System Studies and Simulation, Inc. v. United States

In the United States Court of Federal Claims

Nos. 20-575C and 20-609C (Consolidated)

(Filed Under Seal: December 18, 2020)

(Reissued for Publication: January 21, 2021)*

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SYSTEM STUDIES & SIMULATION, *

INC. and L3 DOSS AVIATION, INC., *

*

Plaintiffs, *

*

v. *

*

Postaward Bid Protest; Motions for

THE UNITED STATES, *

Reconsideration; Prejudice; Best Value

*

Tradeoff Analysis; Extrarecord Evidence

Defendant, *

*

and *

*

CAE USA INC., *

*

Defendant-Intervenor. *

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Walter B. English, Huntsville, AL, and Kevin P. Mullen, Washington, DC, for plaintiffs.

Evan Wisser, United States Department of Justice, Washington, DC, for defendant.

Alexander B. Ginsberg, McLean, VA, for defendant-intervenor.

OPINION AND ORDER

SWEENEY, Senior Judge

Plaintiffs System Studies & Simulation, Inc. (“S3”) and L3 Doss Aviation, Inc. (“L3

Doss”) move for reconsideration of the court’s October 28, 2020 Opinion and Order denying

plaintiffs’ motions for judgment on the administrative record and dismissing plaintiffs’ protests

(“MJAR Ruling”). Plaintiffs maintain that the United States Department of the Army, Mission

and Installation Contracting Command (“the Agency”) improperly awarded a contract for

advanced helicopter flight training support (“AHFTS”) to defendant-intervenor CAE USA Inc.

(“CAE”). In their motions for reconsideration, plaintiffs assert that the MJAR Ruling contains

*

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

parties on January 19, 2021. The redactions are indicated with bracketed ellipses (“[. . .]”).

manifest errors of law and fact, and that reconsideration is necessary to prevent manifest

injustice. For the reasons discussed below, the court denies plaintiffs’ motions.

I. BACKGROUND

A. The Solicitation and Initial Evaluation of Proposals

The Agency issued solicitation W9124G-18-R-0009 on June 25, 2018, to acquire AHFTS

for the United States Army Aviation Center of Excellence (“USAACE”) at Fort Rucker,

Alabama.1 Administrative R. (“AR”) 244, 256. The Agency would award a single firm-fixed-

price contract for a thirty-day phase-in period, an eleven-month base period, and six one-year

option periods. Id. at 144. Section M of the solicitation described how the Agency planned to

evaluate the proposals. Id. at 588-95. With respect to the substance of the evaluations, the

Agency stated that it intended to award the contract to the offeror “whose proposal represents the

best value after evaluation in accordance with the factors in the solicitation by utilizing the trade-

off process.” Id. at 588. The solicitation outlined five such factors: (1) technical capability,

(2) staffing and management approach, (3) past performance, (4) small business participation,

and (5) price. Id. The relative importance of the factors was described as follows:

Factor 1 (Technical Capability) and Factor 2 (Staffing and Management

Approach) are of equal importance and are more importan[t] tha[n] all other non-

price factors. Factor 3 (Past Performance) is more important than Factor 4 (Small

Business Participation). In accordance with [Federal Acquisition Regulation

(“FAR”)] 15.304(e)(2), all non-price factors combined are significantly more

important than Factor 5 (Price).

Id. [. . .] offerors submitted timely proposals for this solicitation, leading the Agency to establish

a competitive range and initiate discussions with four of them: CAE, [. . .], S3, and L3 Doss. Id.

at 3616. The Source Selection Authority (“SSA”) ultimately awarded the contract to L3 Doss.

Id. at 4464-65.

S3 filed its initial bid protest on October 1, 2019.2 See generally Sys. Studies &

Simulation, Inc. v. United States, 146 Fed. Cl. 186 (2019). The court rejected S3’s assertions

that it was prejudiced by the Agency’s staffing evaluation and that the Agency’s past

performance evaluation was unreasonable. Id. at 200-01. However, the court agreed with S3

that the Agency failed to engage in a proper tradeoff analysis and effectively converted the

acquisition to a lowest price technically acceptable procurement—an error that prejudiced S3.

Id. at 201-02. The court thus enjoined the Agency from proceeding with contract performance

1

A detailed description of the underlying facts and the parties’ dispute is provided in the

court’s MJAR Ruling and will not be repeated in full here.

2

L3 Doss intervened in this protest, as the awardee at the time, but did not file briefs or

participate in oral argument.

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and ordered the Agency to “reevaluate the proposals in the competitive range and render a new

Source Selection Decision [(“SSD”)], performing a new tradeoff analysis and assigning each

factor the appropriate weight in accordance with this court’s decision.” Id. at 204.

B. Reevaluation of Proposals

Pursuant to the court’s decision, the Source Selection Evaluation Board reevaluated

factors 1 and 2 for offerors in the competitive range, and the SSA issued a new SSD. AR 4858.

The SSA summarized the offerors’ final ratings as follows:

L3 Doss [. . .] S3 CAE

Factor 1 – Technical [. . .] [. . .] [. . .] [. . .]

Capability

Factor 2 – Staffing [. . .] [. . .] [. . .] [. . .]

and Management

Approach

Factor 3 – Past [. . .] [. . .] [. . .] [. . .]

Performance Confidence Confidence Confidence Confidence

Factor 4 – Small [. . .] [. . .] [. . .] [. . .]

Business

Participation

Id. at 4861. The SSA also noted the final proposed and evaluated prices,3 which remained

unchanged since the previous evaluation:

Offeror Total Proposed Price Total Evaluated Price

(inclusion of FAR

52.217-8)

L3 Doss $[. . .] $[. . .]

[. . .] $[. . .] $[. . .]

S3 $[. . .] $[. . .]

CAE $[. . .] $96,655,774.45

Id.4 Ultimately, the SSA concluded that “paying more for the values proposed in CAE’s

3

The SSA concurred with the contracting officer that each of the proposed prices was

fair, reasonable, realistic, balanced, and below the independent government cost estimate

(“IGCE”). AR 4870.

4

The SSD indicates that L3 Doss’s total evaluated price, both before and after the

corrective action, was $[. . .]. AR 4857, 4861. Elsewhere, L3 Doss’s total evaluated price is

listed as $[. . .]. E.g., id. at 4451 (pre-corrective action SSD), 5210 (revised price negotiation

memorandum).

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proposal is advantageous to the program in the long-run and is consistent with the solicitation.”

Id. at 4873. On May 5, 2020, the Agency awarded the contract to CAE. Id. at 5515.

C. CAE’s [. . .] Proposal

For both the technical capability factor and staffing factor, evaluators designated

strengths, weaknesses, significant weaknesses, deficiencies, and risks. Id. at 590. Of particular

relevance to plaintiffs’ motions for reconsideration is the strength that the Agency awarded to

CAE for its proposed approach to [. . .].5 In its proposal, CAE stated that if it was required to

conduct training flights [. . .], but was unable to do so due to [. . .], it would only bill the Agency

for [. . .]. Id. at 1345. In her SSD, the SSA provided the following evaluation of this billing

approach:

CAE states “[. . .].” . . . This benefits the Government since [Performance Work

Statement] 5.3.1.3 allows the contractor to be reimbursed for “services up to the

level of support approved by the Contracting Officer”, not [. . .] as offered here.

This is a [. . .] benefit on [. . .] flying for the Army since the billed rate will be

[. . .].

Id. at 4865.

D. This Bid Protest

On May 8, 2020, S3 filed the instant bid protest, challenging the Agency’s award to

CAE. L3 Doss similarly protested the award on May 15, 2020, and the court consolidated the

protests. The court also granted CAE’s motion to intervene in the protest to defend its receipt of

the contract. On October 28, 2020, the court issued a decision granting defendant’s and CAE’s

motions for judgment on the administrative record (“MJARs”), denying plaintiffs’ MJARs, and

dismissing the case. The court found error with only one aspect of the Agency’s decision: the

award of a strength to CAE for its [. . .] proposal. The court rejected the “[. . .] benefit” label that

the SSA had assigned to the policy, emphasizing that “[t]he record shows no evidence of such

[. . .]; instead, the court sees only a very narrow [. . .] policy with unpredictable applicability.”

MJAR Ruling 21. Nonetheless, the court concluded that plaintiffs did not demonstrate that the

assignment of this strength affected the SSA’s best value tradeoff analysis such that they were

prejudiced by the error.

On November 2, 2020, both plaintiffs filed motions seeking reconsideration of the court’s

MJAR Ruling. The parties fully briefed the motions, and the court heard argument on December

9, 2020. The motions are now ripe for adjudication.

5

A “strength” is “an aspect of an offeror’s proposal that has merit or exceeds specified

performance or capability requirements in a way that will be advantageous to the Government

during contract performance.” AR 590.

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II. DISCUSSION

A. Standard of Review

A motion for reconsideration is a request for “extraordinary” relief and is not an avenue

for a dissatisfied party to simply relitigate the case. Caldwell v. United States, 391 F.3d 1226,

1235 (Fed. Cir. 2004); Four Rivers Invs., Inc. v. United States, 78 Fed. Cl. 662, 664 (2007),

aff’d, 330 F. App’x 919 (Fed. Cir. 2009) (unpublished table decision); Fru-Con Constr. Corp. v.

United States, 44 Fed. Cl. 298, 300 (1999), aff’d per curiam, 250 F.3d 762 (Fed. Cir. 2000)

(unpublished table decision). Thus, such a motion generally does not allow a party to raise

arguments that it failed to raise previously or reassert arguments that have already been

considered. Four Rivers Invs., 78 Fed. Cl. at 664. Under Rule 59(a)(1) of the United States

Court of Federal Claims, the court “may grant a motion for reconsideration when there has been

an intervening change in the controlling law, newly discovered evidence, or a need to correct

clear factual or legal error or prevent manifest injustice.” Biery v. United States, 818 F.3d 704,

711 (Fed. Cir. 2016) (quoting Young v. United States, 94 Fed. Cl. 671, 674 (Fed. Cl. 2010). A

decision on a motion for reconsideration is within the discretion of the trial court. See Entergy

Nuclear FitzPatrick, LLC v. United States, 711 F.3d 1382, 1386 (Fed. Cir. 2013) (explaining that

a decision on a motion for reconsideration is reviewed on appeal for abuse of discretion).

B. The Court Properly Evaluated Competitive Prejudice

Both plaintiffs contend that “the Court applied the incorrect legal standard for

competitive prejudice” by failing to recognize that “prejudice is presumed when a protester has

established irrational agency action.”6 L3 Doss Mot. 2-3; accord S3 Mot. 9-10. Defendant and

CAE maintain that “the Court must determine whether there was a ‘substantial chance’ that the

protestor would have received the contract award but for the error in question,” and that the court

properly applied this standard in this case. CAE Resp. 1-2; accord Def. Resp. 4-5.

The “presumption of prejudice” advocated by plaintiffs has its roots in Textron, Inc. v.

6

Defendant and CAE insist that having failed to advocate for the “presumption of

prejudice” standard during MJAR briefing, both plaintiffs have waived this argument. Def.

Resp. 3-4; CAE Resp. 11-13. Normally, the court would agree. “[A]n argument made for the

first time in a motion for reconsideration comes too late, and is ordinarily deemed waived and

not preserved for appeal.” Bluebonnet Sav. Bank, F.S.B. v. United States, 466 F.3d 1349, 1361

(Fed. Cir. 2006). The phrase “presumption of prejudice,” or any similar phrase denoting the

same concept, does not appear in the parties’ MJAR briefing. Moreover, a thorough review of

the MJAR briefing demonstrates that both plaintiffs actively embraced the “substantial chance”

standard. L3 Doss MJAR 2, 7, 9; L3 Doss MJAR Reply 3, 15, 19, 24; S3 MJAR 36-37; S3

MJAR Reply 19. Nevertheless, given the gravity of the court’s responsibility to apply proper

legal standards, the court will exercise its discretion and consider plaintiffs’ assertions. See Wi-

LAN USA, Inc. v. Apple Inc., 830 F.3d 1374, 1385 (Fed. Cir. 2016) (holding that the trial court

properly exercised its discretion in considering an argument raised for the first time in a motion

for reconsideration).

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United States, 74 Fed. Cl. 277 (2006). In that decision, the court described the origin of the

substantive prejudice requirement and how it had become intertwined with the prejudice that

must be shown to establish standing. Id. at 327-29. It observed that the United States Court of

Appeals for the Federal Circuit (“Federal Circuit”) “originally restricted a showing of substantive

prejudice to the requirement of showing a clear and prejudicial violation of a procurement statute

or regulation.” Id. at 327 (citing CACI Field Servs., Inc. v. United States, 854 F.2d 464 (Fed.

Cir. 1988)); accord Impresa Construzioni Geom. Domenico Garufi v. United States, 238 F.3d

1324, 1332-33 (Fed. Cir. 2001). It then remarked:

The term “prejudice” in the context of bid protests[] has been confused in

defining both standing and prejudice on the merits with the requirement that the

protestor must show “some significant error in the procurement process, but also

that there was a substantial chance it would have received the contract award.”

Statistica, Inc. v. Christopher, 102 F.3d 1577, 1581 (Fed. Cir. 1996) . . . . This

formulation conflates the relative importance of the procurement error with the

standing requirement set forth as early as 1983 in CACI, Inc.-Fed. v. United

States, 719 F.2d 1567, 1574-75 (Fed. Cir. 1983).

74 Fed. Cl. at 327. Ultimately, the court suggested

that any prejudicial error in the procurement process sufficient to upset an award

must be significant to the overall decision to award the contract to the apparent

awardee. When the court finds a violation of an applicable procurement

regulation, the court should determine as a factual matter that the protestor has

been prejudiced. This court proposes that the prejudice analysis should not focus

on whether the protestor had a “substantial chance” of receiving the award

because it had a fully compliant proposal, but, rather, whether the procurement

violation was significant to the protestor’s chance of being awarded the contract.

This prejudice analysis, however, should be reached only when the protestor has

shown violation of an applicable procurement regulation. If the court finds that

the Government has acted arbitrarily and capriciously, the analysis stops at that

finding. There should be no need to continue to prejudice, because a finding that

the Government has acted arbitrarily and capriciously necessarily invalidates the

procurement, and the court must enjoin the procurement award or enjoin

performance under an award already made, and the court also may enjoin award

to any proposer than the protestor.

Id. at 329 (footnote omitted).

The court in Caddell Construction Co. v. United States applied the “presumption of

prejudice” standard articulated in Textron. 125 Fed. Cl. 30, 50-51 (2016). It observed that the

procuring agency “acted arbitrarily and capriciously in misleading [the awardee] about its pricing

and awarding the contract based on misinformed pricing—the award price was based upon error,

not a legitimate process, rendering award invalid.” Id. at 51. “[G]iven the nature of this error,”

the court concluded that “prejudice should be presumed.” Id. The court further concluded that

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the protestor established prejudice “stemming from the [procuring agency’s] irrational conduct

of [the] procurement” even if prejudice was not presumed. Id.; see also HVF W., LLC v. United

States, 146 Fed. Cl. 314, 338-39 (2019) (holding that even if prejudice was not presumed, the

protestor established prejudice), appeals docketed, Nos. 20-1414 (Fed. Cir. Jan. 30, 2020), 20-

1583 (Mar. 18, 2020); Citizant, Inc. v. United States, 142 Fed. Cl. 260, 273-74 (2019) (same).

The “presumption of prejudice” standard was also addressed in Fluor Intercontinental,

Inc. v. United States, 147 Fed. Cl. 309, 337-38 (2020), appeal dismissed, No. 20-1615 (Fed. Cir.

Apr. 24, 2020). In that case, the court concluded that the procuring agency “failed to properly

conduct a price reasonableness determination in accordance with both FAR 15.404-1 and the

terms of the Solicitation” and, relying on the analyses in Textron and Caddell Construction,

determined that it would apply “a different test [for prejudice] depending on whether the

procurement violated a regulation or the [procuring agency] arbitrarily and capriciously violated

the terms of the Solicitation.” Id. at 337. It held that failure to comply with the solicitation was

presumptively prejudicial and that the violation of the FAR “directly affect[ed the protestor’s]

chance of being awarded certain contracts” such that the protestor was prejudiced. Id. at 337-38.

As reflected in these decisions, in a situation where a procuring agency has acted

irrationally, a presumption of prejudice would apply only when that irrational action actually

affected the protestor’s ability to be awarded the contract. See Caddell Constr., 125 Fed. Cl. at

51. In other words, “the protestor bears the burden of proving that a significant error marred the

procurement in question.” Glenn Def. Marine (ASIA), PTE Ltd. v. United States, 720 F.3d 901,

907 (Fed. Cir. 2013) (emphasis added). This approach is consistent with the mandate of the

Administrative Procedure Act (“APA”) that “due account shall be taken of the rule of prejudicial

error,” 5 U.S.C. § 706, an inquiry that applies the “same kind of ‘harmless-error’ rule that courts

ordinarily apply in civil cases.” Wellpoint Mil. Care Corp. v. United States, 953 F.3d 1373,

1380 (Fed. Cir. 2020) (quoting Shinseki v. Sanders, 556 U.S. 396, 406 (2009)); accord Am.

Relocation Connections, LLC v. United States, 789 F. App’x 221, 228 (Fed. Cir. 2019). “The

factors that inform a reviewing court’s ‘harmless-error’ determination are various, potentially

including, among other case-specific factors, an estimation of the likelihood that the result would

have been different [and] an awareness of what body . . . has the authority to reach that result.”

Wellpoint, 953 F.3d at 1380 (quoting Sanders, 556 U.S. at 411). The analysis the court

conducted in its MJAR Ruling is fully consistent with this precedent.7 The error identified by

the court neither undercut the integrity of the Agency’s procurement process nor harmed

plaintiffs’ chances of being awarded the contract.

7

The outcomes in HVF and Citizant are consistent as well. In both cases, the court

carefully explained the significance of the errors it observed in the procurement process. HVF,

146 Fed. Cl. at 338-39 (emphasizing that the awardee was ineligible for award and that the other

two bidders were also possibly ineligible for award); Citizant, 142 Fed. Cl. at 274 (emphasizing

that (1) the protestor was not unequivocally disqualified from receiving award, (2) the protestor

established errors that would result in the removal of a certain number of awardees, and (3) the

contracting officer would be required to reevaluate a significant number of the awardees’

proposals).

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In their articulation of a “presumption of prejudice” standard, plaintiffs overlook not only

the requirement that an agency error go to the heart of the procurement process, but the

deference inherent in the Federal Circuit’s approach to procurement decisions that allegedly lack

a rational basis. In such cases, “the test for reviewing courts is 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.’” Impresa, 238 F.3d at 1332-33 (quoting Latecoere Int’l, Inc. v. U.S. Dep’t of the

Navy, 19 F.3d 1342, 1356 (11th Cir. 1994); Saratoga Dev. Corp. v. United States, 21 F.3d 445,

456 (D.C. Cir. 1994)). And where, as here, the protest involves a negotiated “best value”

procurement, “the 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).

This guidance is not consistent with a presumption that any irrational choice within a

procurement is fatal. Even if a protestor demonstrates that an SSA faltered on a single strength,

that protestor has not automatically demonstrated that the “award decision had no rational basis.”

Impresa, 238 F.3d at 1333 (quoting Saratoga Dev. Corp., 21 F.3d at 456) (emphasis added). In

this case, the court concluded that the improper assignment of a strength to CAE did not impact

the SSA’s best value tradeoff analysis and award decision. Consequently, a “presumption of

prejudice” did not apply.

C. The Court Properly Determined That the Agency’s Erroneous Assignment of a

Strength to CAE Did Not Prejudice Plaintiffs

Independent of their arguments regarding the proper legal standard, plaintiffs also allege

that the court inappropriately substituted its judgment for that of the SSA when it determined that

the erroneous strength assigned to CAE would not have affected the best value tradeoff analysis

and award decision.

As plaintiffs warn, the court “should not substitute its judgment for that of the agency,

but should review the basis for the agency decision to determine if it was legally permissible,

reasonable, and supported by the facts.” Career Training Concepts, Inc. v. United States, 83 Fed.

Cl. 215, 221 (2008) (citing Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto Ins. Co., 463

U.S. 29, 43 (1983)). “If the court finds a reasonable basis for the agency’s decision, the court

should stay its hand even though it might, as an original proposition, have reached a different

conclusion . . . .” Id. (quoting Honeywell, Inc. v. United States, 870 F.2d 644, 648 (Fed. Cir.

1989). Even so, these principles “do[] not invariably require a remand to the agency whenever a

court holds that the agency’s action was based on legally improper grounds.” Oracle Am., Inc.

v. United States, 975 F.3d 1279, 1290 (Fed. Cir. 2020). The court may still affirm an agency’s

decision, on different grounds than those offered by the agency,

when the error in question “clearly had no bearing on the procedure used or the

substance of decision reached,” Mass. Trs. of E. Gas & Fuel Assocs. v. United

States, 377 U.S. 235, 248 (1964); if there is no reason to believe that the decision

would have been different, In re Watts, 354 F.3d 1362, 1370 (Fed. Cir. 2004); if it

is clear that the agency would have reached the same result, Fleshman v. West,

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138 F.3d 1429, 1433 (Fed. Cir. 1998); if the result is “foreordained,” Bethlehem

Steel Corp. v. Gorsuch, 742 F.2d 1028, 1036 (7th Cir. 1984); if the court is “not in

substantial doubt whether the administrative agency would have made the same

ultimate finding with the erroneous finding removed,” Kurzon v. U.S. Postal

Serv., 539 F.2d 788, 796 (1st Cir. 1976); or where there is no “significant chance

that but for the error, the agency might have reached a different result,” NLRB v.

Am. Geri-Care, Inc., 697 F.2d 56, 64 (2d Cir. 1982).

Id. at 1291; see also AFGE Local 3599 v. EEOC, 920 F.3d 794, 799 (Fed. Cir. 2019) (indicating

that a court may “uphold a decision of less than ideal clarity if the agency’s path forward may

reasonably be discerned” (quoting Bowman Transp., Inc. v. Ark.-Best Freight Sys., Inc., 419

U.S. 281, 286 (1974))).

In assessing plaintiffs’ contentions, two features of the source selection process are worth

underscoring. First, the unpredictability of CAE’s [. . .] policy was candidly acknowledged.8 As

the contracting officer representative explained:

[. . .] are not in the Program of Instruction (POI) at [USAACE]. [. . .] are

considered to be [. . .]. This means that the contractor would primarily provide

instructors [. . .]. [. . .] provides a [. . .] capability. Some months have passed

with no [. . .] flying and some months have gone with every [. . .] flying [. . .]

days. It is difficult to provide a set, or even an average, number of [. . .] days per

year. Regardless, the offer of only [. . .] is a financial benefit to the government.

AR 4834. In light of this uncertainty, the SSA erred when she called the proposal a “[. . .]

benefit on [. . .].” Id. at 4865. Critically, however, the record does not suggest that the Agency

misunderstood the reality of how CAE’s [. . .] strength would be applied.

Second, the SSA’s detailed price comparison completely disregards any potential savings

from CAE’s [. . .] method:

CAE’s proposed price is not “so [. . .] high as to diminish the value to the

Government that may be gained under other aspects of the offer.” While CAE

proposed the highest total evaluated price (TEP), CAE’s TEP is below the IGCE

and is only $[. . .] or [. . .]% higher than S3’s TEP. This amounts to

approximately $[. . .] more per month over the phase-in, base, 6 option years, and

an optional 6-month extension (approximately 90 months), in comparison to S3’s

8

Plaintiffs make much of an earlier e-mail exchange in which Agency personnel

theorized: “The [. . .] [price premium] over the 7 year period could be made up because CAE

has offered to [. . .].” AR 4823. If this predecisional speculation had influenced the SSA, the

court would expect to see it considered in her tradeoff analysis. But on the contrary, her

thorough justification of CAE’s price premium provides no indication that she expected that

[. . .] million to be wiped out (or even minimized) by CAE’s [. . .] policy. See id. at 4870-73.

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TEP monthly cost. For this relatively [. . .] difference in price, the Government

will realize [. . .] benefits including the [. . .] unique strengths discussed above and

an additional proposed [. . .].

....

Accordingly, my decision is the award will be made to CAE in the amount

of $[. . .] for the phase-in period, base period and six year options.

Id. at 4872-73. The SSA calculated precisely how much more the Agency would have to pay for

CAE – not just per year, but per month. With her eyes wide open, fully aware of each offerors’

price and the practical realities of their billing practices, she stated that the Agency was willing

to pay $[. . .] for CAE’s services.9 The court takes her at her word.

“[I]n various administrative law contexts, the Supreme Court has ‘warned against courts[]

determining whether an error is harmless through the use of mandatory presumptions and rigid

rules rather than case-specific application of judgment, based upon examination of the record.”

Electronic Data Sys., LLC v. United States, 93 Fed. Cl. 416, 437 n.25 (quoting Sanders, 556 U.S.

at 407). For this reason, the court will not automatically conclude that the erroneous [. . .]

strength was prejudicially significant simply because the SSA mentioned it. See Wellpoint, 953

F.3d at 1381 (“Even if the [technical evaluation team’s] error had been carried over to the SSA’s

decision, [the protestor] has not demonstrated that the SSA’s decision would have been

different.”). Instead, as counsel for defendant phrased it during oral argument, “there is clearly a

role for the Court to apply some level of analysis and logic in the prejudice determination.” Tr.

27. The court has done just that. A best value tradeoff requires the SSA to balance two

components: (1) the quality of service she desires and (2) the price she is willing to pay. Serco

Inc. v. United States, 81 Fed. Cl. 463, 496 (2008). In terms of the quality of service proposed by

the respective offerors, invalidation of the [. . .] strength has no impact. The obviously high

value that the SSA placed on CAE’s [. . .] will still be realized. See AR 156 (“The ability to

[. . .] staff qualified personnel is critical to the accomplishment of the mission. If the contractor’s

instructor pilot trainer and management staff is [. . .], either due to [. . .], the quality and validity

of the service will be [. . .].”), 4864 (noting that “[. . .]” and that “CAE proposes manning levels

[. . .]% to [. . .]% [. . .] than the number of [. . .] the Government estimated [. . .] manning

requirements”), 4872 (emphasizing that “the Government will realize [. . .] benefits” from,

among other advantages, CAE’s [. . .] additional [. . .]). As for price, the SSA thoroughly

justified her choice, discussing CAE’s price premium in minute detail with no reference to how

the [. . .] policy might mitigate it.10 These business judgments form the core of a best value

9

Significantly, CAE’s proposed price was [. . .]% lower than the IGCE, AR 4870, 5224,

and neither plaintiff challenges the reasonableness of the IGCE.

10

In fact, provided there are a [. . .] over the life of the contract, CAE’s [. . .] policy

likely will [. . .] the Agency [. . .] money. As CAE noted during oral argument, “the Court

correctly found that [the [. . .] policy] was an actual [. . .] benefit of CAE’s proposal but would

not result in a [. . .]. So it wasn’t as if the Army credited CAE for something wild that it didn’t

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tradeoff, and the court’s decision leaves them undisturbed.

Oral argument in this matter highlighted a key incongruity between the court’s MJAR

Ruling and plaintiffs’ perception of the [. . .] strength. L3 Doss called the [. . .] strength a

“technical discriminator that differentiated CAE from the other offerors . . . .” Tr. 7-8; see also

id. at 6 (describing the [. . .] strength as “a technical discriminator that offset CAE’s price

premium”). L3 Doss also posited that removal of the strength could lead to a “reduction of the

technical [g]ap between the offerors.” Id. at 12. S3, for its part, urged the court to “view the

tradeoff analysis in the award decision as a unitary thing,” id. at 22, cautioning that the court may

not “divide” or differentiate between CAE’s strengths, id. at 64. In almost any other protest,

plaintiffs would be correct. Typically, agencies use strengths to categorize a proposal’s

“technical benefits” or “non-cost factors.” Serco, 81 Fed. Cl. at 497; see, e.g., Kiewit

Infrastructure W. Co. v. United States, 137 Fed. Cl. 689, 695 (2018) (strength assigned “based on

[the offeror’s] prior experience working on a dewatering project with a partial reservoir pool”);

Mil-Mar Century Corp. v. United States, 111 Fed. Cl. 508, 528 (2013) (strength assigned for

offeror’s “experience supplying systems that are collectively very comparable to [that used by

the agency], involving essentially the same scope and magnitude of effort and level of

complexity as required by this solicitation”); IBM Corp. v. United States, 101 Fed. Cl. 746, 753

(2011) (strength assigned for a “mentor-protégé agreement with a proposed small business

subcontractor”). Such strengths would certainly act as “technical discriminators” between

offerors, and differentiating between them would be precarious.

This protest is different. Plaintiffs overlook the significance of a distinction the court

made in its MJAR Ruling: “Unlike the other strengths awarded to the offerors, CAE’s [. . .]

strength was based on cost rather than any quality that ‘exceeds specified performance or

capability requirements.’” MJAR Ruling 26 (quoting AR 590). Had the court invalidated a

CAE strength related to the quality of service it offered (its [. . .], for instance), the court likely

would have reached a different conclusion regarding the propriety of the SSA’s tradeoff analysis.

The court cannot say with any certainty precisely how much the Agency valued each of these

“qualitative” strengths; if it had tried, plaintiffs’ assertions that the court improperly substituted

its judgment for that of the Agency would likely have been valid. The value of the [. . .]

strength, in contrast, is much easier to objectively ascertain.11

propose.” Tr. 37. The error in the SSA’s language was one of degree only.

11

The caselaw upon which S3 relies that describes instances of flawed best value

tradeoff analysis does not adequately address this distinction. See S3 Mot. 8. In BayFirst Sols.,

LLC v. United States, the court found two “significant errors” in the agency’s tradeoff analysis:

(1) the SSA weighed the evaluation factors using a different scheme than that set forth in the

solicitation and (2) “many, if not most, of the evaluation ratings assigned to [the offerors’]

proposals were irrational.” 102 Fed. Cl. 677, 694 (2012). The court easily concluded that but for

this “fundamentally flawed source selection process,” the protestor would have had a substantial

chance of award. Id. at 695. A similarly unsalvageable procurement was before the court in

Huntsville Times Co. v. United States, 98 Fed. Cl. 100 (2011). There, the court found

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Plaintiffs rely on a number of decisions regarding the dangers of a court substituting its

judgment for that of an agency, but these decisions are inapposite. See L3 Doss Mot. 3-4; S3

Mot. 6-7. Shields Enterprises, Inc. v. United States dealt with a “technical assessment of the

merits of a plaintiff’s proposal submitted in response to [a request for proposals (“RFP”)]”—

more specifically, whether the agency applied evaluation criteria not specified in the RFP and

whether the agency properly canceled the RFP. 28 Fed. Cl. 615, 617, 632-33 (1993). In Career

Training Concepts, Inc., the court considered whether the agency properly drew a distinction

between two offerors’ plans for hiring and vetting personnel. 83 Fed. Cl. at 231-32. In Patriot

Taxiway Indus., Inc. v. United States, the protestor disputed its rating for a previous contract,

essentially “asking the Court to step into the shoes of the [agency] evaluators and assess past and

present performance.” 98 Fed. Cl. 575, 586 (2011). And in Voith Hydro, Inc. v. United States,

the court declined to supplement the administrative record with the disappointed bidder’s expert

report, noting that by doing so the court “would be introducing a new requirement, rewriting the

RFP, and impermissibly substituting its judgment for that of the agency as to how to measure the

relative merits of the submitted proposals.” 142 Fed Cl. 233, 237 (2019). These decisions all

involve fundamental changes to the agency’s technical assessments or to its evaluation criteria.

The instant case requires no similar interference.

Perhaps bid protest jurisprudence would look different if ordering an agency to reevaluate

proposals and issue new SSDs were a costless, academic exercise. But the court does not view

these legal issues in a vacuum, ignorant of the practical challenges an agency faces. Congress

asks the court to “give due regard to the interests of national defense and national security and

the need for expeditious resolution of [bid protests].” 28 U.S.C. § 1491(b)(3). This concern has

shaped the court’s approach to matters ranging from injunctive relief to patent ambiguities in

solicitations. See Blue & Gold Fleet, L.P. v. United States, 492 F.3d 1308, 1313 (Fed. Cir. 2007)

(emphasizing that “[r]ecognition of a waiver rule, which requires that a party object to

solicitation terms during the bidding process, furthers [the § 1491(b)(3)] statutory mandate”);

Textron, 74 Fed. Cl. at 331 (noting that when considering whether an injunction would be in the

public interest, “the court must consider matters of national defense and national security in

providing relief”). Although the court is convinced that the Agency’s error in this case did not

render the SSA’s best value tradeoff analysis and award decision irrational as a purely legal

matter, these public policy concerns offer further support for its holding.

The court has made a “searching and careful” examination of the record, Co-Steel

(1) procedural errors in establishing the [source selection plan]; (2) a confusing

and internally inconsistent [source selection plan]; (3) ratings that were based on

evaluation criteria different from those stated in the [letter request for proposal];

(4) ratings that were irrational or were in violation of the governing regulation;

and (5) a failure to apply the weighting scheme for evaluation criteria set forth in

the [letter request for proposal].

Id. at 120; see id. at 110 (calling the diverging sets of evaluation criteria “disturbing”).

Unsurprisingly, the court concluded that these errors prejudiced the protestor. Id. at 120-21.

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Raritan, Inc. v. Int’l Trade Comm’n, 357 F.3d 1294, 1309 (Fed. Cir. 2004) (quoting Citizens of

Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971), abrogated on other grounds by Califano

v. Sanders, 430 U.S. 99 (1977)), and its holding rests on narrow, precise grounds. Because the

court is “not in substantial doubt whether the administrative agency would have made the same

ultimate finding with the erroneous finding removed,” Oracle, 975 F.3d at 1291, it determines

that plaintiffs were not prejudiced by the erroneous strength awarded to CAE’s [. . .] proposal.

D. The Court Will Not Consider the SSA’s Declaration

Lastly, the court turns to the SSA’s declaration, which was submitted by defendant with

its response to plaintiffs’ motions for reconsideration. In this declaration, the SSA briefly

reevaluates her SSD in light of the court’s MJAR Ruling. Def. Ex. 1 at 2. She states that having

“reviewed [her] decision without assessing CAE a strength for its [. . .] approach,” she

“notionally determined that CAE’s proposal still will provide the best value to the government.”

Id. She thus concludes that “even if the Court were to grant the motions for reconsideration and

require that [she] conduct a re-evaluation of the proposals to correct for the aforementioned error

that the Court identified, it would not make any difference in [her] decision to make the award to

CAE.” Id. Defendant urges the court to consider this evidence when making its factual findings

regarding the prejudicial effect of the procurement error. Def. Resp. 6. Plaintiffs disagree,

calling the declaration “a perfect example of the type of post hoc assertions the Court has

repeatedly cautioned against accepting because it contradicts the contemporaneous evaluation

record.” L3 Doss Reply 4; see also S3 Reply 9 (“If the SSA decides that CAE is still the best

value, . . . she should have to justify it with a proper, formal tradeoff analysis, not a declaration

submitted in the heat of litigation.”).

In a bid protest, the court may allow parties to supplement the administrative record

“only if the existing record is insufficient to permit meaningful review consistent with the APA.”

Axiom Res. Mgmt., Inc. v. United States, 564 F.3d 1374, 1381 (Fed. Cir. 2009); accord

Raytheon Co. v. United States, 121 Fed. Cl. 135, 153-54 (2015), aff’d, 809 F.3d 590 (Fed. Cir.

2015). The court must be wary of “post-hoc rationale,” or “any rationale that departs from the

rationale provided at the time the procuring agency made its decision.” Raytheon Co., 121 Fed.

Cl. at 158. In contrast to “[d]ocuments that pre-date or are contemporaneous with the relevant

decision,” “[t]hose created after-the-fact are suspect, as courts . . . recognize that they must reject

‘post hoc rationalizations’ as a basis for the agency action.” Arch Chems., Inc. v. United States,

64 Fed. Cl. 380, 386 (2005).

As defendant emphasizes, Def. Resp. 6, supplementation may be appropriate “when

making a prejudice analysis in the first instance,” which requires the court to “make factual

findings from the record evidence as if it were conducting a trial on the record.” Bannum, Inc. v.

United States, 404 F.3d 1346, 1353-54 (Fed. Cir. 2005). But this path is much more narrow than

defendant acknowledges. As this court discussed in Raytheon Co., supplementation under these

circumstances has most commonly involved affidavits or declarations from parties protesting an

agency’s decision, rather than from the agency itself. 121 Fed. Cl. at 153-54. In Gentex Corp. v.

United States, for instance, a protestor sought to introduce affidavits from its vice president and

general manager, explaining, among other matters, “how [the protestor] would have changed its

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proposal were it not for the [agency’s] illegal actions.” 58 Fed. Cl. 634, 649 (2003). The court

concluded that “[s]uch an attempt to show prejudice is . . . an appropriate basis for

supplementing the record.” Id. Similarly, in North Carolina Business Enterprise Program v.

United States, the court accepted a protestor’s affidavit that explained how the solicitation at

issue “require[d] plaintiffs to submit an offer that appears higher than it would but for the

[agency’s] alleged errors.” 110 Fed. Cl. 354, 365 (2013). Noting that the affidavit addressed

plaintiffs’ alleged competitive injury, the court drew an important distinction: “This evidence

does not concern any decision before the [Agency], but rather concerns the effect of those

decisions on plaintiffs.” Id.

Decisions like these acknowledge that “a bid protester’s entitlement to relief may often

turn on considerations of injury that spring from the challenged actions, and to that extent could

not be reflected in the agency record underlying those actions.” E.W., Inc. v. United States, 100

Fed. Cl. 53, 57 (2011); see also AshBritt, Inc. v. United States, 87 Fed. Cl. 344, 367 (2009)

(“Evidence directed at prejudice and remedy necessarily would not be before an agency

decisionmaker effecting a procurement decision such as a source selection award . . . [but] would

necessarily post date and flow from such agency decision.”). The SSA’s declaration, however, is

not intended to fill this critical gap. Instead, the declaration amounts to precisely the kind of

“post hoc rationalization[],” “created in the heat of litigation,” that the court has warned of in

cases such as Fluor Intercontinental, 147 Fed. Cl. at 334. The court declines to incorporate the

declaration into its analysis.

III. CONCLUSION

The court has considered all of the parties’ arguments; to the extent not discussed herein,

they are unpersuasive, without merit, or unnecessary for resolving the issues currently before the

court.

For the reasons discussed above, the court DENIES plaintiffs’ motions for

reconsideration. Further, the court’s ruling on these motions for reconsideration is also

dispositive of L3 Doss’s subsequent motion requesting injunctive relief pending the issuance of

this order. L3 Doss’s motion for injunctive relief, filed December 11, 2020, and in which S3

joins, is DENIED as moot.

Because the court has filed this ruling under seal, the parties shall confer to determine

agreed-to proposed redactions. Then, by no later than Friday, January 8, 2021, the parties

shall file a joint status report indicating their agreement with the proposed redactions, attaching

a copy of 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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