluation of SAMD Repair and Return, cost analyses, and understanding of financial

databases prejudiced Sigmatech because “[e]ach of these strengths it assigned Digiflight,

individually and combined, caused the Agency to conclude that Digiflight established

superior technical expertise.”

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

argues that “the Army’s evaluations were fair and equal, not disparate, with strengths

appropriately awarded to aspects of the offerors’ proposals which had merit or exceeded

the PWS requirements in a way that will be advantageous to the Army.” Defendant asserts

that “Sigmatech’s assertion of unequal treatment amounts to no more than a mere

disagreement with the evaluators.” According to defendant, the evaluators appropriately

determined that the DigiFlight’s detailed explanation of its experience and approach with

Repair and Return programs met the definition of a strength and that Sigmatech’s

proposal “merely recounted in less than two pages its experience with SAMD R&R in an

unremarkable way.” Defendant asserts that, although both Sigmatech and DigiFlight

described their approaches to cost analysis “in a way which generally met this

requirement, DigiFlight once again went beyond merely meeting the requirement by

offering employees who were trained and certified in using [redacted] for cost analysis.”

Defendant also contends that the Army’s decision to award DigiFlight a strength for its

use of [redacted] was rational because DigiFlight’s “unique skillset with [redacted] and

familiarity with other systems, in the evaluators’ determination, would increase the

efficiency of financial management of FMS cases and was worthy of a strength.”

In defendant-intervenor’s cross-motion for judgment on the administrative record,

defendant-intervenor argued that Sigmatech has failed to establish an unequal evaluation

of Sigmatech’s and DigiFlight’s Technical Expertise factor because “the truth is that

Sigmatech’s quotation lacked information and was not equal to DigiFlight’s quotation.”

Defendant-intervenor contends that protestor has failed to establish prejudice because,

“[e]ven assuming for the sake of argument that Sigmatech could prevail on one or more

of the three instances for which it claims it should have received an additional strength,

Sigmatech still could not reach the five strengths assigned to DigiFlight.”

The Federal Acquisition Regulation (FAR) requires that contracting officers

“[e]nsure that contractors receive impartial, fair, and equitable treatment.” See FAR

§ 1.602-2(b) (2018). “[I]t is beyond peradventure that a contracting agency must treat all

offerors equally, evaluating proposals evenhandedly against common requirements and

evaluation criteria.” Banknote Corp. of Am. v. United States, 56 Fed. Cl. 377, 383 (2003)

33

(citing Seattle Sec. Servs., Inc. v. United States, 45 Fed. Cl. 560, 569 (2000)); see also

Active Network, LLC v. United States, 130 Fed. Cl. at 429 (quoting CW Gov’t Travel, Inc.

v. United States, 110 Fed. Cl. at 490); Chenega Mgmt., LLC. v. United States, 96 Fed.

Cl. 556, 585 (2010) (“[U]nequal treatment claims are the ‘quintessential example of

conduct which lacks a rational basis.’” (emphasis in original) (quoting Hunt Building Co.,

Ltd. v. United States, 61 Fed. Cl. 243, 273 (2004))). “Indeed, ‘an agency action is arbitrary

when the agency offered insufficient reasons for treating similar situations differently.’”

Afghan Am. Army Servs. Corp. v. United States, 106 Fed. Cl. 714, 729 (quoting

Transactive Corp. v. United States, 91 F.3d 232, 237 (D.C. Cir. 1996)), as supplemented,

106 Fed. Cl. 751 (2012); see also Redland Genstar, Inc. v. United States, 39 Fed. Cl.

220, 234 (1997) (quoting Transactive Corp. v. United States, 91 F.3d at 237). “Equal

treatment, however, does not require that all proposals be treated the same.” Chenega

Mgmt., LLC. v. United States, 96 Fed. Cl. at 585 (citing FAR § 1.102-2(c)(3)); see also

FAR § 1.102-2(c)(3) (2018) (“All contractors and prospective contractors shall be treated

fairly and impartially but need not be treated the same.”); Ernst & Young, LLP v. United

States, 136 Fed. Cl. 475, 515 (2018) (quoting FAR § 1.102-2(c)(3)). “[O]fferors who are

not similarly situated may be treated differently.” A-T Sols., Inc. v. United States, 122 Fed.

Cl. 170, 183 (2015) (citing NCL Logistics Co. v. United States, 109 Fed. Cl. 596, 626

(2013)); see also Lockheed Martin Corp. v. United States, 124 Fed. Cl. 709, 722 (2016)

(“To the extent proposals differ, the government may rationally take different action

regarding different proposals.”).

In the above-captioned bid protest, Sigmatech’s allegations of unequal treatment

focus on the strengths the Army assigned under the Technical Expertise factor to sections

2.1.2, 2.2.2, 2.1.1 and 2.1.312 of DigiFlight’s quotation, which corresponded to sections

2.1.2, 2.2.2., and 2.1.1 and 2.1.3 of the performance work statement attached to the

TORFQ. Sigmatech argues that, “[w]hile Sigmatech’s proposal described many of these

strengths, it did not receive the same credit.” Section 2.1.2 of the performance work

statement is titled “REQUISITION AND DOCUMENT STATUS” and states that the

“contractor shall collect data such as repair status, repair cost, and repair capability from

Corpus Christi Army Depot (CCAD) and Letterkenny Army Depot (LEAD), Security

Assistance Management Information System and other databases in order to update

requisition and document status reports and to provide recommendations on repair

requirements.” (capitalization in original).

In section 2.1.2 of Sigmatech’s quotation, Sigmatech stated that “Sigmatech

assists SAMD in managing the Saudi Arabia PAC-3 R&R for Electronic Control Unit kits

at LEAD by reviewing R&R Track Sheets to verify funding is not overcommitted and items

are repaired in a timely manner.” Sigmatech also stated that “[w]e utilize Web Repair of

Repairables (WebRoR - DoD’s Repair of Repairables Management System for FMS

customers) within the Security Cooperation Information Portal (SCIP) to track repair cost,

status, and capability of different repair entities.” Sigmatech described how Sigmatech

“optimize[d] component repair,” “update[d] requisition/document status,” and “utilize[d]

12As noted above, the Army assigned a single strength to section 2.1.1 and to section

2.1.3 of DigiFlight’s quotation.

34

WebRoR database to pull current information on R&R assets, along with gathering

tracking numbers from the SCIP database.”

In the Army’s Evaluation Worksheet addressing Sigmatech’s quotation, the Army

stated that Sigmatech’s quotation met all of the technical requirements in the performance

work statement. The Army did not assign a strength, which the TORFQ defined “as an

aspect of an offeror’s quote that has merit or exceeds specified performance capability

requirements in a way that will be advantageous to the Government during contract

performance,” to section 2.1.2 of Sigmatech’s quotation. The Army, however, provided a

comment referencing section 2.1.2 of Sigmatech’s quotation and stating that Sigmatech’s

“experience with Repair and Return (R&R) will assist SAMD in the analysis of the R&R

process and will provide recommendations to expedite and streamline the return of items

to the FMS customer.” Although Sigmatech asserts that Sigmatech should have received

a strength for its “substantial experience with R&R,” Sigmatech has not demonstrated

why it was irrational for the Army not to assign Sigmatech a strength for Sigmatech’s

experience with Repair and Return programs. In its quotation, Sigmatech did indicate that

it previously had provided Repair and Return support, but Sigmatech has not

demonstrated that Sigmatech’s previous support of Repair and Return programs

exceeded the requirements in the section 2.1.2 of the performance work statement in a

manner to warrant a strength. Moreover, the Army’s evaluators have broad discretion

when exercising technical judgment, “and consequently the court will interject its own

assessment only ‘in the absence of truly irrational conduct on the part of the agency.’”

See Vanguard Recovery Assistance v. United States, 101 Fed. Cl. 765, 783 (2011)

(quoting FirstLine Transp. Sec., Inc. v. United States, 100 Fed. Cl. 359, 397 (2011)). The

Army acknowledged Sigmatech’s experience with Repair and Return programs, which

the Army noted would assist the Army with the Repair and Return process, but Sigmatech

has not pointed to any material indicating that Sigmatech’s Repair and Return experience

exceeded the requirement in the performance work statement that a vendor collect repair

data and provide recommendations on repair requirements to such an extent as to render

the Army’s decision not to award Sigmatech a strength irrational.

The Army, however, assigned a strength to section 2.1.2 of DigiFlight’s quotation

and stated that:

The Offeror has provided extensive support to R&R programs for over three

decades. The Offeror has developed and will provide the SAMD [redacted].

The Offeror also plans to combine the existing expertise with the [redacted]

data collection methodology to refine the R&R process to automatically

collect Web Repair of Repairable (WebRoR) data for better tracking from

Corpus Christi Army Depot (CCAD), Letterkenny Army Depot (LEAD), and

industry.

The Offeror’s R&R experience will benefit SAMD by utilizing its innovative

SAMD [redacted] in conjunction with the WebRoR system to track and

assist in the management of repair requirements, requisition

documentation, contract information, and other major commands data to

35

generate R&R reports. The system along with the Offeror’s cited very

extensive experience with the SAMD R&R process will benefit SAMD by

increasing the amount of data and status information collected from CCAD,

LEAD, and industry.

Contrary to protestor’s argument at the oral argument that the Army “fail[ed] to describe

how a blanket statement [by DigiFlight] without any context, we have 30 years of

experience, is somehow a creation of a strength,” the Army’s decision to award DigiFlight

a strength under section 2.1.2 only was based in part on Team DigiFlight’s three decades

of Repair and Return experience.

In section 2.1.2 of DigiFlight’s quotation, DigiFlight had noted that “Team DigiFlight

has supported multiple country R&R programs for over three decades. We developed the

SAMD [redacted] to assist in managing UAE, Egypt, Saudi Arabia, and Kuwait FMS

cases.” DigiFlight stated in its quotation that:

Our approach is to continue to use our Team expertise, coupled with

[redacted] data collection methodology, to refine R&R processes and

automatically collect WebRoR data to track repair status, costs, and

capabilities from CCAD, LEAD, and OEMs/industry. In coordination with

USASAC, we streamline country notification processes and automate repair

recommendation, depot notification, and acceptance processes prior to

industry solicitation.

DigiFlight also stated that its “approach is to manage thousands of assets through

database systems that maintain accountability by tracking and monitoring R&R assets

from FMS Partner requests for repair through return-of-country assets.”

Section 2.1.2 of the performance work statement required that the contractor

collect data from Corpus Christi Army Depot and Letterkenny Army Depot in order to

update requisition reports and provide recommendations on repair requirements. The

Army identified Team DigiFlight’s development and provision of the SAMD [redacted] as

a benefit to the Army and noted that DigiFlight would be combining its experience with

[redacted], which is an [redacted] developed by Team DigiFlight, [redacted]. The Army

also indicated that Team DigiFlight’s experience with the SAMD [redacted], which Team

DigiFlight developed, will increase the amount of data and information received from

Corpus Christi Army Depot and Letterkenny Army Depot. The Army articulated a rational

basis for determining that section 2.1.2 of DigiFlight’s quotation exceeded the

requirements of the performance work statement and warranted assignment of a strength

because the Army determined that DigiFlight’s performance would refine the SAMD

Repair and Return process and increase the amount of Repair and Return data received.

Although disparate treatment claims “can succeed when protesters demonstrate

inconsistencies in subjective judgments,” see Enhanced Veterans Sols., Inc. v. United

States, 131 Fed. Cl. 565, 588 (2017), Sigmatech has asserted that it should have received

a strength because “Sigmatech demonstrated equal (at least) R&R experience” as

DigiFlight. Sigmatech overlooks the other benefits the Army identified in DigiFlight’s

36

quotation, such as DigiFlight’s ability to improve the Army’s Repair and Return program,

and does not identify information indicating that the Army improperly treated Sigmatech’s

quotation and DigiFlight’s quotation differently.

At the November 13, 2018 oral argument, counsel of record for protestor argued

that, in DigiFlight’s quotation, DigiFlight did not state that “Digiflight did not intend or

promise to use the [redacted]. It [DigiFlight] merely said that it [DigiFlight] had developed

it.” In DigiFlight’s quotation, DigiFlight divided its quotation into two parts, which were

labeled “Understanding” and “Methodology,” for each section in the performance work

statement. (emphasis and capitalization in original). Under the “Methodology” section of

DigiFlight’s quotation addressing section 2.1.2 of the performance work statement,

DigiFlight stated that “[w]e developed the [redacted],” and that “[o]ur tools track and assist

in the management of repair requirements, requisition documentation, contract

information, other major commands data, and to generate key R&R reports.” (emphasis

and capitalization in original). Because the statement that Team DigiFlight had developed

the SAMD [redacted] was in a section discussing DigiFlight’s proposed methodology for

performance of section 2.1.2 and in response to a requirement in section 2.1.2 addressing

the collection of repair data, the court finds that it was reasonable for the Army to conclude

that DigiFlight would use the SAMD [redacted] if awarded a task order under the TORFQ.

Regarding the single strength assigned to sections 2.1.1 and 2.1.3 of DigiFlight’s

quotation, Sigmatech asserts that the Army awarded DigiFlight a strength because of

DigiFlight’s use and understanding of [redacted], but overlooked Sigmatech’s use and

understanding of [redacted] and development of the [redacted], which is referred to by

the parties as [redacted]. Section 2.1.1 of the performance work statement stated that the

vendor shall “perform financial analyses, verification of FMS monies and provide input

and recommendations utilizing automated databases and systems,” “track case funding

consisting of country level, case level, line level and requisition level data using

databases,” and “develop and utilize an automated system for FMS financial data

collection. This system should access multiple FMS databases and work towards an

output that standardizes FMS financial status data reporting.” Section 2.1.3 required that

a vendor “provide recommendations regarding financial database programs for particular

systems and in the establishment of future databases for the budgetary support of the

FMS cases” and “provide maintenance of these financial databases for all FMS

requirements in order to provide status/information as input to required reports.”

In Sigmatech’s quotation, Sigmatech stated that Sigmatech employs FMS financial

analysts “with decades of relevant experience in supporting the diverse needs of ASAE

[Army Security Assistance Enterprise].” Under section 2.1.3, Sigmatech asserted:

We recommend and support the development of SAMD-unique financial

databases, which monitor and report on implemented FMS case line

budgets and expenditure. Sigmatech assists in the development and

maintenance of FAST financials, which is a compilation of financial reports

drawn from GFEBS, PBAS, SOMARDS, and DIFS financial databases.

37

Sigmatech’s quotation also addressed Sigmatech’s assistance with the development of

the [redacted], as Sigmatech stated:

We support the migration of legacy SA systems to [redacted], a DoD system

which will be common across MILDEPs (2.1.3.1). [redacted] will replace the

Army legacy systems for logistics and financial processes, such as CISIL

and PBAS. Sigmatech has provided SME support to the development of

this system, to include analysis of interfaces with the Army-wide GFEBS

accounting system. . . . [redacted] will provide the FMS customer with a

common and standard system for management of their FMS cases.

(emphasis in original).

In the Army’s Evaluation Worksheet, the Army indicated that Sigmatech’s

quotation met the performance requirements under sections 2.1.1 and 2.1.3 of the

TORFQ. The Army commented that, under section 2.1.1, Sigmatech’s “experience with

various Foreign Military Sales (FMS) financial systems is useful to SAMD in performing

financial analysis and providing input and recommendations.” Also under section 2.1.1,

the Army stated that, while Sigmatech’s “experience on the Saudi PATRIOT program is

valuable to understanding the importance of organization and financial tracking, it does

not support the PWS requirement of developing an automated database that provides

standardized reports from multiple systems.” Under section 2.1.3, the Army commented

that Sigmatech “cites experience under another organization’s task order in aiding in the

development [sic] the [redacted]. The offeror states this system will aid in case

management for the FMS customers and will also support SAMD Case Managers.” The

Army asserted that Sigmatech “demonstrates experience in aiding in the development of

a case management system however; details on how it will perform these tasks in support

of SAMD are not provided.”

Indeed, in section 2.1.3 of Sigmatech’s quotation, Sigmatech primarily focused on

the benefits the [redacted] eventually would bring to the Department of Defense when

implemented. Sigmatech did not indicate in its quotation when the [redacted] was

scheduled to be implemented and noted multiple times that the [redacted] still was being

developed. At the November 13, 2018 oral argument, counsel of record for protestor

noted that the date on which the Security Enterprise Solution is anticipated to be

implemented is “not in the record,” but asserted that “[m]y understanding is that it will be

in the next five years, but I don’t see anything in the record that describes that.” Counsel

of record for defendant stated that “some day down the road we may have this system

[redacted], maybe within the -- maybe within the life span of this contract, maybe not. As

-- it’s not beyond the pale to believe that a large software system being developed might

be delayed.” In the Army’s Evaluation Worksheet of Sigmatech’s quotation, the Army

indicated that Sigmatech’s generalized, broad statements about the future benefits of the

[redacted] did not explicitly address how Sigmatech would address the Army’s current

needs under section 2.1.3 of the performance work statement. The Army did not ignore

Sigmatech’s aid in developing the [redacted], but provided a comment in the Evaluation

Worksheet that Sigmatech had experience in assisting with the development of a case

38

management system and that Sigmatech had indicated that the [redacted] will aid in case

management for FMS customers. Sigmatech’s disagreement with the Army’s decision to

comment on the Sigmatech’s assistance with the development of the [redacted], but not

to award a strength for such assistance, is not sufficient to support Sigmatech’s claim that

the Army irrationally evaluated Sigmatech’s quotation. See Centerra Grp., LLC v. United

States, 135 Fed. Cl. 587, 604 (2017) (“Disagreements with a procuring agency’s

evaluation, ‘no matter how vigorous, fall far short of meeting the heavy burden of

demonstrating that the findings in question were the product of an irrational process and

hence were arbitrary and capricious.’” (quoting Banknote Corp. of Am. v. United States,

56 Fed. Cl. at 384)); see also Kvichak Marine Indus., Inc. v. United States, 118 Fed. Cl.

385, 391 (2014) (“Disagreement with the agency’s decision is not enough for Kvichak

[protestor] to prevail.” (citations omitted)).

In DigiFlight’s quotation, DigiFlight had stated:

Team DigiFlight uses [redacted] to collect financial transactions

(commitments, obligations, and disbursements), automate financial

analysis, generate standardized SAMD financial reports, and provide inputs

and recommendations based on the analysis and reports. Our Team

developed [redacted], maintains the underlying code, and

recommends [redacted] for future SAMD Division and Branch support.

As shown in Figure 2.1, we maintain and update [redacted] standardized

FMS financial reports by accessing access and extract financial data from

[redacted]. [redacted]-generated standardized reports provide automated

comparisons of source data to quickly identify anomalies, verify [redacted]

funding sources, and generate case funding and budget execution reports.

Our Team’s [redacted] analysts facilitate case funding tracking and report

at the country, case, line, and requisition levels. We collect, process, and

report [redacted] and [redacted] data to enhance financial case status

(emphasis in original). DigiFlight asserted that, with “the fivefold increase in AMCOM FMS

cases over the past decade, an automated FMS financial data collection and

standardized reporting system, such as [redacted], is essential to the collection of data to

support budgetary processes for management of the $53.2B in undelivered value for over

1,000 SAMD-managed FMS cases.” According to DigiFlight, “Team-developed

[redacted] automatically retrieves and merges critical FMS financial records from legacy

databases, improves accuracy and efficiency, and [redacted].” (emphasis in original).

DigiFlight further asserted that “[o]ur [redacted] growth plan is used to provide

recommendations to SAMD regarding database programs for specific systems and to

establish future Team-developed automated solutions. Our programming team maintains

these tools to meet SAMD future requirements.”

Regarding section 2.1.1 and 2.1.3 of DigiFlight’s quotation, in the Evaluation

Worksheet of DigiFlight’s quotation, the Army awarded DigiFlight a strength and stated

that:

39

The Offeror’s proposal details its response to the Task Order Request for

Quotation (TORFQ) and the USG Performance Work Statement’s

requirements for financial databases, analysis, tracking and use, as well as

the updates and maintenance of those databases. The Offeror has

developed a financial reporting system called [redacted], which accesses

the pertinent SAMD financial systems to include [redacted]. The Offeror

demonstrates superior understanding of multiple SAMD databases

necessary to support its proprietary [redacted] system that provides an

exceptional level of financial support by maintaining and updating [redacted]

standardized reports to aid in quickly identifying anomalies and for case

managers to use in managing and executing Foreign Military Sales (FMS)

case lines. The [redacted] system also collects, processes, and reports data

from [redacted]. The Offeror utilizes legacy systems for reporting,

maintaining the underlying code for [redacted], and providing

recommendations and plans for future growth of the [redacted] system to

support SAMD’s evolving needs.

The Offeror’s specialized knowledge and experience in both legacy and

current data systems will be advantageous to SAMD in managing case line

and contract financials. The use of the legacy systems and the innovative

development of the [redacted] system will enable the Offeror to provide

critical recommendations to SAMD for future growth and exceptional

support for program resource control. The Offeror’s development and

maintenance of its innovative [redacted] system will also benefit SAMD by

exporting data from multiple SAMD financial databases and will provide a

consistent standardized report. The Offeror’s unique skillset with [redacted]

and legacy systems will increase mission efficiency of financial

management by reducing the time to pull reports from multiple systems,

simplifying data utilization, and providing automated financial solutions to

the FMS case managers.

Consistent with the Army’s rationale for awarding DigiFlight’s quotation a strength,

DigiFlight’s quotation discussed, at length, that DigiFlight had developed and maintained

the underlying code for [redacted] and explained that [redacted] automatically retrieved

existing FMS records from legacy databases, a requirement listed in section 2.1.1 of the

performance work statement. The Army identified DigiFlight’s experience with [redacted]

and legacy systems as providing DigiFlight with the ability to increase the efficiency of

collecting financial data, which the Army stated would be beneficial to the Army by

reducing the amount of time spent retrieving financial data. By maintaining the underlying

code to [redacted], the Army also stated that DigiFlight would be able to further develop

[redacted] to support “SAMD’s evolving needs,” which appears to relate to the

requirement in section 2.1.3 of the performance work statement that a vendor provide

recommendations regarding the “establishment of future databases for the budgetary

support of the FMS cases.” The Army’s conclusion appears to be supported by

DigiFlight’s quotation, as DigiFlight’s “[redacted] plan” is to provide to the Security

Assistance Management Directorate recommendations “regarding database programs

40

for specific systems and to establish future Team-developed automated solutions.”

According to the Army’s Evaluation Worksheet, DigiFlight’s experience with legacy

systems and [redacted] also is advantageous to the Army because it permits DigiFlight to

support “future growth and exceptional support for program resource control,” which

appears to be supported by DigiFlight’s statement that its resource management

approach “provides a low-cost, time saving, and automated data collection

methodology coupled with analytical processes to track country, case, and line

execution; facilitates auditability and traceability; and provides total program resource

control.” (emphasis in original).

Although Sigmatech did state in its proposal that Sigmatech “[redacted],”

Sigmatech only mentioned [redacted] once, and Sigmatech did not elaborate on the

benefits Sigmatech’s use [redacted] would bring to the Security Assistance Management

Directorate in a manner remotely similar to DigiFlight’s description. DigiFlight explained

and emphasized, at length, the benefits DigiFlight’s use of [redacted] provided to the

Security Assistance Management Directorate and how DigiFlight could further alter

[redacted] to meet the developing needs of the Security Assistance Management

Directorate. Sigmatech did not assert that it maintained the underlying code for [redacted]

or that Sigmatech had the ability to develop [redacted] to meet the needs of the Security

Assistance Management Directorate. Sigmatech’s discussion of [redacted] and

DigiFlight’s discussion of [redacted] differed in detail and in substance, and the Army

articulated a basis for assigning a strength to sections 2.1.1 and 2.1.3 of DigiFlight’s

quotation. As such, the Army did not engage in disparate treatment when awarding a

strength to sections 2.1.1 and 2.1.3 of DigiFlight’s quotation. Moreover, the Army’s

evaluators had discretion when assigning strengths to quotations received by the Army,

and the strength assigned to sections 2.1.1 and 2.1.3 of DigiFlight’s quotation was rational

and supported by the administrative record.

Regarding the strength the Army assigned to section 2.2.2 of DigiFlight’s quotation,

section 2.2.2 of the performance work statement stated that the vendor shall “perform

cost estimating and analysis of data prepared and furnished by other contractors and

USG agencies” and “provide analysis of the life cycle cost requirements for FMS

programs.” In section 2.2.2 of DigiFlight’s quotation, DigiFlight had stated that “Team

DigiFlight uses our Team’s [redacted] cost estimating analysts to conduct line-by-line

reviews of LOR data provided by PMs, OEMs, and USG agencies. We provide thorough

analyses of life cycle costs and recommendations during reviews with SAMD, FMS

Partners, and prime contractors.” In the Army’s Evaluation Worksheet discussing

DigiFlight’s quotation, the Army assigned a strength to section 2.2.2 of DigiFlight’s

quotation and stated:

The Offeror demonstrates the unique ability to perform cost analysis by

utilizing their [redacted] cost estimation analysts, which are personnel

trained and certified using cost analysis methods. This training, already

provided to the Offeror’s existing workforce, will improve the quality of

detailed cost assessments to SAMD.

41

The Army’s Evaluation Worksheet of DigiFlight’s quotation indicates the Army

determined that training in the use of [redacted] was a desirable quality for a vendor to

possess because, under section 2.2.2 of the performance work statement, vendors were

required to perform cost estimating and analysis. The Army’s evaluators explained that

the Army believed that DigiFlight’s pre-existing training in [redacted] would improve the

quality of cost assessments provided to the Security Assistance Management Directorate.

Although the Army’s discussion of how training in [redacted] will improve the quality of

cost assessments is not of ideal clarity, the Army has articulated a rational reason to

award DigiFlight a strength, as training in [redacted] appears to support the Army’s

requirement of cost estimating and analysis of cost data, as well as the Army’s conclusion

that certification and training in the use of [redacted] will improve the quality of cost

assessments. See Info. Scis. Corp. v. United States, 73 Fed. Cl. 70, 108 (2006), recons.

granted in part on other grounds, 75 Fed. Cl. 406 (2007). Moreover, the “assignment of

technical ratings is a matter that is within the broad discretion of the procuring agency,

and this court will not intrude into that area in the absence of truly irrational conduct on

the part of the agency.” See FirstLine Transp. Sec., Inc. v. United States, 100 Fed. Cl. at

397; see also Kiewit Infrastructure W. Co. v. United States, 137 Fed. Cl. 689, 706 (2018)

(“The court will not second-guess the Corps’ technical judgment.”). Sigmatech has not

demonstrated why it was irrational for the Army to conclude that training in [redacted] did

not exceed the requirement of cost estimating and analysis of cost data in section 2.2.2

of the performance work statement.

As noted by Sigmatech, the Army did not assign a strength to section 2.2.2 of

Sigmatech’s quotation, although the Army determined that Sigmatech’s quotation met the

requirements of the performance work statement. In Sigmatech’s quotation, Sigmatech

did discuss its technical ability to perform cost analyses. Although Sigmatech argues that

Sigmatech “devoted almost a full page describing its approach to the lifecycle cost

requirement, including the disciplines it uses and how those disciplines relate to SAMD’s

mission,” Sigmatech’s disagreement with the Army’s judgment, without more, is not

sufficient to overcome the Army’s judgment when assigning strengths. See FFL Pro LLC

v. United States, 124 Fed. Cl. 536, 558 (2015) (stating that a protestor had “not met its

heavy burden of establishing” that the agency’s evaluation was unreasonable when the

protestor’s “contentions amount to nothing more than disagreements with the strengths

assigned” by the agency). Sigmatech’s quotation and DigiFlight’s quotation differed, as

Sigmatech did not indicate that its staff were trained or certified in [redacted]. Sigmatech

has not demonstrated why the Army engaged in disparate treatment when assigning a

strength to section 2.2.2 of DigiFlight’s quotation based on training that Sigmatech did not

discuss in its quotation. See Enhanced Veterans Sols., Inc. v. United States, 131 Fed.

Cl. at 588 (“When a court is not convinced that the aspects of the proposals brought to its

attention are indistinguishable for purposes of the evaluation, then the exercise instead

crosses the line and involves the second guessing of ‘minutiae’ which we are not allowed

to undertake, see E.W. Bliss Co. [v. United States], 77 F.3d [445,] 449 [(Fed. Cir. 1996)].”).

In evaluating the vendors’ quotations, the Army is entitled to a presumption of

regularity, as “[t]here is a ‘strong presumption that government officials act correctly,

honestly, and in good faith when considering bids.’” McVey Co., Inc. v. United States, 111

42

Fed. Cl. at 403-04 (quoting Savantage Fin. Servs., Inc. v. United States, 86 Fed. Cl. 700,

703 (2009), aff’d, 595 F.3d 1282 (Fed. Cir. 2010)); see also Pyramid Real Estate Servs.,

LLC v. United States, 95 Fed. Cl. 125, 134 (2010) (citation omitted). Sigmatech has not

shown that the Army’s evaluators acted improperly or otherwise acted not in accordance

with the law when evaluating Sigmatech’s quotation or DigiFlight’s quotation. Sigmatech,

therefore, has failed to show that the Army engaged in any disparate treatment when

evaluating DigiFlight’s quotation and Sigmatech’s quotation or that the Army acted

irrationally by failing to award strengths to Sigmatech’s quotation as suggested by

Sigmatech.13

Sigmatech also asserts that the Army’s Best Value and Fair and Reasonable

Determination was flawed. Sigmatech states that Sigmatech and DigiFlight both received

a rating of outstanding under the Risk Mitigation and Management factor and that

Sigmatech proposed a lower price. Sigmatech asserts that the Army made award to

DigiFlight based on a “perceived distinction between the offerors’ expertise under the

Technical Expertise Factor,” and that the Army “was wrong to do so.” Sigmatech argues

that the Army “improperly attributed Digiflight with development credit for [redacted],” but

that “Digiflight did not develop [redacted], nor did it claim to have done so.” Sigmatech

argues that, “[s]imilarly, Digiflight failed to explain how it would use both the [redacted]

and the [redacted] system.” According to Sigmatech, “just as problematic, was the

Agency’s unequal evaluation of proposals,” which Sigmatech asserts “zeroed-in on the

[redacted] system as the key technological discriminator,” but “never accounted for

Sigmatech’s use of the [redacted] system.” Sigmatech also contends that:

Sigmatech’s proposal demonstrated its participation in the development of

[redacted] - - the program that will replace [redacted]. But that participation

was not mentioned at all in the contemporaneous evaluation record, and

certainly was not the basis of a strength as was Digiflight’s participation in

the development of other tools. That is impermissible.

(internal references and citation omitted).

Defendant contends that the Army’s source selection decision was rational and

that Sigmatech’s argument to the contrary “is no more than a continuation of its unequal

treatment arguments addressed above.” Defendant argues that the Army’s source

selection decision was “comprehensively discusses” “[o]ver 27 pages,” and that “it is

difficult to conceive of how the contracting officer could have provided more of an

explanation or documentation of the award decision rationale.” Defendant contends:

Sigmatech does identify one minor error in the best value determination. In

the summary of the evaluation findings contained in the best value

13 The GAO also rejected Sigmatech’s claim that the Army unreasonably evaluated

Sigmatech’s quotation and concluded that Sigmatech’s “disagreement with the agency’s

judgment does not provide a basis to sustain the protest.” See Sigmatech, Inc., 2018 WL

5110874, at *4 (citation omitted).

43

discussion, [redacted] was inadvertently listed as one of the tools developed

by Team DigiFlight. However, the summary also omitted what the

evaluators noted as a strength in DigiFlight’s proposal related to [redacted]:

offering of cost analysts trained and certified in the [redacted] system. All

the strengths assigned to each offeror were listed correctly at the beginning

of the SSD [source selection decision], but due to a scrivener’s error, when

DigiFlight’s strengths were summarized for the best value discussion,

DigiFlight’s strength related to [redacted] was noted incorrectly.

This minor error did not materially impact the result of the best value

determination in any way, because it did not involve adding an extra

strength to DigiFlight or taking one away from Sigmatech. Rather, this minor

error merely mischaracterized in the summary a strength correctly recorded

for the particular PWS requirement and recognized earlier in the evaluation

document.

(internal references omitted).

In defendant-intervenor’s cross-motion for judgment on the administrative record,

defendant-intervenor likewise asserts that the Army’s source selection was rational and

supported by the administrative record. According to defendant-intervenor, “[b]ecause

Sigmatech’s evaluation claims fail, so does its objection to the Source Selection

Decision.”

The parties in the above-captioned bid protest have stipulated that the “TORFQ

was issued pursuant to the Army’s AMCOM EXPRESS Blanket Purchase Agreements

and the procurement procedures of Federal Acquisition Regulation (FAR) 8.405-3(c).”

(capitalization in original). The TORFQ stated that the procurement was being conducted

under FAR Subpart 8.4, and that award “will be based on the quotation representing the

best value, using the evaluation procedures outlined below.” Under FAR § 8.405-3(c)

(2018), when an order placed against a multiple-award blanket purchase agreement14 will

exceed the simplified acquisition threshold, such as the procurement under the TORFQ,

the agency placing the order shall:

(1) Provide an RFQ to all BPA holders offering the required supplies or

services under the multiple-award BPAs, to include a description of the

supplies to be delivered or the services to be performed and the basis upon

which the selection will be made;

(2) Afford all BPA holders responding to the RFQ an opportunity to submit

a quote; and

14 The Army’s Best Value and Fair and Reasonable Determination states that the

“EXPRESS Program BPAs are multiple-award task order type contract vehicles with

provisions for time (labor hours at a fixed rate) and material, travel, and other direct costs

(ODCs) on a cost reimbursement basis.” (capitalization in original).

44

(3) Fairly consider all responses received and make award in accordance

with the selection procedures.

FAR § 8.405-3(c)(iii)(A). The agency “shall document evidence of compliance with these

procedures and the basis for the award decision.” FAR § 8.405(c)(iii)(B).

When determining which quotation offers the best value to the government in a

procurement utilizing the FSS, “[p]rocurement officials have substantial discretion.” See

Allied Tech. Grp., Inc. v. United States, 94 Fed. Cl. at 49 (citing Blackwater Lodge &

Training Ctr., Inc. v. United States, 86 Fed. Cl. 488, 514 (2009)); see also Idea Int’l, Inc.

v. United States, 74 Fed. Cl. 129, 140 (2006) (analyzing a protest challenging an award

under the FSS and stating that “[t]he Court is mindful that the agency’s evaluation and

award decision in a best value procurement is an area of wide agency discretion”

(citations omitted)). When reviewing an agency’s “FAR Part 8 tradeoff analysis, the Court

will analyze the CO’s tradeoff decision to determine whether it is reasonable and within

the agency’s discretion.” Distributed Sols., Inc. v. United States, 106 Fed. Cl. 1, 24 (2012)

(citing Allied Tech. Grp., Inc. v. United States, 94 Fed. Cl. at 50), aff’d, 500 F. App’x 955

(Fed. Cir. 2013). When a contracting officer reasonably exercises independent judgment

and makes a business decision justifying the award, the court will not overturn the

contracting officer’s determination “merely because Allied [the protestor] disagrees with

the agency’s analysis.” See Allied Tech. Grp., Inc. v. United States, 94 Fed. Cl. at 50

(citing E.W. Bliss Co. v. United States, 77 F.3d at 449); see also Holloway & Co., PLLC

v. United States, 87 Fed. Cl. 381, 396 (2009) (determining that an agency’s best value

trade-off determination in a procurement utilizing the FSS was reasonable when the

agency “offered a ‘“coherent and reasonable explanation of its exercise of discretion”’”

(quoting Centech Grp., Inc. v. United States, 554 F.3d at 1037 (quoting Impresa

Construzioni Geom. Domenico Garufi v. United States, 238 F.3d at 1332-33))).

In the above-captioned bid protest, the Army noted in its Best Value and Fair and

Reasonable Determination that the Technical Expertise factor and the Risk Mitigation and

Management factor were of equal weight, and that each factor was more important than

the Price factor, which the Army stated was not expected to be the “controlling criterion”

under the TORFQ. The Best Value and Fair and Reasonable Determination discussed

the ratings, strengths, weaknesses, and deficiencies assigned by the Army’s evaluators

and provided the following chart summarizing the evaluators’ conclusions:

Offeror DigiFlight Sigmatech S3

Technical Outstanding Good [redacted]

Expertise

Risk Mitigation & Outstanding Outstanding [redacted]

Management

Total Price $63,001,142.24 $61,454,297.78 [redacted]

45

The Army noted that all offerors demonstrated a capability to successfully perform the

requirements in the TORFQ.

Under the Risk Mitigation and Management factor, in the Best Value and Fair and

Reasonable Determination, the Army stated:

DigiFlight and Sigmatech both received the rating “Outstanding” indicating

an exceptional approach. Both demonstrated a thorough approach to Risk

Mitigation and Management. Both demonstrated proven techniques in their

abilities to obtain and retain qualified personnel, ability to bring together the

right team to perform PWS requirements and the ability to effectively

manage the project; thus providing continuous support and risk mitigation

through the performance of the PWS requirements.

The Army had assigned three strengths to the Risk Mitigation and Management factor in

both DigiFlight’s quotation and Sigmatech’s quotation.

The Army’s Best Value and Fair and Reasonable Determination noted that, under

the Technical Expertise factor, DigiFlight was the only vendor who received a rating of

outstanding, as Sigmatech [redacted] received ratings of good under the Technical

Expertise factor. According to the Army, DigiFlight’s quotation provided “superior

responses describing their capability to accomplish the PWS requirements and how they

plan to meet requirements through examples of relevant experience associated with each

PWS paragraph.” The Army stated that DigiFlight demonstrated “exceptional capability”

and presented “virtually no risk to the Government.” Indeed, DigiFlight received five

strengths under the Technical Expertise factor, as compared to Sigmatech [redacted],

who the Army noted had each received one strength under the Technical Expertise factor.

The Army identified other benefits DigiFlight’s proposed performance would provide to

the Army, including:

DigiFlight demonstrated exceptional understanding in the use of current and

legacy data systems. DigiFlight developed and implemented numerous

systems and databases such as [redacted]. The implementation of these

programs will significantly aid in collecting, processing and refining,

analyzing and tracking data. The use of such innovative databases/systems

will effectively redefine data collection and processing.

The Army’s Best Value and Fair and Reasonable Determination, therefore, identified

multiple benefits associated with DigiFlight’s quotation under the Technical Expertise

factor.

Regarding the Price factor, the Army stated:

Based upon a price comparison of the Offerors, all three Offerors total

quoted prices are lower than the Independent Government Estimate (IGE).

DigiFlight’s total quoted price of $63,001,142.24 is 2% higher than

46

Sigmatech’s total quoted price of $61,454, 297.78 and [redacted] lower than

S3’s quoted price of [redacted]. Sigmatech’s total quoted price of

$61,454,297.78 is 6% lower than S3’s quoted price of [redacted].

(capitalization in original). The Army’s discussion of price accurately approximated the

differences in the vendors’ proposed prices, as DigiFlight’s proposed price,

$63,001,142.24, is approximately 2.517 percent higher than Sigmatech’s proposed price

of $61,454,297.78. DigiFlight’s proposed price, $63,001,142.24, is approximately

[redacted] percent lower than S3’s proposed price of [redacted].

The Army concluded in the Best Value and Fair and Reasonable Determination

that, “[d]ue to its ratings of ‘Outstanding’ for Technical Expertise and Risk Mitigation and

Management and the 2% price premium between it and Sigmatech, DigiFlight’s proposal

offers the best value to the Government.” In a section of the Best Value and Fair and

Reasonable Determination titled “Trade-Off Discussion,” the Army stated:

The Government considered DigiFlight’s strengths in the critical

requirements for both its Technical Expertise and Risk Mitigation and

Management. There were no weaknesses in either of these categories.

DigiFlight demonstrated the capability and experience to successfully

perform the requirements of the PWS with virtually no risk to the

Government. Consistent with the evaluation criteria, Technical Expertise

and Risk Mitigation and Management are of greater importance than Price.

DigiFlight demonstrated a far superior approach in both Technical Expertise

and Risk Mitigation and Management. DigiFlight received the highest

ratings in the two most important criteria (Technical and Risk Mitigation and

Management), and only presented a slight disadvantage over Sigmatech in

the least important criteria of Price. DigiFlight’s significant strengths

exceeds specified performance capability requirements in a way that will be

advantageous to the Government during contract performance.

Consequently, DigiFlight’s strengths in Technical Expertise and Risk

Mitigation and Management support the Government’s payment of a higher

price premium and will provide the Government the best value.

(capitalization in original).

Although DigiFlight and Sigmatech both received ratings of outstanding under the

Risk Mitigation and Management factor, under the Technical Expertise factor, DigiFlight

received a rating of outstanding, which, under the terms of the TORFQ, indicates an

“exceptional level of expertise” and that strengths “far outweigh any weaknesses.”

Sigmatech only received a rating of good under the Technical Expertise factor, which,

according to the TORFQ, indicates that Sigmatech had a “thorough level of expertise,”

and that Sigmatech’s strengths “outweigh any weaknesses.” Moreover, under the

Technical Expertise factor, DigiFlight received five strengths, while Sigmatech only

received one strength. Under the terms of the TORFQ, the Technical Expertise factor and

the Risk Mitigation factor were of equal value, which indicates that DigiFlight’s quotation’s

47

higher rated Technical Expertise factor and equally rated Risk Mitigation factor was of

more value to the Army than Sigmatech’s quotation under those two factors. In addition

to noting that DigiFlight’s quotation had received a higher rating under the Technical

Expertise factor, the Army also identified multiple benefits in DigiFlight’s quotation under

the Technical Expertise factor, as discussed above. The Army’s Best Value and Fair and

Reasonable Determination indicates that the Army determined that DigiFlight’s proposed

performance justified paying an approximately two percent price premium to DigiFlight in

order to obtain DigiFlight’s “far superior approach in both Technical Expertise and Risk

Mitigation and Management” at only a “slight disadvantage” in price. The Army’s best

value trade-off decision appears to have been made in accordance with the evaluation

criteria in the TORFQ, which stated that the Risk Mitigation and Management factor and

the Technical Expertise factor both were of greater importance than price. The Army

documented its business judgments when choosing to pay a premium of approximately

only two percent in exchange for a quotation the Army believed to have the strongest

technical approach, as well as a risk mitigation and management approach that also

received the highest adjectival rating under the TORFQ, which indicates that the Army

rationally exercised its discretion when conducting a best value trade-off under FAR

§ 8.405-3(c). See Allied Tech. Grp., Inc. v. United States, 94 Fed. Cl. at 50 (citing E.W.

Bliss Co. v. United States, 77 F.3d at 449); see also Holloway & Co., PLLC v. United

States, 87 Fed. Cl. at 396.

Regarding Sigmatech’s argument that the Army “improperly attributed Digiflight

with development credit for [redacted],” in the Army’s Best Value and Fair and

Reasonable Determination, the Army stated that “DigiFlight developed and implemented

numerous systems and databases” and provided a list that included the “[redacted] and

incorporating the use of [redacted].” In DigiFlight’s quotation, DigiFlight had stated that

“Team DigiFlight uses our Team’s [redacted] cost estimating analysts,” but did not discuss

the development of [redacted]. Although the Army appears to have inadvertently included

[redacted] in a list of systems developed and to be utilized by DigiFlight, award to

DigiFlight does not appear to have been premised on the Army’s incorrect statement that

DigiFlight developed [redacted]. Prior to stating that DigiFlight had developed [redacted],

in the Army’s Best Value and Fair and Reasonable Determination, the Army correctly

noted that the Army had awarded DigiFlight a strength based on DigiFlight’s use of

[redacted], not because DigiFlight had developed [redacted]. The Army also correctly

identified the five strengths DigiFlight received under the Technical Expertise factor and

the ratings assigned to DigiFlight’s quotation, and the one minor misstatement in the

Army’s Best Value and Fair and Reasonable Determination does not override the Army’s

determination that the use of [redacted] was a strength in DigiFlight’s quotation or the

Army’s sufficiently documented decision that DigiFlight’s quotation offered the best value

to the Army.

Regarding Sigmatech’s argument that the Army’s Best Value and Fair and

Reasonable Determination was flawed because “Digiflight failed to explain how it would

use both the [redacted] and the [redacted],” in its quotation, DigiFlight stated that “[w]e

developed the SAMD [redacted] to assist in managing UAE, Egypt, Saudi Arabia, and

Kuwait FMS cases. Our tools track and assist in the management of repair requirements,

48

requisition documentation, contract information, other major commands data, and to

generate key R&R reports.” DigiFlight also stated:

Team-developed [redacted] tool includes [redacted] and is available at

no additional development cost to SAMD. [redacted] facilitates retrieval

of products to respond rapidly to partner questions and can be used to

develop inputs for issue papers, briefings, program booklets, FMS

documentation, handbooks, and training courses IAW the CDRL [contract

data requirements list].

(emphasis in original). DigiFlight asserted that “[redacted] and [redacted] automate and

integrate program management and multiple simultaneous users; provide enhanced risk

identification and resolution; and delivers in-country and regional support to COCOMs

and FMS Partners.” (emphasis in original). DigiFlight’s quotation indicated that DigiFlight

uses both the [redacted] and the [redacted] and described the purpose of both the

[redacted] and the [redacted]. Sigmatech’s argument that DigiFlight “failed to explain” how

DigiFlight would use the [redacted] and the [redacted], therefore, is factually incorrect and

unsupported by the administrative record.

Sigmatech’s argument that the Army’s best value determination was flawed

because the Army improperly credited DigiFlight’s use of [redacted] but did not “account[]”

for Sigmatech’s use of [redacted] and assistance with the development of the [redacted]

is repetitive of Sigmatech’s unavailing disparate treatment claim discussed above and

also fails. As discussed above, the Army rationally awarded DigiFlight a strength based

on Team DigiFlight’s development and use of [redacted], as well as Team DigiFlight’s

retention of the underlying code for [redacted], which the Army stated could be modified

to meet the future needs of the Security Assistance Management Directorate. It was

rational for the Army to not award a strength to Sigmatech based on Sigmatech’s one-

line statement that Sigmatech “assists in the development and maintenance of [redacted]

financials” because Sigmatech did not fully discuss its use of [redacted], the benefits of

[redacted], or indicate that Sigmatech maintained the underlying code for [redacted] with

the ability to modify [redacted] to meet the Army’s future needs. The Army also noted that

Sigmatech’s development of the [redacted], a system that is still being developed,

“demonstrates experience in aiding in the development of a case management system,”

but rationally determined that Sigmatech did not provide “details on how it will perform

these tasks in support of SAMD.” The Army’s Best Value and Fair and Reasonable

Determination was not flawed because it stated that DigiFlight developed and utilized

[redacted], which was a strength rationally awarded to Team DigiFlight’s quotation.

Sigmatech, therefore, has failed to demonstrate that the Army’s best value trade-off

decision was flawed.

In Sigmatech’s complaint in the above-captioned bid protest, Sigmatech further

asserts that

KBRWyle (and therefore, DigiFlight) has an organizational conflict of

interest—that is, as the subcontractor to DigiFlight under the RFQ and as

49

the contractor under the DS TAT task order, KBRWyle would have to

monitor and evaluate its own work under the DS TAT task order an

impermissible impaired objectivity OCI.

In Sigmatech’s motion for judgment on the administrative record, Sigmatech argues that

the Army’s evaluation “of KBRWyle’s impaired objectivity OCI resulting from its work on

related task orders was arbitrary, capricious, and contrary to law.” According to

Sigmatech, “if DigiFlight is awarded the TORFQ, KBRWyle will be overseeing and

providing the inputs for its own work, resulting in a gross violation of the impaired

objectivity OCI rules.” Sigmatech states:

It is true th

This text is long and has been trimmed here. Open the source document for the complete record.