# Safeguard Base Operations, LLC v. United States

> United States Court of Federal Claims · August 12, 2019

URL: https://www.frixlaw.com/law-library/cases/4424968

## Case

- **Court:** United States Court of Federal Claims
- **Decided:** August 12, 2019
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

In the United States Court of Federal Claims
No. 19-61C
Filed: July 2, 2019
Redacted Version Issued for Publication: August 12, 20191

* * * * * * * * * * * * * * * * ** *
SAFEGUARD BASE OPERATIONS, *
LLC, *
*
Protestor, *
* Post-Award Bid Protest; Motion to
v. * Dismiss; Cross-Motions for
* Judgment on the Administrative
UNITED STATES, Record; Standing; Solicitation
*
* Interpretation; Waiver; Clarifications;
Defendant,
Best-Value Tradeoff.
v. *
B&O JOINT VENTURE, LLC, *
Defendant-Intervenor. *

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

Alex D. Tomaszczuk, Pillsbury Winthrop Shaw Pittman, LLP, Los Angeles, CA,
for protestor. Of counsel were Alexander B. Ginsberg, Pillsbury Winthrop Shaw Pittman,
LLP, McLean, VA, and Aaron S. Ralph and Kevin R. Massoudi, Pillsbury Winthrop
Shaw Pittman, LLP, Los Angeles, CA.

P. Davis Oliver, Senior Trial Attorney, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washington, D.C., for defendant. With him
were Douglas K. Mickle, Assistant Director, Commercial Litigation Branch, Robert E.
Kirschman, Jr., Director, Commercial Litigation Branch, and Joseph H. Hunt, Assistant
Attorney General. Of counsel was James C. Caine, Attorney, Federal Law Enforcement
Training Centers, Glynco, GA.

Richard W. Arnholt, Bass, Berry & Sims PLC, Washington, D.C., for defendant-
intervenor. Of counsel were Todd R. Overman and Sylvia Yi, Bass, Berry & Sims PLC,
Washington, D.C.

1
This Opinion was issued under seal on July 2, 2019. The parties were asked to propose
redactions prior to public release of the July 2, 2019 Opinion. Protestor, defendant, and
defendant-intervenor all proposed redactions to the court’s July 2, 2019 Opinion. The
court has accepted some of the parties’ proposed redactions and has made additional
redactions to the July 2, 2019 Opinion. Words which are redacted are reflected with the
notation: “[redacted].”
OPINION
HORN, J.

In the above-captioned, post-award bid protest, Safeguard Base Operations, LLC
(Safeguard) challenges the award of a contract to B&O Joint Venture, LLC (B&O) under
Solicitation No. HSFLGL-17-R-00001 (the Solicitation) by the United States Department
of Homeland Security, Federal Law Enforcement Training Center (the Agency).

FINDINGS OF FACT

Safeguard is a joint venture consisting of Safeguard Security Solutions, LLC
(SSSL) and SRM Group, Inc. (SRM Group). Protestor contends that Safeguard is an 8(a)-
eligible joint venture and a “leading provider of dormitory services.” SSSL is the fifty-one
percent owner of the Safeguard joint venture and is an 8(a)-eligible firm. SRM Group is
the forty-nine percent owner of the Safeguard joint venture and currently is not 8(a)-
eligible. B&O, the defendant-intervenor in this protest, is an 8(a) joint venture consisting
of BPA Facility Services Inc. and Omni Corporation.

The parties have stipulated that, from June 2012 to October 2018, SRM Group
provided to the Agency the services that were procured under the Solicitation. SRM
Group’s prior contract with the Agency, Contract No. HSFLGL-12-C-00006 (the SRM
Group Contract), was awarded as an 8(a) contract. According to Agency contracting
officer Sheryle Wood’s October 29, 2018 statement of facts submitted to the United States
Government Accountability Office (GAO) in response to a protest filed at the GAO by
Safeguard,2 SRM Group graduated from the 8(a) program on February 23, 2013.

On October 11, 2017, the Agency issued the Solicitation at issue in this Opinion,
which was issued as a commercial item acquisition and was set-aside for 8(a)-eligible
contractors. The Solicitation indicated that the contract to be awarded under the
Solicitation would be a firm-fixed price contract for dormitory maintenance services to be
provided at the Agency’s training center in Glynco, Georgia, and would have “a base
period of nine (9) months and seven (7) 12-month option periods.” The Solicitation’s
performance work statement stated that the Agency’s training center in Glynco, Georgia,
has a lodging capacity of 2,093, that the Agency was responsible for training federal law
enforcement officers, and that the Agency “is responsible for providing certain core
instructional law enforcement programs as well as a variety of support services.” The
performance work statement also stated:

The Contractor shall provide all labor, supplies, materials, equipment,
including safety and protective gear, repair parts, tools, equipment,
planning, scheduling and coordination, training, licenses, permits,
2 As discussed below, based on the Agency’s actions relating to award under the
Solicitation, Safeguard has filed five protests with the GAO, one size protest with the
Small Business Administration (SBA), and one override protest with the United States
Court of Federal Claims, which was assigned to the undersigned and currently is on
appeal at the United States Court of Appeals for the Federal Circuit.
2
certificates, insurance, pre-employment screening, reports and files,
management, and supervision necessary to perform dormitory custodial,
desk clerk, locksmith, and maintenance services for nine (9) dormitories,
five (5) student centers, one (1) laundry center and other facilities as
described throughout the Performance Work Statement (PWS).

The Solicitation provided that award under the Solicitation would be made on a
best-value basis based on factors set forth in the Solicitation. As originally issued, the
Solicitation stated that Factor A1 was management and technical approach, Factor A2
was hazardous waste management plan, Factor B was past performance, and Factor C
was price. Amendment No. 3 to the Solicitation3 added corporate experience of the prime
contractor as a factor and changed the numbering of some of the factors to be evaluated
under the Solicitation. Amendment No. 3 stated that Factor A2 was to become corporate
experience of the prime contractor, and that hazardous waste management plan, which
previously had been listed as Factor A2, was to become Factor A3. Factor A1 remained
management and technical approach, Factor B remained past performance, and Factor
C remained price. The Solicitation, as well as Amendment No. 3 to the Solicitation,
indicated that, when combined, all non-price factors were approximately equal to price.

Section A of the Solicitation, titled “SECTION A SOLICITATION GENERAL
INFORMATION,” stated: “Pricing Schedule and Periods of Performance (POP) Service
dates for each CLIN [Contract Item Line Number] are detailed in Section B. Note:
Exceptions to line item structure in Section B may result in a bid not considered for award.”
(capitalization in original). The Solicitation also provided:

3 As discussed below, the Agency issued five amendments to the Solicitation.
3
The Solicitation also contained what protestor refers to as an “‘Order of Precedence’
Clause,” which stated:

(s) Order of precedence. Any inconsistencies in this solicitation or contract
shall be resolved by giving precedence in the following order: (1) the
schedule of supplies/services; (2) The Assignments, Disputes, Payments,
Invoice, Other Compliances, Compliance with Laws Unique to Government
Contracts, and Unauthorized Obligations paragraphs of this clause; (3) the
[Federal Acquisition Regulation (FAR)] clause at 52.212-5; (4) addenda to
this solicitation or contract, including any license agreements for computer
software; (5) solicitation provisions if this is a solicitation; (6) other
paragraphs of this clause; (7) the Standard Form 1449; (8) other
documents, exhibits, and attachments; and (9) the specification.

(capitalization and emphasis in original).

The Solicitation contained FAR clause 52.212-1, titled “Instruction to Offerors -
Commercial Items,” which stated that offers may be submitted on a government Standard
Form (SF) 1449, and that offers “must show” “Price and any discount terms.”
(capitalization in original). FAR clause 52.212-1 in the Solicitation further stated:

(g) Contract award (not applicable to Invitation for Bids). The Government
intends to evaluate offers and award a contract without discussions with
offerors. Therefore, the offeror’s initial offer should contain the offeror’s best
terms from a price and technical standpoint. However, the Government
reserves the right to conduct discussions if later determined by the
Contracting Officer to be necessary. The Government may reject any or all
offers if such action is in the public interest; accept other than the lowest
offer; and waive informalities and minor irregularities in offers received.

(emphasis in original). The Solicitation also contained an addendum to FAR clause
52.212-1, which stated that an offeror’s “[p]rice proposal shall include price for the phase-
in period, base period and seven option periods.” Moreover, the addendum to FAR clause
52.212-1 stated:

Offerors shall provide a detailed breakdown of how it arrived at proposed
costs as follows: Contract Line Item Number, Description, Service Contract
Act (SCA) Occupation Code, Firm Fixed Price (FFP) Direct Labor
Categories and Rates, for all proposed exempt and non-exempt positions;
clearly identifying the proposed positions as exempt or non-exempt, full time
equivalents for each labor category, productive hours, overtime hours and
rate, exempt and non-exempt fringe benefits . . . .

***

4
Price proposal shall include completed Schedule B. In the event there is a
discrepancy between sections of the price proposal and Schedule B,
Schedule B will govern.

The addendum to FAR clause 52.212-1 directed offerors to price proposals as Volume 3
and that:

Volume 3 shall be labeled Factor C-Price (Section B, to include price
breakdown), SF 1449, SF30 Amendments, Section B price and price
breakdown, required bond, completed HSAR clause at 3052.209-70,
Prohibition on Contracts with Corporate Expatriates by checking pertinent
block at paragraph (f) Disclosure and sign at end of clause (Section C
Contract Clauses), completed FAR Clause 52.212-3 Representations and
Certifications of this solicitation (Section E Solicitation Provisions).

(emphasis in original).

The Solicitation contained a modified version of FAR clause 52.212-2, titled
“Evaluation - Commercial Items,” which stated that the Agency “will evaluate offers for
award purposes by adding the total price for all options to the total price for the basic
requirement.” (capitalization in original). An addendum to the modified version of FAR
clause 52.212-2 in the Solicitation stated:

OFFERORS ARE ADVISED THAT THE GOVERNMENT INTENDS TO
MAKE AWARD WITHOUT DISCUSSION OR ANY CONTACT
CONCERNING THE PROPOSALS RECEIVED. Therefore, proposals
should be submitted initially on the most favorable price and technical
terms. Offeror should not assume that they will be contacted or afforded an
opportunity to qualify, discuss, or revise their proposals.

(capitalization in original). The addendum further stated:

If the Government determines an award cannot be made without
discussions, a competitive range determination will be made. . . . Should a
competitive range be established, written or oral discussions may be
conducted with all responsible offerors within the competitive range.
However, the Government reserves the right to make an award without
discussions based on initial proposals.

Regarding how the Agency would evaluate offerors’ price proposals, the
addendum to the modified version of FAR clause 52.212-2 in the Solicitation stated:

Evaluation of price will be conducted using one or more of the price analysis
and/or cost realism techniques outlined in FAR 15.305 and 15.404. CO
[contracting officer] reserves the right to conduct cost/price realism to
assess performance risk resulting from unrealistically low offers. Price will

5
be evaluated to determine if the offeror’s proposed price is fair and
reasonable, complete, balanced and/or realistic.

As part of the price analysis, the government will evaluate its option to
extend services (FAR Clause 52.217-8) by adding six months of the
offeror’s final option period price to the offeror’s total price. This will result
in the total evaluated price by which the determination cited under f. (1) will
be based, in part.

Offeror is required only to price the base and option periods.

The addendum to the modified version of FAR clause 52.212-2 defined
“Completeness/Accuracy” as “[t]he offeror’s proposal is in compliance with the Price
Volume instructions in the solicitation.” (emphasis and capitalization in original).

The Solicitation included a government SF 1449, titled
“SOLICITATION/CONTRACT/ORDER FOR COMMERCIAL ITEMS,” and a government
Optional Form (OF) 336, titled “CONTINUATION SHEET.” (capitalization in original). The
“SCHEDULE OF SUPPLIES/SERVICES” begins in block 20 on the SF 1449 and
continues throughout column “(B)” on the OF 336, which the parties have referred to as
“Schedule B.” (capitalization in original). The Schedule of Supplies/Services on the SF
1449 and OF 336 contained CLINs for the base period of performance, as well as the
seven one-year option periods of performance. For example, CLINs 0005 and 0006,
which were to be performed during the base period of performance, were listed as:

CLINs in option periods of performance were designated by inserting the number of the
option period of performance into the beginning of the CLIN in place of the first zero.
Thus, CLINs 1005 and 1006 were to be performed during the first option period of
performance and were listed as:

6
At issue in the above-captioned bid protest are the CLINs designated as 0007AA
and 0007AB in the base period of performance, as well as the CLINs in the option periods
of performance which correspond with CLINs 0007AA and 0007AB. The full list of the
sixteen CLINs at issue in this case are: 0007AA, 1007AA, 2007AA, 3007AA, 4007AA,
5007AA, 6007AA, 7007AA, 0007AB, 1007AB, 2007AB, 3007AB, 4007AB, 5007AB,
6007AB, and 7007AB.4 In the paragraph preceding the CLINs for the base period of
performance, the Solicitation stated that “CLIN 0007aa and 0007ab are pre-priced and
performed as authorized by the Contracting Officer. The amounts listed for these CLINS
are a ‘not to exceed’ amount with no guarantee that the total amount will be used.” As
indicated in the image on the following page, in the Solicitation, CLINs 0007AA and
0007AB were listed as:

4 When discussing CLINs 0007AA, 1007AA, 2007AA, 3007AA, 4007AA, 5007AA,
6007AA, and 7007AA, the parties have used, and the court will use in this Opinion, the
shorthand X007AA. When discussing CLINs 0007AB, 1007AB, 2007AB, 3007AB,
4007AB, 5007AB, 6007AB, and 7007AB, the parties have used, and the court will use in
this Opinion, the shorthand X007AB. Thus, CLINs X007AA and X007AB refers to CLINs
0007AA, 1007AA, 2007AA, 3007AA, 4007AA, 5007AA, 6007AA, 7007AA, 0007AB,
1007AB, 2007AB, 3007AB, 4007AB, 5007AB, 6007AB, and 7007AB.
7
8
The Solicitation, however, did not “list[]” a unit price, a government “[c]eiling” amount, or
a government not-to-exceed amount for either CLIN 0007AA or CLIN 0007AB.

The descriptions of CLINs 10007AA, 20007AA, 30007AA, 40007AA, 50007AA,
60007AA, and 70007AA contained the same language as in the description of CLIN
0007AA. The description of CLINs 1007AB, 2007AB, 3007AB, 4007AB, 5007AB,
6007AB, and 7007AB contained the same language as in the description of CLIN
0007AB. Before each option period of performance, the Solicitation stated that the CLINs
in that option period of performance associated with CLINs X007AA and X007AB “are
pre-priced and performed as authorized by the Contracting Officer. The amounts listed
for these CLINS are a ‘not to exceed’ amount with no guarantee that the total amount will
be used.” The Solicitation, however, did not provide a unit price, a government “[c]eiling”
amount, or a government not-to-exceed amount for CLINs 1007AA, 2007AA, 3007AA,
4007AA, 5007AA, 6007AA, 7007AA, 1007AB, 2007AB, 3007AB, 4007AB, 5007AB,
6007AB, or 7007AB.

After the Agency issued the October 11, 2017 Solicitation, the parties jointly have
stipulated:

On October 20, 2017, Safeguard protested DHS’s [the Department of
Homeland Security’s] decision to include requirements that exceeded the
Agency’s needs. This protest was docketed as Matter No. B-415588.1.
Safeguard filed a second pre-award protest, docketed as Matter No. B-
415588.2. Both pre-award protests were dismissed as academic on
November 21, 2017 when DHS announced that it would take corrective
action that remedied the infirmities Safeguard identified.

(internal references omitted). On February 8, 2018, the Agency issued Amendment No.
3 to the Solicitation, which contained answers from the Agency to 272 questions posed
by potential offerors.5 Question and answer 9 in Amendment No. 3 stated:

5 On October 23, 2017, the Agency issued Amendment No. 1 to the Solicitation, which
stated that the purpose of Amendment No. 1 was to correct typographical errors in the
Solicitation. On November 2, 2017, the Agency issued Amendment No. 2 to the
Solicitation, which indicated that the purpose of Amendment No. 2, temporarily, was to
cancel the date for receipt of proposals due to a large amount of questions received by
the Agency related to the Solicitation. On February 22, 2018, the Agency issued
Amendment No. 4 to the Solicitation, which stated that the Agency had received additional
questions and planned on providing responses to those questions. On February 26, 2018,
the Agency issued Amendment No. 5 to the Solicitation, which answered questions posed
by potential offerors and made revisions to the Solicitation in response to the received
questions.
9
(emphasis in original). The parties have correctly stipulated that the amounts listed in
answer 9 for CLINs X007AA and X007AB, when added together for the base period of
performance and for all option periods of performance, totals $6,121,228.00. Question
and answer 16 stated:

(emphasis in original).

Amendment No. 3 also amended a section of the Solicitation with a heading that
stated “SECTION B PRICE SCHEDULE,” which was changed to state:

(capitalization and highlight in original). The highlighted language in the above-image
reflects the language that was changed or added by Amendment No. 3 to the Solicitation.

10
On March 16, 2018, the Agency received seven proposals in response to the
Solicitation from seven offerors, including Safeguard and B&O. In B&O’s proposal, B&O
provided unit prices and amounts for CLINs 0007AA, 1007AA, 2007AA, 3007AA,
4007AA, 5007AA, 6007AA, 7007AA, 0007AB, 1007AB, 2007AB, 3007AB, 4007AB,
5007AB, 6007AB, and 7007AB in accordance with the amounts the Agency provided for
those sixteen CLINs in response to question 9 in Amendment No. 3. For example, B&O’s
proposal provided:

B&O’s proposal stated that B&O’s total proposed price for the base period of
performance and all option periods of performance was $79,105,840.96. B&O’s proposal
included a chart titled “CLIN Summary,” which provided a breakdown of prices per CLIN
in each period of performance. B&O included the government provided ceiling or not-to-
exceed amounts for CLINs X007AA and X007AB, which were provided in question and
answer 9 in Amendment No. 3. For instance, B&O’s proposal included the following chart
for the first option period of performance:

11
[redacted]

The amounts listed for CLINs 1007AA and 1007AB are consistent with the amounts
provided in the Agency’s answer to question 9 in the Amendment No. 3.

In Safeguard’s proposal, Safeguard did not include amounts for CLINs 0007AA,
1007AA, 2007AA, 3007AA, 4007AA, 5007AA, 6007AA, 7007AA, 0007AB, 1007AB,
2007AB, 3007AB, 4007AB, 5007AB, 6007AB, and 7007AB. For those sixteen CLINs,
Safeguard left the “UNIT PRICE” and “AMOUNT” blank. Safeguard’s proposal for CLINs
X007AA and X007AB, therefore, appeared as:

As indicated in the above image, Safeguard did not list any amount under the “UNIT
PRICE” or “AMOUNT” columns for CLINs X007AA and X007AB. (capitalization in
original).

Safeguard’s proposal included a chart indicating that Safeguard’s total proposed
price for the base period of performance and all option periods of performance was
[redacted]. The chart in Safeguard’s proposal indicated Safeguard’s pricing for each CLIN
in each period of performance. Safeguard’s chart, however, did not include pricing for
CLINs X007AA or X007AB. Rather, Safeguard’s chart provided as follows:

[redacted]

As indicated in the above image, Safeguard did not submit prices for “SWR [service work
requests] - Maintenance” or “SWR Direct Equipment” for the base period of performance
and for all seven option periods of performance.6 Safeguard’s total proposed price for the
base period of performance and all option periods of performance, therefore, did not
include the government provided ceiling or not-to-exceed amounts for CLINs 0007AA,
1007AA, 2007AA, 3007AA, 4007AA, 5007AA, 6007AA, 7007AA, 0007AB, 1007AB,
2007AB, 3007AB, 4007AB, 5007AB, 6007AB, and 7007AB.

According to an Agency document titled “SOURCE SELECTION PLAN,” which
was dated March 2, 2018, Joseph Williams was to serve as the Agency’s source selection
authority for the procurement under the Solicitation and was to make the “final source
selection decision.” (capitalization in original). Joseph Williams also was responsible for
approving any course of action involving the establishment of a competitive range or
discussions. The Agency’s Source Selection Plan identified Sheryle Wood as the
contracting officer for the procurement and stated that, in her role as contracting officer,
6Safeguard’s chart incorrectly lists “SWR Direct Equipment” as CLINs “7AA,” instead of
CLINs “7AB.”
12
Ms. Wood was responsible for deciding whether to establish a competitive range and
whether to conduct discussions with offerors in the competitive range, subject to Joseph
Williams’ approval. The Agency’s Source Selection Plan indicated that Sheryle Wood also
would serve as the source selection evaluation board chairperson. As the source
selection evaluation board chairperson, Sheryle Wood was to manage “the overall
activities of the SSEB [source selection evaluation board], distributing the workload, and
ensuring compliance with source selection information security procedures.” The
Agency’s Source Selection Plan indicated that the source selection evaluation board
would consist of the following three evaluation boards:

The Agency’s Source Selection Plan identified James Caine, an attorney advisor
in the defendant Agency’s Office of Chief Counsel, as the legal counsel for the
procurement under the Solicitation. As legal counsel, James Caine was to provide legal
advice to the source selection authority, Joseph Williams, and to the source selection
evaluation board. James Caine was to be a non-voting member of the source selection
evaluation board and was to “not participate in the caucus process unless specifically
asked to do so by the board Leader.” Regarding the Agency’s evaluation process, the
Source Selection Plan indicated, multiple times, that the Agency intended to award a
contract under the Solicitation without discussions and based on the initial proposals
received in response to the Solicitation.

On March 22, 2018, Sheryle Wood completed a document with the subject “Price
Evaluation Report.” In the Price Evaluation Report, Sheryle Wood determined that four of
the seven offerors, including Safeguard, had failed to include the government provided
amounts listed for CLINs X007AA and X007AB in the proposals, which were provided in
the Agency’s answer to question 9 in Amendment No. 3 to the Solicitation. Regarding
Safeguard’s proposal, Sheryle Wood stated that “[t]he correct pricing schedule (Section
B, Amendment 0003) and the correct estimated quantities were used; however, the
specific data to CLINS XXX7 AA and XXX7 AB were [sic] not plugged in for all years as
instructed by Amendment 0003.” Sheryle Wood asserted:

It is recommended that the Contracting Officer determine the [Safeguard’s]
price fair and reasonable as presented without need for discussion or
exchanges with regard to price. Once the competitive range has been
established, it is recommended that Safeguard Base Operations LLC (SBO)
be retained in the competitive range for purposes of discussion. Calculation
errors in all years, inclusion of the IDIQ data all years, and full breakdown
of phase in costs and ODCs [other direct costs] would be the discussion
element [sic] all years.

13
In the section of the March 22, 2018 Price Evaluation Report concerning B&O’s
proposal, Sheryle Wood stated that “[t]he correct pricing schedule (Section B,
Amendment 0003) and the correct estimated quantities were used and the specific data
to CLINS XXX7AA and XXX7AB were plugged in for all years as instructed by
Amendment 0003.” Sheryle Wood, therefore, indicated that B&O had included in its
proposal the government provided amounts for CLINs X007AA and X007AB, which were
provided in Amendment No. 3 to the Solicitation. Sheryle Wood also stated that she

recommended that the Contracting Officer determine the price fair and
reasonable as presented without need for discussion or exchanges with
regard to price. Once the competitive range has been established, it is
recommended that B&O Joint Venture LLC be retained in the competitive
range for purposes of discussion. Calculation errors would be the
discussion element all years.

Moreover, at the end of the March 22, 2018 Price Evaluation Report, Sheryle Wood
stated:

[redacted]

In the chart immediately above, Safeguard is listed as “SBO JV.” As indicated for the
purposes of the immediately above chart, Sheryle Wood increased Safeguard’s “Price as
Submitted” of [redacted] to a “Total evaluated with IDIQ lines/corrections” of [redacted].
(capitalization in original). Sheryle Wood, however, recommended that Safeguard be
retained in a competitive range if a competitive range was to be established.

On April 9, 2018, the Agency completed its past performance evaluation of the
seven offerors, which Michael Harris, chairperson of the past performance evaluation
board, documented in a memorandum with a subject of “Past Performance Evaluation
Board Report.” In the Past Performance Evaluation Board Report, Michael Harris
summarized the offerors’ proposals and identified the strengths, weaknesses, and
deficiencies of all seven offerors. Under a section titled “Recommendation,” Michael
Harris stated:

[redacted]

On June 22, 2018, Luke Rhaney completed a memorandum with a subject of
“Technical Evaluation of Proposals Submitted in Response to RFP [request for
proposals].” The Technical Evaluation of Proposals document stated that the “following
analysis findings are presented in part, per individual offer for non-price factors A1,
Management and Technical Approach; Factor A2, Corporate Experience of the Prime
Contractor, and Factor A3, Hazardous Waste Management Plan (HWMP) which were
reviewed individually by the Technical Evaluation Team followed by a consensus rating.”
According to the June 22, 2018 Technical Evaluation of Proposals document, the
technical evaluation board reached the following conclusions:

14
[redacted]

(emphasis in original). The Technical Evaluation of Proposals document stated that
“award could be made to the following offeror’s [sic] listed in order of ranking” and included
the following chart:

[redacted]

On June 8, 2018, the source selection authority, Joseph Williams, completed a
“Source Selection Decision Document,” which stated that the Agency had elected neither
to establish a competitive range nor to hold discussions with offerors, and that Joseph
Williams had determined that B&O’s proposal provided the best value to the government.
Regarding Safeguard’s proposal, Joseph Williams stated:

The price proposal [submitted by Safeguard] did not comply with
instructions, containing .pdf copies of their spreadsheets rather than in excel
as required, errors in pricing of extended amounts for all years, and
omission of the IDIQ pricing (as required by RFP amendment). There is no
yearly escalation except for the project management CLINs. (All other
proposals include escalation of at least [redacted] for all CLINs, which the
history of the current contract supports.) Their proposed price of [redacted]
is the third lowest and although it is reasonable, it may be considered
unrealistically low compared to the IGE. After accounting for errors and
adding escalation to all CLINs, their total evaluated price increased by
approximately [redacted] to [redacted] (without accounting for the floor
cleaning services that were to be at no expense to the Government).
[redacted] evaluated prices that are realistic, and awarding to this offeror
presents some risk to the Government without a completely revised price
proposal accounting for all costs, and given their Technical Approach and
Corporate Experience ratings are lower than other offerors.

Because of a non-compliant price proposal, and a price that is unrealistically
low, this proposal should have been eliminated from the competition without
a technical evaluation.

In his June 8, 2018 Source Selection Decision Document, Joseph Williams
determined that B&O’s proposal provided the best value to the government. Joseph
Williams asserted that “Prosperitus and B&O Joint Venture are the only two offers that
could be awarded a contract without discussions. Of these two, B&O’s non-price factor
ratings are higher and their total evaluated price is approximately $11M less, making them
the better value to the Government.” (emphasis in original). According to Joseph Williams,
“[d]iscussions and a substantial update to portions of their [Safeguard’s] technical
proposal as well as a completely revised price proposal would be necessary, but it is
unlikely they would become much more competitive.” (emphasis in original).

15
On June 14, 2018, the Agency sent a pre-award notice to Safeguard indicating
that the Agency had selected B&O as the “apparent successful offeror” under the
Solicitation. On June 15, 2018, Safeguard requested a debriefing. In a memorandum
dated June 15, 2018, which was signed by Sheryle Wood, the Agency provided
Safeguard with a written debriefing in response to Safeguard’s request for a debriefing.
Regarding Safeguard’s price proposal, in the June 15, 2018 memorandum, Sheryle Wood
stated:

Four (4) deficiencies noted: (1) failure to breakout all ODCs; (2) 7-day phase
in costs of $200,000 not broken down in the price proposal; (3) Amendment
0003 instructed offerors to plug in specific data to CLINS 7AA and 7AB in
all years which Safeguard did not; (4) errors in pricing of extended amounts
for all years. There was a modest escalation in the project management
CLIN in the out years only.

The total price of [redacted] as submitted is significantly lower than the
Independent Government Estimate (IGE) and is considered unrealistically
low.[7] After including the missing CLIN data, correcting for errors as
mentioned above, and adding a reasonably modest [redacted] escalation
for all CLINs (as supported by the history of the current contract), the total
evaluated price increased by approximately [redacted] to [redacted]. The
total evaluated price is more realistic, but it is still well below the IGE and
presents a slight performance risk.

Sheryle Wood further stated that, “[i]n an effort to improve proposal submissions for future
projects, it is imperative that you follow the proposal submission requirements exactly,
while paying close attention to the language describing what the Government will be
evaluating under each factor and subfactor.”

7 In his June 8, 2018 Source Selection Decision, Joseph Williams stated:

Their [Safeguard’s] proposed price of [redacted] is the third lowest and
although it is reasonable, it may be considered unrealistically low compared
to the IGE. After accounting for errors and adding escalation to all CLINs,
their total evaluated price increased by approximately [redacted] to
[redacted] (without accounting for the floor cleaning services that were to
be at no expense to the Government).

Joseph Williams also stated in the June 8, 2018 Source Selection Decision Document
that, “[b]ecause of a non-compliant price proposal, and a price that is unrealistically low,
this [Safeguard’s] proposal should have been eliminated from the competition without a
technical evaluation.”

16
The parties have stipulated that Safeguard filed its third protest at the GAO
concerning award under the Solicitation on June 21, 2018.8 The parties’ joint stipulations
of fact in this court states that Safeguard’s third protest “challenged DHS’s decision to
assign Safeguard a ‘deficiency’ for offering a no-charge benefit to DHS and selection of
B&O as the awardee.” On July 16, 2018, the Agency indicated that it would take corrective
action and would have source selection authority Joseph Williams reconsider the
evaluation results and render a new award decision. On July 19, 2018, the GAO
dismissed Safeguard’s third protest as “academic.”

Thereafter, Joseph Williams appears to have undertaken a reevaluation of the
proposals received in response to the Solicitation and to have documented his
reevaluation in a new Source Selection Decision Document, which is dated August 2,
2018. In the August 2, 2018 Source Selection Decision Document, Joseph Williams
raised Safeguard’s rating for subfactor A1-2, concerning Safeguard’s technical approach,
from its previous rating of unsatisfactory to marginal. Regarding Safeguard’s price
proposal, Joseph Williams indicated that Safeguard had “omitted the IDIQ pricing (as
required by RFP amendment),” and that, “[a]fter accounting for errors and adding
escalation to all appropriate CLINs, their total evaluated price increased by approximately
[redacted].” According to Joseph Williams, “[b]ecause of a non-compliant price proposal
with a questionable low price, and Corporate Experience and Past Performance volumes
that were submitted without discerning between the prime and sub-contractors in the joint
venture, this proposal could have been eliminated from the competition without a
technical evaluation.” Joseph Williams concluded, again, that B&O and Prosperitus
Solutions were the only two offerors which could be awarded a contract under the
Solicitation without discussions, and that B&O’s proposal provided the best-value to the
government and should be selected for award.

On August 7, 2018, the Agency awarded Contract No. 70LGLY18CGLB00003 (the
B&O Contract) to B&O. Also on August 7, 2018, the Agency sent a post-award notice to
Safeguard advising Safeguard that the Agency had awarded the B&O Contract to B&O.
In a written debriefing provided to Safeguard dated August 14, 2018, the Agency stated:

The price proposal also contained errors, though not technically rated as
weaknesses or deficiencies. ODCs were not fully identified as required,
although they were projected in the cost allocation of the proposal. Although
spreadsheets with pricing information were included, some were submitted
in .pdf format rather than Excel as required. Errors in pricing of extended
amounts in all years were discovered, and the pricing for the IDIQ CLINs
(XXX7AA and XXX7AB) were omitted. Further, [redacted] was proposed for
8 Additionally, according to Sheryle Wood’s October 29, 2018 contracting officer’s
statement of facts submitted to the GAO and included in the administrative record in the
above-captioned protest, Safeguard had filed a size protest with the SBA concerning the
size of B&O on June 18, 2018. In the October 29, 2018 contracting officer’s statement of
facts submitted to the GAO, Sheryle Wood states that the SBA denied Safeguard’s size
protest on July 20, 2018.

17
the project management CLIN only, when all other proposals included
escalation on all appropriate CLINs-which is supported by the history of the
current contract. Therefore, after accounting for errors, omissions and
escalations, the total evaluated price increased by approximately $6.2M.

The Agency also stated:

Although SBO did not receive any unsatisfactory ratings, discussions
leading to substantial updates to portions of the technical proposal and past
performance volume, as well as a revised price proposal would be
necessary to be more competitive. The successful offeror submitted the
most complete and sound technical proposal with no deficiencies and
several strengths identified by the technical evaluation team, resulting in
receiving the highest non-price factor ratings. They also submitted one of
only two compliant and complete price proposals without errors. Because
of their superior ratings and the identified strengths, demonstrated relevant
past efforts and performance of the prime contractor, and a complete
submitted price that is reasonable and realistic, the price premium over
SBO’s total evaluated price is justified for the assurance of superior services
when spread over the life of a seven-year contract.

On August 20, 2018, Safeguard filed its fourth protest involving award under the
Solicitation at the GAO. In its fourth protest at the GAO, Safeguard argued that the Agency
arbitrarily and capriciously evaluated Safeguard’s past performance, did not correctly
justify the price premium associated with B&O’s proposal, and that the Agency’s “actions
are biased against Safeguard.” Safeguard also argued:

DHS’s Post Award Debriefing cites purported errors in Safeguard’s
proposal with respect to pricing of extended amounts in all years, and states
that the pricing for the IDIQ CLINs (XXX:7AA and XXX:7AB) were omitted.
However, these CLINS were not required to be priced per the RFP. Rather,
they were costs that the Agency was to reimburse the contractor. It is our
understanding and alleged in this protest that the other offerors did not
include pricing for these CLINS either. Therefore, it would be arbitrary and
capricious for the Agency to fail to apply the same the evaluation criteria
and scoring method to the awardee’s proposal.

(citation omitted). On August 24, 2018, Safeguard filed an amended protest at the GAO,
which asserted that the Agency had violated FAR § 15.404-1(d)(3) by increasing the price
of Safeguard’s proposal during the Agency’s evaluations. The regulation at FAR § 15.404-
1(d)(3) (2019), which has not been altered since January 13, 2017, states:

Cost realism analyses may also be used on competitive fixed-price
incentive contracts or, in exceptional cases, on other competitive fixed-
price-type contracts when new requirements may not be fully understood
by competing offerors, there are quality concerns, or past experience

18
indicates that contractors’ proposed costs have resulted in quality or service
shortfalls. Results of the analysis may be used in performance risk
assessments and responsibility determinations. However, proposals shall
be evaluated using the criteria in the solicitation, and the offered prices shall
not be adjusted as a result of the analysis.

See FAR § 15.404-1(d)(3). In its August 24, 2018 amended protest, Safeguard also
argued:

[T]he Solicitation did not require offerors to price IDIQ CLINs (XXX:7 AA and
XXX:7 AB), so Safeguard did not err in omitting such pricing. Moreover,
Safeguard believes other offerors also did not price these CLINs. To the
extent DHS upwardly adjusted only Safeguard’s proposed price in
connection with these CLINs, DHS clearly engaged in disparate treatment.
The magnitude of the upward adjustment attributable to these CLINs
remains unclear, but it also would appear to be but a fraction of the total
adjustment of $6.2 million. Thus, it seems that DHS has effected further
undisclosed, and erroneous, adjustments to Safeguard’s proposed firm-
fixed price.

On August 28, 2018, James Caine, Agency counsel, sent a letter to the GAO
stating that, after reviewing Safeguard’s August 20, 2018 protest and August 24, 2018
amended protest at the GAO, the Agency had “discovered” that it had made mistakes
when evaluating the proposals received in response to the Solicitation and was going to
take corrective action to correct the mistakes by making a new source selection decision.
On August 31, 2018, the GAO dismissed Safeguard’s August 20, 2018 protest and
August 24, 2018 amended protest.

On September 20, 2018, source selection authority Joseph Williams completed his
third Source Selection Decision Document. The September 20, 2018 Source Selection
Decision Document provided:

[redacted]

Regarding Pleiades Group LLC (Pleiades Group), the September 20, 2018 Source
Selection Decision Document stated Pleiades Group’s price proposal lacked substantive
information, incorrectly priced cleaning rates on a monthly basis as opposed to a daily
basis, and “does not contain any totals per year or any grand totals. Additionally, their
price volume failed to include government provided amounts for the Service Work
Request CLINs, as required by Amendment 3 to the solicitation. Therefore, this offeror is
not eligible for award.” The September 20, 2018 Source Selection Decision Document
asserted that Ravi, Inc.’s price proposal did not include a “detailed cost breakdown,”
contained incorrect “calculation totals,” and “failed to include government provided
amounts for the Service Work Request CLINs, as required by Amendment 3 to the
solicitation. Therefore, this offeror is not eligible for award.”

19
According to the September 20, 2018 Source Selection Decision Document,
Prosperitus Solutions’ “price proposal was technically non-compliant because their price
volume failed to include government provided amounts for the Service Work Request
CLINs, as required by Amendment 3 to the solicitation. Therefore, this offeror is not
eligible for award.” Likewise, regarding Safeguard’s proposal, the September 20, 2018
Source Selection Decision Document stated that Safeguard’s “price proposal was
technically non-compliant because their price volume failed to include government
provided amounts for the Service Work Request CLINs, as required by Amendment 3 to
the solicitation. Therefore, this offeror is not eligible for award.”

On September 20, 2018, the Agency sent Safeguard a post-award notice stating
that the Agency had selected B&O for award under the Solicitation. The September 20,
2018 post-award notice also stated:

On September 25, 2018, Safeguard filed its fifth bid protest at the GAO, which
asserted that the Agency had acted arbitrarily and capriciously by not considering
Safeguard’s proposal because “the Solicitation did not require offerors to price IDIQ
CLINs (XXX:7 AA and XXX:7 AB), so Safeguard did not err in omitting such pricing.” On
October 12, 2018, Safeguard filed a supplemental protest at the GAO asserting that the
Agency had acted arbitrarily and capriciously because “the current DHS value of B&O’s
award at $77,734,857 is in fact $1.36 million LESS than the DHS value of the award per
the August 14, 2018 debriefing notice given to Safeguard indicating B&O’s pricing at
$79,095,987—despite no opportunity for revised pricing extended to all offerors.”
(capitalization and emphasis in original).

After Safeguard had filed its September 25, 2018 protest at the GAO, the Agency
overrode the automatic stay to performance of the B&O Contract required by the
Competition in Contracting Act (CICA), 31 U.S.C. § 3553 (2012), due to Safeguard’s

20
September 25, 2018 protest filed at the GAO. See Safeguard Base Operations, LLC v.
United States, 140 Fed. Cl. 670, 679-83 (2018). On September 30, 2018, SRM Group’s
incumbent dormitory maintenance services contract with the Agency expired. Id. at 680.
On October 1, 2018, the Agency transitioned to B&O’s Contract in order for B&O to
provide dormitory maintenance services. Id. Also on October 1, 2018, Safeguard filed a
bid protest challenging the Agency’s decision to override the CICA stay at the United
States Court of Federal Claims, which was docketed as Safeguard Base Operations, LLC
v. United States, Case No. 18-1515C, and was assigned to the undersigned.9 See id. On
October 24, 2018, the court issued an oral decision on the override complaint denying
Safeguard’s protest, and, on October 25, 2018, the court issued a written decision
memorializing the court’s October 24, 2018 oral decision and directed the Clerk of the
United States Court of Federal Claims to enter judgment. See id. at 680, 710. Thereafter,
Safeguard appealed the court’s October 25, 2018 Opinion and judgment to the United
States Court of Appeals for the Federal Circuit, which currently remains pending.

On December 14, 2018, the GAO issued a decision denying Safeguard’s fifth
protest at the GAO. See Safeguard Base Operations, LLC, B-415588.6, et al., 2018 WL
6617289, at *1 (Dec. 14, 2018). In its December 14, 2018 decision, the GAO stated:

Safeguard asserts that the solicitation did not provide that a proposal could
be rejected for not including the reimbursable CLINs, and therefore the
agency’s actions were unreasonable. While we agree with the protester that
the omitted price information is relatively trivial, we consider the source of
the controversy to be Safeguard’s failure to review the amendment
thoroughly, as opposed to any conduct attributable to the agency. Indeed,
if Safeguard had reviewed the amendment, then it would have recognized
that offerors were to include the government-provided amounts on their
price schedule and thus its price proposal would not have been an issue.
Thus, Safeguard effectively asks that we find that the agency should excuse
the protester’s own failure to follow explicit proposal preparation
instructions.

We decline to do so here because the solicitation’s evaluation criteria
specifically allowed the agency to reject proposals on this basis. The
evaluation criteria advised that offerors’ prices would be evaluated to
9 Alex Ginsburg was counsel of record for Safeguard in Case No. 18-1515C, and Alex
Tomaszczuk was designated as of counsel in Case No. 18-1515C. In the above-
captioned, current protest, Alex Tomaszczuk is counsel of record for Safeguard, and Alex
Ginsburg is designated as of counsel. In earlier-filed Case No. 18-1515C, B&O also had
filed a motion to intervene, which the court granted. Todd Overman originally was counsel
of record for intervenor B&O in Case No. 18-1515C. Subsequently in Case No. 18-1515C,
Richard Arnholt was substituted as counsel of record for intervenor B&O, and Todd
Overman was designated as of counsel. In the above-captioned, current protest, Richard
Arnholt is counsel of record for intervenor, and Todd Overman is designated as of
counsel.

21
determine whether the offered prices were “fair and reasonable, complete,
balanced and/or realistic.” (emphasis added). The fact that the evaluation
criteria advised that prices would be evaluated for completeness is critical
because that section defined a complete price as one that was “in
compliance with the Price Volume instructions in the solicitation.” In this
way, the evaluation criteria provided that proposals would be evaluated
based on their compliance with the proposal preparation instructions.

Further, the preparation instructions advise that proposals must include a
“completed Schedule B.” This instruction is significant because it means
that the evaluation would factor in whether offerors had submitted complete
price schedules and could reject proposals as noncompliant on this basis.
As a final step in this analysis, we highlight that the agency amended the
solicitation to require offerors to include the government-provided amounts
for the reimbursable CLINs on their price schedules. Thus, the terms of the
solicitation show that the evaluation criteria contemplated a compliance
check whereby the agency could reject a proposal as noncompliant when
the price schedule did not include the government-provided amounts for the
reimbursable CLINs. In view of the fact that Safeguard did not include the
government-provided amounts on its price schedule, we find that the
agency reasonably evaluated its proposal as noncompliant. Accordingly, we
deny this protest allegation.

Id. at 2-3 (internal references, citations, and footnote omitted).

On Friday, January 11, 2019, after the business hours of the Clerk’s Office had
ended, Safeguard filed a complaint in the above-captioned protest in this court. On
Monday, January 14, 2019, the court was closed due to inclement weather. On Tuesday,
January 15, 2019, the Clerk’s Office assigned the above-captioned protest to the
undersigned. That same day, defendant filed a motion to stay the above-captioned protest
due to a lapse of appropriations for the United States Department of Justice, which
defendant noted had started “[a]t the end of the day on December 21, 2018.” Also on
January 15, 2019, B&O filed a motion to intervene in this protest, which the court granted.
Additionally, on January 15, 2019, the court issued an Order directing protestor and B&O
to file responses to defendant’s motion to stay the above-captioned protest. In the
responses to defendant’s motion to stay, neither protestor nor B&O opposed defendant’s
January 15, 2019 motion to stay. Therefore, the court granted defendant’s motion to stay
the above-captioned protest. On January 31, 2019, after appropriations had been
restored to the Department of Justice, the court issued an Order lifting the stay in the
above-captioned protest.

On February 1, 2019, protestor filed a four-count amended complaint in this court.
In Count I of the amended complaint, protestor argues that the Agency arbitrarily and
capriciously disqualified Safeguard’s proposal for failing to include the government
provided “plug numbers” in Amendment No. 3 to the Solicitation. In Count II, protestor
asserts that the Agency’s disqualification of Safeguard was arbitrary and capricious

22
because the Agency did not consider whether the omission of the plug numbers was an
“‘informality’ or ‘minor irregularity’” subject to waiver under FAR clause 52.212-1. In Count
III of the amended complaint, protestor contends that the Agency breached the covenant
of good faith and fair dealing by failing to consider Safeguard’s proposal in a fair and
honest manner. Count III also asserts that the Agency’s disqualification of Safeguard was
“pretextual” because of “the checkered history and ongoing litigation between Safeguard
and the Agency.” In Count IV of the amended complaint, protestor requests a permanent
injunction, and, in protestor’s request for relief, protestor requests that the court
permanently enjoin performance under the B&O Contract and require that the Agency
reevaluate Safeguard’s proposal. Protestor also requests a declaration that the Agency’s
decision to disqualify Safeguard’s proposal was arbitrary and capricious, as well as
“[s]uch further relief as this Court deems just and proper, including attorney fees under
the Equal Access to Justice Act.”

On February 26, 2019, defendant filed the administrative record in the above-
captioned protest, which contained twenty-four tabs of documents. During the evening on
March 4, 2019, in accordance with the court’s instructions during an earlier conference
with the parties, counsel of record for protestor sent an email message to the court’s email
address, on which counsels of record for defendant and defendant-intervenor were
copied, asserting that the administrative record submitted by defendant was not complete
because the administrative record did not contain any documents relating to Count III of
the protestor’s amended complaint. In the March 4, 2019 email message, counsel of
record for protestor requested to take the depositions of “the Contracting Officer, the
Source Selection Authority, and the Legal Advisor.” On March 5, 2019, the court held a
hearing with the parties to discuss counsel of record for protestor’s March 4, 2019 email
message, and, on March 6, 2019, the court issued an Order denying protestor’s request
to depose Agency personnel, stating, “at this time, protestor has not sufficiently supported
its request for discovery related to Count III of protestor’s amended complaint.” (citing
AgustaWestland N. Am., Inc. v. United States, 880 F.3d 1326, 1332 (Fed. Cir. 2018);
Torres Advanced Enter. Sols., LLC v. United States, 133 Fed. Cl. 496, 521 (2017); and
Jacobs Tech. Inc. v. United States, 131 Fed. Cl. 430, 454-55 (2017)). In the March 6,
2019 Order, the court also directed counsel of record for defendant to consult with the
Agency in order to discuss the alleged omitted documents which protestor alleged should
have been included in the administrative record previously filed by defendant on February
26, 2019.

On March 15, 2019, defendant filed a corrected administrative record in the above-
captioned protest, which contained thirteen additional tabs of documents.10 Protestor also
moved to supplement the administrative record with a January 31, 2019 affidavit signed
by Diana Parks Curran, an attorney who had appeared for Safeguard in its protests at the
GAO and who was designated as of counsel in Case No. 18-1515C in this court,11 as well
10Any reference below to the administrative record in this Opinion refers to the corrected
administrative record filed by defendant on March 15, 2019.
11Diana Parks Curran has not been designated as of counsel in the above-captioned,
current protest.
23
as a March 11, 2019 affidavit signed by Sadananda Suresh Prabhu, the president of SRM
Group. In the affidavit signed by Diana Parks Curran, Ms. Curran discusses verbal
conversations between Ms. Curran and James Caine, legal advisor for the Agency, in
which Mr. Caine allegedly made statements such as “‘it is not a secret that there is bad
blood between FLETC and [SRM’s President] Suresh [Prabhu].’” (alterations in original).
Diana Parks Curran attached to her affidavit a timeline of events created by Ms. Curran,
which recounted her version of the events related to SRM Group’s protests at the GAO,
as well as events related to appeals filed by SRM Group at the United States Civilian
Board of Contract Appeals. In the March 11, 2019 affidavit signed by Sadananda Suresh
Prabhu, Mr. Prabhu alleges that James Caine called him “‘greedy’” and “‘unscrupulous.’”
According to Mr. Prabhu’s affidavit, after Safeguard had filed an amended request for an
equitable adjustment with the Agency:

[O]n or about September 25, 2017, Ms. Wood called me wanting to know
why SRM had chosen to file another REA [request for equitable
adjustment]. She stated that I had “humiliated” her by filing the Amended
REA and vowed never to work with me or SRM in the future. I asked her if
that meant that DHS would not renew SRM’s Contract, and her response
was, “Nobody who has ever sued the Government has been a [sic] awarded
a Contract.”

During that same telephone conversation in September 2017, Ms. Wood
told me that she would no longer talk to me or meet with me. Since then,
Ms. Wood has refused to meet with either me or SRM’s Program Manager
for the Contract, Mr. Larry McLendon.

Defendant and defendant-intervenor filed oppositions in response to protestor’s
March 15, 2019 motion to supplement the administrative record, and, on March 21, 2019,
the court held a hearing with the parties regarding the parties’ filings related to protestor’s
March 15, 2019 motion. On March 22, 2019, the court issued an Order denying protestor’s
March 15, 2019 motion and stating that “[s]upplementation of the administrative record
with the proffered documents is not warranted at this time because, for the reasons
discussed with the parties during the hearing, as well as the documents already included
in the administrative record, the proffered documents are not necessary for effective
judicial review.” (citing AgustaWestland N. Am., Inc. v. United States, 880 F.3d at 1331-
32; and Axiom Res. Mgmt., Inc. v. United States, 564 F.3d 1374, 1380 (Fed. Cir. 2009)).

On April 2, 2019, protestor and defendant filed simultaneous motions for judgment
on the administrative record. Also on April 2, 2019, defendant-intervenor filed a motion to
dismiss, or, in the alternative, cross-motion for judgment on the administrative record. In
its April 2, 2019 motion to dismiss, defendant-intervenor argued that the court should
dismiss Safeguard’s protest because Safeguard lacks standing, as Safeguard allegedly
is not an 8(a) eligible joint venture and, consequently, could not have been awarded a
contract under the Solicitation, which was set-aside for 8(a) offerors.12 On April 16, 2019,
12 Defendant has not argued that Safeguard lacks standing in the above-captioned
protest. At the May 1, 2019 oral argument, in response to a question by the court
24
protestor, defendant, and defendant-intervenor filed simultaneous replies. On May 1,
2019, the court heard oral argument in the above-captioned protest.

DISCUSSION

The parties have cross-moved for judgment on the administrative record. Rule
52.1(c)(1) (2019) 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)
(2018)), 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
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

regarding defendant-intervenor’s motion to dismiss and whether there was a standing
issue, counsel of record for defendant stated, “I don’t perceive one, Your Honor.”
25
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.) (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”), reh’g denied
(Fed. Cir. 2004); 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) (2018);13 see also Tinton Falls

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

To the extent necessary to decision and when presented, the reviewing
court shall decide all relevant questions of law, interpret constitutional and
statutory provisions, and determine the meaning or applicability of the terms
of an agency action. The reviewing court shall—

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

(2) hold unlawful and set aside agency action, findings, and conclusions
found to be—

(A) arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law;

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

26
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 at 1381 (noting arbitrary and capricious standard
set forth in 5 U.S.C. § 706(2)(A), and reaffirming the analysis of Impresa Construzioni
Geom. Domenico Garufi v. United States, 238 F.3d at 1332); Blue & Gold Fleet, L.P. v.
United States, 492 F.3d 1308, 1312 (Fed. Cir. 2007) (“‘[T]he inquiry is whether the
[government]’s procurement decision was “arbitrary, capricious, an abuse of discretion,
or otherwise not in accordance with law.”’” (quoting Bannum, Inc. v. United States, 404
F.3d at 1351 (quoting 5 U.S.C. § 706(2)(A) (2000)))); NVT Techs., Inc. v. United States,
370 F.3d at 1159 (“Bid protest actions are subject to the standard of review established
under section 706 of title 5 of the Administrative Procedure Act (‘APA’), 28 U.S.C. §
1491(b)(4) (2000), by which an agency’s decision is to be set aside only if it is ‘arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with law,’ 5 U.S.C. §
706(2)(A) (2000).” (internal citations omitted)); Info. Tech. & Applications Corp. v. United
States, 316 F.3d at 1319 (“Consequently, our inquiry is whether the Air Force’s
procurement decision was ‘arbitrary, capricious, an abuse of discretion, or otherwise not
in accordance with law.’ 5 U.S.C. § 706(2)(A) (2000).”); 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),

(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.
27
reh’g en banc denied (Fed. Cir. 2011); see also Tinton Falls Lodging Realty, LLC v. United
States, 800 F.3d at 1358 (“In applying this [arbitrary and capricious] standard to bid
protests, our task is to determine whether the procurement official’s decision lacked a
rational basis or the procurement procedure involved a violation of a regulation or
procedure.” (citing Savantage Fin. Servs., Inc. v. United States, 595 F.3d at 1285-86));
Glenn Def. Marine (ASIA), PTE Ltd. v. United States, 720 F.3d 901, 907 (Fed. Cir.), reh’g
en banc denied (Fed. Cir. 2013); McVey Co., Inc. v. United States, 111 Fed. Cl. 387, 402
(2013) (“The first step is to demonstrate error, that is, to show that the agency acted in an
arbitrary and capricious manner, without a rational basis or contrary to law.”);
PlanetSpace, Inc. v. United States, 92 Fed. Cl. 520, 531-32 (“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
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.

28
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
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

29
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.
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 at 1332 (“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”

30
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, 134 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. 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

31
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.

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

32
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).

Whether Offerors Were Required to Price CLINs X007AA and X007AB

In the above-captioned protest, protestor argues that the Solicitation did not require
offerors to price CLINs X007AA and X007AB, while defendant and defendant-intervenor
argue that the terms of the Solicitation, and amendments thereto, required offerors to
price CLINs X007AA and X007AB. Protestor notes that the descriptions in Schedule of
Supplies/Services for CLINs X007AA and X007AB stated “*****DO NOT SUBMIT
PRICING FOR THESE CLINS*****” and asserts that “[t]his explicit direction” was never
altered in any of the five amendments to the Solicitation. (capitalization in original).
Protestor argues that the statement in the Agency’s answer to question 9 in Amendment
No. 3 to the Solicitation, which stated to “please include” the list of “‘not-to-exceed’
amounts” for CLINs X007AA and X007AB, was a “suggestion” that was “precatory rather
than mandatory” and “cannot be a basis for disqualifying proposals as noncompliant.”
Protestor argues that its proposal, which did not include amounts for CLINs X007AA and
X007AB, complied with the statement in the Schedule of Supplies/Services to “NOT
SUBMIT PRICING FOR” CLINs X007AA and X007AB. (capitalization in original).
Protestor also argues that, “even if there were an argument that a superficial contradiction
existed between the original Solicitation and Q&A [question and answer] No. 9 in
Amendment 3, this argument would be foreclosed by the Solicitation’s Order of
Precedence Clause.” According to protestor:

This clause [the Order of Precedence clause] resolves any potential internal
conflict by stating that “[a]ny inconsistencies in this solicitation shall be
resolved by giving precedence in the following order: (1) the schedule of
supplies/services . . . (4) addenda to this solicitation or contract . . . .
Given this clause, even assuming, arguendo, that Q&A No. 9 required
offerors to fill in the plug numbers for the Service Work Request CLINs, the
language directing offerors not to submit pricing for these same CLINs –
which appears in the Schedule of Supplies/Services – would take
precedence and control.

(emphasis in original) (footnote omitted).

Both defendant and defendant-intervenor, however, assert that offerors were
required to include in their price proposals the pricing information for CLINs X007AA and
X007AB. In defendant’s cross-motion for judgment on the administrative record,
defendant argues that, “[a]lthough the solicitation originally omitted the Government-

33
provided pricing for the 16 maintenance request CLINs, Amendment 0003 to the
solicitation unequivocally remedied that omission and instructed offerors to ‘include’
Government-provided prices for these CLINS ‘for bidding purposes,’ which totaled
$6,121,228.”14 Defendant asserts:

As the Second Circuit stated in Weaver v. Axis Surplus Ins. Co., 639 Fed. Appx.
764, 767 (2d Cir. 2016), “[a] demand may be couched in the customarily-used
polite language of the day.” . . . Similarly, here, the word “please,” by itself, is not
sufficient to render Amendment 0003’s pricing instructions precatory.

(alteration in original). Regarding protestor’s argument concerning the Solicitation’s Order
of Precedence clause, defendant asserts that Amendment No. 3 to the Solicitation should
not be classified as “addenda” to the Solicitation, and that “the original instruction to not
submit prices was intended to direct offerors to not submit their own prices for the
maintenance request CLINs.” (emphasis in original).

In defendant-intervenor’s cross-motion for judgment on the administrative record,
defendant-intervenor argues:

The Solicitation required offerors to submit a completed Schedule B and to
include pricing for the phase-in period, base period, and seven option
periods, which included CLINs X007AA and X007AB. Here, the omitted
CLIN pricing represented a sum of $6,121,288 over 16 CLINs. While
Amendment 0003 clarified the amounts to insert into Schedule B for
offerors’ price proposals, the requirement to submit a completed Schedule
B was present from the time of the original Solicitation.

(internal references omitted). Defendant-intervenor also contends that, “[w]hile Court of
Federal Claims precedent does not appear to directly address the specific ‘please include’
language, GAO has found that even permissive language is not always permissive when
interpreted consistently with the solicitation as a whole.” (citation omitted). According to
defendant-intervenor, “the Solicitation read as a whole required a completed Schedule B,
and it was not possible to submit a completed Schedule B without the numbers that
offerors were instructed to ‘please include’ in Amendment 0003.” Additionally, defendant-
intervenor argues, as does defendant, that protestor’s assertion addressing the
Solicitation’s Order of Precedence clause fails because Amendment No. 3 is not
“addenda” to the Solicitation and “the proper interpretation [of Amendment No. 3] requires
reading the Solicitation as a whole and as amended.”

The interpretation of a solicitation is a question of law. See Synergy Sols., Inc. v.
United States, 133 Fed. Cl. at 736 (quoting Banknote Corp. of Am., Inc. v. United States,
14As noted above and discussed below, answer 9 in Amendment No. 3 to the Solicitation
stated: “For bidding purposes please include the following ‘not-to-exceed’ amounts
in the applicable CLIN” and provided a chart with amounts for CLINs X007AA and
X007AB. (emphasis in original).

34
365 F.3d at 1353); see also Greenland Contractors I/S v. United States, 131 Fed. Cl. 216,
227 (2017) (citing CBY Design Builders v. United States, 105 Fed. Cl. 303, 327 (2012)).
Regarding the interpretation of a solicitation, the United States Court of Appeals for the
Federal Circuit has stated:

[“]We begin with the plain language of the document. The solicitation is
ambiguous only if its language is susceptible to more than one reasonable
interpretation. If the provisions of the solicitation are clear and
unambiguous, they must be given their plain and ordinary meaning; we may
not resort to extrinsic evidence to interpret them. Finally, we must consider
the solicitation as a whole, interpreting it in a manner that harmonizes and
gives reasonable meaning to all of its provisions.[”]

See Per Aarsleff A/S v. United States, 829 F.3d at 1309 (emphasis in original) (quoting
Banknote Corp. of Am., Inc. v. United States, 365 F.3d at 1353); see also ARxIUM, Inc.
v. United States, 136 Fed. Cl. 188, 198 (2018) (“When interpreting a solicitation, the
document must be considered as a whole and interpreted in a manner that harmonizes
and gives reasonable meaning to all of its provisions.” (internal quotation marks and
citations omitted)).

Interpretation of an amendment to a solicitation “begins with an examination of its
[the amendment’s] plain language.” Lab. Corp. of Am. v. United States, 108 Fed. Cl. 549,
563 (2012) (citations omitted). The court is to interpret the amendment and solicitation
“‘as a whole and in a manner which gives reasonable meaning to all parts and avoids
conflict or surplusage of its provisions.’” See HomeSource Real Estate Asset Servs., Inc.
v. United States, 94 Fed. Cl. 466, 483 (2010) (quoting the undersigned’s decision in
Metro. Van & Storage, Inc. v. United States, 92 Fed. Cl. 232, 264 (2010)), aff’d, 418 F.
App’x 922 (Fed. Cir. 2011); see also BayFirst Sols., LLC v. United States, 102 Fed. Cl.
677, 689 (2012) (considering the meaning of an amendment to a solicitation in the context
of the solicitation’s requirements).

In the above-captioned protest, the Solicitation’s Schedule of Supplies/Services
stated, in the all of the descriptions of CLINs X007AA, “*****DO NOT SUBMIT PRICING
FOR THESE CLINS*****.” (capitalization in original). All of the descriptions in the
Schedule of Supplies/Services of CLINs X007AB also stated “*****DO NOT SUBMIT
PRICING FOR THESE CLINS*****.” (capitalization in original). Notwithstanding that the
all of the descriptions for CLINs X007AA and X007AB stated “*****DO NOT SUBMIT
PRICING FOR THESE CLINS*****,” the Schedule of Supplies/Services provided a
“QUANTITY” amount of “1,” as well as a “UNIT” amount of “LO”15 for CLINs X007AA and
X007AB in each period of performance. (capitalization in original). The Schedule of
Supplies/Services also provided blank lines under a column labeled “UNIT PRICE” and
under a column labeled “AMOUNT” for CLINs X007AA and X007AB. (capitalization in
original).

15“LO” is not defined in the Solicitation. (capitalization in original). As discussed below,
however, “LO” appears to stand for “LOT.” (capitalization in original).
35
In the Solicitation at issue, below the statement “*****DO NOT SUBMIT PRICING
FOR THESE CLINS*****” in the descriptions of CLINs X007AA, the descriptions of CLINs
X007AA in the Schedule of Supplies/Services Solicitation stated that “[t]hese CLINS
[CLINs X007AA] shall be performed on a fixed price basis and used with service work
requests, internal orders, and over-and-above orders placed against this contract.”
(capitalization in original). Amendment No. 3 modified the above-quoted sentence to
state: “These CLINS [CLINs X007AA] shall be performed on a fixed price basis and used
with service work requests placed against this contract.” The description of CLINs
X007AA further stated: “The amount listed is the Government ‘Ceiling’ and is a ‘not-to-
exceed’ amount with no guarantee that this amount will be used. The amount provided is
shown as a lump sum; however, this does not mean that the contractor will be paid a
lump sum.” Regarding CLINs X007AB, the descriptions of CLINs X007AB stated that
CLINs X007AB were “for reimbursement, at cost, for replacement equipment,” such as
televisions, microwaves, and refrigerators. The description of CLINs X007AB stated:

The amount listed is a “Not-to-Exceed” amount with no guarantee that this
amount will be used. The contractor shall not exceed this amount without
prior approval of the Contracting Officer in writing. The Government will not
be liable for any costs in excess of this amount unless such prior approval
has been obtained.

(capitalization in original). In the paragraph before the CLINs were listed for the base
period of performance, the Schedule of Supplies/Services stated that CLINs 0007AA and
0007AB “are pre-priced and performed as authorized by the Contracting Officer. The
amounts listed for these CLINS are a ‘not to exceed’ amount with no guarantee that the
total amount will be used.” Identical language appeared in the Schedule of
Supplies/Services before the CLINs were listed for each option period of performance.

The Solicitation’s Schedule of Supplies/Services, therefore, indicated, multiple
times, that there should have been a government ceiling or not-to-exceed “amount listed”
or “amount provided” for each of CLINs X007AA and X007AB on the Solicitation’s
Schedule of Supplies/Services. All sixteen of the descriptions of CLINs X007AA and
X007AB indicated that there was to be a ceiling or not-to-exceed “amount listed” or
“amount provided” for CLINs X007AA and X007AB, which the paragraphs preceding each
period of performance stated were “pre-priced” amounts. Offerors were instructed to
“NOT SUBMIT PRICING FOR THESE CLINS [CLINs X007AA and X007AB]” because,
as indicated in the Schedule of Supplies/Services, CLINs X007AA and X007AB were
“pre-priced” by the government as ceiling or not-to-exceed amounts that could not be
exceeded without prior authorization by the contracting officer. Because the amounts for
CLINs X007AA and X007AB were “pre-priced” and the “amounts listed for these CLINS
[CLINs X007AA and X007AB] are a ‘not to exceed’ amount with no guarantee that the
total amount will be used,” offerors did not need to submit their own pricing amounts for
CLINs X007AA and X007AB, as the government already had predetermined the amounts
for CLINs X007AA and X007AB which offerors were not to exceed during performance.
It is undisputed, however, that the Schedule of Supplies/Services in the Solicitation did
not list government ceiling amounts or not-to-exceed amounts for CLINs X007AA and

36
X007AB. It also is undisputed that ceiling amounts or not-to-exceed amounts for CLINs
X007AA and X007AB did not appear elsewhere in the Solicitation as originally issued on
October 11, 2017, although the “pre-priced” amounts for CLINs X007AA and X007AB
subsequently were provided in Amendment No. 3 to the Solicitation.

In Amendment No. 3 to the Solicitation, the Agency responded to 272 questions
posed by potential offerors, including the following question:

(emphasis in original). The agency’s answer to question 9 states that offerors should
“please include” the provided government “‘not-to-exceed’ amounts” for CLINs X007AA
and X007AB “[f]or bidding purposes.” The Agency also provided offerors with the
government ceiling amounts or not-to-exceed amounts that were referenced, but omitted,
in the Solicitation’s Schedule of Supplies/Services for CLINs X007AA and X007AB. In the
Agency’s answer to question 9, the word “please” is used as an adverb to modify the verb
“include.” The Oxford English Dictionary defines the word “please,” when used as an
adverb, as “[u]sed in polite request or agreement, or to add a polite emphasis or urgency:
kindly, if you please.” Please, OXFORD ENGLISH DICTIONARY (3d ed. 2019). The Oxford
English Dictionary defines the word “include” as “[t]o have, put in, or incorporate as part
of a whole.” Include, OXFORD ENGLISH DICTIONARY (3d ed. 2019). Although the adverb
“please” may indicate a “polite request” or “add a polite emphasis,” the word “please” only
is the modifying adverb of the verb “include,” which indicates a direction to “put in.” The
Agency’s answer to question 9 provides the amounts for CLINs X007AA and X007AB
that bidders are to “put in” or “include” in their price proposals in response to the
Solicitation “[f]or bidding purposes.” “[T]he meaning of words depends on their context,”
see Madison Galleries, Ltd. v. United States, 870 F.2d 627, 631 (Fed. Cir. 1989), and the
language used in the Agency’s answer to question 9 can be read as an instruction to
insert the listed amounts for CLINs X007AA and X007AB into the proposals submitted in
response to the Solicitation, with the word “please” used as a “polite” modifier of the verb
“include,” as the more proper interpretation of the Solicitation as issued by the Agency,
including Amendment No. 3 and the answers to the questions which were part of the total
procurement process.

37
Moreover, the Agency’s answer to question 16 in Amendment No. 3 provided:

The Agency’s answer in response to question 16 indicated to offerors that the amounts
listed in the Agency’s answer in response to question 9 for CLINs X007AB were “to be
included for submission in Volume 3-Price.” Neither answer 9 nor answer 16 in
Amendment No. 3 indicate that offerors had discretion as to whether to include the
government ceiling or not-to-exceed amounts for CLINs X007AA and X007AB.

The court must interpret the Agency’s statements in Amendment No. 3 in the
context of the Solicitation. As discussed above, the Schedule of Supplies/Services
indicated that the Solicitation was supposed to have “listed” or “provided” “pre-priced”
government ceiling or not-to-exceed amounts for CLINs X007AA and X007AB. The
Agency did not provide those amounts in the Solicitation as originally issued on October
11, 2017, but the Agency provided the “pre-priced” government ceiling or not-to-exceed
amounts for CLINs X007AA and X007AB in the Agency’s answer to question 9 in
Amendment No. 3. In Amendment No. 3, the Agency instructed offerors to “include” the
amounts listed in answer 9 for CLINs X007AA and X007AB in their price proposals “[f]or
bidding purposes.” The Solicitation’s statement to “NOT SUBMIT PRICING FOR THESE
CLINS [CLINs X007AA and X007AB],” when read in the context of the entire Solicitation
and together with Amendment No. 3, indicated to offerors that offerors should not submit
their own independent pricing for CLINs X007AA and X007AB. Rather, the offerors, when
preparing their price proposals in response to the Solicitation, were to use the government
“pre-priced” ceiling or not-to-exceed amounts provided in Amendment No. 3 for CLINs
X007AA and X007AB and should not have failed to submit pricing information for CLINs
X007AA and X007AB. The court’s interpretation of the Solicitation and Amendment No.
3 provides meaning to all parts of the text of Solicitation, including the text of Amendment
No. 3, and produces no conflict or inconsistency between the terms in the Solicitation and
Amendment No. 3.

That the Schedule of Supplies/Services listed a “QUANTITY” amount of “1” and a
“UNIT” amount of “LO” for each of CLINs X007AA and X007AB also should have indicated
to offerors to include a “UNIT” price and “AMOUNT.” (capitalization in original). Each
period of performance on the Schedule of Supplies/Services is designated as a “LOT.” 16
(capitalization in original). For example, the base period of performance is “LOT I,” the
first option period of performance is designated as “LOT II,” the second option period of
performance is designated as “LOT III,” etc. (capitalization in original). The “QUANTITY”
amount of “1” and a “UNIT” amount of “LO” on the Schedule of Supplies/Services
indicates that offerors were to submit a single “UNIT PRICE” for the relevant “LOT” under
CLINs X007AA and X007AB. (capitalization in original). The “UNIT PRICE” information
16 Although the Solicitation indicated a “UNIT” amount of “LO,” each period of
performance was designated in the Solicitation as a “LOT.” (capitalization in original).
38
for each “LOT” was provided in answer 9 in Amendment No. 3 for CLINs X007AA and
X007AB. (capitalization in original). In B&O’s price proposal, B&O included the respective
CLIN amounts provided in answer 9 in Amendment No. 3 as the “UNIT PRICE” amounts,
as well as the total “AMOUNT” for each lot, for CLINs X007AA and X007AB. If offerors
were not to submit any “UNIT PRICE” or “AMOUNT” for CLINs X007AA and X007AB,
listing a “QUANTITY” amount of “1” and a “UNIT” amount of “LO” in the Solicitation for
each of CLINs X007AA and X007AB would have been unnecessary because the offerors
would not have needed to include the government provided amounts for CLINs X007AA
and X007AB in the “UNIT PRICE” and “AMOUNT” columns. (capitalization in original).

Moreover, protestor’s reliance on the Solicitation’s Order of Precedence clause is
misplaced. The Solicitation’s Order of Precedence clause states:

(s) Order of precedence. Any inconsistencies in this solicitation or contract
shall be resolved by giving precedence in the following order: (1) the
schedule of supplies/services; (2) The Assignments, Disputes, Payments,
Invoice, Other Compliances, Compliance with Laws Unique to Government
Contracts, and Unauthorized Obligations paragraphs of this clause; (3) the
[Federal Acquisition Regulation (FAR)] clause at 52.212-5; (4) addenda to
this solicitation or contract, including any license agreements for computer
software; (5) solicitation provisions if this is a solicitation; (6) other
paragraphs of this clause; (7) the Standard Form 1449; (8) other
documents, exhibits, and attachments; and (9) the specification.

(capitalization and emphasis in original). Because the terms of the Solicitation and
Amendment No. 3 do not conflict, as discussed above, however, the court need not reach
the Solicitation’s Order of Precedence clause to resolve alleged “inconsistencies in this
solicitation” when determining whether offerors were required to include the government
provided ceiling or not-to-exceed amounts for CLINs X007AA and X007AB.

Thus, the court finds that offerors were required to include in their price proposals
the government provided ceiling or not-to-exceed amounts for CLINs X007AA and
X007AB, and that it was not arbitrary and capricious for the Agency to require inclusion
of the amounts for CLINs X007AA and X007AB.

Whether the Agency Arbitrarily and Capriciously Disqualified Safeguard

Protestor argues that, even if the Solicitation and Amendment No. 3 required
offerors to include the “plug numbers” for CLINs X007AA and X007AB, it was
unreasonable for the Agency to disqualify protestor because the Agency did not
“reasonably announce” that offerors could be disqualified for failure to include the
government provided “plug numbers.” Protestor argues:

DHS represented that it disqualified Safeguard based on the following
Solicitation language: “Exceptions to the line item structure in Section B
may result in a bid not considered for award.” (emphasis added). This

39
provision is unqualified and pertains only to the structure of the line
items provided in Section B, which solely outlines a period of performance
schedule and gives a brief description of the phase-in period. Section B
does not refer to pricing any CLINs whatsoever other than CLIN 0001A for
the phase-in period only. The alleged non-compliance in Safeguard’s
proposal relates to Schedule B not Section B. Thus, even assuming
arguendo that DHS identified a non-compliance in Safeguard’s proposal,
DHS still has cited no reasonable basis to disqualify the proposal.

(emphasis in original) (internal references omitted).

Protestor also argues that the Agency arbitrarily and capriciously disqualified
Safeguard’s proposal for failing to include the government provided ceiling or not-to-
exceed amounts for CLINs X007AA and X007AB. Protestor argues that the Agency failed
to consider whether “Safeguard’s omission of the Agency plug numbers constituted an
‘informality’ or ‘minor irregularity’ subject to waiver, under FAR 52.212-1, which was
incorporated into the Solicitation.” According to protestor, the United States Court of
Federal Claims “has held that waiving such minor ‘form over substance’ types of
irregularities are proper exercises of an agency’s discretion.” (citations omitted). Protestor
further argues that the Agency could have resolved Safeguard’s omission of the “plug
numbers” for CLINs X007AA and X007AB through “clarifications.” Protestor also
contends that “the Agency had twice before been able to evaluate Safeguard’s proposal
despite the absence of the plug numbers.”

In defendant’s cross-motion for judgment on the administrative record, defendant
argues that the Solicitation “warns that ‘Pricing Schedule and Periods of Performance
(POP) Service dates for each CLIN are detailed in Section B’ and that ‘[e]xceptions to line
item structure in Section B may result in a bid not considered for award.’” According to
defendant, “Section B includes the Pricing Schedule, as exemplified by Amendment
0003’s reference to ‘Section B Price Schedule,’” and the “‘line item structure in Section B’
refers to CLINs, including the maintenance service request CLINs at issue. Thus,
Safeguard was on notice that its failure to follow Amendment 0003’s line item structure –
and include the maintenance request pricing in its proposal – could result in the rejection
of its proposal.” Defendant cites to FAR § 15.204-2 (2019), titled “Part I -- The Schedule,”
and argues that “Schedule B is simply another way to referring to Section B and vice
versa.”

According to defendant’s motion for judgment on the administrative record, under
FAR clause 52.212-1(g), the Agency may not waive “material errors,” and “[t]his Court
has repeatedly recognized that pricing omissions – like the ones that occurred here – are
material errors.” Defendant argues that Safeguard’s “pricing omissions” violate the terms
of the Solicitation because offerors were required to include the amounts provided by the
government for CLINs X007AA and X007AB. Defendant asserts that Safeguard’s “pricing
omissions” prohibited the Agency from making an “apples-to-apples” comparison of
Safeguard’s total price with other offeror’s total price, which included the government
provided amounts for CLINs X007AA and X007AB.

40
Defendant-intervenor also cites to FAR § 15.204-2 and argues that Safeguard’s
“tortured” argument involving Section B fails because “Section B contains the supplies or
services and their prices, and this section is to ‘[i]nclude a brief description of the supplies
or services; e.g., item number, national stock number/part number if applicable, nouns,
nomenclature, and quantities.’ Those brief descriptions are included on Schedule B.”
(emphasis in original) (quoting FAR § 15.204-2). Regarding the disputed Section B
language in the Solicitation, defendant-intervenor argues:

As Safeguard stated, its limited view of Section B only contained the periods
of performance for the base period and option years as well as a
requirement to price the phase-in period. That, of course, makes no sense.
The cautionary language clearly states that both the “Pricing Schedule” and
the “Periods of Performance for each CLIN” were in Section B, and
Safeguard itself managed to find Schedule B and quote prices for at least
some of the those CLINs.

(emphasis in original) (internal references omitted).

In defendant-intervenor’s motion for judgment on the administrative record,
defendant-intervenor argues that it was not arbitrary or capricious for the Agency to
disqualify Safeguard’s proposal for failing to include the amounts for CLINs X007AA and
X007AB. Defendant-intervenor contends that Safeguard’s omission of the amounts for
CLINs X007AA and X007AB was a material error not subject to waiver because the
amounts were required by the Solicitation and were necessary for the Agency to evaluate
Safeguard’s proposed total price. Defendant-intervenor asserts that Safeguard’s pricing
omission could not have been remedied through clarifications because it is improper to
resolve material errors through clarifications. Defendant-intervenor also argues that the
Solicitation informed offerors that the Agency was intending to award a contract under the
Solicitation without discussions.

The Solicitation in the above-captioned protest incorporated FAR clause 52.212-
1(g), which states that “[t]he Government may reject any or all offers if such action is in
the public interest; accept other than the lowest offer; and waive informalities and minor
irregularities in offers received.” See FAR § 52.212-1(g). Errors or omissions that are
considered to be “material” are not subject to waiver under FAR clause 52.212-1(g). See
ManTech Advanced Sys. Int’l, Inc. v. United States, 141 Fed. Cl. 493, 506 (2019)
(“Because DOJ [the Department of Justice] only had the discretion to waive ‘informalities
and minor irregularities’ [under FAR clause 52.212-1(g)], DOJ cannot waive errors that
were rationally categorized as material.”); see also Bus. Integra, Inc. v. United States,
116 Fed. Cl. 328, 337 (2014) (“Because Business Integra’s error was material, the
government was under no obligation to waive the error or allow Business Integra to
correct the error.”). Errors or omissions are considered to be material when the error or
omission violates an express provision in the Solicitation that serves “a substantive
purpose.” See ManTech Advanced Sys. Int’l, Inc. v. United States, 141 Fed. Cl. at 506
(citations omitted); see also MSC Indus. Direct Co. v. United States, 140 Fed. Cl. 632,

41
643 (2018) (“Under FAR § 52.212-1(g) material elements are those necessary for a
proposal to represent an offer to provide the exact thing called for in the request for
proposals.” (internal quotation marks and citation omitted)). A provision in the Solicitation
“is considered to have a substantive purpose when it is important to the government’s
evaluation, is binding on the offeror, or has more than a negligible impact on the price,
quantity, or quality of the bid.” ManTech Advanced Sys. Int’l, Inc. v. United States, 141
Fed. Cl. at 508 (citations omitted). Under FAR clause 52.212-1(g), “omissions in
proposals are material omissions when the excluded information is ‘important to the
government’s evaluation of the offer.’” MSC Indus. Direct Co. v. United States, 140 Fed.
Cl. at 643 (quoting Bus. Integra, Inc. v. United States, 116 Fed. Cl. at 334). Moreover,
even if an error or omission is subject to waiver under FAR clause 52.212-1(g), an agency
is not required to waive the error or omission. See T Square Logistics Servs. Corp. v.
United States, 134 Fed. Cl. at 558 (“The fact that an agency is permitted to waive the
submission format requirement, of course, does not mean it is required to do so.”
(emphasis in original)).

“Clarifications are limited exchanges, between the Government and offerors, that
may occur when award without discussions is contemplated.” FAR § 15.306(a)(1) (2019).
Clarifications provide offerors with an “opportunity to clarify certain aspects of proposals
(e.g., the relevance of an offeror’s past performance information and adverse past
performance information to which the offeror has not previously had an opportunity to
respond) or to resolve minor or clerical errors.” FAR § 15.306(a)(2) (2019). Clarifications
may not “‘be used to cure proposal deficiencies or material omissions, materially alter the
technical or cost elements of the proposal, or otherwise revise the proposal.’” Dell Fed.
Sys., L.P. v. United States, 906 F.3d at 998 (quoting JWK Int’l Corp. v. United States, 52
Fed. Cl. 650, 661 (2002), aff’d, 56 F. App’x 474 (Fed. Cir. 2003)); see also MSC Indus.
Direct Co. v. United States, 140 Fed. Cl. at 646 (“‘Clarifications’ are reserved for only
minor administrative errors and not material omissions.”).

“Flowing from the permissive wording of” FAR § 15.306, a contracting officer’s
“decision to seek (or not to seek) clarification from an offeror is within his discretion.”
Criterion Sys., Inc. v. United States, 140 Fed. Cl. 29, 37 (2018); see also Strategic Bus.
Sols., Inc. v. United States, 129 Fed. Cl. at 629 (stating that a contracting officer has
discretion when determining whether to seek clarifications); BCPeabody Constr. Servs.,
Inc. v. United States, 112 Fed. Cl. at 511 (stating that a contracting officer has discretion
when deciding whether to seek clarifications, but determining that the contracting officer
abused her discretion by not seeking clarifications). A Judge of the United States Court
of Federal Claims has stated:

While this court has found an abuse of discretion in bid protests governed
by FAR Part 15 where the government failed to inquire into copying errors
that affected the procuring authority’s evaluation of past performance, see
BCPeabody, 112 Fed. Cl. at 513, an omission of pricing information has not
been found to be a minor or clerical error in these types of procurements,
see ST Net[, Inc. v. United States], 112 Fed. Cl. [99,] at 111 [(2013)].

42
Bus. Integra, Inc. v. United States, 116 Fed. Cl. at 335; see also ManTech Advanced Sys.
Int’l, Inc. v. United States, 141 Fed. Cl. at 512 (“This court has determined in several
previous cases that proposals with missing mandatory price information contain material
errors, even when the price information has a minimal impact the total price, so long as
the needed prices will be considered in the evaluation process and binding on the
offeror.”).

The parties dispute concerning Schedule B and Section B requires the court to
interpret those two terms in the context of the Solicitation and the amendments thereto,
as neither term is explicitly defined in the Solicitation or the amendments. The issue
before the court is whether the “Schedule B” referenced in the Solicitation is considered
to be a part of “Section B.” The first two pages of the Solicitation are provided on a
government SF 1449, which is a government standard form “prescribed for use in
solicitations and contracts for commercial items.” See FAR § 53.212 (2019). Pages three
through thirty of the Solicitation are provided on government OF 336, which is a
government optional form. The regulation at FAR § 53.110 (2019) states that “all standard
forms prescribed by the FAR,” such as the government SF 1449, “may be continued on
(a) plain paper of similar specification, or (b) specially constructed continuation sheets
(e.g., OF 336).” See FAR § 53.110. In the Solicitation at issue in this protest, the
government OF 336 continued the government SF 1449. The Schedule of
Supplies/Services in the Solicitation begins in Block 20 on the SF 1449 and continues in
column “(B)” on the government OF 336. Together, the initial thirty pages of the
Solicitation consisted of the Schedule of Supplies/Services, including the CLINs,
descriptions of CLINs, quantity amounts, unit amounts, unit prices, and total amounts for
the base period of performance, as well as all seven option periods of performance. That
the Schedule of Supplies/Services continues throughout column (B) on the government
OF 336 appears to be the genesis of the name “Schedule B.”17 The Solicitation also states
that an offeror’s “[p]rice proposal shall include completed Schedule B. In the event there
is a discrepancy between sections of the price proposal and Schedule B, Schedule B will
govern.”

17Throughout this Opinion, the court has discussed the Schedule of Supplies/Services
present in the Solicitation. The part of the Solicitation that the parties refer to as “Schedule
B” is the same part of the Solicitation that the court refers to as the Schedule of
Supplies/Services.
43
Regarding Section B, which defendant and defendant-intervenor assert included
Schedule B, page thirty-one of the Solicitation provided the following overview of the
Solicitation:

The first subsection in the Solicitation, Section A, is labeled “SECTION A SOLICITATION
GENERAL INFORMATION.” (capitalization in original). Section A of the Solicitation
stated: “Pricing Schedule and Periods of Performance (POP) Service dates for each CLIN
are detailed in Section B. Note: Exceptions to line item structure in Section B may result
in a bid not considered for award.” (capitalization in original). The parties dispute
regarding Schedule B and Section B stems from the statement in Section A of the
Solicitation that “[e]xceptions to line item structure in Section B may result in a bid not
considered for award.”

According to the overview of the contents of the Solicitation, the second section in
the Solicitation was titled “SECTION B PRICE SCHEDULE GENERAL INFORMATION.”
(capitalization in original). The second section in the Solicitation, in its entirety, provided:

44
When the Agency issued Amendment No. 3 to the Solicitation, Section B was amended
to state:

(highlight in original). Protestor’s position is that the immediately above image is, in its
entirety, Section B, as amended, and that Schedule B is not included in Section B
because Schedule B is not contained in the above-image of “SECTION B PRICE
SCHEDULE.” (capitalization in original).

The Solicitation, however, indicates that Schedule B, which is the Schedule of
Supplies/Services, is included as part of Section B of the Solicitation, as Section A of the
Solicitation stated that “Pricing Schedule and Periods of Performance (POP) Service
dates for each CLIN are detailed in Section B. Note: Exceptions to line item structure in
Section B may result in a bid not considered for award.” (emphasis added) (capitalization
in original). When the Solicitation was issued, the section of the Solicitation labeled in the
overview of the Solicitation as “SECTION B PRICE SCHEDULE GENERAL
INFORMATION” contained information relating to the “Periods of Performance (POP)
Service dates,” but did not include information on “each CLIN” or the “line item structure
in Section B.”18 (capitalization in original). The section labeled “SECTION B PRICE
SCHEDULE GENERAL INFORMATION” did not include any information related to the
quantity, unit amount, unit price, or total amount of individual CLINs, which Section A of
the Solicitation indicated would be “detailed in Section B.” (capitalization in original

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4424968. Public record. Not legal advice.