# Technology Innovation Alliance LLC v. United States

> United States Court of Federal Claims · June 25, 2020

URL: https://www.frixlaw.com/law-library/cases/4544210

## Case

- **Court:** United States Court of Federal Claims
- **Decided:** June 25, 2020
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Elaine D. Kaplan
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4544210

## How later opinions describe it (automated extraction)

- observing that “some [past performance] information is simply too close at hand to require offerors to shoulder the inequities that spring from an agency’s failure to obtain and consider the information”
- 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”

## Opinion text

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.

3
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

6
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.

7
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:

9
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

11
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.

12
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:

13
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.

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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.

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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 imprope

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4544210. Public record. Not legal advice.