Thalle Construction Co. Inc. v. United States

In the United States Court of Federal Claims

No. 21-2261

(Filed Under Seal: April 11, 2022)

(Reissued for Publication: May 3, 2022)1

**************************************

THALLE CONSTRUCTION CO., INC., *

*

Plaintiff, *

*

v. * Post-Award Bid Protest; Motion

* for Judgment on the

THE UNITED STATES, * Administrative Record; Unequal

* Treatment; Unstated Evaluation

Defendant, * Criteria; Clarifications;

* Discussions; Prejudice;

and * Injunctive Relief.

*

PHILLIPS & JORDAN, LLC, *

*

Defendant-Intervenor. *

**************************************

Jacob W. Scott, Smith Currie & Hancock LLP, Washington, DC, counsel for Plaintiff. With

whom were Karl F. Dix and Lochlin B. Samples, of counsel.

Joshua A. Mandlebaum, U.S. Department of Justice, Civil Division, Washington, DC, counsel

for Defendant. Amber R. Jackson, Assistant District Counsel, U.S. Army Corps of Engineers, of

counsel.

Robert J. Symon, Bradley Arant Boult Cummings LLP, Washington, DC, counsel for Defendant-

Intervenor. With whom were Patrick R. Quigley, Nathanial J. Greeson, and Sabah K. Petrov, of

counsel.

1

This Order and Opinion was filed under seal on April 11, 2022, see ECF No. 36, in accordance with the Protective

Order entered on December 8, 2021, see ECF No. 13. The parties were given an opportunity to identify protected

information, including source selection information, proprietary information, and confidential information, for

redaction. The Defendant filed a joint status report on April 25, 2022, with redactions proposed by each party. ECF

No. 38. All redactions were unopposed. Id. at 2. The Court accepts all proposed redactions. All redactions have been

blackened out. The Court has also corrected typographical errors.

ORDER AND OPINION

DIETZ, Judge.

Thalle Construction Company, Inc. (“Thalle”) protests a decision by the U.S. Army

Corps of Engineers (“Corps”) to award a contract for canal construction to Phillips & Jordan,

Inc. (“P&J”). Thalle challenges the Corps’ assessment of several significant weaknesses and

weaknesses against Thalle’s proposal, as well as its assessment of several strengths to P&J’s

proposal. Thalle alleges that the Corps applied unstated evaluation criteria, failed to engage in

clarifications, and treated Thalle’s and P&J’s evaluations unequally. Because the Court finds that

the Corps’ evaluation of Thalle’s proposal was arbitrary and capricious, Plaintiff’s motion for

judgment on the administrative record is GRANTED. Defendant and Defendant-Intervenor’s

respective cross-motion are DENIED. The Corps is ENJOINED from proceeding with

performance of the contract awarded to P&J until the Corps completes a reevaluation of Thalle’s

proposal consistent with this Opinion.

I. BACKGROUND

A. Overview of the Solicitation

The Corps issued Solicitation No. W912EP-21-R-0024 (“Solicitation”) for the

construction of a seepage canal and an inflow/outflow (“I/O”) canal in the Everglades

Agricultural Area, as part of the Central Everglades Planning Project in Palm Beach County,

Florida. AR 2.2 The Solicitation called for a Federal Acquisition Regulation (“FAR”) Part 15

competitively negotiated source selection. Id. The Solicitation contemplated a firm-fixed price

contract. AR 10. The Solicitation identified four evaluation factors: Technical Merit, Past

Performance, Small Business Participation, and Price. AR 13. Technical Merit is the only

evaluation factor at issue in this protest.

The Basis of Award section of the Solicitation stated that an “award will be made [to] the

best overall (i.e., best value) proposal that is determined to be the most beneficial to the

[g]overnment, with appropriate consideration given to the four evaluation factors.” AR 13. The

Contracting Officer was to evaluate proposals “us[ing] a trade-off process to determine which

offer represents the best value to the [g]overnment.” 3 Id. Additionally, the Solicitation provided

that “[a]ll evaluation factors other than price, when combined, are approximately equal to price”

for the purpose of the tradeoff analysis. Id. However, the Solicitation further provided that “[t]o

receive consideration for award, a rating of no less than ‘Acceptable’ must be achieved for the

Technical Merit [f]actor.” Id.

The Solicitation stated that the objective of an offeror’s response to the Technical Merit

factor “should be to instill confidence that the offeror thoroughly understands the requirements

of the [S]olicitation, [and] has the expertise and experience required to successfully satisfy or

2

The Court cites to the Administrative Record, filed by the government at ECF No. 22 as “AR ___.”

3

The FAR establishes when a tradeoff process is appropriate and sets forth requirements for the conduct of a

tradeoff process. See FAR 15.101-1.

2

exceed the [S]olicitation requirements within the required period of performance[.]” AR 14. The

Solicitation instructed that “[t]he [g]overnment will not make assumptions concerning intent,

capabilities, or experiences” and that “[c]lear identification of proposal details shall be the sole

responsibility of the offeror.” AR 14. Additionally, “[o]fferors should also identify potential risks

and plans for mitigating those risks.” AR 15.

The Technical Merit factor consisted of two elements—Technical Approach Plan and

Construction Schedule. AR 13. The Technical Approach Plan element required offerors to

describe the way they would “execute the work from start to completion.” AR 15. This element

specified minimum requirements for the Technical Approach Plan and stated that the proposed

plan would be evaluated based on “the degree to which the offeror’s proposal meets the

requirements of the solicitation as well as the feasibility of the proposed approach.” AR 15-16.

The Construction Schedule element required the offeror to submit a schedule “showing the start

and completion dates, interdependence, and other relative scheduling factors for all the items

listed in Element 1 above.” AR 16. Both elements stated that “[a]ny conflicts between Element 1

and Element 2 may be noted as a weakness.” Id. However, the Solicitation explained that

“[e]lements are not rated separately.” AR 15. Each member of the Source Selection Evaluation

Board (“SSEB”) would individually rate each proposal against the Solicitation evaluation

criteria, and “[a]n overall rating w[ould] be assigned for Factor 1 – Technical Merit” based on

the SSEB reaching a consensus on an adjectival rating. AR 15-16. The five adjectival ratings

available to the SSEB were Outstanding, Good, Acceptable, Marginal, and Unacceptable, as

defined below. AR 17-18.

3

Id. The assignment of an overall rating included “consideration of risk in conjunction with the

strengths, weaknesses, significant weaknesses, uncertainties, and deficiencies” and “reflect[ed]

the [g]overnment’s confidence in each offeror’s technical ability, as demonstrated in its proposal,

to perform the requirements stated in the [Solicitation].” AR 17.

B. The Evaluation, Award Decision, and Protest

The Corps received five proposals, including those from Thalle and P&J. AR 3463, 3773.

Of the proposals, only P&J’s proposal received a Technical Merit rating of Acceptable or better.

See AR 2141-68. Thalle and P&J received the following ratings:

AR 2172. Thalle’s Marginal rating on Technical Merit was based on the SSEB’s assignment of

no significant strengths, six strengths, five significant weaknesses, and seven weaknesses. See

AR 2164-66.

The SSEB presented its findings to the Contracting Officer, who also served as the

Source Selection Authority (“SSA”) for this procurement. AR 2141-68. The SSA made the

award decision without discussions “because only one awardable proposal was received, and that

proposal was in the awardable price range.” AR 2193. The SSA determined that P&J represented

“the best value offer providing the highest rated Technical Merit with all other factors essentially

being rated equal.” Id. The SSA recognized that while “there were other offerors with pricing

lower than [P&J], their price is still $803,296.30 below the [Independent Government Estimate

(“IGE”)].” Id. P&J’s price was deemed fair and reasonable based on adequate price competition

and comparison to the IGE. Id.

Thalle filed its complaint in this Court on December 6, 2021, alleging that the Corps

failed to evaluate Thalle’s proposal in accordance with the Solicitation, failed to seek

4

clarifications, and treated offerors unequally. 4 Compl., ECF No. 1. The parties subsequently

filed cross-motions for judgment on the administrative record, and oral argument was held on

March 22, 2022. Thalle’s protest is ripe for decision.

II. LEGAL STANDARDS

The Tucker Act grants this Court authority to render judgment on an action “by an

interested party objecting to . . . any alleged violation of statute or regulation in connection with

a procurement.” 28 U.S.C. § 1491(b)(1) (2018). The Tucker Act’s waiver of sovereign immunity

“covers a broad range of potential disputes arising during the course of the procurement process”

including objections to an award. Sys. Application & Techs., Inc. v. United States, 691 F.3d

1374, 1380 (Fed. Cir. 2012). Accordingly, Thalle’s challenge to the Corps’ award of a contract to

P&J is within this Court’s subject-matter jurisdiction.5

Under Rule 52.1 of the Rules of the United States Court of Federal Claims, a party may

file a motion for judgment on the administrative record to assess whether a federal administrative

body acted in accordance with the legal standards governing the decision under review. Agile

Def., Inc. v. United States, 143 Fed. Cl. 10, 17 (2019). This motion “is often an appropriate

vehicle to scrutinize an agency’s procurement actions because such cases typically involve

interpretation of contract documents or regulations, thereby presenting no disputed issues of

material fact.” Banknote Corp. of Am., Inc. v. United States, 365 F.3d 1345, 1352 (Fed. Cir.

2004). On a motion for judgment on the administrative record, the parties are limited to the

administrative record, and the court makes factual findings as if it were conducting a trial on the

record. Bannum, Inc. v. United States, 404 F.3d 1346, 1357 (Fed. Cir. 2005). This Court’s

inquiry is “whether, given all the disputed and undisputed facts, a party has met its burden of

proof based on the evidence in the record.” A&D Fire Prot., Inc. v. United States, 72 Fed. Cl.

126, 131 (2006).

This Court reviews agency decisions in bid protests using the standard of review set forth

in the Administrative Procedure Act (“APA”). 28 U.S.C. § 1491(b)(4); Impresa Construzioni

Geom. Domenico Garufi v. United States, 238 F.3d 1324, 1332 (Fed. Cir. 2001). This standard

permits a court to set aside an agency’s contracting decision if the protestor shows it is

“arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C.

§ 706(2)(A) (2018); Bannum, 404 F.3d at 1351. “Under an arbitrary or capricious standard, the

reviewing court should not substitute its judgment for that of the agency[] but should review the

basis for the agency decision to determine if it was legally permissible, reasonable, and

supported by the facts.” Glenn Def. Marine (Asia), PTE Ltd. v. United States, 105 Fed. Cl. 541,

559 (2012), aff’d, 720 F.3d 901 (Fed. Cir. 2013) (citing Motor Vehicle Mfrs. Ass’n of U.S., Inc. v.

State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)). The protestor has the burden to show by

a preponderance of evidence the arbitrary and capricious nature of the agency decision. Mortg.

4

Thalle initially filed its protest at the Government Accountability Office (“GAO”). AR 2375-96. GAO dismissed

Thalle’s protest after Thalle opted to file a complaint in this Court. See AR 3639-41.

5

None of the parties to this litigation challenge the Court’s jurisdiction over this case or Thalle’s standing to bring

its protest. Nonetheless, the Court “has an obligation to satisfy itself that jurisdiction is proper[.]” L-3 Commc’ns.

Corp. v. United States, 99 Fed. Cl. 283, 288 (2011) (citing Hertz Corp. v. Friend, 559 U.S. 77, 130 (2010)).

5

Contracting Servs., LLC v. United States, 153 Fed. Cl. 89, 124 (2021). While the APA standard

calls for considerable deference to the agency, PAI Corp. v. United States, 614 F.3d 1347, 1351

(Fed. Cir. 2010), a court may set aside an agency’s procurement decision if the decision lacked a

rational basis, or the procurement procedure involved a violation of regulation or procedure.

Impresa, 238 F.3d at 1332; see also Safeguard Base Operations, LLC v. United States, 989 F.3d

1326, 1343 (Fed. Cir. 2021). Nevertheless, if the reviewing court finds that the agency’s action

evinced rational reasoning and consideration of relevant factors, it must sustain the agency’s

action. Advanced Data Concepts, 216 F.3d at 1058 (citing Bowman Transp., Inc. v. Arkansas-

Best Freight Sys., Inc., 419 U.S. 281, 285-86 (1974)).

An agency decision is arbitrary and capricious when it results from unequal treatment of

the offerors. See CliniComp Int’l Inc., v. United States, 117 Fed. Cl. 722, 742 (2014) (stating

“[U]nequal treatment is fundamentally arbitrary and capricious, and violates . . . full and open

competition[.]”). A claim of unequal treatment is derived from the FAR requirement that “[a]ll

contractors and prospective contractors shall be treated fairly and impartially but need not be

treated the same.” FAR 1.102-2(c)(3). An offeror is treated unequally when “the agency

unreasonably downgraded its proposal for deficiencies that were ‘substantively

indistinguishable’ or nearly identical from those contained in other proposals.” Office Design

Grp. v. United States, 951 F.3d 1366, 1372 (Fed. Cir. 2020). If a protestor demonstrates that the

relevant proposals were substantively indistinguishable, a reviewing court may compare and

analyze “the agency’s treatment of proposals without interfering with the agency’s broad

discretion in these matters.” Id.

An agency decision is also arbitrary and capricious if the decision is a product of the

agency’s application of unstated evaluation criteria. See NVE, Inc. v. United States, 121 Fed. Cl.

169, 180 (2015) (stating that an offeror can challenge an agency’s analysis as “arbitrary,

capricious, or an abuse of discretion” when the agency relies on unstated evaluation criteria). A

claim that an agency relied upon unstated evaluation criteria in the evaluation of a proposal is

based on instruction in the FAR that “[a]n agency shall evaluate competitive proposals and then

assess their relative qualities solely on the factors and subfactors specified in the Solicitation.”

FAR 15.305(a). To succeed on an unstated evaluation criteria claim, “a protester must show that:

(i) the procuring agency used a significantly different basis in evaluating the proposals than was

disclosed; and (ii) the protestor was prejudiced as a result—or, in other words, that it had a

substantial chance to receive the contract award but for that error.” Banknote Corp. of Am., Inc.

v. United States, 56 Fed. Cl. 377, 387 (2003), aff’d, 365 F.3d 1345 (Fed. Cir. 2004).

III. DISCUSSION

In its protest, Thalle argues that the Corps performed an arbitrary and capricious proposal

evaluation because it treated Thalle’s proposal unequally, applied unstated evaluation criteria,

and failed to seek clarifications. Thalle specifically challenges the Corps’ assessment of five

significant weaknesses and seven weaknesses to its proposal, as well as its failure to assess three

strengths to its proposal. But for the Corps’ faulty evaluation, Thalle asserts that its proposal

would have received a higher Technical Merit rating, been subject to a best-value tradeoff

analysis, and, because of its lower price, ultimately been selected for contract award. Based on

the administrative record, the Court finds that the Corps’ assessment of two significant

6

weaknesses and two weaknesses against Thalle’s proposal was arbitrary and capricious. The

Court also finds that the Corps’ failure to assess one strength to Thalle’s proposal was arbitrary

and capricious.

A. The Corps’ assessment of two significant weaknesses and two weaknesses

and its failure to assess one strength to Thalle’s proposal was arbitrary and

capricious.

1. The Corps’ assessment of a significant weakness because Thalle identified

two different subcontractors to perform blasting was not arbitrary or

capricious.

The Corps assessed a significant weakness to Thalle’s proposal because it “identifie[d]

two different subcontractors to perform drilling & blasting (Contract Drilling & Blasting

[(“CD&B”)] as well as Florida Energy).” AR 2164. The Solicitation provided that “a letter of

commitment must be provided for any proposed major subcontractor for . . . rock blasting.” AR

928. A major subcontractor is defined as “any subcontractor whose experience is submitted as

part of the proposal.” Id. The Solicitation also required that offerors “demonstrate that [it] and/or

[its] major subcontractors have experience . . . successfully performing blasting operations.” AR

18.

Thalle included letters of commitment from Florida Energy and CD&B as blasting

subcontractors in its proposal. AR 1288-90. In the blasting narrative portion of its proposal,

Thalle referred only to Florida Energy as its blasting subcontractor. See AR 1301 (“Thalle will

be partners with Florida Energy”). In contrast, Thalle referred only to CD&B to demonstrate its

blasting experience. AR 1349-57 (CD&B’s blasting experience). In its evaluation, the Corps

explained that this discrepancy makes it “unclear who [Thalle] intends to use and therefore

conflicts with the project blasting plan.” AR 2164.

Thalle argues that “the Solicitation did not prohibit offerors from providing letters of

commitment from multiple subcontractors for the same work.” Pl.’s Mem. in Supp. of Mot. for J.

on Admin. R. at 29, ECF No. 23-1 [hereinafter Pl.’s Mem.]. This argument is not persuasive. The

record shows that the Corps assessed this significant weakness, not simply because Thalle

submitted two letters of commitment from different subcontractors, but because it is unclear

from Thalle’s proposal which subcontractor would be used for blasting. AR 2164. The Court

agrees that Thalle’s proposal is unclear. Thalle’s submission of the two letters of commitment,

combined with its use of Florida Energy in its blasting narrative and reliance on CD&B for its

past performance, creates an ambiguity in the proposal. It is not the Corps’ obligation to resolve

such ambiguity. See AR 14 (“The [g]overnment will not make assumptions concerning intent,

capabilities, or experiences . . . . Clear identification of proposal details shall be the sole

responsibility of the offeror”). Considering the importance of blasting subcontractors to the

overall project and the Corps’ stated requirement to demonstrate experience performing

successful blasting operations, the Corps reasonably viewed this ambiguity as a concern and

assigned a significant weakness to Thalle’s proposal for its perceived increased risk of

unsuccessful performance. AR 17, 2164.

7

2. The Corps’ assessment of a significant weakness for Thalle’s proposed

equipment resources was not arbitrary or capricious.

The Corps assessed another significant weakness because the equipment resources

included in Thalle’s proposal “are unclear for loading and hauling[.]” AR 2164. The Solicitation

required that offerors “[p]rovide typical production rates for all listed equipment planned to be

utilized to blast, excavate, remove, transport, crush, process, place, and stockpile material.” AR

15. In the planned equipment portion of Thalle’s proposal, it states that Thalle will use “two

spreads per canal.” AR 1296. It further explains that:

Thalle will utilize two independent loading spreads that each include Two 349

excavator and Eight 40 ton off road trucks, with each canal having a D6 dozer for

cleanup. This equipment spread will maintain 376 [cubic yards (“CY”)] per hour,

which in combination will maintain 1,128 CY per hour, or 11,280 CY per shift.

This production rate provides for enough float in the schedule to account for

downtime, weather, equipment maintenance, or environmental stoppages but not

exceed the 530 feet per week allowed.

AR 1297. The Corps assessed a significant weakness, explaining that “[Thalle] states two

independent spreads; however, 2*346 CY per hour is 346 CY short of 1,128 CY and it is

unknown if [Thalle] intends to use three independent spreads or two.” 6, 7 AR 2164. The Corps

further explained that “[i]f [it is] two, [then] it does not appear to be enough production resources

to meet the schedule.” Id.

The Court agrees that Thalle’s proposal is unclear mathematically. Thalle proposed to use

two spreads per canal, each with two excavators and additional equipment. Thalle’s proposal

stated that each “equipment spread will maintain [a rate of] 376 CY per hour.” AR 1297

(emphasis added). At that rate, three spreads would be required to equal Thalle’s proposed total

production rate of 1,128 CY per hour. Thalle’s proposed equipment usage thus falls short of its

proposed total production rate. Even if the Corps understood Thalle’s proposed individual rate to

apply to each excavator rather than each equipment spread (which is notably different from the

language in the proposal), as Thalle now argues it intended, there would still be a mathematical

discrepancy. Four excavators operating at Thalle’s proposed individual rate would result in a

total rate of 1,504 CY per hour. Thalle now explains that it arrived at 1,128 CY per hour by

applying a 75% productivity rate to account for downtime. Pl.’s Mem. at 30. This explanation,

however, is not contained anywhere in Thalle’s proposal, and the Corps is not obligated to make

assumptions regarding Thalle’s intentions with respect to its proposed equipment spreads. See

AR 14. Without a clear explanation, it was reasonable for the Corps to assess a significant

weakness to Thalle’s proposal because Thalle’s proposed means and methods for completing the

project did not provide the Corps with confidence in its ability to successfully complete the

project on schedule. See AR 16.

6

The government explains that the Corps “made a typographical error here, using 346 instead of 376.” Def.’s Reply

at 13 n.4, ECF No. 28. This apparent administrative error is not pertinent to Thalle’s challenge.

7

The Court denotes that “*” stands for multiplication.

8

3. The Corps’ assessment of a significant weakness because Thalle’s

proposal failed to discuss applying for and obtaining the necessary permits

was not arbitrary or capricious.

The Corps assessed a significant weakness to Thalle’s proposal because “[Thalle]

discusses following NPDES & FDEP permits . . . however [it] does not discuss applying for or

obtaining the necessary permits.” 8 AR 2164. The Solicitation required offerors to “[p]rovide a

detailed description of the proposed plan to manage surface and groundwater within the limits of

construction.” AR 15. Under the permits portion of the Solicitation, offerors were specifically

required to “[o]btain NPDES Stormwater Construction Generic Permit to provide coverage

under [NPDES].” AR 733. Thalle argues that the assessment of this significant weakness was

arbitrary because the Corps unequally treated its proposal and employed unstated evaluation

criteria. Pl.’s Mem. at 22-23, 28.

Thalle argues that the Corps treated its proposal unequally because P&J was assessed a

significant strength and Thalle was assessed a significant weakness for what amounts to the same

proposal content regarding permits. Pl.’s Mem. at 22-23. The Corps assessed a significant

strength to P&J’s proposal because it stated that P&J would apply for the necessary permit upon

Notice to Proceed (“NTP”). AR 1067 (“Upon NTP, P&J plans on immediately applying for a

water use individual permit to deal with large rain events and dewatering efforts.”); AR 2155. On

the other hand, Thalle’s proposal received a significant weakness because it stated only that it

would comply with the approved permits. See AR 1305 (“During construction, Thalle will

follow the approved NPDES and FDEP permits to ensure compliance, as well as be active in

monitoring site conditions daily to maintain production goal.”); AR 2164. Thalle argues that its

proposed permitting approach is substantively indistinguishable from P&J’s proposed approach.

See Pl.’s Mem. at 22-23.

However, a comparison of Thalle’s and P&J’s respective proposals does not show

unequal treatment by the Corps. As part of its approach for managing surface and groundwater,

P&J’s proposal explicitly addressed the need to acquire “a water use individual permit to deal

with large rain events and dewatering efforts.” AR 1067. Further, P&J’s proposal stated that it

would apply for the necessary permit immediately “upon notice that P&J is the successful

proposer.” AR 1048 (“We will proceed with this work at our own risk until a formal NTP is

received.”). P&J explained that it has “used this proactive approach in other successful projects

enabling us to start preparations early.” Id. P&J’s more detailed description of when it will

obtain the permits is distinguishable from Thalle’s proposal, which merely stated that it would

comply with the permits and did not clearly acknowledge the need to apply for permits or state

when Thalle would undertake such an application process. See Intuitive Rsch. & Tech. Corp. v.

United States, 157 Fed. Cl. 1, 7 (2021). Based on these differences, the Corps acted reasonably

when it assessed a significant weakness to Thalle’s proposal and a significant strength to P&J’s

proposal.

8

“NPDES” is short for the National Pollution Discharge Elimination System. See AR 732. The NPDES “is designed

to prevent harmful discharges into the Nation’s waters” and generally “requires dischargers to obtain permits that

place limits on the type and quantity of pollutants that can be released into the Nation’s waters.” Chesapeake Bay

Found., Inc. v. Severstal Sparrows Point, LLC, 794 F. Supp. 2d 602, 608 (D. Md. 2011) (internal citations &

quotations omitted). “FDEP” refers to the Florida Department of Environmental Protection.

9

Additionally, the Corps did not employ unstated evaluation criteria when it assessed a significant

weakness to Thalle’s proposal for its failure to include a “specific narrative describing the

application for the[] permits.” Pl.’s Mem. at 28. The Solicitation specifically required that

offerors provide a detailed description of their plan to manage surface and groundwater. AR 15.

An explanation of how and when the necessary permits would be applied for and obtained is

intrinsic in the Solicitation requirement to provide a detailed description of the proposed plan for

managing surface and groundwater. See Banknote Corp., 56 Fed. Cl. at 387 (“[I]t is well-settled

that a solicitation need not identify each element to be considered by the agency during the

course of the evaluation where such element is intrinsic to the stated factors.”) (quotations

omitted). The Corps determined the lack of detail regarding permitting requirements in Thalle’s

proposal created increased risk to contract performance. See AR 2164-65. The Corps did not use

a significantly different basis for evaluating Thalle’s proposal than what was stated in the

Solicitation. Based on the record, Thalle’s unstated evaluation criteria argument amounts to a

mere disagreement with the Corps’ proposal evaluation results. See Avtel Servs., Inc. v. United

States, 70 Fed. Cl. 173, 218 (2006) (“[A] protestor’s mere disagreement with the agency’s

evaluation determination does not provide a basis for sustaining the protest.”) (quotations

omitted).

4. The Corps’ assessment of two significant weaknesses because Thalle’s

proposal included establishment of an on-site laboratory and did not

account for the on-site laboratory in its construction schedule was arbitrary

and capricious.

Thalle’s proposal was assessed two significant weaknesses stemming from its proposed

use of an on-site laboratory. See AR 2165-66. The Solicitation required that an offeror’s

proposed Technical Approach Plan “[p]rovide a detailed explanation of how the offeror will

ensure quality control, including a description of proposed quality control measures.” AR 15.

The Solicitation permitted offerors “to procure the services of a Corps of Engineers’ approved

testing laboratory or establish an approved testing laboratory at the project site.” AR 702. The

purpose of the laboratory is to “perform specified or required tests to verify that control measures

are adequate.” Id. An on-site laboratory must meet certain inspection validation requirements.

See AR 702-03. Additionally, an offeror cannot begin work that requires testing until the

offeror’s on-site lab has been “inspected, Corps validated[,] and approved by the Contracting

Officer.” AR 791.

In its evaluation of Thalle’s proposal, the Corps acknowledged that “[t]he contract allows

an option to utilize an off-site laboratory or establish an on-site laboratory” but then assessed a

significant weakness for Thalle’s proposed use of an on-site laboratory because “[t]he laboratory

testing required for the project does not readily justify such efforts and no explanation as to why

the offeror’s would risk schedule and expend additional resources and time to warrant

establishment of an on-site laboratory is present within the proposal.” AR 2165. The Corps

assessed a related weakness because Thalle’s construction schedule “does not consider the

establishment of an on-site . . . laboratory.” AR 2165. Thalle argues that the Corps’ assessment

of these significant weaknesses constituted unequal treatment because the Corps did not assess

similar weaknesses to P&J’s proposed use of an on-site laboratory. Pl.’s Mem. at 21-22.

10

Thalle’s proposal stated that a “qualified testing firm will be selected to install and

maintain the contractor’s on-site testing laboratory, ACI Certified Lab Testing and ACI Certified

Field-Testing Technicians.” AR 1310. P&J’s proposal stated that a “USACE Validated

Construction materials testing lab will be used on-site, during construction for materials testing

services as required in the contract documents.” AR 1069-70. The government argues that

“[P&J’s] laboratory plan is distinguishable from Thalle’s because [P&J] will use a pre-approved

lab while Thalle will ‘install’ a new lab that will require validation.” Def.’s Reply at 2 (emphasis

in original). However, the government’s argument is not supported by the contents of P&J’s

proposal. Nowhere in P&J’s proposal does it state that the on-site laboratory proposed by P&J is

pre-validated. It’s proposal simply states that it will use a “Validated Construction materials

testing laboratory.” See AR 1069. Based on this record, P&J’s proposed onsite laboratory will

need to be installed onsite and validated by the Corps in accordance with the validation

requirements set forth in the Solicitation. See AR 791. This is not substantively distinguishable

from Thalle’s proposed installation and maintenance of an onsite laboratory, which will be

subject to the same validation requirements contained in the Solicitation. Therefore, the Corps

treated Thalle’s proposal unequally when it assessed a significant weakness against Thalle’s

proposal and did not assess the same weakness to P&J’s proposal. If the Corps determined that

establishment of an on-site laboratory was unwarranted for this project, resulted in unnecessary

schedule risk, and thus warranted assessment of a significant weakness, the Corps should have

applied this determination equally to both Thalle’s and P&J’s respective proposals.9

The Court also finds that the Corps unequally treated Thalle’s proposal when it assessed a

significant weakness to Thalle’s proposal because its “schedule does not consider the

establishment of an on-site [Quality Control] and [Quality Assurance] laboratory.” AR 2165. The

Solicitation required that “[a]ll work items listed in the Technical Approach Plan should be

included in the Construction Schedule and the timeframes given for work items in the

Construction Schedule.” AR 16. It also stated that any conflicts between the technical approach

and construction schedule may be noted as a weakness. Id. The issue here, however, is that

neither Thalle’s, nor P&J’s, construction schedules list the establishment of an on-site laboratory,

so both technical approaches contain inconsistencies with the respective construction schedules.

See AR 1076-93, 1321. P&J argues that set up of an on-site lab was “accounted for in P&J’s

schedule in . . . Contractor Quality Control (CQC) plan, Environmental Protection Plan, and

Mobilize & Set up Office Trailers.” Def.-Intervenor’s Mot. for J. on the Admin. R. at 27 (citing

AR 1076, 1078)., ECF No. 25 However, the record does not support P&J’s assertion. P&J’s

schedule does not contain a line item for establishment of an on-site laboratory, nor does it make

clear that the broader schedule line items for quality control include the necessary time for

establishment of the on-site laboratory. See generally AR 1076-93. Based on the record before

the Corps, the Court does not find a rational basis for the Corps’ assessment of a significant

9

Thalle also argues that the Corps employed unstated evaluation criteria because “[n]othing in the [S]olicitation

required, or even suggested, that Thalle needed to justify its use of an on-site lab” or “to justify the schedule and cost

components of using an on-site lab[.]” Pl.’s Mem. at 27; Pl.’s Reply at 7, ECF No. 26. The Court does not address

this argument because the Court finds that the Corps’ assessment of a significant weakness for Thalle’s proposed use

of an on-site laboratory was based on unequal treatment.

11

weakness to Thalle’s proposal for this schedule deficiency without a corresponding significant

weakness to P&J’s proposal.10

5. The Corps’ assessment of a weakness because Thalle’s proposal contained

larger muck estimates than expected under the Solicitation was not

arbitrary or capricious.

The Corps assessed a weakness to Thalle’s proposal because it “estimates muck to be

4830 CY per acre, which equates to a 3 ft thick layer of muck, which is thicker than the

expectation set by the contract (0.6” to 2 ft thick) and provides no basis for the assumption

within the proposal (i.e., local experience).” AR 2165. The Solicitation requires that offerors

“[p]rovide typical production rates for all listed equipment planned to be utilized to . . . excavate

. . . material.” AR 15. Thalle states in its proposal that “[b]y utilizing a combination of two D8

dozers and two 14 blades to push and [withdraw] the material, and two 349 excavator[s] to load

40 ton haul trucks on each canal, Thalle expects to maintain 530 CY per hour during demucking

and grubbing operations” and “[w]ith an estimated 360 Acres to clear and demuck, this is an

average of 4,838 CY per AC.” AR 1297. The Corps determined that Thalle’s planned production

rates exceeded the expected muck thickness and that the lack of an explanation relating planned

production rates to expected project conditions demonstrated that Thalle was unfamiliar with the

project specifications. See AR 2165.

Thalle challenges this weakness as arbitrary stating that “[w]hether the volume of muck

is greater than what the Corps estimated . . . [has] no impact on Thalle’s schedule, cost to the

government, or risk of performance, since Thalle is prepared to move significantly more muck

than set forth in the Solicitation.” Pl.’s Mem. at 24. Thalle also alleges unequal treatment

because the Corps assessed P&J’s proposal with a strength on the basis that P&J “anticipates and

has a plan for dealing with deeper muck & marl pockets that are not obvious on boring logs

present within the Geotechnical Data Report.” Pl.’s Mem. at 24-25; AR 2156.

The Court finds that the Corps had a reasonable basis to question Thalle’s understanding

of the project conditions and assess a weakness to Thalle’s proposal due to its lack of detail. See

AR 14 (“Clear identification of proposal details shall be the sole responsibility of the offeror[.]”);

see also Harmonia Holdings Grp., LLC v. United States, 152 Fed. Cl. 97, 107 (2021) (finding a

weakness for a contractor emphasizing work that is not important to the solicitated project could

present a risk because it can show the contractor does not understand the work). Thalle’s

proposal for excavating and handling muck is distinguishable from P&J’s proposal. AR 2156.

P&J’s proposal explicitly addresses the expected project conditions by stating that “[m]uck

thickness for most of the project varies between 6 to 18 inches across the site” and “[d]eeper

pockets of muck of up to 4 feet in thickness have been identified.” AR 1052. P&J’s proposal

further explains that “[o]n similar projects, P&J has encountered various depressions and voids

10

The Corps assessed a weakness to Thalle’s proposal for its “over-simplified” schedule and did not assess a

corresponding weakness to P&J’s proposal. See AR 2166. For the reasons discussed below, the Court determined

that this was reasonable because P&J’s schedule is significantly more detailed than Thalle’s schedule. Compare AR

1076-93 (P&J’s Schedule) with AR 1321 (Thalle’s Schedule). However, this does not affect the Court’s conclusion

with respect to how the Corps treated the offerors’ respective schedules with regarding the use of an on-site

laboratory.

12

within the cap rock where excessive muck and marl collects. These pits can prove to be difficult,

however our experience has prepared our crews to efficiently mitigate these deposits with the

following approach.” AR 1052. This level of detail does not appear in Thalle’s proposal. See AR

1297. Therefore, while the Corps assessed a weakness to Thalle’s proposal for its lack of detail

around its planned production rates, the Corps assessed a strength to P&J’s proposal because of

P&J’s detailed plan. See AR 1051-52 (P&J’s proposed muck handling plan). Thus, the Corps did

not unequally treat Thalle’s proposal, and it had a reasonable basis to conclude that P&J’s more

detailed plan for excavating and handling muck “[i]nstills confidence that the offeror has a clear

understanding of the site conditions and reduces the projects risk to differing site condition

(DSC) claims.” AR 2156; see Office Design Grp., 951 F.3d at 1372-73.

6. The Corps’ assessment of a weakness for Thalle’s failure to provide

sufficient detail on how it would overcome potential obstacles was

arbitrary and capricious.

The Corps assessed a weakness to Thalle’s proposal because the potential obstacles to

construction that Thalle listed in its proposal did “not provide sufficient detail to instill

confidence” in Thalle’s ability “to overcome the obstacles in the anticipated construction

environment.” AR 2165. The Solicitation required that offerors “[i]dentify possible obstacles to

construction operations and how the offeror will overcome these obstacles.” AR 15. Thalle

identified two obstacles: “Extreme or Unusual Adverse Weather” and “Environmental

obstacles.” AR 1312. Thalle also proposed plans to overcome these identified obstacles. See id.

In its evaluation, the Corps acknowledged the two obstacles identified by Thalle but determined

that Thalle’s proposal was lacking sufficient detail on its ability “to overcome the obstacles in

the anticipated construction environment.” AR 2165. Thalle challenges this weakness arguing

that it is based on unstated evaluation criteria because “the Solicitation did not require offerors to

identify any specific potential obstacles to construction.” Pl.’s Mem. at 30.

The Court finds that, while the Corps did not employ unstated evaluation criteria, its

evaluation does not contain a rational basis for its assessment of a weakness to Thalle’s proposal.

The Corps assessed Thalle’s proposal against the explicit Solicitation requirement to identify

obstacles and provide a mitigation plan and therefore did not apply a significantly different basis

in evaluating Thalle’s proposal than was disclosed in the Solicitation. However, the Corps’

evaluation provides no basis for the assessment of a weakness aside from the conclusory

statement that Thalle’s list of potential obstacles “does not instill confidence” in Thalle’s ability

to overcome the “obstacles in the anticipated construction environment.” AR 2165. This merely

restates the evaluation method set forth in the Solicitation without any explanation regarding the

basis for the weakness. AR 14. For instance, it is unclear from the Corps’ evaluation whether the

Corps assessed the weakness because Thalle’s mitigation plans for the identified obstacles lacked

detail or because Thalle failed to identify other potential obstacles in the anticipated construction

environment. Accordingly, the Corps has not provided a satisfactory explanation for assessing

this weakness. See State Farm, 463 U.S. at 43 (“[T]he agency must examine the relevant data

and articulate a satisfactory explanation for its action including a rational connection between the

facts found and the choice made.”) (quotations omitted).

13

7. The Corps’ assessment of a weakness because Thalle’s “staggered

approach” was arbitrary and capricious.

Thalle’s proposal was assessed a weakness because the Corps determined that it

“contains conflicting information” in the proposed schedule narrative and construction schedule.

AR 2165. According to the Corps, the “Construction Schedule Activity Timeframe narrative

states using a staggered approach to the Seepage and I/O Canals for Blasting and excavation,

[and] the schedule has them starting at the same time[.]” AR 2165. Thalle argues that the Corps

arbitrarily assessed this weakness because its proposal does not contain conflicting information,

and the Corps “failed to give Thalle credit for information in its proposal that clearly met the

requirements[.]” Pl.’s Mem. at 31.

The Solicitation required that offerors “[p]rovide [the] basis for timeframes for required

work items proposed in . . . [the] Construction Schedule, including all assumed contingencies

(i.e. adverse weather, mechanical shut-down, environmental issues, additional permits[,] etc.).”

AR 15. The Solicitation also stated that “[a]ny conflicts between Element 1 [Technical Approach

Plan] and Element 2 [Construction Schedule] may be noted as a weakness.” AR 16.

Contrary to the Corps’ explanation, the Court finds that the narrative in Thalle’s technical

approach plan does not conflict with its proposed construction schedule. Thalle’s construction

schedule narrative clearly states that “[b]lasting and excavation will run concurrent with both

canals.” AR 1313 (emphasis added). This is also reflected in Thalle’s construction schedule,

which shows that blasting and excavation start and stop on the same day for each canal. See AR

1321. For both the I/O canal and seepage canal, Thalle explained in its narrative that “blasting is

expected to take 150 days to complete, while the excavation and haul will take 380 days.” Id.

Thalle further explained for both canals that by “[u]sing a staggered approach, a total of 400 days

is expected.” Id. The reference to “staggered approach” clearly refers to the staggering of

blasting and hauling on each canal, rather than between canals. The Corps’ evaluation ignores

that Thalle’s proposal calls for concurrent blasting and excavating of the I/O and seepage canals

and that this concurrent activity is also consistent with Thalle’s proposed construction schedule.

Therefore, the Corps assessment of a weakness because of conflicting information in Thalle’s

proposal is not supported by the record. See Ala. Aircraft Indus., 586 F.3d at 1375 (highlighting

an agency’s action is arbitrary and capricious when the agency “offer[s] an explanation for its

decision that runs counter to the evidence before the agency”) (quotation marks omitted)

(quoting State Farm, 463 U.S. at 43).

8. The Corps’ assessment of a weakness for the lack of detail in Thalle’s

construction schedule was not arbitrary or capricious.

Thalle received a weakness because the Corps determined that its proposed construction

schedule was “oversimplified and lack[ed] appropriate detail to track milestones.” AR 2166. The

Solicitation requires that offerors provide a schedule of construction “showing the start and

completion dates, interdependence, and other relative scheduling factors for all of the items of

work listed in the [Technical Approach Plan].” AR 16. The Solicitation lists twelve activities that

the schedule must contain. Id. Thalle argues that the Corps applied unstated evaluation criteria

14

because “the [S]olicitation required only that a proposed schedule show[] the start and finish

dates and schedule logic” for the minimum schedule requirements contained in the Solicitation.

Pl.’s Mem. at 27; AR 16. Thalle argues that it met this requirement and, therefore, should not

have been assessed a weakness. Pl.’s Mem. at 28.

The Court is not persuaded by Thalle’s argument that the Corps employed unstated

evaluation criteria in assessing this weakness. The Corps assessed a weakness because Thalle’s

schedule, while otherwise meeting the minimum schedule requirements, lacked sufficient detail

for the Corps to track milestones. AR 2166. The Solicitation stated that the evaluation method

for the construction schedule would assess “the degree to which the offeror’s proposal meets the

requirements of the Solicitation as well as the feasibility of the proposed approach.” AR 16. It

further explained that the list of activities was provided as an example and “is not the only

corroboration that will be made between the Technical Approach Plan and Construction

Schedule.” Id. Accordingly, a construction schedule that meets or moderately exceeds the

example requirements does not preclude the assignment of a weakness, and the Corps may

reasonably determine the degree to which the proposed schedule supports the feasibility of the

proposed approach. See Lockheed Missiles & Space Co., Inc. v. Bentsen, 4 F.3d 955, 959 (Fed.

Cir. 1993) (“[A]gencies are entrusted with a good deal of discretion in determining which bid is

the most advantageous to the [g]overnment.”) (quotations omitted). The offeror “carries the

burden of presenting an adequately written proposal, and an offeror's mere disagreement with the

agency's judgment concerning the adequacy of the proposal is not sufficient to establish that the

agency acted unreasonably.” Westech Int’l., Inc. v. United States, 79 Fed. Cl. 272, 296 (2007)

(quotations omitted). Thalle’s proposed schedule consisted of one page, and based on the Corps

evaluation, its level of detail did not allow the Corps to track the milestones. AR 1321. The Court

cannot fault the Corps for assessing a weakness to Thalle’s construction schedule based on the

Solicitation requirements and evaluation method.

9. The Corps’ assessment of a weakness because Thalle included only one

crusher, screener, and loader in its planned equipment was not arbitrary or

capricious.

The Corps assessed a weakness to Thalle’s and P&J’s respective proposals because each

“proposed only [a] single crusher, screener, and loader as planned equipment.” AR 2165, 2156.

Thalle argues that “the Corps offset the weakness in P&J’s proposal . . . because elsewhere P&J

indicated that it would use more than one crusher” and “the Corps did not afford Thalle the same

attention even though Thalle’s proposal also explained it would use a second crusher.” Pl.’s

Reply at 14.

The Court is not persuaded by Thalle’s argument. Both Thalle’s and P&J’s proposed

equipment lists include only one crusher, screener, and loader. See AR 1045-46, 1296-97. The

Corps viewed this as a risk and thus assessed a weakness to both Thalle’s and P&J’s proposals.

AR 2156, 2165. Though both offeror’s equipment lists included only one crusher, both proposals

contained references to the potential use of more than one crusher. See AR 1064 (P&J states that

it “would anticipate using two more of these mobile crushers for this project.”); AR 1299 (Thalle

states that “a second crusher will be utilized depending on availability.”). On this basis, the

Corps assessed a strength to P&J’s proposal because P&J “noted the use of multiple mobile

15

crushers for this project, though only one was included in the list of equipment.” AR 2156. The

Corps also separately assessed a strength to Thalle’s proposal on the basis that it “noted it would

. . . bring additional equipment to the project to maintain production.” AR 2164. The Court finds

that Thalle and P&J were not treated unequally because both offerors received the same

treatment for the same weakness, both proposals contained a similar inconsistency, and both

received a similar corresponding strength that arguably offset the respective weakness.

10. The Corps’ assessment of a weakness because Thalle’s proposal failed to

address the need to shift resources between canals was not arbitrary or

capricious.

The Corps assessed a weakness to Thalle’s proposal because Thalle “does not

acknowledge the need to shift resources between canals due to their disproportional quantity of

excavation per 530 [linear foot (“LF”)].” AR 2165. Thalle argues that this weakness was

arbitrary because the Solicitation did not include a requirement to shift resources between canals

and that its “proposal clearly explained how it would maintain an excavation rate of 530 [Linear

Feet] per week on each canal” and “did not require the shifting [of] resources between canals” to

complete the project on schedule. Pl.’s Mem. at 30.

The Court is not persuaded by Thalle’s argument. The Solicitation requires that offerors

provide production rates for equipment planned to be utilized to excavate the canals. AR 15. The

evaluation method assesses the degree to which the offeror’s proposal meets the Solicitation

requirements, as well as the feasibility of the proposed approach. AR 16. The feasibility of the

proposed approach will measure how well the proposed means and methods provide the

government with confidence of successful project completion within the contract schedule. Id.

Thalle’s proposed approach involves blasting and excavating both canals concurrently

using two equipment spreads per canal. AR 1297, 1313. The construction drawings contained in

the Solicitation provide that the canals have differing quantities of material requiring excavation.

AR 980-82. Based on Thalle’s proposed concurrent approach and the differing requirements

between canals, it was reasonable for the Corps to conclude that Thalle may need to shift

resources between canals to complete the project on schedule since the canal with the greater

quantity of material may require more resources than the canal with lesser material. Because

Thalle’s proposal failed to address this apparent risk in its approach, the Corps had a rational

basis for assessing a weakness because the method for blasting and excavating the canals

described in Thalle’s proposal did not provide the Corps with confidence that Thalle would

successfully complete the project in a timely manner. See AR 16.

11. The Corps’ assessment of a weakness because Thalle’s proposed daily

production rate was unclear was not arbitrary or capricious.

The Corps also assessed a weakness against Thalle’s proposal because Thalle’s planned

production rate “assumes anticipated hourly production can be maintained for 10 hours a day.”

AR 2165. The planned production rate in Thalle’s proposal provided “1,128 CY per hour, or

11,280 CY per shift.” AR 1297. Thalle’s proposal then explained that “[t]his production rate

provides for enough float in the schedule to account for downtime, weather, equipment

16

maintenance, or environmental stoppages but not exceed the 530 feet per week allowed.” Id. The

Corps derived the “10 hours a day” by dividing Thalle’s proposed “per shift” production rate of

11,280 CY by its proposed “per hour” rate of 1,128 CY. See AR 1297, 2165. The Corps

apparently viewed this production rate as a weakness because it does not account for inevitable

downtime. Thalle challenges this conclusion by the Corps as arbitrary because it alleges that the

Corps “ignore[ed] clearly presented information.” Pl.’s Mem. at 29. In its briefing, Thalle

explains that it accounted for downtime because “[a]s with the hourly production rate, this

represented only 75% productivity to account for the inevitable delays that accompany every

construction project.” Id. at 30. Thalle further elaborates that “[i]f Thalle had proposed 10 hours

of full productivity per day, it would have proposed to haul 15,040 CY per day.” Id.

For the same reason discussed above with respect to Thalle’s proposed equipment

spreads, see supra Section III.A.2, the Court finds that Thalle’s proposed daily production rate is

not clear, and the Corps was reasonable to assess this weakness. Thalle does not indicate

anywhere in its proposal that its planned production rates represent only 75% of its maximum

production rate. Without this necessary clarifying information, it was not unreasonable for the

Corps to interpret Thalle’s proposal as proposing its maximum production rate and conclude that

such rate did not provide enough float in the schedule to account for downtime. See AR 14 (“The

[g]overnment will not make assumptions concerning intent [and] capabilities . . .”); see also

Structural Assocs., Inc./Comfort Sys. USA (Syracuse) Joint Venture v. United States, 89 Fed. Cl.

735, 744 (2009) (“An offeror has the responsibility to submit a well-written proposal with

adequately detailed information that allows for a meaningful review by the procuring agency.”)

(quoting CACI Techs., Inc., B-296946, 2005 CPD ¶ 198 at 5 (Comp. Gen. Oct. 27, 2005)).

12. The Corps’ failure to assess a strength to Thalle’s proposal for its use of

GPS was arbitrary and capricious.

Thalle argues that the Corps unequally treated its proposal by assigning three strengths to

P&J’s proposal for proposal elements that Thalle alleges are substantively indistinguishable from

its proposal. Pl.’s Mem. at 23-24, 26. First, P&J’s proposal was assessed a strength because it

“provided significant detail along with means and methods for the blast plan sequence” which

“included graphics of the blast pattern along with estimated weight of explosives needed per

drilled hole.” AR 2156. Thalle claims that its proposed blasting plan “included information and

graphics nearly identical [to] those the Corps praised in P&J’s proposal” and thus Thalle should

have likewise been assessed a strength. Pl.’s Mem. at 23. While the government concedes that

Thalle’s blasting diagram, AR 1302-04, is “very similar” to P&J’s blasting plan, AR 1108-10,

the government argues that the similarities end there. Def.’s Mot. for J. on the Admin. R. at 12,

ECF No. 24. The government explains that P&J’s blasting plan provides more detail, including

the type of explosive, detonation device, monitoring equipment, and procedures for inclement

weather. Id.; AR 1065-66; see also AR 1056-57, 1059-60. The Court agrees with the government

that Thalle’s and P&J’s proposed blasting plans are not substantively indistinguishable. Thalle’s

plan consists of only a single page, and, while it may contain identical features to P&J’s plan, it

lacks the same level of detail. The Corps was not arbitrary in crediting P&J’s plan with a strength

for its overall more detailed plan and electing to not assign a strength to Thalle’s plan. See Office

Design, 951 F.3d at 1372-73; Intuitive Rsch., 157 Fed. Cl. at 7.

17

Second, the Corps assessed a strength to P&J’s proposal because P&J “maintains an in-

house equipment service center in Florida (~200 mi from project site).” AR 2155. Thalle argues

unequal treatment on the grounds that it “proposed to staff mechanics and lube men on-site[] yet

received no recognition from the Corps.” Pl.’s Mem. at 26; AR 1296 (Thalle’s proposal stating

that “Thalle owns and operates a large fleet of equipment with the necessary support staff of

mechanics and lube men to keep equipment moving throughout the project.”). These proposal

features, however, are not substantively indistinguishable. An in-house equipment service center,

even if located away from the project site, is not the same as a staff of mechanics and lube men.

Therefore, the Corps rationally assessed a strength to P&J’s proposal for its maintenance facility

while not similarly recognizing Thalle’s maintenance support staff. See Office Design, 951 F.3d

at 1372-73; Alpine Companies, Inc. v. Untied States, 156 Fed. Cl. 681, 689-90 (2021); Vantage

Assocs., Inc. v. United States, 59 Fed. Cl. 1, 19 (2003) (“The wide discretion afforded

contracting officers extends to a broad range of procurement functions, including the

determination of what constitutes an advantage over those proposals.”).

Third, the Corps assessed a strength to P&J’s proposal because P&J “indicates that all

equipment will use GPS for excavation in the wet to ensure templates are met and within

tolerance.” AR 2156. Thalle claims that its proposal also indicates use of “GPS-enabled

equipment, but the Corps ignored the benefit.” Pl.’s Mem. at 26. The Court agrees with Thalle

that the Corps unequally treated Thalle’s proposal when it assigned a strength to P&J for the use

of GPS for excavation and did not assign a strength to Thalle for its proposed use of GPS. P&J’s

proposal references the use of GPS in multiple places, but these references are largely redundant

and boil down to P&J using GPS for excavation. See, e.g., AR 1057 (“A large hydraulic

excavator equipped with GPS will begin excavation” and “a smaller excavator(s) also equipped

with GPS”); AR 1060 (same quote); AR 1058 (“The use of GPS is essential, as this excavation

will be done in the wet.”); AR 1060 (same quote); AR 1072 (“Utilize GPS on excavators digging

canals”). Thalle’s proposal also references the use of GPS for excavation. AR 1311 (stating that

all work will be monitored using “GPS controls built into the earthmoving machines.”). While

the references to GPS are different in quantity and utilize different terminology, the proposed use

of GPS for excavation purposes to ensure quality control and compliance with contract

requirements is substantively indistinguishable. Accordingly, if the Corps viewed the use of GPS

as a strength, it should have assessed a strength to Thalle’s proposal similar to that assessed to

P&J’s proposal.

B. The Corps was not required to engage in clarifications or discussions.

Thalle argues that the Corps was required to engage in clarifications and discussions to

allow Thalle to fix the defects in its proposal. See Pl.’s Mem. at 32-34; Pl.’s Reply at 21-22.

Clarifications are “limited exchanges” that the government may use to allow offerors “the

opportunity to clarify certain aspects of their proposals . . . or to resolve minor or clerical

errors.” FAR 15.306(a) (1-2). Clarifications may not be used to “cure proposal deficiencies or

material omissions, materially alter the technical or cost elements of the proposal, or otherwise

revise the proposal.” Dell Fed. Sys., L.P. v. United States, 906 F.3d 982, 998 (Fed. Cir. 2018).

The Contracting Officer has the discretion to decide whether to seek clarifications. Safeguard

Base Operations, 989 F.3d at 1346. A contracting officer abuses that discretion if they “should

have discerned that the protester made an error rather than a deliberate decision.” Criterion Sys.,

18

Inc. v. United States, 140 Fed. Cl. 29, 37 (2018) (articulating that “the obviousness of the error is

an important aspect of determining whether the [agency] acted reasonably by not seeking

clarification”). Different from clarifications, discussions “are exchanges . . . between the

[g]overnment and offerors, that are undertaken with the intent of allowing the offeror to revise its

proposal.” FAR 15.306(d). The decision to engage in discussions is also within the contracting

officer’s discretion. Chenega Healthcare Servs., LLC v. United States, 138 Fed Cl. 644, 654

(2018); see also Allied Tech. Grp., Inc. v. United States, 649 F.3d 1320, 1327-28 (Fed. Cir.

2011).

Thalle argues that the Corps was required to seek clarifications before assessing a

significant weakness because of its inclusion of the commitment letters for two separate blasting

subcontractors. Pl.’s Mem. at 33-34. The Court disagrees because Thalle’s inclusion of two

blasting subcontractors in its proposal is not an obvious clerical error that would require the

Corps to seek clarifications. Thalle submitted letters of commitment for both Florida Energy and

CD&B, which caused confusion on which subcontractor would perform the blasting work. AR

1288-90, 2165. This confusion was exacerbated because Thalle mentioned only Florida Energy

in its proposed blasting plan yet it utilizes only CD&B to demonstrate its blasting experience.

See AR 1301, 1349-57. This lack of clarity with respect to its blasting subcontractors appears to

result from a deliberate decision to use different blasting subcontractors to satisfy different

proposal requirements, as opposed to a clerical error. Accordingly, the Corps did not act

arbitrarily when it did not seek clarifications from Thalle. Criterion Sys., 140 Fed. Cl. at 37.

Thalle also argues that clarifications were required with respect to the weaknesses

assigned by the Corps for Thalle’s proposed equipment spreads and daily production rate. Pl.’s

Mem. at 33-34. The Court disagrees because the weaknesses assessed against these two areas of

Thalle’s proposal do not arise from obvious clerical errors and instead are based on a lack of

clarity in Thalle’s proposed technical approach. Further, the record supports that the Corps

would have needed new information regarding Thalle’s proposed approach to effectively remedy

the lack of clarity. For instance, in order to remedy the lack of clarity around Thalle’s proposed

equipment spreads, Thalle would need to insert the rationale that it offers in its briefing, that

“1,128 CY per hour rate was 75% of this rate to account for inefficiencies, downtime, and other

nonproductive time.” Pl.’s Mem. at 29-30. Similarly, Thalle would need to explain that its

proposed daily production rate of 11,280 CY per shift is 75% of the maximum rate. Pl.’s Mem.

at 30. Clarifications are not to be used for supplementing a proposed technical approach with

new information. See PAE Aviation & Tech. Servs., LLC v. United States, 156 Fed. Cl. 454, 465

(2021). Accordingly, the Corps did not act arbitrarily when it did not seek clarifications from

Thalle about its proposed equipment spreads and daily production rate. See Dell Fed., 906 F.3d

at 998; see also Criterion Sys., 140 Fed. Cl. at 37.

With respect to discussions, the Corps did not act arbitrarily or abuse its discretion by not

conducting discussions. The contracting officer has discretion not to open discussions when the

solicitation provides notice to offerors that the government intends to award without discussions.

See Chenega, 138 Fed. Cl. at 654 (“[T]he overwhelming weight of authority indicates that a

contracting officer's discretion to not open discussions generally trumps a protestor's argument

that the agency should have opened discussions to rehabilitate unsatisfactory proposals before

making a best value contract award.”); Allied Tech. Grp., 649 F.3d at 1327-28; see also FAR

19

15.306(a)(3) (“Award may be made without discussions if the [S]olicitation states that the

[g]overnment intends to evaluate proposals and make award without discussions.”). In this case,

the Solicitation notified offerors that “[t]he [g]overnment intends to evaluate proposals and

award a contract without discussions” so “the offeror’s initial proposal should contain the

offeror’s best terms from a price and technical standpoint.” AR 14 (emphasis added).

Despite the well-established discretion afforded to contracting officers to determine

whether to open discussions, Thalle, citing DynCorp Int’l LLC v. United States, 76 Fed. Cl. 528,

540 (2007), argues that an agency’s decision to not engage in discussions is only reasonable after

“an affirmative determination that discussions could not improve the protestor’s proposal enough

to make its proposal competitive.” Pl.’s Reply at 21. Thalle claims that the Corps decision to not

engage in discussions was unreasonable because the Corps did not affirmatively state in its

Source Selection Decision that discussions would not improve Thalle’s proposal enough to make

it awardable. See Pl.’s Reply at 21–22. This understanding of DynCorp is misplaced. Indeed, the

court in DynCorp acknowledged an affirmative determination by the agency that discussions

were unlikely to change the best value determination. However, the court’s decision was based

on deference afforded to the agency’s discretionary determination to not conduct discussions.

See DynCorp, 76 Fed. Cl. at 540 (“The court defers to the Air Force’s discretion whether or not

to hold discussions [thus] . . . [t]he Air Force’s decision not to hold discussions, even here where

only two proposals were received, was within the discretion afforded a procuring agency.”). The

Court is unaware of any binding precedent, and Thalle has not provided any, that requires an

agency to make an affirmative determination that discussions would not improve a deficient

proposal enough to make such proposal eligible for consideration for award, especially when, as

in the present case, the agency informed the offerors in the solicitation of its intention to make an

award without discussions. Accordingly, the Court defers to the Corps’ discretion to not open

discussions in this case.

C. Thalle was prejudiced by the Corps’ arbitrary and capricious evaluation of

its proposal.

Having found that the Corps acted arbitrarily and capriciously, the Court now considers

whether Thalle was prejudiced by the Corps’ errors. See Bannum, 404 F.3d at 1351 (stating that

once a court finds that an agency acted arbitrarily, the court “proceeds to determine, as a factual

matter, if the bid protester was prejudiced by that conduct”). For Thalle to prevail, it “must show

prejudicial error.” Glenn Def. Marine (Asia), PTE, Ltd. v. United States, 720 F.3d 901, 908 (Fed.

Cir. 2013). There is no presumption of prejudice upon a showing that an agency acted

irrationally. Sys. Stud. & Simulation, Inc. v. United States, 22 F.4th 994, 998 (Fed. Cir. 2021). To

establish prejudice, Thalle must show that “but for the alleged error, there was a substantial

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

Allied Tech. Grp., Inc. v. United States, 649 F.3d 1320, 1326 (Fed. Cir. 2011) (quoting Statistica,

Inc. v. Christopher, 102 F.3d 1577, 1581 (Fed. Cir. 1996)).

In this case, Thalle has demonstrated that it has been prejudiced by the Corps’ errors. In

sum, the Corps assessed Thalle’s proposal with five significant weaknesses, seven weaknesses,

and six strengths. AR 2164-66. On this basis, the Corps assigned Thalle’s proposal a Technical

Merit rating of “Marginal” because its “proposal contains nearly as many significant weaknesses

20

as it does strengths” and because the “risk of unsuccessful performance is high.” AR 2189.

Because Thalle’s proposal was assigned a “Marginal” rating, it was not considered for award,

and the contract was awarded to P&J without conducting a trade-off analysis. See AR 2193.

The Court has now concluded that two of the significant weaknesses and two of the

weaknesses were assessed arbitrarily by the Corps. See supra Section III.A. Additionally, the

Court has concluded that the Corps arbitrarily did not assess an additional strength to Thalle’s

proposal. Id. While a revised count of strengths and weaknesses based on the Court’s findings

may not result in offsetting strengths and weaknesses, the Solicitation does not necessarily

require a proposal to have offsetting strengths and weaknesses in order for it to be assigned a

Technical Merit rating of “Acceptable.” See AR 17. The Solicitation defines an “Acceptable”

proposal as one where the “[s]trengths and weaknesses are offsetting or will have little to no

impact on contract performance.” Id. (emphasis added). Therefore, it is possible for Thalle to be

assigned an improved technical merit rating of “Acceptable” based on a revised count of

strengths and weaknesses and thus be considered for award. With price being equal to all of the

other evaluation factors combined and Thalle’s proposed price being significantly less than

P&J’s, Thalle has a substantial chance of being determined to be the best-value in a tradeoff

analysis. While the Court finds that Thalle has met its burden of demonstrating prejudice, the

determination of whether Thalle’s revised combination of strengths and weaknesses “will have

little to no impact on contract performance” is properly left to the Corps’ discretion. See

FirstLine Transp. Sec., Inc. v. United States, 100 Fed. Cl. 359, 397 (2011) (stating that the

assignment of technical ratings is a matter that is “within the broad discretion of the procuring

agency”) (citing E.W. Bliss Co. v. United States, 77 F.3d 445, 449 (Fed. Cir. 1996)).

D. Thalle is entitled to injunctive relief.

The Tucker Act empowers the Court to “award any relief that the court considers proper,

including declaratory and injunctive relief.” 28 U.S.C. § 1491(b)(2). When determining whether

to grant a permanent injunction, the Court must consider: (1) whether the protestor has

succeeded on the merits; (2) whether the protestor will suffer irreparable harm without injunctive

relief; (3) the balance of hardships to the respective parties; and (4) the public interest. Centech

Grp. Inc. v. United States, 554 F.3d 1029, 1037 (Fed. Cir. 2009) (citing PGBA, LLC v. United

States, 389 F.3d 1219, 1228-29 (Fed. Cir. 2004)). Thalle has succeeded on the merits, so the

Court must now consider whether Thalle will suffer irreparable harm, whether the balance of

hardships favors granting the injunction, and whether the public interest is served by the

injunction.

The Court finds that Thalle is entitled to injunctive relief because Thalle has succeeded

on the merits of its claim and the remaining injunctive relief factors weigh in favor granting such

relief. See Contracting, Consulting, Eng'g LLC v. United States, 104 Fed. Cl. 334, 353 (2012)

(“Although plaintiff's entitlement to injunctive relief depends on its succeeding on the merits, it

is not determinative because the three equitable factors must be considered, as well.”) (citing

PGBA, 389 F.3d at 1228-29). First, Thalle will suffer irreparable harm without injunctive relief

because there is no adequate alternative remedy for its lost opportunity to fairly compete for the

contract. See Insight Sys. Corp. v. United States, 110 Fed. Cl. 564, 582 (2013) (highlighting

“[t]he relevant inquiry in weighing this factor is whether plaintiff has an adequate remedy in the

21

absence of an injunction”) (alteration in original); Sys. Studies & Simulation, Inc. v. United

States, 146 Fed. Cl. 186, 203 (2019) (“The United States Court of Federal Claims has repeatedly

held that a protester suffers irreparable harm if it is deprived of the opportunity to compete fairly

for a contract.”) (citing cases). Second, the balance of hardships weighs in Thalle’s favor.

Neither the government nor P&J allege how they will be harmed if Thalle is granted injunctive

relief. Additionally, even though an injunction would result in a delay to the Corps’ project, only

in exceptional circumstances would delay alone justify denial of injunctive relief. See Sys.

Studies, 146 Fed. Cl. at 203 (stating “only in an exceptional case would [delay] alone warrant a

denial of injunctive relief, or the courts would never grant injunctive relief in bid protests”)

(alterations in original). Finally, the public interest weighs in Thalle’s favor because “the public

interest in honest, open, and fair competition in the procurement process is compromised

whenever an agency abuses its discretion in evaluating a contractor's bid.” PGBA, LLC v. United

States, 57 Fed. Cl. 655, 663 (2003); see also Ernst & Young, LLP v. United States, 136 Fed. Cl.

475, 519 (2018). Since all four factors weigh in Thalle’s favor, Thalle is entitled to its requested

injunctive relief.

IV. CONCLUSION

For the reasons stated above, Plaintiff’s motion for judgment on the administrative record

is GRANTED. Both the Defendant and Defendant-Intervenor’s respective cross-motions are

DENIED. Thalle is entitled to injunctive relief. Specifically, the Court ENJOINS the Corps

from proceeding with performance of the contract awarded to P&J pursuant to the Solicitation.

The Court ORDERS the Corps to reevaluate the proposals in a manner that redresses the errors

identified in this Opinion. The Clerk is DIRECTED to enter judgment accordingly.

Some information contained in this Opinion may be considered protected information

subject to the Protective Order entered on December 8, 2021. Accordingly, the Opinion is filed

UNDER SEAL. The parties SHALL CONFER and FILE on or before April 25, 2022, a joint

status report that: identifies the information, if any, that the parties contend should be redacted;

explains the basis for each proposed redaction; and includes an attachment of the proposed

redactions for this Opinion.

IT IS SO ORDERED.

s/ Thompson M. Dietz

THOMPSON M. DIETZ, Judge

22