Technology Innovation Alliance LLC v. United States

In the United States Court of Federal Claims

BID PROTEST

Nos. 19-1115C; 19-1162C; 19-1168C;

19-1169C; 19-1178C;

19-1189C; 19-1296C

(Consolidated)

(Filed Under Seal: June 4, 2020 | Reissued: June 25, 2020) ∗

)

TECHNOLOGY INNOVATION )

ALLIANCE LLC, et al. )

) Keywords: Bid Protest; DISA; Technical

Plaintiffs, ) Evaluations; Substantively

) Indistinguishable; Office Design Group v.

v. ) United States; Best Value Tradeoff

)

THE UNITED STATES OF AMERICA, )

)

Defendant, )

)

and )

)

TIBER CREEK CONSULTING, INC.; )

VALIDATEK, INC.; INNOVATIVE )

GOVERNMENT SOLUTIONS JV, LLC; )

MISSION1ST GROUP, INC.; and )

REDTEAM, LLC, )

)

Defendant-Intervenors. )

)

W. Brad English, Maynard, Cooper & Gale, P.C., for Plaintiff Technology Innovation Alliance

LLC, Huntsville, AL. Emily J. Chancy and Michael W. Rich, Maynard, Cooper & Gale, P.C.,

Huntsville, AL, Of Counsel.

Ryan C. Bradel, Ward & Berry, PLLC, Washington, DC, for Plaintiff DirectViz Solutions, LLC.

∗ This opinion was originally issued under seal and the parties were given the opportunity to

request redactions. As requested by the parties, certain proprietary and pricing information has

been redacted, as noted in brackets, for this public version.

Stuart B. Nibley, K&L Gates, LLP, Washington, DC, for Plaintiff Foxhole Technology, Inc. Amy

C. Hoang, Erica L. Bakies, and Sarah F. Burgart, K&L Gates LLP, Washington, DC, Of

Counsel.

Ronald S. Perlman, Holland & Knight LLP, Washington, DC, for Plaintiff TENICA &

Associates, LLC. Mary B. Bosco and Daniel P. Hanlon, Holland & Knight LLP, Miami, FL, Of

Counsel.

David B. Dixon, Pillsbury Winthrop Shaw Pittman LLP, McLean, VA, for Plaintiff CollabraLink

Technologies, Inc. Meghan D. Doherty and Robert C. Starling, Pillsbury Winthrop Shaw

Pittman LLP, McLean, VA, Of Counsel.

Paul A. Debolt, Venable LLP, Washington, DC, for Plaintiff Tapestry Technologies, Inc.

Christopher G. Griesedieck and Christina E. Wood, Venable LLP, Washington, DC, Of Counsel.

Michael J. Gardner, Greenberg Traurig, LLP, McLean, VA, for Plaintiff Sealing Technologies,

Inc. Shomari B. Wade and Brett A. Castellat, Greenberg Traurig, LLP, McClean, VA, Of

Counsel.

Joshua A. Mandlebaum and Richard P. Schroeder, Trial Attorneys, Commercial Litigation

Branch, Civil Division, U.S. Department of Justice, Washington, DC, for Defendant, with whom

were Douglas G. Edelschick, Mikki Cottet, and Elizabeth A. Speck, Senior Trial Counsel,

Deborah A. Bynum, Assistant Director, Robert E. Kirschman, Jr., Director, and Joseph H. Hunt,

Assistant Attorney General. Travis L. Vaughan, Procurement and Intellectual Property Attorney,

Office of General Counsel, Defense Information Systems Agency, Ft. Meade, MD, Of Counsel.

Beth V. McMahon, ReavesColey, PLLC, Chesapeake, VA, for Defendant-Intervenor Innovative

Government Solutions JV, LLC. J. Bradley Reaves, ReavesColey, PLLC, Chesapeake, VA, Of

Counsel.

Laurel A. Hockey, Cordatis LLP, Arlington, VA, for Defendant-Intervenor ValidaTek, Inc.

David Cohen and John J. O’Brien, Cordatis LLP, Arlington, VA, Of Counsel.

Devon E. Hewitt and Scott E. Dinner, Protorae Law PLLC, Tysons, VA, for Defendant-

Intervenor Tiber Creek Consulting, Inc.

Justin A. Chiarodo, Blank Rome LLP, Washington, DC, for Defendant-Intervenor Mission1st

Group, Inc. Adam Proujansky and Carolyn Cody-Jones, Blank Rome LLP, Washington, DC, Of

Counsel.

Cameron Hamrick, Miles & Stockbridge P.C., Washington, DC, for Defendant-Intervenor

RedTeam, LLC. C. Peter Dungan, Miles & Stockbridge P.C., Washington, DC, Of Counsel.

2

OPINION AND ORDER

KAPLAN, Judge.

These seven consolidated bid protests arise out of award decisions made by the Defense

Information Systems Agency (“DISA” or “the agency”) in connection with its “Systems

Engineering Technology and Innovation” (“SETI”) procurement. Each of the protesters

submitted proposals in response to DISA’s solicitation. None were among the twenty-five

offerors selected as recipients of the multiple-award task-order contracts that DISA set aside for

small businesses.

The protests have several common themes. First and foremost, each of the protesters

contends that—in evaluating the technical merit of their proposals—the agency either failed to

recognize strengths and/or assigned the proposals undeserved weaknesses. The protesters

characterize the agency’s technical determinations as arbitrary and, in many instances, claim that

they reflect disparate treatment.

A second common theme of the consolidated protests concerns the agency’s use of

adjectival ratings when evaluating the technical merits of the proposals. According to many of

the protesters, the agency applied those ratings mechanically and gave them undue importance.

These protesters complain in particular about the substantial advantage enjoyed by competitors

that received an “Outstanding” rating on the first of the four evaluation factors (entitled

“Innovation”). They contend that the agency gave insufficient consideration to the other

technical factors and/or to price when making its award decisions. Some of the protesters also

contend that the agency’s price reasonableness analysis was flawed.

The Court has carefully reviewed the voluminous briefs and the administrative record in

these cases. It concludes that—given its narrow scope of review, the highly technical subject

matter of the procurement, the careful and well-documented multi-stage evaluation process the

agency employed, and the Plaintiffs’ failure to show that the agency committed any legal error—

none of the Plaintiffs have established entitlement to relief. Plaintiffs’ motions for judgment on

the administrative record must therefore be denied, and the government’s motion granted in its

entirety.

BACKGROUND

I. The Solicitation

A. Overview

DISA is a combat support element of the U.S. Department of Defense (“DoD”). On

February 22, 2017, it issued Solicitation No. HC1047-17-R-0001 (“the Solicitation”), which

requested proposals for indefinite delivery/indefinite quantity (“IDIQ”) multiple-award task

order contracts for SETI projects in support of DISA and DoD. Admin R. (“AR”) Tab 1 at 1, 8.

The services to be provided included “information technology [] engineering services, expertise,

and support in the planning, research, development, integration, and implementation activities

for future, proposed, current and legacy [DoD] and [DISA] IT capabilities, services, and

systems.” Id. at 11.

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It was DISA’s stated intent to award ten contracts on an “unrestricted” basis and twenty

contracts restricted to small-business offerors. Id. at 103. DISA reserved the right, however, to

issue “more, less, or no contracts at all.” AR Tab 5 at 366 (Amendment 0004 of the Solicitation

issued on March 20, 2017). 1 All of the plaintiffs in these consolidated cases competed

unsuccessfully for small-business awards.

B. Evaluation Criteria

DISA announced that it would make awards to the offerors whose proposals presented

the best value to government based upon an integrated assessment of five evaluation factors:

Innovation (Factor 1), Past Performance (Factor 2), Problem Statements (Factor 3), Utilization of

Small Business (Factor 4), and Price/Cost (Factor 5). Id. at 386–87. The non-price factors were

ranked in descending order of importance. Thus, “Factor 1 [wa]s more important than Factor 2

which [wa]s more important than Factor 3, [etc.].” Id. at 387. The four non-price factors, when

combined, were “significantly more important than cost or price,” in accordance with

FAR 15.304(e). Id.

Innovation (Factor 1)

As noted, Factor 1 (Innovation) was identified as the most important of the five

evaluative criteria. The Solicitation explained that DISA considered “fostering a creative culture

and driving Innovation in defense of the country,” to be the “paramount success criteria in

executing the SETI [c]ontract.” Id. at 375. It advised, therefore, that the government sought the

services of “innovative companies that accelerate attainment of new information system

capabilities.” Id.

For purposes of evaluation, the Solicitation defined “innovative” as “(1) any new

technology, process, or method, including research and development; or (2) any new application

of an existing technology, process, or method.” Id. The Solicitation identified three levels of

innovation: 1) “Incremental Improvements” which are “[t]ypically representative of smaller

tweaks that advance the core mission and/or a focused effort on continuous improvements to

current processes, customer experiences, and mission services”; 2) “Major Advancements,”

which are “[t]ypically representative of creating a new and enhanced way of doing business

and/or a new and enhanced way for the customer to interact with the system”; and 3) “Disruptive

Innovation,” which is “[t]ypically representative of an innovation that transforms an existing

market or sector by introducing simplicity, convenience, accessibility, and affordability where

complication and high cost are the status quo.” Id.

The Solicitation instructed offerors to address five innovation-related topics in their

proposals: (1) Corporate Philosophy/Culture on Innovation; (2) Investment in Innovation; (3)

History of Engineering and Deploying Innovative Solutions; (4) Outreach and Participation; and

1

The Solicitation was amended five times, most recently on March 23, 2017. See AR Tab 6. The

substance of these amendments is not relevant to the present protests. The Court cites to the

version of the Solicitation contained in the record as Amendment 0004 because it is the most

recent and complete version available.

4

(5) Certifications, Accreditations, Awards, Achievements, and Patents. Id. at 376–78. For each

topic, the offerors were required to answer a series of questions.

For example, under the topic of Corporate Philosophy/Culture on Innovation, offerors

were directed to provide their definition of innovation and to explain, among other things: how

they managed risk and would share that risk with DISA; how they supported their employees’

pursuit of innovation; and how they tracked innovation. Id. at 376–77. Under the Investment in

Innovation topic, offerors were required to describe their philosophy on innovation investments;

how they trained employees regarding their philosophy; their investment in laboratory and

testing space; and their knowledge management methodology. Id. at 377. With regard to the

History of Engineering and Deploying Innovative Solutions topic, offerors were asked to

describe: their history of innovation, including any failures; their experience of developing

solutions and sustaining them from infancy through delivery (especially if related to DISA

missions); and other company models for integrating innovation. Id. Under the topic of Outreach

and Participation, offerors were to identify any relationships with and contributions made to

research organizations. Id. at 377–78. Finally, offerors were required to list any certifications,

accreditations, awards, achievements, or patents received for innovation. Id. at 378.

The rating under Factor 1 would be based on the “consideration of the strengths,

weaknesses, significant weaknesses, uncertainties and deficiencies assessed.” Id. at 387.

The agency would use the color/adjective and risk ratings set forth in the following table:

Combined Technical/Risk Ratings for Innovation

Color Rating Description

Proposal addresses all Innovation elements and

indicates an exceptional approach and understanding

BLUE Outstanding of Innovation. Strengths far outweigh any

weaknesses. Risk of unsuccessful performance is

very low.

Proposal addresses all Innovation elements and

indicates a thorough approach and understanding of

PURPLE Good Innovation. Proposal contains strengths which

outweigh any weaknesses. Risk of unsuccessful

performance is low.

Proposal addresses all Innovation elements and

indicates an adequate approach and understanding of

Innovation. Strengths and weaknesses, if any, are

GREEN Acceptable

offsetting or will have little or no impact on Contract

performance. Risk of unsuccessful performance is no

worse than moderate.

5

Proposal does not clearly address all Innovation

elements and has not demonstrated an adequate

approach and understanding of Innovation. The

YELLOW Marginal

proposal has one or more weaknesses which are not

offset by strengths. Risk of unsuccessful

performance is high.

Proposal does not address all Innovation elements

RED Unacceptable and contains one or more deficiencies. Proposal is

unawardable.

Id. at 387–88.

According to the Solicitation, a proposal could receive a more favorable rating by

demonstrating any of the following: “long term corporate philosophy regarding

[i]nnovation”; “continuous investment in [i]nnovation through evidence of sustained

year-after-year investment in technologies and innovative ways to develop new

capability, improve service, reduce costs, and create efficiencies”; “validated processes

and procedures” that yielded results “based on innovative processes”; “evidence of

ongoing corporate investment in tools, training, facilities, personnel and equipment”;

“development of prototypes and solutions to mitigate issues and risk relevant to the SETI

PWS [(Performance Work Statement)]”; and “[e]xtensive publications on the topic of

[i]nnovation, including books and white papers.” Id. at 388.

Past Performance (Factor 2)

Under Factor 2, offerors were required to supply a summary of up to three relevant past

performance examples setting forth “what aspects of the [referenced c]ontracts they deem

relevant and to what specific task areas of the proposed effort they relate.” Id. at 378. Relevant

experience was to be included in a “Past Performance Information Template,” which was

Attachment 4 to the Solicitation. Id.; see also AR Tab 1 at 143–45 (Past Performance

Information Template).

The Solicitation advised that “[p]rojects [which] demonstrate [i]nnovation, multiple

experiences or more technically difficult work may receive higher relevancy ratings.” AR Tab 5

at 378. For each past performance example, offerors were required to submit formal performance

evaluations if available. Id. If no evaluation was available, the offeror was directed to use the

“Past Performance Questionnaire and Cover Letter” accompanying the Solicitation as

Attachment 5. Id. at 379–80; see also AR Tab 1 at 146–51 (Past Performance Evaluation

Questionnaire Form).

The Solicitation provided that the contract efforts supplied as references “should

demonstrate as many of the project types included in the PWS (either individually or in

combination thereof) as possible.” AR Tab 5 at 379. It specified that such project types “may

include,” among others, “[p]rojects that engineered, implemented and tested a [s]olution,”

“[e]fforts that delivered or provided an innovative solution,” and “[p]rojects that delivered

innovative technical solutions designed to deliver new or enhanced technologies and services

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faster and more efficiently.” Id. DISA cautioned that, ultimately, “the burden of providing

detailed, current, accurate and complete past performance information rest[ed] with the

[o]fferor.” Id. at 380.

The past performance evaluation was designed to “assess[] the degree of confidence the

Government h[ad] in an [o]fferor’s ability to supply solutions[] and services that me[t] user’s

needs, based on a demonstrated record of performance.” Id. at 388. It would include an

assessment of recency; experience earned more than three years before the date of the

Solicitation would not be evaluated. Id. The government would then rate the relevancy of the

past performance reference, using the following criteria:

Past Performance Relevancy Ratings

Rating Definition

Present/past performance effort involved essentially the same

VERY RELEVANT scope and magnitude of effort and complexities this solicitation

requires.

Present/past performance effort involved similar scope and

RELEVANT

magnitude of effort and complexities this solicitation requires.

SOMEWHAT Present/past performance effort involved some of the scope and

RELEVANT magnitude of effort and complexities this solicitation requires.

Present/past performance effort involved little or none of the

NOT RELEVANT scope and magnitude of effort and complexities this solicitation

requires.

Id. at 389. Contracts that contained innovative solutions were considered “more relevant than

those that did not.” Id.

Past performance examples found “Not Relevant” were not further evaluated. Id. Those

found relevant (at any level) would receive a performance quality assessment rating using the

following criteria:

Past Performance Quality Assessment

Quality Assessment Rating/Color Description

During the Contract period, Contractor performance

meets or met Contractual requirements and exceeds or

exceeded many to the Government’s benefit. The

EXCEPTIONAL (E)/BLUE Contractual performance of the element or sub-element

being assessed was accomplished with few minor

problems for which corrective actions taken by the

Contractor were highly effective.

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During the Contract period, Contractor performance

meets or met Contractual requirements and exceeds or

exceeded some to the Government’s benefit. The

VERY GOOD (VG)/PURPLE Contractual performance of the element or sub-element

being assessed was accomplished with some minor

problems for which corrective actions taken by the

Contractor were effective.

During the Contract period, Contractor performance

meets or met Contractual requirements. The Contractual

performance of the element or sub-element being assessed

SATISFACTORY (S)/GREEN

contained some minor problems for which corrective

actions taken by the Contractor appear or were

satisfactory.

During the Contract period, Contractor performance does

not or did not meet some Contractual requirements. The

Contractual performance of the element or sub-element

MARGINAL (M)/YELLOW being assessed reflects a serious problem for which the

Contractor has not yet identified corrective actions. The

Contractor’s proposed actions appear only marginally

effective or were fully or not implemented.

During the Contract period, Contractor performance does

not or did not meet most Contractual requirements and

recovery in a timely manner is not likely. The Contractual

UNSATISFACTORY (U)/RED

performance of the element or sub-element contains

serious problem(s) for which the Contractor’s corrective

actions appear or were ineffective.

Unable to provide a rating. Contract did not performance

NOT APPLICABLE (N)/WHITE

for this aspect. Do not know.

Id. at 389–90.

Based on the relevancy and quality assessments of the past performance examples

submitted, the agency then assigned an integrated performance confidence assessment rating as

follows:

Performance Confidence Assessments

Rating Description

Based on the Offeror’s recent/relevant performance

SUBSTANTIAL CONFIDENCE record, the Government has a high expectation that the

Offeror will successfully perform the required effort.

8

Based on the Offeror’s recent/relevant performance

SATISFACTORY CONFIDENCE record, the Government has a reasonable expectation that

the Offeror will successfully perform the required effort.

No recent/relevant performance record is available or the

Offeror’s performance record is so sparse that no

NEUTRAL CONFIDENCE meaningful confidence assessment rating can be

reasonably assigned. The offeror may not be evaluated

favorable or unfavorably on past performance.

Based on the Offeror’s recent/relevant performance

LIMITED CONFIDENCE record, the Government has a low expectation that the

Offeror will successfully perform the required effort.

Based on the Offeror’s recent/relevant performance

record, the Government has no expectation that the

NO CONFIDENCE

Offeror will be able to successfully perform the required

effort.

Id. at 390.

Problem Statement Narratives (Factor 3)

Under Factor 3, the government evaluated offerors’ responses to hypothetical problems

included with the Solicitation at Attachment 7. Id. at 380. Offerors were required to “provide as

specifically as possible the actual methodology to be used for accomplishing/satisfying the[]

requirements” in the narratives. Id. Though the problem statements were “notional in nature,” the

Solicitation explained, “[t]hey give the Government insights into each offeror’s ability to meet

DISA requirements in numerous and diverse technical areas and into each offeror’s problem

solving methodologies related to broad problems that could be solved by any number of

technologies.” Id.

Offerors for the small business restricted suite of awards were required to respond to

Problem Statement No. 3 and Problem Statement No. 4. Id. The problem statements were of

equal weight. Id. at 391.

The government’s evaluation of Factor 3 “us[ed] a combined technical/management

rating and risk rating,” which considered “risk in conjunction with the strengths, weaknesses, and

deficiencies in determining technical ratings.” Id. at 390. The ratings assigned would be based on

the criteria set forth in the following table:

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Combined Technical/Risk Rating

Color Rating Description

Proposal meets requirements and indicates an

exceptional approach and understanding of the

BLUE Outstanding requirements. Strengths far outweigh any

weaknesses. Risk of unsuccessful performance is

very low.

Proposal meets requirements and indicates a

thorough approach and understanding of the

PURPLE Good requirements. Proposal contains strengths which

outweigh any weaknesses. Risk of unsuccessful

performance is low.

Proposal meets requirements and indicates an

adequate approach and understanding of the

requirements. Strengths and weaknesses are

GREEN Acceptable

offsetting or will have little or no impact on Contract

performance. Risk of unsuccessful performance is no

worse than moderate.

Proposal does not clearly meet requirements and has

not demonstrated an adequate approach and

YELLOW Marginal understanding of the requirements. The proposal has

one or more weaknesses which are not offset by

strengths. Risk of unsuccessful performance is high.

Proposal does not meet requirements and contains

RED Unacceptable

one or more deficiencies. Proposal is unawardable.

Id. at 391.

Small Business Participation and Commitment Plan (Factor 4)

Under Factor 4, proposals were evaluated “on the level of proposed participation of U.S.

small businesses in the performance of th[e] acquisition.” Id. at 382. Offerors were required to

“articulate how small businesses will participate through performance as a small business Prime

Offeror and/or ‘first tier’ small business subcontracting only.” Id. (emphasis removed). In

evaluating an offeror’s small business participation plan, the agency considered: the extent to

which small businesses were identified in the proposal; the commitment to use small businesses;

whether the offeror identified the complexity and variety of work to be performed by small

businesses; the extent of participation of small business prime offerors and small business

subcontractors as defined by “the percentage of the value of the total acquisition”; and the goals

proposed by the offeror in terms of a “percentage of the total acquisition value (TAV).” Id. at

383. The government suggested, but did not require, that offerors use the “Small Business

10

Participation Proposal” included as Attachment 8 of the Solicitation. Id.; see also AR Tab 1 at

160–61 (Small Business Participation and Commitment Proposal Format).

Offerors would be assigned one of the following ratings for Factor 4:

Small Business Rating Method

Color Rating Adjectival Rating Description

Proposal indicates an exceptional approach and

BLUE Outstanding

understanding of the small business objectives.

Proposal indicates a thorough approach and

PURPLE Good

understanding of the small business objectives.

Proposal indicates an adequate approach and

GREEN Acceptable

understanding of the small business objectives.

Proposal has not demonstrated an adequate approach

YELLOW Marginal

and understanding of the small business objectives.

RED Unacceptable Proposal does not meet small business objectives.

AR Tab 5 at 392.

Price/Cost (Factor 5)

Offerors were to submit their proposed rates in a spreadsheet appended to the Solicitation

as Attachment 9. Id. at 384. The total proposed price would “consist of the [contractor’s]

proposed rates for the base period, all option periods, to include the option pricing for [an]

additional six-month period.” Id. Only the total proposed price would be used to calculate

tradeoffs between price and non-price factors. Id. The Solicitation stated that price proposals

would be evaluated using at least one of the techniques detailed in FAR 15.404 to determine

reasonableness and completeness. Id. at 393.

C. The Source Selection Review Process

The Solicitation prescribed a multi-level evaluation and selection process. See id. at 393–

94. At the first stage, five separate technical evaluation boards (“TEBs”) would review each

proposal. These were the Innovation Evaluation Board (“IEB”), the Past Performance Evaluation

Board (“PPEB”), the Problem Statement Evaluation Board (“PSEB”), the Small Business

Evaluation Board (“SBEB”), and the Price Evaluation Board (“PEB”). Id.

Upon completion of their evaluations, the Chair of each of these TEBs would brief the

Source Selection Evaluation Board (“SSEB”). See AR Tab 65d at 4690. The SSEB would then

measure the TEBs’ evaluations “against the solicitation requirements and the approved

evaluation criteria to ensure an equitable, impartial, and comprehensive evaluation against the

solicitation requirements.” AR Tab 5 at 393. According to the Solicitation, “[t]he fundamental

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responsibility of the SSEB [wa]s to provide the Source Selection Advisory Council (SSAC) and

the Source Selection Authority (SSA) with information to make informed and reasoned

selections.” Id. at 393–94. The SSEB would therefore “prepare summary reports containing

adjectival assessments for each factor and their supporting rationale, including the costs/prices

for each Offeror and brief the SSAC.” Thereafter, the SSAC would prepare “a comparative

analysis and brief the SSA.” Tab 5 at 394.

D. The Evaluations and Award Decisions

The agency received 112 proposals for the restricted suite. AR Tab 65d at 4688. Thirteen

of those proposals were removed from consideration because they were either late, incomplete,

or submitted by mail rather than electronically, leaving ninety-nine to be evaluated. Id.

The TEBs convened from April 10, 2017 through February 20, 2018 to perform the

technical evaluations. AR Tab 63 at 4566 (SSAC report). The SSEB began meeting on

December 4, 2017 to review those evaluations. Id. Its review included a briefing by each TEB

Chair. Id. Ultimately, the SSEB prepared a report of almost 1100 pages which summarized the

evaluations of every proposal under each of the five factors. See generally AR Tab 65d.

In the meantime, the contracting officer (“CO”) recorded the results of the PEB’s price

fairness and reasonableness analysis in a memorandum dated March 6, 2019. AR Tab 65c at

4678. The PEB had compared the total proposed prices of each offeror against one another and

against the Independent Government Cost Estimate (“IGCE”). Id. It also determined the average

total proposed price of all offerors ($193,870,790) and the median price ($187,899,682). Id.

Comparatively, seventy-nine offerors were lower than the IGCE and twenty were higher. Id.

Forty-three offerors were above the average and fifty-six were below the average. Id. The highest

proposed price was $381,206,594 and the lowest was $99,924,321, a difference of $281,282,273.

Id.

The CO acknowledged a “large variance amongst the total proposed prices and the

individual labor rates themselves.” Id. at 4679. He stated, however, that the large variance “was

not unanticipated and did not cause a concern that the Government would pay an unreasonably

high price.” Id. The CO explained that “the solicitation introduced a great amount of risk of

paying a high, but not unreasonable, price, based upon the need to obtain a range of potentially

innovative solutions.” Id. He further noted that the Solicitation also “included significant risk for

any offeror” and for that reason “offerors had to make business decisions on how to strategize

their pricing which led to the wide dispersion of prices.” Id. at 4680. The government, he noted,

“accepted the potential risk of paying higher prices, but not unreasonable prices, for higher

quality solutions.” Id. In short, the CO concluded, “the risk of paying too much for requirements

is low compared to the needs of the Government.” Id. This was “particularly” true, he found,

“given the mitigating factor that there will be competition to refine prices at the order level.” Id.

The SSAC reviewed the SSEB report and the CO’s price memorandum. It prepared a

“written comparative analysis of offers and recommendations” for the Source Selection

Authority (“SSA”). AR Tab 5 at 394. The SSAC’s report explains the basis for its

recommendations in detail.

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The SSAC explained that it had removed forty offerors from consideration at the outset

because they received “Unacceptable” ratings for either the Innovation or Problem Statement

factors. AR Tab 63 at 4568–69. Of the fifty-nine proposals still under consideration, twenty had

received an “Outstanding” rating for Factor 1, seventeen were rated “Good,” seven were rated

“Acceptable,” and fifteen were rated “Marginal.” Id. at 4567, 4569; AR Tab 63a (final ratings

table).

The SSAC started its comparative analysis by reviewing the proposals that had received

an “Outstanding” rating for Factor 1 “from the highest technically rated to the lowest technically

rated [] considering the specific number and individual benefits provided by the proposal’s

strengths.” AR Tab 63 at 4569. Ultimately, the SSAC recommended that eighteen of these

offerors be awarded a contract. The other two offerors with “Outstanding” ratings on Factor 1

received “Marginal” ratings on both Problem Statements, and were not recommended for an

award.

The SSAC next reviewed the proposals that received a “Good” rating for Factor 1, again

in descending order from the highest to the lowest technically rated. It recommended an award to

five of the twenty-five offerors whose proposals received such a rating. Id. at 4656. Therefore, it

recommended a total of twenty-three proposals for award. Id. The SSA reviewed and concurred

with the CO’s conclusions as to price fairness and reasonableness as well as the SSAC’s

recommendations. AR Tab 65 (SSA report). As a result, it concluded that the following offerors

should receive awards:

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Id. at 4659.103.

The Agency notified successful offerors of its award decision on July 8, 2019. See

generally AR Tab 66. Unsuccessful offerors were notified by letter dated July 9, see generally

AR Tab 69, and received debriefing letters the next day, see AR Tabs 70–80.

II. GAO Proceedings

CEdge Software Consultants, LLC and Tapestry Technologies, Inc. filed protests

challenging the Agency’s award decision with the Government Accountability Office (“GAO”)

on July 19, 2019. AR Tab 104 at 9013; AR Tab 106 at 9238. Shortly thereafter, CyberData

Technologies, Inc., Sealing Technologies, Inc., RedTeam LLC, Tenica & Associates LLC,

Mission1st Group, Inc., Foxhole Technology, Inc., DirectViz Solutions, LLC, and CollabraLink

Technologies, Inc. filed GAO protests. See AR Tabs 108–125.

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III. The Present Suit

Lead Plaintiff Technology Innovation Alliance LLC (“TIA”) (Case No. 19-1115C) filed a

protest in the Court of Federal Claims on July 31, 2019, while proceedings were still pending

before GAO. ECF No. 1. 2 GAO therefore dismissed the protests before it on August 8, 2019. AR

Tab 127 at 10961 (GAO decision). As a result, most of the offerors that had filed GAO protests

filed suit in this court: DirectViz Solutions, LLC (Case No. 19-1162C) (filed August 9, 2019);

Foxhole Technology, Inc. (Case No. 19-1168C), Tenica and Associates, LLC (Case No. 19-

1169), CollabraLink Technologies, Inc. (Case No. 19-1178), and RedTeam, LLC (Case No. 19-

1179) (filed August 12, 2019); Tapestry Technologies, Inc. (Case No. 19-1189) (filed August 13,

2019); Mission1st Group, Inc. (Case No. 19-1211) (filed August 15, 2019); CEdge Software

Consultants, LLC (Case No. 19-1231) (filed August 19, 2019); 3 and Sealing Technologies, Inc.

(Case No. 19-1296C) (filed August 27, 2019).

The Court consolidated all ten protests on August 28, 2019, and designated the TIA

protest as the lead case. See, e.g., Consolidation Order, Sealing Techs., Inc. v. United States, No.

19-1296C (Fed. Cl. Aug. 28, 2019), ECF No. 13. On September 5, 2019, the Court granted

motions to intervene filed by three successful offerors: Innovative Government Solutions JV,

LLC, ValidaTek, Inc., and Tiber Creek Consulting, Inc. ECF No. 54. In accordance with the

Court’s scheduling order, the Plaintiffs filed their amended complaints and motions for judgment

on the administrative record on October 29, 2019. ECF Nos. 70–86. 4

On December 3, 2019, the government filed a motion to remand the case in part to the

agency “to reconsider two aspects of the challenged [] decision.” Def.’s Partial Consent Mot. for

Voluntary Partial Remand at 1, ECF No. 92. Specifically, the government sought a remand for

further consideration of 1) whether “the agency erred in the application of solicitation criteria to

the proposed solutions for problem statement 3” and 2) whether “the agency erred in not

evaluating two past performance references [submitted by Sealing Technologies] as non-

compliant.” Id. at 2. The Court granted the motion for partial remand and required the parties to

file a joint status report regarding the need for further litigation by December 23, 2019. ECF

No. 94.

The parties filed the joint status report as requested on December 23, 2019, informing the

Court that, as a result of the remand, the agency planned to make awards to Plaintiffs Mission1st.

and RedTeam. ECF No. 97. The agency reaffirmed its decision not to make an award to either

TIA or Sealing. Id.

2

Unless otherwise noted, all citations to the Court’s electronic case filing system refer to the

docket of the lead case, No. 19-1115C.

3

CEdge Software Consultants LLC voluntarily dismissed its protest on October 25, 2019. ECF

No. 69.

4

On August 19, 2019, the government informed the Court and the parties that DISA had agreed

not to award any task order in excess of $500 under the protested procurement before April 30,

2020, unless the Court had reached a decision permitting it to do so. ECF No. 25.

15

The parties also proposed an amended briefing schedule, id., which the Court adopted,

ECF No. 98. The Court dismissed the claims of Mission1st and RedTeam as moot on January 3,

2020. Id. Mission1st and RedTeam subsequently filed motions to intervene on the government’s

side, ECF Nos. 99–100, which the Court granted, ECF Nos. 109–10.

After the government issued its decision on remand, ECF No. 96, several plaintiffs

amended their complaints and pending motions for judgment on the administrative record, ECF

Nos. 101–08. The government filed its cross-motion for judgment on the administrative record

on February 11, 2020. ECF No. 123. The motions are fully briefed.

On April 10, 2020, the government informed the Court and the parties that “to facilitate

judicial review, the Defense Information Systems Agency has agreed not to award any task order

in excess of $500 pursuant to the protested contracts before June 5, 2020.” ECF No. 148.

The Court has determined that oral argument is unnecessary. For the reasons that follow,

the Court finds that the remaining protests lack merit. Accordingly, the Court DENIES the

pending motions for judgment upon the administrative record filed by the Plaintiffs and

GRANTS the government’s cross-motion.

DISCUSSION

I. Subject-Matter Jurisdiction

The Court of Federal Claims has jurisdiction over bid protests in accordance with the

Tucker Act, 28 U.S.C. § 1491, as amended by the Administrative Dispute Resolution Act of

1996 § 12, 28 U.S.C. § 1491(b). Specifically, the Court has the authority “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 or to a proposed award or the award of a contract or any

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

procurement.” 28 U.S.C. § 1491(b)(1); see also Sys. Application & Techs., Inc. v. United States,

691 F.3d 1374, 1380–81 (Fed. Cir. 2012) (observing that § 1491(b)(1) “grants jurisdiction over

objections to a solicitation, objections to a proposed award, objections to an award, and

objections related to a statutory or regulatory violation so long as these objections are in

connection with a procurement or proposed procurement”).

To possess standing to bring a bid protest, a plaintiff must be an “interested party”—i.e.,

an actual or prospective bidder (or offeror) who possesses a direct economic interest in the

procurement. Sys. Application & Techs., Inc., 691 F.3d at 1382 (citing Weeks Marine, Inc. v.

United States, 575 F.3d 1352, 1359 (Fed. Cir. 2009)); see also Orion Tech., Inc. v. United States,

704 F.3d 1344, 1348 (Fed. Cir. 2013). An offeror has a direct economic interest in a pre-award,

post-evaluation protest if the protester demonstrates that, absent the alleged errors, it would have

a “substantial chance” of receiving the award; that is, if the protester “could have likely

competed for the contract” but for the alleged errors. Orion, 704 F.3d at 1348–49; see also Myers

Investigative & Sec. Servs., Inc. v. United States, 275 F.3d 1366, 1370 (Fed. Cir. 2002) (holding

that “prejudice (or injury) is a necessary element of standing”). The Court assumes well-pled

allegations of error to be true for purposes of the standing inquiry. Square One Armoring Serv.,

16

Inc. v. United States, 123 Fed. Cl. 309, 323 (2015) (citing Digitalis Educ. Sols., Inc. v. United

States, 97 Fed. Cl. 89, 94 (2011), aff’d, 664 F.3d 1380 (Fed. Cir. 2012)).

Each Plaintiff in this protest challenges the agency’s ranking of its proposal and non-

selection for award. Their suits thus challenge a procurement decision and fall within the Court’s

“broad grant of jurisdiction over objections to the procurement process.” Sys. Application &

Techs., Inc., 691 F.3d at 1381. Moreover, each Plaintiff has sufficiently alleged a direct

economic interest in the procurement. Taking the allegations of error to be true—as it must to

determine standing—the Court finds that each Plaintiff “could likely have competed for the

contract” in the absence of the alleged errors. Accordingly, the Plaintiffs are interested parties

and the Court has subject-matter jurisdiction over their claims.

II. Motions for Judgment on the Administrative Record

Parties may move for judgment on the administrative record pursuant to Rule 52.1 of the

Rules of the Court of Federal Claims (“RCFC”). Pursuant to RCFC 52.1, the Court reviews an

agency’s procurement decision based on the administrative record. See Bannum, Inc. v. United

States, 404 F.3d 1346, 1353–54 (Fed. Cir. 2005). The court makes “factual findings under RCFC

[52.1] from the record evidence as if it were conducting a trial on the record.” Id. at 1357. Thus,

“resolution of a motion respecting the administrative record is akin to an expedited trial on the

paper record, and the Court must make fact findings where necessary.” Baird v. United States, 77

Fed. Cl. 114, 116 (2007). The Court’s inquiry is “whether, given all the disputed and undisputed

facts, a party has met its burden of proof based on the evidence in the record.” A&D Fire Prot.,

Inc. v. United States, 72 Fed. Cl. 126, 131 (2006). Unlike a summary judgment proceeding,

genuine issues of material fact will not foreclose judgment on the administrative record.

Bannum, 404 F.3d at 1356.

III. Scope of Review of Procurement Decisions

The Court reviews challenges to procurement decisions under the same standards used to

evaluate agency actions under the Administrative Procedure Act, 5 U.S.C. § 706 (“APA”). See

28 U.S.C. § 1491(b)(4) (stating that “[i]n any action under this subsection, the courts shall

review the agency’s decision pursuant to the standards set forth in section 706 of title 5”). Thus,

to successfully challenge an agency’s procurement decision, a plaintiff must show that the

agency’s decision was “arbitrary, capricious, an abuse of discretion, or otherwise not in

accordance with law.” 5 U.S.C. § 706(2)(A); see also Bannum, 404 F.3d at 1351.

This “highly deferential” standard of review “requires a reviewing court to sustain an

agency action evincing rational reasoning and consideration of relevant factors.” Advanced Data

Concepts, Inc. v. United States, 216 F.3d 1054, 1058 (Fed. Cir. 2000) (citing Bowman Transp.,

Inc. v. Arkansas-Best Freight Sys., Inc., 419 U.S. 281, 285 (1974)). As a result, where an

agency’s action has a reasonable basis, the Court cannot substitute its judgment for that of the

agency. See Honeywell, Inc. v. United States, 870 F.2d 644, 648 (Fed. Cir. 1989) (holding that

as long as there is “a reasonable basis for the agency’s action, the court should stay its hand even

though it might, as an original proposition, have reached a different conclusion”) (quoting M.

Steinthal & Co. v. Seamans, 455 F.2d 1289, 1301 (D.C. Cir. 1971)).

17

The Court’s scope of review is particularly narrow when it comes to agency judgments

regarding the technical merits of particular proposals. As the court of appeals observed in E.W.

Bliss Co. v. United States, 77 F.3d 445, 449 (Fed. Cir. 1996), protests concerning “the minutiae

of the procurement process in such matters as technical ratings . . . involve discretionary

determinations of procurement officials that a court will not second guess.” See also RX Joint

Venture, LLC v. United States, 145 Fed. Cl. 207, 213 (2019) (“[E]valuations of proposals for

their technical quality involve the specialized expertise of an agency’s subject-matter experts.”);

CSC Gov’t Sols., Inc. v. United States, 129 Fed. Cl. 416, 434 (2016) (explaining that great

deference must be afforded to an agency where the court reviews a technical evaluation “because

of the highly specialized, detailed, and discretionary analyses frequently conducted by the

government in that regard” (internal quotation marks omitted)). The Court’s function is therefore

limited to “determin[ing] whether ‘the contracting agency provided a coherent and reasonable

explanation of its exercise of discretion.’” Impresa Construzioni Geom. Domenico Garufi v.

United States, 238 F.3d 1324, 1332–33 (Fed. Cir. 2001) (quoting Latecoere Int’l, Inc. v. U.S.

Dep’t of Navy, 19 F.3d 1342, 1356 (11th Cir. 1994)).

IV. Merits

A. Technology Innovation Alliance (Case No. 19-1115C)

The Agency’s Initial Evaluation

TIA submitted its proposal on April 4, 2017. AR Tab 160 at 25711 (TIA proposal). TIA’s

proposal earned six strengths and was assigned two weaknesses under Factor 1. AR Tab 65d at

5698–00 (SSEB report). For Factor 3, Problem Statement No. 3, TIA was assigned one strength,

which was offset by one weakness and one significant weakness. Id. at 5702. No strengths or

weaknesses were assessed for Factor 3, Problem Statement No. 4. For Factor 4, TIA received

three strengths and no weaknesses. Id. at 5704.

The TEBs assigned TIA’s proposal the following adjectival ratings, which were affirmed

by the SSEB and the SSAC:

Factor 1 – Factor 2 – Past Factor 3 – PS3 Factor 3 – PS4 Factor 4–

Innovation Performance Rating Rating Small Business

Good Satisfactory Marginal Acceptable Acceptable

Id. at 5705; AR Tab 65e at 5852 (SSAC memorandum). TIA’s proposed price was [***], which

the agency ranked [***] out of the ninety-nine offerors. AR Tab 65e at 5852.

The SSAC concluded that TIA’s proposal “was priced in the middle” and “was not one of

the highest technically rated.” AR Tab 65e at 5853. It therefore recommended against awarding a

contract to TIA. The SSA agreed and TIA was not selected as an awardee. AR Tab 65 at

4659.79–.81 (Source Selection Decision Document (“SSDD”)).

18

Remand and Final Evaluation

After the present protest was filed, the agency requested a remand during which it re-

evaluated the marginal rating it assigned to TIA’s proposal with respect to Problem Statement

No. 3. ECF No. 92. On December 20, 2019, the Agency filed a Memorandum for the Record

containing the SSA’s analysis and decision on remand. ECF No. 96. It reflects that TIA’s rating

for Problem Statement No. 3 was changed from “Marginal” to “Acceptable,” resulting in the

following adjusted set of adjectival ratings:

Factor 1 – Factor 2 – Past Factor 3 – PS3 Factor 3 – PS4 Factor 4–

Innovation Performance Rating Rating Small Business

Good Satisfactory Acceptable Acceptable Acceptable

AR Tab 174 at 30008, ECF No. 96; see also id. at 30010 (noting a rating change from

“Marginal” to “Acceptable” for Problem Statement No. 3).

Notwithstanding the upward revision in TIA’s rating for Problem Statement No. 3, the

SSA again concluded that TIA’s proposal was not “among[] the most highly rated or the lowest

priced proposals and d[id] not represent a best value to the Government.” Id. TIA therefore again

did not receive an award.

TIA’s Protest

In its amended MJAR, TIA alleges that the agency “erred by assigning TIA two

weaknesses for its approach to risk in the Corporate/Philosophy/Culture on Innovation aspect” of

Factor 1. Pl. TIA’s Am. Mot. for J. on the Admin. Rec. & Br. in Supp. Thereof (“TIA MJAR”) at

18–21, ECF No. 106 (capitalization altered). It further contends that it was subjected to disparate

treatment when it was not assigned three additional strengths under Factor 1. Id. at 21–24.

Finally, with respect to Factor 4, TIA argues that the Agency arbitrarily awarded strengths to

other offerors based on certifications that TIA also possessed but for which it was not assigned

any strengths. Id. at 24. The Court addresses each of these arguments below and finds them

without merit.

a. Assignment of Weaknesses to “Approach to Risk” Component

of TIA’s Proposal

The instructions concerning the “Corporate Philosophy/Culture on Innovation” category

of Factor 1 required offerors to provide information about, among other things, their “Approach

to Risk.” AR Tab 5 at 376. Specifically, it required offerors to explain how they “manage risk in

an innovative environment” and how they “determine the level of acceptable risk.” Id. They were

also directed to provide an explanation of how they and DoD should share risk. Id. In addition,

the offerors were required to identify “the cost of failure” as well as “who should pay for it.” Id.

Finally, the offerors were required to state “[h]ow much failure” the government should accept.

Id. (internal quotation marks omitted).

19

The agency assigned two weaknesses to TIA’s proposal based on its responses to the

“Approach to Risk” questions. AR Tab 65d at 5700. First, it concluded that TIA “did not

adequately address how it would share risk with the DOD.” Id. According to the agency “[t]his

flaw . . . increases [TIA’s] risk of failure to be innovative because a lack of understanding of how

to allocate risk between the company and the DOD throughout the development lifecycle could

impede managing and mitigating risks for future SETI projects.” Id. Second, the agency

concluded that TIA “did not provide sufficient information as to how much failure they believed

the Government should accept.” Id. It observed that this flaw “raises the risk of failure to be

innovative because the Offeror’s approach to failure sharing between themselves and the

Government is not well developed and could potentially impede innovation in future SETI task

orders.” Id.

TIA argues that it was arbitrary and irrational for the agency to conclude that its proposal

did not adequately address risk sharing or how much failure it believed the agency should accept.

It observes that “TIA’s proposal described [***] and the risk sharing partnership it contemplated

between TIA and the government.” TIA MJAR at 19 (citing AR Tab 160 at 25935–36). It further

asserts that its proposal [***]. Id. (citing AR Tab 160 at 25935).

As explained above, given the technical nature of the issues, this Court’s scope of review

of the agency’s decision regarding whether TIA satisfactorily addressed the agency’s questions is

extremely narrow. The agency examined the content of TIA’s responses under the “Approach to

Risk” subtopic and found them lacking in two critical respects. First, it concluded that TIA did

not provide adequate information about how it proposed to share risks with DoD. The record

reflects a rational basis for this highly discretionary determination. The focus of the narrative in

TIA’s proposal was on risks to TIA, and there was scant if any mention of shared risks. See AR

Tab 160 at 25935 (describing [***]). Indeed, the word “share” does not appear in the narrative

discussing this point. Nor did TIA provide any discernible analysis regarding how much failure

the agency should find acceptable under the SETI contract; it merely offered the generalization

that [***]. Id.

In reviewing the reasonableness of the agency’s determination, it is instructive to

compare TIA’s responses with those that were not found lacking. The comparison reveals that

other offerors supplied more specificity regarding risk sharing than did TIA, in some instances

devoting entire sections to the topic. See, e.g., AR Tab 163 at 27250 (Intervenor ValidaTek, Inc.

proposal) (explaining that [***]); AR Tab 162 at 26862 (Intervenor Tiber Creek Consulting, Inc.

proposal) (explaining that [***]); AR Tab 145 at 19485 (Intervenor Innovative Government

Solutions JV, LLC proposal) (explaining in section titled [***]).

Similar results obtain when reviewing other offerors’ responses to the question of how

much failure the government should be willing to accept. These proposals again contained more

specificity than did TIA’s. See, e.g., AR Tab 162 at 26862 (Tiber Creek Consulting, Inc.

proposal) (explaining [***]); AR Tab 163 at 27251 (ValidaTek proposal) (explaining [***]). It is

also instructive that the agency similarly assigned a weakness to another offeror’s proposal

where, like TIA, it only addressed the effect of failure on the offeror, and not on the government.

See AR Tab 65d at 5182 (referring to AR Tab 145 at 19485) (assigning the same weakness to

Innovative Government Solutions JV, LLC where the proposal [***]).

20

In short, the Court concludes that the agency acted within its discretion when it found

TIA’s proposal deficient with respect to the way it addressed the approach to risk questions

posed by the Solicitation. TIA’s protest on this ground therefore lacks merit.

b. Disparate Treatment in Assignment of Two Weaknesses

Rather than One under “Approach to Risk” Topic

In addition to challenging the substance of the agency’s conclusion that its proposal fell

short in addressing its approach to risk, TIA also argues that DISA subjected it to disparate

treatment when it assigned the proposal two weaknesses for these shortcomings rather than one.

See TIA MJAR at 20. For example, TIA observes, awardee Applied Systems Engineering was

assigned one weakness for failing to “provide information as to who should pay for the cost of

failure . . . [and information] on how much failure they believe the Government should accept.”

AR Tab 65d at 4761. In addition, Interop-ISHPI JV, LLC was assigned a single weakness for

including an “immature description as to what they perceive the cost of failure to be, who should

pay for innovation-related failures at any/all points of the developmental lifecycle, and how

much failure the Government should accept.” Id. at 5204. And Mission Support, LP was

assigned only one weakness for a failure to “provide information as to what they perceive the

cost of failure to be . . . [and] a comprehensive understanding of who should pay for innovation-

related failures at any/all points of the developmental lifecycle.” Id. at 5326. But see id.

(assigning a second weakness to Mission Support, LP for failing to “provide information into

how their company determines the level of acceptable risk”).

As the court of appeals recently held in Office Design Group v. United States, to prevail

on a disparate treatment claim a protestor must show either “that the agency unreasonably

downgraded its proposal for deficiencies that were ‘substantively indistinguishable’ or nearly

identical from those contained in other proposals” or that “the agency inconsistently applied

objective solicitation requirements between it and other offerors, such as proposal page limits,

formatting requirements, or submission deadlines.” 951 F.3d 1366, 1372 (Fed. Cir. 2020). Only

if a protester meets one of these thresholds can the reviewing court “comparatively and

appropriately analyze the agency’s treatment of proposals without interfering with the agency’s

broad discretion in these matters.” Id. at 1373; see also WellPoint Military Care Corp. v. United

States, 953 F.3d 1373, 1378 (Fed. Cir. 2020). Indeed, having the Court pass judgment regarding

the relative merits of proposals that are not substantively indistinguishable “would give a court

free reign to second-guess the agency’s discretionary determinations underlying its technical

ratings” and “[t]his is not the court’s role.” Office Design Grp., 951 F.3d at 1373 (citing E.W.

Bliss Co., 77 F.3d at 449).

TIA’s disparate treatment argument does not meet the Office Design Group standards.

The agency assigned two weaknesses to TIA’s proposal based on its failure to address both how

TIA would share risk with the government and how much failure should be acceptable to the

government. None of the comparator proposals that TIA cites were found to have failed to

address both of these issues. The deficiencies in the proposals were therefore not substantively

indistinguishable. TIA’s disparate treatment claim accordingly lacks merit.

21

c. Unequal Assignment of Strengths Under Factor 1

TIA claims that the agency arbitrarily failed to assign three additional strengths to its

proposal that it awarded to other offerors with allegedly similar proposals. These disparate

treatment claims also do not pass muster under Office Design Group, 951 F.3d 1366.

i. Assignment of strength based on awards received

Under Factor 1, the Solicitation required offerors to “[l]ist and describe Awards and

Achievements received that were awarded because of Innovation.” AR Tab 5 at 378. TIA alleges

that it should have been awarded a strength based on its [***]. TIA MJAR at 21–22.

This contention lacks merit. IE-TEK [***]. See AR Tab 143 at 18014 (IE-TEK proposal)

(explaining that “IE-TEK [***]”). TIA’s proposal, on the other hand, listed the awards it

received with little or no explanatory narrative. See AR Tab 160 at 25950. The agency further

noted that IE-TEK also [***]. AR Tab 65d at 5131 (IE-TEK proposal evaluation). Because both

the awards and the information provided about them in the proposals are materially different,

TIA’s disparate treatment argument fails.

ii. Assignment of a strength based on laboratory facilities

Offerors were required to include information in their proposals regarding their

“Investment in Innovation” including their “physical investment in laboratory/testing space,”

and, if applicable, “the company’s ‘Virtual Investment’ such as cloud technology for ‘lab space’

and monetary investment of non-physical assets or virtual models.” AR Tab 5 at 377. TIA argues

that it was arbitrary for the agency not to assign its proposal a strength based on its [***] while at

the same time assigning strengths to Bluestone Logic, Innoplex LLC, and IE-TEK based on their

[***]. This argument also lacks merit.

TIA’s proposal stated that it had [***]. AR Tab 160 at 25942. TIA also referenced [***].

Id.

The proposals of the other offerors that TIA cites—Bluestone Logic, Innoplex LLC, and

IE-TEK—similarly provide explanations about the capabilities of their facilities which are

different from those of TIA. In addition, they supply information about how they propose to use

those capabilities to benefit DISA. For example, Bluestone Logic [***]. AR Tab 133 at 13589

(Bluestone Logic proposal). It specified that [***]. Id.

The proposals submitted by IE-TEK and Innoplex, the other two offerors TIA claims

received more favorable treatment, also contain significant detail about their labs and include

discussion of the benefits DISA would receive as a result of their facilities. See AR Tab 143 at

18011 (IE-TEK proposal) (explaining [***]); id. at 18012 (identifying, specifically, [***]); AR

Tab 142 at 17446 (Innoplex, LLC proposal) (explaining that [***]).

TIA argues that its facility “offered the Agency the same benefits that Bluestone’s, IE-

TEK’s and Innoplex’s did—[***] and that it was arbitrary and irrational for the agency to “fail to

recognize those benefits in TIA’s offering.” TIA MJAR at 23. But the Court hardly has the

expertise to decide whether the benefits offered by each of these proposals is “the same.” Id.

22

What the Court can tell is that the proposals of TIA and the other offerors have different features

and are not “substantively indistinguishable.” Office Design Grp., 951 F.3d at 1372. Consistent

with the reasoning in Office Design Group, the Court therefore has no basis for second guessing

the determinations of the agency’s subject matter experts regarding which proposals should be

assigned strengths and which should not. TIA’s challenge based on the agency’s failure to assign

it a strength for its laboratory facilities must therefore be rejected.

iii. Assignment of strengths based on partnerships

Under Factor 1, offerors were required to provide information about their “outreach and

participation,” including their “relationships, partnerships, and/or interactions with fundamental

research and commercial/academic sector.” AR Tab 5 at 377. In its proposal, TIA responded to

this requirement by stating that it was an [***]. AR Tab 160 at 25937. TIA asserts that it should

have been awarded a strength for its partnership with these entities, because another offeror,

Tapestry Technologies (“Tapestry”), received a strength for partnerships with [***] identified.

TIA MJAR at 24.

But again, the proposals are not substantively the same. Tapestry provided [***]. See AR

Tab 159 at 25476–78 (Tapestry Technologies proposal). TIA merely listed the entities by name

and identified them as [***]. AR Tab 160 at 25937. TIA’s disparate treatment claim as to this

aspect of its evaluation therefore also lacks merit.

d. Failure to Assign a Strength Under Factor 4 (Utilization of

Small Business)

Under Factor 4, all offerors were required to submit a “small business participation and

commitment plan” to “be evaluated on the level of proposed participation of U.S. small

businesses in the performance of [the contract].” AR Tab 5 at 382. TIA argues that the agency

acted arbitrarily when it assigned strengths to other offerors’ proposals under Factor 4, based on

their possession of certain certifications, while not awarding a strength to TIA, which had

received the same certifications. TIA MJAR at 24–26.

TIA’s argument lacks merit because it listed the certifications which it claims were

overlooked (such as [***]) in its Factor 1, not in its Factor 4, proposal. See AR Tab 160 at

25950–51 (list of certifications and accreditations); TIA MJAR at 26. In the other instances

where the agency assigned a strength for these certifications, the offerors had listed their

certifications in their Factor 4 proposals. See, e.g., AR Tab 65d at 5022 (DirectViz small

business Factor 4 evaluation); AR Tab 139 at 16113 (DirectViz small business proposal); AR

Tab 65d at 5549 (Sealing Technologies, Inc. small business Factor 4 evaluation); AR Tab 154 at

23912 (Sealing Technologies, Inc. small business proposal). TIA is therefore not similarly

situated to these offerors.

TIA argues that it was nonetheless treated unfairly. It points out that although separate

TEBs were assigned to evaluate each factor, subsequent review boards had access to all volumes

and could have therefore considered the certifications to assign strengths for any factor. TIA

MJAR at 26–27. But the approach TIA argues the agency should have taken would be contrary

to the terms of the Solicitation. The Solicitation expressly stated that “[t]o the greatest extent

23

possible, each volume shall be written on a stand-alone basis so that its contents may be

evaluated with a minimum of cross-referencing to other volumes of the proposal.” AR Tab 5 at

371 (emphasis supplied). Further, it stated that “[i]information required for proposal evaluation

which is not found in its designated volume will be assumed to have been omitted.” Id.

(emphasis supplied). Thus, TIA’s claim that it was entitled to be assigned a strength under Factor

4 based on information it submitted for consideration in its Factor 1 proposal lacks merit.

B. DirectViz Solutions, LLC (Case No. 19-1162)

1. The Agency’s Evaluation and Award Decision

DirectViz Solutions, LLC (“DVS”) submitted its proposal on April 4, 2017. AR Tab 139.

The agency assigned DVS six strengths and three weaknesses under Factor 1. AR Tab 65d

at 5014–17. For Factor 2, the agency deemed two out of three of DVS’s references not relevant.

Id. at 5018. It found relevant the third reference and assigned it a quality rating of “Exceptional.”

Id. The agency assigned DVS four strengths and one weakness under Problem Statement No. 3,

id. at 5019–20, and one strength, one weakness, and one significant weakness for Problem

Statement No. 4, id. at 5020–21. Finally, under Factor 4, DVS earned five strengths and was

assigned no weaknesses. Id. at 5022–23.

The agency assigned DVS’s proposal the following adjectival ratings:

Factor 1 – Factor 2 – Past Factor 3 – PS3 Factor 3 – PS4 Factor 4–

Innovation Performance Rating Rating Small Business

Good Satisfactory Outstanding Marginal Good

AR Tab 65 at 4659.65 (SSA ratification of SSEB recommendation); AR Tab 65d at 5013–24.

DVS’s evaluated price ranked [***]. AR Tab 65d at 5024.

The SSA observed that DVS’s six strengths under the Innovation factor “are attractive

and while the risk of unsuccessful performance was low, based on the rating, the technical

advantages were not superior to other proposals.” Id. at 4659.67. He considered the “technical

advantages and disadvantages” that came with DVS’s proposed price. Id. He concluded that

because the proposal was “not amongst the most highly rated or the lowest priced” it did “not

represent a best value to the Government,” and “d[id] not merit selection for an award.” Id. at

4659.68.

2. The Debriefing

On July 9, 2019, DISA notified DVS that it had not been selected for an award and it

supplied DVS with a list of the twenty-three successful offerors. AR Tab 69 at 8667–69. DVS

requested a post-award debriefing the same day. AR Tab 73 at 8726.

The next day, on July 10, 2019, the agency sent DVS a document that included a table of

the successful offerors with the adjectival ratings assigned them for each technical factor, along

with their prices. AR Tab 73a at 8731–33. In addition, the document included a summary of the

24

evaluation process the agency followed. Id. On July 12, DVS sent the agency a follow-up email

asking questions in response to the initial debrief email to which the CO responded on July 22.

AR Tab 100 at 8990 (email from CO to DVS).

3. DVS’s Protest

a. Violation of 10 U.S.C. § 2305

DVS first contends that the agency’s debriefing process did not comport with the

requirements of 10 U.S.C. § 2305(b). Mem. in Supp. of Pl.’s Mot. for J. on the Admin. R. (“DVS

MJAR”) at 15, ECF No. 84. That statute requires that an unsuccessful offeror who makes a

timely request for a debriefing be provided information regarding “the basis for the selection

decision and contract award.” 10 U.S.C. § 2305(b)(5)(A). As pertinent to the present

procurement, the debriefing must include, “at a minimum”: “the agency’s evaluation of the

significant weak or deficient factors in the offeror’s offer”; “the overall evaluated cost and

technical rating of the offer of the contractor awarded the contract and the overall evaluated cost

and technical rating of the offer of the debriefed offeror”; “the overall ranking of all offers”; “a

summary of the rationale for the award”; “reasonable responses to relevant questions posed by

the debriefed offeror as to whether source selection procedures set forth in the solicitation,

applicable regulations, and other applicable authorities were followed by the agency”; and “an

opportunity for a disappointed offeror to submit, within two business days after receiving a post-

award debriefing, additional questions related to the debriefing.” 10 U.S.C. § 2305(b)(5)(B).

DVS argues that—in violation of these statutory requirements—the agency did not

provide it with “the overall ranking of all offers.” DVS MJAR at 15. It notes that “[t]he purpose

of an overall ranking is to demonstrate an Agency’s reasoning behind its award decisions.” Id.

DVS argues that “[u]nless [it] can review the overall rankings following DISA’s award decision,

it will have no assurance that it has identified all arbitrary and capricious actions, abuses of

discretion, and failures to observe procedures required by law relevant to DISA’s agency

actions.” Id. at 16. It also contends that “the requirement that an overall ranking be formulated

implicates agency compliance and enforces discipline during the procurement process.” Id.

The government argues that § 2305(b)(5)(B)(iii) “does no more than require agencies to

provide an offeror’s overall ranking if the ranking exists” and that “[i]t does not require the

agency to create a ranking in the first instance.” Def.’s Cross-Mot. for J. upon the Admin. R. and

Consolidated Resp. in Opp’n to Pls.’ Mots. for J. upon the Admin. R. (“Gov’t MJAR”) at 37–38,

ECF No. 123. And even if DVS did not receive information to which it was entitled during the

debriefing, the government argues, it has not shown that it suffered prejudice as a result. Id. at

35. The Court agrees with the government.

First, the government’s interpretation of the statute is supported by its language and its

purposes. Section 2305(b)(5)(B)(iii) requires the agency to provide “the overall ranking of all

offers,” not “an overall ranking of all offers.” Use of the definite article “the” rather than the

indefinite article “an” indicates to the Court that the “overall ranking” referenced in the statute

refers to a ranking that has already been performed, not a ranking performed for purposes of a

debriefing. Moreover, if the agency did not rank all of the proposals as part of its evaluation

25

process, then performing such a ranking after the fact would not serve the statutory purpose of

shedding light on the reasoning behind the agency’s award decision.

In this case, there is nothing in the administrative record which reflects that the agency

created a ranked list of all of the proposals it received. 5 And while failing to perform a

comprehensive ranking of offerors may in some circumstances reflect a lack of discipline (as is

suggested by DVS), DVS does not contend that the agency abused its discretion or acted

unreasonably when it did not perform a comprehensive ranking of all of the offerors here.

In any event, even assuming that the agency violated a requirement that it supply DVS

with an overall ranking of all offerors, DVS has failed to show that the purported error was

prejudicial—i.e. that “there was a substantial chance that it would have received [an] award but

for the error.” Bannum, 404 F.3d at 1355 (internal citations omitted). In fact, when DVS posed

questions to the agency after receiving its debriefing documents, it did not mention the ranking

of offerors that it now claims the agency was required to provide to it. That suggests to the Court

that DVS itself did not consider the information particularly critical to its understanding of the

basis for the agency’s decision not to award it a contract. Additionally, as part of the debriefing,

the agency provided DVS with a table that listed the technical ratings and prices of all of the

successful offerors, which would have enabled it to perform a comparison between those ratings

and prices and its own. AR Tab 73a at 8732. And finally, it has since been provided a copy of the

administrative record, including the SSDD which contains extensive information about “the basis

for the selection decision and contract award,” which is what 10 U.S.C. § 2305(b)(5)(A) requires

the agency to “furnish” upon timely request by offerors. The absence of a document that ranks

all of the offerors has not prevented DVS from pressing multiple allegations of error in this

protest.

In short, the Court does not agree that the agency failed to supply DVS with information

to which it was statutorily entitled. But even if a violation occurred, DVS has not shown that it

suffered any resulting prejudice. Therefore, this protest ground lacks merit.

5

The memorandum of the SSAC indicates that the agency began its selection process by

eliminating the forty proposals that received an “Unacceptable” rating in either Factor 1 or

Factor 3. AR Tab 65e at 5784. It then looked at the twenty offerors (of the remaining fifty-nine)

that had been rated “Outstanding” on Factor 1 and reviewed them from the highest to the lowest

technically rated. Id. at 5785. It made awards to eighteen of these offerors upon consideration of

their technical ratings and prices. Id. at 5872. It next moved on to review in order of their overall

technical merits the twenty-five proposals that had at least a “Good” rating on Factor 1, and then

those that had received at least an “Acceptable” rating on Factor 1. Id. at 5826–73. The

administrative record also includes a table prepared by the CO which listed the SSAC’s thirty

highest rated proposals, along with their prices and technical ratings. DVS is listed as number

thirty in technical ratings. AR Tab 54 at 3432–33.

26

b. Alleged Errors in Evaluation under the Innovation Factor

In its complaint and MJAR, DVS presents several challenges to the agency’s evaluation

of its proposal under the Innovation Factor. For the reasons set forth below, the Court concludes

that each of those challenges lack merit.

i. Use of unstated criteria to evaluate “Knowledge

Management”

Pursuant to section L.4.2.3.2 of the Solicitation’s instructions, offerors were required to

provide specified information regarding the topic of their “Investment in Innovation” that would

be used to evaluate their proposals under the Innovation factor. AR Tab 5 at 377. As pertinent

here, under the subtopic “Knowledge Management,” the instructions required offerors to

describe “[w]hat . . . the company’s Knowledge Management methodology look[s] like,” as well

as “[w]hat . . . the company’s ‘architecture’ look[s] like and what types of resources are available

in the company architecture.” Id.

In compliance with this instruction, DVS’s proposal includes a [***]. AR Tab 139 at

15970. With respect to the instruction to set forth the “types of resources . . . available in the

company architecture,” AR Tab 5 at 377, DVS stated that it [***], AR Tab 139 at 15970. It also

identified the [***]. Id.

The agency assigned DVS a weakness under the Knowledge Management subtopic. It

reasoned as follows:

The Offeror provides a very brief description of their KM methodology and their

KM architecture – [***] not a knowledge management architecture with the

maturity to manage the strategy, planning, execution, and improvement processes

that the Offeror includes in their methodology. This is a flaw in the Offeror’s

proposal that increases the risk of unsuccessful contract performance because SETI

stakeholders require a mature and proven knowledge management strategy,

architecture, and resources to provide an oversight management framework for

their complex IT developmental efforts.

AR Tab 65d at 5016.

DVS contends that the agency’s assignment of a weakness to its Factor 1 proposal on

these bases violated the “fundamental principle of procurement law that an agency may only

evaluate offerors in accordance with the evaluation criteria stated in the Solicitation.” DVS

MJAR at 16 (citing FAR 15.305(a)). It observes that the “Solicitation does not prescribe any

preferences as to the types of KM resources that should be utilized[, n]or does [it] indicate that

offerors’ proposals will be downgraded for use of any particular KM resources, [***].” Id. at 17.

Nonetheless, according to DVS, the agency treated its proposal [***] as “essentially

disqualifying.” Id. at 16–17; see also id. at 17 (complaining that “DISA failed to put DVS on

notice that a proposal that incorporates [***] would be evaluated negatively”).

The Court is not persuaded that DVS’s proposal was “downgraded” much less

“essentially disqualified” simply because it proposed the use of a particular technology

27

product—[***]. Id. at 16–17. The agency stated that it assigned the proposal a weakness because

it provided only a “very brief description of [DVS’s] KM methodology and . . . KM

architecture,” and because it concluded that the technology DVS identified—[***]—was not “a

knowledge management architecture with the maturity to manage the strategy, planning,

execution, and improvement processes that the Offeror includes in their methodology.” AR Tab

65d at 5016.

DVS points out that the agency assigned awardee DHPC Technologies, Inc. (“DHPC”), a

strength based on its responses to the Knowledge Management subtopic where it proposed a

[***]. Id. at 18 (citing AR Tab 65 at 4659.31). DVS expresses skepticism about “the sincerity of

DISA’s concern over DVS’s proposed KM solution” given this assignment of a strength to

DHPC. See id. But the assignment of a strength to another offeror that proposed the [***], does

not raise questions about DISA’s “sincerity.” Id. Instead, it confirms that it was not DVS’s

proposed [***] in and of itself that was of concern to the IEB. The Court therefore rejects DVS’s

argument that the agency applied an unstated evaluation criterion to its proposal.

ii. Failure to consider other knowledge management

capabilities contained in the proposal

In addition to its argument that the agency applied unstated evaluation criteria to the

evaluation of DVS’s knowledge management proposal, DVS also contends that the agency

arbitrarily ignored that it had “proposed other KM solutions in its proposal as alternatives or

supplements to [***].” Id. at 19. DVS asserts that its proposal “indicates that it utilizes [***].”

Id. (citing AR Tab 139 at 15970). It also contends that its proposal [***]. Id. (citing AR Tab 139

at 15969). Finally, in its Reply, DVS cites language in its proposal which states that its [***].

DVS Reply Mem. In Support of Pl.’s Mot. J. on the Admin. R. (“DVS Reply”) at 15 (quoting

AR Tab 139 at 15969).

The Court lacks the competence not to mention the authority to second guess the agency

regarding the relevance of these other technologies to the Knowledge Management subtopic. See

Benchmade Knife Co. v. United States, 79 Fed. Cl. 731, 740 (2007) (observing that the court

“simply is not equipped to determine whether the differences between the [combat] knives

articulated by Benchmade rise to the level of significant differences, thus rendering the agency’s

determination unreasonable” and that “[a]gencies are entitled to considerable discretion and

deference in matters requiring exercise of technical judgment”). Further, it finds it noteworthy

that DVS itself did not reference these additional technologies in explaining “[w]hat . . . [DVS’s]

Knowledge Management methodology look[s] like,” or “[w]hat . . . the company’s ‘architecture’

look[s] like and what types of resources are available in [its] architecture.” AR Tab 5 at 377.

Instead, the references to the other technologies are included in [***]. AR Tab 139 at 15968–69.

The Court concludes that it was not irrational or improper for the agency to assign a

weakness to DVS’s proposal where it did not identify these other resources as part of its

knowledge management methodology or architecture. DVS’s protest on this basis is therefore

rejected.

28

iii. Unequal treatment

In conjunction with the evaluation of Factor 1, the Solicitation required offerors to

provide information in their proposals concerning their “Corporate Philosophy/Culture on

Innovation.” AR Tab 5 at 376. As pertinent to this protest, offerors were to “describe the

company’s culture regarding employee[s’] pursuit of Innovation and how they are rewarded for

doing so.” Id. at 377. Offerors were also asked to provide “an example of when the company

failed at attempting to deliver Innovation and what they learned from that failure” as well as

“[w]hat, if any consequences there were to the employee.” Id.

The agency assigned a weakness to DVS’s proposal regarding these requirements,

finding that it did not “provide adequate information on when th[e] company failed at attempting

to deliver Innovation and what, if any, consequences there would be to employees who pursued

an innovative initiative and experienced failure.” AR Tab 65d at 5016. The agency explained that

the example of failure that DVS had provided involved “an operational oversight failure by the[]

Government client, not a company failure in attempting to deliver innovation.” Id.; see also AR

Tab 139 at 15964 (DVS proposal providing example in which its government client “failed to

define a requirement”). The flaw in DVS’s proposal in this regard, the agency concluded,

“increases the risk of failure to be innovative because the Offeror does not demonstrate it

understands there is value in failure and can apply the lessons learned from innovation failure

towards future innovation success.” AR Tab 65d at 5016.

DVS does not disagree with the agency’s conclusion that its proposal was not compliant

with the instructions because it did not identify and discuss one of its own failures to innovate.

Nor does it contend that it was irrational for the agency to determine that this shortcoming

merited the assignment of a weakness. Rather, it argues that it is a victim of “unequal treatment”

because the agency “failed to assign weaknesses” and even “made awards” to other offerors

whom it alleges also “failed to discuss past failures to innovate.” DVS MJAR at 38. These

offerors, it asserts, included Integrated Systems, Inc., Applied Systems Engineering Joint

Venture, ValidaTek, Inc., and DHPC Technologies. Id.

Contrary to DVS’s assertions, however, each of the proposals it cites did in fact include

specific examples of past failures by the offerors. The proposal of Integrated Systems, for

example, discussed [***]. AR Tab 146 at 20098. [***] Id. at 20098–99. Applied Systems

Engineering’s proposal also supplied a specific example of failure [***]. AR Tab 130 at 12351

(describing a [***]). The proposal also addressed in some depth [***]. Id. ValidaTek’s proposal

similarly included examples of failures it experienced along the way in [***]. AR Tab 163 at

27252. And DHPC’s proposal also included specific examples of failures it had experienced

[***]. AR Tab 138 at 15319.

In its reply brief, DVS repeats its inaccurate assertion that the proposal of Applied

Systems did not include any examples of failure. DVS Reply at 16. And while retreating from its

original assertion that the other cited proposals included no examples of failure, it now alleges

that those proposals “provide only vague anecdotes with close to no detail and hardly any

exposition on the lessons learned from failure, as required by the Solicitation.” Id. The Court

does not agree with this characterization of the other proposals. But in any event, as explained

above, to establish disparate treatment, DVS must show that the other proposals were

29

“substantively indistinguishable” from its own. See Office Design Grp., 951 F.3d at 1373. For

the reasons set forth above, it has failed to make this showing. Therefore, DVS’s allegations of

disparate treatment lack merit.

c. Alleged Errors in Evaluation of Past Performance

As noted earlier, DVS submitted three past performance references, two of which the

agency deemed not relevant. AR Tab 65d at 5018. DVS claims that these determinations were at

odds with the requirements of the Solicitation and were based on unstated evaluation criteria.

DVS MJAR at 20.

At the outset, the Court notes the determination of whether a particular example of past

performance is relevant involves an exercise of discretion that lies particularly within the

expertise of the procuring agency. The agency’s subject-matter experts are best suited to

determine whether and to what extent the experience reflected in a past performance example

instills confidence that the offeror will successfully perform and meet the needs of the agency on

the contract at issue. See Vanguard Recovery Assistance v. United States, 101 Fed. Cl. 765, 785

(2011) (quoting Al Andalus Gen. Contracts Co. v. United States, 86 Fed. Cl. 252, 264 (2009))

(stating that it is a “‘well-recognized’ principle that ‘an agency’s evaluation of past performance

is entitled to great deference’”); Seaborn Health Care, Inc. v. United States, 101 Fed. Cl. 42, 51

(2011) (finding that when evaluating an offeror’s past performance, “FAR 15.305(a)(2) affords

agencies considerable discretion in deciding what data is most relevant”); FirstLine Transp. Sec.,

Inc. v. United States, 100 Fed. Cl. 359, 396 (2011) (quoting Univ. Research Co. v. United States,

65 Fed. Cl. 500, 505 (2005)) (“When the Court considers a bid protest challenge to a past

performance evaluation conducted in the course of a negotiated procurement, ‘the greatest

deference possible is given to the agency.’”); Todd Constr., L.P. v. United States, 88 Fed. Cl.

235, 247 (2009), aff’d, 656 F.3d 1306 (Fed. Cir. 2011) (“[T]he relative merits of the offerors’

past performance is primarily a matter within the contracting agency’s discretion.’”) (internal

citations omitted). Therefore, to justify an interference with the agency’s exercise of discretion

regarding the relevance of an offeror’s past performance, the protester must demonstrate that the

agency determination regarding relevance “lacked any rational basis.” Overstreet Elec. Co., Inc.

v. United States, 59 Fed. Cl. 99, 117 (2003), appeal dismissed, 89 Fed. Appx. 741 (Fed. Cir.

2004) (emphasis and modification in original).

DVS argues that “[h]ad the Agency correctly evaluated References 1 and 2 under the

clearly stated evaluation criteria,” these references “would have received ‘Very Relevant’ ratings

and DVS’s Past Performance proposal would have compelled a ‘Substantial Confidence’ overall

rating and [it] likely would have been selected for award.” DVS MJAR at 25. The Court is not

persuaded by this contention.

Reference 1 involved DVS’s work as [***]. AR Tab 139 at 15985. The PPEB deemed

this work not relevant because, although “[s]ome task areas [identified in the SETI performance

work statement] were addressed,” the referenced contract concerned “an operations and

maintenance requirement” and it demonstrated “little complexity and innovation beyond

standard problem solving.” AR Tab 46 at 1895 (agency’s past performance rating and narrative).

30

DVS contends that—contrary to the PPEB’s views—the work it performed on

Reference 1 “did require the complexity, innovation or scope to be relevant.” DVS Reply at 12.

It observes that its proposal “list[ed] a variety of solutions that it delivered and implemented

during performance including [***].” Id. Further, DVS states, it “also [***].” Id. (citing Tab 139

at 15983). DVS argues that it therefore “‘did more than just solve problems’” in performing the

work on the Reference 1 contract. It also “provided, inter alia, [***].” Id. (citing Tab 139 at

15988, 15990).

DVS poses a similar challenge to the PPEB’s conclusion that Reference 2, which cited its

work under the [***] was not relevant. AR Tab 46 at 1896. The PPEB observed that this contract

involved “a migration and support effort,” and that “[n]o innovation or description of

complexities [was] provided.” Id. at 1897. It characterized the referenced contract as involving

“standard operations and maintenance work.” Id. Therefore, the PPEB reasoned, “[l]ittle or none

of the scope and magnitude of effort and complexities this solicitation requires is demonstrated.”

Id.

As it did with respect to Reference 1, DVS contends that Reference 2 also should have

been found relevant because, contrary to the agency’s views, the reference revealed its “ability to

perform the SETI work.” DVS Reply at 13. Again, as it did with Reference 1, DVS supplies

language from its past performance proposal describing its technical accomplishments under the

referenced contract, and argues that those accomplishments belie the agency’s finding that

Reference 2 was not relevant. Id.

DVS has not persuaded the Court that the agency’s conclusions regarding References 1

and 2 lacked any rational basis. The PPEB reviewed DVS’s questionnaire and explained why it

found that only one of the three examples provided was relevant. DVS disagrees with the

agency’s judgment that the prior work reflected in the References is not sufficiently similar to

the SETI contract in terms of its scope, magnitude of effort, and complexity. But this Court has

no legal basis for choosing DVS’s opinion over that of the PPEB. In cases that involve the

application of judgment in a highly technical area, the Court’s “main task” instead is to ensure

that the agency “examined the relevant data and articulated a ‘rational connection between the

facts found and the choice made.’” WorldTravelService v. United States, 49 Fed. Cl. 431, 441

(2001) (citing Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43

(1983)). The Court concludes that the agency passed that threshold in this case.

The Court also finds no merit to DVS’s contention that the agency ignored its stated

evaluation criteria in assessing the relevance of References 1 and 2. DVS cites the Solicitation’s

instructions for providing information about past performance which state that “[s]imilar

Contracts may include projects in a variety of sizes, a variety of disciplines, varying degrees of

technical complexity” and that “[s]imilar projects may include,” among others, “[e]fforts in

excess of $3M for [the] restricted category or in excess of $15M for [the] unrestricted category

(if less than these thresholds, justify relevancy to SETI).” AR Tab 5 at 379; see DVS MJAR at

23.

DVS observes that both References 1 and 2 involved efforts well in excess of the

three-million-dollar threshold. Therefore, it argues, the agency determination that they were not

relevant was inconsistent with the instructions in the Solicitation. This argument lacks merit.

31

While the Instructions stated that similar projects “may” include efforts that exceeded the dollar

thresholds, they do not provide that exceeding the dollar thresholds is sufficient in and of itself to

establish the relevancy of a past performance reference. To the contrary, offerors were advised

that “[s]imilar projects” that that they identified “should demonstrate as many of the project

types included in the PWS (either individually or in combination thereof) as possible.” AR Tab 5

at 379. This instruction makes it clear that the determination of relevance would be based on

multiple factors, not just the value of the referenced contract.

Finally, DVS also argues that “even if [its] Past Performance References # 1 and # 2 were

indeed ‘Not Relevant,’ DISA provided no reasoning as to why DVS was assigned a Performance

Confidence Assessment Rating of ‘Satisfactory Confidence,’ when Reference # 3 was rated as

‘Relevant’ and ‘Exceptional.’” DVS MJAR at 24. The Court believes the agency’s reasoning is

self-evident. The Solicitation provides that a “Satisfactory Confidence” rating is appropriate

when “[b]ased on the Offeror’s recent/relevant performance record, the Government has a

reasonable expectation that the Offeror will successfully perform the required effort.” AR Tab 5

at 390. A “Substantial Confidence” rating requires that the agency have “a high expectation that

the Offeror will successfully perform the required effort.” Id. Here, because DVS supplied only

one relevant reference (albeit a reference that had a high-quality rating), the agency concluded

that the one reference gave them a reasonable expectation that DVS could successfully perform

on the SETI contract, but not necessarily a “high” one. Id.

In short, DVS has not shown that the agency’s assessment of the relevance of its past

performance references lacked a rational basis or was inconsistent with the Solicitation’s criteria.

Its protest on these bases therefore lacks merit.

d. Inconsistency of Adjectival Ratings

DVS contends that the agency was “remarkably inconsistent” in its assignment of

adjectival ratings. DVS MJAR at 25. This contention is not supported by the portions of the

record upon which DVS relies.

First, the Court is not persuaded by DVS’s argument that the agency’s assignment of

adjectival ratings to its proposal for Factors 3 and 4 was “facially irrational.” Id. It so contends

because, on the one hand, the PSEB assigned the proposal an “Outstanding” rating under Factor

3, Problem Statement No. 3, and identified four strengths and one weakness, id., but on the other,

the SBEB assigned it “Good” rating under Factor 4 (Small Business Plan) where the balance of

strengths (five) against weaknesses (none) was even more favorable. Id.

DVS’s argument is unpersuasive for several reasons. First, separate technical evaluation

boards evaluated each of the technical factors. Even if there were inconsistencies it would be

neither surprising nor evidence of irrationality, given that distinguishing a “Good” proposal from

an “Outstanding” one involves at least some subjective judgment. As GAO has observed, “it is

not unusual for different evaluators, or groups of evaluators, to reach different conclusions and

assign different scores or ratings when evaluating proposals, since both objective and subjective

32

judgments are involved.” Wellpoint Military Care Corp., B-415222.5, 2019 CPD ¶ 168 (Comp.

Gen. May 2, 2019). 6

In addition, there are material differences between the criteria for assigning adjectival

ratings under Factors 3 and 4. Specifically, the adjectival rating assigned under Factor 3,

Problem Statement No. 3 is based in part upon a balance between the number of strengths and

weaknesses in a proposal. See AR Tab 5 at 391. To secure an “Outstanding” rating under Factor

3 the proposal’s strengths must “far outweigh any weaknesses.” Id. On the other hand, a “Good”

rating for Factor 4 is merited where the proposal indicates “a thorough approach and

understanding of the small business objectives,” while an “Outstanding” rating requires an

“exceptional approach and understanding.” Id. The balance between a proposal’s assigned

strengths and weaknesses is not mentioned. Id.

The other alleged inconsistency DVS identifies—involving the evaluation of Problem

Statement No. 4—is similarly illusory. See DVS MJAR at 26. DVS was assigned an overall

rating of “Marginal” for Problem Statement No. 4 where the agency assessed one strength, one

weakness, and one significant weakness. Awardee SuprTek also received a “Marginal” rating for

Problem Statement No. 4, where it was not assessed any strengths and was assigned two

significant weaknesses. Id.

These results are also consistent with the evaluation criteria and do not evince any

irrationality. The Solicitation expressly provides that a “Marginal” rating would be assigned

under this factor if, among other things, a proposal “has one or more weaknesses which are not

offset by strengths.” AR Tab 5 at 391. Both DVS’s proposal and that of SuprTek meet this

criterion.

In short, there is nothing in the Solicitation requiring that the same adjectival ratings be

assigned across the technical factors based on an accounting of the number of strengths and

weaknesses assigned under each factor. To the contrary, the evaluation criteria vary depending

on the technical factor being assessed. And the evaluators themselves are not the same.

Therefore, DVS’s protest alleging the irrational assignment of adjectival ratings must be rejected.

e. Price Reasonableness

DVS contends that the agency’s price reasonableness analysis was arbitrary and

capricious and violated the applicable provisions of the FAR. DVS MJAR at 27. The Court does

not agree.

“The purpose of a price reasonableness analysis is to prevent the Government from

paying too high a price for a contract.” See, e.g., Patriot Taxiway Indus. V. United States, 98

Fed. Cl. 575, 587 (2011) (citing Ceres Envtl. Servs. V. United States, 97 Fed. Cl. 277, 303 n.15

(2011)). FAR 15.404-1(b)(2) provides that agencies may “use various price analysis techniques”

to ascertain price reasonableness and sets forth a non-exhaustive list of such techniques. And the

6

GAO decisions are not binding on the Court but may be treated as persuasive authority in light

of GAO’s expertise in the bid protest arena. See Allied Tech. Grp., Inc. v. United States, 649

F.3d 1320, 1331 n.1 (Fed. Cir. 2011).

33

Solicitation provided that “[t]he Offeror’s price proposal (fully burdened fixed price labor rates)

will be evaluated, using one or more of the techniques defined in FAR 15.404, in order to

determine if it is reasonable and complete.” AR Tab 5 at 393.

Performing a comparison of all of the offerors’ proposed prices is one of the two

“preferred” techniques identified in the FAR. See FAR 15.404-1(b)(3). The regulation further

provides, moreover, that “[n]ormally, adequate price competition establishes a fair and

reasonable price.” FAR 15.404-1(b)(2)(i). It is undisputed that in this case, the agency performed

a comparison of the offerors’ prices to each other and also to the independent government

estimate, both of which are techniques described in the FAR.

DVS argues nonetheless that the agency’s price reasonableness analysis was not FAR-

compliant. DVS MJAR at 27–28. First, DVS contends, “the mere presence of competition and

the mere receipt of proposals does not per se establish reasonable prices.” Id. at 28. This is a

straw man. The agency did not base its reasonableness determination solely on the existence of

competition. Rather, as DVS itself acknowledges in its MJAR, the agency “conducted an in

depth price reasonableness evaluation.” Id. at 27.

As the administrative record reveals, the PEB “reviewed all prices for all of the offerors

for completeness and to ensure that all prices were calculated correctly.” AR Tab 65c at 4678

(CO’s memorandum for the record); see also AR Tab 51 (PEB report). Next, it evaluated each

proposal for unbalanced pricing. AR Tab 65c at 4678. The PEB then compared the total

proposed prices to each other and to the IGCE. Id. It identified the average total price of the

ninety-nine offerors ($193,870,790), the highest proposed total price ($381,206,594), the lowest

proposed total price ($99,924,321), and the median total price ($187,899,682). Id. It observed

that the total proposed prices of seventy-nine offerors were lower than the IGCE and twenty

were higher. Id.

The PEB also compared the individual labor rates against each other, using a 2.5 standard

deviation rate to identify a maximum rate for each of the ninety-six labor categories. Id. at 4679.

It provided the CO with a spreadsheet that identified the twenty offerors who proposed at least

one labor rate that exceeded the maximum. Id. It also identified the number of labor rates that

exceeded the maximum for each of the twenty offerors. Id.

The agency therefore did not rely upon the mere presence of competition to conduct its

analysis. It performed precisely the type of comparison of the proposals that the FAR

recommends as a preferred technique. Moreover, the agency did not “ignore[] the results” of its

own analysis or “ma[k]e awards to offerors that failed [its] price reasonableness test,” as DVS

claims. DVS MJAR at 27. To the contrary, the CO acknowledged that there was a “large

variance among the total proposed prices and the individual labor rates.” AR Tab 65c at 4679.

But the variance, he noted, “was not unanticipated” and, in his view, “did not cause a concern

that the government would pay an unreasonably high price.” Id. He explained that the

Solicitation had “introduced a great amount of risk of paying a high, but not unreasonable, price,

based upon the need to obtain a range of potentially innovative solutions.” Id. The PWS, he

further elucidated, “described the complex and unknown nature of the work that would be

executed for worldwide missions” as well as the difficulty of “fully anticipating how technical

requirements and individual programs will evolve over the life of the Contract vehicle.” Id.

34

Given these and other considerations set forth in his memorandum, the CO concluded

that the large variance between the highest and lowest total proposed prices and individual labor

rates did not, in and of themselves, establish that any particular prices were not reasonable or that

the highest priced proposals were unreasonably high. Id. He reiterated that the Solicitation

“included significant risk for any offeror,” explaining that “[o]fferors had to make business

decisions on how to strategize their pricing which led to the wide dispersion of prices, and the

Government accepted the potential risk of paying higher prices, but not unreasonable prices, for

higher quality solutions.” Id. at 4680. Further, “[w]ith the variety of requirements that can and

will be executed under the SETI, and the risk of complexities, unknowns, time, location, and

magnitude,” the Solicitation made clear “that non-cost factors, when combined, were

significantly more important than price for this contract and that it may have to pay more for and

was willing to pay more for higher technically rated proposals.” Id. He concluded that “the risk

of paying too much for requirements is low compared to the needs of the Government,

particularly given the mitigating factor that there will be competition to refine prices at the [task]

order level.” Id.

Finally, the CO noted that a number of offerors had proposed individual labor rates that

exceeded the maximum (based on the 2.5 standard deviations). Id. Nonetheless he concluded that

“if the SSA would be willing to pay those higher rates for higher technically rated offerors, the

SSA should have the option to do so,” and should document its reasoning in the SSDD “with the

rationale to include a risk analysis for paying higher prices for a higher rated proposal.” Id. at

4681.

Despite the CO’s extensive explanation of his conclusions, DVS argues that his

underlying rationale wrongly “confuses price reasonableness with a best value trade off.” DVS

MJAR at 29. It notes that “[p]rice reasonableness is not concerned with whether the government

may be willing to pay higher rates for higher technically-rated offerors—that is the concern of a

best value trade off.” Id. “Rather,” it says, “price reasonableness is concerned with whether the

prices proposed by the offeror are too high for the services proposed”; “in other words . . .

whether the prices exceed fair market rates or are otherwise unfair to the government.” Id. at 29–

30.

The Court finds this argument unpersuasive. The CO did not suggest that the test of price

reasonableness was how much the agency was willing to pay. To the contrary, after conducting

his in-depth analysis of the offerors’ prices relative to the IGCE and each other, he left room for

the agency to determine whether the prices proposed were reasonable in consideration of the

particular attributes of each offeror’s proposal. And in the end—while DVS attacks the agency’s

analysis—it is unable to identify a successful offeror whose price proposal was irrationally found

reasonable. At best, it notes that [***]. DVS MJAR at 28. But there were ninety-six different

labor categories for which rates had to be proposed and other offerors exceeded the maximum

labor rates in far more categories. See AR Tab 65c at 4679 (listing offerors who exceeded labor

rates in 122, 58, 57, 52, and 41 labor categories). 7 Further [***] received an “Outstanding” rating

for innovation, but its total price ([***]) was only slightly above the average total price

7

None of the offerors referenced in the parenthetical received contract awards.

35

($193,870,790) of the ninety-nine offerors who remained in the competition following the initial

cut. See AR Tab 65d at 5645.

Similarly, DVS complains that awardees [***], proposed prices that were “well over” the

IGCE of $221 million and, as a result, they “could not be reasonably considered to be fair and

reasonable.” DVS MJAR at 30. In its reply, DVS also cites the prices of RedTeam Engineering

and ValidaTek. DVS Reply at 3. But all of these offerors’ proposals ranged from $221 to $240

million which means that they were all less than ten percent above the IGCE. Id. Further, each of

these proposals received “Outstanding” ratings for Innovation. AR Tab 65 at 4659.6; AR Tab

65d at 5488. Therefore, DVS has not established that the agency acted irrationally when it found

that these offerors’ price proposals were not unreasonable.

In short, the agency conducted a reasonable price analysis in compliance with the FAR. It

compared the offerors’ total prices as well as their labor rates. The CO explained why—in light

of the particular characteristics of this procurement—the variations identified in the price

comparison did not, in and of themselves, create a risk that the government would pay too much

for the services. That is sufficient to establish that its price reasonableness analysis was neither

arbitrary and capricious, nor contrary to law. See Technatomy Corp. v. United States, 144 Fed.

Cl. 388, 390 (2019) (holding that “DISA conducted a meaningful price reasonableness analysis,

in compliance with 48 C.F.R. § 15.404-1(b)(2), by comparing the prices of offerors to each

other’s, to the average price, to the independent government cost estimate, and to the prices

under other contracts, and by explaining that variations were due to differing risk preferences

and technical approaches”); cf. Multimax, Inc., B-298249.6, at 8 (Comp. Gen. Oct. 24, 2006)

(finding price reasonableness analysis deficient where there was “no indication that the agency

ever reviewed the results of [its] formula to assure that the prices at the extreme end of the ranges

reflected reasonable pricing” but “rather . . . mechanistically applied the formula and accepted

the results without further analysis”).

f. The Agency’s Unbalanced Pricing Analysis

The Solicitation provided that the agency would review the offerors’ proposals for

unbalanced pricing, which “exists when, despite an acceptable total evaluated price, the price of

one or more contract line items is significantly over or understated.” FAR 15.404-1(g)(1). The

mere existence of mathematical imbalance in pricing does not necessarily require the rejection of

a proposal. See Munilla Constr. Mgmt., LLC v. United States, 130 Fed. Cl. 635, 652 (2017)

(citing Al Ghanim Combined Grp. V. United States, 56 Fed. Cl. 502, 515 n.17 (2003))

(distinguishing between mathematically and materially unbalanced proposals). Rather, where the

agency’s analysis indicates that unbalanced pricing exists, the CO must: 1) “[c]onsider the risks

to the Government associated with the unbalanced pricing in determining the competitive range

and in making the source selection decision”; and 2) “[c]onsider whether award of the contract

will result in paying unreasonably high prices for contract performance.” FAR 15.404-1(g)(2).

DVS contends that the agency’s unbalanced pricing analysis with respect to the proposals

of awardees Riverside Engineering Joint Venture and DHPC was arbitrary, capricious, and

contrary to law. DVS MJAR at 31. The Court disagrees.

36

For awardee DHPC, the PEB identified potentially unbalanced pricing within the Human

Factors Engineer labor category because the fully loaded rate for the Junior Engineer was higher

than the rate for the Senior Engineer. See AR Tab 51 at 3320–21. The PEB similarly identified

potential unbalanced pricing in Riverside’s proposal within the Systems Engineer labor category,

where the rate for the Senior Engineer was lower than the rates for both the Junior and Mid-

Level engineers. Id. at 3309.

But the CO found that these examples of unbalanced pricing did not create an

unacceptable level of risk. Id. at 3309, 3320–21. First, the CO expressed doubt as to whether

there was actually an imbalance between the fully loaded rates for Junior and Senior engineers

under Riverside’s proposal. Id. at 3309. He suggested that the apparent imbalance may have been

the result of certain accounting methods. Id. And in any event, he found, to the extent that the

discrepant labor rates in either Riverside or DHPC’s proposals represented unbalanced pricing,

they involved only one of ninety-six applicable individual labor categories and did not “render

the entire proposal unbalanced.” AR Tab 52a at 3386, 3387 (memorandum for the record on fair

and reasonable price). Further, the CO concluded that “the unbalanced pricing for one labor

category set would not pose an unacceptable performance risk, and is unlikely to result in the

Government paying an unreasonably high price.” Id. at 3387.

DVS asserts that “[o]verall, [the agency’s] assessment of risk, or lack thereof, with

respect to [DHPC] and Riverside’s unbalanced pricing was woefully inadequate.” DVS MJAR at

33. The Court disagrees. The agency acknowledged the instance of apparent unbalanced pricing

in the labor rates in each of the two proposals and found that these instances did not establish that

the proposals overall were unbalanced. It also explained why the imbalances did not create the

risks of poor performance or unreasonably high prices against which an unbalanced pricing

analysis guards. It found any risks presented acceptable because for each proposal there was an

imbalance in only one of ninety-six labor categories.

Further explanation was not required. DVS’s challenge based on unbalanced pricing

lacks merit.

g. The Agency’s Best Value Tradeoff Analysis and Source

Selection Decision

DVS next argues that the agency “failed to conduct a best-value tradeoff analysis as

required by the Solicitation.” DVS MJAR at 33. It contends that the agency did not

“meaningfully” consider price, but instead “mechanically made award to the offerors whose

proposals exhibited, in descending order, the best combination of adjectival ratings under the

non-price factors.” Id. at 34, 35. It similarly claims that the agency improperly placed “rigid

reliance [on] adjectival ratings, without any engagement with the relative merits behind those

ratings or any consideration of the price differences.” DVS Reply at 8. In particular, DVS argues,

its overall non-price technical ratings were not significantly different from those of several

awardees whose price proposals were higher.

DVS’s assertion that the agency did not engage in a reasonable best value tradeoff

process is not supported by the record. For example, DVS cites the proposal of awardee

Synaptek. DVS MJAR at 34. DVS’s total price was [***] than Synaptek’s. Id. And DVS

37

received the same adjectival ratings as Synaptek, except that Synaptek was assigned a “Good”

rating for Problem Statement No. 4, while DVS was assigned a “Marginal” rating. Id. DVS

argues that it was unreasonable for the agency to [***] for what DVS characterizes as a “modest

difference in technical ratings.” Id. DVS also objects to the agency’s decision to make awards to

three offerors that received “Neutral” past performance ratings, two of which it paid “substantial

price premium[s],” in one case more than $50 million, or thirty-one percent. Id. at 36. It contends

that “[p]aying this sort of premium for an entirely unproven contractor is irrational.” Id.

The Court rejects DVS’s reliance upon these examples as relevant comparators. The

technical rating for Synaptek’s proposal, for example, was materially better than DVS’s rating

because DVS received only a “Marginal” rating for Problem Statement No. 4, while Synaptek’s

rating of “Good” was two levels higher. And Synaptek’s [***], which does not strike the Court

as a facially irrational “premium” for the agency to decide to pay over the life of a ten-year

contract for a technically superior proposal. Id.

Nor does it agree with DVS’s related contention that the agency failed to provide an

adequate explanation for its tradeoff decisions. The record reflects that all of the awardees’ non-

price proposals were rated more highly than DVS’s proposal. In particular, the other offerors to

whom DVS compares itself received an “Outstanding” in Innovation, or, if they received the

lower “Good” rating, did not receive a “Marginal” rating in any other category as DVS did.

Indeed, the administrative record is replete with evidence that the agency engaged in a

process for making its best value tradeoff decisions that was reasonable and consistent with the

mandates of the Solicitation. The PEB thus vetted and flagged the proposals with the highest

total prices. AR Tab 65c at 4681. None of those proposals were selected for an award. The SSEB

reviewed the technical ratings assigned to all of the offerors, summarized them, and described

where each offeror ranked in terms of its overall price. See AR Tab 65d.

The record reflects that the SSAC and SSA analyzed and considered price but that they

prioritized the proposals’ technical ratings, especially Innovation, over price. This is consistent

with the Solicitation, which provided that “[w]hen combined all non-price factors are

significantly more important than price,” and which frequently referenced the importance of

innovation to meeting the government’s needs. AR Tab 5 at 395.

Finally, the Court concludes that the agency did not place excessive reliance upon

adjectival ratings in making its tradeoff decisions. To the contrary, consistent with the

requirements of FAR 15.308, the SSA’s decision was based on a comparative assessment of

proposals against all source selection criteria stated in the Solicitation. See AR Tab 65. The SSA

relied upon the reports and analyses prepared by the TEBs, the SSEB, and the SSAC and made

an independent judgment as to which offerors would receive an award. Id. at 4659.3, 4659.104.

The SSA did not rely exclusively on adjectival ratings to compare the proposals’ relative merits;

to the contrary, it appropriately used the ratings as guideposts but also considered the strengths

and weaknesses of each proposal. It generated thousands of pages of documentation that explains

why each of the ratings was assigned. See Wackenhut Servs., Inc. v. United States, 85 Fed. Cl.

273, 297 (2008) (citing Opti-Lite Optical, 1999 WL 152145, at *3 (Comp. Gen. 1999))

(“[A]djectival ratings and point scores are useful as guides to decision-making . . . but . . . must

38

be supported by documentation of the relative differences between the proposals, their strengths,

weaknesses and risks, and the basis and reasons for the . . . decision.”). 8

Indeed, the Court cannot imagine how the agency could have conducted the best value

tradeoff in this procurement, without relying on the adjectival ratings to guide the comparison of

the proposals. DVS’s challenge to the agency’s best value tradeoff process, like its other

disagreements with the agency’s discretionary judgments, is without merit.

C. Tenica (Case No. 19-1169)

The Agency’s Evaluation

Tenica timely submitted its proposal on April 4, 2017. AR Tab 161. The TEB assigned

the proposal eleven strengths, three weaknesses, and two significant weaknesses under Factor 1.

AR Tab 65d at 5685–89. For Past Performance, the PPEB found all of Tenica’s three references

“Recent.” Id. at 5690. Reference 2 was found “Somewhat Relevant,” but References 1 and 3

were both deemed “Not Relevant.” Id. The TEB assigned Tenica’s Problem Statement No. 3

three strengths and no weaknesses. Id. at 5691. Its Problem Statement No. 4 received two

strengths, one weakness, and one significant weakness. Id. at 5692.

Based on the evaluations, the TEBs assigned Tenica’s proposal a “Good” rating for

Factor 1, a “Neutral” rating for Factor 2, an “Outstanding” rating for Problem Statement No. 3, a

“Marginal” rating for Problem Statement No. 4, and an “Outstanding” rating for Factor 4. Id. at

5684. On review, the SSEB made one change, upgrading the rating for Problem Statement No. 4

from “Marginal” to “Acceptable.” Id. at 5696. With that change, the agency assigned Tenica’s

proposal the following overall ratings:

Factor 1 – Factor 2 – Past Factor 3 – PS3 Factor 3 – PS4 Factor 4–

Innovation Performance Rating Rating Small Business

Good Neutral Outstanding Acceptable Outstanding

AR Tab 65 at 4659.83 (SSA ratification of SSEB recommendation); AR Tab 65d at 5696.

Tenica’s evaluated price ranked [***]. AR Tab 65 at 4659.83.

The SSAC recommended the agency not award a contract to Tenica because its “proposal

was priced at the higher end of all of the Offerors” and “was not one of the highest technically

rated.” AR Tab 65e at 5858. The SSA considered “the benefits offered[,] the risks presented, and

8

The Court notes that at the end of its MJAR, DVS makes a catchall argument that its protest

should be sustained because the agency failed to document its evaluation, best value tradeoff,

and source selection decisions. DVS MJAR at 37–38. Because its argument relies upon alleged

examples of inadequate documentation already addressed (and rejected) earlier in this opinion,

the Court deems it unnecessary to separately address this catchall argument.

39

the prices proposed” by Tenica’s proposal and “agree[d] with the SSAC that th[e] proposal is not

amongst the most highly rated or the lowest priced and does not represent a best value to the

Government.” AR Tab 65 at 4659.86. Therefore, the SSA concluded, “it does not merit selection

for award.” Id.

Tenica’s Protest

Tenica challenges its ratings on Factors 1 and 2, and for Problem Statement No. 4. In

addition, it contends that the agency conducted an unreasonable price evaluation. For the reasons

set forth below, the Court concludes that none of these challenges provide a basis for sustaining

Tenica’s protest.

a. Factor 1 Evaluation

The agency assigned Tenica a “Good” rating for Factor 1 based on its determination that

the proposal contained eleven strengths, three weaknesses, and two significant weaknesses. AR

Tab 65 at 4659.83. Tenica claims that four of the weaknesses the agency assigned were based on

its alleged failure to provide certain information that its proposal did, in fact, contain. Tenica

MJAR at 22. It challenges the assignment of the fifth weakness as an example of disparate

treatment. Id. at 27. Tenica contends that if these weaknesses were removed it would be entitled

to an “Outstanding” rating under Factor 1. Tenica’s contentions lack merit.

Tenica first contends that the agency wrongly assigned it a weakness for failure to

provide required information about how its employees are rewarded for or incentivized to pursue

innovation. Tenica MJAR at 23 (quoting AR Tab 161 at 26093–94). It cites to portions of its

proposal which it alleges satisfied this requirement. But the portions of its proposal that it claims

refute the agency’s assessment appear in its Executive Summary, which is contained in Volume

I, not in Volume II, Tab C, which is the portion of the proposal that the Solicitation instructs

offerors to use to supply the information required for the Factor 1 evaluation. See AR Tab 5 at

369. The Solicitation further provides that “[i]nformation required for proposal evaluation which

is not found in its designated volume will be assumed to have been omitted from the proposal.”

Id. at 371.

In any event, it was not unreasonable for the agency to decide that neither the quoted

statements in the Executive Summary, nor the similar discussion contained in Volume II, Tab C,

AR Tab 161 at 26156–57, were responsive to the questions about how Tenica incentivizes or

rewards employees. The cited portions of the executive summary narrative for Reference 1, for

example, describe [***] but do not address what incentives or rewards were provided to the staff

for doing so. Id. at 26093. Similarly, the narrative for Reference 2 states that [***]. Id. at 26157.

But Tenica again supplies no description of incentives or rewards for the employees who came

up with the idea to do so. And finally, the language pertaining to Reference 3 states that [***].

Id. at 26094. It does not describe incentives or rewards for the employees—it merely [***]. See

id. (stating that [***]).

The agency also assessed a weakness based on Tenica’s failure to provide “adequate

methods for measuring the effectiveness of Innovation efforts.” AR Tab 65d at 5688. According

to Tenica, this topic is addressed in its proposal. Tenica MJAR at 23–24 (quoting AR Tab 161 at

40

26158–59). But the agency did not assess a weakness based on Tenica’s failure to address the

topic at all; it assessed a weakness because it concluded that the narrative did not set forth

methods for measuring the effectiveness of innovation efforts that were “adequate” to the task.

AR Tab 65d at 5688. It explained that “without a clear method” for measuring effectiveness,

Tenica would be “less likely to succeed in performing SETI tasks that require mature and

detailed measures to manage complex system development in future SETI task orders.” AR Tab

65d at 5688.

Tenica challenges the agency assessment of a third weakness based on its failure to

provide information about its employee retention rates. Tenica MJAR 24–25. It cites to the

Management Information portion of its proposal, which included a [***]. AR Tab 161 at 26125.

But this discussion does not appear in Volume II, Tab C and therefore was legitimately not

considered by the agency in rating the proposal under Factor 1. See id. Further, the assessed

weakness was based on both the failure to provide the retention rate and the failure to provide

information about how Tenica tracks employees’ education and training. AR Tab 65d at 5688.

Tenica’s MJAR does not address the latter issue.

The fourth weakness Tenica claims was wrongly assessed concerned its articulation of its

approach to risk and risk management. Tenica MJAR 25–26. It mischaracterizes the basis for the

agency’s assessment of a significant weakness regarding this issue. The agency did not assign a

significant weakness because Tenica “[f]ail[ed] to provide information as to what Tenica’s

approaches to risk management are.” See id. at 25. Rather, the agency found that the approach

was not “clearly articulate[d],” that it could not discern an “overarching risk governance policy”

based on the “minor examples” provided in the proposal, and that—although the proposal

contained a graphic entitled “Risk Reduction”—it did not provide an explanation of [***]. AR

Tab 65d at 5688. Tenica’s motion, which simply reproduces the narrative in its proposal, does

not address these concerns at all.

Tenica contends that it was improper for the agency to assess a weakness in its proposal

based on its failure to “provide information on when it failed at attempting to deliver

Innovation[ and] what it learned from that failure.” Tenica MJAR at 27. Tenica justifies not

addressing this point at all by asserting that it has “never failed at attempting to deliver

innovation.” Id. Of course, Tenica did not so state in its proposal. And it was not unreasonable

for the agency to conclude that Tenica simply failed to address the question posed, given the

improbability of its representation that it has never had an innovation failure. 9

9

According to Tenica, the Solicitation did not require offerors to expressly note the

inapplicability of the question. Tenica MJAR at 27. In fact, Tenica argues, the Solicitation

“expressly contemplates” that some offerors will not have any examples to provide. See id.

(citing AR Tab 44 at 1537). This argument is not supported by the language of the Solicitation

upon which Tenica relies. The Solicitation instructs offerors to “provide an example of when the

company failed at attempting to deliver Innovation and what they learned from that failure.” AR

Tab 5 at 377. It then asks “[w]hat, if any, consequences were there to the employee.” Id. The

phrase “if any,” refers to consequences to employees for failures to deliver innovation, it does

not refer to unsuccessful attempts to deliver innovation.

41

Finally, Tenica alleges that it was a victim of disparate treatment with respect to the

assignment of this weakness. Tenica MJAR at 27. It argues that several awardees who did not

discuss failed attempts at innovation in their proposals ([***]) were not assigned a weakness on

that basis. Id. For the reasons set forth above in discussing an essentially identical disparate

treatment claim made by DVS, the Court finds this contention without merit.

b. Past Performance Rating

The Solicitation provides that the “past performance evaluation factor assesses the degree

of confidence the Government has in an Offeror’s ability to supply solutions and services to meet

users’ needs, based on a demonstrated record of performance.” AR Tab 5 at 388 (Section M.2.3

Factor 2: Past Performance). The confidence determination would be based on an analysis of the

recency, relevancy, and quality of up to three past performance references for each offeror. Id.

Tenica received a “Neutral Confidence” rating because its “performance record is so

sparse that no meaningful confidence assessment rating can be reasonably assigned.” AR Tab

65d at 5690. The rating was based on the agency’s determination that two of Tenica’s three

references were “Not Relevant.” Id.

Tenica challenges its “Neutral” rating on several bases. Tenica Mot. for and Mem. in

Support of Pl.’s Request for J. on the Admin. R. (“Tenica MJAR”) at 14–19, ECF No. 71. First,

alleging disparate treatment, Tenica contends that several of the awardees “received the exact

same comments for their references as Tenica did, yet for unknown reasons these other proposers

received materially higher relevance ratings.” Id. at 15. Second, it argues that the agency’s

classification of two of its references as “Not Relevant” was “internally inconsistent, and

arbitrary on its face” because “the Agency also found these ‘non-relevant’ references to be both

very recent and of exceptional quality.” Id. at 15, 20. For the reasons set forth below, the Court

concludes that each of these arguments lacks merit.

i. Disparate treatment

As noted, the agency found two of Tenica’s past performance references not relevant.

Reference 1 was deemed not relevant because “[b]ased upon the narrative, detail as to the work

accomplished by [Tenica] could not be determined.” AR Tab 171 at 29383. The agency further

explained that Tenica’s narrative [***] and that “[t]here was little to no demonstration of the

scope and magnitude of effort and complexities this solicitation requires.” Id. And while the

proposal’s narrative stated that Tenica [***] the agency concluded that this description did not

“speak to the complexity involved or how the work is innovative.” Id. Further, the PPEB found

that “[t]he task areas [Tenica] cited were not substantiated in the narrative.” Id.

The agency also found Reference 3 “Not Relevant” because it concerned a “sunsetting

mission which [did] not cover any task areas” and “involved little or none of the scope and

magnitude of effort and complexities this solicitation requires.” Id. at 29389. Reference 2, on the

other hand, was rated “Somewhat Relevant” because while “[s]ome of the scope and complexity

anticipated on SETI is demonstrated,” the narrative did not speak to innovation “in any detail,”

and “[did] not state how or why it is innovative.” Id. at 29386.

42

Tenica alleges the PPEB evaluations of three other offerors that received contract awards

(Volant, Innovative Government Solutions, and Synaptek) contained the “the exact same

critiques [as those] underlying Tenica’s Factor 2 ‘Neutral Confidence’ scores.” Tenica MJAR at

16. The fact that these proposals received higher confidence ratings than Tenica’s, it argues,

reflects disparate treatment.

Tenica has failed to persuade the Court that the agency “unreasonably downgraded its

proposal for deficiencies that were ‘substantively indistinguishable’ or nearly identical from

those contained in other proposals.” Office Design Grp., 951 F.3d at 1372. At most, Tenica has

shown that the PPEB found that the agency employed some similar language in its evaluations of

the other offerors’ references and its evaluation of Tenica’s references. But beyond that, Tenica

ignores the material differences between the references revealed by the PPEB’s evaluation.

For example, Tenica observes that Volant’s proposal received a rating of “Substantial

Confidence” notwithstanding that the PPEB found that one of Volant’s references (like Tenica’s)

did not “clearly demonstrate the specifics of innovation” and did not “provide enough detail in

the description as to what the offeror actually performed.” Tenica MJAR at 16–17. But while the

agency observed that Volant did not “clearly demonstrate” how the work it had performed under

Reference 1 was innovative, it nonetheless found the reference relevant because it showed that

Volant “was able to use newer technology in a complex environment,” because “[m]any task

areas [were] addressed,” and because the “scope and magnitude of effort and complexities

required to develop, deploy and integrate” under the referenced contract “is similar to SETI.” AR

Tab 171 at 29457.

Similarly, the agency criticized Volant’s Reference 2 on the grounds that “[t]ask areas

[were] addressed broadly, but there is not enough detail in the description as to what the offeror

performed.” Id. at 29458. But Tenica again ignores that the agency also found that Volant’s

Reference 2 demonstrated a “[s]imilar scope and magnitude of effort and complexities [to the

SETI contract] . . . through the breadth of work that was required,” and that the reference

demonstrated at least “a minor innovation . . . through the development of a prototype that was

subsequently deployed in multiple environments which is similar to SETI.” Id.

Tenica’s effort to compare the evaluation of its past performance proposal to that of

Innovative Government Solutions (“IGS”) is similarly unavailing. Tenica finds it “curious,” that

IGS received a substantial confidence rating given what it calls the agency’s “admissions that the

references themselves demonstrated important areas in which the offeror could not demonstrate

relevance.” Tenica MJAR at 17. It observes that the agency “critiqued one of [Tenica’s]

references as only demonstrating innovative practices with limited detail, and critiqued another

reference as only speaking to a developed strategy for innovation but not to the actual

deployment of innovation.” Id.

But in selectively citing these critiques of IGS’s performance references, Tenica again

glosses over the aspects of the proposal that the agency relied upon to find them relevant. For

example, the agency deemed IGS’s Reference 1 “Somewhat Relevant” because it concluded that

[***]. AR Tab 171 at 28826. To be sure, the agency also critiqued the fact that [***]. Id.

Nonetheless, it also found that “[***] which involved some of the scope and magnitude of effort

and complexities this solicitation requires.” Id. Similarly, the agency found IGS’s Reference 2

43

“Relevant” notwithstanding that “[t]he narrative demonstrated innovative practices with limited

detail” because it “describe[d] the deployment of a [***] resulting in some improvements” and

“involved [a] similar . . . scope and magnitude of effort and complexities [as] this solicitation

requires.” Id. at 28827. And its Reference 3 was found “Very Relevant” because under the

referenced contract IGS had “[a]rchitected, engineered and developed a complex DoD enterprise

network which is nearly identical to the scope and complexity SETI is anticipated to require.” Id.

at 28830.

Finally, Tenica observes that Synaptek received a “Satisfactory Confidence” rating

despite the PPEB’s conclusion that “one of its references could not be evaluated due to non-

compliance and another of its references failed to demonstrate innovation.” Tenica MJAR at 17.

Tenica is correct that the agency declined to consider Reference 1 in Synaptek’s proposal. And

while it is also true that the agency concluded that Reference 2 did not demonstrate innovation,

the agency nonetheless found it “Somewhat Relevant” because the “[p]ast performance effort

involved some of the scope and magnitude of effort and complexities this solicitation requires.”

Id. at 29301. Syanptek’s “Satisfactory” confidence rating was therefore based on the fact that—

unlike Tenica—its third performance reference was deemed “Relevant.” Id. at 29304. That

determination was based on the agency’s conclusion that the reference “demonstrate[d] a project

of . . . complexity for a standard deployment across a joint environment and involved some

innovation through the automation of security” which “involved similar scope and magnitude of

effort and complexities SETI is anticipated to require.” Id.

In short, the performance references of Tenica and its proposed comparators are

materially different. In light of those differences, the agency’s evaluation of Tenica’s references

is not inconsistent with its evaluation of the references of the comparators. Tenica’s disparate

treatment argument therefore lacks merit.

ii. Internal inconsistency

In addition to disparate treatment, Tenica alleges that the agency’s classification of two of

its references as “Not Relevant” was “internally inconsistent, and arbitrary on its face” because

“the Agency also found these ‘non-relevant’ references to be both very recent and of exceptional

quality.” Tenica MJAR at 15, 20. Specifically, Tenica argues, if there was enough detail in the

references to establish that its performance was “Exceptional,” then there must have been enough

detail to show that they were also relevant.

The Court disagrees. The determination of relevance requires that the referenced “effort

involve[] similar scope and magnitude of effort and complexities th[e] solicitation requires.”

Gov’t MJAR at 72 (quoting AR Tab 5 at 389). The quality assessment, on the other hand,

focused upon whether “[c]ontractor performance . . . met . . . or exceeded [contractual

requirements] to the Government’s benefit,” based on the number of problems that occurred

during performance and the effectiveness of “corrective actions” taken by the contractor. AR

Tab 5 at 389. It is therefore entirely possible for the agency to conclude that a reference reflected

high quality work but that Tenica had failed to supply sufficient detail to establish that the work

performed was of a scope, magnitude, and complexity comparable to the work required to

perform on the SETI contract. And to the extent that Tenica challenges the agency’s conclusions

that it provided insufficient information to establish the relevance of References 1 and 3, the

44

Court notes that it was up to the agency’s subject-matter experts to assess whether the detail

provided established the relevance of the references. Tenica’s mere disagreement with that

assessment does not provide grounds for setting it aside.

Tenica’s claims regarding the propriety of the agency’s characterization of Reference 3 as

“Not Relevant” based on the fact that the project involved a sunsetting mission is equally without

merit. Tenica MJAR at 20 (quoting AR Tab 46 at 2560). The Court agrees with Tenica that

“neither the Solicitation nor the Acquisition Plan contain any prohibition against references

involving ‘sun-setting’ projects.’” Tenica MJAR at 20. But the agency did not find the reference

“Not Relevant” because it involved a sunsetting mission; it stated that the reference was not

relevant because it did not cover the task areas identified in the Solicitation and it was not

comparable to the SETI contract in terms of its scope, magnitude, or complexity of effort. AR

Tab 171 at 29389. Accordingly, the Court rejects Tenica’s contention that the agency’s relevancy

determinations were arbitrary and capricious or internally inconsistent.

c. Problem Statement No. 4 Evaluation

The agency assigned Tenica two strengths, one weakness, and one significant weakness

under Problem Statement No. 4. AR Tab 65d at 5692. The weakness assigned was based on the

agency’s conclusion that Tenica did not “adequately address [its] assumptions and techniques to

be used in completing this effort, including those related to the various disciplines involved.” See

id. The significant weakness assigned was based on the agency’s conclusions that Tenica’s

proposal “discusses the views [it] will use but not why [it] would use those views” and that “[a]

quality architecture requires not only specific views but also a purpose for those views in order

for them to provide useful information for decision makers.” Id.

Tenica argues that these determinations were arbitrary and that it should have received an

“Outstanding” rather than merely an “Acceptable” rating for Problem Statement No. 4. Tenica

MJAR at 28–29. First, according to Tenica, the agency’s criticism of its failure to “adequately

address assumptions and techniques” was unjustified because its narrative identified at least three

of the assumptions underlying its response to the problem statement. AR Tab 65d at 5692; see id.

at 28. It also notes that “the Solicitation did not require offerors to separately identify or break

out any particular assumptions used in responding to Problem Statement No. 4, and merely

required offerors to address the assumptions – which TENICA did.” Tenica MJAR at 28.

Tenica’s observations do not establish that the agency’s assessment lacked a rational

basis. The agency found Tenica’s handling of Problem Statement No. 4 flawed because it found

that Tenica’s treatment of both its assumptions and techniques was inadequate. AR Tab 65d

at 5692. Even assuming Tenica identified three assumptions in its response, that does not speak

to the question of whether it “adequately address[ed]” its assumptions. Id. And in any event, this

Court is in no position to substitute its opinion for that of the agency’s experts in deciding the

sufficiency of Tenica’s response to a hypothetical problem in a highly technical area.

Tenica’s challenge to the agency’s assignment of a significant weakness with respect to

Problem Statement No. 4 is similarly unpersuasive. Tenica observes that it “provided a chart

within its proposal that fully demonstrated [***].” Tenica MJAR at 28. But directing the Court to

a chart that Tenica believes the agency experts should have found sufficient to address their

45

technical concerns does not supply the Court with a basis for finding the agency’s contrary

determination irrational. Instead, it reflects only Tenica’s disagreement with the agency’s

judgment call. Therefore, Tenica’s challenge to the assignment of weaknesses under Problem

Statement No. 4 is unavailing.

d. Price Evaluation

Tenica challenges the agency’s price reasonableness analysis on grounds similar to those

pressed by DVS. The Court finds those arguments unpersuasive for the reasons set forth above

with respect to DVS’s protest.

Moreover, and in any event, Tenica has failed to show that—but for the alleged

infirmities in the price reasonableness analysis—it would have had a substantial chance of

receiving one of the awards. In fact, Tenica’s price itself was in the high range among all

offerors. It was also higher than the prices of twenty-four of the thirty most highly rated

proposals (which did not include Tenica’s). See AR Tab 65 at 4659.86 (SSA memorandum

noting that Tenica’s “proposal was priced at the higher end of all of the Offerors”); AR Tab 54 at

3432–33 (source selection document listing the thirty highest rated offerors and their proposed

prices).

Tenica’s prejudice argument itself is not based on its claim that the agency’s price

reasonableness analysis was flawed. Instead, it contends that the agency did not determine

“whether the lower-priced offerors could achieve the promised technical solutions for the offered

prices,” and that it was prejudiced by that alleged error because the five awardees who received

only a “Good” rating for Factor 1 [***]. Tenica MJAR at 31. But the error with which Tenica

charges the agency does not concern price reasonableness; it concerns price realism. See Agile

Def., Inc. v. United States, No. 19-1954, 2020 WL 2844705, at *3 (Fed. Cir. June 2, 2020)

(quoting First Enter. v. United States, 61 Fed. Cl. 109, 123 (2004)) (“[P]rice reasonableness

generally addresses whether a price is too high, whereas cost realism generally addresses

whether a cost estimate is too low.”); DMS All-Star Joint Venture v. United States, 90 Fed. Cl.

653, 657 n.5 (2010) (observing that “a price reasonableness analysis has the goal of preventing

the government from paying too much for contract work” while a price realism analysis

“investigates whether the contractor is proposing a price so low that performance of the contract

will be threatened”). Because the Solicitation did not require the agency to conduct a price

realism analysis, its failure to do so cannot serve as a basis for establishing prejudicial error. For

this reason as well, Tenica’s challenge to the agency’s price evaluation lacks merit.

D. Tapestry Technologies, Inc. (Case No. 19-1189)

1. The Agency’s Evaluation

Tapestry Technologies, Inc. (“Tapestry”) submitted its proposal on April 4, 2017. AR

Tab 159 at 25349 (Tapestry proposal). The TEBs assigned the proposal an “Acceptable” rating

for Factor 1, a “Satisfactory Confidence” rating for Factor 2, “Outstanding” ratings for both

problem statements under Factor 3, and an “Acceptable” rating for Factor 4. AR Tab 65d

at 5665.

46

On review, the SSEB upgraded Tapestry’s rating for Factor 2 from “Satisfactory

Confidence” to “Substantial Confidence.” Id. at 5669 (explaining that “[o]verall, the quality

ratings for the three references ranged from very good to exceptional”). On the other hand, it

downgraded the rating for Problem Statement No. 4 from “Outstanding” to “Good.” Id. at 5672

(citing AR Tab 5 at 391) (explaining that the two strengths the PSEB awarded indicated a

“thorough” but not “exceptional” approach and understanding of the problem’s requirements).

As a result, the SSEB assigned Tapestry the following ratings:

Factor 1 – Factor 2 – Past Factor 3 – PS3 Factor 3 – PS4 Factor 4–

Innovation Performance Rating Rating Small Business

Acceptable Substantial Outstanding Good Acceptable

AR Tab 65d at 5674. It proposed a price of [***]. Id.; AR Tab 63a at 4659.

The SSAC recommended against an award to Tapestry. It observed that while Tapestry’s

price was among the lowest, it “failed to achieve a rating of higher than ‘Acceptable’ in the most

important factor,” which was “the distinguishing difference between those recommended for

award and [Tapestry].” AR Tab 65e at 5868. The SSA agreed and, as a result, Tapestry was not

among the awardees. AR Tab 65 at 4659.94–.96.

2. Tapestry’s Protest

Tapestry poses multiple challenges to the agency’s evaluation of its proposal. These

include contentions that the agency arbitrarily assigned weaknesses to its proposal under

Factor 1, while also unreasonably failing to award strengths under both Factors 1 and 4. Tapestry

also alleges disparate treatment in the Agency’s assignment of strengths and weaknesses.

Tapestry challenges as arbitrary and capricious the SSEB’s decision to downgrade its rating for

Factor 3, Problem Statement No. 4 from “Outstanding” to “Good.” In addition, it contends that

the Agency’s best value tradeoff decision was flawed in several respects. Finally, Tapestry

challenges the agency’s price reasonableness analysis.

The majority of Tapestry’s arguments challenge the judgments of the agency’s experts

regarding the technical merits of its proposal or the proposals of its competitors. As the Court

emphasizes throughout its opinion, these are judgments to which it must defer so long as the

record reveals that they have a rational basis. The Court is similarly skeptical of Tapestry’s

disparate treatment arguments because Tapestry does not argue that its proposal is substantively

indistinguishable from the proposals of competitors that received more favorable ratings. Instead,

it argues that the proposals are “very similar.” For those reasons and the others set forth below,

the Court concludes that Tapestry’s protest lacks merit.

a. Factor 1 Evaluation

The IEB assigned Tapestry four strengths and four weaknesses under Factor 1. See AR

Tab 65d at 5666–68. As a result, Tapestry received an “Acceptable” rating. Id. at 5668. Its

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failure to earn at least a “Good” rating under Factor 1 ultimately played a critical role in the

agency’s decision not to award it a contract. See AR Tab 65 at 4659.97.

Tapestry contends that the weaknesses the agency assigned “were inconsistent with the

terms of the Solicitation or otherwise unreasonable,” and that “[i]n assigning many of these

weaknesses, DISA ignore[d] relevant elements of Tapestry’s proposal.” Pl.’s Mot. for J. on the

Admin. R. (“Tapestry MJAR”) at 7, ECF No. 80. Tapestry also contends that the agency

unreasonably failed to assign certain strengths to the proposal under Factor 1. Id. at 11–14.

Finally, it contends that the agency engaged in disparate treatment with respect to its evaluation

of certain features of Tapestry’s proposal under Factor 1. Id. at 18–26 The Court addresses each

of these arguments below.

i. Assignment of weaknesses based on lack of detail

regarding tracking and measurement of ROI

Under the Corporate Philosophy/Culture on Innovation category of Factor 1, the

Solicitation instructed offerors to describe their approach to risk and explain “the company’s

process for selecting innovation projects.” AR Tab 5 at 377. The agency assigned a weakness to

Tapestry’s proposal related to these requirements. AR Tab 65d at 5667. Specifically, the agency

pointed out that in section 2.3 of Tapestry’s proposal (which is entitled “Approach to Innovation

Risk”) Tapestry had referenced “a project selection process outlined in Section 2.5 on page 6.”

Id.; see also AR Tab 159 at 25475. But it noted, however, that “there is no such process detailed

on page 6, anywhere in section 2.5, or anywhere else in the proposal.” Id. In addition, the agency

observed, the proposal stated (again at section 2.3, AR Tab 159 at 25475) that Tapestry “[***]

described on page 8 in Section 2.6,” AR Tab 65d at 5667. Nonetheless the agency concluded that

“the process outlined [in section 2.6] is extremely limited in detail and does not specify how

[Tapestry] [***].” Id. According to the agency, Tapestry’s “inability to showcase and/or detail

how [it] [***].” Id.

Tapestry argues that “[i]n assigning this weakness, DISA relies on an incorrect section of

Tapestry’s proposal and ignores information in another section [i.e., 2.6] that directly addresses

the concerns.” Tapestry MJAR at 7. While the Court agrees that the explanation the agency

provided for assigning this weakness is not a model of clarity—it rejects Tapestry’s argument

that the agency’s concern was that the proposal contained no selection process at all. See id. at 8.

Instead, the Court understands that the agency assigned the weakness because it concluded that

Tapestry’s proposal at section 2.6 (which is entitled “Process For Selecting Innovation Projects”)

did not contain sufficient detail about how Tapestry [***]. And the agency found this flaw

significant because section 2.3 (which deals with approach to innovation risk) cross references

section 2.6, stating that it “[***] using methods described in Section 2.6 . . . to ensure we are

working on the right things and producing optimal results.” AR Tab 159 at 25475.

Tapestry also contends that the agency ignored section 2.3 of its proposal, entitled

“Approach to Innovation Risk,” in assigning this weakness. Tapestry MJAR at 8. It observes that

“Section 2.3 specifically discusses [***].’” Id. (quoting AR Tab 159 at 25475). But this passing

reference to [***] does not address the flaw the agency identified, which is that the proposal did

not provide details regarding how Tapestry tracks and measures ROI.

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Tapestry further argues that the assignment of the weakness regarding [***] is

inconsistent with the agency’s decision to give Tapestry’s proposal “two separate strengths for

its [***].” Id. (citing AR Tab 65d at 5670). But the two strengths Tapestry references were

assigned by a different TEB, and concerned its response to Problem Statement No. 3, which is

evaluated under Factor 3. The assignment of strengths based on its responses under Factor 3 does

not call into question the rationality of the agency’s conclusion that Tapestry’s Factor 1 proposal

contained insufficient detail about how it [***].

Finally, in its reply, Tapestry alleges that the agency “held [it] to an unreasonably high

standard with [***]” as compared to proposals submitted by Synergy and Synaptek. Tapestry

Resp. in Opp’n to Def.’s Cross-Mot. for J. Upon the Admin. R. & Reply to Def.’s Resp. to Pl.’s

Mot. for J. Upon the Admin. R. (“Tapestry Reply”) at 3–4, ECF No. 131. The Court declines to

consider these disparate treatment arguments because they were made for the first time in

Tapestry’s reply. See SmithKline Beecham Corp. v. Apotex Corp., 439 F.3d 1312, 1319 (Fed.

Cir. 2006) (“Our law is well established that arguments not raised in the opening brief are

waived.”). And in any event, Tapestry’s disparate treatment claims lack merit because the

proposals to which it compares its own contained materially different features. 10

ii. Assignment of weakness regarding innovation

project tracking

Tapestry challenges the agency assignment of a weakness based on its response to the

Solicitation’s requirement under Factor 1 that it explain how it assesses, measures, and tracks

innovation, as well as its “methods for measuring the effectiveness of Innovation efforts.” See

AR Tab 5 at 377; AR Tab 65d at 5667. In assessing this weakness, the agency acknowledged

that Tapestry’s proposal included a so-called [***]. AR Tab 65d at 5667. But the agency found

Tapestry’s response inadequate because it concluded that the proposal consisted largely of

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