Golden It, LLC v. United States

In the United States Court of Federal Claims

No. 21-1966C

(Filed Under Seal: January 18, 2022)

(Filed: February 4, 2022)

)

GOLDEN IT, LLC, )

)

Plaintiff, )

)

v.

)

THE UNITED STATES, )

)

Defendant, )

)

and )

)

SPATIAL FRONT, INC., )

)

Defendant-

Intervenor. )

)

Jon D. Levin, Maynard, Cooper & Gale, P.C., Hunstville, AL, for Plaintiff. With him on

the briefs were W. Brad English, J. Dale Gibson, Emily L. Chancey, Joshua B. Duvall, and

Nicholas P. Greer.

Bret R. Vallacher, Commercial Litigation Branch, Civil Division, United States

Department of Justice, Washington, D.C., for Defendant. With him on the briefs were

Brian M. Boynton, Acting Assistant Attorney General, Civil Division, Patricia M.

McCarthy, Director, and Douglas K. Mickle, Assistant Director, Commercial Litigation

Branch, Civil Division, United States Department of Justice, Washington, D.C. Of

counsel was Wilmary Bernal, Contract Law Division, Office of General Counsel, United

States Department of Commerce, Washington, D.C.

Katherine Burrows, PilieroMazza PLLC, Washington, D.C., for Defendant-Intervenor. Of

counsel were Jonathan T. Williams, Samuel F. Finnerty, and Patrick T. Rothwell.

OPINION AND ORDER*

SOLOMSON, Judge.

The first population count of the United States began in 1790 under President

George Washington.1 The 1790 count was, by today’s standards, a rudimentary affair

— a mere “single schedule calling for only two or three details as to the color, sex, and

age of the population.”2

In contrast, the modern census is “a massive undertaking,” complete with

resources available in 59 languages and including “brochures, posters, factsheets, and

social media toolkits.”3 The 2020 census cost the federal government upwards of $14

billion to complete.4 The data produced by today’s United States Census Bureau

comprises “the primary source of statistics” regarding our nation’s economy and

population.5 See ECF No. 44, Corrected Administrative Record (“AR”) 1215. Over time,

the Census Bureau “has become increasingly reliant upon information technology” to

maintain and improve the quality of its data. Id. As part of that effort, the Census

Bureau’s Geography Division maintains the Master Address File/Topologically

Integrated Geographic Encoding and Referencing System (“MAF/TIGER System”),

which is comprised of various software applications and databases that integrate spatial

and address data from “more than 40,000 tribal, state, and local governments.”

AR 1215–16.

In this post-award bid protest, Plaintiff, Golden IT, LLC (“Golden”) challenges

the decision of Defendant, the United States, acting by and through the Department of

*On January 18, 2022, the Court filed, under seal, this opinion and order and provided the

parties the opportunity to propose redactions. On February 3, 2022, the parties filed proposed

redactions, ECF Nos. 56, 57, which this Court adopts, in part, and accordingly reissues this

public version of this opinion and order.

11790 Overview, United States Census Bureau,

https://www.census.gov/history/www/through_the_decades/overview/1790.html (last

visited Jan. 7, 2021).

2Carroll D. Wright, The History and Growth of the United States Census, S. Doc. No. 56-194, at 8

(1st Sess. 1900); see also id. at 13 (noting, of the 1790 population count, that “in the modern sense

of the term it can not truthfully be called a census”).

32020 Decennial Census Program Management, United States Census Bureau,

https://www.census.gov/programs-surveys/decennial-census/decade/2020/planning-

management.html (last visited Jan. 7, 2021).

4U.S. Gov’t Accountability Off., GAO-21-478, 2020 Census: Innovations Helped with

Implementation, but Bureau Can Do More to Realize Future Benefits 6 (2021).

5In addition to the decennial census, the Census Bureau “also conducts a census of all business

establishments and of all governmental units . . . every five years.” AR 1215.

2

Commerce and the Geography Division of the United States Census Bureau (“Census”

or the “Agency”), to award a single-award Blanket Purchase Agreement (“BPA”) with

five one-year options to Defendant-Intervenor, Spatial Front, Inc. (“SFI”) for general IT

support for the MAF/TIGER System and related programs. Golden objects to the

award to SFI as arbitrary, capricious, and otherwise contrary to law. The parties filed

cross-motions for judgment on the administrative record pursuant to Rule 52.1 of the

Rules of the United States Court of Federal Claims (“RCFC”).

For the reasons explained below, the Court GRANTS the pending motions to

supplement the administrative record. The Court further GRANTS the government’s

and Defendant-Intervenor’s respective motions for judgment on the administrative

record. The Court DENIES Golden’s motion for judgment on the administrative

record.

I. PROCEDURAL BACKGROUND

Seeking a full range of IT support for the MAF/TIGER System and associated

programs, Census initiated a two-phase procurement on April 14, 2021. AR 1304.

Phase I entailed selecting the “Best Qualified Vendors” from the responses submitted to

a series of preliminary questions. AR 661 (Technical Evaluation Team Phase I Report),

AR 1304. On April 19, 2021, Census received responses from four vendors — Golden;

SFI; [ * * * ]; and [ * * * ]. AR 661. Census’s Technical Evaluation Team recommended all

four vendors to proceed to Phase II of the procurement. AR 665.

In Phase II, which began on April 22, 2021, Census invited the vendors to submit

responses to Request for Quote (“RFQ”) No. 1333LB21Q00000003 (the “Solicitation”) to

award a BPA with a one-year base period and five one-year options. AR 1204, 1258,

1304. Though the government planned to issue most call orders to the eventual

awardee after award, “with more specifically described needs as they arise,” AR 1212,

the Solicitation provided that Census would award both the BPA and first call order

simultaneously. AR 1303, 1310. Census estimated the total value of the BPA to be $98

million and designated the Solicitation as a set-aside for Women-Owned Small

Businesses and/or Service-Disabled Veteran-Owned Small Businesses pursuant to

FAR 8.405-3 under the General Services Administration’s (“GSA”) Multiple Award

Schedule (“MAS”) program. AR 1211, 1213.6

6See FAR 8.401 (“Ordering activity means an activity that is authorized to place orders, or

establish blanket purchase agreements (BPA), against the General Services Administration’s

(GSA) Multiple Award Schedule contracts.”); FAR 8.402(f) (specifying how, “[f]or

administrative convenience, an ordering activity contracting officer may add items not on the

Federal Supply Schedule (also referred to as open market items) to a Federal Supply Schedule

[BPA] or an individual task or delivery order”); FAR 8.405-3 (“Blanket purchase agreements”);

FAR 8.405-5 (providing ordering activity with discretion to set aside BPAs and orders).

3

The RFQ required that quotes include two parts, which were to be submitted

simultaneously: “Technical” (referred to as either “Part 1” or “Volume 1”) and “Price”

(referred to as either “Part 2” or “Volume 2”). AR 1311.7 The Technical Part was

comprised of three evaluation factors: “Management Approach for Master BPA”

(“Factor 1”); “Similar Experience and Past Performance” (“Factor 2”); and “Call Order

0001 — Technical” (“Factor 3”). AR 1311. Factor 2, in turn, had two subfactors:

“Similar Experience” (“Subfactor 2A”) and “Past Performance” (“Subfactor 2B”). Id.

Factor 3 also had two subfactors: “Technical Approach for Call Order 0001” (“Subfactor

3A”) and “Call Order 0001 Key Personnel” (“Subfactor 3B”). Id. Following a series of

RFQ amendments, Census issued a revised, conformed Solicitation on May 14, 2021.

AR 2858–59. Quotes were due on May 20, 2021. AR 2757–58.

Census received timely quotes from all four vendors invited to participate in

Phase II. AR 2859; see also AR 1446–72 (Golden); AR 1473–1652 ([ * * * ]); AR 1653–1818

(SFI); AR 1819–2022 ([ * * * ]). Census awarded the BPA, along with the first call order,

to SFI on September 22, 2021. AR 2881–82.

On October 5, 2021, Golden filed its initial complaint, ECF No. 1, and a motion

for preliminary injunction (“PI Motion”), ECF No. 6, against the United States in this

Court. The next day, SFI filed a motion to intervene, ECF No. 14, which this Court

granted, Minute Order (Oct. 6, 2021). The Court held a telephonic preliminary status

conference on October 6, 2021, to discuss, among other things, Golden’s PI Motion. ECF

No. 13; Minute Order (Oct. 6, 2021). During the status conference, the parties

represented that the government agreed to stay performance of the BPA award (and the

first call order) through December 16, 2021. See ECF No. 16 (October 7, 2021, joint status

report). Accordingly, the Court noted in its Order dated October 7, 2021 that “[t]he

Court understands that the voluntary stay agreement will be without prejudice to

Plaintiff should Plaintiff succeed on the merits of its protest and seek permanent

injunctive relief” and that “[i]f the Court correctly understands the voluntary stay

agreement, Plaintiff shall either withdraw its motion for a preliminary injunction or

inform the Court that the motion should be denied as moot.” ECF No. 17 at 2. On

October 13, 2021, Golden filed a notice requesting that the Court enter an order denying

as moot Golden’s PI Motion. ECF No. 30. Accordingly, the Court denied Golden’s PI

Motion. Minute Order (Oct. 13, 2021).8

7See also AR 1310 (instructing that the “quote shall be submitted in Two (2) Parts, Part 1 –

Technical and Part 2 – Price”).

8At the conclusion of oral argument on the motions for judgment on the administrative record,

the government represented that it would extend its stay of performance of the BPA and first

call order to January 14, 2022. ECF No. 52, Oral Argument Transcript (“Tr.”) at 131:18–132:11.

4

The government filed the administrative record on October 15, 2021. ECF

No. 32.9 On October 20, 2021, Golden filed an amended complaint. ECF No. 33 (“Am.

Compl.”). In its amended complaint, Golden alleged: (1) SFI’s quote failed to meet a

material term of the Solicitation by failing to provide the required years of experience

for four of the Solicitation’s 26 Labor Categories (“LCATs”) and, thus, was

unawardable, Am. Compl. ¶¶ 61–68 (Count One); (2) Census’s “evaluation of Factors 1

and 2 was unreasonable, arbitrary, capricious, and otherwise contrary to law” and a

proper evaluation of those factors “would have placed Golden IT ahead of Spatial

Front,” id. ¶¶ 69–82 (Count Two); (3) Census’s evaluation of Factor 3 was

“unreasonable, arbitrary, capricious, and otherwise contrary to law” because, among

other reasons, SFI improperly “proposed Mr. [JH] as a key person” because “Mr. [JH]

took a position with [another company] before Spatial Front submitted its quote and

four months before Spatial Front received an award,” id. ¶¶ 83–92 (Count Three); and

(4) Census’s best value analysis was arbitrary and capricious, id. ¶¶ 93–95 (Count Four).

Golden filed its motion for judgment on the administrative record on October 29,

2021. ECF No. 37 (“Pl. MJAR”). The government and SFI filed cross-motions for

judgment on the administrative record on November 12, 2021. See ECF Nos. 42 (“Def.

MJAR”), 43 (SFI’s MJAR). The parties filed timely reply briefs. See ECF Nos. 46 (“Pl.

Reply”), 48 (“Def. Reply”), 49 (SFI’s Reply).

All three parties moved to supplement the administrative record prior to oral

argument. On October 26, 2021, Golden moved to supplement the record with a

purported “copy of the LinkedIn profile of Spatial Front’s proposed key personnel,

[JH].” ECF No. 34 at 1. The Court stayed the briefing schedule on that motion, ordering

the parties to “be prepared to address this motion during the eventual oral argument.”

ECF No. 35 at 1. While the Court allowed the parties to “cite the document Golden IT

seeks to have added to the administrative record” in their briefs, the Court cautioned

that such permission “constitutes no guarantee of whether, or for what purpose, the

Court ultimately may consider the documents in question.” Id. at 1–2.

SFI filed its motion to supplement the record on November 12, 2021. ECF No. 40.

SFI sought to include (1) “a Declaration of [JD], [SFI’s] Vice President, Human

Resources and Contracts”; and (2) “a letter of commitment from Mr. [JH] . . . stating that

he remains committed and available to serve as the Information Specialist–Knowledge

Engineer position under the RFQ, as proposed by SFI.” Id. at 3. No party filed,

attempted to file, or sought leave to file responses in opposition to that motion.

9On October 8, 2021, SFI filed a motion to dismiss Golden’s complaint pursuant to RCFC

12(b)(6). ECF No. 18. The Court denied the motion, without prejudice, on October 13, 2021,

because, among other reasons, SFI had “agreed to a briefing schedule with the other parties,

pursuant to which the government will file the administrative record later this week” and “that

schedule already provides time for Golden IT to file an amended complaint.” ECF No. 31 at 1.

5

Finally, on November 12, 2021, the government filed an unopposed motion to

correct the administrative record. ECF No. 41. The government noted that “Census’s

Contract Specialist inadvertently failed to send to us two one-page documents when

compiling the administrative record,” and thus the government filed its motion “to

include the accompanying documents.” Id. at 1. The Court granted the unopposed

motion, Minute Order (Nov. 15, 2021), and the government corrected the administrative

record on November 15, 2021, ECF No. 44.

The Court held oral argument on the parties’ various motions on December 14,

2021. ECF Nos. 50, 52 (“Tr.”).

II. JURISDICTION AND STANDARD OF REVIEW

The Tucker Act, as amended by the Administrative Dispute Resolution Act of

1996, Pub. L. No. 104-320, 110 Stat. 3870, provides this Court with “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). “An

interested party is an actual or prospective bidder whose direct economic interest

would be affected by the award of the contract.” Digitalis Educ. Sols., Inc. v. United

States, 664 F.3d 1380, 1384 (Fed. Cir. 2012).

No party challenges either the Court’s jurisdiction or Golden’s standing in this

case. Nevertheless, the Court has an independent duty to determine that it has

jurisdiction over this matter and that Golden has standing to pursue its action. The

Court finds that it has jurisdiction and that Golden has standing: Golden was an actual

offeror, as it submitted a timely quote prior to the RFQ’s deadline; and, Golden alleges

facts demonstrating that, but for Census’s various errors in conducting the

procurement, Golden would have had a not insubstantial chance at receiving the BPA

and the first call order. Info. Tech. & Applications Corp. v. United States, 316 F.3d 1312,

1319 (Fed. Cir. 2003); Aero Spray, Inc. v. United States, -- Fed. Cl. --, 2021 WL 5023371, at

*16 (Fed. Cl. Oct. 28, 2021).

Judgment on the administrative record, pursuant to RCFC 52.1, “is properly

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

v. United States, 404 F.3d 1346, 1356 (Fed. Cir. 2005). The Rule requires the Court “to

make factual findings from the record evidence as if it were conducting a trial on the

record.” Id. at 1354. Accordingly, this Court asks whether, given all the disputed and

undisputed facts, a party has met its burden of proof based on the evidence contained

in the administrative record. Id. at 1356–57.

6

Generally, in an action brought pursuant to § 1491(b) of the Tucker Act, the

Court reviews “the agency’s actions according to the standards set forth in the

Administrative Procedure Act, 5 U.S.C. § 706.” See Nat’l Gov’t Servs., Inc. v. United

States, 923 F.3d 977, 981 (Fed. Cir. 2019). That APA standard, in turn, requires the Court

to determine “whether the agency’s action was arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with law.” Id. (citing 5 U.S.C. § 706(2)). In

other words, the Court must “determine whether ‘(1) the procurement official’s

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

of regulation or procedure.’” Id. (quoting Weeks Marine, Inc. v. United States, 575 F.3d

1352, 1358 (Fed. Cir. 2009)). “When a challenge is brought on the first ground, the test is

whether the contracting agency provided a coherent and reasonable explanation of its

exercise of discretion, and the disappointed bidder bears a heavy burden of showing

that the award decision had no rational basis.” Banknote Corp. of Am., Inc. v. United

States, 365 F.3d 1345, 1351 (Fed. Cir. 2004) (internal citation marks omitted). “When a

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

and prejudicial violation of applicable statutes or regulations.’” Impresa Construzioni

Geom. Domenico Garufi v. United States, 238 F.3d 1324, 1333 (Fed. Cir. 2001) (quoting

Kentron Hawaii, Ltd. v. Warner, 480 F.2d 1166, 1169 (D.C. Cir. 1973)).

To establish prejudice on the merits in a post-award challenge, a plaintiff must

further demonstrate that “but for the alleged error, there was a substantial chance that it

would receive an award — that it was within the zone of active consideration.” Allied

Tech. Grp., Inc. v. United States, 649 F.3d 1320, 1326 (Fed. Cir. 2011) (brackets omitted)

(quoting Statistica, Inc. v. Christopher, 102 F.3d 1577, 1581 (Fed. Cir. 1996)); see also Oak

Grove Techs., LLC v. United States, 155 Fed. Cl. 84, 98 (2021) (discussing standard of

review and showing of prejudice in bid protest cases).

III. THE COURT GRANTS THE PARTIES’ RESPECTIVE MOTIONS TO

SUPPLEMENT THE ADMINISTRATIVE RECORD

The Court is mindful that, ordinarily, documents or other evidence not

considered by an agency in the course of a procurement decision should not be added

to the administrative record that the government files with the Court in response to an

action pursuant to 28 U.S.C. § 1491(b). But, as this Court has recognized, not every

procurement-related dispute is so straightforward:

But what is a plaintiff supposed to do . . . when the record

necessarily lacks relevant documentation given the nature of

the specific claims at issue? In such circumstances, a plaintiff

typically will file a motion to add documentation to the

administrative record. Such motions can be categorized into

two types: “[s]upplementing the administrative record in an

APA case means adding material to the volume of documents

the agency considered, while admitting extra-record evidence

7

means adding material outside of or in addition to the

administrative record that was not necessarily considered by

the agency.” Safari Club Int’l v. Jewell, 111 F. Supp. 3d 1, 4

(D.D.C. 2015) (citing Pac. Shores Subdiv. Cal. Water Dist. v. U.S.

Army Corps of Eng’rs, 448 F. Supp. 2d 1, 5 (D.D.C. 2006)); see

SOSS2, Inc. v. United States Army Corps of Eng’rs, 403 F. Supp.

3d 1233, 1237 (M.D. Fla. 2019) (“To supplement the

administrative record means to permit review of material that

the agency considered but failed to include.”).

Naval Sys., Inc. v. United States, 153 Fed. Cl. 166, 178 (2021) (emphasis added).

In this case, the Court concludes that it makes no difference how Golden’s or

SFI’s respective motions to add material to the administrative record are characterized.

Either way, one of Golden’s claims in this matter is that SFI improperly received a

contract award due to SFI’s misrepresentation of a proposed key personnel. See Am.

Compl. ¶¶ 89–92; Pl. MJAR at 20–24. That claim necessitates this Court’s consideration

of evidence that is not contained in the administrative record and, indeed, that no one

could reasonably expect to be contained in the administrative record. In that regard, to

the extent any party opposed Golden’s or SFI’s respective motions to add material to

the administrative record, no one explained during oral argument how this Court could

possibly evaluate a plausible misrepresentation claim based upon only the evidence in

the government’s possession. See, e.g., Tr. 40:15–25 (government agreeing that, in

general, “you’d have to show the Court through some extra-record process that

whatever the offeror asserted in the proposal is false”); Tr. 28:17–29:6 (SFI agreeing that

a material misrepresentation claim ordinarily would require “extra-record evidence”

but arguing that “the extra-record evidence that’s being presented here doesn’t state

anything specific”).

Given the nature of Golden’s misrepresentation argument, this Court would be

remiss if it did not permit the evidence in question to be added to the record. Naval

Sys., Inc., 153 Fed. Cl. at 182 (2021) (“These are precisely the type of circumstances in

which extra-record evidence should be considered.” (citing VSolvit, LLC v. United States,

151 Fed. Cl. 678, 686 (2020))); see also Orion Int’l Techs. v. United States (Orion I), 60 Fed.

Cl. 338, 343 (2004) (“[T]he record may be supplemented with . . . relevant information

that by its very nature would not be found in an agency record . . . .”).

Accordingly, the Court grants the parties’ respective pending motions to

supplement the administrative record.10

10In any event, no party is prejudiced by this Court’s granting the pending motions to

supplement the record. As discussed below, the government and SFI prevail notwithstanding

this Court’s consideration of Mr. [JH]’s LinkedIn profile; SFI’s materials generally are just as

8

IV. FINDINGS OF FACT11

A. The Solicitation

The Solicitation provided that Census would make an award based on “Best

Value principles,” meaning that Census would award the BPA (and the associated first

call order) to “the responsible Quoter whose quote provides the greatest overall value

to the Government, price and all other factors considered.” AR 1329. The technical

evaluation consisted of a determination of strengths, weaknesses, and risks for each

quote. AR 1330. All technical factors were “equal in importance.” AR 1329. Similarly,

all subfactors within each technical factor were given equal weight, as well. Id. The

Solicitation provided that “the Government is more concerned with obtaining superior

technical capabilities than with making an award at the lowest overall price to the

Government.” Id. Accordingly, the Solicitation advised quoters “that the technical

evaluation factors are significantly more important than price.” Id.

1. Part 1, Technical Factor 1 — Management Approach for BPA

Under Technical Factor 1, the Solicitation instructed quoters to describe their

respective plans to manage the BPA and each call order. AR 1318. Specifically, each

quoter had to: (1) provide details regarding how it would communicate with Census

management; (2) describe the policies, procedures, and techniques the quoter would

employ to ensure cost-effective and quality performance; and (3) articulate an approach

to meet the requirements under the BPA’s three Functional Areas.12 Id.

Each quoter was required to address several items, including its “planned

process for submitting deliverables and work products to the Government,” any risks

associated with meeting the Functional Area requirements, and “[a]pproach[es] to

support the [Agency] as needs arise.” AR 1318–19.

The Solicitation provided that the Agency would “consider strengths,

weaknesses, and risks of the Quoter’s approach in addressing” various requirements of

the Solicitation — including, as relevant to this protest, whether each quoter’s proposal

helpful to Golden. In short, while the Court has considered all of the parties’ additional

documents, none of them alter the outcome of this case.

11This background section constitutes the Court’s findings of fact drawn from the

administrative record. Bannum, Inc., 404 F.3d at 1353–54; see also supra Section II. Additional

findings of fact are contained in Section V.

12The Solicitation specified three “Functional Areas” for which the government would issue call

orders: (1) Geography Support Services (Functional Area 0001); (2) BPA and Call Order

Program and Project Management (Functional Area 0002); and (3) Geography Project Support

(Functional Area 0003). See AR 1217–18.

9

completely and accurately met the government’s requested LCATs and their specified

descriptions, as well as the “[c]omprehensiveness and feasibility of the Quoter’s

proposed Draft Master BPA: Incoming Transition Plan.” AR 1330–31.

2. Part 1, Technical Factor 2 — Experience and Past Performance

Technical Factor 2 consisted of two subfactors: “Similar Experience” (2A) and

“Past Performance” (2B). AR 1311.

Under Subfactor 2A, Similar Experience, quoters had to provide three contract

references that “have been performed, or are currently being performed, not older than

July 1, 2017, and are of similar size, scope, and complexity to the work required by this

RFQ.” AR 1319. Quoters were permitted to supplement experience by including up to

two “demonstrated experiences by any proposed subcontractors.” AR 1319.

As relevant to this protest, the Solicitation provided the following definitions for

scope and complexity:

Scope: Quoter provided support simultaneously for multiple

projects and/or services for national consumption and

national impact.

Complexity: Quoter supported organizations comprised of 5–

10 large complex programs aligned to support organizational

mission and supported by several semi-independent business

units. Large, diverse workforce operating from multiple

locations and field offices effectively using advanced

information technology. Demonstration that the work was

successfully coordinated with other contractors and that

risks/problems were successfully addressed.

AR 1319. Quoters were permitted to include contracts on which they had performed (or

on which they were performing) as either a prime contractor or subcontractor. Id.

3. Part 1, Technical Factor 3 — Call Order 0001 — Technical

Technical Factor 3 consisted of two subfactors, including: “Technical Approach

for Call Order 0001” (3A) and “Call Order 0001 Key Personnel” (3B). AR 1311. Under

Subfactor 3A, quoters were to “present an approach to demonstrating the ability and

the understanding of the Quoter to successfully accomplish all requirements for Call

Order #0001.” AR 1321. The RFQ instructed quoters to provide “an approach that

provides high availability and scalability for processing of geospatial data in support of

[the] MAF/TIGER system.” AR 1322. Quoters also were required to provide various

deliverables under Subfactor 3A. Id.

10

The Solicitation identified six key personnel for Call Order 0001, including the

“Information Specialist / Knowledge Engineer” position. AR 1370. Under Subfactor

3B, covering key personnel, quoters had to provide “the descriptions of proposed key

personnel who have been committed to perform on Call Order #0001.” AR 1322. The

Solicitation also provided that, “[a]t a minimum, this shall include the Quoter[’]s Call

Order Key Personnel staff required in the Call Order, and any other staff the Quoter

identifies to be key personnel in accordance with the requirements.” Id. For proposed

key personnel, quoters had to provide résumés, in addition to various information

regarding, inter alia, their employment status, recent work experience, technical

accomplishments, and education. AR 1323.

While the Solicitation noted that “availability and commitment of Key Personnel

is important to the Government and will be evaluated through information contained in

the written quote,” AR 1333, the Solicitation did not require any documentation, such as

letters of commitment, assuring the continued availability of key personnel. See AR

1322–23.

Census “reserve[d] the right to utilize other information available to it to

evaluate Key Personnel.” AR 1334. In that regard, the Solicitation noted that “the

Government may query contract references, other end-user representatives and other

public sources regarding the experience of proposed Key Personnel and the quality of their

performance.” Id. (emphasis added). But that provision clearly refers to a substantive

evaluation of the identified proposed key personnel. In contrast, the Solicitation makes

no reference to the government’s confirming key personnel availability or commitment

during the evaluation process.

4. Part 2 — Price

Regarding Part 2, Price, the Solicitation required quoters to “submit a price quote

separate from the technical quote as part of their quotation package.” AR 1323. The

price quote was to include “overall pricing for the BPA . . . includ[ing] . . . proposed

labor categories.” AR 1323. The Price factor had two subfactors: (1) “Master BPA Rate

Card”; and (2) “Call Order 0001.” AR 1323.

To evaluate price, the RFQ required Census to review quoters’ price quote

templates “for completeness and accuracy,” double-checking “arithmetic” and price

summaries. AR 1334. Census also had to evaluate proposed labor rates to ensure they

were “at or below the Quoter’s current GSA MAS [Information Technology] contract

rates” and to compare the rates to the Independent Government Cost Estimate

(“IGCE”). Id.

11

B. Proposals and Evaluations

In the Award Decision Memorandum, the Contracting Officer (“CO”)

summarized the offerors’ technical and price rankings in the below chart:

VENDOR TECHNICAL & PRICE RANKING

Technical Rank Vendor Price Rank (1-Lowest to 4- Master BPA Price

(Highest to Lowest) Highest)

1 Spatial Front 2nd Lowest $77,747,904.00

2 Golden IT 2nd Highest $90,142,371.64

3 [***] Highest $96,459,667.20

4 [***] Lowest $76,448,198.40

AR 2877–78.

SFI received the highest ranking for its technical quote, which was “strong,

comprehensive, and well written,” and “had more significant strengths and no

significant weaknesses or high risks.” AR 2863–64. The Technical Evaluation

Consensus Report, AR 2596–2707, and the Award Decision Memorandum, AR 2839–81,

outline in great detail the ratings each quoter received. This opinion discusses only the

ratings relevant to this protest.

1. Evaluation of Technical Factor 1

Regarding SFI’s “incoming transition plan,” SFI received a strength for providing

a “dedicated transition manager” in addition to other staff. AR 2627. Census noted that

providing a dedicated Transition Project Management Office, “that includes a

Transition Manager, is not a requirement of the RFQ” but that “having a transition

team . . . coupled with SFI’s previous experience . . . focused on the transition is of great

value to Census.” Id. In contrast, Golden proposed one person to fill both the transition

manager and program manager roles. AR 1453.38. Golden did not receive a strength

for its transition manager staffing proposal. See AR 2674–81 (describing strengths and

weaknesses of Golden IT’s quote under Factor 1).

SFI received two separate significant strengths under Factor 1 for the

“completeness and accuracy” of its proposed LCATs. AR 2629–31. Census awarded

the first significant strength after finding that SFI “provided an additional [ * * * ]

LCATs with the minimum requirement of the candidates having a bachelor’s degree[]”

and provided [ * * * ] LCATs with more years of experience than was required. AR

2629. SFI received the second significant strength for providing LCATs “that exceeded

the requirements provided” for seven of the eight positions referencing certain

experience with Exadata, a computing platform. AR 2630.

12

Finally, SFI “did not provide the number of years of experience required for . . . 4

of the 26 LCATs,” for which it received a weakness. AR 2631. As the Technical

Evaluation Consensus Report notes, the proposed LCATs include a “required number

of years of relevant experience,” but SFI “proposed one to two years less experience

with a minimum bachelor’s degree” for those four LCATs. Id. As a result, “[t]hese

LCATs did not meet the Government’s minimum years of experience, making the

proposed LCATs inaccurate.” Id.

2. Evaluation of Technical Factor 2

Regarding the Similar Experience Subfactor within Factor 2, which required

quoters to submit three contracts that “have been performed, or are currently being

performed, not older than July 1, 2017, and are of similar size, scope, and complexity to

the work required by this RFQ,” AR 1319, SFI received significant strengths for two of

its past experiences and a strength for the third. AR 2633.

3. Evaluation of Technical Factor 3

Within Subfactor 3A’s criterion for providing high availability and scalability for

processing of geospatial data, SFI received a strength for its “experience in providing

high availability and scalability” in past contracts, which gave Census “confidence” that

SFI would “build and support [a] highly available and scalable processing environment

for MAF/TIGER.” AR 2637. Under the same criterion, Golden received a significant

weakness and high risk because its “offer was very generic in nature without any

concrete quote approaches or recommendations.” AR 2689.

SFI also received a significant strength within the Key Personnel subfactor for

proposing Mr. [JH] as its Information Specialist / Knowledge Engineer. AR 2642.

Census noted that Mr. [JH]’s technical certifications and certificates, the number of

which “exceeds the requirements,” would “bring knowledge and leadership to help

guide Census.” Id.

4. Price Evaluation

Overall, Census determined that SFI, [ * * * ], and [ * * * ] “provided complete,

accurate, and reasonable price quotes.” AR 2723. Census found that “Golden IT did

provide a reasonable price quote, but it did not provide a complete and accurate price

quote.” Id.

Census found that SFI “quoted the second lowest overall Master BPA price . . . at

$77,747,904.00 or 16.84% below the IGCE.” AR 2720. Golden “quoted the second

highest overall Master BPA price . . . at $90,142,371.64 or 3.58% below the IGCE.”

AR 2721. Golden’s Master BPA quote was thus $12,394,467.64 more expensive than that

of SFI. Golden’s total price for Call Order 0001 was $8,795,448.40; SFI’s total price for

Call Order 0001 was $7,787,284.80. AR 2718.

13

Census found that SFI properly understood the price quote instructions and SFI’s

LCATs “map[ped] correctly to their LCATs in the Technical Quotation.” AR 2713; see

also AR 2717 (“Spatial Front’s Call Order 0001 LCATs and price were consistent with the

Labor Categories and Rates in their BPA price quote[.]”).

Regarding Golden’s price quote, in contrast, Census concluded: (1) Golden’s

“price quote did not provide LCATs that were consistent with the Labor Categories and

Descriptions as requested” in the Solicitation; (2) Golden “failed to properly map their

GSA MAS IT Labor Categories in their price quote to the BPA Roles included in their

Technical Quotation”; and (3) “when Golden IT quoted the price for Call Order 0001,

they deviated from the LCATs provided in their BPA Labor Category Descriptions in

Tab No. 2 of their Attachment J.7 – Price Quote Template.” AR 2723.13 Census

concluded that “[t]hese inconsistencies could result in insufficient skills and lack of

experience to meet all the Government’s requirements as requested in Attachment J.8

LCAT Descriptions.” Id.; see also AR 2718.

5. Best Value Decision

The CO’s best value determination included a “price [/] technical trade off

analysis” between the “technically superior [SFI] quote and the lowest priced [ * * * ]

quote.” AR 2878. The CO determined that the “superior attributes of SFI’s technical

proposal . . . more than justifies the price premium of an additional $1,299,705.60 over

the lifecycle of the BPA.” AR 2880. Accordingly, Census awarded the BPA and first call

order to SFI on September 22, 2021. AR 2882–86.

C. Employment Timeline of Key Personnel Mr. [JH]

SFI proposed Mr. [JH] to fill the Key Personnel role of Information Specialist /

Knowledge Engineer. AR 1786–90. Mr. [JH] was an employee of SFI on May 20, 2021,

the day SFI apparently submitted its quote. ECF No. 40-1 (Declaration of [JD], SFI Vice

President, Human Resources and Contracts); ECF No. 40 at 4. Mr. [JH] departed SFI

and began working for another company at some point after that — albeit by May 31,

2021, at the latest. See ECF 34-1 (LinkedIn Profile of [JH]) (indicating that Mr. [JH]

worked for SFI from February 2021 to May 2021 and began work at [ * * * ] in May 2021).

In any event, there is no evidence in the administrative record — or proffered by

any party — suggesting that SFI had any indication prior to the time it submitted its

13Specifically, Census found that “14 of [Golden’s] 26 LCATs were . . . improperly mapped.”

AR 2712. Census found a similar error in Golden’s proposal for Call Order 0001. AR 2716–17

(“Golden IT’s Call Order 0001 Labor Categories did not consistently match the Labor Categories

in their BPA price quote Tab No. 2 — Master BPA Labor Price . . . 9 of the 17 Labor

Categories . . . were inconsistent with their BPA Price Quote Labor Categories’ Description[.]”).

14

proposal that Mr. [JH] intended to leave SFI for another employer and would not be

available for contract performance.

V. THE GOVERNMENT AND SFI ARE ENTITLED TO JUDGMENT ON THE

ADMINISTRATIVE RECORD

Golden challenges the Agency’s award to SFI based upon three primary

arguments: (1) that Census engaged in disparate treatment regarding the Solicitation’s

evaluation factors, Pl. MJAR at 24–32; (2) that SFI violated the Solicitation’s material

LCAT requirements and, thus, SFI’s quote is unawardable, id. at 18–19; and (3) that SFI’s

quote contained a material misrepresentation in proposing Mr. [JH] as key personnel,

id. at 20–24.14 For the reasons explained below, the Court rejects each of Golden’s

arguments.

A. Census Did Not Disparately Evaluate the Quotes

Golden argues that Census “disparately treated [Golden]’s proposal during its

evaluation.” Pl. MJAR at 25. The parties agree that this Court evaluates claims of

disparate treatment under the two-part standard outlined in Office Design Group v.

United States, 951 F.3d 1366 (Fed. Cir. 2020). Pl. MJAR at 24–25; Def. MJAR at 20. To

succeed on such a claim, a plaintiff protestor must show either: (1) “that the agency

unreasonably downgraded [the protestor’s] proposal for deficiencies that were

‘substantively indistinguishable’ or nearly identical from those contained in other

proposals”; or (2) “that the agency inconsistently applied objective solicitation

requirements between [the protestor] and other offerors, such as proposal page limits,

formatting requirements, or submission deadlines.” 951 F.3d at 1372.

Golden initially argued that the government’s evaluation included eleven

distinct instances of disparate treatment. Pl. MJAR at 25–32. Golden later abandoned

the vast majority of those claims and, thus, the Court addresses in detail only those that

were not.

For example, under Factor 1, Golden claims that Census “assigned Spatial Front

a strength for proposing a dedicated transition manager as key personnel” while

Golden “also proposed a transition manager as key personnel” but did not receive a

strength. Pl. MJAR at 27. Golden contends that “the proposals are substantively

indistinguishable because both [quoters] proposed a transition manager . . . as key

personnel” and that “[a] reasonable evaluation would have provided Golden IT with a

14Golden asserts that, as a result of the putative misrepresentation, SFI either should have

received a significant weakness with respect to the key personnel evaluation or that SFI’s quote

was unawardable as a matter of law. See Pl. MJAR at 24.

15

strength to match Spatial Front.” Id. The Court rejects this claim as plainly wrong. SFI

proposed a dedicated transition manager — i.e., one person singularly dedicated to the

role — while Golden merely noted (in a parenthetical) that its product manager would

“also function[] as [a] Transition Manager.” AR 1453.38, 1453.99 (emphasis added).

Golden’s reply brief does not address this obvious difference; instead, Golden merely

repeats its initial assertion. Pl. Reply at 15 (“[Census] assigned Spatial Front a strength

for proposing a dedicated transition manager as key personnel while ignoring Golden

IT’s offer of the same thing.”). This Court finds that the Agency reasonably concluded

that SFI’s dedicated transition manager is not “the same thing” as Golden’s proposal to

have one person perform split time between two roles. Id. The Court rejects Golden’s

disparate treatment argument regarding the Agency’s evaluation of the parties’

respective proposed transition managers.

Golden also contends, under Factor 2, that “Spatial Front’s third past

performance and experience example failed both the complexity and scope

requirements because it identified no programs at all other than to say there were

‘multiple . . . agencies’ involved.” Pl. MJAR at 29 (citing AR 1715). As explained above,

the Solicitation required quoters to provide examples of three contracts that “have been

performed, or are currently being performed, not older than July 1, 2017, and are of

similar . . . scope[] and complexity to the work required by this RFQ.” AR 1319 (emphasis

added). Regarding complexity, Golden asserts that Census “erroneously” gave SFI a

significant strength for its third past performance reference “because ‘complexity’

means supporting 5–10 large programs” and SFI only claimed to have supported four

such programs. Pl. MJAR at 29.15

Golden is correct that past performance and experience examples must show that

a quoter supported five to ten complex programs. AR 1319. The Solicitation, however,

also allows quoters to “include contracts on which they have performed, or are

performing work.” Id. (emphasis added). Under SFI’s third past performance and

experience example — a contract with the United States Department of Agriculture —

SFI noted that it had supported four major systems, but “was given a fifth

product . . . starting February 19, 2021.” AR 1715. The government clearly explains this

in its response brief. Def. MJAR at 31 (describing SFI’s fifth product and noting that the

Solicitation allows quoters to reference contracts currently being performed). In its

reply brief, Golden once again merely parrots its initial argument, but does not grapple

15Golden is incorrect that SFI received a significant strength. Rather, the Agency assigned SFI a

strength — but not a significant one — for its third past performance and experience reference.

AR 2633. Golden does not cite to any page in the administrative record to support the assertion

that SFI received a “significant strength” for its third past performance and experience example.

Pl. MJAR at 29; Pl. Reply at 16.

16

with the government’s explanation. Pl. Reply at 16. This Court concludes that the

government reasonably gave SFI credit for this particular past performance and

experience reference and that Golden does not demonstrate otherwise. Indeed, the

government’s approach makes sense given that the Solicitation allowed quoters to

include contracts currently being performed. Golden thus fails to prove that Census

improperly evaluated the past performance and experience requirement.16

Golden further argues, under Factor 3 (Call Order 0001 — Technical), that

Census erroneously assigned Golden a significant weakness and high risk rating for

Golden’s proposal for high availability and scalability for processing of geospatial data

in support of the MAF/TIGER system. Pl. MJAR at 30. Golden contends that its quote

“included the fact that it had been ‘supporting MAF/TIGER systems for many years,’

and provided a roadmap for high availability and scalability using Oracle GoldenGate,

among other things,” while SFI’s proposal “makes no mention of ‘approaches or

recommendations as to how they plan to provide high availability and scalability for

others.’” Id. (quoting AR 2689, 1453.65).

The record undermines Golden’s claims. Census reasonably found that Golden’s

quote was “very generic in nature without any concrete quote approaches or

recommendations as to how they plan to provide high availability and scalability for

[various applications].” AR 2689. In addition to being vague, the section of Golden’s

quote covering high availability and scalability was quite brief, totaling only two

paragraphs. AR 1453.65. In contrast, SFI’s proposal contained a full four-page section

dedicated to high availability and scalability for processing of geospatial data to

support the MAF/TIGER system. AR 1731–35. Census concluded that Golden’s failure

to “provid[e] a detailed strategy on how to provide high availability and scalability is a

High Risk[.]” AR 2689. The legal standard — as Golden itself articulates, Pl. MJAR

at 24–25 — requires showing either that proposals are “substantively indistinguishable”

or that the agency “inconsistently applied objective solicitation requirements,” Office

Design Grp., 951 F.3d at 1372. The proposals at issue here, however, are not

“substantively indistinguishable,” and Census did not “inconsistently appl[y] objective

16Past performance and experience examples also contained “scope” requirements. See AR

1319. The Court agrees with the government that Golden’s MJAR is devoid of support for the

conclusory assertion that SFI “failed . . . the scope requirement[].” Pl. MJAR at 29; Def. MJAR at

31 (correctly responding that Golden’s MJAR “does not offer any argument — much less record

evidence — in support of its contention that SFI’s [third past performance and experience

example] fails the RFQ’s scope requirements, and thus fails to meet its heavy burden of

demonstrating that Census’s decision was irrational.”). In its reply, Golden merely repeats the

Solicitation’s definition of the “scope” requirement but offers no support for its assertion that

SFI failed the requirement. Pl. Reply at 16.

17

solicitation requirements . . . such as proposal page limits, formatting requirements, or

submission deadlines,” in assigning Golden a significant weakness. Id.

Golden raised eight other disparate treatment arguments in its MJAR. See Pl.

MJAR at 25–32. The government countered each of these claims. See Def. MJAR at 20–

37. Golden then failed to address these arguments in its reply brief; thus, the

government contends that Golden’s apparent abandonment of these claims constitutes

waiver, and that the Court should not further address them. Def. Reply at 17 n.6.17 The

Court has carefully reviewed the briefs, agrees with the government that Golden failed

to respond to the government’s counterarguments and, accordingly, holds that Golden

has waived those eight claims.

This Court will not permit a party to raise a phalanx of thin arguments in a

dispositive motion — thereby forcing the opposing party to spend time and briefing

space to engage with all of them — only to abandon them in the face of the

counterarguments, and yet insist that the Court adjudicate the entire initial salvo. Such

a buckshot-like approach to advocacy undermines both judicial economy and basic

notions of fairness. See, e.g., Cap Export, LLC v. Zinus, Inc., 722 F. App’x 1004, 1009 (Fed.

17The government accurately identifies in its reply brief Golden’s arguments that it abandoned

by not responding to the government’s arguments:

The list of arguments that [Golden] has abandoned includes:

(1) Census should have “credited [Golden] and [Spatial Front] with

same significant strengths for their ability to provide coverage in

all situations,” [Pl. MJAR] at 25–26; (2) Census should have credited

[Golden] and SFI with same significant strengths for their ability to

ensure security, [Pl. MJAR] at 26; (3) Census should have credited

[Golden] and SFI with same strengths for their proposal to “cross

train” employees, [Pl. MJAR] at 26–27; (4) Census “assign[ed]

Spatial Front multiple strengths for the same item,” [Pl. MJAR] at

27; (5) Census erred in assigning [Golden] a weakness for not

specifying “calendar or business days” in reference to its plan to

update its Program Management Plan, [Pl. MJAR] at 27–28;

(6) Census unfairly assigned [Golden] a weakness for “not

discussing kick-off and action items deliverable requirements,” [Pl.

MJAR] at 28; (7) Census erred when it assigned [Golden] a

significant weakness for proposing Dennis Heisler and engaged in

disparate treatment by assigning SFI a significant strength for

proposing Dong Zhang, [Pl. MJAR] at 30–31; and (8) Census[]

“arbitrarily” failed to assign [Golden] three significant strengths for

its proposed Applications Systems Analyst (Master), Database

Specialist (Master), and Program Manager, [Pl. MJAR] at 31.

Def. Reply at 17 n.6.

18

Cir. 2018) (concluding that plaintiff-appellee “abandoned the reference altogether, as

[plaintiff-appellee] did not address that reference in its opposition brief before the

district court”); Sarro & Assocs., Inc. v. United States, 152 Fed. Cl. 44, 58 (2021) (“A party’s

failure to raise an argument in an opening or responsive brief constitutes waiver.”);

Shakur v. Schriro, 514 F.3d 878, 892 (9th Cir. 2008) (“We have previously held that a

plaintiff has ‘abandoned . . . claims by not raising them in opposition to [the

defendant’s] motion for summary judgment.’” (quoting Jenkins v. City of Riverside, 398

F.3d 1093, 1095 n.4 (9th Cir. 2005))); Allen v. Dollar Tree Stores, Inc., 475 F. App’x 159, 159

(9th Cir. 2012) (holding that the district court “properly dismissed” two of plaintiff’s

claims “because [plaintiff]’s opposition to the motion to dismiss failed to respond to

[defendant]’s arguments that those claims were time-barred”); Sportscare of Am., P.C. v.

Multiplan, Inc., 2011 WL 589955, at *1 (D.N.J. Feb. 10, 2011) (“In most circumstances,

failure to respond in an opposition brief to an argument put forward in an opening brief

constitutes waiver or abandonment in regard to the uncontested issue.”); Levy-Tatum v.

Navient Sols., Inc., 183 F. Supp. 3d 701, 712 (E.D. Pa. 2016) (finding that plaintiff, “by

filing a response in opposition to [defendant]’s motion to dismiss that addressed some,

but not all, of [defendant]’s arguments, abandoned those claims upon which [plaintiff]

failed to make any substantive arguments, and those claims are therefore waived”).

Notwithstanding that the Court holds that Golden has waived the eight

arguments the government identified, the Court has considered them and rejects them

on the merits for the reasons the government explained in its response brief. See Def.

MJAR 20–37.

In sum, Golden has failed to prove that Census engaged in disparate treatment of

Golden’s quote.

B. Census Was Not Required to Disqualify SFI Based on Its LCAT

Mapping Approach

Golden argues that the Solicitation contained various mandatory minimum

requirements for LCATs, including years of experience, that quoters had to meet or be

disqualified from the competition. Pl. MJAR at 18–19. SFI, for its part, does not dispute

that it failed to “provide the number of years of experience required for the LCAT

positions in 4 of the 26 LCATs.” AR 2631.18 Golden contends, therefore, that “Spatial

Front failed to meet a material term of the Solicitation” and Census “should have

18The government’s technical evaluation team found that, for four positions, SFI “proposed one

to two years less experience with a minimum bachelor’s degree” and that “[t]hese LCATs did

not meet the Government’s minimum years of experience, making the proposed LCATs

inaccurate.” AR 2631 (Technical Evaluation Consensus Report).

19

deemed Spatial Front’s quote unawardable and removed it from further evaluation,”

rather than merely assessing a weakness. Pl. MJAR at 19. Golden’s arguments fail.

As to the materiality of the government’s LCAT descriptions, including years of

experience, the RFQ does not mandate that quoters precisely match their available

LCATs or be disqualified from the competition. Section B.3.1 (“Labor Rates”) of the

RFQ provides that “[t]he Government is in need of labor categories that are comparable

to Approach LCAT Mapping.” AR 1211 (emphasis added). The Court is not sure

precisely what “Approach LCAT Mapping” is intended to reference — a typographical

error or omission is suspected — but that provision at least suggests that the

government’s LCAT descriptions are not mandatory minimums. Additionally, the RFQ

in Section C.5.2 (“Staffing Requirements”) provides that the particular requirements of a

government LCAT may be met via a combination of factors: “[t]he contractor shall

maintain skilled personnel that have a combined knowledge and abilities that at a

minimum are consistent in terms of specifications and categories provided in

Attachment J.8, Labor Category Descriptions Table.” AR 1223 (emphasis added). That

provision is further evidence that any individual requirement within an LCAT

description was not intended to serve as a mandatory minimum requirement for the

RFQ overall.

The RFQ instructions also do not communicate that the Agency’s LCAT

descriptions are mandatory minimums. Section F.5.4.1.2 required a “Staffing

Approach” be included with the quotes. AR 1234.19 In particular, such documentation

had to include “the Contractor’s Labor Categories and Descriptions that are mapped to

the Government’s Labor Categories and Descriptions.” AR 1236.20 These instructions

were amplified in Section L (“Instructions, Conditions, and Notice to Quoters”). For

example, Section L contained a Quote Deliverables Matrix, AR 1312, in which quoters

were instructed to include their “Draft BPA Staffing Approach” as Attachment 3 to the

quote. AR 1313.21 The matrix entry for the “Staffing Approach” cross-references

Section F.5.4.1.2, and similarly indicates that a “Draft [is] Due with Quote,” the

implication being that the Solicitation recognized that the planned approach is subject

to change. Id. More importantly, none of these instructions communicate that a

quoter’s various LCATs must map precisely to the government’s LCATs in Attachment

J.8 to avoid disqualification from the competition. See AR 1319 (specifying, with respect

19The “Master BPA Deliverables Chart” provides, with respect to the “Staffing Approach”

deliverable, that a “Draft [is] due with Quote.” AR 1234 (emphasis added).

The government’s LCAT descriptions were specified in a table, Attachment J.8 to the RFQ.

20

AR 823–27.

21 Elsewhere, Section L refers to Attachment 3 as the “Master BPA Staffing Plan.” AR 1311.

20

to “Factor 1 – Management Approach for BPA,” that quote deliverables must include a

“Draft Staffing Approach” but not providing any further instructions beyond that “the

total pages for all three attachments combined may not exceed 20 pages”).

Section M provides further, almost definitive, evidence that the RFQ did not

intend to elevate the government’s LCAT descriptions into mandatory minimum

requirements. In that regard, Section M indicates that “the technical evaluation will be

attained through a determination and analysis of strengths, weaknesses, and risks for

each quote.” AR 1330 (§ M.2). Applying that general approach to Factor 1, the RFQ

provides that the government will “consider strengths, weaknesses, and risks of the

Quoters[’] approach in addressing” a variety of items, including “proposed labor

category descriptions in the Draft Staffing Approach” — which, in turn, “will be

evaluated for completeness and accuracy to meet the Government’s requested LCAT[s]

and descriptions.” AR 1330–31 (§ M.2.1) (citing RFQ Attachment J.8 LCAT Descriptions

Table). Reading Section M.2.1 as a whole, as the Court must,22 the Court concludes that

the RFQ required the government to assess a quoter’s Draft Staffing Approach “for

completeness and accuracy” and then assign strengths, weaknesses, and risks,

accordingly. That is precisely what the Agency did in this procurement. See AR 2608–

11 (assigning [ * * * ] a strength, a weakness, and three significant weaknesses for its

Draft Staffing Approach); AR 2629–31 (assigning SFI two weaknesses and two

significant strengths for its Draft Staffing Approach); AR 2655–58 (assigning [ * * * ] a

strength, a weakness, and three significant weaknesses for its Draft Staffing Approach).

The Price Quote Template, see AR 817 (RFQ Attachment J.7), further confirms the

Court’s interpretation of the Solicitation’s instructions regarding the LCAT mapping.

The Price Quote Template, which quoters had to complete and submit, specifically

explained that “[t]he Government is in need of labor categories that are comparable to the

BPA Roles outlined below” and that “[t]he Government[-]provided descriptions are

solely based on what is anticipated for the work described in Section C of the

Solicitation.” AR 817 (emphasis added). Golden makes little to no effort to square its

reading of the significance of the government’s LCAT descriptions with the Price Quote

Template’s guidance, which, if anything, demonstrates that the government’s LCAT

descriptions do not contain mandatory minimum requirements.

In sum, there is essentially no indication in the RFQ that quoters were required to

map their LCATs such that they precisely matched the government’s LCATs in order

22See, e.g., Banknote, 365 F.3d at 1353 (noting that courts “must consider the solicitation as a

whole, interpreting it in a manner that harmonizes and gives reasonable meaning to all of its

provisions”); see also Safeguard Base Operations, LLC v. United States, 989 F.3d 1326, 1344 (Fed. Cir.

2021) (quoting Banknote, 365 F.3d at 1353).

21

for the quote to be awardable. All available evidence is to the contrary. The most the

Court can conclude in support of Golden’s argument is that the RFQ is ambiguous, but,

of course, it is far too late for Golden to complain about that now. See Blue & Gold Fleet,

L.P. v. United States, 492 F.3d 1308, 1313 (Fed. Cir. 2007) (holding that “a party 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”).23

Golden’s argument regarding SFI’s compliance with the RFQ’s putative LCAT

requirements is the legal equivalent of throwing stones in a glass house, only here

Golden’s own house is far more fragile than SFI’s.

As noted above, four of SFI’s selected LCATs — in the technical part of SFI’s

quote — did not meet the years of experience in the corresponding government LCAT

descriptions to which SFI’s LCATs were mapped. AR 2631. The Agency appropriately

assessed a weakness against SFI, as a result. Id. What Golden did was much worse: in

the technical part of its quote, Golden matched its supposedly available LCATs to those

specified in the RFQ, but then, in its price quote, substituted different LCATs that failed to

match not only the government’s LCAT descriptions, but also what Golden itself had

quoted in its technical volume. AR 2782–90. Indeed, Golden, in its price quote, failed to

properly “map” 14 of its 26 LCATs — considerably more than what Golden argues

should render SFI’s quote unawardable. AR 2712.24 To make matters worse, the

required years of experience were lacking for six of Golden’s 26 mapped LCATs.25

23Moreover, where the Agency wanted to specify a mandatory LCAT requirement, it knew how

to do so. In the Agency’s responses to quoter questions, the government was asked to modify

the key personnel table to distinguish between “required skills” and “preferred skills.” AR 916

(Quoter Clarifying Questions and Government Responses). The questioner asserted that

“Offerors may not present qualified personnel if they lack a specific certification or fall short of

the minimum years of experience.” Id. The government rejected the request, noting that

“[u]nless a skill is specifically identified as preferred it will be required.” Id. Thus, the Agency,

with respect to key personnel, knew how to specify mandatory minimum requirements (and,

even here, the government’s answer creates an ambiguity because it addresses “skill[s]” but not

“minimum years of experience”).

The Agency determined that “Golden IT did not properly map their LCATs in their BPA Price

24

Quote to their LCATs provided in their Technical Quotation as required. 14 of the 26 LCATs

were identified and deemed improperly mapped.” AR 2712 (Price Evaluation Team Report).

Golden did not contest this finding.

25AR 2784 (showing that Golden proposed a Business Systems Analyst with “3–5 years of

relevant experience” to fill an Applications Systems Analyst (Journeyman) LCAT that required

“[a] minimum of 4 years of relevant Applications System experience”); AR 2785 (showing that

22

Accordingly, if anything, although Golden received no weaknesses for its

mapping in the technical volume, Golden’s non-compliance in its price volume in all

likelihood should have rendered its entire proposal unawardable. As the Court

explained above, the RFQ required the technical part of a submitted quote to contain an

LCAT mapping, aligning the available categories from a quoter’s GSA MAS IT contract

with the Agency’s LCATs described in Attachment J.8 of the RFQ. The Solicitation then

required quoters, in a separate volume — variously referred to as Part II26 or Volume

II27 — to “submit a price quote separate from the technical quote as part of their

quotation package.” AR 1323. That price quote had to reflect “overall pricing for the

BPA to include Quoters[’] proposed labor categories and a description for each [GSA

MAS – IT] labor category anticipated to be used under this BPA.” Id. The RFQ further

instructed that “Quoter[s] shall use Attachment J.7 —Titled Price Quotation Template

(Master BPA/Call Order 0001) to complete Volume II – Price Quotation.” AR 1324

(emphasis in original). That template, in turn, directed that “Offeror[s] shall map their

proposed MAS IT Labor Categories to the BPA Roles included in their Technical Proposal.”

AR 817 (emphasis added).

The government correctly paraphrased the RFQ pricing instructions: “In other

words, a quoter’s proposed pricing labor categories must match their technical

proposal[.]” Def. MJAR at 12. Golden failed to do so, essentially pricing a different

technical approach than that which Golden proposed in its technical volume. Such

attempted gamesmanship strikes the Court as completely unacceptable in the context of

the procurement itself, let alone in this litigation where Golden cannot explain why its

approach was not substantively identical to, if not more problematic than, SFI’s quote

with regard to LCAT mapping.

Golden proposed a Business Systems Analyst with “3–5 years of relevant experience” to fill a

Business Analyst (Journeyman) LCAT that required “[a] minimum of 4 years of relevant

experience” and that Golden proposed a Business Systems Analyst with “6–9 years of relevant

experience” to fill a Business Analyst (Senior) LCAT that required “[a] minimum 7 years of

relevant experience”); AR 2787 (showing that Golden proposed a Software/Information

Systems Specialist with “7–9 years of relevant experience” to fill a GIS Systems Analyst (Master)

LCAT that required “[a] minimum of 8 years of experience”); AR 2788 (showing that Golden

proposed a Subject Matter Expert with “2–7 years of relevant experience” to fill a Subject Matter

Expert LCAT that required “[a] minimum of 4 years of experience”); AR 2790 (showing that

Golden proposed a Software / Information Systems Specialist with “4–6 years of relevant

experience” to fill a Systems Engineer LCAT that required “5 years of experience”).

26 AR 1310 (§ L.5.1.), 1311 (Table 1.0).

27 AR 1323 (§ L.7) (“Volume II – Price Quote”).

23

In sum, the Court rejects Golden’s argument that Census should have

disqualified SFI based on SFI’s approach to the LCATs. If anything, either Golden

should be disqualified or, at a minimum, its reading of the RFQ precludes a finding of

prejudice in its favor at least on this issue. VS2, LLC v. United States, 155 Fed. Cl. 738,

768 (2021) (“The simple fact is that VS2 cannot now complain about Vectrus’s and the

government’s interpretation of the Solicitation when VS2 relied upon the very same

interpretation when preparing its proposal.”).

C. Golden Failed to Prove That SFI’s Quote Contained a Material

Misrepresentation Regarding Key Personnel

Golden contends in its amended complaint that the Agency should have

assigned a weakness to SFI’s quote — instead of a significant strength — for proposing

Mr. [JH] as key personnel for the position of Information Specialist / Knowledge

Engineer. Am. Compl. ¶ 91 (“Spatial Front’s failure to disclose Mr. [JH]’s departure

does not meet the [Census]’s stated important factors and Spatial Front should have

received a weakness for this issue.”); see also Pl. MJAR at 21 (“The Agency failed to

consider this important aspect of Mr. [JH] as a key personnel and [SFI] should therefore

have received a significant weakness.”). In Golden’s MJAR, Golden argues for the first

time — and without so alleging in its amended complaint — that SFI “misrepresented

the availability of Mr. [JH] either when it submitted its quote or because it failed to

notify the Agency of the material change to its quote when it had knowledge of Mr.

[JH]’s unavailability.” Pl. MJAR at 21. Golden thus asserts that SFI “should either have

received a significant weakness for this issue or it should be ineligible for award.” Id. at

24 & n.7 (arguing SFI “ostensibly engaged in a ‘bait and switch’”).28 This Court

assumes, without deciding, that both arguments are properly before it, notwithstanding

Golden’s failure to seek leave to amend its complaint a second time to assert that SFI’s

quote contained a material misrepresentation or that SFI engaged in an impermissible

bait-and-switch.29 The Court rejects Golden’s arguments, however, on the merits, for

failing to meet its burden of proof.

28In GAO parlance, claims of material misrepresentation are “refer[red] to . . . as a ‘bait and

switch.’” Patricio Enterprises Inc., B-412738, 2016 CPD ¶ 145, 2016 WL 3213000, at *3 (May 26,

2016).

29The Court notes that because it ordered seriatim (and not simultaneous) briefing, both the

government and SFI had the opportunity to respond fully to all of Golden’s arguments

regarding Mr. [JH]. Moreover, the central facts underlying the misrepresentation argument

were contained in Golden’s amended complaint and had Golden sought leave to amend its

complaint to add the legal claim, based on the facts already alleged, the Court in all likelihood

would have permitted it. Thus, in the Court’s view, neither the government nor SFI were

prejudiced by Golden’s new argument in its opening MJAR.

24

Allegations of knowing (or reckless) material misrepresentations in a proposal

are serious business. GAO, for example, described the nature of such a claim and its

consequences as early as 1978 in its decision in Informatics, Inc., B-188566, 57 Comp.

Gen. 217, 78-1 CPD ¶ 53, 1978 WL 13361 (Jan. 20, 1978). In that case, Informatics

protested NASA’s having selected only a competitor, Computer Sciences Corp.

(“CSC”), for final negotiations under a request for proposals for computer software

services. 57 Comp. Gen. at 218. The GAO’s decision focused on whether CSC’s

proposal misrepresented that Informatics’ employees agreed to accept offers of

employment from CSC should it win the contract. NASA selected CSC for final

negotiations in part because it had “provided a good explanation as to how they could

successfully fill [certain] positions” and because the agency had “no basis for not

believing the CSC statements.” Id. at 220. GAO ultimately determined that the

“manner in which CSC actually conducted [its] survey [of Informatics’ employees]

[was] at complete variance with the manner represented to NASA.” Id. at 224.

Although CSC argued that its misstatement was not material, the GAO found

otherwise, concluding that the “misstatement was relied upon by NASA in evaluating

CSC’s proposal.” Id. at 225 (“The record shows that the procuring officer thought it was

important for an offeror to be able to demonstrate that it would obtain the needed work

force.”).

In recommending that NASA “exclude CSC’s proposal from consideration for

award,” GAO explained as follows:

In the course of discussions in negotiated procurements[,]

contracting agency representatives frequently ask for

information from an offeror. The agency has a right to rely on

the factual accuracy of the responses. Given the importance

of such discussions and the delays and other difficulties

which would be experienced if agency personnel were

required to verify each response, we believe that the

submission of a misstatement, as made in the instant

procurement, which materially influences consideration of a

proposal should disqualify the proposal. The integrity of the

system demands no less. Any further consideration . . . would

provoke suspicion and mistrust and reduce confidence in the

competitive procurement system.

Informatics, 57 Comp. Gen. at 225.

Following Informatics, the GAO consistently has held that “an offeror’s

misrepresentation concerning personnel that materially influences an agency’s

25

consideration of its proposal generally provides a basis for proposal rejection or

reevaluation of the award decision based on the faulty proposal.” Aerospace Design &

Fabrication, Inc., B-278896, 98-1 CPD ¶ 139, 1998 WL 253792, at *4 (May 4, 1998) (citing

other GAO decisions); Patricio Enterprises Inc., B-412738, 2016 CPD ¶ 145, 2016 WL

3213000, at *12 (May 26, 2016) (concluding that a “proposal contained material

misrepresentations concerning the availability of its proposed personnel” and that “the

appropriate remedy here is for the Corps to exclude [that] proposal from the

competition”).

None of those cases explain, however, the analytical basis for this Court’s power

to invalidate a contract award pursuant to the applicable standard of review here. See

28 U.S.C. § 1491(b)(4).30 That is, assuming for the sake of argument that SFI’s proposal

indeed contained a material misrepresentation, how does that render the government’s

procurement decision arbitrary, capricious, or otherwise contrary to law? In other

words, while knowingly (or recklessly) false assertions in a proposal may give rise to

civil False Claims Act liability, see 31 U.S.C. § 3729(a)(1), or provide the government

with grounds to terminate an awarded contract, 31 why is the government subject to a

§ 1491(b) action — and the possibility of an injunction — for its (arguably) reasonable

reliance on an offeror’s false assertions?32

This Court need not definitively answer these questions because the Federal

Circuit has all but explicitly recognized that a plaintiff may object to a contract award

on the grounds that a proposal contained a material misrepresentation. See Plan. Rsch.

30“In any action under this subsection, the courts shall review the agency’s decision pursuant to

the standards set forth in section 706 of title 5.” 28 U.S.C. § 1491(b)(4).

31See Veridyne Corp. v. United States, 758 F.3d 1371, 1378–79 (Fed. Cir. 2014) (affirming this

Court’s decision finding a contractor liable pursuant to 31 U.S.C. § 3729(a)(1)(A) where the

contractor’s proposal contained false assertions of material fact designed to obtain a

government contract); see also id. at 1380 (“Because Mod 0023 was obtained by fraud, each

invoice submitted pursuant to that contract was tainted by that fraud.”). Even though a

contractor cannot obtain any recovery for a contract awarded as the result of fraudulent

conduct, id. at 1377–78, and even though an agency could terminate such a contract, it does not

obviously follow that a third-party — a disappointed offeror — has a cause of action against the

government to challenge the contract award.

32A possible explanation is that where an agency’s contract award is based on a proposal’s

material misrepresentation, the award is per se inconsistent with a solicitation’s requirements

and, thus, is contrary to law. Allied Tech. Grp., Inc. v. United States, 649 F.3d 1320, 1329 (Fed. Cir.

2011) (“[A] proposal that fails to conform to the material terms and conditions of the solicitation

should be considered unacceptable and a contract award based on such an unacceptable

proposal violates the procurement statutes and regulations.” (quoting E.W. Bliss Co. v. United

States, 77 F.3d 445, 448 (Fed. Cir. 1996))).

26

Corp. v. United States, 971 F.2d 736, 740–41 (Fed. Cir. 1992) (holding “that the

misrepresentations of [a contract awardee], together with the ‘massive’ personnel

substitutions made by [the contractor] after award with the acquiescence and assistance

of [the agency], tainted the bidding and evaluation process”).33 Indeed, in Planning

Research Corp., the Federal Circuit quoted the GAO’s Informatics decision at length and

with approval. See id. at 741 (quoting Informatics, 57 Comp. Gen. at 225, for the

proposition that “the submission of a misstatement . . . which materially influences

consideration of a proposal should disqualify the proposal”).

This Court repeatedly has followed the Federal Circuit in recognizing such

claims in bid protest-type actions as well. See, e.g., Optimization Consulting, Inc. v. United

States, 115 Fed. Cl. 78, 99 (2013) (“[T]he submission of a misstatement, as made in the

instant procurement, which materially influences consideration of a proposal should

disqualify the proposal.” (quoting Plan. Rsch. Corp., 971 F.2d at 741)); Blue & Gold Fleet,

L.P. v. United States, 70 Fed. Cl. 487, 495 (2006) (“To preserve the integrity of the

solicitation process when such a material misrepresentation influences the award of the

proposal, the proposal is disqualified from consideration.”), aff’d, 492 F.3d 1308 (Fed.

Cir. 2007); Northrop Grumman Corp. v. United States, 50 Fed. Cl. 443, 468 (2001)

(discussing Plan. Rsch. Corp., 971 F.2d at 741, and explaining that “[a] bidder to a

government contract who makes material misstatements in its proposal taints the

award to such a bidder[,] . . . prevent[s] government officials from determining the best

value to the government[,] and retard[s] the competitive bidding process[,]” such that

“[w]hen a bidder is found to have misrepresented its ability to perform a contract, that

bidder will lose its right to execute the solicited work”); Labat-Anderson, Inc. v. United

States, 42 Fed. Cl. 806, 855 (1999) (noting that the Federal Circuit in Planning Research

Corp., 971 F.2d at 741, cited “Informatics and other GAO ‘bait and switch’ decisions with

approval”); cf. NetCentrics Corp. v. United States, 145 Fed. Cl. 158, 170 (2019) (citing Plan.

Rsch. Corp. and Informatics, and concluding “that an agency may reasonably disqualify a

proposal on material misrepresentation grounds where — despite the fact that the

misrepresentation was inadvertently included in the proposal — the agency relied upon

it when making its award decision”).

33Cf. Impresa, 238 F.3d at 1339 (“It is well-established that a contracting officer should consider

disqualifying a proposed contractor if a material misrepresentation is made.” (citing GAO

decisions)); but see Orion I, 60 Fed. Cl. at 345 & n.16 (noting that “the Court takes no position at

this time as to whether this Court, in exercising its powers under the Administrative Dispute

Resolution Act of 1996, 28 U.S.C. § 1491(b)(1)-(4), may sustain a bid protest on these grounds,

absent Army complicity” and explaining that Planning Research Corp., 971 F.2d at 739–43,

involved a bait-and-switch “where [the] agency ignored evidence of the scheme and abetted it

after award” (emphasis added)).

27

Turning to the merits, all of the parties agreed that an offeror may not knowingly

misrepresent a material fact in a proposal for the purpose of winning a government

contract. Accordingly, there can be no serious dispute that if SFI proposed that Mr. [JH]

would serve in a key personnel role for the BPA (or the call order) — while knowing

that he had planned to depart the company without any intention of serving in such a

role for SFI — Golden likely would be entitled to judgment on the merits of its claim.34

Conversely, Golden’s misrepresentation claim must be rejected if SFI had a reasonable

basis for proposing that it would commit Mr. [JH] to serve as a member of key

personnel in performing the BPA and call order at issue. This question is

fundamentally one of fact, and Golden bears the burden of proof. See, e.g., Palantir, Inc.

v. United States, 904 F.3d 980, 989 (Fed. Cir. 2018) (noting that when deciding motions

for judgment on the administrative record, “the court considers ‘whether, given all the

disputed and undisputed facts, a party has met its burden of proof based on the

evidence in the record.’” (quoting A & D Fire Prot., Inc. v. United States, 72 Fed. Cl. 126,

131 (2006))).

As noted above, Mr. [JH]was an employee of SFI on May 20, 2021, the day SFI

apparently submitted its quote. ECF No. 40-1 (Declaration of [JD]); ECF No. 40 at 4. SFI

does not dispute that Mr. [JH] departed SFI and began working for another company at

some point after that, most likely by May 31, 2021, but certainly prior to the Agency’s

award decision. See ECF 34-1 (LinkedIn Profile of [JH]) (indicating Mr. [JH] worked for

SFI from February 2021 to May 2021 and began working at [ * * * ] in May 2021). The

fatal problem for Golden’s claim, however, is that there is simply no evidence in the

record — literally, nothing — demonstrating that SFI had any knowledge prior to

submitting its proposal, or at any point before Mr. [JH]’s departure from SFI, that he

intended to leave SFI. In the absence of any RFQ requirement that SFI secure written

commitments from proposed key personnel — and particularly given that Mr. [JH] was

a current SFI employee at the time of proposal submission — Golden cannot prevail on

its claim, at least not on this record.

Golden contends that SFI “knew or should have known that Mr. [JH] would not

be able to perform on the contract because, when proposals were due in May 2021,” Mr.

[JH] already left SFI or must have “delivered notice to Spatial Front indicating that he

would be leaving the company to take a more senior role as a Geospatial Program

Manager with [ * * * ] in Colorado.” Pl. MJAR at 22. As to the first point, the Court once

again finds that the administrative record, on balance, supports that Mr. [JH] was

employed at SFI when it submitted its proposal; as to the latter point, Golden merely

34The key personnel requirement is unquestionably a material one. See AR 1333 (“The

availability and commitment of Key Personnel is important to the Government and will be

evaluated through information contained in the written quote.”).

28

speculates about the timing of Mr. [JH]’s putative resignation notice. The Court is not

unsympathetic to the latter point. If Mr. [JH] had notified SFI of his impending

departure from the company in advance of its quote submission — and absent any basis

for believing that he would return to work for SFI on BPA call orders as a member of

SFI’s key personnel — Golden likely would prevail on its claim. The documentation SFI

submitted to substantiate Mr. [JH]’s commitment to SFI certainly raises questions

regarding what SFI knew about Mr. [JH]’s likely availability to serve as a key personnel

and when SFI knew it (i.e., prior to quote submission).35

Nevertheless, Golden cannot sustain its claim on questions alone. In that regard,

this may have been a case where discovery from the intervening awardee would have

been warranted to supplement the administrative record. See Orion I, 60 Fed. Cl. at 345

(permitting “limited discovery,” in the form of interrogatories, regarding whether the

successful bidder misrepresented its key personnel). As noted above, it is almost

inconceivable that the evidence necessary to support a claim of a knowing

misrepresentation in a proposal would ever be located in an agency’s administrative

record filed with the Court. Id. (permitting discovery where the necessary evidence to

support a misrepresentation claim is “not something that would ever normally be

found in an agency’s record”). Golden, however, never sought such discovery and the

Court, for obvious reasons, is loath to order such discovery sua sponte.36

Accordingly, the Court agrees with the government that as a factual matter there

is “no basis in the record for the conclusion that Mr. [JH] is not ‘willing to work’ for SFI”

— either now or at the time SFI submitted its quote. Def. Reply at 7.

35Golden observes that SFI’s supplemental documentation “does not say . . . when Spatial Front

knew [JH] was leaving,” arguing that “[c]ertainly, if it were true, it would be in [SFI]’s interest

to tell the Court that it did not know Mr. [JH] was leaving on the date it submitted its proposal,”

and notes that Mr. [JH]’s letter “has not said when Spatial Front knew he was leaving

employment, or that he committed at that time to return to Spatial Front’s employment.” Pl.

Reply at 4. This Court agrees with the GAO — and Golden’s implicit argument — “that the

eventual decision of [personnel identified in a proposal] to accept employment with the

awardee does not make [an offeror’s] statements in its proposal true after the fact.” Sev1tech,

Inc., B-416811, 2018 CPD ¶ 429, 2018 WL 6829687, at *5 (Dec. 18, 2018).

36Cf. Olaplex, Inc. v. L’Oréal USA, Inc., 855 F. App’x 701, 712 (Fed. Cir. 2021) (concluding that

“[i]f the record contains more evidence than we have identified, [plaintiff] has not brought such

additional evidence to our attention, and we need not sift the extensive record for it on our

own” and quoting Albrechtsen v. Bd. of Regents of Univ. of Wis. System, 309 F.3d 433, 436 (7th Cir.

2002), for the proposition that “Judges are not like pigs, hunting for truffles buried in the

record”); but see Oak Grove Techs., Inc. v. United States, 155 Fed. Cl. 84, 95 (2021) (describing a

series of orders in which the Court directed the government to file the whole administrative

record where the originally filed record appeared facially incomplete).

29

Golden further argues that SFI failed to notify Census of Mr. [JH]’s unavailability

because “[t]he Solicitation requires the [CO] to consent to all key personnel

substitutions.” Pl. MJAR at 23 (citing AR 1260, 1370). Relatedly, Golden notes that the

GAO “has long held that ‘offerors are obligated to advise agencies of material changes

in proposed staffing, even after submissions of proposals.’” Pl. MJAR 23 n.6 (quoting

M.C. Dean, Inc., B-418553, 2020 CPD ¶ 206, 2020 WL 3639639, at *3 (June 15, 2020)).

The first point is inapposite because the process specified in the RFQ for

substitution of key personnel applies post-award, during contract administration, and is

not a proposal instruction. In other words, so long as SFI had a reasonable basis to

propose Mr. [JH] as key personnel for the BPA work, the fact that Mr. [JH] later left the

company cannot render SFI’s quote unawardable. That premise also answers Golden’s

second contention, asserting that SFI violated its supposed duty to update the Agency

regarding changes in proposed staffing even after proposal submission.

Although the Court acknowledges the likely “obligation [of an offeror] to

ascertain the continuing availability of key personnel at the time of submission of final

proposal revisions,” OAO Corp. v. United States, 49 Fed. Cl. 478, 482 (2001),37 the Court is

unable to locate the basis for the GAO’s rule “that offerors or vendors are obligated to

advise agencies of material changes in proposed staffing, even after submission of

proposals.” AttainX, Inc., B-419306, 2021 CPD ¶ 21, 2021 WL 228876, at *4 n.4 (Jan. 12,

2021). Indeed, “[t]he GAO’s rule that offerors are ‘obligated’ to notify agencies of

changes in the status of their proposed key personnel” strikes the Court, candidly, as

without legal basis and “unfair.” Vernon J. Edwards, Key Personnel Substitutions After

Proposal Submission: An Unfair Rule, 31 Nash & Cibinic Rep. ¶ 59 (2017) (criticizing the

rule as “GAO diktat” because it has not been subject to “publication in the Federal

Register and an opportunity for public comment”).38

37See also NetCentrics Corp., 145 Fed. Cl. at 171 (“offerors have an ‘obligation to ascertain the

continuing availability of key personnel’ before submitting [final proposal revisions]” (emphasis

added) (citing OAO Corp., 49 Fed. Cl. at 482)).

38 “The simple facts of biology (illness, injury, incapacitation due to various causes, and death)

and the common realities of business life (people retire, quit, or must be laid off or fired) make it

unreasonable to expect that offerors will not experience changes in the status of their staffing

over the course of such lengthy periods. The GAO requires offerors to tell agencies when there

is a change, but does not require or permit agencies to provide a simple process of substitution.”

Vernon J. Edwards, Key Personnel Substitutions After Proposal Submission: An Unfair Rule, 31 Nash

& Cibinic Rep. ¶ 59 (2017). This Court concurs with that critique of the GAO’s decisions. See

Greg Petkoff, Mark Nackman, Carla Weiss, Joshua Violanti, & Sati Harutyunyan, FEATURE

COMMENT: Disclosure Dilemma for Government Contractors Learning Before Contract Award That

Proposed Key Personnel Are Not Available to Perform the Contract, 60 No. 28 Government

Contractor ¶ 228 (arguing that “GAO has no jurisdiction to make recommendations to offerors

30

A proposal is submitted at a point in time and is evaluated over what is often a

lengthy period. The Court agrees, of course, that an offeror must have a reasonable

basis for all facts and representations made in its proposal — and may not knowingly or

recklessly include false statements of material fact. A court’s assessment of an offeror’s

knowledge of facts and representations, however, is made with respect to the point in

time at which the offeror submitted its proposal. Software versions may change,

planned approaches to contract performance might be altered or improved by the time

of contract award, and employees may come and go — none of those are problems per

se. Rotech Healthcare, Inc. v. United States, 121 Fed. Cl. 387, 400 (2015) (“Even if [the

awardee] ultimately did hire individuals other than those listed in its proposal, . . . that

would not be evidence that [the awardee] misrepresented itself given the fact that so

much time has passed since it submitted its proposal.”); Wackenhut Int’l, Inc. v. United

States, 40 Fed. Cl. 93, 99 (1998) (“If at some point after submitting its proposal [the

awardee] decided to change its approach to securing the required license, such a change

does not constitute fraudulent misrepresentation.”). And, where contemplated in a

solicitation, the government typically has discretion to engage in discussions to verify

proposal details, to extract more details and ultimately include them into an awarded

contract, or to seek final proposal revisions (“FPRs”) for the purpose of confirming key

personnel. But, the Court will not conjure up a rule — and particularly not one

untethered from a statue, regulation, or Federal Circuit decision — requiring offerors or

quoters to routinely update the government when facts and circumstances change

post-proposal or quote submission, during the course of the government’s evaluation

period.39

— including a recommendation that an offeror disclose the unavailability of key personnel

when the offeror first learns of this after proposal submission” and noting that “GAO cited no

statute or regulation that is violated if an offeror does not advise an agency of a staffing or

resource change that it learns about after submitting a final proposal revision”); but see Chenega

Healthcare Servs., LLC v. United States, 138 Fed. Cl. 644, 652 (2018) (appearing to endorse the

GAO’s rule, noting that “[a]s the GAO stated, when an offeror is obliged to make a change in the key

personnel included in its proposal, the agency has a choice between evaluating the original

proposal as submitted, or opening discussions to allow for modified proposals” (emphasis

added)).

39Notably, the GAO’s approach to “an impending or already consummated corporate

transaction” appears to primarily depend not upon an offeror’s or quoter’s knowledge of

changed factual circumstances — and a concomitant duty to update an agency — but rather on

an agency’s knowledge of the transaction. Vertex Aerospace, LLC, B-420073, 2021 WL 6337900, at

*4 (Nov. 23, 2021). In that recent decision, the GAO explained that its concern focuses on

“where an agency is aware” of such a transaction “but fails to assess the impact on proposals of

the restructuring.” Id. In such a case, “the agency runs the risk that its failure to do so will be

deemed improper, based of course, on the unique posture of that procurement and the

corporate transaction at issue.” Id. at *4–*5 (explaining that “[k]ey in our analysis in these

31

Accordingly, the Court declines to follow that line of GAO decisions, particularly

because the undersigned agrees with Judge Wolski that “[t]he extent to which [key

personnel] ha[ve] to commit to [an offeror] depends on what the solicitation required.”

Orion Int’l Techs. v. United States (Orion II), 66 Fed. Cl. 569, 574 (2005), aff’d, 185 F. App’x

966 (Fed. Cir. 2006). Here, the Solicitation did not require quoters to: (1) obtain

commitment letters from proposed key personnel; (2) constantly verify their continued

availability and willingness to serve in such roles following the BPA award; or

(3) update the Agency regarding the departure of employees proposed as key

personnel.

In OAO Corp., this Court all but rejected the existence of a freestanding obligation

to update a submitted proposal or FPR, explaining:

It is not clear to the court that this duty exists. While much of

the briefing deals with the various authorities on the elements

of “bait and switch,” the court must begin its legal analysis

with the text of the Solicitation. The court notes that there is

no language in the Solicitation which creates a duty to update

the availability of key personnel between final offer and

award. . . . It would have been a simple enough matter for the

decisions is both whether the contracting agency was aware of the particular corporate transaction,

and of the imminence and certainty of the transaction” (emphasis added)). The Court expresses

no view here as to whether the GAO’s approach to pending or completed corporate transactions

is correct. See Steven W. Feldman, Source Selections and Corporate Restructuring: The Lessons of

Wyle Laboratories, 47 Pub. Cont. L.J. 167, 168 n.2 (2018) (noting that, at least as of late 2018, “[t]he

Court of Federal Claims has yet to decide [such] a . . . protest”). The Court’s point is merely to

highlight a possible difference in GAO’s approach to protests involving changed circumstances.

But see id. at 192 (explaining that only “when the offeror is certain before the submission of final

proposal revisions (or even later) that the offeror is about to undergo a definite (and not just a

speculative) reorganization, the company’s prompt alert to the government is not just advisable

but also required under GAO decisional law” (emphasis added)); Dual, Inc., B-280719, 98-2 CPD

¶ 133, 1998 WL 833624, at *5 (Nov. 12, 1998) (“In these circumstances, Camber had an obligation

to advise the agency of the sale . . . when it agreed to the sale and lease back of facilities. . . .

Because Camber did not do so, the agency’s evaluation and its selection of Camber were based

upon representations concerning Camber’s personnel that were no longer true. The award was

based on Camber’s proposal representations, and to allow such an award to stand in spite of the

fact that Camber had not disclosed to the agency that it would not perform the contract as

proposed would call into the question the integrity of the competition.”). The Court

acknowledges, however, that there may be good and substantial reasons under the FAR to

distinguish between, on the one hand, the type of key personnel question at issue in this case

and, on the other hand, significant corporate transactions.

32

agency to have added such a provision to the Solicitation in

this case.

49 Fed. Cl. at 482. Like the facts described in OAO Corp., the government here is correct

that the Solicitation “did not require . . . letters of commitment, but instead merely

required key personnel descriptions and resumes.” Def. MJAR at 14 (citing AR 1322–

23). Nor did the RFQ require SFI to update the Agency regarding departures of key

personnel proposed in the quote. Again, this Court rejects the GAO’s freestanding rule

requiring offerors to update an agency regarding key personnel (i.e., in the absence of a

solicitation provision containing some such requirement or mandating a certification

regarding the future availability or commitment of proposed personnel).

In sum, all that is necessary here is that SFI had a reasonable belief, at the time of

its quote, that SFI would deploy Mr. [JH] as key personnel upon contract award.40

There is nothing in the administrative record that demonstrates by a preponderance of

the evidence that SFI lacked such a belief. The Court thus finds the government and SFI

are entitled to judgment on this issue, as well.41

CONCLUSION

For the above reasons, the Court GRANTS the pending motions to supplement

the administrative record, and further GRANTS the Defendant’s and Defendant-

Intervenor’s respective motions for judgment on the administrative record. The Court

DENIES Plaintiff’s motion for judgment on the administrative record.

Accordingly, the Clerk is directed to enter JUDGMENT for Defendant and

Defendant-Intervenor.

IT IS SO ORDERED.

s/Matthew H. Solomson

Matthew H. Solomson

Judge

40As Judge Wolski observed in Orion II, the Federal Circuit in Planning Research Corp. accepted

the Board’s finding that the offeror “never intended to hire the persons whose résumés it had

submitted.” Orion II, 66 Fed. Cl. at 576. No such similar evidence exists in this case.

Given that the Court has determined that the government and SFI are entitled to judgment on

41

Counts One, Two, and Three of Golden’s amended complaint, the Court holds that Count Four

— alleging that Census’s best value analysis was arbitrary and capricious, see Am. Compl.

¶¶ 93–95 — similarly fails.

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