Rev, LLC v. United States

In the United States Court of Federal Claims

No. 21-1011C

(E-Filed: March 21, 2022) 1

)

REV, 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. )

)

Jon D. Levin, Huntsville, AL, for plaintiff. W. Brad English, Emily J. Chancey, J. Dale

Gipson, of counsel.

Eric. J. Singley, Trial Attorney, with whom were Brian M. Boynton, Acting Assistant

Attorney General, Martin Hockey, 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. DiCorcia, Tara

1

This opinion was issued under seal on March 1, 2022. See ECF No. 104. Pursuant to ¶ 4

of the ordering language, the parties were invited to identify source selection, proprietary or

confidential material subject to deletion on the basis that the material was protected/privileged.

The parties’ proposed redactions were acceptable to the court. See ECF No. 106. All redactions

are indicated by brackets ([ ]).

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. 47 (amended complaint). Plaintiff

filed a motion for judgment on the administrative record (AR) in this case, ECF No. 78;

and defendant and intervenor-defendants each filed cross-motions for judgment on the

AR, ECF No. 80; ECF No. 83; ECF No. 85. After the initial briefing was complete, the

court ordered the parties to submit supplemental briefs on the issue of standing. See ECF

No. 97. The parties did so. See ECF No. 98; ECF No. 99; ECF No. 100; ECF No. 102.

In ruling on the motions, the court has considered: (1) the AR, ECF No. 45; 2 (2)

plaintiff’s amended complaint, ECF No. 47; (3) plaintiff’s motion for judgment on the

AR, ECF No. 78; (4) intervenor-defendant Decisive Point Consulting Group, LLC’s

cross-motion for judgment on the AR and response to plaintiff’s motion, ECF No. 80; (5)

intervenor-defendant Aptive Resources, LLC’s cross-motion for judgment on the AR and

response to plaintiff’s motion, ECF No. 83; (6) defendant’s cross-motion for judgment on

the AR and response to plaintiff’s motion, ECF No. 85; (7) plaintiff’s reply in support of

its motion and response to the cross-motions, ECF No. 89; (8) intervenor-defendant

Decisive Point’s reply in support of its cross-motion, ECF No. 91; (9) intervenor-

defendant Aptive’s reply in support of its cross-motion, ECF No. 93; (10) defendant’s

reply in support of its cross-motion, ECF No. 95; (11) intervenor-defendant Decisive

Point’s supplemental brief, ECF No. 98; (12) intervenor-defendant Aptive’s supplemental

brief, ECF No. 99; (13) defendant’s supplemental brief, ECF No. 100; and (14) plaintiff’s

response to defendant’s and intervenor-defendants’ supplemental briefs, ECF No. 102.

2

When defendant initially filed the administrative record (AR) on March 15, 2021, see

ECF No. 41, it “inadvertently omitted information,” and therefore moved to complete the AR on

March 17, 2021, ECF No. 43 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. 44 (order). Defendant

filed the completed AR on March 19, 2021, superseding its original AR. See ECF No. 45.

2

The motions are 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. 45-2 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.

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

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. 45-1 at 3, and presentation slides from the Source Selection Advisory

Council’s May 27, 2020 initial evaluation briefing, see ECF No. 45-5 at 64, indicate that the

solicitation was issued on November 12, 2019.

3

SDVOSB contract-holders would no longer qualify as a SDVOSB at the end of the initial

five-year [contract] period.” ECF No. 85 at 19 (citing ECF No. 45-2 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. 45-2 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.

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

4

[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.

ECF No. 45-4 at 418 (subsection d is omitted because it is inapplicable to evaluations of

the sample tasks).

5

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. 45-2 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. 85 at 21 (citing ECF No. 45-12 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

increases the risk of unsuccessful contract performance to an unacceptable

level.

6

ECF No. 45-4 at 419. Strengths and weaknesses were to be assigned only for the high

level focus areas. See ECF No. 45-12 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. 45-2 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. 45-4 at 56-352 (offerors’ revised Sample Task 1 proposals).

C. Organizational Conflict of Interest Determination

Because Sample Task 1 involved the electronic health record modernization

(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

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. 45-20 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.

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

7

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. 45-5

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 id. at 255 (email releasing Sample

Task 2); ECF No. 45-12 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. 45-2 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. 45-12 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

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

8

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. 45-12 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. 45-19 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., 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.

F. Plaintiff’s Evaluation

Plaintiff was given a “Good” rating for Sample Task 1, “Acceptable” for Sample

Task 2, and “Good” for the Management subfactor. ECF No. 45-12 at 836 (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 significant strengths, one strength, and

9

two weaknesses. See id. at 837-41. The weaknesses resulted from the agency’s

assessment that plaintiff provided “minimal detail on analyzing and remediating” various

infrastructure deficiencies of a VA facility, id. at 839, and wireless capability and security

requirements, see id. at 840. The agency concluded that plaintiff’s approach “increases

the risk that a VA facility may not have the infrastructure capacity required for the end-

state IT equipment, causing intolerable latency delays or possible shutdowns of IT

equipment, disrupting delivery of patient care.” Id. And that plaintiff’s “minimal

understanding of security requirements adds risk that the Offeror will not be able to

provide a secure operational environment, safe from wireless security vulnerabilities,”

leading to users “experienc[ing] sub-optimal performance.” Id. at 841.

Plaintiff’s acceptable rating for Sample Task 2 was based on three strengths, four

weaknesses, and one significant weakness. See id. at 842-46. The significant weakness

was the result of plaintiff’s proposal “demonstrat[ing] a lack of understanding on how to

depict its overall software architecture” because it failed to depict certain services that

were included in its proposal narrative and did not “clearly depict” all of the

environments plaintiff used in its proposal. Id. at 846. The evaluation explained that this

“appreciably increase[d] the risk that the Offeror will not be able to create applications

utilizing cloud platforms, environments, and cloud services.” Id. Plaintiff’s weaknesses

arose out of its “minimally feasible approach” to using and configuring “an automated

integration and deployment pipeline,” id. at 844, to describing and processing a change

request, see id. at 845, and to describing its software engineer “readme file” and code

structure, id., and plaintiff’s “minimal understanding of how to create a product one

pager,” id. at 846. Each of these weaknesses added risk to the agency. See id. at 842-46.

“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 836 (emphasis in original). Plaintiff received a management

subfactor rating of “Good,” based on two assessed strengths. Id. at 849-50 (the VA’s

Technical Factor Management Subfactor Initial Evaluation Report for plaintiff)

(emphasis in original). “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 830 (emphasis in

original).

Plaintiff was rated “Low Risk” on the past performance factor, id. at 851-54, had a

veterans employment percentage of [ ], see id. at 855, and received a rating of “GOOD”

for its small business participation factor, id. at 856-57 (emphasis in original). Plaintiff

also proposed the third lowest price “compared to the nine awardees,” ECF No. 78 at 18,

but the SSA and contracting officer determined that the evaluated price was not low

enough to consider plaintiff “amongst the most highly rated proposals.” ECF No. 45-12

at 1289. And, the SSA determined that “it was clear in reviewing the detailed findings

10

[about plaintiff’s proposal], they presented a higher degree of risk in the Sample Task

responses than those Offerors rated ‘Good’ or better in the Technical Factor.” Id. at

1288.

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.

45-13 at 5-6. Plaintiff requested a debriefing on its evaluation, which the VA provided

on November 3, 2020. See id. at 67-123. Plaintiff filed a protest of its exclusion from

the competitive range with the Government Accountability Office (GAO) on November

16, 2020. See ECF No. 45-14 at 1244-72. The GAO denied the protest on February 18,

2021, see ECF No. 45-15 at 1311-18. Plaintiff filed its initial complaint in this court on

March 1, 2021, see ECF No. 1, and amended its complaint on March 22, 2021, see ECF

No. 47.

II. Legal Standards

In its amended complaint, plaintiff invokes this court’s bid protest jurisdiction.

See ECF No. 47 at 2. 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,

11

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

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, “[h]ad the Agency not evaluated proposals irrationally,

arbitrarily, and capriciously [plaintiff] would have stood a substantial chance of receiving

award.” ECF No. 78 at 18. Specifically, plaintiff argues that the VA’s evaluation was

flawed because: (1) it “failed to consider whether two offerors . . . were ineligible for

award due to an immitigable OCI,” id. at 16, 18-23; (2) it failed to “consider

conformance with Solicitation requirements,” id. at 16, 23-27; (3) it conducted a “faulty

12

past performance evaluation,” id. at 16, 27-33; (4) it failed “to evaluate proposals

equally,” id. at 16, 33-40; (5) it failed “to give [plaintiff’s] proposal a fair reading,” id. at

16, 41-46; and (6) it made a “flawed competitive range determination,” id. at 16, 46-48.

Defendant responds that, “[a]s an initial matter, [plaintiff] cannot establish

standing to bring this protest.” ECF No. 85 at 31. Plaintiff, defendant contends, cannot

establish that it had a substantial chance of inclusion in the competitive range because

“the solicitation . . . did not require a set number of awards,” and therefore another

offeror’s exclusion did not make plaintiff “any more likely to receive an award.” Id. at

37; see also id. at 37-38. Further, defendant argues, even if plaintiff had standing, the

agency’s competitive range determination “was supported by substantial evidence and

[was] in accordance with law and regulation.” Id. at 39.

Intervenor-defendant Decisive Point, echoes defendant’s arguments and adds that

plaintiff’s arguments “amount[ ] to mere disagreement with the agency’s judgment,” ECF

No. 80 at 9, which does not meet the “heavy burden to overturn the agency’s well-

reasoned evaluative judgments,” id. Similarly, intervenor-defendant Aptive notes that, in

addition to defendant’s arguments, plaintiff could not 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. 83-2 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 that, for standing purposes, plaintiff was an actual offeror in the

subject procurement. See Weeks Marine, 575 F.3d at 1359; see also ECF No. 47 at 11;

ECF No. 45-2 at 794-850. 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

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

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

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. 100 at 11; see also id. at 11-18. Plaintiff, however, argues that it has standing to

pursue each of its challenges because “[e]very single argument [plaintiff] has raised

relates to the evaluation of proposals prior to the Agency’s competitive range

determination,” and plaintiff was “either next in line for admission to the competitive

range or the second company in line.” ECF No. 102 at 6.

The court agrees 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 “either next in line” or second in line for inclusion 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. ECF No.

102 at 6; see also Info. Tech., 316 F.3d at 1319. Thus, as in Wisconsin Physicians,

plaintiff has alleged errors in its technical evaluation and error in the consideration of the

past performance factor 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.

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

B. The VA’s Evaluation of Plaintiff’s Proposal Was Not Arbitrary or

Capricious

1. The VA Appropriately Evaluated the Offerors’ Past Performance

Plaintiff argues that in evaluating the offerors’ past performance, “nothing in the

record shows that the Agency looked at the underlying evaluations, differentiated

between marginal and unsatisfactory ratings, differentiated the seriousness of the

compound ratings, considered contractor responses and the reviewing agency’s findings,

or even asked for [pertinent task orders].” ECF No. 78 at 30. Instead, plaintiff contends,

the VA “assigned scores and copied and pasted the same word-for-word finding that

formed the basis for a ‘low risk’ rating,” id., and “conducted no analysis,” id. at 31. “Had

the Agency performed any analysis,” plaintiff argues, “it would not likely have deemed

[four of the awardees] Low Risk,” and plaintiff’s “low risk rating would have given it a

significant advantage over these four companies.” Id. at 33.

Review of the record reveals that the VA’s evaluation was detailed and reasoned,

including its assessment of each of the offerors’ past performance. See ECF No. 45-12 at

1288-89. The VA’s evaluation included:

(1) A detailed overview of each offeror’s past performance and weaknesses,

see ECF No. 45-12 at 772-76, 800-02, 824-26, 851-54, 877-79, 904-06,

929-31, 953-60, 982-87, 1009-11, 1033-38, 1060-63;

(2) A more than 200-slide presentation that included a detailed review of each

offeror’s past performance, see id. at 1136-1221; and

(3) 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, 1288 (noting that “although each

of the 33 Offerors that submitted Step Two proposals were assessed a

varying number of weaknesses, each was considered to be Low Risk”).

Reviewing each of these evaluations, it appears to the court that the VA

specifically considered all of the relevant factors in assigning the past performance

ratings.

Taking into account the detail of the VA’s evaluation, the court cannot credit

plaintiff’s assertion that the VA “conducted no analysis.” ECF No. 78 at 31. 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 decision. Id. (quoting Burlington Truck Lines v.

United States, 371 U.S. 156, 168 (1962)). The court perceives no failure to consider

15

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 past performance evaluation 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 and management proposals. See ECF No.

78 at 33-35, 36-39, 39-41. Specifically, plaintiff argues that the agency assigned plaintiff

one significant weakness and two weaknesses for its Sample Task 2 proposal, when it

“understood” that plaintiff’s proposal was more “accurate and complete,” id. at 34, than

offerors that were rated more favorably for the same areas of the proposal, see id. at 34-

35. And, for its Sample Task 1 evaluation, plaintiff argues that the VA assigned it two

weaknesses while two other offerors received strengths despite “fail[ing] to address

various aspects of these high level focus areas in the same way the Agency determined

[plaintiff] did.” Id. at 40. Plaintiff further contends that it “proposed the same features”

that garnered significant strengths for other offers in their management proposals but

plaintiff received only strengths. Id. at 37; see also id. at 37-39.

Defendant responds that plaintiff’s complaints “amount to nothing more than mere

disagreement with the agency’s technical determinations.” ECF No. 85 at 43. Defendant

asserts that the differences in rating resulted from differences in the proposals. See id. at

49-52 (pointing out the differences in Sample Task 2 proposals that merited different

ratings); id. at 56-57 (arguing that plaintiff’s Sample Task 1 weaknesses were the result

of overall lack of detail while other offerors provided detail in areas that plaintiff did

not); id. at 57 (arguing that plaintiff’s allegations of disparate treatment with respect to its

management proposal can be “traced to valid distinctions” in its proposal).

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. 78 at 33-34 (addressing plaintiff’s example of the

agency’s evaluation of its architecture/network diagram). Compare, e.g., ECF No. 45-12

at 846, with id. at 899 (the agency’s evaluation of each offeror’s architecture/network

diagram). 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 agency 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.

3. The VA Reasonably Reviewed Plaintiff’s Proposal

Plaintiff goes on to argue that the agency failed to “give its proposal a fair

reading,” ECF No. 78 at 46, when it assigned unreasonable weaknesses to plaintiff’s

Sample Task proposals and failed to “recognize numerous strengths,” see id. at 41.

According to plaintiff, in its evaluation of plaintiff’s Sample Task 1 proposal the VA

assigned unreasonable weaknesses when it recognized elements of plaintiff’s proposal

but failed to credit them, see id. at 41, “misread” plaintiff’s proposal, id. at 42, and failed

to acknowledge certain of plaintiff’s proposal details, see id. Likewise, plaintiff alleges

that the agency unreasonably evaluated its Sample Task 2 proposal when the agency

incorrectly noted that plaintiff failed to provide information that it did, in fact, provide.

See id. at 43-46. Defendant responds that plaintiff’s assertions amount to disagreements

with the VA’s evaluation and that plaintiff “has not identified any legitimate basis to

7

For example, while, as plaintiff points out, offeror 57 and plaintiff both received

diminished ratings for their failure to fully depict their services in their architecture/network

diagrams, and plaintiff received a significant weakness, while offeror 57 received a weakness,

the agency notes some differences in its evaluations of each proposal. Compare ECF No. 45-12

at 899 with id. at 846. Specifically, the agency noted that plaintiff failed to “clearly depict the [ ]

. . . it used,” id. at 846, while offeror 57 showed one environment and at least parts of a second,

see id. at 899. 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

question the VA’s discretionary analysis” of plaintiff’s proposal. ECF No. 85 at 43; see

also id. at 43-48, 52-56.

The record reveals that the agency conducted a thorough evaluation of each

proposal. See ECF No. 45-12 at 1284-89 (detailing the evaluation). The VA’s review

included:

(1) 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. 45-5 at 49-196;

(2) An initial competitive range determination memorandum, and a

confirmation of that determination after items for negotiation were

considered, see id. at 239-42;

(3) 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. 45-12 at 752-1066;

(4) A second, more than 200-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

(5) 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.

Taking into account the detail of the VA’s evaluation, the court cannot credit

plaintiff’s assertion that the VA failed to “give its proposal a fair reading.” ECF No. 78

at 46. 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, 371 U.S. at 168). 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 its proposal amount to disagreements

with the VA’s conclusions.

18

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 prejudice. See ECF No. 100 at 13, 16, 18. Defendant

further argues that, because the solicitation provided for multiple awards 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 13-18.

Plaintiff responds that if it had received the scores it “should have received,” it

would have been “well above four companies in the second competitive range,” and

“would have received award.” ECF No. 102 at 9. Further, plaintiff argues, it has

“advanced non-frivolous allegations that five of the nine [awardees] should have been

removed from consideration entirely,” would have ensured plaintiff was “within the final

seven companies to whom the Agency contemplated making award.” Id.; see also id. at

10 (making the same argument related to the “immitigable OCIs the Agency never

considered”). Thus, plaintiff contends, it has standing to raise each of these issues. See

id. at 10-17.

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 “that the Solicitation prohibited,”

ECF No. 78 at 23; and (2) Aptive failed to submit its required CTAs as part of its

management proposal, see id. at 26-27. Likewise, four other awardees failed to submit

signed veterans employment certifications. See id. at 25. According to plaintiff, by

permitting Aptive and the other awardees to proceed with proposals that failed to

conform to the solicitation requirements, the VA treated them more favorably than

plaintiff. See id. at 26-27. Plaintiff contends that if the other offerors had been

“evaluated . . . according to the Solicitation’s requirements, [plaintiff] had a substantial

19

chance of receiving an award.” Id. at 27. Plaintiff further argues that it has standing to

pursue this claim because had the agency properly evaluated these proposals and

eliminated them, “there would have been fewer than seven companies in that range, [and

plaintiff] would have been included.” ECF No. 102 at 13 (emphasis in original).

Defendant responds that because plaintiff “cannot establish that it was improperly

eliminated from the competitive range . . ., there is no basis for [plaintiff] to argue that it

was prejudiced by the VA’s alleged failures to eliminate nonresponsive proposals.” ECF

No. 85 at 72. Defendant further argues that “Aptive’s inclusion [in the competitive

range] is independent and distinct from [plaintiff’s] elimination.” ECF No. 100 at 12.

And, because the “solicitation did not establish that the agency would make a certain

number of awards,” “the removal of one Offeror” from the group of the “most highly

rated proposals” “does not elevate another offeror . . . to the most highly rated.” Id. at 12.

To succeed on its argument that the VA should have excluded other offerors,

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 the proposals, 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 its proposal “was either next in line for admission to the

competitive range or the second company in line,” is insufficient under the multi-award

circumstances here. ECF No. 102 at 6; 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. 100 at 12.

Therefore, regardless of the VA’s evaluation of the other proposals, 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).

2. Plaintiff Was Not Prejudiced by the VA’s Alleged Improper Use of

Competitive Range Procedures

Plaintiff argues that the VA “neither gave meaningful consideration to all

evaluation criteria nor had any reason to conduct discussions,” making its use of a

20

competitive range inappropriate. 8 ECF No. 78 at 47. According to plaintiff, the VA’s

establishment of the competitive range “was a disguised source selection decision.” Id.

Plaintiff contends that the IFNs the agency issued for discussions were “intended to cure

Solicitation compliance defects” and to request information about past performance “that

the Agency already knew the answers to and for which it performed an entirely

perfunctory and undocumented evaluation.” Id. This, plaintiff argues, demonstrated that

the VA did not “intend to use the competitive range determination to cull out additional

offers,” id., and made the VA’s source selection decision “defective,” ECF No. 89 at 27.

Defendant responds that the agency properly utilized competitive range

procedures, and plaintiff lacks standing to advance this claim. See ECF No. 85 at 61-64;

ECF No. 100 at 15-16. Defendant notes that the agency actions were reasonable, in

compliance with the regulations, and within its discretion. See ECF No. 85 at 62-63.

The VA, defendant contends, appropriately issued specific items for discussion in the

IFNs, see id. at 62, 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 63. Thus, according to defendant, the VA’s use of the competitive range

was “proper and should be upheld,” id. at 64, and plaintiff’s “unsupported speculation

about the agency’s intent should be rejected by the Court,” id. at 63. 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 have no bearing on [plaintiff’s] chances to improve its

proposal or its chances for award.” ECF No. 100 at 16.

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 either next in line for

admission to the competitive range or the second company in line,” is insufficient. ECF

No. 102 at 6; see also Wis. Physicians, 151 Fed. Cl. at 43. There was no guaranteed

number of awards in this procurement, and the solicitation contemplated only seven

awards. See ECF No. 45-2 at 431. Plaintiff’s proposal was effectively the tenth or

eleventh highest rated proposal. See ECF No. 102 at 6 (stating that plaintiff’s proposal

was “either next in line for admission to the competitive range or the second company in

line”); ECF No. 45-19 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

8

To the extent plaintiff’s argument on this point re-asserts its prior argument that the VA

failed to properly evaluate the proposals, the court has already reviewed that argument and

determined that the agency’s evaluation of the proposals was reasonable. See supra, Section B.

21

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. 78 at 46-48.

Further, to the extent that plaintiff’s assertion that the VA performed a “cursory

analysis of anything other than the Technical factor and . . . turn[ed] that Technical factor

into a go/no-go evaluation” is an argument that had the VA evaluated the whole proposal,

plaintiff would have been more likely to secure the contract, such argument is unavailing.

Id. at 48. 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; ECF No. 45-19 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 procurement is “tainted” by “immitigable OCIs” involving

Booz Allen Hamilton (BAH). ECF No. 78 at 18. 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. (citing ECF

No. 45-5 at 297; ECF No. 45-7 at 148; ECF No. 45-20 at 16). This, plaintiff contends,

gives rise to “all three types of OCI with respect to this Solicitation.” Id. at 21.

Specifically, plaintiff argues that “the Agency failed to appropriately analyze the

acquisition to avoid, neutralize, or mitigate BAH’s significant and immitigable OCIs

even though the Agency was aware of BAH’s role in the EHRM program and its status as

a proposed Major Subcontractor to two offerors.” Id. at 22. Plaintiff argues that it has

standing to bring these claims because “there is nothing in the record to suggest that

[plaintiff] would not be included [in the competitive range] were Aptive and Decisive

Point eliminated.” ECF No. 102 at 17.

Defendant contends 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.

85 at 80. According to defendant, plaintiff’s allegations are “speculation.” Id.

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

22

the competition for [ ] task orders.” Id. 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. at 81. Defendant thus contends that the court

should defer to the contracting officer’s “‘considerable discretion’” in identifying

conflicts. Id. at 82.

Defendant further contends that “[plaintiff] has no standing to challenge the

contracting officer’s award of contracts to offerors with BAH as a subcontractor because

[plaintiff’s] proposal had been eliminated from the competitive range.” ECF No. 100 at

17. According to defendant, the multiple possible awards, and the fact that the agency

ultimately awarded more contracts than it originally planned, means that “[e]ven if

[plaintiff] were correct and the contracting officer were to determine that those offerors

with BAH as a subcontractor have a conflict that cannot be mitigated and therefore are

ineligible for award, [plaintiff’s] proposal would not be improved and thus brought back

into consideration for award.” Id.

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 either next in line for admission to the competitive range or the

second company in line,” is insufficient. ECF No. 102 at 6; 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. 78, is DENIED;

(2) Defendant’s and intervenor-defendants’ cross-motions for judgment on the

AR, ECF No. 80, ECF No. 83, and ECF No. 85, are GRANTED;

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(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

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