10 Tanker Air Carrier, LLC v. United States

In the United States Court of Federal Claims

No. 21-1084

(Filed: 27 August 2021*)

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10 TANKER AIR CARRIER, LLC, *

*

Plaintiff, *

*

v. *

*

THE UNITED STATES, *

* Post-Award Bid Protest; MJAR;

Defendant, * Motion to Dismiss; Blue & Gold;

* Best-Value Determination;

and * Overall Price; Mistake of Fact;

* Unstated Evaluation Criteria.

AERO-FLITE, INC., *

*

Defendant-Intervenor, *

*

and *

*

ERICKSON AERO TANKER, LLC, *

*

Defendant-Intervenor. *

*

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OPINION AND ORDER

James G. Peyster of Crowell & Moring, LLP, with whom was Thomas P. Humphrey, all

of Washington, DC, for plaintiff.

Vijaya S. Surampudi of the Department of Justice, with whom were Brian M. Boynton,

Martin F. Hockey Jr., and Tara K. Hogan, all of Washington, DC, and Antonio Robinson of the

Department of Agriculture, of Washington, DC, for defendant.

Neil H. O’Donnell of Rogers Joseph O’Donnell, PC, with whom were Lucas T. Hanback

and Eleanor M. Ross, all of San Francisco, CA, for defendant-intervenor Aero-Flite, Inc.

*

This Opinion and Order was originally filed under seal on 24 August 2021 pursuant to the protective order in this

case. The Court provided the parties the opportunity to review this Opinion for any proprietary, confidential, or

other protected information and submit proposed redactions no later than 27 August 2021 at 12:00 p.m. On 26

August 2021, the parties emailed informing the Court no party seeks redaction of the Opinion. The Opinion is now

reissued for publication with a few minor, non-substantive corrections.

Jolyon A. Silversmith of KMA Zuckert, LLC, of Washington, DC, and Rachel B. Trinder

of Trinder Aviation & Aerospace Advocacy, PLLC, of Washington, DC, for defendant-

intervenor Erickson Aero Tanker, LLC.

HOLTE, Judge.

Plaintiff 10 Tanker Air Carrier, LLC (“10 Tanker”) brings this bid protest challenging the

U.S. Forest Service’s (“USFS”) award of a contract for Next Generation 3.0 Large Airtanker

(“Next Gen 3.0”) aerial firefighting to defendant-intervenors Erickson Aero Tanker, LLC d/b/a

Aero Air (“Erickson”) and Aero-Flite, Inc. (“Aero-Flite”), and awardee Coulson Aviation (USA)

(“Coulson”), under Solicitation No. 12024B18R9013. Plaintiff and defendant-intervenors have

extensive experience on federal aerial firefighting service contracts. Admin. R. (“AR”) at 454

(Erickson proposal), 5621 (Aero-Flite proposal), 7107 (10 Tanker proposal), ECF No. 27. While

this contract and solicitation have been through two post-award protests, as well as corrective

action from the USFS, Erickson, Aero-Flite, and Coulson have consistently remained the

awardees. Pending before the Court are plaintiff’s motion for judgment on the administrative

record (“MJAR”), the government’s cross-MJAR and motion to dismiss (“MTD”), defendant-

intervenors’ cross-MJARs and motions to dismiss. For the following reasons, the Court

DENIES plaintiff’s MJAR, and GRANTS the government’s and defendant-intervenors’

MJARs, and alternatively GRANTS the government’s and defendant-intervenors’ motions to

dismiss pursuant to RCFC 12(b)(6) and the Federal Circuit’s decision in Blue & Gold.

I. Background

A. Previous Next Generation Contracts

The rise in wildfires across the United States poses a critical public safety issue, putting

“individuals, their homes, and wildlife at risk from damage from fires.” Def.’s Reply to Pl.’s

Mot. for J. on the Admin. R., Mot. to Dismiss, and Cross-MJAR (“Gov’t MTD & Cross-MJAR”)

at 28, ECF No. 31. Since 2011, the USFS has contracted out air tankers to “provide critical

front-line firefighting services nationwide.” Id.; see AR at 19 (acquisition plan). The USFS is

the only federal agency contracting for firefighting services. MJAR Oral Argument Transcript

(“Tr.”) at 17:4–5, ECF No. 47. The USFS primarily uses contractor-owned turbine-powered,

fixed-wing tankers from various companies, namely large air tankers (“LATs”) and very large air

tankers (“VLATs”). AR at 45 (acquisition plan); Tr. at 12:21–22. The USFS issued two

previous requests for proposals (“RFPs”) for Next Generation Airtanker (“Next Gen”) services—

called Next Gen 1.0 and Next Gen 2.0. AR at 19; Tr. at 11:1–6 (“There are Next Gen 1.0 and

Next Gen 2.0, which have been staged throughout the last several years.”). Next Gen 1.0 began

in 2013 and expires in 2022, and Next Gen 2.0 began in 2015. Pl. 10 Tanker Air Carrier, LLC’s

Mot. for J. on the Admin. R. (“Pl.’s MJAR”) at 6, ECF No. 28. Next Gen 3.0 provides for fleet

services with fire retardant delivery systems to fight wildland fires, similar to the USFS’s

previous Next Gen Airtanker service contracts. AR at 78 (solicitation); Tr. at 30:20–22. The

government planned the Next Gen 3.0 contracts to “begin service in calendar year 2019,” with

awardees to “have their offered aircraft ready to perform for the 2019 fire season.” AR at 292.

Performance for Next Gen 3.0 instead began around 1 June 2021, at least in part because of

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delays caused by 10 Tanker’s protests. Tr. at 9:7–13; see, e.g., AR at 11203 (10 Tanker 6 April

2020 GAO protest), 12530 (10 Tanker 6 November 2020 GAO protest).

While Next Gen contracts are primarily for LATs, the USFS accepts both LATs and

VLATs for submission. Tr. at 15:2–20. The USFS awarded contracts to 10 Tanker in the past

through its LAT agreements despite 10 Tanker’s planes being larger than its competitors’ and

typically considered VLATs. Id. at 15:7–13 (“10 Tanker is an active contractor under the

NextGen 1 [sic] large air tanker . . . contract. It’s an active contractor under the Next Generation

2.0 large air tanker contract, which is a LAT contract, not a VLAT contract.”). Plaintiff has four

planes, two of which are currently tied to earlier Next Gen contracts. Id. at 13:3–23. The USFS

has never issued an RFP for VLAT planes, “only large airtankers,” Id. at 16:14–22, and its

contracts are “oriented towards a tanker in the LAT range.” Id. at 27:1–3. Next Gen contracts

1.0 and 2.0 are still ongoing and are set to expire on 31 December 2022 and 31 December 2025,

respectively. Id. at 11:13–15. The timelines of these “exclusive use” lease contracts overlap to

allow the USFS “to maximize the amount of planes it has at its disposal.” Tr. at 11:21–25.

While the USFS also employs “call-when-needed” blanket purchase agreements to fight

wildland fires, the agency primarily uses “exclusive use” lease agreements because tanker

services are guaranteed under such contracts. Id. at 14:2–15 (“[E]veryone’s planes that are not

currently under exclusive-use are operating under various call-when-needed agreements. So

they’re all available to the Forest Service upon call, but they’re not guaranteed. . . .”), 44:10–11

(“Exclusive-use contracts are the primary contracts.”). The tankers drop the “majority of the

retardant . . . from exclusive-use” agreements because of the guaranteed, consistent nature of the

contract. Id. at 44:11–12. The call-when-needed agreements are more expensive than the Next

Gen contracts “due to the contingency basis of th[e] contract.” Id. at 42:22–25.

The USFS used the price history and expenditures from past contracts to determine

pricing estimates for the Next Gen 3.0 contract. AR at 24 (“The estimates were developed

utilizing the recent pricing history of similar contract efforts and the total expenditures under

those contracts.”) (acquisition plan). The parties confirmed at oral argument this pricing history

came from the Next Gen 1.0 and 2.0 contracts. Tr. at 18:14–19. The pricing formula has

remained the same throughout the Next Gen contracts. Id. at 19:13–17 (“[T]he formula in the

current solicitation has been the same for the previous air tanker solicitations. That has not

changed since at least 2011 or 2012.”). The USFS, however, changed its overall best-value

tradeoff determination since the Next Gen 2.0 contract. Id. at 20:6–8, 12. While the Next Gen

2.0 contract gave more weight to technical evaluation factors, the Next Gen 3.0 contract made

price equal to all the technical components combined, giving more weight to price. Id. at 22:18–

20 (“[T]echnical was significantly more important than price in 2.0, where here technical is the

same as price or at least just as important as price.”). Counsel for the USFS explained at oral

argument:

[T]he only change I’m aware of is that the Forest Service wanted to prioritize price

more than it did in 2.0. That’s why price is equal to technical versus in 2.0. In 2.0,

technical was significantly more than price.

Id. at 30:20–24. Counsel for the USFS also explained the agency made this change in the best-

value tradeoff criteria because “most of the offerors . . . were technically fine, so they wanted to

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prioritize the overall price in considering who to award to.” Id. at 25:10–13. The law permits

USFS to change its solicitation requirements each time it issues a contract. Tr. at 34:6–13

(“[T]here’s nothing in the Competition in Contracting Act or in the Federal Acquisition

Regulation that prevents the Forest Service from rethinking its requirements in the way that it

states them in the RFP.”).

B. The Solicitation

The USFS issued the solicitation on 3 December 2018, and proposals were due 14

February 2019. AR at 74 (initial solicitation issued by the USFS), 281 (solicitation amendment

to the Next Gen 3.0 contract detailing the proposal due date). The RFP states the USFS will

award five firm-fixed price contracts, with awards going to between one and five contractors, for

up to five years. AR at 78 (solicitation). These contracts have a one-year base period and four

one-year options. Id. The RFP established the contract as a “small business set-aside” and

stated, “the primary mission for airtankers under this contract is dropping retardant on wildland

fires.” AR at 281, 300 (section of the RFP detailing the work statement for the contract). The

USFS also permitted offerors to submit alternate proposals in addition to their main proposal for

the RFP. AR at 264 (solicitation).

The solicitation calls for each leased plane to be available 160 days per year during an

interval called the Mandatory Availability Period (“MAP”), beginning 1 June. AR at 24

(acquisition plan), 294–95 (solicitation). The leased planes will “operate on a 6 days on, 1 day

off schedule.” AR at 298 (solicitation). The air tankers’ priority is responding to “fires with

typical missions of one hour or less.” Id. at 86 (solicitation). Next Gen contracts are focused on

initial attacks, meaning the tankers must respond rapidly. Tr. at 45:12–13. Air tankers’

“immediate response actions occur in the first burning period and are intended to support

personnel either on scene or enroute [sic] to the incident in containing the fire when it is least

costly to do so.” AR at 86 (solicitation). The RFP further detailed, “[a]irtankers shall operate

only from the airtanker bases identified for their airtanker type.” Id. at 100 (solicitation).

Tankers also “shall carry the maximum contract retardant dispensing payload and shall carry the

contract fuel load (no less than 2.5 hours) when departing from an airport in support of

firefighting operations.” Id. at 298 (solicitation). The RFP additionally requires offerors to

submit information about aircraft safety and certification. Id. at 87 (portion of the solicitation

detailing aircraft requirements).

The USFS planned to award the contract to the proposal on a best-value basis under five

factors, the first four of which are categorized together as technical criteria: (1) structural

integrity, maintenance, and equipment; (2) safety elements; (3) past performance; (4)

organizational experience; and (5) price. AR at 234–37 (solicitation). When combined, the

technical factors—factors one through four—are to be given approximately equal weight as price

alone. Id. The solicitation provides the following formula for price evaluation: “Price will be

evaluated by using a combination of the number of days awarded times the proposed availability

rate plus an estimated number of flight hours (250) times the proposed flight rate plus hourly fuel

burn rate times the Jet A fuel price ($5.21 per gallon) to determine the overall price per line item

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for evaluation purposes only.” Id. at 451 (solicitation).1 This evaluation method considers

availability rate, flight rate, and fuel costs. Id. The solicitation also notes: “In addition to total

overall price, the Government will consider other price aspects, including price per gallon of

retardant delivered (total cost divided by number of gallons delivered with 250 drops per year);

however, total overall price will be the most important price consideration.” Id. The solicitation

also states: “Award will be made to those offerors (1) whose proposal is technically acceptable

and (2) whose technical/cost relationship is the most advantageous to the government after a best

value tradeoff analysis has occurred.” Id. at 238. After offerors submitted proposals, the USFS

held discussions with five offerors in the competitive range. AR at 11142–43 (technical

evaluation board consensus report from source selection decision document).

C. Plaintiff’s Proposal

10 Tanker’s proposal stressed its firefighting experience of nearly 12 years: “10 Tanker

has been under contract with [the] USFS to provide aerial firefighting services on a continual

basis since 2009.” Id. at 12536 (10 Tanker’s GAO protest of the re-awards under the USFS’s

RFP). Plaintiff explained, “when 10 Tanker flies a firefighting mission, its plane reliably

delivers 9400 gallons of fire retardant/suppressant onto the ground to assist in firefighting

efforts.” Pl.’s MJAR at 7. It also reasoned its price per gallon of fire retardant was relatively

low at $4.73, particularly compared to its competitors with Coulson at $8.31, Erickson at $9.40,

and Aero-Flite at $10.72. Id. at 13. Plaintiff’s overall price estimate was $55,606,875. AR at

12933 (source selection decision). Plaintiff also chose to provide an alternate proposal

suggesting a new pricing method focusing on price per gallon. Id. at 8364 (10 Tanker’s

proposal).

D. Defendant-Intervenors’ Proposals

Defendant-intervenor Erickson “has been involved with Next Gen tanker aerial

firefighting since initial discussions took place with [the] USFS in 2011.” AR at 454 (Erickson’s

proposal). For this contract, Erickson offered three air tankers, all of which hold a “dispensable

payload of 3,000 gallons.” Id. Erickson’s overall price estimate was $35,250,765 per air tanker

for an award of two air tanker contracts. Id. at 11185 (Erickson post-award debriefing).

Defendant-intervenor Aero-Flite “has provided aerial forest fire management services to

a wide variety of United States and international forest protection agencies for over 50 years”

and has contracted with the USFS prior to its proposal for the Next Gen 3.0 contract. AR at

5621, 5623 (Aero-Flite’s proposal). Aero-Flite’s tankers have a retardant payload of 3,000

gallons and its “RJ85 Airtanker meets all [the] USFS needs for a Next Generation Large Type 1

Airtanker.” Id. at 5623–24. Aero-Flite’s overall price estimate was $40,194,305. Id. at 12933

(source selection decision).

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“Overall Price = [Total Daily Availability Rate Pricing for 5 years] + ([Total Flight Costs Per Hour] x 250 hours

per year x 5 years).” Pl.’s MJAR at 34 (emphasis omitted).

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E. Initial Next Gen 3.0 Award and 10 Tanker’s GAO Protest of the First Next

Gen 3.0 Award

The technical evaluation board (“TEB”) met on 11 March 2019 to evaluate proposals and

establish the competitive offerors. AR at 11142 (TEB consensus report from the USFS’s source

selection document). The TEB excluded four offerors—Air Spray, Air Strike Firefighters, Cal

Alaska Helicopters, and Global Super Ranker—from the competitive range in addition to

excluding some of Neptune Aviation’s aircraft for failing to meet the solicitation requirements.

Id. at 11143. After Aircraft pre-award inspections occurred from 18 to 20 June 2019, the

contracting officer held discussions with offerors in the competitive range. Id. at 11126

(summary of offerors). TEB members thereafter evaluated the proposals and provided ratings.

Id. In terms of overall best value, the USFS ranked Coulson first, Aero-Flite second, Erickson

third, Neptune fourth, and 10 Tanker fifth. Id. at 11137 (source selection decision). For the

technical rating, the USFS ranked Coulson first, Aero-Flite second, 10 Tanker third, Erickson

fourth, and Neptune fifth. Id. The source-selection authority (“SSA”) noted “10 Tanker’s total

overall price is significantly higher than all other offerors,” with 10 Tanker offering $55,606,875,

while Neptune offered $40,080,650; Aero-Flite offered $40,194,305; Coulson offered

$41,528,725; and Erickson offered $35,250,765 per air tanker for an award of two air tanker

contracts. AR at 11137 (source selection decision before corrective action), 11185 (Erickson

post-award debriefing). On 26 March 2019, the USFS awarded contracts to Coulson, Erickson,

and Aero-Flite. Id. at 11139. Coulson received one line-item award while Erickson and Aero-

Flite received two line-item awards each. Id. The SSA stated in its source selection decision

that 10 Tanker’s total overall price was significantly higher than all other offerors, despite its

price per gallon being better than other offerors. Id. at 12933 (source selection decision). The

SSA stated cost per gallon is “less relevant when the total overall price is so significantly higher

than other qualified offerors.” Id.

Plaintiff filed a post-award protest with the GAO on 6 April 2020 alleging the USFS

unreasonably evaluated its proposal. Id. at 11203 (protest by 10 Tanker of the awards under the

USFS’s Next Gen 3.0 RFP). It asserted the USFS: (1) unfairly down-scored 10 Tanker for

“airbase utilization” limitations without raising the issue in previous discussions; (2) used

unstated evaluation criteria as a part of their best-value determination in analyzing airbase

utilization; (3) failed to consider price per gallon pricing; and (4) engaged in an unlawful best-

value determination. AR at 11204–06 (protest by 10 Tanker of the awards under the USFS’s

Next Gen 3.0 RFP). The USFS filed a motion for partial dismissal on 27 April 2020, which the

GAO granted on 1 May 2020. Id. at 11534 (10 Tanker’s request for partial dismissal), 11913

(the GAO’s response to 10 Tanker’s request). The GAO dismissed “the following basis of

protest: . . . [t]he Government did not properly credit all airtanker bases from which 10 Tanker

can operate[;] [a]irbase operations were given undue weight[; and t]he challenge to the fuel price

estimate.” AR at 11913. The GAO did not dismiss “the following bases of protest: [t]he agency

improperly considered the number of bases out of which 10 Air Tanker could operate[; and t]he

agency did not meaningfully consider 10 Air Tankers’ price per gallon advantage.” Id. The

GAO held outcome prediction alternative dispute resolution (“ADR”) on 9 June 2020 and

sustained 10 Tanker’s protest of the “airbase utilization,” stating the unstated criterion was

outside the scope of the RFP’s stated requirements. Id. at 12463 (the USFS’s notice and

explanation of corrective action). The USFS stated on 12 June 2020 it would take voluntary

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corrective action in response to the GAO’s outcome prediction. Id. As part of its corrective

action, the USFS stated it would “review the evaluation documents; in accordance with the terms

of the Solicitation, make a new technical evaluation board consensus to generate new ratings that

do not take into account airbase utilization; make a new award decision; and terminate for

convenience any awardee’s current contract if a different proposal is selected for award.” Id. at

12463–64 (the USFS’s notice of corrective action). The GAO then dismissed the protest as

academic on 18 June 2020. Id. at 12465 (GAO decision).

F. Corrective Action, Round 2 Award Decision, and 10 Tanker Round 2

Debriefing

The USFS engaged in corrective action from 18 June 2020 to 27 October 2020. Pl.’s

MJAR at 17. During this time, the agency convened a new board to address the technical

evaluation and create new ratings, not considering airbase utilization. Gov’t MTD & Cross-

MJAR at 9. Offerors were not permitted to revise proposals. Pl.’s MJAR at 17. The USFS did

not engage in discussions with the offerors nor did the USFS amend the solicitation. Id. On 27

October 2020, the USFS notified 10 Tanker of its exclusion from the award and its reselection of

Coulson, Aero-Flite, and Erickson. Id. The SSA noted “10 Tanker’s total overall price is

significantly higher than all other offerors,” with 10 Tanker offering $55,606,875, while Neptune

offered $40,080,650; Aero-Flite offered $40,194,305; Coulson offered $41,528,725; and

Erickson offered $35,250,765 per air tanker for an award of two air tanker contracts. AR at

12577 (10 Tanker 30 October 2020 post-award debriefing), 12933. The SSA further reasoned,

“Cost Per Gallon is a price consideration that becomes more important when the total overall

price is closer among offerors.” Id. The USFS stressed, “10 Tanker’s Cost Per Gallon price is

better than all of the other offerors but becomes less relevant when the total overall price is so

significantly higher than other qualified offerors.” Id. The SSA also explained Coulson, Aero-

Flite, and Erickson all presented acceptable proposals with reasonable total overall prices. Id.

Plaintiff received a post-award briefing and learned the USFS evaluated its proposal as

having no non-price weaknesses, removing the “base utilization” weakness. AR at 12525 (the

USFS’s post award debriefing). Plaintiff’s non-price rating increased from “Acceptable” to

“Acceptable+,” leaving price as its only weakness and pushing 10 Tanker to the top of the non-

price evaluation factors. Id. Plaintiff ranked last overall, however, based on its significantly

higher price. Id. at 12483 (trade-off analysis).

G. 10 Tanker’s GAO Protest of the Second Next Gen 3.0 Award

Plaintiff filed a second protest with the GAO on 6 November 2020 challenging the re-

award decision. Id. at 12530 (protest by 10 Tanker of the re-awards under the USFS’s RFP).

Plaintiff alleged: “in making the best value tradeoff decision the agency failed to meaningfully

consider 10 Tanker’s significant advantage in price per gallon delivered.” Id. at 12982 (the

GAO’s dismissal of 10 Tanker’s protest). Plaintiff further argued the decision was based on

price premium, which only existed when 10 Tanker’s price was compared to other offerors’

regarding fire retardant to be delivered. Id. at 12940 (10 Tanker’s supplemental protest). The

GAO denied the protest, stating: “10 Tanker is in essence challenging the price evaluation

scheme established in the solicitation.” AR at 12982 (the GAO’s decision to dismiss 10

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Tanker’s protest issued on 9 February 2021). The GAO reasoned: “10 Tanker knew, however,

from the solicitation that the agency considered total overall price, which did not include price

per gallon of retardant delivered, as the most important price consideration.” Id. The GAO

further explained, “if 10 Tanker believed that the only realistic way to compare cost to the

government was by comparing price per gallon of retardant delivered, 10 Tanker was required to

raise this issue prior to the closing time for the receipt of proposals.” Id. at 12982–83 (the

GAO’s decision to dismiss 10 Tanker’s protest issued on 9 February 2021). The USFS has since

awarded contracts to Coulson, Aero-Flite, and Erickson which began on 16 April 2021, 18 April

2021, and 21 May 2021 respectively. Gov’t MTD & Cross-MJAR at 10.

H. Procedural History Before This Court

Plaintiff filed its complaint in this bid protest on 19 March 2021, along with a motion to

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

Compl. for Decl. & Inj. Relief, ECF No. 1; Pl.’s Mot. to File Docs. Under Seal, ECF No. 2;

Redacted Compl. for Decl. & Inj. Relief, ECF No. 4; Pl.’s Mot. for Protective Order, ECF No. 3.

On 20 April 2021, plaintiff filed its MJAR. See Pl.’s Mot. for J. on the Admin. R., ECF No. 29.

On 11 May 2021, the government filed its cross-MJAR and motion to dismiss. See Gov’t MTD

& Cross-MJAR. On the same day, defendant-intervenor Aero-Flite, Inc., filed its cross-MJAR,

which included a request to dismiss the complaint under Blue & Gold but did not formally move

to dismiss. See Intervenor-Def.’s Cross-Mot. for J. on the Admin. R. & Resp. to Pl.’s Mot. for J.

on the Admin. R., ECF No. 32 (“Aero-Flite’s Cross-MJAR”). Defendant-intervenor Erickson

Aero Tanker, LLC, filed its cross-MJAR as well as a motion to dismiss on 11 May 2021. Def.-

Intervenor’s Mot. to Dismiss, Opposition to Pl.’s Mot. for J. on the Admin. R., and Cross-Mot.

for J. on the Admin. R., ECF No. 30 (“Erickson’s Cross-MJAR”). Plaintiff filed its reply in

support of its MJAR and response to defendant-intervenors’ and the government’s cross-MJARs

on 25 May 2021. See Pl.’s Reply in Support of Its Mot. for J. on the Admin. R. and Opposition

to the Cross Mots. for J. on the Admin. R. of Def. and Def.-Intervenors, ECF No. 34 (“Pl.’s

Reply & Resp.”). On 8 June 2021, the government and defendant-intervenors filed replies in

support of their cross-MJARs. See Def.-Intervenor’s Reply in Support of Its Mot. to Dismiss &

Cross-Mot. for J. on the Admin. R., ECF No. 39; Def.-Intervenor’s Reply in Support of Its

Cross-Mot. for J. on the Admin. R., ECF No. 40; Def.’s Reply in Support of Its Cross-Mot. for J.

on the Admin. R. and Mot. to Dismiss, ECF No. 42 (“Gov’t Reply”). The Court held oral

argument on the parties’ cross-MJARs on 30 June 2021.

II. Legal Standard

A. Bid Protest Jurisdiction & APA Standard of Review

The Tucker Act grants 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 of the contract

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or by failure to award the contract.” PDS Consultants, Inc. v. United States, 907 F.3d 1345,

1356 (Fed. Cir. 2018) (quoting 31 U.S.C. § 3551(2)(A)).

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

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., 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. Ark.-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, 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) (emphasis omitted).

“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. (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, 404 F.3d at 1353 (quoting

Info. Tech. & Apps. Corp. v. United States, 316 F.3d 1312, 1319 (Fed. Cir. 2003)).

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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

represents the best value for the government.” Id. 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 Grp. 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. Plaintiff’s Arguments and the Government’s and Defendant-Intervenors’

Merits Responses

Plaintiff argues the USFS’s best-value determination was contrary to law because the

Competition in Contracting Act (“CICA”) and the Federal Acquisitions Regulation (“FAR”)

require an agency’s “primary concern” to be “the overall price the Government will actually

pay” in making an award. Pl.’s MJAR at 20 (citing 41 U.S.C. § 3306(c)(1)(B) (2018); FAR

§ 15.405). Plaintiff also asserts 10 Tanker’s cost to the government is lower than the awardees’

by highlighting “what offerors were required to price in their proposals: . . . (i) cost to [the]

USFS to exclusively lease the proposed aircraft for the ‘mandatory availability period’ for each

year of the contract, and (ii) the cost to [the] USFS to activate the aircraft for a firefighting

mission when fire retardant is needed at an active fire site.” Pl.’s MJAR at 22. Plaintiff argues

the “USFS’s ‘best value’ determination failed to consider the cost to the Government of the

competing proposals because it failed to consider 10 Tanker’s pricing to do an equivalent amount

of work as compared to its competitors.” Id. at 28. Plaintiff asserts the SSA made its

determination upon a mistake of fact involving a price premium on 10 Tanker’s proposal. Id. at

30. Plaintiff argues the price premium SSA alleges was taken from the overall price calculation

and “is not based on an assessment of what 10 Tanker’s contract will actually cost the

Government compared to its competitors, as required by statute, because no such ‘price

premium’ will ever be paid.” Id. at 31 (emphasis omitted). Plaintiff reasons “the SSA’s decision

to . . . disregard 10 Tanker’s price per gallon advantage during the ‘best value’ assessment was

contrary to law because it was based on an unstated evaluation criterion”—the overall closeness

of pricing assessments. Id. at 34. Plaintiff explains the “SSA dismissed the significance of 10

Tanker’s huge price per gallon advantage on the basis that price per gallon ‘becomes less

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relevant when the total overall price is so significantly higher than other qualified offerors.’” Id.

Because the RFP included a consideration of “Price Per Gallon,” plaintiff argues the SSA’s

“commitment to evaluate and consider price per gallon pricing was not conditional or contingent

on the results of other aspects of the pricing evaluation.” Pl.’s MJAR at 33 (emphasis omitted).

The government argues the USFS’s determination was consistent with the law because it

“adequately evaluated offerors’ total overall price and weighed it against the technical ratings

developed by the Technical Evaluation Board.” Gov’t MTD & Cross-MJAR at 18. The USFS

“followed a detailed formula that incorporated several different metrics that together

demonstrated what the Government will actually pay with respect to the use of the air tankers”

and this formula was made clear in the solicitation to offerors. Id. While the solicitation noted

the SSA could weigh other price considerations, the solicitation was explicit about the total

overall price being the most important of all pricing considerations. Id. The government

responds 10 Tanker “cannot show that using overall price instead of price per gallon as the

principal price factor was arbitrary, because doing so was consistent with the solicitation

criteria.” Id. at 20. The government shows “[t]he solicitation provided that total overall price is

the most significant price factor” and “[a]s such, there is no question that the Forest Service

correctly relied on this factor to evaluate offerors for the purposes of the best value tradeoff.” Id.

The government explains, “10 Tanker’s price per gallon was significantly better but, because its

total overall price, which was the most important factor, was so much higher than the other

awardees, the price per gallon accordingly lost relative importance.” Gov’t MTD & Cross-

MJAR at 23. The government argues the SSA is afforded “substantial discretion” in making its

decision, and this discretion “should not be disturbed, in the absence of a showing that the

contracting officer acted arbitrarily or capriciously.” Id. Defendant-intervenor Aero-Flite argues

10 Tanker was not prejudiced because “the RFP has always said that total overall price would be

the most important price consideration,” so plaintiff knew the SSA would not consider price per

gallon more heavily than overall price. Id. at 21–22. Likewise, defendant-intervenor Erickson

argued “to the extent the Solicitation specified that overall price would be assigned the greatest

weight, the Forest Service could not depart from that requirement and consider the factors on a

different basis.” Erickson’s Cross-MJAR at 23.

B. The Government’s and Defendant-Intervenors’ Blue & Gold Arguments and

Plaintiff’s Reply

The government also moves to dismiss the protest, asserting 10 Tanker’s “arguments

challenge the terms of the RFP itself, not the agency’s evaluation of the offers, and therefore,

[its] complaint should be dismissed.” Gov’t MTD & Cross-MJAR at 13. Citing Blue & Gold

Fleet, L.P. v. United States, 492 F.3d 1308 (Fed. Cir. 2007), the government argues “plaintiff

waives its right to challenge a patent error in the terms of a solicitation unless it filed a formal

protest to those terms prior to the deadline for proposal submission, or, in the case of a

solicitation amendment where there is no opportunity for revised proposals, prior to award.” Id.

The government argues the RFP was clear about the total overall price being the most important

consideration and that 10 Tanker was thus “on notice of the metrics that would allow the agency

to evaluate their pricing proposals.” Id. at 14. The government highlights “the language of the

solicitation that expressly states ‘overall price is the most important factor’” and, as a result, 10

Tanker “is merely arguing that the agency’s reliance on its own evaluation criteria is flawed, not

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that the evaluation itself is flawed.” Id. at 15. While 10 Tanker alleges it was not aware of the

evaluation criteria and would have submitted “more advantageous pricing” had it known price

per gallon would not be as heavily considered, the government argues 10 Tanker “is an

experienced contractor and has won previous Next Gen contracts using the same RFP language.”

Id. at 17. Aero-Flite reasons: “10 Tanker’s arguments that making total overall price the most

important price consideration violates CICA is a direct challenge to the terms of the solicitation,

and should be rejected for the same reasons this type of challenge was rejected in Blue & Gold.”

Aero-Flite’s Cross-MJAR at 8. Aero-Flite further explains, “even if 10 Tanker’s protest is not

considered a direct attack on the RFP’s express terms, it nonetheless falls within the expanded

scope of the Blue & Gold waiver rule because 10 Tanker ‘knew, or should have known’ prior to

award about all of the bases for its current protest.” Id. at 9. Aero-Flite stresses, “10 Tanker’s

argument that the government failed to evaluate the comparative costs of proposals is predicated

upon 10 Tanker’s own cost comparison methods that are not specified in the RFP.” Id. Erickson

also argues, “it is clear from the Memorandum that Plaintiff’s claims are rooted in the original

language of the Solicitation – i.e., [sic] that overall price and not per-gallon pricing would be

given the greatest emphasis.” Erickson’s Cross-MJAR at 6. Thus, Erickson argues, “the

plaintiff does not allege that new, unexpected issues arose post-bid, but rather that the Forest

Service should have given different weight” to the pricing factors. Id. at 8.

Plaintiff reasons Blue & Gold “does not require participants in a procurement to

preemptively presume that the procuring agency will violate federal law in the absence of a

clearly expressed intention to do so.” Pl.’s Reply & Resp. at 4–5. Plaintiff reasons, “there must

be a window of time when the cause of action is ripe for challenge.” Id. at 6. The government

fails to “point to any actual language in the RFP indicating [the] USFS’s intention to ignore the

cost to the [g]overnment of the competing proposals.” Id. at 7. Plaintiff argues the USFS

ignored mandatory FAR requirements in considering “Next Gen 3 proposals as part of the best

value analysis.” Id. at 8. Plaintiff additionally stresses the government has not “demonstrated

that 10 Tanker’s remaining protest challenges were also waived” even if “the Court were to

conclude that 10 Tanker’s first cause of action regarding [the] USFS’s failure to consider ‘cost to

the government’ was waived under Blue & Gold Fleet.” Id. at 11.

C. Injunctive Relief

Plaintiff argues “10 Tanker has no remedy at law to address the harm it will suffer[,] . . .

los[ing] its opportunity to compete fairly for the Next Gen 3 contracts, and los[ing] its

opportunity to obtain profits from one or more contract awards.” Pl.’s MJAR at 37–38. Further,

“the balance of harms favors 10 Tanker” because it will “los[e] out on its primary source of

income due to [the] USFS’s evaluation errors,” while the USFS “would not be substantially

harmed by the issuance of an injunction.” Id. at 38. Plaintiff also argues “an injunction is

unambiguously in the public interest” because 10 Tanker has “the undisputed best technical

solution at the most affordable cost to the Government at any realistic level of scale.” Id. at 38–

39. Plaintiff reasons selecting 10 Tanker is in the public’s interest also because it could “save

lives and countless millions of dollars of property damage” in addition to preserving “a fair

source selection process.” Id. at 39. The government responds, “10 Tanker fails to identify any

specific harm or damages it anticipates suffering, other than losing the opportunity to make a

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profit and fairly compete for contracts if it were awarded the contract.” Gov’t MTD & Cross-

MJAR at 26.

IV. Merits Arguments Analysis

The court addresses the parties’ arguments in a different order from which the parties

briefed them.

A. Whether the SSA Failed to Consider Price Per Gallon as a Significant Part of

the Best-Value Determination

Plaintiff argues price per gallon was a mandatory factor for the government to consider in

its best-value determination, and “the SSA’s decision to . . . disregard 10 Tanker’s price per

gallon advantage during the ‘best value’ assessment was contrary to law because it was based on

an unstated evaluation criterion”—the closeness of overall price. Pl.’s MJAR at 34. The

government acknowledges price per gallon was a required factor for consideration but

emphasizes overall price was the solicitation’s primary price consideration. Gov’t MTD &

Cross-MJAR at 20. Counsel for the government explained at oral argument it “did consider cost

per gallon, but . . . determined that because the total overall price was so significantly higher than

all the other offerors, any weight afforded to cost per gallon would not have made much of a

difference in [the government’s] final determination.” Tr. at 187:18–23. Aero-Flite asserts “the

RFP has always said that total overall price would be the most important price consideration,”

and 10 Tanker was not “misled” into believing the SSA would consider price per gallon more

heavily than overall price. Aero-Flite’s Cross-MJAR at 21–22. Erickson relatedly asserts, “the

Forest Service documented the various ways in which price per gallon had been given

‘meaningful consideration’ in its best value analysis . . . consistent with the overall mandate that

price be considered . . . even if the exact process and final outcome was not to Plaintiff’s liking.”

Erickson’s Cross-MJAR at 22.

The solicitation states, “price will be evaluated by using a combination of the number of

days awarded times the proposed availability rate plus an estimated number of flights hours

(250) times the proposed flight rate plus hourly fuel burn rate times the Jet A fuel price ($5.21

per gallon) to determine the total overall price per line item for evaluation purposes only.” AR at

451 (solicitation).2 The solicitation also provides, “[i]n addition to total overall price, the

Government will consider other price aspects, including price per gallon of retardant delivered

(total cost divided by number of gallons delivered with 250 drops per year); however, total

overall price will be the most important price consideration.” Id. The solicitation required the

parties to submit pricing information, such as their MAP and flight rates, for the USFS to

calculate in its pricing formula. AR at 237 (solicitation). The Federal Circuit holds, “[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

2

“Overall Price = [Total Daily Availability Rate Pricing for 5 years] + ([Total Flight Costs Per Hour] x 250 hours

per year x 5 years).” Pl.’s MJAR at 34 (emphasis omitted).

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ascribed to a difference in view or the product of agency expertise.’” Ala. Aircraft Indus., 586

F.3d at 1375 (quoting Motor Vehicle Mfrs. Ass’n, 463 U.S. at 43).

Plaintiff argues the SSA “failed to meaningfully consider or weigh ‘price per gallon’

pricing in the ‘best value’ determination” and asserts the SSA “deci[ded] to devalue and

effectively disregard 10 Tanker’s price per gallon advantage during the ‘best value’ assessment.”

Pl.’s MJAR at 34. The USFS’s source selection decision explained: “Cost Per Gallon is a price

consideration that becomes more important when the total overall price is closer amongst

offerors.” AR at 12933 (source selection decision). The agency understood price per gallon to

be a mandatory consideration in the best-value determination: “Cost Per Gallon delivered was

identified as a pricing consideration.” Id. at 12932 (source selection decision). After calculation,

the agency explained why each offeror’s price per gallon rate was or was not desirable, including

10 Tanker’s: “10 Tanker’s large tank capacity makes their cost per gallon rate the lowest of all

offerors by almost double at $4.73 per gallon.” Id. The USFS also explained why 10 Tanker’s

overall proposal was not particularly valuable despite its low price per gallon: “While cost per

gallon is an additional piece of information that we analyze, it becomes an important

differentiator when the total overall price is within a reasonable range when comparing offers.”

Id. Plaintiff’s MJAR fails to explain where the solicitation requires the government to apply

plaintiff’s desired weight of consideration of offerors’ price per gallon. See Pl.’s MJAR at 33–

37. The agency followed the solicitation’s requirements in considering price per gallon as part of

its best-value analysis, as its thorough discussion demonstrates. See AR at 12931–34.

Plaintiff repeatedly asserted at oral argument the government was preoccupied with the

offerors’ total cost at the expense of considering offerors’ price per gallon. Tr. at 136:21–25

(“So when the agency focused exclusively on that one item to the exclusion of everything else,

even though technical was 50 percent and . . . the cost side of the 50 percent, they overprioritized

price.”). The solicitation, however, was clear that overall price was the most important aspect of

price in the best-value tradeoff and at oral argument counsel for the USFS explained the terms of

this solicitation differed from those of Next Gen 2.0 because “the Forest Service wanted to

prioritize price more [in Next Gen 3.0] than it did in 2.0. That’s why price is equal to technical

versus in 2.0. In 2.0, technical was significantly more than price.” AR at 237 (solicitation); Tr.

at 30:20–24. Counsel for the USFS also explained the agency made this change in the best-value

tradeoff criteria because “most of the offerors . . . were technically fine, so they wanted to

prioritize the overall price in considering who to award to.” Tr. at 25:10–13. As an incumbent

performer of the Next Gen 2.0 contract, 10 Tanker was on notice Next Gen 3.0 rated offerors

according to a different formula, as 10 Tanker even proposed an alternative solicitation formula

more favorable to its strengths. AR at 8364 (10 Tanker’s proposal). Counsel for plaintiff

conceded at oral argument that overall cost was most important but argued this “does not mean it

could be treated as the only consideration of cost in a cost/technical relationship, and dominate

everything else,” and emphasized the important role plaintiff understood price per gallon must

play in the government’s consideration. Tr. at 137:1–4. Plaintiff additionally asserts the

government should have given price per gallon additional weight in its best-value tradeoff

because such consideration would be beneficial to the government. Tr. at 178:14–16. This

argument, however, asks the Court to micromanage the government’s application of one of the

“other price aspects” that “the Government will consider” and asks the Court to second-guess the

government’s application of the solicitation’s statement that “total overall price will be the most

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important price consideration.” AR at 237. “It is well-established that contracting officers have

a great deal of discretion in making contract award decisions, particularly when, as here, the

contract is to be awarded to the bidder or bidders that will provide the agency with the best

value.” Banknote Corp. of Am., Inc. v. United States, 365 F.3d 1345, 1355 (Fed. Cir. 2004). The

Court must review “whether there is a clear error of judgment in weighing the relevant factors or

whether the agency exercised its discretion based on error of law or clearly erroneous fact

finding.” Tr. at 186:23–187:1. Plaintiff acknowledged this standard at oral argument but also

argued agencies “cannot apply unstated criteria in the best value tradeoff.” Id. at 179:20–23.

The “unstated criterion” as argued by 10 Tanker is an expression of the agency’s power to

balance various considerations in its decision, since “the arbitrary and capricious standard

applicable here is highly deferential.” Advanced Data Concepts, 216 F.3d at 1058 (citing

Bowman Transp., 419 U.S. at 285). The Court finds the government’s best-value determination

was reasonable and in accordance with the government’s “discretion in making contract award

decisions, particularly when, as here, the contract is to be awarded to the bidder . . . that will

provide the agency with the best value.” Banknote, 365 F.3d at 1355.

Plaintiff asserts the USFS improperly found its price to be outside a reasonable range for

consideration. Tr. at 178:22–25. The solicitation contains no definite pricing range according to

which offerors must be included or excluded, and it instead leaves the decision to the agency’s

discretionary balancing of proposal factors. See AR at 74–452 (solicitation). The agency

balanced such criteria for 10 Tanker in its best-value determination: “10 Tanker’s Cost Per

Gallon price is better than all the other offerors but becomes less relevant when the total overall

price is so significantly higher than other qualified offerors.” AR at 12933 (source selection

decision). The agency noted “10 Tanker has the highest total overall price by a large margin. 10

Tanker’s total overall price is between $14M -$18M [sic] higher than the other offerors over the

five-year performance period.” Id. at 12932. While Coulson’s total cost estimate was second

highest after 10 Tanker’s, in contrast to 10 Tanker’s price premium of $14–18 million, the

agency found Coulson’s price to be in a tight grouping of similarly priced offerors: “Neptune,

Aero Flite, and Coulson are all similarly priced over the five-year period with Coulson only

being $289K higher annually than Neptune and Aero Flite being $22K higher annually than

Neptune.” Id. The best-value determination is complex and cannot be reduced to outer

boundaries of price. See Tr. at 108:4–109:5. The solicitation and award decision offered great

specificity regarding the consideration of price per gallon, and they demonstrate how the USFS’s

decision was within the best-value tradeoff framework. AR at 12932 (source selection decision).

The USFS included tables in its decision explaining its calculations related to total overall cost

and price per gallon. Id. The agency’s price per gallon table described the offerors’ aircrafts,

payload for each tanker, and ranks the offerors lowest to highest according to price per gallon,

with 10 Tanker rated first. Id. The agency explained the table’s calculations and rankings:

10 Tanker’s large tank capacity makes their cost per gallon rate the lowest of all

offerors by almost double at $4.73 per gallon. Coulson’s 737 offers the next lowest

cost per gallon rate that is at least $1.50 less per gallon than all remaining offerors

at $8.35 per gallon. [Erickson’s] MD87’s are the next best rate at $9.98 per gallon.

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Neptune and Aero Flite rates of $10.69 and $10.72 per gallon, respectively[,] are

the two highest rates being offered.3

Id. After this explanation, the agency noted: “While cost per gallon is an additional piece of

information that we analyze, it becomes an important differentiator when the total overall price is

within a reasonable range when comparing offers.” Id. The agency understood 10 Tanker’s total

overall price—the solicitation’s primary and most important pricing consideration—to be the

least advantageous despite its low price per gallon rate. Id. The Court “can set aside the

agency’s decision only if it is ‘arbitrary, capricious, an abuse of discretion, or otherwise not in

accordance with law.’” Ala. Aircraft Indus., 586 F.3d at 1373 (quoting 5 U.S.C. § 706(2)(A)

(2018)). Based on the thoroughness of the agency’s decision regarding price per gallon and the

narrow arbitrary and capricious standard under which this court reviews the agency’s decision,

the Court finds the USFS was reasonable in choosing not to award a contract to 10 Tanker under

the terms of the solicitation due to 10 Tanker’s significantly higher overall price. See id. at 1375.

B. Whether the Government’s Best-Value Determination Was Contrary to

Law4

Plaintiff argues the USFS’s best-value determination was contrary to law because the

CICA and the FAR require an agency’s “primary concern” to be “the overall price the

Government will actually pay” in making an award. Pl.’s MJAR at 2 (citing 41 U.S.C.

§ 3306(c)(1)(B); FAR § 15.405(b)). Plaintiff explains the USFS’s “‘best value’ determination

fundamentally failed to reasonably assess the cost/technical relationship of the competing

proposal because the SSA never considered the comparative cost to the Government of the

competing proposals in terms of what the Government can expect to pay to do this primary

mission: deliver a given amount of fire retardant on fires.” Pl.’s MJAR at 22. The government

argues its determination was consistent with the law because it “adequately evaluated offerors’

3

Erickson’s final price per gallon was $9.40 based on the government’s award of two line-items. Additionally,

Coulson’s actual price per gallon was $8.31. See supra Section I.

4

The Court does not make a determination regarding the various “actual cost” calculations described by the parties

outside the solicitation formula as the solicitation mandates the agency award the contract to the offeror “whose

technical/cost relationship is the most advantageous to the Government after a best value tradeoff analysis has

occurred.” AR at 452 (solicitation); Ala. Aircraft Indus., 586 F.3d at 1373 (The Court “can set aside the agency’s

decision only if it is ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.’”).

Plaintiff’s assertions on “actual cost,” however, prompted the government and defendant-intervenors to consider

scenarios in which 10 Tanker may be more expensive for a given amount of work than its competitors; accordingly,

the Court observes that while the question plaintiff raises of actual cost to the government is not before the Court,

the government and defendant-intervenors offer significant rebuttal to plaintiff’s assertion. See Gov’t MTD &

Cross-MJAR at 20–22; Aero-Flite’s Cross-MJAR at 11–21; Erickson’s Cross-MJAR at 16–20. Aero-Flite cites one

example of a March 2021 Minnesota Oxcart fire to describe how 10 Tanker’s pricing is not always advantageous to

the government—fires in parts of the country where 10 Tanker does not have access to nearby bases that other

offerors had access to. Aero-Flite’s Cross-MJAR at 15–18; Tr. at 138:4–13. According to this argument, 10

Tanker’s VLATs might not always provide the lowest cost to the government because its air tankers’ very large size

prevents them from docking in smaller bases, which could force 10 Tanker to make longer and less-efficient trips to

fight certain fires. Id. at 138:14–16. Counsel for Aero-Flite also asserted at oral argument that 10 Tanker may not

always use its full payload, an assumption upon which 10 Tanker’s efficiency argument rested. Id. at 141:19–20.

Counsel for the government similarly noted: “10 Tanker does present a larger tank as being a larger aircraft;

however, the firefighting missions are unique, . . . and even with an initial attack, you have to make targeted drops.”

Id. at 46:22–47:2 (citing AR at 316).

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total overall price and weighed it against the technical ratings developed by the Technical

Evaluation Board.” Gov’t MTD & Cross-MJAR at 18. The USFS asserts it “followed a detailed

formula that incorporated several different metrics that together demonstrated what the

Government will actually pay with respect to the use of the air tankers” and this formula was

made clear in the solicitation. Id. While the solicitation noted the SSA may weigh other price

considerations, the solicitation was explicit about total overall price being the most important of

the SSA’s pricing considerations. Id.

The Federal Circuit holds, “[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., 586 F.3d at 1375 (quoting Motor Vehicle Mfrs. Ass’n,

463 U.S. at 43). The solicitation states, “price will be evaluated by using a combination of the

number of days awarded times the proposed availability rate plus an estimated number of flights

hours (250) times the proposed flight rate plus hourly fuel burn rate times the Jet A fuel price

($5.21 per gallon) to determine the total overall price per line item for evaluation purposes only.”

AR at 237 (solicitation). The solicitation also provides, “in addition to total overall price, the

Government will consider other price aspects, including price per gallon of retardant delivered

(total cost divided by number of gallons delivered with 250 drops per year); however, total

overall price will be the most important price consideration.” Id. The solicitation further notes

the agency will award the contract to the offeror “whose technical/cost relationship is the most

advantageous to the Government after a best value tradeoff analysis has occurred.” Id. at 452

(solicitation).

The USFS understood the solicitation’s formula to be a mandatory calculation in the best-

value determination, including cost per gallon. AR at 12932 (source selection decision). After

calculation, the agency explained why 10 Tanker’s proposal was not particularly valuable despite

its low price per gallon, when evaluating offerors’ total overall price weighed against technical

ratings. Id. (“While cost per gallon is an additional piece of information that we analyze, it

becomes an important differentiator when the total overall price is within a reasonable range

when comparing offers.”). The solicitation did not require the USFS to do more than merely

consider the offerors’ pricing information, such as calculating the overall price the Government

will actually pay. AR at 237 (solicitation). The agency properly followed the solicitation’s

formula in calculating overall price for each offeror and gave overall price the most weight in its

decision, in accordance with the solicitation’s terms. The agency’s best-value determination was

not contrary to law because it followed the terms of the solicitation in making its determination.

The agency explained while 10 Tanker had the lowest price per gallon at $4.73, “10 Tanker’s

total overall price is significantly higher than all other offerors,” with 10 Tanker offering

$55,606,875, while Neptune offered $40,080,650; Aero-Flite offered $40,194,305; Coulson

offered $41,528,725; and Erickson offered $35,250,765 per air tanker for an award of two air

tanker contracts. AR at 12577 (10 Tanker 30 October 2020 post-award debriefing), 12933. As

such, the agency ranked 10 Tanker last in the best-value determination because of its highest

overall price. Id. The government’s decision to consider price and technical factors in this way

was not contrary to law; rather, it was in accordance with the terms of the solicitation. See AR at

237 (solicitation). In asserting the agency failed to consider “the overall price the Government

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will actually pay,” plaintiff is protesting the weight the USFS placed on price per gallon.

Plaintiff conceded at oral argument overall cost was most important but argued this “does not

mean it could be treated as the only consideration of cost in a cost/technical relationship, and

dominate everything else.” Tr. at 137:1–4. The Court “can set aside the agency’s decision only

if it is ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.’”

Ala. Aircraft Indus., 586 F.3d at 1373 (citing 5 U.S.C. § 706(2)(A)). The agency is permitted to

exercise discretion in making its award decision because “the arbitrary and capricious standard

applicable here is highly deferential,” and plaintiff has failed to demonstrate that the

government’s award decision was “not in accordance with law.” Advanced Data Concepts, 216

F.3d at 1058 (citing Bowman Transp., 419 U.S. at 285); Ala. Aircraft Indus., 586 F.3d at 1373.

C. Whether the SSA Erred in Relying on a Mistake of Fact Regarding

Plaintiff’s “Price Premium”

Plaintiff argues the SSA made its “price premium” determination on a mistake of fact

because the government will never pay “33%-58%” more under a 10 Tanker contract than it

would under other offerors. Pl.’s MJAR at 31. The government responds by arguing 10 Tanker

“cannot demonstrate that the Forest Service acted arbitrarily or capriciously by weighing 10

Tanker’s overall price proposal against its technical factors” in accordance with the solicitation.

Gov’t MTD & Cross-MJAR at 20.

The Federal Circuit holds, “[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., 586 F.3d at 1375 (quoting Motor Vehicle Mfrs. Ass’n,

463 U.S. at 43). The solicitation provides the agency will award the contract to the offeror

“whose technical/cost relationship is the most advantageous to the Government after a best value

tradeoff analysis has occurred.” AR at 452 (solicitation). Plaintiff argues the agency failed to

consider this solicitation term when analyzing whether 10 Tanker’s overall cost and price per

gallon presented the best-value. Pl.’s MJAR at 32. The solicitation also provides, “total overall

price will be the most important price consideration.” AR at 237 (solicitation). The government

argues under the solicitation 10 Tanker “cannot show that using overall price . . . as the principal

price factor was arbitrary, because doing so was consistent with the solicitation criteria.” Gov’t

MTD & Cross-MJAR at 20.

The USFS understood 10 Tanker’s total cost estimate to be properly calculated according

to the formula, using the overall price and tanker size 10 Tanker provided. AR at 12933 (source

selection decision). The USFS detailed in its best-value determination its consideration of

overall price and ranking of offerors. Id. at 12932. The USFS reiterated in its determination,

“Total Overall Price was identified in the RFP as being the most important price consideration.”

Id. The USFS included tables and a detailed explanation of its consideration. Id. at 12933

(source selection decision). The agency reasoned, “based on the slight differences in technical

proposals, and that all offerors have acceptable technical proposals, there is no value in paying

the significantly higher price premium to award to 10 Tanker.” Id.

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The agency followed the solicitation’s requirements in considering overall cost as the

most important price consideration. AR at 452 (solicitation); see supra Section IV.A. When

asked at oral argument how plaintiff’s price premium argument differs from its previous

arguments, plaintiff responded, “it is a separate argument because it is simply an assertion that

the SSA made a mistake in factual conclusion during the evaluation process.” Tr. at 177:4–7.

Plaintiff’s arguments regarding price per gallon and price premium, however, both rest on

similar logic—10 Tanker’s price is most beneficial to the government if the agency affords price

per gallon significant weight. The agency’s contract award decision was based on the terms of

the solicitation and 10 Tanker’s significantly higher price. AR at 12933 (source selection

decision). Plaintiff asserts no “price premium” exists because “10 Tanker is doing 235–313%

more work than its competitors,” but the solicitation does not prioritize efficiency or gallon size

in its determination. Pl.’s MJAR at 31. The USFS understood 10 Tanker’s price premium to be

disadvantageous, despite its low price per gallon rate. AR at 12933 (source selection decision).

The Court “can set aside the agency’s decision only if it is ‘arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with law.’” Ala. Aircraft Indus., 586 F.3d at 1373

(citing 5 U.S.C. § 706(2)(A)). Based on the thoroughness of the agency’s decision regarding

overall price and the narrow arbitrary and capricious standard under which this Court reviews the

agency’s determination, the USFS’s rejection of 10 Tanker’s proposal due to its price premium

was not arbitrary and capricious as a matter of law. See Ala Aircraft Indus., 586 F.3d at 1375.

V. Blue & Gold Analysis

In addition to responding to plaintiff’s arguments on the merits, the government and

defendant-intervenors assert plaintiff’s arguments are time barred under the Federal Circuit’s

decision in Blue & Gold, which held: a plaintiff who “has the opportunity to object to the terms

of a government solicitation containing a patent error and fails to do so prior to the close of the

bidding process waives its ability to raise the same objection subsequently in a bid protest action

in the Court of Federal Claims.” Blue & Gold Fleet, L.P. v. United States, 492 F.3d 1308, 1313

(Fed. Cir. 2007). Absent such “a waiver rule, a contractor with knowledge of a solicitation

defect could choose to stay silent when submitting its first proposal,” and should it “lose[] to

another bidder, the contractor could then come forward with the defect to restart the bidding

process, perhaps with increased knowledge of its competitors.” Id. at 1314. Accordingly, the

Blue & Gold waiver rule “prevents contractors from taking advantage of the government and

other bidders, and avoids costly after-the-fact litigation.” Id.

Plaintiff in Blue & Gold alleged the agency erroneously analyzed the awardee’s proposal

to be financially advantageous for the government because the awardee’s proposal did not

comply with the Service Contract Act. Id. at 1312. The solicitation, however, did not apply the

Service Contract Act to the procurement. Id. The agency in Blue & Gold was required, by

statute, to “evaluate . . . proposals and make an award based solely on the factors specified in the

solicitation.” Id. at 1313 (quoting 10 U.S.C. § 2305(b)(1)). The Federal Circuit recognized the

claim was “properly characterized as a challenge to the terms of the solicitation,” despite

plaintiff’s argument its claim was “a challenge to the evaluation of [awardee’s] proposal.” Id.

According to the government, “it is clear that 10 Tanker’s protest amounts to nothing

more than a challenge to what it perceives is a patent error in the Forest Service’s pricing terms

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as laid out in the RFP.” Gov’t MTD & Cross-MJAR at 13. The government adds, “[w]ithin

each argument, 10 Tanker challenges the weight that the U.S. Forest Service placed on total

overall price compared to the weight given to price per gallon despite the express language of the

RFP.” Id. at 13–14. Specifically, the government asserts “the complaint should be dismissed.”

Id. at 13. Erickson argues “[p]ursuant to Rule 12(b)(6), all of the Plaintiff’s claims should be

dismissed” according to Blue & Gold and 28 U.S.C. § 1491(b). Erickson’s Cross-MJAR at 4–5

(quoting Blue & Gold, 492 F.3d at 1313). Aero-Flite similarly alleges “10 Tanker’s protest is a

direct challenge to th[e] language [of the solicitation,] which should have been raised prior to

award in a preaward protest and should now be dismissed as untimely.” Aero-Flite’s Cross-

MJAR at 8 (citing Blue & Gold, 492 F.3d at 1313).5

A. Plaintiff’s Price Per Gallon Argument as It Relates to Blue & Gold

Along with arguments on the merits, the government argues plaintiff’s assertion the

USFS failed to give price per gallon meaningful weight is time barred under Blue & Gold. Gov’t

MTD & Cross-MJAR at 14. The government asserts plaintiff’s “protest is an attempt by 10

Tanker to change the evaluation criteria or the manner in which the agency evaluates all offerors

to give them a clear advantage.” Gov’t MTD & Cross-MJAR at 17. The government explains,

“if 10 Tanker wanted more clarity on how the price per gallon would have been considered or

even if they felt that there was any ambiguity to the extent for which it would be considered, it

should have raised such concerns during the bidding process in a formal protest.” Id. The

government further asserts, “the Court should dismiss the bid protest in its entirety because 10

5

Erickson specifically requests the Court dismiss plaintiff’s claims according to the Blue & Gold waiver rule under

RCFC 12(b)(6), while the government and Aero-Flite do not specifically state which court rule to apply. Earlier this

year, Court of Federal Claims Judge Hertling considered application of the Federal Circuit’s Blue & Gold waiver

rule: “There is uncertainty whether the Blue & Gold Fleet waiver rule is jurisdictional. The defendant has moved to

dismiss either for lack of subject-matter jurisdiction under RCFC 12(b)(1) or, in the alternative, for failure to state a

claim under RCFC 12(b)(6).” SEKRI, Inc. v. United States, 152 Fed. Cl. 742, 751–52 (2021). Judge Hertling’s

decision in SEKRI continues:

Section 1491(b)(3) provides in full: “In exercising jurisdiction under this subsection, the courts

shall give due regard to the interests of national defense and national security and the need for

expeditious resolution of the action.” 28 U.S.C. § 1491(b)(3) (emphasis added). In other words,

once the plaintiff has established jurisdiction, § 1491(b)(3) limits the relief that can be granted,

requiring the court to “give due regard to . . . the need for expeditious resolution of the action.” See

id. The court, for example, cannot grant relief to a protestor who challenges the terms of a

solicitation years after the proposal deadline, even if the protestor's complaint is filed before the

statute of limitations. See 28 U.S.C. § 2501 (establishing the Tucker Act’s six-year statute of

limitations). Otherwise, the court would run counter to § 1491(b)(3)’s mandate. . . .

The court in Inserso describes the waiver rule as a limit on the protestor’s right to relief, not a limit

on jurisdiction. See Inserso [Corp. v. United States], 961 F.3d [1343,] 1352 [(Fed. Cir. 2020)].

Because the Court determines that the Blue & Gold Fleet waiver rule is not jurisdictional, the

defendant’s motion does not put jurisdiction in question. Accordingly, the Court will consider the

defendant’s motion to dismiss under RCFC 12(b)(6) for failure to state a claim upon which relief

can be granted.

Id. at 752–54. The Court will accordingly construe the government and defendant-intervenors’ Blue & Gold

arguments as requesting dismissal of plaintiff’s claims under RCFC 12(b)(6).

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Tanker’s challenges are to the agency’s evaluation criteria, not its best value determination,”

meaning 10 Tanker waived such challenges by not raising them before bidding. Id. At oral

argument, counsel for the government stressed, “10 Tanker didn’t raise these objections, even

though it was noted in their proposal, in their alternate proposal, in a question and answer, and,

again, noted from the understanding of the previous decision that was pulled back from the

corrective action that this is how they were going to be evaluated” regarding overall price. Tr. at

206:24–207:4.

Along with arguments on the merits, Aero-Flite argues, “10 Tanker ‘knew or should have

known’ prior to award about all of the bases for its current protest.” Aero-Flite’s Cross-MJAR at

9 (quoting Inserso Corp. v. United States, 961 F.3d 1343, 1350 (Fed. Cir. 2020)). Defendant-

intervenor Aero-Flite reasons “10 Tanker took a ‘wait and see’ approach that is fundamentally

unfair in order to gain an advantage.” Id. at 10 (quoting Peraton Inc. v. United States, 146 Fed.

Cl. 94, 102 (Fed. Cl. 2019))

Plaintiff argues the USFS failed to give price per gallon meaningful weight during the

best-value determination and used the closeness of overall price as an unstated criterion in its

evaluation. Pl.’s MJAR at 34; see supra Section IV.A. Plaintiff argues its “challenge to the

SSA’s application of an unstated inverse weighting [sic] scheme between overall price and price

per gallon is an allegation grounded in the RFP’s stated evaluation criteria, not a challenge to

those criteria.” Pl.’s Reply & Resp. at 14. Plaintiff further reasons it “cannot reasonably be said

to have waived this challenge to the SSA’s application of entirely unstated conditionally-

applicable evaluation method on the basis of the fact that 10 Tanker was not sufficiently

clairvoyant to predict that the SSA would do it.” Id. at 15. At oral argument, plaintiff argued,

“[w]e have never said in our MJAR briefing or in our complaint that price per gallon was the

only way to look at comparative costs.” Tr. at 216:10–12. Plaintiff further reasoned, “[i]f you

reframe [10 Tanker’s argument] and present it as a strawman that we are challenging the

weighting [sic] of overall price or trying to change the formula, it will be a Blue & Gold Fleet

issue, but it’s not what we’ve argued.” Id. at 215:14–18. Counsel for plaintiff did concede,

however, the solicitation’s formula favors LATs and as a result is unfair to VLATs like 10

Tanker’s fleet: “I would say that certainly the formula taken in isolation, out of context of the

rest of the evaluation, would lean towards favoring a plane with a smaller tank that burns less

fuel to fly.” Id. at 54:4–7; AR at 262–63 (solicitation). Replying to Aero-Flite’s arguments,

plaintiff asserted Inserso is different than this case because it is “related to the fairness of the

competitive ground-rules of the competition established in the RFP, and whether certain offerors

may have a built-in advantage due to other circumstances that foreseeably arose during the

procurement.” Pl.’s Reply & Resp. at 5 n.1.

The Federal Circuit explained the difference between patent and latent ambiguity in Per

Aarsleff, a 2016 case applying Blue & Gold:

A patent ambiguity is present when the contract contains facially inconsistent

provisions that would place a reasonable contractor on notice and prompt the

contractor to rectify the inconsistency by inquiring of the appropriate parties. By

contrast, [a] latent ambiguity is a hidden or concealed defect which is not apparent

on the face of the document, could not be discovered by reasonable and customary

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care, and is not so patent and glaring as to impose an affirmative duty on plaintiff

to seek clarification.

Per Aarsleff A/S v. United States, 829 F.3d 1303, 1312 (Fed. Cir. 2016) (internal quotation

marks and citations omitted).

Plaintiff could have “discovered by reasonable and customary care”—specifically by

reading the terms of the solicitation—the agency would weigh all technical factors as equal to

price and could have presented a lower overall cost—as defendant-intervenors did—to ensure its

price remained competitive. Id. Plaintiff understood the differences between the Next Gen 2.0

and 3.0 contracts before submitting its proposal and, consequently, could have objected to the

terms pre-award in taking issue with the best-value determination. See supra Section I.A; Blue

& Gold, 492 F.3d at 1313. While the Next Gen 2.0 contract gave more weight to technical

evaluation factors, the Next Gen 3.0 contract made price equal to all the technical components

combined. Tr. at 22:18–20; AR at 238 (solicitation). Plaintiff, however, is time barred from this

challenge because it had “the opportunity to object to the terms of a government solicitation . . .

prior to the close of the bidding process” and failed to do so. Blue & Gold, 492 F.3d at 1313.

In addition to recognizing this difference between contract evaluation schemes, plaintiff

acknowledges its history of filing pre-award protests, as opposed to post-award protests, related

to pricing. See AR at 12246 (plaintiff recognizes it has “fought for years” for a different pricing

methodology); Tr. at 80:20–21 (“There were no post-award protests 10 Tanker ever filed since

2020.”). Instead of challenging the solicitation prior to the close of the bidding process as it has

done in the past, 10 Tanker merely provided an alternate proposal suggesting another way to

calculate price, which made price per gallon the most important pricing factor. AR at 8362

(“Unless you believe that a gallon of retardant dropped from a DC-10 is less than half as

effective as retardant dropped from a LAT, it is undeniable that the best value for the

government must consider the delivered cost per gallon of retardant as the most important price

evaluation factor.”). Plaintiff understood how the Next Gen 3.0 algorithm functioned and how

the formula was unfavorable to larger aircrafts given its emphasis on overall cost, and plaintiff

was therefore on notice to file a pre-award protest. See Blue & Gold, 492 F.3d at 1313 (holding

a plaintiff who “has the opportunity to object to the terms of a government solicitation containing

a patent error and fails to do so prior to the close of the bidding process waives its ability to raise

the same objection subsequently in a bid protest action in the Court of Federal Claims.”).

Plaintiff at oral argument conceded the solicitation’s formula is unfavorable to VLATs like 10

Tanker. Tr. at 54:4–7 (“I would say that certainly the formula taken in isolation, out of context

of the rest of the evaluation, would lean towards favoring a plane with a smaller tank that burns

less fuel to fly.”). Plaintiff’s concession amounts to recognition that the formula was

disadvantageous to its tankers. As such, plaintiff’s protest and alternate proposal are inherent

recognitions of its dispute with the solicitation’s formula because they challenge how the agency

calculates overall price. At oral argument, plaintiff stated its alternate proposal was merely a

disagreement with the government’s priority, rather than a challenge to the solicitation: “It was a

stated opinion of 10 Tanker that . . . price per gallon in the opinion of 10 Tanker would be

something they should think more about.” Tr. at 62:23–64:1. Plaintiff further detailed,

“ultimately 10 Tanker assented to the terms of the RFP and complied with them,” in explaining

why it included an alternate proposal. Id. at 63:1–2. Accordingly, plaintiff “ha[d] the

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opportunity to object to the terms of a government solicitation containing [an alleged] patent

error and fail[ed] to do so prior to the close of the bidding process.” Per Aarsleff, 829 F.3d at

1312. As concluded in Section IV, supra, the government conducted a reasonable inquiry into

the best-value determination. Alternatively, the Court also finds plaintiff’s argument to be time

barred under Rule 12(b)(6) in this instance because plaintiff asks the Court to analyze how the

agency calculates price, challenging the terms of the solicitation, so the Court grants the

government’s and defendant-intervenors’ motions to dismiss according to RCFC 12(b)(6). See

Blue & Gold, 492 F.3d at 1313; Inserso, 961 F.3d at 1352; SEKRI, 152 Fed. Cl. at 751–54.

B. Whether Plaintiff’s Argument the Government’s Best-Value Determination

Is Contrary to Law Is Time Barred Under Blue & Gold

Along with responding on the merits, the government asserts 10 Tanker’s argument that

the agency’s best-value determination was contrary to law contests the terms of the solicitation

and is thus barred under Blue & Gold because “the offerors were on notice of the metrics that

would allow the agency to evaluate their pricing proposals.” Gov’t MTD & Cross-MJAR at 14

(citing AR at 443 (solicitation)). The government argues, “the error complained of is clearly

patent: the overall price formula presented directly in the solicitation.” Id. The government

asserts 10 Tanker should have raised its concern with the weight the solicitation required the

SSA to give to the overall price before the deadline for proposal, but instead waived such

arguments in failing to do so within the appropriate timeframe. Id. Plaintiff “cannot now, over a

year after the proposal submission deadline, complain that the solicitation terms do not

adequately allow for the agency to evaluate price.” Id.

Plaintiff’s MJAR argues the agency’s best-value determination is contrary to law because

the CICA and the FAR require an agency’s “primary concern” to be “the overall price the

Government will actually pay” in making an award. Pl.’s MJAR at 20 (quoting 41 U.S.C.

§ 3306(c)(1)(B); FAR § 15.405(b)); see supra Section IV.B. The solicitation states, “price will

be evaluated by using a combination of the number of days awarded times the proposed

availability rate plus an estimated number of flights hours (250) times the proposed flight rate

plus hourly fuel burn rate times the Jet A fuel price ($5.21 per gallon) to determine the total

overall price per line item for evaluation purposes only.” AR at 237 (solicitation). The

solicitation also provides, “in addition to total overall price, the Government will consider other

price aspects, including price per gallon of retardant delivered (total cost divided by number of

gallons delivered with 250 drops per year); however, total overall price will be the most

important price consideration.” Id. The solicitation formula thus explains how the agency

calculates overall price and how it puts the most weight on overall price compared to other

pricing factors. Id. The agency properly followed the solicitation’s formula in calculating

overall price for each offeror and gave overall price the most weight, according to the

solicitation’s terms. The agency explained while 10 Tanker had the lowest price per gallon at

$4.73, “10 Tanker’s total overall price is significantly higher than all other offerors,” with 10

Tanker offering $55,606,875, while Neptune offered $40,080,650; Aero-Flite offered

$40,194,305; Coulson offered $41,528,725; and Erickson offered $35,250,765 per air tanker for

an award of two air tanker contracts. AR at 12577 (10 Tanker 30 October 2020 post-award

debriefing), 12933. The agency ranked 10 Tanker last in the best-value determination because of

its highest overall price. Id. Despite the USFS correctly following the solicitation and plaintiff’s

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protest thereof, plaintiff asserts, “10 Tanker has not alleged that [patent] errors exist in the Next

Gen 3 RFP.” Pl.’s Reply & Resp. at 8. Plaintiff reasons the solicitation “neither state[s] nor

impl[ies] that [the] USFS would ignore the mandatory requirement to consider ‘the overall price

the Government will actually pay’ under those competing Next Gen 3 proposals as part of the

best value analysis.” Id. (quoting 41 U.S.C. § 3306(c)(1)(B); FAR § 15.405(b)).

At the time of the solicitation, plaintiff could have “discovered by reasonable and

customary care” that the agency would prioritize overall price in its best-value determination as

stated in the solicitation, as opposed to price per gallon or the “price the Government will

actually pay.” Per Aarsleff, 829 F.3d at 1312. The USFS properly followed the solicitation’s

algorithm in calculating overall price and prioritizing overall price over other pricing factors.

AR at 237 (solicitation), 12483 (best-value determination); see supra Section IV.B. Plaintiff

could have objected to the terms of the best-value tradeoff pre-award because it was aware of the

formula’s weight on overall price before it submitted its offer. Instead, the plaintiff brought the

protest too late to object to the terms of the solicitation. See Blue & Gold, 492 F.3d at 1313. If

plaintiff’s disagreement is ultimately with the weight the government put on plaintiff’s total

price, then plaintiff takes issue with the formula by which the agency is bound, rather than the

agency’s evaluation process. The Court finds plaintiff “ha[d] the opportunity to object to the

terms of a government solicitation containing [an alleged] patent error and fail[ed] to do so prior

to the close of the bidding process.” Per Aarsleff, 829 F.3d at 1312. As the Court concluded in

Section IV, supra, the government conducted a reasonable inquiry into the best-value

determination. Alternatively, the Court also finds plaintiff’s argument to be time barred because

plaintiff asks the Court to analyze whether the agency appropriately calculated price, a challenge

to the terms of the solicitation; the Court thus grants the government’s and defendant-

intervenors’ motions to dismiss according to RCFC 12(b)(6) on this argument. See Blue & Gold,

492 F.3d at 1313; Inserso, 961 F.3d at 1352; SEKRI, 152 Fed. Cl. at 751–54.

C. Whether Plaintiff’s “Price Premium” Mistake of Fact Argument Is Time

Barred Under Blue & Gold

The government further asserts 10 Tanker’s argument that the SSA was mistaken in

finding 10 Tanker had a price premium “fails to confront the language of the solicitation that

expressly states ‘overall price is the most important factor.’” Gov’t MTD & Cross-MJAR at 15

(quoting AR at 451 (solicitation)). The government notes 10 Tanker was “on actual notice that

the agency did not intend to prioritize price or cost per gallon in its evaluation” because the

agency “informed all offerors that it did not intend to amend its evaluation criteria for price”

during the amendment process. Gov’t MTD & Cross-MJAR at 16. Plaintiff was on notice of the

agency’s evaluation criteria not only because of the solicitation’s explicit language, but also

because the agency made its evaluation criteria emphasizing overall price over cost per gallon

clear during the amendment process. Id. at 16. Erickson cites this court’s decision in Linc for

the proposition that the agency’s compliance with the solicitation formula was rational, arguing

there is no exact “language that constrains or even addresses the precise method that a procuring

agency must use in evaluating either price or cost.” Erickson’s Cross-MJAR at 13 (quoting Linc

Gov’t Servs., LLC v. United States, 96 Fed. Cl. 672, 713 (2010)). Counsel for Erickson asserted

at oral argument: “As mandated by the solicitation, and as mandated by controlling law from the

Federal Circuit that says that the FAR doesn’t tell the government how it has to evaluate price

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and what it has to value, and it’s not the province of the Court to tell the government that.” Tr. at

176:8–13.

Plaintiff argues the agency relied on a mistake of fact in stating 10 Tanker’s overall price

constituted a “price premium” because 10 Tanker’s proposal will never cost the Government

more than other offerors’ proposals. Pl.’s MJAR at 31; see supra Section IV.C. Plaintiff

responds to the timeliness arguments by arguing it alleges a mistake of fact on the part of the

government, rather than challenging the terms of the solicitation, since, according to plaintiff, the

SSA did not show why 10 Tanker’s proposal will ever cost the Government more “when

weighed against the working assumptions of the RFP about how aircraft will operate.” Pl.’s

Reply & Resp. at 12. Plaintiff reasons “the assumed equivalence of ‘Overall Price’ and what the

Government would have to ‘pay’ the contractors has no grounding in the RFP or common

sense.” Id. at 13. Plaintiff further argues “the conclusion that pricing differences born of an

apples-to-oranges calculation of workload constitutes a ‘price premium’ that the Government

will be required to ‘pay’ is simply wrong as a matter of basic fact.” Id. at 14. At oral argument,

counsel for plaintiff argued the solicitation “required a technical/cost tradeoff assessment,” and

“the government . . . is required under the FAR to consider what the cost the government is

actually going to pay.” Id. at 160:3–8. Counsel for plaintiff further explained at oral argument

the solicitation requires air tankers to carry a full load, contrary to the government’s suggestion,

and “whether hypothetically or theoretically, there is a scenario once in a while where someone

might not drop their full tank [is] . . . not really the issue.” Id. at 57:3–6.

At the time of the solicitation, plaintiff could have “discovered by reasonable and

customary care” the agency would prioritize overall price over price per gallon in its best-value

determination. Per Aarsleff, 829 F.3d at 1312. Plaintiff also could have objected at the pre-

award stage to the agency’s pricing formula and how it would calculate 10 Tanker’s offer. See

Blue & Gold, 492 F.3d at 1313. Instead, plaintiff merely offered a greater price, as compared to

its competitors, and when the USFS received the offer detail, the USFS applied it to the

solicitation-mandated formula. See supra Section V.B. The Court finds plaintiff “ha[d] the

opportunity to object to the terms of a government solicitation containing [an alleged] patent

error and fail[ed] to do so prior to the close of the bidding process.” Per Aarsleff, 829 F.3d at

1312. As the Court concluded in Section IV, supra, the government conducted a reasonable

inquiry into the best-value determination. Alternatively, the Court also finds plaintiff’s argument

to be time barred because plaintiff asks the Court to analyze how the agency calculates price, a

challenge to the terms of the solicitation; the Court thus grants the government’s and defendant-

intervenor’s motions to dismiss according to RCFC 12(b)(6) on this argument. See Blue & Gold,

492 F.3d at 1313; Inserso, 961 F.3d at 1352; SEKRI, 152 Fed. Cl. at 751–54.

VI. Injunctive Relief

Plaintiff seeks a permanent injunction. See Pl.’s MJAR at 37. The Court considers the

following factors when determining whether to issue a permanent injunction: “(1) whether . . .

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.

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Cir. 2004). According to the first factor, plaintiff is not entitled to injunctive relief because

plaintiff does not prevail on the merits. The Court therefore does not consider the remaining

factors. Info. Tech. & Apps. Corp. v. United States, 51 Fed. Cl. 340, 357 n.32 (2001), aff’d, 316

F.3d 1312 (Fed. Cir. 2003) (“Absent success on the merits, the other factors are irrelevant.”).

VII. Conclusion

For the foregoing reasons, the Court DENIES plaintiff’s motion for judgment on the

administrative record, GRANTS the government’s and defendant-intervenors’ cross-motions for

judgment on the administrative record, and alternatively GRANTS the government’s and

defendant-intervenors’ motions to dismiss according to RCFC 12(b)(6). The Clerk is directed to

enter judgment accordingly.

IT IS SO ORDERED.

s/ Ryan T. Holte

RYAN T. HOLTE

Judge

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