Iap Worldwide Services, Inc. v. United States

In the United States Court of Federal Claims

No. 21-1570C

(Filed Under Seal: March 28, 2022)

(Reissued for Publication: April 5, 2022)

)

IAP WORLDWIDE SERVICES, INC., )

)

Plaintiff, )

)

v.

)

THE UNITED STATES, )

)

Defendant, )

)

and )

)

VECTRUS SYSTEMS CORPORATION, )

Defendant- )

Intervenor. )

)

Kara L. Daniels, Arnold & Porter Kaye Scholer LLP, Washington, D.C., for Plaintiff. Of

counsel were Nathaniel E. Castellano, Thomas A. Pettit, and Aime JH Joo.

Tanya B. Koenig, Commercial Litigation Branch, Civil Division, United States Department

of Justice, Washington, D.C., for Defendant. With her on the briefs were Brian M. Boynton,

Acting Assistant Attorney General, Martin F. Hockey, Jr., Acting Director, and Reginald T.

Blades, Jr., Assistant Director. Of counsel was Major Seth Ritzman, Contract Litigation &

Intellectual Property Division, United States Army Legal Services Agency, Fort Belvoir,

VA.

Adam K. Lasky, Seyfarth Shaw LLP, Seattle, WA, for Defendant-Intervenor. Of counsel

were Edward V. Arnold, Stephanie B. Magnell, and Bret C. Marfut, Seyfarth Shaw LLP,

Washington, DC.

MEMORANDUM OPINION *

SOLOMSON, Judge.

This case involves a billion dollar procurement; the range and number of the

parties’ arguments reflect the stakes of the dispute.

In this post-award bid protest action, Plaintiff, IAP Worldwide Services, Inc.

(“IAP”), challenges the decision of Defendant, the United States — acting by and through

the U.S. Department of the Army, Army Contracting Command–Aberdeen Proving

Ground (the “Army”) — to award the Operations, Maintenance, and Defense of Army

Communications in Southwest Asia and Central Asia (“OMDAC-SWACA”) contract to

Defendant-Intervenor, Vectrus Systems Corporation (“Vectrus”). IAP contests that

contract award as arbitrary, capricious, an abuse of discretion, or otherwise not in

accordance with law, including provisions of the Federal Acquisition Regulation (the

“FAR”). The parties filed cross-motions for judgment on the administrative record

pursuant to Rule 52.1 of the Rules of the United States Court of Federal Claims (“RCFC”).

For the reasons set forth below, the Court finds for IAP on a single issue, but

declines to issue either monetary or injunctive relief, at least on the record as it currently

stands. Instead, the Court orders supplemental briefing on the question of appropriate

relief. Whether this case ultimately yields IAP a pyrrhic victory remains to be seen.

I. FACTUAL BACKGROUND 1

A. The Solicitation

On April 3, 2019, the Army issued Solicitation No. W91RUS-19-R-0018 (the

“Solicitation” or “RFP”) for the OMDAC-SWACA contract, seeking operations and

*Pursuant to the protective order in this case, the Court initially filed this opinion under seal on

March 28, 2022, and directed the parties to propose redactions of confidential or proprietary

information by April 4, 2022. The parties have jointly submitted proposed redactions to the

Court. ECF No. 53. The Court adopts those redactions, in part, as reflected in this public version

of the opinion. Words or phrases that are redacted entirely have been replaced with [ * * * ], while

redactions via substitution are denoted simply in brackets (e.g., [Alpha]).

1This background section constitutes the Court’s findings of fact drawn from the administrative

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

as intending to provide for an expedited trial on the record” and requires the Court “to make

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

Bannum, Inc. v. United States, 404 F.3d 1346, 1354, 1356 (Fed. Cir. 2005). Citations to the

administrative record (ECF Nos. 26, 27, as amended by ECF No. 28) are denoted as “AR” followed

by the page number. Additional findings of fact are made throughout Section V.

2

maintenance services for communications and information systems supporting the 160th

Signal Brigade of the U.S. Army Central, its subordinate units, U.S. Central Command,

and the U.S. Army Regional Cyber Center Southwest Asia. 2 The services are for various

locations, including sites in Afghanistan, Iraq, Kuwait, Bahrain, the United Arab

Emirates, Jordan, and Qatar. 3

The Solicitation informed potential offerors that the Army intended to award a

single performance-based contract utilizing cost-plus-fixed-fee and cost-reimbursable

contract line items (“CLINs”), with a performance period of two sixty-day phase-in

periods, an eight-month base period, and four one-year option periods. AR 3756 (§ B.2);

AR 3974. The planned contract is estimated to be worth over one billion dollars. 4 Vectrus

is the incumbent contractor for the services sought in the RFP. AR 301 (Acquisition Plan).

Proposals were due on May 17, 2019. AR 3951 (§ L.4.1.A).

The Solicitation instructed offerors to submit proposals addressing four factors (in

descending order of importance): (1) mission support/technical approach (“MS/TA”);

(2) past performance; (3) cost; and (4) small business participation. AR 3113 (§ M.1.A).

The RFP similarly specified that this is a “best value” procurement and that “[a]ll non-cost

factors[,] when combined[,] are significantly more important than the cost factor.” AR

3113 (§ M.1.A). The Solicitation emphasized that “[o]fferors must clearly demonstrate

their ability to meet all requirements specified in [the] solicitation” and that “[f]ailure to

furnish full and complete information that demonstrates the [o]fferor’s ability to satisfy

the specified requirements may cause an offer to be considered unacceptable and

therefore will be ineligible for award.” AR 3114 (§ M.1.A). The Army cautioned offerors

that “the [o]fferor with the lowest overall estimated cost to the [g]overnment” is not

guaranteed to win the award, as the government may determine that “the non-cost

benefits offered by another [o]fferor [may] warrant paying a higher cost.” AR 3113

(§ M.1.A). 5

2AR 2784 (§ A), 3755–56 (§ B.1), 3768 (§§ C.1.0, C.2.0) (“Contractor shall provide . . . operation and

maintenance (O&M) support of Title X telecommunications equipment and information systems

that is U.S. Government owned or leased and under the operational purview of the Network

Enterprise (NETCOM), 160th Signal Brigade and its subordinate units in the Southwest Asia

(SWA) and Central Asia (CA) Theaters of operation.”).

3 AR 3768 (§ C.2.0).

4AR 306 (Acquisition Plan) (“The total estimated cost of [the] 160th Signal Brigade

OMDAC-SWACA procurement over the life of the contract, including all options . . . is

approximately $[ * * * ].”); AR 9168 (Initial Price/Cost Proposal Analysis) (“[T]he Independent

Government Estimate (IGE) used for evaluation purposes is $[ * * * ].”).

5 The Solicitation provided that the Army would utilize “a best value approach that permits a

trade-off assessment” and award the contract to the offeror “whose proposal conforms to the

solicitation requirements” and “presents the best value to the [g]overnment, with appropriate

3

The Solicitation repeatedly advised offerors that “the [g]overnment intends to

award a contract without discussions, but reserves the right to hold discussions, if

necessary,” and, thus, “cautioned” offerors “to examine [the] solicitation in its entirety

and to ensure that their proposal[s] contain[] all necessary information, provide[] all

required documentation, and [are] complete in all respects.” AR 3952 (§ L.5.1.A); see also

AR 3113 (§ M.1.A) (“[I]t is the [g]overnment’s intention to award without discussions.

Offerors are encouraged to present their best technical proposal and costs in their initial

proposal submissions. Should the Contracting Officer determine discussions are

necessary[,] the [g]overnment reserves the right to hold them.”); AR 3123 (§ M.5) (noting

government’s intent to award without discussions based upon initial offers).

Nevertheless, the RFP provided that, in the event the Army decided to engage in

discussions, “a competitive range will be determined and [o]fferors [will be] notified of

inclusion/exclusion,” but “[t]he competitive range may be limited for purposes of

efficiency.” AR 3113 (§ M.1.A).

1. Factor 1 – Mission Support/Technical Approach

Pursuant to the Solicitation, the MS/TA factor is the most important evaluation

factor in the best value calculus. AR 3113 (§ M.1.A). For this factor, the RFP required

offerors to propose their management and technical solution based on the specific

requirements listed in the Performance Work Statement (“PWS”) and supporting

documents, including technical exhibits and attachments. AR 3960–61 (§ L.8.2). The

MS/TA evaluation factor is divided into four subfactors: (1) management (“Subfactor 1”);

(2) technical (“Subfactor 2”); (3) property management (“Subfactor 3”); and (4) quality

control (“Subfactor 4”). AR 3113 (§ M.1.A), 3115 (§ M.3). Subfactor 1 is the most

important subfactor, while Subfactor 2 is more important than Subfactors 3 and 4. AR

3113 (§ M.1.A).

The RFP instructed Offerors that MS/TA proposals should be “sufficiently

specific, detailed, and complete as to demonstrate clearly and fully that the [o]fferor has

a thorough understanding and knowledge of the complexities inherent in the

performance of this requirement.” AR 3960 (§ L.8.2). Offerors were encouraged to

provide “a holistic approach versus addressing each PWS element.” AR 3961 (§ L.8.2).

Furthermore, offerors were warned that “[s]tatements that the [o]fferor understands, can,

or will perform the requirements of the PWS without supporting information or

considerations given to trade-offs between the cost and non-cost factors.” AR 3113 (§ M.1.A);

see also AR 311 (Acquisition Plan) (“This acquisition will utilize a best value approach that permits

trade-offs between cost and non-cost factors allowing the [g]overnment to accept other than the

highest technically rated, and/or the lowest priced proposal.”); AR 9169 (Initial Price/Cost

Proposal Analysis) (“Evaluation and award of this contract will be made in accordance with the

Best Value Continuum Tradeoff procedures described in Federal Acquisition Regulation (FAR)

15.101-1, Tradeoff Process for a Best Value Decision.”).

4

narratives are inadequate.” AR 3960 (§ L.8.2); see also AR 3953 (§ L.6.2) (warning offerors

that “[u]nless specifically stated,” offerors shall not “paraphrase the requirements of the

PWS, or use phrases such as ‘unsurpassed levels of reliability,’ or ‘standard techniques

will be employed’”); AR 3961 (§ L.8.2) (similar instructions); AR 3961 (§ L.8.2) (cautioning

that “[p]roposals that merely mimic the PWS may receive a less favorable evaluation

rating”); AR 4112 (Source Selection Plan) (“mere promises to comply with contractual

requirements are insufficient basis for a favorable rating; evidence is required in support

of any statements relating to promised performance”).

For Subfactors 1 and 2, the RFP provided that proposals would be adjectivally

rated as “Outstanding,” “Good,” “Acceptable,” “Marginal,” or “Unacceptable.” 6 AR

3116 (§ M.4.a). These ratings were to be based on the Army evaluation team’s

“consideration of risk” together with an offeror’s assessed “strengths, weaknesses,

significant weaknesses, uncertainties, and deficiencies.” AR 4113 (Source Selection Plan).

Subfactors 3 and 4, in contrast, were rated on a pass/fail basis. AR 3116 (§ M.3.1). For

each offeror’s overall MS/TA rating, the Army evaluators developed a consensus for the

adjectival rating utilizing the same scale as for Subfactors 1 and 2. AR 3116 (§ M.3.1).

To be considered for award, an offeror had to receive an overall MS/TA rating of

“Acceptable” or higher. AR 3113 (§ M.1.A). An offeror that received a rating of less than

“Acceptable” (i.e., “Marginal” or “Unacceptable”) on “Sub-factors 1 and 2,” or a failing

score on “Sub-factors 3 and 4,” would “not move forward in the source selection process,

and [would] not be considered for award.” AR 3113–14 (§ M.1.A) (emphasis added).

a. Subfactor 1 – Management

For Subfactor 1, the RFP directed offerors to propose an “effective management

approach/solution,” and “describe, in detail, [their] overall experience and

[m]anagement approach for this effort, understanding of the requirement, feasibility of

the approach, and completeness of the proposed solution.” AR 3116–17 (§ M.4), 3961

6An “Outstanding” rating is assigned to a proposal that “indicates an exceptional approach and

understanding of the requirements and contains multiple strengths, and risk of unsuccessful

performance is low.” AR 3116 (§ M.4.a). A “Good” rating is assigned to a proposal that “indicates

a thorough approach and understanding of the requirements and contains at least one strength,

and risk of unsuccessful performance is low to moderate.” AR 3116 (§ M.4.a). An “Acceptable”

rating is assigned to a proposal that “meets requirements and indicates an adequate approach

and understanding of the requirements, and risk of unsuccessful performance is no worse than

moderate.” AR 3116 (§ M.4.a). A “Marginal” rating is assigned to a proposal that “has not

demonstrated an adequate approach and understanding of the requirements, and/or risk of

unsuccessful performance is high.” AR 3116 (§ M.4.a). An “Unacceptable” rating is assigned to

a proposal that “does not meet requirements of the solicitation, and thus, contains one or more

deficiencies, and/or risk of unsuccessful performance is unacceptable,” and, as such, the

“[p]roposal is unawardable.” AR 3116 (§ M.4.a).

5

(§ L.8.2.A). This portion of the proposal had to contain: (1) the offeror’s methodologies

related to its corporate and program management organizational approach/solution

(§ L.8.2.A.1); (2) methodologies and solution to provide government “oversight and/or

tracking in . . . key areas,” including key personnel (§ L.8.2.A.2); (3) “managing multiple

locations across the theater with varying types and size sites” (§ L.8.2.A.3); (4) a contract

“phase-in” plan and procedures for in-processing new employees (§ L.8.2.A.4);

(5) “change management and continuous process and service improvement”

(§ L.8.2.A.5); (6) recruitment and retention, including a description of how full

performance will be maintained during employee absences (§ L.8.2.A.6); and (7) training

and certification program (§ L.8.2.A.7). 7 AR 3961–62.

In general, for Subfactor 1, the Army evaluated proposals to determine the

offeror’s “capability and experience to provide an effective management

approach/solution.” AR 3116 (§ M.4.b).

b. Subfactor 2 – Technical

With respect to Subfactor 2, the RFP instructed offerors to address three elements:

technical approach, staffing capability, and labor category descriptions. AR 3962–64

(§ L.8.2.B). First, the RFP directed offerors to “describe the proposed technical approach

for performing the technical requirements set forth in the PWS,” its attachments, and

technical exhibits, including:

• Capability to support the Layered Defense of the Army

network.

• Capability to support operating, maintaining[,] and

defending the following: United States Army Regional

Cyber Center-Southwest Asia (USARCC-SWA), Regional

Network Operations and Security Center (RNOSC),

Post/Camp/Station (P/C/S) Support, Communication

Support Services, Telephone, Inside Plant/Outside Plant,

and Cable, Transmission Services, Supporting the Theater

Logistics Support Facility (TLSF) functions.

• Capability to support the existing and emerging

communications systems and facilities.

AR 3962–63 (§ L.8.2.B.1). Offerors had to demonstrate that their technical approach

reflected “an understanding of the technical requirements to provide support for the

7Sections L.8.2.A.3, L.8.2.A.4, and L.8.2.A.6 of the RFP indicated that offerors who “thoroughly

demonstrate” an approach in those areas “may receive a more favorable rating” on Subfactor 1.

AR 3961–62.

6

identified services listed in [the PWS], inclusive of Attachments and Technical Exhibits.”

AR 3963 (§ L.8.2.B.1). Offerors also were directed to “discuss [their] ability to plan,

organize, implement, sustain, and adapt to changing environments in response to the

specifications set forth in the PWS.” AR 3963 (§ L.8.2.B.1).

Second, offerors were required to demonstrate their “[c]apability to [s]taff the

[e]ffort.” AR 3963 (§ L.8.2.B.2). In that regard, offerors were instructed to propose a

staffing solution based on the technical requirements in the PWS, including Technical

Exhibit 2 (Supported Locations). AR 3117 (§ M.4.c); see also AR 3823 (§ C.4.4) (“The

[c]ontractor shall provide staffing to accomplish the requirements of the PWS. Normal

hours of operation for each site are specified in [Technical Exhibit] 2.”); AR 3743 (RFP

Amendment 0003, Section A – RFP Questions/Answers) (“The [o]fferor shall propose

their solution based on the requirements in the PWS and throughout the solicitation

([Technical Exhibits], etc[.]) . . . .”).

In contrast to the performance requirements contained in Technical Exhibit 2, the

Army provided estimated staffing levels in RFP Attachment 8 and estimated workload data

in RFP Attachment 9 “to assist [o]fferors in understanding the magnitude of the

requirement.” AR 3969 (§ L.8.4.7). Based on the information the Army provided, offerors

had to “develop their own proposed number and type of workforce to perform those

functions” and provide a staffing matrix that addressed “overall staffing structure and

staffing levels by site based on [the offerors’] proposed technical [approach].” AR 3963

(§ L.8.2.B.2). Specifically, offerors were required to submit detailed information about

the type and level of support in each proposed labor category, including: (1) specific job

title; (2) part-time or full-time position; (3) total hours per week; (4) work days; and

(5) employee duty hours. AR 3963 (§ L.8.2.B.2). Offerors were warned against “merely

mimicking” the estimates in Attachments 8 and 9 and were advised instead to “propose

an innovative staffing solution based off workload data.” AR 3963 (§ L.8.2.B.2); see also

AR 3743 (RFP Amendment 0003, Section A – RFP Questions/Answers) (“[Attachment 8]

is the is the government estimate of personnel. [It is] not intended to be an [o]fferor’s

solution, rather examples of possible solutions.”). Additionally, offerors were to

“provide their recommended fill rate(s) at full performance start date, and describe their

plans to maintain these resources through the life of the contract.” AR 3963 (§ L.8.2.B.2).

Finally, the Solicitation provided that “proposal[s] [that] thoroughly demonstrate[]” a

capability to staff the effort “may receive a more favorable rating for [Subfactor 2],” and

“proposal[s] [that] merely mimic[] the estimate[s]” in Attachments 8 and 9 “may receive

a less favorable evaluation rating.” AR 3963 (§ L.8.2.B.2).

Third, the RFP required offerors to provide a chart that included descriptions of

the qualification requirements for each proposed labor category “that reflect the

qualification requirements in the PWS and its Technical Exhibits,” including

“qualifications, type of experience, education, training[,] and certifications.” AR 3964

7

(§ L.8.2.B.3). Specifically, offerors had to “provide the following information in the

[following] specified format for each proposed labor category”:

Job Security Experience Skill Set Training IT/IAT/IAM/Other

Title/Labor Clearance & Certification(s) Required Certification(s)

Category Education and Level

AR 3964 (§ L.8.2.B.3).

The Army evaluated an offeror’s Subfactor 2 proposal for compliance with the

“technical requirements” in the PWS, including whether the offeror “demonstrate[d] an

understanding of the requirement to provide support to the identified services listed in

[the PWS], inclusive of Appendices.” AR 3117 (§ M.4.c).

c. Subfactor 3 – Property Management

For the property management subfactor, the Solicitation instructed offerors to

“describe [an] adequate system of internal controls to manage (control, use, preserve,

protect, repair and maintain) [g]overnment property in its possession.” AR 3964

(§ L.8.2.C). The Army assessed this subfactor on a pass/fail basis. AR 3116 (§ M.3.1)

d. Subfactor 4 – Quality Control

Finally, the quality control subfactor required offerors to “describe, in detail, the

proposed quality of the services provided under this contract, and the manner in which

they are monitored.” AR 3964 (§ L.8.2.D). As with Subfactor 3, the Army assessed

Subfactor 4 on a pass/fail basis. AR 3116 (§ M.3.1).

2. Factor 2 – Past Performance

The past performance factor required the Army to “evaluate the [o]fferor’s record

of past and current performance to ascertain the probability of successfully performing

the required efforts of the PWS.” AR 3118 (§ M.4.3). Offerors had to provide a “[l]ist of

[p]ast [p]erformance [r]eferences,” and each reference listed was required to submit a

“Past Performance Questionnaire” (RFP Attachment 11) detailing the offeror’s past work.

AR 3965 (§ L.8.3.A.1). Additionally, the RFP instructed offerors to “submit a description

of their [g]overnment and/or [c]ommercial contracts . . . in performance during the past

three (3) years[,] which are relevant to the efforts required by this solicitation,” along with

“at least three (3), but no more than five (5), referenced contracts . . . that are relevant in

type and magnitude.” AR 3965 (§ L.8.3.A.2).

8

In assessing this factor, the Army conducted “a performance risk assessment based

on the relevancy and recency of the [o]fferor’s past performance, as well as that of its

proposed subcontractors and team members as it relates to the probability of successful

accomplishment of the required effort.” AR 3118 (§ M.4.3). Thus, for this factor, the

Army assigned offerors both a “relevancy” rating (“Very Relevant,” “Relevant,”

“Somewhat Relevant,” or “Not Relevant”) and a “confidence” rating (“Substantial

Confidence,” “Satisfactory Confidence,” “Neutral Confidence,” “Limited Confidence,”

or “No Confidence”). AR 3119–20 (§ M.4.3).

3. Factor 3 – Cost

The Army assessed the cost factor independently of all other factors. AR 8877

(SSEB Briefing Slides). The Solicitation indicated that an offeror’s overall proposed cost

“shall consist of the total of the cost identified in Schedule B of the solicitation for the

8-month base year and each of the four option years of the contract, to include the fee

amounts.” AR 3121 (§ M.4.4.b). Offerors had to submit a “cost workbook” with “cost

worksheets” and a cost narrative that “describes the methodology used in the

development of the cost factors and the total proposed cost.” AR 3967 (§ L.8.4).

Furthermore, offerors were instructed that the information submitted in the cost

workbook “shall fully support the development of each proposed Schedule B CLIN[]

price.” AR 3967 (§ L.8.4.1). Like the MS/TA factor, the cost factor instructions

discouraged offerors from mimicking the estimated staffing and workload data and

indicated that those that do so may receive “a less than favorable” rating. AR 3969

(§ L.8.4.7).

Offerors were further directed to submit two cost proposals: a “sanitized” version

and an “unsanitized” version.8 AR 3969 (§ L.8.4.5). The Solicitation indicated that the

sanitized version “will be provided to the [MS/TA] team to capture any [labor] hour

adjustments for cost realism analysis.” AR 3969 (§ L.8.4.5).

In accordance with FAR 15.404–1 (“Proposal analysis techniques”), the RFP

indicated that the Army would evaluate cost based on “an assessment of cost realism and

most probable cost . . . to determine the reasonableness of proposed costs in relation to

the [o]fferor’s specific technical approach.” AR 3121 (§ M.4.4.a). As is typically the case

in a procurement involving a cost-reimbursement contract, the Army was not limited to

assessing an offeror’s proposed costs, but rather the Army developed a most probable

cost (“MPC”) estimate the Army employed “in making the best value determination.”

8 An “unsanitized” cost proposal is a “complete cost proposal[] that include[s] all required

information.” AR 3969 (§ L.8.4.5). A “sanitized” cost proposal is one that “exclude[s] all company

proprietary or sensitive data, including cost and price information, but must include a breakdown

of the total labor hours and categories proposed by task and a breakout of the types of all

proposed [o]ther [d]irect [c]osts.” AR 3969 (§ L.8.4.5).

9

AR 3121 (§ M.4.4.b). The RFP further informed offerors that the evaluators “may also use

other techniques,” including “comparison of prices based on adequate price competition,

comparison to the [Independent Government Cost Estimate] in addition to, or in

combination with cost realism to determine price reasonableness.” AR 3121 (§ M.4.4.d).

4. Factor 4 – Small Business Participation

The small business participation factor required offerors to submit a proposed

“Small Business Participation Commitment Document.” AR 3970 (§ L.8.5). The Army

rated each offeror’s “commitment to use small businesses” as “Outstanding,” “Good,”

“Acceptable,” “Marginal,” or “Unacceptable” based on the “Small Business Participation

Rating Method.” AR 3122 (§ M.4.5).

B. Proposals, Evaluations, and Contract Award

The Army received timely proposals from five offerors: (1) IAP; (2) [Kilo];

(3) [Alpha]; (4) [Juliet]; and (5) Vectrus. AR 4152–4916 (IAP Proposal); AR 4917–5525

([Kilo] Proposal); AR 5526–6524 ([Alpha] Proposal); AR 6525–7891 ([Juliet] Proposal); AR

7892–8640 (Vectrus Proposal). Each offeror was assigned a phonetic code name to be

used during the evaluation process: “Alpha” for [ * * * ], “Delta” for IAP, “Foxtrot” for

Vectrus, “Juliet” for [ * * * ], and “Kilo” for [ * * * ]. AR 2074 (RFI Special Notice No. 8);

AR 2076–80 (Naming Convention Assignments).

1. The Army’s Evaluation of Proposals

In accordance with the Source Selection Plan, the Source Selection Team was

comprised of a Source Selection Evaluation Board (“SSEB”), a Source Selection Advisory

Council (“SSAC”), and a Source Selection Authority (“SSA”). AR 9311 (SSEB Initial

Report); see also AR 4107 (Source Selection Plan). The SSEB conducted the first review

and consisted of separate teams to evaluate each of the four evaluation factors the

Solicitation identified. AR 4109, 4117. The SSEB consolidated the findings of the

individual teams into a single report. AR 4109, 4117. The SSAC conducted the second

review. AR 4108–09, 4117. The SSAC “[r]eview[ed] the evaluation results of the SSEB to

ensure the evaluation process follow[ed] the evaluation criteria and the ratings [were]

appropriately and consistently applied” and “[c]onsolidate[d] the advice and

recommendations . . . into a written comparative analysis and recommendation” for the

SSA to consider. AR 4108–09; see also AR 9388 (SSAC Final Report). The SSA conducted

the final review, comparing “the proposals to determine the offer(s) that represent[ed]

the best value to the [g]overnment, taking into consideration the stated evaluation factors,

and their respective weightings as specified in the RFP.” AR 4118–19; see also AR 9399

(Source Selection Decision Document).

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a. The MS/TA Evaluation

Members of the MS/TA evaluation team “independently evaluated each proposal

with respect to each of the subfactors within the [MS/TA] [f]actor,” AR 9402, and

assigned strengths, weaknesses, deficiencies, and uncertainties based on the following

definitions contained within the Source Selection Plan:

o Significant Strength: An aspect of an [o]fferor’s proposal

that has appreciable merit or appreciably exceeds

specified performance or capability requirements in a way

that will be appreciably advantageous to the

[g]overnment during contract performance.

o Strength: An aspect of an offeror[’s] proposal that has

merit or exceeds specified performance or capability

requirements in a way that will be advantageous to the

[g]overnment during contract performance.

o Weakness: A flaw in the proposal that increases the risk of

unsuccessful contract performance. See FAR 15.001.

o Significant Weakness: A flaw in the proposal that

appreciably increases the risk of unsuccessful contract

performance. See FAR 15.001.

o Deficiency: A material failure of a proposal to meet a

[g]overnment requirement or a combination of significant

weakness[es] in a proposal that increases the risk of

unsuccessful contract performance to an unacceptable

level. See FAR 15.001.

o Uncertainty: An aspect of a non-cost/price factor proposal

which the intent of the offer is unclear (e.g., more than one

way to interpret the offer or inconsistencies in the

proposal indicating that there may have been an error,

omission, or mistake). 9

AR 9072 (MS/TA Team Initial Report); see also AR 4115–16 (Source Selection Plan).

9 These definitions are consistent with the FAR’s definitions of “deficiency,” “weakness,” and

“significant weakness.” See FAR 15.001 (defining “[d]eficiency” as “a material failure of a

proposal to meet a [g]overnment requirement or a combination of significant weaknesses in a

proposal that increases the risk of unsuccessful contract performance to an unacceptable level,”

“[w]eakness” as “a flaw in the proposal that increases the risk of unsuccessful contract

performance,” and “significant weakness” as “a flaw that appreciably increases the risk of

unsuccessful contract performance”).

11

After each team member independently reviewed the proposal evaluations, the

MS/TA team “[m]embers then conducted a team discussion to establish consensus

ratings” for the subfactors, while a “property management subject matter expert

independently reviewed and evaluated” Subfactor 3. AR 9071. The MS/TA team

composed draft Evaluation Notices (“ENs”) to be used in discussions. AR 9104–29.

i. IAP’s MS/TA Evaluation

The MS/TA evaluation team, in its initial report, found that IAP’s “proposal did

not meet the requirements of the solicitation, and contained one or more deficiencies.”

AR 9073. The MS/TA team accordingly assigned IAP an overall rating of “Unacceptable”

for the MS/TA evaluation factor. AR 9073. In particular, for Subfactor 1, IAP received

one significant strength, one strength, and one weakness, resulting in a “Good” rating

overall.10 AR 9073–76. For Subfactor 2, IAP received one deficiency, one significant

weakness, one weakness, and one uncertainty, resulting in an overall “Unacceptable”

rating for that subfactor. AR 9073, 9076–79. In sum, the MS/TA evaluation team found

that IAP “has not demonstrated an adequate approach and understanding of the

requirements,” and, thus, “[t]he risk of unsuccessful performance is unacceptable and the

proposal is unawardable.” AR 9073.

The SSEB adopted the MS/TA team’s evaluation findings, including IAP’s

“Unacceptable” rating for the MS/TA factor, and found IAP ineligible for award. AR

9319 (SSEB Initial Report) (“The proposal from [IAP], whose overall rating for [the

MS/TA] factor was Unacceptable, did not meet the minimal Acceptable rating required

for contract award consideration.”). Specifically, as relevant to this protest, the SSEB

assigned IAP a deficiency on Subfactor 2 due to IAP’s failure to adequately address the

Outside Plant (“OSP”) support requirements:

[IAP]’s proposal does not address the Outside Plant (OSP)

technical requirement in PWS paragraph C.3.7.2, which

supports all Iraq P/C/S. [IAP] proposed centralizing the

Inside Plant (ISP)/OSP teams by region where travel and

movement are feasible (Volume 2, paragraph 2.2.3.5.3, page

Vol. 2 - 72). The lack of support for the OSP requirement

creates a capability gap to support the OSP infrastructure at

P/C/S level within Iraq. The lack of OSP support within Iraq

is a deficiency because the proposal failed to provide OSP

support in accordance with [Technical Exhibit 2], which

specifies current locations and systems to be supported.

10 The Court does not discuss Subfactor 1 ratings in detail, as IAP abandoned all claims concerning

it. See discussion infra Section V.F. Similarly, IAP’s amended complaint does not challenge the

Army’s assessment of Subfactors 3 or 4.

12

[IAP]’s approach increases the risk of unsuccessful contract

performance to an unacceptable level because —

1 [IAP] did not identify the regions where teams would

provide support.

2 Although [IAP] proposed that [Network

Administrators] would provide the OSP support,

[IAP] removed the [Network Administrators] at all

locations in Iraq (Volume 2, paragraph 2.2.11, page

Vol. 2 - 85).

AR 9348.

Additionally, the SSEB assigned IAP a significant weakness on Subfactor 2 because

IAP proposed to reduce the number of Network Administrators without adequately

demonstrating how this approach would meet the workload requirements. The SSEB

also assigned a weakness for IAP’s failing to adequately demonstrate how its “top-down

approach,” which eliminates many Systems Administrators, could meet the workload

requirements. AR 9347–48. An uncertainty was assigned on Subfactor 2 for

inconsistencies between IAP’s proposed labor hours in its sanitized cost workbook and

in its staffing matrix. AR 9348–49.

ii. Vectrus’s MS/TA Evaluation

In contrast to IAP, Vectrus received an overall “Outstanding” rating for the

MS/TA factor. AR 9093 (MS/TA Team Initial Report). Specifically, for Subfactor 1,

Vectrus received two significant strengths and two strengths, resulting in a rating of

“Outstanding.” AR 9093–96. As for Subfactor 2, Vectrus received one significant strength

and one uncertainty, resulting in a rating of “Good.” AR 9096–99.

The SSEB adopted the MS/TA team’s evaluation of Vectrus, finding that Vectrus’s

“proposal indicates an exceptional approach and understanding of the requirements,”

with “multiple strengths” and minimal risk of “unsuccessful performance.” AR 9355

(SSEB Initial Report). Specifically, for Subfactor 1, the SSEB found that Vectrus’s

experience in southwest Asia and its organizational approach are “appreciably

advantageous” to the government, and thus constitute a significant strength. AR 9355–

56. Furthermore, the SSEB found Vectrus’s phase-in approach to be a significant strength,

as it “exceed[s] the [g]overnment’s requirements and ha[s] appreciable merit, providing

support that will be appreciably advantageous to the [g]overnment.” AR 9356.

For Subfactor 2, the SSEB assigned Vectrus a significant strength for Vectrus’s

“technical experience” within southwest Asia, finding Vectrus “demonstrated an

in-depth knowledge of operating, maintaining, and defending large, complex series of

13

communications networks deployed to the battlefield,” which has “appreciable merit and

will be appreciably advantageous to the [g]overnment.” AR 9356–57. While Vectrus was

assigned an uncertainty for inconsistencies in the proposed labor hours in its staffing

matrix and in its sanitized cost workbook, these findings “did not affect” Vectrus’s

Subfactor 2 rating. AR 9357.

b. The Cost Evaluation

The cost team evaluated offerors’ respective cost proposals. AR 9165 (Initial

Price/Cost Proposal Analysis). Criteria used to evaluate the cost factor included: (1) total

proposed price; (2) direct labor rates; (3) overtime; (4) indirect labor rates; (5) other direct

costs; (6) Defense Base Act insurance; and (7) total evaluated price, including the probable

cost of performance. AR 9169–70.

In accordance with FAR 15.404-1, the cost team conducted cost realism analyses.

AR 9183. First, the cost team conducted a cost realism analysis on the offerors’ prices to

determine whether the proposed costs are “[r]ealistic for the work to be performed,”

“[r]eflect a clear understanding of the requirements,” and “[a]re consistent with the

various elements of the offeror’s [MS/TA] factor.” AR 9183. The cost team also

conducted an MPC analysis “to determine the realism and reasonableness of proposed

costs in relation to the offeror’s specific technical approach.” AR 9183.

As delineated in the Solicitation, the MS/TA evaluators utilized the offerors’

sanitized cost proposals to assess whether the proposed labor hours were realistic based

on the proposed technical approach. AR 9322 (SSEB Initial Report). Any inconsistencies

between the labor hours proposed in the offeror’s technical approach and the sanitized

workbook were identified and relayed to the cost team for its cost realism analysis. AR

9197–9220 (Cross-Team Exchanges Between Cost Team and MS/TA Team). Based on the

MS/TA team’s evaluation, the cost team conducted a cost realism analysis on the

proposed labor hours and adjusted them accordingly. AR 9184. The cost team adjusted

four offerors’ proposed labor hours upward (IAP, Vectrus, [Kilo], and [Juliet]), but

adjusted [Alpha]’s proposed labor hours downward. 11 AR 9184. Finally, the cost team

performed a cost realism analysis on the offerors’ labor rates and adjusted those rates

where appropriate. AR 9187–88, 9195.

11 The MS/TA team initially noted a discrepancy in Vectrus’s calculation of its hours —

specifically, that “there was a formula error” in Vectrus’s cost workbook, which resulted in

“significantly underestimat[ed]” labor hours. AR 9184. The cost team later determined, however,

that “[a]lthough the total hours were calculated incorrectly” — that is, in the spreadsheet — “the

manner in which [Vectrus] calculated its proposed costs was correct.” AR 9193; see also AR 9362–

63 (SSEB Initial Report). Thus, Vectrus’s labor hours were adjusted to account for what was

simply a spreadsheet formula error. AR 9193; AR 9362–63; see also discussion infra Section V.D.2.

14

The cost team determined that IAP had the lowest total proposed price of $[ * * * ]

and the lowest total evaluated price of $776,954,538. AR 9171, 9183. Vectrus had the

second highest total proposed price of $[ * * * ] and the second highest total evaluated

price of $1,027,490,421. AR 9171, 9183. The cost team noted, however, that although

IAP’s proposed price was the lowest, IAP’s “average per hour [was] the highest at $[ * * * ]

since its proposed hours are much lower as compared to the other offerors.” AR 9185,

9195.

2. Contract Award

The SSAC, upon review of the SSEB evaluation results, determined that Vectrus

provided “the best overall proposal for non-cost factors” and that Vectrus’s “ratings for

[MS/TA] [a]pproach provide the Best Value to the [g]overnment” and is “worthy of the

additional cost.” AR 9397 (SSAC Final Report). Accordingly, the SSAC recommended

awarding the contract to Vectrus. AR 9388.

As for IAP, the SSAC rated IAP as “Unacceptable” on the MS/TA factor and found

IAP’s proposal unawardable, just as the SSEB had. AR 9391. Additionally, the SSAC

concluded that “[i]t is unlikely” that IAP would be able to “rectif[y]” its Subfactor 2

problems via discussions, but the SSAC did not further explain the rationale or basis for

that conclusion. AR 9392.

The SSA, after consulting the SSEB and SSAC reports, compiled a Source Selection

Decision Document (“SSDD”) explaining the ratings given to the five offerors in each

evaluation category. AR 9399–9413 (SSDD). The following table summarizes the

offerors’ ratings on each factor:

Rating/Cost

Factor/Subfactor

[Alpha] IAP Vectrus [Juliet] [Kilo]

MS/TA Good Unacceptable Outstanding Good Acceptable

Subfactor 1 Good Good Outstanding Good Acceptable

Subfactor 2 Acceptable Unacceptable Good Acceptable Acceptable

Subfactor 3 Pass Pass Pass Pass Pass

Subfactor 4 Pass Pass Pass Pass Pass

Past Performance

Relevancy Very Relevant Very Relevant Very Relevant Very Relevant Very Relevant

Confidence Substantial Substantial Substantial Substantial Substantial

Cost

Total Proposed Price $[ * * * ] $[ * * * ] $[ * * * ] $[ * * * ] $[ * * * ]

Total Evaluated Price $[ * * * ] $776,954,538 $1,027,490,421 $[ * * * ] $[ * * * ]

Small Business Part. Good Good Acceptable Outstanding Acceptable

AR 9404.

15

Given IAP’s overall “Unacceptable” rating for the MS/TA factor, the SSA

concluded that IAP was ineligible for the contract award. AR 9405 (“[IAP] is not eligible

for award based on Unacceptable ratings in Subfactor 2, Technical Approach, and in the

[o]verall [MS/TA] factor rating.”). The other four offerors qualified for consideration.

AR 9404 (“[F]our offerors are eligible for award consideration, while one, [IAP], is not

eligible for award based on an Unacceptable rating within Mission Support/Technical

Approach Factor.”).

Of the remaining offerors, the SSA found that [Kilo] “does not offer the best value

for the government,” as it had “the lowest acceptable ratings” on the MS/TA and small

business participation factors and the highest total proposed price and total evaluated

price; thus, the SSA concluded that [Kilo] “does not provide any technical or non-price

benefit to the [g]overnment that would justify the significantly higher price over other

higher-rated, lower priced eligible proposals.” AR 9410. Furthermore, while Vectrus had

a higher total proposed price and total evaluated price than [Alpha] or [Juliet], the SSA

determined that “the underlying merits of [Vectrus’s] Outstanding rating for Mission

Support/Technical Approach, combined with substantially the same or better benefits

under Past Performance and Small Business, as compared to Offerors Alpha and Juliet,

provides the best overall proposal, non-cost factors considered.” AR 9412.

Based on the best value “trade-off assessment,” the SSA determined that “there is

one offeror that offers the best value to the government and discussions are not required.”

AR 9404. The SSA further explained:

Based on an integrated assessment of the proposal

evaluations and the drafted evaluation notices, I have

determined that discussions would not result in any

meaningful benefit to the [g]overnment, or any changes to the

apparent outcome of the source selection decision. Thus, in

accordance with the terms and conditions of the solicitation,

a contract will be awarded without discussions and a

competitive range will not be established.

AR 9409; see also AR 9420 (Price Reasonableness Memorandum) (explaining that

“discussions were not entered into” because “[t]he SSA believed that discussions would

not be meaningful, as the deficiencies, weaknesses, and uncertainties annotated in the

evaluations would not produce higher evaluations, or markedly different cost(s)”).

Ultimately, the SSA followed the SSAC’s recommendation and selected Vectrus

for award, determining that its proposal “represents the best value to the [g]overnment

based on the . . . trade-off analysis” with a “fair and reasonable” proposed cost/price. AR

9413. Accordingly, on December 23, 2020, the Army notified Vectrus of its contract

award. AR 9435–36 (Notice of Contract Award to Vectrus). That same day, the Army

16

transmitted letters to IAP, [Kilo], [Alpha], and [Juliet], informing them of the contract

award to Vectrus. AR 9423–34 (Notices to Unsuccessful Offerors).

On December 29, 2020, the Army officially awarded the OMDAC-SWACA

contract to Vectrus. AR 9438–9748 (Contract No. W91RUS-21-C-0001). On March 1, 2021,

Vectrus commenced performance. AR 12145.

II. PROCEDURAL HISTORY

On March 8, 2021, IAP filed a post-award protest with the Government

Accountability Office (“GAO”), raising numerous challenges to the Army’s evaluation of

IAP’s proposal and the Army’s decision to award the OMDAC-SWACA contract to

Vectrus. 12 AR 12132–43 (unredacted version of GAO’s decision); IAP Worldwide

Servs., Inc., B-419647, 2021 CPD ¶ 222, 2021 WL 2766441 (Comp. Gen. June 1, 2021) (public

version). Among other grounds, IAP alleged that the Army: (1) “unreasonably evaluated

IAP’s proposal,” and “erred by assessing its proposal with a deficiency and other

weaknesses”; (2) “fail[ed] to assign strengths for features of IAP’s proposal that allegedly

exceeded the [S]olicitation’s requirements”; (3) “engaged in an unreasonable and unequal

evaluation because [Vectrus]’s proposal similarly should have been evaluated as

deficient”; and (4) “erred in making award without conducting discussions.” AR 12136;

IAP Worldwide Servs., 2021 WL 2766441, at *5.

The GAO denied IAP’s protest, finding that the Army reasonably assessed IAP’s

proposal as technically unacceptable — and thus was unawardable — for failing to

conform to the Solicitation’s material terms and conditions concerning OSP support in

Iraq. AR 12142; IAP Worldwide Servs., 2021 WL 2766441, at *10. The GAO also concluded

that the Army’s decision to award without discussions was reasonable, notwithstanding

that “DFARS section 215.306(c) establishes an expectation that discussions will be

conducted in Department of Defense procurements valued over $100 million” because

“agencies retain the discretion not to conduct discussions based on the particular

circumstances of each procurement.” AR 12142; IAP Worldwide Servs., 2021 WL 2766441,

at *11. As for the remaining protest allegations, the GAO determined that IAP lacked

standing to challenge any other issues concerning the evaluation process. AR 12143; IAP

Worldwide Servs., 2021 WL 2766441, at *12.

On July 13, 2021, IAP filed its initial complaint against the United States in this

Court. ECF No. 1. The next day, Vectrus filed an unopposed motion to intervene, ECF

No. 10, which the Court granted, Minute Order (July 14, 2021). On August 4, 2021, the

government filed the administrative record, ECF Nos. 26, 27, and on August 5, 2021, this

Court granted the government’s motion to file missing portions of the administrative

12Following the filing of IAP’s GAO protest, the Army issued, on March 15, 2021, a “stop work”

order on the contract. AR 10776–78.

17

record, ECF No. 28. On August 27, 2021, with permission from the Court, IAP filed an

amended complaint. ECF No. 30 (“Am. Compl.”).

IAP’s amended complaint raises a bevy of claims that proved difficult to untangle.

In particular, IAP alleges that the Army: (1) abused its discretion in failing to conduct

discussions (Count I); (2) arbitrarily and unequally assigned IAP a deficiency on

Subfactor 2 (Count II.A); (3) abused its discretion in failing to engage in clarifications with

IAP concerning the deficiency (Count II.B); (4) arbitrarily assigned IAP a significant

weakness and a weakness on Subfactor 2 (Count II.C); (5) improperly determined that

Vectrus (as well as [Juliet] and [Kilo]) complied with the Solicitation’s Information

Technology Infrastructure Library Foundation certification requirement (Count III);

(6) arbitrarily assigned IAP a weakness on Subfactor 1 (Count IV); (7) arbitrarily and

unequally ignored “[m]aterial [o]missions” in Vectrus’s proposal (Count V.A);

(8) unequally assigned Vectrus a strength for its recruiting ability while not assigning a

comparable strength to IAP (Count V.B); (9) improperly overlooked Vectrus’s “material

misrepresentation” concerning the availability of one of its putative key personnel, and

unequally permitted Vectrus to revise its proposal (post-award) by replacing that

employee (Count VI); (10) conducted an arbitrary cost realism evaluation (Count VII);

(11) made an arbitrary best value trade-off decision (Count VIII); and (12) improperly and

unequally evaluated the proposals of [Alpha], [Juliet], and [Kilo] (Count IX). Am. Compl.

¶¶ 130–289.

On September 28, 2021, all three parties filed their respective motions for judgment

on the administrative record. See ECF No. 35 (“Def. MJAR”); ECF No. 36-1 (“Pl. MJAR”);

ECF No. 37 (“Intv. MJAR”). On October 25, 2021, the parties filed timely response briefs.

See ECF No. 40 (“Def. Resp.”); ECF No. 41 (“Pl. Resp.”); ECF No. 42 (“Intv. Resp.”). On

January 11, 2022, the Court held oral argument. See ECF No. 50 (“Tr.”).

III. JURISDICTION AND STANDING

The Tucker Act provides that an “interested party” may file an “action” in this

Court “objecting [1] to a solicitation by a Federal agency for bids or proposals for a

proposed contract or [2] to a proposed award or [3] the award of a contract or [4] any

alleged violation of statute or regulation in connection with a procurement or a proposed

procurement.” 28 U.S.C. § 1491(b)(1); see also Tolliver Grp., Inc. v. United States, 151 Fed.

Cl. 70, 84 & n.11 (2020); Aero Spray, Inc. v. United States, 156 Fed. Cl. 548, 559 & n.18 (2021)

(“Section 1491(b) actions are typically referred to as ‘bid protests.’”). 13

13Cf. Tolliver, 151 Fed. Cl. at 96–97 (“[A]lthough ‘[the Administrative Dispute Resolution Act

(“ADRA”)] covers primarily pre- and post-award bid protests,’ the Federal Circuit in RAMCOR

explicitly reversed this Court’s determination ‘that a [plaintiff] could only invoke § 1491(b)(1)

jurisdiction by including in its action an attack on the merits of the underlying contract award’ or

the solicitation.” (alteration in original) (quoting RAMCOR Servs. Grp., Inc. v. United States, 185

F.3d 1286, 1289 (Fed. Cir. 1999))).

18

Thus, to establish standing in a bid protest action, a plaintiff must demonstrate

that it is an “interested party.” Aero Spray, 156 Fed. Cl. at 559 (explaining that “the Tucker

Act, as amended by the Administrative Dispute Resolution Act of 1996, Pub. L. No.

104-320, 110 Stat. 3870[,] . . . defines not only this Court’s jurisdiction over what actions

may be brought against the government, but also who has standing to pursue them”). An

“interested party” is “[1] an actual or prospective bidder or offeror [2] whose direct

economic interest would be affected by the award of the contract or by failure to award

the contract.” Am. Fed’n of Gov’t Emps., AFL-CIO v. United States, 258 F.3d 1294, 1302 (Fed.

Cir. 2001) (quoting 31 U.S.C. § 3551(2)).

In this case, neither the government nor Vectrus challenges IAP’s standing or this

Court’s jurisdiction over IAP’s amended complaint. Nevertheless, the Court has an

independent duty to ascertain whether it possesses jurisdiction to decide IAP’s claims

and whether IAP has standing to pursue them. FW/PBS, Inc. v. City of Dallas, 493 U.S.

215, 231 (1990) (“The federal courts are under an independent obligation to examine their

own jurisdiction, and standing ‘is perhaps the most important of [the jurisdictional]

doctrines.’” (alteration in original) (quoting Allen v. Wright, 468 U.S. 737, 750 (1984))).

Having considered IAP’s allegations in its amended complaint, the Court

concludes that IAP qualifies as an interested party with respect to the procurement at

issue; IAP has sufficiently alleged facts that, if proven based on the administrative record,

demonstrate the requisite prejudice for the purposes of interested party status and

jurisdiction. See Am. Relocation Connections, L.L.C. v. United States, 789 F. App’x 221, 226

(Fed. Cir. 2019) (“For standing, we presume the party bringing a bid protest will succeed

on the merits of its claim and ask whether it has alleged an injury (or prejudice) caused

by the procuring agency’s actions. . . . But once we find that a party has standing, we must

turn to the merits of the party’s claim and determine whether it can prove it was

prejudiced based on the record evidence.”); see also James v. J2 Cloud Servs., LLC, 887 F.3d

1368, 1372 (Fed. Cir. 2018) (courts reviewing a dismissal “for want of standing . . . must

accept as true all material allegations of the complaint, and must construe the complaint

in favor of the complaining party” (quoting Warth v. Seldin, 422 U.S. 490, 501 (1975))); Blue

Origin Fed’n, LLC v. United States, 157 Fed. Cl. 74, 89 (2021) (“For the limited purpose of

determining whether it has standing, a protestor’s allegations are assumed to be true.”);

Yang Enterprises, Inc. v. United States, 156 Fed. Cl. 435, 444 (2021) (“The Court assumes

well-pled allegations of error to be true for purposes of the standing inquiry.”). 14

14The fact that a plaintiff may “successfully allege[] an injury (or prejudice) for standing

purposes” — because if the plaintiff “succeeded on the merits . . . it would have a ‘greater than

an insubstantial chance of securing the contract’” — does not excuse a plaintiff from proving

prejudice on the merits based on the administrative record. Am. Relocation Connections, 789 F.

App’x at 227 (quoting Info. Tech. & Applications Corp. v. United States, 316 F.3d 1312, 1319 (Fed. Cir.

2003)).

19

IV. STANDARD OF REVIEW

Pursuant to 28 U.S.C. § 1491(b)(4), this Court applies the standard of review

contained in the Administrative Procedure Act (APA) § 10(e), 5 U.S.C. § 706. Nat’l Gov’t

Servs., Inc. v. United States, 923 F.3d 977, 981 (Fed. Cir. 2019). In particular, in accordance

with the APA, this Court reviews an agency’s procurement decisions to determine

whether they are “arbitrary, capricious, an abuse of discretion, or otherwise not in

accordance with law.” 5 U.S.C. § 706(2)(A).

In applying the APA standard of review, this Court affords considerable deference

to an agency’s procurement decisions. Advanced Data Concepts, Inc. v. United States, 216

F.3d 1054, 1058 (Fed. Cir. 2000) (describing the arbitrary and capricious standard of

review in bid protests as “highly deferential”). In particular, protests involving “the

minutiae of the procurement process in such matters as technical ratings . . . involve

discretionary determinations of procurement officials that a court will not second guess.”

E.W. Bliss Co. v. United States, 77 F.3d 445, 449 (Fed. Cir. 1996). Thus, in reviewing an

agency’s procurement decision, the Court shall merely “determine whether ‘the

contracting agency provided a coherent and reasonable explanation of its exercise of

discretion.’” Impresa Construzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324,

1332–33 (Fed. Cir. 2001) (quoting Latecoere Int’l, Inc. v. U.S. Dep’t of Navy, 19 F.3d 1342,

1356 (11th Cir. 1994)). Accordingly, the Court “will uphold a decision of less than ideal

clarity if the agency’s path may reasonably be discerned.” Bowman Transp., Inc. v.

Arkansas-Best Freight Sys., Inc., 419 U.S. 281, 286 (1974) (citing Colorado Interstate Gas Co. v.

Fed. Power Comm’n, 324 U.S. 581, 595 (1945)). On the other hand, the Court will not put

words in an agency’s mouth or invent supporting rationales the agency has not itself

articulated in the administrative record; post hoc explanations for agency decisions

ordinarily will be rejected.

A plaintiff succeeds on the merits where it demonstrates, based on a trial on the

administrative record, 15 that either: “(1) the [agency]’s decision lacked a rational basis;

or (2) the procurement procedure involved a violation of regulation or procedure.”

Impresa, 238 F.3d at 1332. In addition, “to prevail in its bid protest, [IAP] must ‘show a

significant, prejudicial error in the procurement process,’ meaning it must show that

there is a greater-than-insignificant chance” that the Army would have awarded the

contract to IAP “had [the Army] not committed the alleged errors.” Am. Relocation

Connections, 789 F. App’x at 228 (emphasis added) (quoting Alfa Laval Separation, Inc. v.

United States, 175 F.3d 1365, 1367 (Fed. Cir. 1999) (post-award protest)); see also Info. Tech.,

316 F.3d at 1319 (“the protestor’s chance of securing the award must not have been

insubstantial”); WaveLink, Inc. v. United States, 154 Fed. Cl. 245, 265 (2021) (plaintiff must

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

receive an award—that it was within the zone of active consideration” (alteration in

15 See Bannum, 404 F.3d at 1354–56.

20

original) (quoting Allied Tech. Grp., Inc. v. United States, 649 F.3d 1320, 1326 (Fed. Cir.

2011))).

V. DISCUSSION

With the exception of Count I, challenging the Army’s decision not to make a

competitive range determination and conduct discussions, the Court rejects IAP’s claims

either as unsupported by the administrative record or as a matter of law.

A. The Army’s Evaluation of IAP’s Proposal Under the MS/TA Factor Was

Consistent with the Solicitation and Reasonable (Count II.A)

IAP alleges that the Army’s assignment of a deficiency to IAP on Subfactor 2 for

inadequate OSP staffing in Iraq — which contributed to IAP’s “Unacceptable” rating for

the MS/TA factor — was arbitrary, capricious, or otherwise contrary to law. Am. Compl.

¶¶ 159–184; Pl. MJAR at 12–14, 26–37; Pl. Resp. at 14–24. Specifically, IAP argues: (1) the

Army unfairly faulted IAP for following the RFP’s instructions not to “mimic” the

staffing requirements set forth in Technical Exhibit 2; and (2) IAP’s proposed approach

to OSP support met the PWS requirements. 16 Am. Compl. ¶¶ 162, 165–177; Pl. MJAR at

12–14, 26–30; Pl. Resp. at 14–19.

Contrary to IAP’s assertions, the Army’s evaluation of IAP’s proposal was rational

and the assignment of the deficiency was well within the Army’s discretion. That is

particularly true given that IAP’s proposal failed to conform to the Solicitation’s material

OSP staffing requirements for Iraq.

16IAP presents three additional arguments in support of this count. First, IAP argues that the

deficiency finding is evidence of unequal treatment. Am. Compl. ¶¶ 178–184; Pl. MJAR at 30–37;

Pl. Resp. at 19–24. This argument is addressed infra, Section V.E. Second, IAP contends that

“[t]he SSEB evaluation makes no reference to OSP Technicians, ISP Technicians, or Service Desk

Support Specialists” in its report. Pl. MJAR at 29; Pl. Resp. at 16. The Court need not address this

argument, as the Army is not required to “explicitly spell out [its] rationale or reasoning in perfect

detail or clarity as long as [the Court] can discern the path the [Army] followed.” Swagway, LLC v.

Int’l Trade Comm’n, 934 F.3d 1332, 1342 (Fed. Cir. 2019) (citing Bowman Transp., 419 U.S. at 286).

Third, IAP alleges that the Army “materially narrowed” its concerns with IAP’s proposal and

“recast[] SSEB’s findings” at the GAO to suggest that IAP’s deficiency was solely attributable to

IAP’s approach to “unplanned” OSP work, thus “[t]acitly conceding that [the] SSEB’s findings

were erroneous.” Pl. MJAR at 5–6, 30 (citing AR 11963 (Army GAO Request for Partial Summary

Dismissal)); Pl. Resp. at 14 n.13. Even if this Court were inclined to read the Army’s GAO

argument in the same manner as IAP, there is no reason for this Court to consider such

statements, as the contemporaneous record provides a reasonable and coherent account of the

Army’s decision. See Impresa, 238 F.3d at 1332–33.

21

1. The OSP Support Requirements Are Material Terms of the Solicitation

FAR 15.305(a) provides that “[a]n agency shall evaluate competitive proposals and

then assess their relative qualities solely on the factors and subfactors specified in the

solicitation.” In that regard, “a proposal that fails to conform to the material terms and

conditions of the solicitation should be considered unacceptable and a contract award

based on such an unacceptable proposal violates the procurement statutes and

regulations.” E.W. Bliss, 77 F.3d at 448; see also Centech Grp., Inc. v. United States, 554 F.3d

1029, 1037 (Fed. Cir. 2009) (“To be acceptable, a proposal must represent an offer to

provide the exact thing called for in the request for proposals, so that acceptance of the

proposal will bind the contractor in accordance with the material terms and conditions

of the request for proposals.”). In other words, “an agency cannot award a contract to an

offeror ‘that did not meet the mandatory requirements of the solicitation.’”

DigiFlight, Inc. v. United States, 150 Fed. Cl. 650, 657 (2020) (quoting Ralph C. Nash & John

Cibinic, Mandatory Solicitation Requirements: Can They Be Ignored?, 15 Nash & Cibinic Rep.

¶ 40 (2001)); see also Mangi Env’t Grp., Inc. v. United States, 47 Fed. Cl. 10, 17 (2000)

(“[W]here a proposal is not compliant with the mandatory technical requirements of the

solicitation, the proposal is unacceptable for award.”).

A solicitation term is “material” where: (1) it is express in the solicitation; and (2) it

serves a “substantive purpose.” ManTech Advanced Sys. Int’l, Inc. v. United States, 141 Fed.

Cl. 493, 506 (2019) (citing Bus. Integra, Inc. v. United States, 116 Fed. Cl. 328, 333–36 (2014)).

A solicitation term serves a “substantive purpose” if it “is something important to the

government’s evaluation of the offer, is binding on the offeror, or has a more than

negligible impact on the price, quantity, or quality of the bid.” Id. Thus, “[a] proposal’s

failure to satisfy a material, or mandatory minimum, solicitation requirement is a material

error.” DigiFlight, 150 Fed. Cl. at 657.

To determine whether a solicitation requirement is “material,” the Court must

examine terms of the solicitation. See DigiFlight, 150 Fed. Cl. at 657.

The PWS included a comprehensive outline of an offeror’s technical

responsibilities with respect to OSP. AR 3797 (§ C.3.7.2). Specifically, it provided that

the contractor would be responsible for “maintain[ing], repair[ing], and test[ing]

customer equipment” and “maintaining the OSP infrastructure,” including

“communications pathways, maintenance hole cabling and hand holes, duct systems,

copper and fiber optic cabling, main distribution frame, terminations of [c]opper and

fiber optic cables, vaults, multiplexing equipment, cross connects system design and

integration of systems to the OSP infrastructure and QA/QC of the OSP system.” AR

3797–98 (§ C.3.7.2.1). Physical maintenance requirements associated with the OSP

infrastructure included: (1) “install[ing], de-install[ing], maintain[ing], repair[ing] and

test[ing] multiple-conductor aerial, underground, and buried multi-purpose

communications cable to include coaxial, fiber optics, and copper/conventional cable”;

22

(2) maintaining “telephone poles, manholes, handholds, outside terminals, pedestals,

splice points, and bonding and grounding of termination points”; and (3) “fabricat[ing]

fiber optic, metallic, or coaxial cables,” among other things. AR 3798 (§ C.3.7.2.2). To

accomplish these tasks, “[OSP] cable technicians shall operate digger derricks, bucket

trucks, personnel lifts, backhoes, and trenching equipment to provide demand

maintenance support.” AR 3798 (§ C.3.7.2.2). Additional OSP responsibilities included

conducting site surveys and obtaining and coordinating required OSP-related clearances

and permits. AR 3798 (§§ C.3.7.2.3, C.3.7.2.4, C.3.7.2.5).

The RFP’s Technical Exhibit 2 (Supported Locations) (“TE2”) identified the

mandatory minimum PWS coverage requirements by location, including required OSP

support. AR 3919–45 (TE2). Specifically, TE2 provided that the Army requires OSP

support ten hours per day, six days per week (Monday through Saturday, from 8:00 a.m.

to 6:00 p.m.) at the five Iraq post/camp/site (“P/C/S”) locations at issue here. AR 3939

(TE2) (“10/6=Requirement must be manned 10 hours per day, 6 days a week. M-SA

0800-1800”). While TE2 contained mandatory requirements, the Army estimated that it

would need twelve (12) full-time equivalents (“FTEs”) to provide the necessary OSP

services in Iraq. AR 3980 (Attachment 8 – Staffing Estimate). To be clear, and as discussed

in more detail below, while offerors were not required to propose the precise FTEs

specified in Attachment 8, proposals did need to satisfy or otherwise explain how offerors

would satisfy the minimum conditions specified in TE2.

Accordingly, the Solicitation clearly identified the OSP requirement, satisfying the

first prong of this Court’s test for materiality. See ManTech, 141 Fed. Cl. at 506.

As for the second prong, the Court finds that the OSP staffing requirements served

a “substantive purpose,” as it “is something important to the government’s evaluation of

the offer.” Id. In this regard, the Solicitation specifically provides that “[a]ll items

identified in Section L, paragraph L.8.2.B will be used to evaluat[e]” Subfactor 2,

including “[t]he [o]fferor’s approach to staff the effort (Section L, paragraph L.8.2.B.2).”

AR 3117 (§ M.4.c). In turn, § L.8.2.B.2 explicitly identifies OSP support as one of the RFP’s

staffing requirements. AR 3962–63 (“The [o]fferor shall describe the proposed technical

approach for performing the technical requirements set forth in the PWS, and are not

limited to: . . . Capability to support operating, maintaining[,] and defending . . . Inside

Plant/Outside Plant . . . .” (emphasis added)).

Because the Solicitation (1) clearly identifies the requirement, and (2) the

requirement serves a “substantive purpose,” the Court finds that the OSP staffing

requirements are material. See ManTech, 141 Fed. Cl. at 506.

23

2. The Army’s Assignment of a Deficiency to IAP Was Consistent with the

Solicitation and the Minimum Requirements of Technical Exhibit 2

IAP first argues that the Army’s assignment of a deficiency to IAP for its OSP

approach “contradict[s]” the RFP’s terms. Pl. MJAR at 26; Am. Compl. ¶¶ 103, 165–166.

Specifically, IAP contends that the RFP instructed offerors to provide an “innovative”

staffing approach and “expressly directed offerors not to mimic the staffing in TE2.” Am.

Compl. ¶ 103 (“The [Army] appears to have assigned this deficiency because IAP

purportedly did not staff ‘in accordance with TE2,’ but the Solicitation expressly directed

offerors not to mimic the staffing in TE2.”). 17 Thus, according to IAP, the Army may not

penalize IAP and assign a deficiency where IAP was simply following the RFP’s

instructions. Am. Compl. ¶ 166 (“Following the Solicitation instructions cannot

reasonably be grounds for a deficiency.”); Pl. MJAR at 29 (“The Army could not, as it did

here, warn against mimicking the staffing estimates and then assign IAP a deficiency

because it did just that.”).

This argument fails for two reasons. First, while IAP is correct that the Army

encouraged offerors to provide an “innovative” solution, 18 the RFP did not permit such

innovation at the expense of meeting basic, material PWS requirements. Second, IAP is

incorrect in its assertion that the RFP warned offerors not to “mimic” the figures in TE2.

On the contrary, as discussed above, the data listed in TE2 are minimum requirements that

must be met by an offeror. AR 3919–45 (TE2); see also AR 3823 (§ C.4.4) (“The [c]ontractor

shall provide staffing to accomplish the requirements of the PWS. Normal hours of

operation for each site are specified in TE 2.” (emphasis added)); AR 3824 (§ C.4.6) (“The

[c]ontractor shall provide support in Southwest and Central Asia locations as specified in

the TE2.” (emphasis added)); AR 3757 (§ B.5.e) (“The proposed labor categories and rates

shall represent the appropriate loadings for specific site and countries as associated with

the requirements presented in [the PWS] and the TE2.”). In contrast, the RFP did expressly

warn offerors not to “merely mimic[]” the workload estimates in Attachments 8 and 9. AR

3963 (§ L.8.2.B.2) (“Government Estimated Staffing and Workload Data is provided in

Section J, Attachment 8 and Attachment 9. The Government Estimated Manning is an

estimated full-performance manning; [o]fferors should refrain [from] merely mimicking

the estimated manning[] and propose an innovative staffing solution based off workload

data.”); see also AR 3718 (RFP Amendment 0003, Section A – RFP Questions/Answers)

(“[Attachment 8] and [Attachment 9] represent different estimates from the government

17See also Pl. MJAR at 29 (“[T]he SSEB . . . faulted IAP for proposing centralized teams to perform

OSP services instead of mimicking the staffing estimates set forth in Technical Exhibit 2

(“TE2”). . . . The RFP repeatedly instructs offerors to ‘propose an innovative staffing solution’ and

to ‘refrain merely [from] mimicking the estimated manning.’” (alteration in original) (citation

omitted)).

18See AR 3963 (§ L.8.2.B.2) (advising offerors to “propose an innovative staffing solution based

off workload data”).

24

produced at different times. They are not intended to be an [o]fferor’s solution, rather

examples of possible solutions.”).

Thus, the Army in the RFP expressly distinguished between, on the one hand,

Attachments 8 and 9 — which merely contained estimates for offerors’ consideration —

and, on the other hand, the technical exhibits, which contained minimum requirements.

For example, in responding to an offeror’s question, the Army articulated that “[t]he

[o]fferor shall propose [its] solution based on the requirements in the PWS and throughout the

solicitation (TEs, etc[.]), not as a regurgitation of either [Attachment 8] or [Attachment 9].” AR

3718 (emphasis added); see also AR 3740 (“Question: The number of FTEs in [Attachment

8] and the locations of the FTEs are substantially different than the number of slots per

location as identified in the [Attachment 9]. Will the [government] confirm it prefers use

of the TE2? . . . Answer[:] [Attachment 8] is the [g]overnment estimate for personnel.

[Attachment 9] provides 1yr [sic] of Workload Data, and [t]he TE-2 outlines the

requirement, PWS para [sic], Security clearance level, IT/IAT/IAM level, locations and

workweek requirement.” (emphasis added)).

In sum, IAP improperly conflates the Solicitation’s warning to offerors not to

mimic the staffing estimates and workload data contained in Attachments 8 and 9 with

the requirements in TE2 — all in an attempt to persuade the Court that IAP’s proposal

was “innovative” and complied with the Solicitation’s requirements, when in fact it did

not. The TE2 requirements were not optional; offerors were required to meet the

mandatory staffing requirements listed in TE2 for each location. The failure to do so

constitutes a material error and grounds for disqualification — or at the very least a

deficiency, as the Army assigned here.

3. The Army Reasonably Determined that IAP’s Proposal Failed to Meet

Material OSP Support Requirements

IAP further argues that the Army “misread[]” its proposal and maintains that its

proposal meets the PWS requirements and offers sufficient OSP support in Iraq. Am.

Compl. ¶¶ 102, 104 (arguing that the Army “ignore[d]” IAP’s “proven” solution to

provide OSP support in “all contract locations”); Pl. MJAR at 26–28; Pl. Resp. at 14–18.

The Court finds this argument unpersuasive. IAP mischaracterizes its proposal; it is

readily apparent that IAP’s proposed OSP staffing approach fails on a basic level to meet

the RFP’s requirements for OSP support in Iraq.

The relevant details of IAP’s approach to OSP staffing in Iraq is contained in IAP’s

narrative and its staffing matrix. AR 4359–61, 4381–82 (IAP Proposal, Volume 2 – Mission

Support/Technical Approach).

25

Specifically, IAP described its OSP approach as follows:

2.2.3.5 Capability to Support OMD of Inside Plant / Outside

Plant / Cabling

....

2.2.3.5.3 Operate. [IAP] centralizes the teams [ * * * ] where

travel and movement make that practical. [ * * * ] or we

combined ISP personnel with switch operators where applicable.

[ * * * ]. [ * * * ] we use a Network Administrator to assist with work

alongside the OSP Teammate if maintenance or repairs require a

two-person team for safety. . . .

. . . [ * * * ]. Our plan is to centralize the teams, and deploy them on

schedule (for inspections), or as needed based on requirements

[ * * * ]. . . .

AR 4359–61 (emphasis added).

While this narrative indicates that IAP proposed “centralize[d] . . . teams [ * * * ]”

to provide ISP and OSP support, IAP provided no additional details to explain or support

this approach. IAP does not explain the composition of these teams (i.e., who they are),

where specifically these teams will provide support (i.e., where they are located), or how

these centralized teams or consolidated positions will timely meet the required on-site

OSP support detailed in TE2. See AR 3963 (§ L.8.2.B.1) (“The [o]fferor’s approach shall

demonstrate an understanding of the technical requirements to provide support for the identified

services listed in [the PWS] . . . and Technical Exhibits.” (emphasis added)). 19

IAP’s staffing matrix further fails to adequately supplement IAP’s narrative to

provide the necessary details regarding how its “centralize[d]” teams would meet the

19 IAP further argues that the SSEB erroneously faulted IAP for “not identify[ing] the regions

where [the centralized] teams would provide [OSP] support” in Iraq. Pl. MJAR at 27 (first

alteration in original) (quoting AR 9348 (SSEB Initial Report)); Am. Compl. ¶ 167; Pl. Resp. at 14–

15. Specifically, IAP argues that “contrary to the evaluation,” IAP sufficiently proposed OSP

support “in all contract regions,” including Iraq. Pl. MJAR at 13–14. In support of this assertion,

IAP points to scattered statements in various other sections in its proposal as evidence that it meets

the OSP services requirements. See, e.g., AR 4357 (“[ * * * ].”); AR 4372 (proposing “[ * * * ],” which

“[ * * * ]”). The Court finds such scattered and generalized statements insufficient to rebut the

Army’s central findings. See Red River Holdings, LLC v. United States, 87 Fed. Cl. 768, 787 (2009)

(“As a corollary of the principle that proposals must meet the requirements of a solicitation,

blanket statements that an offeror will meet or exceed them have been found to be noncompliant.”

(citing Int’l Outsourcing Servs., L.L.C. v. United States, 69 Fed. Cl. 40, 49 (2005))). If anything, these

statements constitute further evidence of IAP’s inadequate approach.

26

required OSP support at each Iraq location. 20 If anything, IAP’s staffing matrix reveals

significant “capability gap[s]” in its OSP staffing approach. See AR 9348 (SSEB Initial

Report) (explaining that IAP’s failure to propose sufficient OSP support “creates a

capability gap to support the OSP infrastructure at P/C/S level within Iraq”). For

example, in its staffing matrix, IAP proposed to “consolidate” certain roles. AR 4372

(proposing “[ * * * ] consolidation of ISP/OSP teams for most tasks”); see also Tr. at 127:11–

13 (“[IAP’S COUNSEL]: . . . If you flip through the staffing plan, the whole proposal is

premised on consolidation of labor categories.”). In other words, rather than propose

dedicated, locally-based personnel for each labor category in its staffing matrix, IAP

combined various positions; that is, the duties of certain labor categories were assigned to

FTEs of another labor category.

In IAP’s staffing matrix,21 IAP listed proposed labor categories, with

corresponding columns indicating the location, number of FTEs per contract period, shift

coverage, hours per week, work days, and duty hours. AR 4374–94. In addition to these

required columns, IAP included two additional columns — “Job Code” and “Job Code

Assignment Override.” AR 4374–94. This “Job Code Assignment Override” column

indicates which alternate labor category will assume the duties of the original labor

category.

20 To be clear, the Army has no objection per se to an offeror’s proposing centralized OSP support

[ * * * ]. Indeed, the Army implicitly indicated that such an approach is permissible, so long as it

complies with the PWS and TE2 requirements. For instance, one of the questions submitted to the

Army concerning the draft RFP asked: “When a location has a hours/days metric associated to a

PWS element, is it required that the personnel providing this task coverage are physically located

at the individual locations listed or is it acceptable for some of this support to be provided via

reach back to RNOSC/SWACC?” AR 2340 (Draft RFP Questions & Answers). The Army

responded, “[n]o, as long as services are provided [in accordance with] the PWS and TE[s].” AR

2340. In a follow-up question, a prospective offeror asked: “The answer implies that a regionalized

support approach is acceptable. . . . Are there any constraints to providing operations support from

locations beyond the RNOSC/SWACC, that is, from any site within the same geographical

location or country? Are there any PWS areas where this approach is not acceptable?” AR 3736–

37 (emphasis added). In response, the Army answered, again, “[n]o, as long as services are

provided [in accordance with] the PWS and TE[s].” AR 3737 (RFP Amendment 0003).

21The Court would be remiss if it did not recognize Vectrus’s exemplary presentation in its MJAR

of the RFP’s instructions concerning TE2, OSP support, and the staffing matrix. Vectrus’s

briefings explain in clear, simple terms the nuances of the OSP staffing requirements and

presented a clear breakdown of IAP’s staffing matrix, revealing its deficiencies. See, e.g., Intv.

MJAR at 4–9. In that regard, the Court’s discussion here generally tracks that presented in

Vectrus’s briefs and adapts two of its tables.

27

For example, IAP’s staffing matrix listed the following for the Network

Administrator position at the Al Asad location in Iraq:

Labor Category FTE 8M (P3) FTE OY1 (P4) Job Code Job Code Assignment Override

Network [***] 0 C.3.4.3.1IRAL-106-303 C.3.2.3.1IRRN-106-333 [Network

Administrator Engineer Elite, RNOSC]

AR 4381. Thus, for the Al Asad location, IAP proposed no on-site Network Administrator

after the base period; rather, the duties of the Network Administrator in Al Asad would

be assumed by the Network Engineer Elite at the RNOSC location in Iraq.

For OSP support, IAP’s staffing matrix included the “Outside Plant (OSP)

Technician” labor category at various TE2 locations in southwest Asia and central Asia.

AR 4374–85, 4387, 4393–94. For some locations, including Iraq, IAP proposed zero FTEs

for the OSP Technician labor category. See, e.g., AR 4375 (proposing zero FTEs for OSP

Technician in [ * * * ]). For all these locations except Iraq, the staffing matrix indicated that

the duties of the OSP Technician would be assumed by an ISP Technician at the same

location. See, e.g., AR 4385 (indicating that the duties of the OSP Technician in [ * * * ]

would be assumed by the ISP Technician in the same location). For the locations in Iraq,

IAP’s staffing matrix indicated that the Service Desk Support Specialist (“SDSS”) labor

category would assume the duties of the OSP Technicians:

Labor TE2 FTE FTE FTE FTE FTE FTE FTE Job Code

Category Site/Location 2M 2M 8M OY1 OY2 OY3 OY4 Assignment

(P1) (P2) (P3) (P4) (P5) (P6) (P7) Override

Outside Plant AL ASAD 0 0 0 0 0 0 0 C.3.4.3.4IRAL-247-

(OSP) 1239 [Service Desk

Technician Support Specialist,

AL ASAD]

Outside Plant BDSC 0 0 0 0 0 0 0 C.3.4.3.4IRBD-247-

(OSP) 1224 [Service Desk

Technician Support Specialist,

BDSC]

Outside Plant ERBIL 0 0 0 0 0 0 0 C.3.4.3.4IRER-247-

(OSP) 1233 [Service Desk

Technician Support Specialist,

ERBIL]

Outside Plant FOB UNION 0 0 0 0 0 0 0 C.3.4.3.4IRFO-247-

(OSP) 3 1230 [Service Desk

Technician Support Specialist,

FOB UNION 3]

28

Outside Plant TAJI 0 0 0 0 0 0 0 C.3.4.3.4IRTA-247-

(OSP) 1236 [Service Desk

Technician Support Specialist,

TAJI]

AR 4381–83.

While IAP argues that “[a]ssigning personnel a new labor category does not equate

to a lack of support,” Pl. MJAR at 29, IAP’s proposed reassignment of the OSP support

duties to the SDSS labor category (as indicated in the “Job Code Assignment Override”

column, above) is problematic for several reasons.

First, IAP’s own description of the SDSS labor category did not include any of the

necessary qualifications or skills required for OSP support. Compare AR 4568–69 (IAP’s

labor category description of SDSS in Al Asad, Iraq), with AR 4505–06 (IAP’s labor

category description of OSP Technician in Al Asad, Iraq). While the ISP Technician labor

category differs from the OSP Technician labor category, such differences are

(presumably) marginal and it is conceivable that an ISP Technician has the qualifications

or skills to execute the duties of an OSP Technician. In contrast, the skillsets of an SDSS

and an OSP Technician differ significantly. As succinctly explained by Vectrus in its

MJAR, “the job (and qualifications required) of an OSP Technician on [the

OMDAC-SWACA] contract is comparable to that of a lineworker for a

telecommunications company,” and “is a very physically demanding position, which

requires specific training and education.” Intv. MJAR at 10. On the other hand, “the job

(and qualifications required) of a SSDS on this contract is a desk-job comparable to that

of a customer service/help desk representative for a telecommunications company,” and

entails “entirely different training[] and does not require the same physical ability to

perform.” Id. at 10–11. Thus, assigning the duties of an OSP Technician to an SDSS, a

labor category with inadequate training and qualifications to carry out the OSP support

duties, is insufficient and does not meet the PWS requirements for OSP support. See AR

9112–15 (MS/TA Draft ENs).

Second, IAP failed to demonstrate how these “combined” SDSS positions in Iraq

meet the minimum coverage requirements prescribed in TE2. As noted above, TE2

indicates that the Army requires OSP support in Iraq from Monday through Saturday

from 8:00 a.m. to 6:00 p.m. AR 3939 (TE2). On the other hand, the Army requires Help

Desk support (what IAP labels as SDSS) twenty-four hours per day, seven days per week

in Iraq. AR 3939. IAP’s proposal may be creative, and it may result in cost savings, but

it does not comply with the mandatory requirements. In particular, IAP proposed to

divide the SDSS labor category in Iraq into three shifts, consisting of one [ * * * ] shift on

Saturday through Wednesday from [ * * * ], a second [ * * * ] shift on [ * * * ] from [ * * * ],

and a third [ * * * ] shift on [ * * * ] from [ * * * ]. AR 4381–83 (IAP Staffing Matrix). IAP

further proposed that the OSP Technician duties in Iraq would be assumed by SDSS staff

29

working the first shift — Saturday through Wednesday from [ * * * ]. AR 4381–83. This

approach is in direct contravention of the express coverage requirements specified in TE2

for OSP support in Iraq — a requirement of six days a week, Monday through Saturday.

AR 3939 (TE2). This Court cannot square IAP’s repeated assertions that the Army

“misread” its proposal with the plain facts. The RFP quite clearly specified in TE2 the

days of the week for which the Army required OSP support in Iraq. And, the RFP

unambiguously required that “[o]fferors must clearly demonstrate their ability to meet

all requirements specified in [the] solicitation.” AR 3114 (§ M.1.A). IAP failed to meet

that instruction. 22

Finally, IAP asserts that the SSEB erroneously reported that IAP proposed to

remove all Network Administrators from Iraq. Am. Compl. ¶¶ 175–176; Pl. MJAR at 28–

29; Pl. Resp. at 16, 18. Specifically, IAP contends that the following excerpt from the

SSEB’s deficiency finding is false: “[IAP]’s approach increases the risk of unsuccessful

contract performance to an unacceptable level because — . . . [a]lthough [IAP] proposed

that [Network Administrators] would provide the OSP support, [IAP] removed the

[Network Administrators] at all locations in Iraq (Volume 2, paragraph 2.2.11, page Vol. 2

- 85).” AR 9348 (SSEB Initial Report).

22 This Court also takes issue with IAP’s presentation at oral argument that, in the Court’s view,

mischaracterized IAP’s proposal. In particular, IAP presented a demonstrative PowerPoint slide

deck depicting a putative sample page of IAP’s staffing matrix for Iraq. IAP’s demonstrative,

however, omitted columns from the actual staffing matrix that detailed proposed hours per week,

work days, and duty hours, but included the column for shift coverage. The effect was to lead

the Court to believe that coverage requirements specified in TE2 would be met, when in actuality

there were large gaps. IAP, for example, showed the Court references to putative 24/7 coverage

for the SDSS labor category, which, according to IAP’s counsel, met the need for OSP coverage.

In reality, however — as evident in IAP’s proposal (as opposed to the demonstrative) — IAP was

missing required OSP coverage. This misdirection was corrected by counsel for Vectrus via an

objection during oral argument. The Court agreed with Vectus then and continues to do so.

Tr. 125:16–25, 126:6–9, 128:22–129:2, 129:7–8, 14–21, 129:24–130:1 (“[IAP’S COUNSEL]: Here’s a

pull-out of a chart describing the work breakdown to an ISP and OSP in the region. . . . [W]e are

absolutely addressing the PWS requirement in the proposal. We have a whole labor category just

called outside plant technician in Iraq. We have different labor categories for OSP in each

country. There is one in Iraq. . . . We had in our staffing plan an OSP technician listed in Iraq. . . .

[I]f you follow over to the far right column, job code assignment override, you can see that it

aligns with the job code for a service desk support specialist, where we do have FTEs. . . .

THE COURT: . . . How about the work days only being five days a week instead of six? Is it true

that six days a week were required? [IAP’S COUNSEL]: Your Honor, I think you can see on the

page that [we] are shifting from someone who is 10/6 to 24/7 . . . . [A]s you can see, OSP

technician on the bottom there, TE-2, shift coverage, 10/6. . . . We’re moving to someone who’s

24/7. [VECTRUS’S COUNSEL]: Your Honor, may I object? This is a complete misrepresentation

of this document. It is missing the days and the hours that that person would work. THE COURT:

Yeah. I have a totally different document . . . . It’s [on] [AR] 4381. It says, ‘Workdays, service

desk support specialist, Saturday, Sunday, Monday, Tuesday, Wednesday.’”).

30

This assertion is flatly contradicted by IAP’s staffing matrix. As mentioned above,

IAP’s narrative indicated that at “smaller locations,” like those in Iraq, a Network

Administrator would “assist with [OSP] work alongside the OSP Teammate if

maintenance or repairs require a two-person team for safety.” AR 4360. IAP, in its

staffing matrix, listed “Network Administrator” in various locations throughout Iraq but

proposed to remove them after the base period. AR 4381–82 (proposing zero Network

Administrator FTEs in Al Asad, BDSC, Erbil, FOB Union 3, and Taji after the base period).

Instead, like the OSP Technicians, the duties of the Network Administrator would be

assumed by various network engineering positions at the RNOSC-I location in Iraq. AR

4381–82. While such a reassignment of duties may not by itself present a problem, given

the other problems with IAP’s proposed OSP support in Iraq — and that IAP’s narrative

indicated that the Network Administrators would provide much-needed OSP support —

the SSEB reasonably concluded that that their removal would increase the risk of

unsuccessful performance. AR 9348. That conclusion is particularly reasonable given

that IAP failed to explain how the network engineering positions at the RNOSC-I

location, for example, would be able to provide the necessary OSP support for other

locations in Iraq in addition to meeting their own duties at RNOSC-I. Thus, the SSEB’s

finding concerning Network Administrators was not erroneous and, accordingly, this

Court has no grounds to disturb that determination.

In sum, neither IAP’s technical narrative nor its staffing matrix proposed adequate

OSP staffing coverage in Iraq, despite IAP’s assertions to the contrary. IAP simply has

not “demonstrated, that [the Army’s] findings are unsupported by the administrative

record or inconsistent with the evaluation criteria.” JWK Int’l Corp. v. United States, 52

Fed. Cl. 650, 660 (2002), aff’d, 56 F. App’x 474 (Fed. Cir. 2003). Rather, IAP “offers little

more than mere disagreements with the [Army’s] overall assessment of the adequacy of

its proposal.” Id. Thus, this Court finds that “[s]uch naked claims, by all appearances

unsupported by anything in the record, fall far short of meeting the heavy burden of

demonstrating that these findings were the product of an irrational process and hence

arbitrary and capricious.” Id.

Accordingly, the Army did not act arbitrarily in determining that IAP’s approach

to OSP support materially failed to meet the RFP requirements. The Army’s assignment

of a deficiency to IAP on Subfactor 2, and rating IAP as overall “Unacceptable” on the

MS/TA factor, was well within the Army’s discretion, and, in this Court’s opinion, likely

correct as a factual matter (i.e., if this Court were to review the assessment de novo). See

E.W. Bliss, 77 F.3d at 449; see also Fort Carson Support Servs. v. United States, 71 Fed. Cl. 571,

596 (2006) (explaining that “the proper role of courts” does not include “second guessing

the technical judgments of evaluators”).

31

B. The Army Acted Within Its Discretion in Finding that Vectrus Complied

with the Solicitation’s ITIL Requirement (Count III)

Next, IAP argues that the Army’s contract award to Vectrus was arbitrary and

capricious because Vectrus failed to comply with the Solicitation’s Information

Technology Infrastructure Library (“ITIL”) Foundation certification requirement (the

“ITIL Requirement”). Am. Compl. ¶¶ 207–215; Pl. MJAR at 23–26; Pl. Resp. at 9–14

(alleging that the Army “ignored” Vectrus’s “fail[ure] to satisfy” the ITIL Requirement).23

This argument fails, however, as the Army acted within its discretion in finding that

Vectrus met the ITIL Requirement.

In addressing IAP’s allegations concerning the ITIL Requirement, the Court begins

with the pertinent clause of the RFP, which provides as follows:

C.4.21 Information Technology Infrastructure Library (ITIL).

The [c]ontractor shall be Foundation certified on the most

current version of [ITIL] and have experience in the use of the

ITIL framework for IT service management for designing,

developing, and implementing service management best

practices for the service lifecycle, business process modeling,

IM/IT, network operations center, help desk operations, and

telecommunications/information processing, IT networking

(LAN/WAN), messaging services, configuration

management, and maintenance support. This certification is

only critical to upper echelon key management and regional

management positions ([i.e.], Program Manager and Country

Managers). Personnel must be certified upon contract start

date.

AR 3831 (§ C.4.21) (emphasis omitted). Offerors were required to identify in their labor

categories descriptions chart that their Program and Country Managers would have the

necessary ITIL certification. AR 3964 (§ L.8.2.B.3) (instructing offerors to identify

“certifications for each labor category proposed (to include Project Manager, Country

Managers, or Site Managers/Site Lead Technicians)” and “demonstrate that proposed

labor categories include . . . applicable certifications”). 24

23IAP also alleges that [Juliet] and [Kilo] likewise failed to meet the ITIL Requirement. Am.

Compl. ¶¶ 207–215; Pl. MJAR at 23–26; Pl. Resp. at 9. The Court need not address these offerors’

compliance with the ITIL Requirement, however, as IAP cannot demonstrate that it was

prejudiced by any such errors in light of this Court’s resolution of IAP’s other claims.

24 Apparently, the RFP used the titles “Program Manager” and “Project Manager”

interchangeably. See AR 3147 (defining the acronym “PM” as “PROGRAM MANAGER or

PROJECT MANAGER”).

32

IAP’s argument concerning the ITIL Requirement is twofold. 25 First, IAP asserts

that the word “critical” in this provision indicates that the ITIL Requirement is

“material”; that is, the failure to comply with this requirement automatically results in

the disqualification of an offeror’s proposal from consideration. Am. Compl. ¶ 209; Pl.

MJAR at 23; Pl. Resp. at 9. Second, IAP contends that only ITIL Foundation version 4

certification constitutes “the most current version” of ITIL at the time of proposal

submission, and offerors were required to expressly represent in their proposals that their

personnel possessed ITIL version 4 certification. Am. Compl. ¶¶ 210, 211; Pl. MJAR at

24; Pl. Resp. at 11–12. Based on these two grounds, IAP avers that Vectrus “failed to

satisfy the RFP’s material ITIL Version 4 certification requirement,” and, thus, Vectrus’s

proposal is “noncompliant” and “ineligible for award.” Pl. MJAR at 23–24. The Court

finds neither of IAP’s arguments persuasive.

First, the mere use of the word “critical” does not make a solicitation term

inherently material. As discussed above, a solicitation term is material where it is express

in the solicitation and serves a “substantive purpose.” ManTech, 141 Fed. Cl. at 506. While

the Solicitation delineated the ITIL Requirement, this Court finds that it does not serve a

“substantive purpose,” as it is not a term that is “important to the government’s

evaluation of the offer, is binding on the offeror, or has a more than negligible impact on

the price, quantity, or quality of the bid.” Id. There is certainly no RFP language making

the ITIL Requirement a mandatory minimum comparable to the language at issue in

DigiFlight or WaveLink. See DigiFlight, 150 Fed. Cl. at 658 (finding “mandatory minimum

requirement” where “the [s]olicitation expressly warned offerors that failure to comply

with the requirement would lead to an outright rejection of the proposal”); WaveLink, 154

Fed. Cl. at 272–73 (finding a solicitation’s requirement constituted “mandatory

[s]olicitation provisions that the [a]gency was not free to ignore” because the solicitation

“plain[ly]” and “unambiguous[ly]” stated that an offeror “would not be eligible for

award” if it failed to do so).

Second, even if the ITIL Requirement is material, the ITIL Requirement applied not

at the time of proposal submission but rather “upon [the] contract start date.” AR 3831

(§ C.4.21) (emphasis added). As explained by the United States Court of Appeals for the

Federal Circuit,

[w]here an offeror has certified that it meets the technical

requirements of a proposal, the Contracting Officer is entitled

to rely on such certification in determining whether to accept

a bid, and the offeror’s potential failure to comply with the

proposal requirements is ordinarily “a matter of contract

administration,” which does not go to the propriety of

accepting the bid. See Centech, 554 F.3d at 1039 . . . . “However,

25 IAP offers a third argument involving unequal treatment. See discussion infra Section V.E.

33

where a proposal, on its face, should lead an agency to the

conclusion that an offeror could not and would not comply

with the [applicable requirement], we have considered this to

be a matter of the proposal’s technical acceptability,” which

does affect the propriety of accepting the offer. Id. (emphasis

added); see also In re Spectrum Sys., Inc., B–401130, 2009 WL

1325352, at *2 (G.A.O. May 13, 2009) (“[A]n agency may

accept a quotation’s representation that indicates compliance

with the solicitation requirements, where there is no

significant countervailing evidence reasonably known to the

agency evaluators that should create doubt whether the

offeror will or can comply with the requirement.”). The

proper framing of the acceptability of [the offeror]’s proposal

is, therefore, whether the “generally compliant with

exceptions” language in [the offeror]’s proposal constitutes

“significant countervailing evidence reasonably known to the

agency evaluators that should create doubt whether the

offeror will or can comply with the requirement.” Spectrum,

2009 WL 1325352, at *2.

Allied Tech. Grp., 649 F.3d at 1330–31 (second alteration in original) (footnote omitted).

Accordingly, the ITIL Requirement is primarily a matter of contract administration and,

thus, the Court may examine only whether Vectrus’s “proposal, on its face, should lead

[the Army] to the conclusion that [Vectrus] could not and would not comply with” the

Solicitation’s terms. Centech, 554 F.3d at 1039 (quoting Orincon Corp., B-276704, 97-2 CPD

¶ 26, 1997 WL 402081, at *3 (Comp. Gen. July 18, 1997)). 26

The Court finds that nothing contained in Vectrus’s proposal should have led the

Army to conclude that Vectrus could not, or would not, comply with the ITIL

Requirement upon the contract start date, as required. See id. Vectrus did not take

exception to the ITIL Requirement; rather, Vectrus provided all the information required

by the RFP for the requirement. Vectrus clearly represented in its labor categories

descriptions chart, as required by the RFP, that its Project Managers and Country

Managers would be ITIL Foundation certified. AR 8067–68 (Vectrus Proposal, Volume 2

– Sub-Factor 2 Technical Approach) (listing “ITIL Certification” as a required certification

for Country Manager and Project Manager).

26The government argues that the Court lacks jurisdiction to address this argument because it

involves contract administration. Def. MJAR at 37–38. Because IAP frames the issue as one

related to Vectrus’s alleged noncompliance with the RFP, the Court decides the issue on the

merits. The result is the same, however — IAP does not prevail here.

34

Third, to the extent that IAP alleges that offerors were required to explicitly identify

“the most current version of [ITIL]” in their proposals — which, according to IAP, means

version 4 — nothing in the record supports that argument. The RFP merely required that

offerors’ Program and Country Managers be ITIL Foundation certified, in the most current

version, upon contract start date. AR 3831 (§ C.4.21). No provision in the RFP indicated

that offerors were required to specify which version of ITIL Foundation certification its

personnel possessed or project what the most current version would be at a future point

in time. 27 Nevertheless, IAP argues that Vectrus’s proposal is “noncompliant” because

Vectrus’s labor categories descriptions chart merely indicates that its Project and Country

Managers would be “ITIL Foundation” certified and not specifically certified in “ITIL

version 4.” Pl. Resp. at 10–12. The Court concludes, however, that offerors were not

required to identify in their respective proposals which version of ITIL certification their

personnel would possess.

Relatedly, IAP errs in arguing that Vectrus’s proposal is “noncompliant” because

Vectrus allegedly represents in its proposal that its personnel will be certified only in ITIL

version 3 , and not ITIL version 4. Am. Compl. ¶¶ 212, 215; Pl. MJAR at 24; Pl. Resp. at 11.

In support of this argument, IAP points to various statements in Vectrus’s narrative as

“evidence” of Vectrus’s noncompliance, including representations such as “[w]e

implemented ITSM best practices based on the ITIL v3 framework,” and “[w]e provide

an . . . experienced, in-place leadership team of ITILv3 Foundation-certified managers.”

AR 7965, 7967 (Vectrus Proposal, Volume 2 – Sub-Factor 1 Management). IAP’s argument

fails for a simple reason — as explained above, none of Vectrus’s representations in its

proposal amount to an affirmative assertion that Vectrus will not meet the ITIL

Requirement. In fact, each of Vectrus’s aforementioned statements in its proposal are

either in the present tense or the past tense, which is eminently understandable

considering that Vectrus is the incumbent contractor, a fact conveniently overlooked by IAP.

Thus, reading these representations in the context of Vectrus’s position as the current

provider of these services, these statements are merely a recitation of what Vectrus was

providing the Army in support of the ongoing OMDAC-SWACA contract at the time

Vectrus submitted its proposal. Given this context and the nature of the RFP’s requirement,

only a statement disclaiming an intent to provide the most current version of the

27Notably, which version of ITIL Foundation certification is the “most current version” appears

to be an ever-evolving designation. At the time the RFP was issued, ITIL version 3 was the latest

version of the certification. Def. MJAR at 39; Intv. MJAR at 38. In February 2019, however, a mere

few months before proposals were due, ITIL version 4 was released. See Am. Compl. ¶ 210 n.4;

Def. MJAR at 39; Intv. MJAR at 38; Def. Resp. at 18 n.6. Nevertheless, ITIL version 3 remained

current until July 2021. See Def. MJAR at 39 (citing AXELOS announces discontinuation of ITIL v3,

Axelos (Jan. 6, 2021), https://www.axelos.com/news/axelos-announces-discontinuation-of-itil-

v3). In any event, even if IAP is correct and ITIL version 4 is now “the most current version,” the

Court need not definitively resolve this issue because, as discussed above, the RFP does not

require an offeror’s personnel obtain such certification until the contract start date. See AR 3831

(§ C.4.21).

35

certification at the time of contract award (or, more accurately, the start date) could be

disqualifying. Vectrus’s proposal does not suffer from such a defect.

Accordingly, IAP’s argument concerning the ITIL Requirement is without merit,

as nothing in the record indicates that Vectrus’s proposal took exception to the

requirement that its Program and Country Managers must be certified with the most

current version of ITIL upon contract start date.

C. Vectrus Did Not Misrepresent the Availability of Its IT Service Management

Subject Matter Expert (Count VI)

IAP contends that the Army improperly overlooked Vectrus’s failure to notify the

Army of the departure of one of its proposed “key personnel,” Mr. [NS], and engaged in

unequal “post-award discussions” with Vectrus when the Army permitted Vectrus to

replace Mr. [NS] after contract award. Am. Compl. ¶¶ 241–260; Pl. MJAR at 42–48; Pl.

Resp. at 25–29. Essentially, IAP claims that Vectrus engaged in a “bait and switch.” In

general, a “bait and switch” occurs when “an awardee proposes certain key personnel,

then substitutes them for other individuals post-award.” Conley & Assocs., Inc. v. United

States, 142 Fed. Cl. 177, 182 (2019); see also Unified Architecture & Eng’g, Inc. v. United States,

46 Fed. Cl. 56, 64 (“The term ‘bait and switch’ generally refers to an offeror’s

misrepresentation in its proposal of the personnel that it expects to use during contract

performance.”), aff’d, 251 F.3d 170 (Fed. Cir. 2000); Prot. Strategies, Inc. v. United States, 76

Fed. Cl. 225, 235 (2007) (“The crux of a bait and switch claim is the government’s reliance

on a misrepresentation by a successful bidder, which effectively changes the term or

terms of the underlying solicitation.”).

As discussed below, the Court finds that IAP’s bait and switch claim fails for at

least four reasons: (1) Vectrus did not identify Mr. [NS] for a key personnel position as

contemplated by the RFP; (2) even if Vectrus had identified Mr. [NS] for a key personnel

position, there is no evidence that Vectrus had advance knowledge of Mr. [NS]’s intended

departure at the time of proposal submission; (3) there is no evidence that the Army relied

on the availability of Mr. [NS] in evaluating Vectrus’s proposal; and (4) Vectrus had no

obligation to notify the Army of Mr. [NS]’s departure prior to award.

1. Vectrus Did Not Propose Mr. [NS] for a Key Personnel Position

As mentioned above, IAP alleges that Mr. [NS] was one of Vectrus’s proposed key

personnel. This assertion, however, is incorrect.

The Solicitation required offerors to include in their proposals certain “key

personnel.” AR 3961–64 (§ L.8.2). In that regard, the RFP designated only four key

personnel positions: (1) “Project Manager”; (2) “Country Manager”; (3) “Site Manager”;

and (4) “Site Lead Technicians.” AR 3838 (§ H.1.a). Critically, however, the Solicitation

36

did not require offerors to identify their proposed key personnel by name. Indeed, the

RFP specifically instructed offerors “not [to] provide resumes” as part of their proposals.

AR 3964 (§ L.8.2.B.3). Additionally, the Solicitation did not require any documentation,

such as letters of commitment, assuring the continued availability of key personnel.

Instead, the Solicitation only required offerors to be prepared to identify their key

personnel after contract award:

Within ten days of notification of contract award, the

contractor shall provide the names[] and resumes of all

designated Key Personnel to the [Contracting Officer’s

Representative]. Key Personnel identified at the beginning of

phase-in must have the same or greater experience and

qualifications as those presented in the contractor’s proposal.

During contract performance, the contractor shall provide

written notification to the contracting officer at least 30 days

prior to making any changes to Key Personnel. The written

notification shall include copies of the resumes and

Certifications of any individuals proposed as replacements to

Key Personnel. Individuals with equal or higher

qualifications and experience must be provided.

AR 3838 (§ H.1.b).

In Vectrus’s proposal, Vectrus identified Mr. [NS] as its IT Service Management

Subject Matter Expert (“ITSM SME”). AR 7968. Thus, Mr. [NS] was not proposed as “key

personnel,” as the ITSM SME is not one of the “key personnel” positions contemplated

by the RFP. AR 3838 (§ H.1.b).

Nevertheless, IAP argues that the RFP additionally defines “key personnel” as:

(1) “[p]ersonnel identified in the proposal as key personnel to be assigned for

participation in the performance of the contract”; or (2) “[i]ndividuals who are designated

as key personnel by agreement of the government and the contractor during

negotiations.” Pl. MJAR at 10 (quoting AR 3839 (§ H.2.c)). In that regard, IAP alleges

that Vectrus identified six positions in its proposal as “key personnel” in addition to the

four listed in the RFP, and that these six positions, including the ITSM SME role, fall

under the first “defin[ition]” of “key personnel.” Pl. MJAR at 44.

IAP’s reliance on § H.2 of the RFP is misplaced. That RFP section is titled

“Contractor Personnel Administration.” AR 3839 (§ H.2) (emphasis added). Thus, this

portion of the RFP, and its “defin[ition]” of key personnel, governs the terms of the

contract only after the award (during contract administration) and does not apply to an

offeror’s proposal. Indeed, Section H includes “Special Contract Requirements” and does

37

not contain either proposal instructions (Section L) or evaluation criteria (Section M). See

FAR 15.204-2(h) (providing that Section H shall include “a clear statement of any special

contract requirements that are not included in Section I, Contract clauses, or in other

sections of the uniform contract format”); John Blood, B-298841, 2006 CPD ¶ 202, 2006 WL

3771802, at *2 (Comp. Gen. Dec. 21, 2006) (awardee’s “actual compliance with [a] section

H[ clause] is a matter of contract administration”); Petchem, Inc., B-227109, 87-2 CPD

¶ 258, 1987 WL 102822, at *2 (Comp. Gen. Sept. 16, 1987) (“We find particularly

persuasive in this regard the fact that the specific vessel characteristics—including draft

and dimensions—were requested not for technical evaluation purposes, but under

Section H, ‘Special Contract Requirements,’ which required that the work ‘be performed’

in accordance with the listed specifications . . . .”); Sealift, Inc., B-298588, 2006 CPD ¶ 162,

2006 WL 3155722, at *2 (Comp. Gen. Oct. 13, 2006) (where “the solicitation does not

require the offeror to provide the names of crew members or otherwise address how it

will meet the need for a crew in its proposal,” but rather only “requires the owner to

provide the crew list no later than 96 hours prior to the time the ship is to be delivered,”

then “whether [the awardee] complies with [that requirement] is a matter of contract

administration”).

2. The Army Did Not Rely on the Availability of Mr. [NS] in Evaluating

Vectrus’s Proposal and Vectrus Did Not Misrepresent Mr. [NS]’s

Availability

Even assuming, arguendo, that Vectrus had proposed Mr. [NS] for a key personnel

position, contrary to this Court’s interpretation of § H.2 of the RFP, IAP has not met its

burden to demonstrate that Vectrus engaged in an improper “bait and switch.”

To establish a “bait and switch” claim, a plaintiff must demonstrate:

(1) the awardee represented in its proposal that it would rely

on certain specified personnel in performing the services;

(2) the agency relied on this representation in evaluating the

proposal; (3) it was foreseeable that the individuals named in

the proposal would not be available to perform the contract

work; and (4) personnel other than those proposed are

performing the services.

Unified Architecture, 46 Fed. Cl. at 64 (citing Labat-Anderson, Inc. v. United States, 42 Fed.

Cl. 806, 855 (1999)); see also Golden IT, LLC v. United States, -- Fed. Cl. --, 2022 WL 334369,

at *18 (2022) (explaining that while “an offeror may not knowingly misrepresent a

material fact in a proposal for the purpose of winning a government contract,” a

plaintiff’s “misrepresentation claim must be rejected if [the awardee] had a reasonable

basis for proposing that it would commit [a particular individual] to serve as a member

of key personnel in performing the [contract] at issue”).

38

Elements 1 and 4 from the Unified Architecture framework are not at issue here —

all parties agree that Vectrus proposed Mr. [NS] as its ITSM SME and that an individual

other than Mr. [NS] will be serving in that role. The parties disagree, however, regarding

(1) whether the Army’s evaluation relied on Vectrus’s representation that Mr. [NS] would

serve as its ITSM SME, and (2) whether it was foreseeable that Mr. [NS] would leave

Vectrus’s employ prior to award. In other words, the parties contest whether Vectrus

engaged in a knowing, material misrepresentation. Unified Architecture, 46 Fed. Cl. at 64–

65 (“Termination of a contract award based on the proposal is appropriate where such a

misrepresentation materially influences an agency’s evaluation of an offeror’s

proposal.”); Golden IT, 2022 WL 334369, at *18. Thus, the Court addresses the remaining

elements of IAP’s bait and switch claim.

First, the Army did not rely on Vectrus’s representation that Mr. [NS] would serve

as its ITSM SME in evaluating Vectrus’s proposal. IAP dedicates a great deal of space in

its briefs in an attempt to convince the Court that Mr. [NS] was “material” to Vectrus’s

approach and that the inclusion of Mr. [NS] in Vectrus’s proposal “contributed” to the

Army’s assignment of two significant strengths and one strength to Vectrus. Pl. MJAR at

45–46; Pl. Resp. 26–28. For example, IAP asserts that Vectrus’s proposal “touted his

incumbent experience,” and his inclusion was “[e]ssential” to Vectrus’s proposal, and, as

a direct consequence, “[t]he SSEB evaluated and assigned a significant strength to Vectrus

for its ‘experience and its organizational approach.’” Pl. MJAR at 43–45 (arguing that the

SSEB’s award of a significant strength to Vectrus on Subfactor 1 is directly correlated to

“Vectrus’ discussion of the experience of its Key Personnel—including Mr. [NS]—under

the incumbent contract and commitment to provide ‘continuity’”).28

This argument “taxes the credulity of the credulous.” Maryland v. King, 569 U.S.

435, 466 (2013) (Scalia, J., dissenting). First, while the role of the ITSM SME position is

mentioned in several places throughout Vectrus’s proposal, Mr. [NS] is mentioned once

in the proposal, see AR 7968 (identifying “[NS]” as Vectrus’s current ITSM SME), and

there is no indication that Vectrus’s entire management (Subfactor 1) approach hinged

on the identity of its ITSM SME. Second, nothing in the record demonstrates that

Mr. [NS] was a material factor in the Army’s evaluation of Vectrus’s proposal.

Furthermore, there is zero evidence that the Army’s assignment of the two significant

strengths (and one strength) to Vectrus on Subfactor 1 had anything to do with Mr. [NS].

Indeed, the Army does not appear to have even mentioned Mr. [NS] or ITSM SME in any

of its evaluation documents the Court reviewed. 29 See, e.g., AR 9071–9103 (MS/TA Team

28IAP presents similar arguments for the second significant strength and one of the strengths

assigned to Vectrus on Subfactor 1. Pl. MJAR at 44–46.

29Notably, the only instance the term “ITSM SME” (or derivatives thereof) is mentioned in the

source selection documents is in reference to [Juliet]’s proposal — and not even in a final

document — in an email attachment from the MS/TA team to the SSA answering her MS/TA

39

Initial Report); AR 9308–87 (SSEB Initial Evaluation); AR 9388–98 (SSAC Final Report);

AR 9399–9413 (Source Selection Decision Document). Accordingly, the Court finds that

Vectrus’s inclusion of Mr. [NS] in its proposal was not “material” and his proposed role

as ITSM SME did not influence the Army’s evaluation.

Second, there is no evidence that Vectrus knew, or should have known, that

Mr. [NS] planned to depart Vectrus at the time it submitted its proposal to the Army.

Again, the parties do not dispute that Mr. [NS] was an employee of Vectrus on

May 17, 2019, the day Vectrus submitted its proposal. See Am. Compl. ¶ 254; Def. MJAR

at 47; Intv. Resp. at 25. Nor do the parties dispute that Mr. [NS] left Vectrus after proposal

submission, but prior to award, around October 2020. Am. Compl. ¶ 254; Def. Resp. at

25; Pl. Resp. at 25; Intv. MJAR at 44. What the parties do dispute — and what IAP fails to,

and cannot, prove — is whether it was foreseeable (to Vectrus) that Mr. [NS] would leave

Vectrus prior to contract award.

There is no evidence whatsoever in the administrative record — or proffered by

any party — suggesting that Vectrus had any indication at the time it submitted its proposal

that Mr. [NS] intended to leave Vectrus for another employer and would be unavailable

to perform the contract work. See Unified Architecture, 46 Fed. Cl. at 65; Golden IT, 2022

WL 334369, at *19 (“The fatal problem for [Plaintiff]’s claim, however, is that there is

simply no evidence in the record — literally, nothing — demonstrating that [the awardee]

had any knowledge prior to submitting its proposal, or at any point before [the

employee’s] departure from [the awardee], that he intended to leave [the awardee].”).

IAP did not sustain its burden of proof on this claim.

Accordingly, the Court finds that (1) the Army did not rely on Vectrus’s

representation concerning Mr. [NS] in evaluating Vectrus’s proposal, and (2) Vectrus had

no reason to know that Mr. [NS] would leave Vectrus prior to contract award. IAP’s “bait

and switch” claim fails at a minimum for lack of evidence.

3. Vectrus Had No Duty to Notify the Army of Mr. [NS]’s Departure

IAP further alleges that Vectrus had a duty to notify the Army of the departure of

Mr. [NS] and that Vectrus’s failure to do so is grounds for disqualification. Pl. MJAR at

42–43; Pl. Resp. at 25–26. This Court recently rejected the existence of such a duty in

Golden IT, 2022 WL 334369, at *20–22. In short, an offeror is not obligated to notify an

agency of the departure of key personnel post-proposal submission, absent an affirmative

requirement to do so in the solicitation. Id.

questions. See AR 9065 (“Offeror Juliet proposed one ITSM subject matter specialist, ITIL

Intermediate certified, as a member of its training team under sub-factor 1.”).

40

Specifically, in rejecting the GAO rule requiring offerors to notify agencies of

changes in staffing, this Court explained:

A proposal is submitted at a point in time and is evaluated

over what is often a lengthy period. The Court agrees, of

course, that an offeror must have a reasonable basis for all

facts and representations made in its proposal — and may not

knowingly or recklessly include false statements of material

fact. A court’s assessment of an offeror’s knowledge of facts

and representations, however, is made with respect to the

point in time at which the offeror submitted its proposal.

Software versions may change, planned approaches to

contract performance might be altered or improved by the

time of contract award, and employees may come and go —

none of those are problems per se. And, where contemplated

in a solicitation, the government typically has discretion to

engage in discussions to verify proposal details, to extract

more details and ultimately include them into an awarded

contract, or to seek final proposal revisions (“FPRs”) for the

purpose of confirming key personnel. But, the Court will not

conjure up a rule — and particularly not one untethered from

a statute, regulation, or Federal Circuit decision — requiring

offerors or quoters to routinely update the government when

facts and circumstances change post-proposal or quote

submission, during the course of the government’s evaluation

period.

Golden IT, 2022 WL 334369, at *21 (citations omitted).

Here, the Solicitation did not require offerors to submit résumés, let alone to name

their key personnel. AR 3964 (§ L.8.2.B.3). Furthermore, the RFP did not require offerors

to update the Army prior to contract award about proposed key personnel departures.

Additionally, there is nothing in the record that demonstrates, by a preponderance of the

evidence, that Vectrus had any knowledge at the time of proposal submission that

Mr. [NS] would not be available for contract performance.

Accordingly, the Court finds that Vectrus had no duty to notify the Army of the

departure of Mr. [NS], and Vectrus’s failure to do so does not render Vectrus’s proposal

unawardable. 30

30In light of the Court’s conclusions that Vectrus did not materially misrepresent the availability

of Mr. [NS] and that Vectrus had no freestanding obligation to inform the Army of Mr. [NS]’s

41

D. The Army’s Cost Realism Evaluation Was Reasonable (Count VII)

IAP contends that the Army’s cost realism evaluation was “flawed.” Pl. MJAR at

37–41; Am. Compl. ¶¶ 261–280; Pl. Resp. at 24. IAP’s argument is two-pronged. First,

IAP challenges the method used by the cost team to evaluate the realism of certain direct

labor rates. Am. Compl. ¶¶ 265–268; Pl. MJAR at 40–41; Pl. Resp. at 24. Second, IAP

alleges that that the Army improperly evaluated Vectrus’s proposed labor hours. Am.

Compl. ¶¶ 269–280; Pl. MJAR at 37–40; Pl. Resp. at 24.

An agency is required to perform a cost realism analysis in a cost-reimbursement

procurement “to determine the probable cost of performance for each offeror.” FAR

15.404-1(d)(2). The FAR defines “[c]ost realism analysis” as:

the process of independently reviewing and evaluating

specific elements of each offeror’s proposed cost estimate to

determine whether the estimated proposed cost elements are

realistic for the work to be performed; reflect a clear

understanding of the requirements; and are consistent with

the unique methods of performance and materials described

in the offeror’s technical proposal.

FAR 15.404-1(d)(1).

There are two main purposes of a cost realism analysis: (1) “to prevent offerors

from gaining an advantage over competitors by proposing an unrealistically low

estimated cost”; and (2) “to determine whether offerors understand the contract

requirements.” VS2, LLC v. United States, 155 Fed. Cl. 738, 759 (2021) (emphasis omitted)

(first quoting Ralph C. Nash & John Cibinic, Cost Realism Analysis in Negotiated Fixed Price

Contracts: Confusion at the GAO or a New Limitation on Buy-Ins?, 4 Nash & Cibinic Rep. ¶ 61

(1990); and then quoting Ralph C. Nash & John Cibinic, Cost Realism Analysis in Cost

Reimbursement Contracts: What are the Rules of the Game?, 5 Nash & Cibinic Rep. ¶ 40

(1991)). “Agencies tasked with performing such an analysis must make appropriate

probable cost adjustments such that an offeror’s proposed cost best reflects the estimated

cost of performance.” Synergy Sols., Inc. v. United States, 133 Fed. Cl. 716, 749 (2017) (citing

FAR 15.404–1(d)(2)(i)). Put simply, a cost realism analysis “addresses whether a cost

estimate is too low.” First Enter. v. United States, 61 Fed. Cl. 109, 123 (2004).

departure, the Court need not address IAP’s argument that the Army engaged in “unequal

discussions” in allowing Vectrus to name a substitute for Mr. [NS]’s position, Pl. MJAR at 46–48,

as such “discussions,” if they can even be called that, were not improper given the terms of the

procurement as specified in the RFP.

42

The Federal Circuit has instructed that “agencies enjoy wide latitude in conducting

the cost realism analysis.” Agile Def., Inc. v. United States, 959 F.3d 1379, 1385–86 (Fed.

Cir. 2020); see also A-T Sols., Inc. v. United States, 122 Fed. Cl. 170, 180 (2015) (“As cost

realism determinations are within an agency’s ‘sound discretion and expertise,’ the Court

will not overturn a cost realism determination unless the plaintiff demonstrates the

absence of a rational basis for the agency’s decision.” (quoting CTA Inc. v. United States,

44 Fed. Cl. 684, 693 (1999))). Although the FAR “provides examples of cost analysis

techniques,” it “does not mandate the use of any specific methodology.” Agile Def., 959

F.3d at 1386 (citing FAR 15.404-1(c)). Rather, the FAR provides that “[t]he [g]overnment

may use various cost analysis techniques and procedures to ensure a fair and reasonable

price, given the circumstances of the acquisition.” FAR 15.404-1(c)(2). Thus, “[w]hile an

agency’s cost realism analysis need not have been performed with ‘impeccable rigor’ to

be rational, the analysis must reflect that the agency considered the information available

and did not make ‘irrational assumptions or critical miscalculations.’” Westech Int’l, Inc. v.

United States, 79 Fed. Cl. 272, 286 (2007) (quoting OMV Med., Inc. v. United States, 219 F.3d

1337, 1344 (Fed. Cir. 2000)).

For the reasons explained below, this Court rejects IAP’s claims concerning the

Army’s cost realism evaluation.

1. The Army’s Evaluation of Direct Labor Rates (Count VII.A)

As discussed supra, 31 the Army’s cost evaluation team performed a cost realism

analysis of offerors’ labor rates in accordance with FAR 15.404-1. AR 9187–88 (Initial

Price/Cost Proposal Analysis). The cost team utilized two different methods to evaluate

offerors’ labor rates:

The direct labor rate analysis produced 1,777 lines of labor

categories among the proposals[,] which translated into 520

unique labor categories. In order to evaluate the rates, the

unique labor categories were grouped into 368 categories

based on the PWS requirements. The [g]overnment used two

methods of labor rate evaluation. First, those rates that were

able to be, were compared on a competitive basis and a

statistical methodology was used to determine if a rate was

realistic or not. [Second,] [i]f less than three rates were

proposed for the same labor category[,] then the Bureau of

Labor Statistics (BLS) and the Economic Research Institute

(ERI) were used as outside pricing assistance to determine the

realism of the remaining rates. The [g]overnment identified

the rates at the 10th, 25th, 50th, 75th, and 90th percentiles in

31 See Sections I.A.3 and I.B.1.b.

43

each database. The [g]overnment selected Washington, D.C.

as the rate location as Middle East locations are not available.

The average of the BLS 25th percentile rate and the ERI 25th

percentile rate was used as a basis to determine the realism of

the proposed direct labor rates. Therefore, if a proposed rate

fell below that benchmark, it was determined to be

unrealistic.

AR 9187–88.

IAP challenges the first method, alleging that it is “flawed” because “the Army

relied on [a] ‘competitive’ approach . . . to determine realism even if all three rates were from

the same offeror.” Pl. MJAR at 40; see also Am. Compl. ¶ 266; Pl. Resp. at 24. Instead, IAP

argues, the Army should have analyzed offerors’ labor rates using only the second

method. Am. Compl. ¶ 268; Pl. MJAR at 41.

The Court agrees with IAP that the first method is irrational only insofar as the

Army applied it to “proposed rates submitted by the same offeror for the same labor

category.” Pl. MJAR at 41 (quoting AR 11389 (Schwartz Decl. ¶ 28)). 32 The Court does

not understand how comparing an offeror’s labor rates to its own labor rates realistic

(even if multiple locations are used). The question is the impact of that flaw. IAP asserts

that “at a minimum, 13 additional Vectrus labor rates would have been found unrealistic”

had the Army employed the second method of evaluating the realism of labor rates. Id.

As a result, according to IAP, an additional $24 million should have been added to

Vectrus’s total evaluated price. Id.

The Court rejects IAP’s argument for lack of proof. IAP cites to its expert’s

conclusion in a declaration, including his “[s]upporting [c]alculations,” but otherwise

provides no explanation for the $24 million sum. Pl. MJAR at 41 (first citing AR 11390

(Schwartz Decl. ¶¶ 30–32); and then citing AR 11574–11917). The expert’s declaration,

however, does not explain the math. Moreover, the referenced “supporting calculations”

span approximately 340 pages, and the Court cannot discern how IAP’s expert identified

the aforementioned thirteen labor categories (with no comparable rates from other

offerors) or how he arrived at a projected $24 million increase to Vectrus’s total evaluated

price. 33 The Court is not obligated to comb 340 pages of data to attempt to reconstruct or

32The administrative record filed with the Court includes the GAO record. The latter contains a

declaration from IAP’s expert, Mr. Marc P. Schwartz, a senior manager with Chess Consulting

LLC. AR 11383–91.

33 The Court agrees wholeheartedly with Vectrus: “IAP’s ‘expert report’ does not reveal the

formula used support these calculations, and thus this claim cannot [be] verified.” See Intv. Resp.

at 30 n.96.

44

prove IAP’s expert’s argument. IAP has the burden of proof, and it is not carried on this

issue. 34

In any event, IAP is not prejudiced by the Army’s analysis. As discussed supra

Section V.A, this Court has found that the Army reasonably determined that IAP’s

proposal was unawardable based on a reasonably assigned Unacceptable rating on the

MS/TA factor. Thus, to the extent the Army erred in its evaluation of the offerors’ direct

labor rates, IAP was not prejudiced by the error because its proposal was ineligible for

award. See Unified Architecture, 46 Fed. Cl. at 64 (finding that while the agency’s cost

realism analysis “might have been arbitrary and capricious, plaintiff . . . has not

demonstrated that [the agency]’s error was significant and prejudicial,” where the error

will not change the source selection result); Worldwide Language Res., LLC. v. United States,

127 Fed. Cl. 125, 135 (2016) (“[E]ven if [plaintiff] had shown that the exclusion of [certain]

costs from the total evaluated price was in error, plaintiff has failed to show they were

prejudiced by that exclusion.”).

2. The Army Rationally Analyzed the Offerors’ Labor Hours (Count VII.B)

Additionally, IAP alleges that that the Army failed to conduct a rational cost

realism analysis of the offerors’ proposed labor hours. 35 Am. Compl. ¶¶ 269–280; Pl.

MJAR at 37–40; Pl. Resp. at 24. Specifically, IAP contends that the Army “never

reconcile[d] [a] fundamental disagreement among the cost and technical evaluation

teams” as to whether the labor hours in Vectrus’s cost proposal was “underestimated by

more than 6 million hours.” Am. Compl. ¶¶ 271–272 (emphasis omitted); see also Pl.

MJAR at 39; Pl. Resp. at 24. Upon careful review of the record, the Court finds that this

assertion is patently false. 36

34Given the Court’s conclusion, the Court need not reach the government’s argument that

Mr. Schwartz’s declaration should be disregarded as an “inappropriate supplementation of the

administrative record.” Def. MJAR at 44 n.4.

35In its MJAR, IAP raised three other arguments under this count. Pl. MJAR at 37–39. The

government countered each of these claims in its response brief. Def. Resp. at 20–22. IAP,

however, failed to address these arguments in its response brief. Accordingly, the Court finds

that IAP has abandoned those three arguments and need not address them. See Golden IT, 2022

WL 334369, at *12 (“This Court will not permit a party to raise a phalanx of thin arguments in a

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

engage with all of them — only to abandon them in the face of the counterarguments, and yet

insist that the Court adjudicate the entire initial salvo. Such a buckshot-like approach to advocacy

undermines both judicial economy and basic notions of fairness.”); see also discussion infra

Section V.F.

36The Court is not surprised that this argument is whittled down to a single paragraph in IAP’s

response brief. Pl. Resp. at 24.

45

As summarized supra, 37 as part of the MS/TA team’s analysis of offerors’

proposed staffing and labor hours, the MS/TA team compared offerors’ staffing matrices

and sanitized cost workbooks to ensure that the labor hours proposed therein were

consistent and realistic. AR 9197–9220; see also AR 9322 (SSEB Initial Report). When the

MS/TA team initially reviewed Vectrus’s cost proposal, the team recognized that the

labor hours listed therein did not match up with either the proposed cost or the labor

hours the team calculated based on Vectrus’s staffing matrix. AR 9208. The MS/TA team

communicated this finding to the cost team, which concurred. AR 9184 (Initial

Price/Cost Proposal Analysis). Subsequently, upon review of the initial data, the SSA

asked the SSEB to investigate the apparent discrepancy. AR 8901 (SSA Email Exchange

with SSEB – SSA Evaluation Questions) (“How does [Vectrus] have significantly [fewer]

overall hours ([ * * * ]) than all other offers and half that of the [Independent Government

Estimate], but have the third most [contract manpower equivalents] ([ * * * ])? How are

[Vectrus]’s hours reasonable for the work scope if they are less than [ * * * ] that of the

[Independent Government Estimate] and other offerors?”); see also AR 9066–67.

Ultimately, both the MS/TA and cost evaluation teams determined that the discrepancy

was the result of a formula error in Vectrus’s Excel spreadsheet (the cost workbook): the

formula in the column reflecting the “Total Productive Labor Hours” in each spreadsheet

did not account in its calculations for the number of FTEs proposed for that labor

category, and only accounted for a single FTE per labor category. 38 AR 9053, 9066–67

(SSA Email Exchange with SSEB – SSEB Response); AR 9193; AR 8158 (Vectrus Proposal,

Volume 4 – Cost Workbook).

Upon adjusting the spreadsheets to account for the formula discrepancy, the

teams were able to determine the correct labor hours in Vectrus’s cost proposal. AR 9053;

AR 9193. The MS/TA team also confirmed that Vectrus’s proposed labor hours were

“adequate to accomplish the work scope.” AR 9067; AR 9068.

The Court has examined the administrative record, including Vectrus’s sanitized

and unsanitized cost workbooks. The Court finds that there is no evidence whatsoever

supporting IAP’s claim that the Army’s cost realism evaluation of Vectrus’s labor hours

was irrational or otherwise flawed. See A-T Sols., 122 Fed. Cl. at 180 (declining to overturn

an agency’s cost realism determination because the agency “had a rational basis for

concluding that [the awardee]’s staffing proposal met the requirements of the solicitation

and that [the awardee]’s cost proposal was realistic”).

37 See Section I.B.1.b.

The teams also realized that they failed to account for Vectrus’s subcontractors’ cost data, which

38

was contained in separate files. AR 9193.

46

E. The Army Did Not Disparately Evaluate IAP’s Proposal (Counts II.A, V.A,

and IX)

IAP’s next challenge is that the Army unlawfully engaged in unequal treatment in

its evaluation of IAP’s proposal, in violation of FAR 1.102(b) and 1.602-2. 39 Am. Compl.

¶¶ 178–183, 234–235, 283–288; Pl. MJAR at 25, 28, 30–37. The Court, however, does not

find any of IAP’s arguments concerning disparate treatment persuasive.

To succeed on a disparate treatment claim, a plaintiff must demonstrate either:

(1) “the agency unreasonably downgraded its proposal for deficiencies that were

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

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

between it and other offerors, such as proposal page limits, formatting requirements, or

submission deadlines.” Off. Design Grp. v. United States, 951 F.3d 1366, 1372 (Fed. Cir.

2020) (quoting Hamilton Sundstrand Power Sys. v. United States, 75 Fed. Cl. 512, 516 (2007)).

In this case, IAP challenges the allegedly disparate technical ratings; thus, only the first

Office Design Group standard applies.

First, IAP argues that the Army, in its evaluation of other offerors’ OSP approach,

“did not hold the other offerors to an equal standard [to that of IAP], in contravention of

FAR 1.102 and 1.602-2.” Pl. MJAR at 28. For example, IAP asserts that the Army faulted

IAP for “not identify[ing] the regions where [the centralized] teams would provide

support,” but failed to “criticize the OSP approach of [other] offerors” for not

“mention[ing] specific locations” in their narratives. Id. at 27–28. The Court rejects this

assertion, finding it plainly wrong. IAP was not penalized by the Army for merely failing

to “identify the regions where [the centralized] teams would provide support” in its

narrative, see AR 9348; rather, IAP was faulted for failing to propose sufficient OSP

support in either its narrative or its staffing matrix. While other offerors may have not

provided significant detail in their narratives about their proposed approaches to OSP

support, they did propose OSP services at the required locations in Iraq in their staffing

matrix, unlike IAP. Thus, there was no “[un]equal standard” concerning the requisite

detail in offerors’ OSP support narrative, and IAP’s error was not “substantively

indistinguishable” from those of other offerors. Off. Design Grp., 951 F.3d at 1372.

Second, IAP suggests that the Army’s assignment of a deficiency to IAP for

inadequate OSP support “amounts to unequal treatment” because other offerors had

“substantially identical” OSP staffing shortfalls and they were merely assigned “a

weakness, an uncertainty, or nothing.” Pl. MJAR at 30. IAP asserts that “had the Army

39 FAR 1.102(b)(3) instructs agencies to “[c]onduct business with integrity, fairness, and

openness,” while FAR 1.602-2 requires that “[c]ontracting officers shall . . . [e]nsure that

contractors receive impartial, fair, and equitable treatment[.]” See also Tolliver Grp., Inc. v. United

States, 151 Fed. Cl. 70, 87–88, 88 n.15 (2020) (discussing FAR 1.102 and 1.602-2).

47

treated IAP equally as the FAR required,” IAP would have received, at most, a “minor

weakness.” Id. at 32. Like the preceding argument, the Court finds this claim simply

incorrect as a factual matter. In contrast to other offerors, IAP was not assigned a

deficiency for proposing merely “insufficient OSP hours.” Id. Rather, the Army faulted

IAP for failing to propose sufficient OSP support for an entire country. None of the other

offerors’ proposals completely eliminated support in an entire labor category for an entire

country. Therefore, the shortfalls are not “substantively indistinguishable” and, thus,

IAP was not disparately evaluated. Off. Design Grp., 951 F.3d at 1372.

Third, IAP contends that [Alpha] received “a mere uncertainty” for omitting from

its staffing matrix the required Site Lead Technician at the [ * * * ], when it should have

received a deficiency because [Alpha]’s “flaw” is “substantially similar to the Army’s

purported basis” for assigning IAP a deficiency. Pl. MJAR at 33–35. [Alpha], however,

did propose in its narrative that it would provide a Site Lead Technician at the [ * * * ]. See

AR 5712 ([Alpha] Proposal, Volume 2 – Mission Support/Technical Approach | Sub-

Factor 1). Thus, [Alpha]’s error amounted to a mere discrepancy between its narrative

and staffing matrix, and not a complete failure to propose sufficient support. IAP’s

proposal, in contrast, was consistent in its pervasive omission — IAP’s proposal

contained no evidence of OSP support in Iraq in either its narrative or its staffing matrix.

Furthermore, IAP’s error was material — it eliminated an entire labor category from a

country without providing sufficient detail as to how the necessary support would be

provided. As such, IAP’s error is not “substantively indistinguishable” from that of

[Alpha]. Off. Design Grp., 951 F.3d at 1372.

Fourth, IAP alleges that [Alpha] and [Juliet] had inconsistencies between their

narratives and staffing matrices concerning proposed OSP support, and had the Army

treated their proposals the same as IAP’s, they would have been assigned deficiencies.

Pl. MJAR at 35–36. Such discrepancies, however, did not represent a complete failure to

propose sufficient OSP support in both their narratives and staffing matrices. For

example, in [Juliet]’s technical narrative, [Juliet] proposed “at least two OSP Technicians

on shift at all times.” AR 7019 ([Juliet] Proposal, Volume 2—Mission Support/Technical

Approach | Sub-Factor 2). However, in [Juliet]’s staffing matrix, [Juliet] proposed to have

two OSP technicians in some locations but a single OSP technician in other locations. See,

e.g., AR 7035 (listing two OSP technicians at [ * * * ], but only one OSP technician at [ * * * ],

and indicating that the OSP technician would be “[s]upported by Network Admin [sic]

as needed for 2 man safety”). Similarly, [Alpha] represented in its narrative that its “OSP

teams always have at least two technicians on shift.” AR 5773 ([Alpha] Proposal, Volume

2 – Mission Support/Technical Approach | Sub-Factor 2). Like [Juliet], [Alpha]’s staffing

matrix reflected two OSP technicians in some TE2-required locations, but only one in

others. See, e.g., AR 5809 (listing two OSP technicians at [ * * * ], but only one OSP

technician at [ * * * ]). Thus, IAP’s error is substantively distinguishable from that of

[Alpha] and [Juliet], as there was a discrepancy between [Alpha]’s and [Juliet]’s respective

narratives and staffing matrices as to the level of support in some locations, but not a clear

48

lack of support as the Army evaluators found for IAP. See Off. Design Grp., 951 F.3d at

1372.

Fifth, IAP asserts that the Army “violate[d] the FAR’s equal treatment mandate”

by allowing Vectrus to use its “Statement of Compliance” to “remedy its failure” to meet

the ITIL Requirement, but assigned IAP a deficiency “for purportedly failing to offer

sufficient OSP support in Iraq.” Pl. MJAR at 25. This argument fails for two reasons.

First, as discussed supra Section V.B, Vectrus did not take exception to the ITIL

Requirement, and the Army reasonably found that Vectrus complied with the

requirement. Second, to succeed on a disparate treatment claim, a plaintiff must

demonstrate that the agency evaluated similar deficiencies in two proposals unequally.

See Off. Design Grp., 951 F.3d at 1372. Here, however, IAP’s comparison of the ITIL

Requirement to the OSP support requirement is like the proverbial comparison of apples

to oranges. IAP seeks to compare two vastly different RFP requirements without

explaining why such a comparison has any merit. See Fluor Intercontinental, Inc. v. United

States, 147 Fed. Cl. 309, 330 (2020) (finding no disparate treatment where “the offerors’

‘systemic issues’ were of two inherently different breeds”). Thus, even if the Army

improperly allowed Vectrus to rely on its “Statement of Compliance” to meet the ITIL

Requirement and the ITIL Requirement was a “material” requirement — which it is not

— thus rendering Vectrus’s proposal “noncompliant,” such a “deficiency” is not

“‘substantively indistinguishable’ or nearly identical” to IAP’s complete failure to

provide adequate OSP staffing coverage in Iraq. Off. Design Grp., 951 F.3d at 1372; see also

Tech. Innovation All. LLC v. United States, 149 Fed. Cl. 105, 132 (2020) (“Indeed, having the

Court pass judgment regarding the relative merits of proposals that are not substantively

indistinguishable ‘would give a court free reign to second-guess the agency’s

discretionary determinations underlying its technical ratings’ and ‘[t]his is not the court’s

role.’” (alteration in original) (quoting Office Design Grp., 951 F.3d at 1373)). Accordingly,

the Court finds that IAP’s final disparate treatment argument lacks merit.

IAP fails to demonstrate that the Army disparately evaluated its proposal, and the

Court does not find that the Army evaluators erred in their discretionary assignment of

a deficiency to IAP’s proposal.

F. IAP Abandoned Counts II.B, II.C, IV, and V.B

The Court finds that IAP has abandoned the following claims from its amended

complaint: (1) Count II.B (challenging the failure to conduct clarifications), Am. Compl.

¶¶ 185–192; (2) Count II.C (challenging the significant weakness and weakness assigned

to IAP on Subfactor 2), Am. Compl. ¶¶ 193–206; (3) Count IV (challenging the weakness

on assigned to IAP on Subfactor 1), Am. Compl. ¶¶ 216–227; and (4) Count V.B

(challenging a strength assigned to Vectrus on Subfactor 1 and that IAP should have been

assigned a comparable strength), Am. Compl. ¶¶ 236–240. As the government and

49

Vectrus correctly note, IAP fails to address these claims in its MJAR. Def. Resp. at 1–2;

Intv. Resp. at 1.

The Court agrees with the government and Vectrus that IAP has abandoned these

counts and, thus, need not consider the claims alleged thereunder. 40 See Ironclad/EEI v.

United States, 78 Fed. Cl. 351, 357–58 (2007) (finding that “plaintiff has waived [four]

counts of the complaint” when it failed to address them in its MJAR); Sarro &

Assocs., Inc. v. United States, 152 Fed. Cl. 44, 58 (2021) (“Indeed, in responding to the

government’s motion to dismiss, [Plaintiff] appears to have all but abandoned this

particular claim contained in the amended complaint. A party’s failure to raise an

argument in an opening or responsive brief constitutes waiver.” (citations omitted));

Chromalloy San Diego Corp. v. United States, 145 Fed. Cl. 708, 740 (2019) (“[W]hen a plaintiff

asserts a claim in its complaint but then fails to pursue it in a dispositive motion, the court

can deem that claim abandoned or waived.”); Chenega Healthcare Servs., LLC v. United

States, 141 Fed. Cl. 254, 259 n.4 (2019) (“The court agrees with the government that

[Plaintiff] has waived reliance on any counts of the complaint not addressed by

[P]laintiff’s dispositive motion.”); Singer Co. v. United States, 568 F.2d 695, 718 (Ct. Cl.

1977) (“This claim was called out in plaintiff’s petition but the briefs which plaintiff

submitted offer no discussion of this claim. We assume, therefore, that the claim has been

abandoned.”).

G. The Administrative Record Does Not Support the Army’s Decision

Declining Both to Establish a Competitive Range and to Conduct

Discussions (Count I)

IAP contends that the government’s “failure to engage in discussions” in this

procurement “was arbitrary, capricious, and an abuse of discretion,” Am. Compl. ¶ 131,

“or otherwise not in accordance with law,” id. ¶ 157. In particular, IAP argues that the

Army did not comply with DFARS 215.306. Id. ¶¶ 135–138; Pl. MJAR at 19–23; Pl. Resp.

at 2–4. The Court agrees with IAP.

1. The Plain Language of DFARS 215.306 Creates a Regulatory Presumption

in Favor of Conducting Discussions

Although the Court has addressed the relevant DFARS provision at length in Oak

Grove Techs., LLC v. United States, 155 Fed. Cl. 84, 108–14 (2021), the Court begins once

again with the regulation’s plain language: the DFARS provides that “[f]or acquisitions

40The Court notes that IAP obliquely references Count II.C in its MJAR in two footnotes, Pl. MJAR

at 5 n.4, 29 n.11, and Count V.B is briefly mentioned in its MJAR twice, Pl. MJAR at 16 (statement

of facts), 20–21 (discussions argument), and in one sentence in its response brief, Pl. Resp. at 5.

These tangential inferences do not develop or support the arguments, however, and do not save

these counts from abandonment.

50

with an estimated value of $100 million or more, contracting officers should conduct

discussions.” DFARS 215.306(c)(1) (emphasis added). The key word in that provision,

manifestly, is “should” — a term synonymous with neither “may” nor “shall.” Indeed,

the FAR separately defines all three terms: “May denotes the permissive”; “Shall denotes

the imperative”; while “Should means an expected course of action or policy that is to be

followed unless inappropriate for a particular circumstance.” FAR 2.101 (emphasis

added). The fact that DFARS 215.306 employs the term “should” does not mean that

following the regulation somehow is optional for the Department of Defense or, by

extension, the Army. DynCorp Int’l, LLC v. United States, 10 F.4th 1300, 1311 (Fed. Cir.

2021) (“Naturally, an agency has no discretion to disregard binding regulations.” (citing

5 U.S.C. § 706(2))). The question, then, is not whether the Army must follow DFARS

215.306 — that premise is not in dispute — but rather how much discretion the Army

possesses not to engage in discussions given that the DFARS provision governs this

procurement. To answer that question, we must back up a bit and establish “some

[additional] first principles.” Washington Metro. Area Transit Auth. v. United States, 54 Fed.

Cl. 20, 27 (2002).

What the FAR makes clear is that, depending upon the particular provision at

issue, there exists a continuum of agency discretion, ranging from its apex (indicated by

the word “may”) to its nadir (indicated by the word “shall”) 41 — with “should” falling

somewhere in the middle. See FAR 2.101. Each of those terms — “may,” “should,” and

“shall” — have different meanings. Id.; cf. United States v. Maria, 186 F.3d 65, 71 (2d Cir.

1999) (explaining that “where the Sentencing Commission chose the word ‘should’

instead of ‘shall’ or ‘must,’ the Commission meant what it said and said what it meant”).

And just as there is an obvious distinction between “should” and “shall” — because “[a]s

a general matter, the use of different words within the same statutory context strongly

suggests that different meanings were intended” — so, too, “[t]he difference between

‘may’ and ‘should’ is significant.” Maria, 186 F.3d at 71. 42

Applying those interpretative principles to DFARS 215.306(c)(1), the Court

continues to stand behind its conclusion in Oak Grove that “the DFARS provision’s plain

language . . . create[s] a presumption in favor of an agency’s conducting discussions.”

155 Fed. Cl. at 108 (“the DFARS provision’s plain language suggests that an agency must

justify not engaging in discussions where the provision applies” (emphasis omitted)); see

41FAR 15.306, for example, employs the word “shall” twelve times, and the word “may” sixteen

times.

42See also Kingdomware Techs., Inc. v. United States, 579 U.S. 162, 171–72 (2016) (explaining that

“[u]nlike the word ‘may,’ which implies discretion, the word ‘shall’ usually connotes a

requirement” and that “[w]hen a statute distinguishes between ‘may’ and ‘shall,’ it is generally

clear that ‘shall’ imposes a mandatory duty”); Alamo Travel Grp., LP v. United States, 108 Fed. Cl.

224, 233 (2012) (“The definitions in FAR section 2.101, which have a uniform meaning throughout

the FAR unless otherwise specified, draw a sharp line in usage between ‘shall’ and ‘should.’”).

51

also Maria, 186 F.3d at 73 (explaining that the term “should” “creates . . . a ‘strong

presumption’” (emphasis added) (quoting United States v. Walker, 98 F.3d 944, 945 (7th Cir.

1996)). The Court’s interpretation of DFARS 215.306 in Oak Grove was not formulated ex

nihilo, but rather is premised on binding Federal Circuit precedent that adopted the

government’s own operational interpretation of that provision:

The Federal Circuit’s decision in Dell Federal Systems, L.P. v.

United States removes any doubt that DFARS 215.306

generally requires an Agency to engage in discussions. Dell

Fed. Sys., L.P. v. United States, 906 F.3d 982 (Fed. Cir. 2018).

In Dell Federal Systems, unsuccessful offerors filed GAO

protests, arguing, amongst other things, “that the Army

should have engaged in discussions with offerors . . . as

required by [DFARS] 215.306(c)[.]” 906 F.3d at 987–88

(footnoted omitted). As part of the agency’s corrective action

to resolve the protests, the agency decided it would reopen

the procurement to conduct discussions, request new final

proposals, and then issue a new award decision. The

cognizant contracting officer explained “that because the

procurement was valued in excess of $100 million, the Army

was likely required to [but did not] conduct discussions with

offerors pursuant to DFARS 215.306(c)(1).” Id. at 988. Two of

the initial awardees filed suit in this Court, seeking to enjoin

the corrective action. Id. at 989. On appeal, the Federal Circuit

upheld the agency’s corrective action, holding that, pursuant

to DFARS 215.306, “discussions normally are to take place in

these types of acquisitions.” Id. at 995–96. Thus, the Federal

Circuit “determine[d] that the corrective action of conducting

discussions is rationally related to the undisputed procurement

defect of originally failing to conduct pre-award discussions . . . .”

Id. (emphasis added).

Oak Grove, 155 Fed. Cl. at 108–09 (alterations in original) (first emphasis added).

In Dell Federal Systems, “the government plainly confessed the procurement error

before the Federal Circuit, arguing that ‘[u]nless the Army conducts the discussions

required by DFARS 215.306 under the facts of this case, the awards will be the result of a

flawed procurement process.’” Oak Grove, 155 Fed. Cl. at 109 (alteration in original)

(quoting Reply Brief of Defendant-Appellant, Dell Fed. Sys., L.P. v. United States, 906 F.3d

982 (Fed. Cir. 2018)

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