Logistics Health, Inc. v. United States

In the United States Court of Federal Claims

No. 21-759

(Filed: 11 June 2021*)

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LOGISTICS HEALTH, INC., *

*

Plaintiff, *

*

v. * Post-award bid protest; technical evaluation;

* discussions with offerors; FAR 15.306(d);

THE UNITED STATES, * balanced pricing; FAR 15.404-1(g);

* best-value determination; RCFC 52.1;

Defendant, * judgment on the administrative record;

* Blue & Gold waiver.

and *

*

QTC MEDICAL SERVICES, INC., *

*

Defendant-Intervenor. *

*

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Jason A. Carey of Covington & Burling LLP, with whom were Kayleigh M. Scalzo, J.

Hunter Bennett, Alan A. Pemberton, Andrew R. Guy, and Peter B. Terenzio III, all of

Washington, DC, for plaintiff.

William P. Rayel of the Department of Justice, with whom were Brian M. Boynton,

Robert E. Kirschman, and Douglas K. Mickle, all of Washington, DC, and Aaron K. McCartney

of the U.S. Army Legal Services Agency, of Fort Belvoir, VA, for defendant.

Marcia Madsen of Mayer Brown LLP, with whom were David F. Dowd, and Luke

Levasseur, all of Washington, DC, and James J. McCullough of Fried, Frank, Harris, Shriver &

Jacobson LLP, with whom were Michael J. Anstett, Anayansi Rodriguez Carbo, and Christopher

H. Bell, all of Washington, DC, for defendant-intervenor.

OPINION AND ORDER

HOLTE, Judge.

*

This Opinion was originally filed under seal on 4 June 2021 pursuant to the case protective order. The Court

provided the parties opportunity to review the Opinion for any proprietary, confidential, or other protected

information and submit proposed redactions no later than 8 June 2021. Plaintiff and defendant-intervenor proposed

redactions on 8 June 2021. The Court accepts the parties’ proposed redactions and reissues the order with a few

minor, non-substantive corrections and redacted language replaced as follows: “[XXXXX].”

Plaintiff Logistics Health, Inc. (“LHI”) brings this bid protest challenging the United

States Army’s award of a contract for the third Reserve Health Readiness Program (“RHRP-3”)

to defendant-intervenor QTC Medical Services, Inc. (“QTC”) under Solicitation No. W15QKN-

18-R-1000. Both plaintiff and defendant-intervenor have significant experience on federal

medical services contracts, with plaintiff serving as incumbent on the Reserve Health Readiness

Program (“RHRP”) contract and QTC performing millions of health assessments for service

members and veterans through other contracts. While this contract and solicitation has been

through several Army and GAO pre-award and post-award protests, as well as corrective action

from the Army, defendant-intervenor QTC has consistently remained the awardee. Pending

before the Court are plaintiff’s motion for judgment on the administrative record, the

government’s cross-motion for judgment on the administrative record, and defendant-

intervenor’s cross-motion for judgment on the administrative record. For the following reasons,

the Court DENIES plaintiff’s motion and GRANTS the government and defendant-intervenor’s

motions.

I. Background

A. The Solicitation

The Army’s RHRP contract is for “health readiness services” to the Service Components

(“SCs”) of the “Reserve Components (i.e., Army Reserve and Guard, Air Force Reserve and

Guard, Navy Reserve, Marine Forces Reserve, Coast Guard Reserve), Active Components and

Department of Defense Service Civilians throughout the U.S., its Territories, the District of

Columbia, [and] Germany.” AR at 482. This request for proposals (“RFP”) is for the third

RHRP contract, and plaintiff has been the incumbent performer of two predecessor contracts for

nearly the last two decades. Id. at 11309. The RFP is for a single-award indefinite delivery

indefinite quantity task order contract with a maximum dollar value of $999,000,000. Id. at 482.

The performance work statement (“PWS”) describes the commercial services to be provided and

requires the contractor to provide (among other services) immunizations, physical examinations,

periodic health assessments, mental health assessments, limited dental treatment, and laboratory

services. Id. at 1140.

The contractor will provide health services: (1) at “group event gatherings of Service

Members . . . at SC-designated sites (e.g., armories, drill halls)”; (2) “through the Contractor’s

Call Center”; and (3) “within the contractor’s network private sector providers.” Id. at 1140.

The contractor “must be able to meet surges for various services,” providing care to tens of

thousands across the nation. Id. at 1141 (“The greatest requirement for group events thus far was

a single week in which more than 18,600 [periodic health assessments], 16,500 dental

examinations, 52,000 immunizations, 6,550 audiograms, 13,900 blood draws, 3,300 panoramic

x-rays, 3,150 EKGs, and 19,550 vision screens were requested in 351 locations in 49 states and

Territories. . . . Up to 21,490 [periodic health assessments], 24,000 audiograms, and 23,150

dental exams in group events have been requested in other weeks.”). The contractor must

provide all personnel, equipment, and materials, including vaccines, needed to successfully

perform each group event. Id. at 1140–41. The contractor must also have a network of trained

and credentialed providers able to travel to a government site at short notice on weekends and

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must properly manage a complex cold-chain transportation and storage system for vaccines. Id.

at 1142, 1174.

The Army planned to award the contract to the proposal that provides the “best value”

under the RFP’s four evaluation factors, in descending order of importance: technical, past

performance, price/cost, and small business participation. Id. at 1238. “When combined, all

non-price/cost factors are significantly more important than Price/Cost.” Id. The technical

factor is divided into three subfactors, which are also listed in descending order of importance:

technical scenarios, management/staffing, and transition/quality assurance. Id. at 1239. For each

technical subfactor, contractors received a rating of “Outstanding,” “Good,” “Acceptable,”

“Marginal,” or “Unacceptable”—the compilation of these ratings “form[ed] the basis of the

Technical Factor rating.” Id. at 1240–41.

B. Plaintiff’s Proposal

The Army issued RFP No. W15QKN-18-R-1000 on 22 November 2017, and proposals

were due 8 January 2018. AR at 227. Three contractors, QTC, LHI, and another offeror,

submitted proposals in response. Id. at 229. Plaintiff stressed its incumbency of nearly 17 years

in describing its services: “Since 2001, LHI has been honored to help RHRP customers and SMs

by providing them with more than 22.5 million services to meet their readiness objectives.” Id.

at 11180 (LHI Proposal). LHI noted it has “the staff, infrastructure, processes, and network of

trained healthcare professionals (HCPs) and dentists in place to continue to deliver high-quality

services in support of health readiness requirements and deployment objectives of in-scope

Service Components (SCs).” Id. at 11179. Plaintiff provided detailed responses to each of the

four solicitation factors, particularly highlighting its technical experience as the existing RHRP

provider. Id. at 11180 (“We support Group Events nearly every weekend, completing 29,000

such events . . . and nearly 12 million services since 2008. . . . We have completed 2,681,522

PHAs, 669,990 MHAs, and 157,670 PDHRAs either In-Clinic or through our Call Center. Over

the course of RHRP II, LHI helped increase readiness for U.S. Army Reserve (USAR) and the

Army Reserve National Guard (ARNG) by approximately [XX]%.”). Plaintiff also discussed its

network size, audiology vans, transition-in plan, and proposed prices. See, e.g., id. at 11188,

11250, 11323, 11424. Plaintiff’s final price estimate was $848,582,938.30. Id. at 11424.

C. Defendant-Intervenor’s Proposal

QTC’s proposal stressed its “specific expertise and core competencies required for

successful execution of RHRP-3” and “proven history of working . . . on other federal medical

service contracts.” AR at 10577 (QTC Proposal). QTC specifically detailed its experience

working with the Department of Veterans Affairs for over 20 years, “perform[ing] 5 million

disability and separation health assessments . . . for SMs and Veterans using group event and in-

clinic settings.” Id. at 10579. QTC emphasized having a sizeable team from which it could draw

personnel, detailing its “prime offeror, major subtractors, and small business subcontractors.” Id.

at 10577–78. QTC, like plaintiff, discussed its network size, audiology vans, transition-in plan,

and proposed prices. See e.g., id. at 10692, 10608, 10727–28, 10835. QTC’s final price estimate

was $899,533,755.74. Id. at 10835.

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D. Pre-Award GAO Protest, First Award Decision, Post-Award GAO Protest, and

Corrective Action

On 2 March 2018, plaintiff filed an Army Material Command (“AMC”) pre-award

protest on the terms of the RFP. AR at 2704. Plaintiff protested: (1) the technical evaluation for

being “based exclusively on two narrowly-drawn [sic] scenarios”; (2) the RFP for using fixed

amounts for various costs when “it is highly likely that other offerors’ actual cost would be far

higher than that amount”; and (3) the RFP for “contain[ing] ambiguities regarding which

documents count towards the page limitations.” Id. at 2705–06. On 15 March 2018, plaintiff

filed a protest on the same issues at the GAO. Id. at 2671–73. The AMC dismissed plaintiff’s

protest on 4 April 2018 because “LHI also filed the exact same protest at the Government

Accountability Office (‘GAO’) challenging the same solicitation at issue in LHI’s AMC-Level

protest,” and “if a protest is filed with an external forum on the same solicitation at issue in an

AMC-Level protest, the AMC-Level protest will be dismissed.” Id. at 2731. The GAO

dismissed plaintiff’s protest on 13 April 2018, stating “[s]ubsequent to the filing of this protest,

the agency has represented that it intends to take actions which will render the protest academic.

Specifically, the agency represents that it will review its requirements and amend the

solicitation.” Id. at 2703.

After amending the solicitation, the government received three proposals, including

proposals from LHI and QTC, and on 19 December 2018 the government “determined that all 3

shall remain in the competitive range and discussions will be conducted” in accordance with

FAR 15.306(d). Id. at 12318. Discussion letters were sent on 11 February 2019 for the initial

evaluation phase and on 7 June 2019 for the interim evaluation phase, and discussions were held

with all three offerors. Id. at 3118. The government closed discussions and requested final

proposal revisions on 24 October 2019, with final proposal revisions due 12 November 2019. Id.

LHI and QTC timely submitted final proposal revisions. Id. The Army selected QTC for the

award by finding QTC’s proposal represented the best value and determining it was not worth

the associated price premium to select plaintiff’s higher-rated proposal. Id. at 2500–51. On 27

March 2020, the Army notified plaintiff it awarded the RHRP-3 contract to QTC. Id. at 2506.

Plaintiff filed a protest with the GAO on 13 April 2020 and requested outcome prediction

alternative dispute resolution (“ADR”) on 26 June 2020. Id. at 3309, 3317, 4525. Outcome

prediction ADR was held 1 July 2020. Id. at 4526 (Notice of Ground Rules for Alternative

Dispute Resolution). At outcome prediction ADR, the GAO “indicated it was inclined to believe

that based on the information provided by QTC and the Army,” plaintiff’s proposed program

manager “did not have the necessary qualifications to satisfy PWS Paragraph 2.20.”1 Id. at 242.

On 2 July 2020, the Army took corrective action according to the GAO’s outcome prediction,

notifying the GAO it would reevaluate LHI and QTC’s proposals “as to the qualifications of the

program managers proposed for each in accord with GAO’s findings that the QTC PM did not

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PWS Paragraph 2.20 requires: “The Contractor shall designate a primary POC for the Government’s

communication and overall management of the Contractor’s effort. That individual shall have at least a bachelor’s

degree, 10 years of experience in the health care field, and five years’ experience managing large, complex

programs dispersed over a wide geographic area. The years of health care and program management experience can

be concurrent.” AR at 800 (Performance Work Statement, January 24, 2018).

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possess the requisite experience required by the solicitation, and the LHI PM did.” Id. at 475.

The Army stated it “reserves the right to re-open discussions regarding this or other matters and

to take whatever additional corrective action deem[ed] appropriate.” Id. On 8 July 2020, the

GAO dismissed plaintiff’s protest by concluding, “[t]he agency’s corrective action renders the

protest academic.” Id. at 477–78.

The Army determined in corrective action that a deficiency existed in QTC’s proposal

because its program manager did not meet the RFP’s experience qualifications. AR at 12133.

The Army had not previously informed QTC of this deficiency, so to allow QTC to be

“permitted the opportunity to address this deficiency during the discussion process,” the Army

issued an evaluation notice and allowed QTC to address the deficiency by revising its proposal.

Id. at 12136. The Army did not request or solicit any other proposal changes. Id. at 3094.

E. Second Award, Debriefing, and GAO Protest

The government gave QTC an opportunity to address the deficiency because QTC “was

never permitted the opportunity to address this deficiency during the discussion process.” AR at

3097 (Source Selection Information). An evaluation notice was issued to QTC on 23 July 2020.

Id. QTC “revised their Program Manager selection and submitted their update to the

Government on 31 July 2020.” Id. QTC’s “response was evaluated and deemed acceptable,”

and the government found QTC’s “revised proposal meets the requirements of the solicitation

and their rating was adjusted back to Acceptable.” Id.

On 6 October 2020, the Army notified plaintiff it re-awarded the contract to QTC. Id. at

3146. On 19 October 2020, plaintiff filed a protest of the re-award decision at the GAO. Id. at

4591 (Protest of Logistics Health, Inc. Under Solicitation No. W15QKN-18-R-1000). Plaintiff

argued: “the Army misevaluated both offerors’ technical proposals” for several reasons,

including reasons related to QTC’s proposed network size and the parties’ offers to provide

audiology vans; “the Army’s conduct of discussions was unequal”; “the Army misevaluated

QTC’s past performance”; “the Army failed to evaluate QTC’s unit prices for balance”; and “the

best value determination is unreasonable.” Id. at 4592–93. Plaintiff requested outcome

prediction ADR on 29 December 2020. Id. at 5084 (LHI Request for Outcome Prediction, filed

December 29, 2020). QTC and the government expressed opposition to plaintiff’s request for

outcome prediction ADR and encouraged the GAO to issue a written decision. Id. at 5085 (QTC

Response to LHI Request for Outcome Prediction, dated December 30, 2020), 5086 (Army

Response to LHI Request for Outcome Prediction, dated December 31, 2020). The GAO

conducted outcome prediction ADR on 8 January 2021. Id. at 5087 (Notice of Ground Rules for

Outcome Prediction Teleconference). Plaintiff withdrew its GAO protest on 12 January 2021

after the GAO conducted outcome prediction and informed all parties of its likely decision. See

Order, ECF No. 16.

F. Procedural History Before This Court

Plaintiff filed its complaint in this bid protest on 15 January 2021, along with a motion to

seal the complaint, a proposed redacted complaint, and a motion for protective order. See

Compl. for Declaratory and Injunctive Relief, ECF No. 1; Pl.’s Mot. for Leave to File Under

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Seal, ECF No. 3; Redacted Compl. for Declaratory and Injunctive Relief, ECF No. 4; Pl.’s Mot.

for Protective Order, ECF No. 5. On 4 February 2021, the Court granted the government’s

unopposed motion “requesting an advisory opinion” from the GAO “concerning the merits of the

protest.” Order, ECF No. 21; Def.’s Unopposed Mot. for Judicial Req. of an Advisory Op. from

the GAO, ECF No. 15.

On 12 February 2021, the government filed an unopposed motion to file the AR on a CD-

ROM. See Def.’s Unopposed Mot. to File the Admin. R. on a Portable Storage Disc, ECF No.

27. The Court granted the government’s motion on 16 February 2021, and the government filed

the AR via CD-ROM on the same day. See Order, ECF No. 28; Def.’s Notice of Filing Admin.

R., ECF No. 29. On 2 March 2021, the GAO filed its advisory opinion. See GAO Advisory Op.,

ECF No. 31.

On 9 March 2021, plaintiff filed its motion for judgment on the administrative record (“MJAR”).

See Pl.’s Mot. for J. on the Admin. R., ECF No. 32. On 26 March 2021, defendant-intervenor

filed its cross-MJAR. See Def.-Intervenor’s Opposition to Pl.’s Mot. for J. on the Admin. R.,

and Cross-Mot. for J., ECF No. 34 (“Def.-Intervenor’s Cross-MJAR”). On the same day, the

government filed its cross-MJAR, as well as an unopposed motion to amend the AR. See Def.’s

Cross-Mot. for J. on the Admin. R. and Resp. to Pl.’s Mot. for J. on the Admin. R., ECF No. 36

(“Gov’t Cross-MJAR”); Def.’s Unopposed Mot. to Amend the Admin. R., ECF No. 35. The

Court granted the government’s motion to amend the AR on 1 April 2021. See Order, ECF No.

37. Plaintiff filed its reply in support of its MJAR and response to defendant-intervenor and the

government’s cross-MJAR on 9 April 2021. See Pl.’s Reply in Support of Its Mot. for J. on the

Administrative R. and Resp. to Def. and Def.-Intervenor’s Cross Mots. for J. on the

Administrative R., ECF No. 38. On 21 April 2021 the government and defendant-intervenor

filed replies in support of their cross-MJARs. See Def.-Intervenor’s Reply in Support of Its

Cross-Mot. for J. on the Administrative R., ECF No. 40; Def.’s Reply to Pl.’s Resp. to Def.’s

Cross-Mot. for J. on the Administrative R., ECF No. 41 (“Gov’t Reply”). The Court held oral

argument on the parties’ cross-MJARs on 13 May 2021. See MJAR Oral Argument Transcript,

ECF No. 43 (“Tr.”).

II. Legal Standard

A. Bid Protest Jurisdiction & APA Standard of Review

The Tucker Act provides this Court jurisdiction to “render judgment on an action by an

interested party objecting to a solicitation by a Federal agency for bids or proposals for a

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

statute or regulation in connection with a procurement or a proposed procurement.” 28 U.S.C.

§ 1491(b)(1). To be an interested party, a protestor must show it is an “actual or prospective

bidder or offeror whose direct economic interest would be affected by the award or failure to

award the contract.” PDS Consultants, Inc. v. United States, 907 F.3d 1345, 1356 (Fed. Cir.

2018) (internal quotation marks and citations omitted).

In rendering such judgment, this Court “review[s] the agency’s decision pursuant to the

standards set forth in section 706 of title 5” of the Administrative Procedure Act (“APA”). 28

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U.S.C. § 1491(b)(4); see also Impresa Construzioni Geom. Domenico Garufi v. United States,

238 F.3d 1324, 1332 (Fed. Cir. 2001). “Among the various APA standards of review in section

706, 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., Inc. v. United

States, 365 F.3d 1345, 1350–51 (Fed. Cir. 2004) (citing Advanced Data Concepts, Inc. v. United

States, 216 F.3d 1054, 1057–58 (Fed. Cir. 2000)). Under this standard, “a court is not to

substitute its judgment for that of the agency.” Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State

Farm Mut. Auto Ins. Co., 463 U.S. 29, 43 (1983). “Courts have found an agency’s decision to be

arbitrary and capricious when the agency ‘entirely failed to consider an important aspect of the

problem, offered an explanation for its decision that runs counter to the evidence before the

agency, or [the decision] is so implausible that it could not be ascribed to a difference in view or

the product of agency expertise.’” Ala. Aircraft Indus., Inc.-Birmingham v. United States, 586

F.3d 1372, 1375 (Fed. Cir. 2009) (quoting Motor Vehicle Mfrs. Ass’n of U.S., Inc., 463 U.S. at

43). “The arbitrary and capricious standard applicable here is highly deferential” and “requires a

reviewing court to sustain an agency action evincing rational reasoning and consideration of

relevant factors.” Advanced Data Concepts, 216 F.3d at 1058 (citing Bowman Transp., Inc. v.

Arkansas-Best Freight Sys., Inc., 419 U.S. 281, 285 (1974)).

B. Judgment on the Administrative Record in a Bid Protest

RCFC 52.1(c) “provides for judgment on the administrative record.” Huntsville Times

Co. v. United States, 98 Fed. Cl. 100, 104 (2011); see also Bannum, Inc. v. United States, 404

F.3d 1346, 1353–54 (Fed. Cir. 2005). Rule 52.1(c) was “designed to provide for trial on a paper

record, allowing fact-finding by the trial court.” Bannum, Inc. v. United States, 404 F.3d at

1356.

This Court may set aside a contract award if: “(1) the procurement official’s decision

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

procedure.” Domenico Garufi, 238 F.3d at 1332. “When a challenge is brought on the second

ground, the disappointed bidder must show ‘a clear and prejudicial violation of applicable

statutes or regulations.’” Id. at 1333 (quoting Kentron Haw., Ltd. v. Warner, 480 F.2d 1166,

1169 (D.C. Cir. 1973)). “[D]e minimis errors do not require the overturning of an award.”

Grumman Data Sys. Corp. v. Dalton, 88 F.3d 990, 1000 (Fed. Cir. 1996). “De minimis errors

are those that are so insignificant when considered against the solicitation as a whole that they

can safely be ignored and the main purposes of the contemplated contract will not be affected if

they are.” Id. (internal quotation marks omitted) (quoting Andersen Consulting v. United States,

959 F.2d 929, 935 (Fed. Cir. 1992)). A bid protest plaintiff must establish alleged “errors in the

procurement process significantly prejudiced [the plaintiff]” by showing “there was a

‘substantial chance’ it would have received the contract award but for the errors.” Bannum, Inc.,

404 F.3d at 1353 (quoting Info. Tech. & Applications Corp. v. United States, 316 F.3d 1312,

1319 (Fed. Cir. 2003)).

Technical ratings fall within a category of “discretionary determinations of procurement

officials that a court will not second guess.” E.W. Bliss Co. v. United States, 77 F.3d 445, 449

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

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represents the best value for the government.” Galen Med. Assocs. v. United States, 369 F.3d

1324, 1330 (Fed. Cir. 2004) (quoting E.W. Bliss, 77 F.3d at 449) (internal quotation marks

omitted). A protester alleging unequal treatment in a technical evaluation “must show that the

agency unreasonably downgraded its proposal for deficiencies that were ‘substantively

indistinguishable’ or nearly identical from those contained in other proposals.” Office Design

Group v. United States, 951 F.3d 1366, 1372 (Fed. Cir. 2020).

C. Permanent Injunction

When deciding whether a permanent injunction is warranted, a court considers:

(1) whether, as it must, the plaintiff has succeeded on the merits of the case; (2)

whether the plaintiff will suffer irreparable harm if the court withholds injunctive

relief; (3) whether the balance of hardships to the respective parties favors the grant

of injunctive relief; and (4) whether it is in the public interest to grant injunctive

relief.

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

III. Parties’ Arguments

A. Whether the Army Misevaluated the Offerors’ Technical Proposals

Plaintiff argues QTC intentionally misled the Army into overcounting QTC’s proposed

network of RHRP providers for contract performance. See Pl.’s Mem. in Supp. of Its Mot. for

Judgment on the Admin. R., ECF No. 32-1 (“Pl.’s MJAR”) at 10–11, 15–16. The government

responds it merely made conclusions regarding the size of QTC’s existing provider network, and

QTC argues it was not required to offer specific details regarding the number of providers or

show it has a “developed provider network that could provide services at the time of proposal

submission.” Gov’t Cross-MJAR at 15–19; Def.-Intervenor’s Cross-MJAR at 6–15. Plaintiff

also argues the government treated the offerors unequally by awarding QTC, but not plaintiff, a

strength in the evaluation for providing mobile vans to perform audiology tests. Pl.’s MJAR at

16. According to the government, plaintiff’s proposed use of audiology vans did not offer the

same benefits as QTC’s proposed use of audiology vans, and QTC argues plaintiff offered

audiology vans merely as an alternative option, rather than providing them where necessary.

Gov’t Cross-MJAR at 21–22; Def.-Intervenor’s Cross-MJAR at 16–17 (citing AR at 274).

Plaintiff further argues the Army wrongly gave QTC a strength, instead of “a significant

weakness or deficiency,” for committing to meet a key transition milestone within [XXX] days

of contract award. Pl.’s MJAR at 20–23. The government and QTC explain QTC did propose to

complete its transition within [XXXXX] months of the contract award, i.e. [XXX] days. Gov’t

Cross-MJAR at 23–25; Def.-Intervenor’s Cross-MJAR at 20–27. Additionally, plaintiff argues

the government failed the RFP’s requirement to evaluate proposals against the major

requirements of the entire PWS. Pl.’s MJAR at 23–26. The government argues there is no

requirement to document offerors’ compliance with every PWS requirement, while QTC argues

plaintiff’s claim is time barred under Blue & Gold Fleet, L.P. v. United States. Gov’t Cross-

MJAR at 28–33; Def.-Intervenor’s Cross-MJAR at 27–29.

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B. Plaintiff’s Other Arguments

Plaintiff argues the Army wrongly gave QTC more opportunities to improve its offer than

it gave LHI, both before the first award and before the second award. Pl.’s MJAR at 26–29. The

government explains it was not required to hold extra rounds of discussions with plaintiff when it

had no further deficiencies or significant weaknesses to discuss and argues plaintiff “has not

demonstrated it was prejudiced by the allegedly unequal discussions.” Gov’t Cross-MJAR at

36–44. QTC argues plaintiff’s position conflicts with the FAR mandate to tailor discussions to

each offeror’s proposal and plaintiff cannot establish competitive prejudice from the

government’s actions. Def.-Intervenor’s Cross-MJAR at 29–35. Plaintiff also argues the Army

failed to evaluate QTC’s unit prices for balance, which created a risk the Army would end up

paying unreasonably high prices. Pl.’s MJAR at 29–37. According to the government, it had no

obligation to analyze individual procedure prices that are not line items or subline items of the

solicitation. Gov’t Cross-MJAR at 28–33. QTC argues the government is not required to

analyze every procedure price for balance and asserts plaintiff’s challenge is untimely under Blue

& Gold. Def.-Intervenor’s Cross-MJAR at 37–38. Plaintiff argues the Army’s best value

analysis is flawed because a large portion of QTC’s supposed price advantage is illusory, while

the government and QTC respond that the source selection authority reasonably compared the

offerors’ total evaluated prices and argue plaintiff’s argument is time barred. Pl.’s MJAR at 37–

39; Gov’t Cross-MJAR at 33–36; Def.-Intervenor’s Cross-MJAR at 38–39.

IV. Whether the Army Misevaluated the Offerors’ Technical Proposals

A. Whether the Army Misevaluated QTC’s Network Size

Plaintiff argues the Army made a “fundamental error” by believing the size of QTC’s

network of providers for RHRP was over [XXXXXXX] even though QTC “failed to specify any

number of providers for its RHRP network.” Pl.’s MJAR at 10–11 (emphasis in original). The

government responds “that DoD did not reach th[e] conclusion” plaintiff alleges regarding the

size of QTC’s network; rather, the government merely “concluded that QTC’s team had an

existing network of more than [XXXXXXX] providers that it could draw from to form its RHRP

network, if it won the award.” Gov’t Cross-MJAR at 15–16. QTC argues no “provision

required offerors to demonstrate specific numbers of providers—or to have a developed provider

network that could provide services at the time of proposal submission or immediately upon

award,” since “such a proposal requirement would have unfairly favored the incumbent and

improperly thwarted competition.” Def.-Intervenor’s Cross-MJAR at 7.

The parties used standards in the PWS as a guide for providing network information. AR

at 1141 (the PWS, dated May 2, 2018). The PWS states contractors “shall develop, administer,

train, and coordinate a nationwide network of private sector [health care providers] used to

provide health readiness services” in addition to “provid[ing] all materials, labor and equipment

to provide services in group events.” Id. The PWS also provides contractors, after award, must

“develop a force of trained personnel with needed licensure, certification and information system

access in sufficient numbers to conduct the services.” Id. at 1143. The solicitation prompts

contractors to describe their overall approach and process to specific scenarios, such as group

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event requests seen in Scenario 1. Id. at 1286. Plaintiff highlighted this language in arguing

offerors were required to propose specific networks for RHRP. Pl.’s MJAR at 11, 14. The

government pointed to the language in the PWS to explain contractors need only “[d]evelop”

trained personnel upon award and the PWS “contemplates a maximum 12-month transition

period, after which the contractor will be required to provide full RHRP services.” Gov’t Cross-

MJAR at 6–7 (emphasis added). Plaintiff asserts the Army’s conclusion regarding QTC’s

network size was “arbitrary and capricious” because the Army failed to rationally evaluate the

size and composition of Team QTC. Pl.’s MJAR at 11–14.

The Federal Circuit has noted, “[c]ourts have found an agency’s decision to be arbitrary

and capricious when the agency ‘entirely failed to consider an important aspect of the problem,

offered an explanation for its decision that runs counter to the evidence before the agency, or [the

decision] is so implausible that it could not be ascribed to a difference in view or the product of

agency expertise.’” Ala. Aircraft Indus., Inc.-Birmingham v. United States, 586 F.3d 1372, 1375

(Fed. Cir. 2009) (quoting Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto Ins.

Co., 463 U.S. 29, 43 (1983)). The PWS required contractors, upon award, to “develop,

administer, train, and coordinate a nationwide network of private sector [health care providers].”

AR at 1141. In response to the solicitation, QTC contended its existing network consists of more

than [XXXXXXX] individuals “to demonstrate their process for obtaining, credentialing[,] and

maintaining the provider network.” Tr. at 16:19–20:11. The Army understood QTC’s network

number as related to QTC’s overall response team: “The QTC team has more than

[XXXXXXX] in its network of providers to provide RHRP-3 services.” AR at 12817. The

Army did not overcount the size of QTC’s RHRP-3 network, but rather recognized QTC’s

network of over [XXXXXXX] to be a pool of personnel from which QTC could draw upon to

provide services, including, but not limited to, RHRP-3 services. Id. Nothing in the solicitation

required QTC to provide exact figures for an RHRP network in its proposal, including the

solicitation’s scenario prompts. See id. at 1141 (stating the contractor “shall develop, administer,

train, and coordinate a nationwide network of private sector [health care professionals] used to

provide health readiness services” in addition to “provid[ing] all materials, labor and equipment

to provide services in group events”). QTC did what the solicitation required: it provided

figures detailing the existing network it could draw from to “develop, administer, train, and

coordinate” a nationwide network to serve the contract. Id. When asked at oral argument how

QTC failed regarding its network proposal, plaintiff could not provide concrete examples and

simply asserted QTC had no legitimate numbers to show for its RHRP network. Tr. at 27:16–21

(“I think it’s uncontested at this point that the [XXXXXXX] number is not the network for

RHRP-3, . . . I think all parties are in agreement that the [XXXXXXX] number is just every

provider in all of these networks.”).

QTC’s proposal offers great specificity regarding its network personnel, and it

demonstrates how it calculates its overall network from other providers. AR at 10692 (“The

current total number of unique HCPs and dentists in our network is [XXXXXXX]; the number of

unique HCPs for dentists, PAs and NPs, physicians, optometrists, audiologists, and mental health

professionals in [its] current integrated network is [XXXXXXX].”). QTC included tables in its

proposal to demonstrate the arrangement of “Team QTC’s integrated network of HCPs.” Id.

(“Table 7 shows Team QTC’s integrated network of HCPs for Scenarios 1 and 2. . . . Table 8

further details the number of locations and the types of HCPs by state and territory.”). QTC also

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indicated its broad geographic range in describing its network pool: “Team QTC combines the

resources of the prime and all teammates to ensure comprehensive coverage and surge capability

for RHRP-3.” Id. at 10693. The Army was rational in awarding QTC the contract because it

understood QTC’s well-explained responses and experience working within its broad network.

It is noteworthy QTC was only awarded an “acceptable” rating for management/staffing, as was

LHI. Id. at 13113. This “acceptable” rating indicates the agency did not find QTC’s figure to be

particularly persuasive overall and demonstrates the agency fully considered the nature of QTC’s

personnel in determining its overall weight upon the contract award. When asked about the

“acceptable” rating at oral argument, counsel for the government stated the rating was rational

because: “QTC’s approach to recruitment, development, credentialing, monitoring and

maintenance of [its] provider network . . . meet[s] the PWS requirements.” Tr. at 31:23–32:1.

QTC further explained its “proposal does have . . . [a] statement about having a proven history of

[QTC’s network] working together, and . . . it lays out its current integrated network, it lays out

the geographic coverage of that [network], breaks it down by . . . types of provider, and basically

shows that QTC has that base to draw from to have an adequate RHRP-3 network to meet the

requirements of the PWS.” Tr. at 32:10–17. The Court does not have the authority to second-

guess the judgment of the agency in instances such as this. Motor Vehicle Mfrs. Ass’n of U.S.,

Inc., 463 U.S. at 43 (“The scope of review under the ‘arbitrary and capricious’ standard is narrow

and a court is not to substitute its judgment for that of the agency.”). Based on the submissions

QTC included in its proposal and the narrow arbitrary and capricious standard under which this

court reviews the agency’s decision, the Army’s acceptance of QTC’s [XXXXXXX]-person

network was not arbitrary and capricious as a matter of law.2 See Ala Aircraft Indus., 586 F.3d at

1375.

1. Whether QTC Made a Material Misrepresentation Regarding Its

Network

Plaintiff also argues “that QTC wrote its proposal in a manner calculated to mislead the

agency,” which “materially influenced the Army’s consideration of its proposal.” Pl.’s MJAR at

15–16 (citing GTA Containers, Inc. v. United States, 103 Fed. Cl. 471, 483 (2012)). The

government asserts plaintiff’s argument QTC materially misrepresented its network “is just a

repackaging of its erroneous argument that DoD misunderstood QTC’s proposal.” Gov’t Cross-

MJAR at 19. QTC explains, “the language on which LHI relies was not misleading, and there is

no evidence that it affected the source selection decision.” Def.-Intervenor’s Cross-MJAR at 8.

Plaintiff asserts “[t]his Court will set aside an award when (1) the awardee made a false

statement; and (2) the agency relied on that false statement in selecting the awardee’s proposal

for contract award.” Pl.’s MJAR at 16 (citing GTA Containers, 103 Fed. Cl. at 483). QTC was

2

The GAO analyzed QTC’s submission and LHI’s argument in terms of RHRP personnel. GAO Advisory Op. at

12–13. The GAO clarified while QTC’s RHRP network may be closer to “[XXXXXXX] commercial network

providers,” such a number was reasonable. Id. at 13. GAO did a thorough analysis and concluded it “would not

have objected to the agency’s evaluation.” Id. at 10; see also id. at 13 (“We would have found that even if the

agency had credited QTC with only [XXXXXXX] network providers, the evaluators’ assessment that the firm

proposed a sufficient network would remain, leaving intact the evaluation of offerors’ proposals and the best-value

tradeoff analysis based on those evaluations”). Additionally, the GAO “would not have concluded that the agency’s

error in crediting QTC with [XXXXXXX] providers, rather than [XXXXXXX] was prejudicial to [plaintiff].” Id.

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specific in its proposal about the health care providers and other personnel within its network,

explaining the roles of its personnel through detailed charts. See AR at 10692. QTC also has

extensive experience in working with its pool of personnel on other similar contracts. Id. (“From

supporting other DoD, RC, and VA programs, our HCPs have expertise with medical and

military assessments, DoD classifications, and combat-related behavioral health issues.”). The

Army understood the nature of QTC’s experienced network, noting “[t]he QTC team has more

than [XXXXXXX] in its network of providers to provide RHRP-3 services.” Id. at 12817. LHI

has not illustrated how QTC materially misrepresented its network because QTC did not make a

false statement regarding its network personnel nor did the Army rely upon a false statement. Id.

at 10692, 12817. Given the specificity in QTC’s proposal regarding its network size and the

Army’s understanding of QTC’s network, the Court does not view QTC as having mislead the

Army in any material way. See Planning Research Corp. v. United States, 971 F.2d 736, 741

(Fed. Cir. 1992).

B. Whether the Army Irrationally Gave QTC a Strength for Providing Audiology

Vans

Plaintiff argues because LHI and QTC’s auditory van proposals are substantively the

same, “the Army’s evaluation [awarding QTC a strength but not awarding plaintiff a strength]

was therefore both unreasonable and unequal.” Pl.’s MJAR at 16. In response, the government

offered a key difference in the proposals: QTC “provides” auditory vans while LHI merely

“offers a mobile unit option.” Gov’t Cross-MJAR at 21–22; AR at 10602 (QTC Proposal),

11250 (LHI Proposal). Plaintiff’s proposed “approach to performing audio services in an

ambient environment” states its “process for providing audio services is to confirm that a quiet

room will be available to conduct audio testing. If there is no quiet room available, [plaintiff]

will offer a mobile unit option to conduct audio services in a non-ambient environment.” AR at

11250. Plaintiff notes it will “set up the audio testing area and use a sound meter to define the

adequacy of the room to determine if the audiometric test room or hearing booth are in

compliance with Federal regulations or American National Standards Institute (ANSI)

specifications” before the event. Id. Should ambient sound levels be too high, plaintiff proposes

to “notify the GE POC that we cannot test in that environment and look for alternative space.”

Id. Plaintiff also “is committed to the use of the [XXXXXXXXXXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXXXX] testing equipment (when available), which has integrated

noise monitoring and will only record results when ambient noise levels are within acceptable

ranges.” Id. at 11250–51. Plaintiff does allow, however, for testing in unacceptably high

ambient noise levels “[i]f the customer requests services despite the environment,” even though

“performing audio tests in environments that are outside of acceptable ranges is outside of

guidance and can result in incorrect readings that may require additional testing and costs.” Id.

at 11251.

QTC’s proposal notes its “[XX] mobile unit fleet, in conjunction with [its]

subcontractor’s mobile hearing vehicles to expand as needed to support Scenario 1 events, can be

relocated within [X] hours of notice.” AR at 10601. According to QTC, it “provides additional

options to the government by providing medical, dental, audiology, and administrative mobile

vehicles to meet the functional requirements of RHRP-3” in case “indoor space at an event

location is unavailable.” Id. at 10602. QTC proposes that “[e]ach mobile unit designated to be

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used for audiological testing will be equipped with a portable Audiology Kit consists [sic] of a

[XXXXXXXXXXXXXXXXXX] [sic] with [XXXXX] corresponding Sound Level Meters

(SLMs) which can conduct up to [XXX] audiological exams in an 8 hour day.” Id. QTC further

states “[b]efore [group] event[s]” it will “work with the unit POC to determine the best low-noise

environment for audiology examinations based on the layout of the group event location.” Id. at

10608. In the continental U.S., “if a low-noise environment is not available, the event lead will

either determine a viable alternative low-noise environment with the unit POC or request a

mobile unit.” Id. Counsel for QTC explained at oral argument: “mobile services . . . are a

regular part of [QTC’s] . . . approach to providing services under [other similar contracts], and

under this contract.” Tr. at 45:4–7.

The Army awarded LHI, QTC, and a third offeror ratings of “good” for the overall

technical factor, which “was the most important [f]actor.” AR at 13252 (Source Selection

Decision). The source selection decision’s tradeoff analysis noted “QTC received two Strengths

under Subfactor 1, Technical Scenarios (the most important Subfactor), whereas LHI and [the

other offeror] each only received one Strength under Subfactor 1.” Id. at 13255. The first

strength QTC received in subfactor 1 was “the use of mobile audiology solution[s], [which] will

allow the Offeror to perform 100% of the services at group events within the time allotted for the

event.” Id. QTC can accomplish this, according to the government, because “[t]he mobile vans

can be located to areas where there is no hindrance on accurate testing,” which “provides the

Government with accurate testing and no need for repeat services.” Id. This means “the

government would not incur cost of repeat testing,” which “exceeds the capabilities of the

requirement and is advantageous to the Government during contract performance.” Id. The

government justified its rating of QTC by noting QTC’s “approach exceeds the PWS

requirement in providing a technical approach to accomplishing audiology testing in an ambient

noise environment through the utilization of mobile audiology vans that can be easily located to

noise-free environments, which increases the accuracy, consistency, repeatability and reliability

of audiogram results.” Id. at 13253.

Plaintiff argues “the Army awarded QTC a strength for offering audiology vans, but

failed to award [plaintiff] a strength for offering the same thing.” Pl.’s MJAR at 16. According

to plaintiff, “this is a textbook case of unequal treatment.” Tr. at 42:9–10. Specifically, plaintiff

“is asking the Court to find that the [g]overnment should have awarded [plaintiff] a strength, that

if it had awarded [plaintiff] a strength, that would have been discussed in the source selection

decision just as QTC’s was, and it would have changed the awarding authority’s conclusion that

the offerors were essentially equal.” Id. at 42:22–43:2.

The government asserts plaintiff’s “argument that it is entitled to a strength for its

proposed use of audiology vans is also meritless.” Gov’t Cross-MJAR at 21. Specifically, the

government explains, “QTC received a strength because its ‘approach to utilizing a mobile

audiology solution that can be easily located to a noise free area, increases the accuracy,

consistency, repeatability and reliability of the audiogram,’” while plaintiff “has failed to

demonstrate that its proposed use of audiology vans necessarily ‘will be advantageous to the

Government,’ and its proposal is materially different from QTC’s.” Id. (quoting AR at 13020,

12813) (emphasis in original). The government emphasized at oral argument that plaintiff’s

“propos[al] to conduct audiology testing in environments with unacceptable noise levels if that’s

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what the customer requests,” undermined the veracity of plaintiff’s “propos[al] to provide

audiology vans any time a quiet space was not available at group events.” Tr. at 43:9–19 (citing

AR at 275). The government did not contest prejudice on this issue. Tr. at 56:2–8 (“[W]e

haven’t contested prejudice on this particular issue. . . . I’m not saying [plaintiff] would have

won the award in that case, but there’s at least a substantial chance I think.”).

QTC explains the Army “did not determine that [plaintiff’s] mobile audio unit proposal

merited a strength” because it “understood that [plaintiff’s] proposal offered use of mobile audio

units as an alternative approach . . . not as a primary means to deliver its solution.” Def.-

Intervenor’s Cross-MJAR at 16 (citing AR at 274). QTC argues the Army “reasonably

recognized additional value in QTC’s proposal to integrate ‘mobile vehicle units’ as a standard

part of its services delivery.” Id. at 15.

The Federal Circuit recently held in WellPoint, “to demonstrate unequal treatment, a

protestor must show that the agency unreasonably downgraded its proposal for deficiencies that

were substantively indistinguishable or nearly identical [to] those contained in other proposals or

that the agency inconsistently applied objective solicitation requirements between it and other

offerors.” WellPoint Mil. Care Corp. v. United States, 953 F.3d 1373, 1378 (Fed. Cir. 2020)

(internal quotations omitted). Under subfactor 1 of the technical factor, the solicitation required

offerors to “provide a narrative response describing their detailed and thorough technical

approach to perform services for scenarios 1 and 2 that fall within the scope of the PWS.” AR at

1286 (Solicitation). For Scenario 1, offerors were required to, among other things, “[d]escribe

[their] approach to meeting the needs of” a location where “the event is being held in an ambient

environment (eg. [sic] HVAC systems, gathering area, noise issues) and audio services are

ordered.” Id. Offerors could earn a strength when part of the proposal “exceeds specified

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

during contract performance.” Id. at 1242.

The government’s decision can be understood as distinguishing plaintiff’s proposal to

“offer a mobile unit option” from QTC’s proposal to “provide” mobile units. Tr. at 44:1–15; AR

at 11250 (LHI Proposal), 10602 (QTC Proposal). As the government explained at oral

argument, “if [plaintiff] had been proposing to provide audiology vans any time a quiet space

was not available, actually provide them, not simply offer them, there would have been no need

to conduct audiology tests with unacceptable noise levels.” Tr. at 43:21–25. Instead, plaintiff

offered to continue to provide services with unacceptable noise levels “[i]f that’s what the

customer requests.” Tr. at 44:3–14 (citing AR 11251). Notably, QTC does not propose to defer

to a POC’s decision to conduct testing in unacceptable conditions should the POC desire to do

so. See AR at 10601–02, 10608. Plaintiff defends its proposal to defer to the POC as “just what

any good contractor does. If the customer wants to move forward then you’re going to move

forward, but if the customer wants a van, you’re going to provide a van.” Tr. at 52:13–16. The

government, however, is not bound to agree with plaintiff that this is good contracting practice,

especially since plaintiff’s understanding of “what any good contractor does” includes

performance that plaintiffs’ own proposal admits “can result in incorrect readings that may

require additional testing and costs.” AR at 11251.

-14-

The Court finds the government was not unreasonable in choosing to assign a strength to

QTC’s proposal to provide vans to ensure a low-noise environment but not plaintiff’s proposal to

perform audiology tests in unacceptable noise levels if the POC of a particular event desires such

testing. Ala. Aircraft Indus., 586 F.3d at 1375 (“Courts have found an agency’s decision to be

arbitrary and capricious when the agency ‘entirely failed to consider an important aspect of the

problem, offered an explanation for its decision that runs counter to the evidence before the

agency, or [the decision] is so implausible that it could not be ascribed to a difference in view or

the product of agency expertise.’”) (quoting Motor Vehicle Mfrs. Ass’n of U.S., 463 U.S. at 43).

As counsel for the government explained at oral argument, it was not “arbitrary and capricious

for the agency to see a difference between these two proposals” when plaintiff proposed to

“potentially perform these audiology services with unacceptable noise levels if that’s what a

particular POC at a particular event wants.” Tr. at 55:9–20. Plaintiff has not met its high burden

of establishing that its proposal was “substantively indistinguishable” from or “nearly identical”

to QTC’s proposal, as needed to prevail on its claim of unequal treatment. See Office Design

Grp. v. United States, 951 F.3d 1366, 1372 (Fed. Cir. 2020). Plaintiff’s comparison of the two

proposals fails “to demonstrate unequal treatment” because plaintiff did not “‘show that the

agency unreasonably downgraded its proposal for deficiencies that were ‘substantively

indistinguishable’ or nearly identical [to] those contained in other proposals’ or that ‘the agency

inconsistently applied objective solicitation requirements between it and other offerors.’”

WellPoint Mil. Care Corp., 953 F.3d at 1378; Tr. at 44:3–9. Additionally, because the strength

rating is not in error, the source selection decision is also not in error. There were no flaws in the

award process that would have rendered the source selection decision to be irrational because the

Army properly evaluated the proposals. Accordingly, the Court finds the source selection

decision to be reasonable. Impresa Construzioni Geom. Domenico Garufi v. United States, 238

F.3d 1324, 1332 (Fed. Cir. 2001) (Contracting officers “are entitled to exercise discretion upon a

broad range of issues confronting them in the procurement process.”)

C. Whether the Army Misevaluated QTC’s Transition-In Plan

Under technical subfactor 3, “transition and quality assurance,” the Army assigned QTC

a “good” rating for its transition plan proposing to achieve authorization to proceed with the

contract at [XXX] days after contract award (“DACA”). AR at 13252–53. In the part of its

proposal titled “Volume I—Technical Subfactor III—Transition/Quality Assurance,” QTC

stated: “As a result of the significant IT work that Team QTC has already accomplished and will

complete before contract award, we are confident in our ability to achieve the required security

authorizations as early as within the first [X] months ([XXX] days) of the period of performance,

as outlined in our Transition Plan.” Id. at 10727. Later in the same part, in a subsection titled

“1.1.2 IT Automation,” QTC stated: “The government’s stated requirement in the solicitation is

that the contractor shall achieve ATO within 12 months of contract award—QTC intends to do

better, achieving ATO within [XXX] days of contract award.” Id. at 10729. QTC further notes

the government’s 6-month review process, which is included as part of QTC’s [XXX]-day

proposed timeline, can also be expedited “because of our [XXXXXXXXXXXXXXXXXXXXX

XXXXXXXXX],” demonstrating QTC’s proposal is optimistic about achieving a timeline even

shorter than [XXX] days. Id. In a chart with a monthly timeline of events provided in the same

section of its proposal, QTC sets the “ATO/Go Live” deadline at the end of “Month [X].” Id. at

10733. In a section of QTC’s proposal titled “Volume III—Price/Cost—Price Matrix,” QTC

-15-

stated: “We are very confident in our ability to achieve the required authorization(s) as early as

within the first [XXXXX] months ([XXX] days) of the contract as outlined in our transition-in

plan.” Id. at 10832.

QTC identified its “critical path” to contract preparation as including “achieving

authorization via” the government’s Risk Management Framework (“RMF”) because “RMF

activities drive the transition timeline and the schedule for other [transition work breakdown

structure] items which are linked to the ATO schedule.” Id. at 10738. QTC outlined in its

proposal security steps necessary for it to stay on schedule on the critical path. Id. These steps

include: “security design, hardening the technical components to DISA standards, gathering

necessary documentation, plans, processes and procedures, conducting testing, [and] identifying

interfaces.” Tr. at 64:12–17; AR at 10732–34. QTC created a detailed timeline with the

processes occurring “[XXXXXXXXXXXXXXXXX]”—Phase I—and “immediately upon

award”—Phase II. AR at 10732–34. [XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXXXXXXXXXXXXXX]. Id. at 10732. QTC will primarily

harden its technical components [XXXXXXXXXXXXXXXXX] to ensure security and will

complete the sufficiently hardened system immediately upon award. Id. at 10732, 10734.

Counsel for QTC stressed at oral argument QTC’s experience working with these processes and

its current robust infrastructures: “QTC understands this process, . . . their team has done it

before, [XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

XXX], and they have the plans and procedures and documentation in place. . . . They know how

to do it[,] . . . they’ve got all the security hardening documentation, and [XXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXXX].” Tr. at 65:13–20. QTC also observed in its proposal,

despite staffing being “necessary to excel,” the timeline for staffing is “not directly on the critical

path,” but instead “is determined based on the ATO critical path [XXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX].

AR at 10738.

Regarding QTC’s technical subfactor 3 rating, plaintiff argues “[t]he Army [] erroneously

gave QTC a strength . . . for supposedly committing to meet a key transition milestone no later

than [XXX] days after award, when in fact QTC said it would do so no earlier than [XXX] days

after award.” Pl.’s MJAR at 20 (emphasis omitted). According to plaintiff, this means the Army

“entirely failed to consider an important aspect of the problem” and is thus irrational. Id.

(quoting Jacobs Tech., Inc. v. United States, 100 Fed. Cl. 198, 206 (2011)). Plaintiff also asserts

“QTC made a last-minute [XXXXXXXXXXXXXXXXXXXXX] that should have put the Army

on notice that any chance of QTC achieving ATO at [XXX] DACA was off the table—and that

achieving ATO by 365 DACA was in jeopardy.” Id. at 21. Plaintiff argues had the Army

noticed these weaknesses, it “would have removed QTC’s strength, assigned a significant

weakness or deficiency, and downgraded QTC’s Technical Subfactor 3 rating to Acceptable or

worse.” Id. at 22–23.

The government argues, “QTC did, in fact, propose to complete its transition within [XX

XXX] months of contract award, including obtaining the required ATO.” Gov’t Cross-MJAR at

-16-

23. The government notes QTC’s “Transition Plan Major Activities Timeline” “shows QTC

obtaining the required ATO by the end of month [XXXXX],” and “QTC also expressly stated

that it ‘proposes to obtain ATO by the end of Month [X].’” Id. (citing AR at 10733, 10727).

The government acknowledges QTC stated it is “confident in [its] ability to achieve the required

security authorizations as early as within the first [X] months ([XXX] days) of the period of

performance.” Id. According to the government, “[i]n context, the ‘as early as’ language

indicates achieving ATO within [XXXXX] months is not entirely within QTC’s control, because

QTC’s system is subject to Government testing and approval.” Id. (citing AR at 10726)

(emphasis in original). The government emphasized, “QTC committed to having its system

ready for Government testing within [XXX] months of contract award,” and, because the PWS

estimates “six months for Government testing and review, the Government had no reason to

doubt that QTC would complete transition within [XXXXX] months.” Id. at 23–24 (citing AR at

10727, 1180). Regarding plaintiff’s [XXXXXXXX] argument, the government explains QTC’s

proposed [XXXXXXXXXXXXXXXXX] was not necessary to obtain ATO—“[r]ather, QTC

stated that its [XXXXXXXXXXXXXXXXX] was based upon the recognition that it would

likely take [XXXXX] months to achieve ATO, which was necessary to begin full performance.”

Id. at 24–25. The government notes “QTC’s proposal indicated that its ability to achieve ATO

within [XXXXX] months after contract award was due primarily to work [XXXXXXXXXXXX

XXXXX] with [XXXXXXXX] resources, not its post-award [XXXXXXXXXXXXXXXXX].

Id. at 25.3

QTC argues it “clearly proposed to expedite the security authorization process to

completion within [XXX] days (i.e., [XXXXX] months),” and a “fair reading of [its] proposal

makes clear that [it] proposed to achieve the security authorization within its [XXX]-day

proposed timeline.” Def.-Intervenor’s Cross-MJAR at 20 (citing AR at 10726), 21. QTC also

notes it “plainly stated that it would complete its portion of the preparation within [XXX] months

of the contract start date” and “explained that, consistent with the RFP, it assumed six months for

the Government’s full security authorization process.” Id. at 22.4 Regarding plaintiff’s [XXXX

XXXX] argument, QTC explains plaintiff “fails to recognize that QTC did not propose to [XXX

3

In support of the argument QTC’s staffing delays will not affect QTC’s timeline for achieving ATO, the

government also cites the following from QTC’s proposal: “teams are [XXXXXXXXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

XXXXX] . . . outlined for RHRP-3.” Gov’t Cross-MJAR at 25 (citing AR at 10712) (internal quotation marks

omitted) (emphasis added in government’s brief); “As a result of the significant IT work that [XXXXXXXXXXXX

XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX], we

are confident in our ability to achieve the required security authorization as early as within the first [X] months

([XXX] days) of the period of performance. . . . The IT solution that QTC proposes for RHRP-3 [XXXXXXXXXX

XXXXXXXXXXXXX] and delivering services to federal government organizations today.” Id. (citing AR at

10727) (internal quotation marks omitted) (emphasis added in government’s brief).

4

QTC also quotes specifically from its proposal:

Our solution architecture, hardened security posture, and [XXXXXXXXXXXXXXXXXXXXX] provides to the

government a system that is ready for testing within [X] months ([XX] days) of the contract start date. QTC

assumes approximately 6 months for the full security authorization process, including [XXXXXXXXXXXXXXXX

XXXXX] contents and [XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX] independent verification

[XXXXXXXXXXXXXXXXXXXXXXXXXXXXX], results and package review, and granting of the ATO.

Def.-Intervenor’s Cross-MJAR at 22 (quoting AR at 10726) (emphasis in QTC’s brief).

-17-

XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

XXXXXXXXXXXX].’” Id. at 24. According to QTC, plaintiff’s argument incorrectly supposes

the inverse of QTC’s plan, specifically that “QTC’s ATO timeline is dependent on [XXXXXXX

XXXXXXXXXXXXXXXXXXXXXX].” Id. at 27. QTC instead notes, “the work to achieve

ATO [XXXXX] months after award had [XXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

XXXXX].” Id. (emphasis in original). QTC explained “its solution [to achieving ATO] is

‘already in place and functional for federal use,’” but “that solution ‘needs to be hardened to

DoD and DHA security standards.’” Id. at 25. Rather than needing to [XXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX],” while [XXXX

XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX].

Id. at 26–27 (citing AR at 10738–39).

For technical subfactor 3, transition and quality assurance, the RFP instructed offerors to

describe, among other things, “[t]he processes and timelines from inception to full

implementation,” “a detailed flow schedule that includes all activities required from inception of

award through commencement of procedure services[,]” and the “[t]ransitioning of applicable IT

systems, data, databases, software and services.” AR at 1288. The flow schedule was required

to “clearly identify the critical path and all tasks.” Id. The RFP required the Army to evaluate

“the Offeror’s methods and approach to meeting the requirements in a timely manner,” and

assess whether “the Offeror is expected to be able to successfully complete the services to meet

the requirements of the PWS.” Id. at 1240. A key transition milestone is the contractor’s ATO

for information systems networks, which the RFP required the contractor to achieve by 365 days

after contract award. Id. at 1288; see also 1179.

Plaintiff offers two related objections to the government’s assignment of a “good” rating

to technical subfactor 3 for QTC’s proposed transition plan: (1) plaintiff disputes whether QTC

actually proposed to complete its transition within [XXX] days; and (2) plaintiff believes the

government “never considered what effect QTC’s significant [XXXXXXXXXXXXXX] would

have on its ability to” meet the transition deadline, meaning the government “failed to consider

an important aspect of the problem.” Pl.’s MJAR at 21–22 (citing Jacobs Tech., 100 Fed. Cl. at

206); Tr. at 68:19–69:12. At oral argument, counsel for the government acknowledged QTC

said it would complete the transition in “as early as” [XXX] days “in a couple of places,” but

explained the government understood this to be QTC’s recognition of the government’s role in

contributing to achieving the [XXX]-day timeline. Tr. at 69:24–70:4. The government cited the

“lengthy government review process” covering “the majority of that [XXXXX] months” QTC

proposed in its timeline as evidence QTC intended to propose to, and can deliver on, its part of

the [XXXXX]-month timeline. Id. at 70:3–11. Counsel for QTC explained at oral argument,

“QTC will have its part of the process, its authorization package, done by the end of [XX] days,

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and be ready for testing at the end of [XX] days, which means if the [g]overnment performs its

part of the work in [XXX] months, . . . this process will be done at the end of month [XXXXX].”

Id. at 71:22–72:4.

When asked what plaintiff specifically disputed regarding QTC’s proposed timeline of

[XX] days followed by six months for the government’s security authorization for a total of an

[XXXXX]-month transition, counsel for plaintiff explained, “to try to put it simply, . . . the

transition plan that’s presented in [QTC’s proposal] is outdated because it does not account for

the [XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXXXXXXXXXXX]. Id. at 76:4–6, 77:20–22. Counsel for plaintiff

argued QTC’s transition approach presented beginning at AR 10726, QTC’s proposal dated 3

July 2019, is outdated because QTC proposed an updated and final reduced-cost proposal on 12

November 2019, and “[t]hat price revision says, hey, we’re [XXXXXXXXXXXXXXXXXXXX

X]” but “it never goes back and issues or submits an updated version of that July 3rd document.

So there’s nowhere where QTC ever explains to the Government, here’s what the [XXXXXXXX

X] is, here’s how it [XXXXXXXXXXXXX]—affects transition or doesn’t affect transition.” Id.

at 77:3–18. Plaintiff here collapses its first argument into its second, as its explanation for why

the government was irrational in crediting QTC’s [XX]-day start to the [XXX]-day proposed

transition plan rests on its argument the plan does not account for QTC’s later [XXXXXXXXXX

XXXXXXXXXXXXXXX] for its final reduced cost proposal. See id. Plaintiff provides no

other reason for the Court to find the government irrational in crediting QTC’s proposed

transition time; thus, the Court will consider plaintiff’s argument regarding QTC’s proposal to

reduce costs by [XXXXXXXXXXXXXXXXXXXXXXXXX] as a necessary premise in its

argument against QTC’s “good” rating. See Tr. at 77:19–22 (plaintiff’s counsel arguing “the

transition plan [QTC] presented . . . is outdated because it does not account for [XXXXXXXXX

XXXXXXXXXXXXX].”).

Counsel for the government acknowledged at oral argument, “QTC made an adjustment

to its [XXXXXXXXXXXXXXXX] in its final proposal revision” but also noted QTC’s 12

November 2019 final proposal revision stated: “[QTC] remain[s] fully dedicated to [its] solution

for RHRP-3 and there are no changes to the technical approach from the July 3, 2019 proposal

submission.” Tr. at 61:18–19, 79:22–80:5; AR at 11609. Counsel for the government also noted

QTC’s final proposal revision stated it merely “adjusted the [XXXXXXXXXXXXXXXXXXXX

XXXX] of the same total [XXXXXXXXXXXXXXX] to be more efficient,” which QTC is able

to do because of its “[XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX].” Tr. at 80:6–12; AR at

11628. This specific language from QTC’s 12 November 2019 final proposal revision

undermines plaintiff’s argument QTC “never goes back and issues or submits an updated version

of that July 3rd document. So there’s nowhere where QTC ever explains to the Government,

here’s what the [XXXXXXXXX] is, here’s how it [XXXXXXXXXXXXX]—affects transition

or doesn’t affect transition.” Tr. at 77:13–18. Contrary to plaintiff’s assertion, QTC explained

there will be no effect on transition: “We remain fully dedicated to our solution for RHRP-3 and

there are no changes to the technical approach from the July 3, 2019 proposal submission.” AR

at 11609. Additionally, the government observed at oral argument: “[t]ransition is a firm fixed

price element of this contract, so QTC will be required to meet the requirements of a PWS at the

price it proposes . . . regardless of whether that means they have to have [XXXXXXXXXXXXX

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XXXXXXXXXXXXXXXXXXXXX]. Tr. at 70:12–15. The government concluded at oral

argument that QTC’s explanation means the government could continue to take QTC’s

“subfactor 3 proposal at face value that it could . . . complete transition within [XXXXX]

months.” Id. at 80:13–17.

QTC’s final proposal’s promise that the [XXXXXXXX] change does not change its [XX

XXX]-month transition timeline is supported by the substance of its proposed transition: “Our

solution architecture, hardened security posture, and [XXXXXXXXXXXXXXXXXXXXX]

provides to the government a system that is ready for testing within [X] months ([XX] days) of

the contract start date,” which is possible because “QTC’s [XXXXXXXXXXXXXXXXXXXX]

effectively trim [X] months off the transition timeline.” AR at 10726. Counsel for QTC

explained at oral argument such [XXXXXXXXXXXXXXXXXXXX] are “obviously . . . being

done [XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXX],” indicating a streamlined transition process. Tr. at 78:9–11.

The Court finds the Army’s evaluation of a strength for QTC’s transition plan to be

rational because it did not “entirely fail[] to consider an important aspect of the problem”; rather,

the government noted QTC’s promise that its cost and [XXXXXXXXXXXXXXXXXX] would

not negatively affect its proposed accelerated transition time. Tr. at 80:13–17; Ala. Aircraft

Indus., 586 F.3d at 1375 (internal citation and quotation marks omitted); Jacobs Tech., 100 Fed.

Cl. at 206. The government is correct plaintiff “provides no basis to question [the] assignment of

a strength to QTC’s proposal to obtain ATO and complete the transition within [XXXXX]

months of contract award.” Gov’t Cross-MJAR at 25. The government was reasonable in

crediting QTC with a strength for an accelerated transition time because QTC communicated the

role its existing staff and [XXXXXXXXXXXXXXXXXXXXX] would play in preparing for

transition within the first [XX] days of contract start date. AR at 10726; Ala. Aircraft Indus.,

Inc.-Birmingham, 586 F.3d at 1375. The government additionally was not irrational in crediting

QTC with proposing an [XXXXX] month transition plan despite QTC’s language “as early as

[[XXXXX] months]” because QTC provided a detailed plan for achieving the transition in [XXX

XX] months and explained the final six of the [XXXXX] months in the transition would depend

on government involvement. AR at 10726–27, 10729, 10732–34; Ala. Aircraft Indus., Inc.-

Birmingham, 586 F.3d at 1375.

D. Whether the Overall Technical Evaluation Was Adequate

Plaintiff argues “the record shows that the Army’s technical evaluation ignored the

majority of criteria that it was required to consider,” failing the RFP’s requirement for “the Army

to evaluate proposals against the major requirements of the entire PWS.” Pl.’s MJAR at 23.

Plaintiff asserts the government must comply with the FAR’s “require[ment] that a ‘source

selection authority’s (SSA) decision shall be based on a comparative assessment of proposals

against all source selection criteria in the solicitation.’” Id. (quoting FAR 15.308 (emphasis

added in plaintiff’s brief)). According to plaintiff, the Army’s evaluation of plaintiff’s “technical

proposal comprises just 18 pages spread across four documents,” and “[o]nly about 8 of those

pages actually discuss the proposal.” Id. at 23–24 (citing AR at 2455–57, 2458–63, 2464–67,

2468–72). Plaintiff notes the Army’s “evaluation of QTC’s technical proposal is less than 22

pages spread across four documents,” and “[o]nly about 9 of those pages actually discuss the

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proposal.” Id. at 24 (citing AR at 12806–07, 12810–14, 12817–18, 12821–22). Plaintiff also

complains the Army “ignored the vast majority of material requirements in the PWS,” including

“the training and licensure requirements for providers” and “the contractor’s vaccine supply

chain.” Id. at 25 (citing AR at 1144–46, PWS § 2.8; id. at 1150-51, PWS § 2.14). Plaintiff

argues it was prejudiced by the government’s allegedly “inadequate evaluation” because the

government would have recognized plaintiff’s additional technical strengths and QTC’s

weaknesses, establishing “a substantial chance that the Army would have been willing to pay a

small premium for [plaintiff’s] technical superiority.” Id. at 25–26.

The government responds, “neither the FAR, nor the solicitation, required DoD to

document offerors’ understanding of and expected compliance with every PWS requirement.”

Gov’t Cross-MJAR at 28. According to the government, “[i]f a PWS requirement was not

directly addressed in a technical subfactor evaluation, it was either because that PWS

requirement was not relevant to the particular subfactor or because DoD did not deem the

offeror’s approach to that particular PWS requirement to merit a strength, weakness, or

deficiency.” Id. The government notes “[t]he FAR requires that the ‘relative strengths,

deficiencies, significant weaknesses, and risks supporting proposal evaluation shall be

documented in the contract file.’” Id. at 25 (quoting FAR 15.305(a)). The government also

notes “[t]he FAR also requires an ‘assessment of each offeror’s ability to accomplish the

technical requirements’ and a ‘summary, matrix, or quantitative ranking, along with appropriate

supporting narrative, of each technical proposal using the evaluation factors.’” Id. at 25–26

(quoting FAR 15.305(a)(3)). The government emphasized: “The solicitation required the

agency to evaluate offerors’ understanding of the PWS requirements and the feasibility of their

approaches through the prism of three technical subfactors: 1) two specific technical scenarios

for the delivery of particular RHRP services; 2) management and staffing; and 3) transition and

quality assurance.” Id. at 26 (citing AR at 1239–40, 1248–56, 1286–88). The significance of

this, the government asserts, is that “DoD would evaluate offerors against the PWS requirements

as relevant to each of the technical subfactors, not on an itemized basis.” Id. at 27. The

government’s reply brief also notes prior Court of Federal Claims case law finding, according to

the government: “[n]either the FAR nor the solicitation required DoD to document each

offeror’s understanding of and expected compliance with every PWS requirement that was

relevant to every subfactor, where the offeror demonstrated an adequate understanding and a

feasible approach.” Gov’t Reply at 9 (citing Telos Corp. v. United States, 129 Fed. Cl. 573, 577

(2016) (Wolski, J.)).

QTC argues plaintiff’s “complaints regarding the adequacy of the evaluation are based on

a distortion of the RFP and cannot be supported.” Def.-Intervenor’s Cross-MJAR at 27. QTC

explains the RFP does not “promise a check-the-box evaluation of the proposal versus each and

every PWS requirement. Instead, ‘the solicitation established technical scenarios as a technical

evaluation subfactor, through which the agency would be able to evaluate offerors’

understanding of, and approach to, the PWS requirements.’” Id. (quoting GAO Advisory Op. at

9) (emphasis in QTC’s brief). QTC cites Court of Federal Claims case law “recogniz[ing] that

‘when an agency is not finding fault with a particular approach to a task, or noting its superior

quality, the Court cannot see how the agency should be required to explain its finding—that the

approach is merely adequate—in any detail.’” Id. at 29 (quoting InSpace 21 LLC v. United

States, 128 Fed. Cl. 69, 89 (2016) (Wolski, J.)).

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QTC also notes plaintiff “filed pre-award protests with the Agency and GAO

complaining about the narrowness of the RFP’s evaluation scenarios—and seeking a revision to

the RFP that would ‘require offerors to propose a comprehensive technical solution for the full

set of requirements under the PWS, and to provide that the agency will evaluate each offerors

[sic] ability to meet those requirements.’” Id. at 27–28 (quoting AR at 2718–22). QTC explains

the government “took corrective action and revised the scenarios, but it did not incorporate into

the RFP an evaluation scheme requiring the documentation of the Agency’s examination of each

and every PWS provision against each proposal,” as plaintiff had requested. Id. at 28.

When an agency selects one offer among many, that exercise of discretion is scrutinized

to ensure the agency “considered the relevant factors and articulated a rational connection

between the facts found and the choice made.” Balt. Gas & Elec. Co. v. Natural Res. Def.

Council, 462 U.S. 87, 105 (1983) (citation omitted); see also Beta Analytics Int’l, Inc. v. United

States, 67 Fed. Cl. 384, 396 (2005) (Wolski, J.) (applying the standard established in Balt. Gas &

Elec.). “Among the various APA standards of review in section 706, 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., Inc. v. United States, 365 F.3d 1345, 1350 (Fed.

Cir. 2004). The FAR requires the “relative strengths, deficiencies, significant weaknesses, and

risks supporting proposal evaluation . . . be documented in the contract file.” FAR 15.305(a). It

also requires an “assessment of each offeror’s ability to accomplish the technical requirements”

and a “summary, matrix, or quantitative ranking, along with appropriate supporting narrative, of

each technical proposal using the evaluation factors.” FAR 15.305(a)(3).

The solicitation included two “technical scenarios” by which the government judged the

offerors’ proposals. See AR at 1248. The technical scenarios were the most important subfactor

within the technical factor, and the technical factor was the most important factor. Id. at 1238.

The solicitation notes the government’s evaluation “will assign an adjectival rating and write a

narrative evaluation reflecting the identified findings,” and “[t]he result will be a determination

of the overall merits of each proposal in terms of its potential to best satisfy the needs of the

Government.” Id. at 1239. For each technical subfactor, the solicitation required the Army to

evaluate a proposal’s “Understanding of the Requirements,” meaning “[t]he extent to which the

proposal demonstrates a clear and complete understanding of the requirements in the [PWS]”

and “Feasibility of Approach,” meaning “the extent to which the Offeror is expected to be able to

successfully complete the services to meet the requirements of the PWS.” Id. at 1240. The

solicitation stated the technical factor ratings will “focus on the significant strengths, strengths,

deficiencies, significant weaknesses, and risks of the Offeror’s proposal,” and “[e]ach Subfactor

will be assessed for significant strengths, strengths, significant weaknesses, weaknesses,

deficiencies, risks [], and uncertainties.” Id. Technical subfactor 1, Scenario 1 requires offerors

to “include at a minimum the following: staffing (shall list the labor mix, hours, labor category

and procedure), movement/shipping of technical/medical equipment, travel, IT support,

scheduling/coordination of services for the service members and the handling of vaccines (to

include shipping and cold chain maintenance process) for both surge weekends.” Id. at 1286.

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In a 2016 case before this court, InSpace 21, Judge Wolski found, “when an agency is not

finding fault with a particular approach to a task, or noting its superior quality, the Court cannot

see how the agency should be required to explain its finding—that the approach is merely

adequate—in any detail.” InSpace 21, 128 Fed. Cl. at 89. This is because “[n]o statute or

regulation requires such a process, which would impose high transactions costs on the

government with little added benefit.” Id. Judge Wolski also explained, “it is not arbitrary for

an agency to not provide detailed explanations of the reasons an approach is adequate, unless this

subjective judgment can be shown to be inconsistently reached.” Id. In a later 2016 case, Telos

Corporation, Judge Wolski acknowledged the government must follow “the evaluation factors

and criteria announced by the agency” and “[f]or negotiated procurements, the FAR requires a

certain level of documented analysis of ‘relative strengths, deficiencies, significant weaknesses,

and risks, . . . which may be mined by protestors for prejudicial errors or inconsistencies.” Telos

Corp., 129 Fed. Cl. at 577 (citing FAR 15.305(a); FAR 15.305(a)(3)). Judge Wolski rejected

plaintiff’s position, however, “that a protester can unilaterally impose upon an agency the duty to

explain why any feature in its proposal was not found to be a strength, merely by disputing this

determination.” Id. This “concept is unprecedented, because it would shift the focus of bid

protests far from the review of the actual procurement decision and, hence, depart from the APA

review standard.” Id. Judge Wolski then found: “the notion that when an agency finds aspects

of a protester’s proposal to be adequate, and thus not material to the best value determination,

each adequacy determination must nevertheless be explained for the award decision to be

rational, has no basis in law or reason. Such an approach is not even required in . . . negotiated

procurements.” Id. This means “the [government] decision that must be reasonably articulated

and supported in a post-award bid protest is the selection of the awardee, not every ‘decision’

that a proposed feature is unremarkable.” Id.

Counsel for plaintiff summarized at oral argument: “the agency failed to evaluate key

aspects of the proposals, and consider key aspects of the problem before making an award

decision.” Tr. at 84:9–12. Counsel for the government noted, “all that’s required” for the

agency to demonstrate it “evaluated proposals in accordance with the solicitation’s criteria” is for

the government to “document[] its evaluation in accordance with FAR 15.305(a), focusing on

strengths, weaknesses, risks and deficiencies.” Id. at 84:14–19. As the government asserts, it

complied with the FAR requirements and “summarized the offerors’ technical approach,

explained any strengths, weaknesses, risks, and deficiencies, and assigned an adjectival rating in

accordance with the solicitation’s evaluation criteria.” Gov’t Cross-MJAR at 26 (citing AR at

1641–58, 2007–22, 2458–72, 12185–00, 12458–74, 12808–22, 13181–88, 13245–60). Plaintiff

asks the Court to apply a more searching level of inquiry into the award than is appropriate by

asking for “the Army to evaluate proposals against the major requirements of the entire PWS.”

Pl.’s MJAR at 23. Rather, “the [government] decision that must be reasonably articulated and

supported in a post-award bid protest is the selection of the awardee, not every ‘decision’ that a

proposed feature is unremarkable . . . .” Telos Corp., 129 Fed. Cl. at 577.

Plaintiff complains the Army “ignored the vast majority of material requirements in the

PWS,” including “the training and licensure requirements for providers” and “the contractor’s

vaccine supply chain.” Pl.’s MJAR at 25. Plaintiff offers the following conclusory explanation

for why it was prejudiced by the government’s failure to discuss its considerations of these

requirements:

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Had the Army evaluated the offerors’ proposals against the PWS requirements as

required, it would have recognized numerous strengths in LHI’s technical

proposal, including its existing network of trained and credentialed providers, and

its sophisticated and comprehensive approach to vaccine logistics. And it would

have realized that QTC lacks an understanding of—and feasible approach to—

many of the PWS requirements.

Id. at 25–26. In short, plaintiff asserts the government’s failure to give offerors ratings plaintiff

believes they should have received is itself proof the government failed to adequately consider

proposals. Counsel for plaintiff confirmed this position at oral argument, stating the

government’s evaluation was flawed “because there’s no contemporaneous record before the

Court showing that the agency ever evaluated the vaccine supply chain management.” Tr. at

88:21–24. According to plaintiff’s counsel, vaccine supply chain management “is a significant

enough issue that if the agency had evaluated it, it would have addressed it.” Tr. 89:11–15. This

approach proceeds under what Judge Wolski decried in Telos Corp. as “the notion that when an

agency finds aspects of a protester’s proposal to be adequate, and thus not material to the best

value determination, each adequacy determination must nevertheless be explained for the award

decision to be rational,” an approach to evaluating government procurement decisions Judge

Wolski found “has no basis in law or reason.” Telos Corp., 129 Fed. Cl. at 577. As counsel for

the government explained at oral argument, “the agency simply didn’t . . . either take issue or

find a strength with regard to vaccine management,” for example. Tr. at 87:21–23. Rather, the

government notes, and the Court agrees, “the agency documented its evaluation and documented

the overall approach of the offerors and the specific strengths and weaknesses that it found, and

used that narrative and those strengths . . . to determine the various ratings . . . for the offerors.”

Tr. at 87:23–88:4. The Court accordingly finds the government complied with the FAR

requirement to “document[] in the contract file” “relative strengths, deficiencies, significant

weaknesses, and risks supporting proposal evaluation”; thus, plaintiff fails to provide a basis for

its assertion the government’s overall evaluation was “‘arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with law.’” FAR 15.305(a); Banknote Corp. of Am.,

365 F.3d at 1350–51. Plaintiff’s argument it was prejudiced by the government’s alleged errors

similarly fails because plaintiff has not established the government was in error and thus has not

established “a substantial chance that the Army would have been willing to pay a small premium

for [plaintiff’s] technical superiority.” Pl.’s MJAR at 26. The government and QTC also offer

Blue & Gold arguments against plaintiff’s complaint regarding the adequacy of the overall

evaluation. Although the Court finds for the government and QTC here, the Court will

alternatively address all Blue & Gold arguments infra.

V. Whether the Army’s Conduct of Discussions Was Equal

Plaintiff explains, “before making the first award to QTC, the Army gave QTC six

chances to revise and improve its proposal while allowing [plaintiff] just four.” Pl.’s MJAR at

27. According to plaintiff, these discussions resulted in the government changing weakness

ratings into strengths for QTC, and the government allowed QTC a seventh discussion during

corrective action following outcome prediction ADR at the GAO, during which “QTC was

allowed to transform its fatally deficient proposal into an award-winner while [plaintiff] was

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given no opportunity whatsoever to improve its proposal.” Id. at 28. Plaintiff argues this

“repeatedly violated” the “basic rule[]” requiring “that an agency may not give one offeror

multiple opportunities to improve without giving other offerors the same chance.” Id. at 26.

Plaintiff asserts the government’s decision to take corrective action after the GAO determined

the government failed to previously inform QTC of a deficiency in its solicitation “is

fundamentally unfair” because the government did not also give plaintiff a chance to improve its

proposal. Id. at 29.

Plaintiff also cites two cases from this court for the proposition, “if an agency holds or

reopens discussions with one offeror, it must do so with all offerors whose proposals are in the

competitive range.” Id. at 26 (citing Centerra Grp., LLC v. United States, 138 Fed. Cl. 407, 416

(2018); Dynacs Eng’g Co. Inc. v. United States, 48 Fed. Cl. 124, 130 (2000)). Plaintiff notes the

court in Centerra found, “conducting discussions only with the putative awardee in response to a

bid protest is unlawful and makes ‘a mockery of fundamental fairness and competitive

principles.’” Id. at 28 (citing Centerra, 138 Fed. Cl. at 416). According to plaintiff, “[a]s in

Centerra, the Army’s corrective action allowed the awardee to fix its proposal without giving

[plaintiff] any chance at all to improve its competitive standing,” when if “[g]iven the same

opportunities and guidance QTC received, [plaintiff] likely would have lowered its price

significantly and improved its proposal in other ways, thereby giving it substantial chance of

award.” Id. at 29 (citing Centerra, 138 Fed. Cl. at 416).

The government argues its “discussions were tailored to each offeror, as required by the

FAR,” and it “was not required to hold extra rounds of discussions with [plaintiff] when

[plaintiff] had no further deficiencies or significant weaknesses to discuss.” Gov’t Cross-MJAR

at 36; see Tr. at 98:17–22 (“[T]his in no way favors QTC over [plaintiff], it’s treating them

equally by tailoring discussions to the specific issues in each of their proposals as required by, or

at least as directed by 15.306(d)(1), which provides that discussions are tailored to each offeror’s

proposal.”). The government notes several GAO decisions in which an agency “re-open[ed]

discussions with only one offeror as part of a corrective action.” Gov’t Cross-MJAR at 40

(citing Environmental Chem. Corp., B-416166.3, et al., 2019 CPD ¶ 217, at *20–21 (Comp. Gen.

June 12, 2019); Peraton, Inc., B-416916.5, et al., 2020 CPD ¶ 144, at *7–9 (Comp. Gen. Apr.

13, 2020). The government explains, “[t]his places the offeror receiving discussions about the

newly identified significant weaknesses or deficiencies on a level playing field with the other

offerors, who had already received meaningful discussions.” Id. (citing Environmental

Chemical, 2019 CPD ¶ 217, at *21).

The government also notes the Court of Federal Claims has previously gone “so far as to

order the Government to conduct discussions with only one offeror during a corrective action,

when the Court determined that this was necessary to correct the agency’s error and prevent the

other offers from gaining an unfair advantage.” Id. at 41 (citing Caddell Construction Co. v.

United States, 125 Fed. Cl. 30, 55–57 (2016)). The government asserts plaintiff states it likely

would have lowered its price significantly because plaintiff “learned QTC’s price and factor

ratings after the first award and before the corrective action, so [plaintiff] knew that it lost the

competition primarily because of its higher price.” Id. at 42–43 (internal citation omitted).

According to the government, “[a]llowing [plaintiff] to make unfettered proposal revisions

during the corrective action, despite having no remaining weaknesses or deficiencies, would

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effectively punish QTC for DoD’s mistake in failing identify the QTC program manager

deficiency during the initial pre-award discussions.” Id. at 43. The government argues Centerra

is distinguishable from this case because: (1) “the Centerra decision does not indicate that the

agency assessed any new significant weaknesses or deficiencies in the awardee’s proposal during

the corrective action”; and (2) “the agency in Centerra was not trying to correct the failure to

provide meaningful discussions to the awardee.” Id. at 43 (citing Centerra, 138 Fed. Cl. at 416–

18; FAR 15.306(d)(3)). The government finally argues, even if it “erred by not also offering

[plaintiff] the opportunity to substitute its program manager,” plaintiff “has not demonstrated

that a new program manager would have improved its proposal.” Id. at 44.

QTC argues plaintiff’s claim “does not implicate the content of any discussion items,”

and instead “boils down to an argument that discussions are per se improper and ‘unequal’ if an

agency holds a different number of discussion rounds with offerors.” Def.-Intervenor’s Cross-

MJAR at 30. Plaintiff “cites no authority” for this proposition, QTC argues, “which would be

inconsistent with the FAR mandate that discussions are to be ‘tailored to each offeror’s

proposal,’” as well as the FAR rule an agency must give a common cutoff “only for receipt of

final proposal revisions.” Id. (citing FAR15.306(d)(1); FAR 15.307(b)). QTC further explains:

“[i]f the number of rounds and proposal revisions needed to be common, there would not be any

need for such a statement specific to final proposal revisions.” Id. QTC finally notes the FAR

“provides that the ‘scope and extent of discussions are a matter of contracting officer

judgment.’” Id. at 29 (quoting FAR 15.306(d)).

QTC asserts there is “no genuine question that, as part of its corrective action, the

Agency was permitted to raise the PM deficiency with QTC in discussions.” Id. at 31. This is

because the Army “found that it erroneously had not considered QTC’s proposed PM to be a

deficiency and, thus, had not had any discussions on the point.” Id. QTC explains the GAO

previously found “an agency may conduct discussions with only one offeror in the course of

taking corrective action in response to an outcome prediction by GAO.” Id. at 31–32 (citing

Peraton, Inc., B-416916.5, Apr. 13, 2020, 2020 CPD ¶ 144). QTC further noted the GAO

elsewhere found “conduct[ing] discussions with only one offeror . . . to address concerns the

agency had not previously addressed in discussions . . . merely would place” the offeror “‘in the

same competitive position’ as the other offerors with whom discussions had been held on all

relevant issues.” Id. at 32 (citing Environmental Chemical Corp., B-416166.3, et al., June 12,

2019, 2019 CPD ¶ 217 at 21).

“[C]ontracting officers are ‘entitled to exercise discretion upon a broad range of issues

confronting them’ in the procurement process.” Impresa Construzioni Geom. Domenico Garufi

v. United States, 238 F.3d 1324, 1332 (Fed. Cir. 2001) (citation omitted). This Court may set

aside a contract award when plaintiff alleges “the procurement procedure involved a violation of

regulation or procedure,” but “the disappointed bidder must show ‘a clear and prejudicial

violation of applicable statutes or regulations.’” Id. at 1332–33 (citation omitted). The Federal

Circuit has “consistently reviewed agencies’ corrective actions under the [APA’s] ‘highly

deferential’ ‘rational basis’ standard.” Dell Fed. Sys., L.P. v. United States, 906 F.3d 982, 992

(Fed. Cir. 2018). “The scope and extent of discussions are a matter of contracting officer

judgment,” and discussions must be “tailored to each offeror’s proposal.” FAR 15.306(d)(3),

15.306(d)(1). Contracting officers are required to “indicate to, or discuss with, each offeror still

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being considered for award, deficiencies, significant weaknesses, and adverse past performance

information to which the offeror has not yet had an opportunity to respond,” but “the contracting

officer is not required to discuss every area where the proposal could be improved.” FAR

15.306(d)(3).

The FAR states:

The contracting officer may request or allow proposal revisions to clarify and

document understandings reached during negotiations. At the conclusion of

discussions, each offeror still in the competitive range shall be given an

opportunity to submit a final proposal revision. The contracting officer is

required to establish a common cut-off date only for receipt of final proposal

revisions. Requests for final proposal revisions shall advise offerors that the final

proposal revisions shall be in writing and that the Government intends to make

award without obtaining further revisions.

FAR 15.307(b) (emphasis added). As a fundamental principle, the FAR establishes:

“prospective contractors shall be treated fairly and impartially but need not be treated the same.”

FAR 1.102-2(c)(3). The government stated it “intends to award with discussions as described in

Federal Acquisition Regulation (FAR) 15.306(d); however, the Government reserves the right to

award without conducting discussions should it be determined to be in the Government’s best

interest. Therefore, the initial proposed prices shall represent best and final prices.” AR at 1238.

At oral argument, counsel for the government outlined the timeline of pre-award

evaluation notices it provided to the offerors, explaining it provided such notices in February

2019 and June 2019 when it informed the parties of their weaknesses and deficiencies and

provided the parties the opportunity to correct them. Tr. at 97:23–98:8. QTC received additional

opportunities to address deficiencies the government noticed in its July 2019 small business

proposal revision, which QTC addressed through minor changes in August 2019. Id. at 98:9–13;

see also id. at 110:13–23. Both parties were then “permitted to submit a final proposal revision

in November 2019 . . . and make whatever changes they wanted to at that time.” Id. at 98:14–16.

The government observed any changes plaintiff hoped to have made to its proposal when QTC

made its August 2019 changes, plaintiff could have later made in its November 2019 final

revision, but it “simply chose not to make significant changes.” Id. at 98:23–99:4. Counsel for

plaintiff argued at oral argument the extra opportunity the government granted QTC to address a

deficiency violates “a fundamental fairness requirement that’s in FAR 15.306.” Id. at 107:25–

108:6. Counsel for QTC noted “[t]here’s no requirement in the FAR to hold the same number of

discussions with each offeror, and that would actually be inconsistent with the requirements that

they tailor discussions.” Id. at 111:22–25. Counsel for plaintiff agreed with counsel for QTC,

stating such a requirement “is not” in the “specific language” of the FAR. Id. at 113:14–18.

Contracting officers are required to “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,” but “the contracting

officer is not required to discuss every area where the proposal could be improved.” FAR

15.306(d)(3). By conducting discussions with offerors to address their weaknesses and

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deficiencies, the government is correct it acted in a fashion “tailored to each offeror’s proposal.”

FAR 15.306(d)(1). The government conducted its pre-award discussions with offerors when

they had outstanding deficiencies, but the government was not required to grant plaintiff the

opportunity to “discuss every area where the proposal could be improved.” FAR 15.306(d)(3);

see also FAR 1.102-2(c)(3) (“prospective contractors shall be treated fairly and impartially but

need not be treated the same”). This Court may set aside a contract award if “the procurement

procedure involved a violation of regulation or procedure[,]” but “the disappointed bidder must

show ‘a clear and prejudicial violation of applicable statutes or regulations.’” Domenico Garufi,

238 F.3d at 1332–33. Regarding the government’s corrective action discussion with QTC,

counsel for the government observed at oral argument, “[t]his Court’s decision in Caddell, as

well as the GAO’s decision in Environmental Chemical, Peraton, not to mention the advisory

opinion in this very case, all recognize that agencies may reopen discussions during corrective

action with only one offeror in certain circumstances.” Tr. at 99:9–14. Those circumstances

include, according to counsel for the government, “when the agency failed to . . . notify [the]

offeror of a weakness or deficiency in its proposal during the pre-award discussions.” Id. at

99:14–18.

While the government has discretion in conducting discussions with offerors, it “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.” FAR 15.306(d)(3). “‘An agency may not inadvertently mislead an

offeror, through the framing of a discussion question, into responding in a manner that does not

address the agency’s concerns; or that misinforms the offeror concerning its proposal weaknesses

or deficiencies; or the government’s requirements.’” Analytical & Research Tech., Inc. v. United

States, 39 Fed. Cl. 34, 48 (1997) (internal citation omitted). At outcome prediction ADR, the

GAO announced a deficiency the Army had not previously informed QTC of when the Army

awarded QTC an “acceptable” rating for in the relevant category. AR at 241–42, 475. To allow

QTC to be “permitted the opportunity to address this deficiency during the discussion process,”

the Army issued an evaluation notice and allowed QTC to revise its proposed program manager

through corrective action. Id. at 12136. This means the corrective action plaintiff objects to

originated in the government’s mistake in not identifying QTC’s weakness before final proposals

and award decision, rather than any action of QTC. Plaintiff’s objection to the government’s

corrective action raises an apparent conflict between the fairness associated with ensuring

finality in final proposals and the fairness associated with allowing parties to correct errors in

proposals the government should have noticed before final proposals and award. Plaintiff’s

request to be allowed to lower its price itself raises additional fairness concerns because: (1)

plaintiff has now seen that QTC’s final price was slightly lower than its price and that QTC had

similar technical ratings; and (2) QTC was only allowed to update the deficiency related to its

proposed program manager during corrective action—it was not allowed to update its price

proposal—yet plaintiff asks to adjust its price, not replace its program manager. The Court must

address how these various concerns relate to one another.

In Caddell, this court “recognize[d] that typically when discussions are reopened with

one offeror, they should be reopened with all offerors.” Caddell Constr., 125 Fed. Cl. at 34. The

court found in Caddell, however, “two circumstances taken together militate[d] against”

reopening discussions with all offerors. Id. First, in Caddell “the misleading discussions only

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affected the awardee’s pricing,” while the “other offerors received accurate information and had

an opportunity to submit informed revised offers.” Id. In this procurement, the government

directed its corrective action only to QTC because the government’s error in failing to notice

QTC’s deficient program manager “only affected the awardee,” while plaintiff “received

accurate information [on the sufficiency of its program manager] and had an opportunity to

submit informed revised offers.” Id. Second, in Caddell the awardee’s proposed “price . . .

ha[d] been publicly disclosed,” which “would give [the plaintiff] and other offerors an unfair

advantage over the awardee in a price reevaluation.” Id. Similarly, in this procurement, plaintiff

learned of QTC’s proposed price and suspected it only lost the award based on the price

difference. See Pl’s MJAR at 29 (“Given the same opportunities . . . [plaintiff] likely would have

lowered its price significantly . . . thereby giving it substantial chance of award.”). Meanwhile,

QTC was not given an opportunity in corrective action to adjust proposed price—QTC was only

allowed to correct a weakness the government should have noticed before award. AR at 1238

(“[T]he Government reserves the right to award without conducting discussions should it be

determined to be in the [g]overnment’s best interest. Therefore, the initial proposed prices shall

represent best and final prices.”). The court in Caddell found “to achieve a level playing field,”

the government “must cure its misleading discussion,” but “a broad reopening of discussions is

unnecessary to cure the procurement error and would cause more harm than good” because the

“misleading discussion” impacted only the offeror the government reopened discussion for. 125

Fed. Cl. at 55. The court found, because “the other offerors had a fair shot at revising their final

pricing proposals, [] it would be unfair to give them another bite at the apple, especially given

that all the other offerors now know” the awardee’s final price.5 Id.

Plaintiff cites Centerra for the following rule: “if an agency holds or reopens discussions

with one offeror, it must do so with all offerors whose proposals are in the competitive range.”

Id. at 26 (citing Centerra, 138 Fed. Cl. at 416). In Centerra, following remand from this court,

the awardee made a variety of improvements to its offer. Centerra, 138 Fed. Cl. at 416–18. For

example, the awardee “was afforded an opportunity to explain how its proposal would meet

proposal requirements, despite a proposal line item that was non-compliant with the RFQ

requirement,” and the awardee’s “lengthy responses to DOJ’s questions on remand show that

[the awardee] materially revised its Transition Plan to address multiple flaws that [plaintiff]

pointed out in this bid protest.” Id. at 417–18. Additionally, “during the remand [the awardee]

was directed to ‘not provide . . . [a] revised price proposal.’ . . . [but the awardee] did change its

price proposal.” Id. at 420 (emphasis in original). These facts are not applicable to this case—

plaintiff fails to demonstrate the court’s fact-dependent determination in Centerra establishes a

rule for how this Court should treat corrective action resulting from government error in the

5

In Peraton, the GAO similarly concluded the government must “raise a deficiency that was present in an offeror’s

initial and revised proposals,” and the government as a result “may focus corrective action to address procurement

errors identified by our Office through the ADR process.” Peraton Inc., B-416916.5 (Apr. 13, 2020), 2020 CPD ¶

144 at 7. In Environmental Chem. Corp., the GAO similarly allowed an agency to hold corrective action

discussions with only one offeror where the discussions and proposal revisions were limited solely to addressing a

fault in the offeror’s proposal the government should have raised in discussions. Environmental Chem. Corp., B-

416166.3, et al. (June 12, 2019), 2019 CPD ¶217 at 20–21. Plaintiff implicitly argues the actions this court

approved in Caddell and the GAO approved in Peraton and Environmental Chem. Corp.—namely “conducting

discussions only with the putative awardee in response to a bid protest”—make “‘a mockery of fundamental fairness

and competitive principles.’” Pl.’s MJAR at 27 (quoting Centerra, 138 Fed. Cl. at 416).

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evaluation process, particularly as similar corrective action was approved in Caddell, Peraton,

and Environmental Chem., all discussed immediately supra. See, e.g., Caddell, 125 Fed. Cl. at

55 (“[I]n the instant case, such a broad reopening of discussions is unnecessary to cure the

procurement error and would cause more harm than good.”). While in Caddell the court focused

on allowing only further action necessary to cure a procurement error, the court in Centerra

acknowledged, but dismissed, the harm to fairness considerations related to allowing broad re-

opening of discussions when plaintiff knew the awardee’s price, noting “the disclosure of

Paragon’s price is unfortunate and may affect the competition for this task order.” Centerra, 138

Fed. Cl. at 422. Counsel for the government explained at oral argument Centerra was not a case

where “the agency was correcting the failure to provide meaningful discussions in the first

instance to an offeror,” as is the case in this procurement. Tr. at 115:1–5; Centerra, 138 Fed. Cl.

at 416–18.

Plaintiff also cites this court’s decision in Dynacs to support its argument, “if an agency

holds or reopens discussions with one offeror, it must do so with all offerors whose proposals are

in the competitive range.” Pl’s MJAR at 26 (citing Dynacs Eng’g Co., 48 Fed. Cl. at 130). In

Dynacs, this court found error “in NASA’s discussions with [the awardee] regarding weaknesses

in its proposal, which were identified prior to and remained after the submission of [the

awardee’s] FPR# 1 proposal, without discussing the weaknesses in [plaintiff’s] proposal

identified prior to and remaining after its FPR# 1 submission.” Dynacs, 48 Fed. Cl. at 136. Both

aspects of the court’s finding in Dynacs are distinguishable from the circumstances in this case.

First, in Dynacs the government previously discussed with the awardee weaknesses over which it

later reopened discussions, while the government in this case pursued corrective action only

because it had not previously identified the deficiency the GAO highlighted during outcome

prediction ADR. Id.; AR at 241–42, 475. The government convincingly argues in this case it

would have been unfair not to allow QTC to address the deficiency, because the government was

at fault for not previously identifying it; meanwhile, the government in Dynacs offered no

fairness justification for reopening discussions with the awardee over weaknesses “which were

identified prior to and remained after the submission of [awardee’s] FPR# 1 proposal.” Dynacs,

48 Fed. Cl. at 136; Gov’t Cross-MJAR at 43 (“Allowing LHI to make unfettered proposal

revisions during the corrective action, despite having no remaining weaknesses or deficiencies,

would effectively punish QTC for DoD’s mistake in failing identify the QTC program manager

deficiency during the initial pre-award discussions.”) (emphasis in original). Dynacs actually

supports the fairness of the government’s corrective action in this case; as the court explained,

“[t]he law is well-settled that discussions between a contracting officer and offerors must be

meaningful,” but “[a]n agency’s failure to advise an offeror, in some way, of material proposal

deficiencies vitiates the meaningfulness of the discussions.” Dynacs, 48 Fed. Cl. at 131.

Second, if the government in Dynacs did want to discuss the awardee’s weaknesses remaining

after the first FPR, the court noted the government should have also discussed plaintiff’s

remaining weaknesses following the first FPR. Dynacs, 48 Fed. Cl. at 136 (finding error “in [the

agency’s] discussions with [the awardee] regarding weaknesses in its proposal . . . without

discussing the weaknesses in [plaintiff’s] proposal identified prior to and remaining after its . . .

submission”). Plaintiff in this case had no remaining deficiencies; rather, it merely hoped to

have another opportunity to improve its offer. Tr. at 98:17–22. As the court in Dynacs

explained, however, “[t]he government need not discuss every aspect of the proposal that

receives less than the maximum score or identify relative weaknesses in a proposal that is

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technically acceptable but presents a less desirable approach than others.” Dynacs, 48 Fed. Cl. at

131 (quoting Cube Corp., 46 Fed. Cl. 368, 384 (2000)) (internal quotations omitted).

At oral argument, counsel for plaintiff asserted it was prejudiced by the government’s

decision because “is entirely possible” plaintiff would have lowered its price on its sixth

proposal, having only been given the opportunity to submit four proposals. Tr. at 131:12–18; see

also Pl.’s MJAR at 29. Plaintiff had the opportunity to lower its price proposal when submitting

its FPR in November 2019, but it declined to do so. AR at 2479 (noting in the final price

evaluation report plaintiff’s final pricing was the same as its July 2019 price submission); see

also Tr. at 131:22–24 (government counsel noting plaintiff “had the opportunity to lower their

price in November 2019[;] . . . if they wanted to lower their price, they could have done it

[then]”). Plaintiff actually increased its price proposal over the course of discussions, from $[XX

XXXXXXXXXXXX] to $899,979,399.09. See id. at 1550 (LHI 29 June 2018 Proposal); id. at

2300 (LHI 3 July 2019 Proposal). Counsel for QTC also noted QTC made “a drastic reduction”

in its final price submission, and “[t]he difference between the offers went from $[XX] million to

more than $50 million.” Tr. at 102:6–13. Regarding plaintiff’s assertion it would have improved

its price if given additional opportunities, the solicitation warned offerors: “the Government

reserves the right to award without conducting discussions should it be determined to be in the

Government’s best interest. Therefore, the initial proposed prices shall represent best and final

prices.” AR at 1238 (Solicitation Attachment 6). Plaintiff offers no convincing argument for

why fairness requires the Court to grant plaintiff the opportunity to now adjust its price, rather

than merely to offer a new program manager, which is all the GAO’s corrective action allowed

QTC to do. See Tr. at 101:9–15.

Plaintiff grounds its opposition to the government’s corrective action on fundamental

fairness concerns and its understanding of what constitutes a final proposal revision, but case law

demonstrates this court and the GAO have interpreted the FAR to support narrow corrective

action to address government error like the corrective action in this contract. See Caddell, 125

Fed. Cl. at 34, 55; Peraton Inc., B-416916.5 2020 CPD ¶ 144; Environmental Chem. Corp., B-

416166.3, et al., 2019 CPD ¶ 217 at 20–21; Dynacs, 48 Fed. Cl. at 131, 136. The logical

implication of plaintiff’s fairness argument is the government’s mistake in not identifying QTC’s

need to improve its proposed program manager should have resulted in further unfairness to

QTC by allowing plaintiff to improve its price proposal after knowing it lost a close competition,

likely based on price. See Caddell, 125 Fed. Cl. at 55 (“[T]o achieve a level playing field, . . .

[the government] must cure its misleading discussion,” but “a broad reopening of discussions is

unnecessary to cure the procurement error and would cause more harm than good” because the

“misleading discussion” impacted only the offeror; thus, because “the other offerors had a fair

shot at revising their final pricing proposals, [] it would be unfair to give them another bite at the

apple, especially given that all the other offerors now know . . . [the awardee’s] final award

price.”). The law requires the Court give broad leeway to an agency’s decision regarding

corrective action. The Federal Circuit has “consistently reviewed agencies’ corrective actions

under the APA’s ‘highly deferential’ ‘rational basis’ standard.” Dell Fed. Sys., 906 F.3d at 992.

“The arbitrary and capricious standard applicable here is highly deferential” and “requires a

reviewing court to sustain an agency action evincing rational reasoning and consideration of

relevant factors.” Advanced Data Concepts, 216 F.3d at 1058.

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Plaintiff requests the government override its required “common cut-off date only for

receipt of final proposal revisions,” even though the government is only required to “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.” FAR 15.307(b); FAR 15.306(d)(3). While the parties’ final proposals

in November 2019 must be their final proposals, the government’s minor corrective action to fix

QTC’s program manager had nothing to do with the price QTC proposed, and plaintiff does not

now seek to improve a similar program manager offering. As counsel for the government

explained at oral argument, if the agency had recognized the error addressed in corrective action

prior to the filing of the final offers, “[i]t would have given QTC the opportunity to address that

then and QTC probably would have substituted its program manager and [plaintiff] would have

done nothing differently, because it wouldn’t have even known about that.” Tr. at 124:4–16.

The Court finds plaintiff failed to show any clear or prejudicial violation of the FAR from the

government’s minor corrective action to address its own error. Domenico Garufi, 238 F.3d at

1332–33 (When alleging “the procurement procedure involved a violation of regulation or

procedure,” plaintiff “must show ‘a clear and prejudicial violation of applicable statutes or

regulations.’”). The government’s limited corrective action was reasonable and tailored to the

proposals and circumstances. FAR 15.306(d)(3); 15.306(d)(1) (“The scope and extent of

discussions are a matter of contracting officer judgment,” and discussions must be “tailored to

each offeror’s proposal.”); see also Labatt Food Service, Inc. v. United States, 577 F.3d 1375

(Fed. Cir. 2009) (“All errors are not equal. There are inherent competitive advantages to

submitting a proposal after all other parties are required to do so, such as access to post-deadline

news and market information that could result in last minute changes to the proposal.”).

VI. Whether the Army Failed to Evaluate QTC’s Prices for Balance

A. Whether the Army Failed to Recognize QTC as Proposing Significantly

Overstated and Understated Unit Prices

Plaintiff argues the Army failed the requirement under the solicitation “to evaluate

whether each offeror’s prices were balanced under FAR 15.404-1(g),” which “requires an agency

‘to determine, among other potential pitfalls, whether the unit prices are unbalanced.’” Pl.’s

MJAR at 29–30 (citing Al Ghanim Combined Grp. Co. Gen. Trade v. United States, 56 Fed. Cl.

502, 513 (2003); AR at 1245) (emphasis in original).6 According to plaintiff, “the Army failed

to conduct any evaluation of whether QTC’s unit prices were unbalanced,” instead only

“compar[ing] QTC’s top-level CLIN prices” but not “whether QTC’s individual unit-level prices

for the different procedures were unbalanced,” even though “the CLIN prices are the product of

hundreds of unit prices for individual procedures.” Id. at 30. Plaintiff argues “an agency’s

failure to ‘perform[] the first step of the mandatory analysis, i.e. whether there was unbalanced

pricing, . . . is sufficient on its own to justify remand.’” Id. (quoting IAP World Servs., Inc. v.

United States, No. 20-1116 C, 2021 WL 451002 at *15 n.6 (Fed. Cl. Jan. 21, 2021)). Plaintiff

6

Plaintiff notes the FAR requires: “All offers with separately priced line items or subline items shall be analyzed to

determine if the prices are unbalanced.” Id. at 30 (quoting FAR 15-404.1(g)(2)). Plaintiff also quotes FAR 15:404-

1(g)(1)(iii): “The greatest risks associated with unbalanced pricing occur when . . . [t]he evaluated price is the

aggregate of estimated quantities to be ordered under separate line items of an indefinite-delivery contract.” Id.

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asserts “QTC’s proposal contains numerous unit prices that are significantly overstated and

understated, which is the very definition of unbalanced pricing.” Id. at 31; see id. at 31–34

(plaintiff discussing areas where it alleges QTC’s prices are unbalanced).

The government argues plaintiff “has not demonstrated any error in DoD’s evaluation of

QTC’s proposal for unbalanced pricing.” Gov’t Cross-MJAR at 28. According to the

government, it had “no obligation to analyze individual procedure prices for balance, because

these individual procedures were not ‘line items or subline items’ of the solicitation.’” Id. (citing

FAR15.404-1(g)(2)). The government asserts, “the FAR requires that only ‘line items and

subline items’ must be analyzed for balance, not other components of line item prices,” and it

correspondingly argues, “[t]he individual procedures in the solicitation’s pricing matrix were

plainly not designated as ‘subline items,’ as they do not contain all the elements required by the

FAR.” Id. at 29–30 (citing AR at 1201–16); see also id. at 30 (“[T]he solicitation’s schedule

listed 28 line items and zero subline items.”) (citing AR at 8274–87). The government notes

plaintiff’s reliance on this court’s decision Al Ghanim is misplaced because in Al Ghanim, “the

Court determined that the agency failed to adequately evaluate the line item prices for balance,”

while “[n]othing in Al Ghanim suggests that agencies are required to evaluate individual

components of line item prices for balance.” Id. at 31 (citing 56 Fed. Cl. at 513–14) (emphasis in

original).

QTC argues “there can be no genuine dispute that the Agency’s price evaluation included

an examination for unbalanced pricing,” and plaintiff wrongly “contends that the agency was

required to analyze each and every procedure price for balance.” Def.-Intervenor’s Cross-MJAR

at 37 (citing Biospherics, Inc. v. United States, 48 Fed. Cl. 1, 10 (2000) (“The depth of an

agency’s price analysis is a matter within the sound exercise of the agency’s discretion and we

will not disturb such an analysis unless it lacks a reasonable basis.”)). QTC further argues

plaintiff’s arguments are untimely under Blue & Gold, an argument the Court addresses infra.

The FAR requires: “All offers with separately priced line items or subline items shall be

analyzed to determine if the prices are unbalanced.” FAR 15.404-1(g)(2). Additionally, the

contracting officer is required to: (1) “[c]onsider the risks to the Government associated with the

unbalanced pricing in determining the competitive range and in making the source selection

decision”; and (2) “[c]onsider whether award of the contract will result in paying unreasonably

high prices for contract performance.” FAR 15.404-1(g)(2)(i)–(ii). The FAR does not provide a

standard for an unacceptably unbalanced level of pricing, but it notes “[a]n offer may be rejected

if the contracting officer determines that the lack of balance poses an unacceptable risk to the

Government.” FAR 15.404-1(g)(3). The FAR defines “line item” as “the basic structural

element in a procurement instrument that describes and organizes the required product or service

for pricing, delivery, inspection, acceptance, invoicing, and payment. The use of the term ‘line

item’ includes ‘subline item,’ as applicable.” FAR 2.101. “Subline item” is defined as “a subset

of a line item.” Id.

The solicitation states, “[t]he Price/Cost Factor will be evaluated, but will not receive an

adjectival rating.” AR at 1244 (Solicitation Attachment 6). Specifically regarding unbalanced

pricing, the solicitation provides the following: “The Offeror’s proposal will be evaluated for

unbalanced pricing utilizing cost or price analysis techniques. The Government may determine

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that a proposal is unacceptable if the prices proposed are materially unbalanced. In accordance

with FAR 15.404-1(g), a proposal may be rejected if the Contracting Officer determines that the

lack of balance poses an unacceptable risk to the Government.” Id. at 1245.

“Procurement officials have substantial discretion to determine which proposal represents

the best value for the government.” CHE Consulting, Inc. v. United States, 552 F.3d 1351, 1354

(Fed. Cir. 2008) (quoting E.W. Bliss Co. v. United States, 77 F.3d 445, 449 (Fed. Cir. 1996)).

“[I]n a ‘best value’ procurement . . . the agency considers other factors in addition to price in

making award . . . .” J & D Maint. & Servs. v. United States, 45 Fed. Cl. 532, 536 (1999). “A

mathematical imbalance [may not be enough] to cause the bid to be rejected” because “the FAR

and RFP only prohibit materially unbalanced bids.” Id. at 536–37 (citing FAR 15.404-1(g))

(emphasis in original). A bid is only materially unbalanced if the government finds “it posed an

unacceptable risk.” Id.; see also 15.404-1(g)(3). “The structure of [awardee’s] bid would only

pose an unacceptable risk if its true price made it far from the best value.” J & D Maint. &

Servs., 45 Fed. Cl. at 537 (citing Anderson Columbia Environmental v. United States, 43 Fed. Cl.

693, 699 (1999)). As Judge Smith of this court recently found, “[t]his Court has previously held

that ‘[t]he depth of an agency’s price analysis is a matter within the sound exercise of the

agency’s discretion and [the Court] will not disturb such an analysis unless it lacks a reasonable

basis.’” Worldwide Language Res., LLC. v. United States, 127 Fed. Cl. 125, 134 (2016) (quoting

Biospherics, Inc. v. United States, 48 Fed. Cl. 1, 10 (2000) (citation omitted)). “[T]he FAR

states that an offer may, not must, be rejected if the agency determines that the unbalancing

poses an unacceptable risk. The FAR gives the agency discretion to make that determination.”

CCL Serv. Corp. v. United States, 48 Fed. Cl. 113, 122 (2000) (citing FAR 15.404–1(g)(3))

(internal citation omitted).

Counsel for plaintiff clarified at oral argument plaintiff specifically alleges the

government violated “[t]he requirement to analyze subline items for balance,” assuming “the line

item is the CLIN, and the agency evaluated the CLIN for balance, but the procedures are the

subline items and the agency never evaluated those for balance.” Tr. at 144:5–9. Counsel for the

government agreed “the FAR requires . . . a balanced pricing analysis for subline items.” Id. at

157:15–16. The government disputes, however, whether individual procedure prices are subline

items simply because they are below the line items: “for the individual procedure prices, [the

government’s] position is that they’re not subline items and did not need to be evaluated for

balance.” Id. at 158:4–6. Counsel for the government explains the government “used the proper

numbering system to designate” line items and “called them CLINs, contract line item numbers,”

but the government “did not designate anything in the solicitation as a subline item. They didn’t

designate anything in the solicitation as an exhibit line item.” Id. at 158:16–24. According to

the government, the mere existence of individual procedure prices does not make those prices

subline items: “the individual procedures were not designated as subline items or exhibit line

items for that matter and they . . . didn’t have the numbering system that’s specifically required

by the DoD procedure.” Id. at 146:16–22.

Counsel for plaintiff responded, “[t]here was certainly nothing in the solicitation that said

these are not line items. . . . [T]here were the CLINs, the CLINs directed you to the attachment,

and the attachment had the component level pricing.” Id. at 182:9–13. Counsel for plaintiff

asserted “it was entirely reasonable to understand those to be subline items,” despite

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acknowledging “the fact that the agency called it an attachment versus an exhibit” and did not

use the proper designation. Id. at 182:9–20. Counsel for plaintiff also noted, “on the face of the

solicitation, the CLINs tie to the attachment and the attachment lists procedures, and those [] fit

the FAR definition of subline items, and they appear to be subline items.” Id. at 183:8–12.

Counsel for the government emphasized the importance of the distinction between attachments

and exhibits in this context, noting, to be designated a subline item, an item “would have had to

have been included within an exhibit,” as distinct from the situation here where “it was

designated as an attachment.” Id. at 187:13–15. This distinction, the government explained, is

significant because “DFAR[S] 204.7101 specifically defines attachments and exhibits

differently.” Id. at 187:15–17. Under Defense Federal Acquisition Regulation Supplement

(“DFARS”) 204.7101:

“Attachment” means any documentation, appended to a contract or incorporated

by reference, which does not establish a requirement for deliverables. . . .

“Exhibit” means a document, referred to in a contract, which is attached and

establishes requirements for deliverables. The term shall not be used to refer to

any other kind of attachment to a contract. The DD Form 1423, Contract Data

Requirements List, is always an exhibit, rather than an attachment.

These definitions emphasize the legal significance of the DFARS’ distinction between

attachments and exhibits, since attachments “do[] not establish a requirement for deliverables,”

but exhibits do “establish[] requirements for deliverables.” DFARS 204.7101. Additionally,

while there are specific procedures for numbering subline items, the government’s Procedures,

Guidance, and Information (“PGI”) only mentions exhibits, not attachments, as acceptable

vehicles for subline items: “[e]xhibits may be used as an alternative to setting forth in the

schedule a long list of contract subline items.” PGI 204.7104-2(c). The PGI also notes, “[t]he

contracting officer may append attachments to exhibits,” further demonstrating the government’s

point that exhibits and attachments are not interchangeable terms. PGI 204.7105(a)(7).

Counsel for the government also observed at oral argument the government “reviewed

QTC’s proposal for unbalanced pricing and actually identified a concern in QTC’s initial

proposal.” Tr. at 144:18–20. Counsel for QTC also explained at oral argument the government

did evaluate QTC’s pricing for balance at the line level: “CLIN pricing was evaluated using the

base year and internally within the option periods. . . . [T]he balance was evaluated between

base year and the option year and between the option years they were balanced.” Id. at 150:7–12

(citing AR at 2938–39 (QTC Final Price/Cost Evaluation Attachment, dated November 26,

2019)). The government explained in its price analysis report of QTC’s final proposal revision,

“[t]he Government may determine that a proposal is unacceptable if the prices proposed are

materially unbalanced. Unbalanced pricing exists when . . . one or more contract line items are

significantly overstated or understated . . . . In accordance with FAR 15.404-1(g), a proposal

may be rejected if the Contracting Officer determines that the lack of balance poses and

unacceptable risk to the Government.” AR at 2938–39. The government notes it had concern

after conducting an “[i]nitial review of QTC’s proposed amounts for the majority of the

procedures,” but “QTC provided additional rationale for the proposed amounts that appeared

unbalanced” and a “revised QTC Volume III – Price/Cost.” Id. at 12036, 12038.

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Plaintiff cites IAP WorldServices, a decision from this court, for the following per se rule:

“an agency’s failure to ‘perform[] the first step of the mandatory analysis, i.e., whether there was

unbalanced pricing, . . . is sufficient on its own to justify remand.’” Pl.’s MJAR at 30–31

(quoting IAP WorldServices, 2021 WL 451002 at *15 n. 6). Plaintiff does acknowledge the

government “compare[d] QTC’s top-level CLIN prices in the Base Period versus the Option

Periods,” but insists “the CLIN prices are the product of hundreds of unit prices for individual

procedures” and “the agency never evaluated whether QTC’s individual unit-level prices for the

different procedures were unbalanced.” Id. at 30. QTC clarifies the dispute is whether the

government “examine[d] balance at a low-enough level,” since the government “conducted this

[CLIN] comparison across the base and options years, while also comparing the prices to the

independent government cost estimate.” Def.-Intervenor’s Cross-MJAR at 36–37. QTC also

effectively distinguishes IAP WorldServices, as the government in that case “had not examined

any prices for balance at all.” Id. at 37. Plaintiff in this case cannot dispute the government

performed some of the required first step of mandatory analysis for balanced prices; rather,

plaintiff only disputes whether that analysis improperly failed to include subline items. While

plaintiff cites Al Ghanim for the proposition the government must determine whether unit prices

are unbalanced, the court in Al Ghanim found the appropriate method of determining balance in

the unit prices was to evaluate the CLIN items: “the Corps violated an applicable procurement

regulation by failing to compare the CLIN prices submitted by the offerors with the unit prices in

the government estimate.” Al Ghanim Combined Grp. Co. Gen. Trad. & Cont., 56 Fed. Cl. at

520. The court found that while “the applicable regulations require that an agency reviewing a

proposal containing CLINs perform a cost analysis to determine, among other potential pitfalls,

whether the unit prices are unbalanced,” the government erred by “perform[ing] no cost analysis

whatsoever.” Id. at 513. As counsel for plaintiff in this case agreed at oral argument, “the

agency evaluated the CLIN for balance.” Tr. at 144:7.

In Worldwide Language, this court agreed with what “[t]his Court has previously held” in

Biospherics, “that ‘[t]he depth of an agency’s price analysis is a matter within the sound exercise

of the agency’s discretion and [the Court] will not disturb such an analysis unless it lacks a

reasonable basis.” Worldwide Language Res., LLC. v. United States, 127 Fed. Cl. at 134

(quoting Biospherics, Inc. v. United States, 48 Fed. Cl. at 10 (2000) (citation omitted)). The

government’s final price/cost evaluation of QTC notes: “Unbalanced pricing exists when . . .

one or more contract line items are significantly overstated or understated . . . .” Id. at 2938–39.

The evaluation explains it operates according to “[t]he following proposal submission

requirements [] detailed in Attachment 0005 (Proposal Submission Instructions) of the

solicitation,” which discuss contract line items but do not contemplate subline items. Id. at

2934–35; see id. at 1106 (Solicitation Attachment 5). “Procurement officials have substantial

discretion to determine which proposal represents the best value for the government,” and the

Court finds the government in this case exercised its discretion reasonably in analyzing

unbalanced pricing under FAR 15.404-1(g), reviewing QTC’s proposal for balance, identifying

issues, and asking QTC for more information. CHE Consulting, 552 F.3d at 1354; Impresa

Construzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324, 1332–33 (Fed. Cir. 2001)

(holding this Court may set aside a contract award if “the disappointed bidder [has shown] a

clear and prejudicial violation of applicable statutes or regulations”) (internal quotations

omitted); AR at 2938–39 (the government’s final price/cost evaluation of QTC). The Court does

not find the government’s determination unreasonable that it had “no obligation to analyze

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individual procedure prices for balance, because these individual procedures were not ‘line items

or subline items’ of the solicitation,’” and the government’s determination did not “entirely fail[]

to consider an important aspect of the problem, offer[] an explanation for its decision that runs

counter to the evidence before the agency, . . . [and was not] so implausible that it could not be

ascribed to a difference in view or the product of agency expertise.” Gov’t Cross-MJAR at 28;

Ala. Aircraft Indus., Inc.-Birmingham v. United States, 586 F.3d 1372, 1375 (Fed. Cir. 2009).

B. Whether the Army’s Alleged Failure to Recognize Unbalanced Pricing Resulted

in a Failure to Recognize Associated Potential Risks

Plaintiff argues “QTC’s unbalanced pricing shows that QTC failed to understand the RFP

requirements and thus poses a serious risk to successful performance of the contract.” Pl.’s

MJAR at 35. According to plaintiff, “QTC’s pricing approach betrays a complete lack of

understanding when it comes to central areas of RHRP-3 . . . .” Id. Relatedly, plaintiff asserts,

“QTC’s unbalanced pricing also created a significant risk that the Army would end up paying

unreasonably high prices for contract performance” if “the government needs more than the

estimated quantity for one of the procedures that QTC overpriced.” Id. at 36–37.

The government responds by noting plaintiff “has not demonstrated how it was

prejudiced by DoD’s [alleged] failure to conduct this evaluation,” since plaintiff “also proposed

[XXXXXX] of individual procedure prices that were [XX] percent higher or lower than the

Government estimate and QTC’s prices,” meaning “[b]y its own metrics, LHI’s individual

procedure prices were also unbalanced.” Gov’t Cross-MJAR at 32–33 (citing AR at 5032, 5034–

41; GAO Op. 18–19 n.15).

QTC argues plaintiff “does not point to any legal standard” for determining “the

benchmark for unbalanced pricing” and “fails to explain why the Court must accept [plaintiff’s]

[XXX] test as the benchmark.” Def.-Intervenor’s Cross-MJAR at 35. QTC additionally notes,

according to plaintiff’s standard, its “own pricing is similarly unbalanced,” meaning plaintiff

“should not be heard to advance a position in litigation that is inconsistent with its own proposal

approach.” Id. at 36 (citing Eskridge & Assocs. v. United States, 142 Fed. Cl. 410, 423 (2019)).7

Where an offeror’s pricing is unbalanced, “the contracting officer shall (i) Consider the

risks to the Government associated with the unbalanced pricing in determining the competitive

range and in making the source selection decision; and (ii) Consider whether award of the

contract will result in paying unreasonably high prices for contract performance.” FAR 15.404-

1(g)(2). “An offer may be rejected if the contracting officer determines that the lack of balance

poses an unacceptable risk to the Government.” FAR 15.404-1(g)(3). To succeed on its claim,

plaintiff must “demonstrate[] and the record [must] reflect that award of the contract to

7

QTC offers “an illustration of [plaintiff’s] double standard”: plaintiff “asserts that [XXX] of QTC’s prices [XXX]

‘more than [XXXX] higher’ than the IGCE. But [XXX] of [plaintiff’s] prices [XXXXXXXXXXXXXXXXXXXX

XX] more than [XXXXX] above the IGCE, and [XXX] other prices [XXXXXXXXXXXXXXXXXXXXXXXXXX

XXXXXX] nearly [XXXX] higher than the IGCE. [Plaintiff] deems a price [XXX] above the IGCE as [XXXXXX

XXXXXXXXXXXXXXXXX] but [plaintiff’s] proposed prices were more than [XXX] above the IGCE for [XXXX

XXXXXXXX] procedures, or [XXXXXXXXXXX] of the procedures.” Def.-Intervenor’s Cross-MJAR at 36 n.15

(citing AR at 5034, 5034–37) (internal citations omitted).

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[awardee] ‘will result in paying unreasonably high prices for contract performance.’” Avtel

Servs., Inc. v. United States, 70 Fed. Cl. 173, 225 (2006) (citing FAR 15.404-1(g)(2)(ii)).

“[T]o prevail [plaintiff] must establish not only some significant error in the

procurement process, but also that there was a substantial chance it would have received

the contract award but for that error.” Statistica, Inc. v. Christopher, 102 F.3d 1577,

1582 (Fed. Cir. 1996). The Federal Circuit rejected the protest of an unsuccessful offeror

who could not show “how the government’s error caused [plaintiff] to suffer disparate

treatment or particularized harm.” Labatt Food Service, Inc. v. United States, 577 F.3d

1375, 1380 (Fed. Cir. 2009). To establish prejudice, a plaintiff must “show that there was

a substantial chance it would have received the contract award but for” the alleged error.

Glenn Def. Marine (ASIA), PTE Ltd. v. United States, 720 F.3d 901, 912 (Fed. Cir. 2013).

Plaintiff must offer more than “conjecture that even with a [change in rating] it would

have had a substantial chance of prevailing in the bid.” Id. “A party can have a

substantial chance at award and still not be prejudiced where, e.g., the error is minor or

affects all parties equally.” Eskridge & Assocs., 142 Fed. Cl. at 422, aff’d, 955 F.3d 1339

(Fed. Cir. 2020) (citing CliniComp Int’l, Inc. v. United States, 904 F.3d 1353, 1358 (Fed.

Cir. 2018); Labatt, 577 F.3d at 1380–81).

The Court found immediately supra the government reasonably evaluated QTC’s

proposed prices for balance. In the alternative, the Court will consider whether, assuming QTC’s

proposed prices were unbalanced: (1) “QTC’s [allegedly] unbalanced pricing shows that QTC

failed to understand the RFP requirements and thus poses a serious risk to successful

performance of the contract”; or (2) “QTC’s unbalanced pricing also created a significant risk

that the Army would end up paying unreasonably high prices for contract performance.” Pl.’s

MJAR at 35–36. The government asserted at oral argument that even if QTC’s prices were

unbalanced, plaintiff still “has to demonstrate prejudice. The fact that it has the same alleged

issue as QTC demonstrated that the offerors weren’t treated unequally here and [plaintiff] hasn’t

suffered any particularized harm from the agency’s failure to conduct the balanced pricing

evaluation at the level of detail [plaintiff] claims is required.” Tr. at 148:12–18.8

8

The GAO advisory opinion analyzed plaintiff’s proposed procedure-level prices and “noted that the protestor’s

own proposal suffered from the same perceived defects.” GAO Advisory Op. at 18 n.15. The GAO says it “would

have agreed with the intervenor that, to the extent QTC’s procedure-level pricing may have presented a risk of

overpayment or underperformance, the protestor failed to explain why those same risks also would not have applied

to its own proposal.” Id. The GAO thus “would not have found this argument to provide a basis to sustain the

protest.” Id. (citing Raytheon Co., B-417524.2, B-417524.3, Dec. 19, 2019, 2020 CPD ¶ 50 at 8 (noting the integrity

of the procurement process did not allow the protester to espouse a position in litigation different than the position

taken by the protester in how it structured its own proposal submission)). Specifically, the GAO credited QTC’s

analysis: “The intervenor pointed out, however, that [plaintiff’s] proposed prices were more than [XXXXXXXXX

X] higher than QTC’s prices or the IGCE [XXXXX] as often as QTC’s during the first option period, for example,

and that [plaintiff] proposed more than [XXXXXXXXXX] procedure-level prices that were more than [XXXXXXX

XXX] lower than QTC’s prices or the IGCE. The intervenor also pointed out that while [plaintiff] maintained in its

protest that multiple procedure-level prices proposed by QTC were [XXXXXXXXXXXXXXXXXXXXXXX]

because they were more than [XXXXXXXXXX] above the IGCE, the protester’s own proposed prices were more

than [XX] percent above the IGCE for [XX] different procedures, and, thus, were [XXXXXXXXXXXXXXXXXX

XXXXX] by the protester’s own logic.” Id. (internal citations omitted).

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Regarding price balance, this court has previously ruled that a “plaintiff’s own bid is

mathematically unbalanced [where] [a]t least 30% (more than [awardee’s] 22%) of plaintiff’s

CLINs on the bidding schedule varied from the government's estimate by more than 50%. It is

therefore reasonable to assume that [awardee’s] bid would not be materially unbalanced even

with more accurate estimates.” Anderson Columbia Env’t, 43 Fed. Cl. at 701. The court in

Anderson Columbia found “plaintiff offer[ed] no evidence to show that the rest of the

government’s estimated quantities are inaccurate,” and, as a result, “plaintiff has not satisfied its

burden of proving that [awardee’s] bid was materially unbalanced.” Id. Similarly here, plaintiff

states it is “nearly certain” the government’s needs for services related to some aspects of the

contract “will be higher” than estimates, but plaintiff provides no evidence for this position. Pl.’s

MJAR at 37. As QTC explained, “for an IDIQ contract such as the one at issue here, a ‘key

consideration is the accuracy of the government’s quantity estimates’ and that ‘if the estimates

are reasonably accurate, then evidence of mathematical unbalancing generally does not present a

risk that the government will pay unreasonably high prices for contract performance.’” Def.-

Intervenor’s Cross-MJAR at 38 (quoting Accumark, Inc., B-310814, Feb. 13, 2008, 2008 CPD ¶

68 at 4).

Counsel for plaintiff asserted at oral argument, “if the agency were to conclude that both

offerors were unbalanced, then it cannot make award to either offeror. And at that point, it’s got

to open discussions and fix the problem.” Tr. at 165:6–9. Counsel for the government observed,

however, “[t]hat’s not what the solicitation or the FAR says at all.” Id. at 165:23–24. Instead,

“in accordance with FAR 15.404-1(g), . . . the Government has discretion to make that

determination of whether there is an imbalance or whether there is a material imbalance,”

meaning “[w]hether it’s something that poses an unacceptable risk to the Government or not.”

Id. at 166:3–10; see FAR 15.404-1(g)(3) (“An offer may be rejected if the contracting officer

determines that the lack of balance poses an unacceptable risk to the Government.”).

The government acted in accordance with its discretion under FAR 15.404-1(g) to

determine whether any mathematical unbalance created material unbalance not worth the risk.

See supra; Galen Med. Assocs. v. United States, 369 F.3d 1324, 1330 (Fed. Cir. 2004) (quoting

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.”). “It is therefore reasonable to assume that [awardee’s] bid would not be

materially unbalanced” to an unacceptable extent when “plaintiff’s own bid is mathematically

unbalanced” to an arguably greater extent. Anderson Columbia Env’t, 43 Fed. Cl. at 701.

Plaintiff “offer[ed] no evidence to show that the rest of the government’s estimated quantities are

inaccurate,” and as a result, “plaintiff has not satisfied its burden of proving that [awardee’s] bid

was materially unbalanced.” Id.

VII. Whether the Army’s Best Value Determination Was Rational

Regarding best value determination, plaintiff argues: “All of the aforementioned errors

invalidate the Army’s best value determination,” because “the Army improperly distorted the

real differences between [plaintiff] and QTC’s proposals.” Pl.’s MJAR at 37–38. Plaintiff also

argues there is “another, independent flaw” in the Army’s best value analysis: “a large portion

of QTC’s supposed price advantage is [allegedly] illusory” because “[o]ver $[XX] million (i.e.,

-39-

about [XX]%) of that price difference is attributable to QTC’s procedure prices in the base year

of the contract,” but “it is likely that QTC will perform no procedures in the base year.” Id. at 38

(emphasis omitted).

The government explains the source selection authority “considered the offerors’ total

evaluated prices in his tradeoff analysis, without subtracting the prices of any base year

procedures, . . . [i]n accordance with the terms of the solicitation and 10 U.S.C. § 2305(b)(1).”

Gov’t Cross-MJAR at 35 (citing AR at 13257–59). QTC agrees that “[e]valuations and award

decisions must be based on the RFP’s terms.” Def.-Intervenor’s Cross-MJAR at 39 (citing 41

U.S.C. § 3701(a)). QTC explains plaintiff’s argument “that the Agency should have assessed

best value by disregarding the 12-month base period that the RFP required the offerors to price”

must fail because it requires the government to “instruct the offerors to price a 12-month period

and then disregard it when making its award decision.” Id. at 38–39.

Counsel for plaintiff focused on its second argument at oral argument, emphasizing, “it is

a fact that the Government is never going to see the supposed savings for those [XXXXX]

months, because while QTC is in transition, it is not providing procedures.” Tr. at 168:7–10.

Instead, “[t]he procedures will continue to be ordered under the old contract and the Government

is not going to see that [XXXXX] months of savings,” so the savings is “only about

[XXXXXXX]” of the “$[XX] million difference in the base year” the source selection authority

identified. Id. at 168:10–16. Counsel for plaintiff argued the source selection authority should

have looked beyond the numbers in the proposals “to properly understand . . . the true relative

cost of the two proposals, and here that didn’t happen,” meaning the source selection authority

allegedly overestimated the gap in the actual amount the offerors will charge the government.

Id. at 169:1–9.

Counsel for the government noted at oral argument, “the source selection authority

followed the solicitation terms in using the total evaluated prices of the offerors in . . . his

tradeoff analysis in order to determine the best value in this case” because “[t]hat’s exactly what

the solicitation required him to do.” Id. at 169:22–170:2. Counsel for QTC explained, “the RFP

had to come up with a way to evaluate prices on a fair basis” during the transition period, and

“the RFP was very clear, it states a total evaluated price will be calculated for each offeror and

used in the tradeoff analysis to determine best value.” Id. at 171:3–12 (citing AR at 1244

(Solicitation Attachment 6)). As counsel for QTC observed, “[i]f the SSA had conducted this

tradeoff by reasons set forth in the base period would not occur [sic], he wouldn’t be using the

total evaluated prices defined in the RFP,” meaning what plaintiff is arguing “is that the [source

selection authority] should have ignored the RFP.” Id. at 172:13–18.

The government also argues plaintiff’s “challenge to the best-value tradeoff is really an

untimely challenge to the terms of the solicitation that is waived under Blue & Gold.” Gov’t

Cross-MJAR at 34. This is because “the terms of the solicitation and 10 U.S.C. § 2305(b)(1)”

required the government to “consider[] the offerors’ total evaluated prices . . . without

subtracting the prices of any base year procedures.” Id. at 35 (citing AR at 13257–59). QTC

agrees with the government that plaintiff’s argument “is time barred,” since the Army “could not

reasonably instruct the offerors to price a 12-month period and then disregard it when making its

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award decision” and “[e]valuations and award decisions must be based on the RFP’s terms.”

Def.-Intervenor’s Cross-MJAR at 38–39 (citing 41 U.S.C. § 3701(a)).

The solicitation provides:

The total evaluated price will be calculated by summing the evaluated prices for

FFP Procedures, Incoming Transition, Outgoing Transition, Contractor

Manpower Reporting (if not-separately-priced), and CR (no fee) for Travel,

Shipping, and influenza vaccines for each period of performance. The total

evaluated price will be calculated as follows[.]

AR at 1244 (Solicitation Attachment 6). The solicitation then notes the “total evaluated

price” includes “[t]he total for period of performance” as well as “incoming transition”:

Procedures (FFP): The proposed fully loaded FFP value for each procedure will

be multiplied by the Government-provided quantities to compute an extended

price for each procedure in each period of performance as depicted in the Price

Matrix Attachment. All extended prices will be summed to derive a total for each

period of performance. The total for each period of performance will be summed

to derive the evaluated price for the FFP fully loaded procedure value.

Incoming Transition (FFP): The proposed price in the Price Matrix for

Transition-In will be included in the total evaluated price.

Id. at 1244–45. The solicitation continues to explain how pricing will be calculated for the

remaining items, which includes adding specific government-provided costs to the “base period”

and option periods. Id. “An executive agency shall evaluate sealed bids and competitive

proposals, and award a contract, based solely on the factors specified in the solicitation.” 41

U.S.C. § 3701(a). “The head of an agency shall evaluate sealed bids and competitive proposals

and make an award based solely on the factors specified in the solicitation.” 10 U.S.C. §

2305(b)(1).

Plaintiff first argues, “because of the errors discussed [throughout plaintiff’s brief], the

Army improperly distorted the real differences between [plaintiff] and QTC’s proposals.” Pl.’s

MJAR 37–38. The Court acknowledges the government should not “conduct its best-value

analysis in a manner that minimize[s] the real differences between the proposals and create[s] a

false impression of equivalence, thus allowing the [SSA] to base its decision largely on price

instead of on the non-price factors.” Id. at 37 (citing FirstLine Transp. Sec., Inc. v. United

States, 100 Fed. Cl. 359, 379 (2011)). Plaintiff, however, provides no argument to support its

assertion the government conducted its best-value analysis in such a manner. The government

evaluated the “proposals, and award[ed] a contract, based solely on the factors specified in the

solicitation.” 41 U.S.C. § 3701(a). The Court finds the government was reasonable in reviewing

the parties’ proposals for the reasons given supra throughout the previous analysis sections.

In accordance with the terms of the solicitation, 10 U.S.C. § 2305(b)(1), and 41 U.S.C.

§ 3701(a), the source selection authority considered the offerors’ total evaluated prices in his

-41-

tradeoff analysis, without subtracting the prices of any base year procedures: “[plaintiff’s] total

evaluated price of $899,979,399.09 is 6.06%, or $51,396,460.79, higher than QTC’s total

evaluated price of $848,582,938.30.” AR at 13257–59 (Corrective Action Source Selection

Decision). The source selection authority also noted: “The Period of Performance of the

proposed contract is a 12 month transition in base period and four, one year option periods. The

minimum guarantee shall be $9,000,000.00 for the initial task order anticipated against the

resultant IDIQ contract.” Id. at 13245. The source selection authority calculated the offerors’

total evaluated prices according to the following language the Court quoted from the solicitation

supra:

Procedures (FFP): The proposed fully loaded FFP value for each procedure was

multiplied by the Government-provided quantities to compute an extended price

for each procedure in each period of performance as depicted in the Price Matrix

Attachment. All extended prices were summed to derive a total for each period of

performance. The totals for each period of performance were summed to derive

the evaluated price for the FFP fully loaded procedure value.

Incoming Transition (FFP): The proposed price in the Price Matrix for

Transition-In is included in the total evaluated price.

Id. at 13249; see id. at 1244–45.

As counsel for QTC explained, “what we’re hearing from [plaintiff] is that [plaintiff] had

a short transition and could have given the Government a discount on its prices for the base year,

but didn’t think about it . . . . So now they’re complaining about the way the solicitation is

structured.” Tr. at 175:17–23. Certain calculations for nonincumbent pricing and transition were

baked into scheduling for the solicitation, and the government was rational in following the

requirements of the solicitation. Counsel for plaintiff does not cite any authority to support the

proposition the government should ignore the solicitation and attempt to do its own “true relative

cost” analysis; rather, plaintiff asks the Court to require the government to analyze the proposals

and award the contract in contravention of the requirement to do so “based solely on the factors

specified in the solicitation.” 41 U.S.C. § 3701(a).9 Not only was the government’s action

reasonable, what plaintiff asks the Court to require the government to do is “arbitrary, capricious,

an abuse of discretion, or otherwise not in accordance with law.” Banknote Corp. of Am., Inc. v.

United States, 365 F.3d 1345, 1350–51 (Fed. Cir. 2004); see Motor Vehicle Mfrs. Ass’n of U.S.,

Inc. v. State Farm Mut. Auto Ins. Co., 463 U.S. 29, 43 (1983) (Under the “‘arbitrary and

capricious’ standard,” “a court is not to substitute its judgment for that of the agency.”).

“Procurement officials have substantial discretion to determine which proposal represents the

best value for the government,” and the Court will not upset the government’s decision to follow

the requirements of the solicitation and the law. Galen Med. Assocs. v. United States, 369 F.3d

1324, 1330 (Fed. Cir. 2004) (quoting E.W. Bliss Co. v. United States, 77 F.3d 445, 449 (Fed. Cir.

1996)).

9

While the Court finds in favor of the government and QTC on the merits of this issue, the Court will consider their

arguments infra that plaintiff’s argument is also time barred under Blue & Gold.

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VIII. The Government and QTC’s Blue & Gold Arguments

In addition to responding to plaintiff’s arguments on the merits, the gov

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