Anham Fzco v. United States

In the United States Court of Federal Claims

No. 19-55C

(E-filed: September 20, 2019) 1

)

ANHAM FZCO, )

)

Plaintiff, )

)

v. ) Post-Award Bid Protest; Scope of

) Corrective Action; Waiver of Claims;

THE UNITED STATES, ) Abuse of Discretion; Best Value

) Determination; Responsibility

Defendant, ) Determination; 48 C.F.R. § 9.103

) (2018); 48 C.F.R. § 9.104-1 (2018);

and ) Permanent Injunctive Relief.

)

KGL FOOD SERVICES WLL, )

)

Intervenor-Defendant. )

)

Kelly E. Buroker, Washington, DC, for plaintiff.

Daniel S. Herzfeld, Trial Attorney, with whom appeared Joseph H. Hunt, Assistant

Attorney General, Robert E. Kirschman, Jr., Director, and Douglas K. Mickle, Assistant

Director, Commercial Litigation Branch, Civil Division, United States Department of

Justice, Washington, DC, for defendant. Daniel K. Poling, R. Zen Schaper, Gale Furman,

and Cathleen Choromanski, Defense Logistics Agency, of counsel.

John E. McCarthy, Jr., Washington, DC, for intervenor-defendant.

1

This opinion was issued under seal on August 29, 2019. Pursuant to ¶ 10 of the

ordering language, the parties were invited to identify source selection, proprietary or

confidential material subject to deletion on the basis that the material was

protected/privileged. The parties’ agreed-upon redactions are acceptable to the court. All

redactions are indicated by brackets ([ ]).

OPINION

CAMPBELL-SMITH, Judge.

Plaintiff filed this bid protest to challenge the award of a contract for the provision

of “food distribution services in support of U.S. troops and other personnel in” Iraq,

Jordan, and Kuwait. ECF No. 147 at 1 (second amended complaint). Seven motions are

now before the court: (1) plaintiff’s motion for entry of a temporary restraining order,

ECF No. 148; (2) plaintiff’s motion for entry of a preliminary injunction, ECF No. 149;

(3) plaintiff’s motion for judgment on the administrative record (AR), ECF No. 153; (4)

defendant’s cross-motion for judgment on the AR, ECF No. 155; (5) intervenor-

defendant’s cross-motion for judgment on the AR, ECF No. 156; (6) defendant’s motion

to strike, ECF No. 163; and (7) defendant’s motion to complete the AR, ECF No. 164.

The motions are fully briefed and ripe for a decision by the court.

In ruling on these motions, the court has considered the following: (1) plaintiff’s

second amended complaint, ECF No. 147 (complaint); (2) the AR, ECF Nos. 36-58, 69,

71, 120, 179, and 181; (3) plaintiff’s motion for entry of a temporary restraining order,

ECF No. 148; (4) plaintiff’s motion for entry of a preliminary injunction, ECF No. 149;

(5) plaintiff’s motion for judgment on the AR, ECF No. 153; (6) defendant’s response to

plaintiff’s motions for entry of a temporary restraining order, preliminary injunction, and

judgment on the AR, and its cross-motion for judgment on the AR, ECF No. 155; (7)

intervenor-defendant’s response to plaintiff’s motions for entry of a temporary restraining

order, preliminary injunction, and judgment on the AR, and its cross-motion for judgment

on the AR, ECF No. 156; (8) plaintiff’s reply in support of its motions for entry of a

temporary restraining order, preliminary injunction, and judgment on the AR, and its

response to defendant’s and intervenor-defendant’s cross-motions for judgment on the

AR, ECF No. 160; (9) intervenor-defendant’s reply in support of its cross-motion for

judgment on the AR, ECF No. 161; (10) defendant’s reply in support of its cross-motion

for judgment on the AR, ECF No. 162; (11) defendant’s motion to strike, ECF No. 163;

(12) defendant’s motion for leave to complete the AR, ECF No. 164; 2 (13) plaintiff’s

response to defendant’s motion for leave to complete the AR, ECF No. 166; (14)

plaintiff’s response to defendant’s motion to strike, ECF No. 167; (15) defendant’s reply

in support of its motion for leave to complete the AR, ECF No. 169; (16) defendant’s

reply in support of its motion to strike, ECF No. 170; (17) plaintiff’s sur-reply to

defendant’s motion to complete the AR, ECF No. 173; (18) defendant’s supplement to

the AR, ECF No. 179, and (19) defendant’s supplement to the AR, ECF No. 181.

2

Defendant filed this motion as a motion for leave to supplement the administrative

record (AR), see ECF No. 164, but upon review of the motion, the court deemed the

motion as one for leave to complete the AR, see ECF No. 165 (order).

2

The parties combined briefing for the motion for entry of a temporary restraining

order, the motion for entry of a preliminary injunction, and the motion and cross-motions

for judgment on the AR. See ECF No. 151 (scheduling order). Because briefing on both

the requests for interim injunctive relief and the merits were completed at the same time,

the court will proceed directly to consideration of the merits.

Accordingly, and for the reasons set forth below: (1) plaintiff’s motion for entry

of a temporary restraining order, ECF No. 148, is DENIED as moot; (2) plaintiff’s

motion for entry of a preliminary injunction, ECF No. 149, is DENIED as moot; (3)

plaintiff’s motion for judgment on the AR, ECF No. 153, is GRANTED in part, and

DENIED in part; (4) defendant’s cross-motion for judgment on the AR, ECF No. 155, is

GRANTED in part, and DENIED in part; (5) intervenor-defendant’s cross-motion for

judgment on the AR, ECF No. 156, is GRANTED in part, and DENIED in part; (6)

defendant’s motion to strike, ECF No. 163, is DENIED as moot; and (7) defendant’s

motion to complete the AR, ECF No. 164, is DENIED as moot.

I. Background

A. The Solicitation

On December 15, 2018, the Defense Logistics Agency (DLA) issued a request for

proposals, number SPE300-15-R-0042 (the solicitation). See ECF No. 36-1 at 92. The

solicitation requested offers “for subsistence Prime Vendor support to military and other

federally funded customers located throughout the countries of Kuwait, Iraq, Syria, and

Jordan.” Id. at 877. DLA sought to “enter into a Fixed Price Indefinite Delivery

Indefinite Quantity (‘IDIQ’) Contract, . . . with a full line food distributor who will act as

a Prime Vendor responsible for the supply and delivery of semi-perishable and perishable

food items as well as non-food Food Service Operating Supply (‘FSOS’) items.” Id. The

solicitation instructed offerors to submit proposals in multiple volumes. The submission

requirements for Volume I addressed the solicitation forms that each offeror was required

to complete, and directed offerors to list any affiliates “that will be utilized for this

contract,” along with those forms. See ECF No. 36-1 at 993-94. The submission

requirements for Volume II addressed the technical evaluation materials, including the

information related to the experience and past performance factors at issue here. See id.

at 994. DLA used the technical proposals in Volume II of each proposal to evaluate five

factors: (1) Warehouse Location and Capacity; (2) Experience; (3) Quality Control,

Assurance, and Warehouse Management System Procedures; (4) Resource Availability

(Case Flow, Equipment, and Carrier Agreements); and (5) Implementation and

Management Plan. Id. at 994-99; 1012-14.

The solicitation stated that DLA “will award a contract resulting from this

solicitation to the responsible offeror whose offer conforming to the solicitation will be

most advantageous to the Government, price and other non-price factors considered.” Id.

3

and Carrier

Agreements[)]

Factor V— O O G G G G O

Implementation and

Management Plans

Past Performance SAC LC SAC SAC LC SAC SAC

Overall Technical G G G G A G G

Rating

ECF No. 48-2 at 400. The SSAC then compared overall technical ratings with price in a

second chart, as reproduced here:

Offeror Overall Total Evaluated % Above Low $ Above Low

Technical Price

Rating

KGL G $132,288,115.74 Lowest

[] G [] [] []

ANHAM G $150,815,549.80 14% $18,527,434.06

[] G [] [] []

[] G [] [] []

[] G [] [] []

[] A [] [] []

Id. On the basis of this evaluation, the SSAC “concluded that the proposal from KGL

represents the best value to the Government.” Id. at 394. DLA awarded KGL the

contract on January 12, 2018. See ECF No. 48-3 at 172.

5

C. GAO Protests

Plaintiff filed a protest action with the Government Accountability Office (GAO),

challenging DLA’s award to KGL. See ECF No. 49-1 at 24-66. On May 8, 2018, the

GAO sustained the protest in part, and denied the protest in part. See ECF No. 54-1 at

1454-70. With regard to the sustained portions of the protest, the GAO found that: (1)

DLA improperly considered a particular contract as part of its evaluation of KGL’s

experience; and (2) DLA improperly considered more than two team member contracts

from KGL, which was prohibited by the terms of the solicitation. See id. at 1463-65.

The GAO also commented, in a footnote, as follows:

ANHAM also challenges the reasonableness of the agency’s determination

that the awardee provided warehouse facilities that were owned by the

awardee. ANHAM points out that KGLFS’s proposal did not present its

warehouses as owned by KGLFS, and, in fact, specifically provided that the

warehouses were to be leased from a separate KGLFS affiliated company.

While the agency explains that its evaluation recognized that the warehouses

were owned by a KGLFS affiliated company--and not KGLFS--the agency

nevertheless found that, since both firms were owned by a common parent

company, it was appropriate to give KGLFS ownership credit for the

warehouses. However, the record is unclear as to whether the agency

reasonably found that the ownership of the warehouses by an affiliated

company can be attributed to the offeror, which has a separate legal identity.

Thus, in implementing our recommendations, the agency may wish to

consider reviewing the reasonableness of its determination that KGLFS

should be give[n] ownership credit for its warehouses.

ECF No. 54-1 at 1469 n.16.

Plaintiff raised a number of other challenges to DLA’s initial award to KGL, all of

which were denied by the GAO. Those grounds included: (1) plaintiff’s assertion that

DLA failed to consider adverse information relating to KGL’s responsibility, id. at 1467;

and (2) plaintiff’s allegation that KGL materially misrepresented its ability to make use

of its proposed warehouses, id. at 1468. In conclusion, the GAO recommended that DLA

“either reevaluate KGLFS’s final proposal under the experience factor in accordance with

the terms of the solicitation and document a new source selection decision, or revise the

solicitation to reflect the agency’s requirements and obtain revised proposals.” Id. at

1470.

6

Id. at 261.

In the SSDD, DLA also engaged in a lengthy “Technical-Price Tradeoff

Analysis,” in which it compared the KGL proposal (the lowest price offer) to each of the

others. Id. at 260-72. On December 18, 2018, DLA again selected KGL as the awardee

because “KGL’s technical proposal is among the most highly rated overall (although

other offerors are more highly rated on some factors) and KGL has the lowest total

evaluated price.” Id. at 273. The SSDD further explains:

As documented by the contracting officer in the determination of

responsibility for KGL, see attached, KGL is a responsible offeror that can

successfully perform on the proposed contract for the area based on its level

of experience as evidenced by its offer and references. . . .

KGL has the necessary . . . distribution network to fulfill the needs of the

contract. It also has the proper experience, supply chain management

procedures and system, quality control and warehouse procedures, and

resources (cash flow, equipment, and carrier agreements) in place to

successfully perform under the subject contract.

KGL’s price proposal substantiates its ability to support all items in this

solicitation and the complete catalog, to include adding new items for the

customer according to the DoD Services’ menu requirements.

In conclusion, KGL has presented a proposal that has a technical strategy

rated as Good, combined with a Business Proposal that the Government has

determined to contain fair and reasonable pricing for all prices that will be

included in the contract. . . . In addition, KGL’s total evaluated price of

$132,288,115.74 is the lowest offered price.

ANHAM’s technical proposal was, on a comparative basis, the only proposal

that was considered to be technically better than KGL’s. Although technical

merit is significantly more important than price, as discussed above, the

added benefits of the ANHAM proposal, in light of the strengths contained

in the KGL proposal, do not justify paying an evaluated 14% premium.

Therefore, I have determined that KGL’s overall proposal represents the best

value to the Government.

Id. DLA awarded the contract to KGL for a second time on December 21, 2018. See

ECF No. 58-4 at 14.

9

E. Plaintiff’s Court of Federal Claims Protest

Plaintiff filed the instant protest action on January 10, 2019. See ECF No. 1. On

February 15, 2019, the parties filed a joint status report in which they proposed an

agreed-upon briefing schedule to address the merits of this case. See ECF No. 74 at 2.

Therein, the parties also informed the court of defendant’s plans for proceeding with

transition activities. Specifically, they stated: “As this protest proceeds, the Defense

Logistics Agency (DLA) expects to begin a limited transition with the awardee, KGL

Food Services WLL (KGL).” Id. at 1. The report further represented to the court that

“DLA and KGL are in the process of finalizing the terms of that limited transition, but

the parties anticipate that the transition will not involve KGL performing activities such

as (1) ordering product, (2) receiving transfer of incumbent stock, (3) receiving customer

orders, or (4) delivering customer orders.” Id. Defendant agreed to provide notice to the

court five days before undertaking any of the excepted activities. See id. Defendant

provided that notice to the court on April 8, 2019, see ECF No. 104, and plaintiff did not

object to defendant’s plans or otherwise directly respond to defendant’s filing.

On April 23, 2019, plaintiff filed a motion for voluntary dismissal of a portion of

its original case in order to allow for filing in federal district court. See ECF No. 122. 3

Plaintiff also requested that the court stay this case pending resolution of the district court

case. See ECF No. 124. The court granted plaintiff’s motion for voluntary dismissal, see

ECF No. 126, and stayed the case pending a decision in district court, see ECF No. 135.

The court lifted the stay on May 31, 2019, following the conclusion of the district court

proceedings, and the parties proceeded to address the remaining merits of plaintiff’s case.

See ECF No. 145 (order). On June 3, 2019, plaintiff filed its second amended complaint

in this matter. See ECF No. 147.

II. Legal Standards

The Tucker Act grants this court jurisdiction

to render judgment on an action by an interested party objecting to a

solicitation by a Federal agency for bids or proposals for a proposed contract

3

Plaintiff was, at the beginning of this protest, suspended by DLA from

competition. See ECF No. 71-1 at 2-6 (suspension decision dated December 27, 2018).

That suspension decision was challenged in plaintiff’s original complaint, see ECF No. 1,

but plaintiff later voluntarily dismissed the suspension challenge in favor of filing that

claim in federal district court, see ECF No. 126 (order granting dismissal). During the

pendency of the district court proceedings, DLA lifted the suspension, and the district

court dismissed the case before it. See ECF No. 145 (order memorializing the status

conference in which plaintiff updated the court on the status of the district court

proceedings).

10

or to a proposed award or the award of a contract or any alleged violation of

statute or regulation in connection with a procurement or a proposed

procurement . . . without regard to whether suit is instituted before or after the

contract is awarded.

28 U.S.C. § 1491(b)(1) (2012).

The court’s analysis of a “bid protest proceeds in two steps.” Bannum, Inc. v.

United States, 404 F.3d 1346, 1351 (Fed. Cir. 2005). First, the court determines,

pursuant to the Administrative Procedure Act standard of review, whether the “agency’s

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

with [the] law.” Glenn Def. Marine (ASIA), PTE Ltd. v. United States, 720 F.3d 901,

907-08 (Fed. Cir. 2013) (citing 28 U.S.C. § 1491(b)(4) (adopting the standard of 5 U.S.C.

§ 706)). If the court finds that the agency acted in error, the court then must determine

whether the error was prejudicial. See Bannum, 404 F.3d at 1351.

To establish prejudice, “a protester must show ‘that there was a substantial chance

it would have received the contract award but for that error.’” Alfa Laval Separation, Inc.

v. United States, 175 F.3d 1365, 1367 (Fed. Cir. 1999) (quoting Statistica, Inc. v.

Christopher, 102 F.3d 1577, 1582 (Fed. Cir. 1996)). “In other words, the protestor’s

chance of securing the award must not have been insubstantial.” Info. Tech. &

Applications Corp. v. United States, 316 F.3d 1312, 1319 (Fed. Cir. 2003). The

substantial chance requirement does not mean that plaintiff must prove it was next in line

for the award but for the government’s errors. See Sci. & Mgmt. Res., Inc. v. United

States, 117 Fed. Cl. 54, 62 (2014); see also Data Gen. Corp. v. Johnson, 78 F.3d 1556,

1562 (Fed. Cir. 1996) (“To establish prejudice, a protester is not required to show that but

for the alleged error, the protester would have been awarded the contract.”).

Demonstrating prejudice does require, however, that the plaintiff show more than a bare

possibility of receiving the award. See Bannum, 404 F.3d at 1358 (affirming the trial

court’s determination that the plaintiff had not demonstrated a substantial chance of

award when its “argument rest[ed] on mere numerical possibility, not evidence”).

Given the considerable discretion allowed contracting officers, the standard of

review is “highly deferential.” Advanced Data Concepts, Inc. v. United States, 216 F.3d

1054, 1058 (Fed. Cir. 2000). As the Supreme Court of the United States has explained,

the scope of review under the “arbitrary and capricious” standard is narrow. See

Bowman Transp., Inc. v. Arkansas-Best Freight Sys., Inc., 419 U.S. 281, 285 (1974). “A

reviewing 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,” and “[t]he court is

not empowered to substitute its judgment for that of the agency.’” Id. (quoting Citizens

to Preserve Overton Park v. Volpe, 401 U.S. 402, 416 (1971)); see also Weeks Marine,

Inc. v. United States, 575 F.3d 1352, 1368-69 (Fed. Cir. 2009) (stating that under highly

deferential rational basis review, the court will “sustain an agency action ‘evincing

11

rational reasoning and consideration of relevant factors’”) (citing Advanced Data

Concepts, 216 F.3d at 1058).

III. Motions for Judgment on the Administrative Record

In its motion for judgment on the AR, plaintiff argues that it is entitled to

declaratory and injunctive relief because “DLA’s award to KGLFS was arbitrary,

capricious, an abuse of discretion and contrary to law and regulation.” ECF No. 153 at

22. Plaintiff summarizes its argument as follows: “DLA’s improper consideration of a

non-team member reference in connection with its experience and past performance

evaluations, its irrational finding that KGLFS effectively owned its proposed warehouse,

and its failure to consider critical, known, information in connection with its

responsibility determination renders its award decision invalid.” Id. at 22-23. The court

will address each part of plaintiff’s argument, in turn.

A. KGL’s Experience (Factor II) and Past Performance

Plaintiff argues that DLA improperly considered two contracts, which were

performed by KGL affiliates, in evaluating KGL’s proposal. See id. at 23-31. The

solicitation expressly allows offerors to rely on the experience and past performance of

affiliates, but the proposal “must clearly demonstrate that the team member will have

meaningful involvement in performance of the resultant contract.” See ECF No. 36-1 at

996, 999. DLA relied on two contracts in evaluating KGL’s experience (Factor II of the

technical evaluation) and past performance: (1) a contract between KGL affiliate KGL

General Trading and Contracting (KGL Trading) and the United Nations Interim Force in

Lebanon (UNIFIL); and (2) the KGL affiliate KGL Transportation Co. KSCC’s (KGL

Transport) OIR-I Iraq Line Haul (OIR-Iraq) contract. See ECF No. 57-4 at 194-97, 282-

85. Based on these two contracts, DLA rated KGL as “Marginal” as to the Experience

factor, and “Satisfactory Confidence” as to the Past Performance factor. Id. at 194, 284.

According to plaintiff, KGL’s proposal failed to demonstrate that KGL General

Trading would have meaningful involvement in the contract at issue, and that the KGL

Transport contract was of “dubious relevance.” ECF No. 153 at 24. Plaintiff contends

that had DLA properly evaluated KGL’s proposal, it would have been rated

“unacceptable,” id. at 23, a rating that would have—under the terms of the solicitation—

prevented KGL from receiving the award, see ECF No. 36-1 at 1012 (“Any offeror that

receives an Unacceptable rating on any individual factor will be considered Technically

Unacceptable and will not be eligible for award.”).

12

1. The KGL General Trading Contract

a. KGL’s Failure to List KGL General Trading as an Affiliate in

Volume I

Plaintiff claims that DLA should not have considered the UNIFIL contract

because KGL General Trading was not listed as either a team member or a subcontractor

in KGL’s proposal. See ECF No. 153 at 25. In support of its argument, plaintiff quotes

Ernst & Young, LLP v. United States, 136 Fed. Cl. 475, 514-15 (2018), for the

proposition that “the text of the solicitation ultimately ‘governs how the proposals are to

be evaluated.’” ECF No. 153 at 25. Here, the solicitation instructed offerors to “submit a

complete list of your affiliates, subsidiaries, and partially or wholly-owned companies

that will be utilized in this contract. If not applicable, a negative reply is required.” ECF

No. 36-1 at 994. In response to this requirement, KGL identified four affiliates in its

proposal, but not KGL General Trading. See ECF No. 40-1 at 449.

Defendant responds to this argument by differentiating between the requirements

for “Volume I” and “Volume II” of the proposal. As previously noted, the submission

requirement for Volume I addresses the solicitation forms that each offeror was required

to complete. Offerors were directed to include the list of affiliates along with those forms

as part of Volume I. See ECF No. 36-1 at 993-94. Volume II addresses the required

technical evaluation materials, including the information related to the experience and

past performance factors at issue here. See id. at 994. According to defendant, “KGL’s

failure to list KGL General Trading as a subsidiary or affiliate in Volume 1 was not

dispositive as to whether KGL intended to use KGL General Trading for meaningful

involvement in performing contract requirements.” ECF No. 162 at 8.

In the court’s view, the plain language of the solicitation indicates that KGL

should have listed KGL General Trading as part of its “complete list of . . . affiliates . . .

that will be utilized in this contract,” in Volume I of its proposal. ECF No. 36-1 at 994.

It is not clear, however, that DLA was required to reject the contract in the evaluation of

KGL’s technical proposal as a result of this error. The solicitation language quoted

above does not specify a consequence for failing to list an affiliate. See id. And the

parties have not identified any part of either the experience factor or the past performance

factor sections of Volume II that explicitly limits the involvement of affiliates to those

listed in Volume I. See id. at 996, 999. Thus, plaintiff has not shown that DLA’s failure

to reject the UNIFIL contract is contrary either to law or to the text of the solicitation.

Furthermore, DLA’s decision to consider the UNIFIL contract was not arbitrary,

capricious, or an abuse of discretion. As defendant points out:

ANHAM’s technical proposal (as echoed in its original complaint) stated

ANHAM’s intent to use its affiliate—ANHAM USA, Inc.—to provide

13

management and support services for this contract. However, ANHAM did

not list ANHAM USA in its Volume 1 submission, it listed only ANHAM

Al Kuwait WLL for Food Products.

ECF No. 162 at 9 (internal citations omitted). See also ECF No. 36-3 at 195 (Volume I

of plaintiff’s proposal listing ANHAM AL Kuwait WLL for Food Products as its only

affiliate or subsidiary “that will be utilized for this contract”); ECF No. 179-1 at 16

(Volume II of plaintiff’s proposal listing ANHAM USA as an administrative

management support office); ECF No. 47-1 at 118-30 (DLA’s evaluation summary of

ANHAM’s Factor I proposal). DLA considered both technical proposals despite the fact

that neither offeror identified their respective affiliates in Volume I of their proposals.

This is convincing evidence of consistent—rather than arbitrary or capricious— treatment

of the offerors.

b. KGL General Trading’s Meaningful Involvement in the

Contract

Plaintiff next argues that KGL failed to demonstrate that KGL General Trading

would be meaningfully involved in the contract performance, as required by the

solicitation. See ECF No. 153 at 25. As noted above, the solicitation permits DLA to

consider the experience and past performance of KGL affiliates so long as the proposal

“clearly demonstrate[s] that the team member will have meaningful involvement in

performance of the resultant contract.” See ECF No. 36-1 at 996, 999. An “‘agency

properly may attribute the experience or past performance of a parent or affiliated

company to an offeror where the firm’s proposal demonstrates that the resources of the

parent or affiliated company will affect the performance of the offeror.’” Precision Asset

Mgmt. Corp. v. United States, 135 Fed. Cl. 342, 357 (2017) (quoting Femme Comp Inc.

v. United States, 83 Fed. Cl. 704, 747 (2008)). Examples of meaningful involvement

include “reliance on the ‘workforce, management, facilities or other resources’ of the

parent or affiliated company.” Id. (quoting IAP World Servs. Inc, B-407917.2, 2013

CPD ¶ 171, 2013 WL 2817472, at *8 (Comp. Gen. July 10, 2013)).

In the course of its re-evaluation of KGL’s proposal, DLA concluded that:

KGL General Trading and Contracting WLL will have meaningful

involvement in the resultant contracts. Their ISO22000:2005 certified Food

Safety Management System and ISO 9001:2008 Quality Management

System will be used and key personnel that performed under the UNIFIL

contract will take part in the resultant contract including Mr. [ ], Mr. [ ], and

Mr. [ ].

14

ECF No. 57-4 at 194. 4 Plaintiff contests this assessment in the strongest terms. Plaintiff

claims that KGL’s proposal fails to demonstrate that “KGL General Trading will perform

any function under the contract, much less an essential function. Nor does the proposal

demonstrate that KGL General Trading will have any ‘meaningful involvement’ in the

performance of the contract, as required by the [solicitation].” ECF No. 153 at 25. In

particular, plaintiff highlights the fact that KGL’s proposal included no memoranda of

understanding or written agreements with KGL General Trading. Id. Plaintiff also

accuses DLA of an “attempt to paper over” its error in considering the KGL General

Trading contract. Id. at 26.

In response, defendant points to several aspects of KGL’s proposal to support

DLA’s conclusion that KGL General Trading would “have meaningful involvement in

the resultant contracts.” ECF No. 57-4 at 194. First, defendant notes the general

statement made by KGL in its proposal that: “Each affiliate company within the entire

KGL enterprise has committed itself to providing all available resources to ensure the

success of this contract, through both implementation as well as sustainment throughout

the entire duration of the contract.” ECF No. 40-1 at 473. DLA also identified two

specific instances of how KGL General Trading would participate in the contract: (1) its

ISO 22000:2005 certified Food Safety Management System; and (2) the use of key

personnel who worked on the KGL General Trading contract. See ECF No. 57-4 at 194.

Defendant explains that KGL General Trading’s food safety management

certification demonstrates its ability to provide “whole sale procurement, transportation,

receiving, storage, and dispatch of food products and production of bread.” ECF No. 155

at 24 (citing ECF No. 40-1 at 528; ECF No. 40-2 at 33-35). KGL included a list of its

“ISO certified systems” as part of its proposal related to quality control, including the

ISO 22000:2005 certificates. See ECF No. 40-1 at 528. Copies of KGL General

Trading’s ISO 22000:2005 certificates were also attached to KGL’s proposal. See ECF

No. 40-2 at 33-35 (copies of the certificates which were valid until December 1, 2017,

after the date on which final proposal revisions were due). 5 According to defendant,

DLA correctly interpreted the inclusion of these certificates as an example of KGL

4

Defendant concedes that ISO 9001:2008 Quality Management System certification

should not have been included here, as it is held not by KGL General Trading, but a

different KGL entity. See ECF No. 155 at 24-25 n.1.

5

KGL states, in its reply in support of its motion for judgment on the AR, that KGL

General Trading was the only KGL entity that holds an ISO 22000:2005 certificate. See

ECF No. 161 at 8. Although the court has no reason to doubt the veracity of this

statement, it also cannot verify the same. The court does note, however, that the only

ISO 22000:2005 certificates attached to the proposal were held by KGL General Trading.

See ECF No. 40-2 at 33-35.

15

General Trading’s intended involvement in contract performance. See ECF No. 155 at

24.

With regard to DLA’s reliance on key personnel “that performed under the

UNIFIL contract, . . . including Mr. [ ], Mr. [ ], and Mr. [ ],” plaintiff asserts that “DLA

invented this theory during its reevaluation in order to justify its otherwise irrational

conclusions.” ECF No. 153 at 27. According to plaintiff, KGL did not present key

individuals as part of their proposal, and has “admitted that none of the personnel referred

to by DLA—Messrs. [ ] . . . —were employed by KGL General Trading.” Id. at 27-28.

Contrary to plaintiff’s assertion, the resumes of all three named individuals were

submitted to DLA as part of KGL’s proposal. See ECF No. 40-1 at 643 (resume of [ ],

submitted with initial proposal); ECF No. 42-5 at 50 (resume of [ ], submitted during the

first round of negotiations); id. at 55 (resume of [ ], submitted during the first round of

negotiations). Mr. [ ] was, in fact, the first person named in the “Key Personnel

Experience” section of the proposal. See ECF No. 40-1 at 636. The description of his

experience highlights the fact that as the [ ] for KGL Holding, “he is directly involved in

all major government and military contracts to include the UNIFIL project which is

responsible for the delivery of food products to UN Peacekeepers in Lebanon.” Id. Mr.

[ ]’s resume states that he was the “[ ]” on the UNIFIL contract for sixteen years. ECF

No. 42-5 at 50. And Mr. [ ]’s resume states that as the [ ] for KGL, he “[m]anaged and

monitored compliance with all US NATO and UN Contract Deliverables.” Id. at 55.

Plaintiff also objects to DLA’s reliance on the experience of these individuals in

evaluating KGL’s experience and past performance because they were not employed by

KGL General Trading, the entity who was a party to the UNIFIL contract. See ECF No.

153 at 27-28. According to plaintiff, any experience these individuals had “is not

enough” because the solicitation “required that the offeror demonstrate the meaningful

involvement of the affiliate in order to rely on that experience or past performance.” Id.

at 28 (emphasis in original). Plaintiff reads the solicitation to prohibit consideration of

individual experience under the “Experience” factor (Factor II) because such experience

is explicitly part of the “Implementation and Management Plans” factor (Factor V). See

ECF No. 36-1 at 1013-14.

Plaintiff is correct that the evaluation criteria for Factor II does not expressly

contemplate individual experience, but refers instead to the “offeror’s record of

Experience.” See id. at 1013. Plaintiff is likewise correct that the evaluation criteria for

Factor V does contemplate consideration of individual experience, stating the “offeror’s

identification of key personnel, by position, and their relevant individual experience, will

be examined in order to determine the anticipated success of the firm in providing service

to its customers.” Id. at 1014. The separation of corporate and individual experience

between Factors II and V, in plaintiff’s view, implicitly prohibits consideration of

individual experience to support an offeror’s rating for Factor II. See ECF No. 153 at 28.

16

To support its position, plaintiff cites to a decision in which the GAO stated that “an

agency may not substitute the experience of a firm’s key personnel for corporate

experience where the terms of the solicitation reasonably preclude such substitution, such

as where the solicitation includes separate evaluation criteria for corporate and key

personnel experience.” Dix Corp., B-293964, 2004 CPD ¶ 143, 2004 WL 1578995, at *3

(Comp. Gen. July 13, 2004).

In response, defendant argues that DLA’s consideration of personnel experience

under Factor II was permissible because it was not specifically prohibited. See ECF No.

155 at 26 (“ANHAM points to no provision of the Solicitation prohibiting the use of key

personnel to demonstrate meaningful involvement, but simply asserts that the Solicitation

implicitly prevented it because there was a Corporate Experience factor and an

Implementation and Management Plans factor, which considered key personnel.”).

Defendant cites to a different, potentially contrary, GAO decision stating that “where the

‘experience of organization’ evaluation standard did not contain a statement limiting

evaluation of offeror experience, it was reasonable to consider personnel experience”

even if such experience would be considered in a separate section of the evaluation.

Envtl. Health Research & Testing, Inc., B-237208, 90-1 CPD ¶ 169, 1990 WL 277677, at

*6 (Comp. Gen. Feb. 9, 1990).

For its part, KGL rejects the premise of plaintiff’s argument and claims that it “is

not substituting the experience of key personnel for corporate experience.” ECF No. 156

at 14. Rather, consideration of the individual experience “demonstrated that KGLFS will

not only benefit from the corporate experience of its affiliate in performing the UNIFIL

Contract, but will also leverage additional UNIFIL assets (i.e. personnel)” for the contract

at issue here. Id. at 15.

Having considered the parties’ extensive arguments, and the deferential standard

of review under which the court operates, the court concludes that DLA did not commit a

clear error of judgment in finding that KGL demonstrated meaningful involvement on the

part of KGL General Trading. In the context of this case, the court need not resolve any

tension that may exist between the cited GAO decisions relating to whether DLA

properly considered personnel experience in evaluating KGL’s proposal under Factor II.

Personnel experience aside, DLA could reasonably have determined that KGL General

Trading would make a meaningful contribution to, and would positively affect, KGL’s

contract performance through use of its ISO 22000:2005 certificates.

The purpose of this contract is to provide for “supply and delivery of semi-

perishable and perishable food items as well as non-food Food Service Operating Supply

(‘FSOS’) items” to “military and other federally funded customers located throughout the

countries of Kuwait, Iraq, Syria, and Jordan.” ECF No. 36-1 at 877. The ISO

22000:2005 certificates qualified KGL General Trading to provide food safety

management for the procurement, transportation, receiving, storage, and dispatch of

17

wholesale food, as well as the production of bread. See ECF No. 40-1 at 528. The

expertise offered by KGL General Trading correlates closely with the stated purpose of

the contract, and reasonably could be viewed as a means of facilitating an important

aspect of contract performance.

Plaintiff argues that KGL’s proposal “does not state, or even imply, that KGL

General Trading will handle food safety management functions in connection with” the

contract. ECF No. 153 at 27. The absence of such a statement, according to plaintiff,

“strongly suggests no active role was contemplated by this entity. Certainly, DLA had no

rational basis to believe otherwise.” Id. Although a narrative description of KGL

General Trading’s involvement would have been useful to the present analysis, ultimately

the court disagrees. The references to, and the copies of, the ISO certificates held by

KGL General Trading in the proposal are an adequate basis for DLA’s belief that KGL

General Trading would have meaningful involvement in the contract.

The court also notes that plaintiff’s own argument that “ISO certificates cannot

simply transfer to a different entity,” lends credence to this conclusion. Id. at 27 n.16.

The parties have not presented evidence on the transferability of ISO certificates, but

taking plaintiff’s view of matters, if KGL General Trading was the only entity permitted

to operate under the ISO certificates, and the ISO certificates are expressly relied upon in

KGL’s proposal, then KGL’s proposal necessarily contemplates the involvement of KGL

General Trading in contract performance. This reasonable inference, taken together with

KGL’s statement that “[e]ach affiliate company within the entire KGL enterprise has

committed itself to providing all available resources to ensure the success of this

contract,” see ECF No. 40-1 at 473, leads the court to conclude that DLA’s assessment

that KGL General Trading would be meaningfully involved in contract performance was

not clearly erroneous.

2. The KGL Transport Contract

In its motion for judgment on the AR, plaintiff argues that the KGL Transport

(OIR-Iraq) contract cannot, on its own, support the ratings DLA assigned to KGL’s

experience and past performance. Plaintiff explains:

The record establishes that DLA premised KGLFS’s experience and past

performance ratings on the collective consideration of both the UNIFIL and

OIR-Iraq contract references. And, ANHAM has demonstrated that DLA

improperly credited KGLFS with the UNIFIL reference. Proper removal of

the UNIFIL reference requires, at a minimum, that DLA go back and

reevaluate KGLFS’s experience and past performance based solely on the

lone remaining OIR-Iraq contract reference. Such a reevaluation could not

result in DLA assigning KGLFS the same ratings.

18

ECF No. 153 at 29 (emphasis in original) (internal citations omitted). To the extent that

this argument relies on a finding that DLA committed clear error in considering the KGL

General Trading contract, the argument is moot given the court’s conclusion to the

contrary.

Plaintiff presents one alternative argument by way of a footnote in its opening

brief that reads as follows:

Assuming arguendo the UNIFIL contract could be considered, KGLFS’s two

references collectively did not support a rating higher than unacceptable

under the revised [source selection plan]. From the outset, the RFP mandated

that DLA limit the credit afforded to these two contracts as neither was

performed by the offeror. See [ECF No. 36-1 at 996]. . . . Even when

considered together, the two contracts only demonstrated an annual value of

~37% of the current work.

Id. at 30 n.19. Although plaintiff does not specifically identify the limitation to which it

adverts, it is apparently referring to the section in the solicitation stating:

Offerors that are relying on the experience information of their team

members must clearly demonstrate that the team member will have

meaningful involvement in the performance of the resultant contract for that

experience to be considered. The most relevant experience, and that which

will receive the most credit, however, is the information directly related to

the offering entity.

ECF No. 36-1 at 996. What plaintiff identifies as a limitation, the court reads as an

announced priority. Through this language, DLA puts offerors on notice that experience

garnered by the offering entity would carry more weight than experience from affiliates.

This section of the solicitation does not require that affiliate contracts make up a certain

percentage of the contract value or otherwise require direct offeror experience. Plaintiff’s

alternative argument reads restrictions into the solicitation that are not reasonably

inferred from the plain text.

B. Ownership of KGL’s Warehouse

The first factor of the technical proposals addressed the warehouse facilities

proposed by each offeror. See ECF No. 36-1 at 994-96, 1013. The stated evaluation

criteria for Factor I specified that “[t]he location of warehouses and facilities, as well as

the nature of and risk attendant with the offeror’s access to and control over said

warehouses and facilities will be evaluated.” Id. at 1013. The evaluation criteria further

made clear that DLA would prefer existing warehouses, owned by the offeror, over other

arrangements. See id. The solicitation contemplated that each proposal would receive

19

one of five ratings for Factor I: outstanding, good, acceptable, marginal, or unacceptable.

ECF No. 58-1 at 214-15. The considerations for the outstanding rating were explained,

as follows:

OUTSTANDING: The offeror completed FAR 52.215-6 Place of

Performance demonstrating that it has a CONUS [(Continental United

States)] and OCONUS [(Outside the Continental United States)] distribution

network to fulfill the needs of the contract. The proposed concept of

operations between the parties is clear, concise, and ensures successful and

efficient contract performance. The offeror currently has operational

OCONUS warehousing, layout, and open capacity greater than required to

fulfill the needs of the contract. The majority of the OCONUS operations

will be performed from offeror-owned facility(ies) and the available yard

space used for shipping and receiving simultaneously is more than adequate

to ensure a smooth flow of out bound trucks without obstructing the ability

to receive in-coming product.

Id. at 214 (emphasis added).

KGL received an “Outstanding” rating for Factor I of its technical proposal. See

ECF No. 58-1 at 255. Plaintiff now argues that DLA’s evaluation of Factor I of KGL’s

proposal was improper for two reasons: (1) DLA should not have given KGL credit for

owning the proposed warehouse, ECF No. 153 at 32-35; and (2) DLA failed to consider

the risk that KGL Logistics would be evicted from the proposed warehouse, see id. at 35-

37.

1. KGL’s Ownership Credit

KGL proposed the use of a warehouse owned by an affiliate, KGL Logistics. See

ECF No. 40-1 at 467-68. KGL’s proposal included a memorandum of understanding

which reflected an intention for KGL and KGL Logistics to enter into an agreement for

the warehouse space, if KGL received the award. ECF No. 42-5 at 87-89. Despite the

fact that KGL did not own the warehouse at issue, DLA assigned KGL’s proposal an

“Outstanding” rating reasoning that “[a]lthough KGL Logistics is the owner of the

facility, KGL Food Service is given offeror owner credit because both firms are affiliate

companies operating under the same Parent Company enterprise.” ECF No. 47-2 at 155;

ECF No. 57-4 at 150. DLA further justified its decision to treat KGL as the owner of the

proposed warehouse because it found that affiliates had “the same interest in providing

access to the warehouse facilities,” and determined that the affiliate “relationship

provides for a level of control that lessens the risk of losing access to and control over the

proposed warehouse facilities.” ECF No. 57-4 at 150.

20

Plaintiff objects to DLA’s promotion of KGL to ownership status with regard to

the proposed warehouse as contrary to the terms of the solicitation. See ECF No. 153 at

32. According to defendant, however, DLA’s decision was justified because “[n]othing

in the evaluation criteria prohibited considering the facility of an offeror’s affiliate as

owned by the offeror, given the relationship and agreement between KGL and KGL

Logistics.” ECF No. 155 at 31.

The court agrees with plaintiff. It is certainly true that contracting authorities are

afforded considerable discretion in the contracting process. See Advanced Data

Concepts, 216 F.3d at 1058. That discretion, however, does not extend so far as to permit

an agency to expand the definition of an unambiguous term. See Banknote Corp. of

America, Inc. v. United States, 365 F.3d 1345, 1353 (2004) (stating that “[i]f the

provisions of the solicitation are clear and unambiguous, they must be given their plain

and ordinary meaning”). The rating criteria quoted above clearly indicate that an

“Outstanding” rating would be assigned only to proposals contemplating that a “majority

of the OCONUS operations will be performed from offeror-owned facility(ies).” ECF

No. 36-1 at 214 (emphasis added). Because KGL was not the owner of its proposed

warehouse, its proposal could not meet this standard. KGL was simply ineligible, under

the plain terms of the solicitation, to receive an “Outstanding” rating for Factor I of its

technical proposal, and DLA abused it discretion in assigning KGL ownership status.

2. Risk of KGL’s Eviction from Its Proposed Warehouse

Plaintiff also challenges DLA’s failure to adequately account for risks attendant to

KGL’s proposed warehouse. According to KGL, the warehouse it proposes to use for

contract performance was built by KGL Logistics on land owned by the State of Kuwait,

and administered by the Kuwait Ports Authority (KPA). See ECF No. 58-3 at 119. In its

motion for judgment on the AR, plaintiff argues that DLA “failed to reasonably consider

the risk associated with KGLFS’s proposed use of KGLL’s warehouses in light of the

KPA eviction order and blacklisting decree.” ECF No. 153 at 35. Plaintiff explains the

alleged circumstances, as follows:

KPA owns the land upon which the KGLL warehouse rests, and as DLA

knows, KPA evicted KGLL from Mina Abdullah and blacklisted all KGL

entities, prohibiting KGL entities from doing business with KPA. Not only

did the Kuwait First Instance Court affirm the eviction order on September

20, 2017, the court also affirmed the blacklisting decree on November 18,

2018, ~1 month before DLA re-awarded the contract to KGLFS. Meaning,

no KGL entity has any legal authority to use the Mina Abdullah warehouses

proposed here.

Id. at 35-36 (internal citations omitted). In response, defendant argues that its actions

were reasonable because the documents referred to by plaintiff “post-dated the

21

submission of final proposal revisions and, because DLA conducted a limited reevalution

based on already-submitted proposals, DLA did not consider this new information as part

of its reevalution of KGL’s technical proposal.” ECF No. 155 at 32. For its part, KGL

argues that plaintiff has waived this argument because it did not timely object to the

scope of the corrective action. See ECF No. 156 at 25.

The court agrees with KGL. The record shows that the parties were well-aware of

the legal issues surrounding KGL’s access to its warehouse during the GAO protest,

months before DLA decided to take corrective action. In a letter to the GAO dated

March 12, 2018, plaintiff noted that allegations made in the course of its protest put DLA

on notice of KGL’s legal issues. See ECF No. 54-1 at 993 (plaintiff quoting DLA

statement admitting that “DLA Troop Support was generally unaware of either this

[eviction] civil litigation or the KPA ‘blacklisting’ prior to the protests received in

response to this award decision.”). And in the same letter, plaintiff discussed the alleged

problems with KGL’s access to its warehouse at length. See ECF No. 54-1 at 993-1003.

The GAO acknowledged the issue in its final decision, and addressed the matter, as

follows:

The agency and awardee, however, explain that KGLFS is ready and able to

perform. In this regard, the agency states that it asked KGLFS at is

onboarding meeting following award if it was able to perform, and the

agency further received a letter during the pendency of this protest from the

awardee, stating it was willing and able to perform as laid out in the proposal.

Moreover, the agency independently verified that the KGLFS affiliated

entity is still performing warehousing duties at its facility in Kuwait.[] Thus,

given that the record does not show that KGLFS’s offer to provide its

warehouses or otherwise perform the contract in accordance with the terms

of the contract was false, we find no basis to sustain this protest ground.

ECF No. 54-1 at 1468 (GAO’s May 8, 2018 decision). The GAO ultimately sustained

the protest on only two grounds, concluding that: (1) DLA improperly considered a

particular contract as part of its evaluation of KGL’s experience; and (2) DLA improperly

considered more than two team member contracts from KGL, which was prohibited by

the terms of the solicitation. See id. at 1463-65.

DLA took limited corrective action, and requested clarifications from the offerors

that were narrowly tailored to the problems identified in the GAO’s decision. See ECF

No. 57-3 at 9-10 (memorandum for record, dated May 25, 2018, explaining corrective

action). DLA explained in its plan for corrective action that it would seek the following

information from the offerors:

A letter will be sent to each offeror to clarify if its selected contracts for

Factor II – Experience, and Past Performance were performed by the offering

22

entity or its team member. If more than two team member contracts are

identified, the offeror will be asked to specify which two team member

contracts shall be retained for the re-evaluation. . . . Technical and price

proposal revisions shall be prohibited.

Id. at 10. DLA’s memorandum regarding its planned corrective action did acknowledge

that GAO suggested reconsideration of the warehouse ownership issue, and stated that

“Factor I will be reviewed only in regard to the reasonableness of DLA Troop Support’s

determination that KGL was given ownership credit for its warehouses.” Id. DLA,

however, requested no additional information from the offerors regarding their proposed

warehouses, and did not mention the risk of eviction issue. See id.

On May 29, 2018, DLA sent nearly identical clarification letters to the offerors,

including both plaintiff and KGL stating, in relevant part, that:

In accordance with the subject GAO decision, a limited re-evaluation of

KGL’s SPE300-15-R-0042 final proposal revision dated June 7, 2017 will

be conducted. Specifically, Factor II – Experience, and Past Performance,

will be re-evaluated in accordance with the terms of the solicitation.

You are only required to clarify, as specified below, the information

contained in your final technical proposal. Technical proposal revisions are

prohibited. Price proposal revisions are also prohibited.

TECHNICAL PROPOSAL – VOLUME II

1. Factor II – Experience. The highest dollar value and most comparable

contracts that were included in your final proposal dated June 7, 2017 are

summarized below. In accordance with the submission requirement of the

solicitation for Experience, no more than 2 team member contracts may be

included in your selected contracts. Please clarify the following:

...

2. Past Performance. The highest dollar value and most comparable

contracts that were included in your final proposal dated June 7, 2017 are

summarized below. In accordance with the submission requirement of the

solicitation for Past Performance, no more than 2 team member contracts

may be included in your selected contracts. Please clarify the following:

...

23

Upon receipt of clarifications to your final proposal revision dated June 7,

2017, the Government intends to make a new award decision without

obtaining further clarifications.

ECF No. 57-3 at 21-22 (clarification letter to KGL, omitting charts listing contracts to be

clarified); see also id. at 11-12 (clarification letter to plaintiff). Plaintiff’s response to the

clarification letter, submitted on June 8, 2018, includes no narrative from plaintiff. See

id. at 25. Instead, plaintiff appears to have simply completed the charts included in

DLA’s clarification letter like a worksheet, and sent the same letter back to DLA. See id.

In an addendum to the corrective action memorandum, dated July 23, 2018, DLA

made several revisions to the solicitation relating to the experience and past performance

evaluation criteria, but requested no new information from offerors. See id. at 116-19.

The addendum repeated DLA’s intention to review Factor I “only in regard to the

reasonableness of DLA Troop Support’s determination that KGL was given ownership

credit for its warehouses.” Id. at 118. On December 18, 2018, DLA again selected KGL

as the awardee because “KGL’s technical proposal is among the most highly rated overall

(although other offerors are more highly rated on some factors) and KGL has the lowest

total evaluated price.” ECF No. 58-1 at 273.

Plaintiff did not contest the scope of the proposed corrective action prior to DLA’s

second award decision, does not explain its failure to do so, and offers no justification for

its strategy for doing so now. Plaintiff simply argues that “[c]ertainly, the scope of

DLA’s corrective action was not limited such that it could ignore performance risks.”

ECF No. 153 at 36. Plaintiff’s approach, however, is barred by binding precedent. In

Blue & Gold Fleet, L.P. v. United States, 492 F.3d 1308, 1315 (Fed. Cir. 2007), the

United States Court of Appeals for the Federal Circuit held that “a party who has the

opportunity to object to the terms of a government solicitation containing a patent error

and fails to do so prior to the close of the bidding process waives its ability to raise the

same objection afterwards in a § 1491(b) action in the Court of Federal Claims.” See

also id. at 1314 (“‘Vendors cannot sit on their rights to challenge what they believe is an

unfair solicitation, roll the dice and see if they receive award [sic] and then, if

unsuccessful, claim the solicitation was infirm.’”) (quoting Argencord Mach. & Equip.,

Inc. v. United States, 68 Fed. Cl. 167, 175 n.14 (2005)).

Although Blue & Gold did not involve corrective action, this court applies its

seminal rule when a bidder fails to object to an error in the scope of a corrective action

prior to a new award. In XPO Logistics Worldwide Government Services LLC v. United

States, 134 Fed. Cl. 783 (2017), aff’d, 713 F. App’x 1008 (Fed. Cir. 2018), for example,

the plaintiff waited until after corrective action was completed to challenge the agency’s

allegedly misleading and unequal discussions in the initial evaluation process. The court

held that the plaintiff had waived its right to object to the discussion process after an

award was made pursuant to corrective action because the plaintiff: (1) was aware of the

24

alleged flaws in the discussion process well before corrective action was announced, and

(2) was also aware that “the agency did not intend to hold discussions as part of any

corrective action.” Id. at 799 (citing Blue & Gold, 492 F.3d at 1313-15). See also CBE

Grp., Inc. v. United States, 138 Fed. Cl. 230, 236-37 (2018) (holding that plaintiff waived

its right to raise an argument in a post-award protest when it was aware of the issue prior

to corrective action) (citing Blue & Gold, 492 F.3d at 1313-15)).

The same application of Blue & Gold pertains here. The record demonstrates that

plaintiff was aware of KGL’s legal issues in Kuwait well before the GAO ruled on

plaintiff’s protest. See, e.g., ECF No. 54-1 at 993 (plaintiff’s March 12, 2018 letter to the

GAO noting that it put DLA on notice of KGL’s legal issues in the course of the GAO

protest). When the GAO issued its decision, it specifically addressed plaintiff’s concerns

regarding KGL’s risk of eviction, but found “no basis to sustain this protest ground.” Id.

at 1468. And following the GAO’s decision, plaintiff received a clarification letter

announcing the scope of the intended corrective action, stating:

In accordance with the subject GAO decision, a limited re-evaluation of

ANHAM’s SPE300-15-R-0042 final proposal revision dated June 7, 2017

will be conducted. Specifically, Factor II – Experience, and Past

Performance, will be re-evaluated in accordance with the terms of the

solicitation.

You are only required to clarify, as specified below, the information

contained in your final technical proposal. Technical proposal revisions are

prohibited. Price proposal revisions are also prohibited.

ECF No. 57-3 at 11. Because the GAO did not suggest that DLA re-evaluate the risk of

eviction issue in this letter, plaintiff was on notice that it should have raised the issue in

response. 6 As such, plaintiff has waived its right to protest DLA’s failure to consider the

risk of KGL’s eviction from its warehouse during the corrective action. 7

6

The content of DLA’s memoranda regarding its corrective action plan lends

further support to the court’s finding that plaintiff waived the risk of eviction argument.

As noted above, both memoranda state that Factor I will only be reviewed with regard to

whether KGL should receive ownership credit for its proposed warehouse. See ECF No.

57-3 at 10, 118. It is not clear from the record, or the parties’ arguments, however,

whether these memoranda were communicated to the offerors. For this reason, the

court’s finding of waiver does not rely on the statements contained therein.

7

In reaching this conclusion, the court does not express any opinion—or make any

ruling—as to whether DLA should have considered the import of KGL’s legal issues in

Kuwait with regard to Factor I of its technical proposal.

25

If KGL’s Factor I rating was changed from “Outstanding” to “Good,” its technical

proposal would have received the same ratings as plaintiff’s for Factors I, III, and IV, but

would have received lower ratings than plaintiff’s for Factors II and V. There is a

substantial chance that such an outcome would make plaintiff’s proposal technically

superior. And while the court does not adopt plaintiff’s near certainty that it would have

received the award, by demonstrating that its proposal was technically superior to KGL’s,

plaintiff has established that but for DLA’s error, “there was a substantial chance it would

have received the contract award.” Statistica, 102 F.3d at 1582.

C. Best Value Determination

In its final analysis, before awarding the contract to KGL for a second time, DLA

stated:

KGL has presented a proposal that has a technical strategy rated as Good,

combined with a Business Proposal that the Government has determined to

contain fair and reasonable pricing for all prices that will be included in the

contract. . . . In addition, KGL’s total evaluated price of $132,288,115.74 is

the lowest offered price.

ANHAM’s technical proposal was, on a comparative basis, the only proposal

that was considered to be technically better than KGL’s. Although technical

merit is significantly more important than price, as discussed above, the

added benefits of the ANHAM proposal, in light of the strengths contained

in the KGL proposal, do not justify paying an evaluated 14% premium.

Therefore, I have determined that KGL’s overall proposal represents the best

value to the Government.

ECF No. 58-1 at 273.

In its motion for judgment on the AR, plaintiff makes a general attack on DLA’s

best value determination. See ECF No. 153 at 38-41. Plaintiff argues that the overall

technical evaluation was flawed based on a comparison of the ratings assigned to each

factor of the parties’ technical proposals. Id. at 38. Plaintiff also disagrees with DLA’s

trade-off analysis and claims it “was premised on the mistaken notion” that the technical

evaluations both merited “Good” overall technical ratings. Id. at 39. Defendant

maintains that its best-value analysis was rational, arguing that “DLA properly weighed

the strengths and weaknesses of the offerors in conducting the price/technical best value

tradeoff determination.” See ECF No. 155 at 35.

“Procurement officials have substantial discretion to determine which proposal

represents the best value to the government.” E.W. Bliss Co. v. United States, 77 F.3d

445, 449 (Fed. Cir. 1996). See also Bahrain Maritime & Mercantile Int’l BSC (C) v.

United States, 118 Fed. Cl. 462, 480 (2014) (noting that an agency’s discretion “is

27

particularly broad when a contract award decision is based on a best-value

determination”). In the context of a challenge to a best value determination, the court

“will examine the agency’s evaluation to ensure that it was reasonable and consistent

with the evaluation criteria and applicable statutes and regulations, since the relative

merit of competing proposals is primarily a matter of administrative discretion.” Galen

Med. Assocs., Inc. v. United States, 369 F.3d 1324, 1330 (Fed. Cir. 2004) (citations

omitted).

DLA’s best value determination was based, in significant part, on the technical

merits of each proposal. Indeed, in making its final award decision, DLA acknowledges

that “technical merit is significantly more important than price.” ECF No. 58-1 at 273.

Given the flaws in DLA’s evaluation of KGL’s proposed warehouse, however, the court

cannot find that the best value determination was “reasonable and consistent with the

evaluation criteria.” Galen, 369 F.3d at 1330.

D. KGL’s Responsibility Determination

Finally, plaintiff challenges DLA’s determination that KGL was a responsible

contractor. DLA issued its responsibility determination following corrective action on

December 19, 2018. See ECF No. 181 at 1-3. Pursuant to Federal Acquisition

Regulation (FAR) 9.103(a), contracts may be awarded to “responsible prospective

contractors only.” 48 C.F.R. § 9.103(a) (2018). The requirements for finding that a

prospective contractor is responsible are listed in FAR 9.104-1. See 48 C.F.R. § 9.104-1

(2018). Plaintiff argues that DLA’s responsibility determination failed to adequately

establish that KGL meets three of those requirements. Specifically, plaintiff argues that

KGL does not have: (1) “a satisfactory performance record,” (2) “a satisfactory record of

integrity and business ethics,” and (3) “the necessary . . . facilities, or the ability to obtain

them.” See 48 C.F.R. § 9.104-1(c),(d), and (f).

KGL argues, as a threshold matter, that plaintiff has waived its ability to challenge

DLA’s responsibility determination because, “[d]espite its attempt to cloak its

responsibility challenge in post-corrective action language, the record demonstrates that

ANHAM, through its counsel, was fully aware before award of the factual assertions

underlying ANHAM’s responsibility challenge and DLA’s treatment of them, but failed

to protest prior to award.” ECF No. 156 at 35. The court agrees, and will address the

waiver of each issue in turn. 8

8

In reaching this conclusion, the court does not express any opinion—or make any

ruling—on the adequacy of DLA’s responsibility determination.

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1. Satisfactory Performance

First, plaintiff claims that DLA failed to establish KGL’s satisfactory performance

record because it did not adequately investigate the termination of a contract between

KGL Transportation Company and U.S. Transportation Command (TRANSCOM). See

ECF No. 153 at 45. The record includes a Contractor Performance Assessment Report

(CPAR) that explains that the contract

was terminated for the convenience of the Government due to the Kuwait

Port Authority (KPA) preventing the contractor from being able to perform.

KPA threatened to prevent U.S. operations from being performed at the port

and prevented contractor personnel from entering the port facilities. As a

result of ongoing missions needing [to] be performed, the contract was

terminated for convenience two days into the performance period.

ECF No. 58-2 at 35. Despite the termination, the assessing official gave KGL

Transportation a positive review. She rated the company’s performance as “satisfactory,”

id. at 34, and stated that “[g]iven what I know today about the contractor’s ability to

perform in accordance with this contractor order’s most significant requirements, I would

recommend him for similar requirements in the future,” id. at 35.

According to plaintiff, defendant had a duty to investigate this report further, but

failed to do so. Plaintiff argues that “there is no evidence that DLA made any attempt to

contact TRANSCOM . . . to understand the details of that contracting failure,” and

accuses DLA of putting “blinders on and ignor[ing] the contract termination.” ECF No.

153 at 46. The record demonstrates, however, that DLA included the same CPAR in its

initial responsibility determination, see ECF No. 48-2 at 342-43, and that plaintiff had

access to that prior responsibility determination during its GAO protest, see ECF No. 53-

2 at 150-51 (copy of the Contracting Officer’s Determination of Responsibility for KGL,

included in the GAO protest materials); id. at 356 (copy of the CPAR following the

TRANSCOM contract termination included with the GAO protest materials).

Despite its knowledge of the CPAR and DLA’s consideration of it in the context

of the first responsibility determination, plaintiff did not assert its objection thereto upon

notice of the scope of the corrective action. In its reply brief, plaintiff did not include any

explanation for its failure to raise this issue. See generally ECF No. 160. Plaintiff

impermissibly “s[a]t on its rights” by failing to object to DLA’s prior treatment of the

TRANSCOM contract termination before the second contract award, and has now waived

its right to do so. Blue & Gold, 492 F.3d at 1314 (citation omitted); see also CBE Grp.,

138 Fed. Cl. at 236-37 (holding that plaintiff waived its right to raise an argument in a

post-award protest when it was aware of the issue prior to corrective action) (citing Blue

& Gold, 492 F.3d at 1313-15).

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2. Satisfactory Record of Integrity and Business Ethics

Plaintiff next argues that DLA did not establish KGL’s satisfactory record of

integrity and business ethics for purposes of satisfying FAR 9.104-1 because it “ignored

and failed to investigate ominous statements made to DLA by a State Department

official.” ECF No. 153 at 46. The “ominous statements” to which plaintiff refers were

made by a State Department official and summarized in an email which was included in

DLA’s initial responsibility determination. See id. See also ECF No. 48-2 at 384-85

(copy of the email included with the initial responsibility determination); ECF No. 53-2

at 150-51 (copy of the Contracting Officer’s Determination of Responsibility for KGL

included in the GAO protest materials); id. at 398-99 (copy of the email included in the

GAO protest materials). Plaintiff argues that defendant failed to adequately investigate

the statements it views as troubling. See ECF No. 153 at 46-47.

As with the TRANSCOM contract termination, however, plaintiff was aware of

the State Department official’s comments prior to the second award decision and did not

object to the depth of DLA’s investigation thereof. Plaintiff does not explain its failure to

do so. See generally ECF No. 160. Here again, plaintiff impermissibly “s[a]t on its

rights” by failing to object to DLA’s prior treatment of the TRANSCOM contract

termination before the second contract award, and has now waived its right to do so.

Blue & Gold, 492 F.3d at 1314 (citation omitted); see also CBE Grp., 138 Fed. Cl. 236-

37 (holding that plaintiff waived its right to raise an argument in a post-award protest

when it was aware of the issue prior to corrective action) (citing Blue & Gold, 492 F.3d

at 1313-15).

3. Necessary Facilities

Plaintiff also claims that DLA’s responsibility determination is flawed because it

“failed to investigate and obtain sufficient information about KGLFS’s ability to access

the proposed KGLL warehouses.” ECF No. 153 at 42. The facts underlying this

argument are nearly identical to those presented by plaintiff in the context of its claim,

considered previously in this opinion, see supra Section III.B.2, that DLA “failed to

reasonably consider the risk associated with KGLFS’s proposed use of KGLL’s

warehouses in light of the KPA eviction order and blacklisting decree,” ECF No. 153 at

35. And the same analysis applies here.

It appears that DLA did not consider KGL’s access to its proposed warehouses, in

light of any legal proceedings, as part of the initial responsibility determination. DLA

was, it seems, unaware of the legal issues until after its initial award decision. See ECF

No. 54-1 at 993 (plaintiff quoting DLA statement admitting that “DLA Troop Support

was generally unaware of either this [eviction] civil litigation or the KPA ‘blacklisting’

prior to the protests received in response to this award decision”). As previously noted,

plaintiff had access to the initial responsibility determination, and therefore knew that

30

DLA had not addressed the legal issues therein. Plaintiff was also aware that the GAO

had both directly addressed the issue and concluded that there was “no basis to sustain

this protest ground.” ECF No. 54-1 at 1468. Despite its knowledge of the content of the

initial responsibility determination, the GAO decision, and the scope of the corrective

action, plaintiff did not raise the issue prior to the second contract award. That KGL’s

legal issues were potentially relevant to at least two significant parts of the evaluation

process highlights plaintiff’s error in failing to address the matter at the time DLA

announced its corrective action. Plaintiff has waived its right to correct that error now.

See Blue & Gold, 492 F.3d at 1314-15; CBE Grp., 138 Fed. Cl. at 236-37.

E. Injunctive Relief

Plaintiff asks the court to “enjoin Defendant from proceeding with the [contract]

award” to KGL. See ECF No. 153 at 47. As the Federal Circuit has held:

In deciding whether a permanent injunction should issue, a court considers:

(1) whether, as it must, the plaintiff has succeeded on the merits of the case;

(2) whether the plaintiff will suffer irreparable harm if the court withholds

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

parties favors the grant of injunctive relief; and (4) whether it is in the public

interest to grant injunctive relief.

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

Prod. Co. v. Vill. of Gambell, Alaska, 480 U.S. 531, 546 n.12 (1987)). No single factor

is determinative, as “the weakness of the showing regarding one factor may be overborne

by the strength of the others.” FMC Corp. v. United States, 3 F.3d 424, 427 (Fed. Cir.

1993). The court finds that these factors weigh in favor of a permanent injunction.

1. Success on the Merits

As discussed above, plaintiff has succeeded on the merits of its protest in one

regard—DLA abused its discretion in giving KGL ownership credit for its warehouse,

and the court found that this error on DLA’s part prejudiced plaintiff. See supra Sections

III.B.1, III.B.3. That error, in turn, invalidates DLA’s best value determination. See

supra Section III.C. The first factor, therefore, weighs decidedly in plaintiff’s favor.

2. Irreparable Harm

The court also agrees with plaintiff that it will “suffer irreparable harm if DLA is

allowed to proceed with the flawed” contract award to KGL. ECF No. 153 at 48. As

evidence of irreparable harm, plaintiff offers the declaration of Jay Ward, plaintiff’s

Chief Executive Officer. See ECF No. 153-1. Therein, Mr. Ward testifies that plaintiff is

the incumbent contractor, and that work under this contract constitutes approximately

39% of plaintiff’s revenue. Id. at 1-2. He also states that “[t]he inability to compete for,

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or the loss of the . . . contract, will result in severe financial harm to ANHAM, placing a

significant number of its 624 employed personnel at risk.” Id. at 2.

Defendant argues that plaintiff has failed to demonstrate that it will suffer

irreparable harm. According to defendant, plaintiff must show that it will lose profits

absent an injunction, but here, plaintiff has only shown that it will lose nearly 40% of its

revenue. See ECF No. 155 at 50. Defendant quotes NetStar-1 Government Consulting v.

United States, 101 Fed. Cl. 511, 530 (2011), aff’d, 473 F. App’x 902 (Fed. Cir. 2012), in

support of this proposition. Contrary to defendant’s suggestion, however, the NetStar

decision does not address the distinction between profits and revenue in its discussion of

irreparable injury. Rather, the court describes the plaintiff’s argument, as follows:

“Plaintiff argues that it will suffer irreparable harm if an injunction is not granted,

because the only other available relief—the potential for recovery of bid preparation

costs—would not compensate it for the loss of valuable business.” NetStar, 101 Fed. Cl.

at 530 (emphasis added). See also ARKRAY USA, Inc. v. United States, 118 Fed. Cl.

129, 138 (2014) (“[N]otwithstanding the fact that [plaintiff’s] profit margins are not

evident from the record, the court concludes that the denial of a fair opportunity to

compete for potential profits and substantial revenue constitutes irreparable harm.”);

Furniture by Thurston v. United States, 103 Fed. Cl. 505, 520 (2012) (“The court has

repeatedly held that ‘the loss of potential profits’ from a government contract constitutes

irreparable harm.”) (citation and internal quotation marks omitted).

KGL posits that plaintiff bears an even heavier burden than demonstrating lost

profits. According to KGL, plaintiff must show that it will be “put of business” absent an

injunction in order to justify such relief, citing Telos Corp. v. United States, 129 Fed. Cl.

573, 578-79 (2016). See ECF No. 156 at 48. In Telos, the court stated that “[a] bid

protester who has lost its protest on the merits must show more than [lost profits, loss of

proprietary information, and adverse consequences for its employees and subcontractors]

to satisfy the irreparable harm factor, such as the prospect that it will be put out of

business.” Telos, 129 Fed. Cl. at 578-79 (citation and internal quotation marks omitted).

The rule applied in Telos is plainly inapplicable here because, as explained above,

plaintiff has already succeeded on the merits of one of its claims in this case.

“When assessing irreparable injury, ‘[t]he relevant inquiry in weighing this factor

is whether plaintiff has an adequate remedy in the absence of an injunction.’” NetStar,

101 Fed. Cl. at 530 (quoting Magellan Corp. v. United States, 27 Fed. Cl. 446, 447

(1993)). The court concludes that absent a permanent injunction, plaintiff will not have

an adequate remedy to guard against, or compensate it for, the loss of 40% of its business

and the threat to the livelihood of potentially hundreds of people. The fact that plaintiff is

at risk of irreparable harm, indicates that this factor also weighs in plaintiff’s favor.

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3. Balance of Hardships

Defendant argues that the balance of hardships favors the denial of a permanent

injunction. In support of this position, defendant points to the many hours spent by DLA

working on the transition to KGL, and the delay in completing the transition that would

be caused by an injunction. See ECF No. 155 at 51. DLA also estimates that a bridge

contract with plaintiff would cost approximately $1.5 million more per month than

KGL’s performance of the contract. Id. The court notes that the investment defendant

chose to make in transition activities was an investment it made consciously, with full

knowledge of the issues raised by plaintiff. See ECF No. 104 (notice from defendant

informing the court that it intended to “begin the remaining transition activities” during

the pendency of this case). In fact, at a July 23, 2019 status conference, defendant’s

counsel acknowledged the risk it was taking. Counsel stated:

Whatever the court rules, we will assure there will be meaningful relief if the

court rules in favor of ANHAM in this case. Obviously there will have to be

a ramp down period once KGL is ramped up if that’s ultimately the

determination of the court that for some reason, and we would disagree with

that, that KGL couldn’t perform.

ECF No. 174 at 14:58-15:18 (digital audio recording of July 23, 2019 status conference).

The irreparable harm plaintiff would suffer absent an injunction weighs heavily against

defendant’s hardships that are, to some degree, of its own making.

4. Public Interest

“There is an overriding public interest in preserving the integrity of the

procurement process by requiring the government to follow its procurement regulations.”

Turner Constr. Co. v. United States, 94 Fed. Cl. 561, 586 (2010) (citation and internal

quotation marks omitted), aff’d, 645 F.3d 1377 (Fed. Cir. 2011). Here, the court has

concluded that DLA failed to abide by the terms of its own solicitation in giving KGL

ownership credit for its proposed warehouse. See supra Section III.B.1. Defendant

argues that the public interest in national defense should outweigh plaintiff’s concern for

the integrity of the procurement process. See ECF No. 155 at 52. Defendant offers the

testimony of a senior contracting officer on this point: “Any delay in continuing these

transition efforts could result in interrupted service to the military service members

serving in the Iraq, Jordan, Kuwait, and Syria regions. Any such interruption could

jeopardize the health, well-being, and mission of US Forces in the region.” Id. at 62

(declaration of Jamie Shuster). 9

9

Jamie Shuster did not serve as the contracting officer for the contract at issue in

this litigation, but is “aware” of circumstances surrounding the initial award to KGL, the

corrective action, and the second award to KGL. See ECF No. 155 at 55.

33

The court agrees that the resolution of this matter must protect supply lines to our

military service members and other personnel in the affected region. Defendant,

however, does not argue that those supplies can only be provided by KGL. In fact,

defendant implicitly acknowledges the viability of a bridge contract with plaintiff when it

states that DLA estimates such a solution would “cost approximately $1.5 million more

per month than KGL’s new contract under the Solicitation.” Id. at 51. Although the

estimated additional cost of a bridge contract is significant, public confidence in the

integrity of the government’s procurement process is also worth a great deal. Because a

solution such as a bridge contract would protect national defense interests by ensuring

supplies to the troops, this factor weighs in plaintiff’s favor as well.

Because all four injunctive relief factors weigh in plaintiff’s favor, the court will

enter a permanent injunction in this case.

IV. Motion to Strike

On July 1, 2019, defendant filed a motion to strike from the record two documents

that plaintiff attached to its reply in support of its motion for judgment on the AR. See

ECF No. 163. The first document is a June 16, 2019 decision from a Kuwaiti court, and

the second document is a June 24, 2019 letter from plaintiff’s chief executive officer to

DLA, including several attachments. See ECF No. 160-1. Because the court did not rely

on either of these documents in reaching its decision, the motion to strike is denied as

moot.

V. Motion to Complete the Administrative Record

On July 1, 2019, defendant filed a motion to complete the AR. See ECF No. 164.

Therein, defendant sought to include in the record a memorandum relevant to DLA’s

investigation of the concerns raised by a State Department official with regard to KGL’s

status as a responsible contractor. See id. Because the court ruled that plaintiff waived

its right to challenge DLA’s responsibility determination on this point, see supra Section

III.D.2, the motion to complete the AR is denied as moot.

VI. Conclusion

Accordingly,

(1) Plaintiff’s motion for entry of a temporary restraining order, ECF No. 148,

is DENIED as moot;

(2) Plaintiff’s motion for entry of a preliminary injunction, ECF No. 149, is

DENIED as moot;

34

(3) Plaintiff’s motion for judgment on the AR, ECF No. 153, is GRANTED in

part, as to DLA’s decision to credit KGL with warehouse ownership, and

the effect on DLA’s best value determination, and is DENIED in part, as

to the balance of the issues presented;

(4) Defendant’s cross-motion for judgment on the AR, ECF No. 155, is

DENIED in part, as to DLA’s decision to credit KGL with warehouse

ownership, and the effect on DLA’s best value determination, and is

GRANTED in part, as to the balance of the issues presented;

(5) Intervenor-defendant’s cross-motion for judgment on the AR, ECF No.

156, is DENIED in part, as to DLA’s decision to credit KGL with

warehouse ownership, and the effect on DLA’s best value determination,

and is GRANTED in part, as to the balance of the issues presented;

(6) The United States, by and through the Defense Logistics Agency, its

officers, agents, and employees, is hereby PERMANENTLY

RESTRAINED AND ENJOINED from continuing with transition

activities and from obtaining performance from KGL Food Services, WLL,

under Contract Number SPE300-18-D-4032, except to the extent that such

activities are required under a bridge contract or other solution designed to

ensure the continuous availability of the supplies or services provided for

under the contract;

(7) Defendant’s motion to strike, ECF No. 163, is DENIED as moot;

(8) Defendant’s motion to complete the AR, ECF No. 164, is DENIED as

moot;

(9) The clerk’s office is directed to ENTER final judgment in plaintiff’s

favor; and

(10) On or before September 18, 2019, counsel for the parties shall CONFER

and FILE a notice of filing, attaching a proposed redacted version of this

opinion, with any material deemed proprietary blacked out, so that a copy

of the opinion can then be made available in the public record of this

matter.

35

IT IS SO ORDERED.

s/Patricia E. Campbell-Smith

PATRICIA E. CAMPBELL-SMITH,

Judge

36