Bluewater Management Group, LLC v. United States

In the United States Court of Federal Claims

No. 20-1160C

(Filed Under Seal: October 29, 2020)

(Reissued for Publication: November 16, 2020) *

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

BLUEWATER MANAGEMENT GROUP, *

LLC, * Postaward Bid Protest; Lodging

* Management Services; Tiered Set-Aside;

Plaintiff, * Motion to Dismiss; Standing; Cross-

* Motions for Judgment on the Administrative

v. * Record; Discussions; Evaluation of

* Technical Approach and Performance Risk;

THE UNITED STATES, * Compliance With Solicitation’s Evaluation

* Scheme; Permanent Injunction

Defendant. *

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

Daniel J. Strouse, Arlington, VA, for plaintiff.

Christopher L. Harlow, United States Department of Justice, Washington, DC, for defendant.

OPINION AND ORDER

SWEENEY, Senior Judge

In this postaward bid protest, plaintiff Bluewater Management Group, LLC

(“Bluewater”) challenges the award of a lodging management services contract by the United

States Department of Veterans Affairs (“VA”) to Brian Hall Properties (“Brian Hall”).

Specifically, Bluewater alleges that the VA improperly engaged in discussions with Brian Hall

and erred in its evaluation of Brian Hall’s revised proposal. Before the court are defendant’s

motion to dismiss the protest for lack of standing and the parties’ cross-motions for judgment on

the administrative record. As explained below, the court denies defendant’s motions, grants

Bluewater’s motion, and enters a permanent injunction.

I. BACKGROUND

A. The Solicitation

On April 16, 2020, the VA issued a solicitation to procure lodging management services

to provide overflow lodging for students at the VA Law Enforcement Training Center (“LETC”)

*

This reissued Opinion and Order incorporates the agreed-to redactions proposed by the

parties on November 6, 2020. The redactions are indicated with bracketed ellipses (“[. . .]”).

in North Little Rock, Arkansas. Administrative R. (“AR”) 110, 116. The VA specified that it

intended to award a firm-fixed-price contract for one base year and one option year. Id. at 110,

115, 117. The contract was set aside for a service-disabled veteran-owned small business

(“SDVOSB”), veteran-owned small business (“VOSB”), or a small business. Id. at 110, 128-33.

Pursuant to the solicitation’s Performance Work Statement, the contractor was required to

provide daily lodging “for up to 300 students within a 7-mile radius” of the LETC. 1 Id. at 116;

accord id. at 188 (reiterating that the LETC could have “as many as 300 people at one time that

would require lodging” and emphasizing “that the 7-mile radius applies”). However, the radius

could be extended to twelve miles with the approval of the contracting officer’s representative.

Id. at 117; accord id. at 191 (“The radius for this requirement is 7 miles. The 12-mile radius is

an administrative allowance during performance to permit temporarily providing lodging in

special circumstances. All offers should include only hotels within a 7-mile radius.”). The

contractor was to use, “to the greatest extent possible,” a single lodging facility that was

“deemed to be the primary lodging facility,” with any secondary lodging facilities to “be within

the general proximity of the primary facility.” Id. at 118; accord id. at 186, 188. In addition, all

proposed lodging facilities were to meet a variety of requirements related to room quality,

amenities, cleanliness, safety and security, and parking. Id. at 119-20. With respect to the

“safety and security” requirement, “[l]odging providers” were to “demonstrate policy and

procedure implemented to provide for the physical safety and security of [their] patrons, i.e.[,]

security guards, video surveillance and well-lit parking.” Id. at 120. With respect to amenities,

“[t]he Contractor [was to] ensure all of the following [were] provided: Single Occupancy,”

“Telephone Services for Local Calls,” “Iron & Ironing Board,” “Television W/ Remote,”

“Coffee Pot,” “Microwave,” “Refrigerator,” “Daily Housekeeping Service,” “Laundry Facility

on Premises,” “Complimentary Internet Access,” “Complimentary Parking,” “Complimentary

Hot Breakfast (Preferred),” and “On Dining Facility (Preferred).” Id. at 119. Finally, offerors

would be responsible for reserving the rooms and providing the VA with reports regarding the

number of rooms used, which students had checked in, and early check-outs. Id. at 118.

Offerors were required to submit their proposals in four volumes: (1) Technical

Approach; (2) Performance Risk; (3) Price; and (4) SF1449, Certifications, and Amendments.

Id. at 152-55. The Technical Approach volume was to include an explanation of how the

lodging requirements set forth in the Performance Work Statement would be satisfied, how the

offeror would manage its reservation and reporting responsibilities, rating information for each

proposed lodging facility, and signed letters of commitment from a representative of each

proposed lodging facility indicating the number of rooms being committed. Id. at 153; see also

id. (noting “that facilities proposed by the vendor shall meet the criteria for all areas shown on

the technical checklist”). The Performance Risk volume was to include the identity “of up to

three contracts for which performance occurred during the five years immediately prior to the

proposal submission date” that were “similar to the services of this requirement (size, scope,

complexity)” and, for each identified contract, “a narrative explanation describing the scope and

purpose of the contract and detailing how the effort is relevant to the requirements of this

solicitation.” Id. at 154. And the Price volume was to include a completed Pricing Schedule, id.

1

The VA did not specify whether the radius was measured as the crow flies or by

driving distance.

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at 155, specifying a daily room price for the base year and the option year, as well as the price

for each year based on 35,000 room nights, id. at 115; see also id. at 117 (indicating that the

daily room price should “cover the cost of the actual lodging and the lodging management

service fee”).

The VA advised potential offerors that it would evaluate proposals using a tiered

approach starting with proposals from SDVOSBs (Tier 1), followed by proposals from VOSBs

(Tier 2), and proposals from small businesses (Tier 3), with HUBZone small businesses and

socially and economically disadvantaged small businesses given priority. Id. at 150, 156-57.

After excluding proposals from offerors who were not properly certified as an SDVOSB, VOSB,

or small business, the VA planned to evaluate “all remaining proposals for Technical Capability

using a tiered approach based on an order of priority as established in 38 U.S.C. [§] 8127.” Id. at

156; see also 38 U.S.C. § 8127(h) (providing that “[p]references for awarding contracts to small

business concerns shall be applied in the following order of priority:” (1) “small business

concerns owned and controlled by veterans with service-connected disabilities”; (2) “small

business concerns owned and controlled by veterans” without service-connected disabilities; (3)

small business concerns pursuant to sections 8(a) and 31 of the Small Business Act; 2 and (4)

small business concerns “pursuant to any other small business contracting preference”).

Specifically:

I. Tier 1 proposals will be evaluated first. After review of Tier 1 proposals, if

award can be made at a fair and reasonable price that offers best value to the

United States, no additional tiers will be reviewed. If no offers are submitted at

Tier 1 or if none of the Tier 1 proposals would result in award at a fair and

reasonable price that offers best value to the United States, the Government will

evaluate Tier 2 proposals for award.

II. After review of Tier 2 proposals (if needed), if award can be made at a fair and

reasonable price that offers best value to the United States, no additional tiers will

be reviewed. If no offers are submitted at Tier 2 or if none of the Tier 2 proposals

would result in award at a fair and reasonable price that offers best value to the

United States, the Government will evaluate Tier 3 proposals for award.

III. If no offers are submitted at Tier 3 or if none of the Tier 3 proposals would

result in award at a fair and reasonable price that offers best value to the United

States, solicitation will be cancelled, and the requirement resolicited.

Each tier represents a distinct set-aside and will be evaluated in isolation.

2

Section 8(a) of the Small Business Act authorizes a program for socially and

economically disadvantaged small businesses. See Act of Oct. 24, 1978, Pub. L. No. 95-507,

§ 202(a), 92 Stat. 1757, 1761-63 (codified as amended at 15 U.S.C. § 637(a)). Section 31 of the

Small Business Act authorizes the HUBZone program. See HUBZone Act of 1997, Pub. L. No.

105-135, tit. VI, § 602(b), 111 Stat. 2592, 2629-31 (codified as amended at 15 U.S.C. § 657a).

-3-

If only one proposal is received and evaluated in a tier, the Contracting Officer

may award to that offeror if the proposal meets the requirements of the

solicitation and the proposed price is fair and reasonable . . . . If the proposal does

not meet the requirements of the solicitation and the proposed price is not fair and

reasonable . . . , the [Contracting Officer] will evaluate proposals received at the

next tier.

AR 156-57.

With respect to the review of proposals within this tiered approach, the VA stated that it

would evaluate proposals “strictly in accordance with their written content.” Id. at 157; accord

id. at 150-51 (“Contents of the written proposals will be evaluated to determine the degree and

extent to which the requirements set forth in the [solicitation] are satisfied.”). It cautioned that

“[p]roposals which merely restate the requirement or state that the requirement will be met,

without providing supporting rationale, are not sufficient and will be rated Unsatisfactory and

thus, ineligible for award,” id. at 157, and that a “[f]ailure to fully meet a material requirement

will render a quotation [sic] unacceptable, thus ineligible for award,” 3 id. at 151.

Turning to the criteria to be used in evaluating proposals, the VA advised potential

offerors that “[f]or each offer[] received,” it would “evaluate Technical Approach, Performance

Risk, and Price.” Id. at 150. For the Technical Approach factor, the VA would evaluate

the extent to which [the offeror] meets or exceeds the lodging requirement

including:

a. (Understanding of the requirement)

How the offeror will satisfy the lodging requirements, including:

• Hotel(s) proposed,

• AAA Diamond level, star level, etc.,

• hotel amenities,

• distance from the LETC

How the offeror will manage the administration/reporting process.

b. (Feasibility of Approach)

Can the Vendor deliver on its offer? (Have the hotels proposed signed

letters of commitment including language confirming the number of

3

The VA, presumably inadvertently, used the terms “quotation” and “quote” on several

pages of the solicitation, see, e.g., AR 151-52, 155, 157, but there is no question that it conducted

a negotiated procurement pursuant to Federal Acquisition Regulation (“FAR”) part 15, see id. at

150.

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required rooms will be made available to the offeror should it receive an

award?)

Id. at 157. The VA further indicated that it might “conduct site visits of any location proposed

for lodging to determine [the] degree to which lodging requirements can be met.” Id. For the

Performance Risk factor, the VA would evaluate an offeror’s experience (“the skill and

knowledge gained by performing services”) and past performance (“the degree to which [the]

contractor satisfied its customers in the past and complied with Federal, State, and local laws and

regulations”) based on “performance examples” supplied by the offeror that were timely

(“performed within the last five years”) and relevant (“similar in size, scope, and/or

complexity”). Id. at 158. It also “reserve[d] the right to evaluate any other information available

to it through the [Past Performance Questionnaires] or other available resources.” Id. And, the

VA would evaluate price “using competition, historical pricing, comparison to the Government’s

independent cost estimate, or through other permissible methods to determine reasonableness.”

Id. at 159; see also id. at 1 (reflecting that the independent government cost estimate was [. . .]

for the base year and [. . .] for the option year, for a total of [. . .]). In evaluating proposals, the

VA reserved the right to conduct discussions with offerors if it determined that discussions were

“necessary.” Id. at 148 (setting forth FAR 52.212-1, which provides: “The Government intends

to evaluate offers and award a contract without discussions with offerors. . . . However, the

Government reserves the right to conduct discussions if later determined by the Contracting

Officer to be necessary.”).

To select the contract awardee, the VA would use a “best value, trade-off approach,” id.

at 150-51, in which it would consider the Technical Approach and Performance Risk factors to

be “equally important” and, when combined, “more important than Price,” id. at 150.

Ultimately, the contract would be awarded “based on the best overall proposal that is determined

to be the most beneficial to the Government (i.e., best value).” Id.; accord id. at 163 (“The

Government will award a contract resulting from this solicitation to the responsible offeror

whose offer conforming to the solicitation will be most advantageous to the Government, price

and other factors considered.”).

B. The Proposals

Proposals were due by April 28, 2020. Id. at 183. By that deadline, the VA received

proposals from three SDVOSBs, including Brian Hall; one VOSB; and ten small businesses,

including a potential HUBZone small business and Bluewater. 4 Id. at 206-837; accord id. at 878;

see also id. at 5, 191 (indicating that Bluewater was the incumbent contractor).

4

The only indications in the administrative record that one Tier 3 offeror is a HUBZone

small business are the contents of the company’s e-mail signature and letterhead, AR 632-34,

636; no documentation regarding the company’s status as a HUBZone small business was

included in its proposal, id. at 633-38. In the absence of any evidence to the contrary, the court

presumes that the company’s representations are accurate. However, if they are not accurate,

Bluewater would not be prejudiced because, as set forth below, the apparent HUBZone small

business offeror’s proposal was materially noncompliant with the solicitation’s requirements and

therefore does not affect Bluewater’s chance to be awarded the contract.

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Brian Hall, in its Technical Approach volume, stated that it “worked diligently to exceed

the basic requirements of the” solicitation. Id. at 207. It then identified nine primary hotels,

representing that all were “within a 7-mile radius” of the LETC, giving it “access to

approximately 400 rooms.” Id. It also represented that it had agreements with a number of

secondary hotels that were “within 7-12 miles” of the LETC. Id. at 207, 209; see also id. at 258

(identifying, in the Price volume, twenty hotels, their addresses, and a number labeled “miles”

that ranged from “1.30” to “12.70” 5). It provided commitment letters from twenty hotels (with

six of the letters not indicating the number of rooms being committed and no letter at all from

one of the identified primary hotels), 6 id. at 210-48, but did not describe any of the hotels’

amenities or provide any of the hotels’ ratings, id. at 207-09. In its Performance Risk volume,

Brian Hall stated that it was “the #1 lodging provider for the Department of Homeland Security,”

that “[t]here are over 35 hotels that have trusted [it] to represent their lodging in Glynco, GA,

home to the Federal Law Enforcement Training Center [(“DHS FLETC”)],” and that it

“distributes more law enforcement lodging than [any] entity in the world.” Id. at 250. It then

identified four contracts to provide lodging for the DHS FLETC; for each contract, it indicated

that the contract had a dollar amount of “$3,000,000+” and was performed by “5,000” personnel,

and generically remarked:

In the past three years, Brian Hall Properties has represented over 100 lodging

contracts, and several million dollars in awards. Some entities we have

represented include the Army, Navy, Air Force, FEMA, FLETC, USMS, TSA,

ICE, ARNG, and many others. Brian Hall Properties is the #1 lodging provider

for the Department of Homeland Security. Our company has the wherewithal,

past performance, financial backing, and references to support your lodging

needs.

Id. at 254-57. Finally, in its Price volume, Brian Hall proposed a daily room rate of [. . .], a price

for the base year of [. . .], a price for the option year of [. . .], and a total price of [. . .]. Id. at 258.

The VOSB offeror, in its Technical Approach volume, identified one primary hotel and

one secondary hotel, and provided a commitment letter from the hotels’ management company.

Id. at 437-42, 449. However, the VOSB offeror did not indicate that the hotels could provide

300 rooms per day. See id. at 434-43 (reflecting only that the secondary hotel had [. . .] rooms),

449 (providing that the two hotels “would agree to provide rooms at each hotel in support of the

LETC student lodging needs as per the agreed terms,” but failing to identify the number of

rooms that the hotels committed to providing). In its Performance Risk volume, the VOSB

offeror identified three contracts but did not provide any narrative descriptions for those

5

It is unclear what the “miles” number actually represents. For example, based on a

search using Google Maps, the hotel designated as “12.70 miles” is within a 7-mile radius of the

LETC as the crow flies and, depending on the route, is within an 8.3-to-8.9-mile driving distance

of the LETC.

6

Brian Hall identified the [. . .] in North Little Rock as a primary hotel, AR 207, but

provided a commitment letter from the [. . .] in North Little Rock, id. at 220.

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contracts, instead including information regarding the contracts in three tables. Id. at 445. In its

Price volume, the VOSB offeror proposed separate daily room rates for each hotel, with a price

of [. . .] for the base year, a price of [. . .] for the option year, and a total price of [. . .]. Id. at 446.

The HUBZone small business offeror did not submit a multiple-volume proposal, but

instead submitted two three-page proposals. Id. at 631-38. In one, it identified a single hotel,

described some of the hotel’s amenities, and proposed a daily room rate, id. at 636-38, and in the

other, it identified a group of four hotels, described some of the hotels’ amenities, and proposed a

daily room rate, id. at 633-35. In neither proposal did the HUBZone small business offeror

indicate the number of rooms available at the hotels, include commitment letters, discuss its

management of the reservation and reporting processes, set forth any information regarding its

past performance or experience, or provide a signed Standard Form 1449 (“SF 1449”). Id. at

631-35.

Bluewater, in its Technical Approach volume, identified one primary hotel that could

provide 150 rooms and one other hotel that could also provide 150 rooms, both of which were

within a seven-mile radius of the LETC. Id. at 487. It indicated the ratings for both hotels;

described how the hotels satisfied the room quality, amenity, cleanliness, safety and security, and

parking requirements; and provided commitment letters from the hotels. Id. at 487-92. It also

described how it would manage the reservation and reporting processes. Id. at 486-87. In its

Performance Risk volume, Bluewater provided detailed information regarding three contracts

that it had performed during the past five years with initial awarded values in the $3.9 to $18.9

million range. Id. at 494-505. Finally, in its Price volume, Bluewater proposed a daily room rate

of [. . .] for the base year, a daily room rate of [. . .] for the option year, a price for the base year

of [. . .], a price for the option year of [. . .], and a total price of [. . .]. Id. at 507.

C. Evaluation of Proposals

As set forth in the solicitation, the VA began the evaluation process by reviewing the

proposals submitted by SDVOSBs (Tier 1). It determined that two of the three Tier 1 proposals

were “non-responsive” to the requirements of the solicitation. Id. at 871-77. One of the

proposals did not (1) “address how the contractor will manage the administration” of the

contract, (2) “identify standard quality measures (AAA Diamond rating, 1-5 Star Ratings, etc.[)]

along with where the rating information was obtained (website, authority, etc.),” (3) “contain

letters of commitment,” or (4) timely submit a signed SF 1449. Id. at 871-72. In the other

proposal, the offeror proposed lodging for “thirty (30) pre approved patients per night,” rather

than 300 LETC students per night. Id. at 876. The VA therefore determined that each proposal

“represent[ed] an unacceptable response,” id. at 871, 876, and eliminated the proposals from the

competition, id. at 878-79.

The VA more fully evaluated the proposal submitted by Brian Hall. Id. at 850-70. It

noted on an Individual Technical Evaluation Form that “Technical Approach will be evaluated

against the following ratings”:

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Rating Definition

Excellent The proposed approach indicates an exceptional and

comprehensive understanding of the program goals, resources,

schedules, and other aspects essential to the performance of the

program. The proposal contains strengths that should

substantially benefit the program. There are no weaknesses or

deficiencies. The relative risk associated with the proposed

approach is very low.

Good The proposed approach indicates a thorough understanding of

the program goals and the methods, resources, schedules, and

other aspects essential to the performance of the program. The

proposal contains strengths that should benefit the program.

Weaknesses, if any, are offset by strengths. There are no

deficiencies. The relative risk associated with the proposed

approach is low.

Satisfactory The proposed approach indicates an adequate understanding of

the program goals and the methods, resources, schedules, and

other aspects essential to the performance of the program. The

proposal meets the minimum requirements of the solicitation;

strengths or weaknesses may not exist. Any weaknesses are

offset by strengths. There are no deficiencies. The relative risk

associated with the proposed approach is moderate.

Marginal The proposed approach indicates a superficial or vague

understanding of the program goals and the methods, resources,

schedules, and other aspects essential to the performance of the

program. Weaknesses exist which are not offset by strengths.

There are no deficiencies. The relative risk associated with the

proposed approach is substantial.

Unsatisfactory The proposed approach is insufficient and indicates a lack of

understanding of the program goals and the methods, resources,

schedules, and other aspects essential to the performance of the

program. Significant weaknesses and/or deficiencies exist. The

relative risk associated with the proposed approach is

unacceptable.

Id. at 850; see also id. at 25 (providing, in the VA’s Acquisition Plan, that “[t]o receive

consideration for award, a rating of no less than Satisfactory must be achieved in all technical

related factors and sub-factors as stated in the solicitation”). It further indicated that the

following definitions would be used to identify strengths, weaknesses, and deficiencies:

Strength Results in significant benefit to the Government;

potential for significant positive impact on quality of

products or services.

Weakness A flaw in the proposal that increases the risk of

unsuccessful contract performance.

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Significant Weakness A flaw in the proposal that appreciably increases the risk

of unsuccessful contract performance.

Deficiency/Deficient A material failure of the proposal to meet a Government

requirement or a combination of significant weaknesses

in a proposal that increases the risk of unsuccessful

contract performance to an unacceptable level.

Id. at 850.

Rather than having each member of the Evaluation Team complete an independent

evaluation, the Evaluation Team prepared a consensus evaluation of Brian Hall’s proposal. Id. at

851-65. In assessing Brian Hall’s “understanding of the requirement,” the Evaluation Team

addressed (1) “How the offeror will satisfy the lodging requirements,” (2) “Cleanliness,” (3)

“Safety and security,” and (4) “How the offeror will manage the administration/reporting

process.” Id. at 851-62. For the first criterion, the Evaluation Team examined four areas and

assigned adjectival ratings to each:

• Hotel(s) proposed, Marginal

. . . . The vendor did not identify a primary facility. The vendor identified 9

different hotels as primary.

....

The vendor did submit commitment letters for 21 [sic] different hotels. Of the

9 primary hotels that the vendor identified, 4 [sic] did not provide the quantity

of rooms committed per instructions in the solicitation. Furthermore, the

vendors that did provide the number of rooms committed could not support

the number of rooms that would be required for the VA LETC’s lodging

requirement. 7

• distance from the LETC- Marginal

7

There are two errors in this paragraph. First, Brian Hall submitted twenty, not twenty-

one, commitment letters. See AR 210-48. Second, five of the primary hotels did not identify the

number of rooms committed: four for which there were commitment letters, id. at 210, 212, 214,

216, and one—the [. . .]—for which there was not a commitment letter, see id. at 210-48.

Further, it is apparent that the Evaluation Team considered the commitment letter from the [. . .]

in North Little Rock to be from the actual primary hotel identified by Brian Hall, the [. . .] in

North Little Rock.

-9-

A search of google maps indicated that 1 of the 9 primary vendors does not

meet that requirement. 8

• AAA Diamond level, star level, etc.[]- Marginal

Searching the 9 primary facilities offered in google yielded results that 4 of

the 9 primary hotel[s] proposed are 3 star hotels and the remaining 5 are two

star hotels.

• hotel amenities[]- Satisfactory

Please see breakdown provide[d] below- Information obtained by Google

Search, Google Map and inquiry to hotels to verify amenities offered.

Id. at 851-52 (footnotes added); see also id. at 853-61 (setting forth the results of the Evaluation

Team’s inquiry regarding the amenities offered by eight of the nine proposed primary hotels and

reflecting that all eight provided the required amenities). For the second criterion, the Evaluation

Team stated that a site visit was not conducted; for the third criterion, the Evaluation Team

observed that its inquiry revealed that all of the hotels have video surveillance but that Brian Hall

did not address the topic in its proposal; and for the fourth criterion, the Evaluation Team

indicated that three requirements were not addressed in the proposal and therefore were not met.

Id. at 862. The Evaluation Team then identified one strength, two significant weaknesses, and

two deficiencies. 9 Id. at 863. The deficiencies were:

• Vendor did not list one primary location[] as requested. Too many hotels

listed as a primary venue.

• Vendor did not get room . . . commitment numbers from all vendors.

Id.

The Evaluation Team next addressed the feasibility of Brian Hall’s approach, and

concluded that the proposal did not meet the requirement because “[s]everal [hotels] did not

provide number of rooms committed.” Id. at 864. It identified the number of proposed hotels as

a strength and the lack of a primary hotel as a significant weakness. Id. It also identified two

deficiencies:

• Vendor did not ensure that the commitment letters all had the # of rooms

committed listed.

8

The court entered the addresses in Google Maps and it appears that the Evaluation

Team was using driving distance to determine which proposed hotels were within a seven-mile

radius of the LETC.

9

One item was listed as both a significant weakness and a deficiency. AR 863.

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• The number of rooms committed on the letter of commitment were nominal

and could not support the requirement for a primary venue and accommodate

the number of students that would require offsite lodging.

Id.

Overall, the Evaluation Team assigned an Unsatisfactory technical rating to Brian Hall’s

proposal for the Technical Approach factor, id., explaining: “The vendor did not fulfill the

requirements requested in the solicitation as noted in the evaluation above, one primary location,

incomplete commitment letters, failure to address quality assurance plans and deficiencies

identified in the above ratings.” Id. at 865; see also id. (setting forth the definition for the rating

of Unsatisfactory).

The VA also reviewed Brian Hall’s Performance Risk volume. Id. at 868-70. On a

Consensus Evaluation Worksheet, the VA indicated that three of the identified contracts were

recent and of similar scope and complexity, but that they were “much smaller” than the VA’s

contract. Id. at 868; see also id. at 1181 (indicating that the fourth contract was not evaluated

because only three contracts were to be submitted). It further noted that it received one Past

Performance Questionnaire that was favorable to Brian Hall, with a “4 out of 5 rating,” 10 and

was able to confirm from a search of the Federal Procurement Data System (“FPDS”) that Brian

Hall “does have the past performance experience with a number of agencies and does have

experience in this type of requirement.” Id. at 869. The worksheet does not include any ratings

for the Performance Risk factor in general, or for experience or past performance in particular.

Id. at 868-70. However, subsequently prepared documents indicate that the VA assigned a Low

Risk rating for Brian Hall’s performance risk. 11 Id. at 879 (competitive range memorandum),

1179, 1181-82 (Award Decision).

10

The VA indicated that the Past Performance Questionnaire was received for contract

70LGLY20PGLB00343, AR 869, which was not a contract identified by Brian Hall in its

proposal, see id. at 254-57, but according to the FPDS, is a contract awarded to Brian Hall, see

U.S. Gen. Servs. Admin., Fed. Procurement Data Syst. – Next Generation, https://www.fpds.gov/

ezsearch/search.do?indexName=awardfull&templateName=1.5.1&s=FPDS.GOV&q=70LGLY2

0PGLB00343 (last visited Oct. 23, 2020) (providing search results for contract

70LGLY20PGLB00343). In its subsequently prepared Best Value Determination and Award

Decision (“Award Decision”), the VA indicated that the Past Performance Questionnaire was

received for contract 70LGLY18PGLB00051, id. at 1181, which is not a contract awarded to

Brian Hall, but likely is meant to refer to contract 70LGLY19PGLB0005, see infra Section

II.B.2.d. The Past Performance Questionnaire is not included in the administrative record,

rendering it impossible to determine to which contract it pertains.

11

The Performance Risk rating definitions used by the VA were first revealed in the

Award Decision. See AR 1175-76. In that document, a “Low Risk” rating was defined as:

“Based on the Offeror’s performance record, low risk exists that the Contractor will not

successfully perform the required effort.” Id. at 1175.

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With respect to Brian Hall’s Price volume, it appears that the VA found the proposed

price to be fair and reasonable, see id. at 879 (competitive range memorandum), 1182-83 (Award

Decision), since it was only [. . .]% above the independent government cost estimate of [. . .] for

the base and option years combined, id. at 1183. However, the administrative record lacks any

contemporaneous documentation of the VA’s review of Brian Hall’s proposed prices.

D. Competitive Range Determination and Discussions with Brian Hall

On May 29, 2020, the contracting officer decided to establish a competitive range

consisting of the sole remaining offeror in Tier 1: Brian Hall. Id. at 878-80. In his supporting

memorandum, the contracting officer remarked that Brian Hall “was evaluated and found to have

an unacceptable Technical Approach, Low Risk Past Performance, and a Price determined to be

higher than historical pricing, but still fair and reasonable.” Id. at 879. He then wrote:

[Brian Hall’s] technical approach offered many strengths, 12 but had the following

significant weakness and deficiency:

Significant Weaknesses: [Brian Hall] did not offer one primary location as

requested. With the number of hotels listed, miscommunication in the form of

having the same student being assigned to more than one hotel can arise. More

time will have to be spent coordinating reservations. For example, 300 students at

15 hotels would be 20 students per hotel versus having 300 students dispersed at

three hotels.

Deficiencies: [Brian Hall] did not get all room numbers in commitment letters

from all [hotels]. Without confirmation of the total commitment, Government

cannot rely on [Brian Hall’s] proposal to fulfill the need for rooms for “up to 300

students” per night.

Id. (footnote added). But see id. at 863-64 (reflecting only two identified strengths).

In light of these findings, the contracting officer addressed what the next step in the

competition should be:

Under the tiered set aside, if the contracting officer determines that no SDVOSB

proposal can meet the requirements of the solicitation at a fair and reasonable

price, the Contracting Officer then dissolves the tier 1 restriction and evaluates

12

In its initial consensus evaluation, the Evaluation Team included only one bullet point

as a “Strength” under “understanding of the requirement” and one bullet point as a “Strength”

under “feasibility of approach.” AR 862-64. For the former, the Evaluation Team noted that

Brian Hall “seem[ed] to understand the administrative portions of the requirement” and then

identified those portions that Brian Hall understood. Id. at 863. It appears that in his competitive

range memorandum, the contracting officer considered each administrative portion understood

by Brian Hall to be a separate strength. See id. at 1180.

-12-

proposals received at the next tier. However, the Contracting Officer may

conduct discussions if determined to be in the best interest of the Government.

Id. at 879-80. The contracting officer determined that Brian Hall was “the most highly rated

proposal and neither of the remaining tier one proposals ha[d] a realistic chance for award,

absent a material rewrite of the proposal––essentially starting over.” Id. at 880. He further

determined that Brian Hall

could realistically[] be made an “excellent” or “good” technically rated proposal

that represents best value to the Government, by reducing the number of hotels,

and by providing signed commitment letters for all proposed hotels in its revised

proposals. At the same time, the pricing, while fair and reasonable, could be

made even better through any available price reductions.

Id. Consequently, the contracting officer established a competitive range “comprised of only

Brian Hall” and declared that the VA would “conduct discussions with Brian Hall Properties

with the intention of providing best value to the Government.” Id. Moreover, the contracting

officer indicated that

[t]o maximize its ability to provide more advantageous pricing from hotel

subcontractors (through confirmation of its standing in the competition), [Brian

Hall] will be provided a letter from the Government informing it (and any

prospective subcontractors it shares its letter with) that it is within the competitive

range and therefore has a high likelihood of award.

Id.

The contracting officer sent a letter to Brian Hall on June 3, 2020, to advise the company

that it was in the competitive range. Id. at 883-85. He identified the significant weaknesses and

deficiencies of Brian Hall’s proposal under the Technical Approach factor and asked Brian Hall

to submit a revised proposal that addressed them. Id. at 883-84. He also asked Brian Hall to

address the following price-related discussion point in the revised proposal: “The pricing

submitted by Brian Hall Properties is [. . .]. [. . .] the Government requests a price reduction for

both the base and option period.” Id. at 885. The contracting officer set a deadline of June 8,

2020, for Brian Hall’s revised proposal. Id. at 883.

Brian Hall submitted a revised proposal to the VA on June 5, 2020. Id. at 886-1091. It

identified a primary hotel––[. . .] in North Little Rock––that could supply 135 rooms per day and

“provide police security, 7 nights per week, to monitor this property and the overflow hotels.” 13

Id. at 888-90. It also provided commitment letters for twenty-one hotels, id. at 892-932, ten of

which were, it declared, within seven miles of the LETC, see id. at 942 (revised Price volume).

Four of the commitment letters for those ten hotels included at least some information regarding

13

In subsequently provided documents dated June 11, 2020, described below, neither

Brian Hall nor the hotel indicated that the hotel was offering to provide security to monitor the

overflow hotels proposed by Brian Hall. AR 1097-98.

-13-

the hotel’s amenities, although none mentioned hotel security. 14 Id. at 892, 896, 900, 902. In

addition, Brian Hall reduced its proposed daily room rate to [. . .], its price for the base year to [. .

.], its price for the option year to [. . .], and its total price to [. . .]. Id. at 942.

Four days later, on June 9, 2020, the contracting officer spoke with Brian Hall, id. at

1092-93, 15 and then sent Brian Hall a letter with the subject line “Brian Hall Properties

Competitive Range Determination and Prospect for Award,” id. at 1094. The letter provided

confirmation that Brian Hall was in the competitive range and was to be used by Brian Hall to

assist its negotiations with hotels to “enhance its proposition.” Id.

Subsequently, on June 12, 2020, after submitting its revised proposal and after the stated

deadline for filing a revised proposal, Brian Hall sent three additional documents to the VA. Id.

at 1095-107. The first document was a letter from Brian Hall to the contracting officer dated

June 5, 2020, that was similar, but not identical, to the June 5, 2020 letter that it included in its

revised proposal. Compare id. at 888 (June 5, 2020 letter sent on June 5, 2020), with id. at 1096

(June 5, 2020 letter sent on June 12, 2020). Of note, this new June 5, 2020 letter provided that

the [. . .] in North Little Rock “agreed to provide police security 7 nights per week to monitor

this property and any neighboring overflow hotels.” Id. at 1096. In addition, this letter indicated

that Brian Hall was changing its revised price for the option year to [. . .] ([. . .] per night), and its

total price to [. . .]. Id.

The second document was a letter from Brian Hall to the contracting officer dated June

11, 2020, thanking the contracting officer “for the opportunity to contact additional hotels and

best [sic] determine the best venue for the VA’s lodging requirement.” Id. at 1097. It explained

that it contacted other hotels, including some apparently suggested by the VA: two belonged to a

hotel group with a relationship with the LETC and refused to work with “outside parties” at that

time; others “refused to offer more than 50 rooms on a night”; and “[t]he remainder of the

suggested properties . . . refused to offer rooms [for] less than [. . .] per night.” Id. Accordingly,

it concluded that “the [. . .] in North Little Rock [was] the best location and value to the VA,”

especially since that hotel offered to provide additional security, including “an on duty police

officer outside the hotel 24-hours a day, as well as 24-hour private security,” if necessary. Id.

The third document was an e-mail message from the chief executive officer of the [. . .] to

Brian Hall confirming the security arrangements it was offering at its hotel and, implicitly, at

three nearby hotels. See id. at 1098 (reproducing an e-mail message from the hotel describing

the security that would be provided on site, as well as a map on which the hotel, three other

14

A fifth commitment letter that may be from a hotel within a seven-mile radius of the

LETC also included information regarding the hotel’s amenities, AR 904, but that hotel was not

one of the hotels identified in Brian Hall’s revised Price volume, id. at 942.

15

The reference to the conversation appeared in an e-mail message from Brian Hall to

the contracting officer, see AR 1092-93, but there is no contemporaneous documentation of the

conversation prepared by the contracting officer in the administrative record. Thus, it is not clear

why the contracting officer communicated with Brian Hall after the deadline for Brian Hall to

submit a revised proposal (and after Brian Hall submitted its revised proposal).

-14-

hotels, the county sheriff’s office, and the city’s police department—all within a few blocks of

each other—are circled).

The VA apparently accepted and evaluated these three documents because their contents

are referenced in the Award Decision, see id. at 1185, but the administrative record lacks any

indication, aside from a vague reference to a conversation, of what prompted Brian Hall to

submit the documents to the VA or why the VA accepted them.

E. Government Accountability Office Protest

On June 15, 2020, while discussions between the VA and Brian Hall were ongoing,

Bluewater lodged a protest at the Government Accountability Office (“GAO”) to challenge the

VA’s decision to enter into those discussions. Id. at 1109-19. It asserted:

The agency’s decision to exclusively enter into discussions with a vendor that

failed to satisfy the requirements upon initial submission, to the exclusion of

vendors, such as Bluewater, that complied with the Solicitation, renders the

evaluation unreasonable. The agency’s deviation from its own stated tiered

process to enter into what amounted to sole-source discussions is unreasonable.

But for the agency’s unreasonable actions, Bluewater would have been in line for

award.

Id. at 1109. In a September 2, 2020 decision, the GAO agreed with the VA that on the record

before it, 16 “Bluewater, a small business concern, [was] not eligible to compete in the same tier

as Brian Hall, nor as a tier 2 competitor, and therefore lack[ed] the requisite direct legal interest

to challenge the agency’s actions with regard to tier 1 offerors.” Id. at 1163; accord id. (holding

that as a Tier 3 offeror, Bluewater was “not in line for award”). It therefore concluded that

Bluewater was not an interested party and thus dismissed the protest. Id. at 1160, 1163-64.

F. Contract Award

Two days later, the VA contacted Brian Hall, after which Brian Hall provided

confirmation that the [. . .] would be available beginning on October 1, 2020. Id. at 1165.

Thereafter, on September 9, 2020, the VA sent Brian Hall the final contract. Id. at 1166. It was

not until the following day, September 10, 2020, that the VA prepared and approved its Award

Decision. Id. at 1168-88.

In the Award Decision, the VA described its initial evaluation of Brian Hall’s proposal,

the establishment of the competitive range, and its discussions with Brian Hall. Id. at 1177-85.

16

The record before the GAO included the protest letter, AR 1109-20; the parties’ letter

briefs, id. at 1121-45, 1154-59; a declaration from the contracting officer, id. at 1146-48; and a

February 8, 2018 VA Procurement Policy Memorandum regarding the use of tiered evaluations,

id. at 1149. It did not include the identity or proposals of the other offerors. Because the GAO’s

conclusion that Bluewater lacked a direct legal interest was based on an incomplete record, it

lacks persuasive value in this proceeding.

-15-

It then, for the first time, described its evaluation of Brian Hall’s revised proposal for the

Technical Approach factor: 17

The Brian Hall Properties revised proposal submitted June 05, 2020

included the required letters of commitments for all hotels and reduced the

number of primary locations to one, and reduced the number of hotels overall.

Further, the primary hotel will have extra security provided. The deficiency and

significant weakness in the original proposal have been addressed and no longer

exist. As such, the technical approach rating changes from unsatisfactory to

satisfactory.

Id. at 1185. But see id. at 892-932 (reflecting that Brian Hall provided commitment letters for

twenty-one hotels with its revised proposal, one more than it provided with its initial proposal).

Also for the first time, the VA explained its Low Risk rating for Brian Hall’s proposal on the

Performance Risk factor:

Brian Hall provided three references that all pertain to lodging services to a

Federal Agency. While all three are smaller in size, they are all relevant due to

the scope and complexity that compares to the work outlined in the [Performance

Work Statement]. The [Past Performance Questionnaire] provided also provides

the Government confidence that Brian Hall provides quality services in the

lodging arena. Based on the Offeror’s performance record, low risk exists that the

Contractor will not successfully perform the required effort.

Id. at 1182; see also id. at 1175-76 (defining Low Risk to mean that “[b]ased on the Offeror’s

performance record, low risk exists that the Contractor will not successfully perform the required

effort,” providing that a Moderate Risk rating indicates a moderate risk of unsuccessful

performance, and providing that a High Risk rating indicates a substantial risk of unsuccessful

performance). In addition, the VA asserted that Brian Hall reduced its proposed price in its

revised proposal to [. . .] for the base year and [. . .] for the option year, observed that these

proposed prices were lower than the independent government cost estimate, and remarked that

although Brian Hall’s original proposed price was “fair and reasonable, its revised lower price

offer[ed] greater value to the Government.” Id. at 1185.

Based on its determination that Brian Hall, a Tier 1 offeror, submitted a proposal “with a

satisfactory technical approach, low performance risk, and fair and reasonable price,” the VA

concluded that there was no need to evaluate the proposals from offerors in Tier 2 and Tier 3. Id.

at 1186. Thus, the contracting officer found that the contract could be awarded to Brian Hall as

its proposal “represent[ed the] best value to the Government.” Id. at 1187.

17

In its index to the administrative record, defendant identifies Tab 31 as the “Final

Proposal Evaluation (June 12, 2020),” but Tab 31 is a one-page e-mail message, dated June 12,

2020, indicating that the LETC accepted Brian Hall’s proposed hotel to lodge its students. AR

1108.

-16-

The contract was executed on September 10, 2010, id. at 1194, 1196, with an effective

date of November 1, 2020, id. at 1192, 1194, 1196.

G. This Protest

The day before the VA sent Brian Hall the final contract, Bluewater filed a protest in this

court challenging the VA’s decision to conduct discussions with Brian Hall. Bluewater twice

amended its complaint: once after the VA awarded the contract and again upon reviewing the

administrative record. In its second amended complaint, Bluewater alleges three claims for

relief: (1) that the manner by which the VA conducted discussions was inconsistent with the

provisions of the solicitation; (2) that the VA erred in awarding the contract to Brian Hall despite

Brian Hall submitting a technically unacceptable revised proposal; and (3) that the VA erred in

awarding the contract to Brian Hall despite Brian Hall submitting a proposal demonstrating a

high performance risk. Bluewater requests that the court issue a permanent injunction to enjoin

the VA’s award of the contract to Brian Hall, direct the VA to restart its evaluation of proposals

starting with Tier 2 and adhere to the tiered evaluation approach described in the solicitation, and

prohibit the VA from entering into discussions without first determining that it cannot make an

award to any offeror in the relevant tier at a fair and reasonable price that provides best value to

the government. It further requests awards of proposal preparation costs and attorneys’ fees and

costs.

Pursuant to a schedule they proposed, the parties briefed cross-motions for judgment on

the administrative record and defendant’s motion to dismiss, with briefing concluding on

October 26, 2020. The parties represented that oral argument is unnecessary; consequently, the

court is prepared to rule.

II. DISCUSSION

A. Defendant’s Motion to Dismiss

As a threshold matter, defendant moves to dismiss Bluewater’s protest for lack of

standing.

1. Legal Standard

“[T]he question of standing is whether the litigant is entitled to have the court decide the

merits of the dispute or of particular issues.” Warth v. Seldin, 422 U.S. 490, 498 (1975). In bid

protests, standing “is framed by 28 U.S.C. § 1491(b)(1), which . . . imposes more stringent

standing requirements than Article III” of the United States Constitution. Weeks Marine, Inc. v.

United States, 575 F.3d 1352, 1359 (Fed. Cir. 2009). Under § 1491(b)(1), bid protests may only

be brought by “interested parties.” Interested parties are those “actual or prospective bidders or

offerors whose direct economic interest would be affected by the award of the contract or by

failure to award the contract.” Am. Fed’n of Gov’t Emps. v. United States, 258 F.3d 1294, 1302

(Fed. Cir. 2001) (citing 31 U.S.C. § 3551(2)(A) (2000)).

-17-

Thus, “[t]o satisfy § 1491(b)(1)’s standing requirements, a plaintiff must make two

showings.” CliniComp Int’l, Inc. v. United States, 904 F.3d 1353, 1358 (Fed. Cir. 2018); see

also Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992) (noting that the burden of

establishing standing is on “[t]he party invoking federal jurisdiction”). First, it must demonstrate

that it is an interested party, in other words, that it is an actual or prospective offeror with a direct

economic interest in the award of (or failure to award) the contract. CliniComp Int’l, 904 F.3d at

1358. “Generally, to prove the existence of a direct economic interest, a [protestor] must show

that it had a ‘substantial chance’ of winning the contract.” Orion Tech., Inc. v. United States,

704 F.3d 1344, 1348 (Fed. Cir. 2013) (quoting Rex Serv. Corp. v. United States, 448 F.3d 1305,

1307 (Fed. Cir. 2006)).

A protestor must also show that it was prejudiced by the procuring agency’s conduct. 18

Diaz v. United States, 853 F.3d 1355, 1358 (Fed. Cir. 2017); see also Info. Tech. & Applications

Corp. v. United States, 316 F.3d 1312, 1319 (Fed. Cir. 2003) (“[B]ecause the question of

prejudice goes directly to the question of standing, the prejudice issue must be reached before

addressing the merits.”); Myers Investigative & Sec. Servs., Inc. v. United States, 275 F.3d 1366,

1370 (Fed. Cir. 2002) (“[P]rejudice (or injury) is a necessary element of standing.”). To

demonstrate such prejudice, the protestor must show that “but for the error, it would have had a

substantial chance of securing the contract.” Labatt Food Serv., Inc. v. United States, 577 F.3d

1375, 1378 (Fed. Cir. 2009). “Although the inquiries may be similar, prejudice must be shown

either as part of, or in addition to, showing a direct economic interest.” CliniComp Int’l, 904

F.3d at 1358.

18

A protestor must also demonstrate prejudice to succeed on the merits of its protest.

See Data Gen. Corp. v. Johnson, 78 F.3d 1556, 1562 (Fed. Cir. 1996) (“[T]o prevail in a protest

the protester must show not only a significant error in the procurement process, but also that the

error prejudiced it.”). The test for demonstrating prejudice at both the standing and merits stages

of the protest is the same, but application of the test may yield different results due to the

differing standards of review. See L-3 Commc’ns Corp. v. United States, 99 Fed. Cl. 283, 289

(2011) (“The difference between the two [prejudice standards] is that the prejudice determination

for purposes of standing assumes all non-frivolous allegations to be true, whereas the post-merits

prejudice determination is based only on those allegations which have been proven true.”); Tech

Sys., Inc. v. United States, 98 Fed. Cl. 228, 244 (2011) (“[S]ince, for purposes of standing,

prejudice must be analyzed before a merits determination is made, it is more properly considered

as a question of potential rather than actual prejudice, and assessed based on the cumulative

impact of the well-pled allegations of agency error (which are assumed true at this juncture of

proceedings).”). See generally Am. Relocation Connections, L.L.C. v. United States, 789 F.

App’x 221, 225-26 (Fed. Cir. 2019) (“Whether a party has alleged an injury-in-fact (or

prejudice) to establish Article III standing is distinct from whether that party can prove

prejudicial error on the merits. . . . For standing, we presume the party bringing a bid protest

will succeed on the merits of its claim and ask whether it has alleged an injury (or prejudice)

caused by the procuring agency’s actions.”).

-18-

2. Bluewater Has Standing to Protest

There is no dispute that Bluewater submitted a proposal and therefore qualifies as an

actual offeror. Rather, defendant contends that Bluewater lacks standing because it does not

have a substantial chance of being awarded the contract. It observes that as a nonprioritized

small business, Bluewater could prevail in the competition only if the proposals of Brian Hall,

the Tier 2 VOSB offeror, and the Tier 3 HUBZone small business offeror were eliminated from

the competition. According to defendant, “the existence of an offeror in a higher-prioritized set-

aside category strips the non-prioritized protester of standing.” Def.’s Cross-Mot. 9. The court

disagrees with this broad statement.

First, the precedent that defendant relies upon in support of its statement is factually

distinguishable. In those cases, or the cases those courts discuss, the contract was set aside for a

single type of small business, and the protestors were not of that type. See Magnum Opus

Techs., Inc. v. United States, 94 Fed. Cl. 512, 532 (2010) (relying on decisions in which the

protestor had been declared “other than small,” and thus lacked standing to challenge the award

of a contract set aside for a small business); BlueStar Energy Servs., Inc. v. United States, 100

Fed. Cl. 607, 619-20 (2011) (remarking that had the protestor, which was found not to be an

SDVOSB, been an actual or potential offeror, it would lack standing to challenge a solicitation

for a contract that, in its view, should have had an SDVOSB preference); Int’l Mgmt. Servs., Inc.

v. United States, 80 Fed. Cl. 1, 6-7 (2007) (holding that the protestor, which was not a small

business, lacked standing to challenge the award of a contract set aside for a small business). In

contrast, in this protest, the contract was set aside for an SDVOSB, VOSB, or small business

(HUBZone, Section 8(a), or otherwise), and the VA invited proposals from each type of small

business with the expectation that if it could not award a contract to an SDVOSB in the first tier,

it would proceed through the lower tiers until it was able to do so.

Second, a protestor’s standing is not contingent on whether it would receive the award if

the procuring agency erred in awarding a contract to another offeror. Rather, a protestor has

standing if it demonstrates—under both the direct economic interest and prejudice elements of

standing—that it has a substantial chance of being awarded the contract if its allegations

regarding the proposals of offerors who may be next in line for award are potentially meritorious.

See, e.g., Hyperion, Inc. v. United States, 115 Fed. Cl. 541, 550 (2014) (“Hyperion has

adequately alleged that the government erred in its evaluation of each of the other three

proposals and improperly found them to be technically acceptable. If the government indeed

erred in the ways Hyperion alleges, Hyperion would have received the award but for the

errors.”); Preferred Sys. Sols., Inc. v. United States, 110 Fed. Cl. 48, 58 (2013) (“It is because

PSS’s chance for award would not be insubstantial that the court is persuaded that the plaintiff

has demonstrated that it has standing. Despite ranking fourth out of five offerors, PSS was in the

competitive range and therefore within the zone of active consideration. More importantly, if, as

PSS alleges, it should have received at least two additional strengths and the Price evaluation of

[a competitor] were done properly, all of the agency’s ratings would need to be redone, and a

new best value determination made.” (citation omitted)); cf. United States v. Int’l Bus. Machines

Corp., 892 F.2d 1006, 1010-11 (Fed. Cir. 1989) (suggesting, with respect to a sealed-bid

procurement in which the only difference among the bids is price, that a bidder that is not the

second-highest bidder lacks standing to protest the contract award unless that bidder

-19-

“challenge[s] either the solicitation itself or the eligibility of the intervening bidders”). The fact

that Bluewater may not ultimately prevail on the merits of its claims does not deprive it of

standing to raise them in the first instance. See Warth, 422 U.S. at 500 (remarking that “standing

in no way depends on the merits of the plaintiff’s contention that particular conduct is illegal”).

Bluewater alleges that the VOSB offeror did not submit a compliant proposal and did not

propose a fair and reasonable price. With respect to proposal compliance, Bluewater remarks

that the VOSB offeror did not, as required, submit a commitment letter that specified the number

of rooms being offered or represent that it could supply 300 rooms, and notes that the VA

rejected a Tier 1 offeror’s proposal without discussions for failing to offer the required number

of rooms. Defendant responds that the hotels’ management company’s “agree[ment] to provide

rooms at each hotel in support of LETC student lodging needs as per the agreed terms,” AR 449,

satisfied the solicitation’s provisions, but fails to appreciate the solicitation’s warning that merely

stating that a “requirement will be met” does not suffice to render a proposal eligible for contract

award, id. at 157. 19 Thus, it is reasonable for Bluewater to assume that if the VA were applying

the same evaluation standards in each tier, it would reject the VOSB offeror’s proposal.

Moreover, Bluewater notes that the VOSB offeror’s total proposed price was [. . .] independent

government cost estimate. While the proposed price might be reduced during discussions, it is

not unreasonable to allege that the VA might ultimately determine that it was not fair and

reasonable.

With respect to the HUBZone small business offeror, a review of its proposal reflects a

number of deficiencies. It did not submit separate Technical Approach, Performance Risk, Price,

and SF1449/Certifications/Amendments volumes; it did not submit commitment letters; and it

did not discuss its management of the contract. It is readily apparent that the proposal was

materially noncompliant with the solicitation requirements and that the VA was likely to reject it.

Thus, the proposal does not provide an obstacle to Bluewater having standing, and defendant’s

criticism that Bluewater did not address this particular proposal in the standing and prejudice

arguments in its opening brief does not alter this conclusion. Defendant’s contention that a

standing argument not raised in an opening brief is waived has been persuasively rejected in

other decisions of this court. See, e.g., Cyios Corp. v. United States, 122 Fed. Cl. 726, 733-34

(2015), aff’d, 674 F. App’x 1016 (Fed. Cir. 2017); CGI Fed. Inc. v. United States, 118 Fed. Cl.

337, 351 (2014), rev’d on other grounds and remanded, 779 F.3d 1346 (Fed. Cir. 2015).

Moreover, the court cannot turn a blind eye to the contents of the administrative record. Accord

2M Rsch. Servs., LLC v. United States, 139 Fed. Cl. 471, 479 (2018) (“While this Court

19

Defendant criticizes Bluewater for relying on information gleaned from a hotel’s

website in support of its contention that one of Brian Hall’s proposed hotels lacks the required

amenities, see Def.’s Cross-Mot. 20; Def.’s Reply 8-9, but then relies on information it found on

the websites of the hotels identified in Bluewater’s proposal in support of one of its own

arguments, see Def.’s Reply 9 & n.4. Although the court would not rely on the results of its own

research to resolve a dispositive issue and recognizing, in any event, that this issue is not

dispositive, it notes that had defendant researched the two hotels identified by the VOSB offeror

in the same manner it researched the hotels identified by Bluewater, defendant would have

discovered that the two hotels had only 199 rooms between them––well below the 300 rooms

required by the VA in the solicitation. [. . .]

-20-

considers agency deference to be of the utmost importance, it cannot ignore the record before

it.”).

If the VA could not award the contract to the VOSB or HUBZone small business

offerors, then it would have considered all of the remaining proposals in Tier 3 for contract

award. Bluewater submitted a facially compliant proposal and proposed a price that was [. . .]. 20

Because the VA would have performed a tradeoff analysis to determine the best value to the

government, Bluewater would have a substantial chance of receiving the contract award, giving

it a direct economic interest. Furthermore, Bluewater has established prejudice because but for

the VA’s purported errors in considering Brian Hall’s proposal, Bluewater would have had a

substantial chance of being awarded the contract. Consequently, Bluewater has standing to

challenge the VA’s contract award to Brian Hall.

B. The Parties’ Cross-Motions for Judgment on the Administrative Record

Turning to the merits of the protest, Bluewater and defendant have filed cross-motions for

judgment on the administrative record. In ruling on such motions, “the court asks 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) (citing Bannum,

Inc. v. United States, 404 F.3d 1346, 1356 (Fed. Cir. 2005)). Because the court makes “factual

20

Defendant contends that Bluewater’s proposal suffers from the same deficiencies that

Bluewater identifies in other proposals and therefore would be deemed noncompliant under its

own standards. For example, defendant contends, Bluewater complains that the commitment

letters included with Brian Hall’s proposal lack descriptions of the hotel’s amenities while failing

to submit commitment letters with its proposal that include descriptions of amenities. Defendant

misconstrues Bluewater’s argument. Bluewater is not contending that a commitment letter was

required to address the hotel’s amenities (indeed, there is no such requirement in the solicitation).

Rather, it contends that Brian Hall did not address in its Technical Approach volume whether

each proposed hotel offered the required amenities and that only some of the commitment letters

made up for that deficiency by including information regarding amenities. Moreover,

Bluewater’s contention is accurate: Contrary to defendant’s assertion in its reply, Brian Hall’s

statement that it “worked diligently to exceed the basic requirements in the” solicitation, AR 889,

does not satisfy the solicitation’s requirement that an offeror address the amenities offered at all

proposed hotels given the solicitation’s warning that an unsupported statement that a

“requirement will be met” does not suffice to render a proposal eligible for contract award, id. at

157.

Defendant further contends that Bluewater faulted Brian Hall and other offerors for

inadequately addressing the security requirement even though it did not “demonstrate a ‘low

crime rate’ in the areas where [its] hotels were located,” as purportedly required in the

solicitation. Def.’s Cross-Mot. 14 (quoting AR 122). Defendant’s characterization of the

solicitation is inaccurate. The “low crime rate” requirement in the solicitation related to contract

performance, not proposal requirements. See AR 121-22 (including “low crime rate” in a table

defining “the Performance Standards and Acceptable Performance Levels for Objectives

associated with this effort”).

-21-

findings . . . from the record evidence,” judgment on the administrative record “is properly

understood as intending to provide for an expedited trial on the administrative record.” Bannum,

404 F.3d at 1356.

1. Legal Standard

The court reviews challenged agency conduct pursuant to the standards set forth in 5

U.S.C. § 706. 28 U.S.C. § 1491(b)(4) (2018). Specifically, “the proper standard to be applied in

bid protest cases is provided by 5 U.S.C. § 706(2)(A): a reviewing court shall set aside the

agency action if it is ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance

with law.’” Banknote Corp. of Am. v. United States, 365 F.3d 1345, 1350 (Fed. Cir. 2004).

Under this standard, the court

may set aside a procurement action if “(1) the procurement official’s decision

lacked a rational basis; or (2) the procurement procedure involved a violation of

regulation or procedure.” A court reviews a challenge brought on the first ground

“to determine whether the contracting agency provided a coherent and reasonable

explanation of its exercise of discretion, and the disappointed bidder bears a

heavy burden of showing that the award decision had no rational basis.” “When a

challenge is brought on the second ground, the disappointed bidder must show a

clear and prejudicial violation of applicable statutes or regulations.”

Centech Grp., Inc. v. United States, 554 F.3d 1029, 1037 (Fed. Cir. 2009) (citations omitted)

(quoting Impresa Construzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324, 1332-

33 (Fed. Cir. 2001)); accord Savantage Fin. Servs., Inc. v. United States, 595 F.3d 1282, 1286-87

(Fed. Cir. 2010) (providing that a protestor has the “burden of showing that the agency’s

decision . . . is so plainly unjustified as to lack a rational basis”); Advanced Data Concepts, Inc.

v. United States, 216 F.3d 1054, 1058 (Fed. Cir. 2000) (“The arbitrary and capricious standard

. . . requires a reviewing court to sustain an agency action evincing rational reasoning and

consideration of relevant factors.”).

Procurement officials “are entitled to exercise discretion upon a broad range of issues

confronting them in the procurement process.” Impresa, 238 F.3d at 1332 (quoting Latecoere

Int’l, Inc. v. U.S. Dep’t of the Navy, 19 F.3d 1342, 1356 (11th Cir. 1994)). Thus, the court’s

review of a procuring agency’s decision is “highly deferential.” Advanced Data Concepts, 216

F.3d at 1058; see also Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971)

(“The court is not empowered to substitute its judgment for that of the agency.”). Furthermore,

when engaging in a negotiated procurement, a “protestor’s burden of proving that the award was

arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law is greater

than in other types of bid protests.” Galen Med. Assocs., Inc. v. United States, 369 F.3d 1324,

1330 (Fed. Cir. 2004). And, when a contract is to be awarded on a “best value” basis,

contracting officers have “even greater discretion than if the contract were to have been awarded

on the basis of cost alone.” Id. (citing E.W. Bliss Co. v. United States, 77 F.3d 445, 449 (Fed.

Cir. 1996) (“Procurement officials have substantial discretion to determine which proposal

represents the best value for the government.”)).

-22-

In addition to showing “a significant error in the procurement process,” a protestor must

show “that the error prejudiced it.” Data Gen., 78 F.3d at 1562; accord Bannum, 404 F.3d at

1351 (holding that if the procuring agency’s decision lacked a rational basis or was made in

violation of the applicable statutes, regulations, or procedures, the court must then “determine, as

a factual matter, if the bid protester was prejudiced by that conduct”). “To establish prejudice

. . . , a protester must show that there was a ‘substantial chance’ it would have received the

contract award absent the alleged error.” Banknote, 365 F.3d at 1350 (quoting Emery

Worldwide Airlines, Inc. v. United States, 264 F.3d 1071, 1086 (Fed. Cir. 2001)); see also Data

Gen., 78 F.3d at 1562 (“[T]o establish prejudice, a protester must show that, had it not been for

the alleged error in the procurement process, there was a reasonable likelihood that the protester

would have been awarded the contract.”). The test for establishing prejudice “is more lenient

than showing actual causation, that is, showing that but for the errors [the protestor] would have

won the contract.” Bannum, 404 F.3d at 1358.

2. Analysis

In its motion for judgment on the administrative record, Bluewater challenges two

aspects of the competition: the discussions conducted by the VA with Brian Hall and the VA’s

evaluation of Brian Hall’s revised proposal. Defendant responds in its cross-motion for

judgment on the administrative record that Bluewater’s challenges lack merit and requests the

entry of judgment in its favor. The court addresses each of Bluewater’s contentions in turn.

a. The VA Did Not Deviate From the Solicitation’s Evaluation Scheme by Conducting

Discussions With Brian Hall

Bluewater first contends that the VA deviated from the evaluation scheme set forth in the

solicitation by opening discussions with Brian Hall––who it contends submitted a noncompliant

proposal––before evaluating the proposals in Tier 2 and, if necessary, Tier 3, to identify a

compliant proposal upon which an “award [could] be made at a fair and reasonable price that

offer[ed] best value to the United States.” AR 156. It further argues that the VA only reserved

the right to conduct discussions if the contacting officer determined that discussions were

necessary pursuant to FAR 52.212-1, and that the contracting officer did not make such a

determination, instead stating only that discussions were in the best interest of the government.

In response, defendant argues that Bluewater’s interpretation of the solicitation is incorrect and

that the contracting officer was entitled to determine that discussions would be in the

government’s best interest. The court agrees with defendant.

As an initial matter, the solicitation expressly allows for discussions to be held in

conjunction with the evaluation of proposals within each tier. FAR 52.212-1, which is

reproduced in full in the solicitation, contemplates that discussions might be necessary before

determining whether an award could be made, and the solicitation is unambiguous in providing

that the VA would examine each tier independently to determine whether an award could be

made to an offeror in that tier at a fair and reasonable price.

Moreover, nothing in the solicitation prohibited the VA from concluding that a not-fully-

compliant proposal could be made compliant and, therefore, eligible for award, after discussions.

-23-

Indeed, as set forth in the FAR, discussions “are undertaken with the intent of allowing the

offeror to revise its proposal,” FAR 15.306(d), with the “primary objective of . . . maximiz[ing]

the Government’s ability to obtain best value,” FAR 15.306(d)(2). “At a minimum,” the

procuring agency must

indicate to, or discuss with, each offeror still being considered for award,

deficiencies, significant weaknesses, and adverse past performance information to

which the offeror has not yet had an opportunity to respond. The contracting

officer also is encouraged to discuss other aspects of the offeror’s proposal that

could, in the opinion of the contracting officer, be altered or explained to enhance

materially the proposal’s potential for award.

FAR 15.306(d)(3). In other words, the FAR expressly permits discussions to be held with

offerors who submitted deficient proposals.

Bluewater’s argument that the contracting officer’s failure to analyze or determine that

discussions with Brian Hall were “necessary” fares no better. The VA clearly structured the

competition to prioritize contract award to an SDVOSB, regardless of how many SDVOSBs

submitted proposals. See AR 156 (indicating that the contract would be awarded to a Tier 1

offeror if it could “be made at a fair and reasonable price that offers best value to the United

States” or, if there was only one Tier 1 offeror, to that offeror “if the proposal meets the

requirements of the solicitation and the proposed price is fair and reasonable”). And, as

proclaimed in FAR 15.306(d)(2), discussions are meant to allow the government the opportunity

to obtain best value by allowing offerors to address, among other items, significant weaknesses

and deficiencies in their proposals. The contracting officer, by declaring that discussions would

assist the VA in achieving best value, AR 880, necessarily determined that discussions were “in

the best interest of the Government,” which sought to award the contract to an SDVOSB, and

“necessary” because Brian Hall’s proposal, as written, could not support a contract award.

Accord Progressive Indus., Inc. v. United States, 129 Fed. Cl. 457, 473 (2016) (rejecting the

protestor’s argument that “the VA did not comply with the FAR when it failed to document its

reasons for holding discussions, after stating that it would it make the contract award(s) without

discussions,” because “the VA had reserved the right to conduct discussions” and “the VA did

offer a rationale for the conduct of discussions when it established the competitive range” when

it explained that “‘the primary objective of . . . discussions was to maximize the Government’s

ability to obtain best value’” (quoting the VA’s statement)). Accordingly, the contracting

officer’s decision to engage in discussions with Brian Hall did not violate the provisions of the

solicitation.

b. The VA Did Not Treat Brian Hall’s Proposal More Leniently Than it Treated the

Proposals of the Other SDVOSB Offerors

Bluewater further argues that the VA treated the three SDVOSB offerors in Tier 1

differently, and had it applied the same standard to all three proposals, it would have rejected

Brian Hall’s proposal without conducting discussions. Specifically, it observes that the VA

rejected the proposals of two Tier 1 offerors as nonresponsive because they lacked “a realistic

chance for award, absent a material rewrite of the proposal––essentially starting over,” AR 880,

-24-

but then allowed Brian Hall to, in essence, materially rewrite its proposal via the discussions

process. Defendant does not specifically address this argument. Nevertheless, the court finds it

unpersuasive.

As an initial matter, the VA’s use of the term “non-responsive” in its correspondence

with the two unsuccessful SDVOSB offerors is misleading because responsiveness is a concept

applicable in sealed-bid procurements conducted under FAR part 14, not negotiated

procurements––such as this one––conducted under FAR part 15. See Carahsoft Tech. Corp. v.

United States, 86 Fed. Cl. 325, 341-42 (2009); Dyonyx, L.P. v. United States, 83 Fed. Cl. 460,

468 (2008). It would have been more appropriate for the VA to declare the two proposals to be

technically unacceptable. See Carahsoft Tech., 86 Fed. Cl. at 341 (“[T]he concept of technical

acceptability is roughly analogous to that of responsiveness in sealed bidding.”). Thus, the VA’s

rejection of proposals as “non-responsive” should be construed to mean that the VA found the

proposals to be “unacceptable” because they did not “conform to the material terms and

conditions of the solicitation . . . .” E.W. Bliss Co., 77 F.3d at 448 (quoting Stocker & Yale, Inc.,

70 Comp. Gen. 490, 493 (1991)).

A second difficulty with the VA’s rejection of the two proposals as “non-responsive to

the [solicitation] requirements” such that they constituted “unacceptable response[s]” is that the

VA did not indicate whether the rejection was based on the cumulative effect of all of the

identified deficiencies, or whether any one identified deficiency would have served as an

independent basis for rejection. The VA stated in the solicitation that the “[f]ailure to fully meet

a material requirement” would render a proposal “unacceptable,” but it did not explain what

requirements it considered to be material. However, because unacceptable elements of a

proposal can be cured in a revised proposal, Carahsoft Tech., 86 Fed. Cl. at 342, a “material

requirement” must be something clearly disqualifying (such as failing to submit a key element of

a proposal––for example, a signed SF 1449 or commitment letters––or proposing to lodge thirty

patients rather than 300 students). See also Birch & Davis Int’l, Inc. v. Christopher, 4 F.3d 970,

974 (Fed. Cir. 1993) (“It is well established that a proposal must generally be considered to be

within the competitive range unless it is so technically inferior or out of line as to price, as to

render discussions meaningless.” (quoting M.W. Kellogg Co./Siciliana Appalti Costruzioni,

S.p.A. v. United States, 10 Cl. Ct. 17, 23 (1986))).

When Brian Hall’s proposal is viewed in this light, it is apparent that its deficiencies did

not rise to the level of immediately disqualifying. Brian Hall submitted all required proposal

volumes and all required documents within those volumes. Although Bluewater identifies a

number of ways in which Brian Hall did not satisfy the solicitation’s requirements, those flaws

could be remedied by a revised proposal after discussions. Moreover, that a proposal might have

a large number of flaws does not lead to the conclusion––drawn by Bluewater––that the offeror

would need to materially rewrite its proposal to become acceptable and, thus, eligible for award.

Finally, there is no evidence in the administrative record indicating, as Bluewater argues, that but

for the VA’s independent inquiries regarding the hotels proposed by Brian Hall, 21 the VA would

21

Bluewater characterizes these independent inquiries as contrary to the provisions of

the solicitation. However, the VA reserved the right, “during evaluations,” to “conduct site visits

of any location proposed for lodging to determine [the] degree to which lodging requirements

-25-

have considered Brian Hall’s proposal so deficient as to require its rejection for failure to fully

satisfy a material requirement. Rather, the evidence suggests that the VA would not have made

such inquiries had it found the proposal to be so unacceptable as to require rejection. See AR

876 (explaining to one of the unsuccessful SDVOSB offerors that if it “were to evaluate” the

deficient proposal, “it would constitute a waste of Government resources”).

In sum, Bluewater has not established that the VA treated Brian Hall’s proposal more

leniently than it treated the proposals of the other SDVOSBs in Tier 1.

c. The VA’s Evaluation of Brian Hall’s Revised Proposal Deviated From the Solicitation’s

Evaluation Scheme

Bluewater next contends that the VA, upon evaluating Brian Hall’s revised proposal,

improperly assigned the proposal a Satisfactory rating for Technical Approach. Specifically, it

asserts that Brian Hall did not, as required, address safety and security at its proposed secondary

hotels or demonstrate that all of the hotels it proposed provided the required amenities. 22 In its

response and cross-motion, defendant brushes Bluewater’s contentions aside in five short error-

laden sentences, and then reasserts some of those same inaccurate contentions in its reply. 23

[could] be met.” AR 157. If the VA was permitted to conduct a site visit to assess whether an

offeror had satisfied the solicitation’s lodging requirements, then it certainly could perform the

same inquiries online or by telephone. The court therefore rejects Bluewater’s challenges to the

VA’s inquiries.

22

In advancing these arguments, Bluewater asserts that Brian Hall identified numerous

hotels outside the permitted seven-mile radius. This assertion is based on the “miles” identified

for each hotel in Brian Hall’s initial and revised Price volumes. See AR 258, 942. However, it

is unclear to what these “miles” refer; when the court used Google Maps to ascertain the as-the-

crow-flies and driving distances between the hotels and the LETC, most of the results were

significantly different than the “miles” identified by Brian Hall. See also supra note 5. And,

although it appears that the Evaluation Team used driving distance when evaluating distance, see

supra note 8, the “7-mile radius” language used in the solicitation suggests that an as-the-crow-

flies measurement was originally contemplated. Under that interpretation, all but two of Brian

Hall’s secondary hotels satisfy the distance requirement. In contrast, only nine of the secondary

hotels appear to be within a seven-mile driving distance. The court need not resolve the apparent

ambiguities and inconsistencies, however, because its ultimate conclusion is not dependent upon

such a resolution.

23

Contrary to defendant’s contentions, (1) Bluewater does not assert that information

regarding amenities must be included in the commitment letters; (2) the amenities described in

the solicitation’s Performance Work Statement were required, not desired; (3) offerors were

required to address the amenities provided at all of their proposed hotels in their Technical

Approach volume; and (4) Brian Hall did not state, in its revised proposal, that it would provide

police security at all twenty-one of its proposed hotels.

-26-

A review of all of the material that constitutes the Technical Approach volume of Brian

Hall’s revised proposal reveals that Brian Hall did not address the safety and security of most, if

not all, of its proposed secondary hotels. See generally id. at 887-933, 1096-107. Indeed, under

the most generous interpretation, Brian Hall addressed safety and security at only three of the

secondary hotels. See id. at 1096-101. Moreover, the evidence in the administrative record

reflects that when evaluating Brian Hall’s initial proposal, the Evaluation Team ascertained, via

its own inquiry, only that Brian Hall’s nine primary hotels had video surveillance. Id. at 862. Of

these nine hotels, seven are secondary hotels identified in Brian Hall’s revised proposal, out of a

total of twenty secondary hotels. Compare id. at 207 (initial proposal), with id. at 892-932

(revised proposal). And, there is no evidence that the VA revisited the issue of safety and

security when evaluating Brian Hall’s revised proposal. See id. at 1185. Thus, Brian Hall did

not address, and the VA did not consider, safety and security for thirteen of Brian Hall’s

proposed hotels.

Turning to the required amenities, a review of all of the material that constitutes the

Technical Approach volume of Brian Hall’s revised proposal reveals that Brian Hall did not

address the amenities available at sixteen of its proposed secondary hotels. See generally id. at

888-933, 1096-107. Moreover, the evidence in the administrative record reflects that when

evaluating Brian Hall’s initial proposal, the Evaluation Team ascertained, via its own inquiry,

only that eight of Brian Hall’s nine primary hotels provided all required amenities. Id. at 853-61.

Of these eight hotels, seven are secondary hotels identified in Brian Hall’s revised proposal, out

of a total of twenty secondary hotels. Compare id. at 207 (initial proposal), with id. at 892-932

(revised proposal). And, there is no evidence that the VA revisited the issue of amenities when

evaluating Brian Hall’s revised proposal. See id. at 1185. Thus, Brian Hall did not address, and

the VA did not consider, the amenities available at thirteen of Brian Hall’s proposed hotels.

Consistent with the deference accorded to procuring agencies conducting negotiated

procurements, when a protestor challenges a procuring agency’s evaluation of a technical

proposal, the court’s “review . . . should be limited to determining whether the evaluation was

reasonable, [was] consistent with the stated evaluation criteria and complied with relevant

statutory and regulatory requirements.” Banknote Corp. of Am. v. United States, 56 Fed. Cl.

377, 381 (2003), aff’d, 365 F.3d at 1345; accord E.W. Bliss Co., 77 F.3d at 449 (“[T]echnical

ratings . . . involve discretionary determinations of procurement officials that a court will not

second guess.”). Indeed, “the agency’s technical evaluations must be consistent with the factors

and procedures outlined in the solicitation. If an agency’s evaluation of proposals differs

significantly from the process disclosed in the solicitation, the agency’s decision lacks a rational

basis.” Lab. Corp. of Am. Holdings v. United States, 116 Fed. Cl. 643, 650 (2014) (citation

omitted).

As an initial matter, the VA advised offerors in the solicitation that it would evaluate their

technical approach “to determine the extent to which [the proposal] meets or exceeds [the]

lodging requirement” by assessing, among other things, how the offerors proposed to satisfy the

hotel amenities requirement. AR 157. The VA did not assess how Brian Hall proposed to

satisfy the requirement—set forth in the solicitation, id. at 119, 153—that each proposed hotel

provide the required amenities. This deviation from the solicitation’s evaluation scheme is

-27-

significant and thus renders the VA’s evaluation unreasonable. 24 But even if this deviation

cannot be considered significant, it was not the only flaw in the VA’s evaluation.

Pursuant to the ratings scheme adopted by the VA, to receive a Satisfactory rating for

Technical Approach, a proposal must, among other things “meet[] the minimum requirements of

the solicitation” and have “no deficiencies.” Id. at 850, 1175. As noted above, upon evaluating

Brian Hall’s revised proposal, the VA changed the Unsatisfactory rating it initially assigned to

Brian Hall’s technical approach to a Satisfactory rating, explaining:

The Brian Hall Properties revised proposal submitted June 05, 2020

included the required letters of commitments for all hotels and reduced the

number of primary locations to one, and reduced the number of hotels overall.

Further, the primary hotel will have extra security provided. The deficiency and

significant weakness in the original proposal have been addressed and no longer

exist. As such, the technical approach rating changes from unsatisfactory to

satisfactory.

Id. at 1185. The fact that Brian Hall addressed the significant weakness and deficiency in its

original proposal does not negate the VA’s obligation to ensure that the revised proposal satisfies

the solicitation’s minimum requirements as was necessary for it to assign a Satisfactory rating.

And, the requirements of the solicitation are clear: (1) offerors were to “address how [they]

propose[d] to fulfil the lodging requirements of the [Performance Work Statement],” id. at 153;

(2) the proposed hotels were to “meet the criteria for all areas shown on the technical checklist,”

id.; and (3) pursuant to the Performance Work Statement, hotels must provide certain, specified

amenities and demonstrate the ability to provide for the safety and security of their guests, id. at

119-20. Because Brian Hall did not address how all of its proposed hotels met all of the

requirements described in the Performance Work Statement, the VA could not have concluded

that Brian Hall’s revised proposal “[met] the minimum requirements of the solicitation” such that

a Satisfactory rating was appropriate. Because a Satisfactory rating for the Technical Approach

factor was a prerequisite for contract award, id. at 25, the VA’s award of the contract to an

offeror with a less-that-Satisfactory technical approach was arbitrary and capricious.

d. The VA’s Assessment of Brian Hall’s Performance Risk, While Flawed, Was Not

Arbitrary and Capricious

Bluewater also argues that the VA erroneously concluded that Brian Hall’s proposal

should be rated Low Risk on the Performance Risk factor. It first contends that Brian Hall

identified two contracts in its Performance Risk volume that it did not actually hold. A

comparison of the Performance Risk volume of Brian Hall’s proposal, the VA’s evaluation of

24

Because the court concludes that the VA did not properly evaluate whether all of the

hotels proposed by Brian Hall offered the required amenities, it need not address Bluewater’s

contention that some of the hotels did not offer all of the required amenities. Further, because

the document with which Bluewater seeks to supplement the administrative record relates solely

to its contention that one of the hotels proposed by Brian Hall did not offer all of the required

amenities, the court denies Bluewater’s motion to supplement the administrative record as moot.

-28-

that volume, and Brian Hall’s contract information in the FPDS indicates that Bluewater’s

contention is an understandable consequence of Brian Hall’s and the VA’s sloppiness. First, it

appears that for one of the contracts, Brian Hall used the wrong contract identifier, mistyping one

digit. Compare id. at 254 (identifying contract 70LGLY18PGLB00051), with U.S. Gen. Servs.

Admin., Fed. Procurement Data Syst. – Next Generation, https://www.fpds.gov/ezsearch/search.

do?indexName=awardfull&templateName=1.5.1&s=FPDS.GOV&q=70LGLY19PGLB00051

(last visited Oct. 23, 2020) (providing search results for contract 70LGLY19PGLB00051).

Second, for the other contract, the VA used the wrong contract identifier when querying the

FDPS, also mistyping one digit. Compare AR 870 (providing information for contract

70LGLY18PGLB00048), with id. at 256 (identifying contract 70LGLY19PGLB00048), and id.

at 870 (searching for contract 70LGLY19PGLB00048).

The FPDS reflects that Brian Hall was awarded the following three contracts (in the form

of purchase orders): (1) 70LGLY19PGLB00051, awarded by the DHS FLETC, with a value of

$47,553; (2) 70LGLY18PGLB00328, awarded by the DHS FLETC, with a value of $87,967;

and (3) 70LGLY19PGLB00048, awarded by the DHS FLETC, with a value of $48,642. In other

words, Brian Hall almost certainly was not intending to rely on contracts awarded to other

entities. Moreover, the VA searched the FPDS and confirmed that Brian Hall had experience in

the type of work being solicited. Thus, the mere misidentification of the two contracts is not

grounds for setting aside the contract award.

Bluewater also contends that the VA erred in determining that the three contracts

identified by Brian Hall were of similar scope and complexity as the contract that the VA

planned to award. It observes that Brian Hall did not provide any narrative description of the

three contracts that would allow the VA to determine their scope or complexity; specifically,

there was no information regarding “the number of rooms provided, the amenities necessary, the

administrative and managerial tasks required, or what portions of the work were similar or

dissimilar to the [Performance Work Statement] for this procurement.” Pl.’s Mot. 36. It further

observes that the dollar value of the contracts, topping out at $87,967, 25 do not suggest that they

were as complex as the VA’s contemplated contract, which required, for an entire year, the

provision of lodging for 300 students among several hotels at any given time. Based on these

observations, Bluewater argues that the VA should have assigned Brian Hall’s proposal a High

Risk on the Performance Risk factor. Defendant does not address Bluewater’s performance risk

contention at all in its response and cross-motion, and merely states in its reply that “the record is

replete with the experience Brian Hall Properties has at the [DHS] FLETC and similar facilities.”

Def.’s Reply 10.

The documents in the administrative record bearing upon the VA’s evaluation of Brian

Hall’s performance risk, see AR 868-70, 1181-82, reveal that the evaluation was problematic in

several respects. To begin, two of the three performance examples that the VA assessed were

not contracts awarded to Brian Hall, and there is no indication that the VA recognized this fact.

Rather, the VA appears to have evaluated Brian Hall’s experience using these erroneous

performance examples.

25

One of the misidentified contracts had a value of $125,490, AR 870, but the VA did

not consider that amount to be similar in size to the contract it planned to award, id. at 868, 1181.

-29-

Second, there is no indication that the VA, in the absence of any narrative description

provided by Brian Hall regarding the nature of the contracts it used as performance examples

(rather than its more general statements), looked beyond the information available in the FPDS

to determine the scope and complexity of the contracts. Rather, the VA appears to have relied on

the basic information available in the FPDS (such as contract identifier, awarding agency, award

type, award date, award amount, product/service code, and a less-than-250-character description

of the requirement). For the three performance examples it assessed (two of which were for

contracts not awarded to Brian Hall), the VA would have learned from searching the FPDS that

all three examples were purchase orders for “Transportation/Travel/Relocation-Travel/Lodging/

Recruitment: Lodging, Hotel/Motel” services, as well as the following information likely to bear

upon scope and complexity:

Initial

Identifier Award Description

Amount

70LGLY18PGLB00051 $12,744 IGF::OT::IGF OFF-CENTER LODGING

FOR FLETC STUDENTS

70LGLY18PGLB00328 $87,967 IGF::OT::IGF OFF-CENTER LODGING

FOR FLETC STUDENTS

70LGLY18PGLB00048 $125,490 IGF::OT::IGF OFF CENTER LODGING

FOR ONE CLASS ARRIVING IN

OCTOBER 2017.

See U.S. Gen. Servs. Admin., Fed. Procurement Data Syst. – Next Generation, https://www.fpds.

gov/ (last visited Oct. 23, 2020). Or, if the VA viewed the entries for the three performance

examples that Brian Hall presumably meant to be assessed, it would have learned that all three

examples were purchase orders for “Transportation/Travel/Relocation-Travel/Lodging/

Recruitment: Lodging, Hotel/Motel” services, as well as the following information likely to bear

upon scope and complexity:

Initial

Identifier Award Description

Amount

70LGLY19PGLB00051 $47,553 Off center lodging requirements: this order

is to lodge a class arriving in December.

70LGLY18PGLB00328 $87,967 IGF::OT::IGF OFF-CENTER LODGING

FOR FLETC STUDENTS

70LGLY19PGLB00048 $48,642 IGF::OT::IGF OFF-CENTER LODGING

FOR FLETC STUDENTS

ADMINITRATIVE CHANGES, CLASS

AND EARLY ARRIVAL CHANGES

See id. In either scenario, the FPDS lacked any information regarding the precise requirements

of the contracts, such as the number of students to be lodged, the number of hotels to be used, or

Brian Hall’s administrative and management responsibilities. Moreover, while such information

-30-

might have been included in the Past Performance Questionnaire that the VA received, the VA

did not so indicate in its evaluation of Brian Hall’s performance risk. Thus, it appears that the

sole basis for the VA’s conclusion that Brian Hall’s three performance examples (whichever

three were actually considered) were “relevant due to scope and complexity that compares to the

work outlined in the [Performance Work Statement]” was its observation that the contracts were

for the provision of hotel and lodging services for a federal agency.

Notwithstanding these issues, the court cannot say that a Performance Risk rating of Low

Risk was inappropriate for Brian Hall. It is well settled that

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.

Tech. Innovation All. LLC v. United States, 149 Fed. Cl. 105, 138 (2020) (collecting cases). The

VA reviewed the information provided by Brian Hall, the information in the FPDS, and the

contents of the Past Performance Questionnaire before concluding that a Low Risk rating—

which reflected its conclusion that “low risk exists that [Brian Hall] will not successfully perform

the required effort,” AR 1175—was warranted. In other words, it did not have any evidence that

there was a moderate or substantial risk that Brian Hall could not perform the work required

under the contract. This assessment is entitled to deference. Moreover, the VA did not deviate

from the evaluation scheme described in the solicitation: it considered Brian Hall’s experience

and performance record, see id. at 1181-82, and was entitled to look beyond the four corners of

Brian Hall’s Performance Risk volume to assess performance risk, id. at 158. Accordingly, the

flaws in the VA’s evaluation do not render the assignment of a Low Risk rating for the

Performance Risk factor arbitrary and capricious.

e. Bluewater Has Established Prejudice

Bluewater has established that the VA significantly erred in evaluating Brian Hall’s

revised proposal with respect to the Technical Approach factor. However, to prevail in its

protest, Bluewater must further show that it was prejudiced by the VA’s error. In other words, it

must show that but for the alleged error, it would have had a substantial chance of being awarded

the contract.

To demonstrate a substantial chance of being awarded a contract in the circumstances

presented in this protest, Bluewater must establish, rather than allege, that the VA could not have

awarded the contract to the VOSB offeror in Tier II or the HUBZone small business offeror in

Tier III because if an award to either of those two offerors were possible, Bluewater’s chance to

receive the award would not be substantial. There can be no question that the VA could not have

awarded the contract to the HUBZone small business offeror because its proposal was materially

noncompliant with the solicitation requirements. See id. at 633-38. Furthermore, if the VA were

to treat the proposal of the VOSB offeror in the same manner as it treated the proposals of the

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SDVOSB offerors, then it would reject the VOSB offeror’s proposal as noncompliant with the

solicitation. Notwithstanding defendant’s argument to the contrary, nowhere in its proposal did

the VOSB offeror commit to supplying 300 rooms at one time, see id. at 433-53, 26 and the VA

rejected an SDVOSB for committing to supply only 30 rooms, id. at 876.

With the proposals of the VOSB offeror and the HUBZone small business offeror

eliminated from the competition, there would be no offerors remaining with priority over

Bluewater. Thus, Bluewater would have competed for the contract with all of the other Tier 3

offerors. Because Bluewater submitted a facially compliant proposal and proposed a price [. . .],

there was a substantial chance that the VA, after performing a tradeoff analysis, would have

determined that Bluewater’s proposal represented the best value to the government. Therefore,

Bluewater has established prejudice.

C. Injunctive Relief

Because Bluewater has established the existence of a significant, prejudicial procurement

error, the court must address whether Bluewater is entitled to injunctive relief. The United States

Court of Federal Claims has the authority to award injunctive relief pursuant to 28 U.S.C.

§ 1491(b)(2), and is guided in making such an award by Rule 65 of the Rules of the United

States Court of Federal Claims (“RCFC”). In determining whether to issue a permanent

injunction, the court must consider whether (1) the plaintiff has succeeded on the merits; (2) the

plaintiff will suffer irreparable harm if the court withholds injunctive relief; (3) the balance of

hardships favors the grant of injunctive relief; and (4) it is in the public interest to grant

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

protestor bears the burden of establishing the factors by a preponderance of the evidence. Lab.

Corp. of Am. Holdings v. United States, 116 Fed. Cl. 643, 654 (2014); Textron, Inc. v. United

States, 74 Fed. Cl. 277, 287 (2006). None of the four factors, taken individually, is dispositive,

and a “weakness of the showing regarding one factor may be overborne by the strength of the

others.” FMC Corp. v. United States, 3 F.3d 424, 427 (Fed. Cir. 1993). 27 Conversely, “the

absence of an adequate showing with regard to any one factor may be sufficient, given the

weight or lack of it assigned the other factors, to justify the denial” of injunctive relief. Id. The

award of injunctive relief is within the discretion of the court. See Turner Constr. Co. v. United

States, 645 F.3d 1377, 1388 (Fed. Cir. 2011) (“We give deference to the Court of Federal

Claims’ decision to grant or deny injunctive relief, only disturbing its decision if it abused its

discretion.”).

Bluewater has succeeded on the merits of its protest. Therefore, the court turns to the

remaining injunctive relief factors.

26

Indeed, as noted above, the VOSB offeror identified two hotels in its proposal and

stated only that [. . .].

27

Although FMC Corp. concerns the award of a preliminary injunction, 3 F.3d at 427,

“[t]he standard for a preliminary injunction is essentially the same as for a permanent injunction

with the exception that the plaintiff must show a likelihood of success on the merits rather than

actual success,” Amoco Prod. Co. v. Vill. of Gambell, 480 U.S. 531, 546 n.12 (1987).

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1. Irreparable Injury

With respect to the irreparable injury factor, “[t]he relevant inquiry . . . is whether

plaintiff has an adequate remedy in the absence of an injunction.” Magellan Corp. v. United

States, 27 Fed. Cl. 446, 447 (1993); see also Younger v. Harris, 401 U.S. 37, 43-44 (1971)

(noting that “the basic doctrine of equity jurisprudence [is] that courts of equity should not act

. . . when the moving party has an adequate remedy at law and will not suffer irreparable injury if

denied equitable relief”). Bluewater contends that it has been harmed absent a permanent

injunction because it is losing both the profits it could have earned on the contract and

experience and capabilities that it would have received by performing the contract.

This court has recognized that a lost opportunity to compete for a contract—and the

attendant inability to obtain the profits expected from the contract—can constitute irreparable

injury. See, e.g., Akal Sec., Inc. v. United States, 87 Fed. Cl. 311, 319 (2009); Hosp. Klean of

Tex., Inc. v. United States, 65 Fed. Cl. 618, 624 (2005), cited in Sys. Application & Techs., Inc.

v. United States, 691 F.3d 1374, 1383 (Fed. Cir. 2012); see also Serco Inc. v. United States, 81

Fed. Cl. 463, 501-02 (2008) (observing that when “the only other available relief—the potential

for recovery of bid preparation costs––would not compensate [the protestors] for the loss of

valuable business,” such a “loss, deriving from a lost opportunity to compete on a level playing

field for a contract, has been found sufficient to prove irreparable harm”). Similarly, the loss of

experience resulting from a lost opportunity to compete for a contract can constitute an

irreparable injury. See, e.g., Palantir USG, Inc. v. United States, 129 Fed. Cl. 218, 293 (2016),

aff’d, 904 F.3d 980 (Fed. Cir. 2018).

Normally, attorney argument is insufficient to establish an irreparable injury. See, e.g.,

Intelligent Waves, LLC v. United States, 135 Fed. Cl. 299, 314 (2017); Totolo/King v. United

States, 87 Fed. Cl. 680, 693 (2009), appeal dismissed and remanded sub nom. Totolo/King Joint

Venture v. United States, 431 F. App’x 895 (Fed. Cir. 2011) (per curiam); Ashbritt, Inc. v.

United States, 87 Fed. Cl. 344, 367 (2009). However, as the incumbent contractor, Bluewater

likely submitted a proposal with the expectation of making a profit (as opposed to submitting a

lower-priced offer to gain a toehold in the industry), and there can be no dispute that a lost

opportunity to compete for a contract forecloses a contractor’s ability to gain the experience

associated with performing the contract, which has value when competing in future

procurements. Consequently, Bluewater has established irreparable injury.

2. Balance of Harms

In addition to considering whether a protestor would suffer an irreparable injury absent a

permanent injunction, “the court must weigh the irreparable harm plaintiff would suffer without

an injunction against the harm an injunction would inflict on defendant . . . .” Progressive

Indus., 129 Fed. Cl. at 485. Bluewater contends that the VA’s sole interest is to ensure that it can

provide student lodging for the LETC, and that if the court issued a permanent injunction, the

VA could use other means to provide the lodging (such as allowing continued performance by

the incumbent) while it proceeds with its evaluation of proposals. Because the VA would not be

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harmed by an injunction, Bluewater argues, the balance of harms tips in its favor. The court

agrees.

3. Public Interest

Finally, when “employing the extraordinary remedy of injunction,” a court “should pay

particular regard for the public consequences” of doing so. Weinberger v. Romero-Barcelo, 456

U.S. 305, 312 (1982). There is no dispute that “[t]here is an overriding public interest in

preserving the integrity of the procurement process by requiring the Government to follow its

procurement regulations.” Bona Fide Conglomerate, Inc. v. United States, 96 Fed. Cl. 233, 242

(2010). Although “there is a countervailing public interest in minimizing disruption” to the

procuring agency, Heritage of Am., LLC v. United States, 77 Fed. Cl. 66, 80 (2007), defendant

has not explained how the VA would be disrupted by properly evaluating the proposals in this

procurement. Rather, defendant mischaracterizes Bluewater’s protest as an attempt to block the

VA’s use of a tiered set-aside, and maintains that there is a public interest in seeking to award a

contract to “favored offerors from prioritized socioeconomic categories.” Def.’s Cross-Mot. 20.

But a permanent injunction would neither terminate the tiered set-aside crafted by the VA nor

disturb the VA’s contracting preferences. Accordingly, the court finds that the public interest

weighs in Bluewater’s favor.

4. Summary

In addition to prevailing on the merits of its protest, Bluewater has established that it will

suffer irreparable harm if the court withholds injunctive relief, that the balance of harms tips in

its favor, and that an award of injunctive relief is in the public interest. Thus, the issuance of a

permanent injunction is warranted.

III. CONCLUSION

For the reasons set forth above, the court DENIES defendant’s motion to dismiss,

GRANTS Bluewater’s motion for judgment on the administrative record, and DENIES

defendant’s cross-motion for judgment on the administrative record. Bluewater is entitled to

injunctive relief. Specifically, the court ENJOINS the VA from continuing performance on the

contract awarded to Brian Hall pursuant to the solicitation at issue in this protest, DIRECTS the

VA to cancel the contract awarded to Brian Hall, and further DIRECTS the VA to select a new

awardee by proceeding with its evaluation of proposals, starting with the Tier 2 proposals, in

accordance with the provisions of the solicitation. Further, the court awards costs to Bluewater

pursuant to RCFC 54(d). The clerk shall enter judgment in favor of Bluewater, consistent with

this opinion.

The court has filed this ruling under seal. The parties shall confer to determine agreed-to

proposed redactions. Then, by no later than Friday, November 13, 2020, the parties shall file a

joint status report indicating their agreement with the proposed redactions, attaching a copy of

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those pages of the court’s ruling containing proposed redactions, with all proposed

redactions clearly indicated.

IT IS SO ORDERED.

s/ Margaret M. Sweeney

MARGARET M. SWEENEY

Senior Judge

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