# Iap Worldwide Services, Inc. v. United States

> United States Court of Federal Claims · April 5, 2022

URL: https://www.frixlaw.com/law-library/cases/6331744

## Case

- **Court:** United States Court of Federal Claims
- **Decided:** April 5, 2022
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Matthew H. Solomson
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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## How later opinions describe it (automated extraction)

- finding that “plaintiff has waived [four] counts of the complaint” when it failed to address them in its MJAR

## Opinion text

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).

10
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,

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6331744. Public record. Not legal advice.