“To establish prejudice, a protester is not required to show that but for the alleged error, the protester would have been awarded the contract.”
How later courts described this case
- “To establish prejudice, a protester is not required to show that but for the alleged error, the protester would have been awarded the contract.”
- noting that to establish prejudice, “a protester must show ‘that there was a substantial chance it would have received the contract award but for that error’”
- stating that under a highly deferential rational basis review, the court will “sustain an agency action ‘evincing rational reasoning and consideration of relevant factors’”
- “This test is more lenient than showing actual causation.”
Written by the judges who cited it.
The opinion
In the United States Court of Federal Claims
No. 21-1014C
(E-Filed: March 17, 2022) 1
)
ACESFED, LLC, )
)
Plaintiff, )
)
v. )
)
THE UNITED STATES, )
)
Defendant, ) Post-Award Bid Protest; Motion for
) Judgment on the Administrative Record;
and ) RCFC 52.1; Standing; Prejudice.
)
APTIVE RESOURCES, LLC, )
)
and )
)
DECISIVE POINT CONSULTING )
GROUP, LLC, )
)
Intervenor-defendants. )
)
Alexander B. Ginsberg, McLean, VA, for plaintiff. Meghan D. Doherty, Kevin
Massoudi, and Robert Starling, of counsel.
Sonia M. Orfield, Trial Attorney, with whom were Brian M. Boynton, Acting Assistant
Attorney General, Martin F. Hockey, Jr., Acting Director, and Reginald T. Blades, Jr.,
Assistant Director, Commercial Litigation Branch, Civil Division, United States
Department of Justice, Washington, DC, for defendant. Frank V. DiNicola, Desiree A.
1
This opinion is filed under seal on March 1, 2022. See ECF No. 79. The parties were
invited to identify source selection, propriety, or confidential material subject to deletion on the
basis that the material is protective/privileged. No redactions were proposed by the parties. See
ECF No. 81 (notice). Thus, the sealed and the public versions of this opinion are identical,
except for the publication date and this footnote.
DiCorcia, Tara T. Nash, and Christopher Murphy, United States Department of Veterans
Affairs, Eatontown, NJ, of counsel.
John R. Prairie, Washington, DC, for intervenor-defendant Aptive Resources, LLC. Cara
L. Lasley and Jennifer Eve Retener, of counsel.
Jonathan D. Shaffer, Tysons Corner, VA, for intervenor-defendant Decisive Point
Consulting Group, LLC.
OPINION
CAMPBELL-SMITH, Judge.
Plaintiff filed this bid protest challenging the Department of Veterans Affairs’
(VA) decision to exclude plaintiff from the competitive range in a procurement for
information technology (IT) services. See ECF No. 24 (amended complaint). Plaintiff
filed a motion for judgment on the administrative record (AR) in this case, ECF No. 55;
and defendant and intervenor-defendants each filed cross-motions for judgment on the
AR, ECF No. 57; ECF No. 59; ECF No. 61. After the initial briefing was complete, the
court ordered the parties to submit supplemental briefs on the issue of standing, see ECF
No. 73, and the parties did so, see ECF No. 74; ECF No. 75; ECF No. 76; ECF No. 77.
In ruling on the motions, the court has considered: (1) the AR, ECF No. 21; 2 (2)
plaintiff’s amended complaint, ECF No. 24; (3) plaintiff’s motion for judgment on the
AR, ECF No. 55; (4) intervenor-defendant Decisive Point Consulting Group, LLC’s
cross-motion for judgment on the AR and response to plaintiff’s motion, ECF No. 57; (5)
intervenor-defendant Aptive Resources, LLC’s cross-motion for judgment on the AR and
response to plaintiff’s motion, ECF No. 59; (6) defendant’s cross-motion for judgment on
the AR and response to plaintiff’s motion, ECF No. 61; (7) plaintiff’s reply in support of
its motion and response to the cross-motions, ECF No. 63; (8) intervenor-defendant
Aptive’s reply in support of its cross-motion, ECF No. 65; (9) intervenor-defendant
Decisive Point’s reply in support of its cross-motion, ECF No. 67; (10) defendant’s reply
in support of its cross-motion, ECF No. 69; (11) plaintiff’s sur-reply in support of its
motion, ECF No. 71; (12) intervenor-defendant Aptive’s supplemental brief, ECF No. 74;
(13) intervenor-defendant Decisive Point’s supplemental brief, ECF No. 75; (14)
2
When defendant initially filed the administrative record (AR) on March 15, 2021, see
ECF No. 18, it “inadvertently omitted information,” and therefore moved to complete the AR on
March 17, 2021, ECF No. 19 at 1 (defendant’s motion to complete the AR). The court granted
the motion and directed defendant to file the completed AR. See ECF No. 20 (order). Defendant
filed the completed AR on March 19, 2021, superseding its original AR. See ECF No. 21.
2
defendant’s supplemental brief, ECF No. 76; and (15) plaintiff’s supplemental brief, ECF
No. 77.
The motion is now fully briefed, and ripe for decision. The parties did not request
oral argument, and the court deems such argument unnecessary. The court has
considered all of the parties’ arguments and addresses the issues that are pertinent to the
court’s ruling in this opinion. For the following reasons, plaintiff’s motion for judgment
on the AR is DENIED, and defendant’s and intervenor-defendants’ cross-motions for
judgment on the AR are GRANTED.
I. Background 3
A. The Solicitation
On November 12, 2019, the VA issued solicitation number 36C10B19R0046, for
IT services as part of the Transformation Twenty-One Total Technology Next Generation
(T4NG) contract on-ramp program (the solicitation). 4 See ECF No. 21-2 at 300-436
(solicitation). The procurement provides for a five-year contract base period and one
five-year option period, with a maximum value of $22.3 billion. See id. at 315. The
solicitation explained the scope of the procurement as follows:
The Contractor shall provide total IT services solutions including the
following functional areas: program management, strategy, enterprise
architecture and planning; systems/software engineering; software
technology demonstration and transition; test and evaluation; independent
verification and validation; enterprise network; enterprise management
framework; operations and maintenance; cybersecurity; training; IT
facilities; and other solutions encompassing the entire range of IT and Health
IT requirements, to include software and hardware incidental to the solution.
Accordingly, Task Orders may include acquisitions of software and IT
products . . . . These services, as well as related IT products, may encompass
the entire life-cycle of a system. Moreover, services and related products
covered under this contract shall be global in reach and the Contractors must
be prepared to provide services and deliverables worldwide.
3
This case involves considerable detail. For purposes of deciding these motions the court
will relate only those details that are necessary to the instant analysis.
4
The copy of the solicitation included in the AR is not dated, but the index filed by
defendant, see ECF No. 21-1 at 3, and presentation slides from the Source Selection Advisory
Council’s May 27, 2020 initial evaluation briefing, see ECF No. 21-5 at 64, indicate that the
solicitation was issued on November 12, 2019.
3
Id. at 311.
The solicitation was intended to “replenish the pool of [service-disabled veteran-
owned small businesses (SDVOSBs)],” “anticipating that a large number of the current
SDVOSB contract-holders would no longer qualify as a SDVOSB at the end of the initial
five-year [contract] period.” ECF No. 61 at 14 (citing ECF No. 21-2 at 262). The
solicitation also explained that “[t]his competition is being conducted pursuant to the on-
ramp clause of the T4NG basic contract. The Government intends to award seven (7)
contracts to verified [SDVOSBs].” ECF No. 21-2 at 431. The VA, however, reserved
the right to adjust that number in its discretion. See id. Awards were to be made on a
best-value basis, considering five evaluation factors, including “Technical, Past
Performance, Veterans Employment, Small Business Participation Commitment Factor
(SBPC), and Price.” Id. Those factors were valued as follows:
The Technical Factor is significantly more important than the Past
Performance Factor, which is slightly more important than the Veterans
Employment Factor which is slightly more important than the SBPC Factor,
which is slightly more important that the Price Factor. The Technical Factor
has two (2) Sub-factors: Sample Task Sub-Factor and Management Sub-
factor. Within the Sample Task Sub-factor, Sample Task 1 and Sample Task
2 are equally important. The Sample Task Sub-factor is significantly more
important than the Management Sub-factor. All non-price factors, when
combined, are significantly more important than the Price Factor. To receive
consideration for award, a rating of no less than “Acceptable” must be
achieved for the Technical Factor, all Technical Sub-factors, and the SBPC
Factor. Offerors are cautioned that the awards may not necessarily be made
to the lowest Price offered or the most highly rated technical proposals.
Id.
To promote an efficient evaluation process, the solicitation contemplated that “the
evaluation [would] be conducted in phases, Step One and Step Two.” Id. For Step One,
the offerors were directed to submit a technical proposal and price proposal responding to
Sample Task 1. See id. at 422-23. Following an evaluation of the Sample Task 1
response, the VA was to establish a competitive range, and select the offerors eligible to
proceed to Step Two. See id. at 431. Offerors that did not advance to Step Two would
be excluded from the competition, and those that proceeded were to submit a response to
“Sample Task 2, the Management Sub-Factor, Past Performance Factor, Veterans
Employment Factor, SBPC Factor, and Solicitation, Offer & Award Documents,
Certifications & Representations and Terms and Conditions.” See id. at 432. Following
evaluation of Step Two proposals, the VA “may establish a competitive range and
conduct discussions with all Offerors within the competitive range, or proceed directly to
award without discussions.” Id.
4
The sample tasks were intended to test the “Offeror’s expertise and innovative
capabilities to respond to the types of situations that may be encountered in performance
of a contract resulting from this solicitation.” Id. at 433. For this reason, “the Offerors
[were not] given an opportunity to correct or revise a Sample Task response.” Id.
Responses to the sample tasks were evaluated in accord with the following:
(1) Understanding of Problems—The proposal will be evaluated to
determine the extent to which the Offeror demonstrates a clear understanding
of all features involved in solving the problems and meeting the requirements
presented by the Sample Task; and the extent to which uncertainties are
identified and resolutions proposed.
(2) Feasibility of Approach—The proposal will be evaluated to determine
whether the Offeror’s methods and approach to meeting the Sample Task
requirements provides the Government with a high level of confidence of
successful completion.
Id. And, considering the foregoing criteria, each sample task response was assigned one
of the following overall adjectival ratings:
a. Outstanding—A proposal that meets or exceeds all of the
Government’s requirements, contains extensive detail, demonstrates a
thorough understanding of the problems, and is highly feasible (low risk).
b. Good—A proposal that meets or exceeds all of the Government’s
requirements, contains at least adequate detail, demonstrates at least an
understanding of the problems, and is at least feasible (low to moderate
degree of risk).
c. Acceptable—A proposal that at least meets all of the Government’s
requirements, contains at least minimal detail, demonstrates at least a
minimal understanding of the problems, and is at least minimally feasible
(moderate to high degree of risk).
....
e. Unacceptable—A proposal that contains a major error(s),
omission(s), or deficiency(ies) that indicates a lack of understanding of the
problems or an approach that cannot be expected to meet requirements or
involves a very high risk; and none of these conditions can be corrected
without a major rewrite or revision of the proposal. A proposal that fails to
meet any of the Government’s requirements after the final evaluation shall
be ineligible for award regardless of whether it can be corrected without a
major rewrite or revision of the proposal.
5
ECF No. 21-4 at 418 (subsection d is omitted because it is inapplicable to evaluations of
the sample tasks).
B. Sample Task 1
In Sample Task 1, the VA sought responses to the following hypothetical scenario:
The U.S. Department of Veterans Affairs (VA) signed a multi-year contract
to modernize its electronic health record (EHR) system and to replace its
legacy Veterans Information Systems and Technology Architecture (VISTA)
system. VA’s infrastructure/Information Technology (IT) components will
need to be analyzed, reported, prioritized, remediated, and tracked to prepare
VA for the new EHR system. Using the T4NG Performance Work
Statement, describe in detail your approach to analyze, remediate, and report
VA infrastructure/IT deficiencies across the organization to prepare VA
facilities for the new EHR system.
ECF No. 21-2 at 502. The language of Sample Task 1 incorporated by reference the
requirements included in the performance work statement (PWS), which is part of the
solicitation. See id. at 307-70. The VA gave offerors seven business days to submit their
responses, which were limited to a maximum of twenty-five pages. See id. at 269.
To assist in evaluating the Sample Task 1 responses, the VA “developed a model
solution for Sample Task 1 to identify the areas that the agency deemed necessary for its
successful completion.” ECF No. 61 at 17 (citing ECF No. 21-12 at 1093). In
developing this evaluation tool, the VA “identified all of the high level focus areas . . .
that an offeror would need to address to successfully execute the effort, as well as the
lower-level focus areas . . . that were intrinsic to each high level focus area.” Id.
The Sample Task 1 responses were assigned strengths, weaknesses, or deficiencies
in each of the five high level focus areas, according to the following criteria:
Strength. Any aspect of a proposal that, when judged against a stated
evaluation criterion, enhances the merit of the proposal or increases the
probability of successful performance of the contract. A significant strength
appreciably enhances the merit of a proposal or appreciably increases the
probability of successful contract performance.
Weakness. A flaw in a proposal that increases the risk of unsuccessful
contract performance. A significant weakness in a proposal is a flaw that
appreciably increases the risk of unsuccessful contract performance.
Deficiency. A material failure of a proposal to meet a Government
requirement, or a combination of significant weaknesses in a proposal that
6
increases the risk of unsuccessful contract performance to an unacceptable
level.
ECF No. 21-4 at 419. Strengths and weaknesses were to be assigned only for the high
level focus areas. See ECF No. 21-12 at 1093.
The VA subsequently issued an amendment to the solicitation to “1) Revise
portions of the Proposal Format requirements as provided within Section L.10 of the
Solicitation; and, 2) Allow for resubmittal of only the Sample Task 1 as necessary to
ensure the instructions are met as described below.” ECF No. 21-2 at 510-11. The VA
stressed that:
The Technical Evaluation Approach, as stated within Section M.C.1.a of the
Solicitation, remains unchanged; Offerors are only being provided this
limited opportunity to resubmit Sample Task 1 to ensure compliance with
Section L.10.2.a, Format, as amended herein. Future opportunities to correct
or revise a Sample Task response will not be provided.
Id. at 511. It further noted that, “Offerors are reminded and cautioned that all Solicitation
requirements, as amended herein, to include proposal formatting, must be strictly adhered
to.” Id. In response to the amendment, all offerors resubmitted their proposals. See ECF
No. 21-4 at 56-352 (offerors’ revised Sample Task 1 proposals).
C. Organizational Conflict of Interest Determination
Because Sample Task 1 involved the EHRM system and, in 2018, the VA signed a
multi-year contract with Cerner Corporation to replace that system, the contracting
officer reviewed the task to “determine if Cerner Corporation or any of its subcontractors
performing under the [electronic health record modernization (EHRM)] contract would
have an Organizational Conflict of Interest (OCI) with the T4NG On-Ramp solicitation
as a result of information that may cause an unfair competitive advantage.” ECF No. 21-
20 at 2. The contracting officer considered Federal Acquisition Regulation (FAR)
9.505(b), which defines OCIs, and consulted the Source Selection Evaluation Board
(SSEB) Chairperson “who led the effort in developing Sample Task 1 and its
corresponding solution.” Id. at 1-2. The contracting officer “confirmed that in order to
provide a response to the Sample Task 1 question, Offerors do not need any non-public
knowledge of [EHRM] end state requirements, nor would access to any non-public
information pertaining to EHR provide an Offeror with a competitive advantage.” Id.
Instead, Sample Task 1 required a detailed overview of the offeror’s approach to
“analyze, remediate, and report VA infrastructure/IT deficiencies,” which “would be
essentially the same for any other major IT system similar in size and scope; therefore,
[it] is not specific to the EHR system.” Id. at 2.
7
The contracting officer concluded that, because “the solution to Sample Task 1
does not require the Offerors to have any non-public knowledge of Cerner or []EHRM
end state requirements, any proprietary information Cerner or any of its subcontractors
have as a result of the EHRM contract, would not present an unfair competitive
advantage.” Id. (footnote omitted). This conclusion “extends to other contractors that
may have indirectly supported EHRM efforts through contracts and orders beyond the
Cerner EHRM contract.” Id. at n.1. Thus, the contracting officer determined that no OCI
existed “that would preclude Cerner or any of its subcontractors from participating in the
solution.” Id.
D. First Competitive Range Determination
Of the ninety-four proposals evaluated by the VA, “61 proposals were rated
‘Unacceptable;’ 21 proposals were rated ‘Acceptable;’ eight (8) proposals were rated
‘Good;’ and four (4) proposals were rated ‘Outstanding.’ The evaluated prices of the 94
offerors ranged from a low of $6.13 Billion to a high of $16.33 Billion.” ECF No. 21-5
at 239 (June 4, 2020 Source Selection Authority (SSA) memorandum for record making
competitive range determination); see also id. at 196 (May 27, 2020 SSA Step One
Evaluation Summary). In determining the competitive range, the SSA excluded all
offerors with “unacceptable” Sample Task 1 ratings. See id. at 239. The SSA
determined that excluding the sixty-one unacceptable proposals was appropriate because
“Sample Task 1 was significantly more important than Price.” Id. at 240. The SSA also
noted that “there was ample competition among Offerors with ‘Acceptable’ or better
technical proposals with low evaluated prices.” Id. The contracting officer concurred
with the SSA’s conclusion and thirty-three offerors were included in the competitive
range for evaluation in Step Two. See id.
E. Step Two Evaluation and Competitive Range Determination
The VA released Sample Task 2 to the offerors in the competitive range on June
30, 2020; proposals were due on July 10, 2020. See ECF No. 21-5 at 255 (email
releasing Sample Task 2); ECF No. 21-12 at 1084 (October 20, 2020 SSA Interim
Evaluation Briefing). Offerors were required to provide, in addition to their response to
Sample Task 2, the management proposal—including all contractor teaming agreements
(CTAs)—and past performance, Veterans employment, and small business participation
proposal volumes. See ECF No. 21-2 at 425-26. The SSEB then evaluated the proposals
and presented the results of its evaluation to the Source Selection Advisory Council
(SSAC) and the SSA in a “detailed slide presentation and thorough discussion of the
evaluation assessments pertaining to each Step Two proposal.” ECF No. 21-12 at 1286.
In summary, the proposals were rated as follows:
24 proposals were rated “Acceptable,” eight (8) proposals were rated
“Good,” and one (1) proposal was rated “Outstanding” in the Technical
8
Factor. All 33 proposals were rated “Low Risk” in the Past Performance
Factor. In the Veterans Employment Factor, the 33 proposals ranged from
eight (8) to 18,182 employees and one (1) to 4,574 Veteran employees, and
the percentage of Veterans employed ranged from 4.41 percent to 71.08
percent. For the SBPC Factor, four (4) proposals were rated “Susceptible to
Being Made Acceptable,” two (2) proposals were rated “Acceptable,” ten
(10) were rated “Good,” and 17 were rated “Outstanding.” The evaluated
prices ranged from a low of $6.62 billion to a high of $10.48 billion.
ECF No. 21-12 at 1286-87 (October 23, 2020 SSA Memorandum for Record re: Step
Two Competitive Range Determination); see also id. at 1282-83 (SSEB Step Two
Evaluation Summary).
The SSA considered “all factors and sub-factors and their relative importance,”
and determined that offerors rating “Acceptable” in the technical factor should be
excluded from the competitive range because “they were not among the most highly rated
proposals with a realistic prospect for award.” Id. at 1288. The SSA determined that
“reviewing the detailed findings” of the offerors’ evaluations revealed that those rated
“Acceptable” “presented a higher degree of risk in the Sample Task responses than those
Offerors rated ‘Good’ or better in the Technical Factor.” Id. The SSA also considered
the offerors’ past performance—the second most important factor as defined by the
solicitation—and determined that, although they were each “assessed a varying number
of weaknesses, each was considered Low Risk and therefore essentially equal in that
Factor.” Id.
The SSA also “considered the fact” that some of the offerors rated “Acceptable” in
the technical factor “were stronger in the remaining factors . . . and/or proposed lower
evaluated prices” than higher rated offerors. Id. The SSA determined that, given the
relative importance of the technical factor and past performance factor, “none of these
differences were significant enough to outweigh the ‘Good’ or better ratings received for
the Technical Factor.” Id. The contracting officer concurred with the SSA’s
determination that the nine offerors that received “Good” or better ratings in the technical
factor would compose the competitive range for discussions. Id. at 1289.
After discussions and final proposal revisions, the SSEB presented the SSA with
the final results of evaluation on November 18, 2020. See ECF No. 21-19 at 729
(Memorandum re: Fair and Reasonable Price Determination). The SSA determined to
award contracts to all nine offerors in the competitive range for award, see id. at 729, the
contracting officer determined that all nine offerors proposed fair and reasonable prices,
see id. at 730, and the VA issued its Source Selection Decision awarding contracts to
each of the nine offerors in the competitive range, see id. at 768-72.
9
F. Plaintiff’s Evaluation
Plaintiff was given an “Acceptable” rating for Sample Task 1 and “Good” for
Sample Task 2. ECF No. 21-12 at 786 (the VA’s Technical Factor Initial Evaluation
Report for plaintiff’s proposal). Plaintiff’s Sample Task 1 rating was based on an
assessment of two strengths, one weakness, and one significant weakness. See id. at 787-
90. The significant weakness was the result of plaintiff’s proposal “lack[ing] detail in its
approach to demonstrate the enterprise high level planning associated with analyzing,
remediating, and reporting on the VA’s infrastructure/IT deficiencies,” as well as
“regarding its understanding of the schedule involved with the VA’s [EHRM] program.”
Id. at 789. The evaluation explained that this lack of detail “adds high risk that the
project’s infrastructure/IT analyses and remediations may result in schedule delays.” Id.
at 790. Likewise, the proposal’s “minimal detail” demonstrating “an understanding of
facilities planning . . . . adds risk that the Offeror does not have insight into the diversity
and scope of work required.” Id. Plaintiff’s Sample Task 2 was given one significant
strength, four strengths, and two weaknesses. See id. at 792-96.
“Based on the relative importance of the sample tasks, wherein each sample task
was of equal importance, and considering the qualitative evaluation results of the
individual sample tasks,” plaintiff received an overall “Sample Task Subfactor rating of
ACCEPTABLE.” Id. at 786 (emphasis in original). Plaintiff received a management
subfactor rating of “Good,” based on two assessed strengths. Id. at 798-99 (the VA’s
Technical Factor Management Subfactor Initial Evaluation Report for Plaintiff). “Based
on the evaluation results of the Technical subfactors and with due consideration given to
the weights for those subfactors,” plaintiff received an overall rating for the technical
factor of “ACCEPTABLE.” Id. at 780 (emphasis in original).
Plaintiff was rated “Low Risk” on the past performance factor, id. at 800-02, had a
veteran employment percentage of 26.83 percent, see id. at 803, and received a rating of
“GOOD” for its small business participation factor, id. at 804-05 (emphasis in original).
Plaintiff also proposed the lowest price, but the SSA and contracting officer determined
that “it was not enough of a difference, considering the slightly higher prices of the
‘Good’ Offerors, to outweigh its ‘Acceptable’ rating in the most important factor”—the
technical factor. Id. at 1289.
G. Procedural History
The VA informed plaintiff that it was not included in the competitive range and
had, therefore, been eliminated from the competition on October 23, 2020. See ECF No.
21-13 at 2-3. Plaintiff requested a debriefing on its evaluation, which the VA provided
on November 3, 2020. See id. at 10-66. Plaintiff filed a protest of its exclusion from the
competitive range with the Government Accountability Office (GAO) on November 16,
2020. See ECF No. 21-15 at 1319-57. The GAO denied the protest on February 22,
10
2021, see ECF No. 21-17 at 180-94. Plaintiff filed its complaint in this court on March 2,
2021, see ECF No. 1, and amended its complaint on March 23, 2021, see ECF No. 24.
II. Legal Standards
In its amended complaint, plaintiff invokes this court’s bid protest jurisdiction.
See ECF No. 24 at 14. This court’s bid protest jurisdiction is based on the Tucker Act,
which gives the court authority:
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. . . . without regard to whether suit is instituted before or after
the contract is awarded.
28 U.S.C. § 1491(b)(1). The Tucker Act also states that the court may grant “any relief
the court considers proper . . . including injunctive relief.” 28 U.S.C. § 1491(b)(2).
To establish jurisdiction, a plaintiff must therefore demonstrate that it is an
“interested party.” 28 U.S.C. § 1491(b)(1). The Federal Circuit has held that the
“interested party” requirement “imposes more stringent standing requirements than
Article III.” Weeks Marine, Inc. v. United States, 575 F.3d 1352, 1359 (Fed. Cir. 2009).
Though the term “interested party” is not defined by the statute, courts have construed it
to require that a protestor “establish that it ‘(1) is an actual or prospective bidder and (2)
possess[es] the requisite direct economic interest.” See id. (quoting Rex Serv. Corp. v.
United States, 448 F.3d 1305, 1308 (Fed. Cir. 2006)) (alteration in original).
Once jurisdiction is established, the court’s analysis of a “bid protest proceeds in
two steps.” Bannum, Inc. v. United States, 404 F.3d 1346, 1351 (Fed. Cir. 2005). First,
the court determines, pursuant to the Administrative Procedure Act standard of review,
5 U.S.C. § 706, whether the “agency’s action was arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with [the] law.” Glenn Def. Marine (ASIA),
PTE Ltd. v. United States, 720 F.3d 901, 907 (Fed. Cir. 2013) (citing 28 U.S.C.
§ 1491(b)(4) (adopting the standard of 5 U.S.C. § 706)). If the court finds that the agency
acted in error, the court then must determine whether the error was prejudicial. See
Bannum, 404 F.3d at 1351.
To establish prejudice, “a protester must show ‘that there was a substantial chance
it would have received the contract award but for that error.’” Alfa Laval Separation, Inc.
v. United States, 175 F.3d 1365, 1367 (Fed. Cir. 1999) (quoting Statistica, Inc. v.
Christopher, 102 F.3d 1577, 1582 (Fed. Cir. 1996)). “In other words, the protestor’s
chance of securing the award must not have been insubstantial.” Info. Tech. &
Applications Corp. v. United States, 316 F.3d 1312, 1319 (Fed. Cir. 2003) (citations
11
omitted). The substantial chance requirement does not mean that plaintiff must prove it
was next in line for the award but for the government’s errors. See Sci. & Mgmt. Res.,
Inc. v. United States, 117 Fed. Cl. 54, 62 (2014); see also Data Gen. Corp. v. Johnson, 78
F.3d 1556, 1562 (Fed. Cir. 1996) (“To establish prejudice, a protester is not required to
show that but for the alleged error, the protester would have been awarded the contract.”).
But plaintiff must, at minimum, show that “had the alleged errors been cured, . . . ‘its
chances of securing the contract [would have] increased.’” Precision Asset Mgmt. Corp.
v. United States, 125 Fed. Cl. 228, 233 (2016) (quoting Info. Tech., 316 F.3d at 1319).
Given the considerable discretion allowed contracting officers, the standard of
review is “highly deferential.” Advanced Data Concepts, Inc. v. United States, 216 F.3d
1054, 1058 (Fed. Cir. 2000). As the Supreme Court of the United States has explained,
the scope of review under the “arbitrary and capricious” standard is narrow. See
Bowman Transp., Inc. v. Arkansas-Best Freight Sys., Inc., 419 U.S. 281, 285 (1974). “A
reviewing court must ‘consider whether the decision was based on a consideration of the
relevant factors and whether there has been a clear error of judgment,” and “[t]he court is
not empowered to substitute its judgment for that of the agency.’” Id. (quoting Citizens
to Preserve Overton Park v. Volpe, 401 U.S. 402, 416 (1971)); see also Weeks Marine,
575 F.3d at 1368-69 (stating that under a highly deferential rational basis review, the
court will “sustain an agency action ‘evincing rational reasoning and consideration of
relevant factors’”) (citing Advanced Data Concepts, 216 F.3d at 1058).
III. Analysis
According to plaintiff, the VA’s “evaluation and competitive range determination
suffer from both systemic and specific flaws, but for which [plaintiff] . . . would have
been in the competitive range with a substantial chance of award.” ECF No. 55 at 7.
Specifically, plaintiff argues that the VA’s evaluation was flawed because: (1) it did not
evaluate the proposals against all evaluation criteria when it excluded all “acceptable”
rated offerors regardless of their price, past performance, and veteran’s employment
ratings, see id. at 8-10, 43-48; (2) it treated offerors that had the same rating as plaintiff
differently and assigned plaintiff lower ratings than other offerors with similar proposal
features, see id. at 10-12, 48-53; (3) it failed to exclude an offeror that did not abide by
the solicitation requirements, see id. at 12-14, 53-58; (4) it used competitive range
procedures when it had no reasonable basis to conduct discussions, see id. at 14-16, 58-
61; and (5) it conducted a procurement “tainted by an unmitigated OCI,” id. at 16, 61-65.
Defendant responds that, “[a]s an initial matter, [plaintiff] cannot establish
standing to bring this protest.” ECF No. 61 at 26. Plaintiff, defendant contends, cannot
establish that it had a substantial chance of inclusion in the competitive range because of
“the flexibility of the competitive range,” and the fact that inclusion in the competitive
range did not guarantee contract award. Id. at 34; see also id. at 34-35. Further,
defendant argues, even if plaintiff had standing: (1) “the VA applied the evaluation
12
criteria consistent with the solicitation,” id. at 26; see also id. at 36-47; (2) “the record
establishes that there were differences in the proposals . . . that led to the agency’s
different evaluative conclusions,” id. at 27; see also id. at 47-61; (3) the offerors abided
by the solicitation, id. at 27, 61-68; (4) the agency conducted discussions and therefore
used the competitive range consistent with the regulations, see id. at 27-28, 68-72; and
(5) plaintiff failed to identify any “‘hard facts’” in support of its OCI claim, relying
instead on “speculation and innuendo,” id. at 28; see also id. at 72-77.
Intervenor-defendant Decisive Point, echoes defendant’s arguments and adds that
plaintiff’s “arguments amount to mere disagreement with the subjective judgment of the
agency evaluators,” ECF No. 57 at 13, which “is not enough for this [c]ourt to overturn”
the agency’s decision, id. at 14. Similarly, intervenor-defendant Aptive notes that, in
addition to defendant’s arguments, plaintiff cannot have been prejudiced by Aptive’s
evaluation because Aptive’s “inclusion in the competitive range did not prevent
[plaintiff] from also making the competitive range.” ECF No. 59-2 at 5. Put another
way, “if Aptive were excluded from the competitive range, it would not mean that
[plaintiff] would be included.” 5 Id.
A. Plaintiff Has Standing to Protest Its Exclusion from the Competitive Range
The record is clear, for standing purposes, that plaintiff was an actual offeror in the
subject procurement. See Weeks Marine, 575 F.3d at 1359; see also ECF No. 24 at 14;
ECF No. 21-2 at 614-86. Thus, to establish standing plaintiff must demonstrate that it
has a direct economic interest in the procurement. See Weeks Marine, 575 F.3d at 1359.
To demonstrate a direct economic interest sufficient to support standing, plaintiff must
both show that it had a substantial chance of award and show that it was prejudiced by
the agency’s action. See Wis. Physicians Serv. Ins. Co. v. United States, 151 Fed. Cl. 22,
30 (2020). In short, plaintiff “must show that there was a ‘substantial chance’ it would
have received the contract award but for the alleged error in the procurement process.”
Info. Tech., 316 F.3d at 1319 (citing Alfa Laval, 175 F.3d at 1367). To make the
appropriate showing, plaintiff must demonstrate “more than a bare possibility of
receiving the award.” Precision Asset, 125 Fed. Cl. at 233 (citing Bannum, 404 F.3d at
1358) (affirming the trial court’s determination that the plaintiff had not demonstrated a
substantial chance of award when its “argument rest[ed] on mere numerical possibility,
not evidence”).
An offeror that was properly eliminated from the competition as “untimely,
technically unacceptable, or otherwise failing to merit consideration as a finalist,” only
has standing to challenge its elimination from the competition and lacks standing to
5
Because intervenor-defendants’ arguments track closely with defendant’s arguments, the
court will not separately discuss each intervenor-defendant’s arguments unless they are both
different from the arguments made by defendant and pertinent to this decision.
13
challenge any agency action subsequent to its elimination. Wis. Physicians, 151 Fed. Cl.
at 30-31 (citing Labatt Food Serv., Inc. v. United States, 577 F.3d 1375, 1380-81 (Fed.
Cir. 2009)). In Wisconsin Physicians, the court held that an offeror eliminated from
competition as technically unacceptable had standing to challenge its own proposal
evaluation. 6 See id. at 32. After it found that the agency’s evaluation and plaintiff’s
elimination as technically unacceptable were appropriate, the court went on to hold that
plaintiff did not have standing to challenge any agency action after its elimination,
including a potential OCI. See id. at 43-44.
Defendant concedes that under the standing test, and applying the reasoning in
Wisconsin Physicians, plaintiff has standing to challenge “the agency’s evaluation of its
proposal,” but argues that it does not have standing to bring the rest of its claims. ECF
No. 76 at 9-10. Plaintiff, however, argues that it “has standing to pursue all allegations
that challenge the composition of the competitive range and [plaintiff’s] exclusion from
it” because it “was not deemed technically unacceptable” or otherwise ineligible for
award and was the highest-rated offeror not included in the range and lowest-overall
priced offeror. ECF No. 77 at 7 (emphasis in original).
The court agrees with the parties that plaintiff has standing to challenge its own
evaluation and to challenge its alleged disparate treatment during the evaluation process.
In the court’s view, plaintiff has demonstrated that it had a substantial chance of being
included in the competitive range. Plaintiff need not show actual causation to make such
a showing. See Bannum, 404 F.3d at 1358 (“This test is more lenient than showing
actual causation.”). Plaintiff’s alleged position as the lowest-priced, highest-rated offeror
not included in the competitive range, along with the alleged flaws in the VA’s
evaluation, are sufficient to establish plaintiff’s substantial chance of inclusion in the
competitive range. See Info. Tech., 316 F.3d at 1319. Thus, as in Wisconsin Physicians,
plaintiff has alleged errors in its technical evaluation, error in the consideration of the
past performance factor, and error in consideration of its price that, if valid, could have
placed plaintiff within the final competitive range. See Wis. Physicians, 151 Fed. Cl. at
32.
The court, however, cannot make a determination about plaintiff’s standing to
protest the agency’s actions subsequent to plaintiff’s elimination until it has determined
whether the agency appropriately evaluated plaintiff’s proposal. See id. at 30.
B. The VA’s Evaluation of Plaintiff’s Proposal Was Not Arbitrary or
Capricious
1. The VA Appropriately Applied All Evaluation Criteria
6
While not binding, the court finds the reasoning in Wisconsin Physicians Service
Insurance Co. v. United States, 151 Fed. Cl. 22 (2020), persuasive.
14
Plaintiff argues that the VA, “[r]ather than factoring all evaluation criteria” into its
evaluation, ECF No. 55 at 44, “based its competitive range determination on the technical
factor adjectival ratings alone,” id. at 43, when it “mechanically” excluded all offerors
rated acceptable in the technical factor, id. at 44.
Review of the record, however, reveals that the VA’s evaluation was detailed and
reasoned, and included review and discussion of each of the evaluation factors and how
they weighed against each other. See ECF No. 21-12 at 1288-89. The VA’s review
included:
(1) Detailed price evaluations for each offeror, see ECF No. 21-4 at 437-84,
ECF No. 21-5 at 1-48;
(2) An initial 147 slide briefing related to the evaluation of Sample Task 1,
which included information about the strengths and weaknesses of each
offeror and a detailed price evaluation, see ECF No. 21-5 at 49-196;
(3) An initial competitive range determination memorandum, and a
confirmation of that determination after items for negotiation were
considered, see id. at 239-42;
(4) Evaluation reports for each offeror that included a detailed overview of the
assessed strengths and weaknesses for the sample tasks and management
proposal, the past performance summary and weaknesses, the veterans
employment calculation, and the strengths and weaknesses of the small
business participation levels, see ECF No. 21-12 at 752-1066;
(5) A second, more than two-hundred slide, presentation that included details
about the strengths and weaknesses of each offeror’s Sample Task 2 and
management proposals, a detailed review of each offeror’s past
performance, a calculation of each offeror’s veterans employment
percentage, and a review of each offeror’s small business participation, see
id. at 1069-1283; and
(6) A final competitive range determination memorandum explaining the
SSA’s and contracting officer’s review of the evaluation and rationale for
their decision-making, see id. at 1284-89.
Reviewing each of these evaluations, it appears to the court that the VA
specifically considered all of the relevant factors in assigning plaintiff its ratings. See id.
at 786-805.
Taking into account the breadth and detail of the VA’s evaluation, the court cannot
credit plaintiff’s assertion that the VA “based its determination on the technical factor
15
alone” and “mechanically” excluded offerors. ECF No. 55 at 44. It is not in the court’s
purview to “‘substitute its judgment for that of the agency.’” Bowman, 419 U.S. at 285
(quoting Citizens to Preserve Overton Park, 401 U.S. at 416). If, as it has here, the VA
has “articulate[d] a ‘rational connection between the facts found and the choice made’”
the court will uphold the agency’s decision. Id. (quoting Burlington Truck Lines v.
United States, 371 U.S. 156, 168 (1962)). The court perceives no failure to consider
relevant factors for evaluation or clear error of judgment by the VA that would support
overturning the agency’s conclusions. See Bowman, 419 U.S. at 285. Instead, it appears
that plaintiff’s challenges to the VA’s evaluation of the proposals amount to
disagreements with the VA’s conclusions.
2. The VA Applied the Evaluation Criteria Equitably
According to plaintiff, the VA treated several offerors more favorably than
plaintiff for similar issues in their Sample Task 1 proposals. See ECF No. 55 at 49-53;
ECF No. 63 at 26-40; ECF No. 71. Plaintiff summarized its own argument, contending
that it was “unequally downgraded relative to multiple awardees—specifically,
[plaintiff’s]: (1) assignment of labor categories; (2) discussion of ‘testing[’;] (3)
discussion of VA Medical Centers and other sites; (4) discussion of ‘FIPS 140-2’ and
‘WPA-2[’;] and (5) identification of the period of the electronic health record
modernization rollout.” ECF No. 71 at 3. Defendant responds that, while the details of
the offerors’ proposals may look similar, the overall rating was based on “clear
differences in the proposals under the high-level focus area[s].” ECF No. 61 at 49; see
also id. at 48-61. And, while an offeror “may have shared a couple of [plaintiff’s] flaws,”
the other proposals’ overall high-level focus areas were “objectively better.” Id. at 50;
see also id. at 48-61. Plaintiff replies that the “relevant question” is not about the overall
rating, but whether the other offerors and plaintiff “were equally downgraded for the
same alleged flaws.” ECF No. 63 at 31 (emphasis in original).
To prevail on its claims of disparate treatment, plaintiff must demonstrate that the
VA “unreasonably downgraded its proposal for deficiencies that were ‘substantively
indistinguishable’ from or nearly identical to those contained in other proposals.” Office
Design Grp. v. United States, 951 F.3d 1366, 1372 (Fed. Cir. 2020) (quoting Enhanced
Veterans Sols., Inc. v. United States, 131 Fed. Cl. 565, 588 (2017)). If plaintiff fails to
demonstrate that the proposals at issue are “indistinguishable for purposes of the
evaluation, then the exercise instead crosses the line and involves the second guessing of
‘minutiae,’” which is an inappropriate exercise for the court to undertake. Enhanced
Veterans, 131 Fed. Cl. at 588 (quoting E.W. Bliss Co. v. United States, 77 F.3d 445, 449
(Fed. Cir. 1996)).
A careful review of plaintiff’s cited examples of allegedly disparate treatment
demonstrates that plaintiff has not made the requisite showing that its proposal is
“substantively indistinguishable” from the other quoters’ proposals. See Office Design
16
Grp., 951 F.3d at 1372. Plaintiff’s examples represent granular similarities between the
proposals that do not account for differences between the overall proposals and overall
evaluations. 7 See, e.g., ECF No. 55 at 49 (discussing plaintiff’s example of the treatment
of labor categories). Compare, e.g., ECF No. 21-4 at 96, with id. at 351-52, and id. at
117 (the labor categories included in the proposals at issue). When taking into account
the entirety of the proposals and the entirety of the evaluations, the proposals that
plaintiff asserts are “substantively indistinguishable,” become readily distinguishable.
Office Design Grp., 951 F.3d at 1372.
The court will not involve itself in the inappropriate “second guessing of
‘minutiae’” for which plaintiff presses. Enhanced Veterans, 131 Fed. Cl. at 588 (quoting
E.W. Bliss, 77 F.3d at 449). The court is satisfied that the VA closely reviewed each
proposal and that any differences in evaluation outcome are not the result of disparate
treatment of “indistinguishable” proposals. Id. Rather, in the court’s view, the
evaluation flaws and disparate treatment of which plaintiff complains amount to a strong
disagreement with the conclusions the VA drew during its evaluation. The court cannot
and will not substitute its judgment for that of the agency when the agency has clearly
articulated a rational connection between facts and conclusions about distinguishable
proposals. See Bowman, 419 U.S. at 285; Office Design Grp., 951 F.3d at 1372.
Plaintiff’s claims related to the VA’s evaluation of its proposal must, therefore, fail.
C. Plaintiff Does Not Have Standing to Pursue Its Challenges to the Agency’s
Actions Subsequent to Its Elimination
Having found that the VA did not act arbitrarily or capriciously in evaluating
plaintiff’s proposal, and that plaintiff was thereby appropriately eliminated from the
competition, the court now turns to the question of plaintiff’s standing to pursue its
claims regarding the agency’s actions subsequent to plaintiff’s elimination.
Defendant argues that plaintiff does not have standing to bring its remaining
claims because it “cannot establish that there was a substantial chance [plaintiff] would
have received the contract award but for the alleged error[s].” ECF No. 76 at 11.
Defendant further argues that, because the solicitation provided for multiple awards
7
For example, while, as plaintiff points out, offeror 96 and plaintiff made two similar
choices in their list of labor categories—each included a 508 Compliance Expert and excluded an
HVAC specialist—that was noted in the VA’s explanation of plaintiff’s significant weakness but
not commented upon in offeror 96’s evaluation, the two personnel proposals overall are quite
different. Compare ECF No. 21-4 at 96 with id. at 351-52. Plaintiff’s Sample Task 1 proposal
appears to include only a bullet point “partial list of applicable Labor Categories,” id. at 96,
while offeror 96 includes one and a half pages of personnel explanation, a chart of organization
structure, and a table of appliable labor categories that contains substantial differences to
plaintiff’s labor categories, see id. at 351-52. The court carefully reviewed each of plaintiff’s
examples and cites just this one as an exemplar of what it found for each cited example.
17
rather than a set number of awards, any errors in the evaluation of those offerors included
in the competitive range and the eventual awardees cannot have prejudiced plaintiff. See
id. at 11-15.
Plaintiff responds that it would have had a “substantial chance of displacing” its
competitors in the competitive range if the VA had either excluded intervenor-defendant
Aptive from the competitive range or considered the alleged OCI. ECF No. 77 at 17; see
also id. at 20-21. Plaintiff argues that because these issues “implicate the composition of
the competitive range,” they do not constitute agency action subsequent to plaintiff’s
elimination. Id. at 20. Plaintiff also contends that it has standing to challenge the
agency’s use of competitive range procedures and failure to conduct discussions because
it “challenges the propriety of the creation of the competitive range, rather than any
specific proposal included therein.” Id. at 19.
In the court’s view, each of plaintiff’s remaining challenges constitutes a challenge
to the agency’s actions subsequent to plaintiff’s elimination from the competition. As
such, plaintiff could not have been prejudiced by the agency’s actions and lacks standing
to bring the claims. The court will explain how this principle applies to each claim in
turn.
1. Plaintiff Was Not Prejudiced by Any Alleged Failure to Exclude
Intervenor-Defendant Aptive
Plaintiff argues that the VA should have excluded intervenor-defendant Aptive
from the competition for two reasons: (1) Aptive made substantive revisions to its
Sample Task 1 proposal in response to Amendment 1 “in contravention of” the
solicitation provision prohibiting revisions to a sample task response, ECF No. 55 at 54;
and (2) Aptive failed to submit its required CTAs as part of its management proposal, see
id. at 57. According to plaintiff, by permitting Aptive to proceed with a revised Sample
Task 1, the VA treated Aptive more favorably than plaintiff, and conducted “unequal
discussions” with Aptive. See id. at 55-56. Plaintiff contends that if Aptive had been
“reasonably evaluated . . . in accordance with the [s]olicitation, there is a substantial
chance that [plaintiff]—the highest-rated offeror not included in the competitive range—
would have been selected in [Aptive’s] stead.” Id. at 57-58; see also ECF No. 63 at 41
(“Had [plaintiff] also been given an additional 19 days to make substantive revisions to
its Sample Task 1 proposal, there is a reasonable likelihood that it would have improved
its proposal, as [Aptive] did.”). Plaintiff further argues that if the court finds plaintiff
lacks standing to pursue this claim, “this [c]ourt regularly would be deprived of
jurisdiction to remedy significant procurement errors in multiple-award procurements.”
ECF No. 77 at 18.
Defendant responds that plaintiff’s “assumption that there is a substantial chance
that it would [have] receive[d] an award if [Aptive] had received a lower assessment on
18
the Management Sub-Factor is flawed” because “there is no reason to believe that if an
offeror were eliminated, [plaintiff] would have been selected for award.” ECF No. 61 at
68; see also ECF No. 76 at 11. This is so, defendant contends, because in this multi-
award procurement, “there was no guarantee under the solicitation that an additional
award would be made if one of the awardees had been eliminated.” ECF No. 61 at 68.
Defendant further argues that “Amendment 1 encouraged offerors, without explicit
limitation, to revise their Sample Task 1 proposal in order to ensure compliance with
formatting requirements.” Id. at 62. Thus, according to defendant, “the limited
organizational adjustment [Aptive] made to its proposal . . . [is] not forbidden by the
amendment,” id. at 63 (citation omitted), and all offerors received the same chance to
revise their proposals as Aptive did, see id. at 65. Moreover, defendant contends, the
VA’s evaluation of Aptive’s management proposal was reasonable, despite the missing
CTAs, because the solicitation did not require the VA to exclude Aptive or assess a
deficiency for the error and the contracting officer issued an item for negotiation (IFN) to
Aptive to obtain the missing CTAs. See id. at 66-67.
To succeed on its argument that the VA should have excluded Aptive, plaintiff
must demonstrate that it was prejudiced—meaning, at minimum, show that “had the
alleged errors been cured, . . . ‘its chances of securing the contract [would have]
increased.’” Precision Asset, 125 Fed. Cl. at 233 (quoting Info. Tech., 316 F.3d at 1319).
The court agrees with defendant that plaintiff has not done so. In the court’s view, the
VA’s evaluation of Aptive’s proposal, whether inappropriately revised or missing
required components, did not affect the VA’s evaluation of plaintiff’s proposal. Plaintiff
has neither explained how—nor pointed to any record evidence that—a change in the
VA’s evaluation of Aptive’s proposal would have changed how the VA viewed plaintiff’s
proposal. Simply stating that it was the “highest-rated offeror not included in the
competitive range” is insufficient under the multi-award circumstances here. ECF No. 55
at 57-58; see also Wis. Physicians, 151 Fed. Cl. at 43 (noting that it would be “illogical”
for an agency to “reverse course and reinstate an offeror that had been eliminated from
the competition as technically unacceptable” merely because another offeror’s proposal
was deficient). As defendant noted, there was no guaranteed number of awards, and the
exclusion of one offeror from the competitive range did not necessarily ensure the
inclusion of another. See ECF No. 61 at 68. Therefore, regardless of the VA’s
evaluation of Aptive’s proposal, plaintiff cannot establish prejudice sufficient to confer
standing, and its claim on this point must fail. See Alfa Laval, 175 F.3d at 1367 (noting
that to establish prejudice, “a protester must show ‘that there was a substantial chance it
would have received the contract award but for that error’”) (quoting Statistica, 102 F.3d
at 1582).
19
2. Plaintiff Was Not Prejudiced by the VA’s Alleged Improper Use of
Competitive Range Procedures
Plaintiff argues that the VA had no reasonable basis to conduct discussions nor
“any intention of receiving or evaluating material proposal revisions,” making its use of a
competitive range inappropriate. ECF No. 55 at 58. The VA, plaintiff contends,
conducted discussions “in name only,” when it issued IFNs that related to past
performance—an issue on which “the VA already had concluded that all of the offerors
were entitled to the lowest-possible risk rating,” id. at 59—and the failure of two offerors
to submit all of their CTAs, despite the VA having already assigned those offerors “the
highest rating it assigned to any competitive range offeror under Management Sub-
Factor,” id. at 60. According to plaintiff, this demonstrated that the VA “plainly had no
intention of receiving substantive proposal revisions,” id., reached the same conclusions
it had already reached in establishing the competitive range, and made its awards “despite
never having conducted any trade-offs among proposals,” id. at 61 (emphasis in original).
Therefore, plaintiff argues, the VA “had no rational basis to invoke competitive range
procedures.” Id. Plaintiff contends that this claim “challenges the propriety of the
creation of the competitive range, rather than any specific proposal included therein.”
ECF No. 77 at 19. Therefore, plaintiff argues, the error did not occur subsequent to
plaintiff’s elimination, but “precisely” when plaintiff was eliminated—thus, conferring
standing. Id.
Defendant responds that the agency properly utilized competitive range
procedures and plaintiff lacks standing to advance this claim. See ECF No. 61 at 68-72;
ECF No. 76 at 14-15. Defendant notes that “[i]t is squarely within the agency’s broad
discretion, not the protestor’s, to determine whether discussions are necessary, and if so,
to what extent they are permitted.” ECF No. 61 at 68 (citing FAR 15.306(d)(3)). The
VA, defendant contends, appropriately issued specific items for discussion in the IFNs,
see id. at 69, acknowledged that proposal revisions may be necessary, see id., and
ultimately permitted offerors “to make any revision permitted by the solicitation that they
desired,” id. at 71. Thus, according to defendant, the VA’s use of the competitive range
was “proper and should be upheld.” Id. at 72. Defendant further contends that plaintiff
could not have been prejudiced by the agency’s use of the competitive range after it was
properly excluded from the range because changing the use of the competitive range
“would not improve [plaintiff’s] chances of receiving an award.” ECF No. 76 at 15.
In the court’s view, the VA’s use of the competitive range—even if an
inappropriate use due to the lack of discussions—did not affect the VA’s evaluation of
plaintiff’s proposal. Plaintiff has neither pointed to any record evidence nor explained
how the VA’s view of plaintiff’s proposal would have changed had the VA not used
competitive range procedures. Simply stating that its proposal was a “highly-rated,
lowest-overall-priced proposal,” is insufficient. ECF No. 55 at 61; see also Wis.
Physicians, 151 Fed. Cl. at 43. There was no guaranteed number of awards in this
20
procurement, and the solicitation contemplated only seven awards. See ECF No. 21-2 at
431. Plaintiff’s proposal was effectively the tenth highest rated proposal. See ECF No.
55 at 57-58 (stating that plaintiff’s proposal was the “highest rated [ ] not included in the
competitive range”); ECF No. 21-19 at 729 (noting that there were nine offerors included
in the competitive range). The agency exercised its appropriate discretion to identify the
offerors providing the best value for this solicitation. Plaintiff does not explain, nor can
the court discern, how not using the competitive range would have improved plaintiff’s
chances of securing the contract in this multi-award procurement. ECF No. 55 at 58-61.
Further, to the extent that plaintiff’s assertion that the VA “made awards in this
procurement despite never having conducted any trade-offs among proposals” is an
argument that had the VA made such trade-offs, plaintiff would have been more likely to
secure the contract, such argument is unavailing. Id. at 61 (emphasis in original). The
VA plainly considered all of the evaluation factors, as well as price, and determined that
each offeror in the final competitive range merited an award. See supra, Section B.1;
ECF No. 21-19 at 771-72; see also id. at 729-30. It appears to the court that plaintiff’s
argument is a further disagreement with the VA’s conclusion. The agency is granted
wide latitude in determining which proposal represents the best value for the government.
See E.W. Bliss, 77 F.3d at 449. And, as the court is not empowered to substitute its
judgment for that of the agency, it declines to do so here. Bowman, 419 U.S. at 285.
Regardless of whether the VA’s use of a competitive range was inappropriate,
plaintiff has failed to establish prejudice sufficient to confer standing and thus, its claim
on this point must fail. Alfa Laval, 175 F.3d at 1367 (quoting Statistica, 102 F.3d at
1582).
3. Plaintiff Was Not Prejudiced by the VA’s Addressing a Potential
Organizational Conflict of Interest
Plaintiff argues that the VA failed to consider the “impact of [Booz Allen
Hamilton’s (BAH)] significant potential for an OCI in connection with this
procurement,” ECF No. 55 at 62, and the procurement is “tainted” by this “unmitigated
OCI,” id. at 61. According to plaintiff, BAH was a “Major Subcontractor” for two
offerors included in the competitive range as well as the incumbent contractor along with
Cerner for the VA’s EHRM contract. Id. at 36-37 (citing ECF No. 21-5 at 296-97; ECF
No. 21-3 at 30; ECF No. 21-7 at 27; ECF No. 21-20 at 490-539). This, plaintiff
contends, gives rise to “significant potential for all three basic categories of OCIs.” Id. at
63. Specifically, plaintiff argues that BAH’s EHRM contract results in a biased ground
rules OCI because “[i]t is likely that BAH had a significant role in the development of the
instant [s]olicitation requirements—particularly with respect to Sample Task 1 and the
rubric against which the VA evaluated it.” Id. In support of its claim, plaintiff notes that
both offerors that proposed BAH as a major subcontractor received outstanding ratings
on their Sample Task 1 proposals. See id. at 64. Further, plaintiff contends that impaired
21
objectivity and unequal access to information OCIs also result from BAH’s involvement
because “BAH’s significant oversight role” will result in BAH evaluating its own
subcontractor work, and BAH had “access to non-public, proprietary and source selection
information in connection with this procurement,” which gave the offerors proposing
BAH as a subcontractor an unfair competitive advantage. Id.
Plaintiff argues that these OCI allegations “implicate the composition of the
competitive range,” ECF No. 77 at 20, and “directly impacted the VA’s evaluation of
proposals in connection with the competitive range determination,” id. at 21 (emphasis in
original). Plaintiff thus contends that the error “was a key evaluation error that directly
impacted the composition of the competitive range and prejudiced” plaintiff. Id.
Defendant responds that plaintiff does not having standing to bring this claim and
it “failed to allege ‘hard facts’ establishing either an actual or apparent OCI.” ECF No.
61 at 74; see also ECF No. 76 at 13. According to defendant, plaintiff’s allegations are
“pure speculation” and “demonstrably wrong.” ECF No. 61 at 74. Defendant argues that
any potential OCIs related to BAH did not require evaluation during the solicitation at
issue here, rather they “would need to be evaluated at the time of the competition for [ ]
task orders.” Id. at 75. And, even so, the contracting officer “evaluated the potential for
[OCIs] during the procurement” when he “considered whether contractors or
subcontractors who have supported the VA’s EHRM efforts would have an [OCI] with
respect to Sample Task 1.” Id. Defendant argues that the contracting officer’s
conclusion that his OCI determination “extends to other contractors that may have
indirectly supported EHRM efforts,” “obviously includes BAH” because “[a]ny
information that a support contractor such as BAH possessed would have stemmed from
the Cerner EHRM contract.” Id. at 76; see also ECF No. 69 at 40 (citing ECF No. 21-20
at 61 (presentation slide noting that BAH “provides critical program management,
administrative, and technical support to []EHRM to support the deployment of Cerner
while focusing on maximizing clinical value and enabling continuous improvements in
patient safety, quality of care, patient and family engagement, and operational efficiency
throughout VA”). Defendant thus contends that the court should defer to the contracting
officer’s “‘considerable discretion’” in identifying conflicts. ECF No. 61 at 76.
Defendant further contends that plaintiff cannot demonstrate that it had a
substantial chance of receiving an award “because of the nature of the solicitation.” ECF
No. 76 at 13. According to defendant, the multiple possible awards, and the fact that the
agency ultimately awarded more contracts than it originally planned, means that “even if
the agency erred in making its awards to the offerors involved . . . it would have been
‘illogical’ to expect the agency to reverse course with respect to its concerns about
[plaintiff].” Id. at 14. Defendant thus argues that plaintiff lacks standing to bring its OCI
claims.
22
In the court’s view, the VA’s evaluation of the potential OCI—even if
improper—did not affect the VA’s evaluation of plaintiff’s proposal. Plaintiff has
pointed to no record evidence and has not explained how the VA’s view of plaintiff’s
proposal would have changed had the VA evaluated the OCI differently. Simply stating
that its proposal was a “highly-rated, lowest-overall-priced proposal,” is insufficient.
ECF No. 55 at 61; see also Wis. Physicians, 151 Fed. Cl. at 43. “Unless there is a
‘connection between the government’s [alleged] error and [the protestor’s] failure to
secure the contract . . . , there is no injury to redress, and no standing to sue.’” Wis.
Physicians, 151 Fed. Cl. at 44 (quoting Labatt Food Serv., 577 F.3d at 1381) (alterations
in original). Plaintiff does not explain, nor can the court discern, how a different
evaluation of the alleged OCI would have improved plaintiff’s chances of securing the
contract in this multi-award procurement where plaintiff’s proposal had already been
properly evaluated by the agency and found not to merit further consideration.
Therefore, plaintiff cannot establish prejudice sufficient to confer standing, and its claim
on this point must fail. See id. at 44-45.
IV. Conclusion
Accordingly, for the foregoing reasons:
(1) Plaintiff’s motion for judgment on the AR, ECF No. 55, is DENIED;
(2) Defendant’s and intervenor-defendants’ cross-motions for judgment on the
AR, ECF No. 57, ECF No. 59, and ECF No. 61, are GRANTED;
(3) The clerk’s office is directed to ENTER final judgment in defendant’s and
intervenor-defendants’ favor DISMISSING plaintiff’s complaint with
prejudice; and
(4) On or before March 21, 2022, the parties are directed to CONFER and
FILE a notice attaching the parties’ agreed upon redacted version of this
opinion, with all competition-sensitive information blacked out.
IT IS SO ORDERED.
s/Patricia E. Campbell-Smith
PATRICIA E. CAMPBELL-SMITH
Judge
23